Senate Hearing, 111TH Congress - Oversight of The Federal Bureau of Investigation

S. HRG.
111115
OVERSIGHT OF THE FEDERAL BUREAU OF

INVESTIGATION
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
MARCH 25, 2009
Serial No. J11114

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COMMITTEE ON THE JUDICIARY

PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin
ARLEN SPECTER, Pennsylvania
DIANNE FEINSTEIN, California
ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin
CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York
JON KYL, Arizona
RICHARD J. DURBIN, Illinois
JEFF SESSIONS, Alabama
BENJAMIN L. CARDIN, Maryland
LINDSEY O. GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island
JOHN CORNYN, Texas
RON WYDEN, Oregon
TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
BRUCE A. COHEN, Chief Counsel and Staff Director
NICHOLAS A. ROSSI, Republican Chief Counsel
(II)
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CONTENTS
STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., Leahy, a U.S. Senator from the State of Vermont ........
prepared statement ..........................................................................................
Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania .................
1
134
3
WITNESSES
Mueller, Robert S., III, Director, Federal Bureau of Investigation, Department
of Justice, Washington, D.C. ...............................................................................
QUESTIONS AND ANSWERS

Responses of Robert S. Mueller, III, to questions submitted by Senators
Leahy, Feingold, Durbin, Whitehouse, Wyden, Hatch, Grassley, Coburn .......
45
SUBMISSIONS FOR THE RECORD

Burton, M. Faith, Acting Assistant Attorney General, Office of Legislative
Affairs, Department of Justice, Washington, D.C., letter .................................
Dugan Patrick, Assistant District Attorney, Chief of the Rackets Bureau,
New York, New York, letter ................................................................................
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, letter ..........
Heintz, Vincent G., Esq. Bronx, New York, letter ................................................
Mueller, Robert S., III, Director, Federal Bureau of Investigation, Department
of Justice, Washington, D.C., statement ............................................................
Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania, letter ......
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123
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136
152
(III)
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OVERSIGHT OF THE FEDERAL BUREAU OF

INVESTIGATION
WEDNESDAY, MARCH 25, 2009
U.S. SENATE,
JUDICIARY,
Washington, D.C.
The Committee met, pursuant to notice, at 9:35 a.m., in room
SH216, Hart Senate Office Building, Hon. Patrick J. Leahy,
Chairman of the Committee, presiding.
Present: Senators Leahy, Feinstein, Feingold, Schumer, Durbin,
Cardin, Whitehouse, Wyden, Klobuchar, Kaufman, Specter, Grassley, Kyl, and Sessions.
COMMITTEE
ON THE
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S.

SENATOR FROM THE STATE OF VERMONT
Chairman LEAHY. Good morning. Oversight is one of the Congress most important responsibilities, and one that this Committee
will continue to fulfill, as it has in past Congresses and will in this
Congress. Today, we welcome back to the Committee Director
Mueller of the Federal Bureau of Investigation, no stranger to this
Committee. It is now 6 months since our last FBI oversight hearing, and we will soon hold an oversight hearing with Secretary
Napolitano, and then with Attorney General Holder, who had his
confirmation hearing before us 2 months ago.
So we will talk about the effectiveness of the Federal Bureau of
Investigation in carrying out its critical missions to keep us secure
while upholding the rule of law.
We had a commemorationand I was pleased to be thereof the
100th anniversary of the FBI last year. I want to quote something
from what Director Mueller said. He said:
It is not enough to stop the terroristwe must stop him while
maintaining his civil liberties. It is not enough to catch the criminalwe must catch him while respecting his civil rights. It is not
enough to prevent foreign countries from stealing our secretswe
must prevent that from happening while still upholding the rule of
law. The rule of law, civil liberties, and civil rightsthese are not
our burdens. They are what make us better. And they are what
have made us better for the past 100 years.
I talked to the Director after that and commended him for that
speech. In fact, I referred to it on the floor of the Senate and put
it into the record.
There are many vital issues on which we have to work together.
One of particular importance is aggressive enforcement of the mortgage fraud and financial fraud that contributed to the massive eco(1)
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nomic crisis we are facing. I see Senator Grassley here. He and I
introduced and passed out of this Committee legislation, which I
understand may be on the Senate floor next month in that regard.
As Director Mueller will share with us, the FBIs mortgage fraud
caseload has more than doubled in the past 3 years, with all signs
pointing to a continued increase in fraud cases. Then there is, of
course, the need to police the use of the recovery funds. All these
are straining the FBIs resources.
I think the FBI is taking good steps to bulk up fraud enforcement and using creative measures, including new technologies and
also interagency task forces. In his budget outline, the President
showed leadership by committing to provide additional resources to
the FBI to investigate and prosecute mortgage fraud. In my view,
we have to do still more. More is needed to give investigators and
prosecutors the resources they need to aggressively detect and
prosecute these insidious forms of fraud. The Fraud Enforcement
and Recovery Act of 2009 that I have mentionedSenator Grassley
and Senator Klobuchar and Senator Kaufman and Senator Schumer and I introduced that legislationwill do exactly that. I appreciate the Bureaus assistance in developing this important legislation. Yesterday, the Majority Leader said he is going to try to have
it on the floor during the first week we are back after the Easter
recess. I suspect it will pass overwhelmingly, and I hope we can get
a time agreement to do that.
Over the last couple of years, the Director has identified public
corruption as the Bureaus top criminal priority. Recent high profile
cases make clear the importance of aggressive enforcement of corruption laws. The Public Corruption Prosecution Improvements
Actthat is a bill I introduced with Senator Cornyn of Texaswill
give investigators and prosecutors the tools they need in this regard, and that has also been reported to the Senate.
There are other issues that have arisen during the past few
years. One is the misuse of exigent letters, to obtain phone
records and other sensitive records of Americans, including reporters, without a warrant. These letters claimed emergency conditions
that were not applicable and promised a follow-up legal process
that never came. I hope that the Director will be able to assure us,
and the Inspector General will confirm, that appropriate steps have
been taken to prevent a repeat of that abuse. I will ask the Director to address concerns we have that the records may have been
illegally obtained through these exigent letters and then inappropriately retained by the Government.
I have been concernedand I have discussed this with the Directorabout the FBIs responsiveness to requests for information
under the Freedom of Information Act. Open Government is key to
a strong democracy. It is a principle that has been embraced by the
new President and the Attorney General. The FBI has got to be
faster in their responses.
Now, during this hearing we will discuss, as we always do, the
good and the bad: how the FBI worked to clear the backlog in
name checks for immigration and voting purposes; how the FBI has
improved its crime lab testing; but also which problems remain;
and the expiring provisions of the PATRIOT Act.
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In the area of violent crime, there are disturbing signs that crime
rates may increase significantly in response to the financial crisis,
and we will talk about that.
But, mostly, I applaud the Directors efforts to recommit the FBI
to its best traditions. He has done it through not only his statements but his personal example and leadership. And I appreciate
his openness to oversight and accountability. I might state parenthetically that there has never been an instance when I have
called him when I have had a question about some action that the
Director has not been on the phone immediately and been responsive.
Senator Specter.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Senator SPECTER. Thank you, Mr. Chairman.

Before addressing the oversight hearing today, a very important
one, on FBI Director Mueller, I want to comment about a matter
which you just raised with me, and that is the confirmation hearing of nominee Judge Hamilton for the Seventh Circuit. I wrote to
you yesterday on the subject because of concern which I have, as
well as my caucus, on the timing, and I would ask that that letter
be made a part of the record.
Chairman LEAHY. It was answered. You read it first in the press,
and then I read it second, and so it has been in the public record
because we have already viewed it in the press, but we will put it
in the record. As I also mentioned to you this morning, I have had
a number of times that at requests from your side of the aisle, I
have delayed hearings and all, confirmation hearings, and then had
further delays put in even though I have tried to cooperate that
way, Attorney General Holder being one example where we delayed
it for a week or two, and then it was put over another week, and
then delayed for another week on the floor. And he subsequently
was confirmed with the largest vote of the last four Attorneys General.
I mentioned at a markup here recently having put over, at the
request of Republicans, a couple nominations and delayed them to
give them more time, and then unexpectedly they were put over
under the rule by the Republicans, and I was somewhat frustrated
that it seemed to be one-sided. But I know that Judge Hamilton
is strongly supported by Senator Lugar and Senator Bayh. We will
have the hearing, but then we will have almost 3 weeks after that
before any markup comes up because of the Senate calendar.
Senator SPECTER. Well, if I may return to the subject I started
on and thought I had the floor on, the issue is not the time after
the hearing on preparation. The issue is on time for preparation to
ask questions at the hearing. That is what the hearing is about.
And I was about to say that Judge Hamilton has a very extensive
record on the Federal district court, some 1,200 opinions.
Now, in the time sequence set forth in the letterand let me say
that my Chief Counsel handed me a note that we did not release
the letter to the press. And if there is any proof to the contrary and
we identify somebody on my staff who did it, he will not be on my
staff any longer.
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But let us get to the substance, which is important, on the confirmation process, and that substance is that it is a lifetime appointment. And when a comment is made by the Chairman to me
that when you have a conservative Senator like Dick Lugar approving this nominee that is sufficient, well, it is not sufficient. There
is a little thing called the Constitution, and it calls for confirmation
by the Senate. It does not call for approval or recommendation by
the home-State Senator. True, that is indispensable under our blue
slip policy, or at least under the blue slip policy when we had a
Republican President. And that is another practice that the Republican Caucus is going to insist on continuing. But Dick Lugar does
not confirm. The Senate does, and the recommendation of the Judiciary Committee is indispensable on that.
There needs to be time to make an analysis. To have a period
of time after the hearing, does not do any good unless there is another hearing. And I know that is not contemplated and that is not
necessary.
Now, Director Mueller, thank you for coming and on to lesser serious subjects like terrorism and violent crime and the death penalty and other subjects which are very much in the forefront of the
concern of the American people and this Committee.
Terrorism remains a major problem in this country, and the first
question I am going to ask you is whether you are in a position to
assure the American people of two things: No. 1, that the mistakes
on 9/11 will not be repeated; and, second, that we have made significant advances overall on coordination in the fight against terrorism with respect to the duties that the FBI has.
We have enormous problems on violent crime, and we have a
way in this country of saying that we cannot afford to pay for the
prosecution and incarceration of violent criminals because of our
governments other financial obligations. Well, that is unsatisfactory. Security is number one. National security is at the top of the
security list, and terrorism is at the top there. But so is domestic
security. And where you have public officials saying the death penalty ought to be eliminated because we cannot afford to enforce it,
well, in my view, that is not acceptable.
If there is a decision made in this country that we ought to
change the rules and not have the death penalty, that is one thing.
My own view, from experience as a district attorney, is that it is
a deterrent if it is properly used. It has to be properly used, but
that is a complicated subject. The issue as to whether we can afford
it is one which I want to take up with you. Our prisons are overcrowded, but we cannot let violent criminals loose.
Now, if we can make better judgments as to who ought to be detained, fine. We ought to be doing that. If we can work through
prevention, rehabilitation of drug addicts, mentoring of at-risk
youth, taking second-chance people and getting them out of the
crime cycle so they do not go back to prison, that is something we
need to do. And you have some important things to say on those
issues.
Then I want to talk to you about white-collar crime. I see too
many major prosecutions ending in fines which turn out to be licenses to do business, licenses to violate the law. Certainly prison
is a deterrent for white-collar crime, and I want to know what is
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going on. Actually, it is not that I want to know, America wants
to know what is going on with all of the fraud which has led us
to the terrible economic situation we have now where there have
been misrepresentations about balance sheets and widespread selling of insurance around the world without a reserve. Has there
been a representation here which has been breached? Is there
fraud? Fraud is a crime. In this magnitude, there ought to be jail
sentences to deter others, and that is a subject that I will want to
talk to you about.
Then I am going to want to ask you about what kind of oversight
there is on corruption prosecutions. There was the prosecution of
a Senator, Ted Stevens, which has drawn severe criticism from the
presiding Federal judge, contempt citations against Federal prosecutors; an FBI agent was implicatedthere is an issue as to what
happened there, and it may be a matter for oversight by this Committee when the case is finished, or perhaps even sooner. It is a
matter for the Chairman. But I will want to know what the FBI
is doing on that case and what the FBI is doing in terms of providing oversight.
As a district attorney, I saw many young prosecutors cut corners
looking for big targets, publicity, high-profile cases, and the prosecutors have to be quasi-judicial and not do that. And that applies
to the FBI agents as well, a subject that I want to take up with
you.
Finally, you come on a very busy day, Director Mueller, but you
are used to that. We have Justice OConnor testifying before another Committee that I am on. We have Governor Rendell testifying before a third Committee. So, as you know, Senators will
come and go. But we are very concerned with what you have to
say.
Thank you, Mr. Chairman.
Chairman LEAHY. Thank you.
Please go ahead.
STATEMENT OF HON. ROBERT S. MUELLER, III, DIRECTOR,
FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT
OF JUSTICE, WASHINGTON, DC
Mr. MUELLER. Thank you very much, Mr. Chairman, Senator

Specter, and Members of the Committee.
As you know, we in the FBI have undergone unprecedented
transformation in recent years, from developing the intelligence capabilities necessary to address emerging terrorist and criminal
threats, to creating the administrative and technological structure
necessary to meet our mission as a national security service.
Today, the Bureau is a stronger organization, combining better
intelligence capabilities with a longstanding commitment to protecting the American people from criminal threats. And we are also
mindful that our mission is not just to safeguard American lives,
but also to safeguard American liberties.
Certainly the threats currently present in the national security
arena continue to be a grave concern. Terrorism remains our top
priority, and as illustrated by the recent Mumbai attacks, we cannot become complacent. Al Qaeda, lesser known groups, and homegrown terrorists will continue to pose a threat to the United States.
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We must also continue to guard our countrys most sensitive secrets from hostile intelligence services and remember that our Nations cyber infrastructure is vulnerable to compromise or disruption, be it from a terrorist, a spy, or an international criminal enterprise.
But these three are by no means our only priorities. While Americans justifiably worry about terrorism, it is crime in their communities that often most directly impacts their daily lives.
Public corruption continues to be our top criminal priority. The
FBI has 2,500 pending public corruption investigations and in the
last 2 years alone has convicted more than 1,600 Federal, State,
and local officials. And we remain committed to ensuring those
given the public trust do not abuse it.
Economic crime is, of course, a critical concern now more than
ever. For example, the FBIs mortgage fraud caseload has more
than doubled in the past 3 years from 700 to more than 2,000 active investigations. We currently have more than 560 pending corporate fraud investigations, including cases directly related to the
current financial crisis.
In response, we have been shifting personnel within the criminal
branch to the extent possible; we have been using new analytical
techniques to better identify trends and violators; and we have
been building upon existing partnerships to further leverage expertise and resources.
For example, we created the National Mortgage Fraud Team at
FBI headquarters to prioritize pending investigations, provide additional tools to identify the most egregious violators, and provide
strategic information to evaluate where additional manpower is
needed. We have also established 18 mortgage fraud task forces
and 47 working groups with other Government agencies across the
country so that we may more effectively focus on particular problem areas.
While the FBI is surging to mortgage fraud investigations, our
expectation is that economic crimes will continue to skyrocket. The
unprecedented level of financial resources committed by the Federal Government to combat the economic downturn will lead to an
inevitable increase in economic crime and public corruption cases.
Historically, the Bureau handled emerging criminal threats by
transferring personnel within its criminal branch to meet the new
threat. After 9/11, we have lost some of this elasticity. In response
to the September 11th attacks, the FBI permanently moved approximately 2,000 of its criminal agents to our national security
branch. This transfer has substantially improved our counter terrorism program, and we have no intention of retreating from preventing another terrorist attack on American soil as our No. 1 priority.
But the logical consequence of cannibalizing our criminal resources to augment our national security efforts is that we have reduced the ability to surge resources within our criminal branch. Although we have begun an effort to rebuild our criminal resources
back to our pre-9/11 levels, we still have a substantial way to go.
As always, the FBI will set priorities to attack the most severe
threats, but a note of realism is in order in light of the scale of the
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FBIs existing mission after September 11th and the degree of
strain on our current resources.
Violent crime is also a very serious concern, and although data
indicates violent crime declined across the country in recent years,
the citizens of many communities, especially small to mid-sized cities, continue to be plagued by gang violence and gun crime. Since
2001, our gang cases have doubled, and the spread of international
gangs, such as MS13, has increased. The FBI continues to combat
this threat through more than 200 safe streets, gang, violent crime,
and major theft task forces across the country. These task forces
enable us to work effectively with State, local, tribal, and international partners to provide an immediate response to surges in
violent crime. And so, too, must we continue our work with State
and local counterparts to combat crimes against children, the most
vulnerable members of our communities.
We are also deeply concerned about the high levels of violence
along the Southwest border. Gang activity, drug cartel competition
for supremacy, murders, and kidnappings plague the border in both
the United States and in Mexico. These crimes can even impact
communities deep in Americas heartland.
In recent visits with my counterparts in Mexico, I was again convinced that they are as concerned and certainly as committed as
we are. This commitment is underscored by the fact that several
of the top police and justice officials with whom we have in the
past forged relationships have been assassinated by drug gangs.
We will continue our strong alliance with our Mexican law enforcement partners to address this border-related crime.
I also want to update you on key changes we have made within
the FBI, both in our structure and in the way we do business to
more effectively meet the challenges presented since September
11th.
We know that the FBIs best and strongest asset is our people,
and so we have paid attention to recruiting, training, and maintaining a work force with the skills necessary to meet the challenges of todays mission. Our hiring goals includes agents, analysts, IT specialists, linguists, and professional staff. In this year
alone, we have received more than 300 applications and have extended already 4,400 job offers.
We have strengthened our training at the FBIs Quantico Training Academy for both agents and analysts. The numbers of State,
local, and international law enforcement executives graduating
from the FBI National Academy has grown, and we are revamping
our approach to developing leaders at all levels within the FBI, recognizing that todays new employees are the leaders of tomorrows
FBI.
Finally, a few words regarding improvements in FBI technology.
Sentinel, our web-based case management system, is on time and
on target. Blackberry with Internet capabilities have been issued
to over 24,000 of our personnel. We currently have more than
30,000 workstations in the FBI Unclassified Network providing
desktop Internet connectivity to employees throughout the enterprise. We are also strengthening several information technology
programs described more fully in my formal statement that will
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allow us to communicate and share information with our law enforcement and intelligence partners.
In closing, let me thank this Committee for your support for the
men and women of the FBI, and I look forward to working with the
Committee on these and other challenges facing our country.
[The prepared statement of Mr. Mueller appears as a submission
for the record.]
Chairman LEAHY. Thank you very much, Director Mueller, and
let me just on a couple of the things you talked about and that we
have talked about here. I mentioned the wave of mortgage and securities fraud, and, of course, when you have an economic downturn and you add mortgage and securities fraud, it just makes it
worse for all Americans.
The number of mortgage fraud allegations throughout the country has increased almost tenfold since 2002. I know the FBIs mortgage fraud investigations have doubled in the last few years. We
can talk about the unprecedented fraud and scandals like the
Madoff $50 billion Ponzi scheme. If you saw that in a book of fiction a year ago or a couple years ago, everybody would say that is
impossible. But they have undermined confidence in our economy,
and I think that may be the tip of the iceberg.
Now, the FBI can only do so much. It has had people reassigned
to counter terrorism and other areas. We have seen white-collar
crime prosecutions drop off as a result, or investigations. I think
back to the 1980s during the savings and loan debacle, and I read
withSenator Specter made reference to the fact that it might become just a cost of doing business if you are just having fines. And
I feel very strongly in some of these instances that if the people involved in it think they are actually going to go to prison, that
shapes their mind a lot more than losing 5 percent off their profits
in a fine. That is why I mentioned Senator Grassley, Senator Kaufman, and others introduced this Fraud Enforcement Recovery Act.
In our act, we have increased tools and resources for the FBI,
and I mean this seriously: Are those increased tools and resources
things that would actually help the FBI? Would it make you more
effective in this area of mortgage fraud and white-collar crime?
Mr. MUELLER. Absolutely. Certainly whatever additional resources we can receive or do receive with regard particularly to
mortgage fraud, the sub prime crisis, will go to addressing the
caseload of over 2,000 that we have currently around the United
States, with an expectation that will increase.
I will note that in the stimulus package the Senate had recommended adding 165 special agents, and that was not adopted by
the House. But that additional complement of resources would
have been exceptionally helpful, and those resources that are in the
Fraud Enforcement Recovery Act will be put to good use.
Also, the redefinition of the definition of financial institution,
expanding securities fraud provisions to include fraud relating to
options, futures, and commodities, and a number of the other provisions of FERA will be tremendously helpful in giving us the tools
to investigate, ultimately to help prosecutors prosecute, and, finally, to obtain the convictions and the jail sentences that are the
deterrent to this activity taking place in the future.
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Chairman LEAHY. Thank you. I notice that today the Secretary
of State has gone to Mexico, and the relationship has been somewhat strained, and the question of drug crime and the drug cartels.
A recent article I read in a major publication asked is Mexico becoming a failed state or a mediocre state, either way being bad
news to the United States. I am not asking you to state what kind
of a state they are. But they are our second largest trading partner,
and they are a democratic country, and yet since January of last
year, they have had more than 7,000 people killed in drug-related
violence. Some of it is horrendouspolice, military, people involved
in drugs, ordinary citizens, kidnappings, extortion, a lot of it spilled
over the borders, into California and Texas and other border
States. You have traveled to Mexico.
You have seen some of these problems firsthand. The Obama administration announced a plan to redouble our efforts to work with
them. How do we work with them with the amount of corruption
there is there? I think everybody here wants to work with them,
wants to help. How do we do this? I seems like an almost Herculean task.
Mr. MUELLER. Let me start by saying I do believe President
Calderon is taking an exceptionally principled approach to address
drug trafficking in Mexico, and as a result of his effortshis efforts
to address corruption, his efforts to put in place a police force that
is free of corruption, his efforts to change the criminal justice and
judiciary system to eliminate corruptionall of those have resulted, to a certain extent, in a short-term peak of violence.
But I have no doubt about President Calderons desire to address
this and continue to address this. We work closely with the Attorney General, Medina Mora, and the Director of Public Security,
Garcia Luna. And every one of those individuals is adamant about
pressing forward with this war on the narcotics traffickers.
You asked the question about the extent of public corruption.
Yes, there is, and we in the Bureau as well as the DEA traditionally have worked with vetted units, and a key to addressing the
public corruption is having vetted units that are vetted by both
ourselves as well as the Mexican authorities so that you know that
those individuals who are handling these cases are free of the corruption that has been seen in Mexico.
I would also say that the violence has peaked in a number of citiesJuarez and Tijuana, to mention just a few. And it requires, I
do believe, a thorough anda surge, if you will, in those cities to
drive down the homicides that were prevalent in those two cities,
and we are seeing that now in Juarez as an example.
Chairman LEAHY. We may want to have your Department send
somebody up here just for a private briefing of a number of members who have asked questions about this, and we can do it in a
more secure room and discuss it, because they are concerned.
My last question before we go into thatand I will up on the
Mexican thing. The FBIs General Counsel provided the Committee
with a briefing on steps the FBI has taken following the discovery
that more than 700 so-called exigent letters were used improperly
to obtain thousands of citizens telephone and other records. The
FBI was supposed to use national security letters to obtain this.
They did not. The FBI supervisors, agents, and analysts from a
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particular FBI unit obtained records in violation of the law by
sending letters promising that subpoenas would be issued, even
though none ever were. The Inspector General is investigating this.
I understand that the FBI has now issued new retroactive national security letters after the fact in order to justify holding onto
more than half these records. In some cases, the FBI has decided
to hold onto records without issuing any new letters.
If the FBI did not have the legal authority to obtain the records
in the first place, what legal authority do you have to hold onto
them years later? And what kind of legal authority is there for
issuing retroactive national security letters?
Mr. MUELLER. In the cases where we have a legal basis to obtain
those recordsin other words, a touchstone for the issuance of a
national security letter in which we would have appropriately used
the particular protocol or format, then we have kept those records.
But there has to be a touchstone which enables us, gives us the
legal right to obtain those records.
Let me say more generally that I believe that the Attorney Generalnot the Attorney General but the Inspector General, when he
finishes his reportand he has not yet finishedwill find that,
yes, there were substantial lapses in internal controls, that we did
use exigent letters in circumstances where we should not, where
there was not the exigency, and that at least in one area where we
attempted to rectify it, we did not do it appropriately.
My expectation is that he will find that those things occurred.
They occurred back in 2006, 2005, and 2004. We stopped utilizing
exigent letters in 2007, and my belief is that we put into place a
number of procedures that will assure that this will not happen
again, including a compliance office that looks at compliance not
just when it comes to national security letters, but other areas of
the Bureau where we have an obligation under the statutes, under
the laws, to comply, and we want to make certain that we do not
repeat what happens with the national security letter issue.
Chairman LEAHY. Thank you. When I come back, I want to go
back to the retroactive issue.
Senator Specter.
Senator SPECTER. Thank you, Mr. Chairman.
Director Mueller, with so many topics to be discussed and only
7 minutes to do it, I would ask you to submit responses on my terrorism questions in writing.
Mr. MUELLER. Yes, sir.
Senator SPECTER. And the questions are: On the errors that you
and I discussed here 7 years ago with Moussaoui and the Minneapolis office and the coordination with the CIA leading to 9/11,
are those specific problems now corrected?
Second, overall, are we in better shape todayI know the answer
is yes; we discussed this informally, but some specification as to
what has been done I think would be very helpful for the American
public to have. A statement from the Director of the FBI, not enormous but summarizing what has been done, could give us assurances. Nothing is a foolproof system, obviously, but I know a great
deal of effort has been undertaken that you have been at the center
of, and you have been there all the time, unlike the CIA Directors
or the DNI,which is only a recently created office. So you have a
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unique perspective on it, and if you would respond in writing, I
would appreciate it.
Let me take up the question of our ability to afford security from
violent crime. Taking a look at some of the offenses, Federal offenses which are punishable by the death penaltyassassination of
the President, espionage, treason, killing of a Federal witness to
prevent testimony at a trial, drug kingpins, hijacking of airplanes
resulting in deathin your judgment, should the death penalty be
retained on those offenses and generally where the Congress has
established a death penalty?
Mr. MUELLER. In appropriate cases, yes.
Senator SPECTER. And while it is not Federal jurisdiction, what
is your response to the repeated public comments now by State officials that the death penalty needs to be abandoned because it is
too expensive to carry it out? What do you think about that?
Mr. MUELLER. I am not familiar with those comments. I would
go back to the initial question you asked: Is the death penalty appropriate and still appropriate in certain of the actions that fall
within the statutes that carry the death penalty as the appropriate
penalty? I believe, yes, there are certain instances where I believe
the death penalty is appropriate. I know other countries disagree
with that, but, nonetheless, I believe in certain instances it is appropriate.
Senator SPECTER. With respect to our prison population, is there
any substitute for incarcerating violent criminals for public safety?
Mr. MUELLER. Talking about violent criminals, it depends, quite
obviously, on the individuals. But generally a person who has a
proclivity for undertaking violence, the likelihood of rehabilitation
diminishes, and incarceration may be the only protection for the
American public.
Senator SPECTER. Let me ask you this, Director Mueller: With respect to prisoners in the Federal prison system, I would appreciate
it if you would give some thought to the question of what could be
done with them. Your Bureau knows them thoroughly; you have investigated themwhere could we make a segregation with a view
to release some of them or differentiate in their sentencing? That
is a little bit outside your purview, but you have the necessary expertiseI am going to direct the same question to the Attorney
General.
I want to move on now to the white-collar crimes. You say you
have some 700 cases. The thought occurs to me that it would be
very salutary if you could move ahead on some of them promptly.
We just had a prosecution in Philadelphia, a Federal prosecution
of a State Senator, Vincent Fumo. There were more than 100
counts. The investigation took years. The trial took months. All of
that was not necessary. I was a district attorney myself, handled
complex cases. You could move through the cases, and the investigation without bringing hundreds of counts.
Let me ask you to take a look at that issue, too, and respond in
writing if there are some of those cases that could be expedited.
Public attention is very brief, and it would be, I think, very helpful
to our overall system in this economic crisis to give public assuranceregarding a question I hear all the time: What is going on?
Where is the accountability? Who is going to go to jail? Well, we
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are not going to send people to jail who do not deserve to go to jail,
but if they deserve to go to jail, my core question I am sure you
understand is: What can we do to expedite the investigations and
prosecutions to narrow the timeframe? If there is some more investigation and prosecution required to succeed, you can investigate
further. You do not have to have 100 charges.
A final subject I want to talk to you
Mr. MUELLER. I would just address that very briefly to say that
we are working with a number of U.S. Attorneys and with the Department of Justice for what we call fast-track prosecutions in a
number of areas, and we are doingas I indicated in my remarks,
we are prioritizing our cases to get the most egregious early and
put those persons away.
So we share your concern and your desire for a fast-track approach to a number of these cases, of which we have 2,000 at this
juncture.
Senator SPECTER. Well, maybe you could narrow the interval
even further and expedite cases even further as examples for deterrence.
A final subject that I want to bring up with you is the one I mentioned, the Stevens prosecution, and in this case, the trial judge severely admonished the Department of Justice for inappropriate
conduct. FBI agent, Chad Joy, alleged that prosecutors knowingly
withheld Brady evidence, and that a member of the prosecution
team relocated a witness to keep him from testifying because he
had done poorly in a mock cross-examination. FBI Agent Joy said
a female FBI agent had an inappropriate relationship with Allen,
a key witness. There were also contempt citations, and the FBI
agent was involved. Now you and I discussed it informally, but I
think it is important to put it on the record.
I alluded in my opening statement to problems which I saw
where prosecutors were anxious for notoriety, to bag a big target,
and this required a lot of supervision. And my question to you is:
What kind of supervisionand I am going to put a similar question
to Attorney General Holder. I understand he is making a personal
review of the Stevens matter with regard to impropriety on the
part of prosecutors, which the judge has already made contempt
findings.
But what efforts are made at the senior echelon, mature people
in your Bureau to make sure that your FBI agents do not overstep
and act inappropriately because of their desire to get a so-called big
target?
Mr. MUELLER. Let me start by saying, Senator, as you are aware,
in that particular case the issues that you raised are the subject
of post-trial motions and are being addressed not only by the judge
in the post-trial briefings and hearings, but also by a team at the
Justice Department that is looking at the allegations where they
would relate to the prosecutors or the FBI.
You also, I think, are quite aware that in a public corruption
case, particularly a serious public corruption case, the decision
whether or not to take action is overseen by a number of people
at levels whether it be the Assistant Attorney General in charge of
the Criminal Division, the Deputy Attorney General, and ulti-
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mately the Attorney General to assure that the case is appropriately brought.
If in the course of that case there are allegations, whether it be
attributable or against a prosecutor or an FBI, then that is investigated, FBI agents by ourselves, but also by the Department of
Justice, as well as the prosecutors by the Department of Justice in
the form of OPR or others. And so it is going on at least two tracks
currently, the most important one being the post-trial motions in
that particular case, and, therefore, I am somewhat precluded from
speaking more about it.
Senator SPECTER. The question of the FBIs procedure regarding
senior supervision is a generalized one. That was where I led you.
I was not surprised to hear the reasons you cannot answer in specific cases. I am well aware of those. There is a value sometimes
in the publicity on a question, even though there is not an answer.
But the question I asked you does not involve a case specifically:
Do you have senior people in the FBI supervising conduct, especially in these so-called big target cases?
Mr. MUELLER. Absolutely. We have it at the supervisory level in
the field office. We have it at the special agent in charge in the
field office. Back in the Criminal Division, we have the section chief
and then the Assistant Director in charge of the Criminal Division,
all of whom will be familiar with the facts and the conduct of the
investigation, and ultimately in terms of the conduct both in the
course of the investigation at trial, it would be myself and my Deputy, John Pistole. There are various levels of supervision. And
when we receive allegations or assertions of conduct that should be
investigated of our own people, we initiate that investigation very
quickly and follow through.
And to the extent that it is conduct that is raised at a serious
level, we first go to the Inspector General to determine whether or
not the Inspector General should take a look at the conduct, looking as an objective third party, and basically in most cases the Inspector General has a right of first refusal.
Senator SPECTER. Well, I like the detail of that answer, especially the part where you get involved.
Thank you very much.
Senator FEINSTEIN [PRESIDING.] I would like, if I might, to go
over the order. Following my questions, the order is Grassley, Feingold, Kyl, Schumer, Sessions, Cardin, Klobuchar, Kaufman, and
Whitehouse.
Welcome, Mr. Mueller, and thank you very much again for your
service. It is appreciated. My first question is one that involves one
particular case, and that is the case of a murder in Loudoun County of a highly decorated Special Forces retired colonel and his wife,
a retired Army captain. They were out for a walk. A van stopped.
He was beaten to death. She was badly beaten, is in a hospital. It
is murder and attempted murder.
Can the FBI become involved in that case?
Mr. MUELLER. I am familiar with the facts raised in the newspapers. I have not followed up, but I will have to get back to you
on whether or not we would have some role to play. Certainly if
requested by the local authorities, yes; otherwise, we would have
to look and see whether there is a Federal nexus that would war-
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rant our participation. We would, quite obviously, in a case like
that
Senator FEINSTEIN. I would appreciate if you would look at that.
This is a very unusual situation, it seems to me, and a horrible
one. And I think everyone is extraordinarily upset by it, and we
need to move fast. So I would appreciate it.
What is the FBI, Mr. Mueller, doing to prevent the supply of
guns from the United States to Mexico? The Mexican ambassador
and the Mexican Government has told us that 90 percent of the
guns going to the cartels in Mexico are coming right from the
United States of America. So my question is: What is the FBI doing
about it?
Mr. MUELLER. I would say that we are supportive. ATF has the
major role in gun investigations. When we come across in the
course of our investigations individuals who are trafficking in
weapons, we immediately bring in the ATF and will work with the
ATF on joint cases.
To the extent that we pick up guns in the course of our
investigation
Senator FEINSTEIN. No, my question is different. Is there a specific effort now going on to take a look at the straw purchasing that
is going on and other transmitting of weapons down into Mexico?
Mr. MUELLER. It is, and that is being undertaken by ATF, and
we are supportive of ATF.
Senator FEINSTEIN. But do you believe that is sufficient? You
know, Senator Durbin as the Chair of the Subcommittee and I as
the Chair of the Caucus on International Narcotics Control had a
hearing. The Attorney General of Arizona testified, and it is really
a terrible situation where these guns are just coming down in bulk
into Mexico and fueling the cartels. And I wonder if just having
ATF, which has always had, in my view at least, a restricted role,
is enough to stop this.
Mr. MUELLER. Well, I will say we do not have a focused effort
in that particular area. Along the border we address public corruption on our side of the border in which we have substantial numbers of cases, with the drug-trafficking individuals maybe paying
off persons along the border. We have substantial threats with regard to kidnappings, Americans who will travel to Mexico, either
because of their businesses or families, who will be kidnapped. We
have extortions. We have gang activity trans-border, all of which
keeps us quite occupied.
We do not have a focused effort on ourselves. We are supportive
in each of our field offices of ATFs efforts. But I will go back and
take a look and see what more we can do in that particular area,
because I do not disagree at all that substantial numbers of guns
are coming from the United States, and it is fueling the violence
south of the border.
So I would be happy to go and take a look and see if there is
something more we can do in that regard.
Senator FEINSTEIN. Yes, and you can be assured I will follow up.
Mr. MUELLER. Yes.
Senator FEINSTEIN. I appreciate that very much.
In September of 2004, Chris Swecker, the Assistant Director of
the Criminal Investigative Division at the FBI, said that mortgage
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fraud could cause multi-billion-dollar losses to financial institutions. CNN reported that he said that this fraud has the potential
of being an epidemic and, We think we can prevent a problem that
could have as much impact as the savings and loan crisis. Despite
this early warning, the L.A. Times reported on August 25, 2008,
that the FBI has actually reduced the number of agents devoted to
investigating mortgage fraud.
Can you tell us exactly what the situation is, why agents are reduced, and what the position of your agency is with respectI can
tell you, in California it is a big problem.
Mr. MUELLER. Well, let me start by saying that I believe Chris
Swecker was prescient in terms of anticipating it.
Senator FEINSTEIN. I believe that, yes.
Mr. MUELLER. But you did not see the rise for a couple of years,
the rise in mortgage fraud. What triggered or what was the catalyst to much of this is the drop in the housing markets.
We actually had done a number of cases in mortgage fraud back
in 2000 and 2001, particularly in this area. What we found over a
period of time is, because the housing market was moving so rapidly ahead, that much of the fraud was, and particularly the values
were minuscule because the property market kept going up. And,
consequently, the triggering factor to what you see today in the
vast majority of the mortgage fraud cases we have were triggered
by the decline in market values over a period of time.
That does not mean that we could not have put additional resources on it, but at that time, we had other priorities that we were
focused on, and not this one. I do not believe, though, had we put
more agentsit would have been relatively few, and I do not believe that that would have prevented what had occurred over the
last couple of years.
Senator FEINSTEIN. Well, I can tell you it is out there, it is a
problem. I can tell you there are people that are selling mortgages
that are unqualified. They misrepresent, and, you know, we have
had actual cases. There actually was a special targeted team working the L.A.-Riverside-San Bernardino area. I think the FBI was
involved. It made several arrests. But that really needs to be done
on an ongoing basis, and my question, I guess, is: What are you
going to do about this?
Mr. MUELLER. Well, in the last 2 years, we have had 800, 900
prosecutions, successful prosecutions across the country. Last summer, we had a series of cases around the country which came to
fruition about the same time called Malicious Mortgage, in which
we had locked up a number of persons. And you will continue to
see day in and day out other successful investigations and prosecutions, putting away the persons that are responsible for this.
But as I have indicated, the numbers of frauds have grown over
the last 2 years, and we can address just so many with the agents
that we have.
Senator FEINSTEIN. Yes, but you have reduced the number in Los
Angeles, and if you would look into that, too, as the third thing and
let me know why.
Mr. MUELLER. Over the last 2 years, we have increased the numbers of agents. When he testifiedI have not looked back at the
date when he testified, which I think was maybe 2004, 2005. But
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certainly over the last several years, we have increased the number
of agents that are doing mortgage fraud.
Senator FEINSTEIN. All right. Then that report was not correct,
you are saying.
Mr. MUELLER. It may have been correct at the time, at or about
the time that he testified and shortly thereafter. But for the last
couple of years, we have increased the number.
Senator FEINSTEIN. I am referring to a report in the L.A. Times
on August 25, 2008, that the number of agents have been reduced
that are investigating mortgage fraud.
Mr. MUELLER. As of that date, I do not thinkI do not believe
that is accurate as of that date.
Senator FEINSTEIN. If you could check.
Mr. MUELLER. I will check on that, yes.
Senator FEINSTEIN. This is an areaif you could speak quickly
a little bit aboutwell, I am already over my time so do not speak.
Thank you very, very much.
Senator Grassley, you are up next.
Senator GRASSLEY. Thank you. As I usually do, I want to give
you an update on where we are in some of our correspondence. The
Committee has not received answers from your agency to all questions for the record from either September 2008 or March 2008.
When I last met with Attorney General Holderthis was in December before he was actually appointedI provided him with a
collection of my letters to the Justice Department, including the
FBI, that were still considered unanswered, and he pledged to review them, if confirmed. I generally ask that my letters be answered within 2 weeks, but, on average, replies were 371 days.
By the way, I gave him a folder probably that thick. I also gave
the Secretary-designate for HHS a folder that big of letters that
have not been answered. So the Justice Department is not necessarily the worst ones. But I get tired of waiting for replies.
After this hearing was scheduled, I recently received two additional replies to letters that had been outstanding for several
months, and I want to use the word reply rather than the word
answers because oftentimes FBI and Justice Department staff
will send a reply that does not actually answer a question.
So a very short answer to this question, please: Do you agree
that it should not take months or years for members of this Committee to get substantive answers to our legitimate oversight questions?
Mr. MUELLER. Not only do I agree, but I would beI would tell
you, the March QFRs from 2008, we sent answers over to the Department of Justice in June. The September 2008, we sent answers
over in December. I discussed with the Deputy Attorneys General
the necessity of responding so that I do not get the same questions
each time that we comethat I appear before this Committee.
So I am hopeful that
Senator GRASSLEY. I think you are saying that you have answered our questions, but they are buried in the bureaucracy at
Justice. Is that
Mr. MUELLER. There is a process that one goes through where
the questions go to Justice for clearance as well as OMB for clearance.
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Senator GRASSLEY. I tried to explain to the Attorney General and
every other Democratic nominee for Cabinet that you have got this
stuff unanswered that comes from the Bush administration, surely
wouldnt you want to clear this up so if it is answered next September, the Obama administration is not being connected with it
when it is the fault of some previous administration? It would seem
to me like you would want tonot you. Everybody would want to
get them cleared up.
Well, I am a little bit exasperated because of President Obamas
commitment to openness and transparency in Government and the
policies that the new administration has put in place, and I would
expect that all of the executive branch agencies would be more responsive to my requests. I say that with confidence because the
President made a very big issue out of being more transparent during the campaign.
Let me move on. The Government Accountability Office 2008
Performance and Accountability Report says the following: Most
departments and agencies are very cooperative with our requests
for information. However, our experience with some agencies, such
as the Department of Justice, has proven more challenging.
Why do you think that the General Accounting Office had to single out the Justice Department as particularly uncooperative with
its requests for information?
Mr. MUELLER. I do not know, sir. I would have to look into
whether that statement encompassesthe Department of Justice
would encompass the FBI. I am not certain whether it is directed
at the FBI. If it is, I would want to look at that and see what the
issue is as we try to cooperate and coordinate
Senator GRASSLEY. Before I ask you the next question, since the
Chairman is not here, I would like to have the Chairmans staff
take note of something I learned from Senator Baucus on our Finance Committee and nominees before that and not getting information out of the administration at that time. He put holds on people that were under the jurisdiction of the Treasury Department.
He put holds on those nominations until he got answers, and I
think it is about time that not only for my own part but for the
Chairmans part, who often says that he does not get answers to
his letters and inquiries, that we ought to think in terms of doing
something like that in the case of nominees for Justice Department
Assistant and Deputy Secretaries.
For several years before Countrywide Financial was purchased
by Bank of America, it operated a VIP loan program that gave discounts on mortgages to, among others, influential public figures
and Government officials. About 30 such loan recipients were publicly named in press reports. House Republicans of the Governmental Oversight Committee obtained some disturbing internal
Countrywide e-mails where executives explicitly considered borrowers political influence in making loan decisions. The FBI has
been investigating these issues since last year. However, my office
has received reliable information that investigators have not yet
obtained basic documentations for loans. The last thing that we
need is slow-walking this kind of investigation.
Given that American taxpayers now substantial investment in
Bank of America, I would hope that their cooperation with law en-
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forcement would be even more swift and certain. Will you look into
this matter and assure this Committee that all the relevant documents are being shared with law enforcement entities in them?
And then before you answer that, is there any legitimate reason
why investigators would not have actually already obtained the
Countrywide Financial loan files from Bank of America by now?
Mr. MUELLER. Let me say generally that I am briefed on the
I have for several months been briefed about every other week on
the cases relating to the subprime mortgage crisis, and in those
briefings we talk about very generally, not necessarily specifically,
any issues that might come up that would delay investigations, and
we address those. We are anxious to make certain that we press
ahead as fast as we can on all investigations.
Yes, I would be happy to get back to you with an answer as to,
without talking about a specific investigation or specific set of documents, whether we have met any hurdles in terms of pursuing
those investigations. I have not heard of any such, but I will make
the inquiry and get back to you on that.
Senator GRASSLEY. Thank you very much.
Thank you, Madam Chair.
Senator FEINSTEIN. Thank you, Senator Grassley.
Senator Feingold.
Senator FEINGOLD. I thank the Chair. And it is good to see you
again, Mr. Director.
The last time you were before this Committee, we spoke at some
length about the draft Attorney General Guidelines for Domestic
Investigations that the Department was rushing to finalize before
the last administration left office. I went back and looked at the
transcript of our conversation, and I just want to ask you a few
things about that.
First, you said at that time, despite my complaints about the procedures by which we were being shown the draft that you were incorporating suggestions that had been made by Members of Congress and by outside experts. Yet the final guidelines that went
into effect in December, in my view, were not appreciably different
than the draft that we saw prior to your appearance in September.
As you know, the main concern that many of us had about the new
guidelines when we saw the draft, and we expressed them to you
and the former Attorney General, was that they permit FBI agents
to initiate an assessment without any suspicion of wrongdoing
whatsoever. And those assessments can include physical surveillance, recruiting sources, and pretext interviews. You chose not to
revise that basic approach.
Why do you think it is necessary to give agents such broad authority? And what protections are in place to prevent that authority from being abused?
Mr. MUELLER. We have had that authority in the criminal side
of the house for years, as I think we discussed previously. We have
not had on the national security side. And it is not an authority.
It is the approval under the guidelines of the Attorney General. We
have the authority to do it. It is a question of whether it fell within
the guidelines by the Attorney General.
When you are looking at trying to prevent an attack in the
United States, that is far different than doing investigation after
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an attack occurs. And you have to take tidbits of information that
may relate to a particular individual, a grouping of individuals, to
determine whether or not those individuals pose a threat.
I am wont to say if you go back to September 11th and you look
at the memorandum that was produced by Ken Williams, who is
an agent out of Phoenix, about individuals who were going to flight
training who might present a risk to the American public, we were
excoriated for not following up on that memorandum. You asked
what should we have done. Should we have then gone to flight
schools and see whether there was a threat there? The assessment
process allows us to address threats such as that when there is
some information that there may be a threat that exists. It requires a proper purpose, not necessarily the predication on a particular individual. And that is an example where I think if we had
pursued it under the assessment capabilities, perhaps we would
have come up with something, which is why I think it is important
that we maintain that capability.
Senator FEINGOLD. We could debate in that example whether or
not there was a suspicion of wrongdoing, but I do not want to
spend all my time on that. So let me ask you about just what protections are in place to prevent abuse. Mr. Director, you have had
to call me and tell me that there is going to be a disturbing report
about other authorities that were given to the FBI and say, you
know, I am sorry this happened because sometimes authorities are
abused. So what would you say about that?
Mr. MUELLER. Well, in sensitive areas, it requires that in order
to open an assessment you have to go through the counsel on the
particular office and have the approval of the special agent in
charge. There are certain other categories that are carved out
where they are particularly sensitive when it relates to religious institutions or educational institutions and the like, and you want to
undertake some sort of assessment, there is a scale of approvals
that are required to look into the particular instance to assure that
it is not just an agent who is on his or her own undertaking that
activity without any scrutiny and approval process in place. So we
have carved out areas that are particularly sensitive for enhanced
scrutiny and approvals.
We are working with the Department of Justice to go into our
field offices periodically and do a scrub and look at the approval
process to determine whether or not the is have been dotted and
the ts crossed so that we dont have another national security letter issue.
Senator FEINGOLD. All right. Let me move on to another
Mr. MUELLER. Those are two of the things that we are doing.
Senator FEINGOLD. Thank you, and we will pursue this more in
the future. I will continue to be interested in it.
Attorney General Holder said at his confirmation hearing that he
would revisit the guidelines once there had been a chance to see
how they are working. What is your estimate of the number of assessments conducted using these new authorities? And how many
of those assessments resulted in preliminary or full investigations?
Mr. MUELLER. I would have to look at those and get back to you
on that.
Senator FEINGOLD. Would you get back to me on that? All right.
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Let us turn to something we have discussed before, the need for
the FBI to gain the trust of the American Muslim community to
assist in the effort to stop terrorism. I was disappointed to learn
of a recent statement from the American Muslim Task Force on
Civil Rights and Elections, signed by ten leading U.S. Muslim organizations, indicating that they are considering suspending their
work with the FBI. According to a news report, The groups claim
the FBI has sent undercover agents posing as worshippers into
mosques, pressured Muslims to become informants, labeled civil
rights advocates as criminals, and spread misinformation.
Can you determine and report to this Committee whether
mosques have been entered by FBI agents who were informants
without disclosing their identities under the authority of the Attorney General guidelines? And if so, how many?
Mr. MUELLER. Well, there are a number of questions in there. I
would hesitate to provide information on ongoing investigations,
quite obviously. I will say that we do not focus on institutions. We
focus on individuals. And I will say generally if there is evidence
or information as to an individual or individuals undertaking illegal activities in religious institutions with appropriate high-level
approval, we would undertake investigative activities, regardless of
the religion. But we would single that out as an exceptionally sensitive circumstance that would require much vetting before that occurred.
Senator FEINGOLD. So, in theory, it could include entering a
mosque under a different identity?
Mr. MUELLER. I will stick with my answer.
Senator FEINGOLD. All right. Let me ask you one more thing before my time is up. Do you think
Mr. MUELLER. Could I say one other thing?
Senator FEINGOLD. Absolutely.
Mr. MUELLER. You allude to issues with regard to the Muslim
community. Let me say that the Muslim community has been tremendously supportive of the Bureau since September 11th.
Senator FEINGOLD. Absolutely
Mr. MUELLER. They have been supportive. The outreach and the
relationships have been exceptional.
Senator FEINGOLD. That is exactly why I am bringing this up.
Mr. MUELLER. But there are instances where we will have an
issue with someone or an individual or individuals in the Muslim
community that needs to be resolved.
Senator FEINGOLD. All right. Let me ask one more question
Mr. MUELLER. But the vast majority
Senator FEINGOLD [continuing]. Before my time is up, on this
point, Mr. Director. Do you think that the new Attorney General
guidelines are helping or hurting the FBIs relationship with the
U.S. Muslim community? In light of this task force statement, how
do you plan to improve that relationship?
Mr. MUELLER. Well, I periodically meet with the leaders of the
Muslim community. I believe we will be doing it shortly in a futureonce again. Each of our offices meets weekly or monthly with
members of the Muslim community. My expectation is that our relationships are as good now as before the guidelines generally
across the country. There may be an issue here or an issue there
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with a particular institution or individuals. But I do not believe
that it undercuts our relationship with the Muslim community
around the country. The Muslim community understands that the
worst thing that could happen is that there be another terrorist attack in the United States. It has been tremendously supportive and
worked very closely with us in a number of instances around the
country. So I do not believe that the guidelines or the other issues
adversely impact that relationship.
Senator FEINGOLD. Thank you, Mr. Director.
Senator FEINSTEIN. Thank you, Senator Feingold.
Senator Kyl, you are next up.
Senator KYL. Thank you, Madam Chairman.
Director Mueller, thank you for being here. I want to follow up
on questions my colleague from Wisconsin just asked because obviously you appreciate how important it is to distinguish between the
Muslim community, which you just described, and groups which
support terrorists and obviously, therefore, are the subject, at least
potentially, of investigative activities.
On February 23rd of this year, Senators Schumer and Coburn
and I wrote you a letter commending your decision to sever ties
with the Council on American-Islamic Relations, CAIR, and asking
some questions about the scope of the new policy. I think your staff
has been advised that I would ask you why we have not received
a response to that letter yet. We thought that the decision that was
made was prudent and long overdue, especially in light of the fact
that the Government itself introduced evidence that demonstrated
the links between CAIR and Hamas, which led the Government to
label CAIR and specific members as unindicted co-conspirators in
the Holy Land terror finance trial. In fact, agents of the Bureau
testified and affirmed the evidence of these links. My understanding is that Representative Wolf has also written a letter
somewhat similar to ours and made various inquiries.
Can you tell us why we do not have a response yet and when
we might be able to expect a response?
Mr. MUELLER. No. I will go back and see where that is and try
to get that out swiftly to you.
Senator KYL. We would appreciate it very much. Just let me
summarize a couple of the questions. Perhaps these are questions
you can answer right now.
Is it, in fact, correct that the Bureau has cut off its ties with
CAIR?
Mr. MUELLER. I prefer not to discuss any particular organization
in the Muslim community. I can tell you that where we have an
issue with a particular organization, we will take what steps are
necessary to resolve that issue.
Senator KYL. Well, whatever the policy is, which I gather you
will describe, is that a Bureau-wide policy? Does it apply to the regional offices and district offices and so on, the field offices?
Mr. MUELLER. We try to adapt, when we have situations where
we have an issue with one or more individuals, as opposed to an
institution, or an institution, writ large, to identify with some specificity those particular individuals or issues that need to be addressed. We will generally haveindividuals may have some
maybe leaders in the community whom we have no reason to be-
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lieve whatsoever are involved in terrorism, but may be affiliated in
some way, shape, or form with an institution about which there is
some concern and which we have to work out a separate arrangement. We have to be sensitive to both the individuals as well as
the organization and try to resolve the issues that may prevent us
from working with a particular organization.
Senator KYL. Even though you have said you prefer not to talk
about specific organizations in this hearing, I guess the question
still remains whether the information that we received that this
particular organization was no longer one with which you were
having a direct relationship, is that information incorrect?
Mr. MUELLER. I think what I would prefer to do, if I could, is
provide that letter to you where I can be more precise in terms
of
Senator KYL. All right. That is fair enough.
Mr. MUELLER [continuing]. And have some opportunity to review
exactly specifically what I say.
Senator KYL. I appreciate that. Let me maybe carry it a little bit
further into an easier area for you. The Holy Land case also dealt
with the Muslim Brotherhood, and I just wanted to quote from one
Government exhibit, Exhibit Number 385, from that trial, and
this is also known as Ekwan: The Ekwan must understand that
their role in America is a kind of grand jihad in eliminating and
destroying the Western civilization from within and sabotaging its
miserable house by their hands and the hands of the believers so
that it is eliminated and Gods religion is made victorious.
Are members of the Muslim Brotherhood or the organization
itself active at all in the United States, to your knowledge?
Mr. MUELLER. I would say generally we have investigations that
would address that issue, yes.
Senator KYL. And do you have a policy about meeting with that
organization or its members?
Mr. MUELLER. I would not say we have a written policy, but I
can tell you that before wethat in the course of our liaison activities, we certainly search our indices to make certain that when we
meet with individuals, that they are not under investigation, and
that we can appropriately maintain liaison relationships with
them.
Senator KYL. There has also been a fairly public casein fact,
Senator Lieberman held a hearing in the Homeland Security Committee concerning a problem in Minnesota, and I suspect you are
familiar with that.
Mr. MUELLER. Yes.
Senator KYL. This is the so-called Al-Shabaab group and some
Somali youth who have left that community and, in fact, at least
one who is, I gather, believed to be involved in a suicide bombing.
Can you tell us anything about your work in that area?
Mr. MUELLER. I think it has been, to a certain extent, publicized
that individuals from the Somali community in Minneapolis have
traveled to Somalia to participate with al-Shabaab, and there are
ongoing investigations into that issue. Again, we are working with
the Somali community in Minneapolis and other cities around the
United States to combat that radicalization that has occurred.
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Senator KYL. So then it is correct to describe a radicalization
process that is occurring at least in one community in the United
States that has resulted in one of these individuals going abroad
and at least allegedly committing an act of terrorism? Would that
be accurate?
Mr. MUELLER. That is accurate.
Senator KYL. Can you quantify your belief as to how widespread
this might be in the United States? And by that, I mean the attempts to radicalize young
Mr. MUELLER. Well, radicalization comes in a number of forumsor fora, perhaps I should say, the Internet being one of the
principal ones now. It also can be individuals. It can be members
of a community. I do believe that what we have seen in Minneapolis is not widespread throughout the United States, and that
it is, I believe, a matter of public record that one individual who
was so radicalized became a suicide bomber in northern Somalia
back in October of 2008. We have not seen that occurrence again,
but we do not want to see it either and the parents of the individuals do not want to see it either. And so, again, we are working
with the community to make certain that any pockets of
radicalization are identified and addressed, whether it be in Minneapolis or around the country.
Senator KYL. I appreciate that and would just note if we could
get a response to that letter, I think it would be very helpful. I am
not sure of the origin of it, but for some reason, a lot of my constituents over the last several weeks have approached me and
asked me questions. Somebody, I think, must be spreading the
word that there are potentially a lot of these organizations around
the United States, a lot of people being radicalized, and it is a matter of great concern. And I have tried to suggest that, at least from
my knowledge, it is not widespread, that the FBI obviously would
have a handle on it.
But to the extent that you can get the information to us so we
can assure our constituents of what is, in fact, going on, I think
that would be very helpful.
Mr. MUELLER. Yes, sir.
Senator KYL. Thank you.
Chairman LEAHY [presiding]. First, I want to thank Senator
Feinstein for filling in while we were trying to do appropriations
and this, and, Senator Cardin, please go ahead, sir.
Senator CARDIN. Thank you, Mr. Chairman.
Let me thank you, Director Mueller, for your service and thank
you for being here today. I want to talk about the PATRIOT Act,
if we might. There are three major provisions that will sunset during 2009 that will need to be taken up by Congress, and this Committee will have a significant role in regards to the reauthorization
and perhaps modifications of the roving wiretap, the business
records, and the lone-wolf provisions.
I would hope you could share with us the importance of these
provisions, whether you believe that there will be efforts made to
extend these sunsets and whether you will be recommending modifications in these laws, and what process you are intending to go
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through to work with Congress as we take up these issues, which
in the past have been somewhat controversial.
Mr. MUELLER. My hope, quite obviously, is that they will be less
controversial as they come up this time because we have seen their
use and have some track record with it.
Starting with the business records provision, 215, we have utilized that 223 times between 2004 and 2007. We do not yet have
the records or the total for 2008. But it has been exceptionally
helpful and useful in our national security investigations.
With regard to the roving wiretap provision, that is also
sunsetting. We have used that 147 times, and that also has eliminated a substantial amount of paperwork and I would say confusion in terms of the ability for us to maintain surveillance, electronic surveillance on an individual where we can utilize that roving wiretap provision.
As to the lone-wolf provision, while we have notthere has not
been a lone wolf, so to speak, indicted, that provision is tremendously helpful. Where we have a difficulty in showing a tie between
a particular individual about whom we have information that
might be supporting terrorism and be a terrorist, but we have difficulty in identifying the foreign power for which he is an agent,
whether it be a terrorist group or otherwise, what we call the
Moussaoui problem, where the issue was the inability for us to
tie Moussaoui to a particular terrorist group, so that also is a provision that has been, I believe, beneficial and should be re-enacted.
I have not yet had an opportunity with the new administration
to have a discussion about the position. I know we will be working
with the Department of Justice on these three provisions, but my
hope is that the Department will support the re-enactment of all
three and that we can sit and work with Congress to explain, if
necessary, more fully how important they are to our work.
Senator CARDIN. Well, I very much appreciate your response.
Having the total numbers of use is useful and very helpful. In regards to the business records, there has been some press that has
been less than favorable on some of the applications, but this may
not be the right forum to get into more detail. But I do think it
is important that the Judiciary Committee in its oversight function
and the Intelligence Committee in its oversight function examine
more specifics, for two reasons.
One, I think most of us believe these tools are extremely important, and we want to make sure that you have the tools that you
need. We want to make sure that there is the appropriate oversight, and we normally get more attention as we get closer to the
deadlines for extending sunsets than at other times during the
year. And we want to make sure we take advantage of this opportunity to get a better understanding so we are on the same page
as to what tools are needed.
And the third point is there may need to be modifications, not
necessarily restrictions, there may need to be fine-tuning of these
provisions to make sure that they are more effective and used as
intended by Congress.
I would just encourage you to work with the Chairman of our
Committee and the Chairman of the Intelligence Committee so that
we can feel more comfortable working with the administration. I
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know it is early in the new administration, but this issue is going
to come up quicker than we think, and the one thing I do not want
to see happen is that we have a deadline without an opportunity
to be fully comfortable with a bill that would extend the provisions
in the PATRIOT Act.
I would like to ask one more question on a different subject, and
this deals with the security risk assessments for all individuals
with access to select agents and toxins. As you know, I represent
Maryland, home of Fort Detrick, where the major problem with Dr.
Ivins took place, and there was a lot of discussion about looking at
the procedures used for security clearances and revoking security
clearances.
Could you update us as to where we are as far as a comfort level,
knowing that those people who have access to toxins are, in fact,
being cleared appropriately for the sensitivity of their positions?
Mr. MUELLER. I know in the wake of the attacks in Octoberactually, September or October of 2001, that there were upgrades
made. But upon the identification of Dr. Ivins as being the principal person involved, a wholesale review was ordered by the Department of Defense. And I am not certain where that review is.
We would have to get back to you on that.
Senator CARDIN. And I appreciate that, and that is fine. I do believe you have the responsibility on some of the security clearance
issues, so it does involveam I correct on that?
Mr. MUELLER. In some of it, although I would have to check on
it, but I think most of the security clearance work is done by DOD
itself as opposed to us. But I will have to check on that.
Senator CARDIN. I appreciate it.
Mr. Chairman, I would just stress I would hope that we will have
the opportunity to return to the issues of the PATRIOT Act far in
advance of the deadline for the end of this year where we have to
act.
Chairman LEAHY. And I can assure the Senator we will, because
the sunset provisions were put in there basically to force not only
the Congress but the administration to look at the parts that are
expiring and make sure, if we renew them, that we do it in a justifiable fashion. So I assure the Senator we will.
Senator Sessions.
Senator SESSIONS. Thank you, Mr. Chairman, and I think the
PATRIOT Act was carefully constructed. We had some very vigorous hearings, and I believe all the provisions in it are consistentdo you not agree, Mr. Muellerwith traditional law enforcement methods, many of which are being used in other circumstances and even against terrorism and that care was taken
not to violate any of the great constitutional protections that we
cherish in this country?
Mr. MUELLER. I do. I am, not surprisingly, a strong supporter of
the PATRIOT Act, particularly the areas where it broke down the
walls between ourselves and the intelligence community. Senator
Specter alludes to the changes since September 11th. One of the
substantial changes since September 11th has been, quite obviously, our sharing of information with the intelligence community
and vice versa, and that was attributable to the PATRIOT Act.
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These three provisions that are to sunset are important provisions that we hope will, again, be re-enacted when it comes up for
a vote.
Senator SESSIONS. Well, we will need to focus on making sure
that you report that correctly and that they are used correctly, and
oversight is always healthy in this country.
Director Mueller, thank you for your leadership. I think the
American people can go to bed at night knowing that their Director
of the FBI is working as many hours as he can put in a day, and
your team is, to focus on making this a safer, more lawful country.
I am proud of what you do. But oversight is good, even for the FBI,
wouldnt you agree?
Mr. MUELLER. I agree.
Senator SESSIONS. You believed that when you were not in the
FBI, I am sure.
Senator SESSIONS. All right.
Mr. MUELLER. Occasionally, it is tough, but I agree.
Senator SESSIONS. The Wall Street Journal reported that the Attorney General is considering some Guantanamo subjects. The
Washington Post today has an article that the outcry is growing in
Alexandria, Virginia, over a prospect no one seems to like: terrorist
suspects in suburbs. The historic, vibrant community less than 10
miles from the White House is a family friendly zone, they say, but
it looks like now we might be having criminal trials in the Alexandria Federal courthouse. And the quote from the mayor was, We
would be absolutely opposed to relocating Guantanamo prisoners to
Alexandria. We would do everything in our power to lobby the
President, the Governor, the Congress, and everything else to stop
it.
But the question is: If these individuals are released or tried, to
what extent is the FBI by necessity forced to direct resources to try
to make sure that they do not commit terrorist acts inside the
United States? Does that put an additional burden on you and your
agency? Dont you have responsibilities to make sure that someone
who has been identified, at least at one point, as associated with
terrorism is not likely to get loose here?
Mr. MUELLER. I believe we would have the responsibility to
evaluate the risk and minimize any risk for individuals, whether
it be Guantanamo or individuals coming into the country about
whom we have information that they may have been at one point
in time associated with terrorism.
Senator SESSIONS. So that is an additional burden on you.
Mr. MUELLER. We would
Senator SESSIONS. I know a lot of our friends, people watch the
television and they see these interesting shows. But as a practical
matter, you are not able to put individual FBI agents on the hundreds of people here if they are moving about this country 24 hours
a day surveilling them. And those things are not realistically possible in the world we live in, are they?
Mr. MUELLER. Well, we have to prioritize our surveillances,
whether it be electronic surveillance or physical surveillance, and
we do that on a daily basis. And to the extent that there are individuals that are coming into this country that have or present some
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threat, we would prioritize and utilize what resources we thought
were necessary to make certain that an individual or individuals
did not constitute a threat to the American public.
Senator SESSIONS. Well, we have the Uyghurs who are terrorists,
apparently, targeting China, a nation that we want to live in harmony and peace with, and they apparently, according to these articles, are one of the groups most likely to be released. So I think
it is a matter of great importance, and there is no free lunch here.
We place ourselves at greater risk if more and more of these people
end up being released because we did not have sufficient evidence
in a criminal trial when historically, in my opinion, these individuals are unlawful combatants and perhaps were arrested on the
battlefield. And we may not have the kind of normal evidence you
would have, wouldnt you agree, to try a case in a Federal district
court?
Mr. MUELLER. There are occasions where we have individuals
about whom we have information that would either be inadmissible
in Federal court or because it would disclose sources and methods,
one would not want to put that information into Federal court.
There are instances where that is an issue.
Senator SESSIONS. Mr. Mueller, you and I talked previously, and
Senator Feinstein raised some of these issues with you. I would
point out the chart that I think I shared with you that the Administrative Office of Courts shows prosecutions for bank embezzlement, financial institution embezzlement, financial institution
fraud being tried in the Federal courts to be declining and that
these are primarily traditionally FBI-investigated cases.
Are you looking at those numbers? And what do we need to do
to be able to increase those prosecutions, particularly in this time
where we are seeing reports of more fraud occurring in our financial markets?
Mr. MUELLER. In the wake of September 11th, as I have indicated in remarks earlier, we have moved 2,000 agents from the
criminal side to the national security side to address counterterrorism. Many of those agents have been workinga vast majoritynot the vast, but a majority of them have been working on
smaller drug cases. A substantial number, though, have been working on smaller white-collar criminal cases that we could no longer
afford to do. The tellers who would be embezzling from a bank, for
instance, where the losses are relatively small, we had thousands
of those cases that we could no longer do. We have had to
prioritize, and we had to prioritize earlier, 5, 6 years ago when we
had Enron, HealthSouth, WorldCom, a number of large financial
fraud cases where we needed to allocate appropriate personnel to
address those cases.
And so I do not believe you will see the same numbers in Federal
court because there are so many fraud cases out there, mortgage
fraud cases, institutional fraud cases, of a size that dwarf some of
the smaller ones that we traditionally have done. So the numbers
will not be there. I do believe that the impact and import of the
investigations and prosecutions will be exceptionally substantial
compared to some of the work that we had done 5 or 10 years ago.
Senator SESSIONS. I think that is important. I also like the idea
that you have a fast track in some of these prosecutions. You can
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take 3 years with one if you want to sometimes, and sometimes in
6 months a case can be tried and a person sent to jail where they
need to be. And those are things a good leader like you know how
to do, and I hope the Department of Justice cooperates with you.
And I would like to see more of these prosecutions.
We have always heard, every time this has been raised, We are
prosecuting bigger cases. For the last 30 years, that is what happens. When the numbers go down in an office, you say, Well, we
are prosecuting bigger cases. It takes more time.
I am not really sold on your argument there.
Mr. MUELLER. I would ask you to look at the cases. I would ask
you to look at an Enron or HealthSouth or a WorldCom and the
impact on it, and you as a prosecutor would know the efforts that
go into those cases. Look at the public corruption cases, the efforts
that go into the public corruption cases in terms of the type of investigative activity. And if you look at our record over a number
of years, the last number of years, particularly since September
11th, in terms of addressing public corruption, we have doubled, if
not tripled the number of prosecutions in that arena.
Senator SESSIONS. There has always been big cases.
I thank the Chair.
Chairman LEAHY. We will not get into war stories. All the former
prosecutors are out here. We had big cases or smaller cases.
I yield to Senator Schumer.
Senator SCHUMER. I am one of theI may be the only nonformer prosecutor on this podium right now. I do not know if Ted
is a former prosecutor, but maybe he joins me as the lonely group
of non-former prosecutors.
Mr. Mueller, thank you again for being here and for your service
to our country. My first two questions relate to personnel and
amounts of personnelfirst, at the Mexican border. Obviously,
these drug cartels are a big problem. Obviously, some of the responsibility is DEA, some of the responsibility with the guns is
ATF, but the FBI has responsibility everywhere. So let me ask you
these two questions.
Do you have enough agents to do the job at the border, given the
increase in the amount of crime that we have that has shocked
Americans?
Mr. MUELLER. Our focus on the southwest border has been in a
number of areas. First of all, public corruption, the monies that are
generated through narcotics trafficking to various U.S. officers, and
we have a number of those cases. We have kidnappings that have
grown, particularly in the San Diego office as well as the El Paso
office, with Juarez across the river. We have gang activity that is
north of the border that is in some ways aligned with the cartels
south of the border. We could always use additional resources. All
of us could use additional resources. And our hope is that if Congress sees fit to give us resources in that regard, that you do it in
conjunction with State and local law enforcement.
Senator SCHUMER. Sure.
Mr. MUELLER. I believe we work much better if we work shoulder
to shoulder with State and local law enforcement.
Senator SCHUMER. Well, look, I think just my perusal, you do
need more resources, and I think you will find cooperation on both
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sides of the aisle to get them, and it is something I will be working
for in the new budget.
What about the creation of an entirely new unit devoted specifically to the investigation and dismantling of violent narcotics cartels at the border? Obviously, again, this presents new challenges.
It is international, two nations. But some kind of unit that just focuses on this. I have found that when the FBI has these task forces
and other units, they really get the job done. Whereas if one piece
is in this division, one piece is in that division, it does not become
as effective.
Would you consider setting up a separate unit just focused with
the right personnel from the right departments to focus on the cartels that are running across our border and doing harm on both
sides of it?
Mr. MUELLER. Let me speak to two vehicles already that are
there. The OCDETF program, the Organized Crime Drug Enforcement Task Force program, in which we are substantial participants, still is, I think, a vehicle that for the last 10, 15 years has
been looking at the cartels, principally led by DEA, but DEAs reason for being is to address those cartels. And in the vehicle of the
OCDETF program, I believe we play an important, a substantial
role.
Second, what we have done is, in my trips to Mexico and along
the border, I do believe that more could be done in consolidating
the intelligence. Our intelligence would go from our legal attache
office in Mexico to headquarters and down to our borders. So we
are establishing a focused unit to bring together the intelligence
down in El Paso next to the EPIC, which is the El Paso Intelligence Center.
Senator SCHUMER. I would say, you know, this is a new problem.
Maybe it is an old problem, but a problem that has gotten a lot
worse. I would urge some kinds of focused task forces, not just participation in the DEA, because it is a much broader problem than
just drugs. Drugs are both a cause and effect.
Let me go to financial problems and financial crimes. What I
have found, I have heard from my local DAs, particularly my DA
in Brooklyn, lots of different kinds of mortgage fraud, and not just
on an individual basis but among different groups. When he goes
to the U.S. Attorneys there, they say, well, we are busy, we are
busy with terrorism. This is the Eastern District or the Southern
District. We are busy with, you know, the airports and drugs and
all of that. We do not have enough personnel to look into these
kinds of things, even though Federal law might be more appropriate than State law in some of these.
And then we have, of course, the kinds of financial crimes, the
larger financial crimes that were talked about. Senator Leahy, Senator Grassley, and myself have put in legislation to increase the
number of agents as well as the number of U.S. Attorneys to look
into this, and I think that legislation, Mr. Chairman, will be coming to the floor in a few weeks.
Chairman LEAHY. I understand right after the recess.
Senator SCHUMER. Yes. But we are just adding, I think it is, 75
agents and a number of prosecutors. I do not recall the number.
Given that the priorities are shiftingas they always are; that is
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your jobdo you have enough personnel to go after both the larger
and smaller financial frauds which we have seen and seem to have
become almost endemic over the last decade? Do you need more
personnel? Is the proposal that we, Senator Leahy, myself, and others have sponsored enough? Could you give us some degree of that?
Because, again, I am hearing from my local law enforcement that
when they go to the Feds and say, You should look at this, they
say, We would love to, but we cannot. We do not have enough personnel.
Mr. MUELLER. I would distinguish the U.S. Attorneys Office
from the Bureau.
Senator SCHUMER. Yes, but they are saying the personnel is not
just the prosecutors but the agents.
Mr. MUELLER. We have refocused, again, a number of agents, we
have increased the number of agents that are addressing mortgage
fraud and a larger financial fraud related to the subprime mortgage market. We have receivedI think we received 25 agents in
the 2009 budget, and my hope is that, thanks to your efforts, we
will receive additional agents.
I will tell you that when we went through the savings and loan
crisis back in, probably, 1992
Senator SCHUMER. Yes. You were very successful. I helped put
that together.
Mr. MUELLER. We were. And we had approximately a thousand
agents working it, as opposed to maybe 500 or 600 that with the
best effort this year
Senator SCHUMER. So let me ask you, if we gave you more in the
area of financial fraud, you could certainly use them.
Mr. MUELLER. Yes. And what we have had to do is prioritize, utilizing a number of mechanisms to identify the more egregious offenders and focus on those offenders and couple that with a fasttrack prosecution methodology that would push persons through
the
Senator SCHUMER. All right. One final question. Given the fact
that we only have an acting DEA, an acting ATF, you know, we
do not have the people in place, would you consider a trip to the
Mexican border, provided it is safe, to just figure out what is going
on and visit it yourself?
Mr. MUELLER. I have been there. I have been there, Mexico. I
was there maybe 2 months ago. In the last year, I have been at
least twice to the border, and I plan to be down there in May.
Senator SCHUMER. Good.
Mr. MUELLER. The last time I was there, I recognized that we
could do a better job consolidating intelligence, and out of that visit
comes the consolidated mechanism that we are putting in El Paso.
Senator SCHUMER. Great.
Chairman LEAHY. Thank you very much, Senator Schumer.
Normally Senator Klobuchar would be next, but I understand she
would yield to Senator Kaufman. Senator Kaufman, please.
Senator KAUFMAN. Thank you, Senator Klobuchar. I really appreciate that. And thank you, Mr. Chairman, for holding these
hearings. I just think these oversight hearings are so incredibly im-
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portant because they allow us to talk on a regular basis so we do
not get too far off track. So I think that is great.
And, Director Mueller, it is great to see you again. It is great
that you are here. It seems like you were just appointed.
One of the things clearly we are concerned about is the financial
fraud, and we have a bill, a group of us have a bill, S. 386, to do
that. And I know you have talked about it before. One of the
things, could you comment onyou talked about what you are
doing now. Can you comment on the urgency of getting these FBI
agents to help you deal with the financial fraud problems?
Mr. MUELLER. Financial fraud, you know, your basic mortgage
fraud case, maybe three or four individuals are in a conspiracy
the appraiser, the lender, and two or three others. It is a lot more
complicated than your usual narcotics case or bank robbery and the
like, and it takes not only the expertise of the agent, but forensic
accountants to put the matter together and to develop the evidence.
And you cannot get bogged down in the paperwork.
There is a mentality in the past of putting persons in a room full
of thousands of pieces of paper and going through and adding up
all of the counts so that you get the maximum sentence. We cannot
afford to do that. And they are complicated, and it takes not just
the agents, but it takes the forensic accountants, it takes the intelligence analysts to do the job. And we talk about more than 40 institutional cases that we have in which there are allegations that
have been raised, large financial institutions, the extent of the information that needs to be reviewed, most of it now digitally maintained, not only by ourselves but the SEC and the coordination
with the SEC and ourselves and the prosecutors. It becomes a substantial issue. And so it is not just the agents, but it is also the
team that you need to put into place to address these, understanding that we have to identify the most egregious actors, move
quickly to indict them, and then move on to the next one.
Senator KAUFMAN. Also, this is unusual in that it is not just the
mortgage brokers that are doing this. You go all the way up the
chain to the people who securitized the mortgages, the rating services maybe that have conflict of interest in dealing with the rating
at the same time they were doing business. Then you get to the
bankers, then you get to the brokers. So, I mean, I assume we are
going to be looking at all these different players in terms of possible financial fraud.
Mr. MUELLER. We are.
Senator KAUFMAN. Good.
Mr. MUELLER. Some of our initial indictments over the last year
have been exactly in that arena.
Senator KAUFMAN. There has been an explosion of this. That is
why I am concerned about the urgency of this thing that as time
passes, obviously you are talking about complex litigation to start
with, now you are talking about complex litigation that is 2
months, 4 months, 6 months later. And that is why I think that
it is urgent that we get you the FBI agents.
Senator KAUFMAN. Over the past decades, you have done an
amazing job with organized crimein fact, really bringing it under
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control. Is there any thought about using some of those resources
to go after the drug gangs and the drug organizations?
Mr. MUELLER. Well, we have, but we cannot keep ournot take
our eye off of organized crime. It has expanded dramatically since
the days in which we were focused principally on La Cosa Nostra.
Now you have Bulgarian organized crime, Armenian organized
crime, Asian organized crime, Russian organized crimeand Armenian, if I have not mentioned Armenian organized crimein pockets around the country that need to be addressed.
But we also recognized that what has contributed substantially
to the violence on the streets are gangsMS13, 18th Street Gangs,
Latin Kings. And what you have seen in terms of our organized
crime program is a recognition that these violence-prone gangs are
as important if not more important than the traditional families
that we have seen. So there has been some shifting of resources to
address this organized criminalor these new organized criminal
structures, and we continue to look at it.
Senator KAUFMAN. Great. Perfect. Turning to violent crime, you
know, community policing, community prosecution, intelligencebased policingI mean, how is the FBI working to help local law
enforcement, local prosecutors to deal with the violent crime problem. I know you are doing a job. I just would like to know what
you are doing.
Mr. MUELLER. We have approximately 200 task forces around
the country. My own view is that we learn a tremendous amount
by sitting shoulder to shoulder with State and local law enforcement. When I handled homicides here in the U.S. Attorneys Office,
I worked with the Metropolitan Police Department, the homicide
detectives, who were some of the best law enforcement agents I
have ever had the opportunity to work with. I think we make a
much greater impact when we work on task forces together with
State and local law enforcement. That is the way we choose to address it.
I also am not unaware that when we are not doing a number of
drug cases, we lose contact with the street. And we need to maintain as an organization not only the contact and the liaisonor the
contact with the street so we know what is going on with the
street, but liaison with those who are the street day in and day out.
And so that is the way we are seeking to address it.
We have Safe Trails Task Forces that combine State and local
law enforcement for addressing violent crime in Indian country as
well. So through these various task forces, whether it be in these
areas such as Indian country or in the communities around the
country, we try to address it through the task force mechanism.
Senator KAUFMAN. Great, and I think that really, as you say, is
the keycommunity policing, community prosecution, getting back
into the community, and the FBI obviously can play an incredible
role in that, and that is what you are doing.
Chairman LEAHY. Thank you very much, Senator Kaufman.
Senator Klobuchar.
Senator KLOBUCHAR. Thank you very much, Mr. Chairman.
Thank you, Director, for being here, and I enjoyed our meeting
this week. I know that Senator Kyl asked you about the investiga-
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tion going on in Minnesota, so I appreciate you talking with me
this week about this.
I was just listening to all of this and thinking about the increase
in the mortgage investigations that you are engaging in and the increase in some of the white-collar crime because of the state of the
economy, seeing very strongly why we are doing this bill. But the
other area that you and I talked about but I think it is worth mentioning is just the large portion of the economic recovery package
and I know you mentioned this to methat is going to State and
local governments, and just the potential for corruption, embezzlement.
Obviously, we want to have that not happen, and so could you
talk a little bit about how you think we could best prevent that
from happening in the first place, and then how the FBI is going
to prepare to investigate it when there are all these other things
going on.
Mr. MUELLER. We have had lengthy discussions with the Inspectors General that have been put into place to address the flow of
funding that will be coming through the Federal Government. In
order to try to put into place the recordkeeping systems that will
enable us to quickly identify with algorithms areas where monies
are not going where they should go, and identifying the various
players in a complicated commercial transaction who may be the
persons that we need to look to down the road.
We find with the mortgage fraud crisis, every county is a little
bit different in terms of maintenance of the records, and often it
is difficult for us to quickly identify the participants in a particular
transaction and identify other transactions that that perhaps guilty
individual has been involved in.
And so putting in place the information early on as these funds
are going to be parceled out to various states and counties and municipalities is part of it. Working closely with the IG to identify
mechanisms or telltale signs or trip wires that will enable us to
quickly focus on where monies are going astray is what we are trying to do now as we embark on this era of substantial monies being
put out by the Federal Government.
Senator KLOBUCHAR. And another challenge you mentioned was
just that a lot of people that were convicted in the 1990s, some of
them very violent offenders, their scheduled release dates are coming up now or in the next few years. And what steps are you taking
to prepare for that? How can we help with that?
Mr. MUELLER. I have concern that a number of people were
locked up by efforts of prosecutors and law enforcement in the
1990s, and many violent offenders, which contributed substantially
to the reduction in violent crime over the years.
Senator KLOBUCHAR. I remember that time. I was a prosecutor
then.
Mr. MUELLER. You were a prosecutor. And my concern is that
their sentences will be up, and they will be coming out to an economy that does not have jobs and coming out without a skill set that
would give them the ability to be competitive in a very tight economy, and that that would contribute to an uptick in violent crime.
And we along with a number of the entitiesPERF, Major City
Chiefs, Major City Sheriffs, organizationsare talking about ways
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we can work together in anticipation of what may be an uptick in
violent crime down the road.
Senator KLOBUCHAR. One of the things that you talked about
with Senator Kaufman and that you and I talked about is the effectiveness of the joint task force and how important that is when you
are dealing with either drug crime, violent crime, or some of these
financial crimes. And I have certainly seen that in our State, particularly with the suburban police departments that can all work
together.
Can you talk about how we can create more incentives for financing those so that we make sure that our money is used most effectively when we send it to the local level?
Mr. MUELLER. I have been supportive over the years in terms of
financing, providing, augmenting financing for State and local law
enforcement. I do believe, though, it would be helpful, as monies
are allocated by Congress to State and local law enforcement, that
it be tied into an incentive for a task force structure so that the
monies would be utilized to incentivize, to encourage State and
local law enforcement to work with the Federal Government.
It is my experience as a U.S. Attorney that I was not knowledgeable as to the grants that were going to particular police departments, and the grants going to particular police departments may
well have been as a result of exceptionally capable grant writers
as opposed to being part of a larger scheme of what are the issues,
what are the threats within a particular district or division, and
how do we work together to address those particular threats where
the monies will be coming through the grant process.
Senator KLOBUCHAR. And you mentioned the local law enforcement, and in our State, as you know, we have had good relationships between Federal law enforcement and local law enforcement.
That has not always been true everywhere in the country. With a
new administration coming in now, a new Attorney General, and
potential there with the new U.S. Attorneys, do you have ideas
about how we can improve relationships between localnot just
local law enforcement, also local prosecutors and those on the Federal level?
Mr. MUELLER. Well, as a result of September 11th, one of the
beneficialof the very few, I guess, beneficial results of that attack
was the understanding that we all have to address terrorism within our districts together. And a number of vehicles were established. For us, it was the Joint Terrorism Task Forces. We went
from, I think, 35 to we have 106 now. U.S. Attorneys Offices have
since then and continuously pulled together the various prosecutors
and sat down with the various law enforcement agencies to address
terrorism. And those relationships I believe have expanded to other
areas that traditionally we perhaps have stayed apart.
I do think that in a transition from one administration to another, the smoothest often is with law enforcement because we all
speak the same language and we all have the same goals. And,
consequently, across the country, I do not see much of a change in
terms of relationships. In fact, a number of persons who have been
U.S. Attorneys before may well be back being U.S. Attorneys again,
so they are familiar with the ground and the operating relationships.
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Senator KLOBUCHAR. Very good. I think I told you this story. Mr.
Chairman, when we had a new U.S. Attorney come in and we decidedI was the local prosecutorthat we would get the groups together, the prosecutors on both sides together, and he hosted a little party for us in their office. And, Mr. Chairman, I never told our
office that before we got thereI was there earlyhe got on the
loudspeaker and said, Nail down the furniture. The cousins are
coming over. But we were able to actually build a much better relationship because of making that a focus, and we were able to
share casework better, especially so that when 9/11 came, we were
able to take on a number of the white-collar cases that they would
have had before.
So thank you very much for your work.
Chairman LEAHY. Before I yield to one of those Federal cousins
Senator Whitehousewe are trying to get all the prosecutors here.
Director, I am going to put into the record on behalf of Senator
Grassley a number of letters and documents regarding oversight
that he wanted in the record, and also a description of the LeahyGrassley-Kaufman-Klobuchar, et cetera, Fraud Enforcement Recovery Act, which speaks of adding 190 special agents and more than
200 forensic analysts and other staff to address mortgage and financial fraud. That will be made part of the record.
Senator Whitehouse.
Senator WHITEHOUSE. Thank you, Mr. Chairman. And welcome,
Director Mueller. I have served both as U.S. Attorney but also been
the cousins and served as Attorney General. And when I was Attorney General, we went over to visit the U.S. Attorneys Office. The
only things that were at risk were the pads and pencils that we
tried to supplant our meager resources with. We were nowhere
near energetic enough to put the furniture at risk. So I applaud my
colleague from Minnesota.
The cyber issue is one that you address at some length in your
testimony, and I appreciate that very much. It is less a type of
crime than an arena of crime and other misconduct. It ranges from
simply people who are expert hackers showing off their stuff to traditional criminal activity to what we would consider to be advanced
industrial espionage to what we would consider to be national security espionage, and it creates the risk of outright acts of destruction
and war being taken against our country through the cyber medium.
In all of that, my fear is that our resources are presently inadequate to the task, and that the way in which we address the cyber
threats creates very considerable civil liberties and privacy risks.
Having just been through the unfortunate episode of the Bush administrations warrantless wiretapping of Americans and the remarkable role, frankly, played by the Department of Justice in
standing up to thatand yourself, I might addwhat would your
advice be for us as Members of Congress as to the authorities, the
resources, or the resolutions of difficult issues, like civil liberties
issues, that you need us to do in order for our country to be more
effective? You were not the spear point, but you work off of authorities that we give you. You work off resources that we give you, and
you work constrained by unresolved questions that we leave unresolved. If you were going to give us the top three or four things
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that we should be focusing on to address the cyber threat, what
would those be?
Mr. MUELLER. Well, I think the civil liberties issues are less extant when you are looking at the ability of state actors to penetrate
whether it be defense or the stock market or what have you, and
that how you protect those networks is one issue, where one would
have more leeway because they are networks that are controlled by
the Federal Government.
The issue about other networks, dot-coms, edu, and the like, that
are not controlled by the Federal Government raises a number of
privacy issues that need a broader discussion and, quite obviously,
in the Judiciary Committees and others. At some point
Senator WHITEHOUSE. How far along in that discussion do you
feel we are from the point of view of providing you with policy support for the decisions you need to make?
Mr. MUELLER. Well, I do not think the discussion is far along at
all. I do think it is in part attributable to the change of administrations, because the view taken by the previous administration is
being reviewed by this administration. And at the time that that
review is completed
Senator WHITEHOUSE. This is the 60-day review you are referring
to?
Mr. MUELLER. Yes.
Senator WHITEHOUSE. OK.
Mr. MUELLER. Yes. But part of it is education in terms of educating on the issues, the extent of the issues, and then the second
part of it is the solution. And my expectation is those discussions
will increase substantially in the next several months as this administration has an understanding and a view as to how we solve
particularly the issue of a tax on the Internet and the like, the dotgov, and outside of the more classified issues that relate to state
actors and terrorists and the like. But in my mind, in some sense,
too, there are baskets of issues that require different solutions.
Senator WHITEHOUSE. So if we focus briefly on the civil liberties
side, your sense is that the discussion as to where the policy line
should be drawn is at a fairly preliminary stage and does demand
further work by Congress, correct?
Mr. MUELLER. Absolutely, yes.
Senator WHITEHOUSE. And with respect to the resources and authorities side, what recommendations have you with respect to
those areas? Do you feel that you have the cyber resources that you
need? Do you feel that you have the authorities that you need?
Mr. MUELLER. I do not think anybody feels they have the cyber
resources they need to do the job. In the 2009 budget, we received
31 agents, 52 personnel, $19 million. But with the growth of the
cyber arena, as you call it, which is appropriately so because it infects or affectseither infects or affectseverything we do now, it
is growing by leaps and bounds. And all of us struggle to keep up
with it, and there are new and innovative ways of undertaking intrusions into systems and extracting information that the defense
is one step behind the attackers. And all of us, I think we could
use more resources, although we are very adept and we have got
whether it be the military and NSA and ourselves, we have got
some very, very talented people to address
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Senator WHITEHOUSE. I have got just a few seconds, so if you do
not mind, let me cut you off and ask one last question. You are
going to be looking, obviously, at financial fraud in a very big way.
A great number of questions from the Senators here have focused
on this concern. What I would ask is your assurance that your instruction to your organization will be to pursue those investigations
as high up as they can be driven. We both know from our experience that it is actually a good deal easier to stop at the bottom
layer where you have got one or two people bagged with, you know,
a bad e-mail or a falsely signed document or something, and that
to push it up to higher levels requiring conspiracies to be proven
and much more investigative effort to be dedicated is a management choice that has to be made. And I would ask your assurance
to all of us that in that balance you will be pressing your organization to push upward as far as the facts and the law will drive; and
if you need additional resources to make that work, that you will
ask us for those. I dont want to have this be civil Abu Ghraib in
which a couple of home mortgage dealers in, you know, Cranston,
Rhode Island, get prosecuted and the guys at the top get away with
it.
Mr. MUELLER. You have my assurance. You also should know
that my approach in these cases is not the traditional white-collar
crime but the narcotics case approach. The fastest way to get these
cases done is to obtain the intelligence indicating who was in what
place at what time and then have persons cooperate, and cooperate
as far to the top as you can go as fast as you can go, as opposed
to putting agents in a big room with a lot of paper and trying to
sort through the paper. And in my experience, when it comes to
white-collar crime, I put narcotics prosecutors in charge of that because I thought they were as effective as any. And so you have our
assurance that we will utilize that approach to go as far as we can
in the organizations.
Senator WHITEHOUSE. Thank you.
Chairman LEAHY. Thank you very much, Senator Whitehouse.
Senator Durbin.
Senator DURBIN. Mr. Director, thank you for being here today. It
is good to see you again, and I know that there have been questions asked earlier about the Mexican drug cartels, and I would
like to focus on one particular aspect.
Arizona Attorney General Goddard testified before my Subcommittee last week in reference to the battles being fought in Arizona over these drug cartels and their activities. He described in
shorthand term that the cartels are shipping drugs and humans
into the United States and we are shipping cash and guns into
Mexico. It seems to be the equation, the sad and tragic equation
that takes place.
Now, I want to ask you about two aspects of that, and I know
one has been touched on already. But let me give you an illustration of why I am asking this question. Last week, a State judge in
Arizona dismissed charges against a gun dealer who was accused
of knowingly selling about 700 weapons through intermediaries to
two smugglers who shipped the weapons to a Mexican drug cartel.
Several of the weapons were recovered in Mexico after shootouts
with the police, including a gunfight last year in which eight Mexi-
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can police officers died. The case shows how difficult it is to convict
gun dealers in the United States who were knowingly supplying
weapons to Mexican drug cartels.
As I understand it, it is not a Federal criminal offense to traffick
firearms in the United States, and in order to prosecute gun dealers and purchasers who knowingly sell and purchase guns for
Mexican drug cartels, Federal law enforcement has to charge these
individuals with paperwork violations, such as making false statements on purchase forms. These paperwork offenses have low penalties and can be hard to establish and obviously are not a priority
when it comes to prosecution.
Now, the estimate on the volume of firearms from the United
States to Mexico is wide ranging. The highest estimate I have read
comes from the Brookings Institution, which suggests 2,000 firearms a day from the United States shipped into Mexico to engender these drug wars where they are killing off one another, the police, and innocent people.
I think we bear some moral responsibility to slow this flow of
guns into Mexico, particularly in examples such as I have given
you. No one buys 700 weapons for self-defense or for sporting or
hunting purposes. It clearly is a purchase for the sole reason of resale, and in this case, we had a gun dealer who was found to have
done this and could not find a law to prosecute him under.
What is your impression?
Mr. MUELLER. I am not familiar with that case. I know that we
by we, I mean the Federal Governmentprosecute any number
of cases each year of straw purchasers and that that is a substantial focal point for ATF. That sounds outrageous that under those
circumstances, as you describe it, the person would not be jailed,
and I will go back and look at the legal framework, as you obviously are, to make certain that this does not happen. And it is not
just guns to Mexico, but it is guns within the United States gangs
and straw purchasers.
Senator DURBIN. Absolutely.
Mr. MUELLER. And so it is a substantial problem, both domestically as well as, as was highlighted in the last week or so, with regard to what is happening in Mexico.
Senator DURBIN. Your background is in the law and law enforcement. My world is political. And in the world of politics, many people are shying away from even discussing this question. But I think
I am going to ask you in your official capacity to take a look at the
existing laws as they relate to straw purchasers. I do not believe
that we can turn our back and say that this Mexican drug cartel
is just a bunch of angry Mexican gang members killing one another
off. I mean, we are, in fact, providing firearms that arms these
drug cartels and, unfortunately, creates mayhem.
I had a meeting, a private meeting, with a Mexican mayor in a
border city who has shipped his family to America because they are
not safe to be there. And many like him are threatened every single daythreatened with American weapons, bought illegally in
the United States and shipped in volume into Mexico. So I will ask
you to look at that.
The other thing that Attorney General Goddard brought up was
the transfer of funds from the United States to Mexico, and he
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talked about several things that we are looking into. One is the
stored value card, which I was not aware of, but it is the equivalent of a credit card that has some dollar value associated with it
that can be used. And he raised the question as to whether or not
we are looking at that as a means of transferring money across the
border, a simple little plastic card.
I do not know if you are familiar with that or have looked into
it. He suggested law enforcement should be able to read the
cardshow much money is on this card?since there are limitations to how much cash you can take over the border.
Have you run across this issue?
Mr. MUELLER. I had not until, I think, your staff in preparation
for the hearing raised it to me as being an issue. Periodically, there
are new mechanisms that come up for shipping funds across the
country. Some of them are by the Internet now, some that are remitter organizations. When we are looking at these cards, one of
the thingsI do not know whether you suggested it, or othersas
you look at the registration and the tracking of those cards to give
us a mechanism for tying the monies into particular individuals
who may be involved in illegal activity, and that is something we
will look at as a result of your inquiry.
Senator DURBIN. Thank you. We estimate $10 billion is being
transferred in drug proceeds from the United States into Mexico
each yearthousands, maybe hundreds of thousands of firearms,
and $10 billion. And I have spoken to representatives of the Mexican Government who are doing their best in the face of 6,000 or
more being killed last year in their country, put the military on the
border, but they expect us to do our part, too, to reduce where we
can this flow of firearms and flow of cash and, I guess the bottom
line, address the drug laws in America.
I only have a few seconds left, and I will not have time to get
into a long list of questions on one of our favorite topics, and that
is technology at the FBI. And I do knowand we have talked
about it at lengththat you inherited one of the most backward
systems in the Federal Government that at the time of 9/11, the
computer capacity as the FBI was not as proficient as you might
find off the shelf at a Radio Shack in a shopping center.
But things have changed. There have been some false starts, and
I believe now that the Sentinel program is underway. There is a
GAO report that came back with some observations. I would like
to give you an opportunity to comment on those in an orderly way
so that we can be brought up to date.
Mr. MUELLER. There are a number of areas that we have made
substantial progress. Sentinel is on target, on budget. We now have
24,000 BlackBerrys, the basic accoutrements of the technology age.
One of the issues was we work on a Secret platform. Everybody has
Secret. We have upgraded where necessary to the Top Secret,
which requires SCIFs and secure areas, but also the second set of
computers and the networks, and we also now are up to 30,000 out
of 36,000 computers that can handle the Internet for our employees.
And so we have to operate it, have three networks: you have to
have the unclassified, you have to have the Secret, you have to
have the Classified. We have made substantial strides. We still
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have work to do. This year, I will tell you, on Sentinel is sort of
the year we get over the mountain. And so we have been meeting
every other week or so, and we are pushing it forward. We have
made substantial strides, but I am not going to declare victory
until Sentinel is in and everybody has it. And we are not just up
with everybody else but ahead of everybody else.
Senator DURBIN. Well, the best law enforcement agency in the
world should have the best technology, and I know this has been
a mountain that you have climbed, and I have joined you in a few
of those hikes in the past.
Thank you.
Mr. MUELLER. Thank you.
Chairman LEAHY. Thank you very much.
I guess our last questioner is going to Senator Wyden, and then
I know we have a roll call vote at noon. Dont we, Mr. Leader?
Senator DURBIN. I dont think so.
Chairman LEAHY. Senator Wyden.
Senator WYDEN. Thank you, Mr. Chairman, and, Director
Mueller, welcome, and I want to pick up exactly where Senator
Durbin left off, and that is this question of the information technology issue.
Do all FBI analysts and agents now have access to the Internet
at their desktops?
Mr. MUELLER. Thirty thousand out of 36,000. The reason that we
do not have the last 6,000 at this juncture is because several offices, it would be financiallyit would beto put in the networks
and, that is, do the wiring and the like, would bedoes not make
any economic sense, particularly when these offices are going to
move very shortly. And so to the extent that we have been able to
put in the second network we have, with just about everybody in
the organization, even if they do not have it at their desks, those
other 6,000 computers we want, they will have access to the Internet nearby.
Senator WYDEN. That obviously has been something that has
been troubling to people, and as you know, I have asked about this
in the past in my other capacity as a member of the Intelligence
Committee.
With respect to the move, when will it be possible to say that all
FBI analysts and agents have access to the Internet at their desk?
In other words, you have said there are going to be 6,000 people
still because of expensive facilities and the like. On what date will
it be possible to say that the agency is really getting close to the
point of 21st century technology?
Mr. MUELLER. Well, I would say we are at 21st century technology. There are these pockets in particular offices, and by the
end of the year, we would expect to be 99 percent done. But I
would say we are in the 21st century. I mean, there is nobody, I
do not believe, who does not have ready access to the Internet at
this juncture.
Senator WYDEN. I know it has been frustrating for you. I think
people were incredulous when I asked these questions earlier, and
I know progress has been made, and that is why I am asking it
again.
Mr. MUELLER. Thank you.
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Senator WYDEN. With respect to secure case management computer systemsand this is another area where you all have spent
a lot of timeit is my understanding that there is currently no way
to share audio or video files on this system now. Is that correct?
Mr. MUELLER. I do not think that is correct. I know we have
mechanisms to do that. I would have to get back to you with the
specifics of it.
Senator WYDEN. Would you?
Mr. MUELLER. I will.
Senator WYDEN. Because that was my understanding, that it was
not currently possible to share that information. If you will get
back to me, that would be great.
Mr. MUELLER. I will. I do not think that is accurate.
Senator WYDEN. With respect to the role of intelligence analysts,
I think it is well understood that they are going to be critical in
terms of the Bureaus function. In 2004, the Congress gave the
agency special authority to hire 24 senior intelligence analysts. But
in 2007, when I asked about this, I was told that only two of these
senior positions had been filled.
So, again, I am just reporting to you what I have been told, but
I have been told now that only five of these senior intelligence
spots have been filled. This is five out of the 24 that the Congress
felt strongly about.
Do you know if that is correct?
Mr. MUELLER. I will have to go and check on that. I do believe
it is more than five, but I would have to check on that. I know we
took some of those spots and utilized them in a way that made
more sense to the organization, but I will have to get back specifically on that to you.
Senator WYDEN. Do you know if the agency plans to fill all 24
of the spots?
Mr. MUELLER. That is where I amI would have to get back to
you, because I believe that we were utilizing those spots in a way
that was consistent with the intent of the statute but may not be
the exact spots as put into the statute.
Senator WYDEN. So you will get back to me on that one.
Mr. MUELLER. We will do that.
Senator WYDEN. OK. Let me ask you about one other one, and
that is the question of the FBI briefing congressional committees
on terrorism and counterintelligence inquiries. The concern here is
that frequently it has not been possible to get those briefings and
the Linder letter is cited as the justification. So when the FBI withholds information on national security matters, obviously it is hard
then for the Congress to assess security threats to the country or
how well the FBI is adapting to meet the threats.
So I understand the need to be able to protect U.S. person information, and I think it is obvious that this Committee and Members
of the U.S. Senate do not want to do anything to jeopardize ongoing
inquiries. But at the same time, this status quo makes it hard to
do sensible and thoughtful congressional oversight. So I think it is
time to make a change here. I think it is time to reverse policy
here, and my question is: In your view, can briefings from the FBI
and the DOJ be structured so that the Congress gets the intelligence information it needs for effective oversight without compro-
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mising what you need to be able to do your investigations and your
prosecutions? It seems to me you have this Linder letter, and certainly the Congress is frustrated because we do not feel that we are
getting the information we need about terrorism and counterintelligence investigations. Your people, I am sure, chafe at the idea of
doing these briefings because they are concerned about compromising ongoing prosecutions and investigations.
How do we get to a sweet spot where you can do your work,
which is, in my view, vitally important to the country and the Congress can do some oversight?
Mr. MUELLER. A short answer is yes, we can work on this issue,
and I will tell you, we have frustration because now that we disseminate a lot of the information, particularly in the counterterrorism arena, what we are finding is the information we disseminate is coming up and being briefed to the Intelligence Committee
by others, where we are precluded by the Justice Department in
briefing that which we have provided to the other agencies.
And so we will be working with the Department of Justice to
work out a mechanism whereby we can brief on intelligence matters without adversely impacting ongoing investigations.
Senator WYDEN. In your viewand I appreciate that because
your answer certainly suggests that you are open to itwhat would
be a plan, what would be an alternative to a Linder letter in your
view, just conceptually?
Mr. MUELLER. I would think that certainly in intelligence we
could brief on matters that we have distributed to the intelligence
community, unless there is a particular concern relating to a particular ongoing investigation. There also are mechanisms toone of
the problems we have is that by reason of either statutes or other
Presidential directives, we are unable toor should not utilize in
briefings names of, for instance, United States citizens that could
be part of it, where you can talk generally without doing the specifics. So that there are mechanisms that could be adopted that
would protect not only U.S. citizens but also ongoing prosecutions.
One of the concerns one has is the fact that most of our intelligence is developed on U.S. citizens that have a higher degree of
privacy interest and rights than perhaps others that the agency is
looking at overseas.
Senator WYDEN. My time
Chairman LEAHY. A roll call vote has begun. We are going to end
this at noon. I realize you were not here for much of it and you
did not know that, but go ahead. You had another question.
Senator WYDEN. Mr. Chairman, I would just wrap up very quickly.
I think this is a constructive approach that you are outlining,
Mr. Director. I would hope that we could narrow the times when
there was not a brief, narrow the number of instances where the
Linder letter was invoked. I am interested in working with you.
Chairman LEAHY. Thank you very much, Senator Wyden.
Senator Sessions, you wanted 3 more minutes.
Senator SESSIONS. Thank you. You are very kind, Mr. Chairman.
Mr. Director, we are all concerned about the violence in Mexico.
You have been asked about it previously. We had a hearing about
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that recently with ATF and Homeland Security and some other
agencies, not FBI. But it strikes me that the new President there
is standing up not because we have told him what to do, but because he understands the threat to Mexico, and he has challenged
these organizations, and a lot of the violence we are seeing is because the government is challenging them. But they are a powerful
force. They have the ability to assassinate, kidnap, murder leaders
and mayors and police chiefs that stand up against them, and it
is a very dicey time. And I think we should do what we can to help.
It strikes me that the best way we could help would be to vigorously prosecute the parts of those organizations that are operating
in the United States, that are selling drugs and cocaine and methamphetamine and other drugs in this country, collecting the
money, sending it back to buildup the wealth and power of these
cartels.
So I guess my question to you is: Do you fundamentally think
that is perhaps the best thing we can do to help? Are we doing
enough? And will the FBI participate?
Mr. MUELLER. We participate, as I indicated before, in OCDETF,
as you are familiar with. We are a strong participant in that. That
is an area where we have maintained our participation.
Second, we work with DEA and ATF and the other agencies
through the OCDETF mechanism to address the cartels throughout
the United States.
Senator SESSIONS. OCDETF is the Organized Crime Drug Enforcement Task Force that has multiple agencies participating to
target the biggest kind of drug organization.
Mr. MUELLER. And as a result of that, there have been a number
of prosecutions over the years, and to the credit of President
Calderon, he has increased substantially the extradition to the
United States of those cartel leaders. There were 95 last year.
There are 23 this year. The 95 last trebled the extraditions from
3 years previous.
Senator SESSIONS. So you are finding more cooperation than we
have had before with Mexico.
Mr. MUELLER. Absolutely.
Senator SESSIONS. I think that is the partnership that we should
push forward with. Many of these guys that flee back and forth
across the border move back and forth. We will prosecute them if
they will extradite them. We will put them in a firm Federal prison
where they cannot buy their way out of jail or break out of jail. I
think it can help, Mr. Chairman, to reduce the power of these cartels and strengthen the ability of the strong Mexican President to
be successful.
Mr. MUELLER. Thank you, sir.
Chairman LEAHY. I thank the Senator from Alabama.
I agree with him that we have got to help Mexico get this under
control. They are, as I said in my opening statement, the second
largest trading partner that the United States has. They are our
southern border. They are a significant democratic nation, and to
have their democracy basically torn apart by public corruption and
drug money is something they do not want, certainly President
Calderon does not want. You have been down there, Director
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Mueller. You know that both sides of the border are damaged if it
continues.
So I will put my full closing in the record, but I do thank the
Director not only for his service but for working with us. We have
raised a number of issues. We will continue to work together, and
I appreciate him doing that, and I thank you for being here.
Mr. MUELLER. Thank you, sir.
[Whereupon, at 12:05 p.m., the Committee was adjourned.]
[Questions and answers and submissions follow.]
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Senate Hearing, 111TH Congress - Oversight of The Federal Bureau of Investigation

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S. HRG.

OVERSIGHT OF THE FEDERAL BUREAU OF

COMMITTEE ON THE JUDICIARY

MARCH 25, 2009

Serial No. J11114

U.S. GOVERNMENT PRINTING OFFICE

For sale by the Superintendent of Documents, U.S. Government Printing Office

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COMMITTEE ON THE JUDICIARY

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QUESTIONS AND ANSWERS

SUBMISSIONS FOR THE RECORD

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OVERSIGHT OF THE FEDERAL BUREAU OF

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S.

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Senator SPECTER. Thank you, Mr. Chairman.

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Mr. MUELLER. Thank you very much, Mr. Chairman, Senator

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