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S. HRG. 107–971

REFORMING THE FBI IN THE 21ST CENTURY

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

MARCH 21, APRIL 9, AND MAY 8, 2002

Serial No. J–107–69

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

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C O N T E N T S 

THURSDAY, MARCH 21, 2002

STATEMENTS OF COMMITTEE MEMBERS 

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 22

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 4

prepared statement .......................................................................................... 52

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1

prepared statement .......................................................................................... 54

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 18

WITNESSES 

Chiaradio, Robert J., Executive Assistant Director for Administration, Federal 

Bureau of Investigation, Department of Justice, Washington, D.C.; accompanied by Bob Dies, Chief Technology Officer, Federal Bureau of Investigation, and Bill Hooten, Assistant Director for Records Management, Federal 

Bureau of Investigation ....................................................................................... 9

Fine, Glenn A., Inspector General, Department of Justice, Washington, D.C. .. 6

SUBMISSIONS FOR THE RECORD 

Chiaradio, Robert J., Executive Assistant Director for Administration, Federal 

Bureau of Investigation, Department of Justice, Washington, D.C., prepared 

statement .............................................................................................................. 28

Fine, Glenn A., Inspector General, Department of Justice, Washington, D.C., 

prepared statement .............................................................................................. 36

Mueller, Robert S., III, Director, Federal Bureau of Investigation, Department 

of Justice, Washington, D.C., statement ............................................................ 57

TUESDAY, APRIL 9, 2002

STATEMENTS OF COMMITTEE MEMBERS 

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................ 64

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 75

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 64

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 66

prepared statement .......................................................................................... 105

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 61

prepared statement .......................................................................................... 107

WITNESSES 

Senser, Kenneth H., Assistant Director, Security Division, Federal Bureau 

of Investigation, Department of Justice, Washington, D.C. ............................. 89

Szady, David, Assistant Director, Counterintelligence Division, Federal Bureau of Investigation, Department of Justice, Washington, D.C. .................... 86

Watson, Dale, Executive Assistant Director for Counterterrorism/ Counterintelligence, Federal Bureau of Investigation, Department of Justice, Washington, D.C. ........................................................................................................... 91

Webster, William H., Milbank, Tweed, Hadley and McCoy, LLP, Washington, 

D.C. ........................................................................................................................ 65

Page

IV

QUESTIONS AND ANSWERS 

Responses of Kenneth Senser to questions submitted by Senator Grassley ...... 100

SUBMISSIONS FOR THE RECORD 

Senser, Kenneth H., Assistant Director, Security Division, Federal Bureau 

of Investigation, Department of Justice, Washington, D.C., prepared statement ...................................................................................................................... 113

Szady, David, Assistant Director, Counterintelligence Division, Federal Bureau of Investigation, Department of Justice, Washington, D.C., prepared 

statement .............................................................................................................. 125

Webster, William H., Milbank, Tweed, Hadley and McCoy, LLP, Washington, 

D.C., prepared statement and attachment ........................................................ 130

WEDNESDAY, MAY 8, 2002

STATEMENTS OF COMMITTEE MEMBERS 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement .............................................................................................................. 241

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 135

prepared statement .......................................................................................... 243

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina, 

prepared statement .............................................................................................. 265

WITNESSES 

Mueller, Hon. Robert S., III, Director, Federal Bureau of Investigation, Department of Justice, Washington, D.C. .............................................................. 139

Thompson, Hon. Larry D., Deputy Attorney General, Department of Justice, 

Washington, D.C. ................................................................................................. 137

QUESTIONS AND ANSWERS 

Response of the Department of Justice to a question submitted by Senator 

Leahy (December 23, 2002) ................................................................................. 172

Responses of the Department of Justice to questions submitted by Senators 

Leahy and Feingold (April 11, 2003) .................................................................. 175

Responses of the Department of Justice to questions submitted by Senators 

Leahy and Feingold (July 10, 2003) ................................................................... 206

Responses of the Department of Justice to questions submitted by Senator 

Leahy (July 17, 2003) .......................................................................................... 238

SUBMISSIONS FOR THE RECORD 

Mueller, Hon. Robert S., III, Director, Federal Bureau of Investigation, Department of Justice, Washington, D.C., prepared statement ........................... 248

Thompson, Hon. Larry D., Deputy Attorney General, Department of Justice, 

Washington, D.C., prepared statement .............................................................. 258

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REFORMING THE FBI IN THE 21ST CENTURY: 

LESSONS FROM THE OKLAHOMA CITY 

BOMBING CASE 

THURSDAY, MARCH 21, 2002

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, Pursuant to notice, at 9:34 a.m., in room 

SD–106, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Hatch, Grassley, Specter, and Sessions. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. Please, all the witnesses come 

up and take a seat. I want to thank the witnesses from the FBI 

for their cooperation in agreeing that everybody will sit at the 

table. 

We have this situation where the Republican Leader, exercising 

his rights under the rules, has objected to any committees being 

more than 2 hours into the session. But this is an extremely important issue, one that the American people and the FBI are quite 

concerned about, how we deal with the FBI’s readiness to meet the 

law enforcement challenges of not only today but of tomorrow, too. 

We began oversight hearings last summer, and I think this is extremely important because the FBI is facing some unprecedented 

challenges. Also, under the new legislation we passed, they have 

unprecedented powers and we want to make sure in a democratic 

society that we balance those. We also want to make sure that the 

FBI is able to do all the things necessary to protect this great Nation. 

It is the committee’s responsibility to ensure that the FBI is as 

great as it can be, and this series of oversight hearings is a fundamental part of that. We will consider the FBI’s production, and it 

was actually belated production, as the important and thorough report by the Inspector General revealed this week, of the Oklahoma 

City documents. Also, we will look at the question of the destruction of some of them. 

What is troubling to me in that report, actually more troubling 

than the belated production or the destruction, is the conclusion 

that senior FBI personnel failed to notify either the prosecutors on 

the case or high-ranking Justice Department officials, including the 

current FBI Director, Robert Mueller, who was then serving as the 

2

Acting Deputy Attorney General, about the belated document production problems until 1 week before the scheduled execution date 

for Timothy McVeigh. 

I am concerned about that because the trial had been a textbook 

trial of how to do things right on both the prosecution side and the 

defense side. After the millions of dollars spent on that trial, to 

suddenly find a glitch like this that could have derailed the whole 

process is very troubling. 

The Inspector General’s report revealed that the destruction of 

relevant FBI documents was not disclosed to the court or the prosecutors on the case or the defense until after Timothy McVeigh’s 

execution. I agree with the conclusion in the Inspector General’s report that the court and defense counsel should have been informed 

of the FBI’s destruction of documents, in addition to being given 

the belated documents, while McVeigh’s stay of execution was 

being litigated. It is unlikely that any of the destroyed documents, 

if produced, would have changed the outcome of the case, but that 

does not excuse the FBI’s conduct. 

The observations of the presiding judge in the case are illuminating. He described the FBI as ‘‘an undisciplined organization 

or organization that is not adequately controlled or that can’t keep 

track of its information.’’ In denying the request for a stay of execution, he noted ‘‘It is the function others to hold the FBI accountable 

for its conduct here, as elsewhere.’’

The report raises three significant issues for this committee’s review, as we are one of the ones that the court meant should look 

into this. First, there are structural and management problems at 

the FBI which need fixing. You can’t blame a computer or filing 

system when senior FBI agents in charge of the Oklahoma City 

bombing case are aware of document production problems almost 

5 months before the scheduled execution. 

FBI headquarters officials were aware nearly 3 months before 

the scheduled execution, but did not disclose these problems to the 

FBI director, to senior Justice Department officers, or to prosecutors on the case until a week before the scheduled execution. It is 

hard to blame those who are in charge when they don’t get the information. 

I am afraid it is an example of a ‘‘circle the wagons’’ mentality. 

If you learn about a problem, you can’t bury your head in the sand 

and hope it goes away. And you can’t contain a problem under the 

cloak of secrecy; it just aggravates it. 

We will look to Director Mueller to consider appropriate administrative action against the FBI managers who did not promptly tell 

FBI headquarters or Justice Department officials. But the silver 

lining in the Inspector General’s report is the conduct of two lowerlevel employees who, in contrast to the managers, did the right 

thing. 

The FBI financial analyst and the intelligence research specialist 

who first discovered the document production problem in January 

2001 informed their superiors in the chain of command, but did not 

go around them. As the report notes, ‘‘the FBI could do well to use 

this as an opportunity to help remedy a longstanding FBI problem—the belief among FBI employees that bringing problems to 

management’s attention only results in problems for the employee.’’

3

Second, the information management and technology problems at 

the FBI substantially contributed to the belated document production. We are all relieved that the Inspector General found no intentional misconduct, but the report documents a number of fundamental flaws in the handling of information by the FBI that contributed to the failure to produce documents in the Oklahoma City 

bombing case: ‘‘antiquated and inefficient computer systems;’’ ‘‘inattention to information management;’’ ‘‘inadequate quality control 

systems;’’ misfiling, mislaying or losing documents; failure by field 

offices to follow correct procedures. The litany of problems is startling and that is why I want to hear from the FBI what is going 

to happen on this. Mr. Dies, I am glad you are here on that. 

I appreciate, and I think most members on this committee appreciate the efforts of the director to correct the management and information management problems at the FBI. I hope he appreciates 

the fact that congressional involvement can help achieve that. 

In the Emergency Supplemental Appropriations Act passed in 

January, Congress, with my support, gave the FBI $745 million, 

with more than $417 of that dedicated to computer and information 

technology. We are poised to give another $245 million. That would 

amount to $1 billion infusion of funds into the FBI, or a 25-percent 

budget increase since September 11. 

Now, we are giving more powers, we are giving more money, but 

the quid pro quo is that the problems will be fixed. This committee 

cannot authorize more money, will not authorize more money, nor 

will the Appropriations Committee appropriate it if the problems 

are not being fixed. 

Finally, we have to apply the lessons of Oklahoma City to the 

challenges facing the FBI in fighting terrorism because Oklahoma 

City, the problems there, the problems before September 11, can be 

problems today, on March 21. There is nobody in this room who 

would ever assume that we have seen our last domestic terrorism 

or international terrorism attack within the shores of the United 

States. We are sitting in a building that is just yards away from 

one of the buildings probably targeted in the September 11 attacks. 

So we have to look at this. 

There are parts of the Inspector General’s report that are 

chilling. They raise the critical question of whether the same flaws 

hampered the FBI’s sharing of counter-terrorism information before the September 11 terrorist attacks. 

I know there are some in the Congress who don’t want us to look 

into the question of whether mistakes were made prior to September 11. I would say that those feelings are not shared by the 

heads of the FBI, Director Mueller and others. They have been 

very open with me that we will look at the problems of sharing information. 

Right now, it is fair to conclude that the FBI does not know what 

it knows. That is the problem. You have got all this information, 

but if you can’t know what you know, it is not going to help us. 

If the information is sitting locked up somewhere, it is not going 

to help. If it is material that hasn’t been translated, it is not going 

to help. If it is material that hasn’t been distributed, it is not going 

to help. 

4

The Inspector General’s report demonstrates the need for enactment of S. 1974, the Leahy-Grassley FBI Reform Act, to charter 

the authority of the FBI’s Inspector General to review allegations 

of FBI misconduct and to strengthen FBI information management 

and technology and to protect FBI whistleblowers. 

I will put the rest of my statement in the record. We will continue these oversight hearings, and I do want to extend my appreciation for the cooperation I have received from the FBI in going 

forward on this. It is a lot different than a few years ago, what the 

cooperation would be. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman LEAHY. Senator Hatch? 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Well, thank you, Mr. Chairman. I apologize for 

being a little late. I had to introduce the Assistant Secretary of the 

Treasury. 

Chairman LEAHY. Wearing that tie? 

Senator HATCH. Yes, wearing my modest tie here. 

Chairman LEAHY. This is how you tell the liberals from the conservatives on this committee. You will notice my dark tie. 

Senator HATCH. The conservatives are so boring. 

Mr. Chairman, I would like to start off by stating unequivocally 

that I consider the FBI to be one of the finest, if not the finest, law 

enforcement agencies in the world. But those who justifiably we 

hold in great regard also bear a great responsibility. 

Last spring, we were all disappointed to learn that in the process 

of turning over millions of pages of documents to the defendants 

who were responsible for blowing up the Murrah Federal Building 

in Oklahoma City, the FBI had inadvertently failed to produce 

some documents. This is a mistake that never should have happened in litigation. 

Fortunately, with respect to Timothy McVeigh and Terry Nichols, 

there was no basis for arguing that any of the documents that were 

not produced would have altered in any way the outcome of their 

trials. Next time, we may not be so lucky. I am therefore committed to doing everything necessary to ensure that these types of 

mistakes do not ever happen again. 

The Department of Justice Inspector General has now completed 

a thorough and comprehensive review to determine how these documents fell through the cracks and how such mistakes can be 

eliminated in the future. And before I go on, I would like to acknowledge Glenn Fine, the DOJ Inspector General, for the fine 

work performed by you, Mr. Fine, and your staff. This report is 

clear. It is thorough and well-organized, and it should serve as a 

model for future investigative reports. 

There is much good news in the IG report. First, and most importantly, there is nothing in the report that does anything that 

calls into question the validity of the convictions or the sentences 

imposed on Timothy McVeigh or Terry Nichols. While I recognize 

that the guilt or innocence of these men was not the focus of the 

IG’s report, I nevertheless take comfort from the fact that the IG 

5

uncovered no information that would even suggest that these men 

were not the perpetrators of the horrible crimes for which they 

were justly convicted. We must not forget that these men were captured, brought to trial and convicted for blowing up a Federal 

building and murdering more than 160 men, women and children 

through the hard work and through the dedication of FBI agents 

and personnel. 

Second, I am gratified to learn that the Inspector General determined that the FBI had not purposefully sought to withhold these 

documents from the defense. The Inspector General found that in 

the midst of producing more than a million pages of materials, 

some 1,033 documents were not turned over, and that the failure 

to produce these documents was simply the result of human error, 

not misconduct or misfeasance or malfeasance on the part of the 

FBI. 

Finally, I have been pleased to learn that under the vigorous direction and leadership of Director Robert Mueller, the FBI has already begun implementing many of the IG’s suggested reforms. I 

applaud the IG for your thorough report, and I urge the FBI to continue its commitment to overhauling and upgrading its records 

management systems. 

Let me make a final point. When the FBI does its job well, we 

rarely hear about it. There is no way to tell how many terrorist 

plots against the United States have been averted simply because 

of the existence of the FBI’s counter-terrorist capabilities. 

When the FBI does make the news, it is overwhelmingly for a 

job well done. It may be the perpetrator of a rape who has been 

identified and incarcerated because the FBI laboratory has 

matched his DNA to evidence found at the crime scene. Or perhaps 

a malicious computer virus has been detected by the FBI and 

traced back to a cyber criminal operating in a foreign country. 

It is this positive record of effectiveness and efficiency that 

makes it so newsworthy when the FBI fails to perform its duty 

with the degree of care and professionalism that we have come to 

expect. And as a result, many times we make a lot more fuss about 

these matters than the matters that very few people know very 

much about that are successes. 

As a United States Senator, I consider it to be one of my most 

solemn responsibilities to ensure that the awesome powers our law 

enforcement agencies have are exercised in a responsible fashion; 

that is, in a way that inspires confidence in our citizens and does 

not unlawfully infringe on our cherished liberties. I know that my 

colleagues on both sides of the aisle also feel the weight of this responsibility. 

Oversight hearings such as the one we are holding today are important and I look forward to the testimony of the witnesses today. 

But based on my review of the IG’s report, the written testimony 

submitted by the witnesses, and my own knowledge of what Director Mueller has accomplished during his short tenure as director, 

I am persuaded that the FBI is taking the appropriate steps to address the shortcomings in records management that were revealed 

by the Oklahoma City bombing case, and thereby maintain its position as one of the world’s most effective law enforcement agencies. 

6

So, Mr. Chairman, I appreciate your holding these hearings and 

I want to thank you for your efforts here today. 

Chairman LEAHY. Thank you. 

Our first witness will be Glenn Fine, who is the Inspector General of the Department of Justice. He is a graduate of Harvard Law 

School, a Rhodes Scholar, and a former Federal prosecutor. He 

served as the director of the Special Investigations and Review 

Unit, and now has served under two Attorneys General. I know on 

this one, he has done extremely thorough and detailed work. 

I know that you put your own Director of Special Investigations, 

Suzanne Drouet, in charge of the Oklahoma documents matters, 

and I think that shows the importance you gave to it. We will put 

the whole report in the record, but I do want to hear from you, Mr. 

Fine, and then we will go to each of the other witnesses. 

STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, 

DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. FINE. Thank you. Mr. Chairman, Senator Hatch, members of 

the Committee on the Judiciary, I appreciate the opportunity to appear before the committee this morning to discuss the Office of the 

Inspector General’s report on the belated production of documents 

in the Oklahoma City bombing case. 

The disclosure of these documents just 1 week before the scheduled execution of Timothy McVeigh raised serious questions as to 

whether the FBI had intentionally failed to disclose documents to 

the defense before trial, and why the failure to produce documents 

had occurred. Because of the importance of these issues, the OIG 

expended significant resources to investigate the circumstances 

surrounding the belated disclosures. 

The OIG team of attorneys, special agents and auditors was led 

by an OIG attorney whom Chairman Leahy just described, who is 

a former Federal prosecutor. The team conducted approximately 

200 interviews of FBI and Department employees. On Tuesday of 

this week, we issued a 192-page report detailing our findings. 

In sum, our investigation found that widespread failures by the 

FBI led to the belated disclosure of more than 1,000 documents in 

the OKBOMB case. We traced the failures to a variety of causes, 

including individual mistakes by FBI employees, the FBI’s cumbersome and complex document handling procedures, agents’ failure to follow FBI policies and procedures, inconsistent interpretation of policies and directives, agents’ lack of understanding of the 

unusual discovery agreement in the case, and the tremendous volume of material being processed within a short period of time. 

The failures were not confined to either the FBI field offices or 

the OKBOMB task force. Both share responsibility. However, we 

did not find that any FBI employees intentionally withheld from 

the defense documents they knew to be discoverable. 

Our report criticizes most severely several senior FBI managers 

for how they responded when they became aware of the belated 

documents problem. The issue was first discovered in January 2001 

as part of a routine archiving process by two conscientious analysts 

in the FBI’s Oklahoma City field office. 

These two analysts found copies of documents that had not been 

turned over to defense attorneys and materials sent by the offices 

7

to Oklahoma City. Yet, the senior managers to whom they reported 

the problem failed to adequately manage the document review 

process and failed to set any deadlines for completing the project. 

Most troubling, the managers failed to notify FBI headquarters 

or the prosecutors in the case until the beginning of May, 1 week 

before McVeigh’s scheduled execution. We believe their failure to 

take timely action to resolve or report the problem was a significant neglect of their duties and we recommend that the FBI consider discipline for these failures. 

Let me now turn to the question of why the documents were not 

produced before trial. We were able to determine a number of factors that contributed to the belated disclosures. 

First, the FBI’s system for handling documents is inordinately 

complex. Documents are stored in many different locations. Various 

data bases are used to track the documents, and information is 

placed on different types of forms that are handled in different 

ways. 

Second, despite instructions to send everything to the task force, 

some agents failed to send documents because they deemed the information as insignificant to the OKBOMB investigation. 

Third, some employees incorrectly assumed that other employees 

had sent the documents in. 

Fourth, it appeared that many field offices did not follow instructions from the OKBOMB task force to search their files and ensure 

that all investigative activity had been properly documented and 

sent to the task force. 

We found that the task force also shares responsibility for documents not being disclosed. For example, we found that documents 

sent to the task force were lost or placed in the wrong file drawer. 

We carefully examined the allegation that the Government intentionally withheld documents it knew to be discoverable from the 

defense. We questioned FBI employees and former employees, analyzed circumstantial evidence, and investigated documents the defense alleged showed that the Government intentionally withheld 

exculpatory evidence. We concluded that the evidence did not support a finding that Government personnel withheld evidence it 

knew to be discoverable. 

We also examined the actions of the FBI after the belated documents were publicly disclosed in May 2001. FBI officials at headquarters incorrectly placed blame on the FBI’s computer system 

and FBI field offices, when the fault lay both with the field offices 

and the task force. In addition, we saw many untimely and inaccurate responses from the field offices to the directives in 2001. 

The issues encountered in this case shine light on several of the 

FBI’s longstanding problems: antiquated and inefficient computer 

systems, inattention to information management, and inadequate 

quality control systems. The FBI has both a paper and an electronic information system in place, neither of which is reliable. Although the belated documents issue was presented as a discovery 

problem, the FBI’s troubled systems are likely to continue to impede its ability to perform its mission. 

In our report, we detail many recommendations to help address 

the problems we found. Following are highlights of some of the recommendations. 

8

First, the FBI needs to foster an attitude throughout the entire 

agency that information management is a critical part of the FBI’s 

mission. It is not the glamorous part of the mission, but it is an 

essential part. Unless the FBI as an institution ensures that sufficient emphasis is placed on managing the mass of information it 

collects, problems will persist. 

Second, FBI automation systems must be reliable and userfriendly and they must integrate data bases that are used for many 

different functions throughout the FBI. 

Third, the FBI must simplify its document handling process. The 

FBI’s current system requires paper documents to move through 

multiple steps and locations, creating many opportunities for them 

to go astray. The FBI also should reduce the mind-boggling variety 

of forms it uses. 

Fourth, the FBI must provide increased training on its automation systems in document handling. They should be required core 

skills for FBI employees, including agents and supervisors, and refresher training also should be required. 

In conclusion, the significance of this case is much broader than 

the impact of the problem in the OKBOMB investigation. The FBI 

has known about these problems for some time either because the 

OIG has discussed them in other reports or because the FBI has 

found them through its own reviews. But until recently, the FBI 

has made insufficient efforts to correct these deficiencies. 

FBI employees need and deserve better computer systems and 

support. As the tragic attacks of September 11 revealed, the FBI 

will continue to be faced with cases of the scale and dimension of 

OKBOMB, and the lessons learned from it will continue to be important. 

To adequately fulfill its responsibilities in major cases, as well as 

in smaller ones, the FBI must significantly improve its document 

handling and information technology. This requires a sustained 

commitment of resources and effort, but the FBI must make this 

commitment if it is to avoid the serious problems that occurred in 

the OKBOMB case. 

That concludes my statement and I would be pleased to answer 

any questions. 

[The prepared statement of Mr. Fine appears as a submission for 

the record.] 

Chairman LEAHY. Thank you, Mr. Fine. One of the reasons why 

I and many others have been urging the administration to do what 

they can to speed up this ability to pull up information is because, 

as I said earlier, I worry when the FBI doesn’t know what it 

knows. They have information that might stop a terrorist bombing 

or might stop something from happening, but if they don’t know it 

is there, it doesn’t help. 

The rest of the panel will be Mr. Bob Chiaradio, who is the new 

Executive Assistant Director for Administration. 

I believe you used to head the Tampa office. Is that correct? 

Mr. CHIARADIO. Yes, sir. 

Chairman LEAHY. Bob Dies is the Chief Technology Officer, a 

former IBM executive who was very helpful to the committee last 

summer. Bill Hooten is the new Assistant Director for Records 

9

Management. He recently came to the FBI from a private sector 

position at SAIC. 

A vote has started, and we will recess for about five or 6 minutes 

so that we can go over and vote because I don’t want to interrupt 

the testimony of any of the three of you. I will come right back and 

we will begin the testimony of the remaining three and then go to 

questions. 

I should note that Mr. Chiaradio will be the one who will testify, 

and Mr. Hooten and Mr. Dies will be there to answer questions, as 

they have for the committee before. 

Thank you. 

[The committee stood in recess from 10:01 a.m. to 10:19 a.m.] 

Chairman LEAHY. Thank you for your patience. 

Mr. Chiaradio, would you please go ahead? 

STATEMENT OF ROBERT CHIARADIO, EXECUTIVE ASSISTANT 

DIRECTOR FOR ADMINISTRATION, FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF JUSTICE, WASHINGTON, 

D.C.; ACCOMPANIED BY BOB DIES, CHIEF TECHNOLOGY OFFICER, FEDERAL BUREAU OF INVESTIGATION, AND BILL 

HOOTEN, ASSISTANT DIRECTOR FOR RECORDS MANAGEMENT, FEDERAL BUREAU OF INVESTIGATION 

Mr. CHIARADIO. Thank you. Good morning, Chairman Leahy, 

members of the committee. We appreciate the opportunity to be 

here to discuss the myriad of things we are doing in response to 

the issues properly identified by Inspector General Fine. We also 

appreciate this committee’s longstanding interest in our ongoing efforts to rebuild our antiquated information infrastructure. 

We commend Inspector General Fine and his staff for a thorough, objective, and independent examination of these issues. His 

report is instructive and his recommendations constructive. Because his findings go to the very heart of how we conduct one of 

our core functions, Director Mueller has had the report made available to all employees and has made it recommended reading for all 

FBI management and supervisory personnel. Its lessons will be 

part of our training and its relevance and importance will live far 

beyond today. 

Last May, then-Director Freeh outlined for Congress the massive 

nature of the OKBOMB investigation and the virtual flood of documents and information created during this course. He also expressed regret that our shortcomings pertaining to the records had 

overshadowed the enormity of the sacrifices and accomplishments 

of those agents who successfully investigated this case. 

He candidly admitted that, ‘‘We simply have too little management attention focused on what has become over time a monumental task. The seemingly mundane tasks of proper records creation, maintenance, dissemination and retrieval have not received 

the appropriate level of senior management attention. This episode 

demonstrated the mundane must be done as well as the spectacular.’’ He then outlined a number of steps that the Bureau had embarked upon to fix some of these shortcomings. 

On Tuesday, Director Mueller stated that ‘‘Sound records management and document accountability are at the heart of the FBI’s 

ability to support investigations and prosecutions with information 

10

integrity. There can be no doubt about the accuracy, completeness, 

and proper disclosure of the records we compile during our investigations and used by prosecutors in the support of prosecutions. 

The ability to maintain, access, and retrieve documents is critical 

to our mission and equally critical to protect the rights of those 

charged with crimes. It is also fundamental to robust informationsharing capacities, both functions which we are readily enhancing. 

In short, records management and integrity are core functions that 

demand the same level of attention and accountability as any function we undertake. It must be a part of the Bureau’s culture.’’

As Inspector General Fine outlined for you, there are host of contributing factors. The methods we use to record and retrieve information are too complex. Our automated case system was not very 

effective in identifying information or supporting the investigation. 

Our technology was inadequate. We lacked a true information management system, and what we do have is not user-friendly. Many 

of our employees lack the training necessary to be fully engaged in 

an automated environment, and a host of other issues as well. 

But what we thought when this issue first surfaced and what we 

believe now has been confirmed by Mr. Fine. This is not a computer glitch. Although a more robust system would have helped, it 

is a management and cultural issue which must be forthrightly 

confronted. 

We can add technology, simplify our procedures, and dramatically reduce the opportunities for human error. Doing those things 

are relatively simple. What we must do and what we are doing is 

recognizing information management as the core function that it is. 

At all levels, we must lead the Bureau back to where the function 

is accepted as second nature. We must put in place the structures 

and automation that fully support this core function, and we must 

inculcate in every employee, ourselves included, that this new way 

of doing business is the only way acceptable. We must improve our 

records management practices, not simply automate what we have 

been doing for decades. 

We are taking specific actions to address each concern raised by 

the Inspector General and a number of significant steps are well 

underway to overhaul our Bureau-wide records management capabilities to increase accountability for compliance with established 

record procedures and to put in place the training and skill sets 

necessary to bring about full acceptance of a near-paperless environment. 

Borrowing a little from what my boss has said, with the help of 

the Congress we have restructured to recognize that the creation, 

maintenance, use and dissemination is a core function that must 

be fully supported by management as a priority. 

We have created a Records Management Division to ensure executive direction and full-time oversight over all records policies and 

functions, consolidating all records operations to ensure consistency, thoroughness and accountability. A professional records management expert, Mr. William Hooten, here with us today, has been 

hired from the private sector to run that division. He has been 

charged with modernizing our enterprise-wide records systems, developing comprehensive, enforceable policies and procedures, and to 

ensure records integrity. He is also charged with putting in place 

11

those quality control mechanisms that will detect anomalies and 

problems early on. 

It is critical that we manage information, not just the systems 

that support our records. Congress has funded, and we are implementing, extensive agency-wide training aimed squarely at reforming our culture to one that exploits and incorporates technology in 

our everyday way of doing business. 

Director Mueller is personally providing the leadership for this. 

We have retrained our employees on proper document production, 

management and retrieval, and the importance of records management as a core function. There will be continuous training over the 

course of an employee’s career. 

Of course, basic to any modern system of records is a modern information technology system, and modernization of our information 

technology, as this committee knows, is one of our top priorities. 

We are making sustained progress in this area. Congress has approved funding for the FBI to upgrade technology and infrastructure for organizing, accessing, analyzing and sharing information 

throughout the FBI and beyond. 

We are replacing the now antiquated automated case system in 

favor of a multimedia, near-paperless virtual case file, with significant improvements and capabilities that greatly reduce the possibility that future documents will be misfiled, lost, or otherwise fail 

to be produced. The new system will dramatically decrease the potential for human error, both automatically doing many functions 

now done by manual intervention and by substantially reducing 

the number of opportunities for problems to occur that are inherent 

in our current systems. 

This new case file document management system, designed with 

substantial input from street agents, will be of benefit in greatly 

simplifying the records creation and maintenance processes, being 

user-friendly, and allowing us to manage leads much more effectively. 

The FBI’s computer network is being completely revitalized to 

provide a data warehousing, collaborative environment, instead of 

application stovepipes. The creation of data warehouses and ample 

supporting networks provide easier and more robust access and 

sharing of information, and results in integrated data bases. The 

need for ad hoc crisis software applications will be eliminated. Private sector support which will allow commercial software and professional scanning, indexing and storage of documents is being 

used to move us rapidly out of the paper environment that was so 

vexing in the OKBOMB investigation. 

All of these systemic changes and many others, including everything Mr. Fine recommended, are critical components to what must 

be a sustained agency-wide effort. These things are as important 

to protecting rights as how we execute warrants and testify in 

court. The challenge is great, especially the challenge of changing 

the culture. We believe we are on the way. 

Finally, although his exhaustive investigation found no evidence 

of any intentional effort to withhold information from defense counsel, the Inspector General’s report also criticizes actions of certain 

FBI personnel. We are reviewing these criticisms and will move 

12

quickly to take any appropriate disciplinary action. In the end, 

there must be accountability. 

At this time, I am prepared to present a brief demonstration on 

the prototype of the virtual case file that is currently in development or answer any questions, as the Chairman would like. 

Chairman LEAHY. I assume throughout all that you are doing the 

appropriate firewalls, depending upon classification and that sort of 

thing. 

Mr. CHIARADIO. Absolutely. Within the branch created by Director Mueller in my area of responsibility is a new Security Division. 

Integral to this new system will be overlays and internal security, 

external security and the like. 

Chairman LEAHY. Go ahead with your demonstration. 

Mr. CHIARADIO. Mr. Chairman and members, I have circulated 

before my testimony this morning four charts which I will refer to 

in the presentation as slides. 

The first slide is basically a virtual case file. What we would 

have is a sign-in screen. The IG found that ACS was so difficult 

to use that many agents and supervisors had abandoned their effort to use it. In fact, they would rather rely on secretaries and administrative personnel. 

Our current system is 1970’s and 1980’s technology, green screen 

emulators with F key functionality. For example, it takes more 

than a dozen screen entries just to enter one document and upload 

it into the system. The virtual case file is designed to operate in 

a browser-based technology, point and click, user-friendly, things 

that we are using today in our everyday lives. The presentation 

will be more intuitive. 

Security will be essential, as the chairman asked, as an integral 

component. Access will be password-controlled, roll-based authorities, possessed of robust features for document management control, auditing unauthorized access, the things we found with the 

Hanssen investigation. 

We will have system-wide activity approval logs which will track 

documents where they have been throughout the process from creation into the final system, through what approval processes they 

travel. 

Chairman LEAHY. You will also be able to follow, then, who was 

picking these documents up, too? 

Mr. CHIARADIO. Absolutely. The system will be able to show us 

who may have printed a document, who looked at a document, 

where the document is. When it is needed for discovery, it will be 

in one place. It can’t be misfiled. It can only be printed or burned 

onto a CD and transmitted to the defense or to the prosecutors. 

We have a case document access review, where the agents will 

be responsible to go in on their own on a certain that will be designed that they go in and they see who footprinted into their case, 

who was supposed to be in there and who not, with the responsibility to elevate those concerns when found. 

I will take you to the second slide. Once we would sign into a 

case, a case agent would now see——

Chairman LEAHY. Incidentally, this kind of thing you are talking 

about—I am sure Judge Webster’s review people are probably looking at, too, I would hope. 

13

Mr. CHIARADIO. Ken Sensor, the Assistant Director in the Security Division, has had a series of meetings with Judge Webster and 

his committee. 

Chairman LEAHY. Thank you. 

Mr. CHIARADIO. On the second page, on the slide, we were getting to a case file management system. Typically, this would be the 

prototype of what an agent would see when they logged in in the 

morning. Although the paper obviously doesn’t reflect it, there is a 

red arrow circling up in the top case. That is going to be indicative 

to a case agent or an investigative employee that something new 

has happened in their case. A lead has come in from another office, 

a serial has been sent to them, a supervisor has sent instructions. 

There is not a chance, again, for human error. We are trying to 

minimize at every opportunity where human intervention is necessary, to have automation and technology assist us. 

What we would see here is the ability to track leads, to control 

documents, to know when there is a document and activity has 

taken place in the case. The virtual case file will be interactive, intuitive processes, the ability to see one’s case and lead assignments 

on a screen, rather than in paper folders or in drawers or in file 

cabinets, intuitively, again, to point and click to a file in your area 

of interest. 

We would, for example, in this case click onto the first case and 

bring you to slide three, and this would be what was going on in 

this particular case. Again, that arrow or that spinning red notification would show you that what had happened in that case was 

a photo spread had come in, which is something that we don’t have 

in ACS. We don’t have the ability to put in any scanning or multimedia. It is only documents that we may create in our own environment, nothing external from another agency, for example, no 

ability to put a picture in. 

During the 9/11 attacks, shortly thereafter, I was the agent-incharge in Tampa and headquarters wanted to send us pictures of 

the 19 hijackers. They couldn’t use our infrastructure to do that. 

It had to be put on a CD-ROM and mailed to me. 

Chairman LEAHY. Also, I would think that you could do that in 

a hurry. Another part that is helpful is so many times it is frustrating. You hear on the news, whether it is the FBI or the chief 

of police in a major city or somebody like that will say there has 

been this terrible crime. We have the description and artist’s 

sketch of such-and-such a person, and whoever is reporting the 

news is talking about it and I think the average American sits 

there saying, well, put the sketch up so we can see it. 

Also, in those cases where you have got something and the Bureau determines that it makes some sense to let the press know 

this, you can immediately disseminate it to hundreds of outlets, 

thousands of outlets, if need be. 

Mr. CHIARADIO. Absolutely. The virtual case file is one part of 

Trilogy, and Trilogy is the big project that the Congress has funded 

for us. By this summer, we hope to have deployed to the field the 

robust network, the desktops, the hardware, and the presentation 

software. This notion of Trilogy is in a development stage now 

called joint application design with the contractors and the users. 

14

An important point to add about the virtual case file with respect 

to multimedia capabilities is the chairman’s comment is we don’t 

know what we know. We don’t know what we know because a lot 

of the information we obtain and we collect in our files remain in 

a paper format. They are externally generated. They sit in file cabinets. 

The multimedia capabilities of the virtual case file will give us 

the ability to bring that information into a digital format into data 

warehouses, to be able to access it, to be able to work against it 

with robust search engines and the like. 

The FBI’s current document management system requires paper 

through multiple procedures and steps. The IG had found that and 

it was replete through his report. The quote was that it was ‘‘mindboggling,’’ the variety of forms. What we are doing in the virtual 

case file development is eliminating to a great extent the forms in 

our investigative cases. We are getting down to one form. 

We are going to obviate the need to have multiple reporting and 

stovepiping of applications by designing on the front end what we 

may need as an organization and not have to create automation to 

compensate for forms that were designed in the 1930’s, the 1940’s 

and the 1950’s. We need to not just automate, but we need to revitalize the way we do our business. 

We would have this project, virtual case file, delivered, certified 

and accredited for some months. In the interim, under the direction 

of Mr. Dies, and also our Information Resources Division, we are 

going to do some things to ACS. 

We are going to collapse those 15 screens to upload a form down 

to 2 or 3. We are going to get our work force trained and start to 

get them ingrained in a culture of using this new technology for 

our organization anyway—the point-and-click, the Web-basing. So 

by the time we turn on our virtual case file, we will be prepared. 

We have a robust training program put in place not only on the 

hardware deployment but on the software deployment. We have 

about $20 million set aside to do enterprise-wide training to get our 

organization prepared. 

The last thing I will show on slide four is just an example of the 

photo spread, things that we can’t do today, have multimedia, simply just transfer a photo spread of Mohammed Atta, as I just gave 

you a graphic anecdotal example of what happened when I was 

running the Tampa field office. 

ACS will allow full-text retrieval. It would be very time-consuming before we had this to even get anything out of ACS. You 

might not even know what you are looking for. The search engines 

that are available today to search my name—you would have to 

have all of the letters in almost exactly the right order to even 

know if I was in your system. 

We are working with the intelligence community, with the Mormon Church on some of the search engines they use for genealogy 

review and research to put a more robust search engine in there 

so we can pick out information that may be in our data bases; foreign names, for example, as a good start. 

The most important thing is to get our data bases together. With 

this virtual case file and the data warehousing that we are going 

to create, we are starting with the five most critical investigative 

15

applications. We have about 42 that have been created as workarounds to a bad system. 

Some of those investigative warehouses—the need for them will 

be obviated by what we are doing with these five new data base 

consolidations into one warehouse. The others are going to be addressed after Trilogy in future appropriations requests and in future efforts by our Information Resources Division. 

I can answer any questions or I could go further. There are many 

features that we have in this prototype, but I wanted to just give 

you a few examples of how accurate Inspector General Fine’s report 

was on our shortcomings and how we will use every possible thing 

we can as far as technology to minimize the opportunity for human 

error. But that is not the final answer. We need to do more. We 

need to do more culturally. We need to do things in our organization to put an emphasis on this, on the importance of data management. 

[The prepared statement of Mr. Chiaradio appears as a submission for the record.] 

Chairman LEAHY. You have so many superb men and women in 

the Bureau who are well-trained. They go through intensive training, as you know, and I want them to feel that when they are there 

what they are doing is actually being paid attention to, and if they 

are involved in cases, they are going to be heard. 

Technology is not the only answer, of course, but if you have 

technology that really brings the Bureau together rather than balkanizing it, that is extremely important. But then you have to do 

what Mr. Fine’s report points out. You have also got to go to the 

basic culture of the Bureau to make sure that as you break down 

the walls, you really want everybody in. 

If I could, I would like to go back to the Inspector General. I 

want to make sure I understand the sequence of events correctly, 

and I was reading through the material last night. 

In January, the potential discovery problem is first brought to 

the attention of the senior FBI official who was running an entire 

FBI field division. From that time until May 7, the FBI conducts 

a search in most every field office in the U.S. for documents which 

were not turned over. Memos were being sent. Documents were 

being shipped to Oklahoma City and analyzed there. Supervisors 

are flying in from Dallas to review the materials; they have meetings. So there is a wide-scale operation going on in the Bureau. As 

it is proceeding, documents are being discovered that people in the 

FBI suspect may not have been turned over to the defense, even 

though they should have been. 

Now, I am assuming this is an ongoing process. All of these documents didn’t simultaneously appear the morning of May 6. So am 

I right that it essentially happened over a 5-month period and no 

one in the FBI even mentioned this potential problem to either the 

prosecutors who were working with them on the McVeigh case or 

to officials in the Department of Justice? 

Mr. FINE. That is correct. No prosecutor, no one in the Department of Justice knew about this issue until May 7. 

Chairman LEAHY. What does that say about the atmosphere in 

the FBI and how you would deal with these kinds of problems? 

16

Mr. FINE. I think that is not a good atmosphere. When we talked 

to the inspector in charge, Mr. Defenbaugh, and asked him why he 

didn’t expose the potential problem, he had a number of reasons, 

including he wanted to research the problem, he wanted to ensure 

that he was thorough. But when we asked him why didn’t you tell 

somebody in the Justice Department, a prosecutor, that you had a 

potential problem so that they could deal with it, one of the answers he gave was I didn’t want it to leak out, I didn’t want to cry 

wolf. 

That, to me, discloses not a good relationship that you could not 

tell a prosecutor and let the prosecutor provide guidance on the appropriate way to deal with this potential issue, even if you think 

you may find documents later on. We believe that the Department 

of Justice and the prosecutor should have been notified, and should 

have been notified early. 

Chairman LEAHY. Well, I would think so because I know thenDirector Freeh, like Director Mueller today, both of them are people who want the rules followed. Whether they agreed or disagreed—I am not saying they did disagree, but whether they 

agreed or disagreed with the court’s ruling on discovery, I don’t 

think there is any question that former Director Freeh and current 

Director Mueller would want those rules carried out. 

There is no question in my mind that Attorney General Ashcroft, 

just as his predecessor, Attorney General Reno—if there was an 

order for discovery, they would want it carried out. What worries 

me is that somebody down the chain puts the Attorney General 

and the FBI director and the court and ultimately the public in a 

difficult position. 

Did any of the people you dealt with in the FBI accept responsibility for their actions or inactions, as the case may be? 

Mr. FINE. We found actually a notable and distressing lack of accountability, particularly on this issue. When we were talking to 

the people involved, they would say that it was somebody else’s job 

to notify the prosecutors; it was somebody else’s job to ensure that 

the review of the documents was done in an expeditious way. 

One person kept saying, well, I was just a consultant to the problem, or I was in the problem and I was out of the problem. We believe that many of them should have taken responsibility and ensured that the process was reviewed quickly; if there was a problem, in fact, and that the prosecutors in the Department of Justice 

and FBI headquarters be notified. And none of them took the appropriate actions, in our view. 

Chairman LEAHY. The reason I ask these questions is not to beat 

up on the FBI by any means. In this case, the Timothy McVeigh 

case, all the accounts I have read of it—and I have talked with the 

prosecutors involved with it. Obviously, when I was prosecuting 

cases, I never had anything that horrendous. No prosecutor has 

ever had anything that horrendous prior to that time and we hope 

that they don’t again. 

I looked at that case as a textbook of the way a case should be 

run. You had a judge who knew what he was doing who was in 

control of the case. You had highly qualified defense attorneys, 

highly qualified prosecutors, and a case of enormous importance to 

the United States. It was handled well, and I am convinced of the 

17

defendant’s guilt. There is no question in my mind from everything 

that I have read about it that he was guilty; no question that the 

law was followed appropriately on the sentencing phase and death 

penalty phase. All of that was done very, very properly. 

What I worry about is something like this, where there is a mistake and somebody saying I don’t want to tell anybody, and it may 

end up jeopardizing that whole thing. You know as a former prosecutor in a case like that it would be the most difficult thing in the 

world to re-try that case. You could do it, but it would be twice as 

hard to re-try a case, usually, that it is to try it in the first place. 

I worry about whether these kinds of mistakes in the handling 

of documents and information might be the same kinds of flaws 

that hampered the FBI’s sharing of counter-terrorism information 

internally and with other agencies prior to September 11. 

You state in your report on page 176, ‘‘The tragic attacks occurring on September 11, 2001, demonstrate that the FBI continues 

to be faced with cases of the scale and dimension of Oklahoma 

City, and the lessons learned from the Oklahoma City case continue to be relevant. Though Oklahoma City occurred over 6 years 

ago, the FBI’s document management process remains generally 

unchanged, as does the technology on which it relies.’’

You further point out that the failure to manage information 

properly has important implications for the FBI’s ability to share 

information, both with prosecutors and other law enforcement 

agencies, which you state is even more important in the wake of 

September 11. I happen to agree with you. I am very, very worried 

that these other agencies don’t have it. 

Do you think that these problems that you found hampered the 

ability of the FBI, our premier investigative arm in this country, 

from being able to adequately share counter-terrorism information 

prior to September 11? 

Mr. FINE. I think the FBI is in the business of gathering, storing, 

tracking, analyzing and sharing information. If they don’t have 

adequate technology and information systems to be able to do that, 

I think it does hamper them. 

I can’t say what happened in the September 11 cases, but the 

vulnerabilities that we found in the OKBOMB case, I believe, have 

significant impact and effect on its abilities throughout major 

cases, as well as in smaller cases. So I do believe that these issues 

affect everything the FBI does. 

Chairman LEAHY. Thank you. Everybody agrees that given the 

current state of the FBI’s information and computer technology, in 

one sense the FBI does not know all that it knows. Does anybody 

disagree with that? 

[No response.] 

Chairman LEAHY. Now, I talked to the Attorney General last November and I told him he was right to focus the Department of 

Justice and the FBI on protecting America from further terrorist 

attacks. I am glad to see that that focus was emphasized after September 11, but if you are going to plan effectively for the future, 

you have to know what worked or didn’t work in the past. 

I have asked the Attorney General to consider an internal review 

of the FBI’s counter-terrorism performance prior to and bearing on 

the attacks of September 11 to see if there are any lessons that we 

18

might learn there. I asked the FBI director last October to preserve 

all the FBI’s records and information so that such a review could 

be conducted, even if we found areas where mistakes were made. 

It won’t surprise you to know that Director Mueller said, of course. 

Would that kind of review be useful? 

Mr. FINE. I think reviews are useful to determine the lessons 

learned, the problems that occurred, and how to prevent it from 

happening in the future. I hope that this review is helpful in the 

information technology field. I believe other kinds of reviews can 

have important effects and help in the future. So I do believe that 

what we do, what the inspector generals do, performs a useful 

function. 

Chairman LEAHY. Does anybody want to add to that? 

[No response.] 

Chairman LEAHY. I will turn to Senator Sessions. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman. I really have the 

greatest respect for the FBI. I have worked with them for quite a 

number of years and seen the integrity and dedication of the 

agents, their intelligence and ability and training. 

The judge said they are not disciplined. I think for the most part 

FBI agents are disciplined, but it is not a perfect situation. Mr. 

Fine, I think you are touching on the good and the bad there. 

Director Mueller, I believe strongly, has the kind of experience 

to understand just this problem. He has been a big-time prosecutor 

of criminal cases all his life. He is a career prosecutor. He admires 

the FBI agents that he has worked with, and I have asked him 

about it. But I also believe he would understand how to avoid this 

kind of thing happening in the future. For that, I am very grateful 

that we have him at this time because it is time to confront some 

of the problems in the FBI and try to get past those. 

Your report, Mr. Fine, seems to touch on that. Your answer to 

Senator Leahy’s questions were, I think, candid and noteworthy 

and important. 

Mr. Chairman, I love the FBI and I believe it is the premier law 

enforcement agency. You are correct. They are accountable to this 

Congress and to the American people, and this is the best way that 

the American people will have confidence in it, to have public hearings and talk about the problems. We should do that, and I salute 

you for going forward with this review. 

There are good things, I think, here that maybe a lot of people 

didn’t notice. It didn’t surprise me at all. I think I understood precisely how this problem with the McVeigh case happened. It was 

not intentional, as you found. As a matter of fact, there would be 

no real motive in terms of hurting the defendant for an FBI office 

in Miami to fail to send in an insignificant document to the prosecutors in Oklahoma City, would there, Mr. Fine? 

I mean, it was inadvertence and lack of attention to detail rather 

than some attempt to compromise the prosecution or hurt Mr. 

McVeigh’s chances. 

Mr. FINE. As I stated, we didn’t find any intent on anybody’s part 

to withhold discoverable documents that they knew to be discoverVerDate 0ct 09 2002 13:30 Aug 06, 2003 Jkt 088571 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 C:\HEARINGS\88571.TXT SJUD4 PsN: CMORC
19

able from the defense. It was a wide range of documents. Many of 

them were utterly useless and insignificant. There were documents 

in virtually every field office. It was a widespread failure that we 

found. We did not find it to be an intentional failure. 

Senator SESSIONS. What happened was in that court, that judge 

looked at that prosecutor and issued an order about what would be 

disclosed. It was a broad disclosure order that required documents 

and any interviews relating to the case, I assume, to be disclosed. 

Mr. FINE. Actually, Senator Sessions, it was an agreement by the 

Government and the defense for this broad discovery. 

Senator SESSIONS. But essentially it was backed up by the order 

of the court. Is that correct? 

Mr. FINE. I believe the court did recognize it and order it, but 

it was entered into by the Government. The reason they did that 

was to ensure that the defense got the evidence, to show that there 

would be fair access to the evidence, and also to try and avoid discovery disputes. 

Senator SESSIONS. Well, you make a good point because I am not 

sure under the strict rules of evidence all these documents would 

have been admissible, Mr. Chairman. Mr. Fine makes a good point. 

In fact, they probably were not. What happened was the prosecutor 

voluntarily agreed to what we refer to as an open case file. We will 

give you all documents, all interviews related to the case. 

What was the language they actually used? 

Mr. FINE. The language was never written down. This was an 

agreement entered into by the prosecution and the defense and it 

was never memorialized in writing. But there was as clear understanding that all FBI 302s—that is, records of interviews, inserts, 

1-A documents, evidence and other things—had to be turned over 

to the defense or made available to the defense. 

Senator SESSIONS. So then a directive went out from the Oklahoma City investigative team to every FBI office in America, because this was such a big case and it impacted the Nation and 

leads were being run in every office in America, to send in all your 

information. Some of them did and some of them did not, and that 

is what caused the problem fundamentally? 

Mr. FINE. Fundamentally, that is what happened. There were 

many directives sent to the field offices saying send in everything 

you have on the OKBOMB case, and we found that in many cases 

those offices didn’t. And in many cases, they did send it in and it 

was lost at the task force. 

Senator SESSIONS. Now, on the negative thing here to the FBI, 

I have sensed on occasion—and I will ask if you found it here—do 

you think some of the people who got those inquiries and those 

telexes to send in information said this is not discoverable stuff, we 

don’t really have to turn this over, I am not sending it in? Do you 

think that possibly was in the back of some people’s minds, even 

though the prosecutors and the judge and the defense counsel were 

expecting all documents to come in? 

Mr. FINE. Yes, we found that. We found that some agents used 

what they thought was their discretion to say this is irrelevant, 

non-pertinent, and it doesn’t need to be sent in. But we found that 

they should not have done that, that they were specifically directed 

20

to send in everything and let the task force decide what had to be 

turned over. So, yes, that did happen. 

Senator SESSIONS. Sometimes, people get to thinking instead of 

following the direction of their bosses, and that can be dangerous 

if you don’t know all the facts in the case, as obviously here. So 

that really compromised the case, I would suspect, that kind of 

mentality, inadvertence or whatever. 

All the documents—and how many were produced? Was it a million? 

Mr. FINE. There were millions of documents made available to 

the defense. There were 27,000, I believe, memoranda of interviews. I think there were 13,000 pieces of evidence. There were 

millions of hotel receipts, motel receipts, rental car receipts that 

were being tracked and made available. 

Senator SESSIONS. And many of them, as it turned out, had absolutely nothing to do with the case. 

Mr. FINE. That is what the judge found. 

Senator SESSIONS. I remember when I first began as a prosecutor 

we had a great prosecutor in the South District of Alabama. The 

FBI knew him and he was renowned. His name was Ruddy Favre. 

They have named one of the rooms in the Federal U.S. Attorney’s 

office now for Ruddy. He died a number of years ago. 

He would tell all young agents this: don’t’ you worry. If there is 

an error in this case, do not cover it up. Come and tell me as soon 

as possible and I will take care of you. He said that because he believed that there was almost a zero tolerance for any error in the 

FBI. The young agents were afraid that if they had made a mistake, if they told it, their careers could be ruined. They could be 

adversely disciplined for some decision in a complex matter that 

they hadn’t had experience with and it would compound the error. 

Do you think there is a culture afoot in the FBI that still makes 

agents reluctant or fearful about coming forward at the earliest 

possible date if they may have made an error, even an unintentional error? 

Mr. FINE. Yes, I think it exists to come extent. I don’t believe it 

is all over the FBI, but I think that attitude is present. 

I remember testifying at a hearing before this committee last 

year at which Senator Danforth made that very point. He said the 

big problem is not the mistake, it is the failure to disclose the mistake. That is what he thought the FBI should focus on, ensuring 

that people who make mistakes feel free and come forward and disclose those problems. I agree with that. 

Senator SESSIONS. To me, that is a problem we need to get beyond. You don’t want to accept lack of highest possible standards. 

You don’t want to accept mistakes on a regular basis, but you also 

want people to let you know. The official spokesman for the FBI 

in the official arena, the courts, is the United States Attorney. 

Do you think that the agents could have been more forthcoming 

and could have been more cooperative with the prosecutors in the 

case on these subjects? 

Mr. FINE. Well, I think in the case itself I don’t have a comment 

on that. I believe that the FBI—and I want to point this out: This 

should not diminish the enormous efforts of the FBI in invesVerDate 0ct 09 2002 13:30 Aug 06, 2003 Jkt 088571 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 C:\HEARINGS\88571.TXT SJUD4 PsN: CMORC
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tigating OKBOMB and bringing to to a successful prosecution, including the person that we criticize, Mr. Defenbaugh. 

He was the inspector in charge of that investigation and he deserves wide credit for the way he handled that investigation. We 

criticize strongly how he handled the problem when the belated 

disclosures came forward. He did not disclose that potential problem and we think he should have at an early stage. I don’t think 

he intended to cover it up completely. I think eventually he was 

going to tell about it if all of the research confirmed there was a 

problem. We think, though, he should have disclosed that problem 

very early on. 

Senator SESSIONS. Well, I think you are correct. I know Danny 

Defenbaugh and I know he is a good man. He gave his life to the 

FBI and his country, and I believe he was working with just incredible tirelessness to make this case successful. I am sure it is 

a great embarrassment and painful for him to have this event—

after all the things that they did successfully in the case, have this 

event come back and cause a problem. 

He did delay some reporting it. What was it, a month or 2 

months? 

Mr. FINE. No. From the end of January, when the problem was 

initially disclosed, it went to about March, when it was very, very 

clear that they had not been able to find the documents and that 

there was a significant number of problem documents. And he did 

not disclose it until May 7. 

Senator SESSIONS. May 7, and that was shortly before the execution date? 

Mr. FINE. The execution date was May 16. 

Senator SESSIONS. So they decided to do their own internal review to make absolutely certain that this had to be disclosed. When 

they realized that it had to be, they did so, but late? 

Mr. FINE. Well, the conscientious employees that I described, the 

two analysts, when they get the documents, they disclosed it to 

their supervisors, including Mr. Defenbaugh, and they went forward with their review. But even by March, it was clear that there 

was a problem with the documents and they continued their review 

until every single document had been analyzed and reviewed in 

this very time-consuming and laborious process. 

That happened at the end of April, and so they were finally 

mailed to Mr. Defenbaugh on May 7 and he disclosed it then. But 

in our view, his failure to disclose the potential problem earlier was 

a significant neglect of his duties. 

Senator SESSIONS. I would agree. I think there was a delay there, 

an unfortunate delay. It was not held too late in the sense of the 

case. He did do it before the execution date, but there was very little time. It should have been done sooner. 

Thank you, Mr. Chairman. I have gone over my time. 

Chairman LEAHY. I gave you extra time. It is an important point. 

We all recall that because they had been so late in reporting this, 

the Attorney General had to delay what had been the scheduled 

execution date in that case to have it reviewed. I said at the time 

I thought the Attorney General did the right thing. I also know in 

my private conversations with him he was not happy to have been 

put in that position. He had no problem in doing what was the 

22

right thing to do, but he was not very happy that when they started knowing about this early in the year that nobody had come forward. 

Senator Grassley has been at several other meetings, and this is 

an area where he has not only enormous expertise but has been 

heavily involved. I appreciate him stepping out of his other hearing 

and I would yield to him. 

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Well, I thank you, Mr. Chairman, for doing 

that, and I want to thank you on this issue and a lot of other issues 

for your cooperation with me, and particularly your leadership on 

the bill that we recently announced. 

First of all, I want to take the time to commend General Fine. 

I don’t know you very well, but I want to get well acquainted with 

you. I think this report and the work that you have done on the 

FBI investigation, the McVeigh documents, et cetera, have been 

worked the way that inspector generals ought to work. 

I say that not only from my observation, but I have a former employee who has been observing inspector generals’ work for a long 

period of time. He is no longer in my office, but he made a very 

positive comment to me about your work, and I kind of use that 

as a standard of judging some of the work. So I think I not only 

want to commend you for this report, but I think for doing what 

inspector generals should do. 

The most important, key point there is independence, and if 

sometimes you don’t feel you have the independence that I think 

inspector generals ought to have and I think that the law allows 

you, I hope you will let me know. 

I think you have proven through this work to be genuine watchdogs. I think you have hit home the need for the FBI reform bill 

that was introduced by the chairman and me, and this would codify, as you know, the Inspector General’s authority to investigate 

the FBI. 

I would turn to Mr. Chiaradio and the rest of you, and bear with 

me if I am asking something that you have answered before, because I would like to hear it from you again. So maybe we need 

to followup with some dialog. 

First, it was unclear to me, in the comments of the FBI and the 

Department of Justice officials this week, whether the FBI has 

really taken responsibility for the main cause of McVeigh document 

problems, and that is obviously and quite simply human error. The 

problem was more than just a terrible filing system and old computers. 

I don’t want to rehash the whole report, but it pointed out problems and mistakes at the top level at headquarters all the way 

down to field agents. So I want to make sure that, first, you agree 

with the IG that human errors up and down the FBI chain were 

the main cause of this problem. 

Mr. CHIARADIO. Senator, absolutely. Through my remarks and 

through some of the conversations we have had here today, it is 

clear that we have a cultural change as much as we have anything. 

Technology and technology upgrades will absolutely assist us in 

23

minimizing the opportunity for human error, but as an organization we need to change. We need to get to the sense of urgency and 

the attention to detail, as Director Freeh said, in the mundane as 

much as the spectacular. 

I can tell you from the 6-months that I have served directly 

under the leadership of Director Mueller that he not only believes 

that, but I believe he believes it. He has had two separate meetings 

now with all of our special agents-in-change where I have heard his 

comments to that audience, where he expects accountability, he expects people to admit their mistakes, come forward quickly with 

them and move on and correct them. 

He is inculcating that into the organization to every person in 

the organization, and I believe that he is making that difference. 

It is a leadership issue, Senator. It starts with the director and it 

comes through all of us, and I believe we are on our way to that. 

Senator GRASSLEY. My second question deals with the National 

Infrastructure Protection Center. I am going to refer to it, as I 

think everybody does, as NIPC. I ask you particularly because of 

your being an expert on technology, so I would like to ask you 

about the director’s plan for the FBI to swallow up NIPC by putting it in the Criminal Division. 

I hope that you know that NIPC is supposed to share information with the private sector and issue warnings about threats. The 

private sector has some concern about NIPC, and particularly concern about that move. So why does the FBI want to turn an information analysis and warning center into a support office for criminal investigation? 

Mr. CHIARADIO. Senator, I talked to the director about this issue 

this morning at our seven o’clock staff meeting in anticipation of 

your question. The director has made no decision with respect to 

the NIPC. He has authorized me at this point and at other times 

to let you know that he values your opinion. Clearly, he will not 

make any final decision without coming to see you. 

Senator GRASSLEY. Thank you. I think I have made clear that I 

think it is a mistake. I will be glad to listen to that, but I hope 

you come around to the point of view that I have. 

I understand that you are training new and current agents in 

computer and recordkeeping with what is referred to as back to basics and other things, but I would like to know how these new policies will be enforced. What I really would like to have you answer 

is, first, specifically what kinds of accountability measures there 

are for the FBI as a whole and individuals in the FBI. And, second, 

how are you going to make sure that the FBI doesn’t have the 

same human error mistakes that led to the problems with the 

McVeigh documents? 

Mr. CHIARADIO. To answer the first question about what mechanisms are in place, we have cumbersome manuals of operation, administrative and investigative. I believe that was part of the Inspector General’s findings that we have too complex a recordkeeping system. 

What we are planning on doing and what the director has recognized and has organized, too, is a separate records management division, consolidating our functions, our policies and practices, 

where they have been sprinkled through the organization, bringing 

24

in an expert from the outside, and Mr. Hooten is here with us 

today, charging him with putting together a consolidated and more 

enforceable procedure on how we maintain, process, and otherwise 

retrieve and handle our information management; also, with the 

technology that we are hoping to develop and we are developing 

through Trilogy, minimize at every possible turn the point of 

human error or the intervention of human beings into a process 

and get technology to where that can be done. 

We cannot completely eliminate the possibility for human error. 

We can’t run as an organization of just computers. We are an organization of 28,000 strong, but to every extent we can possibly minimize the opportunity for error through technology, we will. 

As far as our training, part of that development will be on-time 

and just-in-time training with our new systems. We have set aside 

upwards of $20 million between our hardware implementation and 

rollout and our software implementation and rollout just for the 

training of the work force to make sure that they know what they 

are supposed to do and how they are supposed to get it done. 

The remedies for failing to do that are administrative, and they 

are also performance-related; someone doesn’t get a good report 

card on their performance. What we are trying to do, as we are reviewing now the findings of the Inspector General, is looking at the 

more serious allegations when it has to do with the issues that 

were raised in that report objectively by our Office of Professional 

Responsibility and take appropriate action. The director is prepared to look objectively at what the Inspector General has found, 

look at the details behind his work and take appropriate action on 

personnel where necessary. 

Senator GRASSLEY. My last point would be more of a statement 

than a question. I hope that I can ask you to convey to Director 

Mueller when you see him that I would expect to see him take 

some action against the worst individuals who made the worst mistakes in this McVeigh paper case which the Inspector General has 

investigated so thoroughly. 

I am going to assume the best and believe that he will take such 

action because he promised so quickly in January to force FBI officials to repay the Government for attending the retirement party 

of one of the retirees on the taxpayer’s dime. So I hope to see some 

swift action in this case as well. Everyone at the FBI certainly 

needs to know that personal accountability carries consequences. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. Again, I thank you for 

the amount of time you have spent on this, not just now but over 

the years, in fact, and I appreciate that. 

Especially now that we are down to the last few days of a session, if you look at the list of committees meeting, every one of us 

is sitting in about four different committees, and I appreciate the 

senior Senator from Iowa taking the time to come over here for 

this. 

We will keep the record open for questions from others. I will put 

some of my own questions in the record and I think we can finish 

up on just a couple I have. 

Mr. Hooten, in the IG report, as I read it, one of the recommendations is that the general counsel review the FBI’s policy 

25

regarding the destruction of documents while a case is pending. I 

have to imagine that you have warehouses full of documents, so 

you have got the management and other questions. 

But in the Corporate and Criminal Fraud Accountability Act, 

which I introduced to respond to the Enron-Arthur Andersen debacle—and I am not in any way tying that connection, but what made 

me start thinking about these document things is the Majority 

Leader and Senators Durbin, Harkin and myself are trying to close 

the loopholes on the destruction of documents by people in the financial services business, for the obvious reasons in this particular 

case, but for others. It makes me think that we want to make darn 

sure that we, the Government, are way above any question of reproach in the same area about document retention. 

Does the FBI have a clear policy on the destruction of documents 

while a case is pending? 

Mr. HOOTEN. Senator, I think I have been there nine or 10 weeks 

now, so I am learning to. 

Chairman LEAHY. Aren’t you glad to be here? 

Mr. HOOTEN. I am, sir. I am very honored to be here, quite 

frankly. 

There are a couple of parts to the answer to this question. The 

first one is we do indeed have a lot of things that we need to destroy that are trash, quite frankly, extra copies of things, things 

that relate to things that have been destroyed 50 years ago. We 

just don’t know what we have. I think you said that correctly. So 

that is one thing. We do need to get rid of that because that helps 

us be more efficient all the way through. 

But the other thing is, with the new systems we will employ, we 

will know what we have and we will know when we have extra copies. We will know the retention period of certain kinds of documents. We have over 300 different classifications of records. Each 

one has a different kind of retention period, and so some we keep 

for 10 years, some we keep for 30 years, and so on. Some we accession to the National Archives at the end of a certain period, some 

we keep forever, others we can destroy at a certain time. 

I am finding a variety of ways to manage that now. One of my 

roles is to try and get that down into a very simple, very manageable way by using technology. It is the only way we can do it. It 

is just too big a job to be able to really monitor, be able to destroy 

the things we legally must destroy at the times we need to, be able 

to keep those things we need to keep, and be able to know what 

we have got and what we don’t have. 

Chairman LEAHY. But do you agree with me that especially on 

pending cases that such a uniform policy is vitally important? 

Mr. HOOTEN. Absolutely, sir. 

Chairman LEAHY. I would feel that we must have something that 

both prosecutors and defense attorneys can say here is the rule; we 

know what is there and what it will be and we can go forward. 

Mr. Dies, if I could ask you—having Senator Grassley here 

makes me think about this. We have worked together to craft S. 

1974, the FBI Reform Act. We want the FBI director, whoever is 

the FBI director, to have the most effective law enforcement and 

counter-intelligence agency he can. 

26

Long after I am gone or you are gone, or anybody else, or currently here in the Senate or in the administration or anything else, 

we are still going to face terrorism threats. We are still going to 

have people that are going to break the law, and I think that we 

want to make sure in the 21st century that we are able to respond 

as well as we can to keep the highest standards of our own constitutional history, and so forth. 

Do you have a feeling or a position on S. 1974, the Leahy-Grassley Act? 

Mr. DIES. I believe it is under review by the Department of Justice. A large part of it isn’t in my field of expertise. The part of it 

that is that relates to information management—frankly, I thought 

you had both creative and constructive ideas in there, and I would 

hope you are successful in getting these enacted. 

Chairman LEAHY. Does anybody else want to add anything? Mr. 

Fine? 

Mr. FINE. I would like to add that the provision of your and Senator Grassley’s bill that codifies the jurisdiction of the Office of the 

Inspector General over the FBI and the DEA is an important provision and we support that. We believe that it should be in the law 

so that people know it will continue and that another Attorney 

General, whatever he or she decides, knows that it is the law that 

the Inspector General has full authority throughout the Department of Justice. We support that. 

Mr. CHIARADIO. Senator, in the other areas, again, the Department has not passed a comment on that. 

Chairman LEAHY. I understand. 

Mr. CHIARADIO. But we clearly have some things we are interested in in there that are very constructive, especially the SES disciplinary process, some things with our police force, and we are 

looking forward to seeing how the final Act comes out. 

Chairman LEAHY. Well, we will continue to work with you. Everybody has respect for the FBI and our Department of Justice. We 

just want it to work because the threats are lot different than 

when the FBI started or anything else. We are not dealing with 

bank robber who hops in a 1930 Ford and goes running down a 

back road and you hope that maybe you can get the word to the 

sheriff in the next county to block him. 

We are dealing with money, information and everything else 

being transmitted instantaneously around the world. Our threat is 

not so much today that we are going to have some army march 

against us or an air force fly against us. We are far too powerful 

for that. It is not going to happen. 

I worry a lot more about a dozen well-committed people, who 

could care less what the penalties because they attempt to die in 

the attempt anyway, who drive a dirty bomb down Pennsylvania 

Avenue or across the Triborough Bridge or into Century City, in 

Los Angeles, or anywhere else. That worries me a lot more, and we 

want to be able to catch them. And as we have found tragically 

enough in the last few years, terrorists can be home-grown or they 

can be from abroad. 

And during that time, we will still have all the fraud cases and 

the major criminal cases, and we just want to make it work. We 

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gress, and we feel no hesitation to give you new powers. But with 

that money and those new powers comes the requirement for us 

not only to do our oversight, but for you to use it the best way you 

can. The four of you have a great deal of respect on both sides of 

the aisle here from the members, and utilize that and keep us posted. 

I appreciate very much your being here, and we stand adjourned. 

[Whereupon, at 11:20 a.m., the committee was adjourned.] 

[Submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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(61)

REFORMING THE FBI IN THE 21ST CENTURY: 

THE LESSONS OF THE HANSSEN ESPIONAGE CASE 

TUESDAY, APRIL 9, 2002

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, Pursuant to notice, at 10 a.m., in room 628, 

Dirksen Senate Office Building, Hon. Patrick Leahy, Chairman of 

the Committee, presiding. 

Present: Senators Leahy, Grassley, DeWine, Hatch, Durbin, and 

Kyl. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning, Senator Grassley, and I have 

been told Senator Hatch will be joining us. 

This is just another in a series of hearings, I think each one, 

though, of some significance. Since last summer, we have been 

holding regular oversight hearings on the future of the FBI and 

sort of the idea of how they prepare for the challenges of the 21st 

century. Actually, today’s hearing is a stark reminder that some of 

the challenges facing the FBI are as old as the republic. We focus 

on the role of the FBI as a protector of the highly classified secrets 

that are really the crown jewels of our national security. 

We are, I think, extremely fortunate that Judge Webster is here 

today. He has a great deal of credibility on both sides of the aisle, 

credibility that is earned, which is, of course, the best kind. The report by the commission chaired by him demonstrates the vulnerability of the FBI in fulfilling its basic function of protecting our 

secrets. The American people depend more than ever on the FBI 

to protect it against terrorism, as we should and as the FBI knows 

we do, and that vulnerability has to end. 

It is this committee’s responsibility to ensure the FBI becomes as 

great as it can be. This series of FBI oversight hearings is an important part of the process, as is the legislation that Senator Grassley and I have introduced to implement many of the FBI reforms 

recommended by Judge Webster’s commission. 

The treason of former FBI Supervisory Special Agent Robert 

Hanssen was a shocking revelation, not only to all Americans, but 

also to the thousands of dedicated FBI agents and personnel who 

work around the clock and in far-flung places around the globe to 

make this country a safer place to live and raise our families. I 

62

know many of those men and women. I know how hard they work. 

I know the enormous sacrifices they go through, both themselves 

and their families, and I think how badly hurt they feel by what 

former Supervisory Special Agent Robert Hanssen did. 

I believe Attorney General Ashcroft was right to ask Judge Webster and other outside experts to evaluate the FBI’s security programs in light of the Hanssen espionage case. This report is as 

thorough as it is chilling. The findings are not academic. They have 

important implications for the FBI’s operations in the post-September 11 era. 

At least one of the significant deficiencies and security risks documented in the Webster commission report are the result of new 

policies adopted in response to the September 11 attacks. Unfortunately, these new policies were done without proper consultation 

with security experts and raise problems of their own. 

The commission’s findings and recommendations are crucial to 

the FBI’s efforts to fight terrorism and protect national security, as 

will be the recommendations of the skillful Justice Department Inspector General, who is investigating other aspects of the Hanssen 

matter for report later this year. 

The report is another wake-up call to the FBI, but I worry that 

when some of these wake-up calls come, the institutional reflex has 

been to hit the snooze button and that has to change. With the 

oversight series of hearings which we began last year, we want to 

help the FBI break the pattern. I blame, to some extent, the Congress. We have taken basically for decades a hands-off policy toward the FBI and not done the kind of oversight that we should 

do, which is why I began these oversight hearings within weeks of 

becoming chairman. Working with the Attorney General, who feels 

that we should be doing it, and the Director of the FBI, who feels 

the same, and others, this committee wants to help them ensure 

that the FBI learns from past mistakes and becomes all the Nation 

needs it to be. 

The Webster report exposes within the FBI what the report calls 

a pervasive inattention to security, which has been at best a low 

priority in recent years. It describes an FBI where computers so 

poorly protect sensitive material that the FBI’s own agents refuse 

to put important information on the FBI’s official system. It paints 

a picture of the FBI where employees are not adequately trained 

in basic document security practices and where there is little analysis of security breaches. 

The Webster commission found not one or two problems, but serious deficiencies in most security programs it analyzed within the 

Bureau, and that when compared with best practices within the intelligence community, ‘‘FBI security programs fall far short.’’ It is 

an FBI security system that does not work, and there are three key 

findings from that report that we have to look at. 

First, the commission found that Robert Hanssen’s activities 

merely brought to light broader and more systemic security problems at the FBI. For instance, Hanssen’s ability to mine the FBI’s 

computer system for national secrets for more than 20 years—20 

years—points to a serious weakness in information security. 

Hanssen himself said that any clerk in the Bureau could have done 

the same, and yet he was promoted to sensitive FBI positions 

63

where he was entrusted with our most sensitive national secrets 

during a time when he was a paid Soviet spy. That is a problem. 

His ability to copy highly sensitive material and take it in and out 

of the building, and nobody stopped him, nobody asked, and nobody 

followed up. 

Second, the commission found that the best way to protect information is not to shut down information flow completely, either 

within the FBI or from the FBI to outsiders. Indeed, that type of 

reaction is inimical both to a free society and to effective law enforcement. Instead, the Webster Commission found the FBI needs 

to do a better job with what is known as defense-in-depth security, 

find out what is truly sensitive and then protect that. 

Finally, and most disturbing, the commission found that the systemic problems which allowed Robert Hanssen to compromise national security for so long are not ancient history but still permeate. Most alarming to me, the commission found that decisions 

since September 11 have resulted in substantial sensitive source 

material from FISA surveillance being made generally accessible 

on the FBI’s computers to FBI personnel and then inadequately 

protected. 

This not only presents a security risk which has to be corrected 

‘‘as soon as possible,’’ but it is the kind of breach that could create 

some real constitutional problems. We want to be able to prosecute 

those who are involved in terrorism or playing terrorism against 

us. Judge Webster knows, a former judge and FBI Director who understands prosecutions as well as anybody in this room, when you 

get such a prosecution, you want it to stick. 

I am afraid that some of these mistakes could allow loopholes to 

be created where we could not do that and we have to fix that. We 

have to fix it. We have to make sure that if we are going to be prosecuting somebody, we can make it stick. We have to make sure 

that we have done enough so that when somebody has sensitive information, they are willing to give sensitive material and know 

that it is going to be kept that way. 

I am one of the ones that helped write the USA PATRIOT Act 

that gave the FBI new surveillance power and the Webster report 

raises some very serious concerns in my mind. 

I get the impression that part of the Hanssen case, there was a 

circling of the wagons. Unfortunately, if the enemy is inside the circle, that does not do you much good and we have got to get outside 

that circle and attack the problems. I think Director Mueller has 

already taken some steps in the right direction and I commend him 

for that. 

One common sense proposal in the report stands out, establish 

a system under which security lapses at any one particular agency 

can lead to improvement throughout the entire intelligence community and thus have a coherent national policy. In fact, the commission specifically cites a proposal for such national security program 

that I made 16 years ago when I was Vice Chairman of the Intelligence Committee and Judge Webster was FBI Director. We made 

that report after the horrendous year of the spy, with Walker, 

Whitworth, Howard, Pollard, Chin, and other spies detected here. 

So these are things that we should be looking at. 

64

We find that most departments and agencies other than the CIA 

did not implement the requirements that were adopted after the 

Ames case. Not much has been done since Hanssen’s arrest over 

a year ago. We do not go into the financial background as they 

should be. These are things that have to be improved. 

Back on the security issue, in 1997, the Justice Department Inspector General’s report on the Aldrich Ames spy case specifically 

warned the FBI needed to develop and maintain a better recordkeeping system for tracking top secret documents, some of the very 

things Mr. Hanssen later stole. I wonder if then FBI agent and 

Russian spy Hanssen read the IG report, he knew that he could go 

on just as he did before, and this would end up in a filing cabinet 

somewhere. We cannot do that. That is why Senator Grassley and 

I have introduced S. 1974 to change that. 

I have a much longer statement which I will place in the record, 

but those are some of my concerns. 

[The prepared statement of the Chairman appears as a submission for the record.] 

Chairman LEAHY. Senator Grassley, do you wish to say something? 

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. I think you said everything that can be said 

on the subject. I think we ought to take advantage of this opportunity to thank Judge Webster for his excellent and thorough report on these security problems at the FBI. The results of the commission’s review are almost painful and I do not think we need to 

belabor the revelations and problems it found because I think that 

we are all familiar with them by now. 

I would say that this is all the more disconcerting, though, because the FBI missed a number of pretty plain signs over the years 

that Robert Hanssen was up to no good. Just one of these instances 

should have sparked a very thorough investigation, the hacking 

software found in his computer. Yet, even as these instances piled 

up for more than a decade, no one could connect the dots. This cost 

the FBI and our nation tremendously. Hanssen was able to sell top 

secret information that damaged national security and led to the 

death of several people. 

I hope that the FBI works to adopt the recommendations in this 

report, and I know that the FBI reform bill that Senator Leahy and 

I have authored will address some of the security issues at the Bureau. I am happy to see the Webster report includes some of the 

bill’s provisions, and just one of them would be the establishment 

of a cadre of career security professionals. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Did you wish to say anything? 

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM 

THE STATE OF OHIO 

Senator DEWINE. Mr. Chairman, very briefly, I just want to 

thank you for holding this hearing, and Judge Webster, it is good 

65

to see you again. We appreciate your service to our country and 

your continued service with this very, very good report. 

Mr. Chairman, I am looking forward to Judge Webster’s testimony and the testimony of the other witnesses. I would just make 

one comment before we start, and that is that these recommendations will do no good if they are not implemented, and these recommendations will do no good if they are not funded. I think we 

kid ourselves if we did not realize that this was going to cost 

money. 

It seems to me that the followup, the logical followup to Judge 

Webster and his commission’s good work is for the FBI to very 

quickly do the cost analysis and to come to the U.S. Congress, come 

to the American people and be very, very candid and say, this is 

what it is going to cost. You make the decision as far as public policy, but we need to acknowledge that this is what the cost is going 

to be, because if we do not do that, we are not being honest with 

ourselves, and quite candidly, we are never going to be able to implement the recommendations that the Judge has made. 

So I thank the Judge, and Mr. Chairman, thank you. 

Chairman LEAHY. Thank you very much. 

Judge Webster, the floor is yours. 

STATEMENT OF HON. WILLIAM H. WEBSTER, MILBANK, 

TWEED, HADLEY AND MCCOY, LLP, WASHINGTON, D.C. 

Mr. WEBSTER. Thank you very much, Mr. Chairman. Thank you 

for the opportunity to testify before the committee on behalf of the 

Commission for the Review of FBI Security Programs. I am going 

to keep my opening remarks brief because the commission’s true 

statement is its report, which I have submitted and which you 

have. 

In March 2001, Attorney General John Ashcroft asked me to 

chair the commission at the request of FBI Director Freeh. The request came in the light of the newly discovered espionage of FBI 

Special Agent Robert Hanssen. Over the course of 22 years, 

Hanssen gave the Soviet Union and Russia vast quantities of national security information of incalculable value. 

The depth of Hanssen’s betrayal is shocking, but equally shocking is the ease with which he was able to steal classified material. 

Usually, Hanssen collected the material during his normal daily 

routine, gathering up classified information that crossed his desk 

or arose in conversation with colleagues. 

The commission concluded that internal security has often been 

a low priority at the Bureau, frequently trumped by operational 

needs. Security training has been almost nonexistent and agents 

usually take on security duties as collateral responsibilities with 

every incentive to return to investigative operations full time. 

Although it is impossible to eliminate intelligence efforts directed 

against our national security, the commission attempted to recommend changes in FBI security programs that will minimize the 

harm those who betray us can do. The changes should also shorten 

the time between the defection of these individuals and their detection. 

Most globally, the commission recommends that FBI security 

programs be consolidated in an Office of Security, reporting to the 

66

Director. In addition to changes in Bureau policy, we also recommend that a system be established whereby security lapses in 

a particular intelligence entity lead to improved security measures 

throughout the entire intelligence community. 

Mr. Chairman, I would like to acknowledge the support afforded 

by the Department of Justice and the unstinting cooperation of FBI 

Director Mueller and Bureau personnel at all levels. The commission also noted the many steps the Bureau has taken to improve 

security in the light of Hanssen’s treason. 

Finally, I would like to recognize the dedication of our professional staff and my colleagues on the commission, the Honorable 

Clifford Alexander, the Honorable Griffin Bell, the Honorable William Cohen, the Honorable Robert Fiske, the Honorable Thomas 

Foley, and the Honorable Carla Hills. 

At this point, Mr. Chairman, I would like to depart from my formal statement to add a few words of my own on a personal note 

and then I would be happy to respond to your questions. 

I am painfully aware that some of Robert Hanssen’s activities 

took place intermittently when I was Director of the FBI, and while 

I worked hard to strengthen its counterintelligence capabilities to 

detect and capture the spies of hostile countries targeted against 

us, in hindsight, I took our own internal security procedures for 

granted and I share in that institutional responsibility. In fact, I 

raised that issue when I was asked to assume this responsibility 

and was assured that my perspective from 9 years at the FBI and 

four-and-a-half years at CIA would be useful. 

So with the authority of the Attorney General, I asked six distinguished Americans of unquestionable probity to serve with me as 

commissioners, and they have joined me in the conclusions of this 

report. I wanted this to be an honest report, and I believe that we 

have produced one. 

This report, Mr. Chairman, is not intended to reflect adversely 

on the integrity and dedication of the many thousands of men and 

women who have served their country in the FBI. Indeed, its purpose is to disclose the security vulnerabilities that could have been 

far more devastating had not the spirit of fidelity, bravery, and integrity been alive and well for all but a minute number of employees who betrayed their trust. 

I think we owe it to the men and women of the FBI who serve 

today and will serve tomorrow to address these vulnerabilities in 

ways that will best protect our country and yet permit the FBI to 

function fully and effectively in its many responsibilities for the 

protection of us all. 

Now, Mr. Chairman, I would be happy to respond to your questions. 

Chairman LEAHY. Thank you very much, Judge Webster. Incidentally, that statement is also typical of your own candor and the 

credibility you have established in this town. 

Senator Hatch has joined us, and traditionally, I do want to give 

him an opportunity to make an opening statement. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Thank you, Mr. Chairman. 

67

I want to commend you, Judge Webster, for the excellent work 

you have done every day you have been in this town in so many 

ways and especially for your findings and for your work here. 

Again, everybody in this town knows that you are a person of immense integrity, and so are the others who have worked with you 

on this report. 

But over the course of the last year, we have become acutely 

aware of the damage that FBI Special Agent Robert Hanssen has 

done to our national security. Over 22 years, beginning in 1979 and 

continuing until his arrest in 2001, we are told that Hanssen gave 

the Soviet Union and Russia substantial amounts of vital information affecting the United States security. 

When Mr. Hanssen’s activities were discovered, we all questioned 

whether his ability to jeopardize our nation’s security was due to 

deficiencies in the FBI’s internal security. Commendably, Attorney 

General John Ashcroft and then-Director Louis Freeh responded 

quickly to the crisis by appointing Judge William Webster to lead 

a thorough and independent review of the FBI’s internal security 

programs. 

This commission has now completed its task, and it is apparent 

from its extensive, well-written report that the commission was 

very meticulous in its investigation. The Webster Commission’s 

comprehensive study will guide the FBI as it undertakes the critical task of transforming its internal security programs. 

I want to commend you, Judge Webster, the commissioners who 

served with you, and your staff for diligent work in compiling this 

report. I want to acknowledge in particular George Ellard, who was 

Senator Biden’s chief counsel on this committee for his service as 

general counsel on this commission. Our nation owes a debt of 

gratitude to Judge Webster and the members of his able team for 

their dedication and for their thorough and important review. 

Reforming a multi-faceted institution like the FBI is no easy 

task. As the Webster report points out, an inherent tension exists 

between the Bureau’s law enforcement function, which is grounded 

in shared information, and its intelligence function, which, by necessity, must be grounded in some degree of secrecy. Conflicts between operational and security objectives are common. The recommendations contained in the Webster report appear to strike a 

workable balance between these obviously competing objectives by 

advocating reforms that will increase the Bureau’s security without 

jeopardizing its efficiency in the law enforcement area. 

I am pleased to learn that under the leadership of Director 

Mueller, and immediately before him Director Freeh, the FBI has 

examined its security programs and has already incorporated many 

of the security reforms the Webster commission has recommended. 

Most significantly, the FBI has established an independent security 

division led by an assistant director whose role is to plan and implement the FBI’s security programs. As the Webster commission 

suggested, consolidating the FBI’s security functions into a central 

office will not only increase the Bureau’s focus on security matters, 

it will also ensure greater security coordination within the FBI. 

In addition, the FBI has improved the security of its information 

systems, instituted frequent polygraph examinations and access reviews, and developed a comprehensive security education awareVerDate 0ct 09 2002 13:30 Aug 06, 2003 Jkt 088571 PO 00000 Frm 00071 Fmt 6601 Sfmt 6601 C:\HEARINGS\88571.TXT SJUD4 PsN: CMORC
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ness and training program. So we look forward to the FBI continuing to incorporate all of the reforms recommended by the Webster commission, as the Bureau has indicated it will. 

I want to take a moment to commend Director Mueller and his 

team. Director Mueller has been on the job only 7 months, and during virtually his entire tenure, he has been coordinating the FBI’s 

response to the September 11 attacks. I am sure I am not alone 

in my admiration for the institutional reforms Director Mueller has 

already managed to accomplish under these trying conditions and 

circumstances. I believe, as a newly installed Director, Mr. Mueller 

should be allowed to implement his reforms, and as I know he is 

aware, to be accountable for the results. 

As I have said on countless other occasions, the FBI is one of the 

finest law enforcement agencies in the world. We have learned, 

however, we cannot let our respect for the FBI as an institution or 

for the many hard-working agents who are often asked to put their 

lives on the line blind us from the fact that the FBI has, on occasion, come up short of our expectations and that, indeed, is a serious matter. 

We must keep in mind, however, as the Webster commission has 

noted, the FBI is not the only governmental entity that has been 

betrayed by one of its trusted employees. The General Accounting 

Office has reported that between 1982 and 1999, 80 Federal Government and contractor employees were convicted of espionage. 

That is an astounding number. As the Webster commission observes, with the exception of the Coast Guard, since the 1930’s, 

every U.S. agency involved in national security has been penetrated by foreign agents. In this information-driven age, the FBI 

and all governmental entities must learn from their own mistakes 

and from those of one another to ensure that our nation’s security 

is not jeopardized and that it is protected. 

I applaud Director Mueller for the significant steps he has taken 

in his brief tenure to address the FBI’s security shortcomings. I 

have the utmost confidence that he will continue to capitalize on 

the Webster commission’s study to improve the Bureau’s security 

programs. In the months ahead, I look forward to hearing more 

about the FBI’s progress, and I am convinced that under the able 

leadership of Director Mueller, the FBI will remain the world’s 

standard in law enforcement. 

I want to pay special tribute to our committee chairman for holding these hearings and for showing the great interest that he has 

in these matters. This is important stuff. 

Again, Judge Webster, I just want to thank you on behalf of the 

American people for all the work you have done through all these 

years and for all the help that you have given this committee 

through all these years and for all of the great suggestions that you 

have made, not just in this report, but in the past, as well. You 

have been a real asset here in Washington and in our country and 

I just wanted to personally pay my own personal tribute to you. 

Mr. WEBSTER. Thank you very much, Senator. 

Senator HATCH. Thank you, Mr. Chairman. 

[The prepared statement of Senator Hatch appears as a submission for the record.] 

Chairman LEAHY. Thank you. 

69

Judge as you know, the Leahy-Grassley FBI Reform Act has a 

number of provisions on FBI security. One creates an FBI security 

career program. Another authorizes counterintelligence polygraph 

screening with, I think, pretty good safeguards against misuse. The 

third formalizes improved pay for the FBI police force that guards 

its buildings. The fourth requires a report to Congress on FBI’s 

computer security. And a fifth, and this is something that Senator 

Grassley has spent years emphasizing, provides enhanced whistleblower protection in the FBI. 

Would these provisions be helpful in carrying out the kind of recommendations you have made in your report? 

Mr. WEBSTER. Mr. Chairman, I believe that all of those suggestions which are incorporated in your bill offer promise for greater 

security and greater attention to security and greater understanding and training of security within the FBI. If I am not mistaken, I think there is also a passage asking the Inspector General 

of the Department to make a recommendation to you with respect 

to whether he or someone reporting to him should function as a 

special Inspector General for the FBI. I do not know the answer 

to that one, but I will follow that with a great deal of interest. 

Chairman LEAHY. Thank you. The USA PATRIOT Act gave the 

FBI new electronic surveillance powers, some very significant, 

many of which will sunset in 4 years. I raise this because obviously 

the question of whether they sunset or not is going to depend upon 

how they are utilized. I made clear, though, at the time of the passage that this committee is going to have to do some very extensive 

oversight of how these laws are carried out. 

Your report actually is one of the very first chances for an independent body to evaluate the FBI in the post-September 11 situation, and your report talks about the FBI’s decision to place highly 

sensitive FISA, or the Foreign Intelligence Surveillance Act, information on the computer system. This is a system that is generally, 

as I understand, accessible to all FBI personnel during the same 

time as they were telling Congress they want to be entrusted with 

more powers under FISA because the information would be kept so 

close held and so specific that we could allow an expansion in 

FISA, this very extraordinary type of wiretap and search authority, 

something that we have allowed only under very limited carve-out. 

The FBI asked for more of it, saying this would be kept very, 

very closely. And yet, we find that they have put a lot of that on 

the computer system that just about everybody in the FBI could 

get hold of. 

You gave them a poor grade in handling that. First, you say that 

the FBI’s action under September 11 presented a security risk to 

FISA information, which should be corrected as much as possible. 

And second, even though it was not the focus of your commission, 

which you said had a couple of circuit judges on it, former Attorney 

General, former U.S. Attorney, independent counsel. You are a 

former U.S. Attorney, circuit judge, FBI Director, and CIA Director. 

You criticize the FBI’s handling of FISA material because it raises 

potential issues of constitutional law and, therefore, could hinder 

the Bureau’s ability to construct cases that could be prosecuted. 

I have a lot of prosecutors that tell me, and I happen to agree 

with them, that we want to get these terrorists. We want to prosVerDate 0ct 09 2002 13:30 Aug 06, 2003 Jkt 088571 PO 00000 Frm 00073 Fmt 6601 Sfmt 6601 C:\HEARINGS\88571.TXT SJUD4 PsN: CMORC
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ecute them. We want to convict them. But we do not want, because 

the procedures run foul, to see the case get thrown out. 

So what has been the reaction of the rest of the intelligence community to the FBI posting of FISA information in this kind of a 

data base? 

Mr. WEBSTER. Mr. Chairman, I cannot really speak for the reactions of the other members of the community other than my understanding that those who were interviewed expressed some concern 

and dismay with what happened. 

I am going to speculate now, which is always a dangerous thing, 

but I think in the period immediately following September 11, with 

the desire to try to come to grips as soon as possible with what was 

behind all of this and the people who are responsible and what 

other plans there might be, there was an effort to get information 

out, including FISA information, without the people with the best 

of motives having fully consulted the security people for the possible consequences of putting that material into the automated case 

system where it was available to everyone. 

The FISA statute has been extraordinarily useful on behalf of the 

national security and intelligence community and for prosecutions, 

when appropriate. I have to confess that it was passed just about 

the time I arrived in Washington and Attorney General Bell wanted me to come up and talk to you in support of it and I was not 

sure that this statute was necessary. I thought there was an implied authority in the President to protect our national security by 

ordering electronic surveillance of those who are suspected of espionage or of acting in a hostile way to the United States. 

I have since been convinced it was a great statute. It is serving 

a very useful purpose. But it needs to be protected. That information contains affidavits, the whole process of getting an authority 

to conduct a national security warrant, especially after the Keith 

opinion required warrants in the case of domestic security cases in 

1972. The ‘‘t’’s have got to be crossed and there has to be great care 

and a lot of very sensitive information is contained in the material 

that goes into the Justice Department, as you said, and is presented to this special court for authorization. But then to find it 

suddenly turned loose and put in the huge file where it is available 

to other people represents some serious potential problems. 

I think that my own conclusion is that had we had a security division in place, had we brought them to the table on this issue and 

listened to their advice, we would have done it differently. 

Chairman LEAHY. In fact, that is really my point. If you had the 

security division, they could say, look, we want to do this. We want 

to get this information out as quickly as possible. What are our parameters? How do we do it? That is the important part to me, because everybody wanted to get any other terrorist who might be in 

this country, or potentially in this country. We had a devastating 

attack. We wanted to protect ourselves against it. We wanted to get 

the people responsible. Obviously, some were dead, but we wanted 

to get anybody else involved with that. We knew that there had to 

be more. Just instinctively, you knew that we faced more attacks 

and that there were more people available, so you wanted to do 

that, but you want to do it in such a way to protect your assets 

and you protect your ability to get a conviction. 

71

If we were in a closed session, there are cases—I am sure you 

can think of some, and we would probably be thinking of some of 

the same ones—where FISA has been extraordinarily helpful to us, 

but in getting the information, if that is made public, it would be 

very obvious just where it was we got that information and that 

door would close so fast. 

Mr. WEBSTER. That is right. 

Chairman LEAHY. We would take forever to replace it. For example, suppose Robert Hanssen had been able to access FISA information right from the computer on his desk. I think it would be pretty 

obvious to everybody there would be an enormous amount of damage he could have done. 

So I think the idea of having—and I agree with you—the idea of 

having a security division or procedure where you could just go and 

say, look, we have got a lot of information here, what can we use, 

what can we make accessible, and what—do we have to follow certain procedures in who is going to have access, I agree with you. 

Mr. WEBSTER. Mr. Chairman, implied in what you have been 

saying and what I think I have been trying to say is that sometimes, people who make these authorizations do not really understand what putting something into the ACS system means and that 

is where security comes in. 

Chairman LEAHY. And I do not question the motives. Everybody 

wanted to get—we all had the same motives. I think the Nation is 

probably as united as any time I have seen it in public life. It was 

united to find who did this and to get them. But for those who are 

going to be prosecuted, they want cases that can stand up. For 

those who are going to have to continue to mine sources that we 

had for the coming years to protect us, they did not want those 

sources to go away. That is what we have to be protective of. 

Your report recommends the FBI submit an initial report and a 

report annually for 3 years on how they plan to address and fix the 

security programs. The House and the Senate Judiciary Committees have primary oversight jurisdiction over the FBI in general 

and over criminal espionage cases, such as the Hanssen case in 

particular. Should we be getting that report that you speak of, for 

the FBI submitting an initial report and a report annually for 3 

years on how they plan to address and fix these security programs? 

Are the House and Senate Judiciary Committees the appropriate 

places to receive that report? 

Mr. WEBSTER. I think so. We may have said to the intelligence 

community and intelligence committees, and I think that is a matter between this committee, which has worked so long with the 

FBI, to work it out. 

Chairman LEAHY. They should have it, too, but——

Mr. WEBSTER. We think it is important that the Congress be in 

the loop here, and Senator DeWine said something we may come 

back to, but understanding what is needed and the costs can be 

very important as the use of electronic filing and electronic techniques becomes more the order of the day and we are seeing less 

documents and more things put in a computer system that perhaps 

in the past has addressed security after the fact. You should be 

part of the process of making sure that the money is available, that 

the FBI is not starving for modern technology, which is, as you 

72

know, changing every two or 3 years. If they are changing every 

10 years, it is not going to work. 

Chairman LEAHY. I have young agents telling me that they are 

looking at equipment that was antiquated when they were in grade 

school or high school——

Mr. WEBSTER. That is right. 

The CHAIRMAN [continuing]. Being used there, and they just almost have to go back and learn how to use it, and if it is that antiquated, it does them no good. 

My last question is this. You talk about that the FBI does not 

have a viable program for reporting security incidents to headquarters. Now, on paper, they are supposed to report these, but we 

found some very chilling stories from whistleblowers that people 

are afraid to report security lapses because they are afraid it is 

going to hurt their career. I know one employee reported a security 

violation and ended up basically getting hounded out of the job for 

it. We have to have better whistleblower protection, do we not? 

Mr. WEBSTER. I think so. I think the whistleblower protection 

that you provided for will be very useful in answering that problem. 

Chairman LEAHY. Thank you. 

Senator Hatch? 

Senator HATCH. Thank you, Mr. Chairman. 

Judge Webster, we are all too aware of the circumstances, or 

should I say the numerous and significant security breaches that 

have occurred in almost every government agency. You have recommended in your report and again here today the creation of a 

system that will enable officials in one intelligence agency to learn 

from the mistakes of the others and the successes of the others, as 

well. 

I share your view that such a system is critical and long overdue, 

but would you elaborate a little bit on such a system, on how such 

a system will operate and who would participate in such a system 

and how would their findings be communicated to the relevant and 

appropriate agencies? 

Mr. WEBSTER. Senator Hatch, we were purposely general in our 

recommendations there. We see a very clear need to share experiences so that there can be a top, a standard level of quality, and 

whether that is through the Director of Central Intelligence or 

some other vehicle, we did not attempt to decide in our recommendations. 

I am reminded that shortly after I undertook this responsibility, 

representatives of the Central Intelligence Agency came down to 

tell me about a number of the things that they were doing because 

I knew that among other things we would have to confront is 

whether or not the FBI needed to have a vetting procedure which, 

from time to time, would check on the people who were in sensitive 

positions to be sure that they were still everything that we expect 

of special agents of the FBI. The CIA had a long ongoing polygraph 

vetting program. The FBI did not. It did not have any when I was 

there. Director Freeh put in place a process for polygraphing prospective new entrants to the FBI, but there was no vetting process. 

So I wanted to know more about it, and when they came down 

to talk to me, I thought it was interesting that they said, ‘‘We do 

73

not want you to make the same mistakes we made,’’ and they had 

reference, I am sure, and then they said so, to the 300-odd agents 

that were put on hold, because ghost special officers with their careers on hold because of problems in the polygraph examinations 

that they took. They recommended that we have a more discreet, 

refined kind of vetting process that the agents could be comfortable 

about, that would know was necessary, but they were acknowledging they have made mistakes and here are some of them. 

I think, in answer to your question, there has to be a forum 

where those issues at the security level can be acknowledged and 

this is what we did about it, or another agency can say, here is 

what we recommend that you do because we had the same experience. It is as simple as that. 

Senator HATCH. Thank you. As I stated, I am most encouraged 

by the steps that the FBI has already taken to implement some 

of——

Mr. WEBSTER. Yes, they have. 

Senator HATCH [continuing]. Some of the reforms recommended 

in your commission’s report, and I am pleased to learn that the FBI 

intends to institute all of the commission’s recommendations or 

suggested reforms. Recognizing that the implementation process 

will require both resources and time, are there any particular areas 

of improvement that the FBI should accord top priority? 

Mr. WEBSTER. I suppose each of us would have probably a different priority list. My first priority is to see that security division 

come together and be effective, and I would hope that they would 

have direct access to the Director. At this stage, I believe that they 

have access to an executive assistant director. In order to signal 

the importance of the division, I think they should have access to 

the Director, and out of that security division can come a number 

of other programs. 

I put training at a high level because there really is not much 

training in security outside of the National Security Division, and 

I think that is a process that is easy to build into the ongoing 

training programs. 

Looking at specifics, the information systems that are in the FBI, 

which are in the process of overhaul, are very important to the future of these programs and the future of the FBI’s ability to function well. I would hope that some of the problems we have identified—and incidentally, this report refers to some 22 appendices 

which are still classified and they go into great depth about some 

of the technical problems. Some really are over my head, but I understand the problem. I would hope that in the information security area, continued attention be given to building in and responding to these security issues. 

I am concerned that Robert Hanssen was able to make copies of 

about half of what he was able to deliver to the Russians and the 

Soviets without anybody noticing or caring about it and he was 

able to walk out the door with them. He was also able to walk out 

the door with individual documents. But I believe that it is a smaller point but very important that copies of classified information are 

just as classified as the original documents and the procedures 

have to be worked out to limit the ability of people to wander over 

74

to a copy machine and make several copies and not be accountable 

for them. So there is a certain level of accountability there. 

Financial disclosure should be implemented in the FBI. They are 

not burdensome. We have all done this. I think you all have done 

them. I know I did them as a government officer and they provide 

a vehicle for looking for anything that would suggest that someone 

is engaging in activities or receiving compensation from some unknown source. Those are part of the vetting process. 

The polygraph is important. The FBI’s program is more ambitious and aggressive than the one we suggested, but we suggested 

what we thought was a minimum which could be easily accommodated to a changing culture and a changing realization that polygraphs are not that intrusive. I took one when I was Director of 

the FBI and I took another one as Director of Central Intelligence 

and I understand why they are necessary. I understand their restrictions. But I think that is important to build it in. 

I also believe that we should not act on just a polygraph alone. 

We should act on the polygraph plus—plus other evidence of aberrational behavior, that we should not take people offline and subject their careers to perils because of some blip in the polygraph 

process. 

I suppose that if I had my druthers, I would be trying to see 

what more could be done to enhance the reliability and capability 

of the polygraph. I do not see much evidence that a lot of money 

has been spent to improve something that has been around for 20 

to 30 years. Since it does have problem areas, I would say let us 

try to address them, but not give up an important tool. 

The vetting process is a means not only of detecting activity but 

of deterring people from the temptation to sell out their country 

when they know that the chances of their being detected more than 

simply on entry into the agency are there. 

So those are some of the things. I know I have neglected other 

things. Document security, personnel security, information security, and structural solidarity are key to it. But I have always felt 

that when we have a problem, as we did in the Keith case, which 

resulted in the 98 agents who had been engaged in ‘‘black bag’’ jobs 

under what they thought were lawful procedures back in the 

1970’s, came from not properly informing the agents themselves 

and educating them. Neither the Department nor the FBI told 

them about the Supreme Court decision other than to close all the 

following case due to a Supreme Court decision. 

Since that time, it seems to me training is important. If you tell 

special agents what the problem is and what is expected of them, 

they are the most responsive people on earth in doing their duty 

as they understand their duty. They need to understand and be 

trained in the importance of security. 

Senator HATCH. Thank you so much. I appreciate your service. 

Chairman LEAHY. Thank you. 

Senator Durbin of Illinois, and then we will go to Senator Grassley. 

75

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you very much, Mr. Chairman, and 

thank you very much for joining us today, Judge Webster. 

I think one of the things that struck me as I got into this issue 

was the whole question of computer technology at the FBI. I will 

have to say that as a result of an oversight hearing, what was it, 

the first in 10 years or more with this committee that Chairman 

Leahy sponsored, I was really just amazed at how bad it is—how 

bad it was. 

We brought up Mr. Dies, who was in the process of trying to update the computer technology at the FBI, and his report to us was 

really startling in terms of the inadequacy of the computer resources at the agency, and he identified for us some obvious things 

which, as a person in the private sector, he was stunned to find, 

and that is that there is no e-mail at the FBI—at least, there was 

not as of a few months ago, no access to the Internet. The whole 

security aspect of this thing was obviously open to compromise, as 

Hanssen proved over and over again. 

Now, I know that there is an effort underway, Trilogy, to make 

a dramatic change in this, and it is my understanding that some 

offices have already started to update the equipment and such. But 

as you got into this, what was your findings in terms of the adequacy of computer resources in addition to the security aspect? For 

us to criticize the INS for sending out a visa to someone who was 

a terrorist on September 11 is one thing, but for the FBI to be unable to communicate even within its own agency, let alone to the 

INS and other agencies, about dangerous individuals raises an 

even larger question. What did you find? 

Mr. WEBSTER. As I said before, Senator, a good part of the appendices deal with the shortcomings and we have identified those 

on a classified basis, so if I speak in general terms to you, I would 

say that, primarily, the computer automation of data programs 

have been under-financed for years. There is so much evolution in 

the computer world today that it is strange to me to think that 

when companies are getting new equipment and new procedures 

every two or 3 years, that the FBI would go for 10 years trying to 

get along, limp along in an area where data was coming in at them 

from all directions and from other agencies sharing information 

with them and they did not have a proper place to take care of it. 

The Trilogy program was an effort to kind of pull themselves out 

of the swamp and to deal with what they had, to add to what they 

already had, and to look for what they needed in the future, but 

I am not satisfied that that is going to be enough. I think there 

needs to be a Congressional partnership here in making sure that 

they have the funds and that those funds are spent wisely and 

well. Put security right in there at the beginning of the architecture. 

Senator DURBIN. Let me just make this a matter of record. I 

agree with you, and after September 11, I kind of picked this as 

my favorite project. Let us try to update the computer technology 

at the FBI. I contacted Director Mueller as well as the Attorney 

General’s office, the Vice President, and Chairman Leahy spoke directly to the President about this. We were prepared to create some 

76

waiver situations so that they could obtain updated technology 

there and not be hamstrung by our procurement process. We were 

stopped by the OMB. The OMB says, no, no, we do not want to see 

that happen. There are ways to do this. There are ways to accomplish it. 

Now, this was 6 months ago, and I said at the time, all right, 

prove it. Come in with the technology. Do it on a timely basis. 

Bring this kind of information technology and the security associated with it that might stop people like Hanssen in the future. 

Well, I have not heard back, but I will tell you a number of us 

are very frustrated that what we thought was a good faith effort 

to give to the FBI the tools and weapons they need was thwarted 

by another Federal agency of this administration. We cannot expect 

to win the war on terrorism fighting with muskets, and when we 

do not have computer technology at the FBI up to the job of worldwide and global terrorism so that it can be a proactive force and 

security in place so that we can stop the likes of a Hanssen in the 

future, then, frankly, we are going to diminish our capability to 

protect America. 

Mr. WEBSTER. I could not agree with you more, Senator. One of 

the areas that has been near and dear to my heart, in response to 

Senator Hatch’s question, I guess I did not really mention it, but 

in the computer world, it would seem to me that we need more trip 

wires and that they have the ability to do that, trip wires that 

would identify someone who is off the reservation. 

We used to have, back in my primordial days, we used to have 

librarians who would recognize the fact that someone was asking 

for a file, who was asking for something outside their range of business and would report it. We need electronic librarians and ones 

that not necessarily just go to the case agent. They have that capability. A case agent can look and say, ‘‘Who has been looking in my 

case file?’’ But it would go to a part of the security apparatus who 

could quietly take steps to find out, was there something going on 

here? 

Senator DURBIN. Did that not happen in the Hanssen case, 

where he, in fact, compromised the password of one of his superiors 

and gave as his excuse that he was setting up some new technology 

and the superior did not even report it, really did not——

Mr. WEBSTER. Something like that. There were a lot of capabilities that Hanssen had identified that he could do. Really, he was 

not a hacker because he did not need to hack. He had access to the 

crown jewels and there was no vetting process to see whether or 

not that was—but these electronic trip wires, it seems to me, appropriately place watching guard over the more sensitive files, 

would be useful and important. They cost money, but I think that 

they are important. 

Senator DURBIN. Well, when you consider Hanssen’s damage to 

America, it is certainly worth the investment to put these in place. 

Do you feel, had they been in place, that we might have detected 

his activity at an earlier point? 

Mr. WEBSTER. I think that is true to a degree. Unfortunately, I 

call him my 500-year flood. He was positioned unlike most every 

other special agent. That was his job. He was in an area where he 

had almost unlimited access. Therefore, in his case, I think the 

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likelihood of detecting it sooner would have been through a vetting 

process. 

Senator DURBIN. Let me ask you this. Do you feel the culture at 

the FBI can change? 

Mr. WEBSTER. Oh, yes, I do. 

Senator DURBIN. Do you think the mentality, that J. Edgar Hoover-Elliott Ness mentality of the past, the fortress mentality, do not 

look inside, this is our kingdom, do you think it is open now to 

change along the lines that we have been discussing? 

Mr. WEBSTER. I certainly do. I think we have all been chastened 

by this experience. It is a matter of training. It is a matter of understanding. And then, OK, that is it, let us make it work. That 

has been my experience throughout my 9 years. 

Senator DURBIN. I think the same of the new Director and I hope 

he can achieve that. 

Thank you, Mr. Chairman, and thank you, Judge Webster. 

Chairman LEAHY. Thank you. I might note, Judge Webster, Senator Durbin has strongly pushed for a long time for not only increased funding, but better computers. He has done it with the 

Vice President. He has done it with the President. He has done it 

with Director Mueller and Attorney General Ashcroft. And, of 

course, he is right. Bob Dies, who has come here and testified, has 

emphasized that, the necessity to improve it. 

The way of just checking it, a lot of places have a thing that if 

you use a pass key to go into a room, it logs in that it was you 

and the time and everything else. It is relatively easy to do the 

same. We do it on our computers and everything else, who went in 

there, and then have the people with appropriate security constantly checking who went where when. 

The vast majority of people are very honest within the FBI. They 

would not be there if they were not honest and dedicated. But it 

is like having the two warehouses full of goods. One has got locks 

on it and an alarm system and one has unlocked doors. The crime 

is the same to break into either one of them and steal things, but 

you know which one is going to get broken into. 

Senator Grassley, again, a person who has spent an enormous 

amount of time on this subject, and I appreciate your taking the 

time from your other committees to be here today. 

Senator GRASSLEY. Thank you very much. 

Once again, we thank you for your report, and I think your report makes very clear that we are never going to be able to eliminate all espionage attempts against the United States but that we 

ought to have as a goal, quite obviously, to make it more difficult 

to spy and easier to catch the spies. 

Now, Hanssen was a spy at the FBI for 20 years. Aldrich Ames 

was one for many years at the CIA. During these periods of time, 

directors came and went at both of these agencies. You even had 

your tenure during this time. Yet, it took so long to detect them. 

Based on your expertise and your background in intelligence 

matters, is there anything outside of your report that we can do to 

detect these spies earlier? I ask that question in the chance that 

not every idea you considered is in your written report. 

Mr. WEBSTER. Senator, one thing I would say on the side, because it is not technically an issue of security, which was our 

78

charge here, I think it is ironic that almost every spy that we have 

found, both at CIA and at the FBI, has been found with the aid 

of recruited sources of our own in other hostile intelligence agencies 

who have given us a lead that we have a problem. The numbers 

that were listed by the chairman, not only the names that were 

listed by the chairman, almost all of them, I think perhaps all of 

them were found because we had an aggressive program of human 

intelligence recruiting assets on the other side. 

We do not want to neglect that just by trying to lock up our 

equipment. We have got to continue that capability and build on 

it. You will not always get very much information. In Pilton’s case, 

or Howard’s, we called him ‘‘Bob,’’ but we went from a series of 

things with little bits and pieces to find out who that person was. 

Pilton was 9 years later that we got the information, but Howard 

earlier, and so on. So I would say, let us not neglect our human 

intelligence development in the interest of security. 

Vetting, to me, and by that I mean periodic assessments. The 

background investigations must be taken seriously. I have had the 

sense over the years that sometimes because of the high level of 

trust that existed between special agents, they were more perfunctory than they were real. I go back to what President Reagan used 

to say, ‘‘Trust, but verify.’’ If you do not, you are going to have long 

periods of time. 

Hanssen never took a polygraph. He was never really subjected 

to a serious background investigation or a financial disclosure. 

Somewhat the same in the case of Ames, and they were so backlogged over there that I think there were anomalies that were not 

detected in the course of his examinations. 

So we have to do things in the more sensitive areas of the FBI 

to be sure that the people on board are still on board and the kind 

of people we thought they were. 

Historically, sadly to say, as I look back on the record of espionage in the United States, treason, these were volunteers. I had a 

conversation with a KGB general and a man who was his former 

residente in Moscow after the end of the cold war and wanted to 

know what did we think about their capabilities against us, and I 

said, well, your trade craft was excellent, but you should not take 

a lot of credit for recruiting because in almost every case that I 

know of, the American was the one who picked up the phone and 

made the contact or wrote a letter or took the initiative. 

We have to know when someone is of that frame of mind before 

he has had an opportunity to do damage, or at least to catch him 

as soon as he tries it. We can watch, and we do watch with our 

matrix systems very closely hostile intelligence service activities in 

the United States to see if they make contact, but that will not 

work in every case. We have to have a vetting process to which officers and agents willingly submit, and so it must not be demeaning. 

It must be a logical way of protecting ourselves, just as drug testing is the order of the day for people who deal in drugs, and that 

is not intrusive, in my opinion, as long as it is kept that way. People understand its necessity. 

That leads me to one of perhaps my biggest question marks in 

our report that I think has to be thought through, and that is this. 

Not everything in the FBI—in fact, the majority of what is done 

79

in the FBI does not involve sensitive national security issues. If we 

were to impose the same level of security on the entire operation 

of the FBI, we would be in danger of slowing this locomotive down 

to an unacceptable level. 

And so there has to be a way of looking at classified information 

that relates to our national security that is different than classified 

information that is maybe called ‘‘secret’’ but is purely law enforcement in nature, has nothing to do with our national security issues. 

And we have to have a way of building a circle around those who 

deal in our most sensitive things and they have to be willing, for 

the trust that is given to them, to accept some additional intrusion 

on their private life. 

But to do that routinely for everyone in the FBI, I think represents a cost and impediment. I wish I had a quick and easy formula for this, but I think it is there. I think it can be drawn and 

I think that the computer systems and the access and the need-toknow issues can be focused primarily upon those who have the access to this kind of information we have been talking about this 

morning. 

Senator GRASSLEY. Let me followup on the last point you made. 

Your report revealed that after the Paris attack last year, senior 

FBI officials lifted restrictions on access to information in the Bureau’s computer systems. Some of this information was FISA-related, which obviously is highly sensitive. I am sympathetic to the 

need to share information, especially during times like this, but my 

primary concern here is that some of this information might betray 

the sources or methods used to obtain it. In your opinion, how 

much is at risk if FISA information is shared? 

Mr. WEBSTER. Senator, I think there is substantial risk of damage here. The affidavits that are offered in support of FISA applications for electronic surveillance can disclose the names of the 

sources of that information, many of whom are valued assets of 

this country and whose identity, if disclosed, could result in personal damage or death to them and loss of important sources of information to us. 

I just do not think security was sufficiently at the table when 

that decision was made. There was a rush to get information out 

and I think that perhaps people who made the judgment did not 

fully understand the ACS system and what that meant in terms of 

easy access and availability of information, and this information 

was allowed to float up into it. I am sure that in the future, the 

first question will be what can we put out for everyone that will 

not damage our national security or our important sources and our 

important methods. 

Senator GRASSLEY. My last question is maybe a little too cynical, 

but do you think government agencies are destined to only fix internal security after a spy is found? 

Mr. WEBSTER. That seems to be the wake-up call, historically. 

This is a unique opportunity, I think, to build security into the 

automated systems, to build it into training, to make sure that the 

work is valued and respected, and we have not talked enough—I 

think one of the Senators this morning, members of the committee, 

talked about providing a career path in security for the FBI. I 

think that is necessary, but I would also say that security goes out 

80

into a lot of field offices where they may not be able to support a 

large security presence but there has got to be an effort made to 

have that work valued. 

If people see it as an impediment to their career or are asked to 

do it on a collateral duty basis or for a time-being basis, they are 

apt to think, if they do not value the work and appreciate its importance, they will think that I am being shunted off to something 

and it is going to affect my career and I do not want to do it. 

So we need people who, just as in the Justice Department, who 

provide outstanding services in security. We need to have people in 

the FBI who see that as their career and also are able to train and 

make aware other special agents of the importance of their work. 

It needs to be respected, and I think that the words ‘‘pervasive inattention’’ is a fairly accurate assessment of what it has been up 

to now, and I include myself in that category. It needs more attention and that is through training and awareness and respect for 

the career possibilities that good security work can produce. 

Senator GRASSLEY. Thank you. Thank you, Mr. Chairman. 

Chairman LEAHY. Senator DeWine? 

Senator DEWINE. Chairman, thank you. 

Judge your commission report, I think, raises an interesting 

question, and that is can a law enforcement culture, which is really 

grounded in the sharing of information, coexist with an intelligence 

culture, which we all know is really grounded in secrecy, not sharing anything and compartmentalizing everything. 

The British do not seem to think so. They, of course, have Scotland Yard domestic law enforcement, but they have split the internal and the external security between M5 and M6. Do you think 

we should consider doing that with the FBI, in other words, splitting the law enforcement and the intelligence functions of the FBI? 

Mr. WEBSTER. Well, I think it is always fair to consider it, but 

my own pretty well developed judgment on it is that that would not 

be a good idea, and if I may explain. We have field offices all over 

this country. Most of them are dedicated to primary law enforcement. But from time to time, as in New Mexico, for example, for 

Edward Lee Howard and others, you are going to find national security issues. 

I think it is important that the National Intelligence Division be 

sufficiently staffed to be able to deal with problems throughout the 

country. If you started building a whole separate organization, I 

suspect that we would be starved somewhere along the line, in unable to fund it or the administration would not support that kind 

of funding. 

Canada tried it. It has not done well in Canada. When it was 

part of the RCMP, I think there was far much more ability to find 

things, track things all throughout Canada, and I would go slow on 

that. 

But you came very close to what I was talking about earlier. I 

would find a way of building a wall around the information and the 

data that is collected for national security purposes so that that information was subject to the highest level of security and that you 

did not attempt to impose that on the entire FBI, where we had 

a very substantial risk of people who say, this is nonsense. This is 

slowing us down. We do not need this. 

81

We need security throughout the Bureau, but if we can find a 

way to flag the kind of information that we are concerned about, 

the kind that Robert Hanssen was delivering to the Russians, inside the Bureau, I think that is the answer. 

Senator DEWINE. I think that is an excellent answer. Basically, 

you are saying we need some way internally to flag it, to wall it 

off so that it does not create problems on both sides of the wall. 

Mr. WEBSTER. Exactly. 

Senator DEWINE. I would like for you to put your hat back on 

as former Director of CIA. As I understand it, the DCI has the authority over the rules and regulations regarding classified information, whether that information is being held within the CIA or the 

FBI. What has been your experience as far as how often or how 

well the DCI actually utilizes that authority and is there a way to 

improve that? 

Mr. WEBSTER. My impression is that they are using that authority more effectively today than I did when I was Director of the 

CIA. There is a tendency—we have all gone through periods—I had 

five-and-a-half years in the Navy in World War II and the Korean 

War and had responsibility for taking care of classified information 

aboard ship. After a while, it tends to be burdensome, particularly 

if you are busy. It is important that those rules be understood by 

people who can then interpret them to the people within whose 

agencies they work and that they be as clear as possible and that 

they not be so technically difficult that the special agent on the 

street cannot understand them and, correspondingly, will not try to 

understand them. 

Senator DEWINE. But you believe that the DCI is utilizing that 

authority more today than historically? 

Mr. WEBSTER. That is my impression, because we are in a kind 

of war right now and I think it is important that that be done. 

Senator DEWINE. Just post-September 11, though? 

Mr. WEBSTER. Well, I think it was going on before that. The outreach to the community has been stronger. There have been, as you 

know, the counterintelligence function that I started in 1988 is 

headed by a representative of the FBI so that the FBI has its role 

in this process, as well. But the agency has always had a big security effort and the DCI orders, I believe they are called, or DCI 

rules are coming out more regularly now than I remember them. 

Senator DEWINE. Judge, I want to conclude by getting back to 

something I said in my opening statement, and that is that the 

next step, I believe, is for the Bureau to do a cost analysis of your 

report. When you were doing your report, how much did you factor 

in cost and were you cognizant of that? You had a lot of experts 

there. I know you did not do a dollar-for-dollar cost analysis or 

item-by-item cost analysis, but that had to be somewhere in the 

back of your mind. 

Mr. WEBSTER. It was, and most of the appendices—not most, but 

a substantial number of the appendices have to do with not only 

the capability but what is involved in maintaining them. I do not 

know that we have any specific costs. We have some clear statements from people we interviewed and our own conclusions that 

the FBI has been woefully starved in this area. 

82

There has not been a real voice for change. The FBI is one of the 

most thrifty organizations I have encountered in American government. They try to get along with what they have, but they need 

a lot more than they have been given and they have not really 

made their case loud enough for people to understand how badly 

they have needed it. It has been a kind of ‘‘get the truck working 

again,’’ as I think we say in the report. 

Senator DEWINE. I think your report makes that case loud and 

clear and your testimony does, as well. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Kyl? 

Senator KYL. Thank you, Mr. Chairman. I would like to put my 

statement in the record, if I could. 

I would just ask one question of Judge Webster so that we can 

move on to the next panel. I have been watching on television and 

I have read your statement and part of the report. 

Turning from the Hanssen case to another that has concerned 

me, the Wen Ho Lee case, that is a situation in which virtually 

every governmental agency involved—in fact, I think I can say 

every governmental agency involved—made significant mistakes. 

The cumulative effect of which was to prevent an adequate investigation and prosecution, in my view, and the FBI was a part of 

that. 

One of the concerns with respect to that case was at least as far 

a I am concerned, the disconnect between the field office and main 

FBI headquarters. The inability to share information back and 

forth because of something, I do not know whether it is directives, 

it is tradition, or what, and I would like your comments on the recommendations with respect to integrating better the information at 

the national headquarters with information in the field offices and 

working together as a team on investigations. Rather than the situation which seems to me to have pertained, which is the local field 

offices doing their thing, in many cases, unconnected to the national office, and both of them know something about something 

but neither knows what the other knows or knows that they know 

it, and, therefore, investigations are compromised. Could you comment on that, please? 

Mr. WEBSTER. Senator Kyl, I agree with that observation. I 

served on the National Commission on Science and Security from 

the Energy Department following the Wen Ho Lee case and we saw 

enormous examples of differences in culture and attitudes and between scientists and law enforcement officers and others trying to 

come to grips with what was important in that case. 

I have a better example, I think, of what you are talking about 

in some of the post-9/11 period, when people in New York were reluctant to put their information into the ACS system because they 

knew that then it was available to anybody. Whatever the motivation, besides good security, that might have been there, teamwork, 

the term you use, is vitally important if these things are going to 

succeed, and sometimes getting the information to headquarters 

will make sure that headquarters recognizes something that is bigger than or more involved than the local field office has seen. But 

83

the field office has got to trust the system at headquarters in order 

to make sure it does not hold things back for whatever reason. 

Senator KYL. Could you amplify with respect to your commission 

report what you recommend in that regard to bridge this gap, to 

overcome this problem? 

Mr. WEBSTER. Well, it was a rather complicated thing that I do 

not think we have in the FBI because they had to deal with the 

scientists’ desire to know and share and the security effort to protect our national resources. There, they came to a kind of risk assessment. How much risk is there? That has some value in the law 

enforcement in the sense that if you rate the risk unreasonably 

high for everything, people will stop paying attention to it and that 

is sometimes a problem, as well, when people say that is nonsense. 

In fact, some journalists suspect in the military that things get 

classified just to cover mistakes. I do not think that is really the 

case in many cases, but there have been enough situations to warrant that kind of feeling about it. 

There has to be a rational approach to how people share secret, 

top secret, information and how they make sure that people who 

have an interest in it get a chance to see it and draw that judgment. Some of the problems with the FBI, there are a number of 

cases which have attracted criticism that have involved one person 

knowing but not telling or not sharing and, consequently, something not getting done. 

Another example over at CIA—I do not mean to criticize them, 

but the whole issue of the bombing of the Chinese embassy, if you 

recall, in Central Europe. Some people knew that that was a Chinese embassy and not something else, but the people making the 

maps and the targeting did not know. 

The dilemma that needs to be addressed, and it can be addressed, is how do we keep from giving it to more people than need 

to know but be sure that people who have a rational need to know 

do, in fact, get it. 

Senator KYL. Well, is the answer not to necessarily have headquarters put out a bulletin to all district offices or field offices saying, ‘‘look, we have a problem in this regard,’’ but rather to insist 

on knowing what is bubbling up from down below? Going back to 

the Wen Ho Lee case, again, the national headquarters had certain 

things it was trying to look for. The local office, the field office in 

Albuquerque was doing certain things and they were not talking to 

each other and part of the problem with that whole investigation 

was that lack of connection. 

Are there recommendations and are there changes being made to 

address that problem, and if so, what are they? Do you know? 

Mr. WEBSTER. Well, I think that the appendices, which are classified, do contain that level of recommendation. We think that in 

terms of security as distinguished from investigations, we have addressed it in the recommendation for formation of a security division. The National Security Division has a responsibility for making sure that on national security issues, local field offices are appraised of what is going on and expected to return information in 

kind for analytical purposes. 

On pure law enforcement, I would hope that there are not too 

many cases where headquarters does not know about significant 

84

developments. I do not think we want to run law enforcement from 

headquarters, but we have to have, as you say, that interchange of 

information. The big problem is this enormous amount of information flowing into the automated case system without any real control over what happens to it, who sees it, its reliability, and so 

forth. 

Senator KYL. I want to thank you. Thank you, Mr. Chairman, for 

holding the hearing and the attention you have given to this, as 

well as Senator Grassley, and Judge Webster, again, for your continued great public service. We appreciate it very, very much and 

look forward to visiting with you more on this. 

Mr. WEBSTER. Thank you, Senator. 

Chairman LEAHY. Thank you, Senator Kyl. Before we started, I 

told Judge Webster that every time he tries to retire from public 

service, we do not let him. We keep bringing him back. 

In fact, the day before your report was made public, the FBI had 

also issued a report about what they have done to improve security. 

Were you able to compare what they have done and what you have 

recommended? 

Mr. WEBSTER. I was. I think, in general, they have moved on and 

listed the things they have already accomplished. Throughout our 

investigation, we shared what we were learning and where we 

were going and no attempt to hold back. This was a serious thing 

that the FBI needed to get moving on. We wanted to have a report 

that was in depth. We looked at all the facts and here they are, 

and in some cases, I anticipated there would be no surprises and 

there were not. 

They have moved even more aggressively on the polygraph route. 

They have indicated in some of their materials things that are not 

accomplished but planned, things that are coming forward. I think 

a substantial number of those are contained in our report and I am 

glad to see there is very little air between us on what needs to be 

done. The important thing is that the Bureau move on it. 

Chairman LEAHY. And I think that is important. I realize you 

were not asked to go through the FBI’s counterintelligence investigation, for example, in the Hanssen case, but just taking what is 

in the press, I mean, you talk about places where there were warning signs that should have come up. After Hanssen began spying 

for the Russians, his wife’s brother raised concerns about his sudden affluence. Another FBI agent told the security office that he 

thought Hanssen’s wife was getting money from her family. 

As brought up by several here, Hanssen hacked into his boss’s 

computer and then claimed he was just testing the system. I do not 

have anything classified on my computer. Several of us have to 

handle classified material all the time, and if we do, we go to the 

special committee room where that is. But if I found somebody 

hacked into my computer in my office, they would have one heck 

of an explanation they would have to do. 

He was caught using a password break-in program. He was suspended for a week because of a physical encounter with an FBI employee. He took a stripper girlfriend with him on an inspection trip 

to the FBI office in Hong Kong. He was known to persistently seek 

information beyond his normal need to know. He had official 

knowledge of the Felix Block espionage investigation before Block 

85

was somehow tipped off. An internal FBI study recommended looking for Russian penetration inside the FBI, but that was dismissed. 

Both the FBI and CIA focused their investigation on the CIA rather than on FBI personnel with similar access. 

There are a lot of clanging bells. It is easy in retrospect to go 

back and say, oh, my gosh, look at this thread. It is like reading 

the mystery novel and in the last paragraph, somebody sits up and 

says, but do you not remember that, and that pulls it all together. 

But, unfortunately, it is not just a novel you put down and you pay 

$25 for it. It is something that we are ultimately going to pay hundreds of millions of dollars for. 

I do not mean that as a question, Judge, but I think it is very 

wise what you have done, and in the electronic age, where you do 

not have a file that is locked up in a cabinet somewhere, you have 

a file that is suddenly on every single laptop in the Bureau if not 

handled correctly, I think it is very important. 

I appreciate very much your responses on the issues of FISA, 

which I think is a major one of concern to prosecutors and others, 

and I think you have given very good warning to the things that 

should be done. We all want to catch a terrorist, but we also want 

to make sure that we can catch them next year, too, and not just 

now, and that we can stop them in the future. 

Senator Hatch, unless you have something further, or anybody 

else on the committee——

Senator HATCH. I think we have kept the Judge long enough. 

Chairman LEAHY. I am glad this committee does not have to do 

the normal billing from Milbank, Tweed, and I say that somewhat 

facetiously, Judge, but just again, the country benefits by your willingness to take on these kinds of activities and I thank you very 

much. 

Mr. WEBSTER. Thank you, Mr. Chairman. If I may say, I am very 

grateful to the commission members and to our staff. They did a 

wonderful job. All of us felt it was a privilege and an honor to be 

helpful and we hope we have been. 

Chairman LEAHY. Thank you. 

[The prepared statement of Mr. Webster appears as a submission 

for the record.] 

Chairman LEAHY. We will take a 2-minute recess while they 

reset the table. 

[Recess.] 

Chairman LEAHY. Thank you very much. First, I will put the 

Webster Commission report in the record. It will be included as 

part of our record, something I should have done before. 

In this panel, Mr. Szady and Mr. Senser will be testifying. Mr. 

Watson will be here. We are going to go to 5-minute rounds. 

I would note Senator Kyl raised a totally appropriate question. 

I believe that Mr. Szady is going to testify that he is centralizing 

all the espionage cases in one section, which should help address 

the problems that Senator Kyl raised, appropriately raised, about 

the Wen Ho Lee case. 

Mr. Szady, you are on, and I appreciate you also being here. You 

have heard all of Judge Webster’s testimony. Certainly, if there is 

something you want to add to that, feel free. 

86

I would also note that, following our normal procedure, you all 

will see the transcripts of your testimony. If there are items you 

feel you should have added or want to elaborate on, we will make 

provisions so you can do that. This is to be helpful not only to the 

Senate Judiciary Committee, but also hopefully to help the whole 

Senate. 

Mr. Szady, go ahead, sir. 

STATEMENT OF DAVID SZADY, ASSISTANT DIRECTOR, COUNTERINTELLIGENCE DIVISION, FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. SZADY. Mr. Chairman, if I could, on a personal note, I doubt 

if many people in here know where Winooski, Vermont, is, but it 

is a pleasure to testify before a fellow Michaelman. 

Chairman LEAHY. What year, Mr. Szady? 

Mr. SZADY. Nineteen-sixty-six. 

Chairman LEAHY. You are just a few——

Mr. SZADY. Just a few years after you. 

Chairman LEAHY. You are a youngster. Thank you. 

Mr. SZADY. Mr. Chairman and other members of the committee, 

I would like to express my appreciation to you for inviting me to 

share my thoughts and provide with you an update on changes we 

are making to the counterintelligence program at the Federal Bureau of Investigation. 

I am pleased to be appearing jointly today with Kenneth Senser, 

Assistant Director of the FBI’s recently established Security Division. By necessity, the cooperation between our two divisions is 

complementary and seamless. Our Director is committed to protecting the full range of U.S. national security interests and has 

made counterintelligence, along with counterterrorism, and prevention his highest priorities. 

Because the world has changed so dramatically, the FBI is making significant changes to its counterintelligence program. Our end 

goal is to more effectively and efficiently detect, prevent, and disrupt hostile foreign intelligence activity directed against the United 

States and its interests. The FBI appreciates your support as we 

continue to implement these changes across our organizations. 

First, I would like to provide a very brief assessment of the characteristics of foreign intelligence threats of the 21st century, for 

they provide a basis for understanding our new national, centrally 

managed counterintelligence strategy. 

The United States faces an intelligence threat that is far more 

complex than it has ever been. The threat is increasingly asymmetrical as it seeks to exploit the areas where there is a perception of 

weakness within U.S. national security approach and organization. 

Traditional notions of counterintelligence that focus on hostile foreign intelligence services targeting classified national defense information simply do not reflect the realities of today’s more complex 

international structure. 

Foreign targeting of the elements of national power, including 

our vibrant national economic and commercial interests, continues 

to evolve. While traditional adversaries were limited to centrally 

controlled national intelligence services, today’s adversaries include 

not only these traditional services, but also non-traditional and 

87

non-state actors who operate from decentralized organizations. 

Moreover, the techniques and methodologies used to target classified and sensitive and commercially valuable proprietary information march forward with the advance of technology. 

This new environment and the uncertain future that accompanies it present the FBI with new challenges. The FBI’s role as 

the leader of the nation’s counterintelligence efforts requires that 

we understand all dimensions of the intelligence threats facing the 

Nation and match them with new, innovative investigative and 

operational strategies. The FBI must continually assess and measure its performance against ever-evolving threats found in these 

new and different environments. 

The constant parade of new technologies, the vulnerabilities created by them, the extraordinary value of commercial information, 

and the globalization of everything are but a few examples. The 

FBI must focus its resources on those actors that constitute the 

most significant intelligence threats facing the nation, wherever 

that might come from, and in all of these new arenas. 

In response to the increasingly complex intelligence threat environment, the FBI is taking measures that reorient its counterintelligence strategy, prioritize intelligence threats, and make the requisite organization and managerial changes to ensure U.S. national 

security interests are protected. The following initiatives are underway. 

We recognize that in order to mitigate the intelligence threats 

our country is now facing, we must continually redesign our counterintelligence program. Historically, when the threat lines were 

more clearly drawn, counterintelligence at the FBI was largely decentralized, with field divisions setting local priorities and assigning resources accordingly. 

To effectively recognize and counter the extremely diverse intelligence threats now evolving, a new more centralized and nationally directed, focused, and prioritized program is more effective. By 

centralizing our program, we will ensure the ability of the FBI to 

be more proactive and predictive in protecting the critical national 

assets of the country. Centralization cements accountability regarding counterintelligence program direction, control, and leadership. 

Moreover, a centralized counterintelligence program facilitates the 

FBI’s cooperative and collaborative interaction with other members 

of the United States intelligence community. The counterintelligence environment must be transparent. 

Our national strategy will be totally integrated with the Office 

of the National Counterintelligence Executive to ensure that our efforts are focused on policy-driven priorities and that we are positioned to protect identified critical national assets. Our efforts will 

also be seamless with the CIA to ensure that our counterintelligence efforts extend worldwide. 

As part of this nationally directed strategy, I have undertaken a 

comprehensive strategic planning effort that is providing the FBI 

with the framework in which to prioritize and address intelligence 

threats. This framework is based on community-wide analysis and 

direction and recognizes that there can never be unlimited resources, so we must be focused on the greatest threats. This will 

88

better position the FBI for the future by changing our performance 

expectations, management practices and processes, and work force. 

The central elements of this initiative are development of clear 

strategic objectives and operational priorities in support of those 

objectives; a highly trained and specialized counterintelligence 

work force with a management team that reinforces counterintelligence as a specialized priority career within the FBI; a much 

stronger operational component within the Counterintelligence Division, to include a stronger program management; an ongoing system of accountability that clearly defines responsibility for all elements of counterintelligence; an enhanced communication strategy 

that is more effectively communicating counterintelligence policy, 

plans, and priorities; and greatly enhanced analytical support that 

relies more extensively on a highly specialized discipline is necessary. 

Accepting responsibility to prevent and disrupt foreign intelligence threats and espionage from threatening U.S. national security requires the Counterintelligence Division to adopt a more 

proactive posture. One organizational change that I have made consistent with this goal is the establishment of a Counterespionage 

Section within the Counterintelligence Division from existing base 

resources. This new section is responsible for managing all of our 

major espionage investigations. The section evaluates and 

prioritizes all existing espionage cases. 

In order to meet the challenges ahead of us, I am ensuring that 

the most important resources the Counterintelligence Division has, 

its human resources, have the appropriate tools available to effectively implement our mission. While the FBI has historically provided counterintelligence training to new special agents, we now 

need a systematic approach to a comprehensive counterintelligence 

training regimen applicable throughout the agent’s career. We are 

studying this training program and will implement it shortly. 

Agents and analysts assigned to work counterintelligence should 

have a systematic and integrated training program. 

Analysis, as I said, is another area of my focus. Counterintelligence analysis is central to our program, to ongoing investigations 

and operations. I think today’s challenges require much greater reliance on and bringing in much greater numbers of outside subject 

matter experts, also, to bolster our efforts in understanding. 

Information management and intelligence sharing are also two 

areas that we are improving, in concert with the directives established by Director Mueller regarding these subjects. The technology 

being put in place at the FBI will vastly increase our capability to 

maximize the value of what we know, and even more basic, to 

know what we know. These new technologies will be the thread 

that ties the community together. 

In summary, counterintelligence and counterterrorism are the 

FBI’s leading priorities. If we are to successfully mitigate the asymmetrical intelligence threats facing us today and in the future, a 

new approach, new ways of thinking, and better technology are required. We are in the process of redesigning the counterintelligence 

program at the FBI. It will be much more centralized to ensure the 

program is nationally directed, prioritized, and that appropriate 

management and accountability measures are in place. The CounVerDate 0ct 09 2002 13:30 Aug 06, 2003 Jkt 088571 PO 00000 Frm 00092 Fmt 6601 Sfmt 6601 C:\HEARINGS\88571.TXT SJUD4 PsN: CMORC
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terintelligence Division will continue to work closely with the Security Division to ensure that our activities are complementary and 

that the FBI is able to comprehensively address any internal 

threats. 

Through our ongoing comprehensive strategic planning process, 

we are ensuring that our counterintelligence priorities, performance, expectation, and management practices are designed in a 

manner that is responsive to ensuring our national objectives. We 

are working to not only ensure that counterintelligence personnel 

have the best possible tools to conduct their work, but also to enhance the training and experience among counterintelligence personnel and to bolster counterintelligence as a specialized and vital 

career within the FBI. Thank you. 

[The prepared statement of Mr. Szady appears as a submission 

for the record.] 

Chairman LEAHY. Mr. Senser? 

STATEMENT OF KENNETH H. SENSER, ASSISTANT DIRECTOR, 

SECURITY DIVISION, FEDERAL BUREAU OF INVESTIGATION, 

DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. SENSER. Good morning, Chairman Leahy, Senator DeWine. 

Hopefully, I will not be forced to tell you what I was doing in 1966. 

I spoke to you initially in July——

Chairman LEAHY. You piqued my curiosity, but no, you will not 

be forced to tell. 

Mr. SENSER. Thank you. I spoke to you initially in July of last 

year to discuss our assessment of the FBI’s security program and 

the need to transform this program into an operation capable of addressing the diverse and formidable threats facing the Bureau. I 

am very pleased to be back in front of you today to give you our 

update on the progress in that matter, but also to commend Judge 

Webster for the extraordinarily thorough and helpful product that 

he and his commission provided. 

As I discussed in my testimony last year and as highlighted in 

Judge Webster’s report, the security program at the FBI is in need 

of critical reform. Suffice it to say that every element of the security program requires improvement in some form or another. On a 

positive note, we have made substantial progress in the last year, 

but make no mistake that an incredible amount of work is still required. Very smart people are going to need to take time to carefully formulate and implement these reforms. 

I also testified during my July testimony that prior to Hanssen’s 

arrest, the FBI identified seven areas that required critical and immediate focus. Thanks to Judge Webster, we have received recommendations that provide us with specific and sound guidance in 

each of these critical focus areas. 

Within my statement for the record, we identify in some detail 

the specific accomplishments we have made, as well as those initiatives we plan on making. I have described these in somewhat of a 

generic format in order to avoid giving our adversaries a more detailed plan of our countermeasures, but I am prepared to provide 

the committee with a more substantive briefing in a closed session. 

Immediately after Hanssen’s arrest, the FBI initiated some interim security enhancements that we had discussed in July, specifiVerDate 0ct 09 2002 13:30 Aug 06, 2003 Jkt 088571 PO 00000 Frm 00093 Fmt 6601 Sfmt 6601 C:\HEARINGS\88571.TXT SJUD4 PsN: CMORC
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cally, the limited expansion of the polygraph program, the use of 

more extensive auditing in our automated case support system of 

those persons accessing the most sensitive FBI files, the establishment of an enhanced reinvestigation analysis capability, and some 

more generic enhancements designed to facilitate a change in the 

Bureau’s culture relative to security, and also to elevate the role 

of security at the FBI. 

Since July, we have made a number of other noteworthy changes, 

to include, for example, in December of 2001, establishment of the 

Security Division, for the first time in the history of the FBI, having somebody responsible as the Director of Security operating at 

an assistant director level and with access to Director Mueller in 

order to bring forward issues of concern. 

We have also initiated the comprehensive review of security policy and have begun to build a foundation for a comprehensive security education, awareness, and training program. We have taken 

significant steps in building a robust information assurance program, hopefully to address many of the issues cited by Judge Webster in his report. And we have also improved the vetting that is 

done to establish trustworthiness, both initially and on a continuing basis for our employees. Finally, we have taken steps to 

more tightly control the information that is present in hard copy 

documents at the FBI. 

In summary, we intend to deliver not just a series of manuals 

and policies, but to effect a dramatic adjustment in the security 

culture at the FBI. Continuing security education, widespread security awareness, and making security an accepted and normal 

part of everyday business is our challenge. 

As I have already mentioned, this is a long-term effort. We will 

continue to carefully examine those recommendations supplied by 

Judge Webster and his commission and will carefully study the 

classified appendices that he referenced. In addition, we will also 

review the Department of Justice Hanssen study that we expect 

later this year in an attempt to evaluate their recommendations 

and ultimately build a stronger action plan. 

Mr. Chairman, Senator DeWine, I appreciate this committee’s 

support and the support of your colleagues that you have provided 

to the FBI so that we are able to faithfully discharge our duty and 

do what we can to protect the interests of this great nation. Thank 

you. 

Chairman LEAHY. Thank you very much. 

[The prepared statement of Mr. Senser appears as a submission 

for the record.] 

Chairman LEAHY. I have had, actually, indirectly some discussion of this, but I will go directly and I will ask this of Mr. Watson. 

After September 11, we realized there is a lot of material, odd documents and even some electronic surveillances that had not been 

translated. I had asked both Attorney General Ashcroft and Director Mueller to go back and review things that were available to us 

and to them prior to September 11, not to destroy anything that 

just because it may have been sent may have been overlooked. But 

the Director even went on TV, issued a plea for translators. Some 

of these languages, you find in kind of a small community here in 

this country, a fairly close-knit community often, who speak the 

91

language. Some may even have ties to foreign governments. So if 

you are in a crunch, you have got to hire them on the one hand. 

On the other hand, you have an obvious security concern. Judge 

Webster mentioned this in his report, on page 58. 

What is the FBI now doing to check and do security and monitoring to make sure that we do not, in our need to get these translators, we do not get somebody that could create a bigger problem 

than the solution they might give us? 

STATEMENT OF DALE WATSON, EXECUTIVE ASSISTANT DIRECTOR FOR COUNTERTERRORISM/COUNTERINTELLIGENCE, 

FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF 

JUSTICE, WASHINGTON, D.C. 

Mr. WATSON. Senator, that question, I guess the answer lies into 

the system that we have in place to make sure, one, the need to 

get the information translated, as you well pointed out, as well as 

the security balance, and there is a definite security procedure that 

individuals go through in order to be hired as a translator. There 

are some conditions where we can pick up contract employees that 

are not going to be permanent FBI employees but still have the security risk. There is always a balance there of being able to get the 

information that we have collected translated and weigh out those 

considerations with individuals that are going to translate that material. 

Since 9/11, we have made some progress in that area and that 

is definitely a priority, not only with us, I know with all the other 

intelligence communities and we are working closely with the security folks to make sure that we do not bring someone in that translates it and steals it at the same time. 

Chairman LEAHY. The Webster report talked about the self-policing that can be done on these things. FBI employers or contractors, 

if they learn of a violation, just come forward and report it. But 

then you get some concerns where that is seen as whistleblowing 

and it actually gets discouraged. Do you feel there is more they can 

be doing to encourage people, if they think that there is a security 

violation, to come forward and report it? 

Mr. WATSON. Yes, sir, and we have—which the Director is fully 

aware of and fully supports, that employees, if they detect inappropriate activity, security violations or unethical activity, that they 

have an obligation to report that, and there is a mechanism set up 

to report that. I know you and Senator Grassley are concerned 

about that, is that being done, but I can say that with my experience in the Bureau and I think with Mr. Szady’s, I mean, I am not 

sure of any instance where anybody would look the other way on 

a security violation or a matter of ethics or a criminal violation 

that should not be reported. 

Chairman LEAHY. We may want to followup on that privately——

Mr. WATSON. OK, sir. 

Chairman LEAHY [continuing]. But let me ask Mr. Senser, you 

referred to the commission’s report as a road map for the FBI, but 

you also say some of the identified vulnerabilities are more critical 

than others. Is the FBI going to accept everything that is in the 

report or what is going to happen? 

92

Mr. SENSER. When I mentioned that some of these vulnerabilities 

were more critical than others, I was referring to a prioritization 

that has taken place in the sense of trying to address those gaps 

that could pose the most damage immediately, for example, the 

gaps in our information system security, where large elements of 

the population may have access to very sensitive information, and 

certainly establishment of this robust information assurance program is at the top of our list as one of the initiatives that we are 

trying to move forward very quickly. 

In addition, from a prioritization standpoint, the education and 

awareness of our employees, as Judge Webster mentioned, making 

sure that people understand at the beginning what the proper way 

is to handle materials and how sensitive they are. I also believe 

that in most cases, people want to do the right thing and if they 

know what that right thing is and understand it, then they will be 

more apt to comply. 

Then in addition to that, this security violation process and making sure, again, from education and awareness, that people understand where to go with their concerns and that there is a mechanism for centrally addressing them, tracking them, and taking action on them. 

Chairman LEAHY. Mr. Watson, I am not going to ask Mr. Senser 

this because he cannot give himself a promotion, but Judge Webster and the commission would like to give him one. They would 

like to recommend elevating the position of the Security Director 

to a status that reports directly to the FBI Director. Is that a recommendation being considered by you? 

Mr. WATSON. Yes, sir, and I think that has been proposed as the 

Security Division, and I would like to say that one of the things 

in the commission report was making security a priority. I can tell 

you from the operational side that we view that as a critical piece, 

in view of the Hanssen matter, and we fully support that and as 

a full partner and taking considerations in for security as well as 

what we are trying to do operationally. 

Chairman LEAHY. I am going to give you a couple of questions 

for the record, but I want to make sure that both Senator Grassley 

and Senator DeWine have a chance to ask questions. I have some 

other questions for all of you. 

One area, and you have heard us talk about it a great deal here, 

is the question of material that may be FISA-related material. I 

cannot underscore how much attention I want given to this. We 

gave the FBI some very expanded powers, but assuming that with 

those, that there are some very, very strict ways of keeping track 

of the information. FISA has been a very helpful tool in going after 

terrorists, but I cannot think of anything that would more quickly 

destroy the ability to use FISA than to have the information spread 

all over and into places where, on the one hand, our own constitutional safeguards should not go, but then second, from our own intelligence security places it should not go because so many times 

it is going to be sources and methods. Without going into specific 

cases, if we were back in a secure room, you and I could come up 

with some of the exact same ones, you cannot let these go out. 

So I will have a specific question on it, but please, if you are 

doing any debriefing back at the home office, you can tell them that 

93

I am very concerned, and I know several others are, on this FISA 

issue. We want to help. We want FISA to work. But, boy, the rules 

have got to be followed. 

Mr. WATSON. Senator, we are committed to following the rules 

and we understand the sensitivity of FISA information and how to 

protect that and that is a vital piece of our investigative efforts, 

and we thank you for the PATRIOT Act and what you allowed to 

do. Just let me reassure you that we are not wholesalingly throwing out FISA information. 

Chairman LEAHY. I understand. I just want to make sure that 

we do not do it in such a way that it, in effect, is sitting there in 

the box where people can take it, I mean the electronic box, 

and——

Mr. WATSON. We understand. 

Chairman LEAHY. No, I am not suggesting you are, but you and 

I could both look very quickly at some of this FISA material and 

know, just looking at it, it should not go any further. But if it is 

out the door, there are others who might not look at it that closely. 

Mr. WATSON. That is understood. 

Chairman LEAHY. Senator Grassley? 

Senator GRASSLEY. I thank you very much. Mr. Senser, the first 

couple of questions I am going to ask you deal with the timing of 

your changes which just came out, and then I want to ask you 

about some of the things that you are planning to do that are not 

done yet. This is from your remarks. 

The question that is most on my mind is why it took until just 

last week for the FBI to announce so many reforms and changes 

for better security. The announcement, Wednesday of last week, 

was timed 1 day before the release of the Webster report. 

I have two issues. First, can you or anybody else here from the 

FBI answer why the Bureau did not learn from the mistakes of 

other agencies with spies, and why could the FBI not have years 

ago put in security measures across the board like other agencies 

did, like expanded polygraphs, looking at employee finances, and 

better document security. In fact, in regard to employee finances, 

I believe that Mr. Hanssen himself said if they had been put in 

place, that would have caught him. So that is my first question. 

Mr. SENSER. I think your question is a very good one relative to 

why the Bureau did not adopt the recommendations that were 

made as part of the Ames case or Pitts or the other prior espionage 

cases, and obviously not being an FBI employee, I cannot specifically answer that question. 

I can tell you that I have gone back and listed those recommendations that came out in those previous cases and mapped 

the initiatives that we are planning and have accomplished against 

those recommendations to ensure, in fact, that we are going to take 

those into consideration. In fact, I have had a matrix put together, 

not just of the former espionage recommendations, but of all recommendations that have come out, both on internal studies and external studies of which we are aware, in order to ensure that no 

recommendation has gone unreviewed. 

In terms of the timing of the enhancements, as I mentioned, 

shortly after Hanssen’s arrest, former Director Freeh initiated a 

number of interim security improvements, and essentially, we have 

94

not stopped since then. This has been a continuing process of making changes as we can, things that were within our purview, and 

steps to improve the security posture. As Judge Webster mentioned, we have worked very closely with the commission and his 

team in order to ensure that we were going in the right direction 

and that the things we were contemplating and proposing were not 

off track. So we have been working very carefully to try to keep 

this on a parallel track, not just waiting until the commission 

issued their report, but trying to move ahead with reforms and enhancements as the commission did its work. 

Senator GRASSLEY. Then could I ask the purpose of the press 

conference last week, if all this was going on parallel to the report? 

I guess I asked the question. What was the purpose of the press 

conference, then? 

Mr. SENSER. The purpose was to simply make a positive statement as to the steps the Bureau was taking relative to security. 

Senator GRASSLEY. I guess I see it as kind of a preemptive strike, 

but let me go on to the next point, and this is in regard to the number of security measures that are under the planned part of your 

prepared remarks from last week, called ‘‘Transforming the FBI’s 

Security Program.’’ Could you tell me how many of these planned 

security changes were planned before the FBI received the Webster 

report? 

Mr. SENSER. I would say—I would like to say all of them. I would 

say 99 percent of them. As I say, this is—I like to think of this as 

a joint effort between the commission and myself. Obviously, they 

did not share with me the nature of their recommendations per se, 

but we have had a very close relationship over the 13 months of 

their work and bounced lots of ideas off each other in terms of 

where we were headed. 

Many of these initiatives that we have proposed are included in 

our fiscal year 2003 budget submission in order to try to obtain the 

funding and the resource levels needed to actually effect these 

changes. So most of this has been on the record for some time. 

Senator GRASSLEY. The Webster report paints a scary picture of 

the FBI where almost anyone can access almost any kind of information on the computer system, where insiders can get right out 

of a building with top secret papers, and where no one could connect the dots on Robert Hanssen’s spying. I realize that many of 

the security reforms will take some time to take effect and really 

make a difference and others are still on the drawing board, but 

when we see this, we fear that the Bureau’s security measures are 

not yet in place to catch a spy. We learned from the Hanssen case. 

Now, that is not saying that there is a spy in the FBI because I 

do not know that there is, but there is real concern about a gap 

until security is up to speed. 

How certain are you about the FBI’s internal security right now? 

Would a spy be detected, do you think, with the things that have 

taken place? 

Mr. SENSER. I think we are still at substantial risk relative to 

what we have to do, and again, this is going to be a period of time 

that we are going to have to build expertise and put the infrastructure in place to really support the kind of effort that is needed to 

successfully bring the matter under control. I would say certainly 

95

that with a lot of the things we have done, such as the expansion 

of the polygraph program, that there is a greater possibility that 

if there were somebody operating inside the FBI today, that there 

is a better chance of detecting them than there was a year ago. But 

certainly, I cannot say with certainty that that person would be detected. 

Senator GRASSLEY. Mr. Chairman, I think what I am going to do 

is submit two questions for Mr. Senser for answer in writing. 

Chairman LEAHY. Thank you. In fact, I will keep the record open 

for at least 24 hours so that member Senators who have conflicts 

today can submit questions. 

Senator DeWine? 

Senator DEWINE. Thank you, Mr. Chairman. 

Mr. Senser, the Webster Commission report characterizes the 

Bureau’s existing computer system, and I quote, as ‘‘an old car broken down in a ditch.’’ Congress allocated $379 million in November 

2000 for the FBI’s Trilogy initiative, but the commission says this 

sum will merely get the old car out of the ditch, not provide the 

Bureau with state-of-the-art information systems. How much more 

funding do you think is needed to provide the FBI with the stateof-the-art information systems? 

Mr. SENSER. Well, I think there are——

Senator DEWINE. Short-term and long-term? 

Mr. SENSER. Right. I think there are two issues there. One is the 

issue of this state-of-the-art information system, which I would 

have to defer to Bob Dies relative to business needs from an information technology standpoint. 

The second part of that question, though, deals with this robust 

information assurance program. The FBI received as part of our 

counterterrorism supplemental roughly $56.7 million to begin the 

process of building an information assurance program. We are currently working with the appropriations staff to deliver a—well, actually, we have delivered, but we are working with them on the 

spending plan for that money so that it can be released and that 

we can move forward on that. 

That is the initial investment in information assurance, but it is 

going to take outyear investment, as well, both from the standpoint 

of maintaining the improvements we have made as well as adding 

some additional improvements, and there are moneys in the fiscal 

year 2003 intelligence request for some capabilities that will assist 

us greatly in building the kind of program that could have potentially detected a Hanssen, the kinds of things such as auditing, real 

time intrusion detection capabilities, and so on. 

So, again, we have a very ambitious plan on the drawing board 

and it is going to take support into the out years to make that happen. 

Senator DEWINE. It seems to me that the burden is on the FBI 

to tell this Congress and to tell the American people what it is 

going to take, and that is obviously a continuing burden, once we 

are beyond the publicity of the report and today’s headlines, because these systems obviously are not built overnight. They are not 

maintained overnight. They are not improved overnight. So I just 

assume that the FBI is going to continue to do that. 

96

Let me ask you this. Is there anything in this report of substance 

that the FBI disagrees with? 

Mr. SENSER. No. I mean, the fact is, as I said, that we are very 

appreciative of the work of Judge Webster and the commission and 

while certainly there are semantic differences, perhaps, in some 

areas——

Senator DEWINE. Right. 

Mr. SENSER [continuing]. But the substance of the report is solid 

and we are working hard to address these issues. 

Senator DEWINE. Have you done a total cost analysis? You 

talked a little bit about, or a great deal about the cost, but have 

you done a total—has the FBI sat down and said, OK, this is what 

this is going to cost? You have not had much time to do that, 

but——

Mr. SENSER. Yes. 

Senator DEWINE [continuing]. As far as the report is concerned. 

Mr. SENSER. Right. As I mentioned, we prioritized our approach 

to this knowing that time was of the essence. Once we identified—

in fact, we had identified those seven critical focus areas I mentioned prior to Hanssen’s arrest, but subsequent to his arrest, we 

built a prioritized approach that outlined 15 categories of enhancements that we felt were critical to pursue. Because of the, again, 

the fact that there was not much time, we staged those enhancements to get to the most critical, or get the most critical into our 

fiscal year 2003 budget request, and as Director Mueller had testified in front of the Appropriations Committee, that 2003 request 

for security totals around $78,065,000. 

In terms of the big picture, however, we recognize that many of 

the things that we are going to have to explore, we are not going 

to know the full extent until we really get some people on board 

with the expertise that can look at it. Again, the Webster report 

will help us considerably there, but there are areas in the physical 

and technical security realm as well as the police protection side 

that we are going to be building into our 2004 request and beyond. 

Senator DEWINE. One last question, Mr. Chairman. Mr. Senser, 

my understanding is the FBI has not, as of this date, complied with 

Executive Order 12968. This is the order that requires Federal employees and contractors to complete financial disclosure forms. Is 

that correct? 

Mr. SENSER. That is correct. 

Senator DEWINE. Are there plans to adopt this disclosure and 

monitoring program, as the commission’s report recommends? 

Mr. SENSER. Absolutely. In fact——

Senator DEWINE. Do we have a time table on that? 

Mr. SENSER. Well, one of the things that Director Mueller did 

shortly after coming in was, as part of his internal reorganization 

of the FBI, looked at internal resources that could come to the security program and identified a number of positions that ultimately 

were sent to security. Of those, there is a number of positions, five, 

in fact, that we have identified to form the basis of this financial 

disclosure program. We are advertising now for people that have 

the kinds of skills in financial analysis that will allow us to develop 

the foundation. 

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We have also spoken with other intelligence community members 

as well as the Department of Defense and their personnel security 

research people that have a fairly solid foundation in financial disclosure programs. So there is very definitely a plan. 

We are also working with the policy coordination committee 

structure as part of the NSC and one of their subgroups who is 

dedicated to actually establishing financial disclosure programs 

within the executive branch, because, in fact, there are a number 

of agencies, as well, that have never adopted this requirement and 

we are going to be a part of the effort. 

Senator DEWINE. Do you have a time table? 

Mr. SENSER. I would like to have something in place within the 

next 6 months in terms of——

Senator DEWINE. In place, meaning that I have to fill out the information, the process is there, you know what to do with it, et 

cetera? 

Mr. SENSER. In terms of having the foundation in place, the infrastructure, the guidance, and being able to go out to our people 

and educate them and say, here is the basis of our program. This 

is why it is important. This is what we would like you to do. 

One of the lessons learned from previous implementations was 

that the financial disclosure program was not always well accepted 

and we are going to try to, again, build on that in order to ensure 

that the people understand the reasons behind this, what we are 

going to do with the information, how we are going to safeguard 

it, and that all those protections are in place before we begin. 

Senator DEWINE. So I guess I take it from your answer—I am 

not trying to be argumentative here, but I take it from your answer 

that it is really not going to be up and running in 6 months. I 

mean, you are going to be moving down the road, but——

Mr. SENSER. The plan is to begin implementation in 6 months. 

Whether we have a fully capable program or not, I would say no. 

Senator DEWINE. Well, we look forward to working with you on 

this and all the other recommendations. It is obviously going to be 

an ongoing problem and it does come back to money. It comes back 

to implementation and how well you all do in your management, 

of course, but it also comes back to the money. I think the more 

information that you can supply this Congress, the better off the 

country is going to be on that. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

I want to wrap this up, but the question that occurs for me, and 

for Mr. Szady, when the FBI agent Earl Pitts was caught and convicted in 1997, he had been spying for Russia, he was debriefed. 

He was asked about some other spies and he stated he did not 

know for certain, but he did mention Robert Hanssen, who had 

hacked into an FBI computer, and the report that we have seen 

says the FBI did not followup on that information. Why not? 

Mr. SZADY. You sort of summarized all the abberations a little 

while ago with Hanssen. This was one of them. When he was interviewed, he did say—he did not say that Hanssen was a spy or anything along those lines, but he did allude to the fact that Hanssen 

had hacked into a superior’s computer. The reason it was not followed up on is because everybody was fully aware of that. We knew 

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it had happened. It had happened in the past. We thought the explanation at that time was viable and we were willing to let it go 

at that. At the same time——

Chairman LEAHY. It did not ring a bell, why was Pitts aware of 

this? I mean——

Mr. SZADY. Well, there were——

Chairman LEAHY. And Pitts is a Russian spy, and the fact that 

he is sort of volunteering that, I mean, did everybody in the building know that Hanssen——

Mr. SZADY. Yes, pretty much. That is right, Senator. 

Chairman LEAHY. They did a study afterward, a damage assessment that recommended, and I will speak generally, but it recommended looking for another Russian penetration in the FBI. 

That was rejected. Following Hanssen’s arrest, a former FBI assistant director is quoted in the press as saying the study was right, 

but for the wrong reasons. The FBI and Justice Department have 

kept this classified, so without going into any classified details, are 

you satisfied that the FBI was right to reject this recommendation, 

particularly—well, were they right? 

Mr. SZADY. Well, the investigation to find Hanssen—what we 

have to remember is there were investigations ongoing since the 

1980’s. We knew we were hemorrhaging. Even after Ames, we realized that there was somebody else. I think it was mentioned here 

earlier that the focus went on the CIA, but all our analytical efforts 

and everything at that time pointed in that direction. 

We at no time, though, eliminated the FBI, which seems to be 

a story that is out there. We kept going back to the FBI as a possible source for this hemorrhaging. The issue was that our analytical effort, our reporting that we were getting from around the 

world indicated that it was more likely in the CIA, so we put our 

resources into that particular arena. 

But at no time do we ever think there is no vulnerability for having a spy within our midst, if you will. This is an ongoing problem 

and always will be. Espionage is a crime. So our focus with a new 

espionage section is to say you just cannot rest on your laurels and 

you cannot say there is not a spy in any particular government 

agency. And hopefully, we can be preventive and proactive in the 

future. 

Chairman LEAHY. And before everybody goes back, somebody is 

looking with suspicion at everybody around and feel they have got 

to report the person who ordered borscht at lunch and not a good 

American hot dog. 

Mr. SZADY. Right. 

Chairman LEAHY. The vast, vast, vast majority, I mean, almost 

everybody who has worked for the FBI and the CIA are there because, one, they are patriotic, two, they are competent, and three, 

they are dedicated or they would find something else to do. There 

are enough difficulties with the job in the first place. I think the 

American public has to understand that, too. It is not as though 

we suddenly have an FBI and a CIA riddled with spies or 

embezzlers or anything else. We do not. We have some extraordinarily good men and women there. You know them and I know 

them. 

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I think, though, that like in everything else, it is like the wonderful person who helps take up the collection every week at church. 

You still want to make sure that there are checks and balances in 

there, because unfortunately, sometimes there is somebody, for 

whatever reason, who goes bad. It is rarely ever ideological reasons, but if it is for the reasons of money or blackmail or something 

like that, sometimes with the right steps they can be more easily 

found. 

We will keep the record open. I want to thank all three of you. 

I know you have spent an enormous amount of time on this. I know 

you have spent a great deal of time with my staff and Senator 

Hatch’s staff and others in preparing for this hearing. I do very, 

very much appreciate it. Thank you. 

[Whereupon, at 12:24 p.m., the committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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(135)

REFORMING THE FBI IN THE 21ST CENTURY: 

REORGANIZING AND REFOCUSING THE MISSION 

WEDNESDAY, MAY 8, 2002

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, Pursuant to notice, at 2:05 p.m., in room 

SD–106, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feinstein, Feingold, Schumer, Durbin, 

Edwards, Hatch, Grassley, DeWine, and Sessions. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. This hearing marks the continuation of the Judiciary Committee’s series of FBI oversight hearings that began 

last summer. We have considered the report of former Senator 

John Danforth on the Waco confrontation, the Webster Commission 

report on FBI security in the wake of the Hanssen espionage case, 

and the Justice Department Inspector General’s report on the disclosure of FBI documents in the Oklahoma City bombing case. 

We have heard the important perspectives of FBI agents and 

senior officials about what they believe the FBI must do to address 

morale and accountability problems and to improve the Bureau’s 

security counterespionage programs, computer systems, and information management practices. The members of this committee 

have paid close attention and on April 25 we voted unanimously to 

report to the full Senate for consideration the FBI Reform Act of 

2002, S. 1974. 

The risk of catastrophic terrorism, as we know so vividly from 9/

11, from the anthrax attacks, and from the threat of a dirty bomb, 

all of these things have made amply clear that nothing is more critical to the safety of the American people than a well-organized and 

skillfully managed FBI that uses its vast powers and resources effectively, while adhering always to our Constitution and laws. 

The FBI has two key and overlapping missions: protecting our 

national security by rooting out spies and terrorists, and protecting 

our public safety by investigating criminal activity. This hearing 

looks at how the FBI can reorganize and refocus its efforts to perform both missions with the resources made available by the President and the Congress. 

136

You can’t plan for the future unless you know what might have 

gone wrong in the past. That is why I wrote to the Attorney General on October 25, 2001, requesting that relevant material be preserved. On November 8, 2001, I recommended asking Judge Webster’s commission to review the FBI’s pre-9/11 performance. 

While the Attorney General did not commission outside review, 

this committee has an obligation to understand what happened. 

Both Attorney General Ashcroft and Director Mueller have assured 

me that if there is material that turns up as they review that had 

been overlooked prior to September 11, it will be preserved. 

When Judge Webster came before us to describe the deficiencies 

in FBI security that allowed Robert Hanssen to spy for the Russians undetected for more than 20 years, he described the institutional vulnerabilities of the FBI as ‘‘shocking’’ and ‘‘devastating’’—

this from a man who is a former Federal judge, a former FBI Director, and former CIA Director. 

When the Justice Department Inspector General told us that 

widespread failures by the FBI led to the belated disclosure of documents in the Oklahoma City bombing case, the FBI’s current Executive Assistant Director for Administration testified that the Director had made the IG’s report ‘‘recommended reading for all FBI 

management and supervisory personnel.’’ I commend Director 

Mueller for doing that. 

In each case, though, before we looked at it, the response was to 

minimize responsibility. The American public was told Hanssen 

was ‘‘too smart to get caught.’’ The American people were told that 

computers, not people, caused the delay in the production of documents in the Oklahoma City case. 

But the Webster Commission and the IG report made clear that 

the FBI’s security flaws enabled Hanssen’s spying, and that bad 

judgment as well as computers contributed to the production delays 

in the Oklahoma City case. In both cases, even more than that, a 

major participating cause was the basic nature of the FBI itself. 

We are still in the same position regarding the 9/11 attacks as 

we were before the Webster Commission and the IG reports. We 

are told that the conspirators were too clever to have been caught. 

We are being told the hijackers avoided detection because of meticulous planning and everything else. We hear that nothing short of 

a member of the inner circle turning himself in would have provided sufficient foresight to prevent the attacks. 

Now, these explanations may be actually right, but the American 

public has a right to ask if they are. There may be more to the 9/

11 story than the skill of the enemy, just as there was more to the 

story of Hanssen than his intellect and more to the story of the 

Oklahoma City documents than computers. 

Press reports say that the FBI failed to pursue pre-9/11 leads effectively, including warnings about two hijackers, and just last 

week a memorandum of concerns of the FBI’s Phoenix office about 

the possibility of terrorists at U.S. flight schools months before the 

9/11 attacks. 

The FBI provided the committee a single paragraph from the 

Phoenix memorandum that recommends that the FBI set up contacts at flight schools and other Government agencies to monitor 

certain foreign individuals. I hope the Director will help us get to 

137

the bottom of this incident because this is the type of thing I was 

asking about. 

Were there things that the Department of Justice and the FBI 

overlooked prior to September 11, not to make scapegoats out of 

people, but to protect us from the next September 11, because the 

only way you learn is if there was a mistake and if the mistake 

is admitted and made public and we find out what went wrong and 

we don’t make the same mistake again. 

This committee certainly shouldn’t be hearing about some of 

these mistakes coming to light only when we read it in the paper. 

I am getting somewhat concerned when some of these major things 

I find, while highly secret, I suppose, I read about on the front page 

of the New York Times and then I get a briefing subsequently. 

As I said before, if that is the way it should be, then each day 

mark a copy of the New York Times top secret and deliver it to me 

and I will get the information faster, I will get it in more detail 

and, of course, I get that wonderful crossword puzzle. 

We will want to look at the idea of deemphasizing things at the 

FBI. Are there too many carjackings, too much domestic violence, 

too many simple drug possessions, too many driveby shootings? 

Part of that is our fault; we have Federalized far too many things 

as it is. 

I know the Director is confronting hard decisions about how to 

refocus the FBI’s mission and reorganize the Bureau. We may ask 

tough questions about those decisions, but if history teaches us 

anything, it is that asking the tough questions is in the best interests of the American people. 

Frankly, Director Mueller, if we didn’t have a lot of confidence 

in you, we wouldn’t be spending the time to have these hearings. 

I will put the remainder of my statement in the record. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman LEAHY. Mr. Thompson, please feel free to go ahead. 

STATEMENT OF HON. LARRY D. THOMPSON, DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, 

D.C. 

Mr. THOMPSON. Chairman Leahy, members of the committee, 

thank you for inviting me to appear today to review our progress 

in strengthening the Federal Bureau of Investigation. This task is 

among our preeminent and most urgent missions at the Department of Justice because of the FBI’s central role in preventing and 

disrupting terrorist attacks against our homeland. 

The Department’s success in this effort is critical to restoring the 

full confidence of the American people in the FBI and to enable the 

FBI to fulfill its counterterrorism mission and its many other important missions with distinction. 

On June 20 of this year, the Attorney General directed the Justice Department’s Strategic Management Council to conduct a comprehensive review of the FBI and to make recommendations for reforms. The Strategic Management Council is a group that I chair, 

composed of senior Justice Department officials, including the FBI 

Director and heads of other major Justice Department agencies. 

138

The Attorney General gave three specific directives to us in performing this review. First, he directed that a private consulting 

firm be hired to conduct a management study of the FBI, with particular attention to the issues of information technology, personnel 

management, crisis management, and performance appraisal. 

Second, the Attorney General directed that a wide array of views 

be solicited from individuals and organizations within and outside 

the Justice Department, including Congress. 

Third, the Attorney General directed that we take into account 

three other reviews then underway regarding the FBI—the Webster Commission’s review of the FBI’s internal security practices in 

the wake of the Hanssen espionage matter, the Inspector General’s 

investigation of that same matter, and the IG’s study of the FBI’s 

document-handling procedures in the Oklahoma City bombing case. 

As directed, the Department retained a management consulting 

firm last July to conduct this review. The consultants conducted an 

extensive analysis of the Bureau, including interviews with a wide 

variety of FBI personnel and a thorough examination of the FBI’s 

information technology infrastructure. The consultants then submitted a report for consideration by the Department’s Strategic 

Management Council. 

To fulfill the Attorney General’s directive to solicit a wide range 

of informed opinion, my staff and I conducted informal interviews 

with a broad cross-section of individuals, including, among others, 

former Attorneys General and Deputy Attorneys General, former 

FBI Directors and Deputy Directors, Members of Congress and 

their staffs, leaders of organizations representing State and local 

law enforcement authorities, heads of other Federal law enforcement agencies, and current senior Justice Department officials, including a number of United States Attorneys. 

Mr. Chairman, in addition, we have carefully examined the Inspector General’s final report concerning the belated production of 

documents in the Oklahoma City bombing case, as well as the report of the Commission for the Review of FBI Security Programs, 

chaired by Judge Webster. We anticipate receiving the Inspector 

General’s report concerning the Hanssen case in the next few 

months, but we have already received preliminary comments from 

the IG’s office regarding FBI internal security practices. 

Now, although we began work on this project immediately following the Attorney General’s directive in July of 2001, the terrorist attacks of September 11 changed both our timing and our 

perspective. Those attacks brought into immediate focus the need 

to intensify our counterterrorism efforts and accord an even higher 

priority at the FBI to the counterterrorism mission. 

Moreover, the attacks caused us to shift our focus from investigating crimes with an eye toward prosecution to detecting, preventing, and disrupting terrorist plans. We are now in the process 

of developing specific recommendations for the Attorney General, 

Mr. Chairman. That process is still underway. However, we have 

not yet formalized our recommendations to the Attorney General. 

While Director Mueller already has initiated improvements at 

the Bureau in a broad range of areas, I would particularly like to 

commend him for the measures that the FBI has instituted to 

strengthen its counterterrorism capabilities. 

139

The FBI’s Joint Terrorism Task Forces have been expanded to 47 

field offices, and by August of this year will be operating in all 56 

field offices. The JTTFs have effectively merged the resources of a 

constellation of Federal, State, and local law enforcement agencies 

through cooperative information-sharing. 

Making use of the PATRIOT Act’s provision expanding information-sharing, the FBI now communicates more efficiently and successfully in disseminating critical, time-sensitive information about 

the threat of terrorist attacks to State and local law enforcement, 

as well as other Federal agencies. 

For example, the FBI’s NCIC data base, accessible by over 

650,000 State and local law enforcement officers throughout the 

country, has been expanded to include the names and identifying 

information of subjects of domestic and foreign terrorism investigations. The FBI is expediting security clearances for appropriate 

State and local law enforcement officials. 

The FBI has also established a new Office of Law Enforcement 

Coordination to institutionalize information-sharing and coordination with State and local officials. The FBI also has recently established a College of Analytical Studies and an Office of Intelligence, 

and has committed to hiring more than 100 intelligence analysts 

to enhance its ability to gather, analyze, and share national security information. In addition, Mr. Chairman, the FBI has already 

begun to take steps to enhance its internal security procedures and 

modernize its information technology infrastructure. Once we have 

completed our review, we will forward our recommendations to the 

Attorney General. 

We look forward to continuing to work together with this committee to sustain the FBI’s as our bulwark in the defense of our 

freedom. This will be a detailed and demanding task requiring a 

dedication to persevere long beyond September’s flush of fury and 

grief. We at the Department of Justice are committed to this effort, 

not only to begin it, but to follow through and achieve our goal and 

the goal of Director Mueller to restore the FBI to its proper place 

as the preeminent law enforcement agency. Accomplishing this objective is clearly in our national interest. 

That concludes my prepared comments and opening statement. 

[The prepared statement of Mr. Thompson appears as a submission for the record.] 

Chairman LEAHY. Thank you very much. 

I think before we start questions, Director Mueller, why don’t 

you go ahead, sir? 

STATEMENT OF HON. ROBERT S. MUELLER, III, DIRECTOR, 

FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF 

JUSTICE, WASHINGTON, D.C. 

Mr. MUELLER. Thank you, Mr. Chairman. If I could, I want to 

take a moment just to thank, because I have the opportunity to do 

so, those who participated in the investigation of the pipe bomber, 

Helder, who was arrested yesterday, particularly State and local 

law enforcement, who did just a terrific job together with ATF and 

other agencies in identifying the person who was responsible and 

tracking that individual down. I want to thank our colleagues in 

140

State and local law enforcement for the cooperative effort we had 

in resolving that situation. 

Mr. Chairman, the FBI faces daunting challenges from an increasingly volatile world situation. Terrorists at home and abroad 

threaten U.S. interests at unprecedented levels. Foreign intelligence services continue to target U.S. secrets and technology, 

often for their own country’s economic advantage. Cyberspace is 

threatened by increasingly malicious criminal activities. Organized 

crime of all types operates without regard to geographic borders. 

And, most obvious, the tragic events of September 11 have changed 

the American landscape forever. 

Responding to these challenges requires a redesigned and refocused FBI—imperatives reinforced by the recent findings of Inspector General Fine and Judge Webster. We must refocus our mission and our priorities, and new technologies must be put in place 

to support new and different operational practices. We must improve how we hire, manage, and train our work force, collaborate 

with others, and manage, analyze, share, and protect our information. All will be necessary if we are to successfully evolve post-9/

11. Most would have been necessary even absent 9/11. 

I believe that we all recognize that given the scope and pace of 

needed change that the FBI is in a period of transformation. This 

transition is not only organizational and technological, but also cultural. I am more impatient than most, but we must do these things 

right, not simply fast. Refashioning a large organization takes not 

only a reformer’s zeal, but also a craftsman’s patience. The task of 

transforming the Bureau is a national priority and worth the large 

expenditure of effort by all of us involved. 

Nevertheless, despite the large scope of the challenge, I believe 

we are making progress on all fronts. I very much appreciate your 

recent comments, Mr. Chairman, when you said that ‘‘The men and 

women of the FBI are performing the task with great professionalism at home and abroad. Americans have felt safer as a result of the full mobilization of the FBI’s dedicated Special Agents, 

its expert support personnel, and its exceptional technical capabilities,’’ because, as you have indicated, Mr. Chairman, it is our people who are our greatest asset. 

Change has many dimensions. We are not only structurally different, but we are fundamentally changing our approach in a number of areas, most notably counterterrorism, counterintelligence, 

and technology. 

As the committee knows, many of these initiatives are works in 

progress, with final decisions still to come. Currently, I am working 

closely with Deputy Attorney General Thompson, the Attorney 

General’s Strategic Management Council, and our own executives 

on all of these issues, and I anticipate being in a position to discuss 

them in depth with you in the coming weeks. I am also meeting 

with our Special Agents-In-Charge for the third time next week to 

consult with them as we continue to work through the complex 

issues inherent in remaking the FBI. 

Central to any successful structural change at the FBI is new 

technology. As this committee knows from prior hearings, our information infrastructure is far behind current technology and it cannot support the robust analytical capacity we need. 

141

Fortunately, Congress has provided us substantial funding and 

we are deploying new hardware and networks on an accelerated 

schedule. Having to so dramatically replace the entire infrastructure rather than make incremental improvements, as is common in 

the private sector, makes the replacement process more difficult. I 

am continuing to bring in extremely talented individuals to assist 

in this endeavor, and will keep Congress regularly advised about 

both the progress we make and the difficulties we encounter. 

Just as we change our technology, we must reshape and retrain 

our work force. Operating within a culture that most jobs were best 

done by agents, former Director Freeh began changing that nation 

and we are accelerating this approach. We are hiring subject matter experts in areas like IT, foreign languages, internal security, 

area studies, engineering, records, and the like. 

There has also been much in the media about coordination with 

State and municipal authorities, what is commonly referred to as 

information-sharing. After a series of meetings with our law enforcement colleagues and State homeland security directors, it became clear that our history of solid personal relationships alone 

was not addressing the basic information needs of our counterparts. They have our attention and we are doing much better. Adding 650,000 officers to our efforts is the only way to make this truly 

a national effort, not just a Federal effort. 

To move forward on this broad range of issues, we took a significant step in the process of change with a major reorganization of 

the FBI. The first phase established four new Executive Assistant 

Directors who report directly to me and oversee key areas of our 

work: counterterrorism and counterintelligence, criminal investigations, law enforcement services, and administration. 

This structure should reduce the span of control of the former 

Deputy Director position, which was a management concern raised 

here on Capitol Hill and in internal and external reviews of the 

Bureau. These changes also have increased accountability and 

strengthened executive-level management of day-to-day operations, 

and permitted a greater focus on strategic management issues. 

This reorganization addressed a number of significant issues, 

many of them raised before this committee in previous hearings. 

We created a stand-alone Security Division, headed by an experienced professional from the CIA. We included in the reorganization 

a Records Management Division, lead by an experienced records 

expert who also has appeared before this committee. 

We also have established an Office of Law Enforcement Coordination that will not only improve relationships and informationsharing with State and local police professionals and others, but 

will also help the FBI tap into the strengths and the capabilities 

of our partners. We are hiring High Point, North Carolina, Police 

Chief Louis Quijas, an experienced executive, to head this new office. 

At the same time, the ongoing reorganization responds directly 

to the events of September 11 by putting a coordinating analytic 

umbrella over counterterrorism and counterintelligence. The new 

structure creates the Office of Intelligence, which will focus on 

building a strategic analysis capability and improving our capacity 

to gather, analyze, and share critical national security information, 

142

an initiative supported by our new College of Analytical Studies at 

Quantico. 

The continuing reorganization also creates a new Cyber Division 

dedicated to preventing and responding to high-tech and computer 

crimes which terrorists around the world are increasingly exploiting to attack America and its allies. Our old approach was fractured and not well-coordinated. This new Cyber Division will move 

elements of the Criminal Investigative Division and the National 

Infrastructure Protection Center into one coordinated entity. This 

change will bring together various cyber initiatives and programs 

so that we are better focused, organized, and coordinated in working with our public and private sector partners. 

We are now in the second phase of our reorganization. As part 

of this phase, we are developing a comprehensive strategy to permanently shift resources to supplement the substantial new resources Congress has already provided in the fight against terrorism and in support of our prevention effort. 

Given the gravity of the current terrorist threat to the United 

States, the FBI must make the hard decisions to focus its available 

energies and resources on preventing additional terrorist attacks 

and protecting our Nation’s security. 

At the same time, I want to assure you and others in Congress 

that we will continue to pursue and combat international and national organized criminal groups and enterprises, civil rights violations, major white-collar crime, and serious violent crime, consistent with the available resources and the capabilities of, and in 

consultation with, our Federal, State, and municipal partners. 

We believe the changes to date and those that will be proposed 

in the near future are vital to ensuring that the FBI effectively satisfies its national security, prevention, and criminal investigative 

missions. They represent important steps in the difficult process of 

change. 

What emerged from the events of 9/11 leaves no doubt about the 

need or urgency for change. As you pointed out, Mr. Chairman, in 

your opening remarks, our investigation of 9/11 paints a sobering 

portrait of the 19 hijackers and makes clear that they carried out 

their attacks with meticulous planning, extraordinary secrecy, and 

extensive knowledge of how America works. 

While here, the hijackers did all they could to stay below our 

radar. They contacted no known terrorist sympathizers, they committed no crimes, they blended into the woodwork. In short, the 

terrorists managed to exploit loopholes and vulnerabilities in our 

systems to stay out of sight and to not let anyone know what they 

were up to, beyond, as you pointed out, a very closed circle. 

The patience, skill, and exploitative approach used by the hijackers means that our preventive efforts must be massive, globally collaborative, and supported by ample technology and analytical capability. It means that the information possessed by every agency, 

both here and abroad, both Federal and local, must go into the 

multiagency prevention mix and be acted upon. 

And it does mean, Mr. Chairman, that we need to look at the lessons of the past and learn from those lessons of the past and make 

certain that we do not repeat them, and to the extent that there 

143

are organizational or institutional weaknesses or failures, remedy 

those institutional weaknesses or failures. 

Now, in response to 9/11, and with an eye toward preventing future attacks, we have strengthened ties with the Central Intelligence Agency. We have placed key staff in each other’s command 

centers. We are members of the Foreign Terrorist Tracking Task 

Force, and as I believe the Deputy Attorney General pointed out, 

we have expanded the number of Joint Terrorism Task Forces 

around the country, which include both Federal as well as State 

and municipal officials. 

Perhaps as important, within the FBI we have centralized accountability within the counterterrorism program under a new assistant director. Among the new programmatic tools at his disposal 

will be the Financial Review Group to focus on disrupting the flow 

of financial resources to terrorists, the Telephone Applications 

Group, and new data-mining capabilities. We are also establishing 

flying squads so we have the flexibility to send agents wherever 

they are needed when a particular threat or crisis arises. 

But foremost among the lessons I think we have learned in retrospect is the need for a substantially greater and more centralized 

analytic capability, resident at headquarters, but available anywhere in the world, available to anyone, anyplace in the world who 

is combatting terrorism. 

We need a capacity with ample resources, better technology and 

better training, one that is better intertwined with other agencies, 

domestic and foreign, Federal and local, and all the information 

that they may possess. 

We are designing our new counterterrorism program and technology, standing up an Office of Intelligence, changing our training 

at Quantico, and hiring subject matter expertise with that exact 

premise in mind. The capacity must be in place to permit every 

piece of information from every source to be rapidly evaluated from 

an analytical perspective. 

It is also important, as we search for ways to improve our Nation’s capacity to prevent terrorism, for America to look at these attacks in context. The terrorists took advantage of America’s 

strengths and used them against us. They took advantage of the 

freedoms we accord to our citizens and guests, particularly freedom 

of movement and freedom of privacy. As long as we continue to 

treasure our freedoms, we always will run some risk of future attacks. 

In addition, the terrorists also took advantage of the openness of 

our society. Fifty million people, Americans and guests, entered 

and left America during the month of August 2001, the month preceding the September 11 attack. The vastness of this number highlights the dynamic openness of our society. It is also the source of 

our economic strength and vitality. 

But this openness brings with it vulnerabilities, as 9/11 so terrifyingly showed. America will continue to be free and open, and we 

at the FBI believe that our job is to protect those freedoms, not reduce them in the cause of security. However, these attacks highlight the need for a different FBI, a more focused FBI, a more technologically adept FBI, an FBI that is more reliant on outside experVerDate 0ct 09 2002 13:30 Aug 06, 2003 Jkt 088571 PO 00000 Frm 00147 Fmt 6601 Sfmt 6601 C:\HEARINGS\88571.TXT SJUD4 PsN: CMORC
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tise and better equipped to process and use the vast quantities of 

information available to us. 

As I finish, Mr. Chairman, let me just say that I and the 27,000 

men and women of the Bureau were as devastated as anybody by 

the attacks of September 11 and remain deeply affected. But with 

this has come the conviction to do everything within our power to 

reduce the risks that Americans run in the exercise of their freedoms. 

It is to this goal that all of the reorganization, reform, technology, and new personnel are committed. But ultimately, standing 

behind all the capabilities that we have now and that we are working to build is a cadre of FBI professionals, men and women who 

exemplify courage, integrity, respect for the law, and respect for 

others. We are extremely proud of how they have performed over 

the past 8 months. As, Mr. Chairman, you have indicated, they 

have worked long days and nights, sacrificing time with their families to get the job done. It is an honor to appear before this committee representing those 27,000 individuals. 

Thank you for according me the time, Mr. Chairman, for my 

statement. 

[The prepared statement of Mr. Mueller appears as a submission 

for the record.] 

Chairman LEAHY. Thank you, Director, and I agree with you; it 

is an honor to represent them. We have some very fine men and 

women there. I know many of them, nowhere near as many as you 

do, but we should be very proud that they are there. 

You were on the job less than a week before the 9/11 attacks. 

You handled that crisis as though you were born to the job, even 

though that is not the job you wanted to have, none of us wanted 

to have, anything happening that terrible. I have talked to you a 

number of times since that day. This is your first formal appearance before the committee and I just wanted to use the opportunity 

to commend you for the way you have taken charge at the FBI. I 

also want to commend Attorney General Ashcroft for the support 

he has given you, and Deputy Attorney General Thompson. 

I want to commend the FBI for the swift arrest of the young man 

who has now been charged with placing pipe bombs in mailboxes 

across the Midwest. 

I appreciate what you said about State and local government and 

other Federal agencies who work with you. Not only is it a fact, but 

I know they are going to appreciate you commending them for that. 

I know that a lot of postal workers and Americans were vastly 

relieved when they checked the mail this morning, which made me 

think of another investigation near and dear to my heart, the anthrax investigation. As I said earlier to you, it is like the Mark 

Twain character. Now that I have received one of the anthrax letters, and the Mark Twain character being ridden out of town on 

a rail, if it wasn’t for the honor, I would just as soon walk. 

I think it is important for the American people, and the Postal 

Service employees in particular, to know that the FBI is expending 

enormous resources on finding the murderer who sent the anthrax 

letters. And that person is a murderer; numerous people have died. 

On November 9, the FBI made public a profile of the suspect. 

Since then, you have engaged the help of the scientific community. 

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You have collected Ames strain samples from almost 20 sources. 

You have done hundreds, actually thousands of interviews. You 

have done genome sequencing, carbon dating, reverse engineering. 

Following all the interviews and the tests, have you changed the 

profile of the suspect that the FBI came out with last November? 

Mr. MUELLER. Well, Mr. Chairman, the profile that we came out 

with then was based on certain information that we had at that 

time. The results of additional interviews, the results of the tests 

that we have done to date—many of them are preliminary—have 

not warranted at this time a revision of that profile. 

I should say that as the investigation does on—I am occasionally 

asked where is the investigation, where are we in the investigation? I want to assure you and the public that it is not in any way 

stalled. Everyday, we receive new leads with regard to potential individuals, and we have an ongoing, very thorough laboratory investigation undertaken. 

Unfortunately, the letter that had most of the anthrax was what 

has become known as the ‘‘Leahy letter,’’ but that has enabled us 

to conduct tests that, prior to receipt of that letter or finding that 

letter, we were unable to perform. Those tests are ongoing and are 

very helpful to the course of the investigation. 

I mention the profile because FBI Assistant Director Dwight 

Adams, the new head of the FBI Lab, has been very helpful to me 

and my staff. He has explained a lot of the complex tests on the 

anthrax sample. The FBI has had to rely on scientists familiar 

with anthrax and bio-weapons research. It is not something that 

normally—well, to my knowledge, has never come before the Bureau before. 

But that may be the same community from which the anthrax 

murderer comes. He works in a lab, has a scientific background, is 

comfortable working with extremely hazardous materials, and so 

on. Some scientists have stated publicly that the perpetrator may 

be one of their own. 

Are we going to have to reach a point where the FBI can develop 

more of this expertise on its own? And I don’t mean that as a criticism, because nobody has ever seen this sort of thing come up before. 

Mr. MUELLER. We are in the process of developing our expertise. 

I will tell you we have changed the recruiting profile, for instance, 

to include scientists and others with scientific as well as computer 

backgrounds, for exactly this reason. We are developing our expertise in the laboratory as we go along. 

However, with something like this where we come to find that 

there are various scientists with various views, we have found the 

best way to obtain the best qualified laboratories and individuals 

is to pull together a group of individuals highly respected in their 

fields and attain names from them, and then discuss with particular laboratories and particular scientists the tests that they 

would perform. 

One thinks at the outset of an investigation like this you can go 

to one scientist and that particular scientist will have all the skills 

necessary to tell you what you need in order to conduct the investigation. But what we find is you need different skills in different 

scientists, different areas of expertise to look at the DNA, the geVerDate 0ct 09 2002 13:30 Aug 06, 2003 Jkt 088571 PO 00000 Frm 00149 Fmt 6601 Sfmt 6601 C:\HEARINGS\88571.TXT SJUD4 PsN: CMORC
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netic makeup, the chemical makeup, and the like. Accordingly, 

when we are faced with a situation such as this in the future, I 

think the model that we have developed here is probably the model 

we will follow in the future. 

Chairman LEAHY. Last week, a wire service reported that 2 

months before the September 11 attacks, the Phoenix Office of the 

FBI recommended contacting flight schools nationwide where Middle Easterners might be studying. The FBI has provided the committee a single declassified paragraph from the otherwise classified 

Phoenix report that recommends the FBI set up contacts with 

flight schools and other government agencies to monitor certain foreign individuals coming into this country to attend these schools. 

The paragraph specifically references certain suspicions about how 

these flight schools were being used. 

Can you tell us what the suspicions were and whether any actions were taken in response to the Phoenix report? 

Mr. MUELLER. Mr. Chairman, the Phoenix electronic communication contains suggestions from the agent as to steps that should be 

taken, or he suggested taking to look at other flight schools. It was 

based on an investigation that this agent and others in Phoenix 

had conducted and were conducting, and to date is not over. 

In the course of that investigation, the agent determined that 

there were individuals who were looking at flight schools, as well 

as other airline academies, for a variety of positions; yes, pilots, but 

also perhaps as roles in security or elsewhere in an airport. 

He made a recommendation that we initiate a program to look 

at flight schools. That was received at headquarters. It was not 

acted on by September 11. I should say in passing that even if we 

had followed those suggestions at that time, it would not, given 

what we know since September 11, have enabled us to prevent the 

attacks of September 11. 

But in the same breath I should say that what we learned from 

instances such as that is much about the weaknesses of our approach to counterterrorism prior to September 11, and let me spend 

a moment, if I could, to describe what I perceive to be some of 

those weaknesses. 

First, we in the FBI have been a reactive organization, generally, 

as opposed to a proactive organization. That comes because we perceive ourselves as being law enforcement. We start from the presumption of we gather evidence and then when we have enough 

evidence, we arrest people and prosecute them. In the future, we 

have to be more proactive. We cannot wait until we have evidence 

of a crime having been committed, but have to take what evidence 

we have and make predictive observations to avoid the next attack. 

Second, one of the lessons learned is that we are a dispersed organization. Our headquarters in the past has been a coordinating 

entity, with our SACs and the agents in the field doing all of the 

investigation. In the future, we have to particularly centralize intelligence-gathering, intelligence analysis, and intelligence dissemination from headquarters, which brings me to the third thing. 

Prior to September 11, we did not focus as we should on our analytical capability, understanding that we have to take every piece 

that may be provided to us and put it in a larger framework, in 

a larger puzzle. 

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We have changed dramatically to address some of these shortcomings. We have beefed up headquarters, with the understanding 

that the Counterterrorism Division and the Assistant Director 

must not just coordinate, but direct and manage investigations in 

the future, so that when something like this occurs, when there is 

a suggestion made, we would then pursue it, and pursue it aggressively. We have beefed up our analytical capability, which includes 

individuals, analysts, and have sought even more analysts. Part of 

beefing up our analytical capability quite obviously is the technology which we also have sought. So we have used instances like 

this in order to try to reshape and redefine how we address 

counterterrorism. 

Chairman LEAHY. I will come back to this, and I have some questions for General Thompson, too, but I will yield to Senator 

DeWine, going on the usual early bird rule. 

Senator DEWINE. Thank you, Mr. Chairman. I do have to go to 

the Intelligence Committee. I appreciate it very much. 

Thank you for joining us. We appreciate it very much. We appreciate the work that both of you are doing. 

Mr. Director, you and your team are really redefining the role of 

the FBI. I don’t know of any FBI reorganization in my lifetime that 

that has shifted the FBI’s focus to such an extent. 

I think as you lead this change that your natural inclination for 

candor will work to your advantage because you are faced with setting priorities every single day. You have had to already make 

some horribly difficult and tough choices. 

I think, though, that it is very important for you to continue, to 

involve the American people in that debate and that setting of priorities. As you shift thousands of agents to this new war effort and 

as the posture of the FBI changes, maybe forever, there are going 

to be things that simply will not get done. I think it is important 

for this Congress to know what is not getting done and for the 

American people to know what is not getting done. 

My information would indicate that your work on white-collar 

crime, for example, is not getting done to the extent that it 

previouly was being done. My information would indicate to me 

that, in the area of anti-drug efforts, you are not able to do what 

has been done in the past. 

When you are dealing with the anti-drug problem, the American 

people may say, well, local law enforcement can do that. They do 

that every day. We know that. But what is important for the American people to understand, and what I would like you to comment 

on, is the unintended consequence of shifting resources away from 

the long-term work that your Department does on drug cases—you 

are the ones who do the long-term work with informants and work 

these cases for months and months, and sometimes for years. That 

work leads you and other law enforcement agencies to identify 

other violent criminals. So you are not going to be able to get to 

those violent criminals because you are not doing the drug work. 

I would just like you to comment on that. I don’t have any problem with where you are going with priorities, but I think we all 

need to know what the consequences of these decisions are. I would 

just like for you to comment and if you disagree with the premise, 

please say so, as I know you will. 

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Mr. MUELLER. Starting off with your noting that we have not 

been doing particularly since September 11 all that we had been 

doing in white-collar crime and narcotics prior to September 11, 

that absolutely is true because the investigation after September 

11 required almost half of our agent population. 

I mean, we had approximately 6,000 agents working on the investigation in the weeks and immediate months following September 11. We also put together a substantial task force operating 

out of Washington, D.C., to address the anthrax threats. That quite 

clearly has meant that agents who would be doing other things 

would not be able to work on, say, white-collar or other types of 

programs. 

I will tell you that since September 11, as we have run through 

in excess of 300,000 leads, the numbers assigned to 

counterterrorism have dropped rather dramatically and we are currently down to around 4,000, maybe 3,500 to 4,000 that are still 

working terrorism matters. 

What I have been engaged in for several months is looking at a 

three-stage process and reassigning resources, it seems to me, that 

we need to determine exactly what number of resources we need 

to address counterterrorism around the Nation. I have sought the 

input and received the input from the special agents-in-charge of 

the various divisions so that I know what in their minds they think 

they need to discharge the counterterrorism responsibilities. It goes 

without saying, however, that to the extent that we have any lead 

in counterterrorism that should be followed up, every SAC should 

make that the first priority regardless of what we do down the 

road. 

The first part of the process or the equation was to determine 

how many additional agents we need to do counterterrorism. Once 

that is done, I have to look at each of the programs, with the help 

of the SACs, to determine from whence those agents come. 

The last part of that process is if we are going to take agents 

from one of those programs, who is going to pick up the slack, who 

is going to fill the void that is left by our moving to another program, which requires conversations and consultation not only with 

State and local law enforcement but our other Federal partners, as 

well as Congress. 

I am at the latter stages of that process, so I would expect in the 

next couple of weeks, two to 3 weeks, to be back up here talking 

with various Members of Congress to give you an indication as to 

where I think these additional resources should come from. But I 

see it as a three-tiered process, I guess I should say. 

The other thing I should point out is I am somewhat reluctant 

to make wholesale shifts between offices, for instance, because I 

have experienced in the past, where there is a crisis or a challenge, 

we may have thrown agents at that challenge and once the challenge is met those agents stay where they are. 

I am reminded of the savings and loan scandal, where we had 

agents back in the early 1990’s that went to Dallas and other 

places. Many of those agents are still there, although the need is 

not there. Consequently, I want to make certain that when we reassign agents to different programs, to counterterrorism, we do 

know who is going to be picking up the slack and they will have 

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worthwhile tasks to perform, and that we ought to be flexible down 

on the road in adjusting. 

That is, in broad view, my philosophy as we go through this process. 

Senator DEWINE. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Grassley had to go back to another hearing. He did want 

me to make these three sentences for him. He wanted to thank 

you, Director Mueller, and the FBI for the way you handled the investigation of the pipe bomb cases. Senator Grassley said the 

bombs injured a number of people in his home State of Iowa, and 

he is grateful and pleased that the FBI could wrap this up and get 

a suspect in custody. Senator Grassley said further that he appreciated the call you made to him yesterday, letting him know what 

was going on. 

The Senator from California.

Senator FEINSTEIN. Thanks very much, Mr. Leahy. 

Good afternoon, Mr. Mueller, Mr. Thompson. I think you know, 

Mr. Mueller, I have a very great respect for you. You are straightforward and direct and there aren’t any artifices, and I for one really appreciate that. 

I think you know that yesterday I sent you a letter asking some 

questions about this electronic communication known as the Phoenix memorandum, and I would like to ask you some questions 

about it. As I member of Intelligence, I have read a copy of the 

original electronic communication and I must tell you that it 

strikes me as something that does not require a great deal of analysis. It is what it is, it is very straightforward. 

In the reports that I read in Intelligence, it is much more consequential than many of them that I read on almost a daily basis 

now, much fuller, much more descriptive. So I would like to ask 

just a few questions from my letter, but before I do, Mr. Chairman, 

I would like to ask that this letter, dated May 7 to Mr. Mueller, 

be placed in the record, if I might. 

Chairman LEAHY. Without objection. 

Senator FEINSTEIN. Let me begin with the first question on it. 

Who, by name and title, within the FBI was provided this electronic communication? Was the EC or its contents brought to the 

attention of the Director of the FBI? If so, when. If not, who was 

the highest ranking FBI official made aware of the EC or its contents? 

Mr. MUELLER. Senator, let me just say I received a copy of your 

letter this morning and I glanced through it. To the extent that I 

can answer the questions, quite obviously I will. 

Senator FEINSTEIN. I understand that. 

Mr. MUELLER. But there is a lot that you request in terms of information that I am not on top of. 

Senator FEINSTEIN. I understand, I understand. 

Mr. MUELLER. I am not certain as to the highest-level individual 

who received it. I do not believe at this juncture that it went so 

high as the Director of the FBI, but I am not certain how high it 

went in the hierarchy. I think that was the thrust of that first 

question. 

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Senator FEINSTEIN. Right. Now, the reason I am asking the questions that I am is not to be critical, because it is very easy to be 

a Monday morning quarterback, but to say when something like 

this comes through let’s look at the process that governs it because 

clearly a lot of things could have happened with that. In my judgment, it is something that perhaps should have gone right to the 

Director of the FBI, and perhaps he should have even sent it to the 

President. 

Let me ask another question. It is my understanding that the 

standard method by which the FBI disseminates intelligence is by 

way of a letterhead memorandum, often called an LHM. Was an 

LHM drafted based on the information contained in the EC, and 

if not, why not? 

Mr. MUELLER. Let me again caution my remarks by saying I am 

not certain. I have not seen all the paperwork with regard to that 

EC. I quite obviously have seen the EC. In terms of whether there 

was a letterhead memorandum, I am not aware of a letterhead 

memorandum that had been prepared, but I am not certain that 

the premise that intelligence information is only distributed by letterhead memorandum is accurate also. 

I have seen that intelligence information quite often is distributed by way of EC. So I am not certain that there was a letterhead 

memorandum, but I am not certain that that makes some difference. 

Senator FEINSTEIN. All right. 

Mr. MUELLER. Could I respond to one thing in terms of the procedures? 

Senator FEINSTEIN. Absolutely. 

Mr. MUELLER. I think it important—I know you have seen the 

full letter—to understand that the individuals who were mentioned 

in that letter, and there were a number, were, and perhaps some 

may continue to be under investigation. So I just wanted to point 

that out as we continue this dialog. 

Senator FEINSTEIN. I am not going to state what was in that at 

all. 

Let me ask you this question: Was the EC or information in the 

EC provided to FBI personnel assigned to the Director of Central 

Intelligence’s Counterterrorism Center? 

Mr. MUELLER. Before September 11, I do not believe so, but I am 

not certain on that. But I do not believe so. 

Senator FEINSTEIN. I think that this is a very worthwhile exercise to go through this because I suspect that nothing happened 

with it. Now, having said that, the question then becomes, well, 

what should have happened to this and how many other things 

perhaps are falling between the cracks. 

Particularly after Mr. Moussaoui was arrested, which happened 

a month after this, it should have been a real signal that something was going on. Then, about the same time as the Phoenix 

memo, United States intelligence—I guess the CIA—issued a warning that there was a heightened risk of a terrorist attack on Americans, possibly on U.S. soil. 

So there were two things out there that should have alerted 

something in the system to these. At the very least, run them 

through State’s data base, see where the visas came from, see how 

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many visas are out and where they are to people in similar circumstances. 

I think if it did drop between the cracks, I think there is a serious problem because if one thing drops, others probably have as 

well. That is why I think this is an instructive exercise. I mean, 

if I had seen that, I would have sent it right to the President. I 

feel that strongly about this kind of thing. 

I think the more I read in open-source information about the FBI 

at this period, particularly books on terrorism in this country, one 

of them by Stephen Emerson, for whom I have a great deal of respect, the FBI was very much constrained in what it did and in 

how it acted. I found some of the things in the book really surprising. 

I just wonder if you have any comment. Have you looked at that 

memo as to where it went at all and what happened with it? 

Mr. MUELLER. Yes. 

Senator FEINSTEIN. Can you tell us anything about how it was 

treated? 

Mr. MUELLER. Well, it was my understanding again—and we are 

providing every document, as you well know, to the Intelligence 

Committee on that. My understanding is that it was in the section, 

it was looked at in the section. I believe the agent was aggressive, 

was good, and the suggestion was a good one. 

It was a monumental undertaking. There are more than 2,000 

aviation academies in the United States. The latest figure I think 

I heard is something like 20,000 students attending them, and it 

was perceived that this would be a monumental undertaking, without any specificity as to particular persons. The individuals who 

were being investigated by that agent in Phoenix were not the individuals that were involved in the September 11 attack. 

All that put aside for a second, though, it is a very worthwhile 

process and a process we are undertaking to change what we do 

in response to that instance and others where perhaps we did not 

have the analytical capability, we did not have the people who were 

looking at the broader picture to put the pieces in place. That is 

how we have to change. 

We are, as I said a few moments ago, and have been, a law enforcement agency and we have been more reactive than proactive. 

We have not built up the intelligence capacity or capability as we 

should. One of the things we are doing is putting in an Intelligence 

Office, and I have requested from George Tenant an individual 

from CIA to head it up. That provides two things to us. One, it provides us a person who is experienced in intelligence-gathering, 

analysis, and then dissemination. It also links us better than we 

have been in the past with the CIA. 

So do I wish that we had more aggressively followed up on that 

suggestion at the time? Yes. Are we taking steps to address what 

the failings or weaknesses were prior to September 11? Absolutely. 

Senator FEINSTEIN. Thank you. My time has expired. Thank you. 

Chairman LEAHY. Senator Edwards? 

Senator EDWARDS. Thank you, Mr. Chairman. 

Mr. Director, I join my colleagues. We all have enormous respect 

for you and appreciate very much the job you are doing. 

152

I also want to ask you about the Phoenix memo, recognizing, of 

course, that you weren’t there at the time. First of all, I think that 

the American people are entitled to know why it appears at least 

that red flags were ignored before September 11, and I think the 

FBI has a lot of explaining to do. I think our responsibility is to 

sort of get to the bottom of this and find out what happened. Let 

me just followup on some of Senator Feinstein’s questions. 

As I understand it, the memo, to the best of you knowledge, 

never went as high as the FBI Director. Is that correct? 

Mr. MUELLER. I have not asked Louis Freeh whether he saw it. 

I do not believe it went to the Director, no. 

Senator EDWARDS. And it also didn’t go to the CIA Director. Is 

that correct? 

Mr. MUELLER. I do not believe it did. 

Senator EDWARDS. Now, when the Moussaoui investigation began 

a month or so later, after July—I think it began in August of 

2001—did that arrest in August lead to any renewed response to 

the Phoenix memo? 

Mr. MUELLER. I am not certain whether at headquarters somebody said this is the same type of thing. I am not certain what the 

agent did in Arizona. To the extent that you are asking whether 

there was any additional effort made on flight schools as a result 

of putting Moussaoui together with the Phoenix EC, I do not believe that to be the case. 

I believe we looked at the Moussaoui case as a red flag. I mean, 

one of the red flags you talk about was Moussaoui, and we go out 

and at the response of the Pan Am flight academy—and they had 

found him to be somewhat difficult and different, and called up the 

FBI—we go out and interview Moussaoui and we have no basis to 

arrest Moussaoui. He has committed no crime. 

He is a student who is a little bit odd in the course of what he 

is trying to do, and the only way that we can address Mr. 

Moussaoui is to find that he has overstayed his welcome in the 

United States, is out of status, and we have INS arrest him. So red 

flags went up. 

The agent in Minneapolis did a terrific job in pushing as hard 

as he could to do everything we possibly could with Moussaoui. But 

did we discern from that that there was a plot that would have led 

us to September 11? No, I rather doubt it. But should we have 

done more in terms of the Phoenix EC? Yes. 

Senator EDWARDS. Well, I think one of our responsibilities is to 

determine what you could have figured out based upon followup 

that didn’t happen, as it turns out. 

But if I understand it correctly, you got the memo in July from 

Phoenix making specific recommendations. About a month later, 

the Moussaoui investigation and arrest occurred, roughly a month 

later, relating to a similar topic, obviously. The Director of the FBI, 

to the best of your knowledge, didn’t know about the Phoenix 

memo. The Director of the CIA did not know about it. Is that all 

accurate? 

Mr. MUELLER. I think that is accurate. 

Senator EDWARDS. OK. 

Mr. MUELLER. I will tell you I think that is accurate because I 

have not followed the trace of——

153

Senator EDWARDS. If that turns out not to be true, would you let 

us know that, please? 

Mr. MUELLER. Sure. 

Senator EDWARDS. I also am a member of the Intelligence Committee and I have seen the memorandum, and I also believe that 

it at least appears to have been an enormous red flag. 

Let me ask you about three things that were reported in the 

newspaper about the memo and get you to respond to them, if I 

can. First, and this is from the New York, it says ‘‘Phoenix believes 

that the FBI should accumulate a listing of civil aviation universities and colleges from around the country,’’ and I am quoting 

from the newspaper now. 

Did the FBI do that? 

Mr. MUELLER. Not to my knowledge, until after September 11. 

It did, after September 11, but not before September 11. 

Senator EDWARDS. Not before September 11. 

Second, ‘‘FBI field offices with these types of schools in their 

areas should establish the appropriate liaison.’’ Did the FBI do that 

before September 11? 

Mr. MUELLER. After September 11, not before. 

Senator EDWARDS. But not before? 

Mr. MUELLER. Not to my knowledge. 

Senator EDWARDS. Third, ‘‘FBI headquarters should discuss this 

matter with other elements of the U.S. intelligence community and 

task the community for any information that supports Phoenix’s 

suspicions.’’ Did the FBI do that? 

Mr. MUELLER. That, I am not certain about, at what level. I am 

not certain about that. 

Senator EDWARDS. You indicated earlier that the Director of the 

CIA didn’t know about it. But you think there is a possibility something else occurred? 

Mr. MUELLER. It is a possibility, but I would only say a possibility that somebody down the chain had conversations with persons at the CIA. I just don’t know whether that happened or not. 

Senator EDWARDS. The FBI has said in a statement, and you 

have indicated something similar to this today, that none of the 

people identified by Phoenix are connected to the 9/11 attacks. 

That is, I assume, accurate and a fairly narrow statement. 

Did any of those people have any connections to Osama Bin 

Laden or any terrorist groups? 

Mr. MUELLER. The persons who were being investigated by the 

agent in Phoenix? 

Senator EDWARDS. Correct, that is the question. 

Mr. MUELLER. I am not certain without going back and looking 

and checking. There were a number of individuals that were listed 

in that EC and I am not certain. I cannot recall. 

Senator EDWARDS. Whether they are connected to Bin Laden or 

whether they are connected to any terrorist group, you don’t remember either one? 

Mr. MUELLER. Well, I know that we believed that one or more 

were connected with terrorist groups. 

Senator EDWARDS. But you are not sure whether it was Bin 

Laden? 

154

Mr. MUELLER. I am not certain whether it was specifically AlQaeda or Bin Laden. 

Senator EDWARDS. Are those people still at large? 

Mr. MUELLER. I hate to get into it in open forum. Let me just 

put it that way. I would be happy to answer that——

Senator EDWARDS. That is fine. I accept that. 

Well, Mr. Director, thank you for being here. We appreciate your 

answers to these questions. I hope you can understand why we are 

concerned about this, obviously with the magnitude of what happened and the information that was apparently available both in 

July and then in August, before the attacks. 

I do believe we have a responsibility to get to the bottom of this, 

and we appreciate your help with it. I know you also want to get 

to the bottom of it. 

Mr. MUELLER. We share every interest in seeing what happened, 

what lessons are to be learned, so we do not repeat those lessons. 

We are making every effort to cooperate and fully disclose anything 

and everything to the Joint Committee. 

Senator EDWARDS. Thank you, Mr. Director. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Feingold? 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Chairman LEAHY. I believe you came in first. Senator Durbin is 

next, I want you to know. 

Senator FEINGOLD. Thank you, Mr. Chairman, for your leadership and for holding a hearing on this important subject. 

Deputy Attorney General and Director Mueller, thank you for 

joining us today. I sincerely want to thank you for your long hours 

and hard work, particularly since September 11. It is important 

that you are here to discuss with us how the administration plans 

to reorganize the FBI to use its resources and skills most effectively to attend to the greatest criminal and national security 

threats to our Nation. 

Before I get to my questions, and since the Deputy Attorney General is with us today, I would like to take this opportunity to reiterate here on the record that I hope he, the Attorney General, and 

President Bush are still committed to ending racial profiling. 

It has been more than a year since President Bush pledged to 

end racial profiling, and it is almost 1 year since Representative 

Conyers and I introduced legislation, the End Racial Profiling Act. 

Mr. Thompson, we have talked about this before and you have 

made some very powerful statements on it. I would request from 

the Department an update on the status of its deliberations on our 

bill and whether it remains committed to a ban on racial profiling. 

This is more of a request than a question, but if you would like to 

respond briefly, I would like you to do that at this time. 

Mr. THOMPSON. Senator Feingold, I can assure you that the Department, and specifically the Attorney General and myself, remain 

committed to doing everything we possibly can to eliminate racial 

profiling, to eliminate race being used as a basis for law enforcement actions. You and I have discussed that in the past. 

We are working hard to bring to fruition our studies with respect 

to racial profiling at the Federal level. Since 9/11, our efforts have 

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required some updating and we are in the process of getting that 

completed, but we are not standing still with respect to this important topic. The Department is committed and is actively taking a 

leadership role with respect to racial profiling at the operational 

law enforcement level, with respect to providing training to Federal 

agencies, with respect to data collection, the use of race as a factor 

in law enforcement actions. 

So we hope to complete our studies in as timely a manner as possible, and we will get to the conclusion of this, I can assure you. 

Senator FEINGOLD. Do you still support a ban on racial profiling? 

Mr. THOMPSON. Yes, sir. 

Senator FEINGOLD. Well, good. I don’t see any reason why we 

can’t work together to get a bill to the President’s desk. 

Mr. THOMPSON. We look forward to working with you. 

Senator FEINGOLD. Very good. 

I would also like to tell you about another matter. Director 

Mueller, I understand that, a part of the FBI’s renewed focused on 

antiterrorism is the creation and maintenance of a so-called watch 

list of potential terrorists, and I want to tell you about an incident 

in Wisconsin a few weeks ago. 

A group of close to 40 peace activists were planning to travel to 

Washington, D.C., to participate in workshops and demonstrations. 

I understand that as the members of the group were checking in 

at the Milwaukee Airport, at least one person and possibly more 

apparently triggered a possible match on the watch list. And because at least 20 members of the group had bought their tickets 

together and the possible match was triggered by someone in that 

group of 20, all 20 travelers were detained for questioning. 

It turns out that none of the members were determined to be security threats and all were ultimately cleared to fly. Unfortunately, 

these passengers were scheduled to be on the last flight to Washington for that day, and because it took so long to clear the passengers, some of these passengers missed their flight and had to 

wait until the next morning to travel here. 

Now, of course, we all recognize that we need increased security 

measures at our Nation’s airports and all passengers are understandably enduring some inconvenience and longer wait times before boarding their flights. Nonetheless, I think the incident does 

raise some concerns. 

How, if you could tell me, could these Wisconsin residents trigger 

the watch list? Can you assure this committee and the American 

people that the FBI has not and will not include on the watch list 

persons who exercise their lawful rights of free speech and freedom 

of association to express their views that may be at odds with the 

policies of the U.S. Government? 

Mr. MUELLER. Well, as to the last statement, absolutely I can assure you, Senator, and the American public that we would never 

put a person on the watch list solely because they sought to express their First Amendment rights and their views. 

With regard to that incident, I am not familiar with the details 

as to why one or more of those individuals was on the ‘‘no fly’’ list. 

There are a number of participants and contributors to that. I will 

tell you from the perspective of the FBI, prior to September 11 we 

had no mechanism for alerting State and local law enforcement 

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that there were individuals in the country for whom we had no 

paper, we have no arrent warrant, they have no crime triggering 

an arrest piece of paper. Nonetheless, we believe they are an individual or individuals that we need to talk to because we have gotten intelligence from the CIA or elsewhere that they may be associated with terrorism. 

We needed some mechanism to alert State and locals. We have 

used NCIC to do so, understanding that it is critically important 

that we have State and locals identify a person has been stopped, 

not necessarily detained, but get us the information that the person 

has been stopped at a particular place. 

We are very careful, once we have interviewed a person we need 

to interview because we have information that they may be associated with a terrorist or have information relating to a terrorist, 

that the name be removed from the watch list. It is important for 

us to have some mechanism to try to find individuals within the 

United States who may be committing terrorist acts. 

On the other hand, we understand the responsibility of making 

certain that once a person is interviewed, they are removed from 

the watch list, and that we have various gradations on the watch 

list depending on the threat and depending on whether there is 

any paper outstanding on the individual. 

Senator FEINGOLD. I think following that a little bit in terms of 

these lists, do they contain only the names of the suspected terrorists? If so, how does the FBI define who is a terrorist for purposes 

of determining whether somebody should be placed on the list? 

Just give me a sense of what the factors are to determine if somebody should be on the list. 

Mr. MUELLER. Well, I am going to tell you that prior to September 11 there were two individuals, and the CIA gave us the 

names of these two individuals and said that they had been at a 

meeting in Kuala Lumpur with known terrorists and we needed to 

find them. They actually happened to be two of the hijackers, as 

it turns out. They came through immigration, they say, staying at 

Marriott in New York City. Well, that does us no good. We have 

no mechanism to try to identify those persons. 

Senator FEINGOLD. So it is as narrow as being at the January 

2000 meeting in Kuala Lumpur? 

Mr. MUELLER. With terrorists, yes, with terrorists. 

Senator FEINGOLD. What would be the other category? 

Mr. MUELLER. You can have associates of terrorists, in the wake 

of September 11, for instance. 

Senator FEINGOLD. How do you define ‘‘associates of terrorists?’’

Mr. MUELLER. Well, in the wake of September 11, we go to the 

flight schools and say, OK, this individual was a hijacker. Who 

were the friends? Were there any companions that he hung around 

with? If there were, we want to identify them. We want to know 

whether that individual is in the United States contemplating a 

terrorist act. 

The only way we can identify that person is that person is 

stopped, but we put in identifying—there are differences in names, 

but where we have it—and I would say in 99 out of 100 circumstances we put in dates of birth, information that we gather 

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from the passports as they come into the United States so that 

there is some specificity. 

Senator FEINGOLD. I appreciate that. Let me just ask, does the 

FBI have a procedure for helping airline security quickly determine 

if someone whose name comes up on a list is actually the person 

that the FBI intends for security to stop? 

I understand in this instance, at least one analysis of this instance was that it was just that somebody’s name was similar to 

somebody else’s name. 

Mr. MUELLER. Well, we have a 24-hour watch that is the recipient of telephone calls, but it may not be the FBI. Other agencies 

also have persons that they put, for a variety of reasons, on the 

watch list, not just the FBI. 

Senator FEINGOLD. I guess my time is up. I will come back on 

another round. 

Chairman LEAHY. Thank you. 

Senator Durbin? 

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

General Thompson and Director Mueller, thank you for joining 

us. I want to return to this Phoenix memo. I am very troubled by 

this and I think that it is likely to become a major concern for 

Americans because in my committees on Capitol Hill we have been 

assured and reassured that the tragedy of September 11 was unanticipated. It came as a startling surprise to those who followed terrorist activities, and it was understandable because our theory 

about hijacking for the longest time had been be submissive, be cooperative, and everything will work out. We came to learn on September 11 that we were just plain wrong. 

Let me go back to this Phoenix memo, if I can, and I believe a 

question was asked earlier, did the FBI agent in Phoenix in communicating this memo link any of his concerns with Osama Bin 

Laden? 

Mr. MUELLER. I am not certain of that. I would have to go back 

and read that memorandum. 

Senator DURBIN. If such a linkage were made, would you agree 

that the Office of Counterterrorism should have paid special attention to that memorandum? 

Mr. MUELLER. I think the Counterterrorism Section should 

have—it did pay some special attention to that memorandum. 

There were specifics in there that required further investigation, at 

least one other office. That other office was alerted. I would agree 

that it should have disclosed that memorandum or discussed that 

memorandum with the CIA. 

Senator DURBIN. But that was done, to your knowledge? 

Mr. MUELLER. I do not know whether that was done at a lower 

level. 

Senator DURBIN. Director Mueller, will you be releasing this 

memorandum? 

Mr. MUELLER. It is still a classified memorandum. There are aspects of the memorandum that, in my view, still should remain 

classified because it is an ongoing investigation. The memorandum 

in full has been disclosed to the Intelligence Committee. In terms 

of releasing the memorandum, publicizing it, no, I would not support that. 

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Senator DURBIN. Would you release a redacted form of this 

memorandum? 

Mr. MUELLER. We have released, I believe, and sought declassification of that which I think we can. In other words, there is a 

paragraph of it that I know has been released. I am not certain 

whether there are any other areas of it that can. We would have 

to look at that and get back to you. 

Senator DURBIN. But the FBI, the Department of Justice, or 

some other agency, to your knowledge, actually contacted the press 

for this May 4 story that was reported in several newspapers about 

the memorandum? 

Mr. MUELLER. Contact and trigger the——

Senator DURBIN. Yes. 

Mr. MUELLER. No, not to my knowledge. No. I want to say no. 

It came as some surprise. 

Senator DURBIN. Do you believe as you testify today that the FBI 

ignored a clear warning about the pending events of September 11 

by not responding properly to this memorandum? 

Mr. MUELLER. Yes, I would disagree with that statement. I think 

the recommendations of the agent are something that we should 

have more aggressively pursued. I do not believe that it gave the 

sign post to that which would happen on September 11. 

Of the warnings that we had, the stopping of Moussaoui, the arrest of Moussaoui, brought the Bureau, and particularly the agent 

in Minneapolis, to the belief that this individual is the type of individual that could and might be the type of individual to take a 

plane and hijack it. In fact, if I am not mistaken, in one of the 

notes, the agent in Minneapolis mentioned the possibility of 

Moussaoui being that type of person that could fly something into 

the World Trade Center. 

Senator DURBIN. Press reports focus on Embry Riddell University in Prescott, Arizona, as the concern of this Phoenix agent. Certainly, Moussaoui was involved in another aviation school, if I am 

not mistaken. 

Mr. MUELLER. In which one? 

Senator DURBIN. Moussaoui was involved in training at another 

school. 

Mr. MUELLER. Yes, that is correct. 

Senator DURBIN. So the FBI felt within a few weeks that taking 

action against Moussaoui at another school was appropriate. Was 

that memo taken into consideration, do you believe, in that decision? 

Mr. MUELLER. I am sorry. Which decision would that be? 

Senator DURBIN. The decision to pursue Moussaoui, to arrest 

him. 

Mr. MUELLER. I don’t believe the Arizona EC was factored—I am 

not certain, but I do not believe the Arizona EC factored into the 

decision to arrest Moussaoui. It was the agent who went out to Pan 

Am aviation school who determined that this person presented a 

threat, had no basis to arrest this person, but saw that he was out 

of status and asked the INS to arrest him. 

Senator DURBIN. I want to reiterate that I know that this happened before you were in your position of leadership, but I think 

it reflects on what we are discussing today, the process at the FBI 

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and how it has been pursued. I believe the Phoenix memo is going 

to come to be one of the most important documents in our national 

debate about whether we did enough to protect America from the 

attacks of September 11. 

It strikes me that a memo coming from an agent of the FBI to 

the counterterrorism office in Washington which identifies concerns 

about terrorists and their linkage to other terrorist organizations 

involved in aviation training, and calls on the agency to move 

quickly to respond at several different levels with limited impact, 

limited effect, from what we hear today, is going to be a source of 

further investigation and concern. 

I urge you, if it is possible, to release this memo, even in redacted form, so that there is no element of concern that we are not 

being frank and candid with the American people about what happened. I hope that you will consider that. 

Mr. MUELLER. I will. 

Senator DURBIN. Thank you. Thank you, Mr. Chairman. 

Chairman LEAHY. I would note that this committee made that request about a week ago of the FBI. We are still waiting and hope 

at the very least we can make it available to members. 

Director, in addition to the Phoenix memo, the press reported 

that Filipino authorities alerted the FBI as early as 1995 that at 

least one of the Middle Eastern pilots who trained at American 

flight schools had proposed hijacking a commercial jet and crashing 

it into Federal buildings. A month before 9/11, the FBI arrested 

Zacarias Moussaoui as a result of his suspicious behavior at a 

flight school. 

Was the information in the Phoenix report or the information 

provided by the Filipino authorities in 1995 considered by the FBI 

when it was determining whether to seek a FISA search authority 

on Moussaoui? 

Mr. MUELLER. I am not certain about that, Mr. Chairman. 

Chairman LEAHY. Do you suppose we can get an answer on that 

for the record? 

Mr. MUELLER. Sure. 

Chairman LEAHY. We can discuss whether we could get FISA or 

not, but I would think that if the press reports are accurate about 

the information provided by the Filipino authorities, that is something that should have been considered. 

Mr. Thompson, I noticed that twice in your testimony you referred to an expensive and extensive study done by what you call 

a private consulting firm and a management consulting firm. Actually, the unnamed firm is Arthur Andersen, the same Arthur Andersen that is prosecuted by the Department of Justice in a Texas 

courtroom today. 

While the Attorney General has recused himself from that, and 

appropriately so, you have not, and also appropriately so. So I am 

going to ask you a few questions. 

I was concerned about Arthur Andersen in early January and 

asked about the role Arthur Andersen played in the Department’s 

review of the FBI. The Department’s response in February stated 

that only the audit practice was under investigation, not the consulting practice used for the FBI review. 

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Shortly after Arthur Andersen had completed its work on the 

FBI, on December 14 OMB asked the General Services Administration to determine whether to allow Arthur Andersen to continue 

doing business with the Government. In the end, both Arthur Andersen’s consulting and auditing practices were suspended from 

further Government work based upon its unsatisfactory record of 

integrity and business ethics. 

What reliance, if any, are you placing on the Arthur Andersen 

report as you move forward with FBI reorganization? 

Mr. THOMPSON. Mr. Chairman, let me just briefly explain to you 

the background by which Arthur Andersen was selected to participate in our review, if that would be helpful. 

Chairman LEAHY. They were selected prior to the Enron debacle. 

Mr. THOMPSON. That is correct. 

Chairman LEAHY. I understand that, but what reliance are we 

having on their report today? 

Mr. THOMPSON. We are relying on certain aspects of the Andersen report. The Attorney General also asked us to review a number 

of other reports and to undertake a number of other steps in coming to conclusions, and taking into consideration, before we made 

our recommendations to him. 

For example, Mr. Chairman, he asked us to consider the report 

of the Webster Commission. He asked us to consider the two IG reports, the one that dealt with the Oklahoma City bombing documents and the one that dealt with the internal security problems 

of the FBI in the wake of the Hanssen matter. As you know, he 

also asked us to conduct interviews of individuals both within the 

Department of Justice and outside of the Department of Justice, including Members of Congress. 

So the Andersen report, which was completed before the issues 

of the Enron investigation arose—the Andersen report, along with 

the other documents and studies and our interviews, will all be 

considered in our recommendations to the Attorney General. 

Chairman LEAHY. So the Andersen report will be one of the 

things you rely on? 

Mr. THOMPSON. Yes, sir. 

Chairman LEAHY. The FBI Reform Act codifies the Attorney General’s decision last year to authorize the Justice Department Inspector General to investigate cases of FBI misconduct. The FBI 

Office of Professional Responsibility would still have an extremely 

important role. The Office of Professional Responsibility, OPR, 

would continue to investigate FBI misconduct allegations, especially those the IG chose not to handle. 

But they also make crucial recommendations, Director, to you on 

disciplinary sanctions, and so OPR leadership is important because 

of the message it sends throughout the FBI. Last year, several FBI 

officials who had sterling records of ethical integrity described 

these problems at a committee oversight hearing, and their courage 

and devotion to the Bureau’s interests were extraordinary. I got 

letters, calls, e-mails, and so on, from agents all over the country 

praising them. 

What are your views on the need for OPR leadership to send the 

right ethical signals throughout the Bureau? 

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Mr. MUELLER. It is critically important that we have an OPR, 

what in a police department would be an internal affairs unit, that 

is perceived as being fair, is fair, and therefore perceived as being 

fair, expeditious. That is one of the things that I am looking at. 

I believe that in looking at the workload, we have taken too long 

to resolve certain cases. We are looking at the possibility of delegating some of the smaller issues to the SACs to free up OPR to 

work on cases more quickly and get the resolutions resolved as 

quickly as possible. 

We have tried to eliminate any discrepancies between the handling of cases, whether it be an agent or somebody in the SES, and 

we are still working at that. But it is critically important that OPR 

be, and be perceived as, fair and expeditious. 

Chairman LEAHY. Thank you. I have other questions, but Senator Schumer is here. 

Senator Sessions, did you want to ask questions? 

Senator SESSIONS. Yes. 

Chairman LEAHY. Go ahead. 

Senator SESSIONS. Mr. Chairman, I appreciate the opportunity to 

ask a few questions. 

It is great to see two fine citizens before us, Larry Thompson and 

Bob Mueller. No government could have finer public servants than 

they, or have the experience and background and do the job that 

they do. I know, as Deputy Attorney General, Mr. Thompson has 

to deal with a lot of frustrating issues, trying to get people to agree 

and work together. But he has the skills to do that, and proved 

that as United States Attorney in Atlanta, and I had the opportunity to work with him. My admiration for Mr. Mueller is 

unbounded as a career professional prosecutor of the highest order. 

Mr. Thompson, you remember, I am sure, when President 

Reagan appointed William French Smith as Attorney General, and 

the Associate Attorney General was Rudy Giuliani and he established law enforcement coordinating committees. That was a direction to the United States Attorneys and all Federal agencies to 

work with local agencies, to have meetings and a formal committee 

to identify the law enforcement priorities in that district and to 

focus on those priorities. In other words, use the Federal resources 

within the area to the highest priorities of the area, somewhat diminishing the idea that everything should be decided in Washington. 

I thought that was a great success. I think you thought so, too, 

so I will ask if you are troubled by the priorities appearing to be 

awfully tough from the top of the FBI down. 

Mr. THOMPSON. Senator Sessions, I do agree that the LECCs remain an important law enforcement tool to help the Federal law 

enforcement agencies and to help focus our Federal resources and 

lash them up, if you will, with our State and local colleagues and 

to focus on the particular crime problems in individual districts. 

One of the things that the Attorney General has done and the 

Director has done with respect to our important efforts against terrorism is to again try to use various mechanisms to focus our Federal resources with our State and local colleagues. 

For example, in each judicial district there has been established 

antiterrorism task forces, which are coordinating mechanisms with 

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respect to the U.S. Attorneys to work with their State and local colleagues to identify particular issues as it relates to terrorist incidents and how to respond to terrorist incidents. 

The Director has expanded the FBI’s Joint Terrorism Task 

Forces, which again are investigative bodies but which do take into 

consideration the use of various State and local resources in this 

important effort. So I think this kind of approach to Federal law 

enforcement is important and effective. 

Senator SESSIONS. Well, I suppose that we would not dispute 

that terrorism is the No. 1 priority for the Federal Government at 

this time, so I don’t mean to diminish that. But it may not be the 

No. 1 priority in a given district, or there may be varied leads, investigations, or activities that need to be undertaken in a given 

Federal FBI SAC area. 

Mr. Mueller, are we sure that we will still be able to give appropriate credit to agents who do important bank robbery cases or important bank fraud cases, or contribute to important drug cases? 

Are we creating a circumstance in which the FBI is basically saying these are our priorities, you are expected to work these and virtually only these, and the end result would be to pull back from 

cooperation with local law enforcement in developing the priorities 

of the district? 

Mr. MUELLER. I don’t think we can respond in that way. To the 

extent that an SAC in a particular division has a counterterrorism 

responsibility—and one of the reasons that we need to give additional resources to the counterterrorism program is you have to develop sources, you have to develop contacts, you have to develop intelligence. And that is often a thankless job in the sense that it 

does not result in a prosecution that is something you can grasp 

and take credit for. 

So we have to emphasize the counterterrorism program in each 

of our offices, but I do not want agents sitting on their hands with 

nothing to do. So what I have asked each of the SACs to do is determine the extent of the workload for agents on the 

counterterrorism program in their particular division, and then I 

want to get them that resource, and it may come from other programs. 

But with regard to where that SAC takes the manpower from, 

the SAC should have some say in that because what is good for one 

SAC in Los Angeles may not be good for the person in Birmingham. The threat in a particular division should be evaluated, 

and the SAC should have perhaps more flexibility than the SAC 

has had in the past in devoting those criminal resources to the 

threat in a particular division once the priority of counterterrorism, 

counterintelligence, is discharged. 

Senator SESSIONS. With regard to setting priorities, which I 

would indicate to mean if there is a conflict in time, the highest 

priorities would be served first, I am comfortable with that. I just 

do not think we should create a circumstance in which we don’t 

have time to do identity theft matters. That is a matter of importance to this committee right now. I believe we are not sufficiently 

investigating bankruptcy fraud. I think there is a lot of it. It is a 

Federal court. No one else should do it but the FBI, in my view, 

and they haven’t committed enough there. 

163

So there are some things that I think need to be done. I don’t 

want to see a message go out that so overwhelms the agents that 

they believe the only thing they can do to gain favor or earn merit 

is a terrorist or homeland defense-type issue. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Senator Schumer? 

Senator SCHUMER. Thank you, Mr. Chairman. 

First, let me thank each of you for your service to our country. 

My colleagues have discussed a lot of questions regarding FBI organization, reorganization, efforts after 9/11, and anthrax. I have 

some followup questions that I would like to put in writing, but I 

would like to address to Mr. Thompson——

Chairman LEAHY. We will leave the record open for questions in 

writing from all Senators. 

Senator SCHUMER. Thanks, Mr. Chairman. 

Now, I would like to ask Mr. Thompson—I just want to take a 

moment to address with you the extraordinary action taken by the 

Department yesterday. The Justice Department used footnotes in 

two Supreme Court briefs to announce a massive change of course 

in our Nation’s gun control policy. For the first time in 60 years, 

the Federal Government is saying that the right to bear arms is 

an individual right. 

First, this decision wasn’t made after discussion, debate, or any 

open dialog whatsoever. It wasn’t made in consultation with Congress or the States, and it wasn’t put forward with the kind of detail and analysis that such a significant policy change would usually come with. Instead, it was done undercover, buried in footnotes. 

Now, the broad principle that there is an individual right to bear 

arms is shared by many Americans, including myself, but there are 

limits on those rights. We limit freedom of speech, the First 

Amendment, when we say you can’t falsely shout ‘‘fire’’ in a crowded movie theater. At the same time, we should be able to put restrictions on who can own guns, and how, when and where they 

may be possessed. 

At his confirmation hearing, Attorney General Ashcroft swore to 

enforce and defend all existing Federal gun laws. In answer to 

questions from me, he said, ‘‘I understand that being Attorney General means enforcing the laws as they are written, not enforcing 

my personal preferences.’’

Then he also said, ‘‘I believe that there are constitutional inhibitions on the rights of citizens to bear certain kinds of arms, and 

some of those I would think good judgment, some of those I would 

think bad judgment.’’ These are his words. ‘‘But as Attorney General, it is not my judgment to make that kind of call. My responsibility is to uphold the acts of the legislative branch of this Government in that arena, and I would do so and continue to do in regard 

to the cases that now exist and further enactments of Congress.’’

Well, Mr. Thompson, it just would appear on its face that the Attorney General is doing a 180-degree about-face from what he told 

us not too long, without any consultation, any notice, any discussion. It is no way to do business and I am sort of shocked by it. 

The Department of Justice is saying that the right to bear arms 

is subject to ‘‘reasonable restrictions,’’ but the devil, as always, is 

164

in the details. So I have a series of questions for you about what 

constitutes a reasonable restriction. 

First, is the Federal ban on assault weapons a reasonable restriction? Is the Federal ban on felons owning firearms a reasonable restriction? Has the Justice Department considered how State laws 

would be impacted? 

For example, New York has a strict licensing and registration 

law. Does the Attorney General’s Justice Department believe that 

the law is unconstitutional? Is Maryland’s 7-day waiting period unconstitutional? How about California’s ban on Saturday night specials? 

The District of Columbia, a city that was not only the Nation’s 

Capital but once it was the Nation’s murder capital, has the strictest gun laws in the country. Unless you are law enforcement, you 

pretty much can’t have a gun in D.C. Federal prosecutors enforce 

D.C.’s gun law. It seems almost by definition, without discussion, 

that what the Justice Department said in a footnote would overturn that D.C. law. 

So I would ask you the answers to these questions. What is the 

Justice Department’s actual view, given that in these two footnotes 

they reverse 60 years of Government policy, something not reversed by any previous administration, Democrat or Republican? 

What is the view on these questions? 

Mr. THOMPSON. Senator, the footnote that you refer to, as I understand it, was contained in a pleading that was filed by the 

United States, by the Solicitor General’s office, in opposition to a 

cert petition in which an individual was convicted of a gun crime. 

That was in the Fifth Circuit. The case was Emerson. Following the Emerson decision, the Attorney General sent a 

memo out to all United States Attorneys in which he committed 

and set forth his and the Department’s view that we are going to 

aggressively continue to vigorously and aggressively prosecute and 

enforce the gun laws, and we are going to vigorously defend the 

gun laws against constitutional attack. He also set forth in that 

memorandum the position which the court in Emerson recognized 

in its decision, the Fifth Circuit, that the Second Amendment is an 

individual right. 

The footnote was appropriate, in my judgment, as sort of a duty 

of candor to the Supreme Court to let the Supreme Court know 

what the Attorney General had communicated pursuant to the Department of Justice——

Senator SCHUMER. So it was a reversal of policy, a dramatic reversal of policy. I mean, there was a 1939 case whose name slips 

my mind—he will write it down and give it to me—that said, no, 

the right to bear arms was related directly to the ability of States 

to raise a militia. 

Mr. THOMPSON. I understand that. 

Senator SCHUMER. There has been a great deal of discussion 

about that over the last 62 years about whether that is right or 

wrong. 

Do you disagree that the footnote wasn’t a real change in the policy of the United States Government? 

Mr. THOMPSON. No, sir. I believe the footnote was appropriate in 

the context of this litigation, in which the Fifth Circuit embraced 

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in its decision the Second Amendment individual right to bear 

arms, and in the context of a duty of candor to the Supreme Court 

in opposition to this petition. 

But to answer your concern, Senator, the Attorney General and 

the Department are both committed to vigorously enforcing the 

guns laws and are committed to enforcing those laws against constitutional attack. 

Senator SCHUMER. Sir, with all due respect, we don’t know what 

you think the gun laws are. You say you will enforce the law. That 

is what the Attorney General said at his hearing. 

If I might, Mr. Chairman, could I go on a little bit here? 

Chairman LEAHY. Yes. 

Senator SCHUMER. Yet, they have done what every newspaper 

today called a dramatic reversal. 

Let me ask you this specific question. Would this footnote that 

there is an individual right to bear arms now mean that there will 

be a change in policy in regard to the District of Columbia’s approach which says unless you are law enforcement, you don’t have 

a right to bear arms? 

Mr. THOMPSON. I don’t know. I don’t want to get too far into discussing the implications of this case because it is pending litigation. 

Senator SCHUMER. No, that is not this case. I am asking how you 

would interpret the new law, the new way the Justice Department 

reads the Second Amendment in regard to D.C.’s law, not in regard 

to the Emerson case, which is a pretty narrow case. 

Mr. THOMPSON. I can only interpret, Senator, how the Justice 

Department will enforce Federal laws. 

Senator SCHUMER. This is Federal. 

Mr. THOMPSON. Well, D.C. is a different situation. You are talking about the D.C. 

Senator SCHUMER. It is enforcement. It is under the Attorney 

General’s direct supervision. 

Mr. THOMPSON. If you are talking about enforcing the gun laws, 

then as I said before, the Department is going to vigorously enforce 

the gun laws. In fact, we have an initiative, Project Safe Neighborhoods, in which we are vigorously enforcing crimes committed with 

guns. 

Senator SCHUMER. I understand you are doing certain other 

things. I would like to get an answer to my specific question, which 

is will the Justice Department continue to enforce the District of 

Columbia’s gun law which says you can’t have a gun unless you are 

law enforcement? That is basically what it says. 

Mr. THOMPSON. As I understand your question, the District of 

Columbia, while it is controlled by the Congress, is not the type of 

situation in which I am prepared to answer a question with respect 

to criminal enforcement. That is what the Attorney General addressed in his memo to all the United States Attorneys. 

I don’t believe it would have any impact on the District of Columbia. As I understand it, it is a D.C. City Council ordinance. 

Senator SCHUMER. But enforced federally, and if you are making 

a constitutional ruling here or a constitutional assumption that the 

right to bear arms rests with the individual, it would seem to contradict D.C.’s law. 

166

Mr. THOMPSON. I mentioned to you the Attorney General’s 

memorandum to all the U.S. Attorneys, and as I understand his 

memorandum, I do not think that the footnote nor his memorandum would change the way we would view the D.C. law that 

was passed by the D.C. Council. 

Senator SCHUMER. The same with New York City’s laws, which 

are not as strong as D.C.’s, but strong, that talk about licensing 

and registration, fairly strict licensing and registration where you 

need some rationale to have a gun? 

Mr. THOMPSON. Yes, sir. 

Senator SCHUMER. And there are no plans afoot to then have another footnote 3 months from now saying that the D.C. law is 

wrong? Let me ask you one other question. Answer that one and 

then——

Chairman LEAHY. The Senator’s time has expired. 

Senator SESSIONS. Well, Mr. Chairman, I would like to clean up 

after he is through. 

Chairman LEAHY. I am going to give the Senator from Alabama 

the same amount of time as the Senator from New York. As he 

knows, I always try to balance that out. 

We will have time for another round, but Senator Feingold has 

been waiting for his round. Then it will be my turn next. I will go 

to the Senator from Alabama and he will be given the same 

amount of time. I always try to be fair. 

Senator SESSIONS. You always do. 

Chairman LEAHY. Senator Feingold? 

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

For both of you, the Justice Department has consistently refused 

to provide any information at all on individuals that are being held 

as material witnesses. The administration has even refused to reveal the number of individuals being held as material witnesses or 

which courts have issued warrants. 

At the same time, I am afraid there are disturbing reports that 

the authority to detain material witnesses is being abused to lock 

up individuals who cannot be jailed on other grounds. Press reports 

have identified more than 20 individuals who may have been jailed 

on this ground. Again, all of these people are Arabs or Muslims, 

and some apparently were never even questioned by a grand jury 

or court before being released. The Washington Post reported earlier this week that one individual was jailed as a material witness 

after coming forward voluntarily to provide information to the FBI 

about the hijackers. 

A Federal district court in New York last week ruled that the 

Justice Department used the material witness authority improperly 

to lock up an innocent individual for almost 3 months in connection 

not with a criminal trial, but with a grand jury proceeding. 

A fundamental constitutional value of this country is that individuals may not be locked up unless they have been accused of or 

convicted of a crime. A very narrow exception, of course, is provided 

in the material witness statute, but only under very specific circumstances, and only until the witness’ testimony can be preserved 

for trial. 

Given the total secrecy surrounding the Department’s use of material witness warrants, and given the news reports that have come 

167

out so far on the Federal court’s ruling, how can the American public be reassured that the Government is not simply jailing Arabs 

and Muslims arbitrarily? 

Mr. Thompson? 

Mr. THOMPSON. Senator, as a Federal prosecutor and as U.S. Attorney, I in my office routinely used material witness warrants to 

secure the appearance of a witness before a grand jury. The Department has routinely used these warrants in that way. That is 

the way, for example, Terry Nichols was detained in connection 

with the Oklahoma City bombing investigation. 

The decision of the judge in the Southern District of New York, 

to my knowledge, is the first time that the material witness statute 

was held to be not applicable to a grand jury proceeding. This is 

an appropriate law enforcement technique in connection with certain kinds of investigations, especially in connection with terrorism 

investigations, whether they are international terrorist investigations or domestic terrorism investigations, like the Oklahoma City 

bombing case. 

So you have a decision by one judge that, to my knowledge, is 

counter to how this statute has been interpreted. I would respond 

to your question by saying that there is nothing inappropriate by 

the way this statute and this law enforcement technique is being 

used in these investigations. 

Senator FEINGOLD. Mr. Mueller, do you want to respond to that? 

Mr. MUELLER. Only to say that whenever one has to get a material witness warrant, one gets the material witness warrant from 

a judge and you have to make a showing before the judge in order 

to get the material witness warrant. You have to make a showing 

to the judge that there is testimony that you want to obtain before 

the grand jury, and once that testimony has been obtained then ordinarily the person is discharged. 

I am not aware of an instance where there is an individual who 

has been detained for whom we did not want to have information 

given to the grand jury about certain activities related to terrorism, 

not just something out of the sky, but related to terrorism. So I 

think you can assure the American public that this process is monitored by the judiciary and it is engaged in for the purpose of obtaining testimony from individuals who otherwise would not be 

forthcoming, individuals who do not want to cooperate, but for 

which we need the use of the grand jury so that they are compelled 

to testify under oath. 

Senator FEINGOLD. Well, I appreciate that answer. I am concerned that there would be abuses in this area, but I certainly will 

want to follow that up. 

Let me ask you another question that is more on the sort of pragmatic side of this. I mentioned earlier the story in the Washington 

Post on Sunday about an Egyptian immigrant who voluntarily 

came forward to help the FBI after the September 11 attacks. 

Eyad Alrababa went to the FBI because he had some contact 

with two of the hijackers and thought he could be helpful to the 

investigation. Instead, he was rewarded with 7 months in Federal 

custody, almost entirely in solitary confinement, on a material witness warrant, followed by his conviction for a fraud matter unreVerDate 0ct 09 2002 13:30 Aug 06, 2003 Jkt 088571 PO 00000 Frm 00171 Fmt 6601 Sfmt 6601 C:\HEARINGS\88571.TXT SJUD4 PsN: CMORC
168

lated to the 9/11 attacks. Eyad, who is engaged to a U.S.-born citizen, now faces deportation once he is released from prison. 

Now, in this case and the case involving a Jordanian student, 

don’t you think such use of the material witness statute might discourage people from within the Arab and Muslim community from 

coming forward with information to help us combat terrorism? 

Mr. Thompson? 

Mr. THOMPSON. What was the name of the individual again? 

Senator FEINGOLD. Eyad Alrababa. 

Mr. THOMPSON. I am not familiar with that particular case. But 

as Director Mueller said, if the material witness warrant was presented to a court with sufficient facts and sufficient predicate activities and necessity pled, then I think the American public could 

be assured that that was a proper use of the warrant. 

I don’t think it would necessarily be counterproductive or some 

kind of negative implication to otherwise law-abiding citizens, 

whether they be of Arab American background or any other background, from cooperating with law enforcement authorities, Senator. 

Senator FEINGOLD. Mr. Mueller? 

Mr. MUELLER. I did read the article, and I understand the individual and I think his girlfriend were awfully voluble with the 

press in terms of their side of the story. I venture to say there is 

another side of the story in terms of information that was sought 

by the prosecutors and the investigators. Again, it was a judge supervising this process, and the one item that you did note is that 

the individual pled guilty to certain offenses at the end of the day. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

As I said, I will skip my time and go to the Senator from Alabama. 

Senator SESSIONS. Well, Mr. Chairman, thank you for your courtesy. 

With regard to the material witnesses, they can have lawyers, 

they can write to the newspaper. They are not held so they can’t 

communicate with the outside world. Is that correct? 

Mr. THOMPSON. That is correct, Senator. 

Senator SESSIONS. All the Department is saying, as I understand 

it, is they are not going to voluntarily list the names of everybody 

that is being held, for reasons that the individual may not want 

their name being out. Maybe their family would be subject to reprisal if they knew that they may be talking to the Government or 

are being held by the Government. There are a lot of reasons someone might not want their name put in the paper, but they could 

do so if they wished. Is that not correct? 

Mr. THOMPSON. That is correct, Senator. There are legitimate 

privacy and security concerns with respect to that kind of information being made public. 

Senator SESSIONS. I just don’t see that we have a problem there. 

Of course, a judge has to approve the material witness warrant. 

Also, under the habeas corpus rule, Mr. Mueller, a defendant can 

ask to be brought before the judge and require the Government to 

justify why they continue to hold them. That is the Great Writ that 

we have in this country. It does apply to these cases, does it not? 

169

Mr. MUELLER. It does, but I have not seen a circumstance where 

if a material witness, apart from habeas corpus, but a material witness held by a judge where, through the lawyer, there was some 

reasonable necessity for being brought before the judge, the judge 

would decline to take that opportunity to find out what the concern 

was. 

Senator SESSIONS. Well, I just think it would cast the wrong impression to suggest that they are held in secrecy, they can’t talk 

to a lawyer, they can’t communicate with their family, they can’t 

write a letter out of the prison. Those things are not true. If they 

want to write the New York Times to say they are being held, they 

can write them. 

With regard to the matter of gun control, this question of whether or not the Second Amendment is a matter of individual rights 

is a matter, I think, that is important. I think it is a matter of individual rights. 

Isn’t it true, Mr. Thompson, that Professor Laurence Tribe, the 

liberal professor, in his constitutional law book, who has studied 

this issue in depth, has written that it is, in fact, a matter of individual rights? 

Mr. THOMPSON. That is my understanding, Senator. 

Senator SESSIONS. To say that in a footnote does not mean anything other than that you are candid with the court about what the 

position of the Department of Justice is with regard to that issue. 

Frankly, with regard to the District of Columbia, if their law is 

so broad that it says only police officers can possess firearms, I 

hope you will not make a concrete position to suggest you would 

never question the validity of some of those laws. It may be that 

on careful review that some of them may not withstand constitutional muster. 

We know, of course, that most of the gun control laws have been 

upheld repeatedly, and I assume the Department is not opposing 

any of the general laws that we use to enforce against gun violations. 

Mr. THOMPSON. I understand that point, Senator, and I would 

just point out in further response that I think people here, and perhaps even the media, are forgetting that the briefs in question, the 

briefs that Senator Schumer referred to here—the brief that was 

filed by the Department of Justice actually defended existing gun 

laws. It took the position of defending existing gun laws and a conviction. As I said in my response to Senator Schumer, the Attorney 

General and the Department are committed to a vigorous enforcement of our existing gun laws. 

Senator SESSIONS. In fact, do you believe that this Department 

is enhancing the number of convictions and prosecutions under the 

existing Federal gun laws? 

Mr. THOMPSON. I would hope so. 

Senator SESSIONS. The United States Attorney in Alabama told 

me he was substantially increasing the number of prosecutions in 

his district for gun violations. I have criticized the former Department of Justice under President Clinton for allowing those prosecutions to plummet by as much as 40 percent. While they wanted to 

pass laws that bound innocent people, at the same time they were 

allowing the prosecutions of criminals with guns to go down. 

170

The question of possessing a firearm during commission of a 

crime, possession after conviction of a felony, filing false documents 

to obtain a firearm—all the traditional bread-and-butter statutes 

that we have in law—are not jeopardized by this footnote about individual rights, are they? 

Mr. THOMPSON. No, sir. 

Senator SESSIONS. Not even close to it? 

Mr. THOMPSON. No, sir. 

Senator SESSIONS. This Department not only defends those as 

being legal and constitutional, but is stepping up prosecution of 

those cases, are you not? 

Mr. THOMPSON. That is correct, and in connection especially with 

our Project Safe Neighborhoods. 

Senator SESSIONS. Well, I just think that we need to be more rational here about how we approach this. We have a group that says 

airplane pilots can’t even have a gun in the cockpit in case somebody breaks in and tries to take over the airplane. If they are 

trained properly, I am amazed that people would object to that. 

I think the chairman is concerned, as I am, that a law officer 

who might cross a jurisdictional line could be arrested because he 

is carrying a gun that he carries every day of his life in his work. 

So I just think it is important for us to know that this is not an 

action in this footnote that would in any way undermine the commitment of this Department of Justice to not only continue enforcement, but to enhance the enforcement of gun laws. Would you 

agree with that? 

Mr. THOMPSON. That is correct, Senator. I would agree. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Chairman LEAHY. Just think how easy it would be if all States 

had Vermont’s gun laws. Just so you understand what that means, 

we have very limited ones. Anyone can carry a loaded concealed 

weapon in Vermont. There is no permit required. We would even 

allow you to. 

Senator SESSIONS. Even a United States Senator from Alabama? 

Chairman LEAHY. From Alabama. 

There are two specific things. During deer season, you are limited to the number of rounds you can have in your semi-automatic 

assault weapon to give the deer a chance. This is true. I mean, this 

is actually what the law is. Signs go up on the outskirts of Montpelier, our State capital, which notify that during deer season, if you 

are hunting inside the city of Montpelier, like on the State House 

lawn, you can only use buckshot. I do not want to start a sudden 

sweep to Vermont, but that is the law. 

This does create a problem, however, and that is during deer season so many out-of-state tourists stop to photograph those signs, 

usually with the State Capitol prominently in the background, that 

we have had a number of fender-benders, but the law will probably 

stay the same. 

As I read the opinion we discussed, incidentally, the judge’s opinion just recently discussed, the person in New York was held, one, 

in solitary. Two, he was shipped across the country. And, third, his 

own lawyer couldn’t find him for some time. That makes it a little 

bit more difficult to file habeas corpus. Most people wouldn’t know 

171

how to file habeas corpus. Their lawyer might, but the lawyer has 

got to find them first. 

Gentlemen, we are about to have a vote on the floor on a matter 

not too far down the coastal highway with Vermont, a matter that 

we have some interest in, the farm bill. So I will submit the rest 

of my questions for the record. 

I do want to say I appreciate very much your being here. General 

Thompson, you have had to take on extra duties and I appreciate 

the way you have taken them on. 

Director Mueller, I just want to state for the record that I have 

called you on a number of very difficult issues, some where I have 

had questions and members of this committee have had questions, 

and your candor is most appreciated. I think the kind of candor 

and directness you have shown is going to serve the Bureau well. 

There are many who want that. 

You have a national treasure in the men and women who work 

there, and the training they undergo and the standards they have 

to uphold. We want to make sure that that doesn’t get submerged 

in bureaucracy, but is encouraged to do the best for this country 

in a very dangerous time. So I appreciate that. 

We will stand adjourned. 

[Whereupon, at 4:11 p.m., the committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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