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86–517 PDF 2003

S. HRG. 107–920

OVERSIGHT HEARING ON

COUNTERTERRORISM

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

JUNE 6, 2002

Serial No. J–107–83

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 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delware ............... 68

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington ................ 61

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................ 47

Durbin, Hon. Richard, a U.S. Senator from the State of Illinois ......................... 57

Edwards, Hon. John, a U.S. Senator from the State of North Carolina ............. 64

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 43

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 36

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 24

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

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 21

prepared statement .......................................................................................... 287

Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin ............................ 28

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 39

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

prepared statement .......................................................................................... 289

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 50

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 54

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 31

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina ........ 338

WITNESSES 

Fine, Glenn A., Inspector General, Department of Justice, Washington, D.C. .. 11

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

of Justice, Washington, D.C. ............................................................................... 8

Rowley, Colleen M., Chief Division Counsel, Federal Bureau of Investigation, 

Department of Justice, Washington, D.C. .......................................................... 76

QUESTIONS AND ANSWERS 

Responses of the Department of Justice to questions submitted by Senator 

Feingold (July 21, 2003) ...................................................................................... 107

Responses of the Department of Justice to questions submitted by Senators 

Leahy, Cantwell, Kohl, and Sessions (July 22, 2003) ....................................... 122

Responses of the Department of Justice to questions submitted by Senators 

Leahy and Cantwell (August 29, 2003) .............................................................. 189

Response of Coleen M. Rowley to a question submitted by Senator Feingold ... 205

Responses of Glenn A. Fine to questions submitted by Senators Leahy, Cantwell and Feinstein ................................................................................................ 210

SUBMISSIONS FOR THE RECORD 

American Civil Liberties Union, Marvin J. Johnson, Legislative Counsel, 

Washington, D.C., analysis ................................................................................. 210

Associated Press, Doug Simpson, June 4, 2002, article ....................................... 231

Center for Democracy and Technology, Jerry Berman, Executive Director, 

Washington, D.C., observation ............................................................................ 232

Department of Justice: 

John E. Collingwood, Assistant Director, Office of Public and Congressional Affairs, letter ...................................................................................... 236

Coleen M. Rowley, Special Agent and Minneapolis Chief Division Counsel, letter ........................................................................................................ 240

paper, June 5, 2002 .......................................................................................... 253

Page

IV

Federal Bureau of Investigation: 

memorandum, May 18, 1998 ........................................................................... 259

instruction to all field offices, April 4, 2001 ................................................... 260

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

prepared statement .............................................................................................. 274

Leahy, Hon. Patrick J.: 

letter (October 25, 2001) and attachment ...................................................... 293

letter (November 8, 2001) and attachment .................................................... 296

Leahy, Hon. Patrick J. and Hon. Charles E. Grassley, letter and attachment .. 299

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

statement .............................................................................................................. 303

New York Times, June 6, 2002, editorial .............................................................. 322

Rowley, Coleen M. Rowley, Special Agent and Minneapolis Chief Division 

Counsel, Federal Bureau of Investigation, prepared statement and attachment ...................................................................................................................... 324

Washington Post, Adam Nossiter, June 3, 2002, article ...................................... 346

Wellstone, Hon. Paul D., a U.S. Senator from the State of Minnesota, prepared statement ................................................................................................... 349

(1)

OVERSIGHT HEARING ON 

COUNTERTERRORISM 

THURSDAY, JUNE 6, 2002

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 9:34 a.m., in Room 

SH–216, Hart Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, Durbin, Cantwell, Edwards, Hatch, Grassley, Specter, Kyl, DeWine, Sessions, and Brownback. 

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

FROM THE STATE OF VERMONT 

Chairman LEAHY. Just so people understand what we are going 

to do here today, we are going to have two panels. Mr. Fine, good 

to have you here, too. The Director of the FBI and then the Inspector General Glenn Fine will testify. We will have questions there. 

Once this panel is finished, we will go off and take a break, and 

then we will do the second panel, which will be Ms. Rowley. 

I would note that I have been reminded that there will be a vote 

around 11 o’clock. We will take a break at that time for about 10 

minutes just to go and vote and come back. 

Last week FBI Director Mueller and Attorney General Ashcroft 

made some extraordinary and, actually in the case of the Attorney 

General, unexpected announcements of changes in the organization 

of the FBI and the guidelines for its administration. 

Now, the Congress and the administration share a common goal. 

The goal, of course, is ensuring the safety and security of our country. I look forward to hearing from the Department and the FBI 

why these changes are necessary, the changes they propose, to prevent future terrorist attacks. And they may be right, but this oversight Committee has both a duty and a responsibility to review 

these changes and their justification. 

Ten days earlier, Inspector General Glenn Fine issued a critical 

report on the handling of visas of two 9/11 hijackers by the Immigration and Naturalization Service and made 24 recommendations 

to address deficiencies in INS practices and procedures. These suggestions, too, may be justified, and this oversight Committee has 

the job of examining whether identified deficiencies are being fixed. 

At the same time, the American people have been barraged with 

new reports about the government’s performance before the 9/11 

attacks, including charges and countercharges of mistakes by the 

2

FBI and the CIA, the handling of the Phoenix Electronic Communication, the critical letter from FBI Agent Coleen Rowley in the 

Minneapolis FBI office, and a report that the Attorney General 

turned down a proposal to increase the FBI counterterrorism budget by $58 million shortly before the 9/11 attacks. 

Now, Director Mueller has confronted this mounting evidence, 

and he has candidly admitted what we all now realize—that today 

we can’t say for sure whether the 9/11 attacks might have been 

stopped of all the dots had been connected and all the leads been 

followed. And I commend the Director for the candor of his recent 

statements. I don’t want a return to the worst aspects of J. Edgar 

Hoover’s FBI when no one at the FBI could admit or learn from 

mistakes and anyone who raised a question did so at his or her 

peril. 

Now, the Judiciary Committee has always been the standing 

Committee of the Senate responsible for oversight of the Justice 

Department. We are accountable to the Senate and the American 

people for ensuring that the FBI, the INS, and other Department 

components are effectively organized with adequate resources, with 

proper leadership. This Committee considered the nominations of 

the FBI Director, the INS Commissioner, the Inspector General, 

and the Attorney General. We have a continuing responsibility to 

follow what they have done. We started hearings, oversight hearings, on June 20th. Now, more than ever, in the age of terrorist attacks on our shores, close oversight of the FBI and our other law 

enforcement and intelligence agencies is not an option. It is an imperative. 

I wrote to the Attorney General and the Director on October 25 

last year, as we enacted the USA PATRIOT Act, to ask what internal reviews they were conducting in connection with the events of 

September 11th. I told both the Attorney General and the Director 

to preserve any documents and information they had from before 

September 11th, especially those documents and information that 

had been overlooked prior to September 11th, and that they share 

with us important matters they uncover as they conduct an internal review of the events leading up to the tragedy of 9/11. I was 

disappointed to learn only this week that the Justice Department 

Inspector General conducted an inquiry into the FBI’s Phoenix 

Electronic Communication as early as last October. This was the 

type of thing that I had asked the Attorney General to let us know 

about. I was concerned to read about it from the press and not to 

hear it from the Attorney General. So we are going to want to hear 

from Inspector General Fine about the circumstances and results 

of his earlier inquiry. 

Even more disappointing was the Justice Department’s failure to 

advise the Committee that its review of FBI guidelines after 9/11 

had uncovered issues that called for revision. Instead, we are presented with a fait accompli reflecting no congressional input whatsoever. From his comments over the weekend, it seems that Chairman Sensenbrenner and our counterparts in the House Judiciary 

Committee were likewise surprised by the unilateral actions taken 

by the Attorney General in revising longstanding guidelines that 

have worked for decades. 

3

I might say that Attorney Generals come and go. FBI Directors 

come and go. The members of this Senate Committee come and go. 

The Constitution of the United States stays the same. It has been 

the basic bulwark of our freedoms, and no matter what the shortterm gains might be, no one in the Congress or in the administration can ignore the Constitution of the United States. To do so, we 

do it at our peril and we weaken the United States. We do not 

strengthen the United States. 

After the AG’s news conference last week, the Department did 

post 100 pages of new investigative regulations on its Web site. 

They may tell us these changes are relatively straightforward and 

reflect good common sense, that there is a need to change the 

guidelines that were followed in the Ford administration, the 

Carter administration, the Reagan administration, the first Bush 

administration, the Clinton administration, and suddenly with a 

stroke of the pen should be changed. Well, I understand the need 

to re-examine policies, but we should not throw out decades of wisdom just because of a bad week or two in the press. I agree with 

Chairman Sensenbrenner that, ‘‘These important safeguards of 

American privacy and freedom should not be significantly altered 

without careful consideration and a full explanation of the reasons 

for any changes.’’

Now, we have shown in Congress bipartisan work on the USA 

PATRIOT Act, the Aviation and Transportation Security Act, the 

Border Security and Visa Reform Act, and the Bioterrorism Preparedness Act. We showed that we can work with the administration. So I cannot understand why the Department of Justice continues to insist on acting unilaterally and, as Chairman Sensenbrenner pointed out, without consulting with the Congress. It just 

disrupts the overall effort. 

The regulations on surveillance of Americans not suspected of 

any crime are there for a reason. They were intended to change the 

culture of the FBI—something all of us understand here in the 

Congress. 

The regulations on the handling of confidential informants were 

also carefully crafted. Just last month, an FBI agent in Boston was 

convicted of Federal crimes based on his improper handling of Mob 

informants. Two men spent years in jail for a crime they did not 

commit. The FBI knew they did not commit it. And the FBI kept 

quiet while these two men spent year after year after year in jail. 

That is wrong. 

Two weeks later, we are planning on simultaneously loosening 

both the Headquarters control and the rules for handling informants. These controls are there for a reason. They should not be 

changed simply to fit a press conference. 

I do appreciate the Director’s consultation with the leaders of the 

House and Senate Judiciary Committees and other Members of 

Congress before he announced Phase 2 of his reorganization last 

week. I look forward to hearing more steps on that. I believe the 

steps he has taken to refocus and redesign the operational structure of the FBI to prevent terrorist attacks are the right ones. And 

I want to commend the hard-working men and women of the Bureau and other agencies of the Department who are working tireVerDate 0ct 09 2002 15:07 Oct 06, 2003 Jkt 089324 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\86517.TXT SJUD4 PsN: CMORC
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lessly and conscientiously, in the best interests of the United 

States, to protect us. 

No flow chart or press conference can fully reassure the American people that our Government institutions are up to the present 

challenges, particularly in light of daily revelations of new lapses. 

The Director has outlined ten clear priorities for the FBI, and I 

agree with the Director that the Bureau cannot continue to devote 

scarce manpower and technical surveillance resources to cases that 

could easily be handled by State or local police. We don’t have 

enough manpower to do the things that really protect us. State and 

local police are very good. Let them handle the local things. 

An example is a report this week of an extensive, year-long Department of Justice and FBI investigation of the operators of a 

prostitution ring in New Orleans. I realize it comes as an enormous 

revelation to the American public that there might have been prostitutes in New Orleans. I mean, who knew? But according to press 

reports, FBI agents were listening to 90 calls a day and wiretaps 

that continued for months and amounted to more than 5,000 phone 

calls. The Department of Justice and the U.S. Attorney claimed it 

was a Federal case. Well, there are a whole lot of local laws in this. 

In fact, the local prosecutor said they wanted to worry about things 

of real importance and said they would pass up the list of all those 

wiretaps. 

Now, Director Mueller’s new priorities make clear that the FBI 

has more urgent things to do. I would encourage the Department 

of Justice to find more urgent things to do. Dealing effectively with 

counterterrorism is an important and immense task. We are not 

going to do it in only one branch of Government. We have got to 

work together. The Congress has to be involved. 

This series of hearings is focused on problems and constructive 

solutions to those problems. Many of them are reflected in the FBI 

Reform Act, which we passed unanimously, Republicans and Democrats. Not an easy chore in this Committee, but we did it. These 

problems include the inadequacy of the FBI’s information management and computer systems, security failures in the Hanssen case, 

the resistance of Bureau officials to admit mistakes and double 

standards in discipline. Senior FBI managers testified at these 

hearings. They laid out in detail what we need to do to get the FBI 

back on track, and I commend the Director in working with those 

and being very candid in his own responses. 

So the Department of Justice, the FBI, this Committee, and others have to stay the course. We want to make the FBI the most 

effective tool we have in this country to protect us against terrorists because, unfortunately, we know the terrorists still want to 

strike at us. 

[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 want to commend you for holding this hearing on the oversight of the Department of Justice. The hearing raises many critical issues, and our 

5

duties on this Committee of examining and finding solutions to the 

problems where needed could complement the investigation of the 

bipartisan, bicameral Intelligence Committee, on which several 

members of this Committee, including myself, happen to sit. 

We have today before us Robert Mueller. He started the job as 

Director of the FBI one week prior to September 11th. At the time 

Bob Mueller stepped into the position of Director, the FBI was the 

subject of intense criticism and media coverage due to several highprofile embarrassments, such as the handling of the McVeigh documents, the belated discovery of the Hanssen spy case, and the troubled Wen Ho Lee investigation. Now, despite these problems, Director Mueller willingly and enthusiastically accepted the difficult 

challenge of reforming the FBI. It has to be overwhelming, as it is 

to lead any major organization, including the Justice Department. 

On September 11th, his challenges increased by several orders of 

magnitude. 

But there was no question then and there is no question now 

that Bob Mueller is the right person to implement essential 

changes at the FBI. His extraordinary qualifications, integrity, and 

resilience make him the perfect fit for the job, especially in these 

trying times. Indeed, Director Mueller has demonstrated he has the 

ability to reform a troubled organization. In August 1998, the Clinton administration asked him to serve as interim U.S. Attorney for 

the Northern District of California at a time when the office was 

experiencing great institutional problems. In short order, Director 

Mueller turned the office around and rebuilt it into one of this Nation’s best. When it comes to management of a Government office, 

Director Mueller’s no-nonsense style has served him well. He has 

shown he has the ability to inspire others to do their best work for 

all of us American people. 

While the FBI is composed of dedicated, hard-working agents 

who are some of the best in the world, we cannot let our respect 

for these accomplished men and women blind us to the fact that 

reforming the FBI—its structure and its culture—is a critical mission, one that is imperative to the safety of all Americans in the 

face of a continuing terrorist threat to our country. This is what 

Bob Mueller has begun at the FBI which we will hear about today 

in detail. 

There is no question that there are significant issues concerning 

the specific steps the FBI took in its pre–9/11 investigation and 

analysis, particularly in Minneapolis and Phoenix. Special Agent 

Coleen Rowley has raised important issues relating to the FBI’s 

handling of the Moussaoui investigation in Minneapolis. This Committee will not, and indeed cannot, shrink from its duty to examine 

these difficult and troublesome issues. 

However, I want to emphasize that this inquiry should be forward-looking with an eye towards reforming the FBI, protecting 

the American public, and making sure that such an act never occurs again on our soil. A forward-looking examination will serve 

the American people far more than a typical Washington ‘‘gotcha’’ 

investigation of missed clues and political fodder. We cannot afford 

such an inquiry. As we all recognize on this Committee and on the 

Intelligence Committee, this is a serious matter. Our focus must remain on reforming the FBI and giving Director Mueller the support 

6

and resources he needs to change the direction of this massive law 

enforcement agency. The American public deserves nothing less 

than the full and complete cooperation of this Committee to ensure 

that the FBI is reorganized and given the tools it needs to face the 

challenges of the future of our country. 

Also, very seldom are mentioned the tremendous accomplishments of the FBI, the number of terrorist incidents all over the 

world that they have helped to interdict and stop over the intervening years, both before and after 9/11, some of which can’t be 

mentioned. 

I want to take time here to specifically commend Director 

Mueller for his handling of Special Agent Rowley’s letter. While it 

would have been easy to play the typical Washington game of pass 

the buck and blame somebody else, Director Mueller has embraced 

Special Agent Rowley’s letter and recognized that her observations 

underscore the need to implement his reorganization plan—one 

which aims at the heart of the issue—the FBI culture and possible 

structural roadblocks to effective law enforcement. To this end, Director Mueller has the confidence and the courage to welcome criticisms, to examine their merit, and to make sure that such criticisms are not simply swept under the rug, but are carefully and 

candidly weighed. 

I think it is important to note that the new Director’s recently 

announced reorganization proposal addresses some of the criticisms 

and problems identified through the pre–9/11 inquiry. First and 

foremost, Director Mueller’s reorganization proposal fundamentally 

alters the FBI’s mission. Director Mueller has proposed a new forward-thinking approach—one that is built on proactive detection 

and is aimed at preventing another deadly terrorist attack. To this 

end, Director Mueller has proposed a reorganization plan which 

will improve the FBI’s analytic capacity; enhance its ability to 

gather, analyze, and dissemination intelligence concerning terrorists and racketeers; further its ability to share information internally and with other law enforcement and intelligence agencies; 

and decentralize those functions that need to be reallocated to the 

field while centralizing critical intelligence-gathering and analysis 

functions to support its overall mission of preventing crime before 

it occurs. 

Director Mueller’s recently announced comprehensive reorganization package comes on the heels of his initial reorganization of FBI 

Headquarters. As we all know, in late 2001, Director Mueller reorganized the FBI’s Headquarters to reflect the changing priorities 

and direction of law enforcement by assigning four new Executive 

Assistant Directors to oversee counterintelligence and 

counterterrorism matters, criminal investigations, law enforcement 

services, and the administration of the FBI. He also created two 

new divisions to address computer-facilitated crimes and security, 

and four new offices to address information technology, intelligence, records management, and law enforcement coordination 

with State and local law enforcement partners. He couldn’t have 

done that before the enactment of the PATRIOT Act, which this 

Committee played a significant role in doing. Finally, Director 

Mueller accelerated a major overhaul of the FBI’s technology sysVerDate 0ct 09 2002 15:07 Oct 06, 2003 Jkt 089324 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\86517.TXT SJUD4 PsN: CMORC
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tem which will better enable it to gather, analyze, and share information and intelligence. 

Like Director Mueller, Attorney General Ashcroft recognized the 

need for increased FBI oversight and reform as soon as he took office. And prior to September 11th, he enlisted the assistance of a 

number of independent reviewers. In March 2001, in response to 

the Hanssen case, Attorney General Ashcroft established an independent review board headed by William Webster to examine the 

FBI’s security procedures. In July 2001, the Attorney General hired 

management consultants to study the FBI, and he expanded the jurisdiction of the Justice Department’s Inspector General to include 

oversight over the FBI. We are very pleased to have Mr. Fine here 

with us today as well. 

In the wake of September 11th, Attorney General Ashcroft 

worked closely with this Committee and Congress to ensure passage of the PATRIOT Act, which has provided the law enforcement 

community with additional tools and resources they did not have 

and which are necessary to attack terrorist organizations. And like 

Director Mueller, Attorney General Ashcroft took quick and affirmative steps to protect the American public and fight the war 

against terrorism. The Attorney General established 93 Anti–Terrorism Task Forces across the country which are working to integrate the communications and activities of local, State, and Federal 

law enforcement officers, something he could not have done before 

the PATRIOT Act. He created the Foreign Terrorist Tracking Task 

Force in order to assist the FBI, INS, Customs Service, and other 

Federal agencies in coordinating their efforts to bar from the 

United States aliens who are suspected of being involved in terrorist activities. 

Last week, Attorney General Ashcroft announced amended investigative guidelines that will assist the FBI in conducting investigations capable of preventing terrorist attacks. These guideline 

changes support and, in fact, are critical to the FBI’s reorganization plan. 

Now, although I am pleased to learn that there is bipartisan support for these guideline revisions, I understand that concerns have 

been voiced about their scope. It seems obvious to me, however, 

that if we are serious about ensuring that the FBI can and does 

operate proactively, investigating future rather than merely past 

crimes, the Bureau must be given the ability to do things our Constitution permits like search the Internet, use commercial datamining services, and visit public places. There is little question 

that the number one concern of all Americans is to make sure that 

we protect our country against terrorist attacks, not provide more 

rights to suspected terrorists than our Constitution requires. Our 

safety and security depend on striking the right balance. 

Now, Director Mueller and Attorney General Ashcroft should be 

commended for the degree to which they have focused their cooperative attention on reforming their respective institutions. Both 

have instituted independent investigations, and both have been responsive to the inquiries of this Committee and the Joint Intelligence Committees. As a member of the Joint Intelligence Committee, I can assure you of that. Not only has the Director testified 

before this Committee, he has also briefed members of this ComVerDate 0ct 09 2002 15:07 Oct 06, 2003 Jkt 089324 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\86517.TXT SJUD4 PsN: CMORC
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mittee and made other senior FBI employees available to address 

various issues of concern, including those raised by the Phoenix 

memorandum and the Rowley letter. This is the first time in the 

past decade that the Director of the FBI and the Attorney General 

actually have a cooperative working relationship, as they should. 

The first time. 

We will also hear today from the Honorable Glenn Fine, the Inspector General of the Justice Department, who is in the process 

of completing a number of investigations relating to subjects of this 

hearing. His conclusions will naturally be a valuable resource in 

this restructuring process, and I look forward to hearing from you, 

Mr. Fine, as well. I appreciate the work that you are trying to do. 

There is no question we need to consider how to improve all components of the Department of Justice to best protect the American 

people. In our oversight role, we should not blindly accept proposed 

reforms, but instead ask tough questions to ensure that they will 

address the problems that exist. However, we cannot and we 

should not try to micromanage the Department of Justice. We will 

succeed in being a constructive and integral part of the reform 

process if, and only if, we work collaboratively with those in the 

Department of Justice, the FBI, and the INS—the Immigration and 

Naturalization Service. We all need to recognize that this is a process that will take time. At the same time, we must act as expeditiously as possible because the stakes are so high. 

So I appreciate you, Mr. Chairman. I appreciate this hearing. I 

appreciate our witnesses who have agreed to testify today, and I 

look forward to working with you to help resolve any and all problems that we might have. 

Chairman LEAHY. Director Mueller, the floor is yours. I know 

that you have eagerly awaited this opportunity to be here. But, no, 

we do appreciate it, everybody on both sides of the aisle appreciates 

it, and I think you heard from both Senator Hatch and I that the 

two of us appreciate your willingness to be available, as you have, 

to all of us with our questions. Please, 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 very much, Mr. Chairman and members of the Committee. It has been 9 months now since the attacks 

of September 11th——

Chairman LEAHY. Pull the microphone near you, would you, 

please, sir? 

Mr. MUELLER. Surely. Is that better? 

Chairman LEAHY. Yes. 

Mr. MUELLER. Can everybody hear now? 

Let me just say thank you again, Mr. Chairman, and let me start 

by saying it has been 9 months now since the attacks of 9/11, and 

when I came to the FBI just one week short of September 11th, I 

must say that I did not anticipate what lay around the corner. And 

in the span of a few short minutes, our country was changed forever. Terrorism had taken the lives of thousands, and our country 

looked to the FBI to find out who did this and to not let it happen 

again. 

9

A massive investigation ensued, mobilizing, as only the FBI can, 

over 6,000 agents who poured themselves into the effort both here 

and broad, following up on some 500,000 leads. 

All of these shreds of information we painstakingly uncovered led 

to figuring out who was responsible and how it was done. And I, 

as you also, Mr. Chairman, and others have expressed, am extraordinarily proud of the men and women of the FBI and of the CIA 

and of all of the agencies who made the sacrifices and did the work 

that ultimately led us to knowing who was responsible for these 

acts. And as we go through this process, their efforts should never 

be lost or go unrecognized in our haste to look back and see how 

we can do things better. 

Just as we know on September 11th that we had to find out who 

was responsible for this, we also knew our charge had changed forever. An honest and comprehensive examination of the pre–September 11 FBI reflects an agency that must evolve and that must 

change if our mission, our priorities, our structure, our workforce, 

and our technologies are to revolve around the one central, paramount premise of preventing the next attack. The need for change 

was apparent even before September 11th. It has become more urgent since then. 

Now, when we looked back, we saw things that we should have 

done better and things that we should have done differently. But 

we also saw things that were done well and things that we should 

do more of. But almost from day one we began to change. 

At the end of last year, I described to Congress a new Headquarters structure, one designed to support, not hinder, the critically important work of our employees, particularly the Special 

Agents in the field. And since then, I have taken any number of 

steps to put in place what can be described as the tools of prevention and to put in place permanent solutions to the painful lessons 

of Robert Hanssen and the McVeigh documents. This Committee 

knows from prior hearings about much of this. 

Let me just spend a moment talking about some of these new 

functions and organizations that we have put in place in the process of developing an FBI that is more focused on prevention. 

As an example, we have a financial review group, which is dedicated to the financial transactions aspect of terrorism. And the Foreign Terrorist Tracking Task Force is exploiting new data-mining 

capabilities. The number of joint terrorism task forces across the 

country has expanded. A national joint terrorism task force now 

gives interagency coordination and information sharing new dimensions. We have document exploitation teams to maximize the intelligence value of the troves of documents being recovered overseas. 

Interview teams are exploiting those individuals who have been 

detained by our military. Former Police Chief Louis Quiljas is now 

in place as the Assistant Director in Charge of Law Enforcement 

Coordination to better bring our partners to the table. 

A College of Analytical Studies has been established at our 

Training Academy. New agent training has been revised to reflect 

the post–9/11 realities. And, last, as important, is that several FBI/

CIA information-sharing and coordination initiatives have been implemented to increase our coordination and sharing of information. 

These include both changes at the top—Director Tenet and I meet 

10

almost daily—to changes throughout the organization, ranging 

from daily exchanges of briefing materials, a joint daily terrorism 

threat matrix, more CIA personnel at the FBI, and more of our personnel at CIA. 

Finally, as I think, Mr. Chairman, you pointed out, we have a 

new Security Division which is up and running, as well as a new 

Records Management Division. Both of those initiatives address 

those issues that arose in the course of the review of the Hanssen 

and McVeigh issues. 

Even in the midst of the post–9/11 fervor, much more has been 

accomplished, but more needs to be done. In the last few weeks, 

I have presented for congressional consideration the next and arguably the most important phase of reorganizing the FBI. This reorganization proposal comes after consultation within the Bureau, 

with the Attorney General, with administration officials, with State 

and local law enforcement, and with Members of Congress. 

I have provided a lengthy statement for the record which details 

the shifts in resources and the additional organizational changes I 

believe are imperative to fully support the complete transition to 

prevention. These changes, which include new resources, new analytical capability, and new technology, are critically important to 

supporting our new way of doing business. 

Coupled with these changes are new, more focused priorities, 

again, outlined in that statement which I have provided to the 

Committee. And while we believe these changes to be a dramatic 

departure from the past, in the end our culture must change as 

well. And I believe Senator Grassley has it right when he says that 

there has to be a wholesale change in the culture away from reacting to crime to preventing new terrorist attacks. And with that, I 

think we all agree. 

In the end, two things have come to symbolize that which we are 

changing: first, what did not happen to the Phoenix memo points 

squarely at the need for greater analytical capability and greater 

ability to share our information; and, second, the critical but welcome letter from Agent Rowley reinforces the need for a different 

approach, especially at Headquarters. What we are doing squarely 

addresses both of those concerns. And what we are proposing will 

help provide a more agile, flexible, and focused FBI that we need 

to meet that primary objective of preventing the next attack. 

I might also add that what may be the most critical component 

in giving us a better capability to prevent the next attack is substantially increasing our capacity to both analyze and share information. The new Office of Intelligence is critically important to 

this, and that is why I wanted this office to be headed by a senior 

career CIA analyst who will instantly bring to us a wealth of experience and expertise and who will guide not only the FBI’s analysts 

but also the 25 CIA analysts that Director Tenet has generously 

given to us to assist us in our efforts. 

Let me just spend a moment talking about the urgency of these 

moves. 

The world remains a very dangerous place. The information 

gleaned from Guantanamo and other captured Al–Qaeda officials 

reflects that disrupting is not dismantling and that the inherent 

vulnerabilities of a free society are well understood throughout the 

11

terrorist community. Those who want to hurt us remain highly motivated, well funded, and spread out around the world. They and 

the other recognized international terrorist groups are as determined as ever. And while we and our CIA counterparts continue 

to identify, continue to arrest, continue to deport, and continue to 

otherwise address operatives and sympathizers around the world, 

there are still loose and dangerous alliances remaining around the 

globe. And we must take the long view and be prepared to mobilize 

whatever level of resources circumstances dictate. The restructuring I have proposed is critical to sustaining those efforts. 

Now, let me briefly address the changes in the Attorney General 

guidelines. I know you mentioned that, Mr. Chairman, and I know 

they are a subject of interest to many of you. The changes are designed to increase the ability of our field agents to gather the intelligence we need to prevent terrorist attacks. To that end, they reduce some of the bureaucratic hurdles requiring Headquarters approval for certain steps, and in the provision that has gotten a 

great deal of attention, they permit FBI agents to go to public 

places where anyone else except FBI agents, including State and 

local police and non–Justice Department law enforcement agents, 

were always free to go. 

Remember, though, that they may do so solely for the purpose 

of detecting and preventing terrorist activities, and there are strict 

limits on recordkeeping in such instances. 

Now, information obtained from such visits may be retained unless it relates to potential criminal or terrorist activity, and I must 

say and emphasize, as an institution we are and must be and continue to be deeply committed to the protection of individuals’ constitutional and statutory rights. Nothing in the amended guidelines 

changes that. 

I would be happy to answer any questions. I know that some of 

you have questions relating to the handling of various cases and 

investigations. I have previously discussed those with members of 

the Committee in executive session and would be pleased to do so 

again. Because of the applicable legal rules and because of the sensitivity of ongoing investigations relating to our efforts to prevent 

terrorist attacks, I am obviously limited in what I can say about 

such matters in open session. I appreciate the Committee’s agreement that we may continue to discuss such matters, those matters, 

in executive session. 

Thank you, Mr. Chairman, for the opportunity to give a statement. 

[The prepared statement of Mr. Mueller appears as a submission 

in the record.] 

Chairman LEAHY. Thank you, Mr. Mueller, and thank you for 

being available to members of the Committee as you have. 

Inspector General Fine, would you go ahead, sir? And we appreciate having you back here, as we always have on other occasions 

when you have been here. 

STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, 

DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. FINE. Thank you. Mr. Chairman, Senator Hatch, and members of the Committee, I appreciate the opportunity to appear beVerDate 0ct 09 2002 15:07 Oct 06, 2003 Jkt 089324 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\86517.TXT SJUD4 PsN: CMORC
12

fore the Committee to discuss the work of the Office of the Inspector General relating to counterterrorism issues in the Department 

of Justice. 

At the outset, let me express my respect for the many employees 

in Department components like the FBI and the INS who serve on 

the front lines in our Nation’s counterterrorism efforts. While the 

OIG has found significant deficiencies in FBI and INS operations 

over the years, this should in no way diminish the important contributions that thousands of employees at these agencies make on 

a daily basis. 

Since the September 11th attacks, the OIG has redirected significant resources to examine programs and operations that relate to 

the Department’s ability to detect and deter terrorism in the 

United States. This morning, I will highlight a few of the reviews 

that are discussed in greater detail in my written statement. 

The OIG recently released a lengthy report that examined why 

the INS mailed forms notifying a Florida flight school that two 

September 11th terrorists had received approval to change their 

immigration status from visitors to students 6 months after the 

terrorist attacks. 

The OIG found that the INS’ adjudication of Mohamed Atta’s and 

Marwan Alshehhi’s change of status applications and its notification to the flight school were untimely and significantly flawed. 

First, the INS took more than 10 months to adjudicate the applications. As a result, they were not adjudicated until well after the 

two had finished their flight training course. Second, the INS adjudicator who approved their applications did so without adequate information, including the fact that Atta and Alshehhi had left the 

country two times after filing their applications, which meant that 

they had abandoned their request for a change of status. And, 

third, the notification forms were not sent to the Florida flight 

school for an additional 7 months because the INS failed to adequately supervise a contractor who processed the documents. 

Atta’s and Alshehhi’s case highlights important weaknesses in 

the INS’ handling of foreign students. Historically, the INS devoted 

insufficient attention to foreign students, and its current, paperbased tracking system is inaccurate and unreliable. SEVIS, the 

new Internet-based system the INS is developing, has the potential 

to dramatically improve the INS’ monitoring of foreign students. 

But unless the INS devotes sufficient resources and effort to implement and use SEVIS effectively, many problems will continue to 

exist. Our report offers 24 recommendations to help address the 

problems we have found. 

We have also conducted five follow-up reviews after the September 11th attacks that examined the INS’ efforts to address national security deficiencies that were highlighted in previous OIG 

inspections. These reviews examined the INS’ progress in securing 

the Northern border, linking INS and FBI automated fingerprint 

identification systems, the Visa Waiver Program, addressing security concerns regarding the Transit Without Visa Program, and 

tracking non-immigrant overstays. In each of these follow-up reviews, we found that many of the security concerns we identified 

in our original reports continued to exist. 

13

Let me now turn to OIG reviews in the FBI. The OIG has initiated a wide range of audits, inspections, and investigations in the 

FBI related to information technology, counterterrorism, and national security issues. I testified before this Committee in March of 

this year about the OIG report on the belated production of documents in the Oklahoma City bombing case. That review highlighted the significant weaknesses in the FBI’s computer systems, 

which we found to be antiquated, inefficient, and badly in need of 

improvement. We concluded that the FBI’s troubled information 

systems are likely to have a continuing negative impact on its ability to properly investigate crimes and analyze information throughout the FBI. 

Following up on these findings, the OIG is currently reviewing 

whether the FBI is adequately managing the acquisition of its information technology systems. We are also reviewing in another 

audit how the FBI managed the counterterrorism funding it has received since 1995. As part of this review, we are evaluating the 

processes by which the FBI determines counterterrorism resource 

requirements, manages those resources, conducts threat assessments, and develops its strategic planning related to 

counterterrorism. 

Another ongoing OIG review is examining the FBI’s allocation of 

resources to investigate the varied crimes under its jurisdiction. 

Our objectives are to determine the types and numbers of cases the 

FBI investigates by office over time, assess performance measures 

for FBI casework, and determine if the mix of cases investigated 

by the FBI comports with FBI priorities. 

Last week, the OIG initiated an investigation that will examine 

aspects of the FBI’s handling of information and intelligence prior 

to the September 11th attacks. The investigation will focus on, 

among other things, how the FBI handled an electronic communication written by its Phoenix Division in July 2001 and issues 

raised in the May 21, 2002, letter to the FBI Director from Special 

Agent Coleen Rowley. 

The OIG had conducted a preliminary inquiry in the fall of 2001 

into the handling of the Phoenix EC at FBI Headquarters. We determined that the matter should be referred to the Senate and 

House Intelligence Committees Joint Inquiry, the congressional 

Committee that had been established to review the range of intelligence and law enforcement information related to the September 

11th attacks. Our referral to the Joint Inquiry was based on our 

view that the Phoenix EC should be analyzed in the context of 

other information available to and handled by the FBI and other 

intelligence agencies prior to September 11th. 

However, in light of recent events and several requests for the 

OIG to conduct a full review of how intelligence information was 

handled at the FBI prior to September 11th, including a specific request from Director Mueller, we have agreed to undertake a full investigation of the Phoenix EC, the issues raised by Special Agent 

Rowley’s letter, and the FBI’s handling of other intelligence information prior to the September 11th attacks. 

Finally, I would like to briefly mention FBI whistleblower issues. 

One of the most important changes the FBI can make as it looks 

to the future is to foster a culture in which employees are able to 

14

raise deficiencies in programs and operations without fear of retaliation. In my statement, I describe the regulations that apply to 

FBI whistleblowers. The OIG supports protections for FBI whistleblowers as a way to improve agency operations. In the past, FBI 

whistleblowers have been the impetus for significant positive 

change in the FBI. 

In sum, we believe that these important OIG reviews that we 

have conducted and are conducting within the FBI will provide 

useful information and analysis to the Department and Congress 

in conducting oversight of the FBI’s critically important mission. 

That concludes my statement, and I would be pleased to answer 

any questions. 

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

the record.] 

Chairman LEAHY. Thank you. 

The memo to do the inquiry on the Phoenix electronic communication, you got that in September. Is that correct? 

Mr. FINE. We received——

Chairman LEAHY. September 29th? 

Mr. FINE. I believe it was September 28th we received the Phoenix EC from the FBI. 

Chairman LEAHY. And you gave it to the joint Committee 2 

weeks ago. 

Mr. FINE. We gave the results of our preliminary inquiry I think 

May 22nd, correct. 

Chairman LEAHY. About 6 months later, more than that. 

Director Mueller, the Phoenix EC, or electronic communication, 

is classified, but let’s just, referring just to what has been in the 

press accounts, make clear that this July 2001 document warned 

about radical Middle Eastern fundamentalists connected to terrorist groups, attending flight schools in this country, possibly for 

purposes of training for terror operations. The warning was certainly relevant to the profile of Zacarias Moussaoui, especially at 

the time when the Minneapolis field office and the Headquarters 

personnel were trying to complete a FISA application—FISA, 

again, for anybody who may be watching, is the special foreign intelligence court. They were trying to get an application to the FISA 

court for possible searches. 

Now, obviously it is very apparent that the information in the 

Phoenix EC would have helped bolster the request for a FISA 

search on Moussaoui. You told us on May 8th at your last appearance before the Committee that the Phoenix memo was not used 

by agents who were investigating the Moussaoui case in Minnesota 

or at Headquarters. 

But the Phoenix EC was just that, an electronic communication. 

It was uploaded onto the FBI’s computer. It was sent to Headquarters on the FBI’s computer system. I understand it was accessible both at Headquarters and in certain field offices on the FBI’s 

automated case system, but it was not accessible in the Minneapolis field office. Is that correct? 

Mr. MUELLER. I understand that that is correct. 

Chairman LEAHY. Well, if this EC was fully accessible in the 

FBI’s automated case system, did the agents at Headquarters do 

15

what most of us are used to doing on a computer, do a routine 

search for key words, like aviation schools or pilot training? 

Mr. MUELLER. Well, in response to the question as to whether or 

not the Phoenix EC was available to other offices around the country, my understanding is that it was not available to other offices 

around the country. It was, quite obviously, available to Headquarters. It was sent to Headquarters. And it was available to 

other offices to whom that EC was sent, New York, I believe, and 

perhaps one other office out West. 

Chairman LEAHY. Well, let’s just take those to which it is available, Headquarters. Did they do a search beyond just the name but 

things like aviation schools or pilot training? 

Mr. MUELLER. It is my understanding that they did not. 

Chairman LEAHY. That would have been helpful if they had, 

wouldn’t it? 

Mr. MUELLER. I believe it would have been helpful, and one of 

the things that I have stated on many occasions is that what I 

would hope to have in the future is the technology in the computer 

system that would better enable us to do exactly that type of 

search. It is very cumbersome, very difficult for a variety of reasons, given our technology, to do that kind of search now. My hope 

in the future is to have the kind of soundex searching capability 

that would give an agent the capability of pulling out any EC relating to aviation; and, beyond that, my hope is that we would have 

the capability of some form of artificial intelligence so we wouldn’t 

have to make the query. The technology itself would alert us to 

those commonalities. 

Chairman LEAHY. That, of course, is something that a number of 

us on this Committee have been urging the FBI to do for years, I 

mean, long before you came there. And I really think it is, as I 

have said at other hearings, very much of an Achilles heel that you 

can’t do the kind of things that all of us are used to doing on our 

computers if we are looking for the best buy on an airplane ticket 

or something we want to purchase. 

Now, the so-called Woods Procedures that were put into place 

April 15th—and thank you for having the procedures declassified. 

I don’t know why they were classified in the first place, but I do 

appreciate you having them declassified so the Committee members here could have them. But that talks about processing FISA 

applications. It directs agents in the field to do an ACS computer 

search for targets to see if any other information pops up. And 

there is a requirement for Headquarters personnel to check the 

ACS system. 

I would assume, am I correct, that that would be because Headquarters personnel are apt to have access to more information than 

a field agent might have? Is that correct? 

Mr. MUELLER. I think it is to make certain that we cover both 

bases, that for purposes of the court, the court needs to know 

whether there are other outstanding investigations relating to 

those targets. And, consequently, it is important that the searches 

be done by the case agent who is most familiar with the facts of 

the case, but also more broadly in Headquarters to assure that 

nothing is overlooked. 

16

Chairman LEAHY. In fact, the Woods Procedures tell the case 

agent to do that. 

Mr. MUELLER. I am not intimately familiar with the Woods Procedures, but I believe that is the case. 

Chairman LEAHY. Well, so if they don’t do the search, either in 

the field or Headquarters, they actually violate the FBI’s own procedures. 

The reason I bring this up is that if we are talking about new 

procedures, I would hope that we are following the procedures that 

are already in place. I mean, this is a case where we are going to 

go back and forth whether there could have been a FISA application on Moussaoui, whether there could have been the kind of 

searches that, in hindsight, we all wish had been done. But yet all 

the information was there, and I think they could have gone to it. 

Mr. MUELLER. Mr. Chairman, I think there is—the searches are 

done for the FISA under the Woods Procedures, as I understand 

it—and I would have to go back and review them and make certain, but go through and search the names to determine whether 

any of the names that are going to be the subject of the scrutiny 

in the FISA have turned up in any other investigation, as opposed 

to picking up a piece of information from an EC which relates, for 

instance, to flight schools. And what we have to do a better job of, 

both technologically and with the analytical capability that I am 

suggesting that we are establishing, is to pull out pieces of information from an EC that may relate to flight schools and be able 

to put that together with other pieces from other investigations, not 

just focusing on the targets and the names of the individuals who 

are the subject of the scrutiny, which I believe, if I am not mistaken, the Woods Procedures are in part directed towards. 

Chairman LEAHY. Well, in fact, it would make just common sense 

that it is going to be a lot more than just the names. I mean, it 

is the type of things they are doing, method of operation and so 

forth, that could be very, very important. People can change names 

very easily. What they are trying to accomplish, though, is what we 

are interested in. Is that not correct? 

Mr. MUELLER. That is correct. 

Chairman LEAHY. And you have talked in your reorganization of 

forming flying squads to coordinate national and international terrorism investigations. The Attorney General has announced new 

FBI investigative guidelines to allow field offices more discretion to 

open these terrorism cases without Headquarters approval—in fact, 

be able to keep them open for as much as year before they are reviewed at Headquarters. 

Were you involved in crafting these new guidelines? 

Mr. MUELLER. Well, I know we in the FBI, we had individuals 

who consulted with and participated in discussions with the Department of Justice, yes. 

Chairman LEAHY. Did you sign off on them? 

Mr. MUELLER. I was aware of the guidelines, yes. 

Chairman LEAHY. Senator Grassley and I wrote to the Attorney 

General asking that he personally guarantee whistleblower protection for Special Agent Rowley. I will let Senator Grassley speak for 

himself how he felt about the response. I think he was disappointed by it. 

17

Can you personally assure this Committee, unequivocally, there 

will be no retaliation of any kind against either Coleen Rowley or 

Kenneth Williams or any FBI employee because they provide information to the Congress or the Inspector General or any supervisory 

FBI official about counterterrorism efforts? 

Mr. MUELLER. Absolutely. I issued a memorandum on November 

7th reaffirming the protections that are afforded to whistleblowers 

in which I indicated I will not tolerate reprisals or intimidation by 

any Bureau employee against those who make protected disclosures, nor will I tolerate attempts to prevent employees from making such disclosures. 

In every case where there is even an intimation that one is concerned about whistleblower protections, I immediately alert Mr. 

Fine and send it over so that there is an independent review and 

independent assurance that the person will have the protections 

warranted. 

When I go around the country and talk to the various offices, one 

of the things I say is that the good news always comes to the top. 

What does not come to the top is the bad news. What does not 

come to the top are those things that need to be changed. What I 

need to know are those things that are broken that need to be 

fixed. And throughout those discussions in the field offices or with 

individuals, I have reiterated I want people around me who will 

tell me what is happening. I want people in the field to tell me 

what is happening. I cannot get out to talk to every one of the 

11,000 agents or the 27,000 total employees, but I need to know 

what is happening throughout the field. And I encourage, welcome 

the criticism, the insight, the suggestions, whether it be from within the organization or from without the organization. 

Chairman LEAHY. And the reason I ask, of course, Mr. Director, 

is that the FBI is currently exempted from the Whistleblower Protection Act, so we have to rely on your assurance. And I accept 

your assurance. 

Senator Hatch? 

Senator HATCH. Thank you, Senator Leahy. 

Mr. Mueller, as I understand it, the PATRIOT Act has worked 

quite well so far, but there is one area where you are having difficulties, and that is FISA requests where currently to get a warrant there is a requirement of proof of association with a foreign 

power. Am I right on that? 

Mr. MUELLER. There is a requirement under the FISA statute 

that we demonstrate a belief that the person who is under scrutiny 

and for whom we wish to obtain court-ordered interception is an 

‘‘agent of a foreign power.’’ And that has been defined as including 

an individual who is associated with a terrorist group. 

Senator HATCH. How many of these approximately 20 terrorists 

that we have been very concerned about that participated in the 

September 11th matter, for how many of those could you have gotten a warrant? 

Mr. MUELLER. Well, prior to September 11th, the 20 hijackers, 

it would have been very difficult because we had—I mean, looking 

at it, trying to go back, we had very little information as to any 

one of the individuals being associated with——

Senator HATCH. A foreign power. 

18

Mr. MUELLER.—a particular terrorist group. One of the issues in 

the Moussaoui set of circumstances was whether or not the evidence was sufficient to show that Mr. Moussaoui was associated 

with any particular terrorist group. 

If you talk to the agents—and I know we have had Ken Williams 

and other agents up briefing the Congress—I believe the agents 

will tell you that one of the problems they have in this area, which 

we believe Congress ought to look at, is the requirement that we 

tie a particular terrorist to a recognized terrorist group. 

Senator HATCH. Or foreign power. 

Mr. MUELLER. Or the foreign power, agent of a foreign power. 

Senator HATCH. I think that you probably would have had a difficult time showing that any of them were agents of a foreign 

power. 

Mr. MUELLER. A terrorist group, a defined—and it is a loose definition. A terrorist group has been defined as an agent of a foreign 

power. 

Our problem comes in trying to show that a particular individual 

is connected to a specific, defined—in a variety of ways—terrorist 

group. Once we get a connection with Al–Qaeda, for instance, even 

though it is not a foreign power, Al–Qaeda is a sufficiently distinct 

group so that we can get the FISA that we need. But we have problems where you have a lone wolf, for instance, who may be out 

there who we think is a threat, but we have difficulty tying to any 

particular defined terrorist group. 

Senator HATCH. Well, if we try to change that, I assume we will 

have civil liberties groups and persons that will be very much 

against making that change. 

Mr. MUELLER. I can’t speak to that, Senator, but I do think that 

is something that we need to look at and that Congress should take 

a look at. 

Senator HATCH. It is my understanding that Senators Schumer 

and Kyl have just introduced a bill——

Mr. MUELLER. I heard yesterday that there was a bill, and I have 

not had a chance to review it. 

Senator HATCH. I have real concerns that some terrorist groups 

have been able to hide and operate in this country under the cloak 

of political and religious institutions. We have seen that. This is obviously a very sensitive issue, and I have two questions relating to 

this topic, as one who has championed both religious freedom and 

protecting, you know, our First Amendment rights. Under the old 

guidelines, were there any situations where the FBI was unable to 

pursue legitimate investigations because of a fear that investigating criminal activity occurring under the guise of political and 

religious activity? 

Mr. MUELLER. Yes, I am led to believe that that is the case. 

Senator HATCH. Can you provide us any examples of how such 

institutions were able to facilitate terrorist activities? 

Mr. MUELLER. I would have to go back and query the field with 

specific examples, but in my general discussions and general briefings, the understanding of the agents was that you needed predication to start a preliminary inquiry, predication to the extent that 

somebody was contemplating criminal acts, and after that there 

19

were a limited number of options that you had that you could follow in the course of that investigation. 

What the guidelines change does is open up the possibilities that 

the agent can utilize once the agent has determined that there is 

information pertaining to terrorists or terrorism activity. 

Senator HATCH. The prior investigative guidelines were adopted 

in response to significant FBI abuses, according to some, that occurred several decades ago. Now, some have raised concerns that 

the new guidelines the Department has put forth may infringe on 

civil liberties. In public statements, however, you and Attorney 

General Ashcroft have emphasized that the new investigative 

guidelines are necessary to prevent and detect terrorism and other 

crimes before they occur, which is what the FBI is bring criticized 

for, for not having done—being great after the crimes occur but not 

so good before in the prevention area before they occur. 

Now, you have also indicated that these guidelines will preserve 

and prohibit any action which would impact our constitutional freedoms and statutory protections. 

Now, would you explain to us how the new guidelines will assist 

law enforcement officers in detecting and preventing crime while at 

the same time preserving our civil liberties? 

Mr. MUELLER. One of, I think, the best examples is the use of 

the Internet. Just about every 12-year-old, not just law enforcement individuals in other agencies, could go onto the Internet and 

determine whether or not there are Web sites that have an address 

manufacturing explosives, encouraging persons to commit violent 

acts against the United States, encouraging people to sign up to 

commit violent acts against the United States. 

What the guidelines do is free the agents to go and do that preliminary analysis without believing that it is contrary to the guidelines, and it covers most specifically in the terrorism area. And that 

freedom is critically important for us to keep abreast of what terrorists are doing, utilizing the modern means of communication. 

Senator HATCH. On the issue of profiling, which, of course, is a 

very sensitive issue, can you say one way or the other whether fear 

of being accused of improper ‘‘racial profiling’’ may have caused law 

enforcement agents to be reticent in investigating claims or approving investigations into certain suspects? How does the FBI define 

racial profiling? And has this definition changed in any way since 

September 11th? And I am very much aware of the fact that the 

Phoenix memo and the Rowley letter includes suspicions of terrorist activity that were based in part on ethnicity. 

Mr. MUELLER. I think I have seen indications of concerns about 

taking certain action because that action may be perceived as 

profiling. The Bureau is against, has been and will be against any 

form of profiling. The new guidelines address individuals, not members of a particular group, not members of a particular political 

persuasion or anything along those lines. The new guidelines look 

at individuals and groups of individuals who may be—and the 

changes—who may be contemplating terrorist activity. 

Senator HATCH. Whether or not they are religious activities. 

Mr. MUELLER. Whether or not it is religious, whether or not it 

relates to any particular religion, whether or not it relates to any 

particular country. 

20

Senator HATCH. Let me first state, Director Mueller, you have 

publicly commented on both the Agent Rowley letter and the Phoenix memo, suggesting that their contents underscore the need to 

reorganize the FBI, both structurally and culturally. 

Now, can you specifically address how your proposed reorganization plan addresses the particular issues raised by Special Agent 

Rowley in the FBI’s handling of the Phoenix memo? 

Mr. MUELLER. I think at base both the Phoenix EC and the 

Rowley memo point out a deficiency that I spoke to when I was before this Committee on May 8th, and that is, our ability to gather 

intelligence information, snippets of information from a variety of 

various investigations around the country, and pull them together, 

analyze them, coordinate that analysis with the CIA or the DIA or 

NSA or other agencies who may also have snippets of information, 

and then be better able to disseminate the results of that analysis 

back to the field so that appropriate action can be taken. 

I have said before that the procedures should have been in place 

so that the Phoenix memorandum went to the CIA and that the 

Phoenix memorandum was made available to those in Minneapolis 

and the determination as to whether or not they had sufficient evidence to have the FISA application approved. 

What we have done since then is taken a variety of steps to assure that information like that comes up higher in the organization, that it is disseminated across the various organizations. For 

instance, I get a briefing book every day. It is about an inch, inch 

and a half thick. And most of this, the distillation of that goes to 

the CIA. I am briefed by the CIA every day on what the CIA has. 

The procedures in place on the FISA have changed somewhat. To 

the extent that there are concerns in the field about whether or not 

we have sufficient information, if there is a belief that we do not 

have sufficient information, it goes to the new head of the 

Counterterrorism Division and ultimately to me. I get briefed every 

day on the status of our FISA applications to determine whether 

or not we are being aggressive enough, whether or not there is 

other information out there to determine whether or not we should 

go forward. 

What would be helpful, what we need is augmentation of our analytical program because there are torrents of information coming 

in daily, and also the augmentation of our technology to which I 

have spoken at some length. 

Senator HATCH. Thank you. 

Mr. Chairman, my time is up. I happen to be also on the Joint 

Intelligence Committee that is meeting at the same time, so I will 

have to try and alternate between the two meetings. I hope you 

will forgive me for that. 

Chairman LEAHY. What we are going to do is go now to Senator 

Kennedy. We will then go to Senator Grassley. And when the vote 

occurs, once whoever is asking questions finishes the questions, we 

will then recess so we can all vote and then come back quickly 

thereafter. 

Senator Kennedy? 

21

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you. Thank you very much, Mr. Chairman. Thank you, Mr. Mueller, for being here this morning. 

Obviously, no challenge we face today is more important than 

dealing effectively with the terrorist threat facing the Nation, and 

reform of the FBI is an essential part of meeting that challenge. 

In relationship to the September 11th attacks, the FBI has been 

criticized for failing to act on the information it had and to coordinate effectively with other agencies. To your credit, you have acknowledged the existence of serious problems and have committed 

yourself to addressing them. I am sure you agree that we must do 

so in a way that preserves the basic constitutional rights that are 

at the heart of our democracy. 

On September 11th, the Justice Department arrested and detained more than 1,200 Arab and Muslim immigrants. Yesterday, 

the Justice Department unilaterally announced it will require tens 

of thousands of Muslim and Arab visa holders—students, workers, 

researchers, and tourists—to register with the Government and be 

fingerprinted and photographed. INS inspectors will apply secret 

criteria and their own discretion in deciding which visa holders will 

be subject to this registration requirement. 

I know the FBI has been recruiting as agents U.S. citizens who 

are Arabs or Muslims. Their service is critically important to our 

fight against terrorism. I am very concerned, however, that the 

Justice Department’s post–September 11th policies with respect to 

Muslims and Arabs will seriously undermine your recruitment efforts. In particular, I am troubled by the visa holder registration 

policy announced yesterday. Your agency is expending valuable 

time and resources to recruit these U.S. citizens in our Arab and 

Muslim communities at the same time the Justice Department is 

photographing, fingerprinting, and registering their law-abiding 

siblings and cousins visiting the United States. 

So what impact do you think these policies will have on the Arab 

and Muslim communities in the U.S. if you are holding job fairs in 

the morning and fingerprinting them in the afternoon? 

Mr. MUELLER. Senator, if I might, going back to what we had 

done in the wake of September 11th in the course of the investigation, immediately after September 11th, we understood that the 

first thing we had to address was whether or not there was a second wave of terrorists out there who may conduct the same or similar terrorist attacks. And immediately what we did was to determine everything we could about the 19 hijackers, how they got 

their tickets, where they lived, where they went to flight schools, 

and immediately came up with individuals who had information 

about them whom we wanted to interview. 

In the course of those interviews, we would find that a number 

of individuals of all religions, from a number of different countries, 

would fall into one of three categories: 

One, there may be an individual who is a subject of Federal, 

State, or local charges and had not been arrested, and we would 

detain them; there would be an individual perhaps who was out of 

status with Immigration and would be detained by Immigration; 

22

and then there was, third, a handful of individuals who were detained pursuant to material witness warrants issued by judges. 

We were not looking for individuals of any particular religion, 

from any particular country. Each one of those individuals detained 

was interviewed because we had predication to do those interviews. 

Now, turning to the initiative announced by the Attorney General yesterday, my understanding is that there is a mandate from 

Congress to institute entry and exit precautions. My understanding 

is that what was announced yesterday is in part responsive to that, 

and——

Senator KENNEDY. Well, I would like to go over it. I was very involved in that legislation on border security as well as immigration, 

and I would like your references on that legislation. And if you are 

relying on it, I would like to know specifically what that authority 

is in there. 

We looked through it last night again in anticipation of this kind 

of response, and I would like to get that information from the Department at another time. 

Mr. MUELLER. I am not familiar with it myself, but we will provide that, Senator. But I will say, if I could, that it is critically important that we do a better job of—we are a very open country, and 

we want to stay a very open country. But we have to do a better 

job of knowing who is coming in our borders, where they are within 

the United States when they are here, and when they leave. And 

that is one of the areas that we just have to do a heck of a lot better job at, and I believe the proposals yesterday address that concern. 

Senator KENNEDY. Well, one of the most important proposals 

which we passed with bipartisan support stated that the CIA was 

to share information with the FBI in granting these visas, which 

they never did in the circumstances before. It also stated that they 

have commonality in terms of their computers, using biometric information. We are working on that and want to work with the administration on it. However, what the Department did yesterday, 

relying on that legislation is something of concern to me. 

Isn’t it true that after September 11th, none of the 1,200 or more 

Arab and Muslim detainees that were held were charged with any 

terrorist crimes or even certified under the PATRIOT Act as persons suspected of involvement in terrorist activity? I understand 

the FBI is still conducting clearances in a small number of these 

cases, but hasn’t the overwhelming majority been positively cleared 

by your agency of any involvement in the September attacks? In 

fact, weren’t these detainees only charged with technical and minor 

immigration violations? 

Mr. MUELLER. Well, I think that the violations cut across the 

board. There were some that were charged, I believe, with——

Senator KENNEDY. I am referring to charges with terrorism as 

distinct from immigration violations. I think I am correct if I say 

that they have not been associated with the terrorist acts. 

Mr. MUELLER. Well, a specific terrorist charge of somebody who 

was going to or had committed a terrorist act, no. But there are 

a number of persons who have been charged with facilitating either 

the hijackers or lying about their association with the hijackers or 

other terrorists. 

23

Senator KENNEDY. You understand that in order to get the visa, 

extensive review and investigation has to be done. That should be 

the result of FBI and CIA information and investigation before the 

individual is even granted the visa. And when we have follow up 

procedures after they come to this country providing biometric information so we know that that person is here, and when there is 

discretion obviously, even on the entry officer, about how they are 

going to treat it we have a significant amount of information. 

So now you have added this additional layer of fingerprinting. 

We are trying to understand the basis for that since there has already been an investigation of these individuals for visas in the 

first place. 

The question is, as I think you mentioned this morning with regards to focusing the attention on taxing the agency’s resources. Is 

the round-up and detention and now the registration of vast numbers of Arabs and Muslims an effective investigative technique or 

is it wasting law enforcement resources? It has been apparent to 

many people that the problem hasn’t been so much the collection 

of information. It has been in the analysis of information by the 

agency. And we see in response to that kind of gap a great deal 

of increased outreach for information which, in a number of instances, seriously threatens Americans’ rights and liberties. I don’t 

know whether—my time is running down—whether you want to 

make some brief comment about it. 

You were very clear in your confirmation hearing about these 

rights and values and you made a very powerful statement which 

I believe is your view, but I——

Mr. MUELLER. And it is still my view. I still believe that we have 

to protect the freedoms that we have in this country that are guaranteed by the Constitution, or all the work we do to protect it will 

be for naught. But there are things that we can do well within the 

Constitution that will assist us in identifying those amongst our 

midst who wish to kill Americans. And to the extent that within 

the Constitution we have greater capacity to address the threat 

against the American public, we are asking Congress to, with us, 

help us meet that challenge. 

Senator KENNEDY. Let me pursue one final area—the changes in 

the FBI guidelines on the use of confidential informants. You know, 

very well, the terrible scandal with the Boston FBI office that led 

to the important changes in how the FBI is going to handle these 

confidential informants. These reforms were adopted only 2 years 

ago, and it is critical that they not be watered down. I know you 

are very familiar with the corresponding steps that were taken so 

that we do not have these kinds of abuses in the future. And now 

there is certainly a good deal of concern, up our way, about whether we are going to be opening Pandora’s box on this. I know you 

are very familiar both with the challenge that we had up in Boston 

and the change in the rules and also the current changes. 

Could you comment about how you think that these current 

changes here will not re-open up the door to the kinds of abuses 

that we have seen in the recent past? 

Mr. MUELLER. I am familiar with the circumstances of what happened in Boston, and it was not a good chapter in the Bureau, and 

that is an understatement. 

24

I participated in the development of and change in the informant 

guidelines to address the situation that you have up in Boston. The 

minor modifications that have been suggested to those guidelines 

in my mind do not in any way undercut the efficacy of those guidelines in addressing the kind of circumstance that happened up in 

Boston. But, also, within the organization we have to implement 

procedures, particularly in our inspection process, so that we just 

don’t go out and look at paper but we look at what is represented 

by the paper. Too often our inspection process failed, and our inspection process should have picked up something like that, and it 

did not in the past. So we have the guidelines, and we are looking 

at and will look at our inspection process to determine how we can 

do a better job in assuring that this kind of circumstance does not 

happen again. 

Senator KENNEDY. I want to thank you very much for your appearance here and for your response. 

[The prepared statement of Senator Kennedy appears as a submission in the record.] 

Chairman LEAHY. Senator Grassley? 

Senator GRASSLEY. Thank you, Mr. Chairman. And thank you, 

Director, for coming——

Chairman LEAHY. If the Senator would withhold just a moment, 

I have a number of items I would place in the record at the appropriate point. 

[The information appears as a submission in the record.] 

Chairman LEAHY. Senator Grassley? 

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

FROM THE STATE OF IOWA 

Senator GRASSLEY. Once again, thank you, Director Mueller, for 

coming to discuss a lot of important issues we have before us: the 

failure of the FBI to recognize warning signs of terrorist attacks; 

the cultural problems that hinder FBI’s ability to be a top-notch 

agency preventing terrorism; a new reorganization plan that has 

some problems; last but not least, later on, as we will this afternoon, to hear Coleen Rowley who is one of the reasons that we are 

here. 

Special Agent Rowley, as we all know, has come forward on 

major problems with the FBI’s handling of terrorists, specifically 

the Moussaoui case, and spotlighted some general flaws in the culture. Her courage, patriotism, and integrity will help the FBI improve even if the revelations are painful or embarrassing. In fact, 

I think she already has helped the FBI, and I think you have indicated that to some extent. 

I want to note, Director Mueller, as maybe you have said so publicly, that when you thanked Agent Rowley last week in your news 

conference, it was the first time I have ever heard any agency 

head, not just an FBI head, publicly acknowledge even the existence of a whistleblower, let alone thank that person. So I commend 

you for doing that. 

Along the lines of this issue that Senator Leahy has already addressed but as the author of the Whistleblower Protection Act and 

cosponsor of an FBI reform act with Senator Leahy—by the way, 

which contains essential protections for FBI whistleblowers, hopeVerDate 0ct 09 2002 15:07 Oct 06, 2003 Jkt 089324 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\86517.TXT SJUD4 PsN: CMORC
25

fully along the lines of things that Mr. Fine would approve of—I 

appreciate your assurances that Coleen Rowley will not be retaliated against in any fashion because of her letter to you or her testimony before Congress. And I say ‘‘any fashion’’ because whistleblowers are often sent to out-of-the-way posts or given less than desirable work or given no work at all, as I found in the case of the 

Defense Department, where people just give up and quit. And I 

trust that your assurances will extend to any form of retaliation. 

Before you say yes or no to that, I was really depressed with the 

Attorney General on Sam Donaldson’s program when he had to be 

asked three times if she would be protected, and finally he said she 

would not be dismissed. The issue isn’t dismissal. Very few whistleblowers are dismissed. They are retaliated against in ways that are 

very difficult to prove. And we have got to have people like the Attorney General saying that whistleblowers are going to be protected 

according to law. 

I would like your response. 

Mr. MUELLER. I absolutely believe the Attorney General believes 

that, and I reiterate the assurances I gave to Senator Leahy. My 

own view is that when there is an allegation of retaliation, we, the 

FBI, should not be the institution that looks into it. I would like 

Mr. Fine to look into it and evaluate it and see if there is any veracity to it. 

But in terms of putting out the message that I want people to 

tell me what is happening wrong, what is wrong in the organization, the institution, I want the suggestions, I have tried to do that. 

But I will reiterate, as I said before, the assurances that I gave in 

response to the question put to me by Chairman Leahy. 

Senator GRASSLEY. I don’t think Coleen Rowley has got any concern, but I am not concerned just about her because down the road 

Congress has to depend upon that form of information, as you are 

willing to say you are willing to depend upon it. 

Mr. MUELLER. I do, too. I mean, I need that information myself. 

I understand. I want that information so that I can change what 

is wrong in the institution. 

Senator GRASSLEY. So it is not a case just of protecting to protect 

an individual economically or professionally. It is to keep an avenue of information open. Thank you. 

I would like to ask you about what some people see as redundancy and more bureaucracy at Headquarters or maybe in the organization generally. You mentioned the National Joint Terrorism 

Task Force in part for information sharing, but you have already 

set up an Office of Law Enforcement Coordination. I certainly have 

concerns about sufficient information sharing and coordination, so 

it is a problem you have to deal with. But it also seems to me that 

the first line of responsibility for accomplishing information sharing 

and coordination should be the Special Agents-in–Charge that we 

should hold them accountable. 

In addition to these new offices that you have set up, you have 

formed the Office of Intelligence for Analysis. You will create flying 

squads. You already have the Strategic Information Operation Center to coordinate for emergencies, and there has been a 

Counterterrorism Center with staff from the FBI and CIA, and 

maybe I am missing some other new or existing groups, but I am 

26

going to stop there. But I agree with some of these, especially the 

Office of Intelligence. 

So three questions. Can you explain to me what each of these 

groups—and please don’t go into tremendous detail to take up too 

much time, but what they will do or are doing? And can you explain how they won’t be duplicating each other’s work? What 

groups will coordinate information sharing within the FBI and 

other agencies? And, three, what responsibilities then do you see 

the Special Agents-in–Charge for information sharing and coordination? And could you start with three? 

Mr. MUELLER. I will start with three. The Special Agents-in–

Charge are supervising in each of our divisions the Joint Terrorism 

Task Forces. On those task forces, there are other Federal agencies 

and other State and local agencies in that region. We each day 

push out information to them to be shared in that vehicle, and that 

is a very important vehicle to share information at the local level. 

What we have to do a better job of at Headquarters is taking the 

information that comes in from our agents in the field and acting 

on that information, whether it be action through the Coast Guard, 

action through the FAA, action through other agencies, but also 

have those other agencies with the ability to plumb their databases. 

The Joint Terrorism Task Force at Headquarters replicates what 

we did in Salt Lake City. In Salt Lake City, we had a fused Intelligence Center where you had one set of computers with an 

Intranet, so if a question came in from a Utah State trooper, about 

an individual, immediately that would be put on one of the sets of 

computers to each of the representatives of the CIA, the DEA, the 

Immigration Service, and they would go to their own computer and 

look in their databases and pull up that information and put it out 

immediately to the person who needed to get that response. 

That is what we did in SIOC, as you point out, the Strategic Information Operations Center, in the wake of September 11th. But 

since we have run through all those leads, we have dropped back 

down and have not put that back up. We are doing that. That is 

the Joint Terrorism Task Force back at Headquarters. And that is 

critically important to our ability to share information and gather 

information from the various agencies. 

The Office of Intelligence is the analytical piece that we were 

lacking in the past to bring in the shreds of information, coordinate 

that information with the CIA or other entities, and make certain 

that we are looking and establishing the patterns that need to be 

addressed, and then develop—after that we have to develop a way 

of addressing those patterns, whether it be flight schools or crop 

dusters or threats on reservoirs or what have you. And so it is important to get the intelligence in to the Office of Intelligence, develop those patterns, evaluate the threats, evaluate the credibility, 

and then pass it on to people who will act on that intelligence to 

protect the country. 

Senator GRASSLEY. I want to talk about your allocation of resources, and I am following what I believe is my understanding of 

your reorganization plan, and I guess I start with the premise that 

maybe it doesn’t go far enough in moving agents into 

counterterrorism. With the number I have seen, it seems to me 

27

that it would be 25 percent or less of the FBI agents will actually 

be working counterterrorism when reorganization is done. 

You say the FBI is the lead agency for counterterrorism, and I 

believe that, and everyone knows that preventing future attacks is 

our number one priority. It is even the number one focus on the 

top ten list in your testimony today. 

But what sort of reaction do you have about this priority of stopping terrorists when less than 25 percent of the FBI total numbers 

of agents are working on that? Could a reasonable person infer 

from this that car thieves, gangs, kidnappers pose more of a danger 

than terrorists because of the number of agents working those 

crimes? We have the Drug Engagement Administration, for example, to do more narcotics that you plan to get rid of. State and local 

police can handle many bank robberies. We have inspectors general 

on Government fraud. We have the EPA’s Criminal Division for environmental crimes, and we have Customs and Secret Service. 

I think it is coming to the point where Congress is at fault for 

some of this and maybe giving too much responsibility to the FBI. 

That will have to be addressed not by you but by us. But Congress 

may need to cap money for new agents until the FBI can get serious about terrorism and get rid of jurisdictional duplications with 

other agencies. If the FBI needs additional agents for 

counterterrorism, then at that point we can provide them. So could 

you tell me if you are done moving agents to counterterrorism or 

you are going to move more? And if you are not, how will you react 

to a congressional proposal to narrow the FBI’s jurisdiction so it 

can truly concentrate on the mission of preventing terrorism? 

Mr. MUELLER. Let me just say, since September 11th I have had 

several conferences with the SACs, Special Agents-in–Charge, to 

determine what kind of shift in resources was necessary to address 

counterterrorism. My statement at the outset is—and was to 

them—that counterterrorism comes first. If you have a threat within your division, if you have a lead that must be pursued, that 

comes first before any other program. 

Now, I go to them and say, Okay, in your particular division 

what additional resources do you need to address counterterrorism? 

And the SACs, each of the SACs would come back to me: I need 

10 or I need 15 or I need 20. And I go back and say, Okay, your 

division is unique. San Francisco is a little bit different than Des 

Moines in terms of what is necessary. What programs should we 

take those agents from? 

We looked at it from an overview to see what is necessary for national strategies and made the recommendation that we ought to 

shift these resources at this time permanently to address 

counterterrorism needs. 

Now, this is a work in progress. I don’t know. Three months 

down the road, we may need in some division additional resources 

because something has popped up. Part of my program is to be 

more flexible and agile because, as I have seen these problems pop 

up in a particular community, we need the resources to address 

them for a week or 2 weeks or a month, and I don’t want to permanently put the resources there. If we need Pashto translators in a 

particular place, we will push them in to resolve a particular 

threat, and then they will go back to their home station. So we 

28

want to be more flexible in sending the resources where they are 

needed across the country. 

In terms of ultimately where we will fall out as to what we need 

in terms of agent manpower to address terrorism, I do not know 

where we will be 3 months or 6 months down the road. What I 

need to see and make certain is that we are addressing every piece 

of information, every lead that potentially could lead us to preventing another terrorist attack, and each of the SACs, I believe, 

understands that. 

Senator GRASSLEY. What about the jurisdiction part of my question? I don’t think you touched on that. 

Mr. MUELLER. I am always willing to look at the jurisdictional 

aspects of the FBI. In the course of looking at the programs that 

are going to be affected by the shift of resources, I have talked with 

the DEA, for instance, and we ought to eliminate in the narcotics 

arena those cases where we overlap, cartel cases with DEA, for instance. 

On the other hand, in particular parts of the country public corruption is intertwined with narcotics trafficking, and in my mind, 

we should not leave the field when it comes to public corruption 

that may be intertwined with narcotics trafficking. 

So what I have tried to do is look at particular areas and see 

what makes sense in terms of other agencies picking up the responsibility, but not leaving the field where we have particular priorities. 

Senator GRASSLEY. Thank you. 

Chairman LEAHY. At this point the vote has begun. We will recess and, when we come back, recognize Senator Kohl and then 

Senator Specter. This will give a chance for everybody to take a 

quick break. Thank you. 

We stand in recess. 

[Recess 11:11 to 11:41 a.m.] 

Chairman LEAHY. I thank the Senators for coming back, and we 

are going to go to Senator Kohl. Just so you know, before we finish, 

Mr. Director, I am going to ask you a question about how the proposal of the President is going to make about a homeland defense 

agency, how that affects your jurisdiction. But, Senator Kohl, go 

ahead, please. 

STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM 

THE STATE OF WISCONSIN 

Senator KOHL. Thank you. Director Mueller, the Washington 

Post this past Sunday ran a front-page story on the complete absence of pre-boarding screening for passengers on chartered aircraft. Today, anyone with a high enough credit limit can charter a 

747, bring whomever they want on board, bring whatever they 

want on board, including weapons, and repeat the horrific events 

of September 11th. 

Now, after much, much prodding from my office, I understand 

that the Transportation Security Agency is about to issue a regulation requiring those passengers who charter very large aircraft over 

95,000 pounds takeoff weight, or about the size of a DC–9, to undergo pre-boarding screening just as a passenger on a commercial 

airline would. 

29

Now, I am glad that they are considering taking at least this 

step, but I want to ask you a few questions about regulation of 

charter aircraft from the perspective of the administration official, 

which you say you are—and you are—most responsible for preventing another terrorism attack on this Nation. 

Do you believe that we are at so little risk of a terrorist attack 

using a chartered aircraft as a weapon that we do not need any 

screening of chartered aircraft passengers and their carry-on luggage on chartered planes smaller than DC–9s? For example, a fully 

fueled 91,000-pound Gulfstream 5 has significantly more explosive 

power than the largest conventional bombs used today by the U.S. 

military. In other words, even under the new TSA regulations 

being proposed, we are making available to terrorists still a bomb 

bigger than anything that we dropped on Afghanistan. 

As the lead Government official in charge of preventing terrorism, are you prepared to make sure that this threat posed by 

chartered jets less than 95,000 pounds is addressed? I understand 

TSA writes these regulations, but I am asking you to take responsibility for this or to make a public statement if you cannot address 

the problem that the administration is keeping you from addressing this issue. 

Mr. MUELLER. I can’t say the latter because the administration 

certainly is not keeping me from addressing the issue, Senator. It 

is an issue that has been raised ever since the events of September 

11th and discussions with Homeland Security. And I know the administration is concerned about and has undertaken steps to address that which would be a concern in the wake of what happened 

on September 11th, not only private jets or chartered jets but also 

other forms of jets that are shipping not passengers but merchandise or freight and the like. And there has been an ongoing discussion and efforts made to address the security concerns across the 

broadband of other aircraft that could be considered a risk. 

I am not familiar with the details. I am not familiar with the 

regulations for the Transportation——

Senator KOHL. I appreciate what you are saying, and I want you 

to know that we have talked to Sen. Mineta, Mr. McGaw, Ms. Garvey, Sec. Rumsfeld, as well as the President, and we have not gotten a good answer. And you are not giving me a good answer. 

Now, you say that you and the FBI have a particular special responsibility today, and that is to prevent another terrorist attack. 

I am bringing to you a clear and present danger, which I do not 

think you would deny, that chartered aircraft today can be obtained by virtually anybody. They can board these aircraft without 

any screening. 

Now, I am sure you understand the implications of that. Are you 

prepared to say that you will address it? And if people in the administration just say bug off, you will announce that? 

Mr. MUELLER. I absolutely am prepared to address it. I have in 

the past had discussions, not specifically addressing it, but, yes, I 

am prepared to address it, and I will follow up on it and will be 

back to your office. 

Senator KOHL. In the very near future? 

Mr. MUELLER. Yes, sir. 

Senator KOHL. I do appreciate that. 

30

Mr. Mueller, the FBI has requested a tremendous increase in 

this budget and its staffing, as we know. You argue that the war 

on terrorism requires more and better equipped agents. For fiscal 

year 2003, the administration’s proposal for the FBI budget is $4.3 

billion. That is $700 to $800 million more than this fiscal year and 

more than double the FBI’s budget from 10 years ago. 

In terms of personnel, the FBI has almost 2,000 more authorized 

positions for fiscal year 2003 than this year and 6,000 more than 

10 years ago. And yet it appears that the FBI had information and 

enough resources at its disposal to possibly unravel the terrorist 

plot before September 11th. The Phoenix memo, the Minneapolis 

involvement, and the CIA’s information were available, but the 

pieces were never put together in a way that might have prevented 

the attack. Had the FBI been totally alert and had the FBI used 

its current capabilities to the best of its ability, there was at least 

a very good chance that the terrorist plot could have been uncovered. 

Unless and until the resources that you have at your disposal are 

used effectively, I am sure you would agree it won’t matter much 

how much money or how much personnel we throw at the problem. 

Instead, we will just be headed for a bigger bureaucracy that is by 

definition more unwieldy and less able to respond. 

Mr. Mueller, is money really the solution or even part of the solution to your problems? Aren’t you worried that you will be spending so much time reorganizing and spending money that you won’t 

use your current resources smarter but end up instead creating a 

more bloated bureaucracy? 

Mr. MUELLER. Well, the request I have to Congress is to redirect 

resources, agents to address counterterrorism. And that is done 

after looking at our organization and how it could be better focused 

to address the problem at hand, number one. 

Secondly, the money that has been given to us in substantial 

part will address two of our problems—two of the problems that 

came to light in the events prior to September 11th. Number one 

is technology. And, yes, we have not done a good job in the past 

taking the money that Congress has given to us and put it into the 

appropriate technology. 

I have brought in and am in the process of bringing in individuals from outside who will help us to utilize the moneys that Congress has given us to upgrade the technology in ways that actually 

will do it and accomplish what we need to do. 

Secondly, the analytical capability. I have a plan to upgrade our 

analytical capability. I briefed this Committee and Congress on the 

various aspects of that plan to upgrade our analytical capability. 

And I do believe that those are resources directed specifically at 

the problem we have to address, and it is incumbent upon me to 

get the analysts who are well educated, who are well trained, who 

have the various language skills, who have the background to do 

that analytical capability that we have not had in the past. 

What we have, we have excellent, superb investigators who do a 

terrific job in gathering the information and gathering the information so that it can be translated into further action. What we need 

is the analytical capability, the technological capability to maxiVerDate 0ct 09 2002 15:07 Oct 06, 2003 Jkt 089324 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\86517.TXT SJUD4 PsN: CMORC
31

mize the capabilities of those agents that are out there doing the 

day-in, day-out investigations. 

Senator KOHL. All right. Well, as a follow-up to the question, in 

the final report after Ruby Ridge investigation of 1995, one of the 

recommendations that this Committee made was the creation of an 

FBI civil oversight board. this group would act like the one that 

oversees the CIA and other intelligence organizations. The board 

would be appointed by the President and would be capable of objective criticism of the activities of Federal law enforcement and also 

receptive to external criticism. But it would be dedicated to strong 

and effective Federal law enforcement, obviously. 

Our concern then is the same that we have today. there is no 

way, Mr. Mueller, to measure the success or the failure of the FBI. 

And while we respect changes that you are making to the organization, we will likely not be able to objectively evaluate its performance. Can you comment on why an oversight board was never created and whether you believe one could be constructively created 

today? 

Mr. MUELLER. This is the first I have heard about the possibility 

of an oversight board. I will tell you that I am bringing persons 

from the outside, from business, for instance, to bring in separate 

views. I have an individual named Wilson Lowry who I am bringing in from a long time with IBM who was with Lou Gerstner when 

he turned around IBM, who is coming in as a special assistant to 

help us get through the changes that we need to get through. 

I also have persons that I look to on the outside to give me a 

view, respected persons in the community, principally the intelligence community because this is the area where we need help as 

to what to do. 

I would be happy to consider the implications of some form of review board down the road. 

Senator KOHL. My time is up, but I would simply comment that 

you appear to be saying that having people take a look at what you 

are doing from another perspective more distant than the everyday 

involvement is not a bad idea. 

Mr. MUELLER. I think it is a very good idea. 

Senator KOHL. And it might be a good thing for the FBI to have 

that kind of an oversight Committee or board to look to. Thank 

you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Kohl. 

Going in the rotation, Senator Specter. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SEANTOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. 

Thank you, Director Mueller, for coming in on a public hearing 

and making Agent Rowley available. I believe that the public hearings are indispensable if we are to have effective oversight. I think 

otherwise it is like a tree falling in the forest. If nobody hears it, 

there is no sound. 

When this Committee did oversight on Ruby Ridge in this room, 

I think it was very effective, and it is my hope that with the talents 

32

that we have on this Committee we can be of assistance to the FBI 

and the CIA. 

My own professional judgment is that it wasn’t a matter of connecting the dots before 9/11. I think there was a virtual blueprint. 

I think had all of it been put together or leads followed that could 

have been put together, I think there was a distinct possibility of 

preventing 9/11. 

I want to cover with you four subjects. In the absence of an opening statement, I want to review a number of items and then ask 

you to comment after I have covered the four of them, because if 

we get into dialogue I will never get beyond one or two. 

The Rowley letter states that in determining probable cause, she 

was looking for a 51-percent likelihood that the U.S. Attorney’s office was looking at 75 to 80 percent. Now, even a 51-percent standard is not correct. You don’t have to have more likely than not or 

a preponderance of the evidence, and that was made explicit by 

Justice Rehnquist in Gates v. Illinois. So we have got to take a look 

at what is going on on these FISA applications as to whether you 

are looking for more than you have to. 

Then this letter from Agent Rowley refers to FBI Headquarters 

questioning whether this Zacarias Moussaoui was the same as the 

one that they knew about. Zacarias Moussaoui is not exactly a common name like John Smith. And when the Minneapolis office went 

back to Paris and had the phone books checked—they could only 

get the Paris book—there was only one in there. But according to 

Agent Rowley, there continued to be resistance. 

So what I think we have to do and pursue these in other hearings in detail is what is your Bureau looking for on probable cause. 

It seems to me you have a vastly inflated standard. 

Then there is the question of the Phoenix memorandum. When 

you appeared in this room on July 31st, you and I had an extensive 

discussion about what had been done in the past by way of oversight and the obligation for the Director to be forthcoming on oversight. And when that Phoenix memorandum was turned over to the 

Inspector General on September 28th—and I am going to give you 

a chance to comment on this in just a minute—I think it should 

have been turned over to this Committee. If we had known about 

the Phoenix memorandum, we could have made some pretty good 

suggestions to you. 

Now, the investigation wasn’t finished until mid–December, and 

then it was turned over to the Intelligence Committees, but they 

didn’t start to function until mid–February. 

Then we have the issue as to your interview yesterday published 

on the front page of the Washington Post today. And you are 

quoted here as saying, ‘‘Our biggest problem is we have people we 

think are terrorists. They are supporters of Al–Qaeda.’’ And you 

are keeping them under surveillance. 

I am troubled by this for two reasons. One is putting people 

under surveillance is right up to the edge of problemsome. It isn’t 

quite intimidation because you can conduct a really good surveillance without having people know about it. But it is troublesome 

to have surveillance unless there is really a good reason for doing 

so. 

33

And then when you say, ‘‘We think these people are terrorists. 

They are supporters of Al–Qaeda,’’ I am wondering if we ought not 

to take a look at a definition of prohibited conduct. Crimes are defined by the Congress, and if these people are really menaces and 

threats—and you say you don’t have sufficient resources to follow 

them all, and I can understand that—we really ought to get the details from you as to what you are worried about. There is a lot of 

experience on this panel of ex-prosecutors, people who were investigators. We may need to define a different category of crime depending on what evidence you have. 

Then, Director Mueller, I am concerned about what goes on in 

your office with respect to how much you can keep track of. On the 

Sunday show ‘‘Face the Nation,’’ you were asked a question about 

a chart, whether there was some chart that was referred to in 

Newsweek, and this is what Newsweek said about it: ‘‘To bolster 

their case, FBI officials have now prepared a detailed chart showing how agents could have uncovered the terrorist plot if they had 

learned about Almidhar and Alhazmi sooner. Given the frequent 

contacts with at least five of the other hijackers, there is no question we could have tied all 19 hijackers together,’’ the officials said. 

My staff called Mr. Michael Isikoff to ask him if there really was 

a chart and to ask him if we could see it. He declined, and that 

is his right. And I am going to take steps to see if the Committee 

would issue an invitation to see the chart. I am not talking about 

a subpoena. I am talking about a chart. But there are two things 

which trouble me here. One is: Was there a chart which showed a 

composite picture, as reported here? And, secondly, if there was 

one, I believe you, Director Mueller, when you say you didn’t know 

about a chart. But is this kind of information getting through to 

you? 

Let me ask you for your comments, if I may, to start on the issue 

of why you didn’t turn over the Phoenix memorandum to this Committee and why, when you had been asked about it, you never told 

the Committee that you had turned the memorandum—or the 

memorandum had been turned over to the Inspector General. 

Mr. MUELLER. Well, my understanding from the early days was 

that Congress had determined that the Intelligence Committee was 

going to do the retrospective——

Senator SPECTER. Well, that is not true. That is not true. It 

didn’t happen until mid–February. This is an ongoing standing 

Committee. And we were emphatic on your confirmation hearings, 

and, of course, you and I discussed this privately. And you committed on the record to respect the oversight of this Committee on 

matters of importance. We didn’t anticipate the Phoenix memo. 

Mr. MUELLER. We did have that dialogue, Senator, and it is still 

in my mind. And my thoughts during that period of time, as I have 

said on a number of occasions, were directed at doing the investigation, trying to prevent the second wave of attack, in fact, if there 

was going to be a wave of attack, with the expectation that there 

would be a retrospective down the road and the expectation that 

we would turn everything over to that Committee. 

Senator SPECTER. I respect that and I agree with it. And I took 

a public position there ought not to be an inquiry immediately after 

34

9/11 because the most important thing was to allow the intelligence 

agencies to regroup and stop another attack. 

But that doesn’t go to the issue of turning over the Phoenix 

memo at least to the Chairman and ranking member. Had they 

seen it, had we seen it, we might have had some—we would have 

had some very good suggestions for you. 

Mr. MUELLER. I understand, Senator. 

Senator SPECTER. How about the chart? 

Mr. MUELLER. Well, with regard to the—my understanding at 

the time that I answered on the Sunday show, I did not know of 

a document that met that description. What I have come to find 

out is that there is a PowerPoint presentation that was prepared 

by an individual who had used the newer technology, the databasemining technology that we are now using, to show how, if we had 

had that database-mining technology in place at the time, we perhaps could have tied the individuals together. 

It is not a chart. It is a series of slides showing how this new 

technology would have worked. 

Senator BIDEN. Senator Specter, would you yield for a point of 

clarification? What did the Director mean when he said, ‘‘I understand.’’ You asked him a question. He said, ‘‘I understand.’’ I didn’t 

know what the answer—what that means. 

Senator SPECTER. Well, I would be glad to answer that question 

for you, Senator Biden, but I will defer to the witness. 

Senator BIDEN. What do you mean by ‘‘I understand’’? 

Senator SPECTER. By the way, this is on his time, Mr. Chairman. 

Senator BIDEN. I am just curious what he means. 

Chairman LEAHY. I intend to be——

Mr. MUELLER. In response to which question, Senator? 

Senator BIDEN. The question the Senator asked you is: Why did 

you not submit the memo to this Committee? He gave his explanation of what he thought the Committee would do, and you said, 

‘‘I understand.’’ But I thought the question was: Why did you not 

submit this memo? 

Mr. MUELLER. Because I believe that the retrospective would be 

done by the Intelligence Committee, and I thought I had indicated 

that. 

Chairman LEAHY. Senator Specter? 

Senator SPECTER. Well, on that point, this is the oversight Committee of the FBI. You came here for confirmation. You made the 

commitments to this Committee, and they weren’t constituted until 

mid–February. And one of the things which really troubles me is 

that we haven’t had a look at this a lot sooner. 

But with respect to a slide, if it wasn’t a chart—and I think they 

are indistinguishable, technically—is it true, as the report says 

here, that this detailed chart—strike ‘‘chart’’ and put ‘‘slide’’—

showing how agents could have uncovered the terrorist plot if they 

had put these pieces together, is that so? 

Mr. MUELLER. I would have to go back and—it is a slide presentation. It is not one chart. It is a series of charts, as I understand 

it, that shows how the technology could have been used to associate 

these particular individuals together. 

Senator SPECTER. Okay. But the composite would have led you 

to a possibility of preventing 9/11? 

35

Mr. MUELLER. I am not certain, Senator. 

Chairman LEAHY. Well, if it might be helpful at all to the Committee, one of the things that we requested when we had our meeting with David Frasca—we have a list of things we requested. 

Number 11 on it is the JTTF chart or chronology or PowerPoint 

presentation. We have been told that parts of it are law enforcement-sensitive. My response is that it could be then looked at in 

closed session. In fact, I would be happy to do it and designate one 

member from this side, have Senator Hatch designate one member 

from his side. But I happen to agree with Senator Specter it is 

something we should look at. 

Senator SPECTER. Well, in conclusion, had the Foreign Intelligence Surveillance Act warrant been issued for Moussaoui and 

what we now know by 20/20 hindsight, it would have uncovered a 

wealth of information had that been done in August when Agent 

Rowley submitted it. And we have gone through these Foreign Intelligence Surveillance Act problems in detail on Wen Ho Lee. We 

have been on notice as to what went on. Attorney General Reno 

testified at great length about her turning down the Foreign Intelligence Surveillance Act warrant application. So we have been on 

notice as to what should have been done. 

Had that warrant been issued, the follow-up then on Moussaoui 

would have been a virtual gold mine. But the point is that all of 

this is prologue. What we all have to try to do is to see to it that 

the mechanism is now in place so that if you had this composite 

information, it could have been prevented. 

The media is always asking who is going to take the blame and 

who is going to be the fall guy. We have no interest in that. And 

this Committee is going to back you up, Director Mueller. Notwithstanding the fact that one prominent publication called for your 

resignation, we are going to back you up. You are just on the job, 

and we are not delighted with the number of things you have done, 

but you are the Director. And if we were to get a new Director, it 

would take weeks, confirmation a long time, and you are experienced. But we have got to put these pieces together. 

Thank you, Mr. Chairman. 

Mr. MUELLER. I have tried to address, I believe, some of your 

concerns, Senator. For instance, on the FISAs, I agree that there 

are issues relating to FISAs. And as I indicated before, we have 

changed the procedure. I get briefed on the FISAs every day. 

We should look back to determine what there were in terms of 

problems, pre-existing 9/11. We are moving in a variety of ways to 

assure that we address those problems and that this does not happen again. And the proposal that I have before this Committee and 

before Congress as a whole is an effort to make certain that we better the FBI, give the FBI agents the tools they need, particularly 

in terms of pulling together the various pieces of information so 

that we do not—so that we can prevent any future attack. 

Senator SPECTER. I would like your comments in writing, Director Mueller, as to the standard 51 percent, 75 to 80 percent, and 

I have already discussed with the Chairman the activity of pursuing this FISA matter, because we need to get down into the details of it and to lend the oversight and our own experience on 

these matters, which is considerable. 

36

Mr. MUELLER. Thank you, Senator. 

Chairman LEAHY. Thank you. I think on these questions of other 

Directors, the Director has the confidence of this Committee on 

both sides of the aisle. And we will continue asking the questions. 

This Committee has an oversight responsibility which we will carry 

out, entirely different than other Committees. It is unique and it 

is an obligation we have to the Senate, it is an obligation to the 

American people. 

The Senator from California, Senator Feinstein. 

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 

FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thanks very much, Mr. Chairman. 

Mr. Mueller, I suspect there are times you wish you were on the 

West Coast, as I do. 

[Laughter.] 

Mr. MUELLER. San Francisco was a lovely city. 

Senator FEINSTEIN. This is a hard place. 

I want to just say a couple of things personally. I think you have 

come into a very hard job at a very hard time. I can’t imagine a 

worse time. I have had occasion now to review your plans for reorganization, I think three times. I want you to know that I am here 

to support you. I do support you. I think your efforts to change the 

culture and the organization are very commendable. 

I may not agree with every specific, but that is irrelevant. I want 

to see that the American people are protected, obviously, consonant 

with our civil liberties. And I was very heartened to hear what you 

had to say along those lines. 

I also want to thank the Chairman because I think he is exercising the oversight, and I have been reading some of the testimony 

that goes back to the 1970s when there was real reason to be concerned. There wasn’t the level of oversight that there is today. 

There wasn’t the level of press inquiry that there is today. We held 

an oversight hearing I think less than a month ago, thanks to the 

Chairman, and this may be a bit rugged on you, but I think it carries out our responsibilities. 

I would like to ask for an answer to my letter that I wrote to 

you on May 7th with a substantial number of questions having to 

do with the Phoenix memo. I have not gotten that answer yet. 

Mr. MUELLER. I thought that had come up last night or would 

be there with you today. 

It is going through a final review. It should be up there today 

or tomorrow. 

Senator FEINSTEIN. Thank you very much. I will look forward to 

that. 

I wanted to concentrate my questions in two areas. One is the 

FISA procedure, and the second is regional authority versus flying 

squad. Let me take the FISA area. 

It has come to my attention that in at least one major case that 

I won’t specify, the warrant never left the FBI. It never went to the 

Department of Justice. It never went to the OIPR where the attorneys are. I have read Mr. Freeh’s memo of April the 15th which 

changed the FISA process, I think based on problems that prior 

FISA warrant requests had that were egregious, let me say, and 

37

so he wrote a memorandum that was very complicated, very difficult, I think, to carry out. 

There are different impressions of what you intend with respect 

to the FISA process. One is that applications would be automatically routed to Dale Watson and to you for further review and consideration. I would like you to lay out for this oversight Committee 

the specific process that you are going to use with respect to the 

processing of a FISA warrant. 

Mr. MUELLER. Well, let me just go back to what they call, I 

think, the Woods changes that are reflected, I believe—and I am 

not certain of the date, but Mr. Freeh’s memorandum—that relate 

to assuring the accuracy of the document that is going to be presented to the court. And the difficulty we have here is we have got 

one FISA court situated in Washington, but the persons who are 

drafting the affidavits and have the information from the investigations are out in the field. And so that is appropriate to assure that 

there is a certification from the agent in the field as to the accuracy 

of the document before it goes to the court. 

With regard to the FISA process, what we have done since relatively shortly after September 11th, whenever there are issues relating to FISAs relating to terrorism, that are on terrorism, I get 

briefed on that every morning. I have given directions to Pat 

D’Amuro, who I put in charge of the Counterterrorism Division, 

that if there is an issue there of turning down a FISA and not 

sending it across the street, then I want to be involved in the decisionmaking process. 

Senator FEINSTEIN. Stop. By across the street, do you mean to 

the Department of Justice? 

Mr. MUELLER. Department of Justice, yes. 

Senator FEINSTEIN. To OIPR? 

Mr. MUELLER. OIPR. 

Senator FEINSTEIN. Will every FISA warrant go to the OIPR? 

Mr. MUELLER. If we believe that we have met the criteria of 

probable cause, yes. But what——

Senator FEINSTEIN. And you will assess that personally in every 

warrant? 

Mr. MUELLER. No, most of them go through. If there is one in 

which the field says we believe you have probable cause, and somebody at Headquarters is saying, no, I do not think you do, then I 

will be involved in that discussion. And the way I am currently 

alerted to that discussion is I have in my briefing book every day 

a piece of paper that gives me the status of those FISAs that are 

related to terrorism. And there are occasions where I have seen 

that there has been a hang-up for some reason or another, and I 

have given direction to let’s get beyond that, do this investigation. 

There are other cases in which in the course of the daily briefing 

I will say we ought to go FISA on this, not criminal. 

And so, to the extent that the FISA process is perceived to have 

been held up by persons at the unit or section chief level, I want 

to make certain that that is not the case and that it gets the highlevel review in those particular instances where it is appropriate. 

Senator FEINSTEIN. Stop here for just a second. To what extent 

would foreign intelligence be incorporated in the warrant? 

38

Mr. MUELLER. To the extent that we have information from the 

CIA, or some other agency, it should be incorporated in the warrant. There are no prohibitions to us using that, and more than 

often we use that kind of information. 

What I have to do a better job at is integrating our information 

with information at the CIA so that we have that information to 

put it into that FISA application to get that warrant. 

Senator FEINSTEIN. Well, this is an important point. So what you 

are saying is that if there is foreign intelligence connecting an individual, let us say to al Qaeda, that should be included in the FISA 

warrant for probable cause? 

Mr. MUELLER. Absolutely, absolutely, absolutely. 

Senator FEINSTEIN. Because there are instances where I understand it has not been? 

Mr. MUELLER. There may well be, but it should be. To the extent 

any piece of—regardless of where that piece of information resides, 

whichever agency, and it could be, as you well know, there are a 

number of separate intelligence agencies in the Government. I do 

not care where it is, it should be utilized where appropriate to provide the basis for obtaining the FISA warrant. 

Senator FEINSTEIN. So just quickly go back, so you will receive 

notice of every warrant. If the warrant is normally being processed, 

it will go to OIPR, and if it is not, you will personally review it; 

is that——

Mr. MUELLER. If there is a dispute as to whether or not there 

is probable cause. What often happens in this case is you will have 

somebody who is familiar with the FISA Court talking with the 

agent who is drafting it and saying, ‘‘Look, we need a little bit 

more here, we need a little bit more there.’’ There are occasions, 

since September 11th where there has been somewhat of a dispute 

as to whether or not we had enough, and those are the occasions 

when I will weigh in and push it forward. And to the extent it is 

necessary to discuss it with OIPR I or persons close to me have had 

those discussions also. 

Senator FEINSTEIN. Right. Now, as one who sat through both the 

Waco and the Ruby Ridge hearings here, I think it may well be 

that a false impression was given, and that is that because we 

were concerned, or some of us were concerned in the instance of a 

major event such as Ruby Ridge or Waco, the central administration did not take sufficient responsibility, but too much was placed 

on the SAC, and I have felt as I have watched this since that time, 

that that may well have had a chilling effect on regional offices’ enthusiasm to move ahead in a vigorous way in certain cases. 

Having said that, I would be interested if you would spell out 

where your flying squad makes some of these determinations as to 

when an investigation would ensue and how much authority the regional head has in your 56 offices to really now say, ‘‘Okay, we 

have got this information about so-and-so. It is time we take a good 

look.’’ You know, assign people and go ahead and take that look. 

Mr. MUELLER. Let me talk about two things. In terms of the role 

of Headquarters versus the field in counterterrorism, we are an 

agency that has been built up with 56 separate field offices addressing crimes that from the beginning have generally been generated out of the conditions in a particular city or a state. When 

39

you look at the war on terrorism, we have to protect the Nation. 

We have to take pieces of information from Boston or Florida or 

San Francisco, and utilize those pieces of information in a predictive way, and there has got to be somebody accountable for getting that information together and then taking action on it, and it 

cannot be the SAC of a particular office. And so Headquarters has 

to have a management and supervision role to assure that the national program is maintained and that we are, as they say, tying 

the dots together. 

The flying squads will be individuals at Headquarters who develop an expertise in say, al Qaeda, and if you have a case such 

as Richard Reid up in Boston—you will recall he is the individual 

who was on the plane from Paris to Miami and had explosives in 

his shoes, and the very vigilant flight attendant saw it, and he was 

arrested and taken to Boston. Well, that particular case has information in it relating to al Qaeda with regard to Reid. They are putting together the facts for that particular case, and the flying 

squads, had I had them in place, would have had maybe two individuals that would go up and support that prosecution, that further 

investigation. They would bring expertise to the field. They would 

be under the control and reporting to the Special Agent-in–Charge, 

who is in charge of that particular investigation. And once the Reid 

prosecution or investigation is over, they would bring back to Headquarters that expertise, that experience that they learned there. So 

it is to supplement, on the one hand, the agents in the field doing 

the job they do in terms of their investigations, and on the other 

hand be a resource for the field in terms of expertise that can be 

made available to the field. 

Senator FEINSTEIN. Does the Agent-in–Charge have to have 

Washington approval to institute one of these terrorist investigations? 

Mr. MUELLER. Prior to the change in the guidelines of last week, 

yes. The change to the guidelines last week give the authority to 

the Special Agent-in-Charge to initiate the investigation. There is 

a reporting requirement. It has to be reported back, so that we 

know what particular investigation is being initiated and we can 

put investigation in Boston together with perhaps an investigation 

in San Francisco or Los Angeles. 

Senator FEINSTEIN. Thanks, Mr. Mueller. My time is up. 

Thanks, The Chairman. 

Senator BIDEN. [Presiding] Senator Kyl. 

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 

STATE OF ARIZONA 

Senator KYL. Thank you, Mr. Chairman. 

Mr. Fine and Director Mueller, thank you very much for being 

here today. 

Mr. Fine, I am sorry you have not been afforded the opportunity 

the say much beyond your opening statement, but I appreciate your 

being here. 

Director Mueller, you have spent a lot of time with us in the last 

two or three weeks. We are asking you to help us fight the war on 

terror. We are also trying to get a lot of information from you, and 

I appreciate—you are probably burning the candle at both ends, 

40

and I very much appreciate both what you do and what the dedicated people at the FBI do. 

I want to give you an opportunity to clarify something and perhaps add a little bit to it myself, relating to the Chairman’s opening statement in which he questioned the restructuring that you 

announced, the restructuring of the FBI and related changes in the 

FBI. 

It seems to me that that kind of criticism is inconsistent at best, 

and I would like to set the record straight to the extent I can. On 

the one hand people tend to criticize the FBI for not acting or not 

acting quickly enough to correct deficiencies that you found when 

you came on board roughly a week before September 11th. And 

then on the other hand you get criticized for initiating the reforms. 

Sometimes it is not actually criticism, as the Chairman said. He 

said, ‘‘Maybe these reforms are right. They may be right. But the 

process was wrong because we were not consulted, we the Congress. Senators love to be consulted.’’

Now it seems to me there are two things wrong with that. First 

is we were consulted. I counted up how many hours I spent with 

you two weeks ago that you had to spend up here, on Tuesday, 

Wednesday and Thursday afternoon. It was over 11 hours that I 

spent and I left a couple of those meetings early. You had to be 

there for the entire time. As a member of the Intelligence Committee, then the next day the Judiciary Committee, and then the 

next day you afforded the opportunity for all Senators to brief you 

and ask you any questions—excuse me—for you to brief them on 

these restructuring changes and ask any questions. Somebody said, 

‘‘How much time do you have?’’ You responded, ‘‘I have all the time 

you need.’’ And after about 2–1/2 hours, as I said, I left the meeting, you were still there. It was beginning to wind down, but everybody had a full opportunity to ask questions. And then there was 

the actual announcement. 

Now, you also said that you did not want to announce the 

changes at that time because you wanted to consult with the appropriators, and I have verified you did in fact consult, both with 

House and Senate appropriators. So I think the first point is that 

there has been a full opportunity for members of the Senate to talk 

to you about these recommendations that you told us about two 

weeks ago. And secondly, it does not seem to me that when you 

talk about restructuring the FBI and reassigning the agents and 

creating this team that you just talked about and making other internal changes, that this is the stuff of legislation. For us to be 

micromanaging it is rather the stuff of management that we expect 

you to do. We have an oversight role, but not a micro management 

role, and I do not think we can ask you to expeditiously reform the 

agency on one hand and at the same time be upset that you do not 

tell us everything you are going to do far in advance or seek our 

preapproval of it. 

And I want to conclude this point by saying that if you did, I 

would object anyway because has a sorry record in this regard. It 

is understandable because there are a hundred of us. There is one 

of you, although you have got a big agency to get your arms 

around. But for years—and I have the record here—I chaired this 

Terrorism Subcommittee, and Senator Feinstein was my ranking 

41

member; she is now Chairman—I count over 20 hearings that we 

held on the subject of terrorism going back to 1997, and we had 

your predecessor, Louis Freeh, testify on at least two or three of 

those occasions. He asked us over and over again for authority, 

that Senator Feinstein and I put in amendments and in legislation, 

and amendments to the CJS appropriations bill. Could we get our 

colleagues to pass it? No. After September 11th, miraculously everybody was the parent of these wonderful ideas and is now taking 

credit. Fine. But it takes something like September 11th, unfortunately, to get a cumbersome body like Congress, frequently, to act 

when it is the least bit controversial. And some of these things 

were controversial because civil liberties groups and others were 

concerned about whether or not they went too far. Well, after September 11th, we realized we had not gone far enough. 

So, I frankly, without going into more detail, want to compliment 

you for acting, and in the brief amount of time I may have left, ask 

you two questions. 

One, I would like to specifically elicit your views—and if you 

would pass this on to the Attorney General, his views, about the 

legislation that Senator Schumer and I introduced yesterday that 

would make one small but very important amendment to the FISA 

warrant definition of ‘‘foreign agent’’ the solve the problem that you 

have identified, that a lone actor out there, a person that you cannot necessarily tie down as a member of the al Qaeda organization 

or Hezbollah or some other group, or working directly on behalf of 

a specific foreign government. All you would have to do is prove 

that that person was a foreign individual and you have probable 

cause to believe that they are involved in terrorism. 

If you want to comment any further on that right now, fine. Otherwise, I would very much like to get the Department of Justice’s 

and the FBI’s recommendations with respect to whether we should 

proceed with that legislation. 

Mr. MUELLER. I understand it was put in maybe yesterday or the 

day before? 

Senator KYL. Yes. 

Mr. MUELLER. And as I indicated before, this is a problem, and 

we are looking for solutions to address this problem and I know the 

Department will have the formal opinion on that, but we are looking for a solution for this problem. 

Senator KYL. Great. I appreciate that. I would also like to raise 

one other point. I am very concerned about leaks and the effect 

that they may have on your work and the work of your agents. 

When we had Agent Williams here a couple of weeks ago and 

talked about the Phoenix memo, there was some discussion in any 

event about the effect of the leaking of that particular memorandum on possible investigations, and without getting into details 

that themselves would compromise investigations, I would like to 

have you at least remind us of the problems that can be created 

in ongoing investigations when material like that is leaked. 

Mr. MUELLER. Well, it has an adverse effect on the investigation 

from the perspective of informants, persons willing to come forward. It may well alert subjects of the investigation to scrutiny. Although names are not mentioned, there may be other identifying 

data that is released that may put the person on alert that the 

42

Government is looking at them. And consequently that type of information, if out in the public, could undercut and adversely affect 

the ability to do the job. 

Senator KYL. I just urge my colleagues, as part of the Intelligence Committee investigation and also to the extent that this Judiciary Committee has oversight of the FBI and the Department of 

Justice, that we have an obligation not to make your job or the 

CIA’s or other intelligence agencies’ jobs more difficult. 

Finally, in some of those sessions we also heard from agents in 

the field that even some of the reforms that we had instituted in 

the USA PATRIOT Act, while very well meaning and very helpful, 

were not necessarily working out exactly as we had hoped, and 

that there may be a need to—and I think the word was to—tweak 

some of those changes or some of those reforms, so that now that 

you have or your agents have experience with them in the field and 

know exactly how they are working or not working, that we will 

have a chance to make some additional changes. 

And I would simply ask that as a part of your internal reorganization process and so on, that you elicit views of those in the field 

and come up recommendations that might be useful to you, present 

them. I think this is the proper Committee to present them to, and 

I know that Chairman and others on the Committee will then want 

to perhaps hold hearings, but in other ways act expeditiously to try 

to effect those additional reforms. Can you do that as well? 

Mr. MUELLER. Yes. We are looking at ways to tweak the PATRIOT Act. The PATRIOT Act has been exceptionally helpful already, but there are areas in which we think the provisions of that 

act could be tweaked to assist us. 

Senator KYL. I might just add in closing that I think it was the 

CIA Director who testified that with respect to our laws and our 

procedures and the methodology that intelligence and law enforcement agencies interested United States use, and his words were, 

the terrorists have gone to school on us. What do you take his description there to mean? 

Mr. MUELLER. The terrorists that we deal with are—many of 

them spent time in the United States. They understand our freedoms. They understand our liberties. And they are not at all unwilling to utilize that knowledge to their benefit. They have gone 

to school on not only what they have learned in the United States, 

what they pick up on our newspapers, what they pick up on the 

Internet, and are skilled at identifying loopholes and ways that 

they could operate more effectively and efficiently. And to the extent that we publicize how we do things, it feeds the information 

that they have to enable them, or better enable them to launch attacks against us. 

Senator KYL. And I just make the final point, Mr. Chairman, 

that while it is important for the American people to understand 

generally how we work and it is also important to protect some of 

the ways in which our law enforcement and intelligence agencies 

work, so that we do not signal to those who would do us harm, 

every way in which we may try to thwart them. We have to have 

some capabilities that they simply are not aware of, or they are 

smart enough to figure out ways to get around it. 

43

Again, Mr. Chairman, I want to thank both of our witnesses here 

and particularly the good people at the FBI for all the hard work 

they are doing. 

Thank you, sir. 

Chairman LEAHY. Thank you. While Senator Kyl is still here, he 

apparently made a comment while I was out of the room, suggested 

I was critical of you, Director Mueller, for not consulting with Congress on your reorganization. He perhaps did not have a chance to 

hear my opening statement in which I praised for consulting with 

both Republicans and Democrats about your efforts at reorganization and praised what you have done on your efforts for reorganization, as I have on the floor of the Senate and as I have to the press 

on numerous occasions. I did express, of course, the fact that I was 

surprised at the new revised guidelines of the Attorney General, 

basically quoting what the Republican Chairman of the House Judiciary Committee, Congressman Sensenbrenner said, that he was 

surprised at the lack of consultation on those guidelines, that he 

had heard of them only two hours before they were announced. I 

have yet to have any consultation on them, although I have read 

the 100 pages in the website. 

But just so the Senator from Arizona—and I am sure he did not 

want to misstate my position—but I will restate it. As I said earlier 

in the hearing, I commend the Director, as both Senator Hatch and 

I did in our opening statements for his consulting with us, and expressed my support of the reorganization plan and our intention to 

work with him to help implement it. 

Senator KYL. I appreciate the Chairman’s clarification. 

Chairman LEAHY. I knew you would. 

Senator Feingold. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Mr. Chairman, let me first thank you for your 

leadership and for holding the hearing on these important issues, 

and Director Mueller, Mr. Fine, welcome and thank you for joining 

us here today. 

Before I get into my questions, Mr. Chairman, I do want to express my deep concern about something you have mentioned: the 

revised Attorney General guidelines that expand the FBI’s domestic surveillance authority. I fear what these revised guidelines 

might mean for law-abiding citizens who rightfully expect privacy 

in their daily lives and in their political associations. 

One sad chapter in our country’s history, unfortunately, is the 

period when certain groups were unconstitutionally targeted for 

surveillance by investigators because of their race or because they 

held certain political views. I do not want the history of our present 

day to note that our citizens’ basic rights of political expression 

were chilled by their government. 

The Judiciary Committee has a critical responsibility to exercise 

oversight of the Justice Department’s activities, especially when 

these activities implicate fundamental freedoms guaranteed by our 

Constitution. So, Mr. Chairman, I urge this Committee to hold separate hearings on these revised guidelines once we have had more 

time to analyze the changes and assess their effect. 

44

Director Mueller, I am not going to spend all of my time on the 

guidelines, but I do want to clarify a couple of things. You were 

asked earlier today in a question from Senator Leahy about this, 

and I am not sure I understood your answer. Did you personally 

review and approve the revised guidelines before they were announced by the Attorney General? 

Mr. MUELLER. I am not certain that there was any approval 

process, formal approval process. I know I was kept apprised of the 

ongoing discussions leading to the finalization of these guidelines. 

Senator FEINGOLD. Did you personally review them? 

Mr. MUELLER. I reviewed—well, I had discussions with persons 

in the Bureau who were involved in that process. Did I actually 

take and look at the guidelines before they were announced? No, 

but I had known and been briefed on the changes in the guidelines. 

Senator FEINGOLD. With regard to the issue of the guidelines, is 

it not true that under the FBI’s separate guidelines for foreign intelligence and international terrorism investigations, which have 

not yet been modified, that this kind of surveillance of, let us say, 

political meetings or religious services, can be done without a suspicion of criminal activity? 

Mr. MUELLER. I would have to check. Off the top of my head, I 

have not looked at that and am not that familiar with that portion 

of those guidelines. 

Senator FEINGOLD. Well, is there any evidence that the previous 

guidelines for domestic surveillance, with the restrictions that have 

now been lifted, inhibited the FBI investigation that might have 

prevented the September 11 attacks? 

Mr. MUELLER. I am aware of anecdotal evidence with regard to, 

say, using websites, for instance, using the databases that we 

would have liked to have used previously, yes. The one thing I 

want to make clear is that my understanding of the previous guidelines required certain predication for initiating a certain series of 

steps that agents were allowed to undertake. It never said you 

could not go into a public place, but it was read to mean you could 

not go into a public place because there was not specific authority 

given——

Senator FEINGOLD. Well, I am not sure about that, because what 

I am trying to point out here is that the FBI had authority in investigating international terrorism to do this kind of surveillance, 

as I understand it, under the current law and current procedure. 

So I do not understand why this additional——

Mr. MUELLER. This is a separate set of——

Senator FEINGOLD.—guideline is needed. 

Mr. MUELLER.—separate set of guidelines that address the—and 

the interaction of the two guidelines, I am not certain it is always 

the same, but these guidelines, the ones that were changed, the 

general criminal guidelines, did not have the same provisions as 

the international guidelines. 

Senator FEINGOLD. What I am suggesting, though, is that the 

international ones did give you sufficient authority to do what you 

wanted to do here, and I am not sure what is the basis or predicate 

for these new domestic guidelines, but I will be happy to follow up 

with you on that. 

Mr. MUELLER. I will have to go back and look at that. 

45

Senator FEINGOLD. Director, we have talked a little bit today 

about the fact that the administration asked for and Congress 

passed the USA PATRIOT Act last fall. The Justice Department 

told Congress at that time that it needed more expansive powers 

to conduct surveillance and wire taps and other searches and seizures in order to protect our nation from future terrorist attack, 

and I do recognize that we live in a different world with different 

threats. Nonetheless, I voted against the so-called PATRIOT Act 

because I thought it went too far. 

Now, as we have heard today, the Justice Department seeks to 

expand the FBI’s ability to conduct investigations and surveillance 

even more as set forth in these Attorney General guidelines that 

we are talking about. But, I think Congress is first entitled to know 

how the extra powers already granted to the Department and the 

FBI have been utilized. Senator Kyl questioned you about it, and 

you indicated it had been quite useful. 

I would like you to tell us, Director Mueller, how the FBI has 

used the new powers granted by the PATRIOT Act. For example, 

how many wire taps have been authorized? How many requests to 

seize records have been approved and executed? 

Mr. MUELLER. Off the top of my head, I do not have those figures. We can get you those figures. 

I can tell you that there are two provisions that have been exceptionally useful. One is the changing of the language for the FISA 

from having to show a primary purpose, that the investigation or 

the request for the FISA was for the primary purpose of a foreign 

intelligence goal, to a significant purpose. That has enabled us to 

utilize the FISA capability in ways that we had not been able to 

use it before. 

The second area that I think has been helpful is removing the 

bar to the CIA obtaining grand jury testimony and testimony that 

may have arisen out of a grand jury proceeding that in the past 

had been—we had been barred from providing to the CIA. Those 

two provisions have helped us, I believe, tremendously. 

Senator FEINGOLD. I am intrigued by that answer, and I thank 

you for that, but that second provision you mentioned I do not 

think raised a lot of concerns among civil libertarians. What I will 

be especially interested in is to what extent the more controversial 

provisions have provided any benefits. 

So I would ask you and the Department to provide the Congress 

with a full and comprehensive report about the use of the powers 

granted by the PATRIOT Act. I think we are entitled to that in any 

event, but when you are asking for more powers, surely we have 

a right to know what has been done with the new powers. An important way to ensure that a proper balance is struck between civil 

liberties and national security is obviously to monitor and review 

these powers, and I really feel we need this before some of these 

further powers can be examined. 

I would like to continue my questioning by turning to the subject 

of the FBI’s performance prior to September 11 and how it handled 

the Phoenix memo. I have been very troubled to hear some of my 

colleagues and Justice Department officials quoted in the press 

saying that they believe concerns of being accused of racial 

profiling led the FBI to not act on the Phoenix memo. I think it 

46

is a distortion to say that acting on the memo would have resulted 

in racial profiling. That memo contains specific information about 

specific individuals. 

I think there has been a serious misunderstanding of racial 

profiling and what it means. Indeed, I think these claims may very 

well be a distortion, maybe even a deliberate distortion, to distract 

attention from real mistakes or to cast aspersions on responsible 

and still necessary efforts to eliminate racial profiling in our country, which both the President and the Attorney General have said 

is illegal or should be made clearly illegal. Under any version of a 

ban on racial profiling, when law enforcement has legitimate reason to believe that specific individuals may commit a criminal act, 

obviously, law enforcement may take whatever action is necessary. 

Director Mueller, you do not believe that concerns about being 

accused of racial profiling were a fact on in the failure to act on 

the Phoenix memo pre–9/11 or to connect it to the Moussaoui investigation, do you? 

Mr. MUELLER. I have seen one indication that a person who was 

involved in the process articulated that as a possible concern. 

Senator FEINGOLD. Do you think that was a legitimate reaction 

by that person? 

Mr. MUELLER. I am not going to second-guess because I cannot 

put myself in that context. All I can say is that that person said 

that it may be—it was a concern to that individual. 

Senator FEINGOLD. Well, I am troubled to hear that and I was 

hoping for a different answer. I was hoping for you to say that, 

clearly, what was needed there was not some sort of an exception 

from a rule against racial profiling. Do you believe that having FBI 

agents contact flight schools and ask whether any students had exhibited suspicious behavior, for example, maybe they expressed interest in flying but no interest in take-offs or landings——

Mr. MUELLER. No. 

Senator FEINGOLD.—is racial profiling? 

Mr. MUELLER. No. No. 

Senator FEINGOLD. Well, this is a critical——

Mr. MUELLER. No, I am not. All I am saying, Senator, is that 

there was one person who had articulated that. Do I believe that—

if the question is, do I believe that that was a valid concern, no. 

Senator FEINGOLD. Good. That is what I wanted to hear and I 

think it is critical for you and for the Attorney General and everyone else to make it clear. What we can gain out of this whole disaster is a clear understanding of what is the difference between racial profiling, using a criterion like that as the only or main criterion, versus the very legitimate and important work that you are 

trying to do to follow up legitimate leads. Even though some people 

want to make 9/11 the excuse to not deal with racial profiling, I 

am hoping that the opposite will occur—that the public and all law 

enforcement people will come to realize that there is a big difference between illegitimate racial profiling and following up on legitimate leads. I appreciate your final answer there, because we 

need to fend off these claims that the inability to engage in racial 

profiling somehow had anything significant to do with what happened on 9/11. I thank you very much. 

Chairman LEAHY. Is that all? 

47

Senator FEINGOLD. Is there time left? I thought I saw a red light 

there. 

Chairman LEAHY. You did. 

Senator FEINGOLD. I would love more. 

Chairman LEAHY. The problem is, you would think sitting this 

close to the dais, you could see them, but the way the lights are 

there, it is almost impossible. I do appreciate members who have 

tried to stay, at least by Senate standards, within the time. 

Senator DeWine? 

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM 

THE STATE OF OHIO 

Senator DEWINE. Thank you, Mr. Chairman. 

Mr. Director, thank you for staying with us through this long testimony today. This Committee will have the opportunity in an hour 

or so to hear Agent Rowley testify, and we have already had the 

chance to read a redacted portion of his letter and also to read her 

testimony. I would like to make a couple of comments about that 

and then I would like to ask you a couple of questions about that. 

One of the issues that I think we really cannot get into today is 

the whole issue of probable cause as far as the facts. That is just 

not something that we can explore as thoroughly as it would need 

to be explored to make any determination, whether each one of us 

in our own mind thought there was probable cause there. But I 

would like to make a comment. 

It seems to me that all the decisions, or the decisions that are 

made in regard to probable cause at the FBI, at the Justice Department, ultimately come back to two things. One is the statute, but 

then, also, how that statute is interpreted by the FISA court. 

I remember when I was a county prosecutor that the police 

would come in and want a search warrant. We were not dealing 

with anything of any magnitude such as this, but we were dealing 

with what we thought were important things. And I would tell 

them ‘‘Judge So-and–So will not accept it,’’ and that was my answer. That is not enough. I was guided by the Constitution, but I 

was also, frankly, guided by what I knew the judge I dealt with everyday would accept or would not accept. 

I just think that something that we need to keep in mind as we 

judge whether or not there is probable cause here, is that it is important for us at some point to look at how the FISA law is actually being interpreted and, therefore, what impact it has on the 

people at the FBI and how Agent Rowley’s, the people who she has 

to kick it up the line to. 

While we are talking about FISA, let me also make a comment, 

if I could, and ask for your brief comment about something else, 

and that is Senator Kyl and Senator Schumer’s bill which would 

change the FISA law. There is an interesting article in, I believe, 

today’s Wall Street Journal that quotes Philip Heymann, who 

served as President Clinton’s Deputy Attorney General. He said 

that that legislation does not go far enough and he is quoted as 

saying that the authorities should be able to monitor non–U.S. persons based on a reasonable suspicion that they are engaged in terrorism, not the higher probable cause standard, as the amendment 

proposes. 

48

I think that is something that we at least ought to look at. We 

are not dealing with U.S. citizens. We are not dealing with legal 

aliens. We are dealing with non–U.S. persons and it seems to me 

that if we had reasonable suspicion that they were engaged in terrorism or about to be engaged in terrorism, most Americans, I 

think, would think that we should grant that search warrant. 

I do not know if you want to comment on that or not. If you want 

to just pass, I will accept either answer. 

Mr. MUELLER. I think it is something we definitely ought to look 

at with the Department and evaluate whether this is the proposal 

that we should back. 

Senator DEWINE. I will accept that answer and I think it is 

something that we ought to at least look at. I think we need to understand how FISA really works in the real world. We also need 

to understand exactly or have a debate about where we think we 

should be, what we should be doing in the world we live in today 

in regard, not to U.S. citizens, but in regard to people who are not 

U.S. citizens and people who are not legal U.S. aliens. 

Let me move to another portion of Agent Rowley’s letter, though, 

which I find to be the most important, and I think most interesting. I suspect that this letter, this testimony could have been 

written by thousands of FBI agents because, really, there is a tremendous amount of frustration there about the bureaucracy that 

the individual agent has to deal with. 

You inherited a great organization, but also a great bureaucracy, 

and with that comes all the problems of a very entrenched bureaucracy. And as you try to reshape this bureaucracy into a lean machine that can go after the terrorists, to me, that is your biggest 

challenge. Agent Rowley is very specific. She talks about, and 

again, I think this could have been written by any number of your 

11,000 agents: administration—lift some of the administrative burden from the line field supervisor; culture—transition from a riskaverse to a proactive atmosphere by changing our evaluation process; inspection—performance evaluation; technology—something 

you and I have talked about many, many times—continued technology upgrades, integration projects. And it goes on and on and 

on. 

To me, your biggest challenge is how you are going to do that. 

I am going to give you a chance to answer, but let me ask you two 

other related questions, and they are related. 

That is, how are you going to carry out what you have stated as 

one of your objectives—to encourage and reward people who deal 

with counterterrorism, people who go into the FBI, who work 

counterterrorism every day. How does that become the thing that 

is rewarded just as much as somebody else who is not doing 

counterterrorism? 

And how do you reward those who are involved in internal security? The reports that I have read, the people who I have talked 

to have indicated to me that internal security within the FBI has 

been looked at, frankly, as something that is maybe important, but 

that is not how you advance. That is not how you move up the line. 

How do you emphasize those two things and how do you deal with 

the culture problem? 

49

Mr. MUELLER. Let me start with the last two and then go to the 

former, and that is counterterrorism, counterintelligence. You start 

with new agents, explaining with the new agents what the mission 

of the Bureau is and what the two priorities of the Bureau are, 

number one, counterterrorism, number two, counterintelligence, 

and you include it starting with the new agents, promoting persons 

up in the ranks who have had the experience in counterintelligence 

and counterterrorism is critically important to turning that around. 

Finally, the third thing is put leaders in charge of those particular 

divisions who are dynamic, who can explain how important the 

work is and how interesting the work is. 

And as to the last, I have got leaders now in the Counterintelligence and Counterterrorism Sections that I think are dynamic, 

that people will look to as leaders in the future and will also, at 

the same time, understand that this is the critical mission of the 

Bureau. The Bureau has been terrific. Once you say, this is the 

hill, we have got to go take it, the agents have been terrific in lining behind that particular mission as articulated and getting the 

job done. They did it in the wake of September 11. They will do 

it in terms of the prevention side. 

The bureaucracy is frustrating. 

Senator DEWINE. Your agents are frustrated. That is what I see. 

They are frustrated and there are so many good people out there 

who are doing so many good things, and that is what——

Mr. MUELLER. I am as frustrated often as they are. Part of it is 

the technology. We have not had the improvement in technology 

that allows us the horizontal information sharing. When I sign off 

on a memo, there are a bunch of people, there are eight people that 

sign off before me. It is a paper-driven organization that has established regimens that we have to look at from top to bottom, but we 

have to do it in the context of the new technology. 

I will give you an example of—there are things that occur that 

persuade people they do not want to be supervisors. One is doing 

file reviews. We do file reviews now. An agent has 100 files. Somebody goes and pulls those 100 files down, puts them on a desk, and 

you go through that file one by one and put in notations. Why 

would one want to be a supervisor when you have that kind of paperwork to do, when you have the computer capability and capacity 

to do it on a screen in ten minutes? 

So much of it is tied in with the new technology, but with the 

new technology has to come new procedures, new lessening of the 

bureaucratic approvals and a view of doing things quickly, expedited, getting the job done with the assistance of the technology. 

When you look at the relationship between Headquarters and the 

field, it is critically important in counterterrorism and counterintelligence, in my mind, to have persons that are respected at Headquarters who are heading up those particular divisions—it is true 

in criminal also—so that when people come back to the field for advice, when people come back to the field to get something accomplished, they have got somebody there who has done it before, has 

done it maybe 20 times before, and is as aggressive, if not more aggressive, than the people in the field. 

And so it is people, it is technology, and it is changing the procedures and that is what we are attempting to do. 

50

Senator DEWINE. Thank you very much. Good luck. 

Chairman LEAHY. Thank you. I do appreciate the questions. I appreciate Senator DeWine’s comments on FISA and Senator Feinstein’s questions on the process. We have heard from Coleen 

Rowley that supervisors at FBI Headquarters made changes to the 

Minneapolis agent’s affidavit, she said, to set up for failure. 

The New York Times also reported another Headquarters agent 

was basically banned from the FISA court by the judge based on 

his affidavits. Senator Specter has raised questions of this. He and 

I talked during the break about perhaps sitting down with Judge 

Lambert and the FISA court to find out what is going on. I worry 

about having a secret body of case law developing in a secret court 

system and not having any Congressional oversight. I am trying to 

dig out all the facts that go before that, but the legal reasoning, 

and I am concerned about that and we certainly would invite any 

Senator who would like to be involved in that, we will go into how 

the FISA court works, what the reasoning is behind it, because 

there has not been, until recently. 

Senator Schumer has shown the patience for which he is renowned. 

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

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. I appreciate it. In 

Brooklyn, I am one of the most patient people, you should know. 

Chairman LEAHY. In Brooklyn, yes. 

[Laughter.] 

Senator SCHUMER. In any case, I want to thank you for having 

these hearings. I think they are needed, they are timely and extremely appropriate, and anybody who, I think, thinks we should 

not have hearings like this will change their mind after watching 

how it is done today and how you have conducted it. 

I also want to thank you, Mr. Mueller. This is not an easy job. 

I can see it on your face. You look a little different than you did 

when you were here first and sworn in——

Mr. MUELLER. I hope not. 

[Laughter.] 

Senator SCHUMER.—but I think all of us respect that you are 

doing your darn best here and it is not an easy circumstance. 

I would just like to make one point to you and maybe you can 

convey this to the Attorney General—I have myself—before I get 

into my questions, and that is this. We are dealing with, since 9/

11, there have been so many changes in society, but there has been 

none that are probably more important in the future than reexamining the age-old balance between security and freedom. If you read 

the Founding Fathers in the Federalist Papers, that was one of the 

things that concerned them most. If there were ever a time and 

place where the Founding Fathers wanted debate, wanted discussion, wanted a variety of input, I think it is in that area where 

freedom and security, with a push and pull between freedom and 

security, which any democratic society has to deal with. 

I have found just too often an aversion to that in the Justice Department, and I think in the FBI, as well, although not necessarily 

to you, and I know the Justice Department can control some of the 

51

things you say and do. We would have been so much better off in 

areas like military tribunals and what happened at Guantanamo 

and some of these other things if there had actually been debate, 

and I think you know that if you came to this Congress and we debated it, the result would not be doctrinaire. There are people who 

are doctrinaire on the hard right who want to just remove everything and there are just as many on the hard left who say, do not 

change a thing. But I think the consensus of this Committee is 

somewhere balanced in the middle and I think we came out with 

a good product with the PATRIOT Act as a result of that consensus. 

I would just wish to convey the message that I think it would 

work out better for the Justice Department, for the FBI, and for 

the American people if there were more debate before we came to 

a conclusion, not just, you know, at 10:00 a.m., the Attorney General and you have a press conference and say, here is what we are 

doing when it comes to these very sensitive, very important issues 

where we do have to recalibrate and readjust. I think that would 

be better for everybody. What we have found when it has not happened, again, there has been sort of back-tracking because it is always better to do that. 

I would like to talk about a few issues, ask you some questions 

on a few issues here. The first is the computers, which, as you 

know, has been something I have cared about for a while. When 

I heard what you said earlier, it seemed to me that at least before 

9/11, the FBI computer system was less sophisticated than the 

computer I bought my seventh grader for about $1,400, so let me 

get that straight again. 

In the trenches, in the Minneapolis office or somewhere else, before 9/11, if they punched in the word ‘‘aviation’’ or ‘‘flight school,’’ 

not a name because you said it was different for a name, could they 

get every EC report that mentioned ‘‘aviation’’ and ‘‘flight school’’? 

Mr. MUELLER. It is my, and I am not sufficiently expertise in our 

computer systems, it is my—if you put in ‘‘airline,’’ you may well 

be able to pick up those—well, actually, can you excuse me just a 

second? 

Senator SCHUMER. Sure. 

[The witness conferred with staff.] 

Mr. MUELLER. This gets into the technology. I do not believe it 

can be done because I do not believe there is full-text retrieval, 

number one. And secondly, there was a system in place at the time 

of blocking certain cases from searches, not necessarily from Headquarters but searches from around the country as a part and parcel 

of the security provisions, so that there are certain—for instance, 

the Phoenix EC, if the Phoenix EC was uploaded on the computer, 

there are only a limited number of people that could see it. A limited number of people would be able to do the search of it to pull 

up ‘‘flight school.’’

Senator SCHUMER. That is a different issue, but was the technology there that if you punched in certain words, that you can see 

every report that mentioned those? 

Mr. MUELLER. I do not believe that is the case, but I am not sufficiently technologically astute to be able to say that with assuredness. 

52

Senator SCHUMER. Right. 

Mr. MUELLER. The one thing I do know is that you have to put 

in the specific—if I put in ‘‘Mueller,’’ it has to be M-u-e-l-l-e-r. It 

will come up M-u-e-l-l-e-r. What we will not pull up is M-u-l-l-e-r, 

M-i-l-l-e-r, or other variations of it. 

Senator SCHUMER. That is a little different. I mean, every day, 

every one of us goes on our computer and does searches of certain 

words. 

Mr. MUELLER. We may have had——

Senator SCHUMER. It is not very difficult to do, and I guess what 

I would ask you is, how was it? I mean, I think this is important 

for——

Mr. MUELLER. I think we are way behind the curve. I have said 

it from the first day——

Senator SCHUMER. But how was it we were so far behind the 

curve that it was almost laughable? What was wrong? That is not 

something dealing with information sharing—well, maybe it is. 

Maybe it deals with turf in its most fundamental way. But it just 

makes my jaw drop to think that on 9/11 or on 9/10, the kind of 

technology that is available to most school kids, and certainly to 

every small business in this country, was not available to the FBI. 

Mr. MUELLER. I do not want to go too much in a retrospective. 

One thing I will say, one of the, I think, one of the contributing 

factors over the years is the belief the FBI can do anything, that 

we have computer specialists, we have scientists, we have all of 

that. But when it comes to certain areas where there is expertise 

outside the FBI, we need to do a better job bringing that expertise 

into the FBI to utilize the funds that are given to us by Congress 

to get a product that will——

Senator SCHUMER. I understand. I am trying to do this because 

I am trying to figure out the culture, because I think lots of the 

problems we have are just sort of simple—simple, I guess, is overstating it, but are things there should be no debate about, no ideological debate or anything else. Can you just elaborate a little. Why 

was it so hide-a-bound? Why was the agency so—that they did not 

have a computer system, given they knew they had, I do not know 

how many agents then, probably close to the same amount now, 

10,000, 11,000 agents, and they knew that no individual could coordinate all this, but they did not get a rudimentary computer system to allow it to be coordinated. 

You know, when we talk about analysis, you have talked about 

it, you are right, but the word ‘‘analysis’’ these days is analogous 

to computer because you need to separate in your individual 

searches the wheat from the chaff, and it does not take a great expert to figure that out. 

I am trying to figure out what went wrong then, because that 

will give us some of the answer to how you correct it for the future. 

Mr. MUELLER. I will tell you one anecdote. When I first came in 

and did a tour of the building, in the FBI, there is a computer room 

downstairs right behind where you get your badges and the like, 

and I walk in. It is a big room, and half the room has servers. Well, 

servers have gotten a lot smaller, so there is a lot of room over 

there. On the other side of the room, there were a number of different computer systems. There were Sun Microsystems, there 

53

were Apples, there were Compaqs, there were Dells, and I said, 

what is this? The response was, every division had a separate computer system until a year or two ago. 

Yes, that is reflective of the computerization of the Bureau, but 

many companies are the same way. I am interviewing now for CIO 

and I will talk about their experiences in going into Fortune 500 

companies and it will be the same thing, the stovepipes, the various systems, and the necessity of getting a common architecture 

and a platform for the organization. 

Senator SCHUMER. Okay. My guess is, those companies are not 

doing too well. I would not hire the CIO from one of those. 

[Laughter.] 

Mr. MUELLER. I need one of the CIOs who has taken one of those 

and brought them into the 21st century. 

Senator SCHUMER. Does every agent now and every employee 

who needs it have access to e-mail and the Internet? 

Mr. MUELLER. They have access to the internal e-mail. We have 

a classified system and, consequently, to have e-mail outside the 

FBI you need to have a separate computer. Many do, but not all. 

Senator SCHUMER. Another area I am concerned about, what is 

our progress in terms of hiring people who speak Arabic, hiring 

people who speak Urdu and Farsi? This is something that we have 

been trying to get the FBI to do for a very long time. Can we translate every needed interception in those languages into English 

quickly? 

Mr. MUELLER. In real time with regard to terrorism cases, yes, 

and that is the emphasis and the priority, to assure that we have 

anything that touches on terrorism, that we have real-time translations. Now, it may be in certain instances 24 or 36 hours for a 

particular—for some reason, but that is where we have got the emphasis. We have hired—I would have to get you exact figures, but 

well over 100 additional specialists in the last four to five months. 

Senator SCHUMER. By the way, just going back to the computer 

system, is it considerably better now, or it is just—when Senator 

Specter asked the questions, I know you are on the way to improving it. 

Mr. MUELLER. Yes. 

Senator SCHUMER. But right now, could Agent Smith in the Minneapolis office punch in the word ‘‘aviation’’ and get all the EC reports? 

Mr. MUELLER. We are laying the groundwork. We have the 

new——

Senator SCHUMER. You are not there yet? 

Mr. MUELLER. No. We have the hard drives. We have the software packages, the operating systems, we have the LANs and we 

have the WANs, which is the foundation that we had to put in. We 

do not have the data warehousing. We do not have the software applications that we need to do the kind of searching that is necessary. 

Senator SCHUMER. How long will it take until we are up to snuff? 

Mr. MUELLER. Well, when I came in, I said I wanted it done in 

a year and I have been, for a variety of reasons, been much more 

involved now in the inner workings of getting it and I cannot get 

what I would want in a year. Probably two years, but we will have 

54

varying stages of capabilities as we go through this two- to threeyear period. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator. 

Senator Sessions? 

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

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you. 

Chairman LEAHY. I thank you for your patience and your attention to this hearing. 

Senator SESSIONS. Thank you. I will follow up a little bit on Senator Schumer’s remarks, but I would want to mention that with regard to your revised guidelines, as I see them, there is nothing 

close to a violation of constitutional rights as the courts have interpreted and certainly nothing that violates statutory rights, and it 

is within your power, is it not, to alter those guidelines as you have 

done so? 

Mr. MUELLER. I believe it is within the power of the Attorney 

General, yes. 

Senator SESSIONS. I would just say it leaves it up to us. If people 

in this Senate or Congress are not happy with it, we can offer legislation that could alter those guidelines, but I do not think there 

would be much support for it. Some can complain about it, but I 

believe you are doing the right thing. You are taking some steps 

that will help your investigative power. It is not in violation of the 

Constitution or statute, and a bill to overrule what you did would 

not get ten votes. 

Let me ask this. You have been talking about the computer systems. As you have been a United States Attorney and dealt with 

a lot of Federal agencies, it strikes me that the last refuge of a bureaucratic person who has made an error is to claim the computer 

problem, and I am serious about this question. 

The Arizona memorandum that came up, as I understand it, according to the Los Angeles Times, it was sent off by a clerk to 

somebody. It did not reach the head person in the section. In the 

future, Mr. Mueller, would not you expect a memorandum concerning such a serious subject, so thoughtfully put together by an 

agent in the field, to go to that supervisor within minutes, within 

hours of being received, and be personally reviewed by that person? 

Mr. MUELLER. Let me just start by saying that——

Senator SESSIONS. Computer or no computer. 

Mr. MUELLER. Computer or no computer. A computer is part of 

the issue, but there are other issues that had to be addressed and 

that is the procedures in the section and those were changed shortly after September 11 to assure that a unit supervisor reviewed 

each and every one of these electronic communications that comes 

in before they were deemed to have been completed. 

We also put into place a circumstance where items that come in 

that relate conceivable terrorist threats or terrorist activity are included in briefing papers that are provided to me daily so that 

those tidbits of information not only come up to the Unit Chief and 

the Section Chief and the Head of the Counterterrorism Division, 

but also to me. 

55

The other way we have changed things is that there is now a 

joint CIA–FBI threat matrix so that during the night, any threats 

that come in, any pieces of information about flight persons and 

persons at flight schools will be put into the threat matrix that is 

looked at the following day by George Tenet and myself and, ultimately, the President. 

Senator SESSIONS. Well, you were in office seven days when this 

attack occurred. You were not there when the memorandums were 

received either from Minnesota or Arizona. Certainly, it is not your 

direct responsibility. You cannot be held responsible for something 

that occurred before you took office. But I guess I know you are 

loyal to your troops and the people out there in the field, and I believe in the FBI. I have tremendous respect for it. But do you not 

think that was not an acceptable system, computer or no computer, 

that somebody should have picked up on, let us say, the Arizona 

memorandum and/or the Minnesota memorandum and that a central person should have been reviewing that and should have at 

least been able to raise questions about the possibility of those two 

bits of information that could have given indication of a terrorist 

plan? 

Mr. MUELLER. The procedures in place were inadequate. 

Senator SESSIONS. I hope that you will feel free to say that. I 

know you are a good Marine and a good loyal prosecutor, but I 

think the Director should be quite direct about errors that occur 

and that procedures are being inadequate. 

Do you now, in this new plan, do you have an individual or close 

group of individuals who will be personally reviewing critical information and, for example, if the Phoenix memorandum or Special 

Agent Rowley’s memorandum came forward, would even you see 

that under the present circumstances in short order? 

Mr. MUELLER. The salient portions of that memo, I would see. I 

have a new Chief of the Counterterrorism Division, a guy named 

Pat D’Amuro, who I brought down from New York, who was head 

of the Joint Terrorism Task Force for a number of years and is an 

expert in al Qaeda who is heading it up. I have got a new deputy 

and I have new section chiefs throughout. We have changed the 

personnel, expanded the personnel, realigned the assignments, and 

are in the process of continuously doing that, particularly with hoping to get approval for the reorganization so that exactly that type 

of piece of information is not overlooked. 

The way we are doing it now is by extensive briefing all the way 

up the line. But we need to put into place the individuals that will 

make this as part of the day in, day out review. Part of it also is 

to bring in the expertise of the CIA who has a different expertise 

than our investigative agents in terms of being able to look at 

things and put pieces into a larger analytical composite so that we 

could provide a product to the decision makers but also take action 

on that product, and that is part of the reorganization that I proposed to Congress. 

Senator SESSIONS. I like the reorganization. I salute you for it. 

I believe it is going to open up the FBI. I believe it will vastly enhance your ability to spot and act on terrorist information. This is 

a quantum leap forward. There is no doubt about that. 

56

So you are telling me that you are confident now that agents in 

the field will promptly send in any reports of entities, FD–302s, 

they will come straight in and that somebody will be reading those 

with some experience and authority immediately upon receipt? 

Mr. MUELLER. Well, we are not where I want to be. Congress has 

given us a number of additional analytical slots. Hiring up for 

those slots, getting the type of qualified analytical personnel that 

you want and having them trained will take a period of time. We 

have had persons helping out——

Senator SESSIONS. But let me say this. I do not believe it takes 

that long to read the Phoenix memorandum or the Minnesota 

memorandum. Somebody can read key documents when they are 

coming in. If they are not, then you have a gap in there and we 

may not act when a pattern occurs. 

Mr. MUELLER. We have changed the procedures to make certain 

that that happens, but we have more to do in terms of expanding 

on our analytical capability and that is what I have proposed to 

Congress. 

Senator SESSIONS. You know, I remember trying a case, a pretty 

significant corruption case, and we had a wonderful FBI agent on 

the stand and the defense lawyer was attempting to discredit her, 

and had her say that all FBI agents are Special Agents, and he 

said, ‘‘So it is not so special, is it?’’ And she looked him right in 

the eye and she said, ‘‘I think it is.’’ I think being a Special Agent 

in the FBI is a great thing and I do not want to have anything I 

say misconstrued as undermining the integrity and the work ethic 

and ability and skill of our agents. 

But I have, as I think you have seen, because you more than 

anybody that has ever held this office, I suppose, have been in the 

field trying hundreds of cases and know how the FBI works. That 

does not mean we cannot make it better. 

I think Agent Rowley, her complaints were driven by a high 

opinion of the FBI, a high goal for what she would like to see occur 

and I appreciate you working on it. 

Let me ask this. With regard to the Moussaoui search warrant, 

you early on in the matter responded in defense of the decision 

that there was not sufficient probable cause. Let me ask you, had 

you at that time personally reviewed all the documents or were you 

relying on the advice of others? 

Mr. MUELLER. I was relying on what I was told in the briefing. 

I had not parsed the documents. 

Senator SESSIONS. Well, I do not think there is a person in the 

FBI that is better capable of determining whether probable cause 

exists or not than you. You tried some of the most important cases 

in the country. You know what probable cause is and I am glad you 

are there. 

But do you think those people that oftentimes say no to probable 

cause realize, and have they lost sight of the fact that they are not 

the judge, that they are not the Department of Justice, that they 

are advocates for national security and they ought to look at it in 

a positive light, and that if they believe it is important for the security of America, maybe they ought to take it to the judge and see 

what the judge says? Do they understand that sufficiently? 

57

Mr. MUELLER. I do think they do, but I do believe we need education in the FISA, not just at Headquarters but also in the field, 

as to what probable cause means, how you can determine, get the 

facts to satisfy that standard, and there is more than we can do 

to educate not only persons throughout Headquarters but also in 

the field and we are undertaking that. 

Chairman LEAHY. And I might add, we are going to do some education of the Committee, too, on the whole FISA issue. Senator 

Biden and I and others have been talking about that and we will. 

Thank you. 

Senator SESSIONS. Could I ask one yes or no question? My time 

is out. 

Chairman LEAHY. Only because you are such a nice guy. Go 

ahead. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Do you now believe that it was a correct decision or have you had 

a chance to review the documents personally? 

Mr. MUELLER. I have not parsed it and there are a number of 

facts that may bear on that decision and I have identified the sequence of facts that went into that determination. 

Senator SESSIONS. I think it was a close call. 

Chairman LEAHY. Trust me, the Director is probably going to get 

another opportunity to talk about that later on. 

Senator Durbin? 

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you, Mr. Chairman, and thank you, Director Mueller and Mr. Fine, for joining us today. 

Let me echo the comments of Senator Sessions about the feelings 

we all have about the men and women of the FBI. We have talked 

a lot about the management shortcomings, technology shortcomings, but when it comes to dedicated professionalism, there are 

no shortcomings. These are men and women who are dedicated to 

the safety of America. Many of them risk their lives every single 

day for us, and it bears repeating by all of us on this Committee 

that nothing we say will detract from that. 

Secondly, let me tell you that I continue to stand in your corner. 

You have been in the center of a maelstrom here, but I think that 

your honest, open, and candid answers and your commitment to reform have put you in the position in my mind exactly where you 

should be, leading this effort at the FBI, leading this effort to reform the FBI. 

I also want to say to the Chairman of the Committee that I 

thank him for this hearing and I think we cannot allow the fog of 

war to stop us from a frank discussion of security shortcomings in 

America. Your leadership in calling this hearing, I think, is highlighting things that we need to do to make America safer, and in 

that regard, I think we are meeting our obligation to the American 

people. 

Chairman LEAHY. Thank you. 

Senator DURBIN. Director Mueller, you have proposed an ambitious reorganization of the FBI, dramatic changes in criminal law, 

reallocation of thousands of law enforcement professionals. You 

58

have really suggested to us that we need to overhaul the FBI. 

Overhauling the engine of a car is no small task, but overhauling 

an engine of a car while it is moving may be impossible, and that 

is what I want to get to here, when we talk about how we are going 

to achieve some of the goals that you have set out. 

We are at a time where America needs the very best in defending 

our nation against terrorist threats, but we have been told that 

FBI computers cannot even access key words today. Yesterday, it 

came to light that the Department of Justice is going to implement, 

based on a 1952 law, the fingerprinting and photographing of those 

visiting the United States on visas. The range of possible numbers 

that could be affected by this, I have read from 100,000 to 35 million, somewhere in between, but it is a massive undertaking in 

terms of the collection of this data. 

I think it raises an important question as to whether or not the 

FBI can achieve this with the INS, collecting, processing, and 

transferring millions of pieces of information without establishing 

first that both of those agencies have the technical capacity to do 

that, as well as the management skills and personnel to collect it, 

evaluate it, and transfer it where it is necessary. 

Let me say that I have read Mr. Fine’s report to this Committee 

and I am going to ask him if he would comment on this. You looked 

at two specific areas where the FBI and the INS were given instructions by Congress to start merging their collection of data and 

you found in both instances, over a long period of time, serious 

shortcomings. 

The automated I–94 system, that goes back to the 1996 Act related to illegal immigration reform. It directed the INS to develop 

an automated entry and exit control system that would collect a 

record for every alien departing the United States and automatically match the departure records with the record of arrival. Mr. 

Fine, you tell us that four and five years later, there is no clear 

evidence the system is meeting its intended goals. It really suggests to us that given four or five years, they have been unable to 

come up with the most basic information Congress instructed them 

to do five or six years ago. 

And then you go on to say, in the area of fingerprints—this appears to me to be a two- or three-year undertaking—the merging 

of the INS and the FBI fingerprints, you looked at the progress 

that has been made so that those records can be merged and used 

and here is what you say. ‘‘The primary finding of our follow-up review, similar to prior reports’ conclusions, was the Department and 

its components have moved slowly toward integrating the fingerprint systems that the full integration calls for and remains years 

away,’’ your language, ‘‘years away.’’

I want to ask both of you, Director Mueller, the new idea of collecting millions of pieces of data, fingerprints, photographs, and information about people coming into the United States and making 

it of some value to protecting America, raises a serious question 

about when that might happen under the best of circumstances. If 

we are still over a year away from the most basic computer technology at the FBI and we have seen repeated shortcomings in efforts to modernize fingerprinting and collection of data between the 

INS and the FBI, we can stop here and not get into the racial 

59

profiling argument. We can ask the most basic question: Are you 

up to the job that was announced yesterday? 

Mr. MUELLER. I understand the pilot programs with regard to 

the INS and our IAFIS, our fingerprints. I do believe the work that 

we do on our fingerprints, the systems that we have in IAFIS are 

much more advanced than, say, the computer capabilities of the 

computer system at an agent’s desk. How that IAFIS or fingerprint 

system could handle this additional load, I am not certain, and that 

is something we would have to get back to you on. 

Senator DURBIN. Mr. Fine, what is your opinion? 

Mr. FINE. I believe that both the INS and the FBI have had real 

problems in moving forward with information technology and they 

have suffered from a lack of attention, a lack of dedication to moving it forward, and a lack of persistent follow-up. We have seen in 

our analysis of varied systems that they are behind schedule, that 

they often do not meet their intended purposes, and that they are 

not coming in according to the benchmarks that you would establish for those systems. So through the history of our analysis of 

both the FBI and the INS, both of them are behind the times in 

information technology. 

Senator DURBIN. So a new program that would introduce hundreds of thousands of fingerprints, photographs, and additional 

pieces of critical data to be gathered by the INS and FBI, processed 

and evaluated and transferred, seems to me to be a pipe dream, or 

at least so far in the future that we really ought to get down to 

basics before we start expanding the collection of data. 

Mr. FINE. We have not analyzed that aspect of it and that program, but they have had a difficult time assimilating and accumulating that kind of information and getting it to the right people, 

both in the INS and the FBI, at the right time, in a timely way. 

That is one of the significant problems we found in our reviews of 

both the INS and the FBI. 

Senator DURBIN. Director Mueller, the last time you testified, we 

talked briefly about the Phoenix memo, and, of course, it pointed 

out at least Agent Williams’ belief that there were suspected individual terrorist or at least suspected individuals involved in flight 

training in Phoenix, Arizona, and he brought that through a routine memo, I might add, to the attention of the Headquarters at 

the FBI. 

Had the FBI developed any other information linking suspicious 

individuals or suspected terrorists with aviation training schools 

before September 11? 

Mr. MUELLER. There are a number of items that I think have 

come up, and I cannot be exhaustive because we are turning over 

hundreds of thousands of documents to the Intelligence Committee. 

There was in 1998 an FBI pilot, I believe, indicated in a report that 

I think stayed in Oklahoma City that he had witnessed individuals 

from the Mid–East who appeared to be either using planes or obtaining flight training and that could be used for terrorist purposes. 

There was back in 1995, I guess it is, out of the Philippines the 

report about the use of airplanes in this particular way, although 

not necessarily about flight schools. 

60

Senator DURBIN. But anything more contemporaneous with September 11, 2001, where there was information collected where 

there were suspicions of people attending flight training schools or 

aviation departments at colleges and universities that raised a 

question as to whether there was a terrorist connection? 

Mr. MUELLER. The most contemporaneous would be Moussaoui, 

quite obviously, right before September 11. But with Moussaoui, 

with the Williams EC, with the Oklahoma City observation, those 

are the three that I am aware of. There may be others out there, 

but I am not aware of them. 

Senator DURBIN. Could I ask you to look into that, please, to 

verify that? I think that is an important issue that has been raised 

in some press reports that I would like to hear directly from you. 

I guess the question that leads me to is do you believe, Director 

Mueller, that based on all the information that has come to light, 

particularly over the last several weeks as we have delved into all 

these memos and all this conversation, that we were forewarned as 

a nation and that we should have taken additional steps to protect 

ourselves before the September 11 attack? 

Mr. MUELLER. There are things that we could have done better 

beforehand and I think on each occasion that I appeared before this 

Committee, I have indicated there are things that we should have 

done differently to ensure that pieces of information were followed 

up on in ways that they should have been followed up on and ways 

that we are now following up on them. 

I hesitate to speculate because I have just a piece of the puzzle, 

also. What the Intelligence Committee is doing is looking not just 

at the FBI, but at the CIA and other agencies that had pieces of 

the puzzle. So I am hesitant to speculate as to what would have 

happened if. 

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

Chairman LEAHY. Thank you. Originally, we would have broken 

at this time, but we have two Senators remaining, Senator Cantwell and Senator Biden. Gentlemen, I would ask you—this will 

take probably about another 20, 25 minutes to wrap up everything 

in one last wrap-up, one simple question at the end—do you want 

to take a break? Do you want to——

Mr. MUELLER. I would like to go right on through and wrap it 

up. 

Mr. FINE. Same here. 

Chairman LEAHY. You want that ‘‘get out of jail free’’ card, is 

that it? 

[Laughter.] 

Chairman LEAHY. I should probably use a different—I was playing Monopoly with a grandchild. I probably should use a different——

Mr. MUELLER. Yes. I would not say ‘‘get out of jail free.’’

[Laughter.] 

Chairman LEAHY. I understand. Wrong hearing. Wrong witness. 

Senator Cantwell? 

61

STATEMENT OF HON. MARIA CANTWELL, A U.S. SENATOR 

FROM THE STATE OF WASHINGTON 

Senator CANTWELL. Thank you, Mr. Chairman, and thank you, 

Director Mueller, for being here, and Mr. Fine. I certainly appreciate your attention to this hearing and the details that you have 

put forth so far and the work that both of you have done within 

the agency. The one fact that amazes me about all of this is that 

you took your position on September 4 of 2001. We should not forget that because some of the issues that we are dealing with here 

are very complex and arose long before you were confirmed as director of the FBI. 

Having said that, I hope you will indulge me in what I think is 

the basic thinking of my constituents. My State probably has more 

wired home users than any other. At least 53 percent of the public 

has Internet access. And what does not square with them is the 

fact that they can have access to the paragraph that is available 

from the Phoenix memo and they can read the Rowley memo. The 

Phoenix memo says ‘‘Phoenix believes that the FBI should accumulate a list of civil aviation, universities and colleges around the 

country,’’ that the field offices with these types of schools should 

evaluate them, and that the FBI should discuss this matter with 

other elements of the U.S. intelligence community. 

And then they read in the Rowley memo and learn that in all 

of their conversations and correspondence, FBI Headquarters personnel never disclosed to the Minneapolis agents that the Phoenix 

Division had only approximately three weeks earlier warned of al 

Qaeda operatives in flight schools. They read the memo that goes 

on to talk about how the Moussaoui information was never shared, 

either. 

So a great number of my constituents have written to me, having 

read both of these memos and information. And what it looks like 

to them is that the right hand does not know what the left hand 

is doing. And then they hear the unveiling of the new guidelines 

by the FBI in which new measures, possibly for searching U.S. citizens are unveiled. And as one Seattle paper said it, and I think 

said it very well, this looks more like eavesdropping than house 

cleaning. I think that is what really has the American public concerned. Where is the house cleaning? 

My first question is, as it relates to the individuals that were involved in not approving the Moussaoui warrant at FBI Headquarters. Are they still in those positions and are they still responsible for that kind of decision making? 

Mr. MUELLER. There are a number of people that were involved 

in various reviews of the two or three documents, or more documents when it comes to the Moussaoui operation. Some of them are 

gone. Some of them are still there. I have asked the Inspector General to review the conduct of anyone involved in the handling of 

those particular memoranda to determine whether or not there 

should be some action taken against them. 

I also brought in new leadership to the Counterterrorism Division and I have told the leadership to get the best people in here, 

and we have not only put in new leadership but we are pulling in 

Section Chiefs and Unit Chiefs from around the country to assure 

that what happened before will not happen again. 

62

Senator CANTWELL. So were those individuals removed or reassigned as a part of some disciplinary action? 

Mr. MUELLER. No, because in my belief, before disciplinary action 

is taken, the Inspector General ought to look at that conduct and 

determine whether or not disciplinary action is appropriate. 

Senator CANTWELL. So where——

Mr. MUELLER. Each of the individuals who are involved in this 

ought to have a right to express what motivated them, what was 

their thinking, what was available to them to do the job before the 

ultimate determination is made, and I have asked the IG to go forward and do that. 

Senator CANTWELL. Agent Rowley also said in her memo she was 

not looking for a witch hunt, but that she was concerned that these 

individuals were allowed to stay in their positions, and what is 

worse, in her words, occupy critical positions in the FBI’s SIOC 

command post center after September 11. Is that the case? 

Mr. MUELLER. I am not certain as to the particular individual or 

individuals she is referring to. Some of the individuals who were 

in the Terrorism Division, yes. I mean, we had 6,000 agents after 

September 14 working on the investigation. Most in Headquarters 

were working in SIOC. So it may well be that those persons were 

working in SIOC. 

Senator CANTWELL. Was there a memo or an e-mail, either internal in the FBI or, maybe to the Attorney General, maybe to the 

White House, that talked about and analyzed this information 

management and analysis failure? Was there any memo like that 

where you discussed internally the shortcomings of how information was available but was not analyzed? 

Mr. MUELLER. You mean with regard to what happened before 

September 11, or are you talking about generally? 

Senator CANTWELL. Post–September 11. To my constituents, it 

seems like the information was all there. Why was it not put together? Has there been a memo about the shortcomings? 

Mr. MUELLER. Well, in terms of there have been discussions, tons 

of memoranda as to our technological shortcomings. In terms of 

specifically addressing each of the pieces of information that have 

arisen over the months, not that I am aware of, not a particular 

memorandum. The Inspector General did a brief memorandum 

with regard to what was happening with the Phoenix EC, but beyond that, I do not believe that there has been a retrospective 

done. Our understanding was that the retrospective was going to 

be done not just with the FBI, but with looking at the intelligence 

community and the FBI as a whole by the Intelligence Committee, 

and that is what we had anticipated would happen. 

Senator CANTWELL. So you do not know of any memos that were 

written to the Attorney General or to the White House discussing 

this information analysis failure? 

Mr. MUELLER. No, I am not aware of such a memo. 

Senator CANTWELL. Do you not think that putting together a document like that would have been a key component to understanding how to move forward on the reorganization? 

Mr. MUELLER. Well, there are certain——

Senator CANTWELL. If you will allow me, what you are going to 

do is exacerbate the problem. We are going to have over more inforVerDate 0ct 09 2002 15:07 Oct 06, 2003 Jkt 089324 PO 00000 Frm 00066 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\86517.TXT SJUD4 PsN: CMORC
63

mation collected under the new guidelines. Our fundamental problem before Sept. 11 was that at the end of the funnel of information 

we were not processing it correctly, and we are now only going to 

widen that funnel and put more information into it. So if we have 

not analyzed the shortcomings prior to Sept. 11 or listed the key 

points besides technology——

Mr. MUELLER. Well, I think I know enough about what we did 

not do well before September 11 to make a judgment as to what 

we need to change to do it better, which is the basis for what I 

have suggested that I want Congress to approve. My understanding 

is that there will be a lengthy—there will not be a memo, but you 

will have, in the Intelligence Committee, each of the witnesses 

come in and there will be an extensive exegesis of what should 

have been done, should have happened before September 11. 

For my purposes in turning around the agency, I think I know 

enough about what was lacking to be able to make decisions on 

where we should go. 

Senator CANTWELL. But you may not know enough about the culture and why the culture in the intelligence community is not responding. I guess my primary concern is, if I could say it most specifically, on this chart, of the reorganization effort you are now saying one of the key elements of the reorganization is creation of an 

Office of Intelligence——

Mr. MUELLER. Yes. 

Senator CANTWELL. That is the wrong word. It should be an Office of Information Management and Analysis, because that is really where the failure was. You had all the information. It was not 

processed. It was not analyzed. It was not disseminated. It was not 

shared across agency line in a way that was helpful. 

So instead of showing the American public or saying to the 

American public, here is our problem: We are not sure the right 

hand knows what the left hand is doing. Instead you are saying we 

need to do more eavesdropping. We have to convince people that 

we are going to put new processes in place to prevent more terrorist attacks, and so the fact that we have not had that thorough 

analysis about the culture and what you need to change there, is 

of concern. 

I see my time is up, but I did have one more question, if I could. 

I do not know if we are going to have a second round, Mr. Chairman. I know we want to get to the next witness. 

Chairman LEAHY. All right. 

Senator CANTWELL. This question is about the new FBI guidelines. Several of my colleagues have also raised questions about 

them. I have read the Attorney General’s comments about how he 

believes that we need to make sure that, the agency fights for and 

respects the civil liberties of individuals. 

If the agency is expressing this level of concern and interest in 

making sure that we have the protection of the civil liberties of individuals, why not look at something—like what the private sector 

does on the issue of privacy. In the private sector if they want to 

change their culture, and they want to make sure that privacy is 

protected, even though they have rules in place, they create a privacy officer. Why not create a Director of Privacy and Civil Liberties Accountability within the FBI, to the person that makes sure 

64

that the culture and the organization is adhering to the policies 

that protect those individual civil liberties. Not from a response 

from an IG saying, have we broken the law, but within the interna 

cultural process? 

Mr. MUELLER. Well, I will tell you that I try to reach out to other 

opinions articulated, whether it be the ACLU or the privacy groups 

that have particular concerns. I did in my previous positions. I will 

continue to do it in the future so that I get the input before we 

make—as we go along making decisions, and I would be happy to 

consider, let me just put it that way, what you are suggesting. 

Senator CANTWELL. I have read I do not know how many editorials where people have said, this is the group. This body, this 

organization is going to have the oversight on the FBI and to make 

sure that these abuses do not occur—I am sure we will have more 

hearings on this subject. 

Chairman LEAHY. We are. 

Senator CANTWELL. I am sure we will have listings and accountabilities of how many warrants were issued and a variety of things. 

But if the FBI is serious about those new guidelines and serious 

about protecting civil liberties, then having someone in the agency 

whose main job is to help that culture understand those civil liberties seems to me to be a wise investment. 

Chairman LEAHY. Thank you. Thank you, Senator Cantwell. 

We will go to Senator Edwards and Senator Biden. Then we are 

going to have a vote actually occur just about that time and we will 

finish this panel. I would note that the record will be kept open for 

those that have questions and the next panel would then begin at 

a quarter of 3:00. Senator Edwards? 

STATEMENT OF HON. JOHN EDWARDS, A U.S. SENATOR FROM 

THE STATE OF NORTH CAROLINA 

Senator EDWARDS. Thank you very much, Mr. Chairman. Good 

afternoon, Mr. Director. 

When the FBI initially rejected the FISA application for Minneapolis, my understanding is it is because the General Counsel at 

the FBI believed there was not sufficient legal basis to pursue it 

at that time. Is that basically correct? 

Mr. MUELLER. I have not—there is an ongoing investigation into 

who said what, when, during that. At one point in time, I was 

briefed to believe that there was the individual, and I am not certain who the individual was, I am not certain it was the General 

Counsel, but a lawyer in that shop who believed that there was insufficient probable cause. 

Senator EDWARDS. I did not mean to get hung up on who the 

particular person was, but a lawyer within the General Counsel’s 

Office? 

Mr. MUELLER. I believe that is the case. 

Senator EDWARDS. Okay. Did that office of lawyers have available to them at that time the Phoenix memo? 

Mr. MUELLER. I do not believe so. 

Senator EDWARDS. In your opinion, had they had the Phoenix 

memo available to them at that time, from your own experience 

and your own training as a lawyer, do you believe the FISA application would have been approved? 

65

Mr. MUELLER. I am hesitant to render an opinion because I have 

not parsed it. I have not sat down and looked at the facts. I have 

not looked at the evolution of each of the iterations of the document 

and I am hesitant to do that without having done it myself. 

Senator EDWARDS. Do you know generally, though, what information was available to the lawyers within the office at that time? 

Mr. MUELLER. I know some of it generally, but not with specificity. For instance, so much would depend on the information that 

perhaps came from overseas that might be specific in a particular 

way or fit in with another fact that could give probable cause. I 

have not gone through and done what I would do as a prosecutor 

to determine whether or not there is probable cause or not in the 

document. 

Senator EDWARDS. Do you know what the lawyers within the 

General Counsel’s Office believe the impact on their opinion would 

have been had they had the Phoenix memo? 

Mr. MUELLER. I do not. I have heard at some point in time that 

one lawyer expressed a view that if he or she had had the Phoenix 

memo, it would have made a difference. 

Senator EDWARDS. And that was a lawyer within the General 

Counsel’s Office, as you understand it? 

Mr. MUELLER. I believe that is the case. I believe that is the 

case. 

Senator EDWARDS. If a FISA had been gotten before September 

11, and I am sure you have seen there are press accounts today 

about—I am not asking you to confirm this, but there are press accounts today about connections between Moussaoui and three of 

the terrorists, do you think that FISA and the information that 

would have been gotten from it could have disrupted what happened on September 11, and then—please notice the word I am 

using. I am not saying prevent, I am asking disrupted. 

Mr. MUELLER. Again, I have done some speculating in the past. 

I prefer not to speculate as to what might have happened. I am not 

familiar with all the intricacies of what was on the computer, what 

other pieces of information might have been found in his personal 

effects, and it is not only in Minneapolis but it is also apparently 

in Oklahoma City, and I have not done the analysis to determine 

whether or not if you put them all together there are steps that 

could have been taken that would have enabled us to disrupt that 

which happened on September 11. 

Senator EDWARDS. Based upon the information that you do have, 

do you believe that information could have disrupted the operation? 

Mr. MUELLER. I do not believe it is likely that it would have. 

Senator EDWARDS. And there is some of the information that you 

have not yet looked at, I gather——

Mr. MUELLER. That is true, and the other point of it is there may 

be information in other agencies. 

Senator EDWARDS. Sure. 

Mr. MUELLER. In other words, I do think it is important to look 

back and see how we interfaced with the CIA, what information 

was made available and when it was made available in order to 

reach the conclusions that you are asking us to reach, and my understanding is that is the exercise that the Intelligence Committee 

is going through. 

66

Senator EDWARDS. Last fall, toward the end of last year, actually, 

I asked for a briefing on the Moussaoui investigation, the 

Moussaoui situation, and there was a briefing that took place in 

January with Mr. Frasca, David Frasca, and Spike Bowman, who 

are, as you know, two senior FBI officials. Based upon that briefing, I actually felt reassured about the vigor with which the 

Moussaoui investigation had been conducted. 

There are some things that have come to light since that time 

that I was not told about, we were not told about, at the time, and 

I just want to ask you about three of those, if I can. 

First is that neither Mr. Frasca or Mr. Bowman mentioned the 

existence of the Phoenix memo. Second, they did not mention any 

direct or indirect links between Moussaoui and three of the September 11 hijackers. And third, they did not mention to me, or to 

us, because the briefing actually took place through staff, they did 

not mention that the Minneapolis office had some serious concerns 

about the handling of the Moussaoui matter by FBI Headquarters 

here in Washington. Did you follow those three things? 

Mr. MUELLER. I believe so. 

Senator EDWARDS. Okay. At the time of the briefing, which was 

on January 15, were the briefers, Mr. Frasca and Mr. Bowman, 

aware of those three things? 

Mr. MUELLER. I am not certain to what extent they were aware 

of the Phoenix EC. I do not believe that they—I am not certain 

what you are referring to when you talk about the links of 

Moussaoui to three of the hijackers myself, so I rather doubt that 

they were aware of that at that time. And I believe that they may 

well have been aware about the Minnesota, the Minneapolis concerns, but I do not know that for sure. 

Senator EDWARDS. Do you know whether the Phoenix memo, in 

fact, was addressed to Mr. Frasca? 

Mr. MUELLER. I believe it was. 

Senator EDWARDS. Okay. 

Mr. MUELLER. Let me, if I could, just check for a moment to 

make certain that I am right on that. 

Senator EDWARDS. Sure. I think you are right. 

[The witness conferred with staff.] 

Mr. MUELLER. Yes, it was. 

Senator EDWARDS. Okay. So Mr. Frasca got the Phoenix memo. 

He was in the briefing. You indicated that you believe they knew 

about the concerns. 

Mr. MUELLER. It may well have been addressed to Mr. Frasca. 

I am not certain that he had ever reviewed it. 

Senator EDWARDS. Okay. Let me ask you a follow-up question. 

Mr. MUELLER. Mr. Fine can, perhaps. He did the investigation. 

Senator EDWARDS. If he knows the answer, go ahead. 

Mr. FINE. I believe the answer is that while it was addressed to 

him, he says that he did not receive it at the time, but in the fall 

of last year, he was aware of it, so that was before the briefing. 

Senator EDWARDS. Which would mean that by the time of this 

briefing in January, he would have been aware of the Phoenix 

memo, would have been aware, Mr. Director, based upon your testimony, aware of the Minneapolis Field Office’s concerns. And the 

third area I asked about, or——

67

Mr. MUELLER. Well, I would presume, but I cannot speak for him 

on that. 

Senator EDWARDS. Did you know it at that time, in January? 

Mr. MUELLER. About what? 

Senator EDWARDS. About the Minneapolis office concerns? 

Mr. MUELLER. I knew there was an issue with regard to probable 

cause to show that Mr. Moussaoui was an agent of a foreign power. 

I knew that there was that issue. How that played out in terms of 

the—I am not certain when I learned about the discussions back 

and forth. I knew at least by January that there was that issue. 

Senator EDWARDS. Let me ask you this. Assuming for purposes 

of this question, since some of this you do not know about personally, and in fairness to you, I am asking you about other people, 

if some or all of that information was available to Mr. Frasca and 

Mr. Bowman and they were here for the purpose of briefing us 

about the Moussaoui case, the Moussaoui investigation, what had 

been done, what had not been done, do you think it was appropriate for them not to tell us about those things? 

Mr. MUELLER. I always think it is appropriate for FBI briefers 

to be open and candid whenever they come up to the Hill and brief. 

I do not know whether they at that point tied in. The question has 

come up, if you had had the Oklahoma, or the Phoenix EC in hand, 

would that have changed the view as to whether or not you would 

have gotten a FISA warrant. I am not certain they had that in the 

back of their mind when they were doing the briefing. 

But absolutely, I believe—I believe when they came up that they 

tried to be honest and straightforward. I do not think they were 

hiding anything at all, and I expect FBI agents when they come to 

brief you or other Senators or others on the Hill to be absolutely 

straightforward and honest. 

Senator EDWARDS. Do you——

Mr. MUELLER. I have no reason to believe that they were not trying to do it on that occasion. 

Senator EDWARDS. Do you know why they did not tell us about 

any of those things? 

Mr. MUELLER. I do not know. 

Senator EDWARDS. Let me do one other thing very quickly, because I know my time is about up and Senator Biden has been 

kind enough to let me go, and I appreciate that very much, Senator. 

Quickly, about the new guidelines, I think the rationale for it 

makes sense to me, that if people can go to religious services, regular folks can go to a religious service, FBI agents ought to be able 

to do the same thing. That makes some sense. On the other hand, 

of course, your agents have some powers that regular folks do not 

have and I think our concern is to make sure that there are safeguards in place to make sure that there are no abuses that occur. 

I actually have no doubt about your personal commitment to 

that. When the Attorney General was here, though, six months 

ago, he said, and I am quoting him now, ‘‘To those who scare peaceloving people with phantoms of lost liberty, my message is this. 

Your tactics only aid terrorists.’’

My concern is to make sure that these guidelines, which I think 

on their face make a great deal of sense, actually, that they are not 

68

abused, that we do not have individual agents out around the country conducting their own ad hoc personal vendettas against people 

for who knows what reason. And I do think that we strongly support what you all are doing to make sure that our people are protected. But at the same time, as you stated earlier, we believe 

those liberties need to be protected at the same time. 

Can you tell me whether, from your perspective, you draw a line 

between political discussion that we may, you and I both may 

strongly disagree with, and what people would characterize as terrorist activity or terrorist support activity? 

Mr. MUELLER. I think I can use examples of going over the edge, 

and that is if there is discussion about harming other individuals, 

killing people, undertaking some form of terrorist attacks, that 

clearly would fall in the range of what it states here, for the purpose of detecting or preventing terrorist activities. We can disagree 

politically often, and that certainly would not fall in that category, 

and the category is fairly narrow with regard to going to public 

places for the purpose of detecting and preventing terrorist activities. 

Senator EDWARDS. I will just mention this in closing. We have 

had some discussion with you and with your staff about making 

some of the information, big-picture information about the use of 

FISAs, trends, the extent to which they are being used, available 

to the American people without in any way interfering with the investigations and the fight against terrorism that you all are engaged in. I hope we can continue that because I think it is an important issue. I think you would agree with me, actually, that it 

is a good thing for the American people to have whatever information we can make available to them without inhibiting what it is 

you are trying to do, so we will continue to work on that with you. 

Thank you, Mr. Director. 

Mr. MUELLER. Thank you, sir. 

Senator EDWARDS. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Biden, who gets the award as the second most patient 

person at this hearing. 

STATEMENT OF HON. JOSEPH R. BIDEN, JR, A U.S. SENATOR 

FROM THE STATE OF DELAWARE 

Senator BIDEN. Thank you, Mr. Chairman. One of the good 

things about not being Chairman of this Committee anymore, I do 

not have to turn the lights off like you do. 

[Laughter.] 

Senator BIDEN. Your patience and your physical constitutions are 

admirable and I thank you. You may be pleased to know I am 

going to not focus so much on the memos. I will come back on that. 

But one of the things that does concern me here is you are only 

a piece of the puzzle and we are not—we talk about connecting the 

dots. I am not sure this government, us included, are connecting 

the dots on law enforcement here. Let me be more precise with you. 

You are necessarily reorganizing the FBI. What you move, the 

pieces you move, affect other pieces. DEA is significantly affected. 

The COPS program, which this administration is eliminating, is 

deeply affected. The Homeland Defense Office, which you are about 

69

to eliminate, I guess—I do not know what the hell we are doing—

is about to be changed. 

Now, in fairness to the President, in fairness to the President, 

this is all new. I wish we would not all—I think this is a place and 

a time where a good dose of humility is in order for Senators, for 

Presidents, for Directors of the FBI, for everybody, because understand, everybody should understand, you move one piece, it is affecting every other piece in this puzzle, every other piece in this 

puzzle. And so even if you get it 100 percent right, if you do the 

perfect job, you may inadvertently by what you do impact negatively on what are we all about. We are about the public safety of 

individuals. 

I have been on this Committee for 30 years. I used to be the 

Chairman of this Committee. I have been the head of the Crime 

Subcommittee and the Drug Subcommittee and the oversight of the 

FBI for over 20 years. There have been a lot of changes that have 

taken place. The bottom line is, whether or not my mother gets 

killed by a terrorist or my mother gets killed by a drug lord or my 

mother gets killed by a junkie or my mother gets killed by a bank 

robber in the parking lot of the supermarket, it does not matter. 

She is dead. She is dead. 

The single biggest problem we have facing America every single 

day is the drug problem. This causes 68 percent of all the violent 

crime in America, relates directly to drugs. More people are killed 

in drug-related occurrences than have occurred in all of the terrorist acts combined, not even close. Now, that does not mean we 

should not focus on terrorism. What I am trying to get a handle 

on here is whether we are doing this on the fly or we are doing 

this really intelligently, so I want to ask you a few questions. 

Was the FBI consulted on what the President is going to announce tonight? Were you consulted? The President says thus far, 

there is a—what we are talking about here is there is going to be 

a new Homeland Defense Office, not the old one, a new one. We 

are doing this again. Were you consulted on the details of this new 

office? Will the FBI gain or lose jurisdiction as a result of this new 

office? 

Mr. MUELLER. Respectfully, Senator, I do not believe it appropriate for me to disclose discussions I might have had with the 

President. 

Senator BIDEN. I think that is malarkey. That is not legitimate. 

I am not asking you what he said. I am asking you, were you consulted? 

Mr. MUELLER. Senator, I believe that I should not be forthcoming 

with regard to consultations with the President. I believe the President is entitled to the advice from a number of people and I do not 

believe that it would be appropriate for me to get into it. 

Senator BIDEN. With all due respect, fortunately, I am not the 

Chairman of this Committee because I would not accept that answer. You are in this Committee. I am not asking you—there is no 

executive privilege here. I am asking you whether you were consulted. That is all I am asking you. If you cannot tell us if you were 

consulted before the President of the United States is about to announce a total reorganization of the entire homeland defense effort, 

you cannot tell us whether or not your jurisdiction is going to be 

70

changed, you cannot tell us whether or not there will be a synthesis of intelligence from the White House sources, including all 

of these agencies, how are we going to——

Mr. MUELLER. I think the President is entitled to make whatever 

announcement the President is going to make tonight and I would 

be happy to come back tomorrow after the President has made his 

announcement and discuss it. But I do not believe that it is appropriate for me to, because of the coincidence of this hearing today, 

to get into discussions that the President may have had with regard to whatever he is going to announce tonight. 

Senator BIDEN. I am not even asking you. Has he spoken to you 

about this? 

Mr. MUELLER. Again, Senator——

Senator BIDEN. I think this is ridiculous. That is all right. I will 

move off this. 

Chairman LEAHY. And there will be order in the Committee. 

Senator BIDEN. I will move off this. This is one of the reasons 

why there is this pall that sort of hangs over the office and this 

whole question about what we do about homeland defense. You 

cannot sit here and say whether or not you have been consulted 

about a reorganization, I find astounding, but let me move on to 

another issue, the reorganization of the FBI. 

How many agents are currently assigned—by the way, you all 

stayed, and you are right. As the author of the Violent Crime Control Act to put 100,000 cops on the street, and I wrote that myself, 

I want you to understand that I congratulate the FBI on their 

work. In your budget submission to Congress, you noted that the 

FBI’s Violent Crime and Major Offenders Program is partially responsible for the fact that the crime rate has declined an average 

of seven percent per year from the beginning toward the end of the 

1990s. 

Now, we have some things that are happening out there. There 

is a demographic shift. Those folks, 37 million of them in the crimecommitting years, are about to get into the system. We have a new 

demographic bulge. The only thing you know about crime and I 

know about crime, and I have been doing it as long as you have, 

is that when you get to be 35 or 40, you commit fewer violent 

crimes because you cannot jump the chain-link fence when the cop 

is chasing you, and the only other—for real. We do not know a 

whole lot more about these things. 

And we also know that the crime-committing years are those 

kids who think they are invincible and not at all vulnerable between the ages of 12 and 18. There is a direct correlation between 

how many of them are out there and the crime that exists, violent 

crime that exists. Now, we are about to get a bulge in violent crime 

based on past track record because we have this new cadre of 

young people, the baby boomlet that is out there. We also have the 

emergence of new threats and we have all the other things we 

know about. 

Now, totally, can you tell me how many FBI agents are currently 

assigned to your Violent Crime Section? 

Mr. MUELLER. I would have to get you the figures. I do not have 

them off the top of my head. 

Senator BIDEN. Do you know, Mr. Fine? 

71

Mr. FINE. No, I do not, Senator. 

Senator BIDEN. I can tell you. There are approximately 1,800 of 

them. Now, do you know what percentage, anyway, are going to be 

shifted out of violent crime? 

Mr. MUELLER. I believe that we are shifting approximately 59 

agents out of violent crime. 

Senator BIDEN. How will this——

Mr. MUELLER. Not approximately. I think it is 59 agents in the 

proposal. 

Senator BIDEN. It is. How will this shift be felt in your field offices? Do you have any sense of what that means in terms of man 

hours used that now will not be available to deal with violent 

crime? 

Mr. MUELLER. Yes. The process we went through to determine 

whether or not, or what programs will be affected by the shift of 

resources to counterterrorism was to go to the agents in the field, 

the Special Agents-in–Charge, and say, okay, where can you pull 

people back from task forces? And my belief is those 59 bodies that 

will come off of violent crime will be where we have 12 bodies, or 

not bodies, where we have 12 individuals, Special Agents working 

on a task force addressing violent crime, we will now have nine or 

ten, and that will be across the country, so I think it will be a minimum impact in particular divisions. But I have also told the SACs 

that if there is a particular crisis or a particular threat in a city, 

then they should use their discretion to take others off of other programs to address that violent crime problem. 

Senator BIDEN. Keep in mind, I am not being critical of your decision because you are the only guy that can do the terrorism side 

of this. You have got to do this. I am trying to make sure we understand what is going to be left out there. 

Can you tell me what specific functions—have you categorically 

made judgments about local functions that have overlapped? For 

example, FBI agents have handled interstate car theft. FBI agents 

have handled bank robberies. FBI have handled things that are 

local concurrent jurisdiction, but we have looked to the FBI to do 

them. Have you made any categorical judgments about things you 

are not going to be in on anymore because you have to shift your 

resources to deal with terrorism? 

Mr. MUELLER. I have made judgments. I do not know whether 

you would call them categorical judgments, but——

Senator BIDEN. Well, I mean categories of——

Mr. MUELLER. Categories, yes. 

Senator BIDEN. I am sorry. 

Mr. MUELLER. In bank robberies, I think we ought to stay in 

multi-county bank robberies. I have met with IACP, for instance, 

and they believe that we ought to stay there because we provide 

a service that they cannot replicate or we would not do one-note 

bank robberies in the future. They can handle those. Armed bank 

robberies, we probably will stay in those, when it comes to narcotics. 

The areas that I would like to withdraw from are those where 

we overlap with DEA, particularly in the cartel cases, but not do 

it abruptly. When we have agents that are involved, intimately involved in investigation of one of the cartels, we ought to withdraw 

72

slowly from that. We ought to probably no longer be doing cases 

such as marijuana cases, stand-alone methamphetamine cases, the 

Ecstacy cases where the State and locals can do those cases. But 

by the same token, we ought to be flexible in a particular area 

where they need our resources, where DEA is not there, be flexible 

to address the crime on the local level. 

Senator BIDEN. I appreciate that. I know my time is up, but 

there is one area maybe I will submit in writing, but 400 FBI 

agents are coming off of drug cases into counterterrorism. Again, 

I do not think you have any choice but to do that. Did you discuss 

that, since it has happened already? Did you discuss that with the 

Director of the DEA? 

Mr. MUELLER. Well, it has not happened because the proposal——

Senator BIDEN. Let me put it this way, you are formally proposing it. 

Mr. MUELLER. Yes. I did discuss it——

Senator BIDEN. Did you discuss that with DEA? 

Mr. MUELLER. I have discussed it, yes. 

Senator BIDEN. And what was the response of the DEA, unless 

that is executive privilege, too? Are they telling you that they are 

going to need more money? 

Mr. MUELLER. No, sir. 

Senator BIDEN. Do you think they need more agents? I mean, 

what do you think is going to happen? 

Mr. MUELLER. What I discussed with Mr. Hutchinson, was the 

process whereby we would assure that nothing falls through the 

cracks as we reassign these individuals. Now, my understanding is 

that he believes in the short term he can undertake that, but I also 

believe that he will be looking for additional resources down the 

road. 

Senator BIDEN. Just so you know, you have 400 agents, roughly 

$100 million. You have been aiding the DEA. You have been doing 

a great job. You are going to be gone from that. They are going to 

end up $100 million short in terms of resources. They are the resources you are contributing now to the drug war, about $100 million. 

I hope that as we put this all together, and I will be back to this 

a lot, Mr. Chairman, and it is not the Director’s responsibility, but 

there is more than one piece to this puzzle. We will not have served 

our communities well if we have focused more on anti-terrorism, 

reduced the total number of cops that are on the street, impacted 

by a $100 million reduction in the anti-drug effort, moved in a way 

where we find that we are going to have additional responsibilities 

taken from you or added to you through this new Homeland Defense Office. 

You cannot do the whole job with the same amount of money and 

the same number of people. You cannot re-slice the pie, I would respectfully suggest. You need a much bigger pie, a much bigger pie, 

and I am here to tell you you will get my support to make the pie 

bigger for the FBI and I hope someone in the administration is listening, that there is more than one piece of this pie. 

I would conclude by saying, Mr. Chairman, that when you were 

out, the Senator from Arizona talked about how he had held all 

73

these hearings and so on, which he did in the Terrorism Subcommittee, and we did not pass any of that stuff, and he said 

that——

Chairman LEAHY. Actually, we did pass it. It went over the 

House of Representatives——

Senator BIDEN. I agree. Well, that is what I was about to say——

Chairman LEAHY.—and the public analysis——

Senator BIDEN. And then civil libertarians were opposed to it. 

Right after 1994, and you can ask the Attorney General this because I got a call when he introduced the PATRIOT Act, he said, 

‘‘Joe, I am introducing the Act basically as you wrote it in 1994.’’ 

It was defeated then not by any liberal. It was defeated then by 

the folks who worried that we would have the Minuteman would 

get in trouble, by the Mr. Barrs of the world who were worried 

about the right wing, not anything else. That has nothing to do 

with you all, but just to set the record straight. 

Almost the same thing that got passed, the PATRIOT Act, was 

introduced by me in 1994 and it was the right wing that defeated 

it. You guys tried to help get it passed, including the wire tape 

changes and the rest, so——

Chairman LEAHY. Good, because we have a vote on. I would note 

that we have corrected a number of Senator Kyl’s earlier statements, but the point is, we did pass a piece of legislation out of 

here which then passed it out of not only this Committee but the 

Senate and it died in the Republican-controlled House, I mean, for 

those who think there is something critical. 

Director, I just want to correct one thing. You said it was a coincidence that the announcements were on the date of your discussion here, your hearing here, the announcement the President is 

going to make. You said it is a coincidence it happens to be today. 

The press is already reporting from the White House that it was 

purposely done today. I am not sure why. I do not understand 

these things. 

I would hope not done to distract from this hearing because this 

hearing, I think, has been an extremely good one. I think the questions asked by both Republicans and Democratic Senators have 

been very good. I think you and Mr. Fine have given very good answers. I know you are not going to answer—I happen to disagree 

with you. I happen to agree with Senator Biden on the executive 

privilege. But just so you know what the questions are that you are 

going to be asked after the President’s announcement. 

In a way, I feel a little bit sorry for Governor Ridge, who I think 

is a great guy. I have the highest regard for him, like you, a former 

Marine. 

Mr. MUELLER. I actually think he was in the Army, but I may 

be wrong. 

Chairman LEAHY. Whoops. I have higher regard for the former 

Marines, and you know the reason why, having been the father of 

a former Marine. 

Mr. MUELLER. I am standing defending Tom Ridge. 

Chairman LEAHY. But I do have very high regard for Governor 

Ridge. I served here when he was in the House. I feel somewhat 

sorry for him, though, because he is put in an impossible position 

where he has no line authority, no budget, no confirmed status, all 

74

of the things that many of us have said would be a problem. We 

have been told for eight months that that is no problem. Now, apparently, the White House has realized that a lot of people up here 

in both parties told them it is. 

I am going to want to know whether the agency will be operational, will be able to conduct or direct an investigation, will be 

able to collect information in this country. Will your foreign terrorism tracking task force be transferred to this new agency? Will 

all the investigations on terrorism be reported to this new agency 

or will it be along the lines of what you have talked about? What 

about all the information you collect in this country on terrorism? 

Will all that be given to the new Homeland Security Office? 

You said, Mr. Director, that you would be willing to come up here 

and talk to us about this. You can be guaranteed you will be given 

that invite because there are only so many times one can reinvent 

the wheel on this. As you have heard some strong support for some 

of your reorganization plan, I do not want every time somebody 

raises questions of past mistakes that the White House is going to 

announce some kind of a new reorganization so we can just talk 

about that. 

What I want to do is fight terrorism. I do not want to be moving 

organizational charts around. I know you want to fight terrorism. 

But those are the things that we have to do. We have to look at 

real issues. Right now, the Radical Fundamentalist Union to which 

the Phoenix EC was staffed 100 percent by agents who have been 

at FBI Headquarters for under a year. I mean, these are the kinds 

of things we should be looking at. 

Senator BIDEN. Mr. Chairman? 

Chairman LEAHY. And so I appreciate it. I will be anxious to 

turn on my computer tomorrow and read the transcript of whatever 

is announced tonight, but just so you understand, there are still 

going to be a lot of questions. All we want to know is, who is doing 

the job? Who is doing the job? Who is making sure that we do not 

have another major screw-up like we saw with the memos prior to 

September 11? We just want to protect Americans against terrorism. I do not care who gets the credit for it. I just want Americans to be protected. 

Senator BIDEN. Mr. Chairman, may I just have 30 seconds? I realize I was confrontational with you because you surprised the hell 

out of me. You have come and suggested a whole new reorganization to us and the President is going to announce a reorganization 

tonight and you cannot tell us whether or not the reorganization 

you are asking us to consider has been vetted and has been discussed with and coordinated with the other one. 

That is the reason for my frustration. I just assumed you were 

going to answer my question. It is nothing about you, nothing 

about you, but I hope to the Lord that after you are submitting to 

us a reorganization and the President announces today he is submitting this most significant reorganization, I think they said, in 

50 years or 100 or something, that you all had talked. 

Chairman LEAHY. And we will stand in recess until 3:15. Thank 

you. 

[Recess.] 

AFTERNOON SESSION [3:19 p.m.] 

75

Chairman LEAHY. I am just going to need a little bit of cooperation so I can see. 

I do want to welcome Special Agent Coleen M. Rowley of the 

FBI. She has been an FBI Agent for 21 years. She is currently the 

Chief Division Counsel for the Minneapolis Field Office of the FBI. 

She came to the attention of this Committee when she wrote a letter to Director Mueller that was given to members of Congress. 

And her letter refers to a number of issues this Committee has 

heard from other FBI Agents in the past. And Senator Hatch and 

I felt that by the nature of the hearing we are having today, it 

would be good if she testified. 

Did you want to say something, Orrin, before it starts? 

Senator HATCH. No, I am fine. I am just looking forward to your 

testimony. 

Senator GRASSLEY. Mr. Chairman, could I say something? 

Chairman LEAHY. Yes. The Senator from Iowa, of course. 

Senator GRASSLEY. Well, I thank you, Mr. Chairman, because 

Special Agent Rowley is a native of my home State of Iowa and she 

is also a native of my wife’s hometown of New Hampton, Iowa, but 

more importantly, Agent Rowley is a patriotic American who had 

the courage to put truth first and raise critical but important questions about how the FBI handled a terrorist case before the attacks 

and about the FBI’s cultural problems. 

Agent Rowley, your testimony today is a great service to this 

Committee, the entire Congress, the FBI, and the American people 

and I thank you for coming. We should be honored to hear your 

testimony today. People like you who come forth to, as I put it, to 

commit the truth, a very terrible sin among some Federal employees, but you come forth with important information about the FBI. 

There has been heroes like Fred Whitehurst before you, who exposed the FBI Crime Lab scandal, and we had four agents last 

summer who revealed disparities in discipline and a pattern of retaliation against those who investigated misconduct inside the FBI. 

Agent Rowley has thrown the spotlight on specific and general 

problems happening at the FBI before the terrorist attacks, and 

she has important insights with her perspective from the field 

about what the FBI can do to change. The FBI must improve so 

it can prevent future terrorist attacks, and her testimony, I believe, 

it very important to help this happen. 

Ms. Rowley, I believe, is a dedicated public servant who tells it 

like it is. She wanted to be an FBI Agent since fifth grade, and she 

has had a distinguished 20-year career at the FBI. She worked in 

a variety of offices, including New York where she investigated 

Mafia after learning Italian and worked with people like Rudy 

Guiliani, Louis Freeh and Michael Chertoff. She worked in the 

Minneapolis Division now since 1990 in a number of areas including as the ethics officer. 

Agent Rowley, I thank you again for agreeing to testify today so 

that we can hear your constructive criticism of the FBI to help it 

reform and to help it improve. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Well, Ms. Rowley, both Senator Wellstone, the senior Senator 

from your State and Senator Grassley, who is from your State of 

76

birth, have said very good things about you, and they both have 

gone out of their way to talk to members of the Committee. With 

all that, now we would like to hear from you. 

I should mention a roll call vote has started. Why do you not 

being your statement? If we have to stop at some point, I will. It 

will not be because of something you said. It is only because we 

have to vote in person. Go ahead. 

STATEMENT OF SPECIAL AGENT COLEEN M. ROWLEY, CHIEF 

DIVISION COUNSEL, FEDERAL BUREAU OF INVESTIGATION, 

UNITED STATES DEPARTMENT OF JUSTICE, MINNEAPOLIS, 

MINNESOTA 

Ms. ROWLEY. Well, the first thing I want to do is thank you for 

the opportunity to appear today. I never really anticipated this 

kind of impact when I wrote this letter to Director Mueller two 

weeks ago. I do not know if you know, I think they have been saying I anguished over this a week. It was not even quite a week. 

It was more like a 3-day period, and it was a fairly sleepless 3-day 

period when I began to initially just jot down my thoughts because 

I knew I had to appear before the staffers of the Joint Intelligence 

Committee, and I did not want to forget anything. And also you 

will probably find out I am a little better on paper than I am verbally, so I was kind of afraid of that. That was one of the reasons 

I started to write it down. 

I also had another big impetus that was kind of behind this all, 

and one of the things was that I saw the new direction of the FBI 

perhaps—it was kind of hard to discern when it was first announced—but I thought I saw some impetus towards a little more 

additional bureaucracy and micromanaging from Headquarters, 

and I wanted to point out to Director Mueller that that seemed to 

fly in the face of what we should have learned from September 

11th. And the two things were the impetus for the letter. 

Of course you know I have many years of experience in the FBI. 

I really do care about the FBI. I have invested almost half my life 

in it, and I do care also about our protection now. I have got four 

children. A lot of my friends have children. And I really think we 

ought to be doing our best to try to prevent any future acts of terrorism. 

I did, in the last couple of weeks, receive hundreds—i was counting them for a while but I lost track—but I received hundreds of 

e-mails and telephone calls from agents, mostly agents, some supervisors, some prosecutors, some retired FBI leaders, and I am 

not going to presume to speak for all of those people, but when I 

looked at them, and I have read most of them—there are a few 

that I probably have not gotten a chance to look at that have come 

in since I left, but of the ones I looked at, I did see a real common 

theme emerging. It seems like I kind of struck a chord with a lot 

of people about this idea about the bureaucracy. A lot of other 

agents told me similar stories about cases that had maybe 

unjustifiably not gotten anywhere, and I have a whole stack of 

those. 

I think there is really the main thing being a real strong consensus that we need to streamline the FBI’s bureaucracy in order 

to more effectively combat terrorism. We need that agility that DiVerDate 0ct 09 2002 15:07 Oct 06, 2003 Jkt 089324 PO 00000 Frm 00080 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\86517.TXT SJUD4 PsN: CMORC
77

rector Mueller was speaking of this morning, that agility and ability to quickly react, and I really see that as you get too top-heavy 

with too many layers—he also mentioned that problem—that you 

are going to be stymied. I was encouraged by Director Mueller’s 

testimony this morning, because I think many of his ideas do seem 

to go in the right direction and actually are quite consistent with 

the various items I had in my letter to him. 

He really has an extremely difficult job, and that is an understatement. When I talk about trying to trim the bureaucracy a little bit, I do not know how you can underestimate that. It has been 

tried before and failed, and he just has a tremendously difficult job 

which I can appreciate. 

I want everyone to know that no one today previewed in the 

FBI—of course they gave me approval to be here, but no one read 

the statement I did. I did this one quite quickly because I did not 

know I was coming until recently. And in this statement, which I 

am not going to read because you can read it when you want to, 

I have some ideas in here. Some of these ideas again come from 

other agents, some of whom are more experienced in intelligence 

than I am. And then some of them are my own ideas. I am the 

legal counsel, so some of the legal issues are things that I have 

seen as an issue that have arisen in the past few years. And you 

can read that at your leisure, and if someone wants to ask me a 

specific question about any of those, that is fine. 

I guess what I can maybe go on beyond what Director Mueller, 

I guess what I am going to try to do is the FBI made mistakes 

prior to September 11th. I made a little mistake. If you will look 

at my letter, I made a mistake on the first page. I got the date 

wrong. It was August 16th. I proofread it once and I missed it. We 

all make mistakes, and I think that there are other levels of our 

criminal justice system, there are other Federal agencies I am not 

going to talk about, but there are also the prosecutors when you 

try to go criminal, there are entities in the Department of Justice, 

so to some extent I have kind of broadened some of what I have 

written in my statement to include those other criminal justice entities. You know the FBI is real important, but there are certainly 

other entities that are very important here too. 

I was also encouraged—I do not know if anyone asked a question 

about it today, but when I read Director Mueller’s statement, he 

points to integrity. I think it is the last page also. And he does 

point to that as an issue. And I am very encouraged by that, because of course, if you look at the end of my statement, I think integrity is extremely important. 

Some of the people this morning did ask questions about how are 

we going to effectively combat terrorism? We are going to be in a 

proactive environment which definitely has the potential of maybe 

interfering with people’s civil liberties, and how are we going to 

still protect those civil liberties? And I honestly think integrity 

really plays into this whole item. A lot of when you are asking for 

some new law or some new authority, it is perhaps not only what 

the law allows you to do, but it is how it is going to be done. And 

then it really boils down to an issue of trust with the agency or the 

entity that you are giving this particular power to. And there are 

potentials for abuse if you go over that line, and I think as an 

78

agency we have to be so completely truthful and honest that people 

are able to trust the FBI, that we will not cross those lines or commit any kind of civil rights violation or collect too much information, et cetera. 

That basically is all I want to say, and then if anyone has a question from my statement. 

Chairman LEAHY. Ms. Rowley, we will. And what I am going to 

do now, we have about 4 minutes left in this vote. I am going to 

suggest everybody go and vote. We will stand in recess for a 

minute or the amount of time it takes, come back, and that way 

we will be uninterrupted. Thank you. 

[Recess from 3:31 p.m. to 3:47 p.m.] 

Chairman LEAHY. Agent Rowley, you may be interested I knowing, and I have not even had a chance to share this with Senator 

Grassley, a copy of this has gone to Senator Hatch. Dan Bryant of 

the Department of Justice has sent me a letter following a request 

I made, assuring both me and Senator Hatch there will not be any 

retaliation against you in any form for the letter you sent to the 

FBI Director. Of course that would also extend to the testimony 

here. I will put this letter to Senator Hatch and myself in the 

record, and Senator Grassley and I both notified the Attorney General and the Director that we would be following this matter carefully anyway. 

[The letter of Mr. Bryant appears as a submission in the record.] 

Chairman LEAHY. Let me ask this question of you, and I asked 

this question basically to Director Mueller this morning, so I want 

to ask you as well. To your knowledge, did the agents in Minneapolis or at Headquarters for that matter, ever try to do a routine search for reports on aviation schools or pilot training on the 

automated case system? I am not talking about putting in somebody’s name, but for search warrants, like ‘‘aviation schools’’ or 

‘‘pilot training.’’ Anybody do that? 

Ms. ROWLEY. Well, I know a little bit about our ACS system and 

the records we have, as well as the search methods we have, because I also do our Freedom of Information requests. Of course 

there are strict rules in place about how we search, and when people write to us, you know, if we find their name. Our main system 

of records, our central record system is indexed according to the 

name of the subject usually. So, for instance, in a case where a particular suspect was named, the normal method of searching would 

be to search that name only. 

We also do have the ability to search some text for a word, but 

unlike, for instance if you were doing Lexis–Nexis research, you 

can put in the ‘‘and/or’’ and there is all different ways that you can 

search. Our FBI search is probably the most fundamental, rudimentary thing. You can just put in a word. So for instance if you 

put in ‘‘airline’’ to do a text retrieval, you would get up such a volume of records that it would be impossible to review. It is almost 

impossible to do just a one-word text. 

Chairman LEAHY. You can put in ‘‘aviation schools?’’

Ms. ROWLEY. Well, what you cannot do—for instance, in Lexis–

Nexis, when you are searching for things, you can put those qualifiers in that narrow it down, and we have no way of knowing that. 

We can put a word in. 

79

Chairman LEAHY. You could put in ‘‘aviation.’’

Ms. ROWLEY. I think we could. And then——

Chairman LEAHY. But you could not put in ‘‘aviation schools?’’

Ms. ROWLEY. No. You would be getting aviation, and you would 

just be getting records that you could not possibly review. Now, 

what the normal method is, is we do search those names, and that 

is because the subjects’ names are indexed. So for Freedom of Information, that is what I do. And I think he mentioned that you 

have to have the correct spelling. That is right. I mean if you are 

one letter off, you may not turn up a record. 

Chairman LEAHY. But this does not do you much good if you are 

looking for somebody, for example, who used nitroglycerine in types 

of bombings and is going around with an alias which changes 

bombing to bombing. 

The Director said in his testimony that your office could not have 

brought up the Phoenix electronic communication on the computers 

and use it in connection with the Moussaoui case, but that Headquarters could have done that. Is that your understanding? 

Ms. ROWLEY. I do not know specifically about that EC, but I do 

know that prior to September 11th a number of classified documents, probably almost all classified documents, were blocked, so 

that only certain people, on a need-to-know basis would be able 

to—if you went into the computer, for instance, and you did not 

have that access, you are not going to be able to see those things. 

It was also in public corruption cases, other types of cases that we 

had this blocking. And it served a good purpose in a way because 

it really keeps the people maybe from abusing it. 

Chairman LEAHY. But suppose you are a cleared person, the 

head of your office, head of the Phoenix office and others, they 

want to do a computer search on the FBI ACS computer network, 

it is still difficult for them to do; is that correct, even if they are 

cleared? 

Ms. ROWLEY. That is true. I do not know exactly how this blocking, you know, what people in each office were unblocked and 

which were not. Typically it was the people who had a need to 

work on that case only. 

Chairman LEAHY. Unfortunately, some of the people who may 

know something about it are not going to be able to go much further. You wrote that a supervisor at FBI Headquarters made 

changes to the Minneapolis agent’s affidavit. I am talking about 

the FISA process now. You wrote that they made changes to the 

agent’s affidavit that, quote, to use your words, ‘‘set it up for failure.’’ Now, the New York Times has also reported that another 

Headquarters agent was basically banned from the courts, from the 

FISA Courts, by the Judge, based on his past affidavits. I know 

that in response to some of these problems the FBI has instituted 

so-called Woods Procedures. And we have put that in the record. 

It has been declassified. We put it in the record this morning. 

Do you think that some of these problems with the FISA Court 

made Headquarters more cautious and risk adverse in processing 

the FISA applications to the Court? 

Ms. ROWLEY. I have never actually served at Headquarters, so I 

guess I would only be speaking from hearsay, and as well as maybe 

the opinions of some of the people that have called me and e-mailed 

80

me. I think that when incidents occur where people in the FBI are 

disciplined or even investigated possibly, I think there are some 

consequences to that, and it does in the future make them much 

more careful. In the instances that I am aware of in our office 

where that has happened, we have typically, in order not to repeat 

the problem, we have instituted some kind of procedure that makes 

it more difficult. So I think that in a way, from what I know of it, 

and again, I have never served in Headquarters, that I would probably agree. 

Chairman LEAHY. He also wrote that you and the agents in Minneapolis were frustrated with the Headquarters agent that was assigned to the Moussaoui case, and had actually hindered your investigation. Did you or any other supervisor or agent in Minneapolis call—the agent you were concerned with—call his supervisor or others in Washington, to complain about this before September 11th? 

Ms. ROWLEY. I am of course a little bit restricted in what I can 

talk today about the events of pre–September 11th. I had put that 

in my statement. I failed to mention it earlier. When I comment, 

I am going to try to comment in a general way and just avoid the 

specifics prior, the events prior and not get into true real facts. 

Chairman LEAHY. I understand. 

Ms. ROWLEY. When I wrote the letter to Director Mueller, I think 

some of the news accounts maybe misunderstood, I really was 

speaking more from a third-party perspective in talking about what 

I saw our agents and other people in our office, as opposed to me 

personally. There was a word in the first page, I said I had a peripheral role, and I think that is very accurate. I did have a role, 

but it was peripheral, and when you ask if other people took these 

actions, I will say this. We have a culture in the FBI that there 

is a certain pecking order, and it is pretty strong, and it is very 

rare that someone picks up the phone and calls a rank or two 

above themselves. It would have to be only on the strongest reasons. Typically you would have to pick up the phone and talk to 

somebody who was at your rank. So when you have an item that 

requires review by a higher level, it is incumbent for you to go to 

a higher level person in your office, and then for that person to 

make a call. 

Chairman LEAHY. Has the Inspector General talked to you about 

this case? 

Ms. ROWLEY. I have had a call from the Inspector General, but 

so far we have not gotten into any real facts or anything. 

Chairman LEAHY. And when did he first contact you? 

Ms. ROWLEY. I was contacted by an investigative counsel from 

the Office of Inspector General, and it was basically just to introduce herself. 

Chairman LEAHY. How long ago? 

Ms. ROWLEY. It was last week, I think just a day or two after 

Director Mueller announced that it would be turned over to the Office of Inspector General. 

Chairman LEAHY. Thank you. And you have raised an important 

issue also about the so-called McDade Law in your testimony. As 

you know, that law was slipped into a massive omnibus appropriations bill, that some of us called ‘‘ominous appropriations bills,’’ 

81

back in 1999. Senator Hatch and I and Senator Wyden have been 

trying to fix this problem. In fact, we introduced S. 1437 to fix the 

problem. I want you to know there are some of us on the Committee that recognize it is a problem, and Senator Hatch and I are 

trying very much the fix the problem. We will keep trying. Eventually, hopefully we will be successful. We came very close. We 

thought we had it fixed in the USA PATRIOT Act, but others did 

not want it to go through, but I am committed, and I think I can 

speak for Senator Hatch, he is committed to get it fixed. 

Senator Hatch? 

Senator HATCH. Well, thank you, Mr. Chairman. 

I want to welcome you to the Committee, Ms. Rowley, and at the 

outset I wanted to thank you for appearing before the Committee. 

I also commend you for your letter of May 21st to Director Mueller. 

That letter raises a variety of significant issues that need to be considered during any reorganizing of the FBI. And I can only imagine 

how difficult it was for you to write the letter and then forward it 

to Director Mueller and others. So I want to ask you a few questions to clarify some statements in the letter and to seek your 

views on aspects of the specific reorganization plan. 

I believe that the FBI is the most important law enforcement 

agency in the world, and I know you do too, and that is why you 

wrote the letter, and you would like to have it continue to be a 

great agency. But in your letter you detailed the difficulties you 

and the Minneapolis agents encountered in seeking a search warrant under the Foreign Intelligence Surveillance Act procedures. 

We have been referring to that as FISA all day. With the FISA and 

your legal training, what modifications do you believe may be warranted to the FISA statute in order to enable the FBI to obtain 

such approvals when investigating terrorists? 

Ms. ROWLEY. Well, I heard some of the discussion this morning 

about the necessity to perhaps take out the ‘‘working on behalf of 

a foreign power’’ aspect. In thinking about that, and to be honest, 

I have not thought about it a whole lot, and in addition I have not 

had that much personal experience in working with the FISA process. Our office is not as involved as other offices would be. 

However, I think in a way, just knowing what I know about 

criminal and totality of circumstances, et cetera, I am not quite 

sure that it needs to be modified. I think in a way, perhaps what 

we have is because probable cause and proving or making these 

showings that are required are not like a DNA test, they are not 

a litmus test. You cannot put it in and have it come out 100 times 

the same way. And what can happen is mindsets, and over time, 

different interpretations, and you can have something becoming 

unduly difficult. When you actually look back maybe 10 years ago, 

this was not the case, and there was basically a lesser standard. 

I think when you look at totality of the circumstances and probable 

cause, you are looking at more probable than not. I am not even 

quite sure if the FISA—well, I think the FISA statute requires it 

as well—more probable than not, and I think that if you look at 

a totality, if someone is working on behalf of a foreign power, these 

terrorist entities are not like countries. They do not have embassies. They do not send us their membership lists. They do not send 

us their little organizational charts. I worked Mafia cases in the 

82

1980s, and the Mafia did not do that either. They did not send us 

their membership. We had to figure it out. And after a few years 

we certainly did have hierarchies of each organized crime family. 

But that was gained from surveillance. It was gained from little 

snippets of information we would get from wiretaps, that so-andso was working for so-and-so. And I think we should be able to use 

that same type of thing for demonstrating that someone is working 

on behalf of a foreign power, especially with a terrorist organization. And I am not sure that the language needs to be modified, 

but I think we need to realize that it is almost the same type of 

thing that we are up against. We are not going to get concrete 

membership lists, organizational charts, that we can say—or even 

the definition of the group sometimes. These groups are very amorphous. And by nature terrorism groups operate more effectively 

without having real defined hierarchies and who reports to who, et 

cetera. So that is kind of my take on it. 

Senator HATCH. Of course to a large degree, we are talking about 

surveillance, and unless you can show that they are operatives for 

a foreign power or that you have probable cause to believe that 

they are part of al Qaeda, say, in this particular case, you cannot 

get a FISA right to surveil. And see, that is what I think—and 

many people are concerned on the other side that if we grant that 

broad right, then it will be misused sooner or later by somebody 

who would not be as perspicacious as you are or Director Mueller, 

but I see it as a big problem, because as you can see, we basically 

could not get surveillance on I think basically all of those——

Ms. ROWLEY. Yes. I am not going to comment on all the facts of 

the case. My analysis of the case is that perhaps that it already—

you have read my letter. 

Senator HATCH. Right. 

Ms. ROWLEY. And I think that it is an obstacle, and I think 

maybe it is a possibility to consider whether maybe that amount 

or that threshold should be somewhat eased, especially in cases 

with terrorists, where it is hard to—but I think things like surveillance and knowing who met who and things like that should figure 

into it. 

Senator HATCH. All right. Agent Rowley, since your letter of May 

21st, the Attorney General has issued new investigative guidelines 

that will expand the FBI’s investigative tools. Now, given you experience in the field, can you describe in practical terms how will 

these new guidelines assist the FBI, at least the field agents, in 

carrying out FBI mission or missions? 

Ms. ROWLEY. I have not had a chance to really fully read the 

modifications. I have heard what the three, the main topics that 

have been brought up about going into public meetings and surfing 

the Net. And there is one additional thing I think in those AG 

guidelines, which delegates down to the SACs the ability and the 

authority to open up a case, a preliminary inquiry. 

To the extent the I am definitely, and I think we, the rest of the 

agents I have heard from, are definitely in favor that when it is 

possible to delegate down to a lower authority level, we will be 

more nimble and agile. I am very much in favor of that ability to 

open up a preliminary inquiry by the SAC. That aspect is good. 

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I do want to maybe at some point get the chance to talk about 

how—I know people this morning were talking about their fear 

that some of these new abilities to monitor public meetings, I have 

a little unique insight because I process Freedom of Information 

cases. And I read some of our old files from the 1950s. And I will 

see in there where we got, the people back then, for a lot of reasons, got a little carried away. When they went to a meeting, they 

recorded everyone who came, whether they were important or not, 

whether the person advocated whatever, you know, a terrorist 

point of view or whatever. And I see that type of thing that happened in the past. What I think that we need to do is a lot of it 

is in the how, and if you go to a public meeting, for instance, 

maybe we have gotten a little bit of information that someone in 

that meeting might be discussing a terrorist act. 

I think it is very good and logical that someone would go and sit 

in just to make sure that it doesn’t happen. So if, in fact, a person 

stands up and says, hey, let’s all do this, let’s all, you know, undertake this, and gives a speech about undertaking an act of terrorism, we are now going to be in a position that we will know it. 

Now, if that same agent, even based on a good tip, goes to the 

meeting and people are merely engaging in their First Amendment 

rights, here is the thing: nothing happens from that information. 

That is the difference from the 1950s. We don’t come back and 

record who was there. We do not look into the people that were 

there. It just ends. 

I think there is a difference between how we do this and exactly 

what the authority is, and I think to the extent that it gives us a 

little bit extra opportunity to perhaps detect something, I think it 

would be good. 

Senator HATCH. In your May 21 letter, you indicated your concerns about Director Mueller’s proposal to create ‘‘flying squads’’ 

which would operate out of FBI Headquarters here. Could you tell 

us more specifically your concerns about such squads? 

Ms. ROWLEY. When I wrote the letter to Director Mueller, the 

term—and maybe it was the media that used this term, but the 

term that was being used was ‘‘super squad,’’ and that connotates 

in my mind that we are going to have more people at Headquarters 

who now, when let’s say an office does detect some terrorism or an 

actual terrorist event occurs, that now we will get a whole contingent of managers from Headquarters who will direct the case. 

And when that term was first used, again by hearsay, I think a 

lot of people in the FBI had that connotation and it was a major 

impetus for my giving that letter to Director Mueller. 

Senator HATCH. I understand. Now, just one last question because my time is about up. In your testimony, you have identified 

a number of significant problems with the FBI’s bureaucracy. You 

have stated that, quote, ‘‘the problem is huge,’’ unquote, and, quote, 

‘‘cannot be quickly cured,’’ unquote. 

Now, in your view, what immediate steps could be taken to remedy some of the problems that you identified in your letter, and 

which problems will take more time to address? 

Ms. ROWLEY. You know, that is the $100 million question on how 

to reduce bureaucracy, and I really can’t pretend—give me another 

week—I really can’t pretend to understand. 

84

I know Director Mueller is also very cognizant of this problem. 

He iterated today that there are eight levels before you get to him. 

This is an unwieldy situation. If there is a way to somehow reduce 

the levels, I think that is the way we need to go. Seven to nine levels is really ridiculous, and it is just how do we do this once it gets 

started. 

Senator HATCH. Well, I am grateful for your testimony, grateful 

for your letter, and I think you have done a service and I think Director Mueller has taken it very seriously. 

Ms. ROWLEY. I agree. 

Chairman LEAHY. We are going to take a three-minute break. I 

am wondering if the Senators could all meet with me out back. 

That will also give the photographers a chance to clear. 

We will be right back. 

[The Committee stood in recess from 4:09 p.m. to 4:13 p.m.] 

Chairman LEAHY. Thank you, Ms. Rowley. You have been very 

patient. I want to turn to Senator Feinstein, who is actually doing 

double duty on this investigation, like several members on both 

sides of the aisle. 

Traditionally, just so you know, the Judiciary Committee has always had some members from both sides on the Senate Intelligence 

Committee, as does the Armed Services Committee, the Appropriations Committee, and the Foreign Relations Committee, for the obvious reasons. We handle classified material all the time, so we 

have members on the Intelligence Committee. 

Unfortunately, we are meeting and they are meeting, and Senator Feinstein has managed to be in both places at once and so I 

yield to her. 

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

Ms. Rowley, welcome. We are delighted to have you here and we 

thank you for your letter and for your comments about your career 

in the FBI and your concern about it. 

You indicated earlier that you were watching this morning the 

testimony of Director Mueller. Well, I asked my questions really 

based on some of the things you said in the letter to the Director 

and one of them involved the FISA process. Without going into the 

details of it, you indicated your concerns in the letter about the 

FISA process, and I think Director Mueller put on the record the 

very clear way in which these FISA warrants are going to be processed in the future and the question of intelligence also being 

added in the warrant request. 

My question of you is do you believe that this is a substantial 

improvement now over the way things were? 

Ms. ROWLEY. Yes, and in my written statement, too, I think September 11 alone, just the acts, really created a huge change in 

mindset. In addition to that, of course, Director Mueller has announced that prevention will be our goal, over prosecution. 

Prosecution, I think, should still be an important thing that we 

should keep in mind, but there are those instances. And when you 

have the two, prevention definitely has to override. I think what 

he is stating is if there is an application that someone at a lower 

level disputes or does not think should rise up, it will then automatically get reviewed at a higher level. 

Senator FEINSTEIN. By him. That is correct. 

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Ms. ROWLEY. Right now, by him. I am not quite sure that—

maybe it could even be lower than him because I think he is a busy 

man and I don’t know that it would necessarily have to be the Director, although it depends——

Senator FEINSTEIN. And that these would go then to the OPIR, 

as well? 

Ms. ROWLEY. Right. Well, obviously, it would depend on his review. He may well agree with the lower level, and that would be 

fine. We do need, though—as I said in my statement, we need a 

kind of a way to get around the roadblock, and I think with the 

FISA process this is a pretty good idea to have the ones that are 

not approved or disputed to go to a higher level for review. Obviously, the higher level may well agree that it is insufficient, and 

that is fine, but at least it has had a good review. 

Senator FEINSTEIN. Right, and the second area that I asked 

about was really in direct reaction to your comments in your letter 

about what you called the super squad, which he has pointed out 

very carefully today was a flying squad and that the local SAC 

would have the authority to initiate the first inquiry. 

Ms. ROWLEY. The flying squad—again, kind of the difference that 

I see there is that with a small office that does not have translators, does not have enough forensic computer examiners, perhaps 

does not even have enough surveillance experts, that if an office 

had that need to have those additional resources, a flying squad 

could come and help out. 

It would really serve the purpose of flexibility and if they didn’t 

try to take over and micromanage something that may well already 

be at a certain point, stage along, I think it is a very good idea. 

The only thing that I was really worried about was the fact that 

I saw this as managers coming to now take it over and micromanage or whatever. That is the distinction. 

Senator FEINSTEIN. Thank you. Now, in your letter you also mentioned, and I quote, ‘‘a climate of fear which has chilled aggressive 

FBI law enforcement actions, decisions.’’ You attribute that to the 

fact that numerous high-ranking FBI officials who have made decisions or have take an action which, in hindsight, has turned out 

to be mistaken or just turned out badly have seen their careers 

plummet and end. That was a very profound statement. 

I want you to respond to that, but I also want you to respond 

to something else, and here is something which is enormously controversial. No matter who you talk to, everybody has got a slightly 

different view of how racial profiling should or should not be applied and exactly what it is, whether it involves a country, whether 

it involves a race, whether it has a chilling effect on FBI agents 

instituting this kind of inquiry. 

I would be interested in your observations if there are places 

where you believe you have actually seen racial profiling impact or 

chill an agent’s perspicacity or desire to look into something. 

Ms. ROWLEY. Do you want me to answer that one first, the racial——

Senator FEINSTEIN. Yes. 

Ms. ROWLEY. I think one of the Senators this morning drew a 

distinction. Of course, racial profiling—I don’t even like the term 

or the word because I think it already has this pejorative sense, 

86

and different people have different meanings in their own mind as 

to what it means. 

Senator FEINSTEIN. I agree with you. 

Ms. ROWLEY. One of the Senators this morning made a good—

I think it was a good line. When you use race, ethnic origin, religion, any one of those factors as a sole reason or the main reason 

to take an investigative action, that is what I would think of as racial profiling. So if a trooper goes out and stops all Indian males 

going down the street, that is racial profiling. 

Now, on the other hand what you have are—we could get a report that a black male with a red baseball cap wearing white trousers and sneakers just robbed a bank, and you don’t disregard the 

race because it is just one of several factors that is describing that 

individual. So I think that is kind of what I see as the difference 

here between—courts, I think, follow that rule. 

Senator FEINSTEIN. Do you think your colleagues have the same 

interpretation that you do, because I think you have a very substantial interpretation? 

Ms. ROWLEY. Well, the ones I train do. I am trying to think if 

I have brought this up in other law enforcement circles. I think in 

Minnesota it has been a very hot topic and to the extent that it 

has been discussed, I have tried to point this out at different times 

that I think a lot of times you see people arguing when they are 

not even hitting the issue because they have different definitions. 

I think the Senators’ remarks today kind of show that maybe 

this kind of thing is rising, where people are getting this better understanding of what is permissible, what is logical and common 

sense, and then what is improper. And you use the term—it is just 

a pejorative term—and then people end the debate. 

Senator FEINSTEIN. I see the red light. Could you go to the first 

part of my question, which is the quote? 

Ms. ROWLEY. Climate of fear? 

Senator FEINSTEIN. Yes. 

Ms. ROWLEY. I think that, as I said in my letter, these high-visibility demotions, or even people ending their careers, have impact 

and everyone sees this. There are times when that results in less 

than aggressive law enforcement. 

There are actually times, though, I think it actually is the opposite because your boss, for instance, could be making a mistake the 

other way. Let’s say that your boss has said something that you 

think could be—I am just using an example now—it comes close to 

racial profiling. Now, if you are under that boss, with this climate 

of fear and whatever, you might actually be unwilling to challenge 

that. So I think it can actually work both ways, and I definitely 

think it results in less than aggressive law enforcement when we 

have had some high-visibility mistakes. 

In my paper, I drew a distinction between those mistakes that 

are really kind of deliberate or made for selfish reasons, and I 

think our people need to be held fully accountable for those types 

of mistakes, whereas the good-faith type mistakes—I get involved 

in civil suits all the time and we are humans; FBI agents are humans. We make mistakes all the time. 

In Minnesota, once we made a mistake and had the wrong guy 

arrested for a bank robbery because he was a complete look-alike 

87

of the real bank robber. And, you know, that type of thing—you 

know, that agent really did nothing wrong. Everyone would make 

that mistake. 

So I think we have to distinguish between the types of mistakes 

and be careful about pursuing the ones that really are good-faith 

ones because I think we will have some repercussions for that. 

Senator FEINSTEIN. Thanks. My time is up. Thank you very 

much. Thanks, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Feinstein. 

Senator Grassley? 

Senator GRASSLEY. I want to follow up on what Senator Feinstein just was talking about. I have been concerned for a long time 

about what I call the FBI’s culture of arrogance. In your letter, you 

mention a culture of fear, especially fear of taking action and the 

problem of careerism. 

Could you talk about how this hurts investigations in the field, 

what the causes are, and what you think might fix these problems? 

Ms. ROWLEY. Of course, I don’t think this happened overnight. It 

is one of those things that starts to happen and eventually you get 

at a point where it is not good. And I think careerism—when I 

looked up the definition, I really said unbelievable how appropriate 

that is. I think that the FBI does have a problem with that. 

If I remember right, it means promoting one’s career over integrity. So when people make decisions and it is basically so that I can 

get to the next level, either it is not rock the boat or do what a 

boss says without question. Either way that works, if you are making the decision to try to get to the next level, but you are not making that decision for the real right reasons, that is a problem. 

I think that in the FBI we have had some serious disincentives 

to getting into management. We have also had—some of our promotional system, I think, could be adjusted. There are some standards that we have gone to, kind of a real low level of ‘‘legally defensible.’’ It has become over the years kind of a volunteer system, because a lot of good, good people that have good backgrounds prefer 

not to transfer all those times. There are a lot of other reasons, so 

I think that careerism is a problem. 

I think the pecking order which I alluded to earlier is sometimes 

a problem and we have to be willing to, I guess, as Director 

Mueller has done a little bit in this case with me—when I made 

my critical remarks, I was quite worried because I know in the FBI 

you don’t venture close to criticizing a superior without really running some risks. 

But in this case, actually I was pleasantly surprised that, you 

know, I have been promised repeatedly no retaliation, and I want 

to hopefully hope that that kind of atmosphere now starts to kind 

of take over and that people make decisions—some of these huge 

decisions are just huge. You don’t even know when you are doing 

it, but they are huge and you have got to make them for the right 

reasons, not because I don’t want to rock the boat, not because I 

don’t want to bring up a problem to my supervisor, et cetera. 

Senator GRASSLEY. I think it would be helpful to hear about 

Headquarters FBI from the perspective of your working in the 

field. Your letter to the Director about the Moussaoui case talked 

about supervisors actually hindering that case. 

88

Now, I know that you can’t talk about that case because of a 

trial, and I appreciate that and expect you not to. But it would be 

useful for you talk about how Headquarters gets involved in cases 

from the field and what you and other agents think of Headquarters involvement and whether the people there are helpful or 

a hinderance. 

Ms. ROWLEY. Well, I mentioned in my letter, because I am a 

legal counsel in the office, I interact a lot with our Office of General 

Counsel and for the most part the people in the Office of General 

Counsel that I interact with on a daily basis are very helpful. I 

think they mostly see their mission as assisting people, giving advice, that type of thing. Our laboratory, I think, is something like 

that as well, because their mission is to do that test so they can 

get it back to the field. 

Other entities are less helpful at Headquarters because they do 

not see their mission as assisting in the investigation. When we get 

these seven to nine approval management levels in place at Headquarters, many of those people see their job as kind of a gatekeeper 

function and kind of a power thing or whatever. 

Again, I think we have to stress to the people—if we can limit 

the number of management levels, all the better, but the people, 

if they realize that their function is to assist with intelligence in 

the future, hopefully this will happen if we have more analysts 

that they see their function as assisting that investigation. I think 

then it is helpful. So it is kind of a mixed bag is, I think, what I 

am saying. It is kind of a mixed bag and some entities are helpful; 

others maybe aren’t quite what they should be. 

Senator GRASSLEY. Well, could you kind of summarize that by 

saying—or let me summarize it and see if this might fit it. Headquarters ought to be helping people at the grass roots and not be 

a hinderance. 

Ms. ROWLEY. Yes, I think that is true, and the worst is—I forgot 

to even mention the worst is micromanaging, and there have been 

instances in the past where a higher level in the FBI has almost 

decided to tell an office how to do something. And I can name a 

few cases where these just became disastrous, so micromanaging 

from a higher level is really the epitome of what would be the 

worst. 

Senator GRASSLEY. I don’t think you have to name those cases; 

we have looked into those an awful lot here in the last decade. 

Your letter highlighted some of the problems within the bureaucracy at FBI Headquarters, with many layers of approval in order 

to get a search warrant. What are your recommendations for 

streamlining this bureaucracy so that field agents can effectively 

pursue investigations? 

Ms. ROWLEY. Well, I mentioned before that the bureaucracy is a 

huge problem and I really have to think longer about how that 

would be remedied. I can mention one other thing about streamlining being able to go around roadblocks that might arise, and I 

have mentioned internally in the FBI if we are pursuing a FISA 

or intelligence methods. 

It should also be recognized that we can pursue terrorism on a 

criminal level and we can then go across the street to a U.S. Attorney’s office, and I think a similar mechanism perhaps needs to be 

89

considered also for U.S. Attorneys’ offices. It is not terribly different when you go and say, here is why I think I have probable 

cause, to an Assistant U.S. Attorney. 

In my write-up, in thinking about this, I thought it is kind of 

analogous to a person who gets diagnosed with cancer or with a serious illness. Of course, they always try to get a second opinion, 

and it is accepted in the medical profession. But in the legal profession, for some reason, it is not that well accepted that if you get 

an answer from an Assistant U.S. Attorney that you possibly have 

a way to have it reviewed again or have it reviewed by an expert 

in the field. 

I think that we should maybe consider that for the Department 

of Justice to have—I don’t really ‘‘super squad,’’ but maybe a cadre 

of prosecutors that have experience with terrorism; that in the 

event we were trying to pursue it criminally, we might be able to 

have a way around a roadblock that way. 

Senator GRASSLEY. Is my time up? 

Chairman LEAHY. Go ahead. 

Senator GRASSLEY. My last question is that we heard quite a bit 

about how the solutions to problems with the FBI seem to be more 

computers, more money. It is not the first time that we have heard 

that supposed solution to problems at the FBI, or for that matter 

a lot of other Government agencies. 

How much do you believe more money and more computers will 

solve the problems with the FBI, or are there other more important 

changes that need to be made at the FBI? 

Ms. ROWLEY. I think upgrading our computer system would be 

nice. The capability to do these kind of searches and pull up related 

information would be nice. I have in my statement today actually 

suggested a number of things that really don’t require a lot of 

money. 

Upgrading our manual to give clear, concise guidance to agents 

working intelligence is not going to require huge sums of money. 

The idea of—I have to look at some of the things. The law, if we 

can possibly toward the end—some of the legal changes I have 

mentioned could be problems; the development of maybe a Department of Justice cadre of professional expertise. 

I have a few ideas that it seems that they really don’t cost a lot 

of money and I think that they should be considered, in addition, 

you know, perhaps to upgrading the computers. The hiring of new 

agents always, of course, entails money and funding, and I am not 

really in a position to comment whether we are adequately staffed. 

I think that the new measures to hire additional translators is very 

good. 

Senator GRASSLEY. Thank you. Thank you very much. 

Chairman LEAHY. Senator Cantwell? 

Senator CANTWELL. Thank you, Mr. Chairman. 

Agent Rowley, thank you for being here and thank you for your 

service to our country. 

Your memo to Director Mueller said, quote, ‘‘I do find it odd that 

no inquiry whatsoever was launched of the relevant FBIHQ personnel and their actions, and despite the FBI’s knowledge of all the 

items mentioned herein,’’ basically talking about the events of September 11, and the refusal to pursue a warrant in the Moussaoui 

90

case. Your memo goes on: ‘‘The SSA and his unit chief and others 

involved in Headquarters personnel were allowed to stay in their 

positions, and what is worse, occupy critical positions in the FBI’s 

SIOC Command Center post–September 11.’’

Then you go on to say, ‘‘I am relatively certain that if it appeared 

that a lowly field office agent had committed such errors of judgment, the FBI’s OPR would have been notified to investigate the 

agent and would have at least quickly reassigned them.’’

Now, I know you are not going to comment on that, but in your 

testimony today you did talk about the management of intelligence, 

which I think is more or less what you were getting at in that particular statement in your letter to the Director. That perhaps there 

had been a mismanagement of information analysis and processing. 

In your recommendations, number five, in your testimony you 

say that management of information should be improved, but specifically you say ‘‘centralized information is required. However, it 

must be properly analyzed, evaluated, and disseminated in a timely fashion to the field.’’ You also say, ‘‘Recently, State and local officials, as well as the media, have frequently received more information than the FBI field divisions.’’

So how do you think we address that in the reorganization that 

has been proposed so far by the FBI? I know you are talking about 

reducing the layers, but what is it specifically that needs to be done 

to better process information at FBI Headquarters? 

Ms. ROWLEY. Well, we have already discussed the computer. 

That would probably help somewhat again for an analyst to have 

the ability to go on the computer and then be able to put in ‘‘flight,’’ 

‘‘airline,’’ or whatever it is and draw some intelligence together. So 

I think that probably would help. 

We need professional analysis of the intelligence we already 

have. I think Director Mueller is talking about an intelligence—I 

am not sure of the title, but it is something with intelligence, and 

the way I have perceived that is that basically this is a group of 

people who put together reports or conduct, at request—if you have 

an issue or a question that they can produce that intelligence that 

might add on to an affidavit or whatever. 

It may well entail requesting field offices to conduct certain investigations, to be in a kind of a proactive mode; that if they get 

two offices sending in something that looks like, oh, my gosh, we 

ought to look into this, that we have a group who is in charge of 

analyzing and looking at these things so that we don’t have two 

things coming in three weeks apart and not even being able to put 

it together. 

Senator CANTWELL. Today, is that the specific responsibility of 

one, or several people? 

Ms. ROWLEY. Well, I think at the present time it is not done very 

well. I really don’t, and I think that, you know, creating—Director 

Mueller is starting to do that. I think that we don’t have it now, 

and I think that this group hopefully would be there, function as 

an assisting thing to the offices that develop something or when 

they make a request. 

Senator CANTWELL. But when I look on this new org chart of an 

Office of Intelligence, it doesn’t strike me as the flat organization 

that you seem to be describing as a solution. You are talking about 

91

information that is easily processed and driven back to the field. 

No surprise, that is where most of the corporate world in America 

is moving towards a flat organizational structure, because information flow is so critical. It seems to me that you are describing a 

similar need, that I am not sure is addressed in the current reorganizational plan. 

Ms. ROWLEY. I haven’t seen that chart. That is the first time 

when you held it up, and when I made my first comments today 

and I mentioned that many of Director Mueller’s ideas seem to be 

consistent with what my initial letter was, there is one kind of—

I see maybe a slight difference, and that is I really think we should 

scrutinize—when you held it up, it just hit me—we really need to 

scrutinize all these proposals for this problem that creeps in of having these various levels. 

I think that the flat-lining—and if there is a way to reduce these 

levels somehow, we have to look at each thing and say why create 

more? It is not going to be an answer, and if I have one little slight 

difference, that was the impetus for my first letter. Really, it was. 

Senator CANTWELL. Well, I happen to agree with you that we are 

talking about an increase in information flow here, while the thing 

that seems to be missing is the processing of that information and 

the quick distribution of that information. And we are only going 

to get more, given the type of attacks that we are monitoring. 

Not to catch you off guard, but I am curious. Tonight, the President is going to be making an address about somewhat of a reorganization of Homeland Security—we don’t know all of what he is 

going to say yet, but, his press secretary said that the new department may be responsible for border security, intelligence, and other 

functions at several Federal agencies that it now supervises. It 

wouldn’t replace the FBI or CIA, but it might be one of the biggest 

restructurings that we have had. 

What advice would you give the President about this? 

Ms. ROWLEY. I really can’t presume to give advice on such a high 

level. I will say one thing. In the past when we have had different 

agencies where there was some overlap in their jurisdiction—the 

things that come to mind are FBI–DEA, because we share drugs; 

sometimes, FBI and ATF where there were bombings that we kind 

of both got involved in. 

If you have two different entities and there is an overlap and it 

is not clear who does what, we can have some friction starting up 

and we can have some problems. So that is the only thing that 

comes to mind, is that it has to be kind of clearly demarked so that 

the agencies don’t develop this friction and we are not at cross-ends 

with each other. 

So if there is a new agency starting, which it sounds like, that 

is the only advice I can think of. 

Senator CANTWELL. Well, I read in your statement that you 

didn’t expect your memo to create such a furor, but thank you for 

stepping into the spotlight and giving this issue the needed attention. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very, very much, Senator. 

Senator Specter? 

Senator SPECTER. Thank you, Mr. Chairman. 

92

Agent Rowley, we thank you very much for coming forward. It 

is obvious that it was very difficult to write the letter which you 

did, and it is filled with passion. You were really very concerned, 

a word you used repeatedly, and your purpose was of the highest 

and there were obvious risks which you undertook in coming forward. 

I am confident at this point that the FBI and the Department of 

Justice will honor the commitments which they have made, and if 

they don’t, I know that this Committee is prepared to make sure 

that they do. 

I think you performed a great service for the FBI because after 

Director Mueller’s first response, which was unresponsive to your 

memo, he did come forward and articulate an acknowledgement of 

the problems and then moved to correct them, which is indispensable. 

We have said repeatedly that we are not interested in finding 

fault. We are interested in seeing to it that if there is a recurrence 

and you have all of these indicators that you put them together 

and you read a road map which is there on an analytical basis. 

I understand your limitations as to what you can testify to about 

a case. I spent a dozen years as an assistant DA and as a district 

attorney, and have some appreciation for what prosecution requires 

and what the limitations are. 

But in trying to understand the mentality of the FBI, which I 

think there is general agreement has to be changed, I was intrigued by your characterization that the ‘‘United States Attorney’s 

Office, (for a lot of reasons including just to play it safe), in regularly requiring much more than probable cause before approving affidavits, (maybe, if quantified, 75 percent–80 percent probability 

and sometimes even higher) ...’’

Can you give some insights as to why so that we might approach 

the issue as to how we change that attitude? 

Ms. ROWLEY. Well, in some ways maybe that could be misinterpreted. I think actually there are cases—‘‘playing it safe’’ has kind 

of a negative connotation, but playing it careful or being careful or 

meticulous doesn’t. And I think there actually are cases—I think 

many times in white-collar cases, for instance, when you really 

want to be extremely careful, public corruption cases, these types 

of things, where you really want to be careful about proceeding—

that it might well be appropriate to maybe require something more 

than 51 percent. 

Senator SPECTER. Well, I can see if it is a prosecution, perhaps, 

but if it is an investigation, it is very different. I think the FBI has 

to change the approach to case preparation to investigation. 

But even on the quantum of proof, referring to Illinois v. Gates, 

which I mentioned to Director Mueller this morning, a 1983 Supreme Court decision, opinion by then–Justice Rehnquist, he points 

out, going back to Locke v. United States, in 1813, referring to the 

term ‘‘probable cause,’’ ‘‘It imports circumstances which warrant 

suspicion. More recently, we said the quantum of proof appropriate 

in ordinary judicial proceedings are inapplicable. Finally, two 

standards’’—and then he refers to ‘‘preponderance of the evidence, 

useful in criminal trials, has no place in the magistrate’s decision.’’

93

So Justice Rehnquist is pretty explicitly saying that it is not a 

preponderance of the evidence; it is not ‘‘more likely than not.’’ He 

quotes Marshall; pretty good authorities, Chief Justice Marshall 

and Chief Justice Rehnquist, talking about suspicion. So one of the 

things that we are going to be looking forward to—and I have discussed with the Chairman the issue of pursuing this trial through 

the Foreign Intelligence Surveillance Act to find out. 

Let me go to another point which you raised in your exhaustive 

letter, and that referred to the issue as to Zacarias Moussaoui. And 

I am not asking you about evidence now. We are still on the Foreign Intelligence Surveillance Act issue, where you pointed out, 

quote, ‘‘For example, at one point the supervisory agent at FBI 

Headquarters posited that the French information could be worthless because it only identified Zacarias Moussaoui by name and he, 

the Special Agent at Headquarters, didn’t know how many people 

by that name existed in France.’’

Now, it is extraordinary. Zacarias Moussaoui is not exactly a 

name like John Smith. After you tracked it down, going to the 

Paris telephone book, you noted here that the Special Supervisory 

Agent a FBI Headquarters, quote, ‘‘continued to find new reasons 

to stall.’’

Here, we are looking at what we have to do to have a sensible 

response from FBI Headquarters on an application under the Foreign Intelligence Surveillance Act. Can you give us any insight 

from your experience, which has been considerably painful, as to 

what we might do? 

Ms. ROWLEY. In my statement, I talk about roadblocks, and basically in my statement I am addressing criminal cases. When you 

first talked about probable cause—and we all know there is no perfect test for it—what I think has happened is over the years we 

have adopted certain mindsets from judicial rulings or from what 

might be the prevailing mindset in a U.S. Attorney’s office. 

I think what we do see are elevated standards in some cases, and 

one of my recommendations is that we have a sanity check, a second opinion, somebody else that we can maybe try to reason with. 

I really think it should be outside a particular U.S. Attorney’s office 

because what can happen is that, you know, people are all kind 

of—the careerism or whatever can be a problem there, too. 

In the FISA process, Director Mueller has proposed the same 

type of thing internally in the FBI, and I think his idea will definitely have results. Okay, if you don’t approve it and now it has 

to go up, with our kind of attitude of having to take it up, how 

many times—the pendulum actually might swing the other way too 

far. So I think that in the FISA process, the proposal that we have 

now that it will be reviewed at a higher level if it is not handled—

I think that is already there. 

Senator SPECTER. Well, my concluding comment would be that 

the review is not really adequate unless you have a standard which 

meets the legal requirement but doesn’t impose a burden which is 

impossible. We changed the Foreign Intelligence Surveillance Act 

in the PATRIOT legislation to add the word ‘‘significant.’’ A significant purpose of the surveillance is to obtain foreign intelligence information. 

94

After we investigated Wen Ho Lee, the Subcommittee which I 

chaired, we came forward with a recommendation that when a 

high-level officer at the FBI like the Director took the issue to the 

Attorney General, the Attorney General had to give the reasons 

coming back, because Attorney General Reno personally turned 

down the FISA warrant in the Wen Ho Lee case. 

But this Committee is going to get to the bottom of it. We are 

going to find out what is going on. So far, we have only glimmers 

of information, like Agent Resnick was reassigned from a FISA 

unit, apparently removed by the special court, where the Chief 

Judge, Royce Lambert, reportedly excluded him. The question is 

did that make that unit gunshy? The question is did racial profiling 

make them gunshy? 

In this kind of a situation, unlike ordinary cases where courts 

write opinions and we can tell what happened, I have discussed 

with some of my colleagues the possibility of consulting with Chief 

Judge Royce Lambert about what went on because we have got to 

figure out what is fair on civil rights, not overreact, but not look 

for 75 to 80 percent, or even 51 percent. You go with Chief Justice 

Marshall on suspicion; it has to be quantified in accordance with 

the facts of the case. 

But I think that your 13-page memorandum has started us off 

on a road which could produce a lot of fruitful results when we 

really get down to brass tacks and do it right with an appropriate 

legal standard. 

Ms. ROWLEY. The language change that has already occurred 

that you mentioned has been very beneficial. That was a big stumbling block, and that change already has produced some results. As 

I talked to Senator Hatch, I think that maybe there could be some 

tinkering with the aspect of having to prove, especially with terrorist groups, that this person is an agent of the foreign power, and 

kind of use that analogy that we can use other types of information 

rather than something that—I use the example of a membership 

list, but, you know, a photograph, a telephone call, the same types 

of things that we might be able to use in a Mafia case to put a 

RICO case together as an enterprise, that we can use that in a terrorism case to show that they are affiliated with or have connections to. I think that would be a good idea. 

Senator SPECTER. But not imposing a standard which is so high 

as to be unrealistic, simply to protect somebody for later blame for 

having made a mistake. If you don’t do anything, no mistakes. 

Senator HATCH [PRESIDING.] Senator Schumer is next. 

Senator SCHUMER. Thank you, and I want to thank you again, 

Agent Rowley, as everyone else has, for your stepping forward and 

doing the Nation a service. I read your memo. It showed you how 

long we have to go. There is a mindset there that has to be sort 

of cracked, and your memo does it both in a forthright but also a 

nice and respectful way. 

I have a few questions. First, I don’t know if you happened to 

hear my conversation with Director Mueller on the computer system. 

Ms. ROWLEY. I heard some of it. I don’t know if I heard the exact 

whole thing. 

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Senator SCHUMER. Well, the bottom line is that the FBI’s computer system is amazingly backward. I have done a little more research on it, or I want to elaborate a little more. You can sometimes do a search by term, but you can never combine two terms. 

So you can use ‘‘aviation’’ and get a huge amount of stuff, and you 

can use ‘‘school’’ and get a huge amount of stuff, but you can’t do 

‘‘aviation’’ and ‘‘school.’’

Ms. ROWLEY. That is correct. Actually, I kind of mentioned that 

earlier. That is absolutely right. 

Senator SCHUMER. That just amazes me because as I said to the 

Director, you can do that on my daughter’s computer—she is in 7th 

grade—that we bought her this fall for, I think it was $1,400. I 

know that we have each year increased the amount of money. 

Tell me first, because I asked the Director this, what led to the 

FBI being so backward in such a fundamental tool, in your opinion? I mean, this is not just typical; this is dramatically and deeply 

atypical worse, negatively atypical. 

Ms. ROWLEY. Backward in computers. You have given me a question I—of course, I have thought about some of these questions, I 

guess, in my dreams or sleeping or whatever, but that is one I 

haven’t thought about. 

Senator SCHUMER. But just, you know, your knowledge of the bureaucracy. Assuming that most small businesses, and even most 

junior high school students have better computers than the FBI, 

why would the mindset of the FBI be such that—as of today, this 

is; by the way, this isn’t just as of a year ago. Director Mueller said 

it would take two years, at a minimum, to bring the system up to 

snuff. 

One of the things that troubles me is why wasn’t there somebody—and you don’t need to get a Ph.D. in computer science to 

know how deep this problem is. 

Ms. ROWLEY. You know, one of the only things that comes to 

mind—and I have 21-and-a-half years in, so I am going back to 

when I was a brand new agent and I worked with—kind of like the 

people now who would have been some 20-some years ago. 

When the computers first started coming on the scene, there 

were many of the old-time agents, who couldn’t type. We had secretaries and stenos who actually wrote the interviews. You just dictated it and it got written. I do know there were a number of people at higher levels back in the 1980s who were kind of opposed 

to computers and they hated them, and the typing and everything. 

Senator SCHUMER. Do they still have carbon paper over there at 

the FBI? 

Ms. ROWLEY. No. Actually, when I started I think they still had 

it. We had a lot of forms that were still on carbon paper that had 

to be hand-typed. So I don’t quite know why we have never—I am 

real lucky that I took personal typing in high school because that 

helped so much when you can actually do your own—especially 

when you are going to write a letter that you don’t have anyone 

else that can see, I am so glad that I can type all right. Actually, 

now I should say that with our new agents, this is no longer an 

issue. 

Senator SCHUMER. But this is a function—you know, you can 

have a bunch of agents out there in the field who don’t know how 

96

to type, but somebody at the Headquarters should have said years 

ago that we—it is such an obvious tool in crime-fighting. 

Ms. ROWLEY. Of course, that is recognized now, and I don’t know 

exactly how this all developed, but it goes back some time, as you 

have noted. 

Senator SCHUMER. Yes, okay. Let me ask you this. I know the 

others have been watching this. We can watch these things on television from our offices; they broadcast them. I know a lot of people 

have asked you about the culture, but let me ask you what would 

you do if the Director came to you and said, how do you change 

the culture? 

I mean, this is a big, deep, proud organization that is now reeling, you know. I am sure it is, and there are, as been said, many 

fine people and they have done a good job on a whole lot of things. 

But it has been obvious to some of us that over the last several 

years, not just in this area but in several areas, it has sort of lost 

its edge. 

How do you change it? What would you recommend, from your 

perspective as an agent in Minneapolis? 

Ms. ROWLEY. Well, I think there are probably several things that 

could be done to improve the culture and the FBI leadership and 

the problem of careerism. Our Director Mueller has—I keep saying 

Director Mueller has said this, and whatever, and in many cases 

this is true. He has mentioned time over that we need to pick our 

best leaders; we need to pick those best people out there. 

In my statement, I mention the fact that I have seen in the past 

few years just the opposite happening. I have seen a number of 

great FBI agents with great background experience actually stepping down from their positions of leadership. It has actually gone 

the opposite direction, and for a lot of reasons. So somehow that 

has to be reversed. We have to give better incentives to getting into 

management. We have to reduce the disincentives. 

Paperwork—no one has asked me about paperwork. I think that 

is a real problem. I think people——

Senator SCHUMER. I asked you about the inverse, computers. 

Ms. ROWLEY. Yes. I think that, you know, we need to be judicious 

about that. I go back to the ‘‘don’t rock the boat, don’t ask a question’’ problem. If I say why are we doing this, does this really have 

any value, does it serve a purpose, it is either one of two things. 

It is just like a complaint that we can all complain about it, but 

nothing can ever change. It just kind of falls on deaf ears and no 

one really examines it. 

Or it might actually be seen—if you are criticizing some particular program write-up or some particular inspection thing, it actually might be seen as a challenge to somebody higher up and 

they may get mad or whatever. So I think to some extent, if we 

are going to really scrutinize what is necessary and how we can become more effective, we definitely need to encourage people to say 

exactly, is there a purpose to what this is? And if there is, fine, we 

will continue doing it. Can it be done quicker? Can it be done in 

a more minimal fashion? 

Senator SCHUMER. Those questions are not asked enough. It is 

a real bureaucracy, is what you are saying. 

97

Ms. ROWLEY. The day before I came here, I had to fill out our 

ethics audit, and that meant that I had to name all the people in 

my office. Essentially, I had to re-type around 60-some names. I am 

a good typist, but it still took me like an hour-and-a-half, and I was 

busy as all get-out, you know, three days ago trying to do this and 

everything. 

But yet I had to take about an hour-and-a-half to re-type, and 

actually these names are in a file and all you have to do is open 

up this file. And yet, if I would have complained and said why I 

am doing—I actually did complain, but I still ended up re-typing 

those. That is just one little example. 

Senator SCHUMER. Right, okay. We have a vote. There are only 

about two minutes left. Oh, Patrick is back. I was going to call a 

brief recess, but I may come back and ask you a few more questions. But I am just going to vote, and I thank you, and if I can’t 

make it, I thank you double. 

Chairman LEAHY. We should you bring you with us while we 

vote, Agent Rowley. We could probably continue the questioning; 

just grab the stenographer, who is superb here, who has done this 

forever, and follow us over. 

You can turn the red light off. I don’t think I am taking anybody’s time. 

One thing—and I was going to ask it earlier, but I didn’t want 

to infringe on the time of the others—you said in your letter that 

there is a perception among rank-and-file agents that there is a 

double standard when it comes to discipline in the FBI. I remember 

hearing that way back in my days when I was a young prosecutor 

in Vermont working with the FBI then. 

What do you mean by this double standard, and if we could wave 

a magic wand, what would we do to get rid of it? 

Ms. ROWLEY. Maybe I can think of how we can get rid of it. Of 

course, we have in the FBI already in the last year or two when 

this problem has surfaced—it has been surfaced by others at various times and there are examples, I think, that have occurred in 

the past few years where higher-level management did the same 

misconduct or made mistakes and it was lightly dealt with or not 

dealt with at all, whereas a lower-level agent would be disciplined, 

and this has surfaced before. 

Now, in the last year or two, even prior to the Director, there 

have been attempts just by policy to make sure that this doesn’t 

happen. I think that there already is in place with the SES system—they have made some changes to that, so trying to remedy 

the problem. 

I am not sure. I know that the OIG in some cases now has been 

given some additional powers to look at things. It might require 

somebody just outside our agency because if you are in the chain 

of command, it is going to be very difficult to ignore someone at a 

higher level. I think it is kind of just inherent, maybe, some double 

standard. There have been attempts, though, in the past year to 

try to remedy this. 

Chairman LEAHY. Thank you, Mr. Rowley. I am advised that 

some of the other Senators on the Republican side are coming back 

after the vote. We will stand in recess for a couple of minutes until 

98

they come back to give you a chance to stretch your legs and even 

talk to your husband, if you would like. 

Thank you. We will stand in recess for a couple of minutes. 

[The Committee stood in recess from 5:03 p.m. to 5:08 p.m.] 

Chairman LEAHY. Ms. Rowley, Senator DeWine is here. 

Senator DeWine, why don’t we go to you? 

Senator DEWINE. Mr. Chairman, thank you very much. 

Agent Rowley, thank you very much for being with us today. 

Thank you for your letter and your testimony. I most particularly 

thank you for your over 20 years of service to our country and to 

the FBI. I know that you are one of thousands of dedicated FBI 

agents, and we just appreciate your work. 

I talked this morning a little bit to the Director and I said that 

your letter and your testimony, but for the facts of this particular 

case, probably could have been written by many agents. I sense a 

great deal of frustration with agents, those who have devoted their 

life to the FBI, in regard to the bureaucracy that you have outlined 

in your letter. So I thank you for coming forward with specific recommendations. 

Let me talk a little bit about those recommendations, but also try 

to get a better understanding of how your office works. For example, how many FISA cases would you have in a year, or possible 

FISA cases? 

Ms. ROWLEY. I am not quite sure, really. I am not even quite 

sure I can answer that from a national security standpoint, other 

than to say our office would probably be one of the offices that 

would have far less than other offices in the country. So relatively 

few is maybe the best I can say. 

Senator DEWINE. You are the legal counsel? 

Ms. ROWLEY. Yes, I am legal counsel in our office. Some offices 

have more than one, but an office such as ours, with about 115 

agents or so, we just have myself. 

Now, there is a similar thing, of course, in regular criminal cases 

for Title III intercepts, wiretaps, and even in those cases they can 

be different types of crimes. We also in those cases would not conduct nearly the number that other offices, with the Mafia and bigger drug cartels or whatever, but we do have a few of those a year. 

Senator DEWINE. Without getting into the specifics or the numbers or anything, do you think that that in any way impacted how 

this matter was handled? 

Ms. ROWLEY. The fact that our office actually——

Senator DEWINE. I am not suggesting it does. I just don’t know. 

Ms. ROWLEY. I don’t want to comment specifically about this 

case, but I don’t think really our agents in Minneapolis—we have 

some top-caliber agents. Some of our agents have come from other 

intelligence—they have other intelligence backgrounds and I really 

don’t think it would have made a difference. We really have topnotch people. 

Senator DEWINE. Let me ask you, looking at this particular case, 

has it been your experience that you have had other problems, not 

directly related to this case or not using this case even as an example? 

In your very lengthy letter, you talk about the bureaucracy, you 

talk about the frustration. Obviously, that letter just didn’t come 

99

up from this particular one case. I mean, you have had other problems. 

Ms. ROWLEY. Correct, correct, and not only——

Senator DEWINE. Excuse me. Would it be fair to say this is not 

unusual? The circumstances are unusual, the national security 

matter is unusual, the horrible tragedy is unusual but typical, in 

a sense? 

Ms. ROWLEY. Yes, and also as you mentioned at the start, this 

could be the complaint of any large number of agents around the 

country. From the responses I have received from field agents in 

other divisions, up until now—and, hopefully, you know, cross our 

fingers that it is going to start improving—this has been the experience in many other types of cases. The bureaucracy has been a 

problem. Hitting roadblocks internally, and again externally, it can 

be—in criminal cases, as well, is a problem. And I think we need 

to think maybe somewhat creative ways of trying to remediate this. 

If I can, I don’t want to take up all your time, but I didn’t give 

a tremendous answer to Senator Schumer earlier when he 

asked——

Senator DEWINE. We will take that from his time, even though 

he is gone. The Chairman is not laughing, so——

Ms. ROWLEY. It ties in a little bit with your question, so we will 

give you 30 percent and him 50. 

Senator DEWINE. All right, but I do have a couple more I would 

like to get in. 

Ms. ROWLEY. You know, when we were talking about the probable cause and why this has kind of come into this issue, it is kind 

of complex where the mindsets start to change. And I know Director Mueller today mentioned something which struck me as a little 

odd or a little—actually, I kind of bristled a little bit at it. 

He said, well, maybe—someone suggested maybe we should give 

our agents training in probable cause. Well, first of all, that would 

fall to me, and I am here to say that the agents who have 20 years 

in the FBI who have done search warrants and Title IIIs and any 

number of things, really, really are quite familiar with the standard of probable cause. I don’t think that that would really serve 

any purpose to give some kind of esoteric training. 

Senator DEWINE. Okay, all right. 

Ms. ROWLEY. But there are some improvements, you know, to the 

writing where the people on the scene should be given some credit 

for their observations because those are first-hand observations, 

and in writing an affidavit that should really be of primary importance. And there shouldn’t be any rewriting of an affidavit further 

up the chain unless it is grammatical or really not of any substance. 

Senator DEWINE. One of the recommendations you made I would 

like to read to you and then I would like for you to comment on. 

Number nine, development of confidential sources and assets: ‘‘Just 

recently, in the wake of the Whitey Bulger scandal, the guidelines 

for the development of confidential sources and assets have been 

extremely restrictive and burdensome. While some of the measures 

undertaken to monitor the informant process were necessary, they 

have now gone too far, and if not reviewed or trimmed may result 

in reduced ability on the part of the FBI to obtain intelligence.’’

100

Do you want to explain that a little bit? 

Ms. ROWLEY. I am not the person in my office who is the informant coordinator, but we have all, of course, in the wake of these 

new guidelines and informants, been given new, additional paperwork that needs to be completed, additional items that need to be 

conducted before opening sources, before certain sources can do certain things. I think it should maybe be reexamined. 

I have to tell you where I am coming from because back in the 

1990s, we actually had an FBI agent who murdered his informant, 

and to me it is kind of like other scandals. It seems like we should 

have done something back then, and nothing occurred after that incident. 

We did not have a policy in the FBI in the 1990s that prohibited 

social or sexual relationships with informants. I find that just unbelievable because most law enforcement agencies had such a policy. I think if we would have had a strong policy, if we would have 

had some accountability and some good oversight, perhaps all of 

these additional things that later transpired wouldn’t have occurred. 

Whenever these things happen, it is just inevitable that sometimes it goes a little too far and we might have some additional 

paper that is——

Senator DEWINE. Let me ask you one last question. In your letter, you mentioned the problem that agents have with the perception that sometimes they try for a Title III warrant and then if 

that fails, go for a FISA warrant, which requires different proof but 

an easier standard. 

Let me ask this: Do you think that happens a lot? 

Ms. ROWLEY. No, I don’t. 

Senator DEWINE. Are these suspicions reasonable? 

Ms. ROWLEY. No, I don’t think it actually happens. In real life, 

I have never seen where you try for something to do it criminally 

and if you fail, you pursue the intelligence method. I have never 

seen that. 

But do I think that there is a perception out there sometimes? 

I do think that there is a perception that this smell test or whatever exists. I don’t think it is correct, but I think it does exist. 

Senator DEWINE. Thank you very much. We appreciate your testimony. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Kyl? 

Senator KYL. Thank you, Mr. Chairman. 

Agent Rowley, I had to leave to vote just as Senator Schumer 

was beginning to ask you a question that I wanted to ask you and 

it related to your answer to Senator Grassley’s question about the 

computers. I just want maybe a quick response. 

You had testified in response to Senator Grassley that it would 

be nice to have the new computers. I am not sure you wanted to 

leave us with the impression to mean nice as ‘‘nice’’ but not really 

necessary, and I just wondered if that was the impression you 

wanted to leave us with. If so, fine. I just wanted to give you a 

chance to respond. 

101

Ms. ROWLEY. Well, the ability to conduct research of our records, 

as I described, where you are putting words—just like you would 

on Lexis–Nexis, for instance, where you are putting connectors and 

stuff, I guess ‘‘nice’’ is not the word. 

When it comes to intelligence and you really have these critical 

snippets out there, it would be more than nice. I think it is necessary. It may not in other cases be all that critical, but in intelligence I think it is. 

Senator KYL. Thank you very much. I assume that most of us 

would agree with that. 

You had what I thought was a very interesting recommendation 

in your statement and you haven’t had an opportunity to discuss 

it yet. It is the public safety exception, the Quarles case, and I wonder if you would describe a little bit why you think that would be 

important, and particularly in the context of terrorism that we are 

concerned about here. 

Ms. ROWLEY. Thank you for giving me that opportunity. It is a 

little issue that has come up before. Actually, in criminal cases, we 

have had kidnappings, we have had cases where someone’s life can 

be right on the line, and there is a case that makes this really constitutional to—I shouldn’t say ignore Miranda, but disregard it, for 

public safety reasons. 

The only problem with that case is it deals with a loaded gun in 

a grocery store, and when you start mentioning applying it to other 

cases such as in a terrorism case when we might want to interview 

someone, there may well be—I always think of the bomb and someone ready to push it down. 

Obviously, Miranda is a safeguard, and it is a good safeguard in 

many cases, but it is like everything else. There may well be a time 

when it should be overridden, and that would be to save a life. As 

it stands now, there is a case about that, so it is constitutional and 

I think that it would not be overturned if a statute codifying it was 

enacted. 

The only problem with the case is, like anything else, it is just 

case law. In order to give timely advice to someone, you have got 

to run to a computer and pull it up, and I think that many people 

have kind of forgotten that case and many courts have actually 

limited it to its facts. So I think that we have cases that come up 

from time to time and——

Senator KYL. Do you think that we should at least try to write 

some kind of a narrow public safety exception? I mean, that was 

your recommendation. 

Ms. ROWLEY. I do. After September 11, I called some staffers 

about this because I think it is an important issue, and I think it 

definitely has the potential to repeat itself. You know, I know people will get alarmed if we say we are going to violate Miranda, but 

I don’t think it is something that comes up all the time, but there 

are these cases. The one I referred to is the most dramatic one. 

There is a baby in a duffel bag in a forest that has been kidnapped that morning, and that is the type of thing, of course, that 

doesn’t arise too often. But when it does, our agents really need to 

feel somewhat safe that they can proceed. 

Right now, after the Dickerson case, there are commentators that 

are speculating that civil liability exists for the agent. So, in addiVerDate 0ct 09 2002 15:07 Oct 06, 2003 Jkt 089324 PO 00000 Frm 00105 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\86517.TXT SJUD4 PsN: CMORC
102

tion to having the statement suppressed, which in a case like this 

really—if it is saving a life, we would—it goes back to prevention 

versus prosecution. We wouldn’t care about the prosecution, we 

wouldn’t care about the statement being suppressed. We would 

want to save the life. 

Senator KYL. They might even get sued. 

Ms. ROWLEY. Right. Now, the agent might even get sued, possibly. 

Senator KYL. Do you have to pay for your own liability insurance 

or umbrella coverage or anything of that sort? 

Ms. ROWLEY. It is my recollection that we get $50 reimbursed 

from the Department of Justice for our liability insurance. I think 

that is right. I am not sure. We get a portion of it. I think it is 

$50. 

Senator KYL. But a liability insurance policy that would protect 

agents working in the course of their employment would cost a lot 

more than $50. 

Ms. ROWLEY. A couple hundred, is it? I think it is around a couple hundred a year, and that kind of civil liability protection—you 

go back to your chilling factors. Agents don’t even want to be sued. 

It is like, you know, any other person. The suit itself is a real 

chilling factor of somebody aggressively trying to save a life. 

Senator KYL. I have been an advocate of trying to have the Government pay for the insurance for people who are working in the 

line of their duty. 

You testified earlier to something I thought was very important 

and it maybe didn’t quite receive the degree of attention that I 

think is warranted, and it had to do with the new guidelines. 

From your experience as an agent on the line—and you said you 

had also gone back and reviewed more historic documents in the 

course of your employment—you view these new guidelines as very 

helpful to doing your job and you indicated that you didn’t think 

the American people had to be fearful that they would be abused 

by the agents. You used the specific example of being able to go 

into meeting and if there were a discussion of threats of terror, 

then that would be very useful. And if there weren’t, then that was 

the end of it, is kind of the way you put it. 

Do you want to amplify on that at all, because I think this is a 

very important point for people to understand? 

Ms. ROWLEY. I think that when a certain guideline might be 

somewhat relaxed in this case—and, of course, Director Mueller 

has explained that surfing the Net is something any kid can do. 

Going into any meeting is anything local law enforcement or anyone can do. 

I think the real crux of it is in how it is done. We also have the 

ability to collect information. So just by undertaking to keep your 

ears open and walk into that meeting, and then if something does 

transpire you can act on it, that doesn’t mean we go overboard and 

start recording things and mishandle that ability. 

It really goes into the capability to use it, but judiciously, because I think it increases only the potential for—it does perhaps increase the potential of going further than we have before. I think 

we can have our cake and eat it, too, is what I am saying here. 

Senator KYL. With good training? 

103

Ms. ROWLEY. I think, with training, we can do these items and 

we still can avoid interfering with people’s rights. 

Senator KYL. I appreciate it very much. Thank you. 

Chairman LEAHY. Senator Sessions, the most patient man in 

Washington. 

Senator SESSIONS. Thank you, Mr. Chairman, and I think this 

has been a good hearing. 

Chairman LEAHY. I do, too. 

Senator SESSIONS. We have had a good, high level of discussion, 

witnesses talking about important matters. 

Agent Rowley, thank you for what you have done. I know it is 

an unusual thing, but it was an unusual circumstance. Before Director Mueller was confirmed, he and I talked. At his confirmation 

hearing, we talked and I asked him questions and they focused on 

the very things you raised in your memorandum. 

I raised questions concerning matters such as defensiveness on 

the part of the FBI, unwillingness to admit mistakes, some arrogance, too much bureaucratic blocking, particularly in Washington, 

that undermined the effectiveness of investigations in the field. I 

asked those questions based on my experience of 12 years as 

United States Attorney and 2 as an assistant United States Attorney. 

I believe that is consistent with the overwhelming view of Federal prosecutors throughout the system, and I believe, as you have 

noted, it is consistent with the views of the agents in the field. So 

to that extent, your letter and the public hearing that has come 

about here, I believe, will strengthen his hand in being able to 

make the kinds of cultural changes that need to be made. 

I love the FBI. I know you do, and so we want to see it reach 

its highest and best potential, not hurt it in any way. I think, in 

my own personal view, that we hurt the IRS. I think that it has 

been damaged by some of the things that were done. We don’t need 

to damage the FBI; we need to strengthen it and help it reach its 

fullest potential. 

But just back to this problem we were facing, it seems to me 

there is always a good excuse that the computer system wasn’t up 

to date. If you had been the point person to monitor the intelligence of the United States, wouldn’t you create a system in which 

important documents from the field would come to your desk personally within hours of the time they were sent forward? 

Isn’t it unwise or inadvisable, as apparently occurred with regard 

to the Arizona memorandum, that some clerk sent it off to a different section and it never even got to the supervisor there? Isn’t 

that a poor way to run a shop? 

Ms. ROWLEY. Well, as a general matter—I am not speaking to 

any particular case, but as a general matter, of course, it is obvious 

that we want the important items that need to be acted on to really 

get to the right place, and if we do have a focal point at a central 

location, it is very clear that they have to get that information. 

There is a problem when there is a lot of intelligence being gathered and the ability to distinguish the wheat from the chaff, and 

that isn’t easy when you first get this information. So that is, I 

think, one of the reasons for having an intelligence analysis where 

we can really attempt to get these important things that need to 

104

be acted on, as distinguished between something that is not so important. 

Senator SESSIONS. Yes. Well, I think Director Mueller’s new organization will do that, and I don’t think there is anybody there 

that is not going to be reading important documents from the field. 

I think those documents could have been recognized as being important before September 11, and I don’t think we can say with 

certainty, as you pointed out, that they could not have helped us 

avoid September 11. Probably not, but possibly. 

Ms. ROWLEY. Can I say one more thing, because I just thought 

of something? 

Senator SESSIONS. Yes. 

Ms. ROWLEY. You know, one way of recognizing importance really—and this can’t be overestimated—is the person who is experiencing first-hand the event. Okay, I am just going to speak generally, but if it is a flight instructor, or whatever it is, and this 

thing is real—that is not a good example, but I am just saying that 

somebody who is experiencing it first-hand many times is in the 

best position. It is not the person five levels up. What often happens is it gets lost in the translation. 

Senator SESSIONS. Absolutely, I agree. 

Ms. ROWLEY. The person here who sees it, feels it, eats it, really 

knows it is important. Someone further up the chain—and, again, 

the message by that time has maybe been diminished, or whatever—doesn’t recognize the importance. 

Senator SESSIONS. Let me ask you this: It is odd to me that the 

investigative agency, the agency designed to protect public safety—

and I have seen instances where this occurred in the Department 

of Justice and not just the FBI—they shouldn’t be negative about 

things that might impact public safety. They should be positive and 

help the people in the field succeed. Rather than putting down and 

throwing up roadblocks, they ought to be helping them, recognizing 

that you are onto something important, and maybe helping you legally or through intelligence searches around the country and the 

world, helping you to succeed. 

If the Department of Justice does not advocate and take it to 

court before a judge who has the final responsibility, who is going 

to advocate it? 

Ms. ROWLEY. Well, I had forgotten to mention a footnote in my 

letter about the judges. I think our system actually was originally 

designed to let a judge—it goes to Senator Schumer’s question, too. 

All these perceptions of where probable cause may lie—our system 

really was designed to let a judge make those determinations, not 

other levels before you even get to a judge. 

When in doubt, and especially when public safety is on the line, 

I think we need to let judges look at these things and then make 

their determination. In fact, I have heard from a prosecutor who—

you know, many prosecutors might be antithetic to, you know, even 

the second opinion idea. They may say, well, I don’t want anybody 

second-guessing me. But I have actually heard from a prosecutor 

about that point, about going—you know, when in doubt, take it to 

a judge. 

Senator SESSIONS. When lives are at stake. 

Ms. ROWLEY. Especially. 

105

Senator SESSIONS. This was not a minor matter. This was a matter that dealt with potential loss of life, and I think you should advocate. 

Now, you have expressed an opinion in your letter that there was 

clearly probable cause at some point before September 11. How 

confident are you of that? 

Ms. ROWLEY. I am not going to get into that because, of course, 

these issues are before the other Committee and I am just not 

going to comment at this time about it. 

Senator SESSIONS. Well, you say in your letter that probable 

cause existed, in your opinion. 

Ms. ROWLEY. That is correct. I actually did not——

Senator SESSIONS. Do you still stand by that, or was it a close 

call? 

Ms. ROWLEY. That letter—actually, the fact that everyone here 

is aware of that—I didn’t really know that would happen because 

I gave it to the Joint Intelligence Committee and I think I have to 

be very circumspect at this point because there are ongoing proceedings. 

Chairman LEAHY. I might say, Senator Sessions, we have made 

it very clear that Agent Rowley has been extraordinarily forthcoming, as has Director Mueller and his office. We did agree that 

we would be careful limiting it to issues that involve an ongoing 

case. 

Senator SESSIONS. I see. 

Chairman LEAHY. I would point out that some of the matters you 

are raising have been raised in Intelligence and we can provide you 

on a classified basis some of the material you are talking about. I 

would be happy to arrange that. 

Senator SESSIONS. I fully understand that, but I tend to be like 

Senator Specter. Sometimes, I think there are too many people in 

the system putting too many burdens that go beyond what the law 

requires and therefore making it difficult for public safety to be 

protected. 

Thank you. 

Chairman LEAHY. Thank you. 

I want to thank all Senators, both Republicans and Democrats, 

who have been at this hearing. From the time we started this 

morning, it has been about an eight-hour hearing. Ms. Rowley 

probably thinks it was even longer because she was watching the 

early hearing before. 

Agent Rowley, I have a feeling that you would much rather be 

in your office doing the things that you, from everything we have 

been told, do very, very well. But I appreciate your being here. I 

appreciate Director Mueller and Inspector General Fine for the 

amount of time they took. We have people like Mr. Collingwood 

who has sat through all of this patiently. 

These hearings, as both Senator Hatch and I have made very 

clear, are not ‘‘gotcha’’ hearings. These are hearings that we want 

to help. As I said earlier, terrorists don’t ask whether you are Republicans or Democrats, or where you are from, or anything else. 

They just strike at Americans, and all of us have a duty to protect 

Americans. 

106

We also have a duty to protect those things that have saved our 

own liberty. As I said earlier, Attorneys General come and go, Senators come and go, Directors come and go; we all do. The Constitution stays constant and we can protect ourselves within that framework. You are sworn to do that, and you have worked a long career 

upholding that oath and I admire you for it. 

[The prepared statement of Ms. Rowley appears as a submission 

for the record.] 

Chairman LEAHY. So I thank all of my colleagues. This is one of 

many hearings we have had. 

Senator Thurmond has a statement for the record and we will include it at this point. 

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

Chairman LEAHY. We will stand gratefully in recess. 

[Whereupon, at 5:35 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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