U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

53–619 PDF 2009

S. HRG. 110–939 

OVERSIGHT OF THE FEDERAL BUREAU OF 

INVESTIGATION 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 17, 2008 

Serial No. J–110–118 

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 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 71 

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

statement .............................................................................................................. 73 

August 7, 2008, letter ....................................................................................... 75 

September 10, 2008, letter ............................................................................... 78 

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

prepared statement .......................................................................................... 112 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 3 

WITNESSES 

Mueller, Robert S., III, Director, Federal Bureau of Investigation, Washington, D.C. ........................................................................................................... 5 

QUESTIONS AND ANSWERS 

Responses of Robert S. Mueller to questions submitted by Senators Schumer, 

Grassley, Cardin ................................................................................................... 41 

SUBMISSIONS FOR THE RECORD 

Mueller, Robert S., III, Director, Federal Bureau of Investigation, Washington, D.C., statement ........................................................................................ 115 

(1) 

OVERSIGHT OF THE FEDERAL BUREAU OF 

INVESTIGATION 

WEDNESDAY, SEPTEMBER 17, 2008 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 9:31 a.m., in room 

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

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feinstein, Feingold, Durbin, Cardin, 

Whitehouse, Specter, Hatch, Grassley, Kyl, and Sessions. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. We are gathering today on 

Constitution Day. It is the 221st anniversary of our Nation’s founding charter, and it is fitting that we continue our oversight of the 

Department of Justice today. And so we are going to examine the 

effectiveness of the Federal Bureau of Investigation in carrying out 

what we all agree is a critical role and responsibility in keeping us 

secure while at the same time upholding the rule of law. And we 

welcome back the FBI Director, and we thank the hard-working 

men and women of the FBI for upholding their motto: Fidelity, 

Bravery, and Integrity. 

I want to thank the Director for joining me in Vermont last 

month where together we visited the Joint Terrorism Task Force 

and the Internet Crimes Against Children Task Force based in 

Burlington, Vermont. We talked with members of the Federal, 

State, and local law enforcement organizations who work cooperatively on these task forces. They are working every day to keep us 

safe from terrorists and also to keep our children safe from those 

who would do them harm, and we appreciate it. And, Director, I 

thank you for going over and complimenting the men and women 

who work on those task forces. I know it meant a lot to them. 

In commemorating the 100th anniversary of the FBI earlier this 

year, Director Mueller said: ‘‘It is not enough to stop the terrorist— 

we must stop him while maintaining his civil liberties. It is not 

enough to catch the criminal—we must catch him while respecting 

his civil rights. It is not enough to prevent foreign countries from 

stealing our secrets—we must prevent that from happening while 

still upholding the rule of law. The rule of law, civil liberties, and 

civil rights—these are not our burdens. They are what make us 

better. And they are what have made us better for the past 100 

years.’’ 

2 

I agree. I was so impressed with the speech, I then put it into 

the Congressional Record and referred to it on the Senate floor. 

And this oversight, of course, is making sure that the FBI carries 

out its responsibilities while maintaining the freedoms and values 

that make us Americans. 

We learned last month that the Attorney General was planning 

to revise the guidelines for the FBI’s investigative activities. Allowing the FBI authority to use a vast array of intrusive investigative 

techniques with little or no predicate facts or evidence raises concerns and may potentially lead to the kinds of abuses we have seen 

with national security letters and with other vast grants of authority with minimal checks in the past. 

Senator Specter and I requested a delay in the approval and implementation of the Attorney General’s new guidelines. The Department of Justice only agreed to a limited delay and pointed to 

today’s oversight hearing as a key opportunity to explore questions 

or concerns—somewhat difficult to do because the Attorney General has refused to provide us with copies of the proposed guidelines. Senator Specter and I sent another letter to the Attorney 

General last week. We requested that the Committee be provided 

copies of the proposed guidelines in advance of today’s hearing in 

order to allow for a meaningful exchange with the Director on this 

issue. The Department again said no, indicating that they could not 

share guidelines that have not been finalized. 

I remember as a young man enjoying reading Joseph Heller’s 

novel ‘‘Catch-22.’’ I suspect the Attorney General has read the same 

book because his response is right out of ‘‘Catch-22.’’ He is saying 

he cannot give us copies of the proposed guidelines until they are 

finalized, but, of course, once they are finalized they are no longer 

proposed and subject to change. 

Also impairing our ability to make progress today is the administration’s refusal to cooperate in oversight. As of yesterday morning, 

we still had not received the answers to our questions from our last 

oversight hearing with the FBI Director last March. Those questions have been pending more than 6 months, with the Department 

of Justice holding up the answers. 

Now, even as we try to get a handle on the administration’s latest expansion in the FBI’s investigative authority, we are reminded 

of the problems that followed other recent expansions. Last month, 

Director Mueller apologized for the misuse of ‘‘exigent letters,’’ in 

violation of the law, to obtain phone records from reporters. I am 

hoping that you will be able to assure us, and the Inspector General will confirm, that appropriate steps are made to prevent such 

abuses in the future. 

I am glad that we finally are going to be hearing of progress in 

getting through the backlog in the FBI’s name checks for citizenship. I hope we will be able to go through those because, otherwise, 

we are going to have a whole lot of people who are going to get 

their final citizenship right after the election and too late to do the 

cherished part of a new citizen—that is, to vote in this country. 

We have to work together to ensure that adequate resources are 

being dedicated to investigating public corruption and corporate 

fraud—types of crime that the FBI is uniquely suited to invesVerDate Nov 24 2008 11:11 Dec 09, 2009 Jkt 053619 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53619.TXT SJUD1 PsN: CMORC
3 

tigate. They have to be comprehensively prosecuted to restore the 

public’s faith in our Government and most recently in our economy. 

I am also concerned that the FBI’s Cold Case Initiative has not 

led to a single prosecution for Civil Rights Era crimes, and I look 

forward to a response on that. 

In the area of violent crime, despite modest progress last year 

following several years of increases in crime, crime rates have remained essentially stagnant in this decade after years of consistent 

and substantial declines in crime in the 1990s. This is an area in 

which Senator Biden has raised a number of questions, and I hope 

the Director will join me and Senator Biden and others in supporting State and local law enforcement and collaborative efforts 

directly involving our communities in combating violent crime. 

I do applaud the Director’s efforts to recommit the FBI to its best 

traditions. I would say he is doing that through his personal example and leadership. I appreciate the openness to oversight and accountability. I wish the rest of the Department of Justice would do 

that. 

I should also say that there will be questions here about the biological weapons that were used on the American people and the 

Congress in the fall of 2001. Biological weapons used on the Congress and the American people. It is still a matter of great concern 

not just to me as one who was the object of one of those attacks, 

but it should be a concern of all American people that are on our 

soil. Biological weapons were used to attack us. 

Senator Specter. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. 

I begin this oversight hearing, as I always do when Director 

Mueller appears, by thanking him for his service—a very distinguished public servant. Notwithstanding that, there is a certain 

tension between the legislative branch on oversight and the executive branch, and we have a number of serious questions to take up 

today. And I begin with the new guidelines and note the tremendous, tremendous difficulty this Committee has had on discharging 

its oversight function because the executive branch does not make, 

in my judgment, appropriate disclosures to this Committee. 

So I begin with a substantial amount of skepticism when I look 

at your new regulations—regulations which say the traditional 

standard for having a reason or a predicate for an investigation 

will not be undertaken, so that an agent on his or her own can 

start an investigation without any significant reason or basis for 

starting the investigation such as an anonymous tip, which we 

know cannot be relied upon for personal reasons often made. 

We have had in the past couple of days further information about 

what happened with the incident when White House officials went 

to the hospital bed of then Attorney General Ashcroft to try to get 

a certification for the warrantless wiretapping program, and that 

whole episode is a very, very unsatisfactory episode in the relations 

between congressional oversight and the executive branch. 

Senator Leahy, as Ranking Member then, and I as chairman 

were never told about the warrantless spying program, although it 

4 

was, I think, fairly stated, the obligation of the executive branch 

to do so. And the specific statutory provisions were violated in the 

Foreign Intelligence Surveillance Act and the National Security Act 

of 1947, which required the Intelligence Committees to be told. And 

then sitting at that desk in early January of 2005, Attorney General Gonzales said that he would authorize the former Attorney 

General John Ashcroft to tell this Committee what happened on 

that incident, which we knew almost nothing about. And between 

the time the Attorney General made that commitment and I as 

Chairman contacted Mr. Ashcroft, the approval was withdrawn. 

And only lately has it come out what happened. Really a disgraceful episode in the effort by White House officials to get the Attorney General to certify that program of very dubious constitutionality. 

So when we are looking at new standards, Director Mueller, I approach them very skeptically. What might seem like a minor matter to some is the inquiry which I have made as to what happened 

on the leak of information from the FBI and the glare of publicity 

on Congressman Curt Weldon a few days before his reelection effort in 2006. And notwithstanding repeated efforts by me to get the 

information from you, it was not forthcoming. And, finally, you 

punted to the Attorney General, and I cannot get the information 

from him. It is a full-time job to pursue the executive branch on 

a relatively—well, no matter is minor when you have a Congressman involved, or any citizen involved, and there is an FBI leak and 

the reporters are there before the agents get there, and it is a few 

days before his election, which cost him the election. What happens? 

The Congressional Research Service has provided an extensive 

analysis of the oversight authority of Congress, and that is, to have 

access to information even on pending investigations to talk to line 

attorneys and to talk to agents, and official who has come before 

this Committee, the prior Attorneys General and Deputy Attorneys 

General committed to that proposition. You were confirmed, Director Mueller, before I was Chairman or Ranking and did not extract 

that commitment from you. But that commitment is applicable to 

you as well. It is the law on congressional oversight. But it is 

tougher than pulling teeth to get the information. It requires fulltime pursuit. And I still have not gotten an answer to what happened on that FBI leak with respect to Congressman Weldon. 

So when I look at these guidelines, I am very skeptical. And subpoenas are issued. You cannot run Government on separation of 

power without good faith among the branches. And you cannot pursue the matters to the courts to have them adjudicate disputes between the legislative and executive branches. But that is what it 

has come to. And those disputes will be decided goodness knows 

when. 

So there a lot of questions which remain to be answered, Director 

Mueller, and when you and I talk privately, as we frequently do, 

you are a frequent flyer, a frequent guest in my office, and conversations are always satisfactory. But there is not much followup. 

And I know that you are under a lot of constraints when you are 

a participant in that visit to Ashcroft’s hospital room. But I think 

5 

you should have told us about that, and I am going to come to that 

when we come to the Q&A. 

Now for just a moment or two on the anthrax investigation, lots 

of questions are unanswered. Dr. Ivins got a letter on April 9th of 

2007 that he was not a target, and then a warrant to search his 

home and cars was issued a few months later on October 31st of 

the same year. Well, what happened? We do not have any idea as 

to what happened in the interim. 

According to the October 31, 2007, affidavit, there was a contaminated mailbox with human Caucasian hairs. Well, why wasn’t 

there DNA on Dr. Ivins until a few days before he committed suicide? The DNA was not requested, the swabbing, until July 23rd 

and 24th. And what is the situation between the October 31, 2007, 

affidavit for probable cause for a search warrant and proof beyond 

a reasonable doubt, which you came to later? And was the anthrax 

weaponized—that is, engineered to make it more deadly—or not? 

And how do you have an investigation where you come to the conclusion as to who the culprit is when the investigation is still ongoing? How do you do that? 

It is highly unusual to charge somebody after they are dead? 

There is no opportunity to defend themselves in a court. But I can 

understand with the high visibility of this anthrax investigation 

that it is an unusual circumstance which may—and I emphasize 

the word ‘‘may’’—justify breaching that rule of not charging somebody after they are dead when they do not have an opportunity to 

defend themselves. 

But there are just so many questions which remain unanswered, 

and I thank you for the briefings. You have been very forthcoming 

on the briefings, even though they are very problemsome from the 

point of view of your Bureau. And I know you have a dual responsibility to protect your Bureau, which I respect, and also a responsibility to be forthcoming. And I note in the House hearing yesterday 

you committed to an independent inquiry, and when the time 

comes to ask a question or two, I am going to ask you if you would 

permit this Committee to make a designation to sit on that committee—not that we have any doubt as to the objectivity of your selections, but a little oversight would not do any harm. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Director Mueller, would you please stand and 

raise your right hand? Do you solemnly swear that the testimony 

you give in this matter will be the truth, the whole truth, and 

nothing but the truth, so help you God? 

Mr. MUELLER. I do. 

Chairman LEAHY. Thank you. 

Director, before we go to questions—and we will have a number 

of people here—please go ahead and give your opening statement? 

STATEMENT OF ROBERT S. MUELLER, III, DIRECTOR, 

FEDERAL BUREAU OF INVESTIGATION 

Mr. MUELLER. Thank you, Chairman Leahy and Senator Specter 

and other members of the Committee, for having me here today. 

When I have come before this Committee in the past, I have discussed the FBI’s transformation and I have recounted our many 

improvements and accomplishments. But marking milestones is 

6 

about more than looking backward; it is also about looking forward. 

And so today I want to—in understanding and anticipating the 

questions, I do want to spend a moment focusing on what the FBI 

is doing—and will continue to do—in order to ensure that we can 

serve the American public for the next 100 years. And in the interest of time—and I know you wish me to keep this short—I will 

focus on four specific areas: first is intelligence, second is technology, third, briefly, human capital, and then the Attorney General guidelines. And by giving attention to these and similar areas, 

we will be prepared to confront the threats of the future, from 

mortgage fraud to terrorism and from crimes against children to 

violent gangs. 

First, intelligence. Intelligence is crucial to every investigation 

and operation the Bureau undertakes. The FBI has always excelled 

at gathering intelligence, even if we did not always call it that, and 

using it to build cases that led to courtroom convictions. After the 

September 11th attacks, we realized that we also had to strengthen 

our intelligence analysis and sharing. 

I have discussed our efforts in great detail in the past, from 

ramping up hiring and training of intelligence analysts to establishing the Directorate of Intelligence and the National Security 

Branch at headquarters. But intelligence gathering does not happen at headquarters; it happens out in the communities we serve. 

And so each field office established a Field Intelligence Group, 

made up of agents, analysts, linguists, and surveillance specialists. 

These are the operational arms of our intelligence program, and 

crucial to their efforts are our partnerships with Federal, State, 

and local agencies. 

Their work is not limited to counterterrorism threats. For instance, field offices near research universities or defense contracting firms are also focusing on potential espionage or proliferation threats. Offices along the Southwest border are focusing on 

violent transnational gangs. And our offices around the country 

from large cities to rural areas are concerning themselves with violent crime. 

To accelerate improvements to our intelligence capabilities, we 

have established a Strategic Execution Team to help us assess our 

intelligence program, evaluate best practices, and decide what 

works and what does not work, and then standardize it across the 

Bureau. That effort continues and has been integral to the FBI’s 

effort as a full partner in the wider intelligence community. 

Second, we have made substantial progress in replacing and 

transforming the FBI’s information technology systems to help us 

confront current threats and mission needs. Sentinel, a web-based 

case management system designed to support both our law enforcement and intelligence mission, is progressing on time and within 

budget. And the first phase was successfully deployed in June, and 

the remaining phases will continue to deliver additional capability 

through the end of the program in the summer of 2010. 

We have expanded our desktop Internet access to over 19,000 

agents, analysts, task force, and support personnel. And when completed, we anticipate approximately 39,000 Internet desktops will 

have been deployed at all FBI locations. We have added and deployed over 20,000 BlackBerrys that have e-mail, Internet browsVerDate Nov 24 2008 11:11 Dec 09, 2009 Jkt 053619 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53619.TXT SJUD1 PsN: CMORC
7 

ing, and custom features to FBI personnel around the world. And 

we are deploying other information technology systems that will 

dramatically enhance our ability to efficiently carry out our mission. 

Third, as you know, we have been hard at work continuing to 

build a strong human resources program to ensure we have optimal 

recruiting, hiring, training, and retention of our employees. 

Historically, the FBI has attracted recruits from the law enforcement, legal, and military communities, particularly to fill our special agent ranks. And this has served us well as a law enforcement 

agency. We have developed into a national security organization, 

and also we require employees with specialized skills—intelligence 

analysts, scientists, linguists, and computer experts. 

We are also strengthening our relationships with universities as 

a primary source of recruiting individuals who want to build a career in national security at the FBI. 

Fourth, while our employees are collecting, analyzing, and sharing intelligence under an improved internal framework, they will 

also be operating under new intelligence investigative guidelines. 

I would like to spend a few moments discussing the new Attorney General guidelines for domestic FBI operations which are in 

the process of being finalized and which have been briefed to your 

staff. With the input of this Committee, it is my hope and expectation that we can make these guidelines effective for agents operating in the field in the near term. 

Up to now, special agents have depended on several sets of 

guidelines to guide their investigations. Each set was tailored to a 

particular program area and, therefore, different rules govern different types of investigations. These differences were especially 

pronounced for national security investigations versus criminal investigations. 

To give you a few examples, the guidelines governing national security investigations prohibited recruiting or tasking sources unless 

the FBI had at least a preliminary investigation open. They also 

prohibited physical surveillance other than casual observation. The 

general crimes guidelines, on the other hand, which governed other 

criminal investigations, did not contain these limitations. And so, 

ironically, in many cases an agent could readily use physical surveillance to watch a suspected smuggling route for drugs or counterfeit blue jeans. He could not do so for a terrorist carrying a 

bomb. 

In the past, these rules may have been sufficient and appropriate 

for the threats they were meant to address. But criminal threats 

and national security threats do not fall neatly into separate categories. 

The threat of today, and of the future, is a dangerous convergence of terrorists, hostile foreign governments, and criminal 

groups operating over the Internet and through interconnected sophisticated networks. We may see organized crime laundering 

money for drug groups, drug groups selling weapons to terrorists, 

terrorists committing white-collar fraud to raise money for their operations, and, most threatening of all, hostile foreign governments 

arming terrorists with an arsenal of biological, chemical, or radioVerDate Nov 24 2008 11:11 Dec 09, 2009 Jkt 053619 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53619.TXT SJUD1 PsN: CMORC
8 

logical weapons. Different rules should not apply depending on how 

the agent decides to describe what he or she is investigating. 

I must emphasize that the new guidelines are not designed to 

give the FBI any broad new authorities. The guidelines remove the 

last vestige of the walls separating criminal and national security 

matters. They will replace five separate sets of guidelines with a 

single uniform set of rules to govern the domestic activities of our 

employees. They set consistent rules that apply across all operational programs, whether criminal or national security. And they 

will give us the ability to be more proactive and the flexibility to 

address complex threats that do not fall solely under one program. 

And they will eliminate virtually all inconsistencies that have the 

potential to cause confusion for our employees. 

Several bipartisan commissions, as well as the Congress and the 

American people, have asked and expect the FBI to be able to answer questions such as: Are there sleeper cells in this country planning attacks like those our international partners in London and 

Spain have suffered since September 11th? In order to answer 

these questions, the FBI has to expand its intelligence collection 

beyond that which is collected as part of predicated investigations. 

It must examine threats in a proactive fashion and not simply rely 

on information that is provided to us. 

We have asked our employees to think proactively about the 

threats and vulnerabilities in their areas of responsibility, and our 

employees are up to the task. But they need consistent, clear guidelines that do not vary based on whether they are facing a threat 

from MS–13 or from Hezbollah. 

The FBI has the responsibility, indeed the privilege, of upholding 

the Constitution. We know that if we safeguard our civil liberties 

but leave our country vulnerable to terrorism and crime, we have 

lost. If we protect America from terrorism and crime but sacrifice 

our civil liberties, we have lost. And we are always mindful that 

our mission is not just to safeguard American lives, but also to 

safeguard American liberties. We must strike the appropriate balance at all times. 

Mr. Chairman, on a side note, I am certainly aware of the 

public’s interest as well as the interest of this Committee and Senator Specter and others as well as yourself in the anthrax investigation. And as you know, the Department of Justice and the FBI 

do not typically publicly disclose evidence against a subject who 

has not been charged, in part because of that presumption of innocence afforded an accused. Because of the extraordinary and justified public interest and with special concern for the victims of the 

2001 anthrax mailings, we, the Department of Justice, and the 

United States Postal Service briefed the victims, Members of Congress, and the media to provide information unsealed by the district court after the person we believe was responsible for the attack. This included information about science developed during the 

investigation and that was central to the ultimate focus of the case 

on Dr. Bruce Ivins. The science employed was developed and validated throughout the investigation with the help of more than 60 

outside experts and researchers. Nevertheless, because of the importance of the science to this case and to future cases, we have 

initiated discussions with the National Academy of Sciences to unVerDate Nov 24 2008 11:11 Dec 09, 2009 Jkt 053619 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53619.TXT SJUD1 PsN: CMORC
9 

dertake an independent review of the scientific approach used during the investigation. 

Chairman LEAHY. OK. Let me interrupt that point. And I have 

been very reluctant to even ask questions about this because my 

office and myself were put at risk in a letter that was addressed 

to me. And I realize we did not suffer like the families of those who 

had people die. But it is a matter I have thought about throughout 

this time. 

I have watched your testimony. You briefed me in Vermont. I 

have read the material. These weapons that were used against the 

American people—and they are weapons. They are weapons, the 

weapons that were used against the American people and Congress. Are you aware of any facility in the United States that is capable of making the weapons that were used on Congress and the 

American people besides Dugway Proving Ground, Utah, or the 

Battelle Facility in West Jefferson, Ohio? Are you aware of any facility in the U.S. capable of making these weapons other than those 

two? 

Mr. MUELLER. In the course of the investigation, we determined 

that there were 15 laboratories in the United States and we also 

identified three laboratories overseas that had this particular virulent strain of Ames anthrax. 

Chairman LEAHY. Are there any facilities capable of making the 

weapons used in the United States other than Dugway Proving 

Ground or the Battelle Facility in West Jefferson, Ohio? 

Mr. MUELLER. I do believe there are others, and amongst those 

would be those that have this strain of anthrax. 

Chairman LEAHY. So there are more than just these two places 

that are capable of making the weapon? 

Mr. MUELLER. I would have to get back to you because I have 

not asked that particular question. But my expectation is that 

there are others who do the research in these facilities that have 

that capability. 

Chairman LEAHY. At some point we are going to take a break in 

here, because of either votes or otherwise. During that break, 

please get me the answer to that, because I know of none besides 

Dugway and Battelle. If you know of others before we close the 

hearing today, give me the names of those others that could make 

this weapon used on Congress and the American people. And I ask 

this because I am also aware of the article on September 4, 2001, 

before this, in the New York Times when they said, ‘‘Over the past 

several years, the United States has embarked on a program of secret research in biological weapons. Even the Clinton White House 

was unaware of their full scope. The projects, which had not been 

previously disclosed, have been embraced by the Bush administration, which intends to expand them.’’ That was September 4th. The 

attack was on September 11th. The weapons used against the 

American people and Congress and this Senator were just after 

that time. 

I apologize to my colleagues for interrupting at this point, but 

when we have a break, double-check that and tell me if there are 

any others besides Dugway and Battelle. 

Mr. MUELLER. I will do that, sir. 

Chairman LEAHY. Thank you. 

10 

Mr. MUELLER. Let me finish up, Mr. Chairman, with a comment 

in light of the headlines over the last several days describing the 

turmoil in the financial markets. I do want to take a moment to 

mention our activities in response to the subprime mortgage crisis. 

And I do want to assure this Committee that although we have 

over 1,400 open cases and almost 500 convictions in just the past 

2 years, just like in the S&L crisis of the early 1990s as well as 

the corporate excesses at the beginning of this decade, the FBI will 

pursue these cases as far up the corporate chain as is necessary to 

ensure that those responsible receive the justice they deserve. 

And, with that comment on that crisis, sir, I would be happy to 

answer any questions you might have. 

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

for the record.] 

Chairman LEAHY. Well, thank you, and as I told the distinguished Senator from Pennsylvania, I think that is a matter of 

some—OK. You have commented on the corporate scandals like 

those of Enron and WorldCom. And do I understand from you that 

there will be investigations and you will carry out investigations 

regarding possible fraud or lawbreaking in those areas? 

Mr. MUELLER. Yes, we have. As I indicated, we have more than 

1,400 investigations ongoing into brokers, appraisers, buyers, lenders, but we also have 24 investigations looking at the larger corporations who may have engaged in misstatements in the course 

of what transpired during this financial crisis. 

Chairman LEAHY. And I ask this because, obviously, everybody 

is concerned where the U.S. Government is on the hook for anywhere from $800 billion to $1 trillion. It is almost as much as we 

spent in the Iraq war. And if people were cooking the books, manipulating, doing things they were not supposed to do, then I want 

people held responsible. And I suspect every American taxpayer— 

I do not care what their political background is—would like them 

held responsible. And this Committee will keep in touch with you 

to find out just what is happening on that. 

Now, in your testimony about the Attorney General’s proposed 

new guidelines, you stated that the new guidelines are not designed to give and do not give the FBI any broad new authorities. 

Now, we are unable to get a real careful review of that because, 

notwithstanding the Department of Justice saying we were briefed, 

we have not been. They have refused to share copies with us. It has 

been as superficial a briefing as possible. But based on the limited 

review that we were permitted, I was surprised by your statement. 

Under the proposed guidelines—and you and I have discussed this 

privately in some lesser detail, but line FBI agents would now be 

able to use several new intrusive techniques in national security 

investigations and the threat assessment level, 24-hour surveillance, so-called pretext interviews, in which agents can misrepresent who they are while questioning people, recruiting sources to 

cover information about American citizens. Now, there is no predication, there is no evidence or factual basis that would be required 

for the FBI to conduct an assessment and use techniques. The 

guidelines do not require any supervisory approval. An FBI agent 

on his own could just go off and do this. They impose no time limit. 

11 

It seems like a very broad, new authority in the national security 

area. 

Is it true there is no requirement under the proposed guidelines 

for anyone at FBI headquarters to approve a threat assessment 

and the techniques available for one? 

Mr. MUELLER. Well, let me start by giving, if I could, an example, which I did mention yesterday. In terms of these techniques, 

if we got word from—it can be an anonymous e-mail that there was 

drug trafficking at a bar in a particular area, under the criminal 

rules we could establish a surveillance to determine whether or not 

that occurred, send an agent in in an undercover capacity, or recruit sources to do that. 

If that same e-mail came in and said that Hezbollah was recruiting individuals, or al Qaeda, we would be barred from doing that. 

The only thing we could do under the current national security 

guidelines is go in as an FBI agent and announce ourselves as an 

FBI agent and followup on it. It does not make any sense. 

Another example that— 

Chairman LEAHY. Let’s just back up a little bit on this. Let us 

say you just have a brand-new agent and he sees somebody driving, and he looks and he does not like what they had on as a bumper sticker on the car, and he says, ‘‘Boy, this guy might be a threat. 

That does not sound like something that I think is very pro-American.’’ And he opens an investigation all by himself. He does all the 

other things that can be done on this with checking out everything 

from employers on through. And nobody—he does not have to get 

anybody to sign off on that. Shouldn’t there be somebody in the supervisory level to them—nobody is asking us not to investigate possible terrorist threats. But you know and I know what happens if 

you get a brand-new agent who may just go off on their own. We 

saw this happen in the national security letters where they were 

issuing thousands upon thousands of this, where they were getting 

people’s records and business records and everything else saying, 

‘‘Don’t worry. There is going to be a subpoena coming.’’ Of course, 

no subpoena came. People’s lives were disrupted, their businesses 

were disrupted. Their employers were looking and wondering, 

‘‘Why are you under suspicion?’’ And then they say, ‘‘OK, now I am 

going to off to some other detail. I will just put that in my desk 

and go.’’ 

Shouldn’t somebody be in the loop? 

Mr. MUELLER. Well, in the course of the opening of that, it would 

be reviewed by a supervisor and assigned to that or some other 

agent. Also, in the internal guidelines of the Bureau, there would 

be a 30-day review of that. There would— 

Chairman LEAHY. But there is nothing in these new guidelines? 

Mr. MUELLER. Well, not in the guidelines, but in our policies 

within the Bureau that supplement the guidelines. 

Chairman LEAHY. Which trumps? 

Mr. MUELLER. Well, within the Bureau it is our policies that 

trump. In other words, there is a framework in the guidelines, 

which has always been the case, and then we have to implement 

them through policies. In a sensitive matter, for instance, whether 

it relates to a political or a religious organization and an individual 

wants to do an assessment, there is a specific requirement that 

12 

that go through the Chief Division Counsel, it goes through the 

SAC, and there be notification to headquarters. So there is a regime that we are establishing to flesh out the framework of the 

guidelines. 

Chairman LEAHY. OK. Well, we will go back to that, because I 

want to know just what those—exactly how that works, because as 

you know, the concern we had on the exigent letters and the concern you expressed when this became public. 

Mr. MUELLER. Yes. 

Chairman LEAHY. I have also been concerned about the length of 

time many of the FBI name checks have been pending. I have 

raised this with you or raised it with Secretary Chertoff. Last summer, the Department of Homeland Security failed to recognize the 

perfect storm headed their way: an upcoming national election, you 

have the failure of comprehensive immigration legislation, you 

have stepped-up enforcement activities by ICE, a widely reported 

fee increase at USIS. And DHS was still unprepared to handle the 

volume of applications. So you have thousands of people that want 

to become U.S. citizens, who look at this country and say, ‘‘Here 

is a place where I can actually elect my leaders, and they are not 

appointed.’’ And they are told, ‘‘Gosh, even though you have got 

your applications in in plenty of time, we are not going to process 

this until after the election.’’ And these are people who have been 

lawful residents here for years, paid taxes and so on. They have 

earned the privilege to become citizens. Are we going to meet the 

deadline to process these pending applications? Some are over 2 

years old. 

Mr. MUELLER. What I can tell you is that when we had the backlog, recognized it, we sought the funding, received the funding to 

address the backlog. We have taken a number of steps. We have 

raised fees, revised the criteria, prioritized the workload, and hired 

over 200 contractors, which means that in July of this year, we had 

eliminated the backlog of individuals whose requests had been 

pending longer than 2 years. And by November of this year, we will 

have eliminated the backlog of requests that have been pending 

more than 1 year. 

Now, I do not know whether it is going to be exactly by November 4th. They say by November of this year, and we actually have 

been ahead of our schedule. 

Chairman LEAHY. USIS says there are 10,000 names still that 

have not been checked. 

Mr. MUELLER. I would have to check that figure, sir. And I can 

tell you that by June of next year, 98 percent of all the background 

checks will be accomplished within 30 days. There will always be 

a few that take longer because we have paper records. We have 

miles and miles of records. And to the extent that we do a search 

of a particular file, we digitize it, but we have a number of files 

that have not been digitized. And so there will always be some 

delay on a very, very small percentage of those requests. 

Chairman LEAHY. Again, we will go back to that, because it is 

not as though the election date is a surprise date. 

Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman. 

13 

Very briefly on the anthrax issue, because there are so many 

other subjects to be covered, did you personally review the evidence 

and come to the conclusion that there was proof beyond a reasonable doubt as to Dr. Ivins’ guilt? 

Mr. MUELLER. Yes. 

Senator SPECTER. With respect to the hairs which were found on 

the contaminated mailbox, identify in the affidavit of October 31, 

2007, why was there no request made as to swabbing Dr. Ivins for 

DNA until very close to the time he committed suicide? 

Mr. MUELLER. I do not know the answer to that. I would have 

to get back to you, Senator. 

Senator SPECTER. I am going to send you a letter, Director 

Mueller, setting forth a number of questions in this area, so I 

would ask you to get back to me there and on the other items. 

When do you anticipate designating an independent group of experts to review the anthrax issue? 

Mr. MUELLER. We have been discussing it for several weeks, and 

I believe a letter is going to be sent either this week or next week. 

But I will tell you that we are not going to be—we are asking the 

National Academy of Sciences to identify the experts to serve on 

the panel. We will have no role in selecting those experts. 

Senator SPECTER. Would you commit to allowing this Committee 

to designate members of that group? 

Mr. MUELLER. I would have to consider that. What I can do is 

give you a copy of the letter that we sent to—that we are or will 

be sending to the National Academy. 

Senator SPECTER. What is there to consider, Director Mueller? 

We would like to have the authority to name some people there to 

be sure as to its objectivity. We are not interlopers here. This is 

an oversight matter. What is there to consider? 

Mr. MUELLER. I am not familiar with how the Academy of 

Sciences does these reviews, whether they have some restrictions 

themselves. And I have to get the input from the Department of 

Justice as well. 

Senator SPECTER. OK. Suppose this Committee decides we want 

to have an independent group. Would you commit to turn over all 

the evidence for oversight to our independent group? If we cannot 

designate a couple of members, maybe we will just pick a group. 

Mr. MUELLER. Well, I am absolutely open to third-party review, 

particularly when it comes to the science. 

Senator SPECTER. I am not talking about third-party review. I 

am talking about the Judiciary Committee of the U.S. Senate— 

Mr. MUELLER. I understand that. 

Senator SPECTER.—which has a constitutional responsibility and 

authority for oversight. And I am asking you for a commitment to 

let this Committee participate in the designation of this objective 

group. 

Mr. MUELLER. To the extent that the rules of the science allow 

that to happen, I have no objection to that request. 

Senator SPECTER. Well, that is not far enough, but that is as far 

as I am going to go at the moment. 

Now on to these new guidelines. It was only as a result of the 

Inspector General’s investigation which this Committee mandated 

in the law in the PATRIOT Act that we found out about the misuse 

14 

of the exigent letters supposed to be sent only when there were, as 

‘‘exigent’’ says, exigent or unusual circumstances. The Inspector 

General said, ‘‘The FBI used the exigent letters in non-emergency 

circumstances, failed to ensure that they were duly authorized investigations to which the requests could be tied.’’ 

Now, in light of that very serious problem, why should we give 

you more powers, Mr. Director? 

Mr. MUELLER. Well, as I indicated before, it is not new powers. 

It is the internal guidelines related to the techniques we can use 

at various stages of the investigation. 

Senator SPECTER. Well, you are taking— 

Mr. MUELLER. Going back to the question that you asked, we 

have taken steps since we understood the problems with the national security letters to assure that not only that we have procedures in place, but that also we have a compliance program to 

make certain that we are following those procedures. And that 

compliance program is a new office that we have set up to assure 

that where there is a legislative or other internal responsibility 

that we adhere to— 

Senator SPECTER. I have got less than 3 minutes left. I have got 

to move on. We understand your assurances. We have heard them 

before. And that is why we are skeptical. 

Let me go to the issue as to what you conceive your responsibility to report to this Committee when we do not know something. 

On December 15th, I was managing the PATRIOT bill in response 

to your personal request for more authority. And we were in the 

final stage and were going to go to final passage. And that morning 

the New York Times published a story disclosing that this 

warrantless wiretap program was in existence and just knocked 

that effort into a cocked hat. And Senators said on the floor, ‘‘We 

are about to support this PATRIOT Act. Now we found out about 

this secret warrantless wiretap program.’’ Why didn’t you inform 

me as Chairman and Senator Leahy as Ranking Member about the 

existence of this program? 

Mr. MUELLER. Senator, it is a highly classified program. And, 

second, it was not our program. And, third, my understanding was 

that Congress had been briefed on the program and was continuously being briefed on the program. 

Senator SPECTER. Well, you did not make an inquiry of me as 

Chairman or Senator Leahy as Ranking as to whether we had been 

briefed. We are the principal oversight officers for the FBI, and you 

knew about the program. And it is more than first cousin; it is a 

twin brother on your work in intelligence and security matters. 

Why weren’t we briefed? 

Mr. MUELLER. Because I believed that Congress was appropriately briefed—that was what I was led to believe—in the appropriate committees, which would have been in this case— 

Senator SPECTER. Well, let’s shift over to the National Security 

Act of 1947. You did know that that Act required Intelligence Committee members to be briefed. And you did know that the Intelligence Committees had not been briefed. Why didn’t you report 

that? 

Mr. MUELLER. I was of the belief that those who should be 

briefed in Congress were being briefed. 

15 

Senator SPECTER. Well, Director Mueller, I do not consider that 

an adequate answer. You and I talked too often for you not to use 

the occasion sometimes to say, ‘‘Arlen, you have been briefed on 

this top secret program.’’ You did not know whether or not I had 

been briefed or Senator Leahy had been briefed. Don’t you think 

you had an obligation to tell us as the principal congressional officers charged with oversight of the FBI about this program, especially when we were on the firing line for you, trying to get a PATRIOT Act passed? If you do not have a duty to tell us under those 

circumstances, who does, Director Mueller? We do not know what 

we do not know, which is obvious. 

Mr. MUELLER. My understanding was that the intelligence agencies— 

Senator SPECTER. And somebody has to tell us. Now, I cannot get 

a reply from Attorney General Mukasey about the Weldon letter. 

What am I supposed to do? Run into his office and start going 

through the files? A little self-help? People like you do not tell us, 

how are we supposed to find out? 

Mr. MUELLER. I believe— 

Senator SPECTER. Let the record— 

Mr. MUELLER. I believed that the intelligence agencies responsible for the program had been briefed in Congress. 

Senator SPECTER. Well, that is an unsatisfactory answer, but we 

were told by the New York Times. And now we are trying to protect New York Times sources, so if they find another top secret program that you do not tell us about, we can find out about it. And 

you wrote a long letter in concert with the Attorney General and 

the Director of National Intelligence and the Director of Homeland 

Security and every other investigative agency you could find in the 

alphabet soup saying, ‘‘Don’t go for reporter’s privilege.’’ Now, how 

about that, Director Mueller? The Chairman wants to move ahead. 

Chairman LEAHY. Go ahead. 

Senator SPECTER. Well, good. 

Chairman LEAHY. I am enjoying it. 

[Laughter.] 

Chairman LEAHY. I am enjoying it more than the Director is. 

Senator SPECTER. He is doing fine. Bob Mueller comes from a 

tough line of trial lawyers, and I looked over a good bit of the evidence on the anthrax case just to contrast prosecutors’ opinions, 

and I have grave doubts about sufficiency of evidence for proof beyond a reasonable doubt. But come back to the last pending question, and that is, if newspaper reporters do not have the privilege 

to get confidential sources, which they will not get if they are not 

protected, since you will not tell us and the Attorney General will 

not tell us, and then you have this horrendous scene in Ashcroft’s 

hospital room, if we do not pave the way for the newspapers to tell 

us, how are we going to find out so we can conduct oversight? 

Mr. MUELLER. Senator, as I have indicated before, my understanding was that Congress was being appropriately briefed by the 

intelligence agencies and the appropriate committees in Congress 

were being briefed on that classified program. 

Senator SPECTER. Well, that is a classic non-answer, and I will 

let it stand for the record. You cannot do any worse than that. 

Thank you, Mr. Chairman. 

16 

Chairman LEAHY. Thank you. I should not, just so people understand, you have briefed me about the Ivins case. I understand and 

have read all the reviews and all that. If he is the one who sent 

the letter, I do not believe in any way, shape, or manner that he 

is the only person involved in this attack on Congress and the 

American people. I do not believe that at all. I believe there are 

others involved, either as accessories before or accessories after the 

fact. 

I believe that there are others out there. I believe there are others who can be charged with murder. I just want you to know how 

I feel about it as one of the people who was aimed at in that attack. 

Mr. MUELLER. Senator, you have expressed that concern. I understand that concern, and I have told you that in the investigation 

to date, we have looked at every lead and followed every lead to 

determine whether anybody else was involved. And we will continue to do so. And even if the case does become closed, if we receive additional evidence indicating the participation of any additional person, we certainly would pursue that. 

Chairman LEAHY. Thank you very much. 

Senator Feinstein has been waiting very patiently, and I yield to 

Senator Feinstein. 

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

Just to clear the record, as I understand it—I am a crossover 

member on both Intelligence and Judiciary—the full Committee 

was not briefed on the Terrorist Surveillance Program of the Intelligence Committee, to the best of my recollection, until 2006. It 

took 5 years for us to get briefed, just so you know. The so-called 

Big Four were briefed, I believe, in October of 2000. The New York 

Times broke a story in December of 2005. Seven members of Intelligence were briefed in 2006, and then the rest. So it really was an 

egregious violation of the Terrorist Surveillance Act of the administration functioning outside of the law. And what we tried to do 

when we passed the Foreign Intelligence Surveillance Act—and it 

was my amendment—was to so strengthen the exclusivity section 

of that law that it could never happen again. But I do believe that 

your comment that members were fully briefed—I hate to say this, 

Mr. Director—is simply not accurate. 

Mr. MUELLER. I think I said ‘‘were briefed.’’ I did not mean to 

make any comment on the appropriateness or the inclusion or the 

exclusion of any particular people in that briefing or those briefings. 

Senator FEINSTEIN. OK. I would like to begin on one good note. 

In June, my Subcommittee on this Committee had a hearing, and 

former FBI agent Jack Cloonan testified, and I learned that, in 

fact, through FBI interrogation of detainees, a lot of information 

was pulled forward without any kind of enhanced interrogation 

techniques. And I particularly want to commend Agent Jack 

Cloonan, FBI Agent Ali Sufan, FBI Agent George Piro. It is my understanding that, including Cloonan and Sufan, they interrogated 

Ramzi Yousef that led to the 1993 World Trade Center bombings 

and produced valuable information following the USS Cole bombing. And I also want to say that, according to open sources, FBI 

interrogations of Abu Zubaydah were producing valuable al QaedaVerDate Nov 24 2008 11:11 Dec 09, 2009 Jkt 053619 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53619.TXT SJUD1 PsN: CMORC
17 

related information until the point that the CIA took over the interrogations. So I would like to say a commendation to them. 

Now, one of the things that has troubled me—and I am speaking 

as an Intelligence member now—is that on the 27th of November 

in 2002, Legal Counsel Marion Bowman, known as Spike Bowman, 

received a memo—the date the memo was sent from Guantanamo 

is redacted—but he did not receive the memo for months. It was 

held at Quantico. 

I have that memo in front of me, and essentially it is a legal 

analysis of interrogation techniques, and it goes through each 

stage: Category 1, 2, 3, it lists various interrogation techniques, 

Category 4. And it goes on to say, ‘‘Information received through 

certain categories will not be admissible in any criminal trial in the 

United States. Information obtained through these methods might 

be admissible in military commission cases. The judge and/or panel 

may determine that little or no weight should be given to information that is obtained under duress.’’ 

And it goes on, on the third page, to say—talks about the United 

States torture statute: ‘‘The intent of the user will be a question 

of fact for the judge or jury to decide. Therefore, it is possible that 

those who employ these techniques may be indicted, prosecuted, 

and possibly convicted if the trier of fact determines that the user 

had requisite intent. Under these circumstances, it is recommended 

that these techniques not be utilized.’’ And it goes on to essentially 

make the case that they could be war crimes. 

Now, it is my understanding that this memo did not reach you. 

Mr. MUELLER. Did not. 

Senator FEINSTEIN. Correct. And according to the IG report, 

which I have here, you said that you did not become aware of a 

dispute between the FBI and the DOD over interrogation techniques at Guantanamo prior to the spring of 2004. Is that correct? 

Mr. MUELLER. I believe that is correct. 

Senator FEINSTEIN. OK. Reading from the report, ‘‘One SSA who 

served two rotations as OSC at Gitmo told us he initially told the 

agents to write up detainee abuse allegations to a war crimes file 

so the FBI could retrieve the information if it was needed for further investigation. Two agents described instances in which they 

made such reports.’’ And it goes on to describe one agent told the 

OIG that during his orientation when he first arrived, he was told 

that we should write up any potential war crimes allegations for 

inclusion in war crimes trials. 

Now, the first question I have is: Why weren’t the concerns about 

torture that we now know was, in fact, going on at Guantanamo 

brought to your attention immediately or even a year later in 2003? 

That is the first question. 

Mr. MUELLER. I would have to think some about that. I do believe that the persons who were handling that contacted and raised 

it with DOD, and they believed it was something that need not 

come up to my level. Quite obviously, when I heard that this was 

happening, I was upset, and that is not the case today. 

Senator FEINSTEIN. Well, you know, this is reminiscent—we sat 

in this room with Ruby Ridge, and remember where the front office 

always gets protected. And as a product of the hearings on Ruby 

Ridge, the decision was made the front office would not be proVerDate Nov 24 2008 11:11 Dec 09, 2009 Jkt 053619 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53619.TXT SJUD1 PsN: CMORC
18 

tected. So a memo like this, which is three pages long, which outlines what is going on does not reach you. You subsequently pull 

your agents out of interrogation— 

Mr. MUELLER. Well, prior to that— 

Senator FEINSTEIN. At some point you found out. 

Mr. MUELLER. Well, prior to that, in 2002, there was a decision 

made when we heard that there were techniques that went beyond 

our techniques being utilized in, I believe it was, Pakistan, we 

made the determination that our agents would adhere to our protocols, would not participate in additional techniques, understanding 

that not them but some time later additional techniques had been 

approved by the Department of Justice with regard to DOD or with 

the agency. 

So we early on made a decision that we would maintain our protocol, would not utilize—not only not utilize but not participate in 

any of those techniques. 

Senator FEINSTEIN. When did you make that decision? 

Mr. MUELLER. In 2002, upon the initial hearing that additional 

techniques were being utilized by another agency overseas, and our 

persons had left that particular interrogation. We did not know the 

full extent of what techniques were being used. 

Senator FEINSTEIN. That applied to all black sites and Guantanamo? 

Mr. MUELLER. It applied to FBI agents wherever they were located. 

Senator FEINSTEIN. OK. Thank you. 

Did you speak with DOJ or the White House about the concerns 

that FBI agents had, and specifically the Bowman memo? 

Mr. MUELLER. Well, I made very clear my position that our 

agents would not participate in any such additional techniques. 

And I made very clear that that would be the case. 

Now, my understanding is there were discussions between other 

agencies and the Office of Legal Counsel and DOJ with regard to 

particular techniques; but I was not a participant in those discussions, and I was not consulted in those discussions. 

Senator FEINSTEIN. Did this Spike Bowman memo ever go to the 

Attorney General or the President? 

Mr. MUELLER. I do not know. I would doubt it. 

Senator FEINSTEIN. Thank you. My time is up. 

Chairman LEAHY. Thank you. The next person on the list I have 

from Senator Specter is Senator Grassley. 

Director, you made a comment earlier, and I will thoroughly embarrass the Senator from Iowa and wish him a Happy Birthday. 

Senator GRASSLEY. Thank you very much. I appreciate it. 

Chairman LEAHY. The first time in the 30 years I have known 

him that I have seen him blush. 

Senator Grassley, go ahead, sir. 

Senator GRASSLEY. Mr. Chairman, I am going to start out by 

asking unanimous consent of you and the Committee to have my 

full statement made a part of the record and ask that documents, 

letters, and other materials I reference also be a part of the record. 

Chairman LEAHY. Without objection. 

Senator GRASSLEY. Since our last FBI oversight hearing in 

March, there have been major developments, as already expressed, 

19 

in the anthrax investigation. After years of focusing on Stephen 

Hatfill as a prime suspect, the FBI paid him a multi-million-dollar 

settlement. Their new suspect, Bruce Ivins, committed suicide in 

August. And now the FBI is in the process of closing that case. 

This is one of the longest and most expensive investigations in 

FBI history, and there will probably never be a trial. Congress and 

the American people deserve a complete accounting of the FBI’s 

evidence, not just as selective release of a few documents and a 

briefing or two. There are many unanswered questions the FBI 

must address before the public can have confidence in the outcome 

of the case, and a thorough congressional investigation is needed 

to ensure that those questions are answered. And I appreciate the 

Director referring to the National Academy, but I would like to also 

suggest that the National Academy would not be reviewing FBI 

interview summaries, grand jury testimony, internal investigative 

memos, other investigative documents. The Academy would only be 

reviewing the science, not the detective work. And, of course, I believe we need an independent review of both. 

On August the 7th, I wrote the Attorney General and Director 

Mueller seeking answers to 18 specific questions about the anthrax 

investigation. I have not received a reply. Director Mueller, we do 

not have time to go through all of those 18 questions here today, 

but I want to highlight one that you and I discussed last week. It 

has to do with when the FBI first learned of Dr. Ivins’ late-night 

access to the lab around the time of the mailing. While the scientific evidence took years to develop, the lab access records were 

available from early in the investigation. Question No. 1 and No. 

2 together, and then I will let you respond: Shouldn’t his late-night 

lab access, which the FBI now cites as a key part of the case 

against Dr. Ivins, have led you to focus on him much earlier in the 

investigation instead of focusing on Dr. Hatfill? And, No. 2, exactly 

when did the FBI obtain those lab access records? 

Mr. MUELLER. I would have to get back to you on the specific 

questions, Senator. I know you were interested in them. I know 

that they were in that letter. We have drafted answers, and it is 

being—again, it is being approved. I would have to get back to you 

on specific answers to those particular questions. 

Chairman LEAHY. Excuse me, on my time. I will certainly give 

additional time. I have to emphasize that the ‘‘getting back to us’’ 

is very difficult here because the answers then go to the Department of Justice. They sit on them, and we never get the answers. 

And it really is not fair. It is not fair to you, Director Mueller, because I know in many instances you sent your answers over to 

them. But they sit on them. It is a dark hole over there. We never 

get the answers. Senator Grassley has asked some very legitimate 

questions over the past year, and he has not gotten answers. Senator Specter has. As Chairman, I will insist we do get the answers, 

whether it is a Republican Senator or a Democratic Senator that 

asked the question. They work hard, all the Senators, both parties, 

on this Committee. They deserve to have their answers. 

Now, some of the questions that have been asked here today can 

be answered this morning. And when we do take our short break 

at some appropriate point, I would ask you to get on the phone and 

get us the answers. 

20 

Senator GRASSLEY. Well, thank you. I appreciate that support. 

Mr. MUELLER. Could I just have 1 second? 

Senator GRASSLEY. Sure. Go ahead. 

[Pause.] 

Mr. MUELLER. I think I have some limited information, but I 

would prefer to confirm it during the break. 

Senator GRASSLEY. OK. 

Mr. MUELLER. And be able to get back to you on that. 

Senator GRASSLEY. And that is OK, and that is probably more directed to the second one I asked, exactly when did the FBI obtain 

those lab access records. But surely you can say, as long as you had 

them a long time before, shouldn’t that have caused you to focus 

on Dr. Ivins instead of Dr. Hatfill? 

Mr. MUELLER. As I think I have explained and as we have 

briefed, the key disclosure in the investigation came when we were 

able to identify and match the genetic markers from the anthrax 

mailings to the anthrax that was contained in a flask RMR1029 

that was maintained by Dr. Ivins, and that came in the spring of 

2005. And at that time it triggered a number of investigative steps 

and put investigative steps in a new light given the fact that we 

had identified the anthrax in the mailings with that particular 

flask maintained by Dr. Ivins. So it was at that juncture that I 

would say the investigation took on a new focus. 

Senator GRASSLEY. OK. Let me go on then. You were quoted August 8th, Burlington Free Press, as saying you are ‘‘unapologetic’’ 

and that it is ‘‘erroneous to say that there were mistakes.’’ Well, 

the FBI focused on an innocent man for those 4 years. FBI officials 

anonymously told the press that Dr. Hatfill was the anthrax killer. 

The Justice Department effectively got him fired from his job. Yet 

even after new scientific evidence pointed away from Hatfill and toward Ivins, the FBI waited years to publicly set the record straight. 

So three questions, and I will ask them all at the same time. 

Should not the FBI apologize to Dr. Hatfill? Please explain how 

chasing an innocent man for 4 years was not a mistake, as you said 

it was not a mistake. And why did you wait until after settling Dr. 

Hatfill’s lawsuit and after Dr. Ivins’ suicide before clearing Dr. 

Hatfill’s name? 

Mr. MUELLER. I can speak generally. I do not believe that we inappropriately undertook any investigative steps in the course of the 

investigation, regardless of the individual. That means to say I 

think the steps that were taken in the course of the investigation, 

given the information that we had at a particular time, generated 

appropriate investigative steps in the course of the investigation. 

The lawsuit that was brought by Dr. Hatfill appropriately, we believe, focused on leaks, and one assumes it is FBI, but one should 

not make that assumption, but leaks about the course of the investigation that did harm his reputation. I abhor those leaks. It was 

inappropriate. And the settlement is an acknowledgment that those 

leaks should not have happened and that they harmed Dr. Hatfill’s 

reputation. 

But in terms of the steps taken in the course of the investigation, 

given the evidence we had at a particular point in time, I think the 

steps taken were appropriate. 

21 

Senator GRASSLEY. Why did it take Dr. Ivins’ suicide before Dr. 

Hatfill was cleared by the FBI? 

Mr. MUELLER. Well, the fact that we had identified that flask as 

being—containing the parent of the anthrax used in the letters 

triggered a substantial additional investigation. We had to determine who else had access to that anthrax. We had to eliminate the 

persons who had access to that anthrax, and certain persons had 

been distributed portions or pieces—not pieces, but some of that 

anthrax for their own research. And, consequently, while it shifted 

the focus of the investigation, there was a tremendous amount of 

investigative work that had to be done to determine whether or not 

and who was responsible not just focused on Dr. Ivins, but anybody 

who may have had access to that anthrax over the period of time 

that that anthrax was in the suite and being maintained by Dr. 

Ivins. 

There were a number of persons who had been employed by 

USAMRIID over a period of time, and every one of those persons 

had to be investigated and ruled out as the possible person responsible for the mailings. 

Senator GRASSLEY. Was anyone punished for those leaks that 

took place about Dr. Hatfill? 

Mr. MUELLER. There is a continuing investigation by the Department of Justice. In the meantime, there was one person counseled 

in our organization as a result of confirming something that had 

been put out by somebody else. 

Senator GRASSLEY. Mr. Chairman, did I use up all the additional 

time that I was allotted? 

Chairman LEAHY. I believe you have. 

Senator GRASSLEY. OK. Go ahead, and I will have a second 

round. 

Chairman LEAHY. Thank you, and we will probably take a break 

around 11 o’clock for a few minutes, which will give the Director 

also a chance to make some phone calls to be able to answer the 

things where he is going to get back to us. 

On the list I have here, Senator Feingold, you are next. 

Senator FEINGOLD. I thank you, Mr. Chairman, and welcome, Director Mueller. Thank you for being here. I think it is fair to say 

that you and I have had a good relationship in the time we have 

known each other. We have always had frank and honest discussions. I believe you are a straight shooter who has the best interests of the country at heart and who sincerely cares about and understands the importance of protecting civil liberties while fighting 

crime and terrorism aggressively. 

Unfortunately, however, the FBI has made some major mistakes 

in recent years. I am thinking particularly about the problems with 

national security letters. And I am deeply concerned about these 

new Attorney General guidelines. We are talking here about a situation where the FBI must police itself, and I am not convinced that 

these guidelines include adequate safeguards to protect against 

overreaching. Remember, the whole reason that the Department 

issued guidelines in the first place was in reaction to revelations 

about very inappropriate investigations and other activities that 

took place in the 1960s, particularly with respect to the civil rights 

movement. 

22 

As Senator Leahy, the Chairman, already described today, the 

guidelines allow for what is called an ‘‘assessment,’’ which includes 

some quite intrusive investigative techniques, such as physical surveillance, questioning of friends and neighbors, including based on 

a pretext or misrepresentation, and the recruiting of informants— 

all with no reason for suspicion whatsoever. 

Basically, if I understand these draft guidelines correctly, so long 

as the FBI’s purpose is detecting a possible national security threat 

or collecting foreign intelligence, you can pick any person at random off the street and say, ‘‘I want to investigate that person, see 

if there is something out there that would justify a preliminary or 

full investigation.’’ Since no reason or suspicion is required, this 

raises the possibility of racial profiling. 

Now, I know that you believe that racial profiling is wrong and 

it is unconstitutional. You have testified to that. And, yes, we have 

been told that the DOJ guidelines concerning racial profiling remain in effect. But, Director Mueller, these guidelines contain an 

exception for national security cases, and they are still just guidelines. They are not the law. 

So let me ask you: First, do you agree that it would be ineffective 

and counterproductive for the FBI to engage in racial profiling— 

Mr. MUELLER. Absolutely. 

Senator FEINGOLD.—in national security and foreign intelligence 

investigations? 

Mr. MUELLER. Absolutely. 

Senator FEINGOLD. You and the Attorney General now know that 

there is a lot of concern about these draft Attorney General guidelines. When they are finally published, if the current approach is 

maintained, there is going to be, I think, a public outcry. Wouldn’t 

it be better to take the time to let the groups that are concerned 

about these issues analyze the draft and make suggestions about 

the kinds of protections that are needed to avoid an outcry when 

the guidelines are published? Why can’t you at least solicit their 

suggestions in a meaningful process that involves more than a single meeting where the participants are allowed to look at the draft, 

but are not allowed to keep a copy? 

Mr. MUELLER. Well, first of all, these are the internal DOJ guidelines established by the Attorney General. And this is the first time 

in my experience that we have sought outside input, not just from 

Congress but also from the ACLU, privacy interests, in order to get 

suggestions. 

Now, yes, we have maintained a process whereby we bring the 

guidelines, we allow whatever time is necessary to review the 

guidelines. They are a draft of the guidelines. We have elicited suggestions. We are incorporating the suggestions that have been 

made and have had an openness in the production of these guidelines that is far different than the sets of guidelines that have gone 

before. 

One point I do want to make, and that is the change in the responsibility and the roles of the FBI over a period of time. The 

American public—Congress was relatively content to evaluate the 

FBI and the success the FBI had in investigating a terrorist attack 

after it occurred, whether it be the 1993 World Trade Center bombings, whether it be the Cole bombings, the East Africa bombings, 

23 

whether it be McVeigh. But in the wake of September 11th, you 

and the American public are asking the FBI to prevent terrorist attacks. And in order to do that, it is much different than focusing 

on a particular individual who may have committed a crime. 

You are asking us—and I will go back to—I remember sitting 

here with Senator Specter, who is not here now, asking about the 

Phoenix memorandum. The Phoenix memorandum that came out 

before September 11th indicated that there were individuals from 

the Middle East who were attending flight schools in Phoenix, and 

the agent—who was a prescient agent—looked at that and said, 

‘‘Hey, look, this is of concern. This is a threat.’’ Not an individual, 

these are Middle Eastern individuals who apparently were attending radical groups who were going to flight school. 

Now, in this day and age, the American public expects us to followup on that memorandum to determine whether any other individuals around the United States who may be undertaking the 

same activity, although these individuals have not committed a 

crime, these individuals—a crime has not been committed. And 

these guidelines that make a distinction between national security 

and criminal, in my mind, perpetuate the distinction in the Bureau 

between law enforcement and intelligence, where we, to undertake 

our responsibilities— 

Senator FEINGOLD. I am running out of time, but as to the process, I have trouble understanding the reasoning for not allowing 

people to have a copy of this. If the guidelines are going to be made 

public anyway, why not let people see them and analyze them now? 

It would not only significantly increase public confidence in the 

guidelines, it would also improve them. What is the point of removing them from a room and not allowing people to really look at 

them? 

Mr. MUELLER. There have been shifting drafts. They are in the 

middle of a process. And what we did is tried to include both Congress as well as the various groups in that process, giving—as I 

say, it is a draft. It is going to shift, and it is going to change. And 

our effort was to bring others outside who obviously have an interest in these— 

Senator FEINGOLD. I can get you a ‘‘Draft Only’’ stamp, if that 

is what you need. You know, this is serious stuff, and it would help 

the process if we do this. 

Let me ask you one other thing. You mentioned in your discussion with Senator Leahy that many of the details about how these 

new Attorney General guidelines will work in practice will ultimately be embodied in FBI policies. If the Attorney General does 

decide to go forward in the near term with these new guidelines, 

will you commit that the related FBI policies will be made available publicly, to the greatest extent possible, so that the American 

people can understand fully what rules govern FBI investigations? 

Mr. MUELLER. Yes. 

Senator FEINGOLD. Thank you. I will stop at that point. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

In the order I have from Senator Specter, Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. 

24 

Let me just begin by saying that, in order that silence not be construed as consent, I just want to note for the record that I do not 

think that the tone of some of the questioning has been appropriate 

here. I specifically exclude, for example, the last questioner. Since 

I followed Senator Feingold, I do not want him to think that my 

comments are directed to him. We ask tough questions. That is appropriate. But I think we are all on the same side here. 

I wanted to pick up on something the FBI Director just said, because I, too, remember the aftermath of 9/11. And there has been 

a big debate about whether we should have the FBI actually doing 

the kind of investigation that he spoke of. My own view is that it 

is still not a close question. I have had the debate with the Director. He says the FBI can and should be doing this. If we do not 

give the proper authority, I am not sure that the FBI should be 

doing it. I am assuming maybe we would give a broader authority 

to a group that is separate, as exists in Great Britain. That is a 

debate for another day. 

We have said the FBI has the responsibility, and I think we have 

the responsibility, therefore, to assist in ensuring that you have the 

tools to get the job done. 

I just wanted to quote one thing from your statement and then 

ask you to expand on it a little bit primarily because in answering 

some previous questions, I think you were prepared to go beyond 

what you were allowed to say. And so I want to give you that opportunity. 

In your statement, you talk about how the rules, for the most 

part, dealing with crime investigations or terrorism threats can 

work together. But you go on to say, ‘‘However, criminal threats 

and national security threats no longer fall neatly into separate 

categories. The threat of today, and of the future, is a dangerous 

convergence of terrorists, hostile foreign governments, and criminal 

groups operating over the Internet and through interconnected, sophisticated networks. We may see organized crime laundering 

money for drug groups, drug groups selling weapons to terrorists, 

terrorists committing white-collar fraud to raise money for their operations, and, most threatening of all, hostile foreign governments 

arming terrorists with an arsenal of biological, chemical, and radiological weapons.’’ 

To demonstrate this interconnectedness and also the folly of trying to separate rules governing crime investigation from this new 

terrorist threat, you were in the process of providing some examples, and I wonder if you could, to make this real, to just be real 

clear about real-life situations that might evolve here, if you could 

give us a couple of examples of how you see these things unfolding 

and why it does not make sense to have a different set of rules, 

especially a set of rules that makes it more difficult to investigate 

terrorism than crimes. 

Mr. MUELLER. Well, I guess a couple examples from the terrorism field would be in Colombia, for instance, the FARC that is 

involved in narcotics trafficking but is also a terrorist group. You 

have the same thing occurring in Afghanistan with the Taliban 

intersection with narcotics trafficking. 

If you are looking at cyber as an example today, you have a number of fraud schemes that have migrated from the mails to the 

25 

Internet. You also have a number of those affiliated with terrorist 

groups and responsible for garnering funds for terrorist groups 

using a number of scams on the Internet that can be treated as either money laundering or fundraising by a terrorist group or 

money laundering on the Internet. One is criminal, one is national 

security. 

The list of circumstances where you have terrorist groups or—not 

just terrorist groups but countries who commit espionage and seek 

to steal our secrets can be treated either as a criminal organization 

or as a terrorist organization or as operating at the behest of a foreign government who wants to steal our secrets. And what techniques we use to investigate that should not be dependent on the 

cubbyhole in which that particular activity is put. We need the 

techniques across the board regardless of what particular program 

we traditionally in the Bureau have operated it under. 

Senator KYL. And if you could, one of Senator Feingold’s questions I thought was a good question, and I would like you to have 

the opportunity to give a slightly more fulsome answer. Can you 

just pick up somebody on the street, whether it is a crime or investigating terrorism, what protections are there, what is the best way 

to describe the kind of assurances that this kind of thing simply 

would not happen so that the American people can be confident 

that the guidelines, along with the policies, along with complying 

with the law, prevent that kind of activity? 

Mr. MUELLER. As opposed to the guidelines of the past with focus 

on a particular crime, the guidelines here focus on a particular purpose. There has to be an articulated purpose tied into a specified 

threat for the activity that is undertaken. It has to be written up. 

It will be assigned to an attorney. There will be a 30-day review 

of that. And there will be an increasing scale of review depending 

on the types of techniques that are going to be used. That has been 

traditional under the guidelines, whichever guidelines you have, 

and will be incorporated from the past guidelines to these guidelines. 

We are absolutely sensitive that we want higher review. For instance, if an agent wants to undertake activity with regard to a religious institution or political institution or the like, there is a higher level of review and authorization that is required, as well as the 

30-day review, to assure that the investigation is being pursued, if 

not being pursued is being closed. 

Senator KYL. And, finally, are there some time constraints that, 

therefore, call for a presumption to move ahead subject to all of the 

kinds of reviews that you have discussed here? 

Mr. MUELLER. Well, the assessments will generally be—in general, I say—a 30-day review. When you move up to the next level 

and preliminary investigations, they can be undertaken for 6 

months. If they do not go to a full investigation, they need to be 

closed. So there is a level of supervision that in the past has been 

more or less on its own. Supervision authority, documentation procedures being followed— 

Senator KYL. If I could just interrupt for a second, I think there 

is kind of a tendency, because we watch too many TV shows, to 

think you have got to have some kind of probable cause to believe 

26 

that the person is guilty before you can even begin investigating 

something. I wish you would address that point. 

Mr. MUELLER. Every day, as most people know, we have a threat 

list of umpteen threats, generally anywhere from 11 to 20 pages. 

A number of those threats can be e-mail threats from all around 

the world saying that this particular terrorist activity is going to 

occur in the United States or elsewhere tomorrow. That is the type 

of threat that comes in that warrants an investigation, an assessment, if you will, to determine whether or not it is valid and what 

further investigation needs to be made. 

Generally, we go to the IP address, and I do not care where it 

is, where it comes from—Pakistan or Malaysia or what have you— 

and we work to identify the person and to exclude that as a threat 

of moment. But that is the type of assessment. 

What you also have—and I do not want to mislead people—you 

have assessments that would follow the recognition, as Agent Ken 

Williams did in Phoenix, of a circumstance that was bothersome to 

him, troublesome to him, and he believed needed a follow-up assessment. That would have been treated as an assessment as well. 

Senator KYL. Thank you very much, Mr. Director. 

Chairman LEAHY. Thank you very much. 

We will go to Senator Durbin, and then we will take a 10-minute 

break. 

Senator DURBIN. Director, thank you for being here, and I appreciate your service. It has been 7 very challenging years. I believe 

that it is 7 years that you have been in this position. We have 

worked closely, and I value the working relationship that we have 

had. 

I would like to follow-up on this guideline question and try to 

zero in on what I think is at the heart of many of the questions 

that have been asked of you. 

It is clear to me that in most instances, when it comes to an FBI 

investigation, there has to be some factual predicate which leads to 

that investigation. So my question to you is this: Is national origin 

or religion a sufficient factual predicate in investigations related to 

terrorism? 

Mr. MUELLER. In and of itself, no. 

Senator DURBIN. There has to be more? 

Mr. MUELLER. There has to be more. 

Senator DURBIN. I think that really gets to the heart of the question, and I hope that the guidelines will be shared with us and that 

they reflect what you have just answered. 

I will also say that one of the more troubling aspects of this administration’s policies since 9/11 has been the question of torture 

and investigative techniques. Attorney General Mukasey has testified before this Committee, and we had a long day or two of questions related to these techniques, what was permissible and what 

was not. I called you the other day to mention that I was going to 

bring this up. 

In 2005, at a hearing before this Committee, I asked you about 

reports that FBI agents regarding—FBI agents regarding detainee 

abuses, they witnessed this. In these reports, which were publicly 

released under the Freedom of Information Act, FBI agents complained about ‘‘torture techniques’’ being used at Guantanamo. I 

27 

asked you in 2005 whether the Defense Department has changed 

their interrogation policies as a result of the FBI’s concern, and you 

said, I quote, ‘‘I do believe they have.’’ 

I and other members of the Committee asked the Inspector General to investigate these FBI complaints. The Inspector General 

concluded, and I quote, ‘‘We found no evidence that the FBI’s concerns influenced DOD interrogation policies.’’ 

So I would like to ask you, What was the basis for your statement to this Committee in 2005 that concerns of FBI agents did 

change the interrogation techniques at the DOD? 

Mr. MUELLER. I am not certain that—I do not have it in front 

of me, but I am not certain the question said, ‘‘Did the concerns 

of FBI agents change the techniques?’’ What I do know is the techniques had changed over a period of time. There were different orders given through the hierarchy at Guantanamo. There were a set 

of procedures, as I understand it, that were instituted, maybe in 

2002, 2003, and then were rescinded over a period of time. I do not 

think I meant to—if I did, I did not mean to say that I knew that 

that was as a result of the reports from the FBI, because I am not 

certain it was a result of the reports of the FBI. It may well have 

been of the reports of Abu Ghraib which interceded to make those 

changes. 

All I know is that there were shifts in terms of the allowable procedures at Guantanamo over a period of time. 

Senator DURBIN. If I asked you to step back and reflect on this 

period and this question and interrogation techniques, what could 

you say for the record has been the policy of the FBI under your 

directorship when it came to not only the use of these techniques, 

but also efforts to stop their misuse by other agencies of the Federal Government? 

Mr. MUELLER. Well, with regard to the FBI participation in those 

techniques, I think, and the Attorney General report points out, 

that we maintain our own protocols that do not depart from utilizing techniques that include no coercion. With regard to—I think 

agents in the Bureau did exactly what was appropriate in complaining to their counterparts at Guantanamo. What I do not think 

we did a good job of is making certain that those reports came to 

the top so that additional requests—or to assure that these requests were being handled not just at the lower level in Guantanamo but higher here in Washington. 

One of the concerns we have had and one of the issues one had 

to wrestle with is that there were shifting definitions of what was 

allowable over the period of time, and to a certain extent, there 

was legal authority supporting those. And so a definition of what 

constitutes ‘‘abused’’ shifted over a period of time, depending on a 

number of factors. And I think we could have done a better job of 

identifying at the top these particular abuses and making the 

points perhaps stronger to DOD. 

But, on the whole, I think the FBI and its agents did a very good 

job in not participating in the techniques and alerting their counterparts that they did not agree with those techniques. I will tell 

you the other thing that I think we did appropriately is when we 

understood this was happening in the spring of 2004, we then went 

to any agent who had undertaken interrogations near Iraq or in 

28 

Guantanamo and had seen abuse, and we went through every one 

of those and then referred them to the appropriate authorities once 

we were aware that this was happening. I do wish that we had 

done more earlier in terms of pushing to the top the concerns that 

they had lower down. 

Senator DURBIN. My understanding in reviewing the history of 

this administration is that the Office of Legal Counsel and other 

offices were sending out from time to time memoranda explaining 

what they considered to be the outer limits of interrogation techniques. Some of these were rescinded. Is that what you referred to 

earlier? 

Mr. MUELLER. Yes. They were memoranda that went to other 

agencies. 

Senator DURBIN. But in terms of your agency and the work of 

your agents, you have consistently not—your agents have not engaged in these techniques and have reported abuses when they observed them? 

Mr. MUELLER. Yes—not in all cases, but I think—certainly over 

a period of time in all cases, when we queried every agent who had 

participated in questioning in Guantanamo or over in Iraq. 

Senator DURBIN. And when General Counsel Valerie Caproni testified and I asked her about techniques such as painful stress positions, threatening detainees with dogs, forced nudity, mock execution, and waterboarding, she responded, ‘‘Yes, those are abusive 

under all circumstances.’’ Do you agree with that? 

Mr. MUELLER. Yes. 

Senator DURBIN. I would like to ask you—we just have—well, I 

guess my time is up, but let me close by saying I am glad that you 

spent some time talking about the change in technology in the FBI. 

It is one thing you and I have worked on. I know it has been a 

painful, arduous journey. And it appears now that significant 

changes have been made for the record, and I am sure the Committee is well aware of it. On 9/11, the FBI was woefully unprepared from a technology viewpoint in terms of some very fundamental issues—e-mail, access to the web, ability to transmit photographs electronically. It appears now from your opening statement 

that significant progress has been made and more is underway. 

Mr. MUELLER. Thank you, Senator. 

Senator DURBIN. Thank you. 

Chairman LEAHY. Thank you. And I should note that we keep 

talking about all the failures leading up to 9/11. The Director took 

office just barely at that time, and these were the failures prior to 

him being there. 

I apologize to Senator Whitehouse. We are going to take the 

break now. When we come back, he will be recognized. Director 

Mueller will first be given a chance to respond to the unanswered 

questions. He can use the time during the break to make whatever 

call is needed to be able to answer them. 

We will stand in recess subject to the call of the Chair. Thank 

you. 

[Recess at 11:08 a.m. to 11:29 a.m.] 

Chairman LEAHY. The Committee will be in order. I ask that the 

public please take their seats so that people’s views are not obstructed. 

29 

Before I go to Senator Whitehouse, Director Mueller, you had 

something you wanted to say. 

Mr. MUELLER. Yes. You asked two questions and asked me to try 

to track down answers to two questions, one yourself and one, I 

think, from Senator Grassley. 

With regard to the two laboratories that you mentioned and were 

there any other laboratories that had the capability of weaponizing 

anthrax, I respectfully ask that we provide that in a closed session. 

Aspects of the response to that question may well be classified. 

Chairman LEAHY. Well, do you have—and I understand from 

what you told me in a—you told me privately what the answer is. 

I will discuss with Senator Specter that we will make arrangements for the answer to be provided in a classified fashion. 

Mr. MUELLER. I had one other— 

Chairman LEAHY. Yes, please. Go ahead. 

Mr. MUELLER. Senator, if I could, Senator Grassley asked a question with regard to when we received the records—after-hour 

records of the access to the laboratories at USAMRIID, and the answer is in 2002 we obtained the records of not just the time in labs 

of USAMRIID but any number of additional laboratories such that 

we had thousands upon thousands of records of access to various 

portions or hot suites in laboratories around this country and 

other—I am not certain, but maybe labs in other countries as well. 

And after that, it was a question of focusing and utilizing those 

records as a portion or a part of the continuing investigation. 

Chairman LEAHY. Thank you, and I also will leave the record 

open for Senator Grassley to do any followup that he wishes. 

Senator Whitehouse, you have been here right from the beginning of this hearing. I commend you, as I always do, for the 

amount of time you spend here. And I know you and I have had 

long discussions about these various subjects outside the hearing 

room, and I commend you for your diligence in the matter. 

Senator WHITEHOUSE. Well, thank you, Chairman. I find these 

hearings highly informative, so I am delighted to be here and applaud, as always, your leadership of this Committee. 

Director Mueller, this is probably the last time in this administration that you and I will face each other in Committee hearings. 

We have had some ups and downs in the course of the hearings 

that we have had, but through it all, I have never lost confidence 

in your personal professionalism, nor have I ever doubted your desire to see the right thing done, both by and for your agency. This 

being our last encounter of this kind in this Presidency, I want to 

take the occasion to remark on the incidents surrounding the Department of Justice review of the President’s program for secret 

warrantless wiretapping of Americans. 

Details of this incident have been disclosed to us in the Senate 

Intelligence Committee. Senator Schumer of New York, a member 

of this Committee, held a hearing that brought this story before the 

public. I suspect, Director, that if I am here 30 years, I may never 

again see such a hearing as that one. And the Washington Post has 

published even more detail in an excellent two-part series in the 

last 2 days—few days, I should say. It has been a few days now. 

Director Mueller, I believe that the agencies of the Federal Government stand for something. I believe that the oath of office to 

30 

these senior positions confers duties and responsibilities. I believe 

that the greatest failing of the so-called unitary executive theory, 

still pursued by the extremists who have controlled White House 

decisionmaking, is that it expects all executive agencies to bow 

down before the will of the White House, even when duty, honor, 

and often statute confer particularly responsibilities on those agencies and on the men and women who run them. 

This theory leads to a dangerous culture where yes-men and 

toadies become the constitutional norm. And they inevitably fail at 

a minimum to give the White House resistance and cautionary 

feedback consistent with their own duties to their agencies and to 

the public. This responsibility to the public and to the mission of 

the agency is nowhere more important than within the Department 

of Justice and within its components. 

A combination of toadyism at the top and the deliberate disassembly of the firewall protecting the Department of Justice and 

its prosecutors from political interference rendered that great Department more vulnerable to political abuse and infiltration than 

ever in its recent history. 

Attorney General Mukasey’s refusal to look backwards, his determination to do no evil but also to see no evil renders us unable to 

determine to what extent the possibility of political influence actually became reality in investigations and prosecutions. 

But against that squalid backdrop stands the example of you, 

James Comey, and Patrick Philbin. I believe the strength of your 

conviction brought along Attorney General Ashcroft and many others. It is hard to explain how serious and how long-lasting the 

damage to the Department of Justice would have been had you 

rolled over for Vice President Cheney and his operatives and ultimately the President at that grave time. 

It is hard to imagine in America circumstances in which the Director of the FBI has to order agents standing guard over a stricken Attorney General not to leave him alone with the White House 

counsel and the President’s Chief of Staff to make sure that Deputy 

Attorney General James Comey stayed with him. 

But it is not hard to understand the feeling of pressure, isolation, 

and consequence that bore down on all of you through that episode. 

I will disagree with all of you on many things, but I wanted to take 

this opportunity today to say thank you. Against intense and hostile pressure from the highest offices in the land, you stood for the 

principle that all public offices have public duties and responsibilities and that honoring those duties and responsibilities, at least as 

God gives us each of us the light to see them, is a higher public 

virtue than mere obedience. That is an important lesson in democracy. I hope it is a lasting one, and I thank you for showing us it. 

I will reserve my questions for the record. I will ask that—I 

think the discussion that the Director had on the subject of the 

control over these new investigative areas of national security and 

foreign intelligence unhinges the Department’s investigative responsibilities from some of the traditional restrictions that have 

customarily and over time developed around criminal investigations. For starters, a nexus to a crime, the theories of predication 

and the rules around them that have been developed, and all of 

that, I think it would be helpful, in addition to sharing with us the 

31 

new guidelines when they become apparent, to allow some senior 

folks on your staff who are responsible for this new responsibility 

to come and brief those members of the Committee who are interested, and their staffs, on what the kind of affirmative protocol for 

providing guidance in those investigations. 

I have not seen them yet, but I suspect that the guidelines are 

written rather in the negative and do not disclose the administrative structure that enforces and supervises them. I think the Chairman is a very experienced prosecutor. I spent time as an Attorney 

General and the United States Attorney. I have comfort that there 

is a structure that I am familiar with that restricts criminal investigation to the legitimate investigation of crimes that actually happen or are believed to have happened. 

I am not convinced as to what the structure is that will limit investigations in the national security and foreign intelligence area 

to any reasonable benchmark or guideposts. I think you probably 

can provide it, but I think it would be helpful if we had that discussion, rather than just working off cold paper guidelines. And if you 

would agree to do that, I would appreciate it. 

Mr. MUELLER. We have had preliminary discussions in our briefings with regard to what we plan to put into place to supplement 

the guidelines, but we would be happy, as we go through this process, to brief you on the structure, the administrative structure that 

will support the guidelines. 

Senator WHITEHOUSE. You understand my question? 

Mr. MUELLER. I do. 

Senator WHITEHOUSE. Yes, OK. Thank you, Chairman. And 

thank you again, Director. 

Chairman LEAHY. I thank you for that, and I would—I believe 

the article you were referring to was the excerpts from the book 

‘‘Angler.’’ And I want to note my agreement with what you said, 

and that I agree with what you said about the integrity of the Director in what had to be a very difficult, and I suspect lonely, circumstance. So I applaud you for your comments, I applaud you for 

your statement, and I concur. 

Senator FEINSTEIN. Mr. Chairman, if I may, I would also like to 

concur with the comments. I think Senator Whitehouse said those 

with a full heart. I think they were well stated and, Mr. Director, 

well deserved. 

Thank you very much. 

Senator WHITEHOUSE. Thank you very much. 

Chairman LEAHY. Thank you. And now we have Senator Cardin 

of Maryland, again, a very valued member of this Committee who 

brings his experience from his years in the other body. 

Senator Cardin. 

Senator CARDIN. Thank you, Mr. Chairman. I also want to concur in the comments made by my colleague from Rhode Island and 

thank the Director for the role that you have played. It does point 

out that it is not just the direct responsibility you have as the Director or the direct responsibility that we have as a Committee in 

enacting laws. But it is the role that you play in standing up for 

what is right and the role that we play in oversight that I think 

is critically important to our country. 

32 

I want to cover two points today, if I might: one will be the anthrax investigation; the other will be the 2008 elections. 

I just want to concur with some of the comments that have been 

made by my colleagues of the importance to be as transparent as 

possible in the anthrax investigation. There is a comfort level that 

has not yet been reached, and I agree with Senator Specter that 

we should be looking for ways to make the availability of the Academy of Sciences a more transparent and understandable process to 

give more information that the public can understand about this 

anthrax investigation. 

I represent Maryland. Fort Detrick, of course, is a critical facility 

for our national security. The community has been very understanding of what work is done at Fort Detrick, but they have a 

right to expect that those that work there are properly secure and 

are working in our national interest and that we are doing everything to make sure that is the case. 

One part of this investigation I would like to cover with you 

today that I think points out the concerns that many of us have 

about the completeness of the investigation. It is my understanding 

that Mr. Ivins had security clearance until July 10th of this year. 

And if there was such mounting evidence against him, why was his 

security clearance maintained to such a late point? Did the FBI 

recommend that his clearance be changed and it was not followed 

up? Or was it just an oversight? Or did we not have credible information until after July of this year? 

Mr. MUELLER. I would have to get back to you on the specific 

timeline, but the investigation continued and was not—there was 

no overt action taken until November, I believe, of 2007. At the 

time that the search warrant was requested and we had probable 

cause to believe that premises should be searched, we advised 

USAMRIID of our concerns. And my understanding is that at that 

point, while his security clearance may well have been maintained 

because there was no indictment, there were no public charges, 

nonetheless his access to the relevant spaces at USAMRIID was 

denied. And so he no longer had access to the compounds that he 

had access to prior to that day. 

Senator CARDIN. And that was based upon the information obtained for the searches in November of 2007? 

Mr. MUELLER. I believe that is the case. 

Senator CARDIN. I would appreciate it if you would confirm that 

to the Committee, that, in fact, he did not have access after that 

date, because the information we received, it was a counselor challenging his mental status that ultimately led to the revocation of 

his security clearance. 

Mr. MUELLER. That may well have been. That happened sometime later. And, again, the extent to which we have access to those 

records, I am not certain because they are privileged, and quite 

often in the course of a criminal investigation, if they are privileged 

records, medical records and the like, we do not have access to 

them. I would have to check as to when we found out about the— 

Senator CARDIN. I appreciate that. I think it is important that 

access and clearance be very carefully monitored, particularly when 

there is criminal investigation that had reached the level that your 

33 

investigation had reached. I would appreciate your getting back to 

me on that. 

Let me talk about the 2008 elections for one moment. This Committee has had oversight hearings as to the Department of Justice’s 

actions to try to prevent a repeat of activities that occurred in the 

2006 and 2004 elections, where there was voter fraud that took 

place in close proximity to the election, which makes it difficult for 

reaction to ensure that voters can participate without intimidation. 

We had a long letter sent out giving the wrong dates for elections, 

threatening people with parking tickets outstanding that they will 

be arrested, or new immigrant citizens, challenging their rights to 

vote. 

What role will the FBI play prior to the November 4th elections 

to be as constructive as possible for the enforcement of our laws 

and be prepared—and how are you preparing for the 2008 election 

itself? Have there been meetings and discussions with the U.S. Attorneys? Is there a role that you are playing? Can you fill us in on 

this? 

Mr. MUELLER. Whenever there is an election, we have specialist 

agents who are versed in this type of crime. Each one of our offices, 

every U.S. Attorney’s Office, is instructed to take whatever allegations there are in, but then there is very close coordination with 

the Election Crimes Section of the Department of Justice. And so 

whatever allegations come into our offices are fed into the Election 

Crimes Section at the Department of Justice, and whatever additional investigation is necessary, there are steps taken, whether it 

be grand jury or steps taken by us, done in consultation with the 

Election Crimes Section. 

Senator CARDIN. Well, I would just urge you to give this your 

personal attention. We are concerned—there are a lot of new participants in this election. There were exciting primaries for both 

the Democrats and Republicans. We have a lot of first-time voters. 

We are going to see that there is going to be a lot of activity on 

college campuses, and they are worried as to whether, in fact, the 

election system will be able to accommodate those voters. 

We are concerned about misinformation being intentionally used 

by some advocates in an effort to influence voter turnout, which 

would be inappropriate and aimed at minority communities. And I 

think the more work you can do leading up to November 4th, the 

best it will be to prevent that type of activity from taking place, 

which is our goal; but if it occurs, to be in a position to make sure 

that we have the information necessary to hold those accountable 

for violating our laws. 

I would just urge you to give that personal attention. 

Mr. MUELLER. I will. 

Senator CARDIN. Thank you. 

Chairman LEAHY. Did you wish to respond on that at all? 

Mr. MUELLER. No. I am fine. Thank you. 

Chairman LEAHY. I might say also that a number of us share the 

concerns that Senator Cardin has stated. It is not a partisan concern. It is a practical concern. 

I think of my own grandparents who taught me after they became citizens how wonderful that ability to vote is. One of my earliest memories as a child, probably 2 or 3 years old, is being carried 

34 

into the voting booth with my parents, they holding me while they 

checked their paper ballots in Montpelier, Vermont. It is very, very 

important. Very, very important part of life. I just want to make 

sure that people want—as we have seen in the past, when there 

have been instances when people have been denied the vote for political reasons, that that not happen, and I think the whole country 

is going to have to rely on the FBI to be extraordinarily vigilant 

in that. 

I might mention, following on what Senator Whitehouse has said, 

a book that I read and found very enlightening, ‘‘The Dark Side’’ 

by Jane Mayer, she talks about a dinner party she attended. One 

of the lawyers at the party criticized Tom Wilner, another lawyer 

who had represented detainees, for defending terrorists down at 

Guantanamo, where the book toasted Mr. Wilner for doing what 

Americans should. Those of us who had the privilege, as you have 

and I have, of being prosecutors know the whole system breaks 

down completely if there are not defense attorneys. They are not 

enemies of the country but protectors of the system, just as the 

prosecutors are. So I commend you for that. 

Now, a question I asked earlier, and the clock can start here, and 

then I am going to—I am in my second round here. I understand 

Senator Grassley has a second round. 

These AG guidelines, if you open an assessment that allows an 

agent, among other techniques, to conduct an indefinite 24-hour 

surveillance on a U.S. person, the regulations do not require a supervisor to look at that. I keep going back to the misuse of the exigency letters. You said the supervision would be put in place 

through FBI policies. If there are going to be policies anyway, why 

not just include them in the regulations to begin with? 

Mr. MUELLER. Because I do think the guidelines have always 

been a framework, and there are any number of situations and 

techniques that could be used in any particular situation. And 

what is important is to have the guidelines as a framework, and 

then working on that framework, flesh it out with particular requirements that may change over a period of time. In other words, 

if we establish a 30-day review period for our assessments, we may 

find that is too short a time or too long a time. And we should not 

have to go through, in my mind, a whole process of going back, requesting a change from the Department of Justice. We ought to be 

able to change those policies—with scrutiny from the Department 

of Justice, quite obviously, and with briefing to Congress, but to 

change those internal policies depending on what we find, what we 

learn. And inevitably there will be some set that we would have 

to come up to put into practice that which are the guidelines from 

the Attorney General. 

Chairman LEAHY. But you understand my concern, and I go back 

to the exigency letter when there was not adequate supervision. 

Mr. MUELLER. Yes. 

Chairman LEAHY. It is something both you and I agree on, and 

I just want to make sure there is supervision, because in a digital 

age so much of this stuff just lasts there forever, and we know 

what can happen. I used as another example, the Homeland Security, Senator Kennedy is denied access numerous times to an airplane because somehow he is on a terrorist list, or the year-old 

35 

child who had to get a passport to prove they are not a 30-yearold suspected terrorist. It was so inflexible that the parents say, 

‘‘Look, it is a year-old child.’’ ‘‘Sorry. It is the same name as a 30- 

year-old terrorist on our list’’—or 35 or whatever it was. People 

who are suddenly turned down for jobs or a security clearance or 

college loans or anything else are never told why because somewhere they got put on a list. And you end up with almost an Orwellian concept. 

Our concern is not that we do not go out and make threat assessments, but that we do it in such a way that there is some supervision and some way for the record to be cleared if somebody does 

not—if the threat assessment turns out to be simply a case where 

a disgruntled friend or neighbor says, ‘‘Heck, I will drop a dime on 

this person, even if it is not legitimate,’’ because in today’s age, it 

is not a dusty file put off in a filing cabinet somewhere. It is in all 

kinds of data banks. 

Mr. MUELLER. I do share your concern in that regard, Mr. Chairman. One thing I should add that I should have pointed out before 

in your hypothetical that you gave me, a person is driving down 

the street with—I think you said with a license plate that articulated something, that is under the guidelines as well as our procedures a circumstance where we could not open an assessment because the person was express First Amendment rights. And, consequently, that is an area that is carved out from that area where 

agents can undertake assessments. 

Chairman LEAHY. Well, let’s say there has been a threat assessment open, and let’s go through all the various steps. The supervisor has looked at it. It is not just an FBI agent who is exercising 

a personal predilection or something. Somebody has looked at it 

and has said, ‘‘Yes, this is a legitimate threat assessment. Let’s follow it up.’’ And all the appropriate steps are taken. The supervision 

is there, and they find, yes, there really was nothing there. It was 

a case of mistaken identity or whatever and that is it. The case is 

closed. But all that information that is gathered, what happens to 

it? Is it kept there forever? 

Mr. MUELLER. It is there subject to the rules of the archives. It 

will be there for a substantial period of time, just as on the criminal side of the house where you have an allegation that somebody 

violated the criminal laws—and, again, it could be a disgruntled 

employee, it could be a disgruntled spouse, it could be a disgruntled 

friend, who triggers the process. We do an assessment, we do an 

evaluation, and we determine that that was baseless, we retain 

those records according to those rules that are laid down by the archives. 

Chairman LEAHY. OK. But is there any firewall in there so the 

fact that this person’s name, there has been an investigation is not 

out there blocking them from getting on airplanes, blocking them 

from getting turned down for a promotion or a job, blocking them 

from getting a loan on their home and so forth? 

Mr. MUELLER. Well, unless there is some substantial substance 

to believe that the person is a terrorist, they do not—or they should 

not be or their name should not be with identifying data on the terrorist watchlist. We try to protect our records. We are very concerned about information that we may obtain relating to an allegaVerDate Nov 24 2008 11:11 Dec 09, 2009 Jkt 053619 PO 00000 Frm 00039 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53619.TXT SJUD1 PsN: CMORC
36 

tion that turns out to be baseless be out there. But we have a 

records retention policy that we file in all of our programs. 

There are occasions where we are asked to do background investigations on persons who may want to be judges or join an administration. We collect a fair amount of information with regard to 

those individuals. They have committed no crime, but the information we have obtained is pursuant to an authorized purpose, and 

we maintain that, both the good and the bad, without our acquisition of that adversely impacting that person in public. 

Chairman LEAHY. But, for example, going back to what—and I 

keep thinking of the exigent letters and what happened there. You 

called the editors of the Washington Post and the New York Times 

to apologize for illegally obtaining telephone records for several of 

their reporters back in 2004—not you personally obtaining them, 

but they were obtained by the FBI. And according to a briefing that 

we got from your staff, the FBI had no legal authority to obtain 

these records. The agents had falsely claimed that it was an emergency request in the records, and the FBI had simply ignored wellknown requirements that they get approval from the Justice Department before seeking these records from journalists. 

The Department of Justice Inspector General said that the national security—the FBI used its national security authority in 

more than 700 letters where there is no basis in law. 

Mr. MUELLER. Well— 

Chairman LEAHY. Now, you have apologized—and I commend 

you for doing this—to the Washington Post and the New York 

Times for that. What about these other 700 people? Do they get 

apologies? Do they get a note or anything? 

Mr. MUELLER. No, in the case of other investigations or information we obtain, it is maintained in our files for the period dictated 

by the archives and then ultimately destroyed, and no use is made 

of it in the meantime. 

With regard to those 700, we have pulled any—we have tried to 

pull—because we did not have the authority to collect, we have 

pulled that information from databases and sequestered it. And it 

has been eliminated from our files. 

With regard to the request that was made—actually, as I understand it—and the Inspector General is looking at this. As I understand it, an agent queried somebody in headquarters as to whether 

or not he could obtain records from an international entity relating 

to an ongoing investigation that did relate—and the records did relate to the media. That was picked up by another agent as a request, and what happened is we did not go through the approval 

procedures. They were bypassed, the approval procedures at the 

Department of Justice, when the request for those records was 

made. And once we found out from the Inspector General that the 

records had been obtained, we have sequestered them and sealed 

them. 

Chairman LEAHY. Thank you. 

Mr. MUELLER. No investigative use was made of those records. 

Chairman LEAHY. Thank you. 

Senator Grassley. 

Senator GRASSLEY. I want to thank you because you got back 

very quickly, as you promised you would, if you could give us inforVerDate Nov 24 2008 11:11 Dec 09, 2009 Jkt 053619 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53619.TXT SJUD1 PsN: CMORC
37 

mation about the lab access records, and you do that and I thank 

you. I would like to have one little followup on that, and then I will 

go on to something else. 

If the FBI had the lab access records in 2002, why did it take 

so long to analyze them and learn that he had been alone in the 

lab late at night around the time of the mailing? 

Mr. MUELLER. I think the answer to that question, Senator, is 

that we obtained in 2002 thousands upon thousands of lab records 

from any number of laboratories who were in the purview of those 

laboratories that had individuals or had access to the Ames anthrax. And, consequently, we had a very large set of records, and 

it is only when they were used when we focused on an individual. 

And there has to be something that warranted us going to a particular record to analyze it beyond just the fact of analyzing hundreds—probably hundreds of thousands of pages of scientists, 99.9 

percent of which were validly in the suites after hours. And so I 

think it was a question of focusing the investigation. 

Now, I say that without having talked to the agents but having 

had secondhand understanding. So I would like to confirm that, 

that that was the case. 

Senator GRASSLEY. Well, if there is anything contrary, then you 

can submit that in writing. I have just one more question in regard 

to Dr. Ivins. Then I will move on. 

According to information released by the FBI, the material in the 

anthrax attack envelopes contained silicon. I understand that scientists at Sandia National Labs conducted a series of blind tests 

on samples of the material taken from the flask in Dr. Ivins’ lab 

at Fort Detrick. Unlike materials in the attack envelope, the material in the flask did not contain silicon. Can you confirm that testing found no silicon in the flask from Dr. Ivins lab in Fort Detrick? 

And if there was no silicon in the flask material, then can you explain how silicon ended up in the attack envelopes? 

Mr. MUELLER. You are a little bit out of my expertise at this 

juncture. I do know that there was an issue of silicon or silica at 

the outset, and it was determined that the silica was not on the 

exterior of the spore but was part of the growth process. 

Now, in terms of how that related to the anthrax in the flask 

maintained by Dr. Ivins, I would have to get back to you on that. 

Senator GRASSLEY. OK, and I will be glad to have you do that. 

Thank you very much. 

In regard to exigent— 

Mr. MUELLER. I will say, Senator, there are probably a number 

of scientists out there who are looking askance at my answer. I 

think it is pretty much on target, but I have to confess that I am 

a little bit out of my depth in terms of diving deeply into the 

science. 

Senator GRASSLEY. I accept your confession and wait for your answer. 

This Committee requested e-mails related to the exigent letter 

controversy more than a year and a half ago. I recently received 

a letter saying that you would not provide the documents because 

of the ongoing Inspector General’s investigation. However, the FBI 

previously indicated it would provide the documents and then actually provided a few of them last October, even though the Inspector 

38 

General was investigating then as well. So your position on this 

has not been consistent. I do not believe that we should have to 

wait for months or years for the executive branch to conduct its 

own internal inquiries before we get answers to oversight requests. 

Two questions together. Why should we have to wait so long to 

get these documents? And then, second, in responding to congressional document requests like these, are you limited more than you 

would like to be by the Justice Department policies that prevent 

you from responding to Congress even though a more complete response would be in the interest of the FBI? 

Mr. MUELLER. Excuse me just one second if I could. 

[Pause.] 

Mr. MUELLER. Again, I am not certain as to why there is the inconsistency. We have tried to be as open as we can with regard to 

documents such as that. We are constrained periodically by the Department of Justice for reasons that are explained to us and which 

we tried to explain to you as well. But I would have to get back 

to you on this particular circumstance as to why— 

Senator GRASSLEY. Can you concentrate on the second question, 

then, in regard—let me repeat it. In responding to congressional 

document requests like these, are you limited more than you would 

like to be by the Justice Department policies that prevent you from 

responding to Congress even though a more complete response 

would be in the interest of the FBI? 

Mr. MUELLER. There are occasions— 

Senator GRASSLEY. It can be less of a problem for you, let me 

add. 

Mr. MUELLER. I will tell you without specific reference to a particular case, we do not see eye to eye—there are occasions where 

we do not see eye to eye with the Department of Justice. But I am 

a component of the Department of Justice. 

Senator GRASSLEY. OK. Recently, the— 

Mr. MUELLER. Relatively rare, I must say, but there are occasions where we part company. 

Senator GRASSLEY. OK. Recently, the Attorney General proposed 

new guidelines for investigative activities by the FBI. I am concerned with the portion of the guidelines related to cooperation 

among Federal law enforcement agencies. Specifically, the section 

in question outlines how criminal matters outside the FBI jurisdiction are to be treated. It goes on to state—and I have got to paraphrase because I do not have a copy—that any criminal matter outside the FBI’s jurisdiction that arises should be transferred to other 

law enforcement agencies with expertise. However, it adds that if 

it would jeopardize an investigation or a source, the FBI can simply 

write up a memo and forward it to the Deputy Attorney General 

and move on. The guidelines are silent as to what the Deputy Attorney General does with this information. I am concerned that 

this new provision could lead to gaps in information sharing and 

ultimately let criminal wrongdoings go unpursued because of turf 

battles. So four questions that kind of go together. I would like to 

state them all. 

Under the new guidelines, what would the Deputy Attorney General do with any information forwarded from an FBI field office 

that the office believed would jeopardize an FBI investigation? 

39 

Two, would the other coordinate law enforcement agencies ever 

get that information? 

Three, would the FBI pursue the case? 

And, four, is the decision made by the field office to refer the 

matter to the Deputy Attorney General ever reviewed? And if so, 

could a field office decision to not share the information be overturned? 

Mr. MUELLER. The answer to the first question, I believe the 

Deputy would look at it and determine whether or not the rationale 

given for not alerting the other agency was valid. I think the Deputy would also make a determination as to whether or not there 

was a time period during which they should not be notified, but 

after that time period or after that investigative activity, the other 

agency should be alerted. 

As to the third portion of the question, certainly the FBI should 

be pursued, and if it came from field to headquarters to the Deputy 

Attorney General’s office, then headquarters would certainly be involved in that process. 

And, last, certainly the view of a field office would be and could 

be second-guessed by either headquarters or the Deputy Attorney 

General and the field office determination overturned, either at 

headquarters or with the DAG. 

Senator GRASSLEY. OK. Thank you, Mr. Chairman. Thank you, 

Mr. Director. 

Chairman LEAHY. Well, thank you, Senator Grassley. We will 

hold the record open for the appropriate time, also, Director, on 

some of these questions, if you find after looking at the transcript 

that there is additional material you want, of course, the transcript 

to be open for that, I would encourage you to do that. Many, as you 

have noticed, on both sides of the aisle have raised questions about 

whether the Attorney General’s proposed new guidelines for FBI 

activities would give the FBI sweeping new powers with minimal 

checks to prevent the kind of things we saw in the national security letters. 

I think we could have been more productive today if the Attorney 

General had agreed with the request that Senator Specter and I 

made to provide copies of the proposed guidelines. But like the limited briefings that have been given to staff, the exchange today was 

a good start. I think it could have been better had we had that. 

That is not any criticism of you. That is a decision made by the Attorney General. 

I was pleased, though, with your promising this Committee that 

the FBI is going to be vigilant in investigating whether fraud or 

lawbreaking contributed to the ongoing financial crisis. It is the 

worst we have experienced since the Great Depression. It has exposed the American taxpayers to possibly trillions of dollars in 

losses. And, of course, we have seen the devastation of homeowners 

and investments and lives across the country. Drive through any 

community in America and look at the number of ‘‘For Sale/Foreclosure’’ signs—unprecedented, certainly in my lifetime. It is the 

kind of thing my parents told me about that they observed during 

the Great Depression. 

The Wall Street mess has a lot of causes, but it illuminates a 

number of the problems we have seen in these past few years. I 

40 

think they include incompetence in some of the appointments to 

regulatory agencies the White House has made. These are people 

who are supposed to be the public’s on-the-scene watchdogs. We 

have squandered faith in market mechanisms by winking at increasing signs of excess and corner-cutting by rich and powerful 

corporations. I believe there has been indifference to the widening 

gap between the very super-rich and ordinary Americans, the lack 

of affordable housing. These are fundamentals of responsible economic and fiscal policy. It has been ignored in this administration, 

and whoever the next President is, they must try to straighten that 

out. 

On a personal level, I thank the Director for being here—I agree 

with what Senator Whitehouse and others have said—and I commend him for the amount of time you have spent in meetings and 

trying to answer my questions, including one that was obviously 

classified. 

Go ahead. 

Mr. MUELLER. I am sorry. Could I interrupt just to clarify an answer I had before? 

Chairman LEAHY. Of course. 

Mr. MUELLER. In mentioning the subpoenas for the media 

records overseas, I mentioned that the individuals did not go 

through the process at the Department of Justice. What I failed to 

mention, which was another aspect of it, was that an exigent letter 

was used, which is also inappropriate. And I did not want to omit 

that from the calculus and paint it as something other than it was. 

Chairman LEAHY. Thank you. I appreciate that. Several of us 

here will continue to work with you as these guidelines come out 

and with the Attorney General, even though he seems reluctant to 

work with us. But I would also—on a question I asked you, we will 

work with you and your office to provide in a classified fashion the 

response to Senator Specter and myself that will be available under 

the normal fashion that we handle—he and I handle a great deal 

of classified material here, and we will follow the normal procedures on that. 

With that, Director, I thank you for coming. 

Mr. MUELLER. Thank you, sir. 

[Whereupon, at 12:13 p.m., the Committee was adjourned.] 

41 


53619.001
42 


53619.002
43 


53619.003
44 


53619.004
45 


53619.005
46 


53619.006
47 


53619.007
48 


53619.008
49 


53619.009
50 


53619.010
51 


53619.011
52 


53619.012
53 


53619.013
54 


53619.014
55 


53619.015
56 


53619.016
57 


53619.017
58 


53619.018
59 


53619.019
60 


53619.020
61 


53619.021
62 


53619.022
63 


53619.023
64 


53619.024
65 


53619.025
66 


53619.026
67 


53619.027
68 


53619.028
69 


53619.029
70 


53619.030
71 


53619.031
72 


53619.032
73 


53619.033
74 


53619.034
75 


53619.035
76 


53619.036
77 


53619.037
78 


53619.038
79 


53619.039
80 


53619.040
81 


53619.041
82 


53619.042
83 


53619.043
84 


53619.044
85 


53619.045
86 


53619.046
87 


53619.047
88 


53619.048
89 


53619.049
90 


53619.050
91 


53619.051
92 


53619.052
93 


53619.053
94 


53619.054
95 


53619.055
96 


53619.056
97 


53619.057
98 


53619.058
99 


53619.059
100 


53619.060
101 


53619.061
102 


53619.062
103 


53619.063
104 


53619.064
105 


53619.065
106 


53619.066
107 


53619.067
108 


53619.068
109 


53619.069
110 


53619.070
111 


53619.071
112 


53619.072
113 


53619.073
114 


53619.074
115 


53619.075
116 


53619.076
117 


53619.077
118 


53619.078
119 


53619.079
120 


53619.080
121 


53619.081
122 


53619.082
123 


53619.083
124 


53619.084
125 


53619.085
126 


53619.086
127 


53619.087
128 

Æ 


53619.088