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Judiciary Committee Hearing with Director Mueller, Part III

Aired June 6, 2002 - 10:30   ET




SEN. ORRIN HATCH (R), UTAH: Thank you, Senator Leahy.

Mr. Mueller, as I understand it, the Patriot Act has worked quite well so far, but there is one area where you're having difficulties, and that's FISA requests. We're currently -- to get a warrant, there's a requirement of proof of association with the foreign power. Am I right on that?

MUELLER: There is a requirement under the FISA statute that we demonstrate a belief that the person who is under scrutiny and for whom we wish to obtain court-ordered interception is a, quote, "agent of a foreign power." And that has been defined as including an individual who is associated with a terrorist group.

HATCH: How many of these approximately 20 terrorists that we have been very concerned about participated in the September matter? How many of those could you have gotten a warrant?

MUELLER: Well, prior to September 11 the 19 or the 20 hijackers, it would have been very difficult, because we had -- in looking at it, trying to go back we had very little information as to any one of the individuals being associated with...

HATCH: Foreign power.

MUELLER: ... a particular terrorist group.

One of the issues in the Moussaoui set of circumstances was whether or not the evidence was sufficient to show that Mr. Moussaoui was associated with any particular terrorist group. If you talk to the agents -- and I know we've had Ken Williams and other agents up briefing the Congress -- I believe the agents will tell you that one of the problems they have in this area, which we believe Congress ought to look at, is the requirement that we tie a particular terrorist to a recognized terrorist group.

HATCH: Or a foreign power.

MUELLER: Or a foreign power -- agent of a foreign power. HATCH: In fact, you probably would have had a difficult time showing that any of them were agents of a foreign power.

MUELLER: A terrorist group, a defined -- and it's a loose definition -- a terrorist group has been defined as an agent of a foreign power.

Our problem comes in trying to show that a particular individual is connected to a specific, defined -- in a variety of ways -- terrorist group. I mean, once we get a connection with Al Qaeda, for instance, even though it is not a foreign power, Al Qaeda is sufficiently distinct group so that we can get the FISA that we need.

But we have problems where you have a lone wolf, for instance, who may be out there who we think is a threat, but we have difficulty tying to any particular defined terrorist group.

HATCH: Well, if we try to change that, I presume a lot of civil liberties groups and persons will be very much against making that change.

MUELLER: I can't speak to that, Senator. But I do think it is something that we need to look at and that Congress should take a look at.

HATCH: My understanding is Senators Schumer and Kyl have just introduced...

MUELLER: I heard yesterday that there was a bill, and I have not had a chance to review it. But it is something that (OFF-MIKE)

HATCH: Now, I have real concerns that some terrorist groups have been able to hide and operate in this country under the cloak of political and religious institutions. We've seen that. This is obviously a very sensitive issue. And I have two questions relating to this topic, as one who has championed both religious freedom and protecting, you know, our First Amendment rights.

Under the old guidelines, were there any situations where the FBI was unable to pursue legitimate investigations, because of a fear that investigating criminal activity occurring the guise of political and religious activity.

MUELLER: Yes, I'm lead to believe that that is the case.

HATCH: Can you provide us any examples of how such institutions were able to facilitate terrorist activities?

MUELLER: I would have to go back and query the field with specific examples.

But in my general discussions and general briefings, the understanding of the agents was that you needed predication to start a preliminary inquiry, predication to the extent that somebody was contemplating criminal acts.

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

What the guidelines change does is open up the possibilities that the agent can utilize, once the agent has determined that there is information pertaining to terrorist or terrorism activity.

HATCH: The prior investigative guidelines were adopted in response to significant FBI abuses, according to some, that occurred several decades ago. Now, some have raised concerns that the new guidelines the department has put forth may infringe on civil liberties. In public statements, however, you and Attorney General Ashcroft have emphasized that the new investigative guidelines are necessary (inaudible) prevent and detect terrorism and other crimes before they occur, which is what the FBI is being criticized for, for not having done; being great after the crimes occur, but not so good before in the prevention area, before they occur.

Now, you have also indicated that these guidelines will preserve and prohibit any action which would impact our constitutional freedoms and statutory protections. Now, would you explain to us how the new guidelines will assist law enforcement officers in detecting and preventing crime, while at the same time preserving our civil liberties?

MUELLER: I think the best example is the Internet -- the use of the Internet. Just about every, actually 12-year-old, not just law enforcement individuals or in other agencies, could go on to the Internet and determine whether or not there are web sites that have an address -- manufacturing explosives, encouraging persons to commit violent acts against the United States, encouraging people to sign up to commit violent acts against the United States.

What the guidelines do are free the agents to go and do that preliminary analysis without believing that it is contrary to the guidelines, and it covers most specifically in the terrorism area. And that freedom is critically important for us to keep abreast of what terrorists are doing utilizing the modern means of communication.

HATCH: On the issue of profiling, which, of course, is a very sensitive issue, you say, one way or the other -- or can you say one way or the other whether fear of being accused of improper, quote, "racial profiling," unquote, may have caused law enforcement agents to be reticent in investigating claims or approving investigations into certain suspects? Now, how does the FBI define racial profiling, and has this definition changed in any way since September 11? And I'm very much aware of the fact that the Phoenix memo and the Rowley letter includes suspicions of terrorist activity that were based in part on ethnicity.

MUELLER: I think I've seen indications of concerns about taking certain action because that action may be perceived as profiling. The bureau is against -- has been and will be against any form of profiling.

The new guidelines address individuals, not members of a particular group and not members of a particular political persuasion or anything along those lines. The new guidelines look at individuals and groups of individuals who may be -- and the changes -- who may be contemplating terrorist activity.

HATCH: Whether or not they're religious activities?

MUELLER: Whether or not it's religious. Whether or not it relates to any particular religion, whether or not it relates to any particular country.

HATCH: Let me first state, Director Mueller, you've publicly commented on both the Agent Rowley letter and the Phoenix memo, suggesting that their contents underscore the need to reorganize the FBI, both structurally and culturally. Now, can you specifically address how your proposed reorganization plan addresses the particular issues raised by Special Agent Rowley in the FBI's handling of the Phoenix memo?

MUELLER: I think that I have based -- both the Phoenix EC and the Rowley memo point out a deficiency that I have spoke to when I was before this committee on May 8, and that is, our ability to gather intelligence information, snippets of information from a variety of various investigations around the country and pull them together, analyze them, coordinate that analysis with the CIA or the DIA or NSA or other agencies who may also have snippets of information, and then be better able to disseminate the results of that analysis back to the field so that appropriate action could be taken.

I've said before that the procedures should have been in place so that the Phoenix memorandum went to the CIA and that the Phoenix memorandum was made available to those in Minneapolis in the determination as to whether or not they had sufficient evidence to have the FISA application approved.

What we have done since then is taken a variety of steps to assure that information like that comes up higher in the organization, that it is disseminated across the various organizations; for instance, my briefing pack -- I get a briefing book every day. It's about an inch, inch and a half thick. And most of the distillation of that goes to the CIA. I'm briefed by the CIA every day on what the CIA has.

The procedures in place on the FISA has changed somewhat. To the extent that there are concerns in the field about whether or not we have sufficient information, if there's a belief that we do not have sufficient information, it goes to the new head of the Counterterrorism Division and ultimately to me. I get briefed every day on the status of our FISA applications to determine whether or not we are being aggressive enough, whether or not there is other information about there to determine whether or not we should go forward.

What would be helpful, what we need, is argumentation of our analytical program because there are torrents of information coming in daily and also the argumentation of our technology, to which I have spoke at some length.

HATCH: Thank you.

MUELLER: Thank you.

HATCH: Mr. Chairman, my time is up. I happen to be also on the Joint Intelligence Committee that is meeting at the same time, so I'll have to try and alternate between the two meetings. I hope you will forgive me for that.

LEAHY: What we're going to do is go now to Senator Kennedy. We'll then go to Senator Grassley. But when the vote occurs, once whoever's asking questions finishes his questions, we will then recess so that we could all vote and then come back quickly thereafter.

Senator Kennedy?

SEN. TED KENNEDY (D), MASSACHUSETTS: Thank you. Thank you very much, Mr. Chairman. Thank you, Director Mueller, for being here this morning.

Obviously, no challenge we face today is more important than dealing effectively with the terrorist threat facing the nation. Reform of the FBI is an essential part of meeting that challenge.

In relationship to the September 11 attacks, the FBI's been criticized for failure to act on the information it had and to coordinate effectively with other agencies. To your credit, you've acknowledged the existence of serious problems and have committed yourself to addressing them. I'm sure you agree that we must do so in a way that preserves the basic constitutional rights that are the heart of our democracy.

On September 11, the Justice Department arrested and detained more than 1,200 Arab and Muslim immigrants. Yesterday the Justice Department unilaterally announced it will require tens of thousands of Muslim and Arab visa holders -- students, workers, researchers and tourists -- to register with the government, be fingerprinted and photographed. INS inspectors will apply secret criteria and their own discretion in deciding which visa holders will be subject to this registration requirement.

I know the FBI's been recruiting, as agents, U.S. citizens who are Arabs or Muslims. This service is critically important to our fight against terrorism. I'm very concerned, however, the Justice Department's post-September 11 policies with respect to Muslims and Arabs will seriously undermine your recruitment efforts.

In particular, I'm troubled by the visa holder registration policy announced yesterday. Your agency is expending valuable time and resources to recruit these U.S. citizens in our Arab and Muslim communities, at the same time the Justice Department is photographing, fingerprinting and registering their law-abiding siblings, cousins, visiting the United States.

So what impact do you think these policies will have on the Arab and Muslim communities in the U.S., if you're holding job fairs in the morning and fingerprinting them in the afternoon?

MUELLER: Senator, if I might, going back to what we had done in the wake of September 11 in the course of the investigation, immediately after September 11, we understood that the first thing we had to address was whether or not there was a second wave of terrorists out there who may conduct the same or similar terrorist attacks. And immediately what we did was to determine everything we could about the 19 hijackers, how they got their tickets, where they lived, where they went to flight schools, and immediately came up with individuals who had information about them whom we wanted to interview.

In the course of those interviews, we would find that a number of individuals of all religions, from a number of different countries, would fall into one of three categories. One, there may be an individual who is a subject of federal, state or local charges, and had not been arrested, and we would detain them. There would be an individual perhaps who was out of status with Immigration and would be detained by Immigration. And then there is a third, a handful of individuals who were detained pursuant to material witness warrants issued by judges.

We were not looking for individuals of any particular religion or from any particular country. Each one of those individuals detained was interviewed because we had predication to do those interviews.

Now, turning to the initiative announced by the attorney general yesterday, my understanding is that there is a mandate from Congress to institute entry and exit precautions. My understanding is what was announced yesterday is in part responsive to that...

KENNEDY: I'd like to go over -- I'm familiar; I was very involved in that legislation. On the board of security as well as the immigration. And I want to get your references on that, because I'm familiar with it. And if you're relying on it, I'd like to know specifically what that authority is in there.

We looked through it last night again in anticipation of this kind of response. And I'd like to get that from the department at another time.

MUELLER: I am not familiar with it myself. But we will provide that, Senator. But I will say if I could that it is critically important that we do a better job of -- we are a very open country. And we want to stay a very open country. But we have to do a better job of knowing who is coming in our borders, where they are within the United States when they're here, and when they leave. And that is one of the areas that we just have to do a heck of a lot better job at. And I believe the proposals yesterday are addressed to that concern.

KENNEDY: Well, one of the most important, which we passed with bipartisan support, included that the CIA was to share information with the FBI in granting these visas, which they never did in the circumstances before, and have commonality in terms of the computers using biometric information. We're working on that, and want to work with the administration on it. But I want to -- the relying on what we did in this -- what the department did yesterday, relying on that legislation, is something that -- but let me continue. Is it true that none of the 1,200 or more Arab and Muslim detainees that after September 11 were held, were charged with any terrorist crimes or even certified under the Patriot Act as persons suspected of involvement in terrorist activity? I understand the FBI's still conducting clearances in a small number of these cases. But hasn't the overwhelming majority been positively cleared by your agency of any involvement in the September attacks? In fact, weren't these detainees only charged with technical and minor immigration violations?

MUELLER: Well, I think the violations cut across the board. There were some that were charged, I believe, with...

KENNEDY: With terrorism as distinct from immigration violations. I think I'm correct if I say that they had not been associated -- links with the terrorist acts.

MUELLER: Well, a specific terrorist charge of somebody who was going to or had committed a terrorist act, no. But there are a number of persons who have been charged with facilitating either the hijackers, or lying about their association with the hijackers or other terrorists.

KENNEDY: See, a part of yesterday's activity is that you understand, in order to get the visa, extensive review and investigation has to be done before the visa is ever going to be granted. And that should be the result of FBI and CIA information, before the individual is even granted the visa. So investigation has been done.

And when we have follow-on procedures when they come to this country, so that we have biometric information and know that that person is there. And there is discretion, obviously, even on the entry officer, about how they're going to treat it.

And now you add this other, kind of, layer of fingerprinting. And we are trying to understand what the basis for that, since there's been an investigation of these individuals for visas in the first place.

And that we want to try...


KENNEDY: The question as I think you've mentioned this morning about the focusing and the attention on taxing the agencies' resources in the round-up and detention, and now the registration, of vast numbers of Arabs and Muslims -- an effective investigative technique, or is it wasting the law enforcement resources?

It has at least impressed many people that the problem hasn't been so much the collection, it's been in the analysis of information by the agency. And we see in response to that kind of gap a great deal more of outreach which, in a number of instances that really threaten the Americans' rights and liberties as a matter of concern. I don't know whether my time is running down, whether you make some brief comment about it.

You're very clear, you know, in your confirmation hearing about these values and a very powerful statement which I believe is your view.

MUELLER: And it is still my view. I still believe that we have to protect the freedoms that we have in this country that are guaranteed by the Constitution, or all the work we do to protect it will be at naught.

But there are things that we can do well within the Constitution that will assist us in identifying those amongst our midst who wish to kill Americans. And to the extent that within the Constitution we have a greater capacity to address the threat against the American public, we're asking Congress to, with us, help us meet that challenge.

KENNEDY: Let me just in a final area -- and I'll follow up with written questions about the changes in the FBI guidelines on the use of confidential informants. As you know, very, very well a terrible scandal with the Boston FBI office lead to the important changes in how the FBI is going to handle these confidential informants.

And these reforms were adopted only two years ago, and it's critical they not be watered down. And I know you're very familiar with that situation, in the real scandal of how FBI agent handled these informants, and the corresponding steps that were taken so that we weren't going to have these kinds of abuses in the future. And now, there's certainly a good deal of concern, I know up our way, about whether we are going to be opening up the Pandora's Box on this. And I know you're very familiar both with the challenge that we had up in Boston and the change in the rules, and also the current changes.

Could you comment about how you think that these changes here will not open up the door to kinds of abuses that we've seen recently?

MUELLER: I am familiar with the circumstances of what happened in Boston, and it was not a good chapter in the bureau, and that's an understatement. And I participated in the development of the -- and change of the informant guidelines to address the situation that you have up in Boston.

The minor modifications that have been suggested to those guidelines in my mind do not in any way undercut the efficacy of those guidelines in addressing the kind of circumstance that happened up in Boston.

But also, within the organization, we have to to implement the procedures, particularly in our inspection process, so that we just don't go out and look at paper, but we look at what's represented by the paper. Too often our inspection process failed, and our inspection process should have picked up something like that, but it did not in the past.

So we have the guidelines, and we are looking at, and will look at our inspection process to determine how we can do a better job in assuring that this kind of circumstance does not happen again.

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

LEAHY: Thank you.





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