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Judiciary Committee Hearing, Part VII

Aired June 6, 2002 - 15:17   ET


LEON HARRIS, CNN ANCHOR: We're going to jump in here right now because we've just gotten a picture that we've been waiting to see this afternoon, that of the whistle-blower, FBI special agent Coleen Rowley. You see her there seated in the center. She is the author of the memo that was -- a quite scathing memo that was sent to the FBI director, criticizing the FBI's systems in the way that they have impeded the investigations that have been taking place there within the system for so long, and she also forwarded that memo on to Congress, and it has since -- in the meantime created quite a round there, if I can use that term.

Let's check in now with Kate Snow, who is also covering this for us on Capitol Hill -- Kate.

KATE SNOW, CNN CORRESPONDENT: Leon, I think you're going to want to stay tuned for this. She's going to have some have interesting things to say here in just a moment. I've been told that she will talk quite a bit about the memo that she wrote, that 13-page letter to the director FBI Robert Mueller, criticizing headquarters for blocking attempts by her office in Minnesota to get information about Zacarias Moussaoui.

She'll talk about agonizing over that, writing from the heart. She'll also talk about what she identifies as the problems at the FBI bureaucracy. She says, look the agency is risk adverse. People don't want to take chances because they're afraid that they might be wrong or make mistakes.

Senator Patrick Leahy now, the Chairman of the committee.

SEN. PATRICK LEAHY (D), VERMONT: Just give me a little cooperation so I can see -- I love you all, but (UNINTELLIGIBLE).

I do want to welcome Special Agent Coleen M. Rowley of the FBI. She's been an FBI agent for 21 years. She's currently the chief division counsel for the Minneapolis field office of the FBI. She came to the attention of this committee when she wrote a letter to Director Mueller that was given to members of Congress. And her letter refers to a number of issues this committee's heard from other FBI agents in the past. And Senator Hatch and I felt that -- the nature of the hearing we're having today, it would be good if she testified.

Did you want to say something before it starts? SEN. ORRIN HATCH (R), UTAH: No, I'm fine, I'm just looking forward to your testimony.

SEN. CHUCK GRASSLEY (R), IOWA: Mr. Chairman, could I say something?

LEAHY: Yes. The senator from Iowa, of course.

GRASSLEY: Yes. I thank you, Mr. Chairman, because Special Agent Rowley is a native of my home state of Iowa, and she's also a native of my wife's home town of New Hampton, Iowa. But more importantly, Agent Rowley is a patriotic American who had the courage to put truth first and raise critical but important questions about how the FBI handled a terrorist case before the attacks, and about the FBI's cultural problems.

Agent Rowley, your testimony today is a great service to this committee, the entire Congress, the FBI and the American people, and I thank you for coming.

We should be honored to hear your testimony today. People like you who come forth to, as I put it, to commit the truth, a very terrible sin among some federal employees, but you come forth with important information about the FBI. There's been heroes like Fred Whitehurst before you who exposed the FBI crime lab scandal, and we had four agents last summer who revealed disparities in discipline and a pattern of retaliation against those who investigated misconduct inside the FBI.

Agent Rowley has thrown the spotlight on specific and general problems happening at the FBI before the terrorist attacks, and she has important insights with her perspective from the field about what the FBI can do to change. The FBI must improve so it can prevent future terrorist attacks, and her testimony, I believe, is very important to help this happen.

Ms. Rowley, I believe, is a dedicated public servant who tells it like it is. She wanted to be an FBI agent since she was 5 years old, and she has had a distinguished 20-year career at the FBI. She worked in a variety of offices, including New York, where she investigated Mafia after learning Italian, and worked with people like Rudy Giuliani, Louis Freeh and Michael Chirktaw (ph). She worked in the Minneapolis division, now since 1990, and a number of areas, including as the ethics officer.

Agent Rowley, I thank you again for agreeing to testify today so that we can hear your constructive criticism of the FBI to help it reform and to help it improve.

Thank you, Mr. Chairman.

LEAHY: Thank you.

Well, Ms. Rowley, both Senator Wellstone, the senior senator from your state, and Senator Grassley, who is from your state of birth, have said very good things about you. And they both have gone out of their way to talk to members of the committee with all of that. Now we'd like to hear from you.

As you had mentioned, a roll call vote has started. Why don't you begin your statement? If we have to stop at some point, I will. It won't be because of something you said, it's only because we have to vote in person. Go ahead.

COLEEN ROWLEY, SPECIAL AGENT, FBI: Well, the first thing I want to do is thank you for the opportunity to appear today. I never really anticipated this kind of impact when I wrote this letter to Director Mueller over two weeks ago. I don't know if you know, I think they've been saying I anguished over this a week. It wasn't even quite a week. It was more like a three-day period, and it was a fairly sleepless three-day period when I began to initially just jot down my thoughts, because I knew I had to appear before the staffers of the Joint Intelligence Committee, and I didn't want to forget anything.

And also, you'll probably find out, I'm a little better on paper than I am verbally, so I was, kind of, afraid of that. That was one of the reasons I started to write it down.

I also had another big impetus that was kind of behind this all, and one of the things was I thought the new direction of the FBI, perhaps -- it was, kind of, hard to discern when it was first announced, but I thought I saw some impetus towards a little more additional bureaucracy and micromanaging from headquarters. And I wanted to point out to Director Mueller that that seemed to fly in the face of what we should have learned from September 11. And the two things were the impetus for the letter.

Of course, you know, I have many years of experience in the FBI. I really do care, really about the FBI. I've invested, you know, almost half my life in it. And I do care also our protection now. I've got four children. A lot of my friends have children, and I really think we ought to be doing our best to try to prevent any future acts of terrorism. I did, in the last couple of weeks, receive hundreds -- I was counting them for a while but I lost track -- but I received hundreds of e-mails and telephone calls from agents -- mostly agents, some supervisors, some prosecutors, some retired FBI leaders. And I'm not going to presume to speak for all of those people, but when I looked at them, and I've read most of them -- there's a few I probably haven't got a chance to look at that have come in since I left, but of the ones I looked at, I did see a real common theme emerging. It seems like it, kind of, struck a chord with a lot of people about this idea of the bureaucracy.

A lot of other agents told me similar stories about cases that had, you know, maybe unjustifiably not gotten anywhere. And I have, you know, a whole stack of those.

I think there is really the main thing being a real strong consensus that we need to streamline the FBI's bureaucracy in order to more effectively combat terrorism. We need that agility that Director Mueller was speaking of this morning, that agility and ability to quickly react, and I really see that as, if you get too top-heavy with too many layers, he also mentioned that problem, that you are going to be stymied.

I was encouraged by Director Mueller's testimony this morning, because I think many of his ideas do seem to go in the right direction, and actually are quite consistent with the various items I had in my letter to him. He really has an extremely difficult job, and that's an understatement. When I talk about trying to trim the bureaucracy a little bit, I don't know how you can underestimate that. It's been tried before and failed, and he just has a tremendously difficult job, which I can appreciate.

I want everyone to know that no one today previewed, in the FBI -- of course, they gave me approval to be here, but no one read the statement I did. I did this one quite quickly because I didn't know I was coming until recently, and in this statement, which I'm not going to read, because you can read it when you want to, I have some ideas in here. Some of these ideas, again, come from other agents, some of whom are more experienced in intelligence than I am. And then some of them are my own ideas. I am the legal counsel, so some of the legal issues are things that I've seen as an issue that have arisen in the past few years.

And you can read that at your leisure, and if someone wants to ask me a specific question about any of those, that's fine.

I guess what I can go on maybe beyond what Director Mueller -- I guess what I'm going to try to do is -- the FBI made mistakes prior to September 11. I made a little mistake. If you look at my letter, I made a mistake on the first page, I got the date wrong. It was August 16. I mean, I proofread it once, and I missed it.

We all make mistakes, and I think that there are other levels of our criminal justice system, there are other federal agencies I'm not going to talk about, but there are also the prosecutors, when you try to go criminal. There's entities in the Department of Justice and to some extent I've, kind of, broadened some of what I've written in my statement to include those other criminal justice entities that -- you know, the FBI is real important, but we certainly -- there are certainly other entities that are very important here, too.

I was also encouraged -- I don't know if anyone asked a question about it today, but when I read Director Mueller's statement he points to integrity -- I think it's the last page also -- and he does point to that as an issue. And I'm very encouraged by that, because, of course, if you look at the end of my statement, I think integrity is extremely important.

Some of the people this morning did ask questions about how are we going to effectively combat terrorism. We are going to be in a proactive environment, which definitely has the potential of maybe interfering with people's civil liberties, and how are we going to still protect those civil liberties. And I honestly think integrity really plays into this whole item.

When you're asking for some new law or new authority, it's perhaps not only what the law allows you to do, but it's how it's going to be done. And then it really boils down to an issue of trust with the agency or the entity that you're giving this particular power to.

And there are potentials for abuse, if you go over that line, and I think as an agency we have to be so completely truthful and honest that people are able to trust the FBI that we will not cross those lines and commit any kind of civil rights violation or collect too much information, et cetera.

That basically is all I want to say, and then if anyone has a question from my statement.

LEAHY: Ms. Rowley, we will. What I'm going to do now, we have about four minutes left in this vote, I'm going to suggest everybody go and vote. We'll stand in recess for a minute, or the amount of time it takes, come back. And that way we'll be uninterrupted. Thank you.

HARRIS: All right. As you can see, Chairman Leahy has called a little recess for the senators there to go and vote in a roll call that is now under way. Our Kate Snow is standing by in Washington on Capitol Hill. She has been listening in as well. Kate, first of all, how long does a roll call vote take? Give us an idea of how long we are going to have to wait here?

SNOW: Oh, I don't know how long this one will take. I think he just said it was almost over. They have a certain window of time where they can vote. So I don't think they'll be gone too, too long. Maybe 10, 15 minutes.

You know, what is interesting about what just happened? She didn't read -- she brought a prepared, written statement with her. You might have expected that somebody who doesn't have a lot of experience testifying before Congress might have sat there and glued to the page, read her statement, but did you see the guts that she had, Leon?


SNOW: She didn't even look down. She was just forthright, she talked straight to the senators, and then she said, "I'm open to any questions you might have."

One little tidbit about how she spent her morning this morning -- we learned that she spent the morning with Senator Chuck Grassley, who is the one who introduced her there at the beginning. You heard him say that they have a connection personally, that his wife, the senator's wife is from the same small town in Iowa that she is originally from.

They had breakfast yesterday morning, we know that as well. I've heard that they hit it off very well. He really respects her for what she has done here. She started to lay out a little bit of what she thinks about the bureaucracies, said there is too many layers there. She said she has gotten hundreds and hundreds of responses from other FBI agents, former agents, prosecutors. She said people writing to her since that letter came out of hers, saying that they agree with her and that they have had similar problems. I'm sure we are going to hear more about that, Leon, as that progresses.

HARRIS: Yeah, that's one thing I was listening for in particular, Kate, because, as you know -- you know what happens normally to whistle-blowers in situations like this, and it isn't always a pleasant situation for them. A lot of times they get pressure put on them by those who are -- many times those who have left the organization and are really still holding to keeping the reputation intact of the organization. And you know, in this case, it sounds as though she is saying she hasn't heard very much negative feedback.

SNOW: Well, not according to what she just said. And you know, we know a little bit about her. We went out -- Candy Crowley, one of our reporters, went out to Minneapolis recently to talk some of her friends and neighbors, former colleagues. She talked to one former FBI agent who said, "this is a forthright lady. This is someone who is direct, she's unassuming, she's honest it a fault. You want an honest opinion, you go to Coleen Rowley." That's what her colleagues seem to think of her.

So you know, not surprising, her manners, so far, that's what everybody has told us about her, that she is going to be direct. She is going to answer their questions as directly as she can.

HARRIS: And now, the question remains, though, the kind of latitude we are going to see played out here with the questioning, because she has expressed already some reluctance. I believe she has been instructed by Director Mueller to not testify about certain things.

SNOW: Yeah, that's right. In fact, in the written statement, the one that she didn't read just now, she goes into that a little bit. She says that she talked with FBI about this before she came here. You heard her say that no one at FBI asked to preview this statement, that she hadn't, you know, read it to them ahead of time, but she did say, I will not discuss -- in the written statement -- she says, "I will not discuss Zacarias Moussaoui's case directly." Of course, that's because this man is right now awaiting trial, and anything she said about that case might jeopardize the trial. So of course she is not going to go into that.

But she's glad to comment about some of the systemic problems, some of the bureaucratic problems that she sees.

HARRIS: What I also think is going to be interesting is to find out how much she did actually talked over with Director Mueller. It sounds as though she has had some time to talk with him, because she did come up with -- at least she did a few good things to say about his acceptance so far of what she has -- of the critiques that she's made so far, and that there seems to be some agreement between the two of them. I believed that she described -- she said there was agreement on what they both believed to be impediments to the agility that the FBI needs to have today. SNOW: Yeah, she said I was encouraged by Mr. Mueller's testimony. Obviously, she watched this morning's session. She said he has a difficult job, and she said, you know, when he says he is going to get rid of some of the layers of bureaucracy, she said you can't underestimate how difficult that's going to be, but she felt very encouraged by what he is saying, at least at this point, and the changes that he announced last week.

She also said in her written statement that she knew that those changes were coming, that she had a sense that the restructuring that Mueller would announce was about come. And that's part of why she wrote that 13-page letter to Director Mueller when she did. She mentioned that in her written statement.

HARRIS: You know, speaking of the different complications here with the Moussaoui investigation, let's bring in our Jeffrey Toobin, our legal analyst who's in New York who's been listening to -- as I see it now, Jeffrey, you've been listening to everything. You have been keeping your eye on the Skakel trial, but you've also been listening in as well on these hearings that we have been covering as well. Is that correct?


HARRIS: All right. Let me ask you about the latitude that Special Agent Rowley might actually have to talk about today, considering the sensitivity of the Moussaoui investigation. What occurs to you there?

TOOBIN: I think she is certainly going to have to keep away from the facts of the case, because that Moussaoui is going to trial very shortly, and one of the issues in this case is did the government conduct itself properly, and you know, what were the circumstances of the government investigation of him.

Keep in mind also, that's a very complicated situation, because at the moment anyway, Moussaoui is representing himself. So there is actually no lawyer involved in the case. There is a certain degree of uncertainty about how that case will proceed, or even whether it will proceed on its current schedule.

So I can certainly understand why the FBI is going to urge Agent Rowley, at least to not to talk about the specific events of what happened along the way in this case. Although, they are going to be very worried about being accused of censoring her in any way. So it's a difficult line her supervisors have to walk. It sounded like they encouraged her to speak candidly, but to try to stay away from the specifics of this case.

HARRIS: All right, the Moussaoui case notwithstanding, what about other cases that the FBI might be handling right now, or other cases that might be in the process right now of being prosecuted? You know what I want to ask you is, if anything you have heard so far today, because you know, we can't hear anything that you talk about behind closed doors -- that may be the most sensitive stuff -- but is there anything talked about in the discussion of the shortcomings there at the FBI that some person that may have a case right now could actually use in their benefit?

TOOBIN: That's not clear to me. But what's been interesting is one subtext that's been throughout all the testimony with Director Mueller and even certainly in the 13-page letter that Agent Rowley wrote is that the FBI is divided very much in two parts. There are the criminal investigators, you know, the G-men, the people who make the cases that wined up in court, and the counter-intelligence people.

And what prompted the problems in the Moussaoui case was that it was never clear under whose bailiwick Moussaoui himself fell. And there were separate rules that grew up really under the Cold War, because basically the counter-intelligence people were set up to spy on the Soviets. That was really what it was all about, to make sure that they weren't spying on us and to keep an eye on their diplomats here. That was really what the counter-intelligence people were supposed to specialize in, and they really didn't have much to do at all with our criminal justice system.

Now of course, that's not really a main concern, and the counter- intelligence people are supposed to do antiterrorism. And what the FBI has never managed to do is meld these two bureaucracies together in a way that they compliment each other. And one of the real significant facts about the Moussaoui problems, the reason they didn't get the warrant in the first place in August, is that because it was not clear whether this was a counter-intelligence matter or a criminal investigation matter. And as a result, it fell through the cracks, as we all know.

HARRIS: That sort of is the nature of bureaucracies anyway. They just sort of take on lives of their own and grow and grow and grow, and before too long -- actually, when it's too late is when you realize you have got that kind of problem anyway.

TOOBIN: Well, and it is also the nature of bureaucracies that they are incredibly difficult to change. You know, when I was a federal prosecutor, I dealt with FBI agents all the time. I mean, that was something that you just did as a matter of course. I was a prosecutor in New York.

I was aware that there were counter-intelligence agents in New York, but I had absolutely nothing to do with them, and neither did most of my fellow assistant United States attorneys. It was just an entirely separate world. They lived by different rules. We didn't see them. We didn't have anything to do with them.

The idea of melding these two cultures together is just really difficult, and that's one of the things that's going on here.

HARRIS: Interesting. Let's bring our Kate Snow back in. I think Kate has a question for you as well, Jeffrey.

SNOW: Yeah, I actually have a question for Jeffrey, if I can. One of the things that came up this morning, several different ways, it's a legal term, so maybe you can help us with this -- is probable cause. There was a lot of talk about whether in the Moussaoui case, in Minneapolis, whether those agents were stymied by headquarters because headquarters thought there wasn't probable cause to go after him. And there was some talk with Mueller about how do you define that, and does the FBI need to redefine what is probable cause for a terrorist. And you can talk a little bit about that.

TOOBIN: Well, a term that was thrown around a good deal this morning was FISA, which is Foreign Intelligence Surveillance Act. Kate, I heard you refer to it earlier. It is the counter-intelligence way of getting a warrant to spy on someone. When the FBI wants to look at a foreign agent, they have to go get what's called a FISA warrant. And the standard that they have to meet there is they have to show probable cause that the person who is the target is a foreign agent. They have to show that he is a foreign agent.

And the problem in the Moussaoui case is that the FBI headquarters felt that the folks in Minnesota had not produced enough evidence to show that Moussaoui was a foreign agent of any specific country. And what the senators are asking questions about, and it's certainly a good question, you know, is that really what's necessary, that we need to show that he is a foreign agent, because it's not entirely clear -- again, this is the legacy of the Cold War. It used to be that we needed to find out what country someone was representing.

Well, it's not clear what country terrorists are representing. They don't necessarily represent any country at all. But that doesn't mean they are any less dangerous. So I think what the senators were asking is, do we really have to show probable cause that someone is a foreign agent? Can't we just change the law or work the system in such a way that there's probably cause that the person is dangerous, not that they represent a specific country?

HARRIS: Now, as I remember, because I was listening to that particular portion of the questioning as well, Kate and Jeffrey, and as I understood it, the senator -- the point he was trying to make is why is it that an agent or some mid-level manager within the FBI was going to make the determination about probable cause instead of letting a judge make the call. And Jeffrey, explain to us how that works. Is it a judge that makes the call or is it someone within the FBI that decides that there is such a thing as probable cause?

TOOBIN: Well, this is true in any prosecutor's office as well as in the FBI, that in order to get any sort of warrant -- in order to get surveillance established over -- or just to get an ordinary search warrant in a criminal case, you have to show the judge that there is probable cause that you will discover what you are looking for. That's the standard.

But any bureaucracy, whether it's my old U.S. attorney's office or the FBI has an internal review process that says, you know, agents on the street just can't run off to a judge on their own, without sort of following certain internal rules. What Agent Rowley was complaining about and what the agents -- and what the senators were complaining about this morning was that the middle managers who make the determination about whether you can go to a judge are too conservative and too jealous of their own power that they don't let agents go get warrants when the agents on the street think that it's justified.

So it's really that middle level of supervision, and I think everybody understands that there has to be some sort of supervision over agents, but whether that was too heavy-handed and too cautious, in Agent Rowley's words.

HARRIS: And I think we also see why you have to spend 100 years in law school to figure all this stuff out too.

TOOBIN: That's right. Well, I hope it's clear.

HARRIS: That was clear enough for me. I hope it was clear enough for the folks at home.

Now, while we are waiting for them, for the senators to come back into the room to resume their questioning -- actually, to begin their questioning of Coleen Rowley -- she is actually going to be taking questions for the first time once they all do reenter the room. We want to show you some excerpts from this letter that she sent to Director Robert Mueller back on the 21st of May. The letter that she says that she was surprised to see the reaction that this letter has actually aroused across the country and certainly within Washington.

Here is an excerpt from it. She says: "I have deep concerns that a delicate and subtle shading/skewing of facts by you and others at the highest levels of FBI management has occurred and is occurring. Certain facts, including the following, have up to now been omitted, downplayed, glossed over and/or mischaracterized in an effort to avoid or minimize personal and/or institutional embarrassment on the part of the FBI."

She goes on to say that it is "obvious from my firsthand knowledge of the events and the detailed documentation that exists that the agents in Minneapolis who were closest to the action and in the best position to gauge the situation locally did fully appreciate the terrorist risk/danger posed by Moussaoui and his possible co- conspirators even prior to September 11."

Now that is a letter written by Agent Coleen Rowley. Here now is a closer look at this FBI whistle-blower. Our senior political correspondent Candy Crowley has more from Minneapolis.


CANDY CROWLEY, CNN CORRESPONDENT (voice-over): The Rowleys of Apple Valley, Minnesota live in a cul-de-sac so quiet that Ross Rowley was worried that their rooster was disturbing the peace. It's a friendly but not too friendly spot, where neighbors exchange waves and Christmas cards.

AUDREY PACHOLSKI, ROWLEY NEIGHBOR: They do a nice Christmas letter that I'm sure she organizes a lot of. And there are pictures, and the kids will write in their own handwriting, you know, and they'll tell stories of the year, what happened and what they've done. And not much about her -- the kids, the family. CROWLEY: Coleen, who organized the Neighborhood Watch, is the breadwinner; Ross the stay-at-home dad. They were living the life Americana until Coleen wrote the memo that rocked the house that Hoover built.

DAG SOHLBERG, FORMER FBI AGENT: Coleen Rowley is a very forthright, direct, unassuming, intelligent person. I like to say that she's without guile. I mean, what you see is what you get; and what you get is a honest opinion when you ask it of her.

CROWLEY: Agent Rowley has spent nearly half her 21-year career in the Minneapolis division, where, among other things, she was the front person in the case of street killer Andrew Connomon (ph).


COLEEN ROWLEY: Well, we are continuing to basically pull out all the stops and exhaust every possible investigative lead.


CROWLEY: An avid runner by passion, a lawyer by trade, Rowley was the go-to person for Minneapolis field agents who wanted wire tap or surveillance authority.

Her scorching memo to the FBI was prompted in part by her unsuccessful pre-September 11 attempt to get bureau approval of a warrant to search the computer of Zacarias Moussaoui, the so-called 20th hijacker.

ROBERT MUELLER, FBI DIRECTOR: Let me just take a moment to thank Agent Rowley for her letter. It is critically important that I hear criticism of the organization, including criticisms of me, in order to improve the organization, to improve the FBI.

CROWLEY: Rowley isn't talking just now, but those who have worked with her describe Rowley as "tenacious" and "hard-working," a tough, type-A personality who enjoys literally running against the wind.

SOHLBERG: I've run in law enforcement runs with her in bad rain, and she seemed to thrive on it. You know, the rain and the wind in her face has kind of egged her on, and she enjoys the challenge.

CROWLEY: And around the cul-de-sac, they don't seem the least surprised that their neighbor took on her boss.

PACHOLSKI: But she knows what she wants, and she knows what she wants to do. You're not going to change that lady's mind.

CROWLEY (on camera): Some of those who know her are surprised but pleased it was Agent Rowley who so publicly criticized the bureau she has longed to work for since childhood. She was not one to draw attention to herself, said a former colleague. She worked hard, did her job, and then went home to be a wife and mother.

Candy Crowley, CNN, Minneapolis.


HARRIS: And there we've learned some of Agent Rowley's past. Let's check in now on her present. They have all reentered the Senate Judiciary hearing. Let's listen in.

LEAHY: ... and I asked this question basically to Director Mueller this morning, so I want to ask you as well.

To your knowledge, did the agents in Minneapolis or at headquarters, for that matter, ever try to do a routine search for reports on aviation schools or pilot training on the automated case system? I'm not talking about putting in somebody's name, but for search words like "aviation schools" or "pilot training." Did anybody do that?

ROWLEY: Well, I know a little bit about our ACS system and the records we have, as well as the search methods we have, because I also do our Freedom of Information requests. And, of course, there are strict rules in place about how we search and when people write to us, you know, if we find their name.

Our main system of records, our central records system is indexed according to the name of the subject, usually. So for instance, in a case where a particular suspect was named, the normal method of searching would be to search that name only. We do have the ability to search some text for a word. But unlike, for instance, if you were doing Lexis-Nexis research, you can put in the qual (ph) and/or and there are all different ways that you can search.

Our FBI search is probably the most fundamental, rudimentary thing. You can just put in a word. So, for instance, if you put in "airline" to do a text retrieval, you would get up such a volume of records that it would be impossible to review. It's almost impossible to do just a one-word text.

LEAHY: You can put in "aviation schools"?

ROWLEY: For instance, in Lexis-Nexis when you're searching for things you can put those qualifiers in that narrow it down. And we have no way of doing that. We can a word in.

LEAHY: You can put in "aviation"?

ROWLEY: I think we could.

LEAHY: But you couldn't put in "aviation schools."


LEAHY: So you might get...

ROWLEY: What you get in "aviation" and you would just be getting, you know, records that you couldn't possibly review. Now, what the normal method is, is we do search those names. And that's because the subject's names are indexed. So Freedom of Information that's what I do. And I think he mentioned that you have to have the correct spelling, that's right. I mean, if you're one letter off, you may not turn up a record.

LEAHY: But this doesn't do you much good if you're looking for somebody, for example, used nitroglycerin in types of bombings, and is going around with an alias, which changes bombing to bombing.

The director said in his testimony that your office couldn't have brought up the Phoenix electronic communication on the computer and used it in connection with the Moussaoui case, but the headquarters could have done that. Is that your understanding?

ROWLEY: I don't know specifically about that EC, but I do know that prior to September 11 a number of classified documents -- probably almost all classified documents were blocked. So that only certain people on a need-to-know basis would be able to -- if you went into the computer, for instance, and you didn't have that access you're not going to be able to see those things.

It was also in public corruption cases, other types of cases that we had this blocking. And it served a good purpose in a way, because, you know, it really keeps people, maybe, from abusing it.

LEAHY: I mean, suppose you're a cleared person. The head of your office, head of the Phoenix office and others, they want to do a computer search on the FBI ACS computer network. It's still difficult for them to do; is that correct, even if they're cleared?

ROWLEY: That's true. I don't know exactly how this blocking -- you know, what people in each office were unblocked and which weren't. Typically, it was the people who had a need to work on that case only.

LEAHY: Unfortunately, some of the people who may know something about it are not going to be able to go much further.

You wrote that a supervisor at FBI headquarters made changes to the Minneapolis agent's affidavit. I'm talking about the FISA process now. You wrote that they made changes to the agent's affidavit to, quote, to use your words, "set it up for failure." Now, the New York Times has also reported that another headquarter's agent was basically banned from the courts, from the FISA courts by the judge based on his past affidavits. I know that in response to some of these problems, the FBI has instituted a so-called Woods procedures. And we put that in the records. It's been declassified and put in the record this morning.

Do you think some of these problems with the FISA court made headquarters more cautious, risk-adverse and process in the FISA applications to the court?

ROWLEY: I've never actually served at headquarters, so I guess I would be speaking from hearsay, as well as, maybe, the opinions of some of the people that have called me and e-mailed me. I think that when incidents occur where people in the FBI are disciplined or even investigated, possibly, I think there are some consequences to that. And it does, in the future, make them much more careful.

In the instances that I'm aware of in our office where that's happened we have typically -- in order not to repeat the problem, we've instituted some kind of procedure that makes it more difficult. So I think that, in a way, you know, from what I know of it -- and, again, I've never served in headquarters -- that I would probably agree.

LEAHY: You also wrote that you and the agents in Minneapolis were frustrated with the headquarters agent that was assigned to the Moussaoui case. It actually hindered your investigation. Did you or any other supervisor or agent in Minneapolis call -- the agent you were concerned with call his supervisor or others in Washington to complain about this before September 11?

ROWLEY: I'm, of course, a little bit restricted in what I can talk today about the events of pre-September 11. I had put that in my statement. I failed to mentioned it earlier. When I comment, I'm going to try to comment in a general way...

LEAHY: I understand.

ROWLEY: ... and just avoid the specifics of the events prior and not get into true, real facts.

When I wrote the letter to Director Mueller, I think some of the news accounts may be misunderstood. I really was speaking more from a third-party perspective in talking about what I saw our agents and other people in our office, as opposed to me personally.

There was a word in the first page, I said I had a peripheral role, and I think that's very accurate. I did have a role, but it was peripheral.

And when you ask if other people took these actions, you know, I will say this. We have a culture in the FBI that there's a certain pecking order, and it's pretty strong, and it's very rare that someone picks up the phone and calls a rank or two above themselves. It would have to be only on the strongest reasons. Typically, you have to pick up and call -- you know, pick up the phone and talk to somebody who is at your rank. So when you have an item that requires review by a higher level, it's incumbent for you to go to a higher-level person in your office and then for that person to make a call.

LEAHY: Has the inspector general talked to you about this case?

ROWLEY: I've had a call from the inspector general, but so far we haven't gotten into any real facts or anything.

LEAHY: And when did he first contact you?

ROWLEY: I was contacted by an investigative counsel from the Office of Inspector General, and that's all. And it was basically just to introduce herself.

LEAHY: And how long ago?

ROWLEY: It was last week, I think just a day or two after Director Mueller announced that it would be turned over to the Office of Inspector General.

LEAHY: Thank you. And you have raised an important issue also about the so-called McDade law in your testimony. As you know, that law was slipped into a massive omnibus appropriations bill, or some of us call it ominous appropriations bill, back in 1999.

Senator Hatch and I and Senator Wyden have been trying to fix this problem. In fact, we introduced, what was it, S. 1437 to fix the problem.

I want you to know, there are some of us on the committee that recognize it is a problem, and Senator Hatch and I are trying very much to fix the problem. We'll keep trying. Eventually, we hope we're going to be successful.

We came very close. We thought we had it fixed in the USA Patriot Act, but others didn't want it to go forward (inaudible). But I'm committed, and I think I can speak for Senator Hatch, he's committed to get it fixed.

Senator Hatch?

HATCH: Well, thank you, Mr. Chairman.

I want to welcome you to the committee, Ms. Rowley. And at the outset I wanted to thank you for appearing before the committee.

I also commend you for your letter of May 21 to Director Mueller. That letter raises a variety of significant issues that need to be considered during any reorganizing of the FBI. And I can only imagine how difficult it was for you to write the letter and then forward it to Director Mueller and others. So I want to ask you a few questions to clarify some statements in the letter and to seek your views on aspects of the specific reorganization plan.

I believe the FBI is the most important law enforcement agency in the world, and I know you do, too, and that's why you wrote the letter. And you'd like to have it continue to be a great agency.

But in your letter you detailed the difficulties you and the Minneapolis agents encountered in seeking a search warrant under the Foreign Intelligence Surveillance Act procedures -- we've been referring to that as FISA all day. With the FISA and your legal training, what modifications do you believe may be warranted to the FISA statute in order to enable the FBI to obtain such approvals when investigating terrorists?

ROWLEY: Well, I heard some of the discussion this morning about the necessity to perhaps take out the "working on behalf of a foreign power" aspect. In thinking about that -- and to be honest, I haven't thought about it a whole lot, and in addition, I have not had that much personal experience in working with the FISA process. Our office is not as involved as other offices would be.

However, I think, in a way, just knowing what I know about criminal and totality of circumstances, et cetera, I am not quite sure that it needs to be modified. I think, in a way, perhaps what we have is, because probable cause and proving or making these showings that are required are not like a DNA test, they're not a litmus test; you can't put it in and have it come out 100 times the same way.

And what can happen is, mind-sets and over time different interpretations, and you can have something becoming unduly difficult, when you actually look back maybe 10 years ago, this wasn't the case. And there was, basically, a lesser standard.




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