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Senate Judiciary Committee Hearing, Part VIII

Aired June 6, 2002 - 16:00   ET


COLEEN ROWLEY, SPECIAL AGENT, FBI: ... I think when you look at the totality of the circumstances and probable cause, you are looking at more probable than not. I'm not even quite sure if the FISA -- well, I think FISA statute requires it as well, more probable than not.

And I think that if you look at a totality, if someone is working on behalf of a foreign power, these terrorist entities are not like countries. They don't have embassies. They don't send us their membership lists. They don't send us their little organizational charts.

I worked Mafia cases in the 1980s, and the Mafia didn't do that either. They didn't send us their membership. We had to figure it out. And after a few years, we certainly did have hierarchies of each organized crime family, but that was gained from surveillance, it was gained from little snippets of information we would get from wire taps, that so and so is working for so and so.

And I think that we should be able to use that same type of thing for demonstrating that someone is working on behalf of a foreign power, especially with a terrorist organization.

And I'm not sure that the language needs to be modified, but I think we need to realize that it's almost the same type of thing that we're up against. We are not going to get concrete membership lists, organizational charts that we can say OK -- or even the definition of the group, sometimes. These groups are very amorphous, and by nature, terrorism groups operate more effectively without having real defined hierarchies and who reports to who, et cetera.

So that's kind of my take on it.

SEN. ORRIN HATCH (R), UTAH: Of course, to a large degree, we're talking about surveillance, and unless you can show that they are operatives for a foreign power, or that they -- you have probable cause to believe that they are part of Al Qaeda, say, in this particular case, you can't get a FISA right to surveil.

And see, that's what I think is -- and many people are concerned on the other side that if we grant that broad right, then it will be misused sooner or later by somebody who would not be as perspicacious as you are or Director Mueller is. But I see it as a big problem because, as you can see, we basically couldn't get surveillance on, I think, basically all of those 20.

ROWLEY: I'm not going to comment on all of the facts of the case. My analysis of the case is that perhaps that it already -- you've read my letter.

HATCH: Right.

ROWLEY: I think that it's an obstacle, and I think maybe it's a possibility to consider whether maybe that amount or that threshold should be somewhat eased, especially in cases with terrorists where it's hard to -- but I think things like surveillance and knowing who met who and things like that should figure into it.

HATCH: All right. Agent Rowley, since your letter of May 21, the attorney general has issued new investigative guidelines that will expand the FBI's investigative tools. Now, given your experience in the field, can you describe in practical terms how will these new guidelines assist the FBI, at least the field agents, in carrying out the FBI mission -- or missions?

ROWLEY: I have not had a chance to really, fully read the modifications. I have heard what the three -- you know, the main topics that have been brought up about going into public meetings and surfing the Net. And there is one additional thing, I think, in those AG guidelines, which delegates down the SAC, the ability and the authority to open up a case, a preliminary inquiry.

To the extent that I am definitely, and I think we, the rest of the agents I've heard from, are definitely in favor that, when it's possible, to delegate down to a lower authority level, we will be more nimble and agile. I am very much in favor of that ability to open up a preliminary by the SAC. That aspect's good.

I do want to maybe, at some point, get the chance to talk about how -- I know people this morning were talking about their fear that some of these new abilities to monitor public meetings. I have a little unique insight because I process freedom of information cases, and I read some of our old files from the 1950s. And I will see in there where we got -- the people back then, for a lot of reasons, got a little carried away. When they went to a meeting, they recorded everyone who came, whether they were important or not, whether the person advocated whatever, you know, a terrorist point of view or whatever. And I see that type of thing that happened in the past.

What I think that we need to do is -- a lot of it is in the how. And if you go to a public meeting, for instance, maybe we've gotten a little bit of information that someone in that meeting might be discussing a terrorist act. I think it is very good and logical that someone would go and sit in just to make sure that doesn't happen. So if, in fact, a person stands up and says, "Hey, let's all do this, let's all undertake this," and gives a speech about undertaking an act of terrorism, we will now be in a position that we will know it. Now, if that same agent, even based on a good tip, goes to the meeting and people are merely engaging in their First Amendment rights, here's the thing, nothing happens from that information. That's the difference in the '50s. We don't come back and record who was there. We do not look into the people that were there. It just ends.

I think there is a difference between how we do this and exactly what the authority is. And I think, to the extent that it gives us a little bit of extra opportunity to perhaps detect something, I think it would be good.

HATCH: In your May 21 letter, you indicate your concerns about Director Mueller's proposal to create, quote, "flying squads," which would operate out of FBI headquarters here. Could you tell us more specifically your concerns about such squads?

ROWLEY: When I wrote the letter to Director Mueller, the term, and maybe it was the media that used this term, but the term that was being used was "super squad." And that connotates in my mind that we're going to have more people at headquarters who now, when, let's say, an office does detect some terrorism, or an actual terrorist event occurs, that now we'll get a whole contingent of managers from headquarters who will direct the case.

And when that term was first used, I, again, by hearsay, I think that's what a lot of people in the FBI had that connotation. It was a major impetus for my giving that letter to Director Mueller.

HATCH: I understand. Now, just one last question, because my time's about up.

In your testimony, you've identified a number of significant problems with the FBI's bureaucracy. You stated that, quote, "the problem is huge," unquote, and, quote, "cannot be quickly cured," unquote.

Now, in your view, what immediate steps could be taken to remedy some if the problems that you've identified in your letter? And which problems will take more time to address?

ROWLEY: You know, that is the $100 million question, how to reduce bureaucracy. And I really can't pretend -- give me another week? I really can't pretend to understand.

I know Director Mueller is also very cognizant of this problem. He reiterated today that there are eight levels before you get to him. This is an unwieldy situation.

If there is a way to somehow reduce the levels, I think that's the way we need to go. Seven to nine levels is really ridiculous. And it's just, how do we do this once it gets started?

HATCH: Well, I'm grateful for your testimony, grateful for your letter, and I think you've done a service. And let's hope that -- and I think Director Mueller has taken it very seriously. ROWLEY: I agree.

SEN. PATRICK LEAHY (D), VERMONT: We're going to take a three- minute break. I wonder if the senators could all meet with me out back. That'd also give the photographers a chance to clear. And we'll be right back.

JUDY WOODRUFF, CNN ANCHOR: Well, as the Senate Judiciary Committee conducts these hearings into intelligence gathering before 9/11, they are continuing to hear from Minneapolis-based FBI Agent Coleen Rowley.

Joining us, our correspondent Kate Snow, who has been at the Capitol listening to all of this. Kate, the senators seemed to know going into this pretty much what they wanted to ask her, what they wanted to get from her.

KATE SNOW, CNN CORRESPONDENT: Yeah, at least the top two there, you didn't learn much new information out of Senator Leahy's questioning and Senator Hatch. They of course have heard from her already, not only in her 13-page letter to Director Mueller which she passed on to Congress in person, but also they have a written statement now, Judy, that is a little more through than what she had said publicly before the cameras.

In fact, if I could read you a couple of lines from this written statement, it's rather interesting reading. At one point, she says: "There is this risk-averse mentality at the FBI," and she says, "As humans, we all makes mistakes. Mistakes are inevitable, but a distinction can and should be drawn between those mistakes made when trying to do the right thing and those mistakes caused due to selfish motives."

She goes on to talk about "make work" at the FBI, paper work that is asked for that doesn't even need to be done. She says there are levels of bureaucracy and foolish, endless reports that they are asked to file. And she was asked just now a little bit about what she would do to change things, and she had to admit that it's not an easy task. She said earlier, Judy, that Director Mueller's job is not one tat she would want. It is a difficult job, trying to reduce the bureaucracy, but she thinks that bottom line, that's what needs to be done.

WOODRUFF: All right, Kate Snow with us from the Capitol, as we listen to this testimony before the Senate Judiciary Committee looking into intelligence failures leading up to the terror attacks of 9/11. They will be back in just a few minutes with Minneapolis FBI Agent Coleen Rowley. We'll be right back.


WOODRUFF: Senate Judiciary Committee reconvening now with testimony from Coleen Rowley. Let's listen to Senator Leahy.

LEAHY: ... on the Senate Intelligence Committee, as does the Armed Services Committee and the Appropriations Committee, for the obvious reasons, because those are the Armed Services -- and Foreign Relations is the other one. Foreign Relations, Armed Services, Appropriations, and Judiciary. We handle classified material all the time, so we have members on the Intelligence Committee. Unfortunately, we're meeting and they're meeting.

Senator Feinstein has somehow managed to be in both places at once, and so I yield to her.

SEN. DIANNE FEINSTEIN (D), CALIFORNIA: Thank you very much, Mr. Chairman.

Ms. Rowley, welcome. Delighted to have you here, and we thank you for your letter and for your comments about your career in the FBI and your concern about it.

You indicated earlier that you were watching this morning and the testimony of Director Mueller. I asked my questions really based on some of the things you said in the letter to the director, and one of them involved the FISA process. And without going into the details of it, you indicated your concerns in the letter about the FISA process. And I think Director Mueller put on the record the very clear way in which these FISA warrants are going to be processed in the future and the question of intelligence also being added in the warrant request.

My comment to you was, do you believe -- or my question of you is, do you believe that this is a substantial improvement now over the way things were?

ROWLEY: Yes. And in my written statement, too -- I think September 11 alone, just the acts, really created a huge change in mindset. And in addition to that, of course, Director Mueller has announced that prevention will be our goal over prosecution. Prosecution, I think, should still be an important thing that we should keep in mind, but there are those instances. And when you have the two, prevention definitely has to override.

I think that what he is stating, that if there is an application that someone at a lower level disputes or does not think should rise up, it will then automatically get reviewed at a higher level...


ROWLEY: Right now by him. I'm not quite sure that maybe it could even be lower than him, because I think he's a busy man, and I don't know that it would necessarily have to be the director...

FEINSTEIN: And that these would go then to the OPR, as well, which...

ROWLEY: Right. Well, obviously it would depend on his review. He may well agree with the lower level, and that would be fine.

We do need, though, as I said in my statement, we need a kind of a way to get around the roadblock. And I think with the FISA's process, this is a pretty good idea to have the ones that are not approved, or disputed, to go to a higher level for review. Obviously the higher level may well agree that it's insufficient, and that's fine, but at least it's had a good review.

FEINSTEIN: Right. And the second area that I asked about was really in direct reaction to your comments in your letter about what you called the super squad, which he has pointed out very carefully today was a flying squad, and that the local SAC would have the authority to initiate the first inquiry.

ROWLEY: The flying squad, again, the kind of the difference that I see there is that with a small office, that does not have translators, does not have enough forensic computer examiners, perhaps does not even have enough surveillance experts, that if an office had that need to have those additional resources, a flying squad could come and help out. It would really serve the purpose of flexibility.

And if they didn't try to take over and micromanage something that may already be at a certain point, stage along, I think it is a very good idea. The only thing that I was really worried about was the fact that I saw this as managers coming to now take it over and micromanage or whatever. That's the distinction.

FEINSTEIN: Thank you. Now, in your letter you also mentioned, and I quote, "a climate of fear which has chilled aggressive FBI law enforcement actions, decisions." And you attribute that to the fact that numerous high-ranking FBI officials who have made decisions or have taken an action which, in hindsight, has turned out to be mistaken or just turned out badly have seen their careers plummet and end. That was, you know, a very profound statement.

I want you to respond to that, but I also want you to respond to something else. And here's something which is enormously controversial, and which has -- no matter who you talk to, everybody has got a slightly different view of how racial profiling should or should not be applied, and exactly what it is, whether it involves a country, whether it involves a race, whether it has a chilling effect on FBI agents instituting this kind of inquiry.

I would be interested in your observations, if there are places where you believe you have actually seen racial profiling impact or chill an agent's perspicacity or desire to look into something?

ROWLEY: Do you want me to answer that one first, the racial...


ROWLEY: I think one of the senators this morning drew a distinction. Of course, racial profiling -- we don't even like the term or the word, because I think it already has this pejorative sense, and different people have different meetings in their own mind as to what it means.

FEINSTEIN: I agree with you.

ROWLEY: One of the senators this morning made a good -- I think it was a good line. When you use race, ethnic origin, religion, any one of those factors as a sole reason or the main reason to take an investigative action, that is what I would think of as racial profiling. So if a trooper goes out and stops all Indian males going down the street, that is racial profiling.

Now, on the other hand, what you have are -- we could get a report that black male with a red baseball cap wearing white trousers and sneakers just robbed a bank. And you don't disregard the race, because it's just one of several factors that is describing that individual.

So I think that's kind of what I see as the difference here between -- courts, I think, follow that rule.

FEINSTEIN: Do you think your colleagues have the same interpretation that you do? Because I think you have a very substantial interpretation.

ROWLEY: Well, the ones I train do. I'm trying to think if I brought this up in other law enforcement circles. I think in Minnesota it's been a very hot topic. And to the extent that it's been discussed, I've tried to point this out at different times.

A lot of times you see people arguing when they're not even hitting the issue because they have different definitions. And I think the senator's remarks today kind of show that maybe this kind of thing is rising, where people are getting this better understanding of what is permissible, what is logical and common sense, and then what is improper. And you use the term, it's just a pejorative term and then people, like, end the debate.

FEINSTEIN: I see the red light. Could you go to the first part of my question, which is the quote?

ROWLEY: The climate of fear?


ROWLEY: I think that, you know, as I said in my letter, that these high visibility demotions, or even people ending their careers, have impact, and everyone sees this. There are times when that results in less-than-aggressive law enforcement.

There are actually times, though, I think it actually is the opposite, because your boss, for instance, could be making a mistake the other way. And let's say that your boss has said something that you think could be -- I'm just using the example now -- it comes close to racial profiling. Now, if you're under that boss with this climate of fear and whatever, you might actually be unwilling to challenge that. So I think it can actually work both ways.

And I definitely think it results in less-than-aggressive law enforcement when we've had some high-visibility mistakes. And in my paper I drew a distinction between those mistakes that are really kind of deliberate or made for selfish reasons -- and I think our people need to be held fully accountable for those types of mistakes. Whereas the good-faith-type mistakes -- I get involved in civil suits all the time. And we're humans, FBI agents are humans. We make mistakes all the time. In Minnesota, once, we made a mistake and had the wrong guy arrested for a bank robbery because he was a complete look-alike of the real bank robber. And, you know, that type of thing we ought not to -- you know, that agent really did nothing wrong. You know, everyone would make that mistake.

So I think we have to distinguish between the types of mistakes and be careful about pursuing the ones that really are good-faith ones, because I think we will have some repercussions for that.

FEINSTEIN: Thanks. My time is up. Thank you very much.

Thanks, Mr. Chairman.

LEAHY: Thank you, Senator Feinstein.

Senator Grassley?

SEN. CHUCK GRASSLEY (R), IOWA: I want to follow-up on what Senator Feinstein just was talking about. I've been concerned for a long time about what I call the FBI's culture of arrogance. In your letter, you mentioned a culture of fear, especially of fear of taking action, and the problem of careerism. Could you talk about how this hurts investigations in the field, what the causes are, and what you think might fix these problems?

ROWLEY: Of course I don't think this happened overnight. It's one of those things that starts to happen and eventually you get at a point where it's -- you know, it's not good.

And I think careerism, when I looked up the definition, I really said unbelievable how appropriate that is. I think that the FBI does have a problem with that. And if I remember right, it means promoting one's career over integrity. So when people make decisions, and it's basically so that I can get to the next level, and either it's not rock the boat, or do what a boss says without question, and either way that works, if you're making the decision to try to get to the next level, but you're not making that decision for the real right reasons, that's a problem.

And I think that in the FBI, we have had some serious disincentives to getting into management. We've also had some of our promotional system I think could be adjusted; there are some standards that we've gone to, kind of, a real low level of legally defensible.

It's become, over the years, kind of, a volunteer system. Because a lot of good, good people that have good backgrounds prefer not to transfer all those times. There's a lot of other reasons.

So I think that the careerism is a problem. I think the pecking order, which I alluded to earlier, is sometimes a problem, and we have to be willing to -- I guess as Director Mueller has done a little bit in this case with me, when I made my critical remarks, I was quite worried, because I know in the FBI, you don't venture close to criticizing a superior without really running some risks. But in this case, actually, I was pleasantly surprised that, you know, I've been promised repeatedly, no retaliation, and I want to hopefully hope that that kind of atmosphere now starts to, kind of, take over. And that people make decisions. Some of these decisions are just huge; you don't even know when you're doing it, but they are huge, and you've got to make them for the right reasons, not because they don't want to rock the boat, not because they don't want to bring up a problem to my supervisor, et cetera.

GRASSLEY: I think it would be helpful to hear about headquarters, FBI, from the perspective of your working in the field. Your letter to the director about the Moussaoui case talked about supervisors actually hindering that case. Now, I know that you can't talk about that case because of trial, and I appreciate that and expect you not to, but it would be useful to talk about how headquarters gets involved in cases from the field, and what you and other agents think of headquarter involvement, and whether the people there are helpful or a hindrance.

ROWLEY: Well, I mentioned in my letter, because I'm legal counsel in the office, I interact a lot with our Office of General Counsel. And for the most part, the people in the Office of General Counsel that I interact with on a daily basis are very helpful. I think they mostly see their mission as assisting people, giving advice, that type of thing.

Our laboratory, I think, is something like that as well, because their mission is to do that task so they can get it back to the field.

Other entities are less helpful at headquarters, because they do not see their mission as assisting in the investigation. When we get these seven to nine approvement management levels in place at headquarters, many of those people see their job as, kind of, a gatekeeper function, and, kind of, a power thing or whatever.

And again, I think we have to stress that, you know, to the people, if we can limit the number of management levels, all the better. But the people, if they realize that their function is to assist with intelligence in the future, hopefully this will happen. If we have more analysts, if they see their function as assisting that investigation. And I think then it's helpful.

So it's, kind of, a mixed bag is I think what I'm saying. It's, kind of, a mixed bag, and some entities are helpful. Others maybe aren't quite as what they should be.

GRASSLEY: Well, could you, kind of, summarize that by saying -- or let me summarize it and see if this might fit it? Headquarters ought to be helping people at the grassroots and not be a hindrance.

ROWLEY: I think that's true. And the worst is -- I forgot to even mention, the worst is micromanaging. And there have been instances in the past where a higher level in the FBI has almost decided to tell an office how to do something. And I can name a few cases where these just became disastrous. So micromanaging from a higher level is really the epitome of what would be the worst. GRASSLEY: I don't think you have to name those cases; we've looked into those an awful lot here in the last decade.

Your letter highlighted some of the problems within the bureaucracy at the FBI headquarters with the many layers of approval in order to get a search warrant. What are your recommendations for streamlining this bureaucracy so that field agents can effectively pursue investigations?

ROWLEY: Well, I've mentioned before that the bureaucracy is a huge problem, and I really have to think longer about, you know, how that would be remedied.

I can mention one other thing about streamlining, being able to go around road blocks that might arise, and I've mentioned internally in the FBI, if we're pursuing a FISA or an intelligence method, it should also be recognized that we can pursue terrorism on a criminal level. And we can then go across the street to a U.S. Attorneys' Office.

And I think a similar mechanism perhaps needs to be considered also for U.S. Attorneys' Offices. It's not a terribly different when you go and say, "Here's why I think I have probable cause," to an assistant U.S. attorney.

In my writeup, and thinking about this, it's, kind of, analogous to a person who gets diagnosed with cancer, or with a serious illness, they always try to get a second opinion. And it's accepted in the medical profession. But in the legal profession, for some reason, it's not that well accepted that if you get an answer from an assistant U.S. attorney that you possibly have a way to have it reviewed again, or have it reviewed by an expert in the field.

And I think that we should maybe consider that for the Department of Justice to have -- I don't like really super squad, but maybe a cadre of, also, prosecutors that have experience with terrorism, that in the event that we were trying to pursue it criminally, we might be able to have a second way around a roadblock that way.

GRASSLEY: OK, and my last -- is my time up? My last question is that we heard quite a bit about how the answers are somehow solutions to problems that the FBI seemed to be more computers, more money. Not the first time that we've heard that supposed solution to problems at the FBI, or for that matter, a lot of other government agencies. How much do you believe more money and more computers will solve the problems at the FBI or are there other, more important, changes that need to be made at the FBI?

ROWLEY: I think upgrading our computer system would be nice. The capability to do these kind of searches and pull up related information would be nice.

I have, in my statement today, actually suggested a number of things that really don't require a lot of money. Upgrading our manual to give clear, concise guidance to agents working intelligence is not going to require huge sums of money. The idea of -- I have to look at some of the things, some of the law, if we can possibly toward the end -- some of the legal changes I've mentioned there could be problems.

The development of maybe a Department of Justice cadre of professional expertise.

I have a few ideas that it seems that they really don't cost a lot of money, and I think that they should be considered in addition, perhaps, to upgrading the computers.

The hiring of new agents always, of course, entails money and funding, and I'm not really in a position to comment whether we're adequately staffed. I think that the new measures to hire additional translators is very good.

GRASSLEY: Thank you. Thank you very much.

LEAHY: Senator Cantwell?

SEN. MARIA CANTWELL (D), WASHINGTON: Thank you, Mr. Chairman.

Agent Rowley, thank you for being here, and thank you for your service to our country.

Your memo to Director Mueller said, quote, "I do find it odd that no inquiry whatsoever was launched at the relevant HQ personnels and their actions, and despite FBI leaders' full knowledge of all the items mentioned herein" -- basically talking about the events of September 11, the information that was on the Moussaoui case in the Phoenix memo -- "the SSA and his unit chief, and others involved in headquarters personnel were allowed to stay in their positions, and what's worse, occupy critical positions in the FBI's SIOC command center, post-September 11."

Then you go on to say, "I'm relatively certain that if it appeared that a lowly field office agent had committed such errors of judgment, the FBI's OPR would have notified to investigate the agent and would have at least quickly reassigned him."

Now, I know you're not going to comment on that, but you do in your testimony today talk about management of intelligence, which I think is more or less what you were getting at in that particular statement in your letter to the director; that perhaps there had been a mismanagement of information analysis and processing.

In your recommendations, your recommendation number five, you say that management of information should be, I'm paraphrasing, improved. But specifically you say, centralized information is required, however it must be properly analyzed, evaluated and disseminated in a timely fashion to the field.

And you also say recently that state and local officials, as well as the media, have frequently received more information than the FBI field divisions. So how do you think that we address that in the reorganization that's been proposed so far by the FBI? And I know you're talking about reducing the layers, but what is it specifically that needs to be done to better process information at headquarters?

ROWLEY: Well, we've already discussed the computer. That would probably help somewhat, again, for an analyst to have the ability to go on the computer and then be able to put in "flight," "airline," or whatever it is, and draw some intelligence together. So I think that probably would help.

We need professional analysis of the intelligence we already have. I think Director Mueller is talking about an intelligence -- I'm not sure of the title, but it's something with intelligence. And the way I've perceived that is basically this is a group of people who conduct, put together reports, or conduct that request. If you have an issue or a question, that they then can produce that intelligence that might add on to an affidavit or whatever. They may well entail -- requesting field offices to conduct certain investigations, to be in, kind of, a proactive mode.

That if they get two offices sending in something that looks like, "Oh my gosh, we ought to look into this," that we have a group who is in charge of analyzing and looking at these things so that we don't have two things coming in three weeks apart and not even being able to put it together.

CANTWELL: Is that somebody's specific responsibility today, or several people?

ROWLEY: Well, I think at the present time, it's not done very well, I really don't. And I think that, you know, creating -- and Director Mueller is starting to do that, I think that we don't have it now, and I think that this group, hopefully, would be there -- function as an assisting thing to the offices that develop something, or when they make a request.

CANTWELL: But when I look on this org chart of an Office of Intelligence, it doesn't strike me as a flat organization that you seem to be more describing.

You're talking about information that's easily processed and driven back to the field. And to me -- no surprise, that's where most of America is moving, in the corporate world, to flatter organizations, because information flow is so critical. And it seems to me that you're describing a similar need. But I'm not sure I ...

ROWLEY: I haven't seen that chart. That's the first time, when you held it up. And when I made my first comments today and I mentioned that many of Director Mueller's ideas seem to be consistent with what my initial letter was, I see maybe a slight difference, and that is I really think we should scrutinize -- exactly when you held it up, it just hit me -- we really need to scrutinize all of these proposals for this problem that creeps in of having these various levels. I think that the flat lining, and if there's a way to reduce these levels somehow, we have to look at each thing and say, why create more? It's not going to be an answer. And if I have one little slight difference, that was the impetus for my first letter, really it was.

CANTWELL: Well, I happen to agree with you, that we're talking about more information flow here, and the thing that seems to be missing is the processing of that information and the quick distribution of that. And we're only going to get more, given the type of attacks that we're monitoring.

Not to catch you off guard, but I am curious. Tonight, the president going to make an address about somewhat of a reorganization, and some of the descriptions of it -- we don't know what he's going to say yet, but some of it, you know, his own press secretary said that the department may be responsible for border security, intelligence and other functions at several federal agencies that it now supervises. It wouldn't replace the FBI or CIA, but it might be one of the biggest restructurings that we've had.

What advice would you give the president about this?


ROWLEY: I really can't presume to give advice at such a high level.

I will say one thing. In the past when we've had different agencies where there was some overlap in their jurisdiction -- the things that come to mind are FBI, DEA, because we share drugs; sometimes FBI and ATF where there was bombings that we kind of both got involved in -- if you have two different entities and there's an overlap, and it's not clear who does what, we can have some friction starting up and we can have some problems.

So that's the only thing that comes to mind, is that it has to be kind of clearly demarked, so that the agencies don't develop this friction and we're not at cross-ends with each other. So if there's a new agency starting, which it sounds like, that's the only advice that I can think of.

CANTWELL: Well, I read in your statement that you didn't expect your memo to create such a furor, but thank you for stepping into the spotlight and giving this issue the needed attention.

Thank you, Mr. Chairman.

LEAHY: Thank you very, very much, Senator.

Senator Specter.

SEN. ARLEN SPECTER (R), PENNSYLVANIA: Thank you, Mr. Chairman.

Agent Rowley, we thank you very much for coming forward. It is obvious that it was very difficult to write the letter which you did, and it is filled with passion. You were really very concerned, a word you used repeatedly. And your purpose was of the highest, and there are obvious risks which you undertook in coming forward.

I'm confident, at this point, that the FBI and the Department of Justice will honor the commitments which they have made, and if they don't, I know that this committee is prepared to make sure that they do.

I think you performed a great service for the FBI, because after Director Mueller's first response, which was unresponsive to your memo, he did come forward and articulate an acknowledgement of the problems and then move correct them, which is indispensable.

And we've said repeatedly that we're not interested in finding fault, we're interested in seeing to it that if there's a recurrence and you have all of these indicators, that you put them together and you read a road map which is there on an analytical basis.

I understand your limitations as to what you can testify to about a case. I spent a dozen years as an assistant DA and as a district attorney, and have some appreciation for what prosecution requires and what the limitations are.

But in trying to understand the mentality of the FBI -- which, I think there is general agreement, has to be changed -- I was intrigued by your characterization that the United States attorney's office -- for a lot of reasons, including just to play it safe -- in regularly requiring much more than probable cause before proving affidavits, maybe, if quantified, 75 to 80 percent probability or sometimes even higher.

Can you give us some insights as to why, so that we might approach the issue as to how we change that attitude?

ROWLEY: Well, in some ways, maybe that could be misinterpreted. I think actually there are cases -- playing it safe has kind of a negative connotation, but playing it careful, or being careful or meticulous, doesn't.

And I think there actually are cases, I think, many times, in white-collar cases, for instance, when you really want to be extremely careful, public-corruption cases, these types of things where you really want to be careful about proceeding, that it might well be appropriate to require something more than 51 percent.

SPECTER: Well, I can see if it's a prosecution, perhaps. But if it's an investigation, it's very different. I think the FBI has to change the approach to case preparation to investigation.

But even on the quantum of proof, referring to Illinois v. Gates, which I mentioned to Director Mueller this morning, a 1983 Supreme Court decision, opinioned by then-Justice Rehnquist. He points out, going back to Locke v. United States in 1813, referring to the term "probable cause," it imports circumstances which warrant suspicion.

More recently, we said the quantum of proof appropriate in ordinary judicial proceedings are inapplicable. Finally two standards, and then he refers to preponderance of the evidence useful in criminal trials have no place in the magistrate's decision. So that Justice Rehnquist is pretty explicitly saying that it's not a preponderance of the evidence. It's not more likely than not. That it is, and he quotes Marshall -- pretty good authorities, Chief Justice Marshall and Chief Justice Rehnquist -- talking about suspicion.

So that one of the things that we're going to be looking forward to, and I have discussed with the chairman, the issue of pursuing this trail (ph) through the Foreign Intelligence Surveillance Act to find out. Let me go to another point which you raised in your exhaustive letter, and that referred to the issue as to Zacarias Moussaoui. And I'm not asking you about evidence now. We're still on the Foreign Intelligence Surveillance Act issue. Where you pointed out, quote, for example, "at one point the supervisory agent at FBI headquarters posited that the French information could be worthless, because it only identified Zacarias Moussaoui by name, and he, the special agent at headquarters, didn't know how many people by that name existed in France."

It's extraordinary. Zacarias Moussaoui is not exactly a name like John Smith. And after you tracked it down, going to the Paris telephone book, you noted here that the special supervisory agent at FBI headquarters, quote, "continued to find new reasons to stall."

And here we're looking at what we have to do to have a sensible response from FBI headquarters on an application under the Foreign Intelligence Surveillance Act. Can you give us any insights from your experience, which has been considerably painful, as to what we might do?

ROWLEY: In my statement, I talk about roadblocks and basically in that, in my statement, I'm addressing in criminal cases. When you first talked about probable cause, and we all know there's no perfect test for it, what I think has happened in years we have adopted certain mind-sets from judicial rulings or what might be the prevailing mindset in a U.S. attorney's office. And I think what we do see are elevated standards in some cases.

And one of my recommendations is that we have a sanity check, a second opinion, somebody else that we can maybe try to reason with. I really think it should be outside a particular U.S. attorney's office, because what can happen is that, you know, people are all kind of -- the careerism or whatever can be a problem there, too.

In the FISA process, Director Mueller has proposed the same type of thing internally in the FBI, and I think his idea will definitely have results. How many people -- OK, if you don't approve it and now it has to go up with our kind of attitude about having to take it up, how many times -- I think it might actually, the pendulum might actually might swing the other way too far.

So I think that in the FISA process the proposal that it will be reviewed at a higher level if it's not handled, I think that's already there. SPECTER: Well, the review -- my concluding comment would be that the review is not really adequate unless you have a standard which meets the legal requirement but doesn't impose a burden, which is impossible. We changed the Foreign Intelligence Surveillance Act in the Patriot legislation to add the word "significant," to a significant purpose of the surveillance is to obtain foreign intelligence information.

And after we investigated Wen Ho Lee, the subcommittee which I chaired, we came forward with a recommendation that when a high-level officer of the FBI like the director took the issue to the attorney general, the attorney general had to give the reasons coming back, because the Attorney General Reno personally turned down the FISA warrant in the Wen Ho Lee case.

But this committee's going to get to the bottom of it. We're going to find out what's going on. And so far we have only glimmers of information, like an Agent Resnick (ph) was reassigned from a FISA unit, apparently removed by the special court where the Chief Judge Royce Lamberth reportedly excluded him. And the question is, did that make that unit gun shy?

The question is, did racial profiling make them gun shy? And in this kind of a situation, unlike ordinary cases where courts write opinions and we can tell what happened, I've discussed with some of my colleagues the possibility of consulting with Chief Judge Royce Lamberth about what went on, because we've got to figure out what is fair on civil rights, not overreact, but not look for 75 to 80 percent, or even 51 percent. You go with Chief Justice Marshall on suspicion, has to be quantified in accordance with the facts of the case.

But I think that your 13-page memorandum has started us off on a road which could produce a lot of fruitful results when we really get down to brass tacks and do it right with an appropriate legal standard.

ROWLEY: The language change that's already occurred that you mentioned has been very beneficial. That was a big stumbling block, and that change already has produced some results.

And I, as I talked to Senator Hatch, I think that maybe there could be some tinkering with the aspect of having to prove, especially with terrorist groups, that this person is an agent of the foreign power. And kind of use that analogy that we can use other types of information rather than something that -- I use the example of a membership list, but a photograph, a telephone call, the same types of things that we might be able to use in a Mafia case to put a RICO case together as an enterprise, that we can use that in a terrorism case to show that they're affiliated with or have connections to...

SPECTER: But not...

ROWLEY: I think that would be a good idea.

SPECTER: But not imposing a standard which is so high as to be unrealistic, simply to protect somebody from later blame for having made a mistake. If you don't do anything, no mistake.

LEAHY: Senator Schumer is next.


And I want to thank you again, Agent Rowley, as everyone has, for your stepping forward and doing the nation a service. I read your memo, it was -- you know, it showed you how long we have to go. There's a mindset there that has to be, sort of, cracked and your memo does it in both a forthright but also a nice and respectful way.

And I have a few questions. First, I don't know if you happened to hear my conversation with Director Mueller on the computer system.

ROWLEY: I heard some of it, I don't know if I heard the exact whole thing, but...

SCHUMER: Well, the bottom line is that the FBI's computer system is amazingly backward. I've done a little bit more search on it, or I want to elaborate a little more. You can sometimes do a search by term, but you can never combine two terms. So you can use "aviation," and get a huge amount of stuff, or you can use "school" and get a huge amount of stuff, but you can't do "aviation" and "school."

ROWLEY: That's correct, actually I, kind of, mentioned that earlier. It's absolutely right.

SCHUMER: And that just amazes me, because as I said to the director, you can do that on my daughter's computer that she's in seventh grade that we bought her this fall for, I think it was, $1,400. And I know we've each year increased the amount of money.

Tell me, first, because I asked the director this, what led to the FBI being so backward in such a fundamental tool, in your opinion? I mean, this is not just typical, this is dramatically and deeply atypical, worse, negatively atypical.

ROWLEY: Backward in computers: You have given me a question I -- of course I have thought about some of these question, I guess, in my dreams, or sleeping, or whatever. But that's one I haven't thought about.

SCHUMER: But just, you know, your knowledge of the bureaucracy. How could -- assuming that most small businesses and even most junior high school students have better computers than the FBI, why would the mindset of the FBI be such that as of today this is?

By the way, this isn't just as of a year ago -- he, Director Mueller said it would take two years at minimum to bring the system up to snuff.

But one of the things that troubles me is, why wasn't there somebody -- I mean, you don't need to get a Ph.D. in computer science to know that the problem -- how deep this problem is.

ROWLEY: You know, one of the only things that comes to mind -- and I have, you know, 21 and a half years in, so I'm going back to when I was a brand-new agent, and I worked with the, kind of, like, the people now who would have been 20 some years ago. When the computers first started coming on the scene, there was many of the old-time agents can't type, we had secretaries and stenos who actually wrote the interviews after you just dictated it and it got written. I do know there were a number of people at higher levels back in the '80s who were, kind of, opposed to computers, and they hated them, and the typing and everything.

SCHUMER: Do they still have carbon paper over there at the FBI?

ROWLEY: No, actually when I started we still had it. We had a lot forms that were still on carbon paper that had to be hand-typed.

So I don't quite no why we've never -- I just, I'm real lucky that I took personal typing in high school because that helped so much that when you can do your own -- especially when you're going to write a letter that you don't have anyone else that can see, I'm so glad that I can type all right.


And actually, now, I should say that with our new agents, this really has -- this is no longer an issue.

SCHUMER: This is a function. You know, you can have a bunch of agents out there in the field who don't know how to type, but somebody at the headquarters should have said, years ago, that we -- it's such an obvious tool in crime fighting. Is it used? I mean...

ROWLEY: Of course that's recognized now and I don't know exactly how this all developed, but it goes back some time, as you have noted.

SCHUMER: OK. Let me ask you this -- I mean, I know the others have been watching this. We can watch these things on television from our offices; they broadcast them. And I know a lot of people have asked you about the culture. But let me ask you, what would you do if you were director -- if the director came to you and said, "How do you change the culture?"

I mean, this is a big, deep, proud organization that is now reeling. You know, I'm sure it is, and there are many, many as has been said, many fine people and they've done a good job on a whole lot of things. But it's been obvious to some of us that over the last several years they've lost, not just in this area but in other areas, sort of, lost its edge.

How do you change it? What would you recommend from your perspective as an agent in Minneapolis?

ROWLEY: Well, I think there is probably several things that could be done to improve the culture in the FBI leadership and the problem of careerism.

Our director, Mueller -- I keep saying Director Mueller has said this and in many cases this is true -- he has mentioned, time over, that we need to pick our best leaders. We need to pick those best people out there. In my statement, I mentioned the fact that I've seen in the past few years just the opposite happening. I've seen a number of great FBI agents with great background experience actually stepping down from their positions of leadership. It's actually gone the opposite direction, and for a lot of reasons.

So somehow, that has to be reversed. We have to give better incentives to getting into management. We have to reduce the disincentives.

Paperwork -- no one's asked me about paperwork. I think that's a real problem, I think people ...

SCHUMER: I asked you about the inverse, computers.

ROWLEY: I think that, you know, we need to be judicious about that. If someone -- I go back to the don't rock the boat, don't ask a question problem. If I say, "Why are we doing this? Does this really have any value? Does it serve a purpose?" it's either one of two things, it's just like a complaint that we can all complain about it but nothing can ever change; it just, kind of, falls on deaf ears and no one, like, really examines it. Or it might actually be seen -- if you're criticizing some particular program write-up or some particular inspection thing, it actually might be seen as a challenge to somebody higher up, and they may get mad, or whatever.

So I think to some extent, if we're going to really scrutinize what is necessary and how we can become more effective, we definitely need to encourage people to say, "Exactly, is there a purpose to what this is, and, you know, if there is, fine, we'll continue doing it. Can it be done quicker? Can it be done in a more minimal fashion?"

SCHUMER: Those questions are not asked enough. It's a real bureaucracy is what you're saying.

ROWLEY: The day before I came here, I had to fill out our ethics audit, and that meant that I had to name all the people in my office. Essentially, I had to retype around 60 some names. I'm a good typist, but it still took me like an hour and a half. And I was busy as all get out three days ago trying to do this and everything, and yet I had to take about an hour and a half to re-type, and actually these names are in a file. And all you have to do is open up this file. And yet, if I would have complained and said, "Why am I" -- I actually did complain.


But I still ended up retyping those. And that's just one little example.

SCHUMER: Right. OK. We have a vote, there's only about two minutes left. Patrick's back. I was going to call a brief recess, but I may come back and ask you a few more questions, but I'm just going to vote. And I thank you. And if I can't make it, I thank you double. LEAHY: We should bring you with us while we vote, Agent Rowley. We could probably continue the questioning. Just grab the stenographer, who is superb, here, who's done this forever, and follow us over. You could turn the red light off. We're not going to take anybody's time.

One thing, and I was going to ask it earlier, but I didn't want to infringe on the time of the others, you said in your letter that there's a perception among rank-and-file agents that there's a double standard when it comes to discipline in the FBI. I remember hearing that way back in my days when I was a young prosecutor in Vermont and working with the FBI then. What do you mean by this double standard? And if we could wave a magic wand, what would we do to get rid of it?

ROWLEY: Maybe I can think of how we can get rid of it. Of course, you can just -- we have in the FBI already, in the last year or two, when this problem has surfaced, it's been surfaced by others at various times. And there are examples, I think, that have occurred in the past few years, where higher-level management did the same misconduct or made mistakes, and it was lightly dealt with or not dealt with at all, whereas a lower-level agent would be disciplined. And this has surfaced before.

Now, in the last year or two, even prior to the director, there have been attempts just by policy to make sure that this doesn't happen. I think that they are already in place with the SES (ph) system. They've made some changes to that, so trying to, you know, remedy the problem, that they will have the same -- I'm not sure. I don't know if it's -- I know that the OIG in some cases now has been given some additional powers to look at things.

It might require somebody just outside our agency, because if you are in a chain of command, it's going to be very difficult to ignore that someone at a higher level -- I think it's, kind of, just inherent, that may be some double standard. There have been attempts, though, in the past year, to try to remedy this.

LEAHY: Thank you. Ms. Rowley, I'm advised (ph) that some of the other senators on the Republican side are coming back in the building, am I correct? Thank you.

And we'll stand in recess for a couple minutes so they come back. Give you a chance to stretch your legs. Even talk to your husband if you'd like.

Thank you. We'll stand in recess for a couple minutes.




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