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Senate Judiciary Committee Hearings, Part IX

Aired June 6, 2002 - 17:09   ET


SEN. MIKE DEWINE (R), OHIO: You're the legal counsel?

COLEEN ROWLEY, FBI SPECIAL AGENT: Yes. I'm our legal counsel in our office. Some offices have more than one, but in an office such as ours, with about 115 agents or so, we just have myself.

Now there is a similar thing of course in regular criminal cases for Title III, intercepts, wiretaps. And even in those cases they can be different types of crimes. We also, in those cases, would not conduct nearly the number that other offices with the Mafia and bigger drug cartels or whatever. But we do have a few of those a year.

DEWINE: Do you think -- without getting into the specifics or the numbers of anything, do you think that that in anyway impacted how this matter was handled?

ROWLEY: The fact that our office -- actually...

DEWINE: I'm not suggesting it does. I just don't know. Your office...

ROWLEY: No, I don't want to comment specifically about this case, but I don't think really -- our agents in Minneapolis, we have some top caliber agents. Some of our agents have come from other intelligence -- they have other intelligence backgrounds. And I really think it would have made a difference.

Our -- we really have top-notch people.

DEWINE: Let me ask you, looking at this particular case, has it been your experience that you've had other problems, not directly related to this case or not using this case even as an example. But you talk about and you know, you're very lengthy letter, you talk about the bureaucracy, you talk about the frustration. Obviously, that letter just didn't come up from this particular one case. I mean, you've had other problems?

ROWLEY: Correct. And not only...

DEWINE: And so it would be -- excuse me -- would it be fair to say this is not unusual but for circumstances unusual, national security matters unusual, the horrible tragedy is unusual...

ROWLEY: I've heard... DEWINE: ... but typical in a sense?

ROWLEY: Yes. And also, as you mentioned in your -- at the start that this could be the complaint of any number -- large number of agents around the country. From the responses I received from field agents in other divisions, up to till now, and hopefully, you know, cross our fingers that it's going to start improving, that this has been the experience in many other types of cases.

The bureaucracy has been a problem, hitting roadblocks internally and again externally -- it can be in criminal cases as well -- is a problem. And I think we need to think maybe in some what creative ways of trying to remediate this.

If I can, I don't to take up all of your time, but I didn't give a tremendous answer to Senator Schumer earlier, when he asked...

DEWINE: We'll take that from his time, even though he's gone.


DEWINE: The chairman's not laughing...

ROWLEY: It ties in a little bit with your question, so I will give you 30 percent and him 50.

DEWINE: All right, but I do have a couple more that I'd like to get in.

ROWLEY: You know, when you're talking about the probable cause and why this is has, kind of, come into this issue, it's kind of complex where the mind sets start to change. And I know Director Mueller today mentioned something which struck me as a little odd or a little -- or actually, I, kind of, bristled a little bit at it.

He said, "Well, maybe -- someone suggested maybe we should give our agents training in probable cause."

Well, first of all, that would fall to me. And I am, I am here to say that the agents who have 20 years in the FBI, who have done search warrants and Title IIIs and any number of things, really, really are quite, quite familiar with standard of probable cause.

I don't think that would really serve any purpose to give some, kind of, esoteric training.

DEWINE: All right.

ROWLEY: But there are some improvements, you know, to the writing, where, you know, the people on the scene should be given some credit for their observations because those are firsthand observations. And in writing an affidavit, that should really be of primary importance. And there shouldn't be any rewriting of an affidavit further up the chain, unless it's grammatical or really not of any substance.

DEWINE: OK. One of the recommendations you made, I would like to read to you and then I'd like for you to comment on.

Number nine, "Development of confidential sources and assets. Just recently in the wake of the Whitey Bulger scandal, the guidelines for development of confidential sources and assets have been extremely restrictive and burdensome. While some of the measures undertaken to monitor the informant process were necessary, they have not gone too far. If not reviewed or trimmed, may result in reduced ability on the part of the FBI to obtain intelligence."

Do you want to explain that a little bit?

ROWLEY: I'm not the person in my office who's the informant coordinator. But we've all, of course, in the wake of these new guidelines on informants, been given additional paperwork that needs to be completed, additional items that need to be conducted before opening sources, before certain sources can do certain things. I think it should maybe be re-examined.

I am one of the -- I have to tell you where I'm coming from. Because back in the '90s, we actually had an FBI agent who murdered his informant. And to me, it's, kind of, like other scandals. It seems like we should have done something back then. And nothing occurred after that incident.

We did not have a policy in the FBI in the '90s that prohibited social or sexual relationships with informants. I find that just unbelievable, because most law enforcement agencies had such a policy.

I think if we would have had a strong policy, if we would have had some accountability and some good oversight, perhaps all of these additional things that later transpired wouldn't have occurred.

And maybe now -- whenever these things happen, it's just inevitable that sometimes it goes a little too far. And we might have some additional paperwork that's...

DEWINE: Let me ask you one last question. In your letter, you mention the problem that agents have with the perception that sometimes they try for a Title III warrant and then, if that fails, go for a FISA warrant, which requires different proof but an easier standard.

Let me ask this: Do you think that happens a lot?

ROWLEY: No. I don't. I think...

DEWINE: You know, are these suspicions reasonable?

ROWLEY: No. I don't think it actually happens. In real life, I do not -- I've never seen where you try for something to do it criminally, and if you fail, you pursue the intelligence method. I have never seen that.

But do I think that there is a perception out there sometimes? I do think that there is a perception that this, this smell test, or whatever, exists. I don't think it's correct, but I think it does exist. DEWINE: Thank you very much. We appreciate your testimony. Thank you.

Thank you, Mr. Chairman.

SEN. PATRICK LEAHY (D), VERMONT: Thank you very much.

Senator Kyl?

SEN. JON KYL (R), ARIZONA: Thank you, Mr. Chairman.

Agent Rowley, I had to leave to vote just as Senator Schumer was beginning to ask you a question that I wanted to ask you. And it related to your answer to Senator Grassley's question about computers. I just want to, maybe a quick response.

You had testified in response to Senator Grassley that it would be nice to have new computers. I'm not sure you wanted to leave us with the impression -- I mean, nice is nice, but not really necessary. And I just wondered if that's really the impression you wanted to leave us with. If so, fine; I just wanted to give you a chance to respond.

ROWLEY: Well, the ability to conduct research of our records, as I described -- just like you would on Lexis-Nexis, for instance, where you're putting connectors and stuff. I guess nice is not the word. When it comes to intelligence, and you really have these critical snippets out there, it would be more than nice. I think it's necessary.

It may not, in other cases, be all that critical. But in intelligence, I think it is.

KYL: Thank you very much. I assume that most of us would agree with that.

You had what I thought was a very interesting recommendation in your statement. And you haven't had an opportunity to discuss it yet. It's the public safety exception, the Quarles case. And I wonder if you would describe a little bit why you think that would be important, and particularly in the context of terrorism that we're concerned about here.

ROWLEY: Thank you for giving me that opportunity. It's a little issue that's come up before, actually, in criminal cases. We've had kidnappings. We've had cases where someone's life can be right on the line. And we have a -- there is a case that makes this really constitutional to -- I shouldn't say ignore Miranda, but disregard it, for public safety reasons. The only problem with that case is, it's the loaded gun in a grocery store. And when you start mentioning applying it to other cases, such as in a terrorism case, when we might want to interview someone, there may well be -- I always think of the bomb, and someone ready to push it down.

Obviously, Miranda is a safeguard, and it's a good safeguard in many cases. But there can -- it's like everything else. There may well be a time when it should be, you know, overridden, and that would be to save a life. As it stands now, there's a case about that. So it is constitutional. I think that it wouldn't be overturned if there was a statute about it.

The only problem with the case is like anything else, it's a case. In order to give timely advice to someone, you've got to run to a computer and pull it up. And I think that many people have, kind of, forgotten that case. And many courts have actually limited it to its facts.

So I think that we have cases that come up from time to time, and...

KYL: Do you think that we should at least try to write some kind of a narrow public safety exception?

ROWLEY: I do. I contacted -- after September 11 I called some staffers about this. Because I think it is an important issue. And I think it definitely has the potential to repeat itself.

It's not often. I know people will get alarmed if we say we're going to violate Miranda. But I don't think that it is something that comes up all the time. But there are these cases. The one I referred to, it's the most dramatic one. There's a baby in a duffel bag in a forest that's been kidnapped that morning. And that is the type of thing. Of course, it doesn't arise too often, but when it does, our agents really need to be somewhat -- feel somewhat safe that they can proceed. Right now after the Dickerson (ph) case, there are commentators that are speculating that civil liability exists for the agent.

So in addition to having the statement suppressed, which in a case like this really, if it's saving a life, we would -- goes back to your prevention versus prosecution. We wouldn't care about the prosecution, we wouldn't care about the statement being suppressed. We would want to save the life.

KYL: Might even get sued.

ROWLEY: Right. Now the agent might even get sued...

KYL: Do you have...

ROWLEY: ... possibly.

KYL: ... excuse me, do you have to pay for your own liability insurance or umbrella coverage or anything of that sort?

ROWLEY: It's my recollection that we get $50 reimbursed from the Department of Justice for our liability insurance. I think that's right. I'm not sure. We get a portion of it. I think it's $50.

KYL: But a liability insurance policy would protect agents working in the course of their employment, would cost a lot more than $50.

ROWLEY: A couple of hundred, is it?

I think it's a couple of, round a couple of hundred a year. And that kind of civil liability protection, you go back to your chilling factors. Even if -- agents don't even want to be sued. It's like, you know, any other person, that suit itself is a real chilling factor of somebody aggressively trying to save a life.

KYL: I've been an advocate of trying to have the government pay for the insurance for people who are working in the line of their duty.

You testified earlier that -- to something that I thought was very important, and it maybe didn't quite receive the degree of attention that I think is warranted. And it had to do with the new guidelines.

From your experience as an agent on the line -- and you said you had also gone back and reviewed more historic documents in the course of your employment -- you view these new guidelines as very helpful to doing your job. And you indicated that you didn't think the American people had to be fearful that they would be abused by the agents. And you used the specific example of being able to go into a meeting and if there were discussion of threats of terror then that would be very useful. And if there weren't, then that was the end of it is, kind of, the way you put it.

Do you want to amplify on that at all, because I think this is a very important point for people to understand?

ROWLEY: I think that when a certain guideline might be somewhat relaxed, in this case -- and, of course, Director Mueller has explained that surfing the net is something any kid can do, going into any meeting is anything a local law enforcement or anyone can do -- I think it's the real crux of it is in how it's done.

We also have the ability to collect information, so just by undertaking to keep your ears open and walk into that meeting and then if something does transpire, you can act on it, that doesn't mean we get overboard and start recording things and mishandle that ability. It really goes into the capability to use it judiciously, because I think it increases only the potential for -- it does perhaps increase the potential of going further than we have before.

But it -- I don't think it necessarily -- I think we can have our cake and eat it too is what I'm saying here.

KYL: With good training.

ROWLEY: I think we have -- with training we can do these items and we still can avoid interfering with people's rights.

KYL: Appreciate it very much. Thank you.

LEAHY: Senator Sessions, the most patient man in Washington?

SEN. JEFF SESSIONS (R), ALABAMA: Thank you, Mr. Chairman. And I think this has been a good hearing.

LEAHY: I do too.

SESSIONS: We've had a good high-level discussion. And the witnesses are talking about important matters.

And Agent Rowley, thank you for what you have done. I know it's an unusual thing, but it was an unusual circumstance.

Before Director Mueller was confirmed, he and I talked. At his confirmation hearing we talked and I asked him questions. And I focused on the very things you raised in your memorandum. I raised questions concerning matters such as defensiveness on the part of the FBI, unwillingness to admit mistakes, some arrogance, too much bureaucratic blocking and particularly in Washington, that undermined effectiveness of investigations in the field. And I asked those questions, based on my experience as 12 years as United States attorney and two as assistant.

I believe that is consistent with the overwhelming view of federal prosecutors throughout the system. And I believe that as you have noted, it's consistent with the views of the agents in the field.

So to that extent, your letter and the public hearing that's come about here, I believe will strengthen his hand in being able to make the kind of cultural changes that need to be made.

And I love the FBI. I know you do. So we want to see it reach its highest and best potential, not hurt it in any way.

I think -- my own personal view -- that we hurt the IRS. I think that has been damaged by some of the things that were done. And we don't need to damage the FBI. We need to strengthen it and help it reach its fullest potential.

But just back to this problem we were facing, it seems to me there's always a good excuse that the computer system wasn't up to date. If you had been given a point person to monitor the intelligence of the United States, wouldn't you create a system in which important documents from the field would come to your desk personally within hours of the time they were sent forward? And isn't it unwise or inadvisable, as apparently occurred with regard to the Arizona memorandum, that some clerk sent it off to a different section, and it never even got to the supervisor there? Isn't that a poor way to run a shop?

ROWLEY: Well, as a general matter -- I'm not speaking to any particular case, but as a general matter, of course, it's obvious that we want the important items that need to be acted on to really get to the right place. And if we do have a focal point at a central location, it's very clear that they have to get that information.

There is a problem of when there's a lot of intelligence being gathered, and the ability to distinguish the wheat from the chaff. And that isn't easy when you first get this information. So that is, I think, one of the reasons for having an intelligence analysis where we can really attempt to get these important things that need to be acted on as distinguished between something that's not so important.

SESSIONS: Yes, well, I think Director Mueller's new organization will do that. And I don't think there's anybody there that's not going to be reading important documents from the field.

I think those documents could have been recognized as being important before September 11. And I don't think we can say with certainty, as you pointed out, that they could not have helped us avoid September 11. Probably not, but possibly.

ROWLEY: Could I say one more thing because I just thought of something? I -- you know, one way that -- of recognizing importance really -- and this can't be underestimated -- the person who is experiencing firsthand the event -- OK, I'm just going to speak generally, but if it's a flight instructor or whatever it is and this thing is real -- that's not a good example. But I'm just saying that if it's a somebody who's experiencing it firsthand, many times is in the best position. It's not the person five levels up. And what often happens is it gets lost in the translation.

SESSIONS: Absolutely. I agree.

ROWLEY: The person here who sees it, feels it, eats it, really knows it's importance. Someone further up the chain -- and again, the message by that time has maybe been diminished or whatever -- doesn't recognize the importance.

SESSIONS: All right, let me ask you this: It's odd to me that the investigative agency, the agency designed to protect public safety -- and I've seen instances where this occurred in the Department of Justice and not just the FBI -- don't you think they shouldn't be negative about things that might impact public safety, but they should be positive and help the people in the field succeed; rather than putting down and throwing up roadblocks, they ought to be helping them, recognizing that you are on to something important and maybe helping you legally or through intelligence searches around the country and the world, helping you to succeed?

If you don't advocate, if the Department of Justice does not advocate and take it to court before a judge who has a final responsibility, who is going to advocate it?

ROWLEY: Well, that's -- I had forgotten to mention my point -- a footnote in my letter about the judges. And I think our system actually was originally designed to let a judge -- it goes to Senator Schumer's question too -- all these perceptions of where probable cause may lie. Our system really was designed to let a judge make those determinations, not someone -- not, you know, other levels before you even get to a judge.

When in doubt, it's especially when public safety is on the line, I think we need to let judges look at these things and then make their determination.

I totally -- in fact, I've heard from a prosecutor who, you know, many prosecutors might be antithetic to, you know, someone -- it's even the second opinion idea. They may say, "Well, I don't want anybody second-guessing me."

But I actually heard from a prosecutor about that point about going, you know, when in doubt, when in doubt, take it to a judge.

SESSIONS: When lives are at stake...

ROWLEY: Especially.

SESSIONS: ... this was not a minor matter. This was a matter that dealt with potential loss of life and I think you should advocate, not take the -- now you've expressed an opinion in your letter that there was clearly probable cause at some point before September 11. How confident are you of that?

ROWLEY: I'm not going to get into that because, of course, these issues are before the other committee, and I'm just not going to comment at this time about it.

SESSIONS: Well, you say in your letter that probable cause existed in your opinion.

ROWLEY: That's correct. I actually do not...

SESSIONS: Still stand by that or do you... ROWLEY: I didn't expect that letter...

SESSIONS: ... or was there close call?

ROWLEY: That letter -- actually the fact that everyone here is aware of it, I didn't really know that would happen, because I gave it to the Joint Intelligence Committee, and I think -- I have to be very circumspect at this point, because there are ongoing proceedings.

LEAHY: I might say, Senator Sessions, one of the -- as we've made it very clear, Agent Rowley has been extraordinarily forthcoming, as has Director Mueller and his office. We did agree that we would be careful limiting into issues that involve an ongoing case.

I would point out that some of the measures have been raised in Intelligence, and we can provide you, on a classified basis, some of the material you're talking about. I'd be happy to arrange that.

SESSIONS: I fully understand that. But I tend to be like Senator Specter. Sometimes I think there are too many people in the system putting too many burdens that go beyond what the law requires, and therefore it makes it difficult for public safety to be protected.

LEAHY: Thank you.

I want to thank all the senators, both Republicans and Democrats, who -- this hearing, from the time we started this morning, has been about an eight-hour hearing. Ms. Rowley probably thinks it's even longer because she was watching the early hearing before.

Agent Rowley, I have a feeling that you'd much rather be in your office, doing the things that you -- from everything that we've been told -- do very, very well. But I appreciate your being here. I appreciate Director Mueller. And Inspector General Fine, and the amount of time they took. We have people like Mr. Collingwood (ph), who's sat through all this patiently.

These hearings, as both Senator Hatch and I have made very clear, are not "gotcha" hearings. Through the hearings, we want to help.

If a terrorist attack -- as I said earlier, terrorists don't ask whether you're Republicans or Democrats, or where you're from or anything else. They just strike at Americans. And all of us have a duty to protect Americans.

We also have a duty to protect those things that have saved our own liberty. As I said earlier, attorneys general come and go, senators come and go, directors come and go, we all do. The Constitution stays constant. And we can protect ourselves within that framework.

You are sworn to do that. And you've worked a long career upholding that oath. And I admire you for it.

So I thank all of my colleagues. This is one of many hearings we've had.

And we will stand, gratefully, in recess.




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