Hearing of the Commerce, Justice, Science and Related Agencies Subcommittee of the House Appropriations Committee Subject: Federal Bureau of Investigation of Fiscal Year 2009 Budget Request

Interview

Hearing of the Commerce, Justice, Science and Related Agencies Subcommittee of the House Appropriations Committee Subject: Federal Bureau of Investigation of Fiscal Year 2009 Budget Request

REP. MOLLOHAN: Well, good morning everyone. I think we'll get started.

Let me welcome everyone to the hearing this morning on the Federal Bureau of Investigation's fiscal year 2009 budget request. Our witness today will be Robert Mueller, director of the FBI.

Director Mueller, this committee has more than doubled your agency's annual budget since 2001. It's given you hundreds of millions of dollars in supplemental money. It has bailed out the agency on several occasions when the agency has made multimillion dollar mistakes. A significant amount -- or a significant number of those mistakes came before your tenure; I understand that.

All of this has come at a significant cost to the rest of the Department of Justice, where criminal enforcement and litigation and state and local assistance have suffered in the budget year after year. And I would point out that this year the president is again recommending a $1.6 billion reduction in state and local law enforcement, and it is very hard to justify an increase in any of the other agencies in this bill when those kinds of reductions are being contemplated. Given the amount of support that this subcommittee has provided to your agency, it is disappointing to see the numerous occasions on which money has been wasted, authorities have been abused.

And let me say simply that I can think of no two government agencies that are more central to the healthy functioning of a democracy than the attorney general's office and the FBI. My brother- in-law is a former DA. He was shot in the line of duty a number of years ago. And I think that I've seen enough of law enforcement problems through him through the years to have a healthy respect for each and every person who enforces the law, be they members of local police or members of any state or federal agency.

They put their lives on the line, and it is far from the easiest job in the world to enforce this country's laws.

I can think of nothing more corrosive to a democracy than to have the American public lose confidence in the determination of either the Attorney General's Office or the FBI to abide by the law. And yet we've seen a number of instances where the law has certainly been bent.

Three weeks ago we received a report from the Justice inspector general documenting significant abuses and deficiencies in the FBI use of national security letters. This is the second year in a row that we've had such a report, and this year's findings are, to say the least, unsettling: unauthorized collections, uncount -- or undercounted violations, inconsistent with compliance -- or inconsistent compliance with statutory obligations, and many more.

Even worse, we know that there is more news on the way which is of concern. The IG is still working on an assessment of the FBI's use of so-called exigent letters, which were used to obtain information through misrepresentation, and blanket NSLs, which apparently were attempts to retroactively justify the illegal use of the exigent letters.

This cavalier approach toward legal protections may have temporarily gained the agency some useful investigative information, but it had a long-term cost to our rights and to our trust and to government's credibility.

Today's April 1st. This is the 39th anniversary of my election to Congress. I was elected on April Fools' Day. It couldn't have been -- couldn't happen any other day.

But one of the things I've learned through the years is a very unpleasant fact. When I'm often asked by college students what's the most disturbing thing that I've learned in the years that I've been in the Congress, I tell them the most disturbing thing that I've learned is that government has routinely lied to me and to the Congress of the United States. All you have to do is to go back to Lyndon Johnson's days in Vietnam, trace it through Richard Nixon's days and a number of more recent examples.

The second most disturbing thing that I can think of is to discover that almost on a regular basis we see agencies of the United States government that do not appear to have complied with the requirements of law.

And I think it puts us at a tremendous disadvantage because it means that our constituents lose faith in not just agencies involved, but all of government, and I think we need to know that this kind of conduct is not going to happen again, and we need to know that we will have something more than pleasant assurances that some of these incidents, with respect to NSL programs or FISA collections will not be occurring in the future.

We also have a number of concerns about your budget, which you and I touched on yesterday, but in the interest of time, let me forego comments on those for the moment and simply ask Mr. Frelinghuysen for any comments he might have before we begin.

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REP. MOLLOHAN: (In progress after audio break) -- about the FBI's abuse of those authorities, or are we going to get a similar report about your use of those NSLs in 2007?

Second question: An internal FBI audit, as I understand it, found out that the -- an NSL violation rate in the FBI field offices was 2 percent higher than the rate originally documented by the Office of Inspector General.

In the most recent report, the OIG found fault with your audit methodology and determined that the violation rate was still higher. What are you doing to ensure that we have an accurate baseline on the violation rate so that we can use that to evaluate your progress?

MR. MUELLER: I'll answer the first question. My hope and expectation is that this is the last time you'll see an FBI -- or an OIG report that reflects the practices in some of the offices -- it wasn't all the offices -- that occurred in 2006. And the last OIG report covered 2006 -- required by Congress to cover that period.

And as I've indicated before, the report said since that time, we have taken substantial steps to assure that it's not -- would not occur again. So I would not expect that it would.

In terms of the rate -- there have been some disagreements with the inspector general in terms of what is deemed to be a risk -- or not a risk -- an error. I will say that in the wake of the IG report, we directed a 10 percent audit of all of our offices, which is way beyond what the IG had done, for the purposes of getting our own baseline much more thoroughly throughout the country. I'm not certain whether it was 2.7 -- we found slightly more than the IG did or not. I'd have to check that.

But an example of some of the disagreement is many of these incidences where we would send out a request, an NSL letter, and the communication's carrier would respond with information that was beyond the request. Now, this was not at issue -- initially our responsibility, but we did have a responsibility to identify what was within the request, and that which was not in the request, to sequester it and to make certain it was not used and didn't go in our databases.

We had some differences of opinion on how you would treat that particular issue, because many of the ones that he had come up with were that kind of circumstance, which is different than our not having the appropriate approval within the particular office at issue in NSL, which is a different category.

And so yes, there were disagreements with the IG. But I think they were relatively minimal, and we're on the same track in terms of evaluating our progress.

REP. MOLLOHAN: You just raised the question of third party errors --

MR. MUELLER: Yes --

REP. MOLLOHAN: -- I'll get to that in a minute. But before I do that, let me ask you a different question.

You placed a lot of emphasis on the fact that the FBI is committed to implementing the recommendations for corrective actions, but most of those actions rely on the FBI itself to actually accomplish them. The inspector general report singles out turnover among middle management as one of the causes of non-compliance, but none of the corrective actions appear to address that problem.

What are you doing to blunt the effect of high middle management turnover on that problem?

MR. MUELLER: Well, I look at those statistics periodically and it depends to a certain extent how you define middle management. But in our SES ranks, the turnover is less than it's been over the last 10 years.

Inevitably, in an organization such as ours, as well as in an organization such as the military, persons move through various stages of their careers and spend maybe two, three years in any particular position as they move up the ranks.

That is a problem, because when persons go through the ranks, there may be an unwillingness to take ownership of problems that you get when you're there, and you don't take ownership of it because you know you're going to leave two or three years down the road.

What we've done to address that is what I talked about before, is to assure compliance, because persons from the compliance office, who are red-teaming and looking at the procedures in place have to assure that the procedures are being adhered to by the current occupant of that particular position.

But it was a weakness. It was a weakness that contributed to the issues we had with national security letters, and I think we've addressed that with the compliance office.

REP. MOLLOHAN: I've two more questions on that point that I'd like you to respond to for the record. And now let me move to your comments on third party errors.

The IG's report gives us the impression that the FBI does not have consistent procedures for handling information that is mistakenly provided under an NSL. And that result is that some agents are compounding third party errors by uploading unauthorized information into FBI systems or sharing that information with other parties.

Do you have a firm, consistent policy now for the disposition of unauthorized collection?

MR. MUELLER: I think definitely that was a problem in the past, and we have changed our policies to address that.

REP. MOLLOHAN: Will you expand on that, for the record, so that we know --

MR. MUELLER: I'd have to get back to you on the details. I know that it is one of the issues that we've addressed by requiring agents to make certain that they review the documents that were provided by the third party carriers and make certain that they're well within the ambit of the NSL and, when that is not the case, to take appropriate action where those materials are outside, say, the time period requested.

And that means not uploading it, not utilizing them, sequestering them until a determination can be made or, in some cases where they become necessary as the investigation goes along, issuing additional NSLs.

REP. MOLLOHAN: It's our understanding that the NSL working group has declined to set limits on the use of retention of NSL-derived information beyond the FBI's preexisting general data policies. First of all, is that correct?

MR. MUELLER: I'm not certain that it has reached a definitive decision on that. I know the IG is concerned about the work that he perceives has not been done by the group to fully address this issue. And I'm not certain of where the group is, at this juncture, in terms of addressing that particular issue.

REP. MOLLOHAN: Well, our concern is that this could mean that an individual NSL-derived information can be uploaded into FBI systems and retained for extended periods of time, even if that person is subsequently determined to no longer be of investigative interest.

The IG recommended that the NSL working group reevaluate its recommendations and try to find a better balance. Now, will the FBI, as a working group member, commit to reexamining this issue and forming a more measured data use and retention policy?

MR. MUELLER: Yes. I've indicated to the IG we will, absolutely.

REP. MOLLOHAN: And what do you think the time frame will be on that?

MR. MUELLER: I'm really uncertain on that. I'd have to get back to you with that, sir.

REP. MOLLOHAN: Okay. With respect to harsh interrogation techniques, it's my understanding that the FBI is due some credit on this issue and that the FBI has on occasion refused to allow its agents to engage in harsh or enhanced interrogation techniques and that the FBI has even pulled its agents out of joint interrogations with the CIA when the FBI personnel witnessed methods that violated the Bureau's internal policies. Is that an accurate statement?

MR. MUELLER: Yes.

REP. MOLLOHAN: Would you state for the benefit of the Committee why you think it's good policy for the FBI to not engage in or even witness the types of harsh interrogation techniques that are suggested?

MR. MUELLER: Our long-standing policy prohibits the use of coercive -- any coercive techniques. And over the years, we have come to believe that that policy is appropriate and sufficient to our mission, understanding that our mission traditionally and, in most cases, has been applicable to the work that we do within the United States, or with a view towards the information only being used in a courtroom.

But we believe that one needs to develop a rapport with the individual being interviewed, and that is -- has been the method we have used. We have prohibited the use of coercive methods, and we believe that that is sufficient and appropriate to our mission.

REP. MOLLOHAN: Well, I appreciate that, and I commend you for that response.

Let me -- I'll submit a couple of questions to you for the record at this point, on another subject. And then let me turn to our friend FISA.

How common is it for an information provider to give the FBI more information than is requested when executing the FISA order?

MR. MUELLER: Well, in execution of a FISA order, I think it is uncommon. I would have to go back and ask that particular question, but I think it's very uncommon, because there is a court order that general counsel usually has, that the company has the responsibility of providing the information within the ambit of that court order.

I will say, contrasting that to national security letters, that it was relatively common. And I say relatively, in terms of the errors that were looked at in the national security letter issue.

It was relatively common that the errors would be third-party errors because their accounting, or their internal bill-keeping systems, would enable them very easily to respond to a request for telephone calls on a particular number, for a particular time period, and that time period may well not have matched up with the time period requested in the subpoena; and it was easy for the third-party carrier to just give us everything.

I would say it's far, far less of a problem when it comes to responsiveness to a FISA order, but I'd have to get back to you on that.

REP. MOLLOHAN: Did anyone notify the holders of the accounts in question that they'd been inadvertently collected?

MR. MUELLER: No.

REP. MOLLOHAN: Why?

MR. MUELLER: In part, because it would disclose on-going investigations.

REP. MOLLOHAN: Well, I've got two more questions for you on this point -- on that subject as well.

I mean, the reason we raise it is that the New York Times article last month reported that in the course of a FISA surveillance operation that the FBI inadvertently received access to the e-mail messages of an entire computer network, instead of the single e-mail address that was approved through the FISA court. It seems to me that when something like that occurs, it raises interesting questions about what a target ought to be told.

MR. MUELLER: I understand your concern in that regard.

REP. MOLLOHAN: Unpaid bills: For the record, how many FBI wiretaps do you believe were dropped due to nonpayment of bills?

MR. MUELLER: I don't think there were any wiretaps that -- well, I take that back. I think, if I recall correctly -- and I'd have to go recheck the report, but I think the IG identified five instances where that may have occurred.

I believe we investigated them, and we found two instances where, in 2002, that occurred, but that in neither case did -- was the investigation adversely affected as a result of that. I also say that I believe there was something like 16 recommendations from the inspector general, and we have resolved -- at this juncture, I think, closed one or more, or otherwise resolved all 16 of those recommendations.

REP. MOLLOHAN: Okay.

On the question of terrorist watchlist reporting: The Justice IG, as I understand it, has released a new report. And in that report, he found that the FBI was not always providing updated nominations when new information became known about an individual, including information that should have resulted in the individual being removed from the watchlist.

When will you finally have all the necessary procedures in place to ensure that people who are mistakenly watchlisted will promptly be removed from the list?

MR. MUELLER: Well, I believe there was some delay in getting information on that, and my belief is that we have addressed that at this juncture. And I'd have to get back to you with more specifics on that one.

REP. MOLLOHAN: One more question on that. Again, as I understand it, the OIG review was done in concert with reviews by other IGs in agencies that also participate in the terrorist watchlisting process. Can you tell us anything about the findings of those other reports? Do they indicate any additional problems with information-sharing between the FBI and other watchlist process -- participation?

MR. MUELLER: I do believe the report itself did mention the experiences of other agencies. I did not focus on that. I do think that the procedures that we have in place, for the most part, were valid and appropriate. But, as you pointed out, and as the IG pointed out, there was a delay in getting information -- if I recall correctly, that should have been updating the particular record of individuals. And my belief is we've addressed that.

REP. MOLLOHAN: Let's move to the question of mistaken identities.

In the recent years, the FBI mistakenly linked an Oregon lawyer's fingerprints to a terrorist bombing in Spain; wrongly suspected the security guard who found the bomb in the Atlanta Olympic bombing; wrongly arrested several men for the Yosemite murders; and shot at a 20-year-old Baltimore man when he was mistaken for a bank robber.

Why do these mistaken identity cases persist? What's the FBI -- (audio break) --

MR. MUELLER: (In progress after audio break) -- it has been a different set of circumstances.

The shooting in Baltimore was an agent, in a very fluid situation, who believed that the individual that he was pursuing was, indeed, a criminal. And that was a mistake in a very fluid situation. It was wrong, but it was a very fluid situation.

The circumstance of the fingerprints with -- out in Oregon, was a completely different type of mistake, where the individual had fingerprints that were very close to fingerprints found on a package at one of the Madrid stations. And our examiner did not do the type of thorough evaluation that should have been done. We brought in, in that particular case, an outside panel of experts to see what happened, why it went wrong in this particular place and put in procedures to assure it would not happen again.

So, each of these -- each of these cases of mistaken identity, we have looked at and put into place procedures to assure they would not happen again, to the extent that we can give that assurance.

REP. MOLLOHAN: Let me digress for a moment to explain to you why that personally gets under my skin when I see information come out to the general public implying that somebody has been involved in a crime, and then we found out afterwards that it was false information. And this story's going to take a little time.

But, when I was in the Wisconsin legislature, I was subpoenaed to appear before a grand jury to testify about what I knew about the conduct of the Republican floor leader in the assembly. And I had been told by the attorney general that no one would know that I was coming to that grand jury until I actually appeared.

One hour after I'd been given that assurance, my name was all over the radio in Wisconsin in -- with the AP reporting that I was to be called before the grand jury. No indication that I was not a target, no indication that I was being called to testify about what someone of the opposite party had done, about which I knew nothing. And yet I could assure you that within 24 hours, there were a hell of a lot of people in the entire state of Wisconsin who thought I had been guilty of something or I wouldn't be called before a grand jury. And it took about four months before the information became public enough that people had their impression corrected.

Now that's just a minor little example of what happens to someone called as a witness in a case. And you can imagine the turmoil when people's lives are literally ruined. There will always be people who thought -- who think that the parties in the Atlanta case or in the other fingerprinting case in Spain -- there will always be people who think that that person was guilty. And so it seems to me that the government has a special obligation to be damn careful before they ruin somebody's life through mistaken information or carelessness.

And I really want to know what the agency is doing to make certain that that simply does not happen again and that you have adequate, tight guidelines to make sure that some loudmouth doesn't accidentally loose the that information on the American people?

MR. MUELLER: I agree with your view of the issue and the problem. You know, whenever that occurs, we conduct an investigation, I take what action is necessary to address what I would consider that misconduct.

I will tell you also that I think we do have a -- an obligation to put out the information as to the innocence of a particular person. I will tell you when I was chair -- the head of the Criminal Division in the Department of Justice, if that did happen, in happens in this town. I mean, there are a lot of people that talk, unfortunately. Now if that happened, you lawyer could send a letter in saying, "Is my target either a subject or a target of an investigation?" And we'd be very quick to send a letter back saying, "No," and to give -- so that the person could say, "Look, I was called into the grand jury, but I am neither a subject or a target of the investigation and have the word of the Justice Department that that's the case."

So I share your concern about those issues. I wish it did not happen. I also can tell you it's unfortunate that we do make mistakes in our investigations, and investigations are not always clean. And the -- and what we hope to do is do as thorough and efficient investigation as we can early on to determine the persons who deservedly will face some form of process and to assure that others who may have been under the shadow of that investigation are outside that shadow.

REP. MOLLOHAN: Okay.

I raised this with you yesterday on your budget -- the FBI in your new budget request is requesting funding for 41 different initiatives, some as small as $1 million. As I told you yesterday it seemed to us that it is quote a scattershot approach and especially when the increases for your agency are essentially being financed by cutbacks in the -- state and local law enforcement. We're looking for an indication that the agency's budget request is in fact disciplined. I know you'd like to respond to that and give your view, so why don't you go ahead?

MR. MUELLER: Well, each of the budget requests can -- ours -- either fits into a category that is essential to our growth as an organization as we augment our law enforcement capabilities with intelligence capabilities. You will find that it either fits in Domain and Operations. In other words, it can be we're requesting additional people for weapons of mass destruction, confidential human source validation, the field investigations -- all within the category of Domain and Operations. There are a number of areas under surveillance, whether it be technical surveillance, in which we have to keep up with technology or physical surveillance, where we have to augment our capabilities in the physical surveillance arena.

Infrastructure: We have to build -- one of the things that we recognize is we have to build the capability in our offices to handle -- as we become more a part of the intelligence community in Washington, we have to have the capability of handling top secret in all of our offices, which means building the capabilities in our offices. Technology: DNA was mentioned today. We're requesting $47 million to address the backlog in DNA. I talked about partnerships. The fusion centers -- our counterterrorism operations, which include the Joint Terrorism Task Forces, are exactly the vehicles that I think we -- can maximize not only our effectiveness, but the effectiveness of state and local law enforcement where the crimes they see in their communities transcend the borders of those communities, and the Bureau has the jurisdiction to conduct the investigation with them throughout the United States or internationally.

And lastly, in the work force. The key to our growth is developing, the recruiting, the hiring, the training, the clear development in each of our specialized areas whether it be cyberintelligence, source development in each of these areas. And that required -- requires the growth of the infrastructure to do it. In the past, we've done a very good job with new agents -- our new agents training at Quantico is probably second to none. We do a very good job in the National Academy, where we bring in every quarter 250 to 300 state and local law enforcement.

But we have not built up the capacity to train beyond that -- train to the career paths for agents who are analysts -- provide the type of training we need for our intelligence cadre. And those are the areas that we put forth in our budget. While we have itemized them and they -- and some of them are fairly small, they all are -- fit into our strategic management system outline of where -- what we need to make the Bureau a flexible, adaptable organization for the threats of the future.

REP. MOLLOHAN: Before I ask any of my last questions, let me ask if either of you have any other questions.

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REP. MOLLOHAN: Okay. Thank you. Thank you for your time. We are out of time, but we'll be submitting a number of questions for the record.

Thanks.

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