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Hearing of the House Judiciary Committee - Oversight of the Federal Bureau of Investigation

Chaired By: Rep. John Conyers Jr. (D-MI)

Witness: Robert S. Mueller III, Director, Federal Bureau of Investigation

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REP. CONYERS: This is the regular oversight hearing on the Federal Bureau of Investigation.

And we welcome FBI Director Bob Mueller to today's hearing.

The FBI is the anchor of the nation's federal law enforcement. The bureau has responsibilities, as we recall, to include the ability to combat crime, conduct surveillance, initiate investigations, and to effectively perform its responsibility, it requires an internal strength inside its own operations.

And I'd like to just point out that the recent inspector general's report regarding the FBI's disciplinary system raised questions about the process within the bureau.

We're hoping that FBI personnel who engaged in the improper use of exigent letters, once the IG's upcoming report is released, we -- when we find out what actually happened we will expect a proper follow-through.

And we want to ensure that the FBI has the resources to combat the problems that have arisen out of the global financial crisis, which started in the United States with the subprime mortgage meltdown.

And we want to make sure that FBI has the resources to investigate questionable activities. We know that there was mismanagement, more than likely fraud, white-collar crimes, perhaps even RICO issues that have contributed to this very serious economic problem now facing the country.

I'll put the rest of my statement in the record and turn to Lamar Smith, the ranking member of the committee, from Texas.

REP. LAMAR SMITH (R-TX): Thank you, Mr. Chairman.

Mr. Chairman, following the terrorist attacks of 9/11 the mission of the bureau changed dramatically from that of a traditional law enforcement agency to an agency tasked with investigating terrorism and national security threats.

The bureau has undertaken significant efforts to conform to its new mission, to revise its investigative techniques, retrain its agents and more effectively analyze and respond to intelligence information.

America is safer today because the men and women of the bureau and other agencies work tirelessly to protect us.

At the end of this year the remaining temporary provisions of the USA Patriot Act are set to expire. These provisions, which include roving wiretap and FISA business records authority, are essential to the bureau's ability to prevent acts of terrorism and respond to other threats to our national security.

To ensure that there is no lapse in these vital authorities, I have introduced legislation to extend the expiring provisions for 10 years.

The threat to America from terrorists, spies and enemy nations will not sunset at the end of this year and neither should America's anti-terrorism laws.

Despite the bureau's efforts to keep America safe from terrorists, I'm concerned that the new administration's decision to close Guantanamo Bay may result in some of the most dangerous terrorists being transferred to the U.S. or released into America's communities.

To me, bringing terrorists to the U.S. undermines the bureau's efforts to prevent another terrorist attack. No good purpose is served by allowing known terrorists who trained at terrorist training camps to come to the U.S. to live among us.

Guantanamo Bay was never meant to be another Ellis Island. Terrorists were detained there for a reason: to keep Americans safe.

I understand that the bureau is part of the Gitmo detainee review process established by President Obama. I hope that the bureau will express its concerns to the administration about the threat these terrorists pose to Americans here at home.

While the bureau pursues its national security efforts, I know it will continue its law enforcement mission, including the investigation of widespread fraud associated with America's financial crisis.

Many factors contributed to this collapse, including predatory lending by corrupt lenders, mortgage fraud and even foreclosure fraud.

Another important focus of the bureau is preventing crimes against children, particularly Internet-based crimes involving child pornography or child exploitation. Often the only mechanism for identifying an operator or user of a child pornography website is their Internet protocol address.

Currently, a law enforcement officer can request subscriber information from an Internet service provider. However, ISPs regularly purge these records making it difficult, if not impossible, for law enforcement officials to apprehend the distributors and consumers of child pornography on the Internet.

I have sponsored bipartisan legislation, the Internet Safety Act, to require ISPs to retain these records for up to two years. I am interested in knowing what are Director Mueller's thoughts on the need for record retention to investigate child pornography and other Internet-based crimes, and I'll be asking a question about that in a minute.

Again, Mr. Chairman, I thank Director Mueller for joining us today. I look forward to hearing from him. I yield back the balance of my time.

REP. CONYERS: Thank you. All other members who have statements will be included in the record at this point.

We welcome again, Robert Mueller III, director of the FBI since September 4, 2001, from Princeton, Virginia Law School, the Marines where he received combat medals, assistant United States attorney in San Francisco and Boston and Washington, D.C. He served with distinction in two law firms and a callback from San Francisco to Washington in early 2001 to become acting deputy general until he served as the director.

We welcome you again to our humble committee room and urge -- your statement is in the record and we urge you to make your comments as you would like us to hear them. Welcome again. Good morning.

MR. MUELLER: Thank you, Chairman Conyers, Ranking Member Smith and other members of the committee.

As, Chairman Conyers, you have pointed out and, Congressman Smith, we in the FBI have undergone unprecedented transformation in recent years, from developing the intelligence capabilities necessary to address emerging terrorist and criminal threats, to creating the administrative and technological structure necessary to meet our mission as a national security service.

Today the FBI is a stronger organization combining better intelligence capabilities with a long-standing commitment to protect the American people from criminal threats. And we are also ever mindful that our mission is not just to safeguard American lives but also to safeguard American liberties.

Certainly, the threats currently present in the national security arena continue to be of grave concern. Terrorism remains our top priority, and as was illustrated by the Mumbai attacks, we cannot become complacent. Al Qaeda, lesser known groups and homegrown terrorists will continue to pose a threat to the United States. And we in the FBI must also continue to guard our country's most sensitive secrets from hostile intelligence services and remember that our nation's cyber infrastructure is vulnerable to compromise or disruption, be it from a terrorist, a spy or an international criminal enterprise.

But these three are by no means our priorities. While Americans justifiably worry about terrorism, it is crime in their communities that often most directly impacts their daily lives. Public corruption continues to be a top criminal priority. The FBI has 2,500 pending public corruption investigations and in the last two years alone has convicted more than 1,600 federal, state and local officials. And we remain committed to ensuring that those given the public trust do not abuse it.

As was pointed out, economic crime is of course a critical concern now more than ever. For example, the FBI's mortgage fraud caseload is nearly tripled in the past three years from over 800 to over 2,400 active investigations. The FBI currently has more than 580 pending corporate fraud investigations, including cases directly related to the current financial crisis. In response we have been shifting personnel within the organization to the extent possible, we have been using new analytical techniques to better identify trends and violators, and we have been building upon existing partnerships to further leverage expertise and resources.

For example, we created the National Mortgage Fraud Team at FBI headquarters to prioritize pending investigations, provide additional tools to identify the most egregious violators and provide strategic information to evaluate where additional manpower is needed. We also have established 18 mortgage fraud task forces and 50 working groups with other government agencies across the country so that we may more effectively focus on these problem areas.

While the FBI is surging resources to mortgage fraud, public corruption investigations, our expectation is that economic crimes will continue to skyrocket. The unprecedented level of financial resources committed by the federal government to combat the economic downturn will lead to an inevitable increase in economic crime and public corruption cases.

Historically, the bureau has handled emerging criminal threats by transferring personnel within its criminal branch to meet the new threat. Since September 11th we have lost some of this elasticity. In response to the September 11th attacks, the FBI permanently moved approximately 2,000 of its criminal agents to our national security branch. This transfer has substantially improved our counterterrorism program and we have no intention of retreating from preventing another terrorist attack on American soil as our number one priority.

But the logical consequence of cannibalizing our criminal resources to augment our national security efforts is that we have reduced the ability to surge resources within our criminal branch. Although we have begun an effort to rebuild our criminal resources back to our pre-9/11 levels, we still have a substantial way to go. As always, the FBI will set priorities to attack the most severe threats, but a note of realism is in order in light of the scale of the FBI's existing mission after September 11th and the degree of strain on our current resources.

Violent crime -- let me discuss this for a moment because it, quite obviously, is a very serious concern. And although data indicates violent crime continues to decline across the country in general, the citizens of many communities -- especially small to midsize cities -- continue to be plagued by gang violence and gun crime.

Since 2001 our gang cases have doubled and the spread of international gangs such as MS-13 has increased. The FBI continues to combat this threat through more than 200 Safe Streets, gang violent crime and major theft task forces across the country. These task forces enable us to work effectively with state, local, tribal and international partners to provide an immediate response to surges in violent crime, and so too must we continue our work with state and local counterparts to combat crimes against children, the most vulnerable members of our communities.

While the FBI is committed to combating child sexual exploitation, be it child pornography via the Internet, trafficking in child prostitution or abuse on federal lands or Indian country, more must be done. I thank the committee for its support of increased resources to the bureau in this area and would be happy to continue working with you to ensure our nation's children are protected.

We are also deeply concerned about the high levels of violence along the Southwest border. Gang activity, drug cartel competition for supremacy, murders and kidnappings plague the border in both the United States and Mexico. The impact of these crimes can even extend well beyond the border into America's communities. We will continue our strong alliance with our Mexican and domestic law enforcement partners to address border-related crime, especially as it relates to public corruption, gangs and intelligence analysis.

Finally, we will continue our efforts to combat health care fraud, mindful of estimates that more than $60 billion of our nation's health care spending each year is lost to fraud. In 2008 FBI investigations led to nearly 700 convictions of health care-related crime and we will continue partnerships with the national health care organizations and other federal agencies to address these cases as we are able.

I also want to spend just a moment to update you on key changes we have made within the FBI, both in our structure and in the way we do business to more effectively meet the challenges presented since September 11th.

We know that the FBI's best and strongest asset is our people and so we have paid attention to recruiting, training and maintaining a work force with the skills necessary to meet the challenges of today's mission. Our hiring goals include agents, intelligence analysts, IT specialists, linguists and professional staff, and this year we have received more than 450,000 applications and have already extended 5,500 job offers.

Finally, a few words regarding improvements in the FBI's technology: Sentinel, our Web-based case management system, is on time and on target. The bureau currently has more than 30,000 workstations in the FBI unclassified network providing desktop Internet connectivity to employees throughout the enterprise. BlackBerrys with Internet capabilities have been issued to 24,000 of our employees, and we are strengthening other information technology programs to help us operate more efficiently.

In closing, I would like to thank this committee for your support to the men and the women of the FBI and I look forward to working with the committee on these and other challenges facing our country.

Mr. Chairman, Representative Smith, members of the committee, I appreciate the opportunity to be here today and look forward to answering your questions.

Thank you, sir.

REP. CONYERS: Thanks for your opening statement.

Could I ask Lamar Smith to begin the questioning today?

REP. SMITH: Thank you, Mr. Chairman.

And Director Mueller, thank you for being here today.

My first question is this: In general, what concerns do you have about releasing individuals suspected of terrorism into our communities? What dangers could they pose?

MR. MUELLER: Well, I'm quite aware of the discussions that are ongoing in the Department of Justice and elsewhere in the administration as to what should be done with the detainees in Guantanamo. I can speak generally without getting into those discussions that the concerns we have about individuals who may support terrorism being in the United States run from concerns about providing financing to terrorists, radicalizing others with regard to extreme -- violent extremism, the potential for individuals undertaking attacks on the United States. All of those are concerns relevant an individual comes into the United States from whatever source who may present a challenge.

REP. SMITH: Okay, thank you. Recently you said that you support reauthorization of the three expiring provisions of the Patriot Act. Do you foresee the need to make any changes in those three expiring provisions?

MR. MUELLER: No, I previously when questioned testified that the three provisions, the first one, the business records provision, has been exceptionally useful for us over the period of time that it's been on the record books and we've used it over 230 times.

A second provision that is sunsetting relates to roving wiretaps. We've used that over 140 times. It has been exceptionally useful and cut down on not only paper but also enabled us to better facilitate our investigations.

And lastly, the lone wolf provision, while we have not used it with regard to an indictment, it has -- it continues to be available for that individual whom we -- we lack evidence to put with a particular terrorist group but does present a threat as an international terrorist.

Each of those three provisions are important to us, and while I don't believe the Department of Justice has yet weighed in with its letter, this is what I've testified to in the past and is my current opinion.

REP. SMITH: And you don't foresee the need to make any changes in any of those provisions?

MR. MUELLER: Not at this juncture, no, sir.

REP. SMITH: Okay. Do you see the need to make any changes in the standards for issuing national security letters?

MR. MUELLER: No, I do not. I know in the past I've had discussion with Congressman Nadler in terms of the standard for the issuance of national security letters, and as I've said before and believe to this day that national security letters that enable us to obtain information on the fact of a call as opposed to the content of a call is absolutely essential in order to building the probable cause we need for a warrant from the Foreign Intelligence Surveillance Act and we would be badly hampered if we did not have that tool available to us with the current standard.

REP. SMITH: Thank you for that answer.

Last question is this, and this goes to -- and you covered it a little bit in your opening statement the need to better prosecute and reduce the prevalence of Internet child pornography.

I've introduced a bill, bipartisan bill, that requires the Internet service providers to retain their records for two years to allow the law enforcement authorities to be able to go after the individuals who ply their trade. Would you support that two-year retention of those records by the ISPs?

MR. MUELLER: Well, let me put, I'd be guided by, being in the Department of Justice, by the -- guided by the position taken by the attorney general of the Department of Justice.

On the other hand, I can say that in any investigation, particularly when it comes to child pornography or even terrorism, where you may identify an individual who is utilizing the Internet, either for child pornography or either recruiting or operating a terrorist -- recruiting or operating over the Internet, it's not just that which you pick up on the first day of the investigation that is essential, not only to the investigation but successful prosecution, but those records, historical records that may be available that enable you to further both further the investigation and undertake the prosecution.

REP. SMITH: So longer record retention would be helpful?


REP. SMITH: Isn't the international standard two years for record retention or don't many countries use that two-year period?

MR. MUELLER: I haven't looked at it in a while but I believe the last time I looked at it it was up to two years. I think the European Union has adopted a standard of up to two years.

REP. SMITH: Two years. Okay. Thank you, Director Mueller.

Thank you, Mr. Chairman.

REP. CONYERS: The chairman of the Constitution Committee, Jerry Nadler.


Mr. Director, I heard your answer to Mr. Smith's question a moment ago about the Guantanamo detainees being released into the United States, but you were referring to terrorists released to be free in the United States, obviously, from the context of your questions.

My question is, assuming that people at Guantanamo are released into super maximum security prisons in the United States, is there any problem holding them there?

MR. MUELLER: Well, I hesitate to get into the specifics. It depends where the person is held, what kind of security proceedings there are --

REP. NADLER: I didn't ask that. I said, do we have the capacity to hold dangerous people in our maximum security prisons?


REP. NADLER: Does their presence in our maximum security prisons present any danger to the United States?

MR. MUELLER: Again, it depends on the circumstance. If it's a national security, if it's Florence or something, I think it would be very difficult for the person to come -- get out and very difficult for the person to undertake any activity.

However, I will caveat by saying in gang activity around the country, using it as an analogy, there are individuals in our prisons today, as I think you and others are familiar, who operate their gangs from withinside (sic) the walls of prison.

So while there may not be the opportunity to escape, there may still be the risk, as we see --

REP. NADLER: We have a very --

MR. MUELLER: -- operating.

REP. NADLER: We have a number of al Qaeda prisoners convicted in things like Ramzi Yousef and the sheikh -- what's his name from the 1990s and planned to blow up the World Trade Center, planned to blow up the Holland Tunnel and so forth.

We have those people in our prisons today, do we not?


REP. NADLER: Have they presented any particular danger to us?

MR. MUELLER: If you're talking about physical danger in terms of being able to escape and undertake an attack, no.

REP. NADLER: Thank you.

Let me turn to the subject of national security letters. Two years ago, the IG for the Department of Justice issued her first report on the FBI's use of NSLs from 2002 to 2005. They made -- the IG made 11 recommendations for improvements. In the second report last year the IG found that a number of actions have not yet been taken to implement their recommendations.

What is the current status of the FBI's implementation of the recommendations from the IG's March 2007 report? Have they all been fully implemented?

MR. MUELLER: I'd have to check on each one of those. I know we have pursued every one of them. There may be one or two in which we have a disagreement with, but I'd have to get you the report card on each of those recommendations.

Certainly, as soon as we have received those reports we have started implementing those recommendations, and in many cases, to the extent that we have information about a procedure that needs to be upgraded or changed, we would make the changes in anticipation of the report and the recommendations.

REP. NADLER: Thank you. Now, as you know, there have been reports that -- well, actually these were responses to questions posed to the FBI by the -- to questions posed to the FBI general counsel, Caproni, in response to her March 2007 appearance before this committee. And in her answer provided in January she says the FBI -- the questions with respect to information collected by NSLs but not relevant or -- or no longer relevant, whether those would be destroyed. And she writes as follows: "The FBI has legitimate investigative reasons for retaining information properly collected during the course of an authorized investigation, even if the data pertains to individuals who are ultimately determined not relevant to that investigation." The answer concludes, "The FBI does not support a policy that requires the destruction of data merely because upon initial analysis the person to whom it relates appears irrelevant to national security concerns," close quote.

Is the FBI saying by this answer that all NSL-collected information is kept indefinitely, even when the subject is not relevant to an FBI law enforcement purpose?

MR. MUELLER: I think you have to put it in the context of a records retention policy for all investigations, whether it be a grand jury subpoena, whether it be records retained as the result of an NSL. And the records retention policy gives us guidelines in terms of how we maintain those records, even though records may be obtained in the course of an investigation which proved to be irrelevant to the solution. It can occur in a national security investigation. It can occur in a kidnapping investigation, a public corruption investigation, in which we obtain, either by grand jury or administrative subpoena or testimony, records that ultimately are determined to be irrelevant. But we keep that during -- according to our records retention policy.

REP. NADLER: You keep that indefinitely?

MR. MUELLER: You keep -- I think it's 20, 25 years.

REP. NADLER: So you keep for 20, 25 years --

MR. MUELLER: Twenty years, yes.

REP. NADLER: You keep for 20 years information about innocent people, private information that you've collected in the course of investigation of which it turns out they have nothing to do with?

We may well undertake an -- an allegation may come in as to the involvement of a person in a mortgage fraud scheme. We go and investigate and find that that person is innocent. The allegation is false. We keep those records. Yes.

We have a records retention policy which we've had for the hundred years of our existence that in some sense requires us to keep the records.

I can tell you from the perspective of the Freedom of Information Act, in terms of what we have to go through, it -- there are substantial records that have been maintained according to our records retention policy, even though it may relate to persons who ultimately are not indicted, are not convicted of a crime for which they are being investigated.

REP. NADLER: Thank you.

REP. CONYERS: We now turn to our first ex-attorney general, from the state of California, Dan Lungren.

REP. DAN LUNGREN (R-CA): Thank you very much, Mr. Chairman.

Mr. Mueller, a number of years ago I was in Los Angeles for a hearing that was at that time chaired by Jane Harman. It was a meeting of the Homeland Security Committee. And it was specifically to investigate the issue of prison radicalization, at least with respect to California prisons. And we had testimony from people who had had experience in New York. And I believe we may have had testimony from federal officials.

This was a concern with respect to hate groups, with respect to terrorist groups and so forth. Do you share that concern?

MR. MUELLER: Yes, if I can broaden it somewhat.

We recognize that there is a potential for radicalization in a number of ways, whether it be for gang activity, for terrorist groups, for other extremists.

With regard specifically to terrorists in the wake of September 11th, we have now I think it's over 100 joint terrorism task forces around the country. We work -- generally we will have persons on the task force from certainly the federal prison entities but also may well have representing the institutions in a particular state to keep our fingers on the potential for radicalization in prisons.

Also, I mean, having been in San Francisco, I'm familiar with Pelican Bay, for instance, and the concerns that one has in Pelican Bay, not only physically being within Pelican Bay but also the operation of those outside of prison, from --

REP. LUNGREN: That's our highest security prison, and even there we have difficulty ensuring that those inside the prison don't direct actions outside the prison.

MR. MUELLER: And so on the federal side as well as the state and local side there are intelligence efforts to assure that we pick up on individuals who may present threats.

REP. LUNGREN: Does the name Lynne Stewart mean anything to you?


REP. LUNGREN: And Lynne Stewart is?

MR. MUELLER: I believe she was involved with a radical group -- I'm having trouble recalling which one --

REP. LUNGREN: Well, she was a defense attorney representing the "blind sheikh."

MR. MUELLER: Ah, yes.

REP. LUNGREN: And I believe she's been convicted of federal offenses relating to being a conveyor of information from the blind sheikh inside the prison setting to those outside.

Do you -- does that refresh your recollection?

MR. MUELLER: Yes. Yes.

REP. LUNGREN: You don't have to state an opinion on that, but to me that gives reality to the concerns some have about increasing the number of terrorists that we have on our shores, whether they're in prison or out of prison.

I want to give you a hypothetical. If, hypothetically, some who are currently in Guantanamo were to come here to an incarceration facility and then, in accordance with a federal judge's decision that they be released -- would have to be released in this country because the country of origin would not take them -- under those circumstances, would the FBI view those individuals as suspected terrorists or people that you would have to keep an eye on while they were in the United States?

MR. MUELLER: I'm not certain it's a hypothetical, but in the sense that --

REP. LUNGREN: Well, I am because I'm not going to presuppose that a federal judge would do something like that, because we know they have great respect for the executive branch. But under those circumstances --

MR. MUELLER: I think -- I -- generally, to the extent that persons who have some background of either supporting, facilitating or training with terrorists, it would present a concern to which we would utilize -- maximize our efforts to minimize and mitigate that concern, whether it be by surveillances or wires or other efforts, to assure that we have minimized that concern.

REP. LUNGREN: I appreciate that, because I think the American people ought to understand that some people held at Guantanamo Bay are most likely not subject to criminal prosecution. We're not holding them for that purpose. We're holding them because they are combatants in the traditional definition of combatants. And under the rules of war you have the right to hold them until the cessation of hostilities.

However, we've had some federal judges who take a different position. Therefore, you could have the possibility of someone coming to the United States, by access to the federal courts, making the argument that they are not subject to criminal prosecution, a federal judge saying you could not hold them indefinitely and therefore allowing them out and a foreign country not receiving them. And we have limitations as to how long we can keep someone like that incarcerated before they must go out in the public domain.

And so, while I gave you a hypothetical, I think people ought to realize that is a legitimate concern that we in Congress ought to deal with.

And I thank you very much, Mr. Chairman.

And I thank you, Mr. Director, for your time and your service.

REP. CONYERS: Thank you.

Chair of the criminal (sub)committee, Bobby Scott of Virginia.

REP. BOBBY SCOTT (D-VA): Thank you, Mr. Chairman.

And thank you, Mr. Director, for being with us.

You mentioned financial crimes health care, specifically. There are other, of course, financial crimes: ID theft, securities fraud; we've had a lot of Ponzi schemes revealed; organized retail theft, which are essentially financial crimes, and of course the mortgage fraud.

We have testimony that there are only about 250 FBI agents with accounting backgrounds assigned to the mortgage fraud case, whereas approximately a thousand were assigned to the savings and loan debacle a few years ago, which was only one-third the size.

We just recently passed legislation that would give you resources to hire additional agents to address financial fraud. Can you provide us with your capacity needs, in terms of accountants, so that we can address these financial crimes?

ID theft is going on now to a large extent because nobody thinks they're going to get caught. If you do the leg work you can prosecute -- you can investigate and prosecute those cases, but basically they're just -- the credit card company wipes it off, there's nobody complaining and the people continue their fraudulent activities.

Can you give us an idea of your capacity needs to address all of these areas of financial misdeeds?

MR. MUELLER: Yes, I'd be happy to do that.

I will say that we have -- you're accurate in terms of those on mortgage fraud. We have 260 agents; we have another 100-plus agents on corporate fraud and another 150 on securities fraud. But we did have at the height of the savings and loan crisis almost 1,000 agents addressing this. We'd be happy to provide that material.

There was in the stimulus package or it came from the Senate a bill which would have accorded us an additional 165 special agents to address this, but it did not last and is not part of the legislation. But we will be happy to provide you with a recitation of the needs we feel we -- or the numbers we would need in order to fully address the issue.

REP. SCOTT: We have legislation on the way to the president that would authorize additional funding, so hopefully we can address that.

You're familiar with the Federal Prison Industries?


REP. SCOTT: Do you view that as a positive program that helps reduce recidivism?


REP. SCOTT: Thank you.

Backlog in DNA kits -- as you know, particularly in New York City there are thousands of untested DNA samples which means that cases are not being prosecuted and people aren't being caught.

Can you give us an idea of what we need to provide you in terms of resources to eliminate the DNA backlog?

MR. MUELLER: Let me address it to you and also Congressman Schiff, who I know has asked questions in the same area.

And if I recall correctly, last week the question put by Congressman Schiff to the attorney general related to the fact that we got additional monies -- $30 million. We had made an assertion that with that $30 million we would have reduced our backlog from the convicted offender program by I think January 1st or December of this year.

We got the $30 million but we did not get our budget (till ?) March, and so the personnel that is reflected in that $30 million along with the technical equipment we need we now have, and my expectation in reducing the backlog on the convicted -- putting samples into the convicted offender program will be June 1st of next year. It slipped six months because of the -- basically the budget delay.

But we will have I believe by this time next year have, by dint of additional persons but also technological improvements, reduced that backlog.

We do have a caseload backlog. Most of that case log backlog relates to missing persons. And I would be happy to get you additional numbers on that backlog.

When it comes to New York or Los Angeles or other cities where there's a backlog of rape kits, it generally is the police departments utilize either private laboratories, state laboratories or municipal laboratories, and those, unless they are a federal case, we generally do not handle them.

REP. SCOTT: I wanted to get in one more question before time goes out and that is on the issue of torture.

Can you tell us what participation there was by FBI agents in enhanced interrogation techniques that everybody in the world other than a few people in the last administration viewed as torture, what participation there was by FBI agents?

MR. MUELLER: We followed throughout our protocol, which does not include coercion of any kind.

REP. SCOTT: And what does that mean in terms of your participation in what was going on?

MR. MUELLER: We did not participate in the -- except for maybe an isolated incident, relatively minor, one or two, we did not participate in the use of those techniques, enhanced interrogation techniques.

REP. SCOTT: Is that because you concluded that they were illegal?

MR. MUELLER: I would not say that it was because it was illegal. I would say because we felt it was necessary to follow our own protocols. We believe that our protocols work and are effective. And given the work that we do, our protocols were appropriate to the work we were asked to do.

REP. CONYERS: The chair recognizes Howard Coble of North Carolina, a senior member of Judiciary.

REP. HOWARD COBLE (R-NC): Thank you, Mr. Chairman. Mr. Chairman, I had to go to a piracy hearing. I'm sorry I'm late getting here.

Mr. Director, good to have you with us.

Mr. Director, last week the attorney general testified before this committee and I posed a question, as did a couple of my colleagues, regarding the organized retail crime problem.

According to the North Carolina Retail Merchants Association, the FBI, in conjunction with several other law enforcement agencies, successfully apprehended and charged individuals involved in three alleged fencing operations in western North Carolina. I am told that future operations may be severely affected because of resources or lack of resources.

Will the FBI continue to pursue these cases, and are you able to comment on whether the U.S. attorney intends to prosecute the individuals in these three cases?

MR. MUELLER: I'm not in a position to say what the U.S. attorney would do.

In terms of resources, we are -- as I've indicated previously, we have to prioritize and the retail fraud is down on our list of priorities. We try to leverage our capabilities and work closely with state and local law enforcement, and so quite probably, if there is a need in a particular jurisdiction to address a particularized threat, then we would participate and help our state and local law enforcement authorities to address it.

I'm not familiar with those three cases. I'd be happy to get back to you in terms of what happened in those cases and whether or not it's likely that we'll be participating in additional such cases.

REP. COBLE: If you could I would appreciate that --

MR. MUELLER: Yes, sir.

REP. COBLE: -- because you know, it's a problem that just plagues the retail community very severely.

Mr. Director, I'm told that the bureau currently operates 18 regional task forces and 47 working groups to investigate mortgage fraud. Can you update the Judiciary Committee on all the bureau's efforts to combat mortgage fraud specifically, but other types of fraud as well?

MR. MUELLER: As I believe I indicated either in my written remarks or my opening remarks in response to other questions, we have over 2,400 mortgage fraud cases; we have 260 agents that are addressing those; over 580 corporate fraud cases, of which over 40 of those relate to the subprime mortgage industry with 113 agents; and over 1,300 cases of securities fraud with 158 agents.

We have a total of almost 530 agents working in this field. Many of them are accountants. We have -- they are backed up by accounting technicians, intelligence analysts and professional staff.

As you pointed out, we have a number of task forces -- we have 18 -- and then another 47 working groups. We have requested additional resources in the budget submissions and our hope is to improve on that.

I will say over a period of time we've been very successful in our investigations and prosecutions. What we have to do is prioritize and expedite those investigations and prosecutions to have the maximum deterrent effect. We prioritize them. We want to make certain that the most culpable are prosecuted swiftly and quickly and are serving time in jail.

We've reached out to the -- with the anticipation of additional frauds as a result of the TARP program and other programs, we've reached out to the inspector generals to put into place record-keeping systems that will enable us to better investigate. I met with the new director of the Securities Commission, Mary Schapiro, this last week to coordinate better our work with the Securities and Exchange Commission, and my expectation is working together that we will continue our successful investigations and prosecutions. It's a question of resources.

REP. COBLE: Thank you, sir.

Mr. Director, I assume that mortgage fraud is generally regarded as a federal offense, is it not?


REP. COBLE: I thank you, sir. I thank you for your service. Thank you for being with us.

MR. MUELLER: I will say, though, that part of our approach in addressing this is it's not only a federal offense but it often is a state and local offense, and we want to make certain that if for some reason we do not take it on the federal side that state and local law enforcement work closely with us and take it on the state or local side.

REP. COBLE: And I repeat, thank you for your service, for being here.

Thank you, Mr. Chairman. I yield back.

REP. CONYERS: Mel Watt is a senior member of the committee, a chairman of the finance subcommittee, and a past chairman of the Congressional Black Caucus.

REP. MEL WATT (D-NC): Thank you, Mr. Mueller. Thank you for being here.

I want to try to get to three different areas if I can.

First of all, we've had -- is a very practical question that I'll set up like this: We've had a major spike in my district offices of complaints about mail fraud and scams on seniors that essentially involve calls from out-of-state sources saying that they've won some lottery or, you know, "pay me X number of dollars to go and find this big bucket of money for you." And local law enforcement can't handle that because it's -- nor can state law enforcement handle it because the calls are coming from out of state.

I was on the phone recently with some gentleman in San Francisco professing to be a customs officer with the Federal Reserve, is what he represented to me. As a member of the Financial Services Committee, I immediately contacted the Federal Reserve to find out whether this person existed. He didn't exist. He was representing in fact to my mother that she had won some big pot of money.

My practical question is, under those circumstances what's the best way for me to get you all engaged when we have a specific complaint in our district offices?

MR. MUELLER: It's your local FBI office. Just pass it on to the local FBI office. There is a complaints agent who is there during the day who will take your complaint and follow up.

What you find is -- what we find in these scams -- and there are a number of them out there and it's not just a customs officer from the Federal Reserve; they use the FBI and they use me amongst others -- and what we try to do is accumulate them, identify the persons responsible and then pursue them federally, if at all possible.

REP. WATTS: Well, I got a name and phone number for you and I will get it to my local -- but I'm telling you that because of the allocation of resources that you just discussed with Representative Scott, Representative Coble, the reallocation of resources to terrorism, anti-terrorism, which is important, a lot of these things just are not getting priority. But they're on the increase, so I hope that you all are going to aggressively seek more agents to do domestic kinds of situations.

I'm not suggesting that we can pull back on our efforts to protect our citizens from the homeland security and terrorism concerns that are going on around the world or in the United States, for that matter, but these things are real to people every day and particularly seniors are vulnerable to those kind of entreats. And if you don't pursue them, they just proliferate and get bigger and bigger and some big case needs to put some of these people in jail so that there will be a deterrent effect.

Let me go on to the second issue, which is -- I wasn't going to ask about this, but Jerry Nadler asked you about record retention policies and it sounded to me like you are following a 100-year-old record retention policy that may or may not be justified. How aggressively have you as the FBI director looked at the rationale of this 100-year-old policy that you're following and evaluated whether it makes sense to keep records on people for 25 years who are not engaged in anything? That increases the demands that you have to meet under the Freedom of Information Act. If you don't have the files or if you've gotten rid of them, no record is there to be providing.

How aggressively have you looked at this policy and re-evaluated it?

MR. MUELLER: I confess I have not looked at it hard.

I'm not certain it's 100 years old; it's certainly many years old.

REP. WATTS: Well, that's what you testified. (Laughter.) That was your testimony; it wasn't my testimony. (Laughs.)

MR. MUELLER: I know. I'm walking back from maybe 100 years. (Laughs.)

It's been there, I believe, on the books for a long time and it may well be -- and I'd have to look at it -- a combination of the rules for records retention that have been set by the government and the archives as well as our own internal rules. But I will go back and look at it and we'll get back to you on that particular issue.

REP. WATTS: Thank you.

I wanted to ask about some discrimination issues, but my time is expired and I want you all to take care of my mother, first of all -- (laughter) -- so I'll talk to your local people about that.

MR. MUELLER: Well, you can give us the number, but your mother --

REP. WATTS: That's my number one constituent.

MR. MUELLER: We'll talk to the local person.

REP. WATTS: I don't get but one of those. Thank you.

Thank you, Mr. Secretary (sic).

REP. CONYERS: The chair recognizes Darrell Issa, who is in addition to Judiciary Committee the number two man on the Government Reform Committee as well as an active participant on the Intelligence Committee.

REP. DARRELL ISSA (R-CA): Thank you, Mr. Chairman. You can revise and extend if you'd like. I think I'll quit while I'm ahead there.

Director Mueller, I've got a couple of questions, some of which go to your predecessor, some are yours, but the FBI is present at Gitmo, correct?


REP. ISSA: And has been the entire time?

MR. MUELLER: We have had agents rotating through, yes, for almost the entire time.

REP. ISSA: And the FBI has a presence virtually every place we have an embassy in the world, correct?

MR. MUELLER: We have over 60 legal attache offices around the world.

REP. ISSA: Okay. Well, maybe not virtually but all the places I tend to go to.

The administration made a determination to do this enhanced interrogation technique, or as now is commonly -- one of the techniques being waterboarding. When were you first made aware of it, and when was the FBI first made aware of it overall?

MR. MUELLER: I believe I first became aware of the use of enhanced interrogation techniques sometime in the summer of 2002 with an agent who was involved in an interrogation overseas who indicated that additional techniques beyond what we traditionally do would be used. We determined that it was not appropriate for him to continue in the conduct of that particular interrogation.

REP. ISSA: Was that agent in 2002 -- or at the time, but, you know, you became aware of it in 2002 -- was he present for that interrogation that included waterboarding or other enhanced interrogation --

MR. MUELLER: And I do not believe that I became aware of waterboarding as such until several years later. And I don't believe -- well, I can't say, really, what that agent knew. But certainly that was not the -- those were not the enhanced techniques that we at that time anticipated were going to be used and triggered the withdrawal of him from that particular interrogation.

REP. ISSA: Okay. Earlier you mentioned that once or twice -- was that one of the once or twice that your organization was involved in techniques that would qualify as enhanced interrogation?


REP. ISSA: What were the once or twice?

MR. MUELLER: Can you excuse me just one second?

REP. ISSA: Certainly

MR. MUELLER: (Pause.) The inspector general did a report. And what I'm trying to do is recall from the inspector general's report a couple of instances where he said that -- I think a prisoner's hands were handcuffed behind them. And he was given water -- it was treatment that is not the treatment that we ordinarily would use, but is certainly not in the category of the enhanced interrogation techniques that we've been talking about.

I just wanted to be clear that the IG in his report pointed out two instances where we could have done a better job.

REP. ISSA: Okay. Do you -- has the FBI ever given people large amounts of water and then told them to wait to go to the bathroom, that, you know, it wasn't available right now?

MR. MUELLER: Not to my knowledge.

REP. ISSA: Left lights on deliberately to deny people sleep or rest?

MR. MUELLER: I have -- I can't say for sure, but I have no knowledge of such treatment. That would go against our protocol.

REP. ISSA: Okay. So each and every one of those techniques that has now become public for enhanced interrogation would be inconsistent with what the FBI would ever allow to be done?


REP. ISSA: Okay. The next one is a little more serious.

The speaker of the House has alleged that the CIA outright lied to her. Is lying to Congress a crime?


REP. ISSA: Are you investigating that allegation by the speaker of the House?


REP. ISSA: Why not?

MR. MUELLER: The process is -- that is followed generally is that we have a referral -- not we, the Justice Department obtains a referral from Congress, Justice Department makes a determination as to whether or not the referral warrants further investigation, and then we are called upon to conduct that investigation.

REP. ISSA: I'm a member of Congress. If CIA is lying to any of us, and I've been briefed many times by them on the Intelligence Committee, it puts me in a position of not being able to do my job properly. Would you say I have standing to ask you to investigate whether the CIA has lied to any or all of us?

MR. MUELLER: I'm not familiar with the intricacies of the referral process that has been established in such circumstances. I know that generally it's triggered by a referral from Congress to the Justice Department, and then we do the -- may well be -- other can be asked. But generally we're asked to do the investigation.

REP. ISSA: Well, then with my remaining time I would assert that I believe that I should have standing, that I am in doubt as to whether or not, unresolved, I can believe in the briefings I'm receiving from the IC community, and would ask you to investigate it and ask you to respond as to whether you believe that my standing and my asking you to do it represents a proper referral or one that at least you can follow up on.

MR. MUELLER: We'll take what you have indicated, sir, and pass it to the Department of Justice and then follow the directives of the department.

REP. ISSA: I'll look forward to your response. Thank you.

MR. MUELLER: Thank you, sir.

REP. ISSA: Thank you, Mr. Chairman.

REP. CONYERS: Chair of the Committee on Immigration, from California, Zoe Lofgren.

REP. ZOE LOFGREN (D-CA): Thank you, Mr. Chairman.

It's good to see you, Director Mueller. And thank you for your testimony today.

It's good news that you have continued your march forward with technology, but the march forward with technology also raises questions. And I wanted to briefly touch on the investigative data, warehouse/data mining issue that the -- both the IG and the Electronic Frontier Foundation have recently discussed.

It's my understating that there are just shy of a billion individually identifiable pieces of information in the data warehouse, which, by way of comparison, I think the Library of Congress has about 138 million pieces in its collection. So it's a massive amount of data.

And I -- there may have been litigation on this. You can tell me if that's correct. But I believed that the FBI would be required to publish a systems of record notice and a privacy impact assessment related to this data warehouse and that that has not been done.

Can you tell me anything about the privacy notices and whether those are planned? Or if they haven't been planned, why not?

MR. MUELLER: Well, we try to be very careful, in terms of -- whenever we put a new system online or contemplate it, assuring that we go through all the steps with notification.

The -- if you're talking about the Investigative Data Warehouse, it is --


MR. MUELLER: -- it is a compendium of our case files, which is the -- has grown up since September 11th in a different format and a different -- different servers, with different software and different type of relational databases that enables us to search it better than the old ACS.

I will have to check in terms of privacy notices on the data -- Investigative Data Warehouse. It is -- it has been online for a number of years, but it is our case file system.

REP. LOFGREN: Well, doesn't it have 58 different sources of data, including, you know--

MR. MUELLER: It may well.

REP. LOFGREN: -- US-VISIT and a variety --

MR. MUELLER: It may well.

Well, I'm not certain which data sets you're talking about. Investigative Data Warehouse -- I'm thinking one thing. It may be that you're thinking about the records that are obtained by the Foreign Terrorist Tracking Task Force, which looks at individuals coming into the country and utilizes other private companies that already have data to locate persons within the United States, which is a different -- different than Investigative Data Warehouse which is where we house most of our data. I'd have to get back to you in response to those specific questions to make sure I know which database you're talking about and --

REP. LOFGREN: Yeah, it's the Investigative Data Warehouse. And it's my understanding that it includes 58 sources, including SEVIS and US-VISIT and the no-fly list and a whole variety of other items.

And I -- if you want to get back to me, that's absolutely fair, but could I look to a particular time by which you will get back?

MR. MUELLER: Two weeks.

REP. LOFGREN: I would appreciate that very much.

MR. MUELLER: Will do.

REP. LOFGREN: Let me move on to another subject, which is the whole -- and you mentioned it briefly in your opening statement -- the situation of concern at the border.

Two years ago I and a bipartisan group of members went to Mexico City and we met with the Mexican attorney general and some of their law enforcement people. And they expressed extreme concern over what the United States was not doing in terms of the flow of guns from the United States to Mexico as well as a less-than-aggressive effort to -- they felt -- to track money laundering in the United States.

I think that there's been recent attention. We're ramping up our efforts. But can you tell me, just in -- I don't want you to jeopardize an investigation, but how many ongoing investigations do we have now into both the drug -- the gun -- (audio break) -- money laundering issue?

MR. MUELLER: Well, the guns going from North America to South America --

REP. LOFGREN: Correct.

MR. MUELLER: -- from the United States into Mexico is generally the purview of ATF. And as you say, they have ramped up. We're going to get additional ATF agents to do that.

We participate in those --

REP. LOFGREN: I thought there were joint task forces under way.

MR. MUELLER: We do. And we participate in task forces along the border. And whenever there are guns involved, we bring in ATF because they not only have the expertise but the databases that we all use.

We also, though from our perspective, have increased personnel addresses to cross-border kidnappings. Individuals in the United States travel to Mexico -- they may have family, they may have businesses down there -- are kidnapped, and the victims' families are in the United States. We've ramped it up in places like San Diego and El Paso. We also --

REP. LOFGREN: And Phoenix, I assume.

MR. MUELLER: Pardon?

REP. LOFGREN: Phoenix as well?

MR. MUELLER: And Phoenix, yes. But the phenomenon there is a little bit different than in San Diego and El Paso.

Phoenix is -- they have a very high rate of home invasions and the like. And yes, we work on task forces there.

The other step that we have taken is to combine our intelligence capabilities along the border, along with EPIC, so that our field offices, our legal attache office in Mexico has access to the information relating to border crime immediately, as opposed to coming back through headquarters. And it's linked up with EPIC -- the El Paso Intelligence Center -- to give us a much more effective view of what is happening along the border.

REP. LOFGREN: My time has expired, Mr. Chairman.

Thank you, Director.

REP. CONYERS: The gentleman from Iowa, Steve King, ranking member on Immigration.

REP. STEVE KING (R-IA): Thank you, Mr. Chairman.

Appreciate being recognized.

And, Director, I appreciate your testimony. And I think it reflects the long service to this country and significant depth of knowledge that's been built upon that experience. And I would -- based upon that, I would ask you if you are familiar with 18 USC 47 1001, which reads in part: "Whoever in any matter knowingly and willfully falsifies, conceals or covers up by any trick, scheme or device a material fact, whoever makes any material false, fictitious or fraudulent statement or representation shall be imprisoned not more than eight years" -- that's in part.

Are you at least -- have some basis of knowledge that would reflect that section of the --

MR. MUELLER: I'm familiar with 1001, yes.

REP. KING: And I reiterate this because -- would you view that to be at least a statute that you would review if you were to respond affirmatively to Mr. Issa's request?

MR. MUELLER: I believe the prosecutor is looking at this. Department of Justice attorneys would look at 1001, absolutely, as a possible statute to be applied.

REP. KING: And with your long and deep experience -- and we have, I think, about 15 members of the intelligence community -- their sense of integrity in their office. When their integrity is challenged -- can you tell us what would happen to the morale if that should continue, if their integrity is challenged?

MR. MUELLER: Well, I understand the import of the question. And generally, I -- I'll speak very generally -- of course, in any institution in which there has been a challenge to the effectiveness, efficiency, integrity of the department, it does affect morale.

REP. KING: And if someone challenges the integrity of your agency or any other, does that -- is it likely that there would be people within your agency that would volunteer to do a briefing to that person?

MR. MUELLER: Well, I -- all I know is part of my responsibility is to represent my agency fully and appropriately. I admit mistakes when mistakes happen and move forward and to also speak out when you think that your detractors are off base.

REP. KING: And should there be a reluctance to provide that briefing to whichever individuals would have security clearance, could that potentially impact negatively on our national security due to that lack of information and perhaps lack of appropriations and perhaps policy changes that might flow from that relationship that could be interrupted or distrusted because of the allegations?

MR. MUELLER: I'm sorry, sir, I'm not familiar with the predicate of the question in terms of briefing. If you could --

REP. KING: I'm seeking to ask the question hypothetically, and so it maybe sounds a little vague. And I'll try to keep it hypothetical, Director, for the benefit of everyone in this room. But when that relationship of trust is severed, then the working relationship would, I think, certainly be damaged. And are you concerned that it could affect our national security?

MR. MUELLER: I can't answer that hypothetical, sir.

REP. KING: I understand, Director, and I think you do understand my question.

Let me move -- let me first join Mr. Issa in his request. If two are better than one, I would ask you to look into the basis that you've responded to Mr. Issa and I won't ask you to respond to that question again to me.

But I'd like to take this down to Gitmo and ask you instead, of the techniques that have been used to interrogate the Gitmo detainees, are you aware that there were any techniques used there that were more severe than we have used in training of our own Special Forces?

MR. MUELLER: I don't think I have sufficient knowledge to answer the question, sir.

REP. KING: Would you have any indication otherwise?

MR. MUELLER: I don't have sufficient knowledge to answer the question.

REP. KING: Do you have any indication that the Patriot Act has violated anyone's civil rights, been utilized to violate someone's civil rights?

MR. MUELLER: I don't believe so. But I must also say that without, to put it in context, that when it comes to NSLs and particular NSLs we -- they were issued improperly. Now, I don't want to parse words in terms of -- but I don't want you to think that is not a concern of ours, was not a concern of ours, and I do believe it was remedied, but that was a concern because it does affect civil liberties, it does affect the privacy interests of individuals.

REP. KING: Was there anything done at Gitmo that would be criminal if it was done in the United States?

MR. MUELLER: I can't answer that question, sir.

REP. KING: I thank you, Director.

And I yield back the balance of my time.

REP. LOFGREN: The gentleman yields back.

I would recognize now the gentleman from Massachusetts, Mr. Delahunt.

REP. BILL DELAHUNT (D-MA): Yes, thank you.

Welcome, Mr. Director.

Recently there's been considerable discussion about Guantanamo and a group of detainees that are Uighurs, Chinese Muslims. And there has been the use of the term "terrorist" as it relates to these Uighurs. And I have a concern that that is an unfair label and some have indicated that that label came about as the result of communist Chinese intelligence, which, I would submit, is extremely suspect given the history of suppression by the Chinese communist government as it relates to that particular minority.

There was a report issued in May of 2008 by the Department of Justice inspector general and I'm going to read an excerpt to you and ask you to respond.

"Another FBI agent" -- and, again, I'm reading from the IG report. "Another FBI agent stated in his survey response that several Uighur detainees were subjected to sleep deprivation or disruption while being interrogated at Camp X-Ray by Chinese officials prior to April 2002. Chinese officials visited Guantanamo and were granted access to these detainees for interrogation purposes. The agent stated that he understood that the treatment of the Uighur detainees was either carried out by Chinese interrogators or was carried out by U.S. military personnel at the behest of the Chinese interrogators."

Are you familiar with the report of Mr. Fine and are you familiar with this report emanating from an FBI agent?

MR. MUELLER: Now that you read the excerpt, Mr. Congressman, I think it was from the report that the inspector general did on the FBI's interrogation or interviewing techniques.

Can I check one thing, if I might?


MR. MUELLER: (Pause.) Okay. It is a report I believe that was done on our interviewing/interrogation techniques. I'm not familiar with the incident other than what is in the IG report.

REP. DELAHUNT: The IG report is obviously based on a report by an FBI special agent.

MR. MUELLER: Apparently.

REP. DELAHUNT: And you would not contradict that report?

MR. MUELLER: I have no knowledge of the incident so I cannot contradict the report.

REP. DELAHUNT: Okay. But it is in the report and it's a statement by one of your agents that Chinese communist intelligence agents were allowed to interview Guantanamo detainees. Is that a fair statement according to the IG report, as you understand it?

MR. MUELLER: If it's in the IG report, then the investigators for the IG must have talked to an agent and that is what they wrote down with regard to what the agent told them.

REP. DELAHUNT: Mr. Director, myself and several other members of Congress would prefer to have some briefing done by the FBI regarding this particular issue. And I know I would like to have an opportunity to interview the FBI agent that actually wrote this report, and would make that request to you, so that we can actually make a determination as to the status of the Uighurs, because there was another report that was done by another FBI agent, and I want to read it into the record if the chair will indulge me for another minute.

And I'm reading again, reading from that report: "The Uighurs are moderate Muslims who occupy East Turkistan, which was taken over by the Chinese. The Uighurs will often land in Afghanistan in order to gather personnel opposing Chinese suppression. They were often inspired by Radio Free Asia. The Uighurs considered themselves to be fighting for democracy and they idolized the United States. Although the Uighurs are Muslim, their agenda did not appear to include Islamic radicalism. They claim to have no political connection to Islamic terrorists or the Taliban. However, their camp in Afghanistan was bombed and they fled to Pakistan. The Uighurs were captured by the Pakistanis, with half being transferred to the U.S. and half being remanded directly to the Chinese. It was alleged that the Uighurs who were transferred directly to the Chinese were immediately executed. The Uighur detainees at Guantanamo were convinced that they would be immediately executed if they were returned to China."

And I would also note that it's a matter of public knowledge that they were captured not by American soldiers. In fact, they were apprehended by Pakistanis who, in turn, received a $5,000 bounty for each of these Uighurs that were turned over to the Americans and, presumably, to the Red Chinese, who allegedly executed them upon their release.

I suggest this is a very, very important issue because questions are being raised, statements are being made, and I dare say we don't really know the truth yet. And I think before we find ourselves in an embarrassing situation, and I'm again referring to members of Congress, that we ought to have a thorough review. And I think the FBI, with your credibility and, again, I think the excellent record of the FBI in terms of Guantanamo, ought to lead this investigation and provide information to --

REP. LOFGREN: The gentleman's time has expired.

REP. DELAHUNT: Thank you.

REP. LOFGREN: And I would turn now to Mr. Franks.

REP. TRENT FRANKS (R-AZ): Well, thank you, Madame Chair.

And thank you, Director Mueller. I would say to you, sir, that the way you've comported yourself for the hearing this morning affirms a conclusion that many of us have held in the past, that you have personified public service in your patriotism and your professionalism and I appreciate you being here.

MR. MUELLER: Thank you, sir.

REP. FRANKS: Attorney General Holder was here before our committee last week, and, in my judgment, he seemed to have a difficult time articulating what a terrorist really is. And that concerns me, since he's the, you know, the lead law enforcement official in the country charged with protecting us from terrorists. And I was struck to find out that someone in the Obama administration, however, seems to have no difficulty in articulating what a terrorist is and that is the director of Homeland Security, secretary of Homeland Security, Janet Napolitano, the former governor of my state.

Ms. Napolitano was the subject of controversy after a Department of Homeland Security threat assessment report entitled "Right-Wing Extremism" was made public in April of 2009. Now, the report indicated several factors, including the election of the first mixed president in the person of Barack Obama, perceived future gun control measures, illegal immigration, the economic downturn beginning 2008, disgruntled military veterans' possible vulnerability to recruitment efforts by extremist groups as risk factors for right-wing extremism. Then it kind of went on to explain and define right-wing extremism in roughly general terms like opposing restriction on firearms or opposing lax immigration, opposing the policies of the Obama administration on the expansion of social programs, opposing continuation of free trade agreements, paranoia of foreign regimes, fear of communist regimes, fear of one-world government and bemoaning the decline of U.S. stature in the world.

Now, Mr. Director, not to be tongue-in-cheek here too much, but that includes about 70 percent of my district. And I'm concerned, you know, since this report was directed to law enforcement agencies, which I presume means the FBI as well -- I'm concerned how the FBI might interpret this report. I mean, should my district be concerned at this point of being subjects of concern on the part of the FBI as potential right-wing extremists?

MR. MUELLER: I don't believe so at all. We open investigations where we have allegations that a person may be involved in violent extremist or illegal activity. That covers a number of various groups of individuals. But the predicate is illegal activity and generally it is violent extremism. And I don't believe the intent of the report was to paint with such a broad brush, but I do not believe, if the question is should persons be concerned about our undertaking investigations against individuals who are exercising, rightfully so, their First Amendment privilege or rights under the constitution, I do not believe so. We take that exceptionally seriously.

When it looks like one of our investigative actions will implicate the First Amendment, we have a series of reviews that have to be done to assure that the actions taken are appropriate to the circumstances. And I believe that was the intent of the piece from the Department of Homeland Security. Certainly, it is our intent in each of our investigations to assure that we don't trespass on the First Amendment right without the appropriate and adequate predication.

REP. FRANKS: Well, thank you, sir.

Let me shift gears then. We had testimony before this committee regarding our terrorist surveillance program, that people within the United States' boundaries don't really need to be fearful of surveillance. One of the parts of the testimony was that even if Osama bin Laden was in a downtown hotel making calls that we couldn't -- and we knew it was him but we couldn't monitor his calls without a warrant. And I think, if he was here in the United States, I think that makes sense to me. I think that comforts me a great deal.

I guess my question to you, sir, is under the new administration, has the practice or the policy related to terrorist surveillance changed to any appreciable degree, and are you concerned that citizens either in the previous administration or this administration need to be concerned about their private phones being tapped here in this country?


As you all are well aware, the FISA statute was amended a year or so ago and it answered a number of issues we have, particularly with regard to the interception of conversations by individuals overseas talking to other persons overseas who are not American citizens. And it addressed, I believe, a difficult issue and resolved that. I have seen no change in terms of the approach to the FISA statute -- any difference in this administration I saw in the past administration.

REP. FRANKS: Well, thank you for your service, sir. Thank you very much.

Thank you, Madame Chair.

REP. LOFGREN: The gentleman yields back.

I'd recognize Mr. Cohen at this time.

REP. STEVE COHEN (D-TN): Thank you, Madame Chair.

Director, you've done, I think, a marvelous job and have a great reputation on the Hill, but your activities are so abundant -- your areas of investigation, from counterterrorism, which you are concentrating on, and counterintelligence to the traditional FBI days of criminal activities.

Do you think that there's -- the FBI has grown so much that maybe it needs to have two different bureaus, one for homeland security and counterterrorism and counterintelligence in all these areas with our borders, and another for the criminal section?

MR. MUELLER: For approximately two or three years now we've had a criminal -- essentially a criminal branch and a national security branch. The national security branch is counterterrorism, counterintelligence and the directorate of intelligence. In the criminal branch we have the Criminal Division, we have the Cyber Division. And I'm probably missing one or two, but there has been that development of two branches. We call it branches and not the bureau, as you say, for the focus on national security on the one side and criminal programs on the other side.

REP. COHEN: You don't believe that it would be beneficial possibly to have two different distinct offices? You think that they coming under one umbrella is the most efficient way to operate?

MR. MUELLER: Absolutely. And increasingly in this globalized world terrorism cuts across, money laundering cuts across cyber issues. Terrorists are funded through narcotics trafficking in Columbia and Afghanistan.

REP. COHEN: Let me ask you about narcotics trafficking. And I think I asked you about this last year. The war on drugs has gone on since, I think, President Nixon coined the term maybe and maybe since Harry Anslinger and we haven't become more successful. I mean, we're like -- if it goes back to Anslinger, it's like 80 years and we're 0- 79 in winning.

Do you feel we're any closer to winning the war on drugs based on all of the problems with Mexico and the cartels and -- (audio break) -- from Mexico than we were last year?

MR. MUELLER: Well, whether you call it a war on drugs or some other term, I mean, I firmly believe that we need to do what we should to stem both drug trafficking into the United States and drug usage in the United States. And I do believe there have been some successes, particularly when it comes to the use of drugs by children in high school or college and the like. There are others in the -- at ONDCP and others who are much more familiar with that than I am, but I do --

REP. COHEN: You say some successes.


REP. COHEN: Do you have any statistics to show? Statistics I see say that more people are using, say, marijuana than have, because the public doesn't -- has a feeling about use of certain drugs that maybe the FBI doesn't.

Is there a better way -- and some people have suggested looking into a system of legalization -- that might be effective in stemming the tide of drugs from Mexico and then the border wars and the immigration problems from Mexico? Have you considered -- (audio break) --

MR. MUELLER: -- looks of this problem considers it and ultimately, when you look at it, rejects it.

I tend to think that the use of particular drugs goes in waves. You'll have marijuana for a period of time, then you'll have heroin, then you'll have cocaine, then you'll have crack cocaine, then you'll have methamphetamine and then you'll have OxyContin, and it goes it waves.

And there are too many people --

REP. COHEN: Let me ask you about the way --

MR. MUELLER: I'm sorry, but there are too many individuals, both parents and others, who have lost their lives to drugs to give a ready answer that it should be legalized.

REP. COHEN: I agree with you, sir. And there are lots of parents who've lost their lives to crack, cocaine, methamphetamines and heroin, and they've somewhat gone in waves. Name me a couple of parents who've lost their lives to marijuana.


REP. COHEN: Exactly. You can't, because that hasn't happened. And there hadn't been a wave because that's been a constant thing in America since Harry Anslinger because African-Americans used it and saw it as something that was crippling and gave it to the Latin Americans and put an ethnic tone to it.

Is there some time we're going to see that we ought to prioritize meth, crack, cocaine and heroin and deal with the drugs that the American culture is really being affected by and lives are being lost?

MR. MUELLER: The only thing I would say is that you talk to parents who've lost their children to drugs --

REP. COHEN: Right.

MR. MUELLER: -- and they will inevitably say that they started off with marijuana.

REP. COHEN: They probably started off with milk and then went to beer and then they went to bourbon and then they might have gone to marijuana. The gateway theory doesn't work. It's a reality. Obviously we're going to have a -- we're not going to agree there.

Let me ask you about this: In Memphis we've got a real serious problem with the rape crisis program. We used to have a national honored, awarded rape crisis program. It's come to light that as much as $500,000 which has been given to our local city of Memphis government for rape crisis reimbursements for kits and for examinations is not being reported in their budget. And I know the federal government pays for the treatment of the victims, and the kits are provided through our state government, I think, through the feds.

What area in the FBI would look into the misuse of federal funds, if there is misuse in local governments and using monies for rape victims if -- and look into the use of our federal funds and appropriating those to see if they've been used for the proper purposes?

MR. MUELLER: Well, I think initially it would be up to the state and local law enforcement, whether it be the police department or district attorneys to look at it. But we also might be involved in terms of public corruption, fraud and the like depending on the seriousness of the issue.

REP. COHEN: Madame Chair, if I could just close.

Would you ask -- maybe look into it with your local office in Memphis to see if there's been an abuse of federal funds? And if there is, that's a serious wrong in these days when we need monies for so many positive purposes.

REP. LOFGREN: The gentleman's time has expired.

REP. COHEN: Thank you, Madame Chair.

REP. LOFGREN: Mr. Gohmert, the gentleman from Texas, is recognized for five minutes.

REP. LOUIE GOHMERT (R-TX): Thank you, Madame Chair.

And, Director, it's good to see you again.

MR. MUELLER: Good to see you, sir.

REP. GOHMERT: Thank you. I wanted to change gears from the milk to beer line of questioning.

But in the Ted Stevens case, is there any information that any FBI agents were aware of the withholding of exculpatory evidence that the judge got upset about?

MR. MUELLER: I think it's been made public that there was one agent who brought to the attention of others actions which he was concerned of. But because the case is in litigation -- not in litigation, but under investigation -- let me just put it that way in terms of what occurred in the course of that case -- under investigation by, I believe, OPR and the Department of Justice, I'm really constrained from saying much more about it.

REP. GOHMERT: Well, was it FBI agents who recorded conversations between Rick Renzi and his attorney that were apparently pretty clear they were attorney/client-privileged type conversations?

MR. MUELLER: Well, I think I'd have to disagree with you in terms of the characterization of the context of conversations. And again, that case is --

REP. GOHMERT: But they were between an attorney and a client, correct?

MR. MUELLER: I'm not certain what conversations you're talking about. And because it's in litigation I really am precluded from talking about it.

REP. GOHMERT: All right. With regard to the widely reported wiretap of conversations between Jane Harman of this congressional body and two Israelis, was that based -- were those wiretaps based on a warrant or were they based on warrantless wiretaps out of the Patriot Act?

MR. MUELLER: I cannot speak to a particular case, but I can tell you that we do not intercept the context of conversations without a warrant from a federal judge, whether it be from the --

REP. GOHMERT: Well, but we covered this now when we talked about the Patriot Act and some of us were very defensive of the provision that would allow the wiretapping of suspected foreign terrorists who were calling from a foreign country and that there would be times that because they're being wiretapped in a foreign country when they may call into the United States and the wiretap would pick up a conversation with someone in the United States.

And testimony we've heard before indicated though that once it was realized it was someone in the United States and it was warrantless, based under the Patriot Act, then that would be minimized and no further wiretaps regarding that individual would be had within the United States without first getting a warrant. That's why I'm asking the question.

Could that have been -- were the Israelis actually outside the country, which would authorize under the Patriot Act those wireless -- or warrantless wiretaps?

MR. MUELLER: I can't get into the details of any national security investigations we --

REP. GOHMERT: Well, somebody's gotten into them because it's out in the public that Jane Harman was wiretapped. And that's why I was trying to figure out --

MR. MUELLER: All I can tell you is I --

REP. GOHMERT: Is this consistent with what we were told here in this committee would be done with the Patriot Act, or were these wiretaps within the country? Somebody's getting that information out; otherwise, I wouldn't know about it other than reading the paper.

MR. MUELLER: All I can tell you -- that interceptions by the FBI in the United States of individuals in the United States are conducted either under Title 3 in the case of a criminal matter or under the --

REP. GOHMERT: But you don't know what happened in the case of Jane Harman, correct?

MR. MUELLER: Pardon?

REP. GOHMERT: You don't know what happened in the case of Jane Harman?

MR. MUELLER: I'm not going to say that. I'm going to tell you I cannot talk to you about ongoing or past national security investigations.

REP. GOHMERT: So you think Jane Harman is a suspect?

MR. MUELLER: No, I'm not saying that.


MR. MUELLER: I'm telling you that I cannot discuss the details of the case.

REP. GOHMERT: All right. Since I was one of those who --

MR. MUELLER: And let me just say that does not assume there is a case. I'm saying that I cannot discuss the matter which you are seeking to get answers to.

REP. GOHMERT: Well, as one of those who defended the provision that would allow warrantless wiretaps of foreign agents in foreign countries and who may inadvertently pick something up coming in this country, I want to make sure that that's not being violated.

And I know you're concerned about past improprieties not being repeated, and this was certainly before your watch, but in the vain of trying to prevent future illegal disclosures of FBI file contents, do you know how it was that 1,000 FBI files, approximately, came into the possession of the Clinton White House? And what steps may have been done to prevent that illegality from happening again?

I know Chuck Colson went to prison for having (one ?) in the White House. Do you know how that occurred?

MR. MUELLER: I'm not familiar with that.

REP. GOHMERT: Does it concern you that a thousand FBI files could make their way into the White House to be reviewed there?

MR. MUELLER: Well, I can tell you that during the time I've been at the bureau, we -- both between -- well, within the bureau but also with the Department of Justice assure that we follow the appropriate procedures for keeping the privacy of our files.

REP. GOHMERT: Madame Chair, could I ask for a written response for one quick question?

REP. LOFGREN: Certainly.

REP. GOHMERT: Thank you.

Director, there is information about 15 percent of terrorism cases -- this is an IG report -- the FBI failed to nominate subjects to the watch list and 8 percent of closed terrorism cases they failed to remove subjects from the watch list and that the FBI removed a subject untimely from the watch list -- 72 percent of the time it was untimely.

Could you give us a report on what's being done to try to make that more effective? As somebody who has prior service members who still find themselves on the watch list inappropriately --

REP. LOFGREN: I think that's a request for a written answer if --

REP. GOHMERT: That's correct, yes.

MR. MUELLER: Let me just respond. There were 16 recommendations made in that IG report and we are pursuing each one of those recommendations, and many of them have already been put into place.

REP. GOHMERT: Okay, if we could find that out, that would be great.

MR. MUELLER: I would be happy to get back to you on that.

REP. GOHMERT: Thank you, Director.

REP. LOFGREN: The gentleman yields back.

The gentleman from Illinois, Mr. Quigley, is recognized for five minutes.

REP. TOM QUIGLEY (D-IL): Thank you, Madame Chairman.

I guess, good afternoon now, Mr. Director. Sir, if you could respond to the reports that have been listed here as well about members of the FBI and ATF not always getting along, I guess is the best way to describe it, reportedly at crime scenes where FBI and ATF agents threatened to arrest each other or battled over jurisdiction in key evidence?

MR. MUELLER: I think that was a problem. It was much more of a problem several years ago. I think we've done much to resolve those issues. There is overlapping jurisdiction in some areas. But I think we've done much to remove those barriers between the two agencies.

When I travel around, one of the first questions I ask in an office: How do you get along DEA? How do you get along with ATF? And the fact of the matter is 99 percent of the times in the field the answer is we get along fine.

There's some cases where we all have somebody who has a long memory about some slight from ATF, or somebody in ATF has a long memory about some slight from the FBI. But I do think it's more personality driven in isolated incidents, as opposed to what I think some years ago was an institutional problem.

That does not mean that there are not areas that we still are in the process of resolving in terms of explosives databases and the like. But I think we've made substantial headway.

I will tell you that John Pistole, our deputy, spends a great deal of time with his counterparts at ATF to minimize such problems.

REP. QUIGLEY: And I appreciate your candor. When it happens on a scene such as I described, it's one thing. That lack of cooperation, if it dealt with national security-type issues, would be altogether another and far more important and dramatic obviously.

Earlier you spoke about the cartel and the drug war as it relates to the Mexican border and one of my colleagues discussed the issues representatives from Mexico concerned how we are tracking weapons and how weapons are -- most of the weapons that are being used in Mexico come from the United States.

I guess I juxtaposition this with if these are assault weapons and we're concerned about tracking them, wouldn't it just be a whole lot easier if we renewed the ban on assault weapons as was done previously?

MR. MUELLER: It might have some impact.

One of the things that we talk about, the percentage of weapons going to Mexico, large numbers come from the United States, but also the cartels and Zetas and others are not averse to buying elsewhere, and so I think you'll also find a number of weapons, particularly military-style weapons, have come into Mexico from countries other than the United States.

That does mean that we should not be doing better in terms of stopping flow from the United States into Mexico and several, I guess, discussed legislative fixes may have some impact on it.

REP. QUIGLEY: Well, the manpower required, the difficulties required with tracking or trying to stop, you know, you judge on how effective that is versus not selling assault weapons in the United States.

MR. MUELLER: I can't give you an insight into that.

REP. QUIGLEY: Well, I appreciate --

MR. MUELLER: My friends at ATF may have better -- more precise knowledge on those particular issues.

REP. QUIGLEY: Well, I appreciate your candor and your service. Thank you, sir.

I yield back.

REP. LOFGREN: The gentleman yields back.

I recognize the gentleman from Texas, Mr. Poe, for five minutes.

REP. TED POE (R-TX): Thank you, Madame Chairman, for your patience.

Thank you for being here.

I want to follow up on the weapons in Mexico. Isn't it true that there's been at least 100,000 members of the military that deserted and most of them took their weapons, which many of them, if not all of them, are made in Belgium -- Mexican military. Are you familiar with that?

MR. MUELLER: I am familiar with the fact that there have been -- one of the issues that the military in Mexico faces is desertions. I'm not familiar with the numbers.

REP. POE: Regardless of where the weapons come from -- and I take issue that most of them come from the United States; I think the statistics prove they come from all over the world -- would it seem to you that Mexico has the responsibility to protect their borders from illegal weapons coming in just like we have the responsibility to keep drugs out of our country?

MR. MUELLER: Yes. Yes. Yes. Yes. Yes. It shares responsibility and both sides have a shared responsibility in assuring that contraband does not flow either way.

REP. POE: Going on to another issue, I appreciate the fact that you know what terrorism is. The FBI has a definition of terrorism, does it not?


REP. POE: And without going into it today, I was somewhat disturbed that the attorney general came in here and I asked him what he thought terrorism was and he could not give me an answer so he's supposed to give us a written answer on that. But at least the FBI knows terrorism when they see it.

MR. MUELLER: There's a statutory definition of terrorism in --

REP. POE: You all follow it.

Have you been to Guantanamo Bay prison?


REP. POE: Okay. How any times have you been there?


REP. POE: Okay. I've been there too.

And the information that Khalid Sheikh Mohammed provided the United States in now Justice Department secret memos that have been released to the whole world regarding a plot to blow up the Brooklyn Bridge, a plot to crash a plane into the tower in Los Angeles, ratting on a cell of 17, including Majid Khan, Hambali, Rusman "Gun Gun" Gunawan -- he's an interesting fellow -- and Yazid Sufaat, Jose Padilla, and Iyman Faris, did all that information turn out to be true, what he told us?

MR. MUELLER: That's a very broad question, sir.

REP. POE: I know because he told us a lot of things.

MR. MUELLER: (Inaudible) -- nine or 10 individuals, I can't speak to pieces of information that were provided by those individuals.

REP. POE: All right. My question is: Did information that KSM gave the United States, did that information -- any of it -- turn out to be true?

MR. MUELLER: Without looking at a particular piece of paper or whatever, yes, I believe so.

REP. POE: Do you know of any place in the United States where people have offered to house Gitmo detainees in the United States? Do you know of any state, local, federal government that wants those people?

MR. MUELLER: I don't, but I would not necessarily be the person to know that other than what's written -- what's in the newspapers.

REP. POE: (Laughs.) Do you have a solution what to do with them all?

MR. MUELLER: I don't. That's being discussed across the street and down the avenue.

REP. POE: All right.

MR. MUELLER: I think it is a very difficult -- I mean, I'll say this. I think everybody recognizes it's a very difficult issue and people are honestly wrestling with what the best resolution is and it is a very difficult issue.

REP. POE: My last question: You said you went to Gitmo. When were you there?

MR. MUELLER: Several years ago.

REP. POE: Okay.

MR. MUELLER: I can't recall. I'd have to get back to you on that if it's important.

REP. POE: It's all right. You don't have to get back with me on it.

Thank you very much. Yield back.

REP. LOFGREN: The gentleman yields back.

We have been called for votes, but what I'd like to do if we can and if members will be very concise, we have two more members who would like to ask questions. If we can get through this, we can go vote and you can go off to do your work without waiting for us.

So Ms. Jackson-Lee is actually -- she was here earlier -- is next and she's recognized for five minutes.

REP. SHEILA JACKSON-LEE (D-TX): Mr. Director, thank you very much and let me apologize for being in a markup in another committee, but we had a chance to greet each other just a few -- just a day or two ago.

I'm very interested in what progress has been made in the diversity of the work force of the FBI. I think that is crucial.

I also want to emphasize that I have great respect for your special agent in charge -- agents in charge across America, but I think it's important for them to be made aware that collaborating with the community is okay. We realize that resources are to be spent on investigation, but say, for example, there is a child abduction and the community in an uproar or a predator on the loose.

And in fact, a few years ago I called on the special agent in charge in Houston to help our police department find a predator but calm a community. Now, the way they handled that was that they were able to use the FBI lab -- at that time we were in a flux about DNA -- but there's some skepticism and I would appreciate if some protocol would be established that it's okay for SACs to come to a meeting where a community is to explain what the FBI does. Certainly that is not their main occupation. So I'd like to just capture that in terms of how SACs work in the community.

The other aspect is to comment on the work that the FBI is doing as it relates to civil rights investigations, what level, what percentage of work involves that, and I would include hate crimes in that.

Then lastly, I would be very interested -- we've had challenges on the watch list which, as you well know, is said to be held by the FBI. That's a complicated, difficult paper list, it appears. I'm interested in how you create or do you create terrorist profiles, and what kind of underlying data you use, but more importantly, I want to know what progress have we made with updating that watch list.

And I thank the gentleman very much.

MR. MUELLER: Let me see if I can hit the first one. In terms of diversity, I absolutely agree with you, the importance of diversity. It is -- all of our SACs are evaluated on the contributions made to diversity in our hiring, promotion, and we've made, I believe, good progress, but there's more progress to be made.

I'd be happy to get you the --

REP. JACKSON LEE: I think that would help me, if you would. And I'd like to work with you on outreach issues regarding that, please.

MR. MUELLER: With regard to the civil rights cases, again, I think that would take some time. We have an initiative to look at older civil rights cases and I'd like to give you -- have you briefed on where we are in that particular initiative and the numbers we assign to that.

In terms of having our SACs or the office respond to a child abduction or another immediate emergency where persons' lives are in danger, there is not a one that would not do it in a second. And every SAC is encouraged and evaluated on the outreach to the community. I cannot imagine in Houston, for instance, that you would not have had the full support at your community meetings or otherwise from our personnel in Houston.

REP. JACKSON LEE: Now will be even better. (Laughs.)

MR. MUELLER: So -- it will. But that's -- wherever we are. We've got 400 resident agencies; we've got 56 field offices. We know that responding to a child abduction is important to every one of us.

REP. JACKSON LEE: Thank you. And the terrorists?

MR. MUELLER: Oh, the terrorist screening centers, as I indicated before, the IG report that identifies deficiencies made 16 recommendations. Many of those recommendations have already been pursued and the rest of them are being followed up on. We'd be happy to tell you where we are and the progress we've made on that.

REP. JACKSON LEE: Madame Chair, I'm going to yield back, but I'm going to ask the director if we can have a more detailed discussion. I sit on the Homeland Security Committee as well and deal with the watch list as it relates to airports and I'd like a very detailed briefing -- if necessary classified -- on that issue dealing with the watch list.

And I thank you on the other issues. I'll take a briefing on the diversity and as well cases involving civil rights and hate crimes.

MR. MUELLER: And on the briefing on the terrorist screening center, I think it would be beneficial to have a joint briefing between ourselves and DHS.

REP. JACKSON LEE: Very good.

Mr. Chairman, yes, I yield back.

REP. LOFGREN: The gentlelady yields back.

The gentleman from California, Mr. Schiff, is recognized for five minutes.

REP. ADAM SCHIFF (D-CA): Thank you, Madame Chair.

And thank you, Mr. Director, for the good work you do.

I have three questions which I'm going to just get out very quickly and see if you have time to respond, and if not, maybe we could follow up later.

But one brief commentary on some of my colleagues' points on the other side of the aisle vis-a-vis Gitmo, and that is I assume my colleagues on the other side of the aisle support efforts the administration is making to get some of our allies to agree to take some of these detainees and detain them. I don't know where my colleagues think they're going to be detained in these other countries or how we can make the case that Germany or France or England ought to take detainees and detain them if we're unwilling to detain any of them in our maximum security prisons. That's just an aside.

My three questions are this: First, on the issue of crack cocaine, I know the administration supports changing the enormous disparity between crack and powder cocaine in terms of sentencing. Do you, Mr. Director, favor a strict equivalence or are there some reasons that you feel that crack's nature lends itself to some continued disparity, or do you think the disparity should be eliminated both in terms of mandatory minimums and in terms of quantities? That's the first question.

The second question is on the DNA issue, if I understood you correctly earlier, you anticipate that there will be no backlog in the offender DNA as of June of next year. What additional resources do you need, if any, to make sure that there is no backlog in June of next year on case samples?

And then finally, if I could -- and you may need to respond to this last question at a later date -- when I was with the U.S. attorneys I handled the Miller spy case involving an FBI agent, Richard Miller, so I'm very interested in the counterespionage and penetration issues.

I know the IG did a follow-up report to see how many of its earlier recommendations in terms of reforms had been implemented and there were I think a few very pivotal ones that had not yet been implemented in terms of preventing penetration. One was to create a unit within the bureau focused on internal penetration. A second was developing a computer need-to-know system, but now that we have gone from Virtual Case File system to Sentinel, will the Sentinel have that kind of safeguard in it and will that be ready by the end of the year? And then finally, in the Hanssen case he was able to walk out of the FBI with classified documents without any difficulty. Have measures been taken to be able to detect if people are leaving the premises with classified information?

But if you could address the first two questions, and if you get time on the last, great; if not, I'll follow up with you at a later date.

REP. LOFGREN: There's two minutes left, so.

MR. MUELLER: On crack cocaine, I have not wrestled with that issue. I'd have to defer to Justice on that.

On the second one, with regard to the resources necessary to reduce the backlog or eliminate the backlog on the case work as opposed to the convicted offender program, I would have to get back to you on that. We are making progress each day, particularly with regard to technological fixes, but I'd have to get back to you on the specific resources.

In terms of the third issue, relating to counterespionage, we did establish a unit that is focused on that which was a recommendation of the IG. The Sentinel program has those precautions in it to assure that we track and monitor everybody who is using the system and put out alerts if it is being -- if persons are trying to get into or get access where they are not allowed to go. And lastly, in terms of detecting persons who are eliminating (sic) the building, we have put into place some measures, but it is very difficult to prevent a person who has a classified paper document or a thumb drive from exiting a building. It's near impossible. So while we put into place some provisions, I can't tell you that we would be able to stop a person leaving the organization with a thumb drive or a classified document.

REP. SCHIFF: Mr. Director, thank you. You managed to do that in two minutes. Remarkable.

Madame Chair, I yield back.

REP. LOFGREN: The gentleman yields back.

We've been joined by Mr. Johnson. We do have two and a half minutes before the vote is called, so we will ask Mr. Johnson to be as terse as possible and we will conclude our hearing.

REP. HANK JOHNSON (D-GA): Thank you, Madame Chair.

I feel abused and discriminated against and we'll talk about this later.

REP. LOFGREN: Well, we'll stay for five minutes.

REP. JOHNSON: All right. I don't think it's going to take that long.

Director Mueller, thank you for your service to the nation, and thank you for coming out today.

And I have three questions. All three of them just simply require a yes or no answer, and then I will allow you to follow up.

The first question is: There is a well-established link between the drug trade and weapons. Isn't that true?


REP. JOHNSON: And also isn't it a fact that most of the guns that are in the hands of these drug cartels are basically American- made weaponry?

MR. MUELLER: The figure that's thrown around is 90 percent. I'm not certain the basis of that and the accuracy of it, but that is what I have seen elsewhere.

REP. JOHNSON: Have you heard -- well, don't let me ask that.

MR. MUELLER: I have heard, yes. I mean, I will tell you I have heard that also there they have weapons, particularly weapons they can -- (audio break) -- and explosives and the like elsewhere from the United States from other governments in Latin or South and Central America.

REP. JOHNSON: Okay. And assault weapons in particular are the weapon of choice around the world for drug cartels, for street crimes, et cetera, et cetera. Correct?

MR. MUELLER: I'd have to say not necessarily. I know you want a no or a yes, but not necessarily. It depends on where you are in the United States.

There's certain areas of the United States where assault weapons have become a weapon of choice, but there are other areas in the United States -- most of the communities in the United States -- where that is not the case.

Certainly around the world you could make the case that assault weapons are -- whether it be Kalashnikovs or AK-47s or the like -- are the weapons of choice.

REP. JOHNSON: Yeah. Well, let me ask this question then: Given those facts that you pretty much just agreed to with the exception of the last one, which is a qualified answer I would say, can you tell us the justification for the continued failure -- (audio break) -- in terms of the gun shows that are -- where you can buy -- (audio break).

MR. MUELLER: (In progress following audio break) -- defer to the Department of Justice on that. That's a policy issue that is -- I've been through two administrations and the questions are asked in each administration each time on this particular issue. I defer to the Department of Justice. It's a policy issue that the attorney general opines on.

REP. JOHNSON: Yes, certainly that would be appropriate, but I just wanted to know what -- and I know that you carry out policies -- but I do want to know, you know, have you discussed this issue with the administration, with the president?

MR. MUELLER: Not with the president, nor do I think I've discussed it with the attorney general. It has not been a topic of our discussions to date.

REP. JOHNSON: Do you think it should be?

MR. MUELLER: It probably at some point will come up. I'm not certain I can opine on whether it should or should not be.

REP. JOHNSON: Is there any justification for the gun show loophole remaining like it is, in your mind?

MR. MUELLER: Yeah. Well, there are a number of explanations and policy arguments both for and again (sic) that.

REP. JOHNSON: Can you tell us briefly what those are?

MR. MUELLER: It would be hard for me to resurrect them. Clearly, whose who oppose the -- clearly, on one side will be those that believe that the gun shows are a loophole that allow felons and others to obtain weapons that they ordinarily could not have access to. There are others who argue that for the most part at gun shows you have antique weapons that are under the -- (inaudible) -- appropriately both kept and sold. So --

REP. LOFGREN: The gentleman's five minutes has expired.

REP. JOHNSON: Thank you, Madame Chair.

REP. LOFGREN: We will adjourn this meeting with thanks, Mr. Director, for your testimony and your service.

Without objection, members will have a minimum of five legislative days to submit additional written questions to you, Mr. Director, which we will forward and ask that you answer us promptly.

Without objection, the record will remain open for five legislative days for the submission of other material.

This has been a very -- (audio break) -- the additional material you've agreed to send to us.

And this hearing is adjourned. (Sounds gavel.)


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