Hearing of the U.S. Senate Committee on the Judiciary - The President's Request to Extend the Service of Director Robert Mueller of the FBI Until 2013

Statement

Mr. Chairman, thank you for holding this hearing. This hearing is the first hearing in thirty-seven years to specifically address the ten-year term of the Director of the Federal Bureau of Investigation (FBI).

The Constitution proscribes that the President, by and with the advice and consent of the Senate, shall nominate and appoint Officers of the United States. The Constitution also provides Congress the power to establish by law, the appointment of inferior officers. Since the FBI was founded in 1908, there has always been a head of the agency, first called Chief and later Director. From 1908-1972, the FBI was headed by a Director that was appointed by and reported to the Attorney General. However, in the late 1960's Congress became concerned that the FBI Director had amassed too much power and that the bureaucracy of the FBI had become unmanageable and out of control.

Congress debated the need to propose limits on the power of the FBI Director in 1968. In the Senate, members discussed the lengthy tenure of then-FBI Director J. Edgar Hoover, who had served over 40 years as Director at the time. Senators expressed serious concerns about the expansion of the FBI's mission, role, and size under Hoover's watch. They discussed his increasing age and inevitable end of his time as Director. So, in 1968 Congress passed a law requiring the FBI Director be appointed with the advice and consent of the Senate. Despite passing the Senate previously on two occasions but failing to pass the House, the legislation was finally signed into law by President Johnson.

Notwithstanding the passage of the 1968 law, Director Hoover continued serving without a nomination hearing until his death in 1972. The controversy surrounding the FBI Director then heated-up with the failed nomination of L. Patrick Gray and the FBI abuses of power that were uncovered as part of his confirmation hearings. These abuses included utilizing FBI agents for political campaign purposes, keeping secret files on elected officials, and a general lack of political independence from the President. As a result of the failed confirmation and discovered abuses, this committee held a hearing in 1974 seeking legislation limiting the term of the FBI Director, to provide for additional congressional oversight of the FBI Director and to insulate the office from the political control of the President.

In 1976, Congress acted by limiting the Director of the FBI to the current 10 year, non-renewable term. Congress did so to prevent the accumulation of excess power by the Director as well as to provide some political independence for the FBI. The statute expressly prohibits the reappointment of a Director.

Despite knowing about Director Mueller's impending term limit and initiating a search for a successor led by the Attorney General and Vice President Biden, President Obama choose not to send the Senate a nomination for the Director of the FBI. Instead, the President has decided that notwithstanding those statutory provisions, Director Mueller should continue to serve in this position for another two years. Although I do not think that our position on legislation to permit this result should depend on personalities, Director Mueller has performed admirably as FBI Director. With the recent death of Usama Bin Laden, and the approaching ten year anniversary of the September 11 attacks, unique circumstances may warrant a one-time, limited extension of the term of this particular Director.

Continuity in the national security and counterterrorism apparatus is important, especially in light of increased threats. Against this backdrop, I joined as a co-sponsor of S.1103, a bill that would extend the term of the current FBI Director for two years. But two years is as far as I will go. Director Mueller has done a fine job, but he is not indispensable, and the likely continuation of the war on terror for many years is not so singular circumstance to justify extending the FBI Director's term. As General deGaulle remarked, "The graveyards are full of indispensable men." In two years, no matter what, someone else will be nominated and confirmed for this job. Only a few years ago, it was said that Alan Greenspan was the only person who could chair the Federal Reserve. One of my colleagues said, only half-jokingly, that if Dr. Greenspan died in office, sunglasses should be placed on him as in Weekend at Bernie's, allowing him to continue as Chairman. Well, history has proven that the United States will continue to function, and withstand a major financial crisis, without Dr. Greenspan heading the Federal Reserve.

Although I support this bill, I have resisted efforts to simply pass it with minimal deliberation. Given the substantial precedential value of any extension of the FBI Director's term, we have a duty to ensure that the regular order is followed for the consideration of this bill.

First, I believe that the 10 year limit has achieved its intended purposes. Until Director Mueller, no Director subject to the limit has served the full 10 year term. The limit has been successful in reducing the power of the Director and in preserving the vital civil liberties of all Americans. Second, the 10 year limit has provided important political independence for the FBI Director. Only one Director has been fired in this period, and this did not occur for political reasons. And third, the prohibition on reappointment has also preserved the Director's independence by eliminating any potential that the Director will attempt to curry favor with the President to be reappointed.

We should proceed cautiously in setting a precedent that the 10 year term can be extended. The benefits of the 10 year term are well-established. Altering this Director's term, by definition, sets a precedent that the 10 year term and the prohibition on reappointment can be changed, and this risks changing the behavior of future Directors to seek reappointment in a way that Director Mueller could not have anticipated.

We should proceed cautiously in setting a precedent that the 10 year term can be extended. If we are going to extend Director Mueller's term, we should establish a precedent that doing so will be difficult and that unique circumstances exist necessitating it. We didn't just introduce a bill and hold it at the desk. Instead, we introduced a bill that would amend existing law. We are holding a hearing. As in 1974, we have called the Director of the FBI to testify. We are pointing out the special circumstances behind the bill. And, recognizing the constitutional issues that may arise in extending the Director's term and without actually voting to advise and consent to his serving an additional term, we have called experts to address the constitutionality of the bill. We will hold a committee markup, and if successful, we will seek floor time to pass the bill. That is how we should proceed. Changing the 10 year term limit is a one-time situation that will not be routinely repeated. Acting responsibly requires no less.

For all these reasons, Mr. Chairman, I thank you for holding this hearing, I thank Director Mueller and all the witness for coming to testify. I look forward to their testimony and to their responses to the important questions members will have.

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