[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF THE
FEDERAL BUREAU OF INVESTIGATION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
JUNE 13, 2013
__________
Serial No. 113-32
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
C O N T E N T S
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JUNE 13, 2013
Page
OPENING STATEMENTS
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 3
WITNESS
The Honorable Robert S. Mueller, III, Director, Federal Bureau of
Investigation
Oral Testimony................................................. 5
Prepared Statement............................................. 9
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable J. Randy Forbes, a
Representative in Congress from the State of Virginia, and
Member, Committee on the Judiciary............................. 45
OVERSIGHT OF THE
FEDERAL BUREAU OF INVESTIGATION
----------
THURSDAY, JUNE 13, 2013
House of Representatives
Committee on the Judiciary
Washington, DC.
The Committee met, pursuant to call, at 10:07 a.m., in room
2141, Rayburn House Office Building, the Honorable Bob
Goodlatte (Chairman of the Committee) presiding.
Present: Representatives Goodlatte, Sensenbrenner, Coble,
Smith of Texas, Chabot, Bachus, Issa, Forbes, King, Franks,
Gohmert, Jordan, Poe, Chaffetz, Marino, Gowdy, Amodei,
Labrador, Farenthold, Holding, Collins, DeSantis, Smith of
Missouri, Conyers, Nadler, Scott, Watt, Lofgren, Jackson Lee,
Cohen, Johnson, Pierluisi, DelBene, and Jeffries.
Staff Present: Shelley Husband, Chief of Staff & General
Counsel; Branden Ritchie, Deputy Chief of Staff & Chief
Counsel; Allison Halataei, Parliamentarian & General Counsel;
Robert Parmiter, Counsel; Kelsey Deterding, Clerk; Perry
Applebaum, (Minority) Minority Staff Director & Chief Counsel;
Danielle Brown, Parliamentarian; and Aaron Hiller, Counsel.
Mr. Goodlatte. The Committee will come to order, and
without objection the Chair is authorized to declare recesses
of the Committee at any time. We welcome everyone to today's
hearing on the oversight of the United States Federal Bureau of
Investigation. I recognize myself and the Ranking Member for
opening statements.
This hearing on oversight of the Federal Bureau of
Investigation will come to order. We welcome Director Mueller
to your final appearance before the House Judiciary Committee
as FBI Director, and we are happy to have you here with us
today.
Before we begin, let me take a moment to commend you for
your successful tenure at the FBI. You took office under
extremely difficult circumstances. In fact, you were confirmed
1 week before September 11, 2001, and the attacks on New York
City and Washington, D.C. During your 12 years as Director, you
have led the transformation of the FBI from a domestic law
enforcement agency into a complex intelligence-driven national
security organization whose primary missions include
confronting the most significant security threats facing our
Nation today. You have done the American people a great
service, and for that you have my sincere gratitude.
We now know that last week's unauthorized disclosure of
certain NSA intelligence programs was committed by a 29-year
old former defense contractor. I know there is little you will
be able to say about these programs in a public hearing, but I
and other Members of the Committee believe it is important for
you to explain to the extent you are able why you believe these
programs are a necessary part of America's counterterrorism
operation.
I also believe the recent reports regarding the NSA
programs illustrate this Administration's ongoing problem of
national security leaks. The Obama administration takes credit
for having investigated more national security leaks than any
previous Administration. While this may be true, I am not
certain whether it is due to a more aggressive investigative
approach to national security leaks or the simple fact that
there have been a shockingly high number of leaks in the last
4\1/2\ years.
These leaks illustrate the delicate balancing act between
the need to protect national security information and
investigate leaks and the need to preserve the First Amendment
right to freedom of the press.
Regardless of how some Members of Congress may feel about
the recently revealed NSA programs, the fact remains that the
terrorist threat to the United States is ongoing. We were
reminded of this nearly 2 months ago when the Boston Marathon,
traditionally a day of celebration, was the target of a
terrorist attack. Dzhokhar Tsarnaev and his brother, Tamerlan,
set off twin explosions that killed three people and injured
more than 250. This attack was a grave reminder, as you warned
this Committee in 2010, that domestic and lone wolf extremists
are now just as serious a threat to our safety as international
organizations, like al-Qaeda.
I would like to commend the FBI and its State and local
partners, all of whom worked tirelessly to identify and locate
the bombers and apprehend Dzhokhar. However, prior to the
Boston attack, several Federal agencies, including the FBI,
received intelligence information about Tamerlan. I am
concerned that inadequate interagency coordination may have
prevented robust information sharing in this case. It is
imperative that the Administration and Congress examine this
matter closely to identify areas in which intelligence
information sharing can be improved.
On the subject of counterterrorism, I also look forward to
hearing from you about the FBI's efforts to investigate the
attacks on the American consulate in Benghazi, Libya.
Immediately following the attacks, the Obama administration
called them a spontaneous response to a video critical of
Islam. As we all now know, the attacks were, in fact,
preplanned acts of terror. I am intensely concerned that the
Administration's handling of the attacks has hampered the FBI's
ability to conduct a thorough investigation. As former Deputy
Chief of Mission Gregory Hicks testified, the Administration's
mischaracterization of the attacks so angered the Libyan
government that they prevented the FBI Evidence Response Team
from traveling to Benghazi for 2 weeks.
Finally, Mr. Director, I am very interested in hearing from
you about how the Bureau intends to tighten its belt in a
responsible manner during this time of fiscal uncertainty.
Along with Crime Subcommittee Chairman Sensenbrenner, I sent
you a letter in April asking several questions about the FBI's
budget and spending priorities, including the FBI's policy to
provide extensive financial benefits, including paying for all
laundry and food for the highly paid professionals brought to
work at FBI headquarters for 18-month stints.
I appreciated receiving your response last week, but I
believe this is an area where the FBI and other Federal law
enforcement agencies are not making the best use of taxpayer
dollars. I hope to hear what the Bureau intends to do to
address this issue. I look forward to hearing your answers on
all of these important topics today, as well as on several
other issues of significance to the FBI and the country.
And it is now my pleasure to recognize for his opening
statement, the Ranking Member of the full Committee, the
gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Goodlatte, and I join in
welcoming the Director of the Federal Bureau of Investigation.
We gather today at a time when the Nation stands at a legal and
political crossroad. We are confronted with a seemingly endless
war that increasingly must be fought in the digital age. And I
say this not only because of the recent disclosures concerning
the FBI and the NSA surveillance programs, but because of a
range of actions that occurred since the attacks of September
the 11th, 2001.
It's not a partisan concern, and it is one that applies
both to the present Administration and to the last one as well.
Nor is it a concern particularly limited to surveillance
programs. It extends to our increasing reliance on drones to
conduct foreign policy and the government's use of the so-
called state secrets doctrine to avoid legal accountability.
And, yes, in no small part because of the actions of the NSA
and the Federal Bureau of Investigation, it's my fear that we
are on the verge of becoming a surveillance state, collecting
billions of electronic records on law-abiding Americans every
single day.
A point the recent disclosure confirmed by the
Administration that Section 215 of the USA PATRIOT Act is being
used to engage in a nationwide dragnet of telecommunications
records. I have, along with many of my colleagues, both
Democrats and Republicans alike, I've long expressed concern
that Section 215 fails to impose a meaningful limit on the
government's ability to collect this type of information. If
every call is relevant, then the relevance standard we enacted
into law has little practical meaning.
Another point is the total secrecy in which surveillance
operates under the PATRIOT Act and FISA. This secrecy denies
Congress the opportunity to conduct meaningful oversight and
prevents the public from holding its government accountable for
its actions. I concede that it's a difficult and sensitive
issue to resolve, but that's our job. A free society can only
be free if it has the informed consent of its citizens. It is
critical that the public knows how its government treats the
content of its emails and telephone calls even when it collects
them by mistake.
It is true that some Members of the Congress have chosen to
receive classified briefings about these programs, I among
them. These briefings, though, often prohibit attendees from
taking even notes or to even discuss such information with
anyone else. And with all due respect to my friends in the
Administration, the mere fact that some Members may have been
briefed in a classified setting does not indicate our approval
or support of these programs.
Indeed, many of us voted against the reauthorization of the
PATRIOT Act and the FISA Amendments Act, precisely because of
what we learned in those classified sessions. I agree with
President Obama about the need to find a way to have a
responsible conversation about these issues and how we can
engage all Americans in this debate to a maximum extent
possible.
But at a time when no major decision of the FISA Court has
been declassified, and when the Administration continues to
rely on the state secrets doctrine to avoid accountability in
the courts, I must say that we are not yet able to have a more
public and rational, even if limited conversation. The only way
to ensure that this critical debate will actually occur is for
this Committee to achieve an appropriate balance between the
need for secrecy and the need for informed debate. One way to
tell that that balance has been tilted too far in favor of
national security is when individuals in public service have
legitimate grievances with our government, but feel they have
no recourse but to leak classified information to the press.
I don't condone these leaks. I believe that if we fail to
adjust the concerns at the heart of these controversial
programs that there will be more leaks. And so, Director
Mueller, as one who supported the extension of your term as
Director, and whose integrity I have always held in highest
regard, we in the end are a Nation of laws and not men.
Moreover, with all due respect, my considered judgment is that
the Federal Bureau of Investigation's actions are inconsistent
with the requirements of the PATRIOT Act and violate the
fundamental privacy of law-abiding citizens.
And so I finish where I started. The Congress, and in
particular this Committee, stands at a crossroad. Every day it
seems that a new part of the legal architecture put in place to
fight this war on terror is exposed. The prison at Guantanamo
Bay is unsustainable. Of the 166 men held there, 86 are already
cleared for transfer. More than 100 are engaged in the third
month of a hunger strike. Nearly 2,000 personnel are needed to
keep the prison functioning.
Thanks in no small part to the efforts of the Chairman, we
have begun to explore the legal underpinnings of the
Administration's drone programs. There is a growing bipartisan
unease with the notion that the executive branch can kill a
United States citizen on its own determination that he poses an
``imminent threat.''
And with respect to the Section 215 collections exposed
only last week, it seems clear that the government's activity
exceeds the authority this Congress has provided, both in
letter and in spirit. With every new disclosure, another piece
of the legal architecture put in place after September the 11th
crumbles.
And so it is my hope that over the coming weeks the Members
of this Judiciary Committee can come together and conduct
meaningful oversight of these programs. Where needed, we should
pass relevant and credible legislation, just as we did on a
unanimous basis after September 11.
Tomorrow morning my colleague Justin Amash and I will
introduce a bill that will address the overbreadth and
impenetrability of the surveillance programs. It is not the
only proposal to address these problems. It should not be the
only response to the broader questions we face. But it is a
modest start and I hope that my colleagues will join me. This
is a time for Members of both sides of the aisle to come
together and help restore our Nation to its proper role as a
beacon for civil liberties around the world.
I thank the Chairman for indulging me additional time to
make the statement.
Mr. Goodlatte. The Chair thanks the gentleman.
Mr. Goodlatte. And without objection, other Members'
opening statements will be made a part of the record.
We again thank Director Mueller for joining us today.
And, Director, if you would please rise, I will begin by
swearing you in.
[Witness sworn.]
Mr. Goodlatte. Let the record reflect that Director Mueller
responded in the affirmative, and I will now introduce him.
Our only witness today is Federal Bureau of Investigation
Director Robert S. Mueller, III, who has led the FBI since
September 4, 2001. He was first nominated by President George
W. Bush. In 2011 he was asked by President Obama to remain as
FBI Director for an additional 2-year term, and that was
swiftly approved by the Congress.
Director Mueller has a long and honorable record in public
service. After graduating from Princeton and receiving a
master's degree from New York University, Director Mueller
enlisted as a Marine and served in combat in Vietnam. He
received a Bronze Star, two Navy Commendation Medals, a Purple
Heart, and the Vietnamese Cross of Gallantry.
After his military service, he earned his law degree in my
home State, at the University of Virginia. Early in his legal
career, Director Mueller served as a prosecutor in the United
States Attorney's Offices in both San Francisco and Boston.
After working as a partner in the Boston law firm of Hill &
Barlow, Director Mueller returned to the Justice Department in
1989 as an assistant to Attorney General Thornburgh and later
as head of the Criminal Division. In 1998, Director Mueller was
named United States Attorney in San Francisco, a position he
held until 2001, when he was nominated to be Director of the
FBI.
Director Mueller, as your tenure is set to expire this
year, we welcome you today for one last look and look forward
to your statement. Please proceed.
TESTIMONY OF THE HONORABLE ROBERT S. MUELLER, III, DIRECTOR,
FEDERAL BUREAU OF INVESTIGATION
Mr. Mueller. Thank you, and good morning.
Mr. Goodlatte. You know what, turn on that microphone.
Mr. Mueller. Good morning, Chairman Goodlatte, Ranking
Member Conyers, and Members of the Committee. And I thank you
for the opportunity to appear here today and appear on behalf
of the men and women of the FBI. And on their behalf let me
begin by thanking you for your support of the Bureau over the
11 years that I have been there.
We live in a time of diverse and persistent threats from
terrorists, spies, and cyber criminals. And at the same time we
face a wide range of criminal threats from white-collar crime
to child predators. And just as our national security and
criminal threats constantly evolve, so, too, must the FBI
counter these threats, even during a time of constrained
budgets.
Today I would like to highlight several of the FBI's
highest priority national security and criminal threats. As
illustrated by the recent attacks in Boston, the terrorist
threat against the United States remains our top priority. And
as exhibited by many of our arrests over the past year, we face
a continuing threat from homegrown violent extremists. These
individuals present unique challenges because they do not share
a typical profile. Their experiences and motives are often
distinct, which makes them difficult to identify and difficult
to stop.
At the same time, foreign terrorists still seek to strike
us at home and abroad. Terrorists today operate in more places
and against a wider array of targets than they did a decade
ago. And we have seen an increase in cooperation among
terrorist groups and an evolution in their tactics and an
evolution in their communications. Core al-Qaeda is weaker and
more decentralized than it was 11 years ago, but it remains
committed to attacks against the West. Al-Qaeda affiliates and
surrogates, in particular al-Qaeda in the Arabian Peninsula,
pose a persistent threat. And in light of recent attacks in
North Africa, we must focus on emerging extremist groups
capable of carrying out attacks from that region.
Next, let me turn for a moment to discuss the cyberthreat,
which has evolved significantly over the past decade and cuts
across all FBI programs. Cyber criminals have become
increasingly adept at exploiting weaknesses in our computer
networks. Once inside, they can exfiltrate both state secrets
and trade secrets. And we also face persistent threats from
hackers for profit, organized criminals, cyber syndicates, and
hacktivist groups.
As I have said in the past, I do believe that the cyber
threat may well eclipse the terrorist threat in years to come.
And in response, we are strengthening our cyber capabilities in
the same way we enhanced our intelligence and national security
capabilities in the wake of the September 11th attacks. Our
Cyber Division is focused on computer intrusions and network
attacks. FBI special agents work side by side with Federal,
State, and local counterparts on cyber task forces and our 56
field offices. We have increased the size of our National Cyber
Investigative Joint Task Force, which brings together 19 law
enforcement, military, and intelligence agencies to stop
current attacks and prevent future attacks.
And cyber crime requires a global approach. And through the
FBI's 64 legal attache offices, we are sharing information and
coordinating investigations with our international
counterparts.
And at the same time, we recognize that the private sector
is the essential partner to protect our critical infrastructure
and to share threat information. We have established several
noteworthy outreach programs, but we must do more. We need to
shift to a model of true collaboration and build structured
partnerships within the government, as well as in the private
sector.
Turning finally to the FBI's criminal programs, the FBI's
responsibilities range from complex white-collar fraud to
transnational criminal enterprises and from violent crime to
public corruption. Given limited resources, we must focus on
those areas where we bring something unique to the table. For
example, violent crime and gang activity continue to exact a
high toll in our communities, and through Safe Streets and Safe
Trails Task Forces we identify and target the most dangerous of
these criminal enterprises.
At the same time, the FBI does remain vigilant in its
efforts to find and stop child predators. Our mission is
threefold. First, to decrease the vulnerability of children to
exploitation. Second, to provide a rapid, effective response to
crimes against children. And third, to enhance the capabilities
of State and local law enforcement through task force
operations such as the Innocent Images and Innocence Lost
initiatives.
Now let me turn and spend a moment discussing the recent
public disclosure of highly classified national security
programs. The highest priority of the Intelligence Community is
to understand and to combat threats to our national security,
but we do so in full compliance with the law. We recognize that
the American public expects the FBI and our Intelligence
Community partners to protect privacy interests, even as we
must conduct our national security mission. The FISA Court has
approved both programs, and these programs have been conducted
consistent with the Constitution and the laws of the United
States. And the programs have been carried out with extensive
oversight from courts, independent inspectors general, and
Congress.
These programs do remain classified today, so there are
significant limits on what we can discuss this morning in open
session. But I do understand that there have been classified
briefings on these programs for this Committee and for the
House at large, and I hope that you have been able to attend
it, and if not, will be able to attend such a briefing from the
Intelligence Community regarding both the focus, the strictures
on, and the legality of these programs.
As to the individual who has admitted making these
disclosures, he is the subject of an ongoing criminal
investigation. These disclosures have caused significant harm
to our Nation and to our safety. We are taking all necessary
steps to hold the person responsible for these disclosures. As
this matter is actively under investigation, we cannot comment
publicly on the details of the investigation.
Now in closing, I would like to turn to sequestration. The
impact of sequestration on the FBI's ability to protect the
Nation from terrorism and crime will be significant. In 2013
the FBI's budget was cut by more than $550 million due to
sequestration, and in 2014 proposed cuts will total more than
$700 million. The ongoing hiring freeze will result in 2,200
vacancies at the FBI by the end of this fiscal year, with 1,300
additional vacancies in 2014.
I have long said that our people is the Bureau's greatest
asset. Additional operational cuts will impact the FBI's
ability to prevent crime and terrorism, which will impact the
safety and security of our Nation. We do understand the need
for budget reductions, but we would like to work with the
Committee to mitigate the most significant impacts of those
cuts.
Chairman Goodlatte, Ranking Member Conyers, Members of the
Committee, I want to thank you again for your support of the
FBI and for its mission. Our transformation over the past
decade would not have been possible without your cooperation,
and I look forward to any questions you may have. Thank you.
Mr. Goodlatte. Thank you, Director Mueller.
[The testimony of Mr. Mueller follows:]
__________
Mr. Goodlatte. Before we begin the questions portion of the
hearing, I want to remind Members of the Committee that
although certain classified programs were publicly leaked last
week, that does not mean that they have been declassified.
Members who may choose to question the Director about these
programs should exercise caution in how they phrase their
questions in due regard for their classification and appreciate
the Director's very limited ability to speak to the programs in
an unclassified setting.
We will now proceed under the 5-minute rule, and I will
recognize myself for 5 minutes.
Mr. Director, the recent revelation of the NSA data
collection programs has led to a great deal of debate both in
Congress and in the public. I know there is very little you may
be able to say in a public setting, but to the extent you can,
please explain to this Committee why you think these programs
are important and how they protect the American people from
terrorism. Do you share the concerns of many Members of
Congress, including myself, and American citizens, that civil
liberties need to be protected in the operation of these
programs?
Mr. Mueller. Well, let me start by saying that the
challenge in a position such as I have held for the last 11
years is to balance, on the one hand, the security of the
Nation, and on the other hand, the civil liberties that we
enjoy in this country. And there is not a day that goes by that
we don't look at some issue that raises that balance. One of
the things we do insist upon and assure, and that is any
endeavor we undertake addressing national security is legal.
In this particular case, the programs to which you refer,
the legality has been assured by the Department of Justice. The
FISA Court has ruled on these two programs, monitors these two
programs, and, again, has assured the legality of the efforts
undertaken in these two programs.
And lastly, I will say in response to what Ranking Member
Conyers said in terms of a debate, Congress has been briefed,
as has been pointed out, has been briefed over the years, was
briefed prior to the 2009 re-up, was briefed before the 2000
re-up, in an effort by the Administration to make certain that
Congress knew and understand the efforts that were being taken
under Section 215. And if there were a change to be made by
Congress, if the line is to be drawn differently, so be it. We
would follow that to the letter of the law. But I repeat that
in both of these programs passed by Congress they have been
approved and the legality assured by the Department of Justice,
by the FISA court, and have been briefed and----
Mr. Goodlatte. Let me interrupt you because we do need to
get a couple more questions in.
Mr. Mueller. Thank you.
Mr. Goodlatte. I think you've made your point on that. I'm
sure further discussion about it before the day ensues.
As you know, the Committee is investigating the use of the
Privacy Protection Act of 1980 to obtain a search warrant for
Fox News correspondent James Rosen's emails. In your experience
as a Federal prosecutor, as assistant to Attorney General
Thornburgh, as Assistant Attorney General of the Criminal
Division, and as FBI Director, when you authorize a search
warrant for a target of a criminal investigation, wasn't
prosecution of that target the objective?
Mr. Mueller. I would say no. Quite often in search warrants
there are--or affidavits in support of search warrants--there
are occasions where a person will be mentioned as having
culpability, but there will be no discussion or anticipation of
prosecution. That could be for a variety of reasons.
Mr. Goodlatte. Well, to that point, in the case in
particular we have got Mr. Rosen, and perhaps in other cases,
where you did not intend to prosecute. Did you characterize the
individual as a flight risk, as was done in the matter
involving Mr. Rosen? And did you delay notice of the search
warrant for 18 months, as was done in the case with regard to
Mr. Rosen? And it actually turned out to be 3 years because the
judge neglected to release the information until 18 months
after his order had required that it be done, but the Justice
Department requested 18 months in the first place.
Mr. Mueller. Yeah, I am not----
Mr. Goodlatte. Why would that be necessary if there were no
intention to prosecute?
Mr. Mueller. I am not familiar with the full extent of that
investigation in particular, all of the facts that were raised
either in the affidavit or in the discussion as to how one
would proceed to get the data that persons wanted. I can say
two things. One, that there was great scrutiny given at the
local level, I am sure, to what needed to go into the search
warrant and its affidavit, in particular with reference to the
judicial requirements for getting those particular records. And
secondly, that there is a protocol, longstanding protocol in
the Department of Justice that was adhered to in getting
approval for that particular action.
I know and you know that the Department of Justice is now
looking at this set of circumstances----
Mr. Goodlatte. Let me interrupt you and get one more
question in.
Mr. Mueller. All I want to say is that to the extent that
there are tweaks that need to be done, we are happy to abide by
those tweaks.
Mr. Goodlatte. Following the apprehension of Dzhokhar
Tsarnaev, some criticized the timing of the criminal complaint
against him and his initial appearance. We know the timing of
these acts is set forth by the Constitution and the rules of
criminal procedure. Do you believe these criminal rules are
well suited to intelligence gathering from a domestic terrorism
suspect, and should the Congress consider amending these rules
when we are faced with a domestic terrorism situation, whereas
in this case the questioning of this individual by the FBI
prior to him being given Miranda warnings short circuited your
opportunity to question him about imminent dangers, like other
potential sites, other suspected co-conspirators, and other
bombs that may have been in existence at the time, and
therefore very important that the defendant--the prospective
defendant be questioned?
Mr. Mueller. Any investigator would tell you or
interrogator would tell you, the longer you have, the more
information that you get. And particularly in this day and age,
where if you have access to the information on computers or
thumb drives or what have you, you will have a much better
opportunity to get appropriate questioning accomplished. On the
other hand, you have the dictates of the Constitution and the
applicable statutes.
In a very narrow sliver of cases, where it is terrorism,
where the threat is substantial, I would say that one could
look at opportunities for giving those questioners additional
time to extract information that may protect the public.
Mr. Goodlatte. Thank you.
My time has expired. The gentleman from Michigan, Mr.
Conyers, is recognized for 5 minutes.
Mr. Conyers. Thank you. We appreciate your presence here
today.
In the past week, many in the Administration have implied
that because they have briefed the Congress and this Committee,
that we are all complicit in the use of these surveillance
tactics. Can you acknowledge here this morning that your
briefing me and my staff does not constitute our assent or
agreement to these programs?
Mr. Mueller. The briefings that have been, continue to be
provided to Congress is to inform Congress of how these
programs are being applied, to what end they're being used, and
in order to establish a dialogue as to what, if any changes
need to be done to these programs, but also in furtherance of
the Congress' role as the oversight body. And consequently, I
don't think we look at the briefings as a form of agreement in
any way, shape, or form, but look at the briefings as our
obligation to inform Congress as to what is happening so if
Congress wishes to take steps to change the particular statute
and the applicability of a particular statute, then Congress
takes the steps to do that.
Mr. Conyers. The public's understanding of this program is
that the government collects these records. Let's take the
Verizon system. And they collect the records of every person in
the United States and retains them for some period of time, and
then queries a massive database when it has a specific concern
about one of us, any one of us. Is that understanding accurate?
Mr. Mueller. Within broad parameters, yes. But let me make
two points, if I could. First, that the particular databases of
metadata has no content whatsoever. We have no authority to get
content. What the statute, we believe, and the FISA Court has
allowed is the accumulation of metadata; that is the fact of a
telephone call, the numbers called, and the time and length of
those calls, and there are cases that where that has been
instrumental in identifying individuals who sought to harm our
country.
Mr. Conyers. Yes, I know that, that the content isn't kept.
But to have that information of who called whom, the length of
time, probably where the parties were, do we need--does that
serve any real purpose? I mean, is that--this puts everybody in
the United States of America subject to this kind of content.
We have a feeling, at least some of us, that it's not
necessary, nor does it serve a legitimate legal protective
purpose.
Mr. Mueller. Would you indulge me, because I want to go
back to what occurred 9/11, and which has some bearing on this.
Before 9/11, there was an individual by the name of Khalid al-
Mihdhar, who came to be one of the principal hijackers. He was
being tracked by the intelligence agencies in the Far East.
They lost track of him. At the same time, the intelligence
agencies had identified an al-Qaeda safehouse in Yemen. They
understood that that al-Qaeda safehouse had a telephone number,
but they could not know who was calling into that particular
safehouse.
We came to find out afterwards that the person who had
called into that safehouse was al-Mihdhar, who was in the
United States in San Diego. If we had had this program in place
at the time, we would have been able to identify that
particular telephone number in San Diego.
Mr. Conyers. Yes. I'm almost out of time.
Mr. Mueller. I understand, but I ask indulgence just to
finish because it's a critical point as to why we have this
program and how important it is.
Mr. Conyers. All right.
Mr. Mueller. If we had the telephone number from Yemen, we
would have matched it up to that telephone number in San Diego,
got further legal process, identified al-Mihdhar.
One last point. The 9/11 Commission, itself, indicated that
investigations or interrogations of al-Mihdhar, once he was
identified, could have yielded evidence of connections to other
participants in the 9/11 plot. The simple fact of their
detention could have derailed the plan. In any case, the
opportunity was not there. If we had had this program that
opportunity would have been there.
Mr. Conyers. Mr. Chairman, let me just finish.
I am not persuaded that that makes it okay to collect every
call. Look, the Verizon system, how can the government collect
information on all of the Verizon system if the statute limits
the government to those records that are relevant? If they are
relevant, relevant under your interpretation means that
anything and everything goes, and that's what you did in the
example that you just gave me.
Mr. Goodlatte. Let me say, the gentleman's time has
expired. We are going to try to be very close to the 5-minute
rule. And it is an excellent question. We will have to wait for
the answer. We will submit the questions in writing to the
Director and ask him to respond in writing to those that we
don't have time to ask today.
The Chair now recognizes the gentleman from Wisconsin, Mr.
Sensenbrenner, for 5 minutes.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
To begin, Director Mueller, let me commend you for your 12
years of very dedicated service in an agency that obviously had
to change its targeting and its mission as a result of 9/11.
And you and I got our jobs as leaders, me as Chairman, about
the same time. You're about ready to retire. I was retired as
Chairman in 2007, but I'm not about ready to retire from
Congress or asking questions. So I'll begin.
Let me start out with two quotes from then Senator Barack
Obama. First is, ``President Bush has put forward a false
choice between the liberties we cherish and the security we
provide. I will provide our intelligence and the law
enforcement agencies with the tools they need to track and take
out the terrorists without undermining our Constitution and our
freedom.''
The second quote, which comes from the same speech in
Washington of August 1st, 2007, ``The Bush administration acts
like violating civil liberties is the way to enhance our
security. It is not. There are no shortcuts to protecting
America.'' Unquote.
Now, Director Mueller, you have served both under President
Bush and through the transition to President Obama. What new
privacy protections did the FBI implement under President
Obama, and were those in place when the FBI applied for the
FISA application that was leaked to the Guardian?
Mr. Mueller. Well, we have internally a privacy officer.
The Department of Justice has a privacy officer. I do not know
specifically, but in programs such as this or other areas where
we initiate collection of information, it goes through our
privacy shops.
Mr. Sensenbrenner. That's not my question, with all due
respect. Were there new privacy protections that were
implemented by the new President, Barack Obama, after January
20th, 2009, when he took office?
Mr. Mueller. Are you asking were there?
Mr. Sensenbrenner. Yes.
Mr. Mueller. I'm not certain of the timing of additional,
whatever additional privacy protections were instituted, if
there were.
Mr. Sensenbrenner. Okay. So there might not have been.
Well, I am very interested in your comment about the al-
Mihdhar case, which was somebody who got on the radar screen
before 9/11 and before the PATRIOT Act. Section 215 of the
PATRIOT Act, which I had a hand in drafting, requires that the
business records FISA warrants, or orders, be directed solely
at foreigners who are the targets of an authorized terrorism
investigation and not on United States citizens unless they are
contacted or involved with foreigners.
Now, I don't think that Section 215 would have put a crimp
on identifying al-Mihdhar if that was in place before September
11th. But my question is, with respect to the FISA order that
was leaked to the Guardian, is with the narrowness that Section
215 is, and as I have described it. How can Section 215 be
utilized to scoop up the phone records of American citizens who
are not in communication with a foreigner who is an object of
an authorized terrorism investigation?
Mr. Mueller. To a certain extent I have to defer to the
Justice Department on the legal theory and the FISA Court. I
can tell you generally that there is the belief that the body
of telephone toll data has in that information that is
relevant, may be relevant in the future, has been relevant in
the past, and that its collection in this matter thereby
satisfies the requirement for relevance according to the court.
Mr. Sensenbrenner. Well, you know, the question of
relevance is the same type of question that could be issued
either with a grand jury subpoena or with a national security
letter without involving the PATRIOT Act. I hear you involved
the PATRIOT Act in something that is done in secret, and there
are no due process protections in place because the recipient
of the FISA warrant can't tell what records he's turned over.
And that's not the case with either national security letters
or grand jury subpoenas.
Now, I guess what my concern is, is that there really isn't
any way for anybody whose records are turned over to approach
the FISA Court or any other court, because they don't know
about it, to try to get the order quashed. And an FBI agent was
the one that signed the affidavit to get that order.
And my time is up.
Mr. Mueller. Well, let me, if I may just follow up with one
observation. And that is, as we all know, these particular
records are not covered by the Fourth Amendment. The Supreme
Court has held that to be the case. And secondly, the
determination as to the legality and that standard has been
addressed by the FISA Court in the affirmative to support this
particular program.
Mr. Goodlatte. The Chair recognizes the gentleman from New
York, Mr. Nadler, for 5 minutes.
Mr. Nadler. Thank you.
Let me just suggest, by the way, that that 1979 decision of
the Supreme Court that a phone bill is not protected by the
Fourth Amendment might not apply to a lot of the stuff today
given how pervasive and privacy invading this metadata has
become, compared to what could be done in 1979. So I wouldn't--
I don't know that I would totally rely on that precedent to do
everything that is being done.
But let me ask you the following. Under Section 215--and I
also would like to associate myself with the remarks that a
dragnet subpoena for every telephone--every telephone record,
et cetera, every email record--although I know they don't do
that anymore, but they could again tomorrow, and they did do
it--certainly makes a mockery of the relevance standard in
Section 215.
If everything in the world is relevant, then there is no
meaning to that word. Now, some of us offered amendments to
narrow that several years ago, and in retrospect maybe we
should have adopted those amendments. But that's no excuse for
a misinterpretation of relevance to the point that there is no
such meaning to the word.
Now, secondly, under Section 215, if you've gotten
information from metadata and you as a result of that think
that, gee, this phone number, 873, whatever, looks suspicious
and we ought to actually get the contents of that phone do you
need a new specific warrant?
Mr. Mueller. You need at least a national security letter.
All you have is a telephone number. You do not have subscriber
information, so you need the subscriber information. You would
have to get probably a national security letter to get that
subscriber information. And then if you wanted to do more----
Mr. Nadler. If you wanted to listen to the phone?
Mr. Mueller. Then you have to get a particularized order
from the FISA Court directed at that particular phone and that
particular individual.
Mr. Nadler. Now, is the answer you just gave me classified?
Mr. Mueller. Is what?
Mr. Nadler. The answer you just gave me classified in any
way?
Mr. Mueller. I don't think so.
Mr. Nadler. Okay. Then I can say the following. We heard
precisely the opposite at the briefing the other day. We heard
precisely that you could get the specific information from that
telephone simply based on an analyst deciding that and you
didn't need a new warrant. In other words, that what you just
said is incorrect. So there's a conflict----
Mr. Mueller. I'm not certain it's the same--answer to the
same question. I'm sorry, I didn't mean to----
Mr. Nadler. Well, I asked the question both times and I
think it's at same question. So maybe you'd better go back and
check because someone was incorrect.
Mr. Mueller. I will do that. That is my understanding of
the process.
Mr. Nadler. Okay. I don't question it's your understanding.
It was always my understanding. And I was rather startled the
other day. And I wanted to take this opportunity to----
Mr. Mueller. I would be happy to clarify it.
Mr. Nadler. Thank you.
Second, we have heard from Director--DNI Clapper of the
terrible, horrible damage to national security done by, what's
his name, Snowden, by releasing this information. I'd like to
you comment on that. I don't understand how national security
was breached.
We knew publicly, from 2006 at least, from the reporting in
the USA Today on May 11th, 2006, about the--basically the
existence of a massive NSA database of metadata from domestic
phone calls. That was reported back then. We debated it in this
Committee and on the floor of the House in connection with the
reauthorization, I believe in 2012 and in 2008. At least
several times. So that was known publicly.
The only thing that was not known as far as I can tell that
was revealed was the specifics of that court order, which tell
us nothing other than what was already public. Plus you could
have it for whatever length of time it was. And even the stuff
about Section 702, we debated that at length in the FISA
Amendments Act debate a couple years ago, so that was pretty
known. The only thing that may not have been known is the exact
technical capabilities.
But my assumption--and tell me why you think this is not
correct--is that any terrorist or would-be terrorist with half
a brain in his head would assume that all electronic
communications are vulnerable and may be subject to
interception. And how does what what's his name just released
add to that assumption or change that assumption?
Mr. Mueller. And let me address the last point, because I
often hear that any terrorist who has a brain would figure it
out. The fact of the matter is there are terrorists and there
are terrorists. And I can speak generally, but I cannot going
into some of the more details as to specific harm to national
security. But I can tell you every time that we have a leak
like this, if you follow it up and you look at the intelligence
afterwards, there are persons who are out there who follow this
very, very, very, very closely and they are looking for ways
around it.
One of the great vulnerabilities that terrorists understand
is their communications, and they are consistently looking for
ways to have secure communications. Any tidbit of information
that comes out in terms of our capabilities and our programs
and the like they are immediately finding ways around it.
And if we lose, as we--one of my problems is that we are
going to lose because we've got chat, VoIP, a number of other
things, lose our ability to get their communications, we are
going to be exceptionally vulnerable. I ask you to get the
more--the classified briefing as to more specifics. But nobody
be misled in this: This hurts national security.
Now, the issue is, how do you balance that against privacy?
I understand that. And you may come down differently than
others, than the FISA Court, than me, perhaps. But all I can
say is that there is a cost to be paid.
Mr. Goodlatte. The time of the gentleman has expired.
The Chair recognizes the gentleman from North Carolina, Mr.
Coble, for 5 minutes.
Mr. Coble. I thank the Chairman.
Mr. Director, again, thank you for your years of service.
I want to revisit Benghazi, Mr. Director. Some recent weeks
ago the former Secretary of State, Hillary Clinton, appeared
before a Senate hearing and she was asked about certain facts
that surrounded the Libyan tragedy, and she responded, what
difference does it make? Well, I'll take umbrage with that
response. Which I felt was insensitive and condescending. It
may make a great deal of difference.
Having said that, we have all seen, are familiar with
reports that the FBI's Evidence Response Team, the ERT, waited
in Tripoli for more than 2 weeks for access to Benghazi. Some
have said that this was due to bureaucratic entanglements. Do
you agree with that?
Mr. Mueller. I do not. We monitored the situation very
closely after that occurrence. We had persons ready to go.
Quite obviously we were in touch immediately with the State
Department requesting the opportunity to go. There were a
number of factors that made this as unique a situation overseas
as we have seen. This isn't the first bombing that we've had of
our embassies. East Africa, we had a number of years ago. But
we got our people in. In this case there were a combination of
factors that were the delay.
In Benghazi there is no law enforcement. Was not then. Is
not now. There is nobody that you can deal with in terms of
assuring your security.
Mr. Coble. Let me ask one more question.
Mr. Mueller. Secondly--pardon?
Mr. Coble. Go ahead.
Mr. Mueller. Secondly, the Libyan government. It is
dependent upon getting visas from the Libyan government and the
Libyan government then and today is still unstable and it's
very difficult to get any decisions made from a person who is a
decision maker in that arena. But I would say the bottom line
is to assure the security of our people when we went in. When
we could assure the security of our persons, we did go in and
do our onsite review.
Mr. Coble. Did you speak to anyone in the Libyan government
about the delay?
Mr. Mueller. We were talking through our Ambassador. I
think it was the Ambassador there at the time pushing hard. I
know the State Department was pushing hard. We were pushing
hard. But the two concerns, the safety and the reluctance of
the government to move quickly on this, inhibited our ability
to do what we wanted to do.
Mr. Coble. Mr. Mueller, as a former prosecutor I know you
are familiar with the importance of preserving a crime scene in
order to assure that you can collect the maximum amount of
evidence. Having said that, once the ERT arrived in Benghazi,
how quickly were they able to secure that scene and begin
collecting evidence?
Mr. Mueller. Well, the ERT team went in with a military
component with support from air assets and others. And I think
we did it within a 24-hour period.
Mr. Coble. Would it be fair to say that the 2-week delay in
the FBI's ability to secure the scene of the attacks led to the
corruption of the scene?
Mr. Mueller. I would say that--I'm not certain I would say
corruption of the scene. I would say that you always want to
get to the scene as soon after the occurrence. Certainly, the
scene had been entered by any number of people and it was not
as pristine as we would like. Absolutely.
Mr. Coble. Mr. Mueller, would it also be fair to say that
the corrupted scene led to less evidence collection since we
cannot establish the chain of custody? That is to say that the
same evidence at the scene was the same when you all began as
was 2 weeks prior?
Mr. Mueller. Oh, I think yes, I would say yes. The delay
adversely impacted the ability to gather evidence in a variety
of ways and adversely impacted the investigation.
Mr. Coble. Has this put a damper on our ability to pursue
leads?
Mr. Mueller. I'm sorry?
Mr. Coble. Has this put a damper on our ability to pursue
leads and/or suspects?
Mr. Mueller. Well, you don't know what you don't know, what
you may have missed. I can tell you that the investigation is
ongoing. We've had some success that I can't get into today.
But it is a very difficult operating environment, not just at
the scene itself, but obtaining the cooperation of witnesses
and others who may have information relating to the----
Mr. Coble. My time is about up. Mr. Mueller, this Benghazi
tragedy still hangs in my craw. I'm not directing this at you,
but I'm directing it at somebody. We still don't know all the
facts. I don't suggest there is a cover-up but it has the
trappings of a cover-up. And I repeat it hangs in the craw. As
my late granddaddy used to say: It makes my coffee taste bad in
the morning. But we will see what happens. Thank you for being
with us.
Mr. Goodlatte. The Chair thanks the gentleman and
recognizes the gentleman from Virginia, Mr. Scott, for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman.
Director Mueller, thank you for your very distinguished
service.
As you know, people acquiring firearms can, with the gun
show loophole and a lot of other exceptions, easily obtain a
firearm without a criminal background check. What difference
would a universal or virtually universal background check make?
Mr. Mueller. Well, at the outset it would mean fewer
persons who have the characteristics, ability and
characteristics, would be in possession of guns.
Mr. Scott. On the issue of these telephone records, you've
indicated how the acquisition of all telephone records helps to
protect us from terrorism. Is it true that this data can be
used for things other than terrorism?
Mr. Mueller. No.
Mr. Scott. You can't use it for a criminal investigation?
Mr. Mueller. No.
Mr. Scott. You can't use it if the purpose of the Section
104 wiretap is a significant purpose, that terrorism is a
significant purpose, there may be some other purpose?
Mr. Mueller. I'm sorry, I missed the question, sir.
Mr. Scott. Under Section 104 you can get the warrant, you
have to show that a significant purpose of the surveillance is
to obtain foreign intelligence information. ``Significant
purpose'' was the change in the law from ``the purpose,'' which
suggests that it's the primary purpose. If it's just a
significant purpose, that would leave open the idea that there
is another purpose for getting the information. When I asked
Attorney General Gonzales that question, what other purpose you
could be using these warrants for, he blurted out criminal
investigations, of course without the normal probable cause and
everything else.
Is the acquisition of this information, this metadata,
solely for protection against terrorism or can it be used for
something else?
Mr. Mueller. Terrorism.
Mr. Scott. Now, if you tripped over some other things, like
you noticed a crime, could you use it in a criminal
prosecution?
Mr. Mueller. No. Not that I'm aware of. The strictures are
that you cannot. Now, there may be a way to go to the court if
there was an egregious crime that you get some permission of
the court, but the court would have to authorize it.
Mr. Scott. Well, the exclusionary rule works because you
don't illegally obtain evidence because if you got it you can't
use it. There is a suspicion that some of us have that you're
getting this information and you can use it, if you've got one
of these task forces and one of the guys can get a FISA
warrant, other guy can't, will you go get the FISA warrant,
we'll track down, because you've got one of the guys in the
place is an agent of a foreign government, so we can go listen
in and see if we can't trip over a crime, then use the
evidence. You're saying you can't use it for anything other
than terrorism?
Mr. Mueller. You cannot under the statute. If you are
talking about 215, it says reasonable, articulable suspicion
that a particular telephone number was associated with al-Qaeda
or a foreign power. It's very simple.
Mr. Scott. Yeah, significant purpose. Not primary purpose.
Mr. Mueller. I'm uncertain on--I'd have to go back----
Mr. Scott. We changed it from primary purpose to
significant purpose which just opened up the idea that you
could have some ulterior motive.
Mr. Mueller. Well, on that particular language and language
change, if you allow me to get back to you, I'd like to give
some thought to that.
Mr. Scott. And so that this information that we're getting
can only be used for terrorism? That's what we're hearing----
Mr. Mueller. Yes, under 215, yes.
Mr. Scott. In the IRS situation there is some question as
to whether some progressive groups were also targeted for
scrutiny under Section 501(c)(4) abuse. But if it can be shown
that only groups targeted were targeted because of political
views, would that violate criminal law?
Mr. Mueller. I'd have to--that's speculative. Excuse me
just 1 second if I could.
I just wanted to check whether I was right on--I wanted to
check my answers on my previous--on your previous questions.
Thank you.
Mr. Scott. Okay. On the Boston bombing, obviously there was
information out there that you could have used. Do your limited
resources limit your ability to track down each and every lead
that you're given and compromise your ability to protect us
against terrorism?
Mr. Mueller. We get thousands upon thousands of terrorism
leads each year. The Boston office is up in that range of those
number, a thousand a year. In this particular case, though, I
do believe that when we got the lead on Tamerlan from the
Russians, that the agent did an excellent job in investigating,
utilizing the tools that are available to him in that kind of
investigation. As I think you're aware, he did all the records
checks. He went out to the--interviewed persons at the college
where Tamerlan was there for a period of time. Ultimately,
interviewed the parents. Interviewed Tamerlan himself. Sent the
information back to Russia. And on three separate occasions we
asked the Russians for additional information that might give
us indications or evidence that he was a terrorist.
So I think we did a thorough job in following that lead.
And at that point in time, I do not know that there was much
else that could be done within the statutes, within the
Constitution to further investigate him.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Goodlatte. The Chair recognizes the gentleman from
Ohio, Mr. Chabot, for 5 minutes.
Mr. Chabot. Thank you, Mr. Chairman.
Mr. Director, as Mr. Sensenbrenner did, I want to thank you
for your service over the years to our country. I also want to
disclose that I happen to represent Cincinnati, Ohio, where
some of the allegations of apparently rogue employees who were
allegedly acting on their own have--were originated.
But my questions, let me begin with this. The IRS, of
course, is privy to some of our citizens' most sensitive
information and it's tasked with applying the law in a fair and
impartial way. You would agree with that?
Mr. Mueller. Yes.
Mr. Chabot. Okay. However, the members of a tea party group
in my district received a letter asking some pretty invasive
questions, I believe. Providing all their Facebook and Twitter
information, for example. Any of their advertising. They
specifically mentioned a gentleman by the name of Justin Binik-
Thomas--although it says Bink, B-I-N-K, it's actually B-I-N-I-
K, I believe--who's just an ordinary citizen who didn't have
any connection with that particular organization that received
this inquiry from the IRS. And he also got no notification in
that matter at all.
They also got questions about providing a list of all the
issues that were important to that organization. And they
wanted to know what their position was regarding each issue.
And I am very concerned about the IRS' admitting to targeting
conservative groups and this overly invasive line of
questioning and request for information. It's really, I
believe, more like harassment rather than an appropriate
inquiry under 501(c)(4) status inquiries.
Now, the Attorney General announced back on May 14th that
he had ordered an investigation by the FBI. Has the FBI begun
that investigation now?
Mr. Mueller. Yes.
Mr. Chabot. Okay. And I assume that you can't go into the
details of that because it's an ongoing investigation. Am I
correct on that?
Mr. Mueller. Correct.
Mr. Chabot. Okay. Now, the IRS Commissioner, Steven Miller,
initially blamed these actions, as I said, on two rogue
employees way out there in the Cincinnati office, so how could
we possibly know anything about that here in Washington,
basically. And he acted like nobody here in this city knew
anything it or was connected in any way with it.
That's become pretty clear at that point that the IRS in
Washington was involved in this. And I'd like to read a couple
of things here relative to Elizabeth Hofacre, who was one of
the Cincinnati employees, and some of the things that she has
indicated on the record. She said that the tea party cases, the
patriot cases, those types of organizations that were
questioned by the IRS, that they were basically in a holding
pattern, their applications. She indicated that they were
basically in a black hole. She had been working for 11 years at
the IRS and she said the way the IRS handled the tea party
cases was unprecedented.
So unprecedented, which I think is pretty significant. She
said it was micromanaged to death by an IRS lawyer who worked
in Washington. Again, no Washington connection, of course, but
that's where this IRS lawyer was, here in Washington, D.C. And
back in July 2010 the IRS developed what was called a BOLO
list. Do you know what a BOLO list is?
Mr. Mueller. No, sir.
Mr. Chabot. Okay. Well, it stands for Be on the Look Out.
BOLO, Be on the Look Out. And it instructed----
Mr. Mueller. Well, I knew BOLO in the law enforcement
context. I didn't know whether you were using it in that
context.
Mr. Chabot. Yeah, it was used in that context to send
Hofacre applications from organizations involved with the tea
party movement. And she told congressional investigators that
she understood the purpose of the list was to target
conservative and Republican groups. Other political groups did
not get handled the same way, according to her. A USA Today
review of tax exemptions granted at the time showed dozens of
liberal groups got exemptions while tea party groups were on
hold.
And subsequently there was another BOLO criteria that came
down from D.C. talking about including groups whose issues
include government spending, government debt and taxes, and if
you're critical of the country or the direction that it's going
or the way it's being run. And, again, a lot of these things
sat in limbo for 27 months.
Will all these matters be investigated by the FBI no matter
how high up they go?
Mr. Mueller. I can specifically assert that all will. To
the extent that there is any indication of criminal misconduct,
we will follow the leads and the evidence wherever it takes us.
Mr. Chabot. Thank you.
Mr. Goodlatte. The Chair recognizes the gentleman from
North Carolina, Mr. Watt, for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman.
And thank you, Director Mueller, for your service over the
years. I think you have raised the standard very high and I
appreciate that.
I want to follow up on--in a response that you made to a
question Mr. Conyers gave you used the phrase that you thought
the American people were concerned about to what end they, the
programs, these two programs, are being used.
And I think that is absolutely the case. I think that was
the case when we were debating the PATRIOT Act and the
reauthorization of it. And the concerns that a number of us
were raising at that time was to what end would these programs
be used.
Congressman Scott has questioned you about some of those
ends. And what I want to do is frame this based on the four
things that you mentioned in your opening statement. You talked
about terrorism. You talked about national security. You talked
about cybersecurity. And you talked about criminal activity in
your description of cybersecurity, and you said that that
required public-private interaction. And all of these things
have become more global, I take it, all four of those
categories have become more global.
So the question I'm raising is, is there a distinction
between terrorism, the purposes for which information can be
used in these programs for terrorism purposes--that's why the
statutes were put in place--is there a distinction between
terrorism and national security?
Mr. Mueller. I think terrorism as defined is a threat to
national security, in and of itself.
Mr. Watt. Okay, but does national security include some
things outside terrorism?
Mr. Mueller. Include the what?
Mr. Watt. Some things that are outside the category of
terrorism?
Mr. Mueller. Terrorism is a separate category, but you have
cyber terrorists, you have individuals, and one of the concerns
we have, quite obviously in the future----
Mr. Watt. What about trade, trade as a matter of----
Mr. Mueller. Trade----
Mr. Watt [continuing]. National security, I take it----
Mr. Mueller. I can tell you if--I mean, one of the
hypotheticals is a terrorist attack, cyber terrorist attack on
Wall Street. That is trade. To the extent that you would
disrupt that, then absolutely, that is a matter of national
security.
Mr. Watt. So I think what--you were right that the public's
concern here is what is the overlap between these four
categories and to what extent can this information that is
being gathered be used for things that--in the gray areas here.
I was uncomfortable that we got so preoccupied with
terrorism that we compromised, I thought, personal liberties,
but assume that we got comfortable with that after 9/11. What
if you found something in this information that's gathered
under these two programs that related more to criminal
activity, serious criminal activity, the question is can that
be used, anything you find in these phone dragnets, can it be
used in a criminal investigation if you decide that it's not
terrorist related necessarily, but could be national security
related or cybersecurity related? What is the dividing line
between the use of these things other than an individual
agent's discretion or whatever an individual agent represents
in an affidavit to the court?
Mr. Mueller. Let me start by the use of the word dragnet. I
do not believe----
Mr. Watt. I'm sorry. And I didn't intend to use it either.
I really apologize. It's data gathering.
Mr. Mueller. It's data gathering; it is not content. The
statute is fairly specific that it's attributable to terrorism,
and the traditional what one would understand to be terrorism,
al-Qaeda and its like, and other terrorist groups that are
specifically mentioned.
As I tried to point out before, the program is set up for a
very limited purpose, in a limited objective, and that is to
identify individuals in the United States who are using a
telephone for terrorist activities and to draw that network.
Mr. Watt. Is cyber terrorism?
Mr. Mueller. If there was----
Mr. Watt. Is cyber terrorism?
Mr. Mueller. Sniper?
Mr. Watt. Cyber?
Mr. Mueller. Cyber? It can be, it can be. But not as
distinguished--I'd have to look at that, but I don't believe it
would be covered in this particular statute. I tried to leave
out the possibility that if there were a piece of evidence that
was applicable to a homicide or substantial, the only way for
that piece to be utilized was go back to the court and get the
approval of the court to utilize this information in a way that
was not covered in the original order.
Mr. Goodlatte. The time of the gentleman has expired.
The Chair recognizes the gentleman from Alabama, Mr.
Bachus, for 5 minutes.
Mr. Bachus. Director Mueller, I also want to commend you on
your service to our country.
Mr. Mueller. Thank you.
Mr. Bachus. And let me ask you, I have been reading about
James Rosen case, the reports on it, and I find a great deal of
confusion over what the Justice Department and the FBI have
done and what they haven't done. You're familiar with the
search warrant and the affidavit?
Mr. Mueller. In that particular case?
Mr. Bachus. Yes.
Mr. Mueller. No, I'm not that familiar with it.
Mr. Bachus. All right. Are you familiar--I mean, at the
time the search warrant was issued, Stephen Kim had already
been identified as the leaker of the information. Are you aware
of that?
Mr. Mueller. I am not aware of the timing, I know this was
3 years ago.
Mr. Bachus. Yeah. No, actually in 2010, yeah, yeah, that's
right, he had already been identified, I'll just tell you, if
you read the affidavit, clearly he had been identified as the
leaker. And I know that Attorney General Holder said he didn't
know of a prosecution, you know, or wasn't a party to a
prosecution of the press. But if you read the search warrant, I
know that it talks about Mr. Rosen as being perhaps an aider or
abetter or co-conspirator. But if you read the affidavit, he
clearly was encouraging Stephen Kim to leak classified
information. I mean, there is quite a bit of that. In fact he
was concealing his identity and telling Kim to conceal his
identity.
Now, also according to this affidavit--and I take this as
being true, I know of nothing in this affidavit that has been
disproved--this disclosure threatened our national security,
clearly, and it probably or could have cost the life of our
intelligence source in North Korea, because I'm not even sure
if the person is still alive.
Now, just assuming that what I say--that assuming the
affidavit is correct and that James Rosen was doing all of this
information, daily contact with Kim, I know that there has been
accusations that the Privacy Protection Act was violated. But,
you know, it says that protects journalists from being
compelled to turn over to law enforcement any work product or
documentary materials, including sources, before the
information contained in these materials is disseminated.
Now, it was disseminated a year before. So that I don't
think is valid. It also prevents investigators from searching
newsrooms to uncover information or sources that a news
organization has assembled. I don't think that applies in this
case. I know of no search of any newsroom or any work product.
But it says there is no protection if there is probable
cause to believe the person possessing the materials has
committed or is committing a crime to which the materials
relate to, including receipt, possession, or communication of
classified material.
Now, this affidavit contains 35 pages of very active
recruiting of the State Department employee, advising him, the
reporter, to use a fake email. And the search warrant was to
Google. So, you know, it's has been said that they should
take--the government should take reasonable steps to obtain the
information through alternative sources or means than the
reporter. Well, I would think Google would be an alternative
source.
And there is a clear presumption--well, there isn't now,
but there is a presumption I think again seizing a reporter's
work product. But I would ask you to read that affidavit. And
my point is simply, from reading the affidavit, I would think
it's clearly within the right of the government to prosecute
this reporter.
Mr. Mueller. I can tell you two things. One, I did briefly
review the affidavit when it--when the issue arose, so I am
somewhat familiar with it. I can tell you that the focus of our
investigations are on the person within the government has
leaked the information.
Mr. Bachus. Sure.
Mr. Mueller. That is the focus of our investigations. And
thirdly, I would say that given the issues that have been
raised, that it is appropriate to go back and look at the
statute that was applied to that search warrant and to the
protocols that have been established in our exercise of our
investigative ability when it comes to this tension between the
First Amendment, on the one hand, and stopping leaks on the
other hand.
Mr. Goodlatte. The time of the gentleman has expired.
Mr. Bachus. Let me just--Mr. Chairman--there was no
prosecution----
Mr. Goodlatte. The time of the gentleman has expired. The
Chair recognizes the gentlewoman from California, Ms. Lofgren,
for 5 minutes.
Ms. Lofgren. Thank you, Mr. Chairman.
And thanks to you, Mr. Director, for your years of service
to our country. I remember so well seeing you right after 9/11.
You had been on the job just a handful of days. And you have
certainly served our country well and honorably, and I thank
you for that.
I do have, following up Congressman Bachus' questions, I do
have concerns about our posture relative to the press. And I
wanted to talk about the issue of the phone numbers for the
Associated Press or Associated Press reporters.
The Department of Justice recently let AP know that it had
subpoenaed the records for 20 phone numbers as part of a leak
investigation. And the AP has said that approximately 100 of
its reporters use these phones on a regular basis.
Now, one of the phones was the AP's primary number in the
House of Representatives press gallery and used by many
reporters, not just the AP. And this raises concerns not only
about the First Amendment, but also about separation of powers.
Certainly it is likely that many of the calls made by these
phones were with congressional staff or Members of Congress and
likely irrelevant to the leak case, but certainly do raise
issues of speech and debate.
I am wondering, in the Department of Justice, the Attorney
General has to personally sign off on subpoenas for reporters.
In this case, since the Attorney General recused himself, the
Deputy Attorney General apparently signed off. Who at the FBI
needs to sign off on a subpoena request like this before it
goes over to the Justice Department? Is that you?
Mr. Mueller. No. It is at the Assistant Director level, if
I'm not mistaken. I'd have to get back do you specifically.
But I believe, depending on the context and what is
ordered, it would be the Assistant Director in charge of the
particular division that is doing that. Generally it is the
Assistant Director that handles the leak investigations.
Ms. Lofgren. In a case like this would there be at that
level consideration of the implications for chilling First
Amendment rights, and would there also be an analysis of the
speech and debate implications and the separation of power
implications?
Mr. Mueller. I think the flag would be raised on both of--
certainly it's a leak investigation. Any leak investigation you
know that you're in an environment where there are competing
tensions. Any time you come across anything that implicates the
legislature and Congress in some way, then that sends up a red
flag and requires additional scrutiny and decision as to who
to--or how the investigation goes. And then you absolutely want
to be with Assistant United States Attorney handling the case
and deciding what steps to be taken.
Ms. Lofgren. We would assume then in this case that the
Department of Justice and the FBI decided it was okay if
Members of Congress in the legislative branch were the subject
of your inquiry because of the location of this phone call in
the House gallery?
Mr. Mueller. I'm not certain that that in and of itself,
the fact that there is this one telephone number that is a main
number would be sufficient to raise a flag of, okay, we're
going to get congressional conversations across this line. And
it's not across this line. It's not that at all. Because
remember it's the toll records, it's a request for toll
records, not conversations themselves.
Ms. Lofgren. In terms of investigating leaks of classified
information, certainly that's a worrisome issue. But why did
you think it was necessary to seek records for so many
telephones used by so many reporters in the AP case? Obviously
many of the records under this subpoena wouldn't have relevance
to the leak investigation. Did the FBI have a process for
minimizing the collection of irrelevant records from the
subpoena or did all the data get uploaded into FBI databases
regardless of relevance?
Mr. Mueller. Well, we are adapting, let me just say
adapting special procedures to assure that the records are
protected. In terms of the numbers, I'd have to leave that to
the Department of Justice and it's an investigative--it's in
the midst of investigation still. I will tell you that I do
believe that there was a substantial effort made to minimize
the request.
Ms. Lofgren. Let me just close with this. In order to get a
subpoena for the records of the reporters, they would have to
be implicated in this leak investigation. Is it the FBI----
Mr. Mueller. Did you say they would have to be implicated?
Ms. Lofgren. The reporters. Is it the FBI practice to
consider reporters, editors, and publishers who print stories
about classified government matters as criminals? And how many
times since you've been the FBI Director has the FBI sought
reporters' work materials or communications with search
warrants alleging that they are criminals?
Mr. Goodlatte. The time of the gentlewoman has expired, but
the Director may answer the questions.
Mr. Mueller. Well, we quite obviously don't consider that
category that you listed criminals in any way, shape, or form.
Our focus is on identifying that individual who has those
secrets and to whom that person has given the secrets. Part of
that investigation goes to show the contacts between the person
who is leaking the materials and the person publishing the
materials. If you go to court on this you have to show that
this particular set of materials that were leaked went to a
particular person for publication. But the focus is on the
person who is doing the leaking.
And the last part, I can't recall.
Ms. Lofgren. Could you get back to us on that?
Mr. Mueller. Yes, ma'am.
Ms. Lofgren. Thank you.
Mr. Goodlatte. The gentleman from California, Mr. Issa, is
recognized for 5 minutes.
Mr. Issa. Thank you. And I would yield 10 seconds to the
gentleman from Alabama.
Mr. Bachus. Let me say I think the AP--what happened with
the AP is outrageous. What I was simply saying is there is a
totally different dynamic with Rosen.
Mr. Issa. Director, you used a term just now for the
gentlelady from California, you said we are in the process of.
Actually, no, you said we are, and you said it in the present
tense. It's fair to characterize that what you are really
saying is we are now in the process of protecting that which
has not been previously protected. In other words, since you
used the present tense, I'm assuming that before this became
very public, protections that will be in effect in the future
were not in effect?
Mr. Mueller. Well, we have protection of all of our
investigations. Some investigations are protected more than
others.
Mr. Issa. But, Director, I just want to hold you to the
explicitness of your word, if I may. You said it in the present
tense. So is it fair--yes or no--is it fair for me to assume
that there are additional efforts now underway that will be
implemented?
Mr. Mueller. Yes, yes.
Mr. Issa. Thank you. At some time in the past was James
Rosen a subject of an investigation as to criminal activity?
Mr. Mueller. Not to my knowledge.
Mr. Issa. Is he now a suspect in a criminal investigation?
Mr. Mueller. Not to my knowledge.
Mr. Issa. Thank you. So a warrant or any other document
naming him as a suspect of a criminal investigation would be
false?
Mr. Mueller. Well, I don't think there is such a warrant
out there.
Mr. Issa. Okay. So any kind of documentation that alleged
that he was involved in that would be a false statement? I just
want to follow up on what Mr. Bachus said that, you know----
Mr. Mueller. I know--I think I know where you're going.
Mr. Issa. Will you get me there?
Mr. Mueller. We're not all the way there. The colloquy and
questions that you ask I am comfortable with. When you go and
say conduct described in a particular entity which could or
could not be subject to ultimately a prosecution.
Mr. Issa. Okay. But it's fair to say he wasn't a suspect.
Mr. Mueller. No.
Mr. Issa. And we'll let the words of some documents speak
for itself.
Today are you using all necessary and available resources
to apprehend those people responsible for the murders in
Benghazi.
Mr. Mueller. Yes.
Mr. Issa. To your knowledge, are the CIA, NSA, and other
appropriate overseas assets being used to try to find those
responsible and bring them to justice?
Mr. Mueller. Yes.
Mr. Issa. Is there a reason, can you explain to us--this is
a little longer than the usual answer I'm sure--how it could be
that we've got videos of them, we've got knowledge of who many
of these people are, in some cases by name, and yet we haven't
found one of them in Libya or some other country? Isn't that
unusual, to have such a cold record as far as we know today?
Mr. Mueller. Let me explain in a couple of ways. Yes, it is
unusual to have such a cold record. As I articulated before,
this is a unique situation. We have had embassy attacks before.
We have had our colleagues in law enforcement and the
government helping us. There is no government to help us in
Libya. We don't have colleagues we can go to. And so it is
unique. But----
Mr. Issa. But you have had access to the site and to people
there and you do have the ability to get into Benghazi, if
absolutely necessary, either you or agents on our behalf.
Mr. Mueller. If absolutely necessary. But it is a very
hostile territory, as you can understand. Nonetheless, we have
video. We something there to work with, and I can tell you that
we have been working with it. And that quite obviously
individuals who may have participated against whom we may have
evidence, whether it be video or otherwise, we are pursuing.
Mr. Issa. Okay. Just two more quick questions. In your
lifetime of law enforcement, is it a practice that you believe
is appropriate to, when you have information and transcripts
and other collected data, to selectively make some of it
available in order to facilitate both public and witness
cooperation? In other words, do you put out certain
information, and, conversely, do you retain certain
information? In other words, you don't put out an entire
transcript or deposition, you don't put out all the evidence
you have, but you do put some of it out as a matter of course
in investigations in order to get people pointed. For example,
you put out a picture of somebody in the case of Benghazi and
yet you're retaining, I'm sure, some information that only you
know.
Mr. Mueller. We are making use of newer media, on Facebook
and the like, and in the course of our investigation in
Benghazi you can go on our Web site and find stills from the
videos.
Mr. Issa. Selectively picked while others were retained.
Mr. Mueller. Picked because we want people to come forward.
We did the same thing in Boston. The way we were able to
identify the two responsible there was to focus in on the--
identify them leaving the--at the scene and identifying them
afterwards and publicizing their pictures.
Mr. Issa. Lastly, the people responsible for Benghazi to
our knowledge are not U.S. persons. Therefore, if you knew the
location of them, wouldn't they be eligible for a presidential-
ordered drone strike, no matter what country they were in?
Chairman Goodlatte. The time of the gentleman has expired.
The Director will be allowed to answer the question.
Mr. Mueller. That could perhaps be answered by others than
I who are more familiar with the ins and outs of the regime for
undertaking such activity.
Mr. Issa. But to your knowledge, it would be consistent
with other drone strikes ordered by the President?
Mr. Mueller. Again, I'm not that familiar with other drone
strikes and I'd have to try to defer from answering that
particular question on lack of knowledge and probably legal
ability as well.
Mr. Issa. Okay. Well, with the Chairman's indulgence for 10
seconds, Director, I want to thank you for your long years of
service and for all that you've done for America. This is
always a tough place to come, but you're always welcome.
Mr. Mueller. Thank you, sir.
Mr. Goodlatte. The Chair thanks the gentleman.
The gentlewoman from Texas, Ms. Jackson Lee, is recognized
for 5 minutes.
Ms. Jackson Lee. Let me start by saying, Director, we have
interacted with each other for the past 11 years, and I want to
thank you for your service. You are particularly one that I
admire. Having graduated from the University of Virginia School
of Law, you are obviously a very wise man. So, fellow alum, let
me thank you and know that we will show no bias this morning,
but I do want to thank you for your service.
One of the points that seemingly has not penetrated into
this Committee is the enormous hit that the FBI is going to
take on sequestration. You mentioned $550 million, $700 million
in 2014, the other was 2013. A loss of 2,200, I think you said,
1,400.
That is going to be somewhat somewhat devastating, is that
correct?
Mr. Mueller. Yes.
Ms. Jackson Lee. And the FBI has had a vigorous influence
on the civil rights investigations of America. Yesterday was
the 50th anniversary of the death of Medgar Evers. Would that
impact a variety of responsibilities that the FBI has,
including civil rights enforcement?
Mr. Mueller. I can't go that far because let me tell you
that when we get faced with cuts we prioritize. We would not
cut counterterrorism, we would not cut counterintelligence, we
would not cut cyber. The two principal criminal programs are
public corruption and civil rights. They will be----
Ms. Jackson Lee. So you would be tight, you would be tight,
but you would try to do it, but you would be tight in other
areas.
Mr. Mueller. We would be tight. And as we go down that list
of priorities we will be cutting and the support that you get
in those investigations would be cut----
Ms. Jackson Lee. And that's very important.
Let me just ask you about gun legislation. You are a lawyer
and a strong advocate, I know, of the Constitution, the Bill of
Rights. Would a gun storage bill, a universal background
check--when I say that, requiring people to store their guns,
universal background checks--would that seemingly infringe on
the Second Amendment, just on its face?
Mr. Mueller. The one thing I am not is a constitutional
lawyer. And I understand the thrust of the question. And I
understand----
Ms. Jackson Lee. Would good laws help make us safer
possibly?
Mr. Mueller. We can always do more.
Ms. Jackson Lee. Thank you very much.
Let me move to this question of the emails and the various
public discussion, which I think is good. Do you think that we
could have a significant release or significant construction
interpretation of Section 501 decisions that could be
declassified in a manner consistent with the protection of
national security intelligence sources, methods, and properly
classified and sensitive information, meaning that the
decisions of the FISA Court be declassified, keeping in mind
under the restraints of national security, classified
intelligence sources, et cetera? Could that occur?
Mr. Mueller. I have to defer to the Department of Justice
on that because that relates to the protocols that are set up
not just by the Department of Justice, but by the FISA Court as
well.
Ms. Jackson Lee. And so opinions of the FISA Court, you
think, disclosing them, you as an investigator, if it was
protecting other classified, would not be open to the public
and be reasonable?
Mr. Mueller. Well, I would think that, no, there are
absolutely in those opinions are matters that absolutely should
remain classified.
Ms. Jackson Lee. But some could--if they would keep that
classified, others could be released?
Mr. Mueller. I don't know that for a fact.
Ms. Jackson Lee. With respect to Section 501, it speaks to
tangible things that are part of this investigation. Do you
think Section 501, that is the issue of application for order
of investigation, could be narrowed somewhat?
Mr. Mueller. I'm just not familiar with what you are
talking about, ma'am. Section 501?
Ms. Jackson Lee. It's 215, codified 501, Section 215.
Mr. Mueller. Oh, 215. I'm sorry.
Ms. Jackson Lee. Whether or not that would be codified,
narrowed a little bit from its broadness, which is how we have
gotten to where we are today.
Mr. Mueller. I think there can be a discussion as to the
scope of 215, understanding that the purpose of it, but also
the impact on privacy----
Ms. Jackson Lee. Well, let me ask these two quick
questions.
Do you think what we have done over the past--what we have
been disclosed is so broad that we undermine what we need to do
by not narrowly focusing? And then lastly, with respect to the
Boston Marathon case, I want to quickly get to that. Have you
in your investigation determined why the dots were not
connected as they looked at the two perpetrators' travel
overseas, coming back, have you found the smoking gun on that
issue? Can you go first to the question of narrowing this broad
trolling, it seems to be, and still get where you needed to go.
Mr. Mueller. Well, I wouldn't call it broad trolling,
needless to say. I see it appropriate to the goal that you
have. And to the extent that you narrow it, you narrow the dots
that are available. You will narrow the dots that are available
that may be that dot that prevents the next Boston.
On the Boston case, I think we did a very thorough job when
he came to our attention. I do think there could have been
better exchange of information, particularly by the Russians
earlier on. That may have helped. And there were other things
in terms of alerting the travel that we are fixing. But even if
we fix that, even if that had been fixed prior to the Boston
bombing, I do not think it would have stopped it.
But I go back to the point, yes, you can narrow, yes, you
can draw a balance, but you are going to minimize the dots.
Ms. Jackson Lee. Let me thank the gentleman again for his
service. Thank you.
Mr. Goodlatte. The time of the gentlewoman has expired.
Ms. Jackson Lee. Thank you. I yield back. Thank you again
for your service.
Mr. Goodlatte. The gentleman from Virginia, Mr. Forbes, is
recognized for 5 minutes.
Mr. Forbes. Mr. Director, I want to join the chorus of
those complimenting you for your service. The unfortunate thing
is so many Americans will never thank you because they don't
know the harm that you kept from befalling them because of your
efforts. But we thank you for that.
You have heard a lot of Members who asked you about an
application for a search warrant. I gave a copy of that
application to your staff before this hearing, and I think they
have it to present to you now. But for the record, it's case
1:10-MJ-00291-AK document 20. With the Chairman's permission
I'd ask that that be made a part of the record of this hearing.
Mr. Goodlatte. Without objection, so ordered.
[The information referred to follows:]
__________
Mr. Forbes. And, Mr. Director, is it not true that the
standard for arresting an individual for committing a crime and
the standard for charging and individual for committing a crime
are both probable cause?
Mr. Mueller. Yes.
Mr. Forbes. If indeed that is the standard for arresting an
individual and charging them with a crime, in this application
for a search warrant that we presented to you and you have been
questioned about several times today your special agent,
Reginald B. Reyes, certifies in this application that there is
probable cause to believe that the individual involved in here,
which was James Rosen, had committed or is committing a crime.
And yet your testimony, as I understand it, today is that there
was no potential for prosecution.
My question to you today is, if you have an individual that
you know has reached the standard for arrest, the standard for
charging with a crime and one of your agents has attested to
that, how can you say, what standards does the Department has
that says that there is no potential that that individual will
be prosecuted?
Mr. Mueller. There are any number of occasions where we may
have probable cause, or facts that would purport to establish
probable cause to charge somebody with something, and we do
not.
Mr. Forbes. No, no, I understand that. I understand that.
But how do you say before you even get the evidence, that you
have reached that standard to charge someone to prosecution,
how do you say that there is no potential that you will
prosecute this individual when you haven't even obtained the
evidence to know the extent of that crime?
Mr. Mueller. Because a lot of the time we include search
warrants and we have got cooperators who are----
Mr. Forbes. But in this case of Mr. Rosen's can you tell us
if he was cooperating, or if there is any guidelines with the
Department?
Mr. Mueller. That was not my response was to your question
before----
Mr. Forbes. Okay.
Mr. Mueller [continuing]. That there are many occasions----
Mr. Forbes. In this occasion with Mr. Rosen.
Mr. Mueller. Let me finish, sir. There are many occasions
where you have probable cause to believe a person has committed
a crime and you have no intention whatsoever to prosecute.
Mr. Forbes. Absolutely, I know that. But in this case can
you tell us what guidelines would allow the Department, allow
you to testify today under oath that there was no potential to
prosecute Mr. Rosen if your agent had said that you had
probable cause to charge him and to arrest him and you had not
even gotten the results from the search warrant yet?
Mr. Mueller. I'm not certain I understand the question.
Mr. Forbes. Then let me rephrase it and be very specific.
You have stated that there was no potential for prosecution for
Mr. Rosen. A search warrant was issued. At the time this search
warrant was issued, your agent attested to the fact that that
there was probable cause, the standard to both arrest him and
charge him. Yet your statement is that there was no potential
for prosecution at that time for Mr. Rosen. And my question is,
what guideline, or on what basis do you say that there wasn't
even the potential for prosecution?
Mr. Mueller. I'd have to go back and look at my answer, but
I am not certain I stated it in that way.
Mr. Forbes. So then would you say there was at least a
potential for prosecution when the search warrant----
Mr. Mueller. I am not going to say that because I am not
the prosecutor on the case. I did not have the case. And those
decisions are being made by----
Mr. Forbes. I know they're ultimately being made, but you
can't state today that there was no potential for prosecution,
can you?
Mr. Mueller. I'm not going to state it one way or the
other.
Mr. Forbes. Okay, let me ask you this question then. I'll
shift totally because you don't want to answer that question.
Since the President has been in office, we have had a 40
percent increase in gang membership in the country. We know
that 48 percent of violent crimes are committed by gangs in
most jurisdictions; 90 percent in some States, including the
President's home State of Illinois. Can you tell us what has
been the cause of the uptick in gang activity of almost 40
percent since the President has been in office?
Mr. Mueller. Well, at the same time you talk about the
uptick in the gang activity, and it has grown over a period of
time, and I don't think there is any person who can say there
is any one cause of increase of gang activity. It goes to a
number of factors.
But by the same token, there has been a substantial, large
reduction in violent crime throughout the country. New York,
Chicago, there is an article, as you are familiar with, I am
sure, the reduction of homicides in Chicago this fiscal year,
or this year, not the fiscal year. And consequently, on the one
hand you will have certain communities who have an uptick in
gang violence, but you also have a number of communities who
have effectively addressed that gang violence with new ways of
community policing.
Mr. Forbes. Thank you, Mr. Director, but the increase has
been 40 percent.
And with that, Mr. Chairman, I yield back.
Mr. Goodlatte. The Chair thanks the gentleman.
The gentleman from Tennessee, Mr. Cohen, is recognized for
5 minutes.
Mr. Cohen. Thank you, Mr. Chairman.
Director Mueller, I had the opportunity to go to Russia
with a CODEL a couple of weeks ago, and the FSB deputy director
met with us and the head of counterintelligence. They said that
they had sent a memo to you, or I believe it was to the FBI,
and I presume you got it, in 2011 about the Tsarnaevs, that
they had been radicalized and they were fearful that they may
be some threat either to us or to Russia if they returned and
wanted some information about when they would return. They
thought there were some laws that maybe impeded your ability to
do a complete study or carry your study for a longer period of
time.
I'd like to ask you this. First, did you get that paper
from the FSB, or from the counterintelligence about the
Tsarnaevs, number one? Number two, why could you not follow up
on it further than you did and is there legislation needed to
be passed to allow you to do that, that would be keeping within
the rights of American citizens? And three, are the relations
between the FBI and the FSB improved to where we can share
intelligence to work against the threat of radical Islam and
terrorism in both of our countries?
Mr. Mueller. In response to number one, yes, we did get
what we call a tear line through our legat in Moscow in March
of 2011, an agent was assigned to it and an agent did a
thorough investigation; ran through all of the records checks;
went to Bunker Hill Community College where he had spent time;
did neighborhood research before he then interviewed the
parents; and finally interviewed Tamerlan himself.
After all of those efforts, we did not find any indication
that he was involved with terrorism, nor did we find
predication for further investigative efforts such as wiretap
or what have you.
We then reported the extent of that investigation back to
the Russians and asked for any additional material they had
that would assist us in furthering up additional investigation.
And we got after two--actually three requests--we got no
response from them.
We did, I think, all of the investigation that could have
been done. Any additional information at that time I do not
believe would have turned up more evidence of his ultimate
radicalization.
And finally, in terms of the FSB, yes, we had a chilly
period with the FSB. I, as you I think know, met with General
Bortnikov several weeks before you did after Boston. They have
been helpful to our investigation. We hope that we can continue
to exchange information to prevent further terrorist attacks,
particularly in the United States.
Mr. Cohen. Why was there not an ability to let them know
that he returned to Dagestan, which was their request to know
that?
Mr. Mueller. Because we did not pick that up. When he got
on the plane, there had been--and there were several reasons.
And that is one of the----
Mr. Cohen. What are the reasons? The impression that I got,
and this is a big leap, but they said that if they would have
known, if you would have followed up and they would have known
he was coming back to Dagestan, that possibly the Boston
Marathon bombing would not have occurred. I presume that means
they would have offed him, which would have been great.
Mr. Mueller. Perhaps. In this particular case, the warning
went to the task force and--not the warning, I should say the
fact of his having left went to the task force, and for a
variety of reasons, not the least of which is the case had been
closed some time ago, that particular indication that he was on
his way back to Russia did not get acted upon.
Mr. Cohen. Is there something that needs to be corrected?
Has it been corrected? Is there a law that needs to be changed?
Mr. Mueller. Yes, yes. No, it does not need a law. It
requires a correction to our procedures, which we have done, to
assure that every such notice has a recorded record. It cannot
be done informally, somebody talking across the table.
Mr. Cohen. Satisfied, thank you, sir.
Let me ask you this other man, Todashev, who was killed in
Florida, apparently was one of the guys that killed the three
marijuana--you know, to get marijuana in here somewhere--those
three marijuana guys up in Massachusetts.
Mr. Mueller. I'm not certain what you're talking about.
Mr. Cohen. There was another fellow that was a friend of
Tamerlan's who was in Florida and being investigated by FBI
agents and they killed him. You remember that, don't you?
Mr. Mueller. I would say that there was a response to a
threat that resulted in----
Mr. Cohen. What was the threat? Because at first the
reports were there was a knife or something, and then later
they said there was no weapon.
Mr. Mueller. That's still under investigation.
Mr. Cohen. How did you get knowledge of Todashev and his
involvement in this crime? Was it through the FSB or was it
your own investigation?
Mr. Mueller. Actually, it was a number of ways, including
one of the programs that is under scrutiny today.
Mr. Cohen. What do you mean, 215 and 702?
Mr. Goodlatte. The time of the gentleman has expired. The
Director can answer that question.
Mr. Cohen. Yeah, is it 215 and 702, is that what you mean?
Mr. Mueller. There was effort done in terms of that
particular program as well, but I will tell you that we came
upon him in a variety of ways.
Mr. Cohen. Thank you, sir.
Thank you, Mr. Chairman.
Mr. Goodlatte. The gentleman from Iowa, Mr. King, is
recognized for 5 minutes.
Mr. King. Thanks, Mr. Chairman.
Thanks, Director, for your testimony and your services.
Following up on the question, it wasn't clear to me, was
the initial information on the gentleman referred to, Ibragim
Todashev, was that original information from the Russians?
Mr. Mueller. You're saying----
Mr. King. I think I heard you say there was a variety of
sources that brought you to him.
Mr. Mueller. You're talking about the individual from
Florida?
Mr. King. Yes, who was murdered--or killed, excuse me. I
don't want to imply that murder is an FBI activity.
Mr. Mueller. It came from several leads that we were
following here domestically.
Mr. King. And was there an initial lead that perhaps came
from the Russians?
Mr. Mueller. I don't recall. There may have been, but I
can't recall that there was, that he had been identified by the
Russians.
Mr. King. Are you aware of a letter from the FSB dated
March 4, 2011?
Mr. Mueller. Yes.
Mr. King. And was that letter initiated by the Russians, by
the FSB?
Mr. Mueller. Yes.
Mr. King. And that letter sat in a file for a while, and
your response to that was how soon after that?
Mr. Mueller. It did not sit in the file for a while. It was
acted on very quickly afterwards.
Mr. King. Did you have domestic information on Tamerlan
prior to that, prior to that date of----
Mr. Mueller. Did we have information on him prior to that
date?
Mr. King. Yes.
Mr. Mueller. I don't believe so. Now, wait, let me just
say, his name had come up----
Mr. King. Okay.
Mr. Mueller [continuing]. In two other cases. Those two
other cases, the individuals had their cases closed. So he was
one or two person away.
Mr. King. So it is reasonable that the letter of March 4,
2011, refocused the FBI on Tamerlan?
Mr. Mueller. Absolutely.
Mr. King. And then are you aware of a letter also from the
FSB dated April 22nd of 2013?
Mr. Mueller. Yes.
Mr. King. And those two letters, are they classified?
Mr. Mueller. I am not certain what their classification
level is.
Mr. King. I would ask you to take a look at both of those
letters and consider, if they are classified, to release them.
The subject matter of that and the information within it, I
think that Mr. Cohen and I would agree, is something that would
be useful for the American people to be aware of.
And for me, I was struck by the amount of domestic
information that the Russians had on activity inside the United
States on Tamerlan Tsarnaev, and that seemed to be the first
information that flowed forth. Is it also, to the public is my
reference, is it also possible to reconstruct, going backward
through the timeline, a place or places where there might have
been an intervention that could have prevented the Boston
bombing, knowing what we knew at the time?
Mr. Mueller. You know, every time we have an incident like
this we go back and scrub it hard. I indicated one area, and
that is notification of the subject traveling should have been
documented. Whatever action was taken as a result of that
notification from borders and customs should have been
documented. But in looking back at it, I do believe that his
radicalization went forward substantially during probably the
time he went to--was in Russia, but I do not believe that he
was on the radar screen of the Russian authorities when he was
back there.
Mr. King. It's also my understanding. But as far as the
radicalization that took place, do you see that as a long
process that perhaps started when he was younger and was a
product of his home country, the United States and back to his
home country, or how do you view the radicalization?
Mr. Mueller. I think the best you can say is maybe in fits
and starts.
Mr. King. Okay. And I think that's fair. The security,
though, when we have people coming in from, let's say, the
North Caucasus region, who are persons that come from, let's
say, a profile that would fit persons of interest from Nations
of interest, do we do inquiries with the Russians or any other
country to do background checks on those individuals that might
be seeking asylum here in the United States that come from
those areas?
Mr. Mueller. You'd really have to turn to DHS in terms of
what they consider, in terms of evaluating the asylum. Well, I
think really DHS----
Mr. King. But don't they subcontract that out to you?
Doesn't USCIS ask FBI to do the background checks?
Mr. Mueller. I don't think they contracted us.
Mr. King. Shorthand.
Mr. Mueller. I think they run records checks through us to
see what derogatory material we may have on somebody who's
seeking asylum.
Mr. King. But are you aware of any inquiries that might ask
the Russians to give us some advice on who they might be
watching that's coming into the United States under asylum,
which is how Tamerlan got here?
Mr. Mueller. I don't know, because I can't speak to what
the FSB does in all of its cases, but if they have a person
they believe to be a terrorist, I would say often they give us
that information and ask for assistance from us to address that
particular person.
Mr. King. Let me suggest that in a direct question of Mr.
Beseda's, who's second in command at FSB, he said that those
kind of inquiries, he couldn't say it never happened, but as he
looked at the other people on the panel, they seemed to think
there was one inquiry perhaps 10 years ago. His specific
response was those inquiries are nil.
So I'm going to suggest to this panel that we need to take
a good look at how we do background checks on people that are
coming from Nations of interest, who likely are persons of
interest, to tighten up our security. And I think that was a
window, and there might be hundreds and perhaps more than
hundreds that come through a window like that.
I thank you for your service, and I yield back the balance
of my time.
Mr. Goodlatte. The time of the gentleman has expired.
The Chair recognizes the gentleman from Georgia, Mr.
Johnson, for 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman.
Director Mueller, thank you for your many years of
exemplary service to the Nation. This will probably our last
time seeing you before this particular Committee. And I wanted
to do that. I wanted to give you that.
And I will also agree with you that as terrorism, both
foreign and domestic, changes and adapts, our law enforcement
capabilities have to do the same. And so if data collection
will help us remain secure in our personal liberties, then
that's a discussion that we should have. And if we don't have
security, then our civil liberties are definitely threatened.
And I know that everyone can agree with that.
And this is an issue, unlike those that some of my
colleagues on the other side of the aisle are looking for out
in the backyard--Benghazi, IRS, the Rosen subpoena--we can deal
with those things, but there are some issues right at the front
door knocking loudly. And I think the loudest knock is coming
from data collection and secrecy in government. And so my
questions would be regarding that.
Why is it necessary for data collection, internal domestic
data collection, to be a secret? Why is it that that program
has to be a secret? I disagree with the notion that public
knowledge of those programs can undermine our ability to
respond to terroristic or terrorist threats.
And I also want to applaud the work of companies like
Google that work very hard to make government legal requests as
transparent as possible. This week Google requested permission
from you and the Attorney General to publish aggregate numbers
of national security requests, including FISA disclosures, as
part of its transparency report.
Wouldn't the aggregate publication of national security
requests, kind of like metadata, wouldn't that better serve the
conversation on civil liberties and national security than
keeping Americans in the dark? Because as we keep Americans in
the dark, it tends to break down the trust that Americans have
for government. I'm really concerned that we have too much
classified information, and I'm disturbed or perplexed,
actually, about who actually decides what should be classified
and how do we go about unclassifying things?
So I know that's a couple of questions. I want to give you
a chance to respond.
Mr. Mueller. I do think that there is quite obviously a
tension between the secrecy attendant, classification attendant
to certain programs and documents, and I am not going to say
that there aren't occasions where there are things that are
overclassified. When it comes to identifying the way we handle
communications and all their iterations, particularly in this
day and age when you have any number of ways to communicate,
whether it be email, chat, and a variety of alternate ways of
communicating, to the extent that those were associated with
terrorist groups, or actually those associated with the
Chinese, the Russians, the Iranians, and the others, to the
extent that that they have information as to how we operate in
terms of how we identifying----
Mr. Johnson. Well, how we may use those programs, but the
programs themselves, why is it that just a broad disclosure
that, yes, Americans, we are collecting metadata from your
phone records and this is why we are doing that, and then you
explain the intricacies of what you're doing, what you're not
doing. You're not talking about any specific programs or
operations--excuse me, no specific operations or operatives,
those kinds of things, but just the existence of the program.
Americans need to know what is being done and why.
Mr. Mueller. All I would say is, there is a balance to
take. I would urge you to, in the classified briefings, to ask
that question and see what----
Mr. Johnson. Well, I have, and I've never gotten a
satisfactory answer.
Mr. Mueller. Well, I can tell you because whenever there
are disclosures like this, we see, through other programs we
have and intercepted communications, we see exactly what those
individuals are doing, the terrorists, to change their
communications.
Mr. Goodlatte. The time of the gentleman has expired.
Mr. Johnson. There will always be that adaptation to what
we're doing.
Mr. Goodlatte. The Chair recognizes the gentleman from
Texas, Mr. Gohmert, for 5 minutes.
Mr. Gohmert. Thank you, Mr. Chairman.
And thank you, Director. I'm not going to comment about
your being the last time here. I did that a few years ago, and
didn't turn out right. But anyway, I want to follow up on what
my friend Mr. Johnson was talking about, the overclassification
issue, because it does seem to be a problem and certainly an
issue.
There is an article today entitled ``Obama's Snooping
Excludes Mosques, Missed Boston Bombers.'' I wasn't aware of
the--and I went to the FBI Web site--I wasn't aware of the
Sensitive Operations Review Committee, so I wanted to find out
what it was. Well, apparently, if something involves things
like news media, religious or domestic, political organization,
things like that, then it has to go before the Sensitive
Operations Review Committee in order to be approved. And here
is the information on the data about if it's a political
organization, like a Tea Party, a religious organization, like
evangelical Christians, which the Department of Homeland
Security is so afraid of, or a mosque, apparently, it has to
get approval here, and we already knew and we have gone through
with--and it seemed ridiculous to me and Michele Bachmann and
Lynn Westmoreland that the material we were reviewing that was
purged by subject matter experts was classified.
It would seem that if you're trying to make the Islamists
feel better about training materials, you'd want them to see
what they were removed. And I'm just curious, why are the
subject matter experts that the FBI had go through all their
training material and purge anything that might be offensive to
an Islamist, why was that needed to be classified? I would
think they'd be heroes in the Islamic world for getting that
stuff out. Why was that classified?
Mr. Mueller. Well, we went through a thorough review. I
think you have been fully briefed on it. In those materials are
examples of cases----
Mr. Gohmert. Well, I need you, I have just a short time, I
need you to answer questions, and my question is, why were the
subject matter experts' identity classified?
Mr. Mueller. Because the process in whole had within its
parameters all information that we have in the Bureau, and if I
am not mistaken, we gave you the names of the individuals.
Mr. Gohmert. In a classified setting. And so I'd get
prosecuted if I revealed them. And I don't know why you can't
make those public, so the people would know. But obviously, you
feel----
Mr. Mueller. I will look at that and----
Mr. Gohmert. Well, and also I want to go back to Boston.
You said things like, and out of the example what you said, the
FBI did an excellent job, did a thorough job, don't know what
else we could have done. And according to the Russians, there
was a great deal more that could have been done. And when we
find out about this Sensitive Operations Review Committee, and
as this article points out, if it's true, it says that we don't
know who the chairman and members are of the Sensitive
Operations Review Committee, who the staff, that's kept secret.
The FBI never canvassed Boston mosques until 4 days after the
April 15 attacks.
If the Russians tell you that someone has been radicalized
and you go check and see the mosque that they went to, then you
get the articles of incorporation, as I have, for the group
that created the Boston mosque where these Tsarnaevs attended,
and you find out the name Al-Amoudi, which you will remember,
because while you were FBI Director this man who was so helpful
to the Clinton administration with so many big things, he gets
arrested at Dulles Airport by the FBI and he is now doing over
20 years for supporting terrorism.
This is the guy that started the mosque where your
Tsarnaevs were attending, and you didn't even bother to go
check about the mosque? And then when you have the pictures,
why did no one go to the mosque and say, who are these guys?
They may attend here. Why was that not done since such a
thorough job was done?
Mr. Mueller. Your facts are not altogether----
Mr. Gohmert. I point out specifically.
Mr. Mueller. May I finish my----
Mr. Gohmert. Point out specifically. Sir, if you're going
to call me a liar, you need to point out specifically where any
facts are wrong.
Mr. Mueller. We went to the mosque prior to Boston.
Mr. Gohmert. Prior to Boston?
Mr. Mueller. Prior to Boston happening, we were in that
mosque talking to the imam several months beforehand as part of
our outreach efforts.
Mr. Gohmert. Were you aware that those mosques were started
by Al-Amoudi?
Mr. Mueller. I've answered the question, sir.
Mr. Gohmert. You didn't answer the question. Were you aware
that they were started by Al-Amoudi?
Mr. Mueller. No.
Mr. Gohmert. You were not. Okay. Thank you.
Mr. Goodlatte. The time of the gentleman has expired.
The Chair recognizes the gentleman from Puerto Rico, Mr.
Pierluisi, for 5 minutes.
Mr. Pierluisi. Thank you, Mr. Chairman.
Director Mueller, I want to join my colleagues in thanking
you for your service to our Nation. You will leave a lasting
legacy and large shoes to fill.
As you have recognized, the FBI's role since 9/11 has
evolved and expanded. Prior to the attack, the agency's primary
responsibility was to fight domestic crime, including violent
crime. Now the Bureau also stands at the forefront of the
government's efforts to prevent and respond to terrorism. And
as the tragic events in Boston illustrate, the stakes could not
be higher. Conducting both law enforcement and counterterrorism
operations is a large and complex portfolio, and I know you are
constantly reviewing the allocation of personnel and resources
to ensure that both missions receive the attention they
deserve.
The example of Puerto Rico, though, a U.S. territory, home
to 3.7 million American citizens, underscores why it is
important for the FBI, notwithstanding its transformation in
the wake of 9/11, to continue to place great emphasis on its
traditional role as a crime-fighting agency. As Chairman
Michael McCaul noted at a hearing last year in the Homeland
Security Committee, the people of Puerto Rico are under siege.
Like all American citizens, my constituents are targets for al-
Qaeda and its affiliated organizations. They, too, worry about
terrorism when they board a plane, visit a tourist site with
their children, or travel abroad. Indeed, in 1972, 16 American
citizens from Puerto Rico were killed and many more were
wounded at an airport in Israel, the victims of one of the
first incidents of international terrorism.
But the fact is, my constituents are dying violent deaths
every day and they are not being killed in terrorist attacks.
Rather, they are dying in huge numbers because of the toxic mix
of drugs, guns, local gangs, and transnational criminal
organizations.
I know you are familiar with the statistics, but they bear
repetition. In the 10-year period between 2003 and 2012, there
were 8,600 homicide victims in Puerto Rico. The year 2011 was
the most violent in the territory's history with 1,164 murders.
That is the equivalent of over three homicides a day, every
day. It is about the same number of homicide deaths as Texas,
which has a population that is seven times that of Puerto Rico.
Although the number of murders in Puerto Rico decreased in
2012, the island's per capita murder rate was still about three
times higher than any State and about six times higher than the
U.S. national average.
As you know, I have urged the Federal Government to surge
resources to Puerto Rico to alleviate this crisis. Earlier this
year, following a visit by Secretary Napolitano to Puerto Rico,
DHS decided to substantially increase its presence on the
island. Next week, I am meeting with a senior advisor to the
Secretary to receive an update on the steps that DHS component
agencies are taking and the results that we can expect to see.
Yesterday, the Appropriations Committee approved the
Defense Appropriations Act for Fiscal Year 2014, and that bill
directs the Secretary of Defense to provide a report on the
counterdrug activities that DOD is undertaking or intends to
undertake to support law enforcement operations in and around
Puerto Rico.
In March, I wrote a detailed letter to Attorney General
Holder, copying you, reiterating my request that DOJ surge
resources to Puerto Rico. It is clear that the FBI, along with
DEA and ATF, needs to do more, much more to reduce the level of
violence in Puerto Rico and to reassure my constituents that
their national government cares about them and is working every
day to protect them and their families.
Director Mueller, can you please tell me what concrete
steps the FBI is taking or will take to reduce the
exceptionally high level of violence in Puerto Rico? The threat
has evolved in terms of both its nature and its severity, and
it is critical that the FBI's response evolve as well. The time
for business as usual, is over, Director.
Mr. Mueller. Well, as we have discussed previously,
Congressman, I am tremendously sympathetic to what is happening
in Puerto Rico as we go along. We have made advances. We have
added hybrid squads to cover any kind of crimes. We have got
four violent gang Safe Street Task Forces. That is more than I
think any office in the country. We have an allocation of 313
full-time agents; they are fully staffed. We're about five
down.
But I can tell you, under this term of sequestration, the
possibility of allocating additional resources to Puerto Rico
is very, very difficult. I, having been a homicide prosecutor,
I think I have some understanding of the devastation to
communities that are beset by violent crime. I wish we could do
more. I wish we had the resources to surge. I know we're
working closely with ATF, DEA, and ourselves to combine our
resources along with the Puerto Rican National Police, and
we're having some success. All I can tell you is that I wish I
could do more at this point, but given the budget constraints,
it would be very difficult.
Mr. Goodlatte. The time of the gentleman has expired.
The Chair recognizes the gentleman from Ohio, Mr. Jordan,
for 5 minutes.
Mr. Jordan. Thank you, Mr. Chairman.
Director, this past Sunday, Mr. Cummings, Ranking Member on
the Oversight Committee, said based on everything he's seen
regarding the IRS case, based on everything he's seen, the case
is solved. Is Mr. Cummings accurate in his assessment.
Mr. Mueller. Could you repeat that, if you would?
Mr. Jordan. Based on everything I have seen, according to
Mr. Cummings, the case is solved. This is regarding the IRS
scandal.
Mr. Mueller. Which case?
Mr. Jordan. The IRS case.
Mr. Mueller. The IRS case?
Mr. Jordan. Yes.
Mr. Mueller. The IRS case is currently under investigation,
and basically it's just started.
Mr. Jordan. Yeah. What can you tell us? I mean, you started
a month ago. What can you tell us about this? Have you found
any--have you found the now infamous two rogue agents? Have you
discovered who those people are?
Mr. Mueller. Needless to say, because it's under
investigation, I can't give out any of the details.
Mr. Jordan. Can you tell me some basics? Can you tell me
how many agents, investigators you have assigned to the case?
Mr. Mueller. I may be able to do that, but I'd have to get
back to you.
Mr. Jordan. Can you tell me who the lead investigator is?
Mr. Mueller. Off the top of my head, no.
Mr. Jordan. This is the most important issue in front of
the country the last 6 weeks, you don't know who's heading up
the case, who the lead investigator is?
Mr. Mueller. At this juncture no, I do not know who they
are.
Mr. Jordan. Can you get that information to us? We would
like to know. We would like to know how many people you have
assigned to look into this situation.
Mr. Mueller. I have not had a recent briefing on it. I had
a briefing on it when we first initiated it, but I have not had
a recent briefing as to where we are.
Mr. Jordan. So you don't know who is leading the case?
Mr. Mueller. I do not know who is the lead agent.
Mr. Jordan. Do you know if you have talked to any of the
victims? Have you talked to any of the groups who were targeted
by their government? Have you met with any of the tea party
folks since May 14, 2013?
Mr. Mueller. I don't know what the status of the interviews
are by the team that's on it.
Mr. Jordan. Would you expect that that's been done?
Mr. Mueller. Certainly at some point in time in the course
of the investigation it will be done, but generally at the
outset of the investigation you get the documents so that you
can have a----
Mr. Jordan. But don't you normally talk to the victims?
Mr. Mueller. I do not know specifically----
Mr. Jordan. In your extensive record and history in
investigative work, don't you typically talk to the victim? It
is a criminal investigation. Don't you typically talk to the
victims pretty soon?
Mr. Mueller. Absolutely. I'm sure it will happen.
Mr. Jordan. So did the FBI contact any of these same
victims, were they contacted by the FBI prior to the
investigation? When these same groups were applying for tax-
exempt status, did the FBI pay some of these individuals a
visit?
Mr. Mueller. I do not know.
Mr. Jordan. Pardon?
Mr. Mueller. I do not know.
Mr. Jordan. You don't know?
Mr. Mueller. I do not know.
Mr. Jordan. Some of them testified that they were paid a
visit by the FBI. Specifically, Catherine Engelbrecht in Texas
said she was visited by the FBI. She was head of True the Vote.
Is that true or not?
Mr. Mueller. Do not know.
Mr. Jordan. You do not know, okay. If the FBI did contact
people involved in the IRS scandal, victims groups, prior to
the investigation when they were applying for tax-exempt
status, why was that the case? Why would you be looking into
it? And was there possibly coordination with the IRS----
Mr. Mueller. You are asking me details about the
investigation. I would be happy to get back to you.
Mr. Jordan. I'm not asking you details about the
investigation. I'm saying, why were people targeted before the
investigation started? Why were they contacted by the FBI,
people who are now part of tea party groups who were targeted
by the IRS?
Mr. Mueller. You're asking questions about details of the
investigation. I would be happy to take the questions.
Mr. Jordan. That is not a detail about the investigation.
That took place prior to the investigation starting.
Mr. Mueller. May I finish? May I please finish? You are
asking detailed questions about the investigation. I'd be happy
to get back to you and answer those questions that I can,
understanding ongoing----
Mr. Jordan. I'm asking basic questions about the
investigation, like who's heading it up, and you can't tell me
that. Can you get back to me on any group who was targeted by
the IRS, who the FBI visited with prior to the investigation
starting while they were applying for tax. That would be
important information for this Committee to have. Can you get
that to me?
Mr. Mueller. We'll look at the questions and try to
respond.
Mr. Jordan. Have you reviewed the Inspector General's
report regarding the IRS scandal?
Mr. Mueller. I have been through it, yes.
Mr. Jordan. Do you have any concerns about the way the
Inspector General did the report and collected information?
Mr. Mueller. I did not focus on that at all. I was
looking----
Mr. Jordan. Well, let me ask you a couple things. Is it
typically important for the investigator to have one of the
central players in this, Ms. Holly Paz, who was Director of--
one of the key players at the Tax Exempt Division, sit in on
all the interviews, almost all the interviews with employees in
that division? Is that typically how an investigation is done?
Mr. Mueller. I am not familiar with those circumstances. I
understand what you are saying about those circumstances, so
not being familiar with it, I can't----
Mr. Jordan. In your time as an investigator is that how you
would do interviews, with the boss sitting next to the person
you are trying to get information from?
Mr. Mueller. Well, again, I'm----
Mr. Jordan. Is it appropriate for Holly--the Inspector
General came out in a transcribed interview that our staff has
done, the Oversight Committee staff has done, is it appropriate
to have her collect the data and give it to the Inspector
General?
Mr. Mueller. I am not familiar with the----
Mr. Jordan. If that happened, is that appropriate?
Mr. Mueller. I'm not going to speculate.
Mr. Jordan. Let me ask one last thing, because this did
happen. Mr. Chairman, the last question.
So is it appropriate when the Inspector General is doing
his investigation, doing his audit, to give information to the
very people he is investigating in the course of the
investigation and not share that same information with the
Oversight Committee? Specifically, May 30 of last year, the
Inspector General told Doug Shulman that the terms tea party,
patriot, 9/12 were used to identify groups and put them on a
list. He told them that was going on at the IRS. He told them
that a year ago. Four days later he told the general counsel at
Treasury, Chris Meade, the same information, but did not share
that with the Committee who asked for the investigation, the
Committee who has oversight over the Inspector Generals in all
Federal agencies, did not share that information with us. Is
that typically how an investigation is supposed to work?
Mr. Mueller. Again, you are talking about circumstances
with which I am not familiar. Each investigation is a little
bit different, and I really can't comment on what was
appropriate in that particular investigation without knowing
and sitting down and going through the facts.
Mr. Jordan. But that's--if I could, Mr. Chairman, then I
will stop--that's the point. You've had a month now to
investigate. This has been the biggest story in the country and
you can't even tell me who the lead investigator is. You can't
tell me that actions the Inspector General took, which are not
typically how investigations are done, you can't tell me if
that's appropriate or not? This is not speculating. This is
what happened and you can't tell me how many agents are
assigned to the most important news story, maybe the most
important----
Mr. Goodlatte. The time of the gentleman has expired. The
Director will be allowed to answer the question. And if he
can't answer it today, we would definitely expect that he
answer it in writing to us as promptly as possible.
Mr. Mueller. Yeah, I would be happy to take your questions
in writing, sir.
Mr. Goodlatte. The Chair recognizes the gentlewoman from
Washington, Ms. DelBene, for 5 minutes.
Ms. DelBene. Thank you, Mr. Chair.
And thank you, Mr. Director, for your service and for being
with us here today.
I happen to agree with those who believe that greater
transparency and better data about the requests that government
entities are making to Internet companies and providers will
help inform the discussion that we're having about how to
balance legitimate national security needs with privacy rights.
I understand it was referred to a little bit earlier that
Google sent a letter to you and Attorney General Holder earlier
this week. I'm requesting that it be permitted to provide the
reports of the number of FISA national security requests it
receives as well as their scope. And I wondered if you could
share with us what your response is to that request.
Mr. Mueller. I think that's being looked at by Justice at
this point.
Ms. DelBene. Okay. Then earlier this year, Google did work
with the Department of Justice and the FBI to disclose in broad
strokes the number of national security letters that Google
receives. And did Google's disclosures of these numbers harm
national security in any way?
Mr. Mueller. Well, let me just hypothesize without
answering particularly. If you had such figures out there,
would not somebody who wanted to have secure communications
maybe make some decisions as a result of that information as to
what, you know, as to what communications capability they use?
Basically, there are issues that need to be discussed in
the course of deciding what needs to be declassified. I think
most of us in the government would love to be able to disclose
more because it would be more understandable to persons, but
you have the conflicting values of trying to protect the
country and trying to protect that information that enables us
to continuously identify and to intercept the communications of
terrorists in an effort to thwart attacks. That's the conflict.
Ms. DelBene. Thank you. The Committee is currently also
considering reform of the Electronic Communications Privacy
Act. And as you may know, the Senate Judiciary Committee
recently reported reform legislation out of Committee. Members
on both sides of the aisle seem to agree that we've failed to
modernize our law to align with reasonable expectations of
privacy, especially in the digital age.
For routine criminal investigations, I believe law
enforcement should use the same standard to search your inbox
that they do to search files and letters in your home, but our
current outdated law allows police to provide only a subpoena,
issued without a judge's approval, to force service providers
to turn over emails that have been opened or are more than 6
months old.
The Committee is currently considering legislation that
would require government entities to obtain a warrant before
having access to stored content. And I'm pleased that the
Department of Justice and Attorney General Holder recently
acknowledged that reform to the Electronic Communications
Privacy Act has failed to keep up with the development of
technology. And I wanted to know if you agree that it's time to
reform these laws to include a warrant standard for stored
content?
Mr. Mueller. Well, I would agree that it's time to relook
at these laws given the communications in terms of what the
impact on--it would have on particular requirements in
particular situations. I would wait to see what kind of
legislation is proposed.
Ms. DelBene. Do you have a proposal, what kind? Right now
if I, you know, have a physical letter, a piece of paper in my
home, you need a warrant. If I have an online piece of
communication it doesn't necessarily have the same standard.
Mr. Mueller. We'd be pleased to get back to you either by
regular letter or by email.
Ms. DelBene. And in terms of broader reform, in terms of
keeping up, do you have recommendations on other reforms you
think that we need to look at because the way that folks
communicate now is very different than in the past? You talked
about chat and other forms. Clearly, our laws have not kept up
with the changes in technology, and do you have an opinion or
ideas of how you would like to see legislation formed there?
Mr. Mueller. We will get back to you on that with whatever
ideas we have.
I do think there needs to be reform. There is always
impetus to increase the standards to get particular documents,
but it should be done, in my mind, dependent on the attributes
of privacy that are necessary for a particular means of
communication or a particular piece of data relating to
communications. If you raise a standard too high, we then do
not get the basic information that can identify terrorists to
the point where then we could take the additional investigative
steps, identify the subscriber. Once we have identified the
subscriber, identify others in that network.
If we, as a result of that predicated level of
investigation find that they are involved in terrorism, then
getting a wiretap. We tend to confuse that which is covered by
the Fourth Amendment, that which is not covered by the Fourth
Amendment. And so as one drafts the legislation, my belief is
that ought to be kept in mind.
Ms. DelBene. Thank you.
And thank you, Mr. Chair. I yield back.
Mr. Goodlatte. The Chair thanks the gentlewoman, and
recognizes the gentleman from Utah, Mr. Chaffetz, for 5
minutes.
Mr. Chaffetz. Thank you, Mr. Chairman.
And to the Director, thank you. You have made yourself
regularly available to this Committee, and as a Member it's
very helpful, and we appreciate it and appreciate your service.
I want to talk a little bit about geolocation metadata, and
specifically the Jones case, which is a Supreme Court ruling
where they ruled 9 to nothing that a GPS device placed on a
vehicle for an extended period of time was an unreasonable
search. Geolocation is broadly defined as using a GPS device or
triangulation so that you can tell the specific whereabouts of
where a particular phone is.
Could you help me define what metadata is? Because what we
have seen in the news is that the metadata category is the
simple telephone number, where they're calling, and how long
they're calling. Can you help me define what else is in the so-
called metadata category?
Mr. Mueller. Well, in the case of emails, it would probably
be header information. I think people would consider the
adressing information----
Mr. Chaffetz. What about--
Mr. Mueller [continuing]. But not the subject line, for
instance. That would not be metadata. In terms of the
telephone, it would be that which you articulated, principally.
Mr. Chaffetz. Would it include geolocation information?
Mr. Mueller. That's a question I'd have to get back to you
on. I have not thought about that.
Mr. Chaffetz. We had submitted in advance our questions
that we were going to ask here today in part so I could have a
candid dialogue with you. We were very good at providing the
questions that I was going to ask. With all due respect, sir,
you're the Director of the FBI. You've been there for 12 years.
You had to of think post-Jones what are the implications of the
Jones case, what is geolocation, and how does it apply?
Mr. Mueller. Absolutely. I mean, we have been--after the
Jones case, we have taken--the Jones case can be applied to a
number of ways that we utilize geolocation. In each of these
different ways, we have taken the most conservative approach
because you don't know what is going to be the progeny of
Jones.
On the particular question of whether or not geolocation is
metadata off the top--well, I shouldn't do it off the top of my
head. I have to make certain that I look at that one.
Mr. Chaffetz. Is there a database of geolocation
information that is warehoused by our Federal Government?
Mr. Mueller. Not that I am aware of.
Mr. Chaffetz. Post-Jones there has been guidance given by
the Department of Justice to the FBI. I would love to see that
information and share that. I have seen two unclassified
documents that were through a Freedom of Information Act. Is
that something that you can share with this Committee?
Mr. Mueller. I'd have to look at that. But if it's
unclassified, internal, then I'd have to look at that.
Mr. Chaffetz. All right. I guess what I have a problem is,
this phone right here, the Federal Government has no problem
following this phone, who I call. If I call my 12-year old
daughter, the telephone number I called her on, how long I had.
But the geolocation is something that we--I have a bill that I
have sponsored that really basically categorizes geolocation as
content as opposed to metadata.
So if you're going to follow what this telephone number is,
where it is, is that or is that not content?
Mr. Mueller. I'll tell you, I think it's a very difficult
question, and I'd want to think about it. It can be metadata,
it can be content, and may depend on the circumstances.
Mr. Chaffetz. But is there a database that anybody knows of
that----
Mr. Mueller. I do not know of a database that specifically
is addressed to geolocation, apart from anything else,
investigative activity that is solely a geolocation database.
Mr. Chaffetz. Post-Jones, does the FBI believe that there
should be a lower or different standard for law enforcement to
access geolocation information from smart phones or other
mobile devices than the standard for attaching tracking devices
to cars under Jones?
Mr. Mueller. I'd have to get back to you on that. I
apologize. I can see you gave me the questions, and I did not
get briefed on. It's my own fault for getting briefed on the
questions so I'm better able to answer them.
Mr. Chaffetz. I appreciate it.
And, Mr. Chairman, it's terribly disappointing to come to
this point, talk about something that is in the headlines of
every newscast. I gave the questions in advance.
Mr. Mueller. And they noted that I would be asked on that,
I might add. So it's my fault.
Mr. Chaffetz. Your staff did some great work, I guess, but
it's terribly frustrating, sir. You're the head of the FBI.
You're the Director of the FBI. This is an important discussion
and dialogue. And I know I won't get an answer and that's the--
--
Mr. Mueller. I will be happy to meet with you after I have
had a chance to review the questions that you have and the
answers that you need.
Mr. Chaffetz. What would be a reasonable timeframe for me
to start to call and say, hey, where is this information?
Mr. Mueller. A week.
Mr. Chaffetz. Okay. I appreciate it. Thank you, sir.
Yield back.
Mr. Goodlatte. I thank the gentleman.
And we will again reinforce our urging that these questions
be answered as promptly, and in this case a meeting take place
with the gentleman from Utah. He has a very good issue that
needs to have your input.
And the Chair now recognizes the gentleman from New York,
Mr. Jeffries, for 5 minutes.
Mr. Jeffries. I thank the distinguished Chair.
And I also want to thank the Director for your presence
here today and certainly for your service to this great
country.
Edward Snowden has been characterized by many, as a villain
by some. His actions have been called courageous or heroic.
It's not my place, I believe, to characterize him one way or
the other. A court of law, hopefully, will assist in coming to
a conclusion as to what took place in accordance or in
violation of our laws.
But it is clear that he has become a lightning rod that has
sparked what I think is a very important debate in this country
that we in the Congress should have as to the proper balance
between legitimately held security concerns and concerns for
privacy and liberty which are essential to the preservation of
our democracy. And so in that spirit, just wanted to get a
sense of some of the particulars, to the extent that you can
discuss them in an open Committee hearing, related to the
recent 215 acquisition of information connected to the Verizon
metadata.
Now, presumably, that was acquired based on a conclusion by
yourself, the FBI, the Department of Justice, other relevant
actors, that the metadata for all Verizon customers in the
United States of America and beyond for a 3-month period was
relevant to a counterterrorism investigation or to foreign
intelligence acquisition. Is that correct?
Mr. Mueller. If you're talking about the relevance and the
finding of relevance, I'd really have to defer you to the FISA
Court. But yes, there is an order that had been issued--and I
might add, it's just one piece of the order, there are other
aspects of it--that deemed that this information that was
accumulated satisfies the relevance standard in the statute.
Mr. Jeffries. Right, in order for the FBI to come to the
conclusion that it can legitimately pursue this information, I
presume that you also have to conclude that it's relevant
information. Is that right?
Mr. Mueller. Yes, for access to this information, it's
very, very limited. There has to be a showing of the
reasonable, articulable suspicion that the number that you are
seeking to search for is associated with terrorism. And there
is a very limited search of the data that is done to answer
that particular question. And that process satisfies the
relevance standard under the FISA Court.
Mr. Jeffries. Now, once you pursue information based on
that reasonable suspicion standard, what is the process for
attempting to acquire content information connected to that
metadata, presumably on a forward-looking basis?
Mr. Mueller. Well, if you want to get additional
information relating to that particular telephone number, you
would have to get additional legal process. For instance,
subscriber information. If you ultimately wanted to obtain a
wire interception, then there are additional legal processes
that you have to go through.
Mr. Jeffries. Now, under the general relevance standard is
it fair to say that it would be the FBI's position that this
type of metadata information should also be made available
pursuant to a court decision if it's sought connected to other
service providers beyond Verizon?
Mr. Mueller. Well, I can't talk to the specifics of the
program.
Mr. Jeffries. Okay. Is there anything that you can say as
it relates to why Verizon was deemed or Verizon users were
deemed particularly relevant in such a broad way as it relates
to every single user over a 3-month period of time across the
country of more than 300 million people?
Mr. Mueller. Well, again, it goes into the details of the
program that I can't get into in open session. I don't know
whether they got into this when you had the classified session
on Tuesday, but in open session it would be difficult for me to
respond.
Mr. Jeffries. Okay. Well, thank you. I respect that.
Switching topics, in terms of the sequestration impact that
it's had on the FBI, recently, I think the FBI has increased
its efforts connected to illegal piracy in the intellectual
property space.
Mr. Mueller. Yes.
Mr. Jeffries. That's an important step that you've taken.
Piracy impacts, obviously, commerce and our economy in
increasingly significant ways. Are those FBI efforts impacted
in any adverse way connected to your increased enforcement
efforts in the intellectual property space?
Mr. Mueller. I don't think this year. Next year they will
be. They will be impacted.
Mr. Jeffries. They have been impacted this calendar year?
Mr. Mueller. Across the board, my expectation is we have to
consider rather dramatic and drastic reductions across the
board.
Mr. Goodlatte. The time of the gentleman has expired.
Mr. Jeffries. Thank you.
Mr. Goodlatte. The Chair recognizes the gentleman from
Texas, Mr. Poe, for 5 minutes.
Mr. Poe. Thank you, Mr. Chairman.
I'm way over here, Director. I want to talk about a
constituent from Houston, Texas, named Catherine Engelbrecht.
In July of 2010, she and her husband, business owners, started
two groups, a nonprofit--hoping to be a nonprofit group--True
the Vote and King Street Patriots. December of 2010, the FBI
Domestic Terrorism Unit inquired about their attendees. January
of 2011, the FBI Domestic Terrorism Unit inquired about one of
their attendees. January of 2011, Catherine Engelbrecht
Enterprises were audited for 2008 and 2009. January of 2011,
True the Vote, IRS questions their nonprofit application. That
was the first round.
March of 2011, the IRS questions--excuse me, May of 2011,
King Street Patriots were visited by--rather members of King
Street Patriots went to the FBI after their request about
questions, how are they doing, anything you need to tell us or
report. October of 2011, True the Vote, IRS questions their
application. They wanted to know who their Facebook people
were, all of their tweets, who they were tweeting to, wanted
personal knowledge about their family, every place they had
ever spoken--this is Catherine--every place she intends to
speak, who they were speaking to, the names of the
participants, copies of transcripts, everywhere they intended
to speak, and they asked about 300 questions, including who is
doing the training, what are the backgrounds of the trainers.
And then they ask who your lawyers were and the background of
the lawyers that represented them and the qualification of the
lawyers, et cetera. I will furnish you the 300 questions, Mr.
Director.
Three more visits by mail, or by rather phone by the FBI,
June, November, and December to the King Street Patriots. And
then the IRS in February of 2012 questions the nonprofit status
again of True the Vote. This was the third round.
At that time, I sent to your office--excuse me, the
Department of Justice--an inquiry saying, is this group, these
people under investigation for criminal offenses? I get a
letter back from the Justice Department that says, they are not
under criminal investigation. But it continues. They were
visited later by the ATF. They were visited by OSHA, they were
visited by TCEQ. They were visited again by the IRS, fourth
round.
All of these IRS questions are coming from Cincinnati, and
they get finally another question from the IRS from Utah. That
was in March of this year. April of this year, here comes the
ATF again, another unscheduled visit to their business.
Now, I have read the civil rights law. It's important, and
you have a Civil Rights Division in the FBI to enforce civil
rights violations. The way I understand the law, you can't
target a certain group because of their beliefs. The IRS has
already said, we targeted--some people in the IRS--has already
targeted certain tea party groups because they were tea party
groups.
My question, without going into details, my question, in a
hypothetical case, IRS targeting groups with this information
that you have seen there inquired about, ironically, four
different agencies all inquiring about a group for over several
years, does that appear to be something that if a complaint was
filed with the FBI, the FBI would investigate as a civil rights
violation?
Mr. Mueller. Sir, I think that's part of the--would be part
of the ongoing investigation, I should say--of the
circumstances relating to the IRS that was initiated a number
of weeks ago. My expectation is this would be a piece of that
investigation.
You also indicate, though, that FBI agents visited these
individuals. I will go back and look at the predication for
that particular visit ourselves to follow up on that aspect of
it to the extent that these persons were paid visits by the
Bureau.
Mr. Poe. All right, thank you, Mr. Director.
I yield back my time. Thank you.
Mr. Goodlatte. The Chair thanks the gentleman, and
recognizes the gentleman from South Carolina, Mr. Gowdy, for 5
minutes.
Mr. Gowdy. Thank you, Mr. Chairman.
Director, I want to thank you for your service to our
country in the military as a prosecutor and as a law
enforcement officer.
I wanted to touch on three different areas. I want to start
with the Rosen affidavit because it states, in pertinent part,
there is probable cause to believe that a reporter has
committed a violation of the Espionage Act--and this is the
phrase I want to focus on--at the very least, either as an
aider and abetter and/or a co-conspirator. If the standard is
probable cause, why in the world would the affiant add the
phrase, at the very least, if they weren't contemplating a
prosecution?
Mr. Mueller. I don't know why the person would have added
those, that statement.
Mr. Gowdy. Well, you were a very distinguished Federal
prosecutor. I was not at all distinguished, but I was a
prosecutor. I don't remember ever adding surplusage, extra
wording, to an application for a search warrant. So I am vexed
by why the affiant would say, at the very least.
Mr. Mueller. I just don't know.
Mr. Gowdy. Also in the application for search warrant they
requested a nondisclosure order citing the five different
reasons. Now, it was my experience and I assume yours that the
affiant is under oath when they appear before a judge.
Mr. Mueller. Yes.
Mr. Gowdy. Do you know which of the five categories that
would need to be shown for a nondisclosure order was testified
to in this case, which of the five reasons statutorily that you
can seek a nondisclosure order were at play?
Mr. Mueller. I'm not that familiar with the facts to be
able to answer that.
Mr. Gowdy. But you would agree with me that when you're
before a judge and you're swearing out your affidavit, if you
ask for a nondisclosure order you have to have some evidence
that one of those five factors is in play?
Mr. Mueller. Well, I am not all that familiar with the
statute. I will say that when you file an affidavit everything
in there ought to be accurate and you ought to be prepared to
swear to every item in that.
Mr. Gowdy. Do you ever recall discussing the Rosen
investigation with the Attorney General?
Mr. Mueller. No.
Mr. Gowdy. Well, let me ask you this. If the affiant said
at the very least there is probable cause to believe a crime
has been committed, was there a discussion of indicting Rosen?
Mr. Mueller. Not that I had.
Mr. Gowdy. If you had more than probable cause why would
there not be discussion of indicting?
Mr. Mueller. Well, there may have been discussion, as you
well know, with the Assistant United States Attorney and the
agent in terms of what went in the affidavit. You have done any
number of, hundreds probable of affidavits yourself, and the
discussion between the lawyer and the agent is for the lawyer
to get what the agent knows in the course of the investigation,
can get it written up so that you can get the approvals that
you need. I'm sure that happened here. It did not come up, does
not come up to my level to have that kind of discussion.
Mr. Gowdy. All right. So it is fair to say that you were
not part of any conversations with respect to whether or not
something along the lines of an indictment should be considered
for the reporter, but you do not know whether or not the
conversations took place. But you yourself were not part of
them.
Mr. Mueller. I was not and had not.
Mr. Gowdy. Okay. Does the Bureau have a policy with respect
to shopping judges or not shopping judges? If you go to a
magistrate or you go to an Article 3 judge and you're denied,
is there a policy within the Bureau on judge shopping?
Mr. Mueller. No. Not that I'm aware of.
Mr. Gowdy. All right, let me switch gears. There was an
allegation this week of American diplomats being involved in
the alleged solicitation of prostitution overseas. Would the
Bureau have jurisdiction to investigate that?
Mr. Mueller. Have to look at that. Initially, I would say--
well, I'd have to look at it. I'd say no, but there may be, off
the top of my head, maybe I am missing something. I have to get
back to you on that.
Mr. Gowdy. If there were an allegation that the State
Department attempted to interfere with or influence the
investigation, is that something the Bureau would have
jurisdiction over?
Mr. Mueller. In the first instance, I'm not certain. We
may. Going back to the question about the activities overseas,
if it implicated the disclosure of U.S. secrets, for instance,
then we would have, perhaps, some predication for being
involved in the overarching investigation. As to the second
question, I just can't say.
Mr. Gowdy. I've been out of the business for a while, but I
think it may be a crime to travel for the purpose of soliciting
underaged sex. I could be wrong about that.
Mr. Mueller. Underage, yes. I do believe that that would be
covered. But I have to check on that.
Mr. Gowdy. All right.
Mr. Mueller. Like you, I have not done this work for some
time.
Mr. Gowdy. Yes, sir. All right. Finally, with respect to
Benghazi, and this is not a trick question, I think the answer
is obvious, the quicker you get to a crime scene, the better
you're going to be able to investigate it and process it,
right?
Mr. Mueller. Absolutely.
Mr. Gowdy. All right. And the Bureau did not get to the
crime scene in Benghazi for how long?
Mr. Mueller. I think 2 weeks.
Mr. Gowdy. And why did the Bureau not get to the crime
scene in Benghazi for 2 weeks?
Mr. Mueller. There were a number of factors, and the first
one relates to the state of security in Benghazi. There was no
security.
Mr. Gowdy. All right, I want to just stop you there because
I want to ask one more question and my time is out. I am asked
all the time back home in South Carolina, if Benghazi was not
safe enough for the premier law enforcement agency in the world
to go, how was it safe enough for us to send diplomats?
Mr. Mueller. That's another question that is not in my
bailiwick. I understand the question is being asked. I presume
it is a rhetorical question.
Mr. Gowdy. It is rhetorical unless you know the answer. I
can't answer it. I don't know.
Mr. Mueller. All I am saying is, rhetorical or not, I can't
answer.
Mr. Goodlatte. It is a good question, but the time of the
gentleman has expired.
Mr. Gowdy. Thank you.
Mr. Goodlatte. And we will look for opportunities to ask it
again.
And the Chair now recognizes the gentleman from Georgia,
Mr. Collins, for 6 minutes.
Mr. Collins. Mr. Director, I appreciate you being here, and
I appreciate--by the time we get to this, there are sometimes
rhetorical questions that seem to pop their heads up. And I
think this question, my friend from South Carolina brings a
very good point. There are things that people out in the world
look at and they see, and they are honest, hard-working folks,
and they look at these things and they say, this doesn't make
sense. And I think it just attributes to the disconnect that
many times happens with the folks who get up and go to work
every morning, and they look on their TV and they see what is
happening up here, and they say it just doesn't pass the smell
test. And I think that's some of the things that we're
concerned about.
But I want to go in a different direction. We've covered
the gamut. Our country wants to be safe. The people in the
Ninth District, they want to know that their government is
watching out for them. They want to know that there is sharing,
legal sharing, and not overreach, but legal work that is hard
work between police and law enforcement agencies and the
Justice Department.
My father was a state trooper for 31 years in Georgia. I
get it. But there needs to be a balance in there. So there is a
program called the Joint Regional Intelligence Group, and I
want to switch gears here. The Director of National
Intelligence issued a directive establishing the Joint Regional
Intelligence Group pilot program. The purpose of this program
will be to coordinate information sharing between foreign and
domestic intelligence communities.
We have been hearing from State and local law enforcement
that the FBI has largely taken control of standing up the pilot
program and that they have been excluded. Is that the case, or
is that your understanding of what is going on right now?
Mr. Mueller. And who would be excluded?
Mr. Collins. The State and locals feel like they're being
excluded here.
Mr. Mueller. This issue I think we've addressed in terms of
the regional intelligence centers. I know there was some
concern at some point that this is a new vehicle. We have, I
think, explained sufficiently to State and local law
enforcement that this is not anything new. It's a greater
integration of the intelligence capacity around the country.
Mr. Collins. So you're saying this is an existing program
and what the Director of National Intelligence is saying is not
new?
Mr. Mueller. Well, I'm not certain exactly which program
the Director of National Intelligence is talking about. I
thought you said regional----
Mr. Collins. The Joint Regional Intelligence Group.
Mr. Mueller. Joint Regional Intelligence, yes. It certainly
includes State and local law enforcement and there are various
parts of that particular undertaking, and you have to
differentiate between the various parts of that undertaking.
For instance, part of it is the role of our special agents in
charge is being in the various divisions or districts as being
in charge and being the person who is in charge for
intelligence collection, or coordination, I should say, under
the ODNI.
Mr. Collins. Okay, so and again, the understanding here,
tell me a little bit more about this program. Maybe we're
talking about the same program, maybe we're not. Because this
seemed to be more of a pilot program which would mean that it
was more--it was either integrating stuff that was already
there or starting something from you that may have been. Where
is this being located out of?
Mr. Mueller. Well, I guess I am confused in terms of
specifically what programs you're talking about under the ODNI.
I would be happy to get back to you----
Mr. Collins. Okay.
Mr. Mueller [continuing]. Specifically on this, as I can
read it, and assimilate it.
Mr. Collins. All right. In light of that--and we'll move on
and I appreciate you getting back to me about those questions--
a lot has been said about the Electronic Communications Privacy
Act. We sort of danced around a little bit of that. As you're
sort of in your last little bit here, I want to sort of open
this up and say, is it out of date? Would it be helpful for law
enforcement to have a clear standard of collection? And if so,
what do you believe that would be?
Mr. Mueller. Well, yes, I do think it is outdated. It does
need review. As I indicated before, I would caution against
raising standards for obtaining basic non-Fourth Amendment
information because you eliminate much of the data that
provides predication for further investigation. And so as one
looks at it, I would look at it to be updated, but also I have
some concern about raising standards, which would impact on our
ability to conduct cases, whether it be terrorism or otherwise.
Mr. Collins. Well, as I have a law professor who's
basically lamented many times on the demise that there was even
a Fourth Amendment even existing today in light of a lot of
things in cases that have been going on. Is there a way though
that we balance this in a new age and environment, in which it
seems to be metadata? We call it these things where it's
collection, but we're collecting on such large scales in this
electronic life. We've got a pretty hard line to focus here in
which we are protecting civil liberties yet giving access where
need be, where I think people would understand there would be a
reason to investigate.
Mr. Mueller. I do think that given the new technology, the
ability to communicate in any number of ways, that the statute
needs to be upgraded.
The concern comes, you can identify terrorists by looking
at substantial accumulations of non-Fourth Amendment protected
data. And in the case of a terrorist who wants to undertake an
attack to kill Americans, it may well be worth that balance. On
the other hand, what you want to protect against is abuse of
that collection of data.
Mr. Collins. And that hits. And the concern I have had--and
our time is done, but the quick question--depending on many-
year-old court decisions on what is, quote, ``metadata'' and
what is protected, I'm concerned that we're in a situation now
to where some of the older rules of things that didn't
understand this kind of technology may be balanced in a way
that we're going to have to look at it differently. Instead of
saying, well, it's always been okay under these circumstances,
and now try to apply it. Now, I think we may be trying apples
and oranges, and I think people are concerned about that.
Thank you, though, for your service. Thank you for being
here to answer the questions.
And I yield back.
Mr. Goodlatte. The Chair thanks the gentleman.
The gentleman from Idaho, Mr. Labrador, is recognized for 5
minutes.
Mr. Labrador. Thank you.
Thank you, Director, for being here, and thank you for your
service.
I was a criminal defense attorney, and I'm a little bit
confused by the answer from the Administration about the Rosen
investigation. It seems to me that how many times as an FBI
Director, or as an attorney, or in your law enforcement
practice, have you had the opportunity to investigate somebody
who you did not intend to prosecute?
Mr. Mueller. Well, as I said before, that happens all the
time, I mean.
Mr. Labrador. No, the question is--I want to be very
specific about this. Not that you don't prosecute after the
investigation, because that is the purpose of the
investigation, is to find out if you need to prosecute
somebody, but to actually look into people's private
information, private communications who you don't intend to
prosecute. Do you understand my specific question?
Mr. Mueller. I think I do, but I think we're maybe on--
we're passing each other, because you can--it can be a husband
and wife team that are avoiding taxes.
Mr. Labrador. Correct.
Mr. Mueller. At the outset you have probable cause to
believe that the wife was----
Mr. Labrador. Yeah, but you have probable cause to believe
that they are both committing a crime. And then you determine
after the investigation that one committed the crime and one
did not commit the crime, right?
Mr. Mueller. That's an option, yes.
Mr. Labrador. So tell me how often a prosecutor
investigates somebody who is not intended to be prosecuted,
that they don't intend at any time to file charges. Because it
seems to me that's much broader than the Fourth Amendment. If
that's what prosecutors are doing, then you're going beyond the
extent of the Fourth Amendment.
Mr. Mueller. You're a defense counsel, you know the
dialogue between defense counsel and the prosecutor as to
whether or not the person is going to be prosecuted in terms of
testimony.
Mr. Labrador. Correct.
Mr. Mueller. We make the decision day in and day out, and
we are not going to prosecute a particular person if they
cooperate with us. Now, often it'll be we will investigate him
for a period of time, then make a decision the person is better
as a cooperator, and consequently we have no thought about
prosecuting him. We want their testimony.
Mr. Labrador. But what this Attorney General said and what
you have said is that Mr. Rosen was never intended to be
prosecuted. I have never heard of an investigation, ever, where
you went after an individual when there was no intention to
find out if that person was going to be prosecuted. And that's
what I am having a hard time with.
Mr. Mueller. I am not certain I said that because I was not
in that position to make that determination.
Mr. Labrador. Well, that's what the Attorney General said
in this Committee. He said that there was never an----
Mr. Mueller. I'd have to go back and look specifically at
what the Attorney General said.
Mr. Labrador. But wouldn't you think that would be
inappropriate then, to go after somebody that you don't intend
to ever prosecute, because that has been the excuse of this
Administration. I'm having a hard time with that excuse.
Mr. Mueller. I'd have to give thought about that, but I do
think there are a number of occasions as a prosecutor where we
have the ability, the capability, and maybe the intent at the
outset, and then we make a determination, for whatever reasons,
whether we want the cooperation or other things, where we make
a determination that we're not going to go forward.
Mr. Labrador. And I agree with you.
Mr. Mueller. And there are competing interests.
Mr. Labrador. When you make a determination after the
investigation has occurred. But the problem with the Rosen
subpoena, and the problem that we had with this investigation,
is that Mr. Rosen was never intended to be prosecuted,
according to the Attorney General. So this was a fishing
expedition, something that I think went beyond the Fourth
Amendment, which wasn't necessary. And that's why they had to
go around shopping for different judges who would actually
approve of this subpoena.
Mr. Mueller. Well, I don't perceive it as being a fishing
expedition at all. As I indicated previously, in these
investigations you focus on, we, the FBI, focus on the leaker
from the Federal Government. That's the person who we want to
identify and to ultimately prosecute. To do that we have to
show that the information went from this person to the person
who ultimately published it. And as part of the investigation,
you gather facts in terms of how that information got from the
individual who had the security, or had the----
Mr. Labrador. But when you go to the judge, you tell the
judge that you are intending to prosecute this person, or this
person has violated the law in some way, or you have reasonable
suspicion to believe that this person has violated the law. How
often have you as a law enforcement officer submitted a
subpoena to a judge saying that somebody--you suspect somebody
violated the law when you had no intention to ever prosecutor
that person, you didn't think that your investigation was going
to lead to the prosecution of that person?
Mr. Mueller. I have to think about it. Under those
circumstances, the way you say them, I have to think about it.
Mr. Goodlatte. Would the gentleman yield?
Mr. Labrador. Yes.
Mr. Goodlatte. I thank the gentleman, because he is asking
a very important line of questions and I would ask him if he
would allow me to ask this question.
If the allegations made in that case with regard to Mr.
Rosen violating the Espionage Act, saying that he was--that
there was probable cause to find that he was not--he was at
least an aider, abetter, or co-conspirator in violation of the
Espionage Act, later said that he was a flight risk, and you
asked that the record be sealed for 18 months, if those indeed
were the facts, if those indeed were the case, why wouldn't you
prosecute the individual?
Mr. Mueller. There may be other competing interests.
Mr. Goodlatte. Like what?
Mr. Mueller. The First Amendment.
Mr. Goodlatte. What's that?
Mr. Mueller. The First Amendment. There can be other
competing interests. The First Amendment.
Mr. Goodlatte. Okay, but that just goes right back to the
question asked by the gentleman from Idaho. If the First
Amendment, which I think is of paramount importance here, is
indeed that consideration, then why would it be appropriate to
go before the court, before the judge, and say all of these
things about the individual in order to get a search warrant to
go through his email records without his knowledge?
Mr. Mueller. I'm not familiar----
Mr. Goodlatte. If you're not going to prosecute him, why
not tell him? Why not tell him?
Mr. Mueller. I am not that familiar with the discussions
that went on, first of all, at the level of the Assistant
United States attorney and the agent who was on it, or as it
went through the Department of Justice.
Mr. Goodlatte. Thank you.
I thank the gentleman for yielding. And I'll yield him an
additional minute if he wants to pursue the question.
Mr. Labrador. Thank you. Mr. Chairman, you have asked my
questions.
Thank you very much for being here.
Mr. Goodlatte. Now, this concludes the hearing today.
Director, we thank you. You have given us more than 3 hours of
your time. You have answered a lot of questions, a lot of
difficult questions, and we very much appreciate that. I will
join all of my colleagues and I think virtually every one of
them thanked you for your service. If they did not, I'm sure it
is because they neglected to do so. You have a remarkable
record as Director of the FBI. I do think there are some
questions here that remain that you were not able to answer. We
will submit questions to you in writing. And I think you have
made a few commitments yourself to do that. We would find that
very important to have those additional pieces of information.
And without objection, all Members will have 5 legislative
days to submit additional written questions for the witness or
additional materials for the record.
And with that, with our thanks again, the hearing is
adjourned.
[Whereupon, at 1:10 p.m., the Committee was adjourned.]