The Honorable Patrick Leahy
United States Senator
Vermont
May 20, 2004
Statement of Senator Patrick Leahy,
Ranking Democratic Member, Senate Judiciary Committee
FBI Oversight: Terrorism and Other Topics
May 20, 2004
Director Mueller's First 1000 Days
Good morning, Director Mueller, and welcome back to the Committee. We thank you and the Bureau's hard-working and skillful staff for all you do on behalf of the safety and security of the American people, especially during these difficult times. We know you have one of the toughest jobs in America.
If I have occasion to sound somewhat abrupt as we begin this hearing, it is because of my frustration at the circumstances under which we must now make the most of your time. For some reason, the decision has been made to schedule other business of the Committee before your testimony, and on a day with a number of floor votes and with competing obligations that some of our Majority members have this morning.
This also happened the last time you were here. We kept you waiting for hours while we held a contentious executive business meeting. We wasted your time, we wasted our other witness's time, and we squandered our own time, because by the time you had to leave, there was scarcely enough time for opening statements and one short round of questions.
These scheduling matters are not our call. In fact I had urged that your hearing be scheduled for a time certain this morning and that we resume the markup thereafter. I apologize to you and hope you will find time to join us again, soon, so that we can cover the many important matters of interest to Members of this Committee that we will not be able to get to today because of the way in which the Majority has again chosen to proceed.
Your testimony before us will never be considered as an afterthought by me or by others who share a commitment to oversight and government accountability. We need to hear from you on a myriad of issues that directly affect our legislative and oversight responsibilities. Your testimony should always be our lead agenda item when you are invited to Capitol Hill.
Difficult Issues And Constructive Criticism
Director Mueller, you know that I have been supportive of your efforts to more effectively concentrate the FBI's resources on the threats and challenges that the Nation faces today. As Chairman of the Committee at the time of your nomination, I worked hard to clear the path before you. I have done what I can since then to help you reform and refocus the Bureau. When I have had concerns, I have sometimes raised them with you privately, and I have always tried to be constructive. I very much wanted you to succeed then, and I want you to succeed now. And that is the spirit in which I will raise several difficult issues that need to be addressed during our discussion today.
Nicholas Berg's Last Weeks in Iraq
I want to turn briefly to the war in Iraq because there are so many unanswered questions regarding the case of Nicholas Berg, the American who was so brutally murdered earlier this month. In addition, we await a great deal of information from the Administration regarding the interrogation and treatment of prisoners in U.S. custody in Iraq and elsewhere.
Regarding Mr. Berg, questions have been raised about the circumstances that prevented his leaving Iraq in March, as he had planned. Mr. Berg's father claims that his son was detained illegally by the U.S. military for nearly two weeks, and would otherwise have been able to leave Iraq before the violence worsened. The FBI acknowledges that it questioned Mr. Berg repeatedly about what he was doing in Iraq, but says that the Iraqi police, not the U.S. military, held him in custody. The Iraqi police insist that they never arrested Mr. Berg and had no knowledge of the case. A coalition spokesman has promised a thorough investigation, and said that the FBI would probably have overall direction of that inquiry.
I said last week that I would try to be of assistance to Mr. Berg's family and to Senator Specter, as he does his best to help them obtain information. Director Mueller, I will ask you today about the FBI's role in the detention and interrogation of Mr. Berg, and what steps American authorities took to secure his safety and his safe departure from the war zone.
Civilian Contractors
It is clear from the Berg case that the FBI is operating in Iraq. We need more information about what FBI agents are doing there. I hope that the FBI is investigating the alleged abuse of Iraqi prisoners by civilian contractors, who, as we all know, are not subject to military courts martial.
In 2000, Congress closed a jurisdictional gap that previously existed for crimes committed by American civilians who work as employees or as contractors to the military and who are deployed with our forces oversees. Under the Military Extraterritorial Jurisdiction Act, which I worked with Senators Sessions and DeWine to enact in the 106th Congress, a contractor or subcontractor of the military can be prosecuted in Federal court if the crime of which he is accused is a felony when committed in the United States. Two weeks ago, I asked the Assistant Attorney General for the Criminal Division whether the Department was involved in investigating the allegations against civilian contractors and was told that it was not. I asked to be kept abreast of developments and needless to say have not heard another word from him.
The Department of Defense has yet to promulgate regulations under MEJA. Curiously, it finally got around to proposing rules to implement the law on February 2, 2004, a few weeks after it began a criminal investigation into the reported abuses at the Abu Ghraib prison. But even without regulations, the law can be used. In fact, it was used last year to prosecute the spouse of an Air Force staff sergeant. She was charged in connection with the death of her husband at Incirlik Air Base in Turkey.
I have asked Chairman Hatch to hold a hearing on the reported abuse of prisoners by Americans in Iraq. Given the wide-ranging jurisdiction of the Judiciary Committee over civil liberties and prisons, the reported role of civilian contractors, and our role in enactment of the Military Extraterritorial Jurisdiction Act, we have a responsibility to act.
FBI Knowledge of Questionable Interrogation Practices
We have all seen the photos from Abu Ghraib. Red Cross observers who witnessed some of the abuse concluded that it was, in some cases, "tantamount to torture."
Torture is a crime. It is a crime under the Convention Against Torture, to which we are a party, and it is a crime under our Constitution. It is a crime whether it happens in this country or any other country. It is a crime whether it is an American soldier who is the victim or a suspected member of al Qaeda. Use of torture and other abuses of those in U.S. custody endangers our troops and our civilians overseas, and it undermines our national security and foreign policy interests abroad. But even when the authorities were warned about it, and were asked about it, and the press and human rights groups wrote about it, the Administration did next to nothing. In fact they ignored oversight inquiries, they made self-serving, reassuring statements that turned out to be false, and they continued to let it go on.
Torture is also a notoriously unreliable means of extracting information. Senator McCain has discussed this on many occasions, and I tend to trust his judgment based on his experience as a POW in a North Vietnamese prison. Senator McCain recently said, "history shows that mistreatment of prisoners and torture is not productive. ... You don't get information that's usable from people under torture because they just tell you whatever you want to hear."
A recent New York Times article made the same point. It told the story of one Iraqi prisoner in Abu Ghraib, who said that after 18 days of "being hooded and handcuffed naked, doused with water, threatened with rape and forced to sit in his own urine," he was "ready to confess to anything." When his interrogators asked him about Osama bin Laden, he replied, "I am Osama bin Laden. I am disguised."
According to the Army's own field manual on intelligence interrogation, "experience indicates that the use of force is not necessary to gain the cooperation of sources for interrogation. Therefore, the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear."
A recent issue of the FBI Law Enforcement Bulletin stated that felons are more likely to confess to an investigator who treats them with respect, and the interview should be a "seduction, not a showdown."
Press accounts from last week suggested that the FBI shied away from participating in or observing certain interrogations of terrorism suspects. The New York Times reported on May 13 that "FBI officials have advised the bureau's director, Robert S. Mueller III, that the interrogation techniques, which would be prohibited in criminal cases, could compromise their agents in future criminal cases."
For over a year I have sought answers from the Department of Justice, the FBI, the CIA and the Department of Defense regarding reported, and in some instances documented, cases of the abuse of prisoners in U.S. custody. But this was the first time I encountered a mention of the FBI's knowledge of such practices. I look forward to exploring this issue today.
FBI Reform Still Overdue
Almost 1,000 days have passed since September 11, 2001, and since you took over the helm at the FBI. This Committee and the Senate moved your nomination in record time in the summer of 2001. Since your confirmation three years ago, we have been assured that big changes are taking place at the FBI and, to be sure, we have seen some changes -- at least on paper. There are new leadership positions; offices have been reorganized; fancy new "systems" and "programs" with impressive names like the "Secure Collaborative Operational Prototype Environment (SCOPE)" and the "National Criminal Intelligence Sharing Plan" have been announced.
But in our oversight role, this Committee examines actions -- actions that often speak louder and clearer than any words or acronyms.
It has been said that if you want to truly understand something, try to change it. Out of the tragedy of September 11, we tried to understand the FBI, and we learned the institution had serious problems. And in trying to change it, we understood more about the bureaucratic culture that has made these problems so difficult to solve.
This past April, the 9/11 Commission dealt the FBI some of the worst criticism yet. The Commission found that much of the FBI does not work, and Commissioners expressed uncertainty as to how to fix it. In the months ahead, this debate will inevitably turn to whether the FBI is the right agency for the job of handling domestic intelligence and counterterrorism. Some believe it is not -- because the FBI=s foundation in criminal investigation is simply too ingrained, its culture of arrogance too entrenched, its bureaucracy too enmeshed with an administration unable to admit a mistake. I know Director Mueller feels differently.
Of course, none of us who have expressed concern about the FBI question the dedication and professionalism of its personnel. FBI agents risk their lives every day, both here at home, and, increasingly, overseas. FBI analysts and support personnel are as committed as ever. But the organization has to change. After 9/11, our trust in the FBI can no longer be blind. The American people need the FBI to be more effective than ever before.
Nearly three years later, after a lot of talk, this introspective phase seems neverending. Since you last testified in July 2003, more questions have arisen and old ones still linger.
Fighting terrorism is the Bureau's overriding concern. But we have yet to see to a successful prosecution here or abroad of a single 9/11 conspirator. Many are confused by a war in Iraq that is not directed at justice for the 9/11 victims; for that matter, a war that is not even about weapons of mass destruction, much less Osama bin Laden.
With the Madrid bombing that left nearly 200 dead, and hundreds more injured, we learned recently that an American may have been involved. Could this terrorist attack have been prevented? Did the record number of FISA wiretaps that have been in place since 2001 not provide a single hint of that terrorist plot?
The ricin scares that closed the Capitol last February have barely been addressed. There have been no charges brought in connection with the anthrax attacks in 2001. Instead we read headlines of lawsuits charging the Attorney General with inappropriate statements and FBI overreaching. Another high-profile prosecution of a terrorism ring in Detroit is also riddled with accusations of Justice Department misconduct and retaliation by the Attorney General.
The killer who mailed anthrax-laced letters to Senator Daschle and to me in October 2001 is still at large and we have done nothing to compensate those postal workers and others and their families who were killed or have suffered by exposure to that deadly poison.
Also alarming, the FBI has not solved even its most basic problem: Its information technology systems are hopelessly out of date. In this regard, the FBI is not much better off today than it was before September 11, 2001, when it was unable to do a computer search of its own investigative files to make critical links and connections. By all accounts, the Trilogy solution has been a disaster.
I know you are going to tell me that two phases of Trilogy were completed this past April. Yes, I know that all special agents of the FBI at last have their own computers and can send emails to each other. This is hardly a noteworthy accomplishment in this information age -- especially 500 to 600 million dollars later. But the fact is that the Automated Case System - the same system that was part of the equation of intelligence and law enforcement failure in 2001 - is still the primary IT tool for agents.
We have been told for years now that the Virtual Case File (VCF) would mean the end of an agency still heavily reliant on paper files. VCF=s deadlines have been pushed back for months -- I am not even sure what it is now. I patiently waited, believing that VCF was what the FBI needed. So it was shocking to me, as it must have been to you, to review the May 2004 report of the National Academy of Sciences, which concludes that the VCF is not designed to, and will not, meet the FBI=s counterterrorism and counterintelligence needs.
Staying on the subject of information technology, we need to make sure that the FBI has the capability of dealing with new technologies for communicating over the Internet that may not have been covered by the CALEA. Congress passed CALEA in 1994 to address the law enforcement concerns that emerging technologies such as call forwarding and mobile phones had on wiretap efforts. CALEA required telecommunications services to rewire their networks to support easy wiretapping. The FBI recently asked the FCC to extend CALEA to broadband Internet providers, but this is an issue that needs to be addressed by this Committee. I hope that Chairman Hatch agrees, and that we can work together on this. We must now grapple with the new technologies that have transformed the world since CALEA was signed into law a decade ago. Director Mueller, I am interested in your thinking on how Congress can be helpful here.
Then there's the FBI's internal disciplinary system, which has for many years gravely impacted agent morale and engendered public skepticism. The FBI=s response to the Inspector General's report last fall was disappointing. I could not find a single public statement by the FBI indicating a willingness to address and take responsibility for the specific findings in the Report itself -- many of which were not positive about the FBI.
Director Mueller, last year I asked questions about Katrina Leung, the FBI confidential informant, and James Smith, her former FBI handler, who were indicted in an espionage case that implicated serious security lapses at the FBI. Senators Grassley, Specter and I asked Chairman Hatch for a hearing to examine issues raised by this case. Unfortunately, our request was refused. Last week I learned about the agent=s plea to a lesser charge on the CNN website.
With key issues like the Iraqi prisoners and Trilogy up for discussion, other important topics like the PATRIOT Act may get short shrift today. That is unfortunate. As former prosecutors, you and I both know that public perception of unfairness and overreaching is nearly as detrimental to the criminal justice system as the reality of it. A law that touches upon complex issues as varied as foreign intelligence gathering, immigration, and international money laundering, among other things, could surely benefit from a closer examination. But this Administration just wants a blank check on its extension and recently came before this Committee to ask that the law be expanded further with vague language.
The courts have barely had time to grapple with legal issues implicated by its passage. And only the government really knows what goes on in the secret FISA court. With Senator Grassley, Senator Specter, and others, I continue to press for legislative changes that would shed some light on the operations of that court, but to no avail. We are left to speculate why, for example, four FISA applications were sought in 2003 but rejected. Were there errors in agent affidavits, like those that brought about the Woods memorandum? Is there still internal confusion about the standard for probable cause? With the paucity of legal reporting obligations in PATRIOT, and the secrecy with which this Administration has decided to operate, it is doubtful you can even answer these questions for me today, Director.
In addition to FISA, I could also spend an entire session talking about the foreign translation program at the FBI, the 41,000 hours in backlogged material needing to be translated and other issues I have raised by letter and statement over the past two years. How is the monitoring of an unprecedented 1,727 new FISA wiretaps impacting critical FBI resources? How do these numbers "translate" to the Bureau=s ability to obtain, understand, assess, analyze and, if necessary, act upon threat information obtained in a foreign language and from a foreign culture?
On March 2, 2004, I asked Chairman Hatch for a hearing on this singular topic but there has been no response. If I am left with time to ask only one question today, it will be: Is the Foreign Translation Program where you want it to be, right now, today, as of this moment? This service is vital to our understanding -- literally and figuratively -- of virtually every piece of intelligence information from the Middle East. Is the program working at 110 percent? If not, why not?
It has been nearly three years since Congress directed the Attorney General to prepare a comprehensive report on the FBI's translator program. I authored that reporting requirement - and it was a requirement, not a request. I worked to include it in the USA PATRIOT Act so that Congress could better assess the needs of the FBI for specific translation services, and make sure that those needs were met. Unfortunately, this provision of the PATRIOT Act appears to have landed in the same inbox at the Department of Justice as so many of our oversight letters.
Director Mueller, we would like to see you again this session. This month, the Committee is engaged in an important debate on a bill that federalizes virtually every violent street crime imaginable. This is also a topic from which we would all benefit by your insight, particularly given your unquestioned expertise in this area. I, for one, am unaware of any input that the FBI may have had on this bill. Is the FBI ready to add to its "to-do" list, the increased investigation of street gangs, state murders, state obstruction of justice cases, carjackings, and 16- and 17-year-old defendants? And earlier this week your deputy assistant director of counterterrorism came before this Committee to urge us to expand federal criminal law to encompass "harassment" of corporations that conduct testing on animals as a top federal law enforcement priority. This suggestion comes, even as civil rights cases, health care fraud and corporate crime investigations take a back seat to the most urgent FBI priority: fighting terror.
We also want to hear from Attorney General Ashcroft. It has been nearly 15 months since his last appearance here. I never thought that the military commanders in Iraq, General Sanchez and General Abizaid, would testify in the Senate before we would see and hear from the Attorney General of the United States. It leaves one to wonder if the cicadas appear on Capitol Hill more regularly than the Attorney General of the United States.
This hearing comes at an important time. One thousand days is an important milestone. Your job is not an easy one in the best of circumstances. You could not have known, when you took the job, that the world would change only seven days later, and that the FBI would have to change with it. To quote an old German proverb, to change and to change for the better are two different things. In these 1,000 days, has the FBI changed for the better?
Thank you for coming. We look forward to hearing from you today.
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