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Inspector General Fine Testifies Before Judiciary Committee

Aired June 6, 2002 - 10:11   ET



SEN. PATRICK LEAHY, SENATE JUDICIARY COMMITTEE: Inspector General Fine, would you go ahead, sir? And we appreciate having you back here, as we always have on other occasions when you've been here.

GLENN FINE, INSPECTOR GENERAL, JUSTICE DEPARTMENT: Thank you, Mr. Chairman, Senator Hatch and members of the committee. I appreciate the opportunity to appear before the committee to discuss the work of the Office of the Inspector General relating to counterterrorism issues in the Department of Justice.

At the outset, let me express my respect for the many employees and department components, like the FBI and the INS, who serve on the front lines in our nation's counterterrorism efforts. While the OIG has found significant deficiencies in FBI and INS operations over the years, this should in no way diminish the important contributions that thousands of employees at these agencies make on a daily basis.

Since the September 11 attacks, the OIG has redirected significant resources to examine programs and operations that relate to the department's ability to detect and deter terrorism in the United States. This morning, I will highlight a few of the reviews that are discussed in greater detail in my written statement.

The OIG recently released a lengthy report that examined why the INS mailed forms notifying a Florida flight school that two September 11 terrorists had received approval to change their immigration status from visitors to students six months after the terrorist attacks. The OIG found that the INS' adjudication of Mohammed Atta's and Marwan Al- Shehhi's change of status applications and its notification to the flight school were untimely and significantly flawed.

First, the INS took more than 10 months to adjudicate the applications. As a result, they were not adjudicated until well after the two had finished their flight training course.

Second, the INS adjudicator who approved their applications did so without adequate information, including the fact that Atta and Al- Shehhi had left the country two times after filing their applications, which meant that they had abandoned their request for a change of status.

And third, the notification forms were not send to the Florida flight school for an additional seven months, because the INS failed to adequately supervise a contractor who processed the documents.

Atta's and Al-Shehhi's case highlights important weaknesses in the INS' handling of foreign students. Historically, the INS devoted insufficient attention to foreign students and its current paper-based tracking system is inaccurate and unreliable. SEVIS, the new Internet-based system the INS is developing has the potential to dramatically improve the INS' monitoring of foreign students.

But unless the INS devotes sufficient resources and effort to implement and use SEVIS effectively, many problems will continue to exist. Our report offers 24 recommendations to help address the problems we found.

We have also conducted five follow-up reviews after the September 11 attacks that examine the INS' efforts to address national security deficiencies that were highlighted in previous OIG inspections. These reviews examine the INS' progress in securing the northern border, linking INS and FBI automated fingerprint identification systems, the visa waiver program, addressing security concerns regarding the transit without visa program, and tracking non-immigrant overstays. In each of these follow-up reviews we found that many of the security concerns we identified in our original reports continued to exist.

Let me now turn to OIG reviews in the FBI. The OIG has initiated a wide range of audits, inspections and investigations in the FBI related to information technology, counterterrorism and national security issues. I testified before this committee in March of this year about the OIG report on the belated production of documents in the Oklahoma City bombing case. That review highlighted the significant weaknesses in the FBI's computer systems, which we found to be antiquated, inefficient and badly in need of improvement.

We concluded that the FBI's troubled information systems are likely to have a continuing negative impact on its ability to properly investigate crimes and analyze information throughout the FBI. Following up on these findings, the OIG is currently reviewing whether the FBI is adequately managing the acquisition of its information technology systems. We are also reviewing, in another audit, how the FBI managed the counterterrorism funding it has received since 1995. As part of this review, we are evaluating the processes by which the FBI determines its counterterrorism resource requirements, manages those resources, conducts threat assessments and develops its strategic planning related to counterterrorism.

Another ongoing OIG review is examining the FBI's allocation of resources to investigate the varied crimes under its jurisdiction. Our objectives are to determine the types and numbers of cases the FBI investigates by office over time, assess performance measures for FBI casework and determine of the mix of cases investigated by the FBI comports with FBI priorities.

Last week, the OIG initiated an investigation that will examine aspects of the FBI's handling of information and intelligence prior to the September 11 attacks. Investigation will focus on, among other things, how the FBI handled an electronic communication written by its Phoenix division in July 2001, and issues raised in the May 21, 2002 letter to the FBI director from Special Agent Coleen Rowley.

The OIG had conducted a preliminary inquiry in the fall of 2001 into the handling of the Phoenix EC at FBI headquarters. We determined that the matter should be referred to the Senate and House Intelligence Committee's joint inquiry, the congressional committee that had been established to review the range of intelligence and law enforcement information related to the September 11 attacks.

Our referral to the joint inquiry was based on our view that the Phoenix EC should be analyzed in the context of other information available to and handled by the FBI and other intelligence agencies prior to September 11.

However, in light of recent events and several requests for the OIG to conduct a full review of how intelligence information was handled tat the FBI prior to September 11, including a specific request from Director Mueller, we have agreed to undertake a full investigation of the Phoenix EC, the issues raised by Special Agent Rowley's letter, and the FBI's handling of other intelligence information prior to the September 11 attacks.

Finally, I would like to briefly mention FBI whistleblower issues. One of the most important changes the FBI can make as it looks to the future is to foster a culture in which employees are able to raise deficiencies in programs and operations without fear of retaliation. In my statement, I describe the regulations that apply to FBI whistleblowers. The OIG supports strong protections for FBI whistleblowers as a way to improve agency operations. In the past, FBI whistleblowers have been the impetus for significant positive change in the FBI.

In sum, we believe that these important OIG reviews that we have conducted and are conducting within the FBI will provide useful information and analysis to the department and Congress in conducting oversight of the FBI's critically important mission.

That concludes my statement, and I would be pleased to answer any questions.

LEAHY: Thank you.

You did -- the memo to do the inquiry on the Phoenix electronic communication, you got that in September, is that correct?

FINE: We received it September 29 -- I believe it's September 28 we received the Phoenix EC from the FBI.

LEAHY: And you gave it to the joint committee two weeks ago?

FINE: We gave the results of our preliminary inquiry on, I think, May 22, correct.

LEAHY: About six months later. More than that.

Director Mueller, the Phoenix EC, or electronic communication, is classified, but let's just -- referring just to what's been in the press accounts it's made clear that this July 2001 document warned about radical Middle Eastern fundamentalists, connected to terrorist groups, attending flight schools in this country, possibly for purposes of training for terror operations. The warning was certainly relevant to the profile of Zacharias Moussaoui, especially at the time when the Minneapolis field office and the headquarters personnel were trying to complete a FISA application.

FISA, again, for everybody watching, is the special foreign intelligence court, and they were trying to get an application to the FISA court for possible searches. Now, it's obviously -- it's very apparent that the information in the Phoenix EC would have helped bolster the request for a FISA search on Moussaoui.

Now, you told us on May 8, at your last appearance before the committee, that the Phoenix memo was not used by agents who were investigating the Moussaoui case in Minnesota or at headquarters. But the Phoenix EC was just that -- electronic communication that was uploaded onto the FBI's computer. It was sent to headquarters on the FBI's computer system. I understand it was accessible both at headquarters and in certain field offices on the FBI's automated case system. But it was not accessible in the Minneapolis field office.

LEAHY: Is that correct?

ROBERT MUELLER, DIRECTOR, FBI: I believe that is -- I understand that is correct.

LEAHY: Well, if the EC was fully accessible in the FBI's automated case system, did the agent or headquarters do what most of us are used to doing on a computer, do a routine search for key words like "aviation schools" or "pilot training"?

MUELLER: Well, in response to the question as to whether or not the Phoenix EC was available to other offices around the country, my understanding is that it was not available to other offices around the country. It was, quite obviously, available to headquarters. It was sent to headquarters. And it was available to other offices to whom that EC was sent: New York, I believe, and, perhaps, one other office out West.

LEAHY: Well, let's just take those to which it's available, headquarters. Did they do a search beyond just a name, but do things like "aviation schools" or "pilot training"?

MUELLER: It's my understanding that they did not.

LEAHY: That would have been helpful if they had, wouldn't it?

MUELLER: I believe it would have been helpful, and one of the things that I have stated on many occasions is that what I would hope to have in the future is the technology in the computer system that would better enable us to do exactly that type of search. It is very cumbersome, very difficult, for a variety of reasons, given our technology, to do that kind of search now.

My hope in the future is to have the kind of soundex searching capability that would give an agent the capability of pulling out any EC relating to aviation. And beyond that, my hope is that we would have the capability of some form of artificial intelligence so we wouldn't have to make the query.

LEAHY: But the...

MUELLER: The technology itself would alert us to those commonalities.

LEAHY: That, of course, is something a number of us on this committee have been urging the FBI to do for years, I mean, long before you came there. And I really think it's very much, as I've said at other hearings, very much of an Achilles heel that you can't do the kind of things that all of us are used to doing on our computers if we're looking for the best buy on an airplane ticket or something we want to purchase.

The so-called Woods procedures that were put in place April 15 -- and thank you for having the procedures declassified. I don't know why they were classified in the first place, but I do appreciate you having it declassified so the committee members here can have them. But that talks about processing place of applications. It directs agents in the field to do an ACS computer search for targets to see if any other information pops up.

And there's a requirement for headquarters personnel to check the ACS system. And I would assume, am I correct, that that would be because headquarters personnel are apt to have access to more information than a field agent might have, is that correct?

MUELLER: I think it's to make certain that we cover both bases. That for purposes of the court, the court needs to know whether there are other outstanding investigations relating to those targets. And consequently, it is important that the searches be done by the case agent who is most familiar with the facts of the case, but also more broadly in headquarters to assure that nothing is overlooked.

LEAHY: In fact, the Woods procedures tells the case agent to do that.

MUELLER: I am not intimately familiar with the Woods procedures, but I believe that's the case.

LEAHY: So if they don't do the search, either in the field or headquarters, they actually violate the FBI's own procedures.

The reason I bring this up is that we're talking about new procedures, I would hope they were following the procedures that were already in place. I mean, this is a case where we're going to go back and forth on whether there could have been a FISA application on Moussaoui, whether there could have been the kind of searches that, in hindsight, we all wish had been done, but yet all the information was there, and I think they could have gone to it.

MUELLER: Mr. Chairman, I think there's a -- the searches are done for the FISA under the Woods procedures, as I understand it. And I would have to go back and review to make certain. But go through and search the names to determine whether any of the names that are going to be the subject of the scrutiny in the FISA that have turned up in any other investigation, as opposed to picking up a piece of information from an EC which relates, for instance, to flight schools.

And what we have to do a better job of, both technologically and with the analytical capability that I am suggesting that we are establishing, is to pull out pieces of information from an EC that may relate to flight schools and be able to put that together with other pieces from other investigations, not just focusing on the targets and the names of the individuals who are the subject of the scrutiny, which I believe, if I'm not mistaken, the Woods procedures are in part directed toward.

LEAHY: But in fact, it would make just common sense that it's going to be a lot more than just the names. I mean, it's the type of things they're doing in method of operations and so forth, they could be very, very important. I mean, people can change names very easily. What they're trying to accomplish, though, is what we're interested in, is that not correct?

MUELLER: That's correct.

LEAHY: And you talked in your organization, reorganization, forming flying squads to coordinate national and international terrorism investigations. The attorney general has announced new FBI investigative guidelines to allow field officers more discretion to open these terrorism cases without headquarters' approval, in fact, be able to keep them open for as much as a year before they're reviewed at headquarters.

Were you involved in crafting these new guidelines?

MUELLER: I know we in the FBI, we had individuals who consulted with and participated in discussions with the Department of Justice, yes.

LEAHY: Did you sign off on them?

MUELLER: I was aware of the guidelines, yes.

LEAHY: Senator Grassley and I wrote to the attorney general, asking that he personally guarantee full whistleblower protection for Special Agent Rowley. I'll let Senator Grassley speak for himself, how he thought about the response. I think he was disappointed by it.

Can you personally assure this committee unequivocally there will be no retaliation of any kind against either Coleen Rowley or Kenneth Williams or any FBI employee because they provided information to the Congress or the inspector general or any supervisory FBI official about counterterrorism efforts?

MUELLER: Absolutely. I issued a memorandum November 7 reaffirming the protections that are afforded to whistleblowers, in which I indicated I will not tolerate reprisals or intimidation by any Bureau employee against those who make protective disclosures, nor will I tolerate attempts to prevent employees from making such disclosures.

In every case where there is even an intimation that one is concerned is about whistleblower protections, I immediately alert Mr. Fine and send it over so that there is an independent review and independent assurance that the person will have their protections warranted.

When I go around the country and talk to the various offices, you know, one of the things I say is that the good news always comes to the top. What does not come to the top is the bad news. What does not come to the top are those things that need to be changed. What I need to know are those things that are broken that need to be fixed.

And throughout those discussions in the field offices or with individuals, I reiterate, I want people around me who will tell me what is happening. I want people in the field to tell me what is happening. I cannot get out to talk to every one of the 11,000 agents out of the 27,000 employees, but I need to know what's happening throughout the field. And I encourage, welcome, the criticism, the insight, the suggestions, whether it be from within the organization or from without the organization.

LEAHY: And the reason I ask, of course, Mr. Director, is that the FBI is currently exempted for the Whistleblower Protection Act, so we have to rely on your assurance. And I accept your assurance.





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