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CNN Live Event/Special

Senate Judiciary Hearing on FBI, Part V

Aired June 06, 2002 - 11:38   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
DARYN KAGAN, CNN ANCHOR: As we stand by and wait for the Senate Judiciary Committee to get under way, once again looking at the intelligence community. Let's bring in our Capitol Hill correspondent Kate Snow, and talk a little bit about what we have already heard this morning.

Kate, one of the matters that a couple of the Senators touched on, they seem very concerned with not only whistle-blower protection for people like Coleen Rowley and others who might come forward, but the quality of that protection. They want assurances from Robert Mueller that they are going to -- that these people would have more than just their jobs, that they would have worthwhile careers.

KATE SNOW, CNN CORRESPONDENT: Right, it's interesting, Senator Chuck Grassley, a Republican from Iowa, who has long been a big critic of the FBI. He is a friend of the FBI, but he also criticizes them a bit. He says how can you guarantee she won't just lose her job, but won't be transferred to some place out in the middle of nowhere, and he pointed out that Attorney General John Ashcroft the other day on a television program had only said she would not lose her job. He said, are you trying to send us a message here that she may be transferred.

To that, Mueller said, look, I cannot be more clear about this, I want to protect people who come forward with issues and problems. He said, my feeling is that it is better to look at problems than to shove them under the carpet.

So he gave a very clear answer that he felt that they needed to be protected, that he would he do everything in his power, not just for her, but for anyone who has come forward with concerns.

KAGAN: As you pointed out in previous reports, one aspect of just how courageous Coleen Rowley is in coming forward, she is only two and a half years out of retirement. She dedicated her life and her career to the FBI. At this point, how many people would simply just say, you know, it is better to keep my mouth shut, I will write a book in a couple years.

SNOW: Yes, yes, I suppose so. But she had some real concerns. She waited a little while before she sent the memo. I think it took her a week of editing and making sure she was comfortable with it before she both sent it to director Mueller and also delivered up here to Capitol Hill, to some of the very same senators that you're seeing on this panel this afternoon. Now she comes up this afternoon, Daryn. As they resume now, we're going to hear more from director Robert Mueller, and also Glenn Fine. We haven't heard much out of him yet. He is the inspector general of the Justice Department, running an internal justice Department -- external to the FBI, but internal to the Justice Department, investigation, looking back at 9-11 and some of the missed clues.

KAGAN: Looks like they are getting started, Kate. So let's go ahead and listen in.

LEAHY: We're going to go to Senator Kohl.

Before -- just so you know, before we finish, Mr. Director, I'm going to ask you a question about how the new proposal the president is going to make about a homeland defense agency, how that affects your jurisdiction.

But, Senator Kohl, go ahead, please.

KOHL: Thank you.

Director Mueller, The Washington Post this past Sunday ran a front-page story on the complete absence of pre-boarding screening for passengers on chartered aircraft. Today, anyone with a high enough credit limit can charter a 747, bring whomever they want on board, bring whatever they want on board, including weapons, and repeat the horrific events of September 11.

Now, after much, much prodding from my office, I understand that the Transportation Security Agency is about to issue a regulation requiring those passengers who charter very large aircraft, over 95,000 pounds takeoff weight or about the size of a DC-9, to undergo pre-boarding screening just as a passenger on a commercial airline would.

And I'm glad that they're considering taking at least this step, but I want to ask you a few questions about regulation of charter aircraft from the perspective of the administration official, which you say are -- and you are -- most responsible for preventing another terrorism attack on this nation.

Do you believe that we are at so little risk of a terrorist attack using a chartered aircraft as a weapon that we do not need any screening of chartered aircraft passengers and their carry-on luggage on chartered planes smaller than DC-9s? For example, a fully fueled, 91,000 pound Gulfstream 5 has significantly more explosive power than the largest conventional bombs used today by the U.S. military.

In other words, even under the new TSA regulations being proposed, we are making available to terrorists still a bomb bigger than anything that we dropped on Afghanistan.

As the lead government official in charge of preventing terrorism, are you prepared to make sure that this threat posed by chartered jets less than 95,000 pounds is addressed? I understand TSA writes these regulations, but I'm asking you to take responsibility for this or to make a public statement, if you cannot address the problem, that the administration is keeping you from addressing this issue.

ROBERT MUELLER, FBI DIRECTOR: Well, I can't say the latter, because the administration certainly is not keeping me from addressing the issue, Senator. It is an issue that has been raised ever since the events of September 11 in discussions with homeland security. And I know the administration is concerned about and has undertaken steps to address that which would be a concern in the wake of what happened on September 11, not only private jets or chartered jets, but also other forms of jets that are shipping not passengers, but merchandise or freight and the like. And there has been an ongoing discussion and efforts made to address the security concerns across the broad band of other aircraft that could be considered a risk.

I am not familiar with the details. I'm not familiar with the regulations for the...

KOHL: I appreciate what you're saying, and I want you to know that we have talked to Mineta, Magaw, Ms. Garvey, Rumsfeld, as well as the president, and we've not gotten a good answer. And you're not giving me a good answer.

Now, you say that you and the FBI have a particular special responsibility today, and that is to prevent another terrorist attack. I am bringing to you a clear and present danger, which I do not think you would deny, that chartered aircraft today can be obtained by virtually anybody, they can board these aircraft without any screening. Now, I'm sure you understand the implications of that.

Are you prepared to say that you will address it, and if people in the administration just say, "Bug off," you will announce that?

MUELLER: I absolutely am prepared to address it. I have in the past had discussions, not specifically addressing it, but yes, I am prepared to address it and I will follow up on it and will be back to your office.

KOHL: In the very near future?

MUELLER: Yes, sir.

KOHL: I do appreciate that.

Mr. Mueller, the FBI has requested tremendous increase in its budget and its staffing, as we know. You argue that the war on terrorism requires more and better equipped agents. For fiscal year 2003, the administration's proposal for the FBI budget is $4.3 billion. That's $700 million to $800 million more than this fiscal year and more than double the FBI's budget from 10 years ago.

In terms of personnel, the FBI has almost 2,000 more authorized positions for fiscal year 2003 than this year and 6,000 more than 10 years ago. And yet it appears that the FBI had information enough and resources at its disposal to possibly unravel the terrorist plot before September 11. The Phoenix memo, the Minneapolis involvement and the CIA's information were available but the pieces were never put together in a way that might have prevented the attack. Had the FBI been totally alert and had the FBI used its current capabilities to the best of its ability, there was at least a very good chance that the terrorist plot could have been uncovered.

Unless and until the resources that you have at your disposal are used effectively, I'm sure you'd agree it won't matter much how much money or how much personnel we throw at the problem. Instead, we'll just be headed for a bigger bureaucracy that is, by definition, more unwieldy and less able to respond.

Mr. Mueller, is money really the solution or even part of the solution to your problems? Aren't you worried that you'll be spending so much time reorganizing and spending money that you won't use your current resources smarter, but end up instead creating a more bloated bureaucracy?

MUELLER: The request I have to Congress is to redirect resources, agents, to address counterterrorism, and that is done after looking at our organization and look how it could be better focused to address the problem at hand, number one.

Secondly, the money that has been given to us, in substantial part, will address two of our problems, two of the problems that came to light in the events prior to September 11.

Number one is technology. And, yes, we have not done a good job in the past taking the money that Congress has given to us and put it into the appropriate technology. I have brought in and am in the process of bringing in individuals from outside who will help us to utilize the monies that Congress has given us to upgrade the technology in ways that actually will do it and accomplish what we need to do.

Secondly, the analytical capability: I have a plan to upgrade our analytical capability. I have briefed this committee and Congress on the various aspects of that plan to upgrade our analytical capability. And I do believe that those are resources directed specifically at the problem we have to address, and it's incumbent upon me to get the analysts who are well educated, who are well trained, who have the various language skills, who have the background to do that analytical capability that we have not had in the past.

What we have, we have excellent, superb investigators who do a terrific job in gathering the information and gathering the information so that it can be translated into further action. What we need is the analytical capability, the technological capability to maximize the capabilities of those agents that are out there doing the day-in, day-out investigations.

KOHL: All right. Well, as a follow-up to the question, in the final report after Ruby Ridge investigation of '95, one of the recommendations that this committee made was the creation of a FBI civil oversight board. This group would act like the one that oversees the CIA and other intelligence organizations.

The board would be appointed by the president and would be capable of objective criticism of the activities of federal law enforcement, and also receptive to external criticism. But it would be dedicated to strong and effective federal law enforcement, obviously.

Our concern then was the same that as that we have today. There is no way, Mr. Mueller, to measure the success or the failure of the FBI. And while we respect changes you are making to the organization, we will likely not be able to objectively evaluate its performance.

Can you comment on why an oversight board was never created, and whether you believe one could be constructively created today?

MUELLER: This is the first I have heard about the possibility of an oversight board. I will tell you that I am bringing persons from the outside, from business, for instance, to bring in separate views. I have an individual, called Wilson (ph) -- named Wilson Lowery (ph), who I'm bringing in from a long time with IBM who was with Lou Gerstner when he turned around IBM, who is coming in as a special assistant to help us get through the changes that we need to get through.

I also had persons that I look to on the outside to give me a view -- respected persons in the community, whether it be principally the intelligence community because this is the area we need help as to what to do. I'd be happy to consider the implications of some form of review board down the road.

KOHL: My time is up, but I'd simply comment that you appear to be saying that having people take a look at what you're doing from another perspective more distant than the everyday involvement is not a bad idea.

MUELLER: I think it's a very good idea.

KOHL: And it might be a good thing for the FBI to have that kind of an oversight committee or board to look to. Thank you.

Thank you, Mr. Chairman.

LEAHY: Thank you, Senator Kohl.

And going in the rotation, Senator Specter?

SEN. ARLEN SPECTER (R), PENNSYLVANIA: Thank you, Mr. Chairman. Thank you, Director Mueller, for coming in on a public hearing and making Agent Rowley available. I believe that the public hearings are indispensable if we're to have effective oversight. I think otherwise it's like a tree falling in the forest: Nobody hears it, there's no sound.

When this committee did oversight on Ruby Ridge in this room, I think it was very effective, and it is my hope that, with the talents that we have on this committee, we can be of assistance to the FBI and the CIA.

My own professional judgment is that it wasn't a matter of connecting the dots before 9/11, I think there was a virtual blueprint. I think had all of it been put together, or leads followed that could have been put together, I think there was a distinct possibility of preventing 9/11.

I want to cover with you four subjects. In the absence of an opening statement, I want to review a number of items and then ask you to comment, after I've covered the four of them. Because if we get into dialogue, I'll never get beyond one or two.

The Rowley letter states that in determining probable cause, she was looking for a 51 percent likelihood, but the U.S. Attorneys' Office was looking at 75 to 80 percent. Now, even a 51 percent standard is not correct. You don't have to have more likely than not or a preponderance of evidence, and that was made explicit by Justice Rehnquist in Gates (ph) versus Illinois. So, we've got to take a look at what's going on these FISA applications as to whether you're looking for more than you have to.

Then this letter from Agent Rowley refers to FBI headquarters questioning whether this Zacarias Moussaoui was the same as the one that they knew about. Zacarias Moussaoui is not exactly a common name like John Smith, and when the Minneapolis office went back to Paris to have the phone books checked, they could only get the Paris book, there was only one in there. But according to Agent Rowley, there continued to be resistance.

So what I think we have to do, and pursue these in other hearings in detail, is what is your bureau looking for on probable cause? Seems to me you have a vastly inflated standard.

Then there's the question of the Phoenix memorandum. When you appeared in this room on July 31, you and I had an extensive discussion about what had been done in the past by way of oversight and the obligation for the director to be forthcoming on oversight. And when that Phoenix memorandum was turned over to the inspector general on September 28 -- and I'm going to give you a chance to comment on this in just a minute -- I think it should have been turned over to this committee.

If we had known about the Phoenix memorandum, we could have made some pretty good suggestions to you. And the investigation wasn't finished until mid-December, and then it was turned over to the Intelligence Committees, but they didn't start to function until mid- February.

Then we have the issue as to your interview yesterday, published on the front page of the Washington Post today. And you are quoted here as saying, "Our biggest problem is we have people we think are terrorists. They are supporters of Al Qaeda." And you're keeping them under surveillance. I'm troubled by this for two reasons. One is, putting people under surveillance is right up to the edge of problemsome.

It isn't quite intimidation because you can conduct a really good surveillance without having people know about it. But it's troublesome to have surveillance unless there's really a good reason for doing so.

And then when you say, "We think these people are terrorists. They are supporters of Al Qaeda," I'm wondering if we ought not to take a look at a definition of prohibited conduct. Crimes are defined by the Congress, and if these people are really menaces and threats, and you say you don't have sufficient resources to follow them all, and I can understand that, we really ought to get the details from you as to what you're worried about.

There's a lot of experience on this panel of ex-prosecutors, people who are investigators. We may need to define a different category of crime depending on what evidence you have.

And then, Director Mueller, I'm concerned about what goes on in your office with respect to how much you can keep track of. On a Sunday show, "Face the Nation," you were asked a question about a chart -- whether there was some chart that was referred to in Newsweek. And this is what Newsweek said about it, quote, "To bolster their case, FBI officials have now prepared a detailed chart showing how agents could have uncovered the terrorist plot if they had learned about Almihdhar and Alhazmi sooner, given the frequent contacts with at least five of the other hijackers, there's no question we could have tied all 19 hijackers together," close quote, the official said.

My staff called Mr. Michael Isikoff to ask him if there really was a chart, and to ask him if we could see it, and he declined, and that's his right. And I'm going to take steps to see if the committee would issue an invitation to see the chart. I'm not talking about a subpoena, I'm talking about a chart.

But there are two things which trouble me here. One is, was there a chart which showed a composite picture, as reported here? And secondly, if there was one -- I believe you, Director Mueller, when you say you didn't know about a chart. But is this kind of information getting through to you?

Let me ask you for your comments, if I may, to start on the issue of why you didn't turn over the Phoenix memorandum to this committee, and why, when you had been asked about it, you never told the committee that the memorandum had been turned over to the inspector general.

MUELLER: My understanding, from the early days, was that Congress had determined that the Intelligence Committee was going to do the retrospective.

SPECTER: Well, that's not true. That's not true. Didn't happen until mid-February. This is an ongoing, standing committee. And we were emphatic on your confirmation hearings, and of course you and I discussed this privately, and you committed on the record to respect the oversight of this committee on matters of importance. We didn't anticipate the Phoenix memo.

MUELLER: We did have that dialogue, Senator, and that's still in my mind. And my thoughts during period of time were -- as I've said on a number of occasions, were directed at doing the investigation, trying to prevent the second wave of attack, in fact, if there was going to be a wave of attack, with the expectation that there would be a retrospective down the road and the expectation that we would turn everything over to that committee.

SPECTER: I respect that and I agree with it. And I took a public position there ought not to be an inquiry immediately after 9/11, because the most important thing was to allow the intelligence agencies to regroup and stop another attack.

But that doesn't go to the issue of turning over the Phoenix memo, at least to the chairman and ranking member. Had they seen it, had we seen it, we might have had some -- we would had some very good suggestions for you.

MUELLER: I understand, Senator.

SPECTER: How about the chart?

MUELLER: Well, with regard to the -- my understanding, at the time that I answered on the Sunday show, I did not know of a document that met that description. What I have come to find out is that there is a Powerpoint presentation that was prepared by an individual who had used the newer technology, the database mining technology, that we are now using, to show how, if we had had that database mining technology in place at the time, we perhaps could have tied the individuals together. It is not a chart; it is a series of slides showing how this new technology would have worked.

SEN. JOSEPH BIDEN (D), DELAWARE: Senator Specter, would you yield for a point of clarification? What did the director mean when he said, "I understand"? You asked him a question, he said, "I understand." I didn't know what the answer -- what that means.

SPECTER: I'd be glad to answer that question for you, Senator Biden, but I will defer to the witness.

BIDEN: What do you mean by "I understand"?

SPECTER: By the way, this is on his time, Mr. Chairman.

BIDEN: I am just curious what he means.

MUELLER: I intend to be -- in response to which questions, Senator?

BIDEN: The question the senator asked you is why did you not submit the memo to this committee. He gave his explanation what he thought the committee would do, and you said, "I understand", but I thought the question was, why did you not submit this memo?

MUELLER: Because I believed that the retrospective would be done by the Intelligence Committee, and I thought I'd indicated that.

LEAHY: Senator Specter?

SPECTER: Well, on that point, this is the oversight committee of the FBI. You came here for confirmation. You made the commitments to this committee. They weren't constituted until mid-February.

And one of the things which troubles me is that we haven't had a look at this a lot sooner.

But with respect to a slide, if it wasn't a chart -- and I think they're indistinguishable technically -- is it true, as the report says here, that this detailed chart -- strike "chart" and put "slide" -- showing how agents could have uncovered the terrorist plot if they put these pieces together; is that so?

MUELLER: I would have to go back and -- it is a slide presentation. It's not one chart. It is a series of charts, as I understand it, that shows how the technology could have been used to associate these particular individuals together.

SPECTER: OK, but the composite would have led you to a possibility of preventing 9/11?

MUELLER: I am not certain, Senator.

LEAHY: Well, if it might be helpful at all to the committee, one of the things that we requested, when we had our meeting with David Frasca, and we have a list of things we requested; number 11 on it is the JTTTF charter chronology or Powerpoint presentation. We have been told that parts of it are law enforcement-sensitive. My response is that it could be then looked at in closed session, and that, in fact, I would be happy to do it, and designate one of the members from this side, as Senator Hatch does, and any one member from his side. But I happen to agree with Senator Specter, it's something we should look at.

SPECTER: Well, in conclusion, had the Foreign Intelligence Surveillance Act warrant been issued for Moussaoui, and what we now know by 20/20 hindsight, it would have uncovered a wealth of information had that been done in August, when Agent Rowley submitted it.

And we had gone through these Foreign Intelligence Surveillance Act problems in detail on Wen Ho Lee. We have been on notice as to what went on. Attorney General Reno testified at great length about her turning down the Foreign Intelligence Surveillance Act warrant application. So we have been on notice as to what should have been done, but had that warrant been issued and the follow-up been on Moussaoui, it would have been a virtual gold mine.

But the point is, that all of this is prologue. What we all have to try to do is to see to it that the mechanism is now in place so that if you had this composite of information, it could have been prevented.

The media is always asking, "Who's going to take the blame, who's going to be the fall guy?" and we have no interest in that.

And this committee is going to back you up Director Mueller. Not withstanding the fact that one prominent publication called for your resignation, we are going to back you up. We are just on the job, and we are not delighted with the number of things you've done, but you are the director. If we were to get a new director, it would take weeks, confirmation a long time, and you're experience, but we've got to put these pieces together.

Thank you, Mr. Chairman.

MUELLER: I've tried to address, I believe, some of your current concerns, Senator, for instance on the FISAs. I agree that there are issues relating to FISAs. And as I indicated before, we have changed the procedure; I get briefed on the FISAs every day.

And so to the extent that we have, and we should look back to determine what they were in terms of problems pre-existing 9/11, we are moving in a variety of ways to assure that we address those problems and that this does not happen again.

And the proposal that I had before this committee and before Congress as a whole, is an effort to make certain that we better the FBI, give the FBI agents the tools they need, particularly in terms of pulling together the various pieces of information, so that we can prevent any future attack.

SPECTER: I'd like your comments in writing, Director Mueller, as to the standard 51 percent, 75 to 80 percent. And I've already discussed with the chairman activity pursuing this FISA matter, because we need to get down into the details of it, and lend the oversight and our own experience on these matters, which is considerable.

MUELLER: Thank you, sir.

LEAHY: Thank you.

On these questions of other directors, the director has the confidence of this committee on both sides of the aisle.

And we will continue asking the questions. This committee has an oversight responsibility which we will carry out. It's entirely different than other committees. It's unique, and it's an obligation we have to the Senate, it's an obligation we have to the American people.

The senator from California, Senator Feinstein?

SEN. DIANNE FEINSTEIN (D), CALIFORNIA: Thanks very much, Mr. Chairman.

Mr. Mueller, I suspect there are times you wish you were on the West Coast, as I do.

MUELLER: San Francisco is a lovely city. FEINSTEIN: This is a hard place.

And I wanted to say a couple things personally. I think you've come into a very hard job at a very hard time. I can't imagine a worse time. I've had occasion now to see you review your plans for reorganization, I think, three times.

I want you to know that I'm here to support you. I do support you. I think your efforts to change the culture and the organization are very commendable. I may not agree with every specific, but that's irrelevant. I want to see that the American people are protected, obviously consonant with our civil liberties. And I was very heartened to hear what you had to say along those lines.

I also want to thank the chairman, because I think he's exercising the oversight -- and I have been reading some of the testimony that goes back to the 1970s, when there was real reason to be concerned. There wasn't the level of oversight that there is today. There wasn't the level of press inquiry that there is today.

We held an oversight hearing, I think less than a month ago, thanks to the chairman, and this may be a little bit rugged on you, but I think it carries out our responsibilities.

I would like to ask for an answer to my letter that I wrote to you on May 7 with a substantial number of questions having to do with the Phoenix memo. I have not gotten that answer yet.

MUELLER: I thought that it had come up last night or would be there with you today.

It is going through a final review, it should be up there today or tomorrow.

FEINSTEIN: Thank you very much. I will look forward to that.

I wanted to concentrate my questions in two areas. One is the FISA procedure, and the second is regional authority versus flying squad.

Let me take the FISA area. It has come to my attention that at least one major case that I won't specify, the warrant never left the FBI. It never went to the Department of Justice, it never went to the OIPR, where the attorneys are.

I've read the -- Mr. Freeh's memo of April the 15th which changed the FISA process, I think based on problems that prior FISA warrant requests had that were egregious, let me say, and so he wrote a memorandum that was very complicated, very difficult, I think, to carry out.

There are different impressions of what you intend with respect to the FISA process. One is that applications would be automatically routed to Dale Watson and to you for further review and consideration. I would like you to lay out for this oversight committee the specific process that you're going to use with respect to the processing of a FISA warrant.

MUELLER: Well, let me just go back -- the, what they call, I think, the Woods changes that are reflected, I believe, and I am not certain the date, but Mr. Freeh's memorandum, relate to assuring the accuracy of the document that is going to be presented to the court.

And the difficulty we have here is we've got one FISA court situated in Washington, but the persons who are drafting the affidavits and have the information from the investigations are out in the field. And so that is appropriate to assure that there is a certification from the agent in the field as to the accuracy of the document before it goes to the court.

With regard to the FISA process, what we have done since -- relatively shortly after September 11, whenever there are issues relating to FISAs relating to terrorism, that are on terrorism, I get briefed on that every morning. I have given directions to Pat D'Amuro, who I put in charge of the counterterrorism division, that if there is an issue there of turning down a FISA and not sending it across the street, then I want to be involved in the decision-making process...

FEINSTEIN: Bob, by across the street you mean to the Department of Justice?

MUELLER: The Department of Justice, yes.

FEINSTEIN: To the OIPR?

MUELLER: OIPR.

FEINSTEIN: Will every FISA warrant go to the OIPR?

MUELLER: If we believe that we have met the criteria of probable cause, yes.

FEINSTEIN: And you will assess that personally in every warrant?

MUELLER: No, if there -- no. Most of them go through. If there is one in which the field says, "We believe you have probable cause," and somebody at headquarters is saying, "No, I do not think you do," then I will be involved in that discussion.

And the way I am currently -- how do I want to say -- alerted to that discussion is I have in my briefing book every day a piece of paper that gives me the status of those FISAs that are related to terrorism. And there are occasions where I have seen that there has been a hang-up for some reason or another, and I have given direction to let's get beyond that, do this investigation. There are other cases in which, in the course of the daily briefing, I will say, "We ought to go FISA on this." Not criminal.

And so to the extent that the FISA process is perceived to have been held up by persons at the unit or section-chief level, I want to make certain that that is not the case, and that it gets the high- level review in those particular instances where it's appropriate. FEINSTEIN: Stop here for just a second. To what extent would foreign intelligence be incorporated in the warrant?

MUELLER: To the extent that we have information from the CIA, just in using -- or some other agency, it should be incorporated in the warrant. There are no prohibitions to us using that, and we often -- not often -- yes, often, more than often, we use that kind of information.

What I have to do a better job at is integrating our information with information the CIA, so that we have that information to put it into that FISA application, to get that warrant.

FEINSTEIN: Well, this is an important point. So what you are saying is that if there is foreign intelligence connecting an individual, let's say, to Al Qaeda, that should be included in the FISA warrant...

MUELLER: Absolutely.

FEINSTEIN: ... probable cause.

MUELLER: Absolutely. Absolutely.

FEINSTEIN: Because there are instances where I understand it has not been.

MUELLER: There may well be, but it should be. To the extent any piece of -- regardless of where that piece of information resides, whichever agency, and it could be -- as you well know, there are a number of separate intelligence agencies in the government. I don't care where it is, it should be utilized, where appropriate, to provide the basis for obtaining the FISA warrant.

FEINSTEIN: So -- just quickly go back. So you will receive notice of every warrant. If the warrant is normally being processed, it will go to OIPR, and if it is not, you will personally review it. Is that...

MUELLER: If there is a dispute as to whether or not there is probable cause. What often happens in this case is you will have somebody who is familiar with the FISA accord talking with the agent who is drafting it and saying, "Look, we need a little bit more here, we need a little bit more there."

There are occasions since September 11 where there has been somewhat of a dispute as to whether or not we had enough, and those are the occasions when I will weigh in and push it forward. And to the extent it is necessary to discuss it with OIPR, I or persons close to me have had those discussions also.

FEINSTEIN: Right. Now, as one who sat through both the Waco and the Ruby Ridge hearings here, I think it may well be that a false impression was given. And that is that, because we were concerned, or some of us were concerned, in the instance of major event such as Ruby Ridge or Waco, the central administration didn't take sufficient responsibility but too much was placed on the SAC. And I have felt as I have watched this since that time, that that may well have had a chilling effect on regional offices' enthusiasm to move ahead in a vigorous way in certain cases.

Having said that, I would be interested if you would spell out where your flying squad makes some of these determinations as to when an investigation would ensue, and how much authority the regional head has in your 56 offices to really now say, "OK, we've got this information about so and so. It's time we take a good look, you know, assign people and go ahead and take that look." Where...

MUELLER: Let me talk about two things in terms of the role of headquarters versus the field in counterterrorism.

FEINSTEIN: Right.

MUELLER: We are an agency that has been built up with 56 separate field offices addressing crimes that, from the beginning, have generally been generated out of the conditions in a particular city or a state. When you look at the war on terrorism, it is a nation -- we have to protect the nation.

We have to take pieces of information from Boston, or Florida, or San Francisco, and utilize those pieces of information in a predictive way. And there's got to be somebody accountable for getting that information together and then taking action on it. And it cannot be the SAC of a particular office. And so, headquarters has to have a management and supervision role to assure that the national program is maintained, and that we are, as they say, tying the dots together.

The flying squads will be individuals at headquarters who develop expertise in, say, Al Qaeda. If you have a case such as Richard Reid up in Boston -- you will recall, he is the individual who was on the plane from Paris to Miami and had explosives in his shoes, and the very vigilant flight attendant saw it, and he was arrested and taken to Boston. Well, that particular case has information in it relating to Al Qaeda, with regard to Reid. They are putting together the facts for that particular case. And the flying squads, had I had them in place, would have had maybe two individuals that would go up and support that prosecution, that further investigation.

They would bring expertise to the field. They would be under the control and reporting to the special agent in charge, who is in charge of that particular investigation. And once the Reid prosecution or investigation is over, they would bring back to headquarters that expertise, that experience that they learned there.

So it is to supplement the, on the one hand, the agents in the field doing the job they do in terms of their investigations, and on the other hand, be a resource for the field in terms of expertise that can be made available to the field.

FEINSTEIN: Does the agent in charge have to have Washington approval to institute one these terrorist investigations?

MUELLER: Prior to the change in the guidelines of last week, yes. The change of the guidelines last week give the authority, the special agent in charge, to initiate the investigation.

There is a reporting requirement. It has to be reported back, so that we know what particular investigation is being initiated and we can put an investigation into Boston together with perhaps an investigation in San Francisco or Los Angeles.

FEINSTEIN: Thank you, Mr. Mueller. My time is up.

LEAHY: Senator Kyl.

SEN. JON KYL (R), ARIZONA: Thank you, Mr. Chairman.

Mr. Fine and Director Mueller, thank you very much for being here today.

Mr. Fine, I am sorry you haven't been afforded the opportunity to say much beyond your opening statement, but I appreciate your being here.

And Director Mueller, you've spent a lot of time with us in the last two or three weeks. We're asking you to help us fight the war on terror. We're also trying to get a lot of information from you. And I appreciate -- you're probably burning the candle at both ends, and I very much appreciate both what you do and what the dedicated people at the FBI do.

I want to give you an opportunity to clarify something, and perhaps add a little bit to it myself, relating to the chairman's opening statement, in which he questioned the restructuring that you announced, the restructuring of the FBI and related changes in the FBI. It seems to me that that kind of criticism is inconsistent at best, and I would like to set the record straight to the extent I can.

On the one hand, people tend to criticize the FBI for not acting or not acting quickly enough to correct deficiencies that you found when you came on board roughly a week before September 11, and then on the other hand, you get criticized for initiating the reforms. Sometimes it's not actually criticism, as the chairman said. He said, "Maybe these reforms are right, they may be right, but the process was wrong, because we weren't consulted, we the Congress." Senators love to be consulted.

It seems to me there are two things wrong with that. First is, we were consulted. I counted up how many hours I spent with you two weeks ago, that you had to spent up here on Tuesday, Wednesday and Thursday afternoon. It was over 11 hours that I spent, and I left a couple of the meetings early. You had to be there the entire time. As a member of the Intelligence Committee, and then the next day the Judiciary Committee, and then the next day you afforded the opportunity for all senators to brief you and ask you any questions -- or excuse me, for you to brief them on these restructuring programs and ask any questions.

Somebody said, "How much time do you have?" You responded, "I have all of the time you need." And after about 2 1/2 hours, as I said, I left the meeting, you were still there. It was beginning to wind down. But everybody had a fully opportunity to ask questions. And then there was the actual announcement.

Now, you also said that you did not want to announce the changes at that time because you wanted to consult with the appropriators, and I have verified you did, in fact, consult both with the House and Senate appropriators.

So I think the first point is that there has been a full opportunity for members of the Senate to talk to you about these recommendations that you told us about two weeks ago.

And secondly, it doesn't seem to me that when you talk about restructuring the FBI and reassigning the agents and creating this team that you just talked about and making other internal changes, that this is the stuff of legislation for us to be micromanaging. It's, rather, the stuff of management that we expect you to do. We have an oversight role but not a micromanagement role. And I don't think we can ask you to expeditiously reform the agency on the one hand, and at the same time be upset that you don't tell us everything you are going to do far in advance or seek our preapproval of it.

And I want to conclude this point by saying that, if you did, I'd object anyway, because Congress has a sorry record in this regard. It's understandable, because there are 100 of us, there is one of you, although you have got a big agency to get your arms around.

But for years, and I've got the record here -- I chaired this terrorism subcommittee and Senator Feinstein was my ranking member. She is now a chairman. I count over 20 hearings that we held on the subject of terrorism, going back to 1997. And we had your predecessor, Louis Freeh, testify on at least two or three of those occasions. He asked us over and over again for authority, that Senator Feinstein and I put in amendments and legislation and amendments to the CJS appropriations bill. Could we get our colleagues to pass it? No.

After September 11, miraculously, everybody was the parent of these wonderful ideas, and is now taking credit. Fine. But it takes something like September 11, unfortunately, to get a cumbersome body like Congress, frequently, to act when it is the least bit controversial. And some of these things were controversial because civil liberties groups and others were concerned about whether or not they went too far. Well, after September 11, we realized we hadn't gone far enough.

So I, frankly, without going into more detail want to complement for acting and, in the brief amount of time I may have left, ask you two questions.

One, I would like to specifically elicit your views -- and if you would pass this on to the attorney general, his views -- about the legislation that Senator Schumer and I introduced yesterday, that would make one small but very important amendment to the FISA warrant definition of foreign agent to solve the problem you've identified, that a lone actor out there, a person that you cannot necessarily tie down as a member of the Al Qaeda organization or Hezbollah or some other group or working directly on behalf of the specific foreign government, all you'd have to do is prove that that person was a foreign individual, and you have probable cause to believe that they're involved in terrorism.

If you want to comment any further on that right now, fine. Otherwise, I'd very much like to get the Department of Justice's and the FBI's recommendations with respect to whether we should proceed with that legislation.

MUELLER: I understand it was put in maybe yesterday or the day before.

KYL: Yes.

MUELLER: And as I indicated before, this is a problem and we're looking for solutions to address this problem. And I know that the department will have the formal opinion on that, but we are looking for a solution for this problem.

KYL: Great, I appreciate that.

I would also like to raise one other point. I'm very concerned about leaks and the effect they may have on your work and the work of your agents. When we had Agent Williams here a couple weeks ago and talked about the Phoenix memo, there was quite a bit -- or there was some discussion, in any event, about the effect of the leaking of that particular memorandum on possible investigations.

And without getting into details that themselves would compromise investigations, I'd like to have you at least remind us of the problems that can be created in ongoing investigations when material like that is leaked.

MUELLER: Well, it has an adverse affect on the investigation, from the perspective of informants, persons willing to come forward. It may well alert subjects of the investigation to scrutiny. Although names are not mentioned, there may be other identifying data that is released, that may put the person on alert that the government is looking at them. And consequently, that type of information, if out in the public, could undercut and adversely effect the ability to do the job.

KYL: Now, I just urged my colleagues, as part the Intelligence Committee investigation and also the extent that this Judiciary Committee has oversight of the FBI and the Department of the Justice, that we have an obligation not to make your job or the CIA's or other intelligence agencies' jobs more difficult.

Finally, in some of those sessions, we also heard from agents in the field that even some of the reforms that we had instituted in the USA Patriot Act, while very well-meaning and very helpful, were not necessarily working out exactly as we had hoped, and that there may be a need to, and I think the word was, to "tweak" some of those changes or some of those reforms, so that now that you have or your agents have experience with them in the field and know exactly how they're working or not working, that we'll have a chance to make some additional changes. And I would simply ask that, as a part of your internal reorganization process and so on, that you elicit views of those in the field and come up with recommendations that might be useful to you, present them. I think this is the proper committee to present them to. And I know that the chairman and others on the committee will then want to perhaps hold hearings but, in other ways, act expeditiously to try to effect those additional reforms.

Can you do that as well?

MUELLER: Yes, we are looking at ways to tweak the Patriot Act. The Patriot Act has been exceptionally helpful already, but there are areas in which we think the provisions of that act could be tweaked to assist us.

KYL: I might just add in closing that I think it was the CIA director who testified that, with respect to our laws and our procedures and the methodology that intelligence and law enforcement agencies in the United States use, his words were, "The terrorists have gone to school on us."

What do you take his description there to mean?

MUELLER: The terrorists that we deal with are -- many of them have spent time in the United States. They understand our freedoms. They understand our liberties. And they are not at all unwilling to utilize that knowledge to their benefit. They have gone to school on not only what they have learned in the United States, but what they pick up on our newspapers, what they pick up on the Internet, and are skilled at identifying loopholes and ways that they could operate more effectively and efficiently.

And to the extent that we publicize how we do things, it feeds the information that they have to enable them or better enable them to launch attacks against us.

KYL: And I just make the final point, Mr. Chairman, that, while it's important for the American people to understand generally how we work and -- well, it is also important to protect some of the ways in which our law enforcement and intelligence agencies work, so that we don't signal to those who would do us harm every way in which we may try to thwart them. We have to have some capabilities that they simply aren't aware of or they're smart enough to figure out ways to get around it.

Again, Mr. Chairman, I want to thank both our witnesses here and, particularly, the good people at the FBI for all the hard work they are doing.

MUELLER: Thank you, sir.

LEAHY: Thank you.

Well, while Senator Kyl is still here, he apparently made a comment while I was out of the room suggesting that I was critical of you, Director Mueller, for not consulting with Congress on your reorganization. He perhaps did not have a chance to hear my opening statement, in which I praised you for consulting with both Republicans and Democrats about your efforts for reorganization, and praised what you have done on your efforts for reorganization, as I have on the floor of the Senate and as I have to the press on numerous occasions.

I did express, of course, the fact that I was surprised the new revised guidelines of the attorney general, basically quoting what the Republican chairman of the House Judiciary Committee, Congressman Sensenbrenner, said, that he was surprised at the lack of consultation on those guidelines, that he'd heard of them only two hours before they were announced. I have yet to have any consultation on them, although I have read the 100 pages on the Web site.

But just so the senator from Arizona -- and I'm sure he did not intentionally -- or did not want to misstate my position, but I will restate it. As I said earlier in the hearing, I commend the director, as both Senator Hatch and I did in our opening statements, for his consulting with us, and express my support of the reorganization plan and our intention to work with him to help implement it.

KYL: I appreciate the chairman's clarification.

LEAHY: I knew you would.

(LAUGHTER)

Senator Feingold.

SEN. RUSSELL FEINGOLD (D), WISCONSIN: Mr. Chairman, let me first thank you for your leadership and for holding a hearing on these important issues. And Director Mueller and Mr. Fine, welcome. And thank you for joining us here today.

Before I get into my questions, Mr. Chairman, I do want to express my deep concern about something you've mentioned, the revised attorney general guidelines that expand the FBI's domestic surveillance authority. I fear what these revised guidelines might mean for law-abiding citizens, who rightfully expect privacy in their daily lives and in their political associations.

Now, one sad chapter in our country's history, unfortunately, is the period when certain groups were unconstitutionally targeted for surveillance by investigators because of their race or because they held certain political views. And I don't want the history of our present day to note that our citizens' basic rights of political expression were, of course, chilled by their government.

The Judiciary Committee has a critical responsibility to exercise oversight of the Justice Department's activities, especially when these activities implicate fundamental freedoms guaranteed by our Constitution.

So, Mr. Chairman, I urge this committee to hold separate hearings on these revised guidelines once we have had more time to analyze the changes and assess their effects.

So, Director Mueller, I'm not going to spend all of my time on the guidelines, but I do want to clarify a couple of things.

You were asked earlier today, in a question from Senator Leahy, about this, and I'm not sure I understood your answer. Did you personally review and approve the revised guidelines before they were announced by the attorney general?

MUELLER: I'm not certain that there was any approval process, formal approval process. I know I was kept apprised of the ongoing discussions leading to the finalization of the guidelines.

FEINGOLD: Did you personally review them?

MUELLER: I reviewed -- well, I had discussions with persons in the bureau who were involved that process. Did I actually take and look at the guidelines before they were announced? No. But I had known and been briefed on the changes in the guidelines.

FEINGOLD: With regard to the issue of the guidelines, isn't it true that under the FBI's separate guidelines for foreign intelligence and international terrorism investigations, which have not yet been modified, that this kind of surveillance of, let's say, political meetings or religious services can be done without suspicion of criminal activity?

MUELLER: I would have to check. Off the top of my head, I have not looked at that, and I'm not that familiar with that portion of those guidelines.

FEINGOLD: Well, is there any evidence that the previous guidelines for domestic surveillance, with the restrictions that have now been lifted, inhibited the FBI investigations that might have prevented the September 11 attacks?

MUELLER: I am aware of anecdotal evidence with regard to, say, using Web sites, for instance, using the databases that we would have liked to have used previously, yes.

And the one thing I want to make clear is that my understanding of the previous guidelines required certain predication for initiating a certain series of steps that the agents were allowed to undertake. It never said you couldn't go into a public place, but it was read to mean you could not go into a public place because there was not specific authority given.

FEINGOLD: Well, I'm not sure about that, because what I'm trying to point out here is that the FBI had authority investigating international terrorism to do this kind of surveillance, as I understand it, under the current law and current procedures. So, I don't understand why this additional guideline is needed.

MUELLER: This is a separate set of guidelines that addressed the -- and the interaction of the two guidelines, I'm not certain it is always the same. But these guidelines, the ones that were changed, the general criminal guidelines, did not have the same provisions as the international guidelines. FEINGOLD: What I'm suggesting, though, is that the international ones did give you sufficient authority to do what you wanted do here. And I'm not sure this should be a basis or a predicate for these new domestic guidelines. But I'll be happy to follow up with you on that.

MUELLER: I would have to go back and look at that.

FEINGOLD: Director, we have talked a little bit today about, obviously, the fact that the administration asked for and Congress passed the USA Patriot Act last fall.

The Justice Department told Congress at that time that it needed more expansive powers to conduct surveillance and wiretaps and other searches and seizures in order to protect our nation from future terrorist attack. And I do recognize that we live in a different world, with different threats. Nonetheless, I voted against the so- called Patriot Act because I thought it went too far.

Now, as we have heard today, the Justice Department seeks to expand the FBI's ability to conduct investigations and surveillance even more, as set forth in these attorney general guidelines that we are talking about. But I think Congress is first entitled to know how the extra powers already granted to the department and the FBI have been utilized. And Senator Kyl questioned you about it. You indicated it had been quite useful.

But I would like you to tell us, Director Mueller, what can you tell us now about how the FBI has used the new powers granted by the Patriot Act? For example, how many wiretaps have been authorized? How many requests for seizing records have been approved and executed?

MUELLER: Off the top of my head, I do not have those figures. We can get you those figures.

I can tell you that there are two provisions that have been exceptionally useful. One is the changing of the language for the FISA from having to show a primary purpose -- that the request for the FISA was for the primary purpose of a foreign intelligence goal to a significant purpose. And that has enabled us to utilize the FISA capability in ways that we had not been able to use it before.

The second area that I think it has been helpful is removing the bar to the CIA obtaining grand jury testimony and testimony that may have arisen out of a grand jury proceeding that we, in the past, had been -- we had been barred from providing to the CIA.

Those two provisions have helped us, I believe, tremendously.

FEINGOLD: Well, I'm intrigued by that answer. And I thank you for that, but those are a couple of provisions that I don't think raised a lot of concerns among civil libertarians.

What I will be especially interested in is to what extent the more controversial provisions have provided any benefits. So, I would ask you and the department to provide the committee with a full and comprehensive report about the use of the powers granted by the Patriot Act. I think we're entitled to that in any event. But when you are asking for more powers, surely we have a right to know what's been done with the new powers.

An important way to ensure that a proper balance is struck between civil liberties and national security is obviously to monitor and review these powers. And I really feel we need this before some of these further powers can be examined.

I would like to continue my questioning by turning to the subject of the FBI's performance prior to September 11 and how it handled the Phoenix memo. I have been very troubled to hear some of my colleagues and Justice Department officials quoted in the press saying that they believe concerns of being accused of racial profiling led the FBI to not act on the Phoenix memo.

I think it is a distortion to say that acting on the memo would have resulted in racial profiling. That memo contained specific information about specific individuals. I think there has been a serious misunderstanding of racial profiling and what it means.

Indeed, I think these claims may very well be a distortion, maybe even a deliberate distortion, to distract attention from real mistakes or to cast aspersions on responsible and still necessary efforts to eliminate racial profiling in our country, which both the president and the attorney general have said is illegal or should be made clearly illegal.

Under any version of a ban on racial profiling, when law enforcement has legitimate reason to believe that specific individuals may commit a criminal act, obviously law enforcement may take whatever action is necessary.

Now, Director Mueller, you don't believe that concerns about being accused of racial profiling were a factor in the failure to act on the Phoenix memo pre-9/11 or to connect it to the Moussaoui information, do you?

MUELLER: I have seen one indication that a person who was involved in the process articulated that as a possible concern.

FEINGOLD: Do you think that was a legitimate reaction by that person?

MUELLER: I cannot say in the -- I'm not going to second-guess, because I did not -- I cannot put myself in that context. All I can say is that that person said that it may be -- it was a concern to that individual.

FEINGOLD: Well, I'm troubled to hear that. And I was hoping for a different answer. I was hoping for you to say that, clearly, what was needed there was not some sort of an exception from a rule against racial profiling.

I mean, do you believe that having FBI agents contact flight schools and ask whether any students had exhibited suspicious behavior -- for example, maybe they expressed interest in flying but take no interest if takeoffs or landings...

MUELLER: No.

FEINGOLD: ... is racial profiling?

MUELLER: No. No.

FEINGOLD: Well, this is a critical...

MUELLER: All I'm saying, Senator, is that there was one person who articulated that. Do I believe that -- if the question is, do I believe that that was a valid concern? No.

FEINGOLD: Good. That's what I wanted to hear. And I think it's critical from you and from the attorney general and everyone else, is to make it clear that what we can gain out of this whole disaster is a clear understanding of what is the difference between racial profiling, using a criterion like that as the only or main criterion, versus the very legitimate and important work that you are trying to do to follow up legitimate leads.

And I'm hoping, even though some people want to make 9/11 the excuse to not deal with racial profiling, that the opposite will occur, that the public and all law enforcement people will come to realize that there is a big difference between illegitimate racial profiling and following up on legitimate leads.

And I hope that we will take this occasion. And I appreciate your final answer there, because we need to fend off these claims that racial profiling somehow had something do with the problems that occurred on -- the inability to racially profile somehow had anything significant to do with what happened on 9/11.

I thank you very much.

Is there time left?

LEAHY: Yes.

FEINGOLD: I thought I saw a red light there, so...

LEAHY: You did. You did.

FEINGOLD: I would love more.

LEAHY: The problem is, you would think, sitting this close to it, it would be easier to see it. But the way the lights are there, it's almost impossible. So I do appreciate members who have tried to stay, at least by Senate standards, within the time.

Senator DeWine.

SEN. MIKE DEWINE (R), OHIO: Thank you, Mr. Chairman.

Mr. Director, thank you for staying with us for this long testimony today. We're going to have the opportunity -- and this committee will have the opportunity in an hour or so to hear Agent Rowley testify. And we've already had the chance to read a redacted portion of her -- that portion of the letter that is not redacted and also to read her testimony. And I would like to make a couple comments about that. And then I would like to ask you a couple questions about that.

One of the issues that I think we really can't get into today is the whole issue of probable cause, as far as the facts. That's just not something that we can explore as thoroughly as it would need to be explored to make any determination whether each one of us, in our own mind, thought there was probable cause there.

But I would like to make a comment. It seems to me that all the decisions -- or the decisions that are made in regard to probable cause at the FBI, at Justice Department, ultimately come back to two things: One is the statute, but then, also, how that statute is interpreted by the FISA court.

I remember when I was a county prosecutor that the police would come in and want a search warrant. And we weren't dealing with anything of any magnitude such as this, but we were dealing with what we thought were important things. And I would tell them, "Judge so and so won't accept it." And that was my answer. "That's not enough." And I was guided by the Constitution, but I was also, frankly, guided by what the judge I dealt with every day, I knew he would accept or he would not accept.

And I just think that is something that we need to keep in mind as we judge whether or not there is probable cause here, is that we need to -- it is important for us, at some point, to look at how it has been -- how the FISA law is actually being interpreted and, therefore, what impact it has on the people at the FBI and how Agent Rowley's -- people who she has to kick it up the line to.

Let me -- while we're talking about FISA, let me make also a comment, if I could, and ask for your brief comment about something else, and that is Senator Kyl and Senator Schumer's bill that they are introducing which would change the FISA law.

There is an interesting article in, I believe, today's "Wall Street Journal" that quotes Philip Heymann, who served as President Clinton's deputy attorney general. And he said that that legislation does not go far enough. And he suggests this. He is quoted as saying that authorities should be able to monitor non-U.S. persons based on a reasonable suspicion that they are engaged in terrorism, not the higher probable cause standard, as the amendment proposes.

I think that is something that we need at least to all look at. We are dealing with people -- we're not dealing with U.S. citizens. We are not dealing with legal aliens. We are dealing with non-U.S. persons. And it seems to me that, when we have -- if we had reasonable suspicion that they were engaged in terrorism or about to be engaged in terrorism, most Americans, I think, would think that we should grant that search warrant, that we should grant that warrant.

So, I don't know if you want to comment on that or not or if you want to just pass. I will accept either answer at this point.

MUELLER: I think it is something we definitely ought to look at with the department and evaluate whether this is, as far -- whether this is the proposal that we should back.

DEWINE: Well, I will accept that answer. And I think it is something that we ought to at least look at. I think we need to understand how FISA really works in the real world. We also need to understand exactly -- or have a debate about where we think we should be, what we should be doing in this, in the world we live in today, in regard not to U.S. citizens, but in regard to people who are not U.S. citizens and people who are not legal U.S. aliens.

Let me move to another portion of this letter, though, which I find to be the most important and, I think, most interesting of Agent Rowley's -- both her letter and her testimony.

I suspect that this letter, this testimony could have been written by thousands of FBI agents, because, really, there is a tremendous amount of frustration there about the bureaucracy that the individual agent has to deal with. You inherited a great organization but also a great bureaucracy. And with that, comes all the problems of a very entrenched bureaucracy.

And as you try to reshape this bureaucracy into a lean machine that can go after the terrorists, to me, that's your biggest challenge. She is very specific. She talks about -- and, again, I think this could have been written by any number of your 11,000 agents.

"Administration: Lift some of the administrative burden from the line field supervisor. Culture: Transition from a risk-adverse to a proactive atmosphere by changing our evaluation process -- inspection, performance evaluation. Technology" -- something you and I have talked about many, many times -- "continued technology upgrades, integration projects." And it goes on and on and on.

To me, that's your biggest challenge, is how you're going to do that. And let me ask you that, but let me -- I'm going to give you a chance to answer, but let me ask you two other related questions, and they are related.

And that is, how do you -- specifically, how are you going to carry out what you have stated is one of your objectives, to encourage, reward people to deal with counterterrorism, people who go into the FBI, who work counterterrorism every day? How does that become the thing that is rewarded, just as much as somebody else who is not doing counterterrorism? And how do you reward those who are involved in internal security?

The reports that I have read, the people who I have talked to have indicated to me that internal security within the FBI has been looked at, frankly, as just something that's maybe important but that's not how you advance, that's not how you move up the line.

How do you emphasize those two things, and how do you deal with a culture problem?

MUELLER: Let me start with the last two and then I go to the former.

And that is counterterrorism, counterintelligence. You start with new agents, explaining with the new agents what the mission of the bureau is and what the two priorities of the bureau are: number one, counterterrorism, number two, counterintelligence, starting with the new agents. Promoting persons up in the ranks who have had the experience in counterintelligence and counterterrorism is critically important to turning that around.

Finally, the third thing is, put leaders in charge of those particular divisions who are dynamic, who can explain how important the work is and how interesting the work is. And as to the last, I have got leaders now in the counterintelligence, counterterrorism section that I think are dynamic, that people will look to as leaders in the future, and will also, at the same time, understand that this is the critical mission of the bureau.

The bureau has been terrific. Once you say, "This is the hill; we got to go take it," the agents have been terrific in lining behind that particular mission as articulated and getting the job done. They did it in the wake of September 11. They'll do in terms of the prevention side.

The bureaucracy is frustrating. I have told people...

DEWINE: Your agents are frustrated. That's what I see. They're frustrated. And there are so many good people out there who are doing so many good things, and that's what...

(CROSSTALK)

MUELLER: I am as frustrated, often, as they are. Part of it is the technology. We have not had the improvement in technology that allows us the horizontal information-sharing.

When I sign off on a memo -- and I have this to a bunch of people -- there are eight people that sign off before me. It is a paper- driven organization that has established regimens that we have to look at from top to bottom. But we have to do it in the context of the new technology.

I'll give you an example of people -- there are things that occur that persuade people they don't want to be supervisors. One is doing file reviews. We do file reviews now. If an agent has 100 files, somebody goes and pulls those 100 files down, puts them on a desk. And you go through that file one by one and put in notations. Why would one want to be a supervisor when you have that kind of paperwork to do, when you have the computer capability and capacity to do it on a screen in 10 minutes?

And so, much of it is tied in with the new technology. But with the new technology has to come new procedures, new lessening of the bureaucratic approvals, and a new view of doing things quickly expedited, getting the job done, with the assistance of the technology.

When you look at the relationship between headquarters and the field, it is critically important in counterterrorism and counterintelligence, in my mind, to have persons that are respected at headquarters who are heading up those particular divisions -- it's true in criminal, also -- so that, when people come back to the field for advice, when people come back from the field to get something accomplished, they have got somebody there who has done it before, has done it maybe 20 times before, and is as aggressive, if not more aggressive, than the people in the field.

And so it's people, it's technology, and it's changing the procedures. And that's what we are attempting to do.

DEWINE: Thank you very much. Good luck.

LEAHY: Thank you.

And I do appreciate the questions that -- I appreciate Senator DeWine's comments on FISA and Senator Feinstein's questions on the process.

We've heard from Coleen Rowley that a supervisor at FBI headquarters made changes to the Minneapolis agent's affidavit, she said, to set it up for failure. "The New York Times" has also reported another headquarters agent was basically banned from the FISA court by the judge based on his affidavits.

Senator Specter has raised questions, as he and I talked during the break, about perhaps sitting down with Judge Lamberth in the FISA court to find out what is going on. I worry about having a secret body of case law developing in a secret court system and not having any congressional oversight.

So, I'm not trying to deal out all the facts that go before that, but the legal reasoning. And I am concerned about that. And we will -- certainly would invite any senator who would like to be involved in that, we will go into this, how the FISA court works, what the reasoning is behind it, because there has not been much oversight recently.

Senator Schumer has shown the patience for which he is renowned.

(LAUGHTER)

SEN. CHUCK SCHUMER (D), NEW YORK: Thank you, Mr. Chairman. I appreciate it. In Brooklyn, I'm one of the most patient people, you should know.

(LAUGHTER)

LEAHY: In Brooklyn, yes.

SCHUMER: In any case, I want to thank you for having these hearings. I think they're needed, they're timely and extremely appropriate. And anybody who, I think, thinks we shouldn't have hearings like this will change their mind after watching how it's gone today and how you've conducted it.

I also want to thank you, Mr. Mueller. This is not an easy job, I can see it on your face. You look a little different than you did when you were here first being sworn in.

MUELLER: Geez, I hope not.

SCHUMER: But I think all of us respect that you are doing your darn best here, and it's not an easy circumstance.

I'd just like to make one point to you, and maybe you can convey this to the attorney general -- I have, myself -- before I get into my questions, and that is this. You know, we're dealing with -- since 9/11, there have so many changes in society, but there has been none that are probably more important in the future than reexamining the age-old balance between security and freedom. And if you read the founding fathers in "The Federalist Papers," that was one of the things that concerned them most.

And if there were ever a time and place where the founding fathers wanted debate, wanted discussion, wanted a variety of input, I think it's in that area where freedom and security, with a push and pull between freedom and security, which any democratic society has to deal with. And I have found, just too often, aversion to that in the Justice Department, and I think in the FBI as well, although not necessarily to you. And I know the Justice Department can control some of the things you say and do.

We would have been so much better off in areas like military tribunals and what happened at Guantanamo and some of these other things if there had actually been debate. And I think you know that, if you came to this committee and we debated it, the result would not be doctrinaire. There are people who are doctrinaire on the hard right who want to just remove everything, and there as just many on the hard left who say, "Don't change a thing." But I think the consensus of this committee is somewhere balanced in the middle. And I think we came out with a good product with the Patriot Act as a result of that consensus.

And I would just wish to convey the message that I think it would work out better for the Justice Department, for the FBI, and for the American people if there were more debate before we came to a conclusion, not just, you know, at 10:00 a.m., the attorney general and you have a press conference and say, "Here's what we are doing," when it comes to these very sensitive, very important issues, where we do have to recalibrate and readjust.

And I just -- I think that would be better for everybody. And what we've found when it hasn't happened, again, there has been sort of backtracking, because it is always better to do that.

I'd like to talk about a few issues, ask you some questions on a few issues here. The first is the computers, which, as you know, has been something I have cared about for a while. And when I heard what you said earlier, it seemed to me at that, at least before 9/11, the FBI computer system was less sophisticated than the computer I bought my seventh grader for about $1,400.

So, let me get that straight again. In the trenches, in the Minneapolis office or somewhere else, before 9/11, if they punched in the word "aviation" or "flight school" -- not a name, because you said it was different for a name -- could they get every EC report that mentioned aviation and flight school?

MUELLER: It is my -- and I am not sufficiently expertise in our computer systems. It is my -- if you put in "airline," you may well be able to pick up those -- well, actually, I'm not -- can you excuse me just a second?

SCHUMER: Sure.

MUELLER: This gets into the technology. I do not believe it can be done, because I do not believe there is full text retrieval, No. 1. And secondly, there was a system in place at the time of blocking certain cases from searches, not necessarily from headquarters, but searches from around the country as the part and parcel of the security provisions, so that there are certain -- for instance, the Phoenix EC at the Phoenix EC was uploaded on the computer. There are only a limited number of people that could see it.

SCHUMER: Right.

MUELLER: A limited number of people who would be able to do the search of it...

SCHUMER: Right.

MUELLER: ... to pull up flight school.

SCHUMER: That's a different issue, but was the technology there that if you punched in certain words that you can see every report that mention those?

MUELLER: I do not believe that is the case, but I am not sufficiently technologically astute to be able say that...

SCHUMER: Right.

MUELLER: ... with assuredness.

SCHUMER: Right.

MUELLER: We are -- the one think that I do know is that you have to put in the specific -- if I put in Mueller, it has to be M-U-E-L-L- E-R. It will come up M-U-E-L-L-E--R, but what we will not pull is M- U-L-L-E-R, M-I-L-L-E-R or other variations of it.

SCHUMER: You know, that's even -- that's a little different. But...

MUELLER: Yes.

SCHUMER: ... I mean, every day, every one of us goes on our computer and does searches of certain words, and...

MUELLER: We may have had...

SCHUMER: ... it's not very difficult to do. And I'm just -- I guess what I would ask you is, how was it -- I mean, because I think is important for -- I am trying...

MUELLER: I think we are way behind the curve. I have said it from the first day.

SCHUMER: But how was it we were so far behind the curve that it was almost laughable? What was wrong? That's not something dealing with information -- well, maybe it is. Maybe it deals with turf in its most fundamental way, but it just makes my jaw drop to think that on 9/11 or on 9/10 the kind of technology that's available to most school kids and certainly every small business in this country wasn't available to the FBI?

MUELLER: I don't want to go too much in the retrospective. I will say that one of the -- I think one of the contributing factors over the years is the belief the FBI can do anything. We have computer specialists, we have scientists, we have all of that, but when it comes to certain areas where there is expertise outside the FBI, we need to do a better job bringing that expertise into the FBI to utilize the funds that are given to us by Congress to get a product that will be useful.

SCHUMER: I understand. I am trying to do this, because I'm trying to figure out the culture, because I think lots of the problems we have are just sort of simple like -- simple I guess is overstating it -- but are things that there would be no debate about, no ideological debate or anything else. Can you just elaborate a little? What was so -- why was it so hidebound? Why was it so -- why was the agency so that they didn't have a computer system given -- you know, they knew they had -- I don't know how many agents then, probably close to the same amount now, 10,000-11,000 agents. And they knew that no individual could coordinate all of this, but they didn't get a rudimentary computer system to allow it to be coordinated.

You know, when we talk about analysis, the word -- you know, you have talked about it, and you are right. But the word analysis these days is analogous to computer, because you need to separate in your individual searches the wheat from the chaff. And it doesn't take a great expert to figure that out. So it's -- I am trying to figure out what went wrong then, because that will give us some of the answer to how you correct it for the future.

MUELLER: Well, let me -- I'll tell you one anecdote. When I first came in and did a tour of the building in the FBI, there is a computer room downstairs right behind where you get your badges and the like. And I walk in. It's a big room, and half the room has servers. Well, servers have got a lot smaller, so there's a lot of room over there. On the other side of the room, there were a number of different computer systems. There were some Microsystems. There were Apples. There were Compaqs. There were Dells. And I said, What's this? And the response was, every division had a separate computer system until a year or two ago. And yes, it is -- that is reflective of the computer...

SCHUMER: Let me ask you...

MUELLER: ... computerization of the bureau, but many companies are the same way. I am interviewing now for CIO, and I will talk to their -- about their experiences in going into Fortune companies, and it will be the same thing. The stove pipes, the various systems and the necessity of getting a common architecture and a platform for the organization.

SCHUMER: OK. I mean, and my guess is those companies aren't doing too well. I wouldn't hire the CIO from one of those.

MUELLER: I need one of the CIOs that has taken one of those and brought them into the 21st century.

SCHUMER: Yes. OK. Does every agent now and every employee who needs it have access to e-mail and the Internet?

MUELLER: Has access to the internal e-mail. We do not -- we have a classified system. and consequently to have e-mail outside the FBI, you need to have a separate computer. Many do, but not all.

SCHUMER: Another area I am concerned about. What's our progress in terms of hiring people who speak Arabic, hiring people who speak Urdu and Farsi? This is something that we have been trying to get the FBI to do a very long time. Can we translate every needed interception in those languages into English quickly?

MUELLER: In real-time with regard to terrorism cases, yes.

SCHUMER: OK.

MUELLER: And that is the emphasis and the priority to assure that we have anything that touches on terrorism that we have real-time translation. Now, maybe in certain instances, 24 to 36 hours for a particular -- for some reason, but that is where we have got the emphasis. We have hired, I would have to get you exact figures, but well over 100 additional specialists in the last four to five months.

SCHUMER: By the way, just going back to computer system. Is it considerably better now? Or it's just when Senator Specter asked you questions it's -- I know you are on the way to improving it.

MUELLER: Yes.

SCHUMER: But right now, could Agent Smith in the Minneapolis office punch in the word "aviation" and get all of the EC reports that mention it?

MUELLER: We are laying the groundwork. We have the new...

SCHUMER: You are not there yet?

MUELLER: No. We have the hard drives. We have the software packages, the operating systems. We have the LANs, and we have the WANs, which was the first -- the foundation that we had to put in. We do not have the data warehousing. We do not have the software applications that we need to do the kind of searching that is necessary.

SCHUMER: How long will it take until we are up to snuff?

MUELLER: Well, when I came in, I said I wanted it done in a year, and I have been, for a variety of reasons, been much more involved now in the inner workings of getting it, and I cannot get what I would want in a year, probably two years. But we will have varying stages of capabilities as we go through this two to three year period.

SCHUMER: Thank you, Mr. Chairman.

LEAHY: Thank you, Senator. And Senator Sessions.

SEN. JEFF SESSIONS (R), ALABAMA: Thank you, Mr. Chairman.

LEAHY: I thank you for your patience and your attention to this hearing.

SESSIONS: Thank you. I will follow up a little bit on Senator Schumer's remarks, but I would want to mention that with regard to your advised guidelines, as I see them, there is nothing close to a violation of constitutional rights as courts have interpreted, and certainly nothing on the valid statutory rights. So I am very much -- and it's within your power, is it not, to alter those guidelines as you have done so?

MUELLER: I believe it's within the power of the attorney general, yes.

SESSIONS: Well, I would just say it leaves it up to us if people on this Senate or Congress are not happy with it, we can offer legislation that could alter those guidelines, but I don't think there would be much support for it. Some can complain about it, but I believe you are doing the right thing. You are taking some steps that will help your investigative power. It is not in violation of the Constitution or statute, and a bill to overrule what you did wouldn't get ten votes.

Let me ask this. You know, you have been talking about the computer systems. I have -- as you have been the United States attorney and dealt with a lot of federal agencies, it strikes me that the last refuge of a bureaucratic person who has made an error is to claim the computer problems. And I am serious about this question. The Arizona memorandum that came up, as I understand it, according to the "Los Angles Times," it was sent off by a clerk to somebody. It did not reach the head person in the section.

In the future, Mr. Mueller, would not you expect a memorandum concerning such a serious subject, so thoughtfully put together by an agent in the field, to go to that supervisor within minutes, within hours of being received, and be personally reviewed by that person?

MUELLER: Let me just start by saying that...

SESSIONS: Computer or no computer.

MUELLER: A computer or no computer. A computer is part of the issue. But there are other issues that had to be addressed, and that is the procedures in the section, and those were changed shortly after September 11 to assure that a unit supervisor reviewed each and every one of these electronic communications that comes in before they were -- they were deemed to have been completed. We also put into place a circumstance where items that come in that relate to conceivable terrorist threats or terrorist activity are included in briefing papers that are provided to me daily, so that those tidbits of information not only come up to the unit chief and the section chief and the head of the counterterrorism division, but also to me.

The other way we have changed things is that there is now a joint CIA/FBI threat matrix, so that during the night any threats that come in, any pieces of information about flight schools and persons at flight schools will be put into the threat matrix that is looked at the following day by George Tenet and myself and ultimately the president.

SESSIONS: Well, you were in office seven days when this attack occurred. You were not there when the memorandums were received either from Minnesota or Arizona. Certainly, it is not your direct responsibility. You can't be held responsible for something that occurred before you took office. But I guess I know you are loyal to your troops and the people out there in the field, and I believe in the FBI. I have tremendous respect for them.

But don't you think that was not an acceptable system, computer or no computer, that somebody should have picked up on let's say the Arizona memorandum, and/or the Minnesota memorandum? And that a central person should have been reviewing that before, and that should have at least been able to raise questions about the possibility of those two bits of information that could have given indication of a terrorist plan?

MUELLER: The procedures in place were inadequate.

SESSIONS: And I hope that you will feel free to say that. And I know you are a good Marine and a good loyal prosecutor, but I think the director should be quite direct about errors that occur and that are being inadequate. Do you now in this new plan, do you have an individual or close group of individuals who will be personally reviewing critical information? And for example, if the Phoenix memorandum or the agent -- Special Agent Rowley's memorandum came forward, would even you see that under the present circumstances in short order?

MUELLER: The salient portions of that memo, I would see. I have a new -- the chief of the counterterrorism division, a guy named Pat Demaro (ph), who I brought down from New York who was head of joint terrorism task force for a number of years and is an expert in al Qaeda, who is heading it up. I've got a new deputy, and I have new sections chiefs throughout. We have changed the personnel, expanded the personnel, realigned the assignments, and are in the process of continuously doing that, particularly with hoping to get approval for the reorganization, so that exactly that type of piece of information is not overlooked.

The way we are doing it now is by extensive briefing all the way up the line, but we need to put into place the individuals that will make this as part of the day-in and day-out review. And part of it also is to bring in the expertise of the CIA, who has a different expertise than our investigative agents in terms of being able to look at things and put pieces into a larger analytical composite, so that we can provide a product to the decision-makers, but also take action on that product. And that is part of the reorganization that I proposed to Congress.

SESSIONS: I like the reorganization. I salute you for it. I believe it's going to open up the FBI. I believe that it will vastly enhance your ability to spot and act on terrorist information. It's a quantum leap forward, there is no doubt about that. So you are telling me that you are confident now that agents in the field will promptly send in any reports of interviews, FD-302s. They will come straight in, and that somebody will be reading those with some experience and authority immediately upon receipt.

MUELLER: Well, we are not where I want to be. We have -- Congress has given us a number of additional analytical slots, hiring up for those slots, getting the type of qualified analytical personnel that you want and having them trained will take a period of time. We have had persons helping out...

SESSIONS: Well, let me just -- but let me say this. I don't believe it takes that long to read the Phoenix memorandum or the Minnesota memorandum. Somebody can read key documents when they are coming in. If they are not, then you have that gap in there, and we may not act when a pattern occurs.

MUELLER: We have changed the procedures to make certain that that happens. But we have more to do in terms of expanding on our analytical capability, and that's the -- what I have proposed to Congress.

SESSIONS: You know, I remember trying a case, a pretty significant corruption case, and we had wonderful FBI agent on the stand. And the lawyer attempting to discredit her got her to say that all FBI agents are special agents. And he said, so it's not so special, is it? And she looked him right in the eye and she said, I think it is. I think being a special agent in the FBI is a great thing. And I don't want have anything I say be construed as undermining the integrity and the work ethic and ability and skill of our agents. But I have, I think as you have seen, because you more than anybody that's ever held this office I suppose you have been in the field trying hundreds of cases and know how the FBI works, does not mean we can't make it better.

I think Agent Rowley was -- her complaints were driven by a high opinion of the FBI, a high goal for what she would like to see occur. And I appreciate you working on it. Let me ask this. With regard to the Moussaoui search warrant, you early on in the matter responded that in defense of the decision that there was not sufficient probable cause. Let me ask you. Had you at that time personally reviewed all the documents? Or where you relying on the advice of others?

MUELLER: I was relying on what I was told in the briefing. I had not parsed the documents.

SESSIONS: Well, I don't think there is a person in the FBI that is better capable of determining whether probable cause exists or not than you. You have tried some of the most important cases in the country. You know what probable cause is, and I am glad you are there. But do you think those people that are oftentimes saying no to probable cause realize, and have they lost sight of the fact that they are not the judge? That they are not the Department of Justice? That they are advocates for national security, and they ought to look at it in a positive light? And that if they believe it's important for the security of America, maybe they ought to take it to the judge and see what the judge says? Do they understand that sufficiently?

MUELLER: I think -- I do think they do, but I do believe we need education in the FISA, not just at headquarters but also in the field as to what probable cause means. What -- how you can determine -- get the facts to satisfy that standard. And there is more that we can do to educate not only persons throughout headquarters, but also in the field, and we are undertaking that.

LEAHY: And I might add, we are going to do some education of the committee too on the whole FISA issue. Senator Biden and I and others have been talking about that, and we will. Thank you.

SESSIONS: Can I ask one yes or no question to the witness?

LEAHY: Sure.

SESSIONS: My time is out.

LEAHY: But only because you are such a nice guy -- go ahead.

SESSIONS: Thank you, Mr. Chairman. Did you now believe that that was a correction decision? Or have you had a chance to review the documents?

MUELLER: I have not parsed it, and there are a number of facts that may bear on that decision. And I have not parsed or identified the sequence of facts that went into that determination.

SESSIONS: I think it was a close call.

LEAHY: Trust me, the director is probably going to get another opportunity to talk about that later on. Senator Durbin.

SEN. RICHARD DURBIN (D), ILLINOIS: Thank you, Mr. Chairman, and thank you, Director Mueller and Mr. Fine for joining us today. Let me echo the comments of Senator Sessions about the feelings we all have about the men and women of the FBI. We have talked a lot about management shortcomings, technology shortcomings, but when it comes to dedicated professionalism, there are no shortcomings. These are men and women who are dedicated to the safety of America. Many of them risk their lives every single day for us, and it bears repeating by all of us on this committee that nothing we say will detract from that.

Secondly, let me tell you that I continue to stand in your corner. You have been in the center of a maelstrom here. But I think that your honest, open and candid answers and your commitment to reform have put you in a position in my mind exactly where you should be, leading this effort at the FBI, leading this effort to reform the FBI. I also want to say to the chairman of the committee that I thank him for this hearing, and I think we can't allow the fog of war to stop us from a frank discussion of security shortcomings in America. And your leadership in calling this hearing, I think, is highlighting things that we need to do to make America safer. And in that regard, I think we are meeting our obligations to the American people.

LEAHY: Thank you.

DURBIN: Director Mueller, you have proposed an ambitious reorganization of the FBI, dramatic changes in criminal law, reallocation of thousands of law enforcement professionals. You have really suggested to us that we need to overhaul the FBI. Overhauling the engine of a car is no small task, but overhauling an engine of car while it's moving may be impossible. And that's what I want to get here, when we talk about how we are going to achieve some of the goals that you have set out.

We are at a time where America needs the very best in defending our nation against terrorist threats, but we have told that FBI computers can't even access key words today. Now yesterday, it came to light that the Department of Justice is going to implement, based on a 1952 law, the fingerprinting and photographing of those visiting the United States on visas. The range of possible numbers that could be affected by this I have read from 100,000 to 35 million, somewhere in between. But it is a massive undertaking in terms of the collection of this data.

I think it raises an important question as to whether or not the FBI can achieve this with the INS collecting, processing and transferring millions of pieces of information without establishing first that both of those agencies have the technical capacity to do that, as well as the management skills and personnel to collect it, evaluate it and transfer it where it is necessary. Let me say that I have read Mr. Fine's report to this committee, and I am going to ask him if he would comment on this.

You looked at two specific areas where the FBI and the INS were given instructions by Congress to start merging their collection of data. And you found in both instances over a long period of time serious shortcomings. The automated I-94 system that goes back to the 1996 act related to illegal immigration reform, directed the INS to develop an automated entry and exit control system that would collect a record for every alien departing the United States and automatically match the departure records with the record of arrival.

Mr. Fine, you tell us that four or five years later, there is no clear evidence the system is meeting its intended goals. It really suggests to us that given four or five years, they have been unable to come up with the most basic information Congress instructed them to do five or six years ago. And then you go on to say in the area of fingerprints, this appears to me to be a two or three-year undertaking, the merging of INS and the FBI fingerprints. You looked at the progress that's been made, so that those records can be merged and used. And here is what you say: "The primary finding of our follow-up review, similar to prior report's conclusions, was the department and its component have moved slowly toward integrating the fingerprint systems that the full integration calls for and remains years away" -- your language, "years away."

I want to ask you both. Director Mueller, the new idea of collecting millions of pieces of data, fingerprints, photographs and information about people coming into the United States and making it of some value to protecting America, raises a serious question about when that might happen under the best of circumstances. If we are still over a year away from the most basic computer technology at the FBI, and we have seen repeated shortcomings in efforts to modernize fingerprinting and collection of data between the INS and the FBI, we can stop and not get into the racial profiling argument. We can ask the most basic question. Are you up to the job that was announced yesterday?

MUELLER: I would have to -- I am not totally on top of the integration of the -- I understand the pilot programs with regard to the INS and our IAFIS, our fingerprints. I do believe that work that we do on our fingerprints, the work that we -- the systems that we have in IAFIS are much more advanced than say the computer capabilities of the computer system at an agent's desk. How that IAFIS or fingerprint system could handle this additional load, I am not certain. And it's something we would have to get back to you on.

DURBIN: Mr. Fine, what is your opinion?

GLENN FINE, INSPECTOR GENERAL, JUSTICE DEPARTMENT: I believe that both the INS and the FBI has had real problems in moving forward with information technology. And that there has been -- they have suffered from a lack of attention, a lack of dedication to moving it forward and a lack of persistent follow-up. And we have seen in our analysis of varied systems that they are behind schedule, that they often don't meet their intended purposes, and that they are not coming in according to the benchmarks that you would establish for those systems. So through the history of our analysis of both the FBI and INS, both of them are behind the times in information technology.

DURBIN: And so a new program that would introduce hundreds of thousands of fingerprints, photographs and additional pieces of critical data to be gathered by the INS and FBI, processed and evaluated and transferred seems to me to be a pipe dream, or at least so far in the future that we really ought to get down to basics before we start expanding the collection of data. FINE: We haven't analyzed that aspect of it in that program, but they have had a difficult time assimilating and accumulating that type of information, and getting it to the right people, both in the INS and the FBI at the right time in a timely way. that's one of the significant problems we found in our reviews of both the INS and the FBI.

DURBIN: Director Mueller, the last time you testified, we talked briefly about the Phoenix memo. And of course, it pointed out, at least Agent Williams' belief that there were suspected individual terrorists or at least suspected individuals involved in flight training in Phoenix, Arizona. And he brought that -- through a routine memo, I might add -- to the attention of the headquarters at the FBI. Had the FBI developed any other information linking suspicious individuals or suspected terrorists with aviation training schools before September 11?

MUELLER: I think we -- there are a number of items that I think have come up, and I cannot be exhaustive, because we are turning over hundreds of thousands of documents to the intelligence community. There was in 1998 a FBI pilot I believe, indicated in a report that I think stated in Oklahoma City that he had witnessed individuals from the Mideast who appeared to be either using planes or obtaining flight training. And they could be -- that could be used for terrorist purposes. There was back in 1995, I guess it is, out of the Philippines the report about the use of airplanes in this particular way, although not necessarily about flight schools.

DURBIN: But anything more contemporaneous with September 11, 2001, where there was information collected, where there were suspicions of people attending flight training schools or aviation departments at colleges and universities that raised a question as to whether there was a terrorist connection?

MUELLER: The most contemporaneous would be Moussaoui, quite obviously, right before September 11, but with Moussaoui, with the Williams EC, with the Oklahoma City observation, those are the three that I am aware of. There may be others out there, but I am not aware of them.

DURBIN: Could I ask you to look into that, please, to verify that? I think that's an important issue that has been raised in some press reports that I would like to hear directly from you. I guess the question that it leads me to is, do you believe, Director Mueller, that based on all of the information that has come to light, particularly over the last several weeks as we have delved into all of these memos in all of this conversation that we were forewarned as a nation, and that we should have taken additional steps to protect ourselves before the September 11 attack?

MUELLER: Well, there are things that we could have done better beforehand. And I think on each occasion that I have appeared before this committee I have indicated there were things we should have done differently to assure that pieces of information were followed up on in ways that they should have been followed up on and in ways that we are now following up on them. I mean, I hesitate to speculate... KAGAN: We have been listening in to FBI Director Robert Mueller as he addresses the Senate Judiciary Committee. He has been taking questions all morning long, those last comments kind of going full circle, where he began, saying that things could have been done better in the past, and he is working on making things work better in the future.

Let's bring in our Capitol Hill correspondent, Kate Snow, who has been listening all morning and for most of the afternoon here. Kate, I think there is one word that could sum up the theme of this last round of questioning of the FBI director. It is frustration on the part of the senators. They are saying, come on, how could it have been this bad? How could the technology have been that bad? How can the system be really be that bad in the FBI?

KATE SNOW, CNN CAPITOL HILL CORRESPONDENT: Right, absolutely. But you know what? Robert Mueller clearly shares that frustration. I mean, he has been very up front through this whole morning of hearings, saying, look, I know there are problems. At one point he said, somebody asked him about why things weren't uncovered and why clues were missed. He said, look, it was inadequate. We did not have the proper procedures in place.

There was a lot of inside baseball talk, Daryn, a lot of inside talk about warrants, what they called FISA warrants, which are Foreign Intelligence Surveillance Act warrants, warrants that can be put out, government search warrants, to use against suspected terrorists. You heard a lot of insider talk about how those were going to be developed now, and reviewed, because that was a big question about Zacarias Moussaoui from Minneapolis and why that warrant wasn't issued to go look at his computer files and some of his personal artifacts.

A lot back and forth also about keeping Congress abreast. You had some members saying that you haven't kept us well informed, and then you had other senators coming to the defense of Robert Mueller.

And at one point, you had a very testy Senator Arlen Specter questioning Robert Mueller at length about that very thing, about debriefings and how many memos have been passed to this committee. And he said, "I understand from a "Newsweek" article that there is a flow chart that you've all developed. He wanted to know more about that flow chart.

(BEGIN VIDEO CLIP)

SPECTER: With respect to a slide, if it wasn't a chart -- and I think they're indistinguishable technically -- is it true as the report says here that this detail chart, strike chart and slide showing how agents could have uncovered the terrorist plot if they put these pieces together, is that so?

MUELLER: I would have to go back -- it is a slide presentation. It's not one chart. It's a series of -- it's a series of charts, as I understand it, that shows how the technology could have been used to associate these particular individuals.

SPECTER: OK. But the composite would have led you to a possibility of preventing 9/11?

MUELLER: I'm not certain, senator.

(END VIDEO CLIP)

SNOW: That's an important point, because what's been addressed time and again, Daryn, this afternoon is the technology that was available to the FBI. You had Senator Chuck Schumer saying at one point, "the computer I gave my 7-year-old is better than what the FBI has." You had other senators saying, "why is it that you can't have a database of documents, memos out there and be able to put in a word, say the keyword "airplane" and find every memo that's been written about airplanes or concerns about flight training schools, or that sort of thing?" Mr. Mueller kept saying, well, we just don't have that technology, and we need to make sure we bring in outsiders who know how to implement that new technology.

Now, this afternoon, once they take a break here, Daryn, we expect to see Coleen Rowley. Things will shift a little bit. It'll be focused on her story. She, of course, wrote a 13-page memo to FBI Director Robert Mueller, a very critical letter, talking about the clues that they thought they had discovered in Minneapolis, Minnesota, about Zacarias Moussaoui, now accused of being part of the plot of 9/11.

One of the sentences from that letter, which has just been released today, I think we have it, we can show you on the screen. She said: "I have deep concerns that a delicate and subtle shading, skewing of the facts by you -- meaning Mueller -- and others at the highest levels of FBI management has occurred and is occurring."

Certainly her testimony this afternoon, Daryn, is going to be something to watch. This is the first time that this mother of four has come out publicly now and spoken before the cameras -- Daryn.

KAGAN: It will be fascinating to hear what she has to say. Kate Snow, thank you so much, and of course you will see that live here on CNN.

Now, as you mentioned, they are going to take a break, and when that testimony begins, you will see it live here right with us.

Let's get some more perspective about what is ahead and what we have heard so far, and bring in Candice DeLong. She is a former FBI agent and she is now an author, having written a book, "Special Agent: My Life on the Front Lines," and Ms. DeLong joining us today from San Francisco. Good morning to you in San Francisco, and thanks for joining us.

CANDICE DELONG, RETIRED FBI SPECIAL AGENT: You're welcome.

KAGAN: You happened to have -- in your travels and your life as an FBI agent, did you ever come across Coleen Rowley?

DELONG: No, I didn't. I certainly think I would have enjoyed working with her. KAGAN: And what, from the people that you know within the FBI, is their opening of her, of the basic agent? Do people respect her, or do they think she is a troublemaker?

DELONG: No, I think there is an awful lot of respect for her and what she did. It took a tremendous amount of -- well, it is a very brave thing to do.

KAGAN: I'm hoping and maybe we can put back up on the screen that quote that we just referred to with Kate Snow, comes from the letter that she wrote directly to Director Mueller. And Candice, she writes: "I have deep concern that a delicate and subtle shading, skewing of the facts by you and others at the highest levels of FBI management has occurred and is occurring," and of course she is talking about the spin that's been put on events within the FBI by Director Mueller since 9/11. Any thoughts on that?

DELONG: Well, I hope that's not true, but if that turns out that that -- that did not happen, I hope that is the case. But I guess we will just have to see. I anxiously await her testimony.

KAGAN: And earlier this morning, we were listening to testimony of Robert Mueller, a lot of the senators were very concerned about whistle-blower protection for Coleen Rowley, saying that, you know, we want to make sure that she is going to have more than just a job. This is a woman who is two and a half years away from retirement. What do you think her final two and a half years at the FBI will look like?

DELONG: I think she'll be fine. Nothing of this magnitude has ever happened that I can recall, an agent coming forward like this, and that it resulted in congressional hearings. She'll be fine, because possibly because of all the publicity that this has brought on. I don't think anything will happen to her.

KAGAN: She doesn't necessarily look like a woman who was seeking the spotlight, but that spotlight might end being her best protection.

DELONG: I think so.

KAGAN: In the end. Candice DeLong, thanks for your brief time there from San Francisco. Really appreciate it.

DELONG: You're welcome.

KAGAN: And as we mentioned, we will be hearing from Coleen Rowley. She will be testifying before the Senate Judiciary Committee later this afternoon, and you will see that testimony live here on CNN.

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