Hearing of the Commerce, Justice, Science and Related Agencies Subcommittee of the House Appropriations Committee Subject: Federal Bureau of Investigation of Fiscal Year 2009 Budget Request
Interview
Hearing of the Commerce, Justice, Science and Related Agencies Subcommittee of the House Appropriations Committee Subject: Federal Bureau of Investigation of Fiscal Year 2009 Budget Request
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REP. ADAM SCHIFF (D-CA): Thank you, Mr. Chairman.
Mr. Director, I appreciate your being here. I spent six years as assistant U.S. attorney and worked extensively with the FBI on counterespionage and corruption cases, and I have a tremendously high regard for the people in your agency.
There are a number of areas I want to cover. I was, you know, very concerned, as our chairman indicated, with some of the problems that I've seen with the NSLs. More specifically, in terms of my concern, were the exigent letters saying that -- provide us these letters, that there's an exigency, that there's a grand jury subpoena forthcoming when in fact there was no grand jury even impanelled, let alone a subpoena forthcoming. That did not sound at all like the FBI that I had the pleasure of working with.
And I want to ask you about that, but before I turn to that, one of the areas that I'm also very interested in is the use of DNA evidence. And there has been a very substantial backlog of DNA samples which is expected to get a lot worse when the new law kicks in and a broader pool of convicts and arrestees will be within those required to be sampled.
In the budget request, there's a request of only a little over 30 million (dollars). I don't see how that will be enough to try to deal with the backlog we have now, let alone the backlog we can anticipate when the new law kicks in later this year or in 2009.
Do you know what the current backlog is of DNA samples? And do you have a sense of what resources would really be necessary to eliminate that backlog?
MR. MUELLER: I'd have to get you those specifics. But I can also tell you that we're still recovering from the changes in the law in I think it was 2005, which added a substantial number of individuals that we would need to process. And clearly, it's going to occur again. We put into the budget that which we think we could utilize and, hopefully, build upon in years to come. And I'd have to get you both the figure on the backlog as well as a breakdown of what it would cost to immediately -- or to remove that backlog.
REP. SCHIFF: I would very much like to get that. This is such a powerful tool, and there is perhaps no other tool like it, in the sense that you can directly correlate and say, if we clear up this backlog, we can anticipate getting x number of thousand new hits. If we get that many thousand of new hits, that means we can take that many murderers and rapists off the street. We can say, I think, with absolute certainty if we don't eliminate the backlog there will be people who will be raped by serial rapists that we could have taken off the street, that we can identify now. We have the power, and we may even have collected the rape kits or the offender DNA but not had a chance to analyze it yet. So I'd look forward to getting that information, and we'll have to work to see if we can get the resources necessary to really deal with this and make sure that at least vis-a- vis the most serious offenses, that law enforcement can get those samples analyzed very quickly.
Can you share with me on the --
MR. MUELLER: Can I just add one other point?
REP. SCHIFF: Yes.
MR. MUELLER: One of the other things we're looking at is advances in technology to expedite the examinations and some of the process -- the DNA process that would also eliminate the backlog -- not just the additional personnel, but we're looking hard at technology being also a contributing factor to removing that backlog. And we can brief you on that, as well.
REP. SCHIFF: Wonderful. And one other issue that's related to that. You know, the state and local law enforcement have a tremendous backlog problem as well, probably greater than yours. One of the obstacles they face is that when they can't -- like a local police department in my district, when they don't have the facility themselves, they have to go to the county sheriff's department. That often takes so long that they go to a private lab, which is very expensive to do. But then the private lab each -- I guess there's a hundred percent requirement of review of the private lab's work by the county, when the county uses the same private lab for its overflow without, evidently, the same requirement.
So it seems that there's -- and I think according to a National Institute of Justice study, some of these hundred-percent review requirements are adding tremendous costs without improving accuracy. So I'd love to work with your office as well on that issue.
On the issue of the exigency letters specifically, can you share what the audit has found or what you've found or what steps have been taken to try to ensure that we don't have a situation again where you have agents telling phone companies or others, "We need these records, it's an emergency, you're going to get a grand jury subpoena," when in fact there's no grand jury even impanelled?
MR. MUELLER: Well, the IG -- we are working jointly with the IG in investigation of the exigent letters, and that is still under investigation so I cannot get too far in depth into the investigation. There are a couple of things I can say. One, that back when the report -- the IG report came out, we issued a ban against use of them, so they have not been used once we became aware of the extent of the use in the IG report last year.
I will say that my understanding is the practice arose first of all in New York and was to a certain extent imported to headquarters as a result of the shift of primacy for handling a case from the field office back to headquarters. And the practice arose from persons using forms without reading the forms. This is my understanding; it is not by way of excuse. But it was transported from New York and was utilized here without the appropriate attention to what was happening and to assure that whatever representation is made on the piece of paper as to what was going to happen was in fact true. And as I say, the investigation is ongoing and I'll see what the IG recommends in terms of whatever further steps need to be taken as to assure that this practice does not grow in another way.
I will tell you one other thing that we have found, that I think covers not just national security letters but other areas as well, and that is, while we would establish procedures, we did not have a mechanism to assure that the procedures were being followed. And so we established an Office of Compliance to look at those areas where there is weakness or potential weakness to identify them early on and address them. And so when Congress passes a statute that requires that we adhere to certain procedures, that in the future we not only set forth procedures within the bureau, but we make certain that we have red teams and others that are looking to assure throughout the organization that the procedures are indeed being followed.
The lesson we learned from this episode is that it's insufficient to issue procedures without also having a mechanism to assure that the procedures are being followed in our 56 field offices and in our 400 resident agencies.
REP. SCHIFF: I appreciate that. And you know, this colors our view of the whole FISA debate when we see some of the authorities we've already provided, the NSLs or in other areas, without adequate safeguard and abuses. So it certainly colors how we view the additional request in FISA.
But thank you, Mr. Director. I appreciate your testimony.
Thanks, Mr. Chairman.
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REP. SCHIFF: Thank you, Mr. Chairman. Mr. Director, my district is a Los Angeles district, and we're facing a problem that's become increasingly nationwide and in fact crosses international borders and that's dealing with gangs. Back when I was with the U.S. attorneys, we did very little gang prosecution. It was mostly state and local.
But as gangs have proliferated and become national and international and gotten more heavily involved in the drug trade, I know that's changing.
Senator Feinstein has a bill that passed the Senate. I've got a slightly different version here in the House that would invest a substantial sum in prevention to try to keep kids out of trouble on the front end. It would also invest a substantial sum on the back end in giving law enforcement additional resources to deal with the gang problem with programs like HIDA, HIDRA and others.
It would also establish a RICO-like statute specific for dealing with gangs, so that prosecutors don't have to resort to something that was designed with the Mafia in mind to deal with very different criminal structure.
I wonder if you could share your thoughts on the FBI's increasing role in dealing with this problem, why that's been necessary, as well as whether you think these tools, in terms of a statute that's more on point than RICO for dealing with gangs, whether that would be something of value to federal law enforcement.
MR. MUELLER: The FBI's role -- I believe very strongly that, to the extent that the FBI can assist state and local law enforcement in reducing violent crime in the cities, the FBI should. We certainly cannot supplant state and local law enforcement, whose principal responsibility is to address it. But to the extent that, whether through technology, intelligence or federal statutes, we can assist, we should.
Consequently, since September 11th, both in our -- one of our priorities is transnational-international organized criminal groups. We've addressed gangs as well as our violent crime programs; we've addressed gangs. We have over 150 Safe Street task forces, whether it be gangs or violent crime task forces around the country.
I believe that the most effective and efficient way of addressing it is to combine the resources of state and local law enforcement with the FBI, because we have the jurisdiction across the town lines, the city lines, the state lines, and now international lines.
If you take something -- if you take a gang such as MS-13, starting in Los Angeles and El Salvador, basically, but it's spread to Guatemala, Honduras and Mexico, and then across the country. Our ability to gather the intelligence and make it available to Bill Bratton and Los Angeles, for instance, I think, is important in assuring his success in addressing gangs in Los Angeles.
We now have a task force -- we have task force members down in El Salvador that are assisting the El Salvadorans in collecting fingerprints and putting together data bases that can be useful in addressing the gang structures in the United States. That is the type of effort that I think is important.
I also go back to the belief that state and local law enforcement should be funded, in my mind, with the view towards that funding going to participation in task forces, because that's the way you are most effective.
As to the other question in terms of the statute, I think I agree with you that RICO and continuing criminal enterprise have elements that make it difficult in many situations to address the configuration of gangs as we see them on the streets in America today.
I'm not familiar with your legislation, but we are seeking additional -- we should be seeking, let me put it that way, additional capabilities to address the differing gang structures that we see around the United States, which are, as you point out, somewhat different from the narcotics trafficking gangs of the past and of the Mob, the Mafia.
REP. SCHIFF: Let me ask you, on the terrorism front -- my colleague, Mr. Ruppersberger, mentioned the cultural change that FBI has had to undertake in going from a law enforcement agency that also did counterespionage to a heavy focus on gathering information in terms of potential domestic terrorism.
Part of the changes, you know, that have been required to make are institutional within the FBI, but part of the broader changes involve information-sharing and the attempt to make sure that we can connect the dots, to use an overused expression. Part of that meant revising some of the laws about when you could share information that was derived in a criminal investigation with people doing intelligence and vice versa.
Can you share your thoughts on how that has worked out? Are there any remaining impediments to your ability to get the information you need from the intelligence community to do your job, or conversely, information you derive on the criminal side from sharing that with those that need to know in the intelligence community? Are there any remaining legal obstacles that we should be aware of? Are there any, legal or otherwise, that we should be focused on?
MR. MUELLER: In an effort to -- I can't think, off the top of my head, of another area which we need to open to enhance better sharing. I'd have to get back to you. I'd have to think about that. But I will say, since September 11th, on the passage of the Patriot Act, certain rulings of the FISA court have broken down the walls we were used to before, both within the FBI -- in other words, the intelligence side of the house, that counterintelligence cannot talk to criminal and vice versa, but also between the FBI and the CIA, DIA, NSA and the like. Those have, in large part, broken down, and appropriately so.
And you're also seeing, at the same time, the growth of entities such as the National Counterterrorism Center that understands that we collect information under different authorities, but once that information is collected, it has to be integrated in order to get a clear picture of the threats, because many of the threats to the United States now may well come from outside, whether it be cyberterrorism and the like. And without that intersection, without that integration of information, we cannot get the picture. So I think we've come a far way.
There's one inhibitor -- I'm not going to say we're perfect, because -- but it is far less institutional now than occasionally individuals. And I'll have somebody or one of my counterparts will have somebody who has not seen the light, so to speak, and we have to address the individual instances. It is -- the institutional chasm has been -- we have addressed.
REP. SCHIFF: Thank you.
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