Hearing of the Senate Judiciary Committee

May 20, 2004 Thursday

SECTION: CAPITOL HILL HEARING

HEADLINE: HEARING OF THE SENATE JUDICIARY COMMITTEE

SUBJECT: FBI OVERSIGHT, TERRORISM AND OTHER TOPICS

CHAIRED BY: SENATOR ORRIN HATCH (R-UT)

WITNESS: ROBERT MUELLER, DIRECTOR, FEDERAL BUREAU OF INVESTIGATION

LOCATION: 226 DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D.C.
SEN. RICHARD DURBIN (D-IL): Thank you very much, Mr. Chairman.

Director Mueller, thanks for being here. And thanks for being so accessible and so candid in your answers, both before the committee and in person.

Mr. Chairman, I might also note that this is a sad anniversary. It's almost 14 months now since the attorney general has appeared before this committee. I know he is a busy man and has extraordinary responsibilities, but so do Secretary Rumsfeld and Secretary Powell, and they have made themselves available before the appropriate authorizing committees time and time and time again.

I'm troubled that at this moment of national security being a major issue and concerns about constitutional liberties, that this committee cannot possibly perform its constitutional responsibility if the attorney general continues to refuse to come before us. I would hope that you would appeal to him personally --

SEN. HATCH: Senator, he is going to come in June.

SEN. DURBIN: Come in June? So it'll only be 15-16 months since last we saw him. I hope that when he comes, it isn't another hurried appearance where those of us at the end of the table are told he has to be off to a noon meeting. That has happened before and I hope it doesn't happen again.

I'd like to ask if --

SEN. HATCH: (Off-mike) -- was going to come at the end of March, or in March. But then he got very sick and --

SEN. DURBIN: No, I'm perfectly aware of the medical problems he faced.

SEN. HATCH: We'll get him in here.

SEN. DURBIN: It'd be great to see him. It's been a long time.

Let me ask you this, Director Mueller. Can you clarify something about Nicholas Berg? I'm troubled by the press reports that have been out about him. And what a tragedy that this would happen to any person and be publicized in a fashion so that the world and his family would know these barbaric circumstances that led to his death. It should be condemned by everyone.

But tell me about this man. Was he detained in Iraq when he tried to leave because he was under investigation or there was some suspicion that he had done something wrong?

MR. MUELLER: My understanding is that he had been detained by Iraqi police officers. The circumstances under which they detained him, I'm not sure are totally clear. He was detained. He came to our attention. We did an indices check and determined that he had had some tangential association with Moussaoui, whom I believe you know was arrested shortly before September 11th, which warranted us doing follow-up interviews. And we did follow-up interviews with Mr. Berg, found that he had, as far as we were concerned, no association with terrorism. He was then released.

At the time of his release, he was spoken to by, I believe, individuals of the CPA, and I believe our agents as well, who urged him to leave. And my understanding is that CPA also indicated that if he did not have the wherewithal to leave, they would supply it to him. He turned them down, went to a hotel. I also believe that there was a request made by CPA authorities that they be able to alert his family. And my understanding-and I'd have to check on this-is that he declined that that be done. And then he became missing from his hotel.

It is indeed a tragedy. But those are the circumstances, to the best of my knowledge.

SEN. DURBIN: And, of course, it's been publicized that his family went to federal court in Philadelphia, if I'm not mistaken, trying to force his release from detention so that he could leave the country. So it appears that there's some conflict as to his intentions and what actually occurred. But I think you've made it clear for the record, and I hope it's unequivocal, that there's never been any suspicion of any wrongdoing or illegal activity on his part.

MR. MUELLER: No. As I said before, he was a person we interviewed in the wake of September 11th, and the interview indicated that he was not associated in any way with terrorists. And that was, again, confirmed when we interviewed him in Iraq.

SEN. DURBIN: And was he at any time working with a U.S. agency for intelligence or any agency that you're aware of to try to gather intelligence?

MR. MUELLER: Not to my knowledge. My understanding was he was in Iraq to try to develop his own private business which related to cell phone towers, I believe.

SEN. DURBIN: Those are the press reports. And I also would like to switch, if I could, to an issue that's been discussed over and over here, and that is the Patriot Act, which I voted for and most members did. But I'm also co-sponsoring with Senator Craig the SAFE Act in an attempt to not eliminate the Patriot Act but rather, in specific instances, to require what we consider to be necessary safeguards within that act.

I will concede that a lot of work went into it, but I think most senators will agree that an act of this historic moment moved through in record time. It was in light of our concern about the threat of terrorism. We tried to be responsive. We put in a safeguard to say that we would revisit some of these issues. We would put sunsets on the provisions to make sure that they were wise in their conception and being used in a fair and judicious fashion.

I am concerned, though, as I look at the provisions in the act, that we have just made some statements here at the hearing that I don't think accurately reflect the changes in the law that are included in this Patriot Act. This Section 213, the delayed notification-sneak-and-peek, depending on your personal feelings on this-clearly puts a standard of reasonable period into the law as to how long you can proceed without notification.

The court cases, as you're well aware, said seven days. And after seven days, at that point the government has a burden to come forward and explain why they are delaying the notification. But this provision-and this is on existing law, the seven-day notification-but in the Patriot Act, what we're dealing with here is virtually indefinite in terms of notification.

What we have tried to do, what Senator Craig and I have tried to do, is to provide specific exceptions for circumstances that have been described here. We have said that we would continue to delay notification of a warrant if there was any possibility that notification would endanger a life or physical safety, result in flight from prosecution or destruction or tampering with evidence.

Now, I think that creates a reasonable model, a reasonable standard, which says that if you cannot establish one of those elements, that at some point notification must be given.

How, then-what exception do you think we've missed here in this providing for notification that you think would somehow jeopardize your work?

MR. MUELLER: Well, every investigation is different. There are some investigations where delay of 24 hours would be sufficient. There are some investigations where delays of 30 or 60 days might be entirely appropriate if it's a large investigation.

What the Patriot Act, I think, appropriately does leaves the duration up to the judge to decide on the facts that are presented when the judge issues the order. And I have not found judges reluctant to act and set parameters based on what the prosecutors and the agents show them.

In terms of a change to the Patriot Act that is proposed by the SAFE Act, the elimination of seriously jeopardizing an investigation I think would adversely affect our ability to set a set of circumstances before a judge which shows that the delay is necessitated by the unique circumstances of investigation.

What I believe the SAFE Act does is leave in some more narrowly- defined bases for obtaining the delayed notification. But there are a number of circumstances that come up in an investigation which I don't think you can necessarily cubby-hole but that a judge looking at it can say, "Okay, this is going to seriously jeopardize an investigation, and therefore I ought to delay the notification for 60 or 90 days."

SEN. DURBIN: Well, Director, I think, though I may not agree with the specific language, I think that's a good-faith suggestion.

Mr. Chairman, you've suggested a hearing on the SAFE Act. And when we get into it, I think, if we are going to try to establish standards that meet your goals and ours, we are, I think, going to tighten it without eliminating the expansion of government authority to go after terrorists.

I would like to work with the chairman and the director to come up with that language. I think that's important. And maybe we can reach that goal. I hope that we can in the course of what we're setting out to do.

I also would just like to make one comment before I close. And you've been very patient, Mr. Director, as the chairman, waiting for those of us in lowly status to have our moment. But let me just say that many have said here we just haven't heard any complaints about this Patriot Act.

Well, I don't think that that is an appropriate standard when it comes to protecting our freedoms in this country. Much of the work being done under the Patriot Act will be done without the knowledge of the person who is being-maybe having their rights violated. So they may not even have knowledge that this is going on when they are subject of investigations or wiretaps or searches under the Patriot Act.

So I would hope that we can still establish as a standard that there are very, very efficient ways for this government to collect information which clearly violate the Constitution. And we have to find a way to draw a line to preserve security in this society while still maintaining our mutual oath to uphold the Constitution.

SEN. HATCH: Thank you, Senator. Your time is up. I haven't used my time, nor do I intend to. But let me just say that I think the Patriot Act is one of the most misunderstood acts of legislation I've ever seen. The media and many of the pundits have focused on hypothetical abuses.

But as my dear friend from California, Senator Feinstein, has mentioned at a prior hearing, not even the ACLU has been able to cite a single instance of actual abuse. And, you know, they watch things very carefully, and I commend them for doing so, because they serve this country well when they do that.

I held a hearing in Utah in April, and we invited a plethora of critics of the Patriot Act, yet not one single one of them could cite even one example of actual abuse-not the ACLU, not the League of Women Voters, not the Conservative Caucus, not the Eagle Forum, not the Libertarian Party. They were all there.

They were all hypothetical, all "what if"-"What if this happened or that happened?" But my big "what if" is, what if we don't have the tools to prevent terrorism in this country in the future? That's why the Patriot Act is so important.

Now, we'll have further hearings on this, and I do intend to have a hearing on the SAFE Act. I think my colleagues feel that that's something that should be done. And Senator Leahy and I will hold that hearing.

But I just want to thank you. I know you've got to go and I know we've kept you beyond the 1:00 time that I said I would try to keep it in. And I've appreciated your patience and your kindness in spending this amount of time with us, and it's been very beneficial and fruitful for the committee, and I think for the public at large, who may see this on C-SPAN.

With that-Senator --

SEN. LEAHY: I also-I want to join with you, Mr. Chairman, in doing that and thanking the director. He has been here. He's answered a whole lot of questions. This has been a good hearing. Normally in my role as ranking member, I could ask my questions and leave. I've stayed here for it because I found the answers and the questions on both sides of the aisle to be very informative, very worthwhile. I appreciate the information.

I might just say, from my personal point of view, I know you quite well. I believe you're former law enforcement, former Marine. I can imagine you felt like a former Marine who's near and dear to me, how he felt when he saw the pictures of the prisoners.

And I think, as I'm sure you do, the 138,000 American men and women over there in the uniform who are carrying out their duties every day, doing exactly what they should do, have been put in increased danger, to say nothing about your agents and contractors, and, and, and.

So I thank you for being here. And Mr. Chairman, I thank you and I applaud you for this hearing.

SEN. HATCH: Well, thank you. And I just want to thank the FBI. The American people need to know the tremendous job that you folks are doing for our country. I mean, you're just under pressure all the time. Most of the agents are underpaid for the risks they take and the pain that they go through for all of us. And, you know, I know that a person like you can go out into the private sector and make a fortune. But you've chosen to serve in public service. And sometimes you have to take abuse for doing that that you really shouldn't have to take. And to be honest with you, I've really appreciated you being here today and I appreciate the service that you're giving.

I'll keep the record open for any written questions that any member of the committee would care to send, and I hope that you and your staff will answer those as soon as possible.

MR. MUELLER: Thank you, Mr. Chairman.

SEN. HATCH: Just don't let anybody believe for a second that our FBI isn't doing the very best it can. And I don't know where we'd be without folks like you and the good public servants who serve us through the FBI. And thank you for the time. Sorry to keep you so long.

MR. MUELLER: Thank you.