Hearing of the House Judiciary Committee: FBI Oversight

Statement

Hearing of the House Judiciary Committee: FBI Oversight

REP. JERROLD NADLER (D-NY): Thank you, Mr. Chairman.

Director Mueller, I appreciate you being here to testify before the Judiciary Committee once again. As you saw from the September 5th letter that the chairman and Mr. Scott and I sent, as the committee, we have many issues to discuss with you. These topics include how the FBI handled the anthrax investigation, whether the FBI has been vigilant enough in fighting mortgage fraud, and the new attorney general guidelines regarding the FBI.

As you may recall, we asked for written responses in advance of the hearing. Unfortunately, we did not receive that response until last night. And not having those answers until just before today's hearing makes meaningful oversight much more difficult.

The executive branch and the American people benefit when Congress is exercising its constitutional responsibility to conduct oversight. In particular, we're very interested in discussing the new guidelines regarding the FBI. I'm sure members will be asking many questions about them.

Since we have not yet been given the actual text of the guidelines to keep and review, here again the committee's oversight role is unnecessarily more difficult. I must at this point register my displeasure with the decision by the FBI to show the guidelines to staff but not to allow them to keep a copy or not to allow the committee to see it.

These guidelines are not secret. They're going to be public in a few weeks. And I want to understand how it serves the purposes of open government to keep from the committee, to this moment, guidelines that are going to be open and public in a few weeks, as if it is the purpose of the FBI to make sure that the committee doesn't have enough information to ask intelligent questions before they go into effect. I'm sure that's not the purpose. Perhaps you'll tell us what the purpose of that secrecy policy is.

From what I know about them, I'm very concerned about the expanded authority being given to FBI agents. Their ability to conduct physical surveillance, conduct pretext interviews and so forth in terrorism investigations without having to suspect a crime has occurred and without getting approval of a supervisor leaves room for racial profiling and other forms of discriminatory treatment.

We've seen problems before when we gave too much authority to the FBI with respect, for example, to the national security letters. Two Department of Justice IG reports detailed widespread abuses. People's private information was improperly accessed by the government, and almost everyone who receives an NSL is gagged from talking about it, a potential violation of the First Amendment.

I don't think the FBI has demonstrated that it is using its expanded NSL authority appropriately. There is legislation that I've introduced which would address these problems. Among the provisions, it would reform NSL to better protect American civil liberties and constitutional rights.

I also would like to discuss the FBI's investigation into the anthrax case. Many serious questions have been raised about the arguments and evidence the FBI has shown. These questions have not been answered, and many outstanding issues remain. I'm glad you're here this morning so we can get some answers.

With that, I want to again thank Director Mueller for being here.

I look forward to hearing his testimony and his answers to questions.

I thank the chairman and I yield back the balance of my time.

REP. JERROLD NADLER (D-NY): Thank you, Mr. Chairman.

Mr. Director, first, before I give my questions, let me congratulate you on your role in standing up heroically against abuse of power as revealed in the last couple of days in The Washington Post with respect to a few years ago. I mean that sincerely.

Now, I want to talk -- ask a couple of questions about the anthrax investigation. The FBI has said essentially that this fellow Ivins apparently was the culprit. And he is, of course, deceased. Now, in understanding the bottom line of the Bureau's investigation and how accurate we can take it to be, it's important to understand the actual nature of the murder weapon; that is, the anthrax that was sent through the mails.

Scientists at the U.S. Armed Forces Institute of Pathology who examined the powder contained in the letter to Senator Daschle's office said it contained silica. Now, some observers say that silica may have been a sophisticated additive designed to make the powder a more deadly killer. Now, this additive required special expertise to apply to anthrax spores, an expertise that, according to his former boss at USAMRIID, the chief suspect, Mr. Ivins, simply did not have.

Now, at a briefing last month convened by the Justice Department to lay out details of its case, government scientists said the powders in the attacks contained no additives, only some silicon, which they described as naturally occurring.

Now, scientists say that a percentage of silicon higher than half of 1 percent has never been recorded in scientific literature as naturally occurring. So if that percentage is higher than half of 1 percent, it would be indicated that it was not natural, that it was added by a sophisticated operator.

So for the record, I want to ask you, what was the percentage of weight of the silicon in the powders that your experts examined?

MR. MUELLER: I'd have to get back to you on that.

REP. NADLER: I assumed you were going to say that.

REP. NADLER: So you can tell us what that percentage was.

MR. MUELLER: I believe I can, yes.

REP. NADLER: Thank you. Now, if the percentage is greater than half of 1 percent, or certainly greater than 1 percent, that would be a strong indicator that the anthrax was manipulated deliberately to be a very sophisticated killer. There are only a handful of facilities in the United States which have been publicly identified as having the experienced personnel and equipment necessary to make anything approach such an anthrax powder, including the U.S. Army's Dugway Proving Grounds and the Battelle Memorial Institute in Jefferson, Ohio, a CIA contractor. Were those facilities ever targets in the investigation?

MR. MUELLER: We -- (using ?) target is some other weighted word in current --

REP. NADLER: Well --

MR. MUELLER: But in terms of what we looked at in the course of the investigation, you can assume that we looked at every laboratory in the United States and several overseas that had both the type of the Ames anthrax that we found in this case, but also had individuals capable of undertaking the drying and repairing of the anthrax that --

REP. NADLER: And -- (inaudible) -- of the silicon, if that proves to be the case. If those facilities were looked at, could you tell us how and why they were ruled out, since obviously they zeroed in on Fort Detrick and Mr. Ivins?

MR. MUELLER: I would have to get back to you on individual facilities.

REP. NADLER: Final question. Do you agree, as many have suggested, that there may be a need for an independent review of the evidence, especially given that bioforensics is such a new field? And would the Bureau cooperate with such an effort? And what possible down side could there be from such a review, if it were to take place?

MR. MUELLER: Well, as I have indicated, that we're in discussions with and are going to request the National Academy of Science review the work that was done in the course of this investigation. And it is an independent review by a panel of scientists that will be pulled together by the national academy. Many of the scientists at the national academy ordinarily would seek to have on a panel are scientists that were already used in the course of the investigation.

But as I say, the national academy is an independent entity and will be conducting a review.

REP. NADLER: Well, thank you. And I just want to say I hope you will get back to us relatively quickly with the percentage of the (silica ?) and why the facilities were ruled out.

MR. MUELLER: We'll do so, sir.

REP. NADLER: Thank you. I yield back.

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