I have moved swiftly on the Committee to consider and move forward the nomination of Robert S. Mueller, III, to be Director of the Federal Bureau of Investigation. His nomination was sent to the Senate on July 18 but his paperwork was not completed until July 24. Less than one week later, we held two days of hearings, on July 30 and 31, 2001, in order to ensure Committee and Senate consideration of this important nomination before the August recess.

Mr. Mueller has had an outstanding career in law enforcement, serving as a Federal prosecutor in three different United States Attorneys' Offices and in Main Justice under both Republican and Democratic Administrations. As he testified at his confirmation hearing, he has "either personally prosecuted or supervised the prosecution of just about every type of Federal Criminal offense, including homicide, drug trafficking, organized crime, cyber crime, major frauds, civil rights and environmental crime."

Mr. Mueller was the only witness at his hearings. The Committee did not call other witnesses we are in the midst of intensive and ongoing FBI oversight hearings. These FBI oversight hearings were an integral part of the Committee's preparation to consider the nomination of a new FBI Director, and Mr. Mueller's opening statement at his confirmation hearings specifically addressed significant issues raised in the prior hearings.

At the oversight hearing on June 20, 2001, the Committee examined both outside oversight mechanisms and methods to restore confidence in the FBI. Witnesses included former Senator John C. Danforth, who investigated the events at Waco as Special Counsel to the Attorney General; the Honorable William H. Webster, former FBI and CIA Director, currently heading a review of FBI security in the aftermath of the Hanssen espionage case; Glenn A. Fine, current Inspector General of the Department of Justice; Michael R. Bromwich, former Inspector General of the Department of Justice; and Norman J. Rabkin, Managing Director, Tax Administration and Justice Issues, General Accounting Office.

At the oversight hearing on July 18, 2001, the Committee considered the reform of FBI management with views from inside and outside the FBI. Witnesses included Raymond W. Kelly, former New York City Police Commissioned and Commissioner of the U.S. Customs Service; Bob E. Dies, FBI Assistant Director for Information Resources; Kenneth H. Senser, Acting FBI Deputy Assistant Director for Security Programs and Countermeasures; John E. Roberts, Unit Chief, FBI Office of Professional Responsibility; John Werner, former Supervisory Special Agent, FBI Office of Professional Responsibility; Frank L. Perry, Supervisory Senior Resident Agent, Raleigh, North Carolina, and former head of the Office of Law Enforcement Ethics at the FBI Academy; and Patrick J. Kiernan, Supervisory Special Agent in the Law Enforcement Ethics Unit at the FBI Academy.

This nomination comes at a crucial juncture for the FBI. Mr. Mueller acknowledged at his confirmation hearing "that the Bureau's remarkable legacy of service and accomplishment has been tarnished by some serious and highly publicized problems in recent years. Waco, Ruby Ridge, the FBI lab, Wen Ho Lee, Robert Hanssen and the McVeigh documents–these familiar names and events remind us all that the FBI is far from perfect and that the next director faces significant management and administrative challenges." Mr. Mueller reminded us "that these problems do not tell the whole story of the FBI in recent years." He correctly observed that the FBI has had "astonishing success during the same period" and that "the men and women of the FBI have continued, throughout this period of controversy, to do an outstanding job." Nevertheless, Mr. Mueller recognized that "highly publicized problems have, indeed, shaken the public's trust in the FBI." The Judiciary Committee aims to forge a constructive partnership with Mr. Mueller to get the FBI back on track. Congress sometimes has followed a hands-off approach about the FBI. Until the Bureau's problems are solved, we will need a hands-on approach for awhile.

Civil Liberties at Stake. The rights of all Americans are at stake in the selection of an FBI Director. The FBI has extraordinary power to affect the lives of ordinary Americans. By properly using its extraordinary investigative powers, the FBI can protect the security of us all by combating sophisticated crime, terrorism, and espionage. But unchecked, these same powers can undermine our civil liberties, such as freedom of speech and of association, and the right to privacy. By leaking information, the FBI can destroy the lives and reputations of people who have not been charged or had a trial. Worse, such leaking can be used for political intimidation and coercion. By respecting constitutional safeguards for criminal suspects, the FBI can help ensure that persons accused of federal crimes receive a fair trial and that justice is served. Our paramount standard for evaluating a new Director is his demonstrated adherence to the Constitution as the bulwark of liberty and the rule of law. This is necessary to assure the American people that the FBI will exercise its power effectively and fairly.

Throughout his career and in his testimony at his confirmation hearing, Mr. Mueller has showed his commitment to these principles. He testified, "I care deeply about the rule of law. In a free society a central responsibility of government. I believe, is to protect its citizens from criminal harm within the framework of the Constitution." He stressed that "the FBI is vital to the preservation of our civil order and our civil rights."

New Era With New Challenges. This was the sixth time the Judiciary Committee has held confirmation hearings for an FBI Director since 1973, when the first nomination was made under the 1968 law requiring Presidential appointment and Senate confirmation of the FBI Director. That first nomination hearings, along with enactment in 1976 of the 10-year term for the Director, were conducted against the backdrop of Watergate. The nominee then was L. Patrick Gray, an Assistant Attorney General who became Acting Director after the death of J. Edgar Hoover in 1972. Gray held that position when the Watergate break-in and cover-up occurred. At the time of his confirmation hearings in early 1973, very little of the scandal was known beyond the reporting of the Washington Post. Patrick Gray had met with the President's Counsel John Dean, so this Committee prepared to subpoena Dean and expected strong resistance in the name of Executive privilege. Other events then took over, the Gray nomination was withdrawn, and he later admitted personally destroying evidence. Those were dark days for the Bureau.

Lost Confidence In The FBI Is Not Just A PR Problem. The challenges facing the next FBI Director are different from the issues of abuse of power three decades ago but are just as tough. The American public has lost some confidence in the Bureau. This is not just a PR problem. This erosion of public trust threatens the FBI's ability to perform its mission. Citizens who mistrust the FBI will be less likely to come forward and report information about criminal activity. Judges and jurors will be less likely to believe the testimony of FBI witnesses. Even innocent or minor mistakes by the FBI in future cases may be perceived in a sinister light that is not warranted. Since FBI agents perform forensic and other critical work for many law enforcement agencies on the federal, state and local levels, the repercussions of this decline in public confidence in the FBI has rippled far beyond federal criminal cases.

In his confirmation testimony Mr. Mueller took special note of the impact within the FBI: "The shaken trust, in turn, inevitably affects the morale of the men and women who serve at the Bureau." He pledged to "make it my highest priority to restore the public's confidence in the FBI, to re-earn the faith and trust of the American people."

Constructive Oversight Necessary. For too long, the Congress has taken a hands-off approach to the FBI. Problems have been allowed to fester. The Congress has a duty to the American people to conduct systematic and ongoing oversight of the FBI to ensure it meets the highest standards of professionalism, competence, and adherence to the law. Constructive, bipartisan oversight of the FBI can greatly improve its effectiveness. While reviews by Inspectors General and other outside experts are important – the ultimate test is accountability to the people through the Congress.

Three principles guide the Judiciary Committee's oversight of the FBI. First, our task is to rebuild confidence in the FBI as a vital national asset, not to tear it down.

Second, when we look at mistakes, we do so as an essential first step to find and fix their cause. The purpose is not to detract from the outstanding work of the dedicated professional men and women of the FBI who go to work every day to keep this nation safe. Highly publicized mistakes have created an impression that the Bureau is unmanageable, unaccountable and unreliable. Unfortunately, these mistakes detract from the outstanding performance of FBI Special Agents and other employees who handle the most complex criminal, terrorist, and counterintelligence cases day in and day out. Only by fixing those problems, and continuously improving the organization, will the tremendous work done by so many Agents and employees get the full credit it deserves.

Finally, our efforts will be to reach bipartisan solutions that make the FBI better able to fulfill the weighty mission we demand of it. Working with the new Director and the Attorney General, I am convinced we can achieve these goals.

Several members discussed with the nominee his views on providing information to Congress.
In response to Senator Schumer's concern about a request he had made for documents from the FBI on a policy issue regarding records of gun sales, Mr. Mueller said, "I do believe that the Bureau should do everything possible to accommodate the requests of Congress. If there are documents that relate to the policy, that are generated by the FBI, then I believe the Department of Justice and the FBI should do everything possible to accommodate the request of Congress, consistent with its law enforcement responsibilities."

Mr. Mueller repeated this assurance when Senator Specter cited a number of problems in getting FBI documents over the years. Mr. Mueller stated, "I absolutely agree that Congress is entitled to oversight of the ongoing responsibilities of the FBI and the Department of Justice." He added that "it is incumbent upon the FBI and the Department of Justice to attempt to accommodate every request from Congress swiftly and, where it cannot accommodate or believes that there are confidential issues that have to be raised, to bring to your attention and articulate with some specificity, not just the fact that there's an ongoing investigation, not just the fact that there's an ongoing or an upcoming trial, but with specificity why producing the documents would interfere with either that trial or for some other reason or we believed covered by some issue of confidentiality."

Mr. Mueller cited two cases (BCCI and BNL) when he was head of the Justice Department's Criminal Division where an accommodation was reached to provide information to Congress on pending cases. He said he "would expect that we would always have that ability to accomplish the accommodation that is necessary for Congress to discharge its responsibilities in oversight." Questioned further, Mr. Mueller said "congressional oversight is appropriate, even if there is a pending prosecution or investigation" and "it is incumbent upon us to attempt to accommodate the necessity of the oversight committee to have the information it needs." He went on to say there may be "the assertion of executive privilege" and "where there is a clash or disagreement between the executive and the legislative, I believe the courts are the final arbiters."

Senator Grassley expressed concern about a deliberate pattern of denying, delaying or simply not complying with legitimate requests and asked the nominee how he would change the Bureau's penchant for denying legitimate access to documents and witnesses. Mr. Mueller replied that if there is an investigation by a committee of Congress, he would "expect to have somebody responsible for assuring that we are responsive on that particular issue" and, where "some confidential interests" are implicated, "to state honestly and directly to the committee what should be done to accommodate the committee's request." He would like to "foster a change in the perception so that you do have the feeling at the end of the day that the FBI has been responsive."

Accommodation, rather than obstruction, of congressional requests for documents will be Mr. Mueller's goal. That is a positive promise.

Three Core Problems. The questions being asked about the FBI are directed at three inter-related issues: the Bureau's security and information technology problems, management problems, and insular "culture." The Committee is in the midst of examining each of these areas at oversight hearings that began in June shortly after I became Chairman.

Serious Security Breakdowns And Information Technology Inadequacies. In the national security field, our country depends on FBI counterintelligence to protect the most sensitive intelligence, military, and diplomatic secrets from foreign espionage. The espionage case of Robert Hanssen demonstrates, however, that the FBI's own security and the investigation of espionage in its own ranks failed dramatically, with enormous potential consequences. What is most disturbing is how many red flags the FBI apparently overlooked during the many years that Hanssen was a spy. The reviews by the Inspector General and Judge Webster will not be done for many months, but testimony before the Committee in July shed light on how this spy was able to operate with impunity for so long. We were told that there were no less than 15 different areas of security at the FBI that were broken and needed to be "bolstered, redesigned, or in some cases established for the first time."

The Committee intends to continue its oversight work in this area, including closed sessions with the Director and other FBI officials to consider classified aspects of FBI information security.

One of the first things Director Freeh did after Hanssen's arrest was to require periodic security-screening polygraph exams for FBI Agents with access to the most sensitive information. Reviews are currently underway that focus on the benefits and risks of the polygraph as a security screening tool. If the FBI needs wider use of polygraph exams, there must be firm assurances of consistency in their administration, application and quality controls. In response to a question from Senator Hatch, Mr. Mueller said he is willing to continue the requirement for polygraph exams for managers handling national security matters. He confirmed that he had already completed that polygraph exam. He stated his belief that "you don't ask people to do that which you're unwilling to do yourself."

The FBI needs to fully join the 21st Century. This is the information age, but the FBI's information technology is obsolete. The Committee has been told that the FBI's computer systems have not been updated for over 6 years; that more than 13,000 desktop computers are so old they cannot run on today's basic software; that the majority of the smaller FBI field offices have internal networks that work more slowly than the Internet connections many of us have at home; and that the investigative databases are so old that FBI agents are unable to store photographs, graphical or tabular data on them.

Hard-working, dedicated FBI agents trying to fight crime across this country deserve better, and they should have the computer and network tools that most businesses take for granted and many Americans enjoy at home.

To the credit of former FBI Director Louis Freeh, in the last year of his tenure, he reached outside the Bureau for fresh management perspectives and expert advice. He recruited two new senior FBI officials, who were not career Agents but were brought into the FBI from IBM and the CIA to develop plans for addressing the Bureau's security and information technology problems. The Director should continue to look for the best advice from outside the Bureau, while at the same time identifying leaders within the Bureau who are committed to necessary reforms. In the months ahead the Committee will watch closely to see if the Director backs up the proponents of reform when they face opposition from Bureau officials wedded to the status quo.

At his confirmation hearings Mr. Mueller placed great emphasis on the need "to upgrade the information systems and to upgrade the systems and procedures to integrate modern technology. Every FBI manager, indeed, every agent needs to be computer literate, not a computer programmer, but aware of what computers can and cannot do to assist them with their jobs."

When asked by Senator DeWine how quickly he would be able to fully implement the FBI's information technology plan, Mr. Mueller said the Bureau has "a 3-year technology update plan called Trilogy, and the good news about that is that it's laying the foundation, whether it be the networks or the software, the hardware, the user interfaces for bringing the FBI agent into the modern era." He added that the "not-so-good news is that once we have that structure in place, there's a lot more to do." Mr. Mueller cited in particular "the storage and easy retrieval of documents, of imaging documents when they come in immediately so that you have ultimately what is referred to in the private sector as a paperless office."

Management Problems. The security and information technology problems facing the FBI are not problems of money. The Congress has poured money into the FBI. They are management problems and they can no longer be ignored. Mr. Mueller has seen the FBI up close for many years – as Acting Deputy Attorney General, as Assistant Attorney General, and in three United States Attorneys' offices. The Committee wanted to know what management objectives he would bring to the job, based on his past experience, and what other resources he would draw on to bring about needed changes.

Mr. Mueller spelled out his overall "management priorities" in his opening statement to the Committee: "Underlying these priorities is my belief that the core asset of the FBI is its employees. I am committed to providing the leadership, and management, and energy necessary to enable these talented and dedicated people to do their jobs as effectively as possible" His first priority will be "to recruit, encourage, and select the highest quality leadership" resulting in "a management team that reflects the diversity of our society." Second is to "review carefully management structures and systems" with special concern "about the span of control, the degree of decentralization, and whether responsibilities are clearly defined." Third is to rebuild the information infrastructure, as discussed earlier. Fourth is for the FBI "to review continuously its priorities and its allocation of resources" in order to "anticipate the challenges the Bureau will be facing 10 and 20 years into the future and prepare now to meet those challenges." Fifth is to "develop the respect and confidence of those with whom it intersects, including other law enforcement agencies, both domestic and international, and Congress."

Mr. Mueller added that he would "move quickly on administrative and management changes." Personnel changes would be made first. Changes in structure and span of control would take more time, with input from a management consultant study commissioned by the Attorney General, other pending reviews, and ideas from other executives who run large organizations.

The management structure at the FBI may simply have become too unwieldy. When the Bureau was smaller, its headquarters could reasonably attempt to keep track of the activities in its field offices. In recent years, however, the Bureau has grown tremendously with 56 field offices, plus 44 overseas Legal Attaches. It may not be possible for headquarters to effectively monitor field activities. The belated production of documents in the Oklahoma City bombing case happened despite sixteen separate orders from Headquarters for pre-trial production of those documents. Similar problems arose in the Wen Ho Lee case, where a field office disregarded instructions from headquarters. At the FBI oversight hearings Former New York Police Commissioner and Customs Commissioner Ray Kelly testified that a regional structure makes a large law enforcement organization more manageable.

At the confirmation hearings I asked Mr. Mueller whether this is something that would be considered. He replied, "Absolutely," and said he "did read Commissioner Kelly's testimony with some interest." He added, "I would look at that proposal with a view to whether it goes toward affording appropriate span of control." He went on to stress the need "to have the technological infrastructure be such that I would be able to review, as would the intermediate managers, review the work on critical cases or critical classes of cases by turning on your computer and using the mouse to click on a series of cases to see what has been done the last 3 days, what you expect to be done in the next 30 days."

Senator Kohl asked if it was realistic to expect big changes quickly, given the size of the FBI with more than 27,000 employees and a budget of more than $3.5 billion. Mr. Mueller replied, "I do think that one can relatively quickly, over several weeks/months, learn the institution and learn the people, learn what are the largest problems, whether it is span of control, what are the larger personnel problems and in a relatively short time. And I don't want to specify any particular time, but certainly within months start to make substantial changes." He added that making "the most critical decisions" about positions of leadership "is not an extraordinarily time-consuming undertaking." Changing the organizational structure and the span of control "will take a longer time than perhaps making some personnel changes."

I asked the nominee what management problems caused the FBI's failure to produce documents in the McVeigh case. Mr. Mueller cited two contributing factors. One was "the lack of an infrastructure to have all documents coded and readily available" in a case with "a huge volume of documents spread across any number of offices in this country and internationally." Second was "accountability" and "overlapping areas of responsibility in various areas of the FBI" which make it "very difficult to have accountability." There was "perhaps a failure of accountability down to the lowest levels." Mr. Mueller said he would address this issue: "It has been my practice in the past to identify areas of responsibility, put somebody in charge of that area of responsibility and hold that individual accountable for discharging that responsibility. And I want to make certain that where that is done within the Bureau, there is clear accountability."

I also asked Mr. Mueller to discuss the timing of his own reporting to the Attorney General on the document production problem in the McVeigh case. He testified: "Turning to the issue of the time line, upon hearing about the issue, I heard about it I believe on a Wednesday afternoon. On that Friday, the decision was made to put over the execution of Mr. McVeigh. When I heard about it on a Wednesday afternoon, the initial response, and I believe I talked to the prosecutor that night or the following morning, the initial thrust of what I was concerned about is to make certain that defense counsel were aware of this immediately so that defense counsel could make its or their own interpretation of whether these documents contained any Brady or exculpatory information."

Mr. Mueller also testified: "I was not aware, I don't believe, at the outset the extent of the commitment to turn over documents until the following morning. And I actually had brief discussions with Mr. Ashcroft's staff on Wednesday afternoon, I think it was, about it, but I did not have an opportunity to fully brief the Attorney General until the following day, at which point I did have an opportunity to brief him more expansively that the fact that I had mentioned previously to his staff, that there was an issue. And, thereafter, the discussions ensued as to what was the appropriate response we would take to the fact that these documents had come to our attention."

Both Senator Feingold and Senator Sessions raised concerns about the FBI's failure to provide information to prosecutors in the 1963 Birmingham bombing case. Mr. Mueller testified that he shared this concern. In cases "involving national security information that may bear on a particular prosecution," there may be "valid reasons for keeping certain of the information from the prosecutors that go into court," but mechanisms exist "to assure that there is no Brady information, exculpatory information that should be given to the defense." He added that the day-to-day problem of FBI inability to produce documents quickly "is attributable in part to its antiquated filing system." He said his objective is to have an FBI system to image documents into a database to make them "immediately accessible so that you do not have the problem such as you saw with the prosecution of the McVeigh documents."

Mr. Mueller expressed his willingness to reach out to experts wherever they may be found, including in and outside the FBI to address management and infrastructure problems. He stated that he has "reached out, and will continue to reach out" to "persons who have been in the Bureau previously" and "persons in large corporations, CEOs, who have run successful corporations to try to identify those management structures that worked well and would work best at the FBI." He also is "looking forward to receiving the report of the consulting firm that is charged with looking at the FBI from top to bottom." Mr. Mueller added that he "would welcome the insight from any other individuals, assuming it is a combination of individuals with experience in management and private industry, law enforcement, and other walks of life."

With regard to FBI personnel management, Mr. Mueller agreed that promotion of diversity within the FBI to ensure that the FBI employment level is reflective of America is a priority. The FBI should be more sensitive to recruiting and training minorities. In addition, Mr. Mueller acknowledged in response to questions from Senator Durbin that "racial profiling is abhorrent to the Constitution, it is abhorrent in any way, shape or form. And I would make certain that from the first day an FBI agent sets foot in the academy in Quantico that that refrain is repeated as part of the training, and as one goes through the ranks, continuous retraining, and focus on the fact that the FBI, in order to be the preeminent law enforcement organization in the country if not in the world, has to have an unblemished record with regard to addressing and strongly attacking any indication of racial profiling."

Relationship with the Attorney General. It is especially important to understand how the nominee views the FBI Director's relationship with the Attorney General in the overall management structure at the Department of Justice. Too often in the past Directors have had the final word on management of the Bureau. Of course, there are legitimate concerns about political interference with investigations, as Watergate demonstrated. The FBI Director is not, however, unique in having to resist such interference. Both the FBI Director and the Attorney General have that duty, and they should work together to ensure the integrity of both investigations and prosecutions. The FBI Director should be part of the Justice Department's leadership team.

I asked Mr. Mueller under oath at his confirmation hearing to give his commitment that if he were ever pressured politically by the Republicans or the Democrats to affect an investigation, that he would resist that pressure with all his might. Mr. Mueller replied, "Absolutely."

I questioned the nominee on how he sees the FBI Director's relationship with the current and subsequent Attorneys General, since he may work with more than one Attorney General over his 10-year term. Mr Mueller testified:

"This is the most difficult issue I think that a director of the FBI has to address, in that the FBI has its ultimate responsibility to the American people to be independent, to pursue its investigations without any favor to one political party or the other or to any particular individual, no matter how powerful that individual should be. And on a day-to-day basis, on the other hand, I do believe that, absent extraordinary circumstances, the Director of the FBI, and the FBI, is a component of...the Department of Justice, reporting to the Attorney General. And there should be a close relationship on, for instance, policy matters, and there is a requirement in almost every matter that the Attorney General be apprised of that. And, again, I report, in essence, to the Attorney General and then to the President.

"There may be circumstances–there have been in history–where it is important for the FBI and the Director of the FBI to put... the interests of the people above that reporting structure. And I hope that I do not have occasion to meet such a situation, but there is the possibility, perhaps even the probability, that I will. If there is an occasion where I believe that for reasons of political influence or the influence of the powerful that the Bureau is asked to do something that is inappropriate, wrong under the Constitution, that under those circumstances I have an obligation to find a way to address that. It may be going elsewhere in the administration. It may be going to Congress. It may be going to the American people. I don't know what the exact answer is. But I hope I do not have to face that situation because it will be the hardest decision that I, should I be confirmed as Director, would have to make."

I consider this answer to be a model for all Mr. Mueller's successors as FBI Director.

Senator Specter and Senator Sessions asked the nominee what he would do if he had information that the Attorney General was taking an improper law enforcement action for political reasons.
Mr. Mueller replied that he would "go to the Attorney General first before I made perhaps a disclosure to Congress." He would also "explore other alternatives or a variety of alternatives in order to make certain that justice was done." Questioned further on the second day of the hearings, Mr. Mueller said that "if it was a matter of substantial consequence" and he "was turned down by the Attorney General, I would think I'd have an obligation to inform the Senate of that, and produce those documents."

In the discussion of this issue, reference was made to a memorandum from FBI Deputy Director Esposito to FBI Director Freeh, dated December 9, 1996. In that memorandum Mr. Esposito said Lee Radek, chief of the Justice Department's Public Integrity Section, had made a comment to Director Freeh. According to the Esposito memorandum, Mr. Radek had commented that there was a lot of "pressure" on him regarding a case because the "Attorney General's job might hang in the balance." The accuracy of this memorandum has been seriously questioned. At a Subcommittee hearing on May 24, 2000, Mr. Radek testified that he felt pressure from the Attorney General to do a good job, but that there was no connection in his mind between any such pressure and whether or not the Attorney General would continue in her job as Attorney General during the second Clinton Administration. Mr. Esposito's second-hand account has not been corroborated. This episode should be a warning of the risk that lower level officials may seek to sabotage political appointees. The use of this memorandum as a straw man for questioning the nominee should not imply agreement by other Members to its credibility.

The nominee was also asked to consider the possibility that he and the Attorney General might decide to withhold information on national security matters from a President if the President were the target of a criminal investigation. In response to a question from Senator Specter, Mr. Mueller stated, "There may be an occasion where it's possible, yes." Mr. Mueller also explained that, if disclosing "information to a target would hamper or undercut the investigation," he would expect "that any decision as to whether or not that information should be disclosed to the target would be made in conjunction with the Attorney General. But the decision may well be that that information should not be disclosed." Mr Mueller went on to state, "If it is national security information, on the other hand, that bears upon the security of the United States, I think we have an obligation to assure that anything within those materials that bears on the national security finds its place in the national security structure."

I am troubled by an apparent inconsistency in this response, because the President bears full and ultimate responsibility for the national security structure and all the diplomatic, military, intelligence, and other actions necessary to protect the nation's security. An FBI Director must find a way to accommodate the legitimate needs of the President to exercise his constitutional responsibilities for national security, just as it accommodates the needs of the Congress to exercise its oversight responsibilities.

The FBI "Culture" Needs An Overhaul. The Committee is receiving testimony in our oversight hearings showing that, too often, the independence that is part of the FBI's culture has crossed the line into arrogance. Senator Danforth expressed concern to this Committee about entrenched executives at the FBI who have created a closed and insular culture resistant to disclosure of mistakes and to reforms. His concern was echoed in testimony the Committee heard from experienced FBI Special Agents, who told us of a "club" mentality among some Bureau executives who resist criticism or change that threatens their careers. Senator Danforth recommended that the new director should be prepared to clean house to the extent necessary to implement needed changes.

If there is one message that a new Director should get from recent problems, it is that FBI executives need to be more willing to admit their mistakes. Too often their response is to protect the Bureau from embarrassment or shield self-serving executives from criticism and needed change. As Senator Danforth testified, the FBI helped fan the flames of conspiracy theories at Waco by covering up evidence that it used pyrotechnic rounds, even though they had nothing to do with starting the fire. The present FBI culture makes it easier to cover up rather than admit a mistake. A new Director must understand that this type of conduct risks a far greater cost in the lost of public confidence, as compared with admitting mistakes when they occur.

Let me cite one example that occurred just a week ago. In its recent weekly newsletter for FBI employees, the FBI reported on the Judiciary Committee's July 18 hearing. But the newsletter reported only the testimony of the two senior FBI agents, who told us about what they were doing to fix the security and information technology problems at the FBI. Their testimony was also the only testimony posted on the FBI website. Yet, the testimony of the four other FBI agents who testified about problems of a double standard in adjudicating discipline and about retaliation within the FBI was ignored – not mentioned in the newsletter nor posted on the website. Ignoring the testimony will not make it disappear. This kind of attitude makes it much harder to make the changes that need to be made. If the FBI tries to suppress information that things have gone wrong, it will never get them fixed.

When I asked Mr. Mueller at his confirmation hearings about this newsletter, he stated "that it is important that everybody in the Bureau look at both the good and the bad in order to address it." After my remarks at the nomination hearings, FBI Headquarters decided to send the testimony of the four other FBI agents to the field offices. That was the right decision.

In his opening statement, Mr. Mueller discussed the broader concerns about the FBI's culture: "[A]s we examine the mistakes of the past, we must be resolved to respond quickly and forthrightly to the mistakes of the future. Three elements are critical to a proper response: First, we must be willing to admit immediately that a mistake has occurred. This includes providing timely information to the appropriate committees of Congress. And for matters involving cases and courts, immediately informing the court and defense counsel as appropriate. Failure to admit one's mistakes contributes to the perception of institutional arrogance.

"Second, those responsible for the mistake must be held accountable. This does not mean punishing employees for simple errors in doing their jobs. Nobody is perfect, and we want to encourage people to come forward immediately when mistakes are made, but we must hold people accountable, and we cannot tolerate efforts to cover up problems or to blame others for them. If confirmed, I will be committed to inculcating a culture which understands that we all make mistakes and that we must be forthright and honest in admitting them and correcting them as quickly as possible. We must tell the truth and let the facts speak for themselves. The truth is what we expect in our investigations of others, and the truth is what we must demand of ourselves when we come under scrutiny....

"And, third, every significant mistake must be examined to determine whether broader reform is necessary. We must learn from our mistakes or we will be bound to repeat them."

I questioned Mr. Mueller about two recent cases where mistakes have not been rectified. Documents provided to the Committee on the Justice Department's January 2001 decision on Ruby Ridge discipline revealed that discipline given to some FBI agents in January 1995 was incorrect. Another example was a CIA officer who was initially suspected of espionage before the FBI discovered that Hanssen was the real culprit. The CIA officer was cleared and allowed to return to his work, but the FBI did not formally notify him or his family that he is no longer suspected of any wrongdoing. Mr. Mueller agreed to look into these matters.

In other questioning of the nominee, Senator Sessions' observed that there has been a concern in the FBI that if somebody made an honest error, the hierarchy would be too hard on them. He saw this as a factor in the lack of willingness to come forward with and admit an error. Mr. Mueller agreed and said "the bedrock principle ought to be to tell the truth...the sooner the better." Senator Specter asked Mr. Mueller what his response would be when an FBI official deliberately does not correct a mistake in testimony to Congress or deliberately does not disclose important information. He replied that "absolutely anybody who lies deserves the strongest sanction, up to and including dismissal from the FBI."

Another concern about the FBI culture is the Bureau's treatment of local law enforcement agencies. Senator DeWine asked how the nominee intended to sent the right tone for the FBI in this area. Mr. Mueller replied that one way would be "outreach" to address any complaints such as stealing an investigation. He also stressed that "the FBI can and should allow others to trumpet its successes." He stated, "In my own mind, the praise that makes the biggest difference is that that comes from others with whom you've worked. And my hope would be that we could operate on that principle."

Senator Grassley expressed concern about a culture of arrogance at the FBI, exemplified by the practice of holding press conferences in very high-profile cases before the investigation is complete. Mr. Mueller responded that he is "not a great one for press conferences" and that in cases where the FBI assists local law enforcement "I would much rather have, at the conclusion of an investigation, that the state and locals stand at the podium, do the press conference, and thank the FBI."

Senator Specter, citing an unanswered letter he sent to Director Freeh about leaks in the press regarding an alleged investigation of Senator Toricelli, asked what action the FBI Director could take to preclude these types of leaks. Mr. Mueller replied, "Generally speaking...I abhor leaks. They are detrimental to the mission of the FBI. They are detrimental to most particularly the individual who is the subject of them. I think you set a standard of very harsh treatment when an investigation is conducted and somebody is determined to have leaked." He pledged to "do everything in my power to assure" that Justice Department regulations on public statements "are abided by and that any breach of those regulations is treated firmly." He also agreed "to determine whether there is predication" for an inquiry on the leaks regarding Senator Toricelli and, if there is predication, to "conduct an inquiry."

Inspector General. To ensure full investigation of mistakes, I support the change made by the Attorney General to give the Justice Department's Inspector General full authority over the FBI. The Inspector General statute should be amended to make this regulatory change permanent. Witnesses at the oversight hearings expressed concern that the Inspector General will not get the same cooperation from FBI personnel as a separate Inspector General for the Bureau. The Director's responsibility includes ensuring that FBI personnel cooperate fully with the Inspector General. One former Justice Department Inspector General testified that, when his office sought FBI personnel to work on a review of FBI performance, experienced Agents were reluctant to participate and declined to have their names listed in the report. Agents did not view this work as "career-enhancing." A Director must make clear that FBI executives should reward – not discourage – participation in Inspector General, and other oversight, investigations of Bureau performance.

The Committee has heard disturbing testimony about retaliation against FBI Agents who are tasked to investigate their colleagues or who discuss issues with the Congress, either directly or through cooperation with the General Accounting Office, which assists in congressional oversight. It is important that a new Director send a clear message to FBI employees that he will not tolerate retaliation against agents who conduct internal investigations or who bring information about wrongdoing to the Congress directly.

In response to a question from Senator Durbin about his proposal for a separate FBI Inspector General, Mr. Mueller noted the Attorney General's recent action and said he sees the Inspector General from the Department of Justice "working very closely with the FBI Office of Professional Responsibility to allocate responsibilities." He added, "If I were the Attorney General I might have some concern about a separate Inspector General feeding the perception that the FBI was a separate institution accountable only to itself. And I'm not certain in my own mind whether or not what the accountability you seek cannot be discharged by an Inspector General with appropriate personnel in the Department of Justice, as opposed to establishing another Inspector General in the FBI."

Senator Durbin asked what steps the nominee would take to ensure that there will be a healthy relationship with an Inspector General in the management of the FBI. Mr. Mueller replied that the FBI Director should meet weekly or every other week "with the Inspector General to review the cases, in the same way that the Attorney General meets with the Inspector General." Mr. Mueller also stated, "To the extent that the Inspector General in the past was hampered by having to go to the Attorney General and specifically requesting authority, that has been removed."

Double-Standard for Discipline. Internal investigations must also lead to fair and just discipline. Here the recent record is troubling. A internal FBI study that was released at the Committee's July hearing found a double standard at work, with senior FBI executives receiving a slap on the wrist for the same kind of conduct that would result in serious discipline for lower level employees. The most vivid example occurred when seven Senior Executives submitted false travel vouchers so they could fly to Washington for the retirement dinner of a Deputy Director. They received only letters of censure for a voucher fraud offense that could cost an average Agent his or her career. Two of them actually received promotions and cash awards. In another case, the argument was asserted within the Justice Department that the FBI Director may not be disciplined because he is a Presidential appointee and that, in any event, the FBI Director should not be disciplined for exercising poor judgment. Thus argument conflicts with the basic principle that all public officials should be held equally accountable.

In his opening statement, Mr. Mueller said it is "very important that there be no double standards in accountability. I know there have been allegations that senior FBI officials are sometimes treated more leniently than more junior employees. Any such double standard would be fundamentally unfair and enormously destructive to employee morale. If anything, senior FBI officials should be held to a higher standard than other employees, for, after all, they should serve as an example. I commit to this committee, to the employees of the FBI, and to the American people that there will be no such double standard should I become director of the FBI."

In response to my questions, Mr. Mueller put even greater emphasis on appointing "leaders in the FBI who are held to a higher standard" because they "serve as example for others in the FBI."

FBI Investigative Scope and Methods. During the confirmation hearings, Committee members raised issues regarding the scope and methods of FBI investigations.

Senator Feingold asked if the nominee was willing to consider requiring FBI agents to record interviews electronically, a practice consistent with the practice of many law enforcement agencies around the country. Mr. Mueller said that he would and that the FBI no longer has a "hard and fast rule" against it. Interviews may be recorded with the approval of the Special Agent in Charge. While working homicides in the District of Columbia, Mr. Mueller saw "the advantage of the use of recording interviews." However, given the thousands of FBI interviews conducted daily including background investigations, he thought it would be "counterproductive to require recording and transcribing all such interviews." The FBI "will continue to look at it, particularly in an instance where it is important that a confession or critical evidence relating to a terrorist attack needs to be deciphered accurately with no room for error."

Senator Feingold also expressed concern about the FBI's difficulty distinguishing between peaceful political dissent and criminal activity in the past and possibly in the targeting of Arab Americans today. He asked what steps Mr. Mueller would take to ensure that the Bureau does not infringe on fundamental First Amendment rights and restricts itself to investigating only criminal activity. Mr. Mueller replied that he does "share the concern." Citing his experience in criminal investigations, he said he "would insist that whenever we are undertaking an investigative enterprise, that there be adequate predication for the steps we take to pursue that investigation." He also said he would address the problems of "span of control" and the FBI's computer infrastructure in order to "have transparency of information all the way to the top." This would "provide the oversight necessary" to assure that "predication is being looked at, demonstrated, before a particular important investigation is going forward or a class of investigation is going forward."

Senator Specter raised the issue of FBI agents asking someone who has been arrested if they have information about some other person who is a public figure, with the suggestion that the case against the individual under arrest will go easier if that individual is able to identify somebody who is well known. Mr. Mueller responded that "a general targeting, without predication, is anathema to the Bureau, and to the extent that any incident such as that comes to the attention of the Director, it should be dealt with firmly."

Senator Cantwell raised a privacy concerns, which I share, about the FBI's Carnivore system, or DCS-1000, and new technologies such as a key logger system. Mr. Mueller said he was sensitive to those concerns and had talked with a number of privacy groups when he was Acting Deputy Attorney General. Asked by Senator Cantwell to review Carnivore, Mr. Mueller said the Justice Department is conducting such a review and he would look at it when it is completed.

The Fourth Amendment must be kept up to date in response to new and emerging surveillance technologies. This is an issue about which I alerted Mr. Mueller that the FBI should anticipate increased oversight from the Judiciary Committee and increased concern on both sides of the aisle. I asked the nominee to look at the procedures in place for law enforcement access to electronic information because so much of it is stored in the hands of third parties. Our aim should be to make sure that privacy is properly protected in the electronic age, whether it is a keystroke, thermal imaging, or dealing with the proliferation of small companies that hold our data. Mr. Mueller agreed to do so, observing that "there are issues where there is a law enforcement tool, there are privacy interests implicated, and yet one doesn't know where the line is."

Privacy interests are also implicated by the Attorney General's decision to cut-back on the retention of records of gun sales to legitimate gun owners. Mr. Mueller initially acknowledged that this decision "could" subvert the FBI's effort to keep guns out of the hands of criminals and go after the bad dealers, but noted that he was "not familiar with the debate or what evidence there is, what study there has been of the impact of the change, but, yes, it could." Mr. Mueller accepted my invitation to work with members of the Committee and the Attorney General to ensure that the National Incident Criminal Background Check System maintains an accurate auditing system, but also protects the legitimate rights of gun owners.

Meeting the Challenge. The FBI has long been considered the crown jewel of law enforcement agencies. Today, it has lost some of its earlier luster. The next FBI Director has both a great challenge and a great opportunity to restore public confidence in the Bureau, and the Judiciary Committee stands ready to help. The Committee needs to forge a strong and constructive oversight partnership with the leadership at the Department of Justice and the FBI to shape the reforms and find the solutions to make the FBI the premier law enforcement agency that the American people want and expect it to be.

Robert Mueller seems well prepared to meet this challenge and take advantage of this opportunity as the next Director of the FBI. With a statutory ten-year term, the position of FBI Director is unique in our government, and confirmation of a nominee to that position is an exceptionally serious responsibility for the Senate.

With full consciousness of that responsibility, I urge my colleagues on this Committee to report favorably to the Senate the nomination of Robert S. Mueller, III, to be Director of the Federal Bureau of Investigation.

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