Congressional Record: July 11, 2001 (Senate)
Page S7437-S7440



                      NOMINATION OF ROBERT MUELLER

  Mr. SPECTER. Mr. President, I have sought recognition this morning to
comment about the confirmation hearings which are scheduled later this
month for Mr. Robert Mueller to be Director of the Federal Bureau of
Investigation. That position arguably is as important as any position
in the United States of America, perhaps even the most powerful
position.
  The statutory 10-year term is 2 years longer than the maximum a
President may serve under the Constitution. The Director of the FBI has
power over the largest investigative organization in the world, global
in its exposure.
  There are an enormous number of problems which have befallen the
agency in recent years. The confirmation hearing will provide a unique
opportunity for oversight for the U.S. Senate to seek to establish
standards as to what the FBI should be doing in cooperating with
congressional oversight.
  The FBI is a well-respected organization. I have had very extensive
opportunities to work with the FBI. After graduation from college, I
was in the Air Force Office of Special Investigations for 2 years and
had training from the FBI. The commanding officer of the OSI was a
former top aide to Director J. Edgar Hoover. I worked with the

[[Page S7438]]

FBI on the prosecution of the Philadelphia Teamsters, an investigation
which was conducted by the McClellan committee, with then-general
counsel, Robert Kennedy, and saw their very fine work. Then, as
Assistant Counsel to the Warren Commission, I worked with the FBI; then
as district attorney of Philadelphia and for the last 20 years
extensively on the Judiciary Committee.
  I have great respect for the Federal Bureau of Investigation. At the
same time, my experience has shown me that there is an over concern by
the personnel of the FBI with their so-called institutional image and
that there cannot be a concession of any problems, which is really
indispensable if problems are to be corrected.
  (Disturbance in the visitors' galleries.)
  The ACTING PRESIDENT pro tempore. Will the Sergeant at Arms restore
order in the galleries.
  Mr. SPECTER. We have a nominee who has been put forward by the
President who has very impressive credentials: United States Attorney
in Boston, United States Attorney in San Francisco, 3 years as
Assistant Attorney General in the Justice Department, where I had
contacts and saw his impressive work.
  He will be succeeding a man, Director Louis Freeh, who came to the
Bureau with extraordinary credentials and overall did a good job,
although he presided over the Bureau at a time when there were many
institutional failures.
  I analogize Director Freeh to the little boy on the Netherlands dike
running around putting his finger in all the holes to try to stop the
water from coming through. With so many holes and so many problems, it
was not possible.
  I believe similarly that the Congress, including the Senate and the
Senate Judiciary Committee, has not been sufficiently active on
oversight. These hearings will give us an opportunity to set standards
as to what the FBI should be doing in response to oversight activities
by the Senate Judiciary Committee.
  I had an opportunity to talk for the better part of an hour yesterday
to FBI Director-designee Mueller and went over quite a number of issues
that I intend to ask him in the public forum.
  I comment about these today because the Senate ought to be preparing
for this hearing with unique care for this very important position.
  One of the matters I intend to discuss with Mr. Mueller in the
confirmation hearings is the failure of the FBI to turn over for
congressional Senate oversight a memorandum dated December 9, 1996,
which was written at a time when there was a question as to whether
Attorney General Reno was going to be reappointed by President Clinton.
At that time, the campaign finance investigation was just being
started. There was a conversation by a top FBI official Esposito, with
a top Department of Justice official Lee Radek, and FBI Director Freeh
wrote this memorandum to the file to Mr. Esposito actually. Referring
to a meeting that he had with the Attorney General on December 6,
Director Freeh wrote this memo December 9:

       I also advised the Attorney General of Lee Radek's comment
     to you that there was a lot of ``pressure'' on him and the
     Public Integrity Section regarding this case because the
     ``Attorney General's job might hang in the balance'' (or
     words to that effect).

  This memorandum did not come to the attention of the Judiciary
Committee until April of 2000, some 3\1/2\ years later, when, in my
capacity as chairman of the subcommittee on Department of Justice
oversight, a subpoena was issued for all of the FBI records and
writings relating to the campaign finance investigation. When this memo
was discovered, Director Freeh was questioned as to why he hadn't
turned it over for Judiciary Committee oversight, because it was the
view of many that it absolutely should have been done.
  Director Freeh defended his inaction on the ground that it would have
compromised his relationship with Attorney General Reno. But
notwithstanding that fact, it is my view that this is the sort of
oversight the Judiciary Committee must undertake. This will be the
subject of my questioning of Mr. Mueller during the confirmation
hearing.
  Director Freeh declined to appear voluntarily before the Judiciary
Committee or the subcommittee to comment about this memorandum, and the
committee decided not to issue a subpoena, which I thought should have
been done.
  It is my view that when a matter of this importance comes to light
there ought to be a public inquiry as to what happened between the
Attorney General and the Director of the FBI. It takes a congressional
committee to get to the bottom of that. When Attorney General Reno
testified, she said, ``I don't recall that, but if that had come to my
attention, I certainly would have done something about it.'' In my
view, anybody who is going to be confirmed for FBI Director has to have
a commitment to making this sort of information available to Senate
oversight.
  Another matter which I intend to question Mr. Mueller about is the
insistence of the FBI on not cooperating with Senate oversight where
there is a pending criminal investigation. Now, I understand the
sensitivity of a pending criminal investigation, having some experience
as a prosecutor myself, but the case law is plain that congressional
oversight is so fundamental and so important that it may proceed even
as to pending criminal investigations. But that has not been honored by
the Department of Justice or by the FBI. And in the case involving Dr.
Wen Ho Lee, the subcommittee on the Department of Justice oversight was
stymied at every turn by the FBI refusing to make available
information, citing a pending criminal investigation.
  Now, the chairman of the committee and the ranking member, or
chairman and the ranking member of the subcommittee, have standing, it
seems to me, on a discrete inquiry, carefully controlled, where the
prosecution would not be compromised. That is the role of oversight.
But when Wen Ho Lee was indicted on December 11, 1999, immediately, the
FBI used that as a reason to resist any further Senate oversight. And
there was a real question of why the FBI and the Department of Justice
allowed Dr. Lee to remain at large after a search of his premises in
April of 1999 was conducted, and then he was at liberty, at large,
until December when an arrest warrant was issued. Suddenly, he became
more problematic than public enemy No. 1, when he was put in manacles
and solitary confinement, in a situation which had all the earmarks of
an effort at the top of the Justice Department and FBI to coerce a
guilty plea.
  After the guilty plea was entered, Judiciary Committee oversight had
been further stymied by the refusal of the FBI to allow access to what
was going on because Dr. Lee was still being debriefed. Here again, I
believe the Judiciary Committee is entitled to a commitment that
oversight will be respected, and the case law will be respected, and
that there may be oversight even on pending criminal investigations.
  In the case of Hanssen, who has just entered a guilty plea on an
arrangement to be spared the death penalty, raises some very
fundamental questions that need to be answered as to procedures in the
Federal Bureau of Investigation. Although this matter did not come to
light until very recently, in August of 1986, Hanssen's voice was
recorded by an FBI wiretap on his Soviet contact's telephone. In 1992,
Hanssen improperly accessed his supervisor's computer. In 1997, Hanssen
began to search the FBI computerized case database for his name, his
home address, and for terms referring to espionage activities.
  A question arises, what steps have been taken by the FBI to detect a
spy such as Hanssen? There was a very probing report issued by the
inspector general of the CIA after Aldrich Ames was detected as a spy,
and the inspector general of the CIA, Fred Hitz, wrote this in the
report:

       We have no reason to believe that the directors of Central
     Intelligence who served during the relevant period were aware
     of the deficiencies described in this report.

  That relates to Aldrich Ames.

       But directors of Central Intelligence are obligated to
     ensure that they are knowledgeable of significant
     developments relating to crucial agency missions. Sensitive
     human source reporting on the Soviet Union and Russia during
     and after the Cold War clearly was such a mission, and
     certain directors of Central Intelligence must therefore be
     held accountable for serious shortcomings in that reporting.


[[Page S7439]]


  Now, what that does essentially is to say that the Directors are at
fault, even though they didn't know about Aldrich Ames, or have reason
to know about Aldrich Ames, because the presence of spies in the
Central Intelligence Agency so threatens national security that the
Directors have an obligation to find out about it. If you make it an
absolute responsibility, that, according to the CIA inspector general,
would put the pressure on the Directors to find out about it.
  The three Directors of the Central Intelligence Agency who were in
office during the time Aldrich Ames functioned--Judge Webster, Gates,
and Woolsey--responded with a very hot letter denying responsibility
and saying that the standard set by the CIA inspector general was too
high. Well, this is a subject I have discussed preliminarily with Mr.
Mueller and intend to ask him about.
  It is a very tough standard to say that a public official is liable
for matters that he didn't know about or didn't have reason to know
about. But if our Nation's secrets are to be guarded, and if we are to
be secure from spies such as Ames and Hanssen, this is a matter that we
are going to have to determine as to what is the appropriate standard.
  When I talked to Mr. Mueller, I didn't ask him for a response, but
this is another subject that will be probed during the course of the
confirmation hearings. The issues of management in the FBI are just
gigantic; they are enormous. We have seen repeated failures by the
Federal Bureau of Investigation to come forward with documents in a
timely manner. In the McVeigh case, for example, the FBI had reason to
know as early as January of this year that all of the documents
relating to McVeigh had not been turned over to McVeigh's lawyers. Yet
those documents were not made available until May. And then there was
the issue about the fairness to McVeigh. No doubt he was guilty; he had
confessed to the most horrendous crime in American history, where 168
people were killed in a Federal building in Oklahoma City--women,
children, men, going there for official business, blameless, and it was
done in a cold, calculated way.
  There was no doubt as to guilt or as to the justification for the
death sentence which was imposed, but there was an obligation on the
part of the prosecution to turn over all the papers. There may have
been something which bore on sentencing. Here you had a 5-month delay
where the Federal Bureau of Investigation had reason to know that all
those documents were not turned over.
  The question is: What is to be done in the management of the Federal
Bureau of Investigation to avoid this sort of an error? In an age of
computerization and mechanization, we search for an answer and really
must find a way that the FBI will correct these kinds of problems.
  A similar issue was confronted in the Waco matter. It was an incident
which occurred on April 19, 1993, where the compound was attacked and
where so many people lost their lives in one of the most controversial
incidents in American history, but it was not until August of 1999 that
the FBI suddenly found a whole ream of records. Here again, management
responsibilities require something much, much better than that.
  The incident at Waco is really a very sad chapter in American history
for many reasons: The confrontation, the deaths, the failure of
congressional oversight, the failure of candid disclosure by the
officials who were in charge.
  On April 28 of 1993, Attorney General Reno and then FBI Director
William Sessions testified before Congress that no pyrotechnic tear gas
rounds were used at Waco. The hostage rescue team commander, Richard
Rogers, who was present for their testimony but who did not testify,
did not correct them.
  Regrettably, that is an occurrence which has happened too often where
there is a concern about the FBI institutional image which blinds
people who ought to be coming forward and who ought to be making a
disclosure as to what the facts were when there is congressional
oversight and you have critical testimony by the Attorney General of
the United States and by the Director of the FBI.
  When Mr. Mueller and I talked yesterday, we discussed at some length
the culture of the Federal Bureau of Investigation and the difficulties
of even the Director finding out what is going on in the FBI. That is a
challenging task which Robert Mueller is going to have to confront.
  In the context of what has happened with Wen Ho Lee, Waco, McVeigh,
Hanssen, and the campaign finance investigation, these are issues which
need to be very thoroughly explored in the confirmation hearing, and we
ought to come to some common understanding between those of us who have
oversight responsibilities on the Judiciary Committee and the Director
of the FBI as to what his standard will be and what we think the
standard should be so that we can come to a meeting of the minds or so
that we may not confirm a Director who does not measure up to what
Congress thinks is required as a matter of legitimate oversight.
  At the same time, as I suggested before, Congress has not done its
job on oversight. We had the incident at Waco on April 19 of 1993. In
my view, there should have been a prompt, detailed, piercing oversight
investigation of what went on there. It was not until former Senator
Danforth undertook that investigation in 1999 that anything really was
done.
  Who can say as to the bombing of the Oklahoma City Federal building 2
years to the day after the Waco incident, when the Oklahoma City
bombing occurred on April 19, 1995, whether that was related to the
Waco incident or whether it might have been prevented had there been
vigorous congressional oversight?
  In 1995, I served as the chairman of the Subcommittee on Terrorism
and moved to have oversight hearings at that time on both Waco and Ruby
Ridge because I thought a great deal more needed to be done. Finally,
the subcommittee was permitted to have oversight as to Ruby Ridge.
  That was an incident where Randy Weaver was on the mountain and
refused to come down. There was a veritable army which approached him
and had a firefight, and a U.S. marshal was killed in the process.
  The oversight in which the Terrorism Subcommittee got to the bottom
of the matter, and to the credit of FBI Director Louis Freeh, the FBI
changed the rules of engagement related to the use of deadly force in
what was a very important matter.
  When we finished the hearings, Mr. Weaver said in the hearing room,
had he known there was going to be this kind of congressional
oversight, he would have come down from the mountain if he had believed
there would be an inquiry and an appropriate resolution.
  It was at that time that militia were springing up in some 40 States
across the United States. If Congress exercises appropriate oversight,
it is my view that will do a great deal to quell public unrest and
public doubts as to what is happening with Federal action in a place
such as Ruby Ridge and Federal action in a place such as Waco.
  In summary, these are matters which are of the utmost importance when
we will be confirming the next Director of the FBI, an occurrence which
happens only once every 10 years because it is a 10-year turn, although
a Director may leave earlier. Louis Freeh is leaving after 8 years, a
term of office longer than the maximum a President may serve under the
Constitution. The Justices of the Supreme Court have enormous power on
5-4 decisions establishing the law of the land, but there are four
others who go with the one deciding vote.
  The FBI, with all of its power--most of what it does is necessarily
confidential and secret--requires that there be very profound changes
in FBI management on the items which have been mentioned and an
attitude that will not emphasize the institutional image to the
sacrifice of not having appropriate congressional oversight, not having
appropriate congressional disclosure of the memorandum referred to,
having appropriate congressional disclosure when a matter is pending,
even if it is a criminal matter.
  Mr. President, I ask unanimous consent that the full text of the
memorandum from Director Freeh, dated December 9, 1996, be printed in
the Congressional Record.
  There being no objection, the material was ordered to be printed in
the Record, as follows:


[[Page S7440]]


                                                 December 9, 1996.
     To: Mr. Esposito.
     From: Director, FBI.
     Subject: Democratic National Campaign Matter.

                               Memorandum

       As I related to you this morning, I met with the Attorney
     General on Friday, 12/6/96, to discuss the above-captioned
     matter.
       I stated that DOJ had not yet referred the matter to the
     FBI to conduct a full, criminal investigation. It was my
     recommendation that this referral take place as soon as
     possible.
       I also told the Attorney General that since she had
     declined to refer the matter to an Independent Counsel it was
     my recommendation that she select a first rate DOJ legal team
     from outside Main Justice to conduct the inquiry. In fact, I
     said that these prosecutors should be ``junk-yard dogs'' and
     that in my view, PIS was not capable of conducting the
     thorough, aggressive kind of investigation which was
     required.
       I also advised the Attorney General of Lee Radek's comment
     to you that there was a lot of ``pressure'' on him and PIS
     regarding this case because the ``Attorney General's job
     might hang in the balance'' (or words to that effect). I
     stated that those comments would be enough for me to take him
     and the Criminal Division off the case completely.
       I also stated that it didn't make sense for PIS to call the
     FBI the ``lead agency'' in this matter while operating a
     ``task force'' with DOC IGs who were conducting interviews of
     key witnesses without the knowledge or participation of the
     FBI.
       I strongly recommend that the FBI and hand-picked DOJ
     attorneys from outside Main Justice run this case as we would
     any matter of such importance and complexity.
       We left the conversation on Friday with arrangements to
     discuss the matter again on Monday. The Attorney General and
     I spoke today and she asked for a meeting to discuss the
     ``investigative team'' and hear our recommendations. The
     meeting is now scheduled for Wednesday, 12/11/96, which you
     and Bob Litt will also attend.
       I intend to repeat my recommendations from Friday's
     meeting. We should present all of our recommendations for
     setting up the investigation--both AUSAs and other resources.
     You and I should also discuss and consider whether on the
     basis of all the facts and circumstances--including Huang's
     recently released letters to the President as well as Radek's
     comments--whether I should recommend that the Attorney
     General reconsider referral to an Independent Counsel.
       It was unfortunate that DOJ declined to allow the FBI to
     play any role in the Independent Counsel referral
     deliberations. I agree with you that based on the DOJ's
     experience with the Cisneros matter--which was only referred
     to an Independent Counsel because the FBI and I intervened
     directly with the Attorney General--it was decided to exclude
     us from this decision-making process.
       Nevertheless, based on information recently reviewed from
     PIS/DOC, we should determine whether or not an Independent
     Counsel referral should be made at this time. If so, I will
     make the recommendation to the Attorney General.

  Mr. SPECTER. Mr. President, I ask unanimous consent that an extract
of a report from CIA Inspector General Frederick Hitz be printed in the
Congressional Record.
  There being no objection, the material was ordered to be printed in
the Record, as follows:

       We have no reason to believe that the DCIs who served
     during the relevant period were aware of the deficiencies
     described in this report. But DCIs are obligated to ensure
     that they are knowledgeable of significant developments
     related to crucial Agency missions. Sensitive human source
     reporting on the Soviet Union and Russia during and after the
     Cold War clearly was such a mission, and certain DCIs must
     therefore be held accountable for serious shortcomings in
     that reporting.

  Mr. SPECTER. I thank the Chair and yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Michigan.

                          ____________________