Congressional Record: May 21, 2002 (Senate)
Page S4579-S4580
FBI FAILURE
Mr. SPECTER. Mr. President, I have sought recognition to comment
about the failure of the FBI to act on the Phoenix memorandum in a
timely way--that memorandum had reasonably explicit warnings about a
terrorist attack, al-Qaida, and a sneak attack--and especially about
the failure of the Federal Bureau of Investigation to call that matter
to the attention of the Judiciary Committee as a matter of oversight.
We have since learned that the FBI had information, in 1995 and 1996,
which referenced the possibility of a hijacking and hitting the CIA
headquarters or some other building in Washington, DC, and apparently
that information was not transmitted to the White House. It was not
transmitted to the Senate Intelligence Committee either at that time
because I chaired the Intelligence Committee in 1995 and 1996.
According to reports, when the President was briefed on August 6 of
last year, there were only generalized warnings given, and the CIA,
which reportedly gave the briefing, did not have the information about
the matters known to the FBI back in 1995 and 1996.
It is my view that the Director of the FBI ought to be called upon by
the Senate Judiciary Committee to answer some very fundamental
questions. I say the Judiciary Committee because the Judiciary
Committee has the primary responsibility for oversight on the FBI.
It was the Judiciary Committee which confirmed Director Mueller, and
I spent considerable time with Director-designate Mueller before he was
confirmed, meeting with him in a so-called courtesy call, and then
questioned him at some length before the Judiciary Committee. At that
time we received commitments that the new Director would not make the
same mistakes which had been made in the past by the FBI and would, in
fact, turn over his own information which was proper for Judiciary
Committee oversight.
One of the subjects I discussed with Director-designate Mueller at
that time was a key memo in the FBI file going back to December of 1996
when the Department of Justice was pulling its punches because of
concern that Attorney General Reno might not be retained for President
Clinton's second term. It was my view that this memo should have been
turned over on a voluntary basis as a matter of appropriate disclosure.
The Judiciary Committee did not receive that memorandum until a
subpoena was issued by a subcommittee that I chaired, and not until
April of 2000. While the Intelligence Committees do have the primary
responsibility for investigating the intelligence failures of September
11, 2001, the Judiciary Committee has the responsibility on FBI
oversight and on the question of reorganization of the FBI. There are
major issues that have to be answered as to why the FBI did not tell
the CIA about the 1995 and 1996 incidents so that the CIA would have
that material available when they briefed the President.
This is reminiscent of a major intelligence failure that goes back to
September of 1997, when the Senate Governmental Affairs Committee was
investigating campaign finance reform. At a joint hearing with the FBI
and CIA, the CIA disclosed what the FBI had in its files, which the FBI
had not disclosed, saying they had not realized it was in their files.
So there are some very fundamental questions to be answered, which do
not get into any of the confidential memos and any sources and methods;
and that is why Director Mueller of the FBI did not turn over the
Phoenix memo to the Judiciary Committee on their own before it was
sought after, and why the FBI did not tell the CIA this fundamental
information so that the CIA would have it when they were briefing the
President.
Last Thursday, I wrote to FBI Director Mueller calling on him to
answer these questions, and I sent a copy of the letter to Director
Tenet of the CIA asking him similar questions. When I saw the reports
in the New York Times on Saturday morning about the information from
1995 to 1996 which, I repeat, I had not been told about when I chaired
the Intelligence Committee, I called Senator Leahy and Senator Hatch
and urged that we have hearings very promptly to find out these basic
questions about communications. It is not even necessary to see the
Phoenix memorandum to question why it was not disclosed, to find out
why the FBI does not communicate with the CIA.
I then called Director Mueller to ask if he would be willing to come
in to testify early this week. He said he would have to take the matter
up with someone else and get back to me. In a second telephone
conversation on Saturday, he said he was not prepared to testify until
there had been negotiations completed between the Judiciary Committee
and the Department of Justice about the disclosure or production of
certain documents. I replied that it was not a matter of production of
documents; these fundamental questions ought to be answered and ought
to be answered promptly for the American people, for Congress, and for
the Judiciary Committee in our oversight function.
I then reminded Director Mueller that he had a 10-year term. The
Congress has given the FBI Director a 10-year term so that he does not
have to ask permission from anybody--not the Attorney General, not the
President, not anybody--when it comes to a matter where there may be a
conflict of opinion between congressional oversight and what the
Department of Justice may have in mind. It is up to Director Mueller to
make an independent judgment. That is why he has a 10-year term.
I did not tell Director Mueller he was subject to a subpoena. That is
a matter only for the committee. I did discuss that possibility with
the chairman, Senator Leahy, and with the ranking member, Senator
Hatch. I then called all of my Republican colleagues on the Judiciary
Committee to discuss the situation and discuss the possibilities of a
[[Page S4580]]
subpoena. However, I did not--I repeat, I did not--talk to Director
Mueller about a subpoena. That is a matter for the committee to decide
and on which to take the lead. It is not something that I would do. Nor
did I ask Director Mueller, or anybody else, for a copy of the notes of
the briefing materials that went to President Bush in the purported
briefing back on August 6, 2001. No request was made for that.
My view--and it is a very strong one, as you can tell from my tone--
is that the FBI has questions to answer, and it is a matter for the
Judiciary Committee because we confirmed Robert Mueller. We are the
ones who asked him the questions and laid down certain parameters for
his expected conduct as Director of the FBI, the most important of
which is to tell the Judiciary Committee on his own when there are
matters such as the Phoenix memorandum; just as the FBI should have
told the Judiciary Committee about the Department of Justice memorandum
in December of 1996, which was a smoking gun, with the Department of
Justice pulling its punches on the campaign finance investigation
because of the concern of Attorney General Reno's retention in the
second term.
I make these comments very briefly this morning, and I know the
assistant majority leader is waiting to proceed to the business at
hand. I think these matters are of the utmost importance; the American
people need to know about them. I hope Director Mueller will appear
promptly before the Judiciary Committee and not wait until after our
lengthy recess to take up the issues that require answers now.
I thank the Chair and yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Nevada.
Mr. REID. Mr. President, what is the business before the Senate?
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