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 
  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?