The Honorable Robert S. Mueller
Director, Federal Bureau of Investigation
J. Edgar Hoover Bldg.
Room 7176
9^th and Pennsylvania, N.W.
Washington, D.C. 20535

Dear Director Mueller:

Thank you for meeting with the Committee in classified session on May 21, 2002, and making available FBI Agents from the Phoenix field office to discuss the Phoenix memorandum regarding suspicious activity at civil aviation schools. We want to follow up on a number of matters from this meeting.

First, we want to make sure that you are now aware of the Committee’s practice of holding all classified sessions on the record with a transcript. The Committee planned to hold the May 21 meeting on the record, as is regularly done by this Committee and the Select Committee on Intelligence for classified sessions. As you can appreciate, these are important matters for all Members of the Committee but all Members are not always able to attend the full sessions. Transcripts are the only mechanism to keep all members entitled to review this important information fully informed. For this reason the Select Committee on Intelligence always puts classified hearings and meetings with Members present on the record. The Judiciary Committee does the same.

At the outset of the meeting, you requested that a formal record transcript not be made of the statements of Agent Kenneth Williams and Supervisory Special Agent Billy Kurtz. Your request was granted so that we could proceed without disrupting or delaying the meeting and over the objection of one of us – Senator Specter – who appropriately and correctly requested that regular order be followed and a record be made.

Subsequently, the Committee has learned that you and the same two Phoenix Agents met with the Select Committee on Intelligence, including both Members and staff, on May 22, 2002, and that this meeting was on the record with a formal transcript made of the statements of the Agents. Please explain the disparity in the FBI’s position regarding making a formal transcript of the proceedings before the Judiciary Committee and the Select Committee on Intelligence.

Second, a Justice Department representative advised the Chairman’s staff that a record of the meeting would have "profound implications for the trial." Please explain what trial he was talking about and whether a record made in the Intelligence Committee will have fewer "implications for the trial" than a record made in a classified session before the Judiciary Committee.

Third, press accounts have appeared after the May 21 meeting with the Judiciary Committee containing information provided by "a senior FBI official" that differs from information provided in that meeting. A press account on May 22 states that the Radical Fundamentalist Unit at FBI Headquarters had decided not to pursue the recommendations in the Phoenix memorandum before September 11, 2001, since according to "[o]fficials . . . the FBI counterterrorism division was swamped with urgent matters." Another press account on May 23 contains a correction by "a senior FBI official" and that "the FBI’s Osama bin Laden Unit was responsible" for the decision rejecting the recommendations. Statements at the May 21 meeting with the Committee indicated that the "routine" recommendation from the Phoenix office had not been dealt with by FBI Headquarters before September 11 because action on matters marked "routine" usually took 60 days. Please explain this discrepancy.

Fourth, please provide a copy of the letter regarding the Moussaoui case that was sent to you by Agent Coleen Rowley, Legal Adviser in the Minneapolis field office. You are quoted in the press as stating that you "immediately referred this matter out of the FBI to the inspector general for investigation" and that you "respect that process and all the independence and protection it affords." Will the matter of the Rowley letter be considered in conjunction with Senator Grassley’s prior request on May 15, 2002, that the Justice Department Inspector General investigate the FBI’s handling of the Phoenix memorandum in order to assist the Judiciary Committee in carrying out its oversight responsibilities? As Senator Grassley stated in that request letter, "it is essential that there be an outside review of this matter by [the Inspector General’s] office to answer all outstanding questions, ensure accountability at the FBI, and reaffirm the trust of the American people."

Fifth, press reports of Agent Rowley’s letter state that you wrote a memorandum to all FBI employees in November 2001 stating, "I will not tolerate reprisals or intimidation by any bureau employee against those who make protected disclosures, nor will I tolerate attempts to prevent employees from making such disclosures." Please provide a copy of this memorandum and your assessment of whether or not Agent Rowley’s letters to you and to Members of the Senate were clearly "protected disclosures" under current law. As you are aware, the proposed FBI Reform Act would make clear that disclosures to Members of Congress are "protected disclosures."

Finally, it has been noted that Supervisory Special Agent Dave Frasca in the Radical Fundamentalist Unit (RFU) may have been involved in handling the Phoenix memorandum and the Moussaoui investigation at FBI headquarters. Please explain his role and the role of the RFU in evaluating the requests from the Minneapolis field office in the Moussaoui case; what connection, if any, he or others drew between the two ongoing investigations; and whether he or others brought such a connection to the attention of higher level FBI officials.

If a briefing rather than a written answer would facilitate your response to the questions regarding Agent Frasca, please let us know. We want to cooperate with you to address these important Judiciary Committee oversight concerns in a manner that is least disruptive to the FBI’s operations.

Sincerely,

PATRICK LEAHY                CHARLES E. GRASSLEY         ARLEN SPECTER
Chairman                                 United States Senator                   United States Senator

cc: The Honorable Orrin G. Hatch, United States Senator