FBI WHISTLEBLOWERS ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS SECOND SESSION __________ MAY 21, 2008 __________ Serial No. 110-154 __________ Printed for the use of the Committee on the Judiciary Available via the World Wide Web: http://judiciary.house.gov ---------- U.S. GOVERNMENT PRINTING OFFICE 42-510 PDF WASHINGTON : 2009 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY JOHN CONYERS, Jr., Michigan, Chairman HOWARD L. BERMAN, California LAMAR SMITH, Texas RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr., JERROLD NADLER, New York Wisconsin ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina ELTON GALLEGLY, California ZOE LOFGREN, California BOB GOODLATTE, Virginia SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio MAXINE WATERS, California DANIEL E. LUNGREN, California WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah ROBERT WEXLER, Florida RIC KELLER, Florida LINDA T. SANCHEZ, California DARRELL ISSA, California STEVE COHEN, Tennessee MIKE PENCE, Indiana HANK JOHNSON, Georgia J. RANDY FORBES, Virginia BETTY SUTTON, Ohio STEVE KING, Iowa LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida BRAD SHERMAN, California TRENT FRANKS, Arizona TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas ANTHONY D. WEINER, New York JIM JORDAN, Ohio ADAM B. SCHIFF, California ARTUR DAVIS, Alabama DEBBIE WASSERMAN SCHULTZ, Florida KEITH ELLISON, Minnesota Perry Apelbaum, Staff Director and Chief Counsel Sean McLaughlin, Minority Chief of Staff and General Counsel ------ Subcommittee on Crime, Terrorism, and Homeland Security ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman MAXINE WATERS, California LOUIE GOHMERT, Texas WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia JERROLD NADLER, New York F. JAMES SENSENBRENNER, Jr., HANK JOHNSON, Georgia Wisconsin ANTHONY D. WEINER, New York HOWARD COBLE, North Carolina SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio ARTUR DAVIS, Alabama DANIEL E. LUNGREN, California TAMMY BALDWIN, Wisconsin BETTY SUTTON, Ohio Bobby Vassar, Chief Counsel Caroline Lynch, Minority Counsel C O N T E N T S ---------- MAY 21, 2008 Page OPENING STATEMENT The Honorable Robert C. ``Bobby'' Scott, a Representative in Congress from the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security..................... 1 The Honorable Louie Gohmert, a Representative in Congress from the State of Texas, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security............................... 9 The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Chairman, Committee on the Judiciary...................................................... 11 WITNESSES The Honorable Chuck Grassley, a United States Senator from the State of Iowa Oral Testimony................................................. 1 Prepared Statement............................................. 5 Mr. Mike German, Policy Counsel, American Civil Liberties Union Oral Testimony................................................. 12 Prepared Statement............................................. 15 Mr. Bassem Youssef, Unit Chief, Communications Analyst Division, Counterterrorism Division, Federal Bureau of Investigation Oral Testimony................................................. 24 Prepared Statement............................................. 27 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Chairman, Committee on the Judiciary........................... 11 APPENDIX Material Submitted for the Hearing Record........................ 75 FBI WHISTLEBLOWERS ---------- WEDNESDAY, MAY 21, 2008 House of Representatives, Subcommittee on Crime, Terrorism, and Homeland Security Committee on the Judiciary, Washington, DC. The Subcommittee met, pursuant to notice, at 2 p.m., in room 2141, Rayburn House Office Building, the Honorable Robert C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding. Present: Representatives Scott, Delahunt, Johnson, and Conyers (ex officio), Gohmert, and Lungren. Staff Present: Ameer Gopalani, Majority Counsel; Caroline Lynch, Minority Counsel; Renata Strause, Majority Staff Assistant; and Lillian German, Majority Deputy Chief Oversight Counsel. Mr. Scott. The Subcommittee will come to order. And I would like to welcome you to the Subcommittee on Crime, Terrorism, and Homeland Security. Today's subject is FBI Whistleblowers, and I will suspend the rest of my opening statement because we understand Senator Grassley's schedule had assumed that we would start on time. Unfortunately, we are a half-hour late. So I will defer the rest of my statement, Senator, so that you can make your opening statement and attend to your other duties. Senator Grassley. TESTIMONY OF THE HONORABLE CHUCK GRASSLEY, A UNITED STATES SENATOR FROM THE STATE OF IOWA Senator Grassley. I have noticed the House has had a lot of toleration toward the Senate moving slowly. So it would be wrong for me to come over here and complain about not starting on time. Mr. Chairman and Members of the Subcommittee and particularly my good friend Mr. Conyers, thank you for holding this important hearing today. Listening carefully to what whistleblowers have to say and looking into their allegations is a key constitutional duty of all of us in Congress. The FBI is one of the most powerful but least transparent organizations in the Federal Government. Underneath of all the good things the FBI does--and I want to emphasize good things that they do--unfortunately there is a history of abuse, mismanagement, retaliation so strong that it has become part of its organizational culture. Unfortunately, it is this culture that causes the FBI to confuse dissent with disloyalty. Only a brave few dare to speak out and break the FBI's code of silence to report problems. When they do speak out, they usually suffer retaliation. Whistleblowers demonstrate tremendous courage in any organization, but speaking out as an FBI agent takes a special level of guts and determination. I have worked with whistleblowers for many years, including Dr. Frederick Whitehurst, who came forward to discuss outrageous problems at the FBI crime lab, and former Special Agent Colleen Rowley, who came forward to discuss the bungled investigation of Zacarias Moussaoui. Today you are going to hear testimony from two other FBI whistleblowers who have worked with my office for several years, former Special Agent Michael German, and supervisory agent, Special Agent Bassem Youssef. I am here today to let you know why I have supported these courageous individuals and can tell you that these two men have taken more than their share of abuse. They stuck their necks out for the good of all of us. They didn't take the easy way out by going along to get along or looking the other way. The whistleblower who I call the grandfather of whistleblowers, Ernie Fitzgerald of Department of Defense fame, says that whistleblowers are only guilty of one crime, committing truth. Well, that is exactly what put a target on the backs of Michael German and Bassem Youssef inside the FBI. They had the courage to tell the unvarnished truth that some people at the FBI didn't want to hear, and they have paid the price for committing truth. Michael German was a 14-year veteran special agent who would risk his life by going undercover and successfully infiltrating neo-Nazi organizations for the FBI. He was asked to help with a Florida case where a neo-Nazi group and a foreign Islamic terrorist group appeared to be talking about forging an alliance based upon their shared anti-Semitic beliefs. He soon discovered that a portion of a meeting between the groups had been illegally recorded by mistake. Rather than simply follow the rules, document the errors and move forward as German suggested, one FBI supervisor told him to, quote, just pretend it didn't happen. An investigation by the Department of Justice Inspector General found that the FBI retaliated against German for refusing to look the other way. The Inspector General even found someone that in the FBI falsified documents in that Florida case, actually using Wite- Out to hide their mistakes. Yet despite these findings, did the FBI take swift and decisive action to hold anyone accountable? Has it done anything whatsoever to correct the problem of the wrongs inflicted on Michael German? The answer to both questions is no. Bassem Youssef is the FBI's highest-ranking Arab American agent. Before 9/11 he successfully worked counterterrorism cases and served as an effective liaison from the FBI to the Saudi Arabian Government. His background as an Egyptian-born Coptic Christian and a native Arabic speaker should have made him one of the FBI's most valued and most appreciated employees, especially after the 9/11 attacks. Yet despite his experience in counterterrorism and his cultural expertise, the FBI failed to assign him to positions where those assets would be best used. When Youssef expressed concern about the FBI's practice of putting other less qualified agents into critical counterterrorism positions, he quickly became like most whistleblowers, about as welcome as a skunk at a Sunday school picnic. How did the FBI let Youssef know that he wasn't welcome? Well, this is simple. Senior officials denied him a transfer to a counterterrorism unit. They placed him in an administrative job managing the FBI's receipt of information from telephone companies. Youssef soon identified major problems with the way his new office had been operating before he got there. The FBI had been sending something called exigent letters to get phone companies to provide phone records to the Bureau. The letters ask phone companies to give the FBI records immediately, claiming that there was an emergency and that the grand jury subpoena was being drafted and would be sent later. However, no grand jury subpoenas were actually drafted, and in many cases, there was no emergency to justify their request. The FBI was misusing the system. Youssef says that he recognized this and tried to work with others at the FBI to correct them but received little or no cooperation. The FBI's General Counsel's Office and his superiors at the FBI were uninterested in the issues that he raised. The FBI finally started trying to deal with the issues Youssef had raised only after Congress asked the Inspector General to investigate. So Mr. Chairman, you know some of the things you are doing today are very important. Yet even after scrutiny from Congress and the Inspector General, FBI officials wasted time and energy on retaliating against Youssef rather than fixing the problems that he brought to their attention. One FBI official said that during his testimony to the Inspector General that he, quote, threw Bassem Youssef under the bus, end quote. Another FBI official asked a colleague who was preparing to testify to the Inspector General if he was, quote, getting ready to throw Bassem Youssef off the roof. These comments confirm that the anti-whistleblower culture at the FBI is as strong as ever. Essentially these FBI personnel stated openly that they intend to use the Inspector General review as a vehicle to retaliate against Youssef. In light of these comments, I am very concerned about the Inspector General's ongoing investigation. I am also concerned because the inquiry is being conducted jointly with the FBI. Conducting an investigation jointly with the organization under review seems to me undermines the very independence that an Inspector General is supposed to provide. When this controversy first began, the Inspector General wanted to let the FBI investigate itself and simply the Inspector General monitor the results. I thought that position was very wrong-headed. Allegations as serious as these warrant an independent review, not an internal FBI probe that might look like a whitewash. So I urged the Inspector General to make an independent determination. Now his office is conducting a review. But instead of doing it independently, it is being done jointly with the FBI, the same organization whose conduct is in question. That bothers me a lot, as I imagine it bothers you. Given all these circumstances, Congress needs to take a careful look at the Inspector General's report on the use of exigent letters when it is finally released. We need to get access to the underlying document and ask the tough questions necessary to ensure the reliability and the integrity of the investigation. My colleagues and I have been seeking e-mails from the FBI on this case for over a year. We are still waiting these e- mails and the FBI doesn't seem too eager to turn them over. We would appreciate working with your competent staff and you, as individual Members of Congress, to obtain these important documents. Congress needs to follow up and find out whether those in the FBI responsible for retaliating against whistleblowers like Michael German and Bassem Youssef are held accountable. Just giving lip service to protecting whistleblowers will not get the job done and bring justice. The FBI's culture of retaliation will never change unless those who endorse or condone it face discipline for their actions. We all ought to be grateful for what Michael German and Bassem Youssef do for our country. They face very difficult circumstances, sacrificing family finances, their employability and the attempts by powerful interests to smear good names and reputations. For over two decades I have learned from and appreciated and tried to honor whistleblowers like these. Congress must have information from whistleblowers to do its constitutional job of oversight. Only whistleblowers can explain why something is wrong and help Congress locate the best evidence to prove it. Moreover, only whistleblowers can help us truly understand problems with the culture at Government agencies. At the FBI, where I focused much of my oversight efforts over the years, agents who blow the whistle about problems or wrongdoing do not enjoy the same protections as other Federal Government employees. Congress has attempted to fix this problem with various versions of whistleblower reform bills. One bill, S. 274, which I am a cosponsor, unanimously passed the Senate in December and would address a number of issues within what Federal whistleblower laws that remain outstanding. The witnesses you will hear from today, just as other whistleblowers before them, deserve the support of Congress for bringing to light problems with the Bureau. So thank you again for holding this important hearing. I am sorry our meeting didn't start on time. I will go to the Senate now, but I look forward to reviewing the remainder of the proceedings once the transcript is available. So Mr. Chairman, I hope that we and our staffs can work together to follow up with the FBI in more detail on important issues and questions raised today not only by me but by your witnesses and by your staff. Thank you very much. [The prepared statement of Mr. Grassley follows:] Prepared Statement of the Honorable Charles E. Grassley, a U.S. Senator from the State of Iowa [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Scott. Thank you, Senator. The gentleman from Texas. Mr. Gohmert. Thank you, Mr. Chairman. I was just going to thank Senator Grassley for your courage, as you brought up a history of retaliation from the FBI. It sounds like from what you had said today, you may be next on the hit list. So we will look forward to working with you. Senator Grassley. Well, my colleagues have told me that I must be squeaky clean or I would have been out of here a long time ago. Mr. Scott. Well, thank you, Senator. And Senator, you were the original sponsor of the Whistleblower Protection Act of 1989. So you have been working on this issue for a long time. You passed a bill and we passed a bill that is pending in the Senate, so we need to get together to see what we can do, particularly insofar as it would protect the FBI officials. So we will be working together on that. Senator Grassley. Thank you. Mr. Scott. Thank you. We will now resume regular order. And I will complete my opening statement. We depend on whistleblowers to expose illegal behavior, corruption and waste in Government. But without adequate protections, few will take the risk of revealing the truth. This Subcommittee has held hearings on waste and fraud in Government contracting in Iraq, which has led to loss of billions of taxpayer dollars. We have also investigated incidences of rape of Americans serving our country abroad and the killing of innocent civilians in Iraq. All of these investigations could have either been bolstered or prevented with the help of whistleblowers. And so in no other area is the truth more urgent than in national security at wartime, but it is exactly these areas where whistleblowers are being silenced. The hearing before us today will explore the troubling issue of why breaking ranks to speak the truth has led to the shoot-the-messenger mentality at the FBI. Over the years the FBI has gained a reputation for harboring an anti-whistleblower culture where supervisors have repeatedly been found to retaliate against agents who repeat wrongdoing. Sadly these supervisors go unpunished, and no one knows this history better than the Senator who just spoke to us today, the Senator from Iowa, Mr. Grassley. A number of incidents at the FBI stand out, and we have two of these whistleblowers appearing with us today. The first is Special Agent Youssef. According to press reports, an internal investigation conducted by the Department of Justice concluded that as the FBI's highest-ranking Arab- American agent, he was blocked from a counterterrorism assignment in 2002 after voicing concerns about the FBI's counterterrorism operations. He tried to alert his colleagues on the misuse of national security letters, including exigent letters by which requests are submitted to telephone companies in emergency situations. He was ignored by supervisors and, as we now know, the FBI intentionally abused these letters in nonemergency situations, and they legally obtained information pursuant to faulty national security letters. If Mr. Youssef's warnings had been heeded, maybe the Bureau would have stopped violating the law much earlier. Another special agent, Agent German, worked on domestic terrorism cases for 14 years before facing retaliation which led to his departure from the FBI. He had concerns for the Bureau's handling of the counterterrorism cases which he found that agents had illegally recorded conversations in violation of the Federal Wiretap Act. When he brought the matter to the attention of his supervisors, he was told to look the other way. He faced a retaliation and a Department of Justice Inspector General report substantiated many of his claims, including the Bureau's falsification of records to cover up its mistakes. Compounding these specific cases of retaliation at the Bureau is the fact that there is no substantive whistleblower protection for these courageous individuals. Under current law, employees at key Government agencies in charge of protecting the United States, including the FBI and CIA, are excluded from conventional whistleblower protections. These workers deserve to have the same protection as other Federal employees, and they should feel as secure to come forward with information that is essential to national security without fear of retaliation. I hope this hearing will reveal creative ways that we can protect key whistleblowers and still maintain our national security. As the NSL matter demonstrated, Congress cannot fully conduct its oversight mandate if it cannot get reliable information that is both truthful and goes to the heart of the matter. So I look forward to hearing from our witnesses today. And with that, I yield to the Ranking Member of the Subcommittee, the gentleman from Texas, Judge Gohmert. Mr. Gohmert. Thank you, Chairman Scott. I would like to first send a special welcome to our witnesses today as well and join Chairman Scott in doing so. I appreciate your taking time out of your schedule. I know you are not here because of the big money you get paid for being a witness, because obviously that isn't any money. But Congress does have a long history of providing protection to executive branch employees who seek to report administrative issues, waste, fraud and abuse or allegations of corruption within their agency. In 1978, Congress enacted the Civil Service Reform Act to establish procedural protections for executive branch whistleblowers. Congress found that employees should be protected against reprisal for the lawful disclosure of information regarding violation of any rule of law, regulation or any mismanagement or gross waste of funds and abuse of authority or a substantial and specific danger to health, public health and safety. Congress intended to ensure that employees not be prohibited from communicating with Congress or sanctioned for disclosing information to a Member of Congress or staff. At the same time, Congress did not intend the whistleblower laws to protect substandard or corrupt employees from appropriate sanction or even termination. Congress provides these protections in 1989 and again in 1994 with enactment of the Whistleblower Protection Act. Both the Civil Service Reform Act and the Whistleblower Protection Act included national security exceptions for employees who disclosed information which is classified or prohibited by statute. Moreover, current law expressly exempts employees of certain national security agencies, including the FBI, from filing a whistleblower claim under the WPA with the Office of Special Counsel. Employees of the FBI can file a complaint or a prohibited personnel action with the Office of Professional Responsibility or the Office of the Inspector General. However, opponents of this process argue that it is insufficient because it fails to provide a truly independent review of a whistleblower claim. Last year the House passed H.R. 985, which amends the Whistleblower Protection Act to extend whistleblower protections to Federal employees who specialize in national security issues. The bill extends whistleblower protections to employees of the FBI, CIA, Defense Intelligence Agency, National Geospatial Intelligence Agency, National Security Agency, National Reconnaissance Office and, quote, any other executive agency or element or unit thereof determined by the President to have as its principal function to conduct foreign intelligence or counterintelligence activities, unquote. We are joined today by former Special Agent Michael German, FBI supervisory special agent unit Chief Bassem Youssef, who have alleged retaliation against them for disclosing certain details about undercover and counterterrorism operations within the FBI. One of the things that became clear to me as I got to Congress 3\1/2\ years ago was the dispelling of a myth that I had previously believed and that was, as a former judge, I had always felt that the American public was protected from overzealous intelligence activities by the FBI or some other entity by the judiciary. What I came to find out was, if the intelligence gathering by an entity such as the FBI is never intended to be introduced in court, there is no judicial protection. We found out things that had been done by J. Edgar Hoover as FBI Director with no intention ever of introducing those matters into court, just intelligence that could be used as it might be necessary. So once you realize that, you realize, gee, looks like the legislative branch is the balance of power when it comes to intelligence gathering both domestically and abroad. And therefore, the whistleblower protection seems to be even more important at that point. We had people that misunderstood across America after the raid on a Congressman's office a couple of years ago. They misunderstood in that some people here had concerns not that the FBI would do a search of a congressional office because as far as I am concerned, if there is evidence there, a body, drugs, illicit money, anything, DNA, something like that, then I would say it ought to be wide open to being searched and seized. But the concern was, under the Constitution, the Speech and Debate Clause would protect someone who talked to a Member of Congress especially about issues with the FBI or some intelligence activity. And if a Congressional Record in a private congressional office here on the Hill could not be protected from a search by those people about whom complaints were made, then there would be no oversight, there would be no protection at all. And we would all be subject to whatever might be imposed upon us because Congress would not have the wherewithal to do proper oversight. I am glad that we are not at that point and appreciate the efforts on both sides of the aisle to try to make sure we do a proper balance and appreciate your time in being here today. Thank you. Mr. Scott. Thank you. Thank you, Mr. Gohmert. The gentleman from Michigan, the Chairman of the full Committee. Mr. Conyers. Thank you. I ask unanimous consent to have my remarks entered into the record. Mr. Scott. Without objection, so ordered. [The prepared statement of Mr. Conyers follows:] Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Chairman, Committee on the Judiciary We are here today for three reasons. First, we need to explore and consider the very salutary aspect of whistleblowers--at the FBI and otherwise. Whistleblowers are uniquely positioned to expose waste, fraud and corruption in our government. By coming forward to challenge their superiors and the Administration, they risk their careers and livelihoods.
It was Daniel Ellsberg, whose Pentagon Papers exposed corruption in the Pentagon and helped build the case for our withdrawal from Vietnam. It was Peter Buxton, the HHS employee who exposed the shameful Tuskeegee Syphilis Experiment, a government sanctioned project that gave placebos to thousands of African American men who had contracted the disease in order to study the long term effects of syphilis. It was Dr. Fred Whitehurst, the FBI forensic scientist who exposed fraud and corruption in the FBI crime lab, through which we learned that numerous investigations of ``judicial corruption'' had been severely tainted. We owe a debt of gratitude to all of these individuals. Second, we need to consider the record of present and past Administrations with regard to whistleblowers. I would note that today's witnesses Bassem Youssef and Michael German, an FBI agent and a former agent, have made serious and credible charges that they were punished by demotion and termination when they identified misconduct at the Bureau. Similarly, during the Clinton Administration Dr. Fred Whitehurst blew the whistle on misconduct at the FBI crime lab only to face recriminations within the Department. So the concerns we examine today are not partisan, they are institutional. Third, today's hearing will allow us to consider the need for stronger legislation. Last year, Congress passed the Whistleblower Protection Act of 2007, which extended protection to federal workers who specialize in national security issues, but excluded FBI agents altogether due to supposed ``national security,'' concerns. As a result, under present law FBI whistleblowers have no court remedy whatsoever. I am concerned that FBI agents who face greater danger and far less protection than other federal whistleblowers, who face threats of criminal prosecution, and non-disclosure and pre-publication review agreements, are perhaps the most deserving of whistleblower protection. I hope today's hearing will shed light on this important issue. I also want to thank my good friend and colleague Senator Charles Grassley for coming over to the House today. He has been a stalwart support of whistleblower protections over the years, regardless of party or partisanship. Mr. Conyers. And after the powerful testimony of the Senator from Iowa and the courageous testimony of Judge Gohmert, I am really impressed about the decision of the Chairman of the Crime Subcommittee, Bobby Scott, to inquire into this area. The fact of the matter is the FBI is not covered by whistleblower protections at this moment, and we are going to learn from these gentlemen why that is. And we are going to have a little task on our hands, trying to convince not just the rest of the House but the Senate that they are entitled to these safeguards. Every week new revelations fall out of the sky literally on things that have been going on in the executive branch or in the agencies and departments of this Government. And it is just amazing. The Chairwoman of the Subcommittee on Immigration just gave me something out of The Washington Post in which this Committee is going to have brought to its attention. And these are not small issues either. We have got the former Attorney General coming here. We have got the Chief Counsel for the Vice President of the United States coming here. We have the former Secretary of State of Ohio coming here. And I am so proud of this Committee, both of Crime and the full Committee itself, about the questions that we dare to raise, and they are not in a partisan sense. We want a better Government. And we want a Government that doesn't retaliate against those who would dare point out mistakes or wrongdoing and not them become the victims of the way we go about improving our system. And so I thank you very much, Chairman Scott. Mr. Scott. Thank you. And we welcome the gentleman from Georgia, Mr. Johnson, who is with us today. And I would ask other Members to introduce their statements for the record. Without objection, so ordered. We will begin the panel. Our first witness will be Michael German, the Security Policy Counsel for the American Civil Liberties Union. He served as a special agent for the FBI for 16 years with responsibility for domestic terrorism, bank fraud and public corruption investigations. While at the FBI, he also served in undercover operations, successfully helping to prevent several terrorist attacks. He resigned in 2004 to make Congress and the public aware of the continuing deficiency in FBI counterterrorism operations after the implementation of the 9/11 Commission's reforms. He is a graduate of Wake Forest University and earned his JD at Northwestern University Law School. Next we will have Bassem Youssef, who joined the FBI in 1988 and was promptly assigned to the Middle Eastern terrorism cases. As part of his counterterrorism work, he obtained the Intelligence Community's highly coveted Director of Central Intelligence Award in 1995. 1996, former Director Louis Freeh personally selected Mr. Youssef to establish the FBI's Legal Attache Office in Saudi Arabia. Later in his career he was selected as the Chief of the Document Exploitation Unit within the FBI's Counterterrorism Division, and in early 2005 he was assigned to his current position as Chief of the Communications Analysis Unit. He is a graduate of California State University. Each of your written statements will be made part of the record in its entirety. I would ask each of our witnesses to summarize your testimony in 5 minutes or less. And to help you stay within that time, a lighting device is at the table will start green, go to yellow when you have about a minute left, and will switch to red when your 5 minutes are up. We will begin with Mr. German. TESTIMONY OF MIKE GERMAN, POLICY COUNSEL, AMERICAN CIVIL LIBERTIES UNION Mr. German. Thank you. Chairman Scott, Chairman Conyers. Mr. Scott. Is your microphone on? Mr. German. Sorry. Chairman Scott, Chairman Conyers and Ranking Member Gohmert, Members of the Committee, thank you for inviting me to speak with you about the treatment of whistleblowers at the Federal Bureau of Investigation. I represent the American Civil Liberties Union, which vigorously supports meaningful legal protection for all whistleblowers, particularly for those in the law enforcement and intelligence agencies where abuse and misconduct can directly affect our liberty as well as our security. Unfortunately, my experience with the FBI's treatment of whistleblowers is all too personal. I joined the FBI in June 1988. And my journey from the FBI to the ACLU began 14 years later in early 2002. I was asked to assist the Tampa terrorism investigation that began when a supporter of an international terrorist organization met with the leader of a White supremacist group as part of an effort to establish operational ties. This January 2002 meeting was recorded by an FBI cooperating witness. I quickly learned of serious deficiencies in the investigation, but my efforts to get the case on track were met with indifference by FBI supervisors. The case remained stalled through August of 2002, when I learned that part of the January meeting had been recorded illegally. When I brought this to the attention of the supervisor responsible for the investigation, he told me we were just going to pretend it didn't happen. Realizing a failure to correct this problem would imperil a future prosecution, I reported the matter through my chain of command. I didn't know at the time that the FBI was exempt from whistleblower protection laws, but I didn't think I needed to worry about retaliation. I had an unblemished disciplinary record and a history of superior performance praises. Twice during my career I had successfully infiltrated domestic terrorist organizations and prevented acts of terrorism by winning criminal convictions. As the FBI shifted to a terrorism prevention focus, I assumed this experience would be in high demand. Moreover, FBI Director Robert Mueller publicly urged FBI employees to report problems they saw in FBI counterterrorism operations, and he offered his personal assurance that retaliation against whistleblowers would not be tolerated. Unfortunately, Director Muller did not uphold his end of the bargain. Retaliation was tolerated and eventually successful in forcing me to leave the FBI. Over the course of 2 years, I was removed from one terrorism investigation, prevented from working on a second and denied opportunities to train new undercover agents. I reported the misconduct and the retaliation to the FBI Office of Professional Responsibility and the Department of Justice Inspector General in December of 2002 and again in February of 2003. I sent a third written complaint to the IG in October of 2003, yet neither OPR nor the IG opened an investigation or took any steps to protect me. Worse, both the IG and OPR leaked information from my complaints directly to the FBI officials I was complaining against. After I demanded the letter explaining why no investigation was opened, as is required by FBI whistleblower investigations, the IG finally opened a case in January of 2004. But nothing happened until April of 2004, when the IG requested I provide yet another sworn statement. At that point I decided to report the matter to Congress and to resign from the FBI. Fortunately, Senator Charles Grassley championed my cause and his dogged pursuit of the underlying documentation of this investigation provides a glimpse into the dysfunctional management practices that harm our security and allow FBI managers to retaliate against agents who report misconduct. In January of 2006, a full year and a half after I resigned, 3 years after my first formal complaint to the IG and 4 years after these events took place, the IG finally issued a report confirming many of the allegations in my original complaint, including the Tampa Division terrorism case was not properly investigated or documented, that Tampa officials backdated and falsified FBI records, and finally that the FBI retaliated against me for reporting misconduct. Senator Grassley continued his pursuit of the truth and in the summer of 2006 he finally received the January 2002 transcript that the FBI and the IG claimed contains no discussion of terrorists. As Senator Grassley said, it is a lot closer to what Michael German described than what the FBI described. In closing, my odyssey demonstrates the need for greater congressional oversight of the FBI and DOJ. Neither our security nor our liberties are protected when incompetent FBI managers can so easily suppress evidence, falsify FBI records and retaliate against agents who dare report their abuse. Congress cannot perform effective oversight unless informed Federal employees and contractors are willing to tell the truth about what is happening within these agencies. And it is simply unfair to expect them to tell you the truth if they know it will cost them their jobs. Congress should extend meaningful protection to the workforce that is charged with protecting all of us by granting them full due process rights when they blow the whistle. Thank you for the opportunity to present our views, and I request that my written statement to the Committee be entered into the record. Thank you. [The prepared statement of Mr. German follows:] Prepared Statement of Michael German [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Scott. Thank you. Your written statement--both written statements will be made part of the record in its entirety. Mr. Youssef. TESTIMONY OF BASSEM YOUSSEF, UNIT CHIEF, COMMUNICATIONS ANALYST DIVISION, COUNTERTERRORISM DIVISION, FEDERAL BUREAU OF INVESTIGATION Mr. Youssef. It is a great honor and a privilege for me to be here. Mr. Scott. Could you turn on your microphone? Mr. Youssef. Yes. It was turned off. Mr. Scott. Mr. Youssef, could you identify the person sitting to your right? Mr. Youssef. Yes, sir. Chairman, this is Mr. Steve Cohen, my attorney, and he is present here today to answer any technical or legal questions that I may not be at liberty to discuss. Mr. Scott. Thank you. Mr. Youssef. Thank you, sir. As I started to say, it really is a great honor to be here before this distinguished Committee. I think in my 20-year career in the FBI I never dreamt in a million years that I would be sitting here speaking before Congress. And my greatest goal today is to be able to get the message across to Congress, to this distinguished Committee, that the FBI--the FBI's Counterterrorism Division is ill-equipped to handle the terrorist threat that we are facing. Regardless of what happens to me when I walk into the Hoover Building tomorrow, that is what I am hoping that I would be able to convey to you. Let me start by just saying that I have a great love and admiration for the FBI itself, for what it stands for as an organization, and for the men and women that I have worked with and continue to work with within the FBI. But I do have serious concerns about the current state of affairs of the FBI and the FBI's Counterterrorism Division, and specifically the position that we find ourselves in today almost 8 years after the 9/11 attacks. To maybe explain a little better of where we are today inside the FBI, allow me to take you back to 1993 before the 1993 World Trade Center bombing which took place on February 26, 1993. I would say right now that I am one of the very, very few agents who have worked counterterrorism and worked on this particular investigation of the World Trade Center bombing that is still in the FBI today. Most of the agents that have worked on that particular investigation either have left or have gone on to other positions. Let me just give you a little backdrop. Obviously I can't discuss anything classified, so I am going to try to explain this to the best I know how without being totally open on what is in the files. In early 1993 I began to work on a particular group in a particular field office and was working with other field offices that were trying to obtain a FISA on the blind sheikh, on Sheikh Omar Abdel Rahman. I had worked terrorism my entire career up until that time. And the FISA was not obtainable simply because--or this is what I was told by FBI headquarters--is that we can't touch him. He is a religious man. Obviously a lack of understanding of the intelligence of who this man is. And the information that I was able to obtain from my own sources and my operation that I was working at the time was extremely instrumental in actually getting us over the hump and actually getting the FISA approved on the blind sheikh. Unfortunately, that particular FISA was approved 9 days before the actual bombing of February 26, 1993. In 9 days there would be no way for anyone to be able to catch the threat and comprehend the threat and stop it. Even though we didn't understand it fully at the time, there was an understanding within the FBI in those days that we do need the expertise in language, in the Arabic language, understanding just the mindset of the enemy and the cultural innuendos, especially when you deal with sources and with subjects. There was that understanding and the need to beef up that particular cadre of counterterrorism agents. Unfortunately, the Counterterrorism Division today still suffers from lack of expertise in counterterrorism matters, specifically with Middle Eastern counterterrorism matters and lack of understanding or appreciation for the language, having the language and the cultural understanding. I would like to, if I may, just to give you a glimpse of how things are today in the Counterterrorism Division, to read to you a couple of e-mails that have been circulating within the FBI. The first one is dated March 5, 2008. I am sorry. I will start with the one in 2007. April 16, 2007. This is what the e- mail states, and it has been sent to everyone in the Counterterrorism Division. The CTD is hosting a conference next week at LX 1 to train new ITOS supervisors, and in parenthesis, for those of you who don't know, approximately 12 supervisory special agents from Quantico were transferred to work in ITOS 1. And this training is to help to get them to know CT investigations. We plan to show the video and have a short question and answer period following the video. If I may just take 2 seconds to decipher what that means. ITOS 1. Mr. Gohmert. Mr. Chairman, I would ask unanimous consent to allow him whatever time he needs to finish it. Mr. Scott. Without objection. Mr. Youssef. Thank you, sir. If I may just explain the meaning behind each term on this particular e-mail. ITOS 1 is the International Terrorism Operations Section, which is the premier counterterrorism division section that deals with tracking al Qaeda and al Qaeda's activities. These 12 supervisory special agents are obviously in a supervisory position who would be leading and directing operations of the field. They come from the training division. They have absolutely no counterterrorism experience whatsoever. They probably have worked in criminal matters and noncounterterrorism matters. And they were actually drafted into the Counterterrorism Division to work and actually run the operations of the field. They have absolutely no experience whatsoever to the point that the author of this e-mail was saying, we need to show them a video to get them to understand the innuendos of counterterrorism investigations. I will tell you that I know specifically this video would teach them nothing about counterterrorism because it comes from my unit. These supervisors were drafted, and in fact eventually ended up leaving because they couldn't stay where they were in the ITOS section. This was dated April 16, 2007. If I may read another e-mail that was sent out by the Counterterrorism Division on March 5, 2008. And this is what the e-mail states. Executive management is canvassing the division for volunteers GS-14 supervisory special agents to be permanently reassigned to ITOS 1. This is due to the fact that ITOS 1 is currently at 62 percent of its funded staffing level. It is critical that the CT mission fill these positions as soon as possible. Gentlemen, this is March 5, 2008. If the FBI's premier counterterrorism section is operating at 62 percent of its funded staffing level, that means if there are 100 seats in that section, there are only 62 seats being filled. However, if you talk to the counterterrorism executives, they will say that we are doing phenomenal work. If I may equate this to a car with six cylinders operating on three cylinders, it is not doing phenomenal work or is not performing phenomenally. The amazing thing about these two e-mails is that they are only symptomatic of what is really going on in the Counterterrorism Division today. And again, we are talking about almost 8 years after the 9/11 attacks. In the FBI everyone who is interested in moving up the ladder of promotion would want to be jockeying for positions in the number one priority of the investigations being worked by the FBI. The Counterterrorism Division is unable to keep agents, supervisors and analysts within the division. And 62 percent is an alarmingly low figure. While all this was going on, there have been in the last 4 or 5 years several requests by field offices within the FBI and other intelligence agencies who have known of my work prior to 9/11, requesting me to offer assistance in training their agents and their analysts and specifically counterterrorism, Middle Eastern counterterrorism matters as well as help or consult with the ongoing operations that they have in the field. Each time I was requested, my supervisors blocked the request just saying that I was busy. And the field offices would call me back or the other agencies would call me back and say, what is going on? And I had no explanation to give, other than, this is what is coming from the front office. We still have agents who are highly dedicated within the Counterterrorism Division who want to do a very good job, but they are unable to because they are not given the tools or the assets that they need to actually understand the enemy and get into the mind of the enemy that we are facing today. This is the summary of my position and where we are in the FBI. And I very much look forward to answering any questions that you have. [The prepared statement of Mr. Youssef follows:] Prepared Statement of Bassem Youssef [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Scott. Thank you very much. Thank you both for your testimony. We will have questions now from the panel. I recognize myself first for 5 minutes and just ask both of you to briefly comment on, how can we tell the difference between a bona fide whistleblower and someone who is just a disgruntled or incompetent employee or if there is just a good faith disagreement over policy? Mr. German. I think a very quick investigation would reveal that pretty easily. I mean, that was one of the very frustrating things about my complaint is that everything was very well documented when I made the complaint. And you know, in the first 3 or 4 months when things weren't going the way I thought they would, I was really confused until I found out that the managers involved were actually falsifying documents and, you know, saying that this particular meeting had never been recorded. Well, I had a copy of the transcript of that meeting. So I went up to Washington, D.C. to meet with the IG and OPR and show them the transcript of the meeting that these FBI supervisors were saying didn't exist. And yet that still didn't change their opinion on whether to open an investigation. And in fact, in that meeting they told me that they called down to the Tampa field office to tell them that I had a copy of the transcript, which of course made things worse for me, not better. Rather than doing an investigation to find out--you know, now you have two problems, the failure of a terrorism investigation and FBI managers falsifying records. But yet there wasn't an interest in pursuing that investigation. And you know, I just feel like and particularly as a former investigator, it is pretty easy to tell, you know, you follow the evidence. Mr. Youssef. Chairman Scott, I will echo the sentiments in what Mr. German mentioned here. However, one added thing that would be very simple is to look again at the performance appraisals, to look and to see if there is anything in the whistleblower's records that would show maybe there was an issue before and they are trying to maybe deflect it. If there isn't anything like that, especially if you look at a stellar career--I am not talking about either one of us here. I am saying any whistleblower--you would see that it becomes totally unprompted and all of a sudden almost a situation where the agency turns on the individual. Mr. Scott. How can we tell whether there is just a few bad apples, that this is an isolated incident as opposed to a situation where there is an expectation that you would look the other way when you see wrongdoing? Mr. German. I would think the repetition of whistleblowers that come forward and report retaliation would show that this is not simply an isolated incident and in fact is part of a larger culture within the FBI. And you know, I think it is as simple as just going to the Inspector General's Web page and reading the many reports. Pick the topic of your choice, whether it is national security letters or the FBI's involvement in detainee abuse or the FBI's mismanagement of confidential funds, to reveal that there are serious problems within the FBI. And you know, it can't be that there are all these very dedicated employees who simply don't want to tell Congress that these problems exist. Mr. Youssef. In my specific case, former Director Louis Freeh was deposed regarding my situation, and he specifically in his deposition said that I should be utilized in effecting and continuing liaison that I started with the Saudi Arabian Government when I was the first legal attache. Yet what happened from inside the FBI and the current administration of the FBI was that I was blocked from any contact with any Government officials. I believe that is one tell-tale sign. Senator Grassley when he was here, he testified that the fact that he has asked for e-mail traffic a year ago and the FBI still refused to comply with that. Those e-mails would again tell an incredible story. Mr. Scott. Exactly what kind of protections would you need to have effective whistleblowing? Mr. Youssef. I believe that when the bill first came out earlier, I believe it was this year, an e-mail went out from the Office of Legal Counsel in the FBI saying that there will be no retaliation against whistleblowers. Everyone is mandated to actually watch a video to show that you cannot retaliate against whistleblowers. Yet within 2 months after that, comments are being said about me behind my back and even to my face at a unit chiefs' meeting where the issue of whistleblowers comes up. And one individual said, whistleblowers, hang 'em. And I was in the room. And everyone knew where I stand on this issue. I felt compelled to send an e-mail to the Director's Office and to my boss, the Deputy Assistant Director, explaining exactly what happened at this meeting and saying that if we are serious about protecting whistleblowers that something has to be done about comments like that because they are extremely alarming. What ended up happening is 2 weeks later that individual was honored with a birthday party for making these comments. So I probably have not answered your question, Chairman Scott, but it is a pretty serious situation there. Mr. German. And I would suggest that H.R. 985 has some very good protections built into it but--I mean to sort of shorten it down to giving the FBI agent an opportunity to get into court. You know, the problem is this is a very closed system. So there was no sort of reasonable person that didn't have an interest in protecting the Department of Justice involved in looking at my complaint. So once things had gone sour, it was very difficult to have this land on somebody's desk to take a fresh look at and an objective view of what had transpired. Mr. Scott. And should we be concerned about national security if we encourage whistleblowers within national security organizations, FBI and other law enforcement agencies? Mr. Youssef. Absolutely, sir. I believe that there are avenues, maybe in a closed session, in a classified session to bring out the issues that are at hand and there should be no issue in terms of saying, this is classified, we can't discuss it. Mr. German. And I would just second that you know FBI agents are very concerned about national security. That is how they spend their time and what they are interested in. The last thing they want to do, if you talk to an FBI agent, is to be in front of Congress testifying. They want to keep this in-house. And it is the inability to receive any sort of protections that compel agents to try to find somebody either in Congress or in the courts to correct the situation. Mr. Scott. Or in the press? Mr. German. Or the press. And if there were avenues and protections that worked for them to report to responsible officials, I think that would be something that would protect information better than---- Mr. Scott. And is an Inspector General insufficient? Mr. German. I believe if you look at the history of my case, you will see that the Inspector General's Office's performance was insufficient, greatly insufficient. Mr. Scott. Thank you. The gentleman from Texas. Mr. Gohmert. Thank you, Chairman Scott. The testimony has raised a number of questions. First of all, you have mentioned the e-mail, Mr. Youssef, about training for counterterrorism. You said you knew it wouldn't be effective because it was produced by your unit. Don't you make good videos? Mr. Youssef. We make a very good video, sir. Mr. Gohmert. But not adequate to train people in counterterrorism? Mr. Youssef. This specific video was for training on-- exposing the viewer to certain tools within our section. And our section, the section that I work in, is a technical section. It doesn't deal with the actual operations of counterterrorism investigations. Mr. Gohmert. You mentioned that counterterrorism is at 62 percent, unable to keep agents in the unit. When we had Director Mueller in here, one of the things that I have been concerned about for some time is his 5-year up or out policy. Are you familiar with that? Mr. Youssef. Absolutely, sir. Mr. Gohmert. And the concern that I have and have had for some time has been the loss of--when he was here, I said hundreds of years but based on other information I have seen, apparently we have lost thousands of years of FBI experience. And of course that is the policy where if you are in the field as a supervisor, you can only be there 5 years to the day, and then you either come to Washington or you get demoted or you get out. And I appreciated the comment for the FBI spokesman in saying, yeah, they were just drawn out of the FBI because of all the money. And I know that is not right. There are too many people that wanted to stay in the FBI but were not going to come to Washington. And so sure, they could have made better money all along. But they wanted to serve their country and the FBI. And so I just know too many people past, present, who work for the FBI that I would trust with my life. But I am greatly concerned about the lack of experience that we had. And that was an issue that came up with the national security letter abuse when the IG report came back. And I heard Director Mueller in a press conference say he took the full responsibility. It was his job to make sure that there was adequate experience and training in those areas so these kind of abuses didn't happen. And obviously they have. I would just like to ask you directly, you have mentioned someone saying, whistleblowers, hang 'em, and he got a birthday party. Do you mind telling me who that was? Mr. Youssef. Well, Congressman Gohmert, if you don't mind, I would just like to limit it to the fact that it was a unit chief of one of the other units without mentioning the name. Mr. Gohmert. So now we are going to have to go find out who had a birthday party after that one you mentioned to figure that out. Mr. Scott. I think the gentleman might be more likely to give us his name in private rather than in a public hearing. Mr. Youssef. I certainly would be willing to do that. Thank you. Mr. Gohmert. In your testimony, you mentioned FBI agents. In the written testimony you submitted, you simply have adopted electronic surveillance practices from the criminal side of the Bureau into the counterterrorism side, and so I would like you to explain, are you talking about wiretaps, NSLs, warrantless surveillance? Can you specify more particularly? Mr. Youssef. Yes, sir. I would like to just echo the concern of many agents within the Bureau about the comment you made, which is very astute, about the 5 year and out before I get into your question. Mr. Gohmert. In that regard, I can't help but wonder if that may be part of the 62 percent problem in counterterrorism. Some people that would be excellent just say, I am not going there. Do you know of another reason it is at 62 percent, why people are not willing to go into that unit? Mr. Youssef. Yes, sir. What is happening, when you have a team of agents who are very dedicated to do the best job they can to counter the threat, but they just simply don't have the experience, and they are supposed to be running the operations of the field, and there is a feeling of inadequacy that they don't know about the threats--they may come from a criminal background, a white-collar background, and that is where they thrive and know their business--and you throw them and literally draft them into a discipline they have not worked before, there is a sense of feeling this is not where I should be. So you find that, first of all, if the executives themselves who are managing the entire section or the division are not where they should be in terms of the experience level that needs to be there for running these operations, you are going to see agents, analysts and other folks working in that division that are overworked because they are overassigned. When you go after every single threat and look at it like it is the real deal, you will be spending an inordinate amount of time, not just time but personnel, resources, looking at a threat that maybe if you had the experience, you can tell in the first day or two that this is not a viable threat, and we need to move on to the next one. Mr. Gohmert. Good point. Mr. Youssef. This happens just about every weekend where folks are called in, and while they are waiting, they know this threat is not a real threat. There is a sense of discouragement. When these agents go back to the field, they tell others do not put in for this division. So that is another reason for the lack of filling these positions. Mr. German. May I just respond? Mr. Gohmert. Please. Mr. German. The selection and the retention of FBI managers are just symptoms of a larger problem in the FBI's dysfunctional management system. There have been a number of studies over the years of the FBI's management system. I am not sure that they ever saw the light of day, but I would encourage you to request those documents. They would be steps that actually showed what are the significant structural problems that cause not just these problems, but the other problems you see, problems that the IG reports so often bring out. Mr. Gohmert. We had a report discussed in a prior hearing about the software system, not just software, but that had to be scrapped, that cost about $200 million or $199 million, according to what we heard here today, and that was partly to blame on the inadequacy or the inconsistency of those working with the system because of the constant change of supervisors. But you didn't get around to answering the question about what kind of surveillance, if you can answer. Mr. Youssef. Yes, sir. In my testimony I am speaking specifically of the utilization of national security letters and other legal-type instruments, such as subpoenas, excessively where there is no need to use them. But I can also speak of certain examples that I was not directly involved in myself because I don't deal with FISA-type matters that I was aware of that came across my desk. Mr. Gohmert. Okay. Thank you. I realize my time has expired. Mr. Scott. The gentleman from Michigan. Mr. Conyers. Thanks to everybody for what you are doing here today. The Washington Post has a front-page article today that praises the FBI, at least from what I am reading, ``Audit Finds FBI Reports on Detainee Abuse Ignored.'' There is considerable back-and-forth between the Department of Defense and the National Security Adviser about the FBI working scrupulously in this area. I think it reflects the fact that there are a lot of people at a lot of levels that are very concerned about it. But today's hearing is one in which we find out that whistleblowers have literally no protection in the FBI, and that their criticisms are not only not processed, but are not welcomed, and that gets to the culture that you have both talked about and Senator Grassley did as well. And so we find that there are good things happening, and there are things that we have got to do to correct it. We find that the abuses within the FBI's Counterterrorism Division might have more light shed on it if we could get ahold of some e-mails or correspondence that support and document both of your attempts to notify your superiors at the FBI. I don't think it is unreasonable to think that there are a number of other people that might come forward if they realized that whistleblowers are unpopular, they ought to be hung, as someone remarked in your presence. And so I would like you to both tell us a little bit about what we might hope to find through these documents and e-mails that we are going to request very shortly. Mr. Youssef. I would like to start, Chairman Conyers, and thank you for the question. The current IG investigation, which obviously I cannot discuss in this setting, or at least in detail, has just about every e-mail that I submitted and others that they have requested to conduct their investigation. And they have the entire picture. I believe one of the reasons the FBI is reluctant to hand these over to Senator Grassley, who has asked for them in the past, is because they paint a very clear picture of the fact that when I was transferred to that unit, to the Communications Analysis Unit, within a very short period of time I began to realize that there were issues with the use of national security letters, and that I had actually gone to my superiors explaining to them that there is an issue here that we need to deal with. I not just went to my superiors, but I went to the Office of General Counsel and explained to them the issue at hand. In fact, I called a meeting with the Operations Section, Section Chief, as well as Office of General Counsel saying this is going to kill us. We need to actually get the NSLs before we go and conduct a search. Everyone agreed it is important, and they vowed to support our stance; however, nothing was done about the backlog. No offer of any type of solution to fix the backlog. To give you, again, a backdrop of where I was, the section and division I am in, the previous Unit Chief before me who became the Assistant Section Chief, my immediate boss, comes from the criminal side of the house, worked drugs, and he was the one who approved the policy of using the exigent letters, but has never worked in counterterrorism before. My boss's boss, the Section Chief, was the one responsible for the Mayfield investigation. This was a Portland investigation where we arrested an attorney, but he was the wrong individual, on a terrorism matter, and he was retained for several weeks. My boss's boss's boss, the Deputy Assistant Director, admitted in depositions that he had absolutely no terrorism experience whatsoever, and that his counterterrorism experience as the DAD, or Deputy Assistant Director, is on-the-job training. So it was very difficult to get them to maybe understand the magnitude of the problem. But I believe one other factor here is the fact that it is coming from me specifically, an already known whistleblower who has a known issue with the Bureau. So I was set aside basically. Mr. Conyers. How many letters and how many e-mails would we expect to have turned over to the Committee? Mr. Youssef. I believe there are hundreds. Mr. Conyers. It is in the hundreds. Now, the national security letters themselves pose a big problem. When we caught them going out in huge amounts, and they were being sent out illegally, and the Director admitted that they were contrary, they were being used contrary to the law, and we thought and we hoped that they were stopped. I am beginning to wonder about what is going on over there these days. Mr. Youssef. Chairman Conyers, as I began to push for someone to do something about the NSLs around the time of 2005 and 2006, I have had numerous interactions with the Office of General Counsel. In 2006, in mid-2006, there is an e-mail from an individual from general counsel that is actually giving us guidance, giving my unit guidance to continue to use the exigent letters and to start using them pronto. This is from the Office of General Counsel. These are the legal beagles. Anyone in operations would know just the framework of operations; but in terms of a legal instrument, they are the head honchos who would know what is right and what is wrong. Mr. Conyers. But are they being used legally or not? I don't mind the use of NSLs; we weren't trying to stop them from using them, we were trying to stop them from using them improperly. Are you suggesting that that stop order is being ignored, or that they are being sent out willy-nilly? Mr. Youssef. I can't really comment on the frame of mind of the Office of Legal Counsel as to why they would issue such guidance. Mr. Conyers. Mr. Chairman, if I might just be able to indulge Attorney German for any responses that I have raised during my questioning. Thank you. Mr. German. Well, I think, again, these are all symptoms. So much of what comes out, you know, in the few times we are able to peek behind the door is catastrophic, confusion between what the agents are doing on the ground and what management knows and is telling them. And the latest IG report that came out yesterday is an example of that. Where the agents on the ground who are trying to do the best job they can are reporting up the chain of command that we are seeing things that don't seem right to us, that appear to be illegal, what do we do? And as the IG report says, they were getting very little back, and there seemed to be at least some effort not to document what was happening. In other words, one of the things that surprised me when I came over to the ACLU and looked at the documents that the ACLU had received through their Freedom of Information Act on the FBI's involvement on detainee issues were how many were in e- mail. E-mail is obviously not the primary mode of communication, and certainly not the official mode of communication in the FBI, so why are all of these very serious matters being discussed in e-mail? There is one portion of the IG report where they discuss a situation where the Office of General Counsel asked some agents in Guantanamo to document the abuse that they were seeing. It says in the report that 6 months later they were given the authority to write the document. Well, obviously the abuse didn't stop in that 6 months, so why in the world would the FBI not allow that to be documented for that period of time? Mr. Conyers. Well, why are they using e-mail if you think it is probably not the best method to go about communicating? Mr. German. Well, I think it is much easier for e-mail to disappear. In fact, in my investigation, in my complaint, I asked the IG to pull the e-mails because I believed that the agents, the supervisors who were engaged in the retaliation were operating in a concerted fashion, and he refused. Or at least he didn't. Mr. Conyers. But there are some circumstances when the e- mails don't disappear, and that creates yet another problem when they are discovered. Thank you, Mr. Chairman. Mr. Scott. Thank you. The gentleman from Georgia. Mr. Johnson. Mr. Chairman, I want to start by thanking you for holding this important hearing. This hearing is fundamental to the protections of the liberties that we enjoy in this country. I appreciate you and the Ranking Member, Judge Gohmert, for holding this hearing because we have certain rights that you gentlemen were sworn to protect, and you can be prosecuted for not protecting those rights. So when you do the job you have been sworn to do, and you point out illegalities, such as you, Mr. German, when calling attention to illegal wiretapping, and you, Mr. Youssef, in calling illegal attention to national security letters, it is very important to the protection of our liberties in this country that we have individuals who are as courageous as you both have been in being whistleblowers, people with superior knowledge who have the courage to reveal illegalities. It is certainly a shame in terms of the FBI and other intelligence-gathering organizations, such as the CIA and all of the other, I think 19 additional intelligence-gathering organizations that exist, are not subject to the Federal Whistleblower Protection Act. You all are specifically excluded from the act. So that means that the Government can retaliate against you for fulfilling the duties that you have been sworn to uphold, and there appears to be no way of sanctioning the FBI if they don't use the information in court. So this is a very disturbing revelation or series of revelations that you all have testified to. I am disturbed about it very much. I will ask Mr. Youssef, to what extent has the FBI utilized your extensive counterterrorism experience, language capabilities, successful liaison and cultural knowledge of the Middle East throughout your career with the agency? Mr. Youssef. Thank you, Congressman Johnson, for your comments. Throughout my career, which started in March 1988, when the policy in the FBI at the time that a special agent being able to work counterterrorism or counterintelligence would have to have spent 5 years working nonintelligence matters because it was such a high and lofty discipline, I believe at the time I was thrown into that squad, terrorism squad, literally within 4 months because of my background as an individual who was born in Cairo, Egypt, and lived for 13 years there until I immigrated with my family to the United States. And the fact that I was a fluent Arabic speaker at a level 4, the Bureau utilized my background and my experience and talents extensively up until 9/11. I was blessed by God to be able to recruit some highly sensitive sources that were instrumental in getting highly valuable intelligence. Mr. Johnson. Let me stop you right there because there was a visible gasp when you said ``up to 9/11.'' I would be remiss if I were not to follow up on that. What was it about September 11, 2001, that resulted in your declining usage by the FBI? Well, let me ask you, do you feel like it was discrimination based on your national identity? Do you feel like there was some hesitation by those within the FBI because they were suspicious of your heritage? Mr. Youssef. Sir, I will say that during my years of operations, field operations, I was working some highly sensitive investigations and recruited again some highly sensitive sources, to the point that my superiors in the field office suggested I use an undercover name as an FBI agent, not to use my name as Bassem Youssef as an FBI agent to protect my personal life from my meetings with sources and subjects, specifically Middle Eastern subjects. In fact, I was approved by the Attorney General then to have different credentials and a different name, and very few people within the Bureau even knew my true name. The name was a Western name. When I went overseas to take the assignment of legal attache---- Mr. Johnson. This was prior to 9/11? Mr. Youssef. Yes. I began to use my true name in 1996 when I went to work the Khobar Towers investigation in Riyadh, Saudi Arabia, and became the legal attache for 4 years. When I came back, I was assigned to Langley, Virginia, in the National Counterterrorism Center. And somehow after 9/11, there was a confusion on my name with some other agent who had had some issues with the Bureau who also is of Egyptian background and had refused to wear a wire on a particular counterterrorism operation because of his religious beliefs. He was a Muslim and felt he would not want to be targeting another Muslim. Somehow that got stuck to me, and there is a mistaken identity of the name. If I would say it became comical several years later, at the time---- Mr. Johnson. Was it truly a mistake? Mr. Youssef. My name was mentioned in several circles as this is the individual, this is the agent who refused to wear a wire. It was ascribed to me again, the indiscretion of another agent who happened to have been in Riyadh following my tenure there. At the time it was significant and sad, but years later it became comical when I found out that here the FBI is supposed to be following these terrorists with Middle Eastern names, and we can't get the names of two Arabic-speaking agents in the Bureau straight who are right there and not hiding under any bushes. Mr. Johnson. Is it fair to say you would have been willing to wear a wire; you would not have had the same hesitation that the other Youssef had with respect to investigating Muslims? Mr. Youssef. The other gentleman's name was not Youssef. It was just another Middle Eastern name. Mr. Johnson. That is even more egregious. So they hit you with a broad paintbrush, and everybody is the same if you are of Middle Eastern heritage? Mr. Youssef. Assuming, I guess, I am another Arab, that I was a Muslim, which I am not. I am a Christian. So that was also confused. But I would say I have never, ever turned down an undercover assignment, and have worked extensively as an undercover agent because at that time I was the first and only agent of Egyptian background. And obviously if you need to infiltrate a group or assume the identity of an undercover agent, you must look the part and talk the talk and so on. As a matter of fact, even when I left operations, field operations, and became a midlevel manager, there have been times when requests have come from field offices and even from headquarters asking me if I would be involved in undercover operations, and they would present me with the actual proposal on the undercover operations, saying to me--qualifying the fact that we know you are no longer in operations, but would you look at this operation because you are the only one who can do this, and I have accepted on each occasion. They are cases that you would actually know about from the papers, but obviously without mentioning my name. Mr. Johnson. You are a certified Arabic-speaking FBI polygraph examiner; are you not? Mr. Youssef. I am. Mr. Johnson. Have your skills been utilized by the FBI after the events of September 11, 2001? Mr. Youssef. Not once. As a matter of fact, a colleague of mine who went to polygraph school with me in the 1994-1995 time frame, we were sort of podmates, he mentioned to me 2 years after the September 11 attacks, we are looking at close to 500 Arabic-speaking individuals that we need to polygraph, and there is no native-speaking Arabic polygraph examiner to do it. In those cases, they were done through a surrogate translator. If you talk with anyone in the very, very prestigious Department of Defense Polygraph Institute, where you actually go as an FBI agent to be saturated on polygraph matters, one of the best training that I have ever received in the Bureau, they will tell you that you always want to use a polygraph examiner who speaks the native tongue of the individual being polygraphed and not utilize a surrogate. Mr. Johnson. Thank you. Mr. Chairman, I am quite disturbed by this obvious gap in the ability to gather intelligence that would protect Americans from an attack. I am very disturbed. Thank you for allowing me to go over my time, sir. Mr. Scott. Thank you for your questions. The gentleman from Massachusetts. Mr. Delahunt. Thank you, Mr. Chairman. Gentlemen, I want to also acknowledge your courage and thank you for your service. It is a service to this country, and you are to be applauded for that. Mr. German, let me direct one question to you. In the Committee memorandum it indicates that you had found some serious problems with the campus division handling of the counterterrorism investigation, including Title 3 issues? Mr. German. Right. There was an ongoing domestic terrorism investigation. Mr. Delahunt. You reported that to your supervisor, and he asked you to ignore it? Mr. German. Yes. He said, we are going to pretend it didn't happen. Mr. Delahunt. It didn't happen. Whatever happened to that supervisor? Mr. German. He was promoted. Mr. Delahunt. Thank you. In 2006, the inspector general found that the FBI retaliated against you and actually falsified records related to this particular case; is that accurate? Mr. German. That is accurate. Mr. Delahunt. This is a finding of the inspector general that records of the FBI were falsified? Mr. German. Yes. Mr. Delahunt. Does that constitute a violation of the United States Criminal Code? Mr. German. Yes, it does. Mr. Delahunt. Have there been any criminal prosecutions as a result that you are aware of? Mr. German. No. Neither the FBI nor the IG has identified who they said did it. Mr. Delahunt. Is it true that an FBI spokesman went on television and said that you were full of hot air? Mr. German. I don't remember that exact quote, but it is close. And they actually put out a press release saying what I said wasn't true. Mr. Delahunt. Despite the findings of the inspector general? Mr. German. Right. Mr. Delahunt. And there has been no criminal prosecution? Mr. German. Right. Mr. Delahunt. Mr. Chairman, I would suggest by way of a letter from you and the Ranking Member to inquire as to why there has been no subsequent action against those who commit crimes, allegedly or purportedly would commit a crime. Mr. Scott. If the gentleman would yield, I will confer with the Ranking Member about that letter. I think it is appropriate. Mr. Delahunt. Mr. Chairman, I thank you. I think it was you, Mr. German, that indicated that good information was coming from Guantanamo from the agents on the ground, so to speak. Mr. German. What I meant was truthful information. Mr. Delahunt. Yesterday I chaired a hearing. I chair the Oversight Committee on Foreign Affairs, and we had a rather extensive, expansive hearing on the treatment of detainees at Guantanamo, and I commended publicly the FBI for withdrawing and not participating in interrogations that potentially are violative of our international obligations under the conventions against torture, and the fact that field agents had that information and passed it up, and yet we now we have a new report indicating that the management level of the FBI could have done better. I find that disappointing. I have great confidence in field agents. I find them hardworking, committed Americans that are there to serve their country. How do we solve this problem? You know, it is a major occasion here when we have an oversight hearing and get the Director before the Committee. I think it has happened twice in the last 7 years. We find it as difficult as you do in terms of your frustration, getting the necessary information before us so that we can review the behavior of this very significant agency. I am looking for some suggestions in terms of how do we provide protections to those field agents to come to this Committee, the Judiciary Committee, which has oversight jurisdiction of the FBI? Do you think it is possible to draft a concept paper for review by the Chairman and the Ranking Member that would provide protections for field agents to come directly to the U.S. Congress via this particular Committee and provide them full protection, confidentiality so that they can give us the realities of what is happening in terms of the significant national security and criminal investigations that are occurring in this country? Is that something that you think is worthy of consideration? Mr. German. I think it absolutely is. I think it is your right to have this information, and it is their obligation to provide it to you. Mr. Delahunt. I hope the two of you in conjunction with others would consider that. The Chair of the full Committee Mr. Conyers left, but he raised the issue or alluded to e-mails. I want to pursue that just for a moment. Can you disclose the nature of those e- mails? I think the question was directed to you, Mr. Youssef. Mr. Youssef. Congressman Delahunt, I feel that I can't get into much detail about the e-mails or the substance of the e- mails because it is a pending inquiry with the Office of the Inspector General right now. But I can characterize them generically as, looking at them in chronology and substance, they will give a pretty accurate picture of why these abuses occurred, for one point. Beyond that, I feel uncomfortable going into any more detail. Mr. Delahunt. I respect that, and I would hope and I am sure that the Chair of the full Committee and the Chair of the Subcommittee, along with the appropriate Ranking Members would pursue this in an in camera proceeding, because it is important that this Committee has that information and make a determination after its receipt if it should be made public, because there is simply too much at stake here, and what is at stake is the efficient and effective operation of the Federal Bureau of Investigation and ensuring that employees are being treated with respect and dignity, and that the information that they have is processed in a way that protects the national interest, including the national security interests of this country. With that I yield back the balance of my time. Mr. Youssef. If I may make one comment to that, sir. I believe that your dogged oversight will prime the system so that legitimate whistleblowers will be able to come forward because they will see that the current whistleblowers are being protected. However, the way that it is going on right now, the current state of affairs for what a whistleblower goes through inside the FBI, sends an extremely chilling message to anyone else in the Bureau who wants to come forward to explain what is really going on. Mr. Delahunt. Mr. Chairman, Mr. Gohmert, I think it is very important that there be a thoughtful consideration of and an understanding between your Subcommittee and the full Committee with the Director of the FBI about protections for those who wish to come forward to this Committee to provide us information which has been sorely lacking to this Committee over the past 8 years, and probably before that. I don't want to set any particular time frame. And I see that the judge Mr. Gohmert is preparing to ask for me to yield on that point. I yield. Mr. Gohmert. The thought occurs to me, based on some of the things that we have heard here today, that perhaps it would be good to just invite FBI agents from time to time for a classified briefing and include in there people who may wish to come forward. So it is classified, it is secret. Because obviously if someone wants to come forward and talk to this Committee, that ends up being a record that can be established. I think there are ways to do that. Mr. Delahunt. Whatever the Ranking Member says I am sure should be given careful consideration. I obviously defer to the Chairman, but we need to provide the kinds of protections necessary so that men and women like these two witnesses feel comfortable coming here and giving us information that we have not received in the past, and I am confident are not receiving now. We can't just simply rely on the inspector general to provide us this information. We have got to take a much more aggressive attitude. I thank the Chair. Mr. Scott. I thank you. The gentleman's time has expired. Any other comments? Mr. Gohmert. A couple of quick questions. Mr. Youssef, talking about the Counterterrorism Unit, you indicated one of the problems also, they are not given adequate tools. Can you tell us quickly what tools they need? I think on both sides of the aisle we want to make sure that they have the tools that they need. Mr. Youssef. Thank you, sir. I don't believe that the tools are necessarily financial or budgetary, even though that is always a concern. I believe the tools that are needed specifically for the Counterterrorism Division, agents and analysts is the appropriate training, the leadership that has experience to be able to run and direct the operations of the field and the rest of counterterrorism, language training; the very obvious assets that would be needed, for example, if you have agents in the field who have worked in the past and have had success in recruiting sources in a particular organization---- Mr. Gohmert. Those agents have now gone to the private sector because of the 5 year up or out policy, but go ahead. Mr. Youssef. That is what we need to come back. Mr. Gohmert. I don't mean to be flippant, but time is short here. I would ask you to submit in writing after the hearing things to help the FBI, the Counterterrorism Unit, have what they need to do the job to protect America. Obviously there are an awful lot of very dedicated, incredibly adept FBI agents. Another quick question. We have a different Attorney General from one who was in place during some of the time you mentioned. It appears to me General Mukasey is trying to do an admirable job fighting for truth, justice and the American way. Do you have any information to the contrary? Mr. Youssef. No, sir, I don't know the Attorney General personally or in any other---- Mr. Gohmert. Do you have any other information to the contrary? Mr. Youssef. No, sir. I was concerned that Attorney General Mukasey allowed the FBI to be involved in the inspector general's investigation. My understanding is if you are investigating a target of some sort, you don't involve them in the investigation. It should be an independent investigation. That was a concern of mine. Mr. Gohmert. Well, he may not have been aware of the concerns previously existing, but now certainly he will be. Thank you. Mr. Scott. Thank you. I would like to thank our witnesses for their testimony today. Members may have additional written questions for our witnesses, which we will forward to you and ask you to answer as promptly as you can so the answers may be made part of the record. Without objection, the hearing record will remain open for 1 week for submission of additional materials. Without objection, the Subcommittee stands adjourned. Thank you very much. [Whereupon, at 3:47 p.m., the Subcommittee was adjourned.] A P P E N D I X ---------- Material Submitted for the Hearing Record [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]