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                           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
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                       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.]





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