REP. ADAM SCHIFF (D-CA): Thank you, Mr. Chairman.
Mr. Director, I appreciate your being here. I spent six years as assistant U.S. attorney and worked extensively with the FBI on counterespionage and corruption cases, and I have a tremendously high regard for the people in your agency.
There are a number of areas I want to cover. I was, you know, very concerned, as our chairman indicated, with some of the problems that I've seen with the NSLs. More specifically, in terms of my concern, were the exigent letters saying that -- provide us these letters, that there's an exigency, that there's a grand jury subpoena forthcoming when in fact there was no grand jury even impanelled, let alone a subpoena forthcoming. That did not sound at all like the FBI that I had the pleasure of working with.
And I want to ask you about that, but before I turn to that, one of the areas that I'm also very interested in is the use of DNA evidence. And there has been a very substantial backlog of DNA samples which is expected to get a lot worse when the new law kicks in and a broader pool of convicts and arrestees will be within those required to be sampled.
In the budget request, there's a request of only a little over 30 million (dollars). I don't see how that will be enough to try to deal with the backlog we have now, let alone the backlog we can anticipate when the new law kicks in later this year or in 2009.
Do you know what the current backlog is of DNA samples? And do you have a sense of what resources would really be necessary to eliminate that backlog?
MR. MUELLER: I'd have to get you those specifics. But I can also tell you that we're still recovering from the changes in the law in I think it was 2005, which added a substantial number of individuals that we would need to process. And clearly, it's going to occur again. We put into the budget that which we think we could utilize and, hopefully, build upon in years to come. And I'd have to get you both the figure on the backlog as well as a breakdown of what it would cost to immediately -- or to remove that backlog.
REP. SCHIFF: I would very much like to get that. This is such a powerful tool, and there is perhaps no other tool like it, in the sense that you can directly correlate and say, if we clear up this backlog, we can anticipate getting x number of thousand new hits. If we get that many thousand of new hits, that means we can take that many murderers and rapists off the street. We can say, I think, with absolute certainty if we don't eliminate the backlog there will be people who will be raped by serial rapists that we could have taken off the street, that we can identify now. We have the power, and we may even have collected the rape kits or the offender DNA but not had a chance to analyze it yet. So I'd look forward to getting that information, and we'll have to work to see if we can get the resources necessary to really deal with this and make sure that at least vis-a- vis the most serious offenses, that law enforcement can get those samples analyzed very quickly.
Can you share with me on the --
MR. MUELLER: Can I just add one other point?
REP. SCHIFF: Yes.
MR. MUELLER: One of the other things we're looking at is advances in technology to expedite the examinations and some of the process -- the DNA process that would also eliminate the backlog -- not just the additional personnel, but we're looking hard at technology being also a contributing factor to removing that backlog. And we can brief you on that, as well.
REP. SCHIFF: Wonderful. And one other issue that's related to that. You know, the state and local law enforcement have a tremendous backlog problem as well, probably greater than yours. One of the obstacles they face is that when they can't -- like a local police department in my district, when they don't have the facility themselves, they have to go to the county sheriff's department. That often takes so long that they go to a private lab, which is very expensive to do. But then the private lab each -- I guess there's a hundred percent requirement of review of the private lab's work by the county, when the county uses the same private lab for its overflow without, evidently, the same requirement.
So it seems that there's -- and I think according to a National Institute of Justice study, some of these hundred-percent review requirements are adding tremendous costs without improving accuracy. So I'd love to work with your office as well on that issue.
On the issue of the exigency letters specifically, can you share what the audit has found or what you've found or what steps have been taken to try to ensure that we don't have a situation again where you have agents telling phone companies or others, "We need these records, it's an emergency, you're going to get a grand jury subpoena," when in fact there's no grand jury even impanelled?
MR. MUELLER: Well, the IG -- we are working jointly with the IG in investigation of the exigent letters, and that is still under investigation so I cannot get too far in depth into the investigation. There are a couple of things I can say. One, that back when the report -- the IG report came out, we issued a ban against use of them, so they have not been used once we became aware of the extent of the use in the IG report last year.
I will say that my understanding is the practice arose first of all in New York and was to a certain extent imported to headquarters as a result of the shift of primacy for handling a case from the field office back to headquarters. And the practice arose from persons using forms without reading the forms. This is my understanding; it is not by way of excuse. But it was transported from New York and was utilized here without the appropriate attention to what was happening and to assure that whatever representation is made on the piece of paper as to what was going to happen was in fact true. And as I say, the investigation is ongoing and I'll see what the IG recommends in terms of whatever further steps need to be taken as to assure that this practice does not grow in another way.
I will tell you one other thing that we have found, that I think covers not just national security letters but other areas as well, and that is, while we would establish procedures, we did not have a mechanism to assure that the procedures were being followed. And so we established an Office of Compliance to look at those areas where there is weakness or potential weakness to identify them early on and address them. And so when Congress passes a statute that requires that we adhere to certain procedures, that in the future we not only set forth procedures within the bureau, but we make certain that we have red teams and others that are looking to assure throughout the organization that the procedures are indeed being followed.
The lesson we learned from this episode is that it's insufficient to issue procedures without also having a mechanism to assure that the procedures are being followed in our 56 field offices and in our 400 resident agencies.
REP. SCHIFF: I appreciate that. And you know, this colors our view of the whole FISA debate when we see some of the authorities we've already provided, the NSLs or in other areas, without adequate safeguard and abuses. So it certainly colors how we view the additional request in FISA.
But thank you, Mr. Director. I appreciate your testimony.
Thanks, Mr. Chairman.
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