FBI director Robert Mueller's appearance before a Senate committee Thursday helped solidify his support among Democrats and Republicans on Capitol Hill, despite calls from the Wall Street Journal and a slew of conservative talk show hosts for his resignation. But the search for a fall guy at the FBI continues, and FBI counterterrorism chief David Frasca has come under increased congressional and media scrutiny as probes into the Sept. 11 attacks get underway.
At a Senate Judiciary Committee hearing Thursday, Sen. John Edwards, D-N.C., raised concerns that Frasca, head of the FBI's Radical Fundamentalist Unit, intentionally misled Senate Judiciary Committee staff in a January briefing about the case of Zacharias Moussaoui.
Frasca and Spike Bowman, the bureau's associate general counsel for national security affairs, met with Judiciary Committee staff in January to brief them about the Moussaoui case. "Based upon that briefing, I actually felt reassured about the vigor with which the Moussaoui investigation had been conducted," Edwards said. But he added, "There are some things that have come to light since that time that I was not told about."
Moussaoui is the French citizen who has been dubbed the "20th hijacker," was arrested on an immigration charge after the INS discovered his visa had expired, shortly before Sept. 11. But FBI headquarters blocked local agents' efforts to pursue their investigation of Moussaoui.
Edwards told FBI director Mueller Thursday, during Mueller's appearance before the Judiciary Committee, that Frasca and Bowman failed to mention the existence of the Phoenix memo -- in which Phoenix agent Kenneth Williams urged headquarters to search the nation's flight schools for possible terrorists -- and "did not mention that the Minneapolis office had some serious concerns about the handling of the Moussaoui matter by FBI headquarters," during that January briefing.
Those "serious concerns" came to the forefront last month when FBI whistleblower Coleen Rowley penned an angry letter to Mueller that has since sent shockwaves through Congress' investigation into the Sept. 11 attacks. Though Rowley's memo was not written until May, Minneapolis agents had expressed their dissatisfaction with headquarters before the Sept. 11 attacks.
"The agents in Minneapolis who were closest to the action and in the best position to gauge the situation locally did fully appreciate the terrorist risk/danger posed by Moussaoui," Rowley wrote. She said the FBI supervisory special agent in Washington involved in the Moussaoui case "seemed to have been consistently, almost deliberately thwarting the Minneapolis FBI agents' efforts."
Without naming names, Rowley was clearly pointing toward Frasca, and other media accounts named Frasca as the agent who interfered with Rowley's efforts.
Frasca made headlines on his own this week when he told a closed Judiciary Committee meeting that, although the Phoenix memo was addressed to him, he did not see the memo until October.
But sources familiar with Frasca's testimony say Frasca was cooperative with the committee's probe, and that it remains unlikely that either the FBI inspector general or the committee will recommend disciplinary action against him. "The impression on both sides was that he answered all of the relevant questions forthrightly," said one source familiar with the committee's inquiry. "There was a feeling that the committee had a good enough understanding of what happened, and that he's taken the necessary steps to address that." The source said Frasca was "unlikely to be called again" to testify before the committee.
But it was clear Thursday that Edwards wanted to tweak Frasca in front of Frasca's boss. The face-off between Mueller and Edwards Thursday was a vintage sparring match between two seasoned prosecutors. When Mueller told Edwards, "I'm not certain to what extent [Frasca and Bowman were] aware of the Phoenix [memo]" at the time of the January briefing, Edwards came back with a jab of his own.
"Do you know whether the Phoenix memo, in fact, was addressed to Mr. Frasca?" Edwards asked
"I believe it was," Mueller replied.
Edwards stopped short of directly accusing Frasca of trying to keep information from the committee staff, but made sure his annoyance with Bowman and Frasca was duly noted.
"If some or all of that information was available to Mr. Frasca and Mr. Bowman, and they were here for the purpose of briefing us about the Moussaoui case, the Moussaoui investigation, what had been done, what had not been done -- do you think it was appropriate for them not to tell us about those things?" Edwards asked Mueller, almost rhetorically.
"I'm not certain they had that in the back of the mind when they were doing the briefing. But absolutely, I believe -- I believe when they came up that they tried to be honest and straightforward. I don't think they were hiding anything at all," Mueller said.
The exchange highlights a level of institutional mistrust between Congress and the FBI that will persist as Congress ramps up its probe of the Sept. 11 attacks. Many members of Congress, from both parties, have been frustrated by what they call the FBI's reluctance to share information with legislators on the Hill. Though FBI inspector general Glenn Fine said Thursday that Frasca knew about the Phoenix memo "in the fall of last year," Congress was not told of the memo's existence until last month.
Senate Judiciary Committee chairman Pat Leahy, D-Vt., took the tone of a dour father admonishing a child when asking Fine about the FBI's failure to turn over the Phoenix memo sooner.
"You got that in September. Is that correct?" Leahy asked.
"I believe it's Sept. 28," Fine responded.
"And you gave it to the joint committee two weeks ago?" Leahy asked.
"We gave the results of our preliminary inquiry on, I think, May 22. Correct," said Fine
"About six months later -- more than that," Leahy pointed out. He paused, glaring sternly at Fine, who stared back at Leahy. A short but awkward silence permeated the hearing room, until Leahy moved on.
The questioning by Edwards and Leahy Thursday cuts to the heart of one of the major challenges Mueller faces in reforming the FBI -- and one of the major questions asked by Rowley in her letter to Mueller: Will the FBI's investigation, led by Fine, result in a thorough probe, and necessary disciplinary action, of those within the FBI who may have made mistakes regarding the Phoenix memo and the Moussaoui case before Sept. 11?
The signs thus far have been mixed. Before the Rowley memo surfaced, Mueller himself sought to deflect criticism away from the bureau and any of his individual subordinates.
"The agent in Minneapolis did a terrific job in pushing as hard as he could to do everything we possibly could with Moussaoui," Mueller said at a May 8 hearing of the Judiciary Committee. "But did we discern from that that there was a plot that would have led us to Sept. 11? No. Could we have? I rather doubt it."
That, of course, was before the Rowley memo directly challenged Mueller's statements. Just three weeks later, Mueller modified his statements slightly about the possibility that more diligent pursuit of Moussaoui could have led to the Sept. 11 plot. "I cannot say for sure that there wasn't a possibility we could have come across some lead that would have led us to the hijackers," he said.
Mueller said that while he understands there is a desire for him to crack heads, he is taking a measured approach to any rebuke of anyone inside the FBI. "Before disciplinary action is taken the inspector general ought to look at that conduct and determine whether or not disciplinary action is appropriate," he said. "Each of the individuals who were involved in this ought to have a right to express what motivated them, what was their thinking, what was available to them to do their job -- before the ultimate determination is made. And I've asked the I.G. to go through it and do that."
The fight over information is sure to continue as Congress probes the intelligence failures surrounding Sept. 11. Many in the Senate, for example, have pushed the FBI to make the Phoenix memo public, a request the bureau has continually rebuffed. Thursday, the FBI released a slightly redacted version of the letter Rowley wrote to Mueller, but that was only after the tidal wave of media coverage, and after Time magazine published an edited version on the Rowley letter. The FBI's first reaction was to stamp the letter "classified." On copies from the FBI handed out Thursday, each page was stamped with the word "secret," crossed out with a single line through the word.
Despite the sparring over information, members of the Judiciary Committee still expressed their support for Mueller this week, and said they were confident he was the right man to lead the overhaul of the FBI.
"I think he's got very strong support," said Sen. Dianne Feinstein, D-Calif. "To a great extent, he's been the victim of some unfairness. He came into the job a week before 9/11, and then suddenly he's blamed for all the pitfalls of that agency. He's bringing in some of his own people, and that's a good sign."