WASHINGTON – FBI Director Robert Mueller told Congress on Wednesday that he doesn't know how many of his agents cheated on an important test about the limitations of the bureau's powers to conduct surveillance and open cases without evidence that a crime has been committed.
The Justice Department inspector general is investigating whether hundreds of FBI agents cheated on the test — a brewing scandal that could be further embarrassment for the FBI as it continues cleaning up after years of collecting phone records without court approval.
Asked by Sen. Patrick Leahy, D-Vt., about an Associated Press report on the cheating, Mueller told the Senate Judiciary Committee he didn't know the exact number of agents involved.
"I've got a general idea, but I do not know how many," Mueller testified. "And I am not certain the IG knows how many either. He has pointed out instances orally to me where there maybe persons in a particular office where it was widespread and maybe attributable to a lack of understanding and confusion about the procedures."
In some instances, agents took the open-book test together, violating rules that they take it alone. Others finished the lengthy exam unusually quickly, current and former officials said.
In Columbia, S.C., agents printed the test in advance to use as a study guide, according to a letter to the inspector general from the FBI Agents Association that summarized the investigation. The inspector general investigation also was confirmed by current and former officials who spoke on condition of anonymity because of the sensitivity of the case.
"There are similar stories for practically every office, demonstrating the pervasive confusion and miscommunication that existed," Konrad Motyka, the association's president, wrote May 13 in the letter obtained by The Associated Press.
Depending on the outcome of the investigation, agents could be disciplined or even fired.
The inquiry threatens to be another black eye for the FBI as it tightens controls after years of collecting phone records and e-mails without court approval. The brewing scandal has already upended management at one of the nation's largest field offices.
The FBI had no comment on the investigation late Tuesday.
Motyka's letter urges the inspector general to focus instead on what he called the "systemic failure" of administering the test without consistent rules.
FBI agents should not be punished "because of a failure to effectively communicate the rules," he wrote.
Such testing is unusual. FBI agents are required to take online training courses to stay current on bureau policies, but pass-fail tests are rare. In 2008, however, when the FBI received more leeway than ever in conducting surveillance and opening investigations, it assured Congress that it would train and test its agents to make sure they knew the rules.
Agents were required to take 16 hours of training, which cut down paperwork errors by 80 percent, Mueller said.
"I do believe that our work force absolutely understands what can be investigated, how it must be investigated, what predication is necessary for a particular investigation in this day and age," Mueller said.
The test had 51 questions. The last question asked if anyone assisted the test-taker.
The Domestic Investigations and Operation Guidelines allowed the FBI, for the first time, to conduct surveillance for national security purposes without evidence of a crime. Agents were also allowed to consider race when opening early inquiries. For instance, the FBI could look into whether the terrorist group Lashkar-e Taiba had taken hold in a city if it had a large Pakistani-American presence.
The new rules gave agents more flexibility to identify and prevent terrorist attacks. They also raised concerns that the FBI would use its new powers to monitor religious organizations or single out certain races.
The FBI has a checkered past when it comes to conducting surveillance. From the late 1950s though the early 1970s, the bureau opened hundreds of thousands of files on Americans and domestic groups, including anti-war organizations, civil rights groups and women's movements. After the Sept. 11, 2001, terrorist attacks, the bureau collected U.S. phone and computer records without court orders.
Lawmakers and civil liberties groups were concerned that the new rules would allow racial profiling and other abuses. The FBI assured them they would not.
"We share the concern and have devoted considerable time and effort to educating our employees regarding how race and ethnicity can — and cannot — be used," FBI counsel Valerie Caproni told Congress in December 2008.
But problems with the training and testing programs surfaced quickly. Last year, Assistant Director Joseph Persichini, the head of the FBI's Washington field office that investigates congressional wrongdoing and other crime in the nation's capital, retired amid a review of test-taking in his office.
Persichini took the test alongside two of his most senior managers and one of the bureau attorneys in charge of making sure the exam was administered properly, current and former officials said. The two agents who took the test with him have been moved to headquarters while the investigation continues.
At the time, the inquiry appeared limited to the Washington field office. But investigators have broadened their inquiry to cover the entire FBI. Among other things, they are focusing on agents who took the test particularly quickly, officials said.
Letter to the DOJ inspector general: http://wid.ap.org/documents/fbiaa_letter.pdf