22 June 2001
Source:
http://www.senate.gov/~judiciary/hr062001f.htm
The Honorable Patrick J. Leahy
Chairman
United States Senate Judiciary Committee
The Honorable Orrin G. Hatch
Ranking Member
United States Senate Judiciary Committee
STATEMENT OF SENATOR PATRICK LEAHY
CHAIRMAN, SENATE JUDICIARY COMMITTEE
Hearing On “OVERSIGHT: RESTORING CONFIDENCE IN THE FBI”
June 20, 2001
Today, the Judiciary Committee begins oversight hearings on the Federal Bureau of Investigation. Oversight of the Department of Justice, of which the FBI is a part, is among this Committee’s most important responsibilities. There has never been a greater need for constructive oversight of the FBI. The FBI has long been considered the crown jewel of law enforcement agencies. Today, it has lost some of its earlier luster. Unfortunately, the image of the FBI in the minds of too many Americans is that this agency has become unmanageable, unaccountable and unreliable. Its much vaunted independence has transformed, for some, into an image of insular arrogance.
We now have an historic window of opportunity to examine the present state of the FBI and help guide constructive reforms to make the Bureau more effective, better managed, more accountable. The current FBI director has announced his resignation. No successor has not yet been named. This is a particularly appropriate time for us to take stock and think about how we should plan for the FBI of the 21st century. I would hope that these hearings will help the Members of this Committee prepare for the new Director’s confirmation hearings as well as apprise the nominee of the challenges that confront us all.
We had invited Director Freeh here today to thank him for his public service and to hear from him what his advice would be to his successor. I thought that it would be appropriate to begin these hearings by acknowledging all the positive contributions that he has made during the last eight years. I also wanted to get his assessment of the problems that remain. He explained to me when we spoke last week that he was unavailable.
In recent years we have seen case after case where the FBI has fallen short – and sometimes far short – of the high standards of professionalism and integrity that we expect of our nation’s premier law enforcement agency:
This list of failures and mistakes has seriously weakened public confidence in the FBI. According to a recent Gallup poll, only 38 percent of Americans have "a great deal" or "quite a lot" of confidence in the FBI, and 23 percent of those polled had very little or no confidence in the FBI. Confidence in state and local police is substantially higher, with about 60 percent of Americans having "a great deal" or "quite a lot" of confidence in these other law enforcement forces. This erosion of public trust threatens the FBI’s ability to perform its mission. Citizens who mistrust the FBI will be less likely to come forward and report information about criminal activity. Judges and jurors will be less likely to believe the testimony of FBI witnesses. Even innocent or minor mistakes by the FBI in future cases may be perceived in a sinister light that is not warranted. Since FBI agents perform forensic and other critical work for many law enforcement agencies on the federal, state and local levels, the repercussions of this lapse in public confidence in the FBI has rippled far beyond just federal criminal cases.
To many of us in Congress, this is a particularly troubling situation. For years, we have almost never said no when the FBI has asked us for new resources. We have allocated to the FBI millions of dollars in increased funding, because we all wanted to see it remain the world’s leading crime-fighting agency. It should be obvious now that simply throwing more money at the FBI is not the answer. The time has come when this Committee must exercise its oversight responsibilities and take a hard, thorough and nonpartisan look at the FBI to determine what has gone wrong and what can be done to fix things.
But as we go about this process, there are several things that we need to bear in mind.
First, our purpose in holding these hearings is to find ways to restore confidence in the FBI, not to tear it down. There are many irresponsible critics of the FBI who promote their conspiracy theories on Internet Web sites and in the popular media. Fortunately, the great majority of the American people have too much common sense than to believe them. The FBI is a vital national asset, and we need it to function effectively.
Second, we must not overlook the fact that the FBI is staffed by many brave, dedicated men and women who risk their lives protecting the interests of this country and the safety of its citizens. While we are constantly reminded of the cases where things have gone wrong, we often forget the far greater number of cases where the FBI does its job quietly, professionally and without public fanfare. Any constructive criticism of the FBI as an institution is not meant in any way to disparage its agents’ sacrifices on our country’s behalf.
Finally, our efforts must be, and I am confident will be, bipartisan. Over the past several weeks, senators on both sides of the aisle have expressed their concern about the present state of the FBI and discussed various legislative proposals to address the problems they have identified. This is not a Democratic or Republican issue. The future security of our country is far too important.
The question at the center of our first hearing is this: Who polices the FBI? Our focus is the mechanisms that currently exist for overseeing the activities of the FBI, and we intend to identify any gaps and problems that currently exist in FBI oversight, determine the status of oversight investigations that are currently underway and begin to formulate ways that oversight can be improved. We are extremely fortunate to have with us an outstanding panel of distinguished witnesses who have familiarity and expertise with different aspects of the oversight process. I look forward to hearing from them about how this process works now and how we can make it work better to ensure that mistakes are acknowledged, constructive recommendations for reform are adopted, and intentional misconduct is adequately punished. Our goal is to restore the luster, the effectiveness and the professionalism of the crown jewel of law enforcement agencies.
# # # # #
Senator Orrin G. Hatch
before the
Senate Judiciary Committee
hearing on
"Restoring Confidence in the FBI"
Thank you Chairman Leahy for convening this important hearing. The Federal Bureau of Investigation is the preeminent law enforcement agency in the world. It plays an essential role in our criminal justice system and its ability to investigate crimes and find the truth is unmatched anywhere in the world.
That said, there are serious issues concerning the operation of the FBI that must be addressed in a thoughtful, substantive and proactive way. The American people rely on the protections provided by the fine men and women at the FBI and deserve the best possible performance it can deliver. Unquestionably, there is room for improvement in the operation of the Bureau. The FBI, in conjunction with the Justice Department, simply must adhere to the highest standards of conduct in its investigations, use of informants, and in the fulfillment of its discovery obligations.
It is important, however, to keep the current problems at the FBI in perspective. The men and women of the FBI are dedicated professionals to whom we owe a great debt of gratitude. They solve difficult and important cases every day. Despite the serious problems that exist, the fact remains that the FBI solved the Oklahoma City bombing, the World Trade Center bombing and the terrorist attacks in East Africa, among the literally thousands of others that do not get the same profile in the press.
Chairman Leahy has expressed a desire to do a series of oversight hearing on the FBI. I fully support him in that effort and commend him for his prompt attention to this matter. The Committee's oversight responsibilities are an important element of our system of Constitutional checks and balances. I think it needs to be emphasized, that in my opinion, the focus of the oversight must be to improve the FBI and prepare it to be effective in the 21st Century.
Confidence in the FBI, and in the criminal justice system generally, is necessary for our system of governmental law enforcement to operate effectively.
I believe that we must vigorously - but constructively - examine the current managerial issues and focus on how to build a better FBI. In particular, I believe we should look critically at the culture of the FBI and how it is - or is not - effectively integrated with the Justice Department.
I also believe that, as we proceed through this essential oversight process, we must continue to be careful to respect the existence of ongoing criminal investigations, Inspector General investigations, and national security issues. Our Committee is best suited to a vigorous examination and debate of the policy issues involved, and less equipped to perform the intensive factual examinations already underway in the open criminal and IG investigations. I look forward to working with Chairman Leahy and other members of this Committee to ensure thorough oversight of the Bureau, while continuing to be sensitive to the investigations and national security concerns of some of the active matters at the Bureau.
In the end, I believe any constructive oversight and development of future reforms at the FBI must address two key issues: 1) a permanent oversight mechanism and 2) a mechanism through which outside experts can bring their expertise and objectivity to bear on the possible solutions to the problems at FBI.
As to the first issue, there are various proposals ranging from improvements to the Justice Department's Inspector General and its ability to perform oversight at the FBI, to the establishment of a separate Inspector General exclusively for the FBI. I look forward to working with my colleagues in evaluating these ideas, although I generally favor working within the Justice Department structure.
On the second issue, I have announced that I have been working with Senator Schumer to develop a bi-partisan, expert "blue-ribbon" commission to do a strategic, thorough review of the FBI, and make recommendations for improvements. I commend Senator Schumer for his leadership on this issue and look forward to working with him and our distinguished Chairman, Senator Leahy, to seeing that this legislation is enacted.
The Schumer-Hatch legislation would create a commission to that will be able to bring outside, objective expertise to bear on the issues that currently challenge the FBI. The Inspector Generals are great at doing factual investigations, but they are not designed to do strategic long term recommendations on these important policy and managerial issues. The blue-ribbon Commission can fill that gap. It is bipartisan, objective, and focused upon solutions, not headlines.
I welcome our witnesses, either today or in the coming days, to provide us with their views and recommendations on improving the legislation.
Once again, I thank the Chairman for convening this hearing. I am looking forward to hearing from our panel of distinguished witnesses and to working with the Chairman to constructively pursue this important oversight project.
TESTIMONY OF JOHN C. DANFORTH BEFORE THE SENATE
JUDICIARY COMMITTEE
June 20, 2001
After 14 months of exhaustive investigation, costing the taxpayers $17 million, I am absolutely convinced that the FBI had nothing to hide about Waco. The FBI did not do the dark things some people suspected. Agents did not cause the fire that killed scores of Branch Davidians. Agents did not fire guns into the complex. The evidence exonerating the FBI is overwhelming on these points. Evidence implicating the FBI is non-existent.
Yet, some FBI personnel and some Justice Department lawyers were not forthcoming in reporting the events at Waco, and some FBI personnel were not cooperative with my investigation.
Lack of openness and candor caused and then complicated my investigation. And, far more important, lack of openness and candor undermined public confidence in government.
On August 26, 1999, a Time magazine poll indicated that 61 percent of the public believed that federal law enforcement officials started the fire at Waco. That is what I mean by undermined public confidence in government. Absolutely no evidence supported this terrible belief. Its principal cause was lack of openness and candor by some people in the Justice Department and some people in the FBI.
Beginning on the day of the fire, the FBI and the Justice Department insisted that no pyrotechnic tear gas rounds had been fired at Waco. This was an innocent but mistaken assertion. An FBI agent had fired three pyrotechnic rounds at a target 75 feet away from the Branch Davidian complex, four hours before the fire started. The firing of pyrotechnic tear gas rounds had no bearing on the tragedy that followed.
Some FBI and Justice Department officials who knew of the pyrotechnic rounds were not forthcoming in setting the record straight. Had they come forward with the truth, there would have been no cause for believing there was any implication with the fire. Instead, when the public learned that pyrotechnics had been used and not disclosed, 61 percent assumed the worst.
My thoughts about why people who knew the truth didn’t tell the truth are speculative, but I would bet a lot that I’m correct. I think that the motive is not to hide evil deeds, but to avoid embarrassment. A long standing value of the FBI is not to embarrass the FBI. Mistakes are embarrassing, so, rather than admit them, cover them up.
Late in April, 1993, the Hostage Rescue Team commander who had authorized the use of pyrotechnics sat silently through the Congressional testimony of Attorney General Reno and FBI Director Sessions without correcting their mistaken statements suggesting that pyrotechnics had not been used. To have corrected the FBI’s previous denial about pyrotechnics might have embarrassed the Bureau.
In 1996, an FBI attorney neglected to transmit information about the use of pyrotechnics to a Justice Department attorney. I think that her negligence was an embarrassment to her, perhaps something that would jeopardize her career. So she began lying about her negligence to my investigators.
The irony is that attempts to cover up embarrassment cause embarrassment to the Bureau, and destroy public confidence as well.
It is important to keep things in perspective. Every instance of failure to produce records isn’t a cover-up or an intentional effort to avoid embarrassment. In the Waco investigation, we examined 2.3 million pages of documents. In major cases such as Ruby Ridge, Waco and Oklahoma City, hundreds of FBI agents are involved, and all of them are generating paper. I am sure that systems for managing information can be improved, but I am sure that there will always be a drawer somewhere or a box somewhere with something in it. So I would caution against a standard of perfection.
However, it was clear in the Waco investigation that at least some people in the FBI were cavalier or resistant in turning over evidence to outsiders.
Until September, 1999, the FBI denied the existence of Forward Looking Infrared (FLIR) tapes containing audio evidence of the approval of pyrotechnics. The government did not turn them over during the criminal trial of surviving Branch Davidians, nor in response to a Congressional request in 1995, nor in response to specific FOIA requests from 1995 to 1997. Then, in late August, 1999, the FBI located at HRT headquarters a previously undisclosed FLIR tape. On September 1, 1999, two more tapes mysteriously appeared in an FBI file cabinet. To say the least, the FBI was cavalier in not producing this evidence.
Days after the tragic fire, FBI agents attempted to disable by gunshot a pyrotechnic projectile found at the scene. Obviously this was evidence that pyrotechnics had been used. One of the supervising agents on the scene took notes of this event; however, instead of keeping his note pad describing this event in his office with his other notes, he kept it in the attic of his home. A second supervising agent repeatedly and implausibly told our investigators that he had no recollection relating to pyrotechnic tear gas at Waco.
It’s important to recognize that FBI agents who actually participated in the tear gas insertion were completely forthcoming in describing what happened, including the use of pyrotechnics. Also, Attorney General Reno, Deputy Attorney General Holder and Director Freeh clearly called for cooperation with my investigation. Similarly, notwithstanding our problems with the General Counsel’s office of the FBI, I believe that the General Counsel himself, Larry Parkinson, was trying to be helpful. But, while many were willing to help, others kept information from us.
The FBI’s Office of General Counsel was not as cooperative as its head. Convinced that certain individuals were withholding information from our investigators, we threatened to obtain a search warrant, and sent 11 agents and three lawyers to the Office of General Counsel to search its files.
I believe that, within the FBI, there are strong pressures to resist divulging information to outsiders.
Soon after I was appointed Special Counsel, my office realized that we would need a liaison with the FBI who would be the contact person for our investigation. Deputy Special Counsel Ed Dowd asked FBI Supervisor Special Agent John Roberts if he would be interested in this role, having been told by Postal Inspectors that Roberts had done an excellent job with the Ruby Ridge investigation. According to Dowd, Roberts didn’t want to act as liaison, claiming that working with our office would hurt his career in the FBI.
Supervisor Special Agent Patrick Kiernan, a lawyer who teaches ethics at the FBI Academy, became our liaison, and did an excellent job. Kiernan has told me that he believes that people within the FBI have retaliated against him for assisting my investigation, and that he has filed the appropriate referrals with the FBI’s Office of Professional Responsibility.
Whether or not the concerns of Roberts and Kiernan about their careers are well founded, the fact that they have those fears indicates to me that there is a culture within the FBI of non-cooperation with inquiries from outside the Bureau and of protecting those within the Bureau from criticism.
People have suggested several ways to improve the FBI including the creation of an Office of Inspector General or a Blue Ribbon Commission. These may be good ideas. But my own belief is that the only way to correct a cultural problem is to change the culture.
This means that there must be a persistent message that the role of the FBI is to protect the country and the Constitution, not to protect the FBI from criticism, and that lack of candor and openness hurts the FBI and destroys public confidence as well.
It is a message that must come from the top: from the President, from the Attorney General and from the Director of the FBI. It must be heard on the first day a new agent arrives at the FBI Academy, and it must be repeated every day until retirement.
And because it is human nature for today’s enthusiasms to become tomorrow’s forgotten resolutions, it is important that Congress put in place a permanent system for overseeing the FBI.
And if there is an “old boys network” of FBI officials who create and enforce a closed culture within the Bureau, it is important to replace these people. Otherwise, any reform would be sure to founder on everyday resistance from within. I would not humiliate them. I’m sure they believe that what they are doing is for the best. But I would replace them. I would give them farewell parties and effusive thanks, and I would send them on their way.
Finally, it is important for all of us--Congress, the media, the public--to acknowledge our own responsibilities for the lack of openness we lament in government. When public officials fear that the disclosure of their mistakes would lead to personal humiliation and professional ruin, it is understandable if they prefer concealment to candor. By confusing the discovery of human error with the sensationalism of exposés, we help create a mentality in government where the first law is self-preservation.
If we really believe that making mistakes is not as bad as hiding mistakes, then it is our responsibility to keep that in mind and express it in words.
***
Mr. Chairman, Senator Hatch, and Members of the Committee on the Judiciary:
I appreciate the opportunity to appear before the Committee this afternoon to discuss the work of the Office of the Inspector General (OIG) in the Department of Justice (Department) and, in particular, our oversight work in the Federal Bureau of Investigation (FBI).
I have worked in the OIG in a variety of capacities since 1995. I first served as the OIG’s Special Investigative Counsel. In 1996, I was appointed by Inspector General Michael Bromwich to be the director of the OIG unit primarily responsible for conducting special investigations, several of which involved important FBI programs. In May 2000, I was nominated to be Inspector General for the Department. In August 2000, I was named Acting Inspector General and in December 2000 the Senate confirmed me as Inspector General. Prior to my work at the OIG, I served as an Assistant U.S. Attorney in the District of Columbia and as an attorney in private practice.
I. OVERVIEW OF THE OFFICE OF THE INSPECTOR GENERAL
The OIG was established by the Inspector General Act (IG Act) Amendments of 1988, a decade after Inspectors General were created for many other federal Executive Branch agencies. The OIG began operating on April 14, 1989. The OIG is an independent entity within the Department that by statute reports to both the Attorney General and Congress on issues that affect the Department’s personnel or mission. It is charged with detecting and deterring waste, fraud, abuse, and misconduct among Department employees and its programs, and also promoting integrity, economy, efficiency, and effectiveness in its operations.
The OIG carries out this mission with a staff composed of investigators, auditors, inspectors, attorneys, and support staff. The OIG’s workforce has been reduced from its peak of approximately 460 employees in 1998 to its current level of approximately 360 employees. The 140 members of our Investigations Division are assigned to one of 10field offices or 7smaller area offices across the country. The 140 members of our Audit Division serve in one of 7 field offices. In addition, an Evaluation and Inspections Division composed of approximately 20 program evaluators is located in Washington, D.C. We also have a separate unit in Washington, D.C. that combines the skills of attorneys, special agents, and program analysts. This unit, the Office of Oversight and Review, is comprised of approximately 12 employees, including 6 investigative attorneys. It is responsible for conducting many of the OIG’s most sensitive and high-profile special investigations.
II. JURISDICTION
The IG Act and an Attorney General Order (AG Order) provide the OIG with jurisdiction to conduct or oversee misconduct investigations in most components of the Department, including the Immigration and Naturalization Service (INS), the U.S. Marshals Service (USMS), and the Federal Bureau of Prisons (BOP). When Congress created an Inspector General in the Department in 1988, it agreed to a compromise that merged several of the Department’s then-existing audit and internal investigation units into the OIG.
The compromise permitted the FBI and the Drug Enforcement Administration (DEA) to retain their separate Offices of Professional Responsibility (OPR) with authority to investigate misconduct matters involving their own employees. In addition, the Department’s OPR (DOJ OPR) continued to exist outside of the OIG. (5 U.S.C. app. 3 §§8D(a)(3), 8D(h) and 9(a)(1)(I)) However, Congress gave the Attorney General the authority to readjust the jurisdiction of the OIG. (See §9(a)(2) of the IG Act)
In deference to the request of the Attorney General, the Senate recedes to the House with respect to not transferring the Department’s Office of Professional Responsibility (OPR) into the OIG. In the future the Attorney General may determine that OPR and the other audit, internal investigation, and inspection units remaining outside the OIG should be consolidated in the OIG. Pursuant to section 9(a)(2) of the Inspector General Act, the Attorney General is authorized to effect the transfer of resources and functions necessary to achieve this consolidation.
Inspector General Act, H.R. Rep. No. 1020, 100th Cong., 2d Sess. 24 (1988)
Over the years, the question of the relative authority of the OIG, DOJ OPR, FBI OPR, and DEA OPR has been an issue within the Department. The ambiguity has resulted in two AG Orders addressing the jurisdiction of these offices, including the one currently in effect, AG Order 1931-94. While this Order clarified the respective authority of each office to investigate misconduct and generally resolved the jurisdictional issues between the OIG and DOJ OPR, it permitted the FBI and the DEA to retain primary oversight authority over misconduct allegations involving their employees.
Under this Order, the OIG may undertake investigations in the FBI and the DEA only when the Attorney General or Deputy Attorney General specifically authorizes us to do so in a particular case. AG Order 1931-94 divides oversight responsibilities in the Department as follows:
- The OIG has authority to investigate all allegations of employee misconduct in the Department and its components except when jurisdiction is specifically conferred on one of the other alternative entities: DOJ OPR, FBI OPR, or DEA OPR. The OIG can request authority from the Deputy Attorney General to take responsibility for an investigation from any of the OPRs.
- DOJ OPR has authority to investigate allegations of misconduct involving DOJ attorneys (or investigators working under the direction of DOJ attorneys) acting in their capacity to litigate, investigate, or provide legal advice. For example, allegations that a federal prosecutor willfully failed to turn over exculpatory evidence to defense counsel would be investigated by DOJ OPR. On the other hand, if the prosecutor was alleged to have embezzled Department funds, this complaint would be investigated by the OIG.
- FBI OPR has authority to investigate allegations of misconduct by FBI employees.
-DEA OPR has authority to investigate allegations of misconduct by DEA employees.
Under an agreement reached in 1996, the OIG receives limited case information on a monthly basis from FBI OPR and DEA OPR that identifies new allegations against their employees as well as the disposition of previously reported allegations.
III. EXAMPLES OF OIG OVERSIGHT OF FBI PROGRAMS
The following special reviews illustrate some of the OIG’s investigations in the FBI within the past several years:
ALDRICH AMES: In April 1997, the OIG issued a lengthy classified report on our extensive review of the FBI’s performance in uncovering the espionage activities of former Central Intelligence Agency (CIA) Directorate of Operations officer Aldrich Ames. We also issued a shorter, unclassified summary entitled "A Review of the FBI’s Performance in Uncovering the Espionage Activities of Aldrich Hazen Ames." The review found that throughout nearly the entire 9-year period of Ames’ espionage, the FBI devoted inadequate attention to determining the cause of the sudden, unprecedented, and catastrophic losses suffered by both the FBI and the CIA in their Soviet intelligence programs. The OIG is building on its extensive knowledge and the expansive collection of documents analyzed during this investigation to assist in our current review of the FBI’s efforts to detect alleged FBI spy Robert Philip Hanssen. I will speak more about this ongoing investigation later in my testimony.
FBI LABORATORY: The OIG investigated a series of allegations, including allegations that improper practices distorted forensic conclusions from the FBI Laboratory. The OIG assembled an investigative team composed of attorneys, special agents, inspectors, and five internationally renowned scientists with experience in the operation of forensic laboratories. In April 1997, the OIG issued a 517-page report entitled "The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases." The report found deficient practices in several cases handled by the Laboratory, such as scientifically flawed testimony, testimony beyond examiners’ expertise, improper preparation of Laboratory reports, insufficient documentation of test results, and an inadequate record management system in the Laboratory. Although our investigation exonerated most of the examiners whose actions we reviewed, we found serious deficiencies by several examiners. We recommended transferring specific examiners from the Laboratory and relieving others of supervisory duties. One year after issuing this report, the OIG conducted a follow-up review and found that the FBI had made significant progress toward implementing our recommendations, including moving toward accreditation for its Laboratory.
HANDLING OF INTELLIGENCE INFORMATION: In July 1999, the OIG completed a 576-page classified report detailing the results of an investigation into allegations that classified intelligence information pertaining to the Department’s Campaign Finance Task Force investigation was not appropriately disseminated within the FBI and the Department. This report, entitled "The Handling of FBI Intelligence Information Related to the Justice Department's Campaign Finance Investigation," found that the Department’s handling of classified information was hampered by a range of problems, including poor judgment by certain personnel, misapplication of Departmental policy, Departmental policy disputes, and problems in the use and maintenance of the FBI’s computer database systems.
DEATH OF KENNETH TRENTADUE: In August 1995, Kenneth Trentadue, a federal inmate who was being held temporarily in the BOP’s Federal Transfer Center in Oklahoma City, was found dead in his cell. Controversy developed concerning whether he had committed suicide or was murdered. After the Department’s Civil Rights Division concluded that there was insufficient evidence to prosecute anyone for Trentadue’s death, the OIG began a separate review to determine whether BOP or FBI employees had engaged in misconduct in the events surrounding his death. The OIG’s 206-page report entitled "A Review of the Justice Department's Handling of the Death of Kenneth Michael Trentadue at the Bureau of Prisons' Federal Transfer Center in Oklahoma City" was completed in November1999. Our investigation concluded that Trentadue’s death was a suicide, but we found that the FBI and BOP response to his death was deficient in several ways. Of particular relevance to this hearing, we found significant deficiencies in the FBI’s investigation of this case, particularly its mishandling and misplacing of several important pieces of evidence and its failure to document the case adequately.
LOST TRUST: The OIG investigated allegations of misconduct by the South Carolina U.S. Attorney’s Office and the South Carolina FBI in a series of prosecutions known as the "Lost Trust" cases. A U.S. District Judge had dismissed many charges in the Lost Trust cases, alleging errors in the conduct of the undercover investigation, failures by the government to meet its discovery obligations, and possible perjured testimony by government witnesses. The OIG did not find prosecutorial misconduct, but we were critical of the government’s management of its discovery obligations. The OIG criticized the FBI’s failure to attend to its discovery responsibilities, provide effective supervision to a new special agent, seek guidance from the U.S. Attorney’s Office, or apply the resources necessary to support the investigation and trial.
In addition to these special reviews, in 1998 the OIG was given responsibility (along with DOJ OPR) to investigate allegations raised by FBI employees who claim they have been retaliated against by FBI management for making protected "whistleblower" disclosures.
IV. ONGOING SPECIAL REVIEWS IN THE FBI
The OIG is currently involved in two sensitive matters related to oversight of FBI programs and operations. Given the truncated jurisdictional authorities with respect to OIG oversight in the FBI, in each of these cases the Attorney General authorized the OIG to conduct the review pursuant to the procedure outlined in AG Order 1931-94.
A. Hanssen Matter
Shortly after the FBI Director announced the arrest of FBI employee Robert Philip Hanssen on espionage charges, the Senate Select Committee and the Attorney General asked the OIG to examine the Department’s performance in preventing, detecting, and investigating Hanssen’s alleged espionage activities.
The OIG has assembled a 10-person team of attorneys, special agents, program analysts, and support staff, several of whom worked on the OIG’s Ames review. Helping lead the team is the former chief of the Appellate Division in the U.S. Attorney’s Office in the Southern District of New York who led our Ames review. Two experienced federal prosecutors, one from the District of Vermont and the other from the Southern District of New York, are working for the OIG for the duration of this effort. In addition, the lead program analyst from the OIG’s Ames investigation is serving in this same capacity for the Hanssen matter. Three OIG special agents with extensive experience in complex investigations are assigned full-time to the team.
After discussions with the FBI’s National Security Division, the CIA, and the prosecutors handling the Hanssen prosecution, we have been granted access to most of the sensitive information and classified documents we have requested. As I mentioned previously, our objective in this review is to thoroughly examine the Department’s performance in preventing and detecting Hanssen’s alleged espionage activities. Because the criminal investigation of Hanssen’s activities is of paramount importance, the OIG has met several times with the prosecutors in that case to ensure that our activities do not interfere with their work. In addition, we have met twice with Judge Webster and his team to ensure that we avoid any unnecessary duplication with their ongoing review of FBI security practices.
Our review of the Hanssen matter will build upon our already substantial base of knowledge about the FBI’s performance in uncovering espionage during the period of Ames’ activities – a time period that overlapped, in part, with when Hanssen allegedly was supplying sensitive classified information to the Soviets.
B. Belated Production of Documents in the Oklahoma City Bombing Case
On May 9, 2001, the Department notified the defense attorneys for Timothy McVeigh and Terry Nichols that hundreds of FBI documents that should have been produced as part of the discovery process during their trials had in fact not been produced. On May 11, 2001, the Attorney General asked the OIG to investigate the circumstances surrounding the FBI’s belated production of these documents.
Upon receiving the Attorney General’s request, we immediately assembled an investigative team of OIG employees, consisting of five attorneys, two special agents, two auditors, a paralegal, and support personnel. The team is led by an experienced former federal prosecutor who is the head of the OIG unit that conducts special investigations. As of this date, the team has requested and reviewed numerous FBI documents, and conducted more than 70 interviews of personnel from FBI Headquarters, Main Justice, Oklahoma City, and six FBI Field Offices. The OIG has also interviewed former FBI and Department officials and employees, as well as several of the prosecutors involved in the Oklahoma City bombing (OKBOMB) case.
The OIG’s investigation predominantly focuses on the following questions:
- How were the documents discovered in the FBI?
- Why were the documents not discovered and disclosed before the McVeigh and Nichols trials?
- Did the FBI act appropriately and timely upon learning that documents may not have been disclosed to the defense before the McVeigh and Nichols trials?
- Does this case reveal systemic problems with the FBI’s handling and production of discoverable documents?
The OIG is not reviewing the belatedly produced documents to determine whether any of the information constitutes exculpatory material in the McVeigh or Nichols trials or could have affected the outcome of those proceedings. Further, the OIG is not investigating whether additional discoverable material related to OKBOMB exists in FBI Field Offices. Those issues were assigned to Department prosecutors and FBI personnel. Rather, the OIG is investigating why the documents were produced late, the reasons for the delay, and any systemic problems that this matter reveals about the FBI’s handling of discoverable documents.
We have done a considerable amount of work and have advanced the investigation significantly. However, we intend to conduct many more interviews, including interviews of personnel from additional field offices. Although we do not intend to interview FBI personnel at all 56 FBI Field Offices, we intend to fully investigate a sample of FBI offices to determine what happened with the documents in those offices. We also intend to survey other FBI offices to obtain additional information. Where warranted, we will conduct follow-up interviews in those offices about the cause of the belated production of documents.
We plan to issue a detailed report of our investigation as expeditiously as possible.
V. CONCLUDING OBSERVATIONS
A well-funded OIG is an investment in fighting corruption, misconduct, waste, fraud, and abuse. Yet, while the OIG’s investigative jurisdiction has expanded significantly since our creation in 1988, the resources provided to us have not kept pace with either this expansion of responsibility or the Department’s explosive growth. Although the Department has grown during the past eight years from approximately 98,000 employees to approximately 130,000 employees (a 30 percent increase), the OIG’s staffing has diminished. We have lost more than 15 percent of our staff during these same eight years.
In fact, due to budget constraints the OIG has lost 100 employees within the past two years. If the OIG had merely kept pace with the Department’s growth during the past eight years, we would have approximately 550 employees. Instead, our budget can support approximately 360 employees.
Resource limitations aside, the OIG has a proven track record of conducting high quality, independent, and tough but fair oversight of Department programs and operations. When we have been given authorization to conduct investigations of FBI programs, we have produced comprehensive reports that identified serious systemic weaknesses and provided constructive recommendations for improvement.
I would be pleased to answer any questions.
Mr. Chairman, Senator Hatch, members of the Committee:
I am currently a partner in the Washington D. C. and New York offices of the law firm of Fried, Frank, Harris, Shriver & Jacobson. Before joining the firm in September 1999, I spent 13 of the previous 17 years in public service, first as a federal prosecutor in New York and Washington, and for the last five years, from 1994 to 1999, as the Inspector General of the Department of Justice. During the time I served as Inspector General, the Office of the Inspector General (OIG) conducted a number of significant reviews of the FBI, including in-depth investigations of the FBI Laboratory, the FBI’s role in the Aldrich Ames affair, and the FBI’s problems in handling classified information in the campaign finance investigation. I am pleased to be here to testify about the important and timely subject of oversight over the FBI.
I think it might be most useful for me to address some of the recent historical issues relating to FBI oversight. First, I will describe the state of oversight over the FBI and the institutional configuration relating to such oversight when I arrived at the Department at the end of 1993. Second, I will describe the experiences -- the challenges and frustrations -- I experienced during my five-year tenure as IG as they relate to FBI oversight. Third, I will describe what I view as the central oversight issues that need to be considered by this Committee, including the recent proposal to create a new and separate inspector general within the FBI. I should add that my review of the events described in this statement is based on my best recollection rather than on any comprehensive review of the relevant documents.
Background
The Inspector General Act of 1978 established inspectors general in cabinet level agencies and many independent agencies, accelerating a movement to create independent audit, program evaluation, and investigative agencies in the executive branch and continuing a trend that had begun in the early 1970s. A number of agencies, including the Treasury and Justice Departments, were not included in the 1978 law. Although there were multiple reasons for the omission of the Justice Department from the scope of the original Inspector General Act, the principal arguments were that the Justice Department already had an internal affairs-type entity – the Office of Professional Responsibility, which had been established by Attorney General Levi in the mid-1970s – and that there were separation of powers-related concerns about putting an independent inspector general, with reporting responsibilities to the Congress, in the department headed by the Attorney General, the nation's chief law enforcement officer. For these reasons and others, the Justice Department OIG was not created until 1988 when Congress passed the Inspector General Act Amendments of 1988.
The Justice OIG was set up through the consolidation and amalgamation of elements of the Justice Department, including units and personnel drawn from the DEA, the Marshals Service, the Immigration and Naturalization Service (INS), the Bureau of Prisons, and the Justice Management Division. The Justice Department OIG opened its doors in the spring of 1989 with an acting inspector general. The Senate confirmed the first Justice Department inspector general in the latter part of 1990.
The legislation that created the OIG provided it with audit and program review authority that was virtually unlimited, including over the FBI. In practice, as I learned when I arrived, the FBI made life both difficult and unpleasant for OIG personnel engaged in work involving the FBI. Because doing work in the FBI was so time-consuming and frustrating, because there was a general lack of cooperation from FBI personnel, and because OIG personnel were more knowledgeable about other components of the Department than about the FBI, the OIG did fewer audits and less program evaluation work in the FBI than I would have liked. OIG professionals turned their attention to parts of the Justice Department where they could do their jobs more effectively and have something to show for it.
As to investigations, the scope of the OIG's investigative authority over FBI personnel and DEA personnel was controversial and confusing almost from the outset. In addition to the OIG and OPR, there were the two other internal affairs arms in the FBI and DEA – FBI-OPR and DEA-OPR -- whose existence was left undisturbed by the statute and by the creation of the OIG. The statute suggested a particular division of responsibilities, although the combination of the statute and the legislative history made clear that the Attorney General retained substantial discretion in allocating matters within this institutional hodgepodge. Because the statute made the scope of the OIG's investigative jurisdiction uncertain, there was need for some form of clarification. In 1992, the Deputy Attorney General issued an order to clarify matters. The order, known as the Terwilliger Order, generally gave the jurisdiction over attorneys and law enforcement personnel to the Justice Department’s OPR, even though it lacked the manpower to do a credible job in that regard. This did nothing to solve the problem, but it served to diminish the stature of the OIG within the Justice Department.
One factor in this early history that helps explain the failure to provide any investigative oversight over the FBI was the general hostility of the Department, including the FBI, towards the creation OIG and the seeming desire to marginalize it. This was reflected in what I found when I arrived at the Department in late 1993 – that the OIG had not been fully accepted by the rest of the Department in the first four years of its existence. This was not attributable to any deficiencies on the part of the OIG but instead was the result of what appeared to be an attempt to marginalize it. Nor was the notion taken seriously that the OIG could conduct investigations into significant matters involving complex law enforcement and national security issues .
When the possibility of my becoming the Justice Department’s inspector general was initially raised with me, the then-Deputy Attorney General stressed his concern about the ability of the Department to conduct major, credible internal investigations into matters of substantial significance. The initial investigations into Ruby Ridge and Waco had been completed, and both he and the Attorney General appeared to be dissatisfied with the ad hoc methods and mechanisms used to conduct these inquiries. One of my mandates was to create a credible investigative vehicle within the OIG.
When the Deputy Attorney and Attorney General originally recruited me to become the inspector general, in mid-1993, it was on the understanding that the OIG and OPR were to be merged. However, before Attorney General Reno could make a decision on the merger that had been proposed by the Deputy, members of this Committee made clear that it would not move ahead with my confirmation if the merger went forward. In that context, Attorney General Reno declined to approve the merger. I was confirmed as IG in June 1994.
FBI Oversight from 1994-1999
One of the first issues that needed to be addressed once I became IG was to clarify the respective jurisdictions of the various internal affairs offices. The process, which took several months, culminated in the Attorney General’s jurisdictional order, signed by Attorney General Reno, in November 1994. The main issue to be resolved was determining which cases would be worked by the Justice Department’s OPR and which by the OIG. Providing the OIG with meaningful investigative oversight over the FBI and DEA did not figure as a matter of serious debate; it was clear that the FBI and DEA opposed it and that the Department’s leadership was not willing to impose it. Sorting out the jurisdictional boundaries between the OIG and the Justice Department’s OPR was a more pressing and practical issue.
Attorney General Reno’s jurisdictional order established that the Justice Department’s OPR was responsible for investigating allegations against lawyers – prosecutors and others -- acting in their capacity as lawyers. This established OPR’s core function as its sole function – investigating allegations against lawyers, such as grand jury abuse, abuse of the discovery process, other alleged unethical conduct in the course of litigation and in trials, and similar types of matters. The FBI and DEA internal OPRs were accorded primary responsibility for investigating allegations of misconduct against personnel in their respective agencies. The OIG was responsible for investigating everything else, which was a substantial expansion of its previous investigative jurisdiction. The jurisdictional order provided that the OIG could conduct an investigation of FBI or DEA personnel only with the consent of the Attorney General or the Deputy Attorney General.
In the absence of such consent, the OIG had no authority to conduct investigations – as opposed to audits or program reviews – in the FBI or DEA. This imposed a limitation on the jurisdiction of the OIG that, to the best of my knowledge, did not exist with respect to any other inspector general in the federal government. This privileged and protected status reflected the FBI’s clout within the Justice Department – DEA always appeared to be a free rider in these discussions, benefiting from the special protection the FBI sought for itself – and served to limit the scope of the OIG’s oversight over the FBI.1 It became clear to me that in order to expand the OIG’s oversight jurisdiction over the FBI, we would have to first demonstrate our ability to do investigations of complex law enforcement and intelligence matters.
Ames
In November 1994, the House Permanent Select Committee on Intelligence filed a report of its inquiry into the Aldrich Ames affair. One of its recommendations was that the OIG conduct an inquiry into the FBI’s role in the affair analogous to the review previously conducted by the CIA OIG. As we sought to assemble a team to conduct the investigation, we learned that the FBI was trying to convince the chairman of HPSCI and the top staff members to permit the FBI to review its own conduct, foreclosing the OIG’s review. The FBI told staffers that I was uninterested in conducting the review and was unable to do so and was close to reaching an agreement with the Committee that would have permitted the FBI to review its own conduct. The staffers appeared shocked when they learned that the FBI had wholly misrepresented my attitude towards conducting the review. Our belated discovery of the FBI’s attempts to block the OIG’s review and discussions with the HPSCI staff served to get the project back on track.
Ultimately, we produced a detailed account of the FBI’s efforts over a seven-year period to determine the source of the enormous intelligence losses caused by Ames. Once the FBI reconciled itself to the fact that the OIG would be doing the review, we generally got good cooperation from the FBI in providing personnel to assist with the project, in producing documents and in making witnesses available. I have little doubt that we were able to bring a degree of independence and objectivity to the review that would have been beyond the capacity of any review conducted by the FBI itself. Although the head of the Bureau’s National Security Division publicly dismissed the report upon its release as containing nothing new and nothing that the FBI had not already figured out on its own, we were subsequently told by Congressional staffers that the report’s recommendations had been extremely useful in monitoring the Bureau’s progress in addressing some of the deficiencies that had been noted. And when the alleged activities of Robert Hanssen were reported earlier this year, the Bureau publicly stated that it had implemented the recommendations contained in that 1997 report.
B. FBI Lab
Probably the most well-known example of investigative oversight we conducted during my tenure as IG was our investigation of the FBI Laboratory. After conducting a preliminary inquiry into allegations of misconduct and shoddy and unscientific work in the FBI Laboratory, we expanded the review into a full-scale investigation in the fall of 1995. At the time, FBI-OPR was handling some of the allegations made by a scientist within the FBI Lab and the OIG was handling others. When some of the allegations became public, it became clear that the credibility of the investigative results turned on their being done by an entity outside the FBI. For this reason, I went to the Deputy Attorney General and sought, under the jurisdictional order, to assume responsibility for reviewing the allegations then being reviewed by FBI-OPR. The Deputy Attorney General asked that I meet with the FBI Director to see whether he objected to our assuming total responsibility. I did so in early August 1995, and Director Freeh raised no objection.
After an eighteen-month long investigation, we issued a lengthy report in April 1997 supporting many of the allegations of poor scientific practices and substandard work being performed in the three sections of the Lab we examined closely. We rejected some of the most far-reaching allegations that had been made, including allegations of perjury, obstruction of justice, and suppression of exculpatory evidence. We made 40 recommendations, all of which were accepted by the FBI. In addition, during the course of our review, we strongly recommended that a world-class scientist be named to head the Lab rather than an agent, as had been the case previously, and as the Bureau was intending to do again. Following the intervention of the Attorney General, the Bureau conducted an extensive search and appointed a well-known and highly-respected scientist to head the Lab.
C. Campaign Finance Investigation
In September 1997, it was disclosed that the FBI Director and the Attorney General had not been properly briefed on classified information collected by the FBI that suggested involvement of the Chinese government in the 1996 presidential election. The AG and the FBI Director turned to the FBI initially to examine the problem; the OIG was not consulted. At the end of November 1997, the AG learned of additional problems of the same kind. At that point, she advised the FBI that she was asking us to investigate the matter; she did so over the Director’s objections.
In July 1999, the OIG issued a highly classified report and an unclassified executive summary containing its findings and recommendations. The findings and recommendations included both matters relating specifically to the structure and function of the campaign finance investigation and relating to more general systemic problems. In the category of systemic problems, the investigation found major defects with the manner in which the FBI's computer systems were used. Most of these were management and operational problems rather than purely technical issues. For example, the investigation found that agents had too much discretion in entering investigative information, thus risking the failure to enter significant data into the system; that agents and other personnel using the computer systems were insufficiently trained in using the systems properly; and that as a result the ability to retrieve relevant information was significantly impaired. We have apparently seen some of the bitter fruits of these computer system management problems in the McVeigh documents matter, although we need to await the results of the current Inspector General’s investigation to determine how much of the explanation is attributable to computer problems and how much to other factors.
D. Other Matters
In addition to the matters summarized above, there were other FBI oversight matters that arose during my tenure that raised questions about the appropriate body to perform the oversight. In connection with allegations relating to the Ruby Ridge matter, the allegations against high-ranking executives at the FBI were sent to the Justice Department's OPR rather than to the OIG. OPR began its review without the OIG’s knowledge, even though the OIG was better equipped, in my judgment, to conduct the investigation because it has its own complement of law enforcement personnel and therefore does not need to rely entirely on assistance from the FBI, as has been the case with OPR. When the issue was raised with top Department management, they said it was too late to unscramble the egg. The same general sequence explained OPR's role in the Richard Jewell matter.
Arguably, both of these matters were within the jurisdiction of FBI-OPR because the allegations were focused on FBI personnel. And, arguably, FBI-OPR was prudent in calling for assistance. The institutional problem was that Justice's OPR had long been considered by people in the Department and the FBI as having something other than an arm's length relationship with the FBI. In part, this has been because on matters of major significance, including those matters involving investigations of FBI personnel, OPR has tended to rely heavily on FBI personnel to provide investigative support because it lacks its own staff of non-lawyer investigators. On matters of such great importance, in order to ensure public confidence in the oversight of the FBI, and the confidence of FBI personnel themselves in the independence and objectivity of the review, the oversight needs to be performed by an entity that is not closely identified with the FBI.
Two other matters that arose during my tenure are worth noting, in which the jurisdictional restrictions on the OIG resulted in important oversight over the FBI being conducted by other entities. In the summer of 1997, allegations arose about FBI misconduct in the context of a major organized crime case in Boston. These allegations included the alleged willingness of FBI agents to permit organized crime figures, because of their status as FBI informants, to commit murder and other crimes of violence against other persons involved in organized crime activities. I approached the then-acting Deputy Attorney General about allowing the OIG to assume responsibility for the review. The request was denied.
Second, in the spring of 1999, the Wen Ho Lee case had begun to collapse and there were calls from Congress and the media for a full internal investigation of the activities of both FBI personnel and Justice Department lawyers. At the time the OIG was struggling with major budget problems. Even so, I went to the Deputy Attorney General and requested that the OIG conduct the review. For reasons that were not fully explained, the Deputy said that the OIG had not been considered for conducting the review. Ultimately, we were advised that because of the budget problems the OIG was experiencing at the time, we were thought not to be capable of undertaking the review. That decision had been made without any consultation with us whatsoever. Although the Department asked a very capable and competent prosecutor to conduct the review, that is beside the point. As an institutional and oversight matter, it turned back the clock to the ad hoc world of 1992-93, where oversight solutions were developed on the fly with little regard for establishing continuity and stability in the oversight of the FBI.
E. Resource Issues
Oversight requires resources -- both the right people and sufficient funding. During my tenure, our attempts to change the mix of personnel to conduct more complex pieces of oversight over the FBI ran aground because of lack of funding.
My experience has been that the type of oversight reflected in the FBI Lab, Ames, and campaign finance oversight investigation requires a mix of lawyers, investigators, and other personnel. When I arrived at the OIG, it was ill equipped to conduct such oversight. Of the approximately 400 people on board at the time, there were only a handful of lawyers, none of whom had any prosecutorial or investigative experience. In fact, the current inspector general, Mr. Fine, was the first lawyer I hired specifically to do this kind of complex oversight work. My efforts over the years to build up this capability in any substantial way were only partly successful: even after the reports on the Ames and FBI Lab matters were completed in early 1997, I was unable to get the Attorney General and Deputy Attorney General to approve enhanced funding for this purpose. Their approach was to try to get us to enlist personnel detailed from other parts of the Department, most notably the U. S. Attorneys' Offices and the Criminal Division, rather than augment the OIG’s funding. Sometimes this solution worked well; sometimes it did not. In any event, I did not view it then – and I do not view it now – as a sustainable solution over the long term. The OIG needs to have its own personnel available to conduct oversight of complex matters. To date, because of budgetary issues, caused during my tenure by the failure of the Justice Department, OMB, and the Congress to provide adequate funding, this has not been the case. We were able to build up this capability to some extent but not nearly to the extent that the workload required.
This general long-term structural and funding problem took a more ominous turn starting in the second half of 1998. At that time, staffers on the Senate Appropriations Subcommittee suddenly and without any warning took strong exception to a funding mechanism that had been used continuously since 1992. They were able to do so without any evident concern for the impact their actions would have on the oversight capacities of the OIG, much less on the personnel within the organization. I was never able to determine the real motivation for the attacks on the OIG but the bitter and unfortunate result was a substantial degradation in the ability of the OIG to conduct oversight over the FBI and the rest of the Department. For the better part of my last year as IG, the energies of top management in the OIG were heavily devoted to staving off draconian budget cuts rather than focusing exclusively on the OIG’s oversight function. At one time, the OIG was threatened with budget cuts that would have resulted in close to a 50% cut in personnel. Although the worst cuts were avoided, the damage to the OIG was severe. The OIG is still dealing with the debilitating effects of that episode.
Restoring Confidence in the FBI through Stronger Oversight
These last several months have been extremely difficult for the FBI and for those who care about public confidence in the FBI. This should include all of us. When it was disclosed just over a month ago that thousands of pages of documents generated in the Oklahoma City bombing investigation had not previously been provided to prosecutors and defense counsel, it was simply the most recent in a string of major embarrassments for the FBI. The failure to produce the documents in the McVeigh case, just days before his scheduled execution, was only the most recent setback for the Bureau, adding to a list that since the beginning of this year alone includes the following: disclosures of the 15-20-year-long espionage activities of Robert Hanssen; the failure to disclose tape recordings in the Birmingham church bombing case to the Alabama state attorney general; and the Boston man wrongfully imprisoned for 30 years because FBI agents were apparently more interested in protecting an informant than freeing an innocent man.
In the past month, we have heard about an FBI that is allegedly out of control, fails to respect the rights of criminal suspects and defendants, and is characterized by a "cowboy culture" more concerned with newspaper headlines than justice. Recent polls have demonstrated that the FBI’s public reputation has been seriously damaged: for example, a Washington Post/ABC poll published shortly after the disclosure relating to the McVeigh documents showed that a bare majority of the American public -- 53% -- said it has a favorable impression of the FBI, down 30 points from six years ago. I think the “out of control” rhetoric and suggestions that the FBI is characterized by a “cowboy culture” are overstated and in any event may not be very helpful in understanding the dimensions of the problems or in arriving at solutions. But the problems cannot be ignored or dismissed.
If there is any unifying theme to these failures, it appears to be a failure of basic supervision, management, and oversight. For example, the McVeigh document debacle seems to have been a combined failure of computer systems and inadequate management attention, at the headquarters and field office level, to the fundamental task of collecting and retrieving investigative materials. The failure to detect and limit the alleged Hanssen spying spree appears to be a combination of inadequate internal controls on access to highly classified information and the failure adequately to screen and monitor FBI personnel. Definitive judgments on these matters, as well as the others, will have to await the investigations now in process, but in the meantime the FBI will have to push ahead and address its various management and organizational challenges.
A. Choice of a New Director
With Director Freeh having announced his intention to resign as Director, and expected to leave office shortly, President Bush has the important task of choosing his successor. President Bush need not – and in my view probably should not – adhere to the recent model of selecting the new director from the federal judiciary. Indeed, the kind of managerial experience and expertise most needed at the FBI is unlikely to be found there. It is of course vital that the next FBI Director, like Judge Webster, be a person whose personal and professional ethics are beyond reproach. But that is not enough to ensure that the FBI Director will be able to address adequately the substantial management and organizational challenges he will face and the critical task of rebuilding the Bureau’s morale, which is at a low ebb.
It is, however, critical that the principle embodied in the selection of federal judges be followed: the selection must avoid even the suggestion of partisanship. The next director should be selected – and the Senate should exercise its advise and consent function – based on whether the nominee has the right mix of law enforcement and managerial experience to handle the complex challenges of the FBI. The FBI does not need a super cop at its helm, nor can it easily absorb someone who has been selected for reasons other than his law enforcement and management credentials. And the nominee needs to understand and accept the legitimacy of external oversight -- both Congressional oversight and executive branch oversight.
Proposal for a Separate FBI IG
There is general agreement that the FBI needs stronger oversight and that the current system of oversight, which places primary responsibility on FBI-OPR, as well as on the Inspections Division of the FBI, has not been adequate. Addressing this problem, two distinguished members of this Committee – Senators Specter and Durbin – have proposed creating a separate IG for the FBI in order to create an institution specifically devoted to FBI oversight. The strength of such a proposal is that it recognizes the problem and suggests an institutional mechanism – presumably backed with the promise of sufficient funding. But I believe that it reaches the wrong institutional conclusion.
Among the problems we have seen in recent years, in my judgment, is an FBI that at times has been only nominally part of the Justice Department. While such a strategy may well have won larger budgets for the FBI, it is fundamentally inconsistent with the appropriate role of the FBI, and counter to its long-term interests. The creation of a separate IG for the FBI that underscores its separateness moves in the wrong direction. For most of our history, concerns about the FBI’s becoming a national police force have been countered by the assurance that it is under the control of the Justice Department and the Attorney General. A separate FBI IG who reports jointly to the FBI Director and the Congress rather than to the Attorney General would undermine the principle that the FBI is a part of the Justice Department.
Second, I doubt the creation of an FBI IG would address the crisis in public confidence that currently affects the FBI. As difficult as it sometimes has been to persuade people that the Justice Department IG is sufficiently independent to perform aggressive oversight over all aspects of the Department, including the FBI, it has earned legitimacy and credibility over the twelve years of its existence with specific pieces of oversight, including the investigations of the FBI described earlier in my testimony. That same legitimacy would be much harder for an FBI IG to claim because it would reside within the FBI and the IG would report to the FBI Director as well as Congress, rather than to the Attorney General. Nor would having the FBI IG report to the Attorney General solve this problem.
Third, the models for the proposal, I believe, are the CIA OIG and the OIG for Tax Administration, which I believe is the only other IG created within an agency where an IG already exists. Both cases are very different from the situation facing Congress in dealing with the FBI and therefore do not constitute a persuasive precedent for creating a separate IG for the FBI. The creation of a statutory IG at the CIA was designed to strengthen the oversight at that agency and give the IG recourse to Congress if CIA management failed to address significant issues. Before the creation of the IG, there was no other independent oversight mechanism, such as exists within the Justice Department’s OIG, to perform such oversight. The non-statutory CIA IG was considered to be without significant clout and was not taken seriously within the Agency.
In the case of the IG for Tax Administration, it was created in an environment in which the Treasury IG had exercised no meaningful oversight over the IRS and shown neither the interest nor the ability to do so. Indeed, to be blunt, the Treasury OIG at that time was a largely dysfunctional agency that had shown little or no ability to carry out its oversight functions over the law enforcement components of the Treasury – Customs, ATF, and the Secret Service – and whose IG was ultimately investigated by the Permanent Subcommittee on Investigations and left office under a cloud.
In short, I do not believe that the experience of either the CIA IG or the Tax Administration IG supports the creation of a separate FBI IG. Moreover, the creation of yet another institutional entity responsible for FBI oversight risks heightening the institutional confusion that already exists over which agencies have what FBI oversight responsibilities. There also would be the practical and logistical difficulties of creating an institution from scratch. Where would the personnel come from? From within the FBI? If so, how can Congress and the public be assured of its independence? If from the outside, it will take months if not years for skilled and experienced personnel equal to the task to be hired. Although I agree with the impulse behind the proposal to create a separate IG for the FBI -- to enhance the level of oversight over the FBI -- I believe the fuller and more prompt realization of its objectives can be achieved through full funding of the Justice Department’s OIG and through the elimination of the current restrictions on its ability to perform oversight over the FBI.
Strengthening the Justice Department OIG
As I mentioned earlier, the Justice Department Inspector General may not at his own initiative conduct investigations of misconduct among personnel at the FBI without the permission of the Attorney General or the Deputy General. I am aware of no similar limitation that exists for any other Inspector General. This means that FBI – arguably the most powerful agency in the federal government – is currently subject to less oversight than any other agency. A bill in the House to change that system in 1997 – following the OIG’s FBI Laboratory and Ames reports – died, and Attorney General Reno would not change the situation herself. Although I have explained the genesis of the limitation on the OIG’s jurisdiction, it makes no sense any longer, assuming it ever did.
There are no reasonable grounds for concern that lifting the existing jurisdictional limitation will cause the Justice OIG to insert itself into sensitive intelligence and law enforcement matters, thus interfering with the ability of the FBI to carry out its critical law enforcement and counterintelligence responsibilities. The IG Act already gives the Attorney General the authority to block and IG investigation or audit if he determines that the activity will interfere with an important function or activity. To my knowledge that provision has been used only once – when Attorney General Reno and I had an honest disagreement about the relative importance of the OIG’s CIA-crack cocaine report and an ongoing narcotics investigation which she felt would be impaired if the report had been publicly released immediately upon completion. Accordingly, the mechanism exists to block the OIG from taking specific actions but there is accountability built into the system: the Attorney General’s action must be the subject of a notification to Congress.
The more important issue is ensuring that the Justice OIG has the resources necessary to do its job. Authority without the resources is a ticket to frustration and failure. The OIG never possessed the resources necessary to meet its responsibilities during my tenure and its current condition is far worse after the substantial cutbacks over the past three years, during which its staffing levels dropped more than 20% during a period in which the Department’s growth continued to be vigorous. Congress obviously has the power – and should seize the opportunity – to remedy this serious deficiency. It is time for the members to restore the strength of an agency weakened in an arbitrary and irrational way.
D. Opening the FBI to Outside Influences
In the process of doing the FBI Laboratory investigation, we learned that the FBI had long resisted opening itself to the entity responsible for accrediting crime laboratories throughout North America. In discussing this with the forensic scientists who were members of the investigative team, I learned that this was par for the course – that in the exchanges between personnel from the FBI Lab and from other labs, the FBI was there to impart knowledge and wisdom rather than to receive it.
That attitude – some describe it as institutional arrogance – has deprived the FBI of the benefits and lessons to be gained from mutual exchanges with other law enforcement agencies and other large and complex organizations. The backwardness of the FBI’s computer system and record keeping practices, now so painfully highlighted in the McVeigh case, is at least in part the product of resisting the advances in technology that swept through the rest of the organizational world some time ago. Although mutual exchanges with other institutions may not generally be regarded as a form of oversight, the FBI can benefit immeasurably from opening itself to outside influences of various kinds. This will help the FBI to overcome its debilitating insularity and embrace the outside world in a constructive manner.
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That concludes my prepared testimony. I am happy to answer any questions
you may have at this time.
Testimony Before the Committee on the Judiciary, United States Senate
United States General Accounting Office
GAO
For Release on Delivery Expected at 1:00 p.m. Wednesday, June 20, 2001
GAO’S WORK AT THE FBI
Access to Data, Documents, and Personnel
Statement of Norman J. Rabkin,
Managing Director,
Tax Administration and Justice Issues
Background
I am pleased to be here today to discuss our recent experiences with the Federal Bureau of Investigation (FBI) related to access to the data, documents, and personnel that we have requested in doing our audit work for the Congress. Concern about access to records and people at the FBI is not a new topic for us. Indeed, in July 1991 we testified on access problems that we had at the Justice Department, most of which involved the FBI. Although Congress has not asked us to do a significant body of work at the FBI, we believe that there are many areas where we can make a contribution to improving the agency’s activities and its management of them. Let me start by outlining our statutory right of access to agency records, including those at the FBI, and follow with some examples from our recent experience. Most of these examples are related to specific access problems. I also want to note some positive experiences as well, because although not the norm, we want to present a fair picture.
In summary, the Congress has given us broad authority to access the FBI’s data, documents, and personnel in order to conduct our audits, evaluations, and investigations. This is the same authority we rely on to perform our work at all federal agencies. While things go smoothly on occasion, on many other occasions our access at the FBI has been difficult, resulting in us having to follow cumbersome procedures to meet with Bureau officials and get basic information about their programs and activities. We have had access issues in a number of agencies over the years. However, across law enforcement-related agencies, FBI access issues have been the most sustained and intractable.
Over the past 5 years, we have issued about 50 products that include information related to the FBI’s operations and activities. In only about 10 cases, however, has the FBI been the focus of this work. For example, our report on the National Infrastructure Protection Center (NIPC), located within the FBI, describes its progress in developing national capabilities for an alyzing cyber threats and vulnerability data and issuing warnings, enhancing its capabilities for responding to cyber attacks, and establishing information-sharing relationships with government and private-sector entities.1 More often, our work includes the FBI as one of multiple agencies that are the subject of a given review. For example, last year we reviewed security protection for agency officials and the FBI was but one of 30 agencies that we covered.
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1 NIPC was established in 1998 as an outgrowth of the FBI’s Computer Investigations and Infrastructure Assessment Center and is located in the FBI’s Counterterrorism Division. The NIPC director and most of the analysts are FBI staff. Other staff are detailees from other federal agencies and from international partners such as Canada.
When we initiate work with federal agencies we formally notify key officials about the planned review and meet with them to discuss the objectives of our work. At that meeting we try to determine which agency officials we should interview and what documents or data the agency has that may pertain to our work. At the FBI (and at other agencies), a designated liaison acts as our contact for arranging meetings and access to documents. With few exceptions, we work through the FBI liaison rather than contacting FBI officials directly. In the course of our work across almost all federal agencies, we routinely receive large amounts of inform ation, some of it highly sensitive. We are careful to guard the security of this information in a manner that meets or exceeds the safety standards established by the source agencies. We have an excellent record in relation to safeguarding sensitive and classified information.
GAO’s Statutory Access Authority
We have broad statutory right of access to agency records in order to conduct audits and evaluations. Under 31 U.S.C. 716(a), federal agencies are required to give us “information…about the duties, powers, activities, organization, and financial transactions of the agency.” This statute applies to federal agencies, including those performing law enforcement functions (such as the FBI), and does not exempt law enforcement information from our access authority. If agencies do not make this information available in a reasonable time, we have the authority to demand access. We do this by sending the head of the agency a letter stating our authority and our reasons for needing the information. The agency has 20 days to respond, after which the Comptroller General may file a report with the President, the Director of the Office of Management and Budget (OMB), the head of the agency, and the Congress. If the agency still has not granted us access within another 20 days, the Comptroller General can bring suit in federal district court unless (a) the records relate to activities the President has designated as foreign intelligence or counter-intelligence activities, (b) the records are specifically exempt from disclosure by statute, or (c) the President or the OMB Director certifies that the information being requested is covered by one of two exemptions listed in the Freedom of Information Act (FOIA),2 and that disclosure reasonably could be expected to impair substantially the operations of the government. (See 31 U.S.C. 716(d).)
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2 The two relevant FOIA exemptions are exemptions 5 and 7. Exemption 5 (contained in 5 U.S.C. 552(b)(5)) exempts from public disclosure inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. Exemption 7 (contained in 5 U.S.C. 552(b)(7)) exempts from public disclosure records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings; (B) would deprive a person of a right to a fair trial or an impartial adjudication; (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy; (D) could reasonably be expected to disclose the identity of a confidential source…; (E) would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or (F) could reasonably be expected to endanger the life or physical safety of any individual.
In the past, we issued a demand letter to the FBI requiring it to provide us with information in accordance with our statutory authority. In that instance the FBI ultimately complied with our request. However, the use of our statutory enforcement authorities can be adversarial and time-consuming. We prefer to work out arrangements that will serve us well in all our work with the FBI and, therefore, enable us to respond promptly and completely to congressional requests.
In that spirit, in March 2000 we met with FBI officials to discuss numerous specific access issues and to try to work out more efficient arrangements to complete our work. At that meeting, and in a subsequent letter from the Assistant Director of the FBI’s Office of Public and Congressional Affairs, the FBI pledged to do a better job in providing us access to records and people. As you will see from the recent examples cited in this testimony, our access problems have not been resolved.
Multiple Types of Access Problems With the FBI
The types of recent access problems fall into several categories and sometimes overlap. One of our greatest problems is delay. This relates to both receiving documents that we have requested and arranging meetings with FBI officials. We have experienced significant delay in an engagement we are just finishing — a review requested by Senator Fred Thompson when he was the chairman of the Senate Governmental Affairs C ommittee. The focus of that review is the FBI’s coordination of foreign counterintelligence investigations, where criminal violations are implicated, with other components within the Justice Department, most notably the Criminal Division. Although this is a very sensitive subject, our work focused on coordination policies and procedures and the FBI’s adherence to them, not on the decisions regarding the investigations or the intelligence they produced. A work log maintained for this job indicates that 112 days elapsed from when a written list of questions was delivered to the FBI to the delivery of its response.3 During this almost 4-month period, we contacted the FBI at least 15 times to inquire about the status of the response.
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3 Due to our experience on FBI reviews, we have urged our staff to keep detailed records of their requests for data or meetings, the FBI’s responses to those requests, and subsequent contacts when the agency does not respond in a timely manner.
In another case, we experienced delays in receiving documentation for our work requested by Rep. Christopher Shays, Chairman of the House Government Reform Subcommittee on National Security, Veterans’ Affairs, and International Relations, and Rep. Ike Skelton, Ranking Minority Member of the House Committee on Armed Services. The request concerned coordination between the FBI and several other federal agencies. The issue again was very sensitive, and the report was classified. Beginning in May 1999, we had asked the FBI to produce documents showing administrative guidance it had issued on these activities, the process by which these activities were approved, the timing and duration of specific activities, and evidence of interagency coordination. FBI officials told us they would locate and gather the documents for us. In December 1999, after senior GAO executives intervened, the FBI provided us a minimal and incomplete summary – not copies of original documents. In February 2000 — 9 months after our initial request – FBI officials told us they had no documentation or other records on the activities.
In other examples, we experienced delays in receiving documents related to our work on reports entitled, Gun Control: Implementation of the National Instant Criminal Background Check System and Combating Terrorism: Federal Agencies’ Efforts to Implement National Policy and Strategy, among others. Needless to say, these delays affected our ability to do our work efficiently and adversely affected our ability to provide timely information and advice to the Congress by postponing the issuance of our reports.
Setting up meetings with FBI officials can also be a lengthy process. While the FBI has told us that its goal is to organize meetings within 2 weeks, elapsed time from meeting request to actual meeting for 3 of the 4 meetings on a current job took 35 days, 41 days and 124 days. In the last case, when the meeting finally took place, the FBI sent substitutes for the official who was originally expected to attend the meeting. In these cases and in many more, the failure of the then FBI liaison and the liaison’s superiors to return telephone calls concerning the status of our request added to our frustration and inefficiency.
Another problem relates to the quality of documentation the FBI provides. In our recent work related to the NIPC, requested by Senator Jon Kyl, then Chairman, and Senator Dianne Feinstein, then Ranking Member, of the Subcommittee on Technology, Terrorism, and Government Information, we encountered numerous occasions in which the FBI was only able to provide us with unsigned and undated printouts of documents we requested rather than final signed versions. Another case related to our work that resulted in the classified report mentioned earlier. The FBI sent us an “unofficial” document without letterhead, signature, date, or cover letter. This presents problems for ensuring that the information represents the official position of the agency and when the position became effective.
FBI officials in some cases have not been forthcoming with the types of details that would provide a richer picture of the issues we are auditing. In the case of our NIPC work, the FBI gave us a great deal of detailed information, much of which reflected favorably on its program, after receiving a draft of our report. Had this information been provided earlier -when we originally asked for it - we could have done a more efficient job in conducting our audit work and drafting our initial report.
While infrequent, in some cases the FBI has denied us access to the information we have requested. For the most part, the information requested has been no more sensitive than information we routinely receive from other agencies during our work. For example, for our work related to federal teams that respond to chemical, biological, radiological, and nuclear terrorist incidents (requested by Rep. Ike Skelton, the Ranking Minority Member of the House Armed Services Conclusions Committee), the FBI refused to provide us with information on the missions, budget, and resources of its response teams. The FBI said that providing the information to us would jeopardize the teams’ operational security, even though the information was unclassified.
Although we could have acted to enforce our request for this information through the statutory mechanisms described earlier, we decided to drop the FBI from the scope of our review. We needed to provide our client a composite picture of all federal agencies involved in this effort (we reported on 8 such agencies) and did not want to delay our report waiting for information from one agency.
No Access Problems in Some Recent Reviews
We have had some assignments involving the FBI in which access was not problematic. For a review of federal funding of the Los Angeles, Atlanta, and Salt Lake City Olympic Games, for example, a request for information about the types of projects and activities the FBI was funding was answered in a timely and cooperative manner. Similarly, information for a review of computer security expenditures was provided with only minimal delays. Finally, although there were some delays in scheduling meetings and gaining access to documents, work on improving counterterrorism operations was not significantly delayed because other tasks could be completed while waiting for the requested information. Our staff on this assignment did not consider access a problem.
Although our examples of reviews that encountered access problems span a large number of assignments, in these assignments as well there are examples of good cooperation in providing information. The team working on the NIPC engagement, for example, found that field agents provided detailed and useful information when they were interviewed and that access improved during our review. We also note that for one meeting on our current foreign counterintelligence coordination assignment, a meeting was held the day after it was requested.
While over time we have experienced access-to-records problems at different federal agencies, our experience at the FBI is by far our most contentious among law enforcement agencies. The FBI’s reluctance to consistently honor our statutory rights of access has forced us to expend significant energy and resources. The FBI has also limited our ability to respond to our clients – congressional committees and individual Members of Congress – in a timely and efficient way. We recognize that the FBI’s responsibility to investigate criminal activity carries with it a set of imperatives that limits its discretion to disseminate certain types of information, to protect the rights of the accused and the integrity of the investigative process. We believe, however, that these imperatives do not exempt the FBI from congressional oversight. The FBI can and should provide a much wider range of information about its activities to the Congress and to us.
A partially informed Congress cannot provide adequate oversight, balance competing interests fairly, resolve issues effectively, or deliberate soundly.
Mr. Chairman, this concludes my prepared statement. I would be pleased to answer any questions you may have.