[Senate Hearing 106-1049]
[From the U.S. Government Publishing Office]
S. Hrg. 106-1049
REPORT OF THE COMMISSION ON THE ADVANCEMENT OF FEDERAL LAW ENFORCEMENT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
FEBRUARY 3, 2000
__________
Serial No. J-106-63
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
------
Subcommittee on Criminal Justice Oversight
STROM THURMOND, South Carolina, Chairman
MIKE DeWINE, Ohio CHARLES E. SCHUMER, New York
JOHN ASHCROFT, Missouri JOSEPH R. BIDEN, Jr., Delaware
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama PATRICK J. LEAHY, Vermont
Garry Malphrus, Chief Counsel
Glen Shor, Legislative Assistant
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Thurmond, Hon. Strom, U.S. Senator from the State of South
Carolina....................................................... 1
Schumer, Hon. Charles E., U.S. Senator from the State of New York 3
Sessions, Hon. Jeff, U.S. Senator form the State of Alabama...... 5
CHRONOLOGICAL LIST OF WITNESSES
Panel consisting of Hon. William H. Webster, Former Director,
Federal Bureau of Investigation, and Chairman, Commission on
the Advancement of Federal Law Enforcement; Donald C. Dahlin,
Professor, Department of Political Science, University of South
Dakota, and Member, Commission on the Advancement of Federal
Law Enforcement; Robert M. Stewart, Chief, State Law
Enforcement Division, State of South Carolina, and Member,
Commission of the Advancement of Federal Law Enforcement;
Gilbert G. Gallegos, National President, Fraternal Order of
Police, and Member, Commission on the Advancement of Federal
Law Enforcement; and Robert E. Sanders, Former Assistant
Director of Criminal Investigations, Bureau of Alcohol, Tobacco
and Firearms, and Member, Commission on the Advancement of
Federal Law Enforcement........................................ 7
ALPHABETICAL LIST AND MATERIAL SUBMITTED
Dahlin, Donald C.:
Prepared Statement........................................... 10
Gallegos, Gilbert G.:
Prepared Statement........................................... 15
Sanders, Robert E.:
Prepared Statement........................................... 16
Stewart, Robert M.:
Prepared Statement........................................... 12
Webster, William H.:
Prepared Statement........................................... 7
APPENDIX
Questions and Answers
Responses of the Commission to Questions from Senator Leahy...... 39
Additional Submissions for the Record
Hatch, Hon. Orrin, U.S. Senator from the State of Utah, prepared
statement...................................................... 35
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont,
prepared statement............................................. 35
Commission on the Advancement of Federal Law Enforcement, article 49
President's Council on Integrity and Efficiency, letter and
attachments.................................................... 62
REPORT OF THE COMMISSION ON THE ADVANCEMENT OF FEDERAL LAW ENFORCEMENT
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THURSDAY, FEBRUARY 3, 2000
U.S. Senate,
Subcommittee on Criminal Justice Oversight,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:07 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Strom
Thurmond (chairman of the subcommittee) presiding.
Also present: Senators Sessions and Schumer.
OPENING STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM
THE STATE OF SOUTH CAROLINA
Senator Thurmond. The subcommittee will come to order.
I am pleased to hold this hearing today regarding the
report of the Commission for the Advancement of Federal Law
Enforcement.
The Commission was created as part of the Antiterrorism and
Effective Death Penalty Act to take a hard look at Federal law
enforcement and see how it could be improved at the dawn of the
new century. The Commission was given a broad mandate to review
all aspects of law enforcement, from interagency duplication
and coordination to the threat of terrorism.
Generally, the Congress reacts to crime on an ad hoc basis,
responding to the crisis of the moment. We created this
Commission to stand back and take a broad perspective and a
comprehensive examination.
We appointed a fine, respected group of Commissioners to
undertake this daunting task. Some have experience in Federal
law enforcement agencies, including the FBI and ATF. Others
have experience fighting crime on the State and local level.
Their hard work for the past 2 years has resulted in a 220-
page report entitled ``Law Enforcement in a New Century and a
Changing World.'' We are here today to discuss their findings
and recommendations. Some are bold and thought-provoking, while
others are just common sense. The Congress and the
Administration should carefully examine these recommendations.
The Report challenges Federal law enforcement to better
prepare for the increasing threat of terrorism and computer-
related crime. At the same time, we must make certain that all
financial and white collar crime is a top priority for the New
Century. After all, money is the motive for most crime. We must
make certain that any effort to increase the Attorney General's
authority does not reduce the importance of other law
enforcement missions.
Also, the Report found that Federal law enforcement differs
considerably in its recruitment, training, and even policies.
Further, some of the more far-reaching suggestions, such as
merging the DEA and ATF enforcement into the FBI, have been
made before, and concerns were raised at that time. I have some
personal reservations about this approach, but will certainly
keep an open mind.
The Report also has reached some encouraging results,
including that Federal officers are dedicated professionals and
that the American public is not fundamentally distrustful of
law enforcement.
I have always believed that the American people have the
right to expect that the Federal Government's resources are
used in the most efficient way possible in fighting crime. We
should make every effort to limit duplication and turf battles,
and promote open lines of communication and a cooperative
spirit. Moreover, we should also expect Federal law enforcement
to cooperate with State and local law enforcement. There is
more than enough crime to go around.
At the same time, we must recognize that we expect more
from Federal law enforcement than ever before. Its size,
jurisdiction, and responsibilities continue to grow. Some
growth is justified, such as the expanded role of the FBI to
fight counterterrorism. Some is less justified, such as the
federalization of many, many crimes. Indeed, when we have
reviewed Federal prosecutions in this Administration under
various criminal laws, we have seen that many of these Federal
crimes are simply not prosecuted on the Federal level.
I appreciate the Commissioners taking the time to be with
us today to discuss their report and I look forward to their
testimony.
Our first witness today is the Honorable William H.
Webster, the Chairman of the Commission. Judge Webster served
as U.S. Attorney in the Eastern District of Missouri before
becoming a Federal judge for the Eastern District of Missouri
and the U.S. Court of Appeals for the Eighth Circuit. Judge
Webster resigned from the bench to become Director of the
Federal Bureau of Investigation, and later became Director of
the Central Intelligence Agency. Judge Webster received a
bachelor's degree from Amherst College and a juris doctor
degree from Washington University Law School. In 1991, he was
awarded the Presidential Medal of Freedom.
Our second witness is Robert M. Stewart, Chief of the South
Carolina Law Enforcement Division. He started his law
enforcement career at age 17 as a cadet with the Cheraw Police
Department. He joined SLED in 1975, was promoted to Deputy
Director in 1987, and became Chief of SLED in 1988. Chief
Stewart has a bachelor's degree and a master's degree in public
administration from the University of South Carolina and is a
graduate of the FBI National Academy. We are especially pleased
to have him with us. His lovely wife, Nicoletta, is in the
audience and we welcome her.
Our third witness is Professor Donald C. Dahlin, Vice
President for Academic Affairs at the University of South
Dakota. Professor Dahlin received his bachelor's degree from
Carroll College, in Wisconsin, and his Ph.D. from Claremont
Graduate School in California. He has written extensively on
criminal justice and police science.
Our fourth witness is Gilbert Gallegos, National President
of the Fraternal Order of Police, which is the largest law
enforcement labor organization in the United States. Mr.
Gallegos has a degree in criminology from the University of
Albuquerque and is a graduate of the FBI National Academy.
Prior to becoming FOP National President, he served for 25
years in the Albuquerque Police Department, retiring with the
rank of Deputy Chief of Police.
Our final witness is Robert E. Sanders, an attorney and
retired agent with the Bureau of Alcohol, Tobacco and Firearms.
While with the ATF, Mr. Sanders served as Special Agent in
Charge of Chicago Regional Investigations and as Assistant
Director for Criminal Investigations. Mr. Sanders is a graduate
of the University of Miami and holds a juris doctor from the
Northern Illinois School of Law.
I ask that the witnesses please limit your opening
statements to no more than 5 minutes, and we will start with
Judge Webster and proceed down the line.
I will now turn to our ranking member, Senator Schumer, for
his opening remarks.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman, and I very much
appreciate your leadership on this committee and your holding
this important hearing. I also want to thank the Commission for
its hard work and its report, and thank you, Commissioners, for
being here today to help let us know of your work.
I have had an opportunity to quickly read through the
report, and I also saw some coverage of the report in the
newspapers. Some of the recommendations, for example, to
combine ATF with DEA and have both report to DOJ, are not
necessarily new. Some are very new, and all deserve careful
consideration, coming from such careful study and such a
distinguished group.
I would like to just make a few points about this report
and its recommendations. First, over the past 7 years the
murder rate in America is down, the burglary rate is down, the
auto theft rate is down, the number of rapes are down, the
number of violent assaults are down, gun crime is down, and the
juvenile crime rate is down. And, may I add, the rates are not
just down; they are thankfully precipitously down. Crime has
plummeted in every region of the country; it has plummeted in
every State in the country, and crime is down in every large
city in the country.
So my first point is that these crime trends do not
indicate a need, in my judgment, for major restructuring of law
enforcement. I am not saying that we should rest on our laurels
or that there is no room for improvement, but I do believe that
the plummeting crime rate indicates that structurally law
enforcement is doing quite well.
My second point is about the ATF. I think the ATF is the
most maligned Federal law enforcement operation in the country.
They are in the cross-hairs of the NRA and in the cross-hairs
of some of the most extreme people in America. If you want to
point a finger about why we are not able to reduce gun violence
further, I would not point the finger at the ATF. I would point
to some of the rules that this Congress and ones before it put
in that tie the hands of the ATF; for instance, the law that we
wrote that made it nearly impossible for the ATF to crack down
on illegal gun-runners or on illicit federally-licensed gun
dealers. And we make it even extremely difficult to trace a gun
once it is recovered in a crime. Those aren't the rules of the
ATF. Those are rules that were passed in this or previous
Congresses.
Example: the ATF is allowed only one unannounced visit to a
federally-licensed firearms dealer each year. So conducting a
sting operation on a gun dealer whom we may believe is
violating the law and intentionally supplying guns to criminals
is out of the question. Can you imagine if we did the same with
other law enforcement agencies, that the FBI or a local police
department could only do one unauthorized visit to a potential
crime site a year? We would be scratching our heads in
amazement, and yet the law says that about the ATF and FFL's.
How about this: the penalty for illegally selling guns on
the black market is mild in comparison to selling drugs, so law
enforcement has little incentive to go after gun-runners.
Because the penalty is so mild, they are back doing it again.
And because of the McClure-Volkmer Act of 1986, gun traces
rely on technology that was literally developed in the 19th
century, namely telephone and paper records. That is why half
of the gun trace attempts come up empty, can't use computers.
Can you imagine another portion of America or law enforcement
saying you can't use--we would put in a law saying you can't
use computers? Yet, we do it here. The number of ATF agents has
basically remained static since 1980. So even if our laws were
more reasonable, the number of field agents to keep an eye on
104,000 licensed gun dealers alone is insufficient.
So in the place, I guess, where I am reserving most of my
fire, I think the restructuring of ATF is a little
bitmisplaced, at least as long as these laws are on the books. And I
would say once again, Mr. Chairman, that we could make even a bigger
dent in gun crime if we simply allowed the ATF to conduct stings,
allocate more field agents, and make gun-running a more serious crime
with stiffer penalties. I don't see how anyone could oppose this.
And I am not talking about licensing or closing the gun
show loophole or banning Internet gun sales. These are measures
that I support, but these are for the political debate in the
Congress. I am sure there will be quite a bit of disagreement
on some of those measures. I am talking about measures that
give law enforcement a reasonable chance at stopping illegal
gun trafficking in a way that would have no impact on anyone
who by law has the right to own or buy a gun.
Finally, I want to commend the Commission for its strong
focus on the problem of cyber terrorism and cyber crime.
Cyberspace really is a new frontier of criminal activity and
therefore of fighting crime. Unfortunately, I am starting to
sense some legislative stasis on this issue in Congress. We are
talking a lot about the program and studying its magnitude and
potential repercussions, but for the moment at least we are not
doing what we should do legislatively.
There are things we can do. For one thing, our criminal
procedure laws are not well adapted to deal with computer
crime. We can tweak those laws to facilitate the apprehension
and prosecution of computer terrorists. I think such
legislation would clearly be bipartisan and I hope it is
something we can get done this year.
Once again, Mr. Chairman, I want to thank you for your
leadership and for having this hearing. I thank the
commissioners for their hard work and for being here for the
report. I will be submitting my questions to the panel so they
can answer later in writing.
Thank you, Mr. Chairman.
Senator Thurmond. Thank you, Senator Schumer.
The able Senator from Alabama, Senator Sessions, do you
have an opening statement?
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Well, thank you, Mr. Chairman. I was a
little behind the curve on this report and I saw that there is
mention or thought of merging the BATF and the FBI. And I
remember when I was U.S. attorney and I thought it might be a
good idea to merge the DEA and the ATF, and I wrote then
Associate Attorney General Rudy Giuliani and suggested that.
I was later talking with somebody in the Department of
Justice and he said, you can't do that, that will never work. I
said why? He said because it is DOJ, Department of Justice, and
Treasury, two different Cabinet agencies; you will never merge
them. He said you can't even merge DEA and FBI.
Well, I don't know if that is true or not, but that is the
mentality of this town that we don't take agencies from one
Cabinet department to another. And it does suggest to me that
maybe we can overcome that. Maybe there is a time for us to
consider improving the efficiencies in law enforcement.
In Mobile, AL, Mr. Chairman, there is an ATF office, there
is an FBI office, there is a DEA office, a U.S. Customs office,
an Immigration office, and a Border Patrol office. All of them
have the same copy machines, supervisors, bureaucrats, and
different paperwork reporting systems that one won't merge with
the other.
So to say that we can't make some progress in improving the
productivity of Federal law enforcement, I think, is an error.
We need to be careful about it. A lot of people think our
freedoms are better protected with a bunch of inefficient
agencies rather than one big good one, but I am not inclined to
believe that we can't improve that.
With regard to the ATF, Mr. Chairman--and I'm sorry Senator
Schumer has left--I really believe there has been a big-time
change in policy. A lot of that policy is unhealthy, a belief
that somehow if you target legitimate gun dealers that that is
somehow going to stop crime. We had hearings in this very
committee not long ago regarding Project Exile in Richmond,
which is very similar to the project that I ran as a Federal
prosecutor in Mobile, AL, for several years, in which you
target criminals who are using guns.
Under the tough Federal guidelines, they are sentenced
under the Speedy Trial Act, as Judge Webster knows, within 70
days. If they are already out on bail on another crime, they
are denied bail and tried promptly within 70 days, and they
have mandatory sentences, if they are caught, and removed from
the community. And Richmond found that they had a 40-percent
reduction in the murder rate in the city by implementing that
policy.
What has happened with ATF is that they are going off
chasing these mythical big gun dealers that are putting all the
guns out on the streets. And we all know, I think, in law
enforcement they come from any number of sources that get on
the streets. There is not one mythical supply of guns. And they
said, we are not working those little cases. Attorney General
Reno said we want to work the big gun cases.
Well, Richmond proved that if you prosecute those criminals
who are using guns steadfastly and the word is out on the
street, violence goes down. And there are people not alive
today who have been murdered because this administration has
refused to prosecute the laws that this Congress has given
them. And I have raised it with them each of the 3 years I have
been here. I have raised this very issue.
We have charts showing a 40-percent decline in prosecution
of gun cases since the Clinton administration took office, and
it is dramatic and it has cost lives in America, while we
define somebody who cares about ending violence by whether or
not they want to pass some more laws on innocent, law-abiding
citizens who believe they have a second amendment right to bear
arms. I believe they do, too.
So I think there is some room to question the policy that
ATF is using, and some real basis to question the policy of the
Department of Justice. Properly carried out, with the resources
they have, I believe we could do much more right this minute in
fighting gun violence. And I spent 15 years as a Federal
prosecutor. I prosecuted personally probably 100 gun cases, and
so I think I have some experience in what we are talking about.
Mr. Chairman, thank you for your leadership. Thank you for
your leadership in developing the Federal Criminal Code that we
have today, which is, in my opinion, probably superior to any
State criminal code that is in existence. And you were the
leader in making that happen and I am glad that you are having
this hearing.
Senator Thurmond. Thank you very much.
Now, before calling on Judge Webster, I just want to
compliment him for the various positions in which he has
served, and served so efficiently and capably and dedicatedly.
We appreciate you. Now, we will hear from you.
PANEL CONSISTING OF HON. WILLIAM H. WEBSTER, FORMER DIRECTOR,
FEDERAL BUREAU OF INVESTIGATION, AND CHAIRMAN, COMMISSION ON
THE ADVANCEMENT OF FEDERAL LAW ENFORCEMENT; DONALD C. DAHLIN,
PROFESSOR, DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF SOUTH
DAKOTA, AND MEMBER, COMMISSION ON THE ADVANCEMENT OF FEDERAL
LAW ENFORCEMENT; ROBERT M. STEWART, CHIEF, STATE LAW
ENFORCEMENT DIVISION, STATE OF SOUTH CAROLINA, AND MEMBER,
COMMISSION ON THE ADVANCEMENT OF FEDERAL LAW ENFORCEMENT;
GILBERT G. GALLEGOS, NATIONAL PRESIDENT, FRATERNAL ORDER OF
POLICE, AND MEMBER, COMMISSION ON THE ADVANCEMENT OF FEDERAL
LAW ENFORCEMENT; AND ROBERT E. SANDERS, FORMER ASSISTANT
DIRECTOR OF CRIMINAL INVESTIGATIONS, BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS, AND MEMBER, COMMISSION ON THE ADVANCEMENT OF
FEDERAL LAW ENFORCEMENT
STATEMENT OF WILLIAM H. WEBSTER
Mr. Webster. Thank you very much, Mr. Chairman, not only
for those remarks, but for the privilege of being here with the
other members of the Commission to report to you and to
entertain your questions on any aspect of the report.
I have a brief oral statement to make, and I will not be
able, nor do I think you would want me to cover all of the
points in this extensive report. But with your permission, I
would like to enter the full report in the record. With your
permission, I would enter the full report in the record so that
I can address my remarks to some key points. Is that
acceptable?
Senator Thurmond. Yes.
[The report referred to is retained in committee files.]
Mr. Webster. Mr. Chairman, you have introduced the other
distinguished members of the panel. I would just like to say at
the beginning what an extraordinary privilege and pleasure it
has been for me to work with them. They bring a wide range of
law enforcement experience to bear on these problems, and we
ended up with a report with more unanimity and consensus than
most of the things that I have been privileged to work on in
the past. They are here to answer your questions, as well.
We are reporting on our work under Section 806 of the
Antiterrorism and Effective Death Penalty Act of 1996. It has
been a 2-year project. A good many things have happened
particularly in the terrorism arena that I could talk about,
but will not in the interest of time. They are all reflected in
the report.
Just over the Christmas holidays and the New Year, we saw a
number of incidents that would give the American people
substantial concern. And, of course, their concern was
heightened by the fear of what might happen under the Y2K
situation, not only the unintended consequences of not being
prepared for Y2K, which we were, thank goodness, but also the
possibility of intended consequences by terrorists and others
hiding behind the general concern about Y2K. And we were able
to get by that successfully, as I believe we will get by most
of the events in the future.
But they are out there. The risks and probabilities of our
experiencing terrorist events of major proportions continue to
grow. We know, of course, all of those high-visibility
situations. Some we have dealt with with extreme success,
others not so successful. But I think the one in Oklahoma is
probably the best example I can think of, of firm, effective,
prompt law enforcement and law enforcement cooperation which
resulted in the apprehension of those responsible and their
ultimate conviction.
We have made a number of suggestions. You gave us a very
broad mandate, some 10 specific areas in which to study. And
we, as I said, worked hard for 2 years trying to come up with
our views, answers to questions, and suggestions for the
Congress and the executive branch on how to look at the future
and deal with it, at the same time maintaining, as the chairman
pointed out, our capabilities in law enforcement to deal with
the problems of white collar crime and other problems that are
not new to this century but may find new methods of expression,
such as cyber crime, for example, and intrusions into
electronic computers, money transfers, and so forth.
We have made some suggestions that Members here today have
made reference to, particularly the suggestions for ATF and DEA
being incorporated as law enforcement functions in the FBI, and
regulatory functions being retained in their respective
departments.
I would like to say to the Members that these suggestions
have indeed been made before, but I think there is an increased
urgency that they be considered in the light of how the
existing Federal law enforcement framework is going to cope
with the vastly increased problems of global crime, terrorism,
cyber terrorism, and cyber warfare. It calls for a look at the
structure of our system and to see what kinds of logical
improvements could be made.
It is not an effort to aggrandize one agency over another,
but to bring their respective talents together so that there
would be less redundancy, less overlap, less confusion, and
more effective results. These we commend to your consideration
for whatever action you might take on these and other
recommendations that we have made with respect to structure.
We have also been concerned, of course, about the new kinds
of crime, and we discuss those in the report. And we go on
record as expressing our concern about federalism of crime,
federalizing of crime. We understand that when Congress sees
something that is wrong in the country and wants to do
something about it, particularly with respect to
criminalization, declaring that certain acts are criminal, they
haven't many opportunities or alternatives except to make
something a Federal crime.
In many cases, we believe that State and local law
enforcement is far better equipped, and that too much
federalization dilutes rather than increases the effectiveness
of Federal law enforcement. We talk about that more extensively
in this report. Those are the key issues. Now, if I could just
work backwards as quickly as I can to some of those, let me
summarize our findings. We find they are troubling, but the
recommendations, we think, are positive.
We find that global crime, cyber crime, and terrorism are
becoming serious threats. We have serious concerns about the
readiness of the Federal Government to protect Americans and
the national security unless steps are taken promptly.
Much of the current structure of Federal law enforcement is
based on problems of the past, not crime challenges of the
future. We had a period of Prohibition, we had an agency, we
still have an agency to deal with Prohibition. That is not
necessarily the best way to approach the problem.
Third, coordination of and cooperation among Federal, State
and local law enforcement agencies are not all that we wish
they could be or believe that they can be. As we point out in
our report, Mr. Chairman, we conclude that Federal law
enforcement agencies are among the finest in the world, and
that most Americans share that view. We do point out the
vulnerabilities of our system which grew like topsy in no
particular order and has today a system of authorities and
overlapping responsibilities that make us more vulnerable at a
time when we have other serious crises that occur.
I experienced that when I reviewed the actions of the
various authorities during the riots in Los Angeles. I have
seen that in a number of other cases where the public has not
been satisfied with Federal performance, and it usually has
something to do with overlapping and competitive efforts.
So what do we recommend? We recommend that based on these
conclusions, you consider a five-part action agenda which we
submit. We believe that it is important for Congress and the
President to, one--and I am giving you five now--one, make it
clear that the Attorney General has broad coordinating
authority for Federal law enforcement and minimizing overlap
and duplication.
The President and Congress should improve the
administration of Federal law enforcement and its effectiveness
by making that clear. There is and has been for 30 years on the
books an executive order at the time of President Johnson
giving the Attorney General that authority. Subsequently,
Congress limited the authority ofthe Attorney General and
others to restructure without its approval, and there were good reasons
for that.
Now, our conclusion here is that the groundwork has been
laid. We would like to have the Congress and executive branch
implement the executive order that has been ignored for most of
30 years, make the Attorney General, like the Director of
Central Intelligence, the director of central law enforcement
so that the Attorney General can make sure that these problems
of coordination and redundancy are effectively dealt with.
Second, provide the intelligence and information needed to
combat terrorism. The law enforcement and intelligence
communities need to review their procedures and policies to
ensure that the President, the Congress, and the National
Security Council have adequate resources to coordinate
activities and to pursue the information that Federal and State
law enforcement agencies vitally need to combat the threat of
terrorism both here and abroad.
This is the third one: make global crime a national law
enforcement priority. The President and Congress should expand
the attack on global crime, on narcotics trafficking and cyber
crime with new determination and energy.
Fourth, reverse the trend toward federalization. Congress
and the President should support a new federalization
prevention act to minimize Federal intrusion into State and
local enforcement and reverse the recent trend toward
federalizing crime. I have just discussed the reasons for that
and its impact upon Federal crime as the number of laws on the
books goes from a dozen or so at the time our country was
founded to several thousand now, for which a relatively small,
disorganized Federal law enforcement system is required to
deal.
And, finally, the fifth point: Focus on professionalism,
integrity, and accountability. We believe that there are vast
differences in professionalism and accountability especially
among the Federal agencies, different standards for such things
as use of deadly force, for example. There ought to be one
Federal standard for the use of deadly force. And so we
recommend that the President and Congress should require that
Federal law enforcement agencies establish new standards for
professionalism, integrity, and public accountability that are
standard across the board.
Mr. Chairman, the Nation critically requires a Federal law
enforcement establishment that is ready to meet the crime
problems of the future as well as those that are well underway
today. Our Commission soon goes out of business. As
individuals, we stand ready to help the Congress in any way
that we can. We are prepared to testify at hearings and assist
others in appropriate ways.
It is an honor to appear before you this afternoon, and I
am sure that my other colleagues may have additional comments
to make and we will respond individually or collectively to
your questions as they come.
Thank you.
Senator Thurmond. Judge, thank you very much for your fine
suggestions.
I think we might as well start and go down the line.
Professor Dahlin.
STATEMENT OF DONALD C. DAHLIN
Mr. Dahlin. Thank you, Mr. Chairman. I am very honored to
have had the opportunity to serve on this Commission, and
honored to have the opportunity to testify today before this
subcommittee.
When our Commission came together a little over 2 years ago
now, I must say that I had some question in my mind as to
whether or not we as commissioners would agree on anything,
given the diversity of the appointing authorities and given, as
well, the diversity of our experience. Thus, I think it is
worth highlighting the fact that, in the end, we ended up
agreeing on everything.
And I think that that unanimity is the result, first of
all, of the excellent work of our Chair, Judge Webster, of the
fact that my fellow commissioners have been as hard a working
group as I have ever been associated with. But also I think it
is the product of taking seriously the charges that you gave
us, particularly trying to focus on what are going to be the
law enforcement challenges in the 21st century.
And as Judge Webster has indicated, we see--I don't think
there is any great surprise in this view--that
internationalization, globalization, cyber crime, cyber
terrorism, terrorism in general, are going to loom much larger
in the Federal law enforcement scheme than they have in the
past. And I think it is that vision every bit as much as our
analysis of how Federal law enforcement has operated that has
driven our conclusions and our recommendations.
Thus, when we recommend trying to make some changes in the
organizational structure of Federal law enforcement, that is
being done, I think, not so much because it is a criticism of
the existing performance of Federal law enforcement agencies,
but rather it is the product of seeing that Federal law
enforcement will face new coordination challenges in the
future.
In the past, it has been difficult enough to coordinate
with other Federal law enforcement agencies and State and local
law enforcement agencies. Now, in the future, there will be the
need to coordinate more with the Department of Defense, the
Department of State, with foreign nations, with the
intelligence community. These will be enormous challenges for
Federal law enforcement, and I think it will be very difficult
for Federal law enforcement to meet those challenges given its
current organizational structure. So that is, in part, I think,
at least for me, why those recommendations are so important.
I would also hope, and I am sure this will be the case,
that beyond focusing on the recommendations with respect to ATF
and DEA that the committee members and Congress Membersand the
executive branch will focus as well on the other recommendations, as
Judge Webster has indicated, our recommendations with respect to the
Attorney General. We also make a recommendation about creating a
permanent interagency group to help the Attorney General do a better
job of coordinating Federal law enforcement. And I think almost no
matter what happens, I would hope that recommendation would get
implemented.
We also make a recommendation that suggests looking in an
even more fundamental manner at reorganization than simply
taking the ATF and DEA to look at the possibility of creating
five law enforcement agencies, in effect, in these major
functional areas. And we did not have the time to develop a
specific proposal in that area, but as we talked about the
subject and the needs of Federal law enforcement, we certainly
came to the conclusion that this was an issue worthy of further
examination. We hope that your committee and other Members of
Congress will look at that, as will members of the executive
branch.
I think our recommendations about federalism in large part
also track this major view of the needs of Federal law
enforcement. If we continue to spread Federal law enforcement
efforts in fighting important crimes, but crimes that are
essential State and local in nature, we make it again far less
likely that Federal law enforcement will have the time and the
resources that we think are going to be needed to fight the new
types of crime in this new century.
And, lastly, in the area of professionalism and integrity
and accountability, again it seems to me those tie in with this
basic view as well that given all that is going to need to be
done, the important work that Federal law enforcement has
before it, it becomes all the more important that we ensure
that the officers have the training they need, the policies are
clear, and that they are accountable for the work that they do.
So we hope that, again, even as some of the more
controversial issues get focused on that those other issues
will not--you will not lose sight of them because I think that
they are also extremely important, and I trust somewhat less
controversial.
In conclusion, Mr. Chairman, I would simply note that I
would hope that all of us, as we continue to move toward the
objective that I think we all share of helping to ensure the
finest Federal law enforcement effort that we can, that we will
focus our efforts by looking at the issues that are going to be
before Federal law enforcement in this century and not fight
the battles of yesterday's wars and yesterday's problems.
Thank you, Mr. Chairman.
Senator Thurmond. South Carolina is proud of the good work
that Chief Stewart is doing.
Chief Stewart.
STATEMENT OF ROBERT M. STEWART
Mr. Stewart. Thank you, Senator. We are surely facing
challenging times in the United States, and much change has
affected law enforcement over recent years. Federal, State and
local law enforcement surely play an important role in our
society, and without professional, competent, coordinated law
enforcement at all levels, this country would probably not even
exist. But we must look to the future.
I am speaking to you from front-line experience as Chief of
the State Law Enforcement Division, SLED, which you created as
governor in 1947 yourself. And prior to that, I served 7 years
in the U.S. attorney's office with SLED coordinating State-
Federal investigations. We deal with the Federal agencies
everyday, and they are very good agencies and we make a lot of
progress working together. However, we can do better.
I have concerns with the duplication of effort and mission
of some of the Federal agencies. If you look to our military,
our military is coordinated and defends our Nation from foreign
enemies and basically has five branches. However, the Federal
agencies in this day and time need better coordination and
resources to adequately address the problems of the future.
I would say that there is a growing threat to our country;
there has always been from foreign governments. There is an
increasing growing threat to our Nation from transnational
criminal organizations and terrorists and cyber crime, and
Federal law enforcement is the only one that can deal with
these problems. Therefore, it is going to be more and more
important in the future that they are adequately organized and
have the resources to handle that.
Specifically, in the area of drugs, there are many times
when the FBI and the DEA are working on very similar cases,
have similar jurisdiction. There is much overlapping there. The
extreme would be is we have SLED agents working with most all
the Federal agencies. We even had a drug deal one time. We had
undercover agents working with two Federal agencies, and it
turned out one was in a reverse role and the other was not. And
we had people on both sides of it and the Federal agencies did
not know what was taking place. Fortunately, since we had State
agencies on both sides, before there was a tragedy it was
averted because we recognized what was going on there.
In the area of bombs and guns, between the FBI and the
ATF--and we work closely with both agencies; they are both fine
organizations. But recently during the church fires, especially
in the South, we were very active in those cases and solved
some 70 percent of them in our State, which is like 5 or 6
times the national average. But it iscertainly difficult to
have to deal with two Federal agencies working on the same case. One is
looking at the civil rights aspect, another is looking at the bombing,
explosives aspect, and there is no need for there to be that type of
coordination problem.
And you hear all the arguments about how this won't work
and that won't work. And we haven't recommended a lot of
restructuring. We have recommended some that we think would
greatly help the situation. But, you know, on a much smaller
level, in South Carolina in 1994 this same thing was undertaken
and several agencies were merged into SLED. And we were told
you can't do this and you can't do that; you can't take an
alcohol commission agent and make them a SLED agent. It just
won't work. There are classification problems, there are
qualification problems.
Well, we did it, and over 2 years the ones that couldn't
make it had to either sink or swim and it worked out. And now
when a sheriff or chief of police needs criminal investigative
assistance from the State of South Carolina, whether it is from
DNA in the laboratory, to a gambling operation, to whatever,
they call one place and they only have to deal with one agency
and it makes it a lot simpler.
We are not recommending that on the Federal level, a
national police force. But in the area of the two suggestions
we have made, we do think it would be a much more productive
way to do business. Some of the ways things happen now are just
no way to run a railroad, and we think that it breeds
disorganization and a competition for limited resources that
could best be used if there was one focused effort in that
regard.
Also, street crime assistance is very important and very
helpful, but I would also say we have got to be sure that the
Federal assets aren't stretched so thinly that they can't
adequately address the true national problems that we have
mentioned here today and that will become more and more
problems in the future.
In the area of accreditation, there are two accreditations
available in law enforcement today. The one for laboratories is
by the American Society of Crime Laboratory Directors, or
ASCLD, and the other is from the Commission for Accreditation
of Law Enforcement Agencies, CALEA.
Now, a number of the Federal agencies are now beginning to
come about and be involved in the laboratory accreditation. The
FBI lab in the last year or so has become ASCLD-accredited. I
think the DEA lab is already accredited. That is just an
absolute must in this day and time to assure the public and the
people that the labs are being run correctly and the proper
safety procedures are built in there.
About half of the crime labs in the Nation are accredited,
and surely all the Federal crime labs should be accredited.
There has been some reluctance on Federal agencies' part to get
involved in accreditation. They think it doesn't apply to them,
and I think that is a misconception.
As far as agency-wide accreditation, that was begun by a
Federal grant from a congressional program. Jim Cotter, with
the FBI, was the first director of that commission, and it does
a whole lot to standardize policy and procedure and see to it
that agencies live up to the mandate they have and are run
properly. It also fosters better relationships with local and
State law enforcement, and I think it is something that really
the Federal agencies ought to look at.
I am happy to say that now the U.S. Marshals Service, with
Ms. Reno's blessings, have applied for CALEA national
accreditation. And your own U.S. Capitol Police here have
applied for national accreditation as well, and I would hope
that all Federal agencies would be involved in that program.
Finally, I am concerned with the lack of resources and some
of the administrative controls over some of your smaller
Federal law enforcement agencies. We mentioned like there are
five military branches, basically. Well, we found over 140
Federal law enforcement agencies, which is somewhat mind-
boggling.
But, for example, you have several law enforcement
agencies--not several, a number, that are housed in agencies
that have nothing to do with law enforcement. For instance, you
have the Park Police. I think they are in the Department of the
Interior. Well, when we took testimony, the Park Police was
like 20-percent understaffed. Can you imagine that? They don't
have the equipment and the resources they need.
I mean, you have some crisis at one of these monuments here
in Washington, DC, and the Park Police are 20-percent
understaffed. I hope we don't have to have a crisis for some of
the issues in our report to be addressed, but surely it needs
to be looked at. And there are many times when it takes a
crisis for something to happen, and we surely hope that
everyone will look at this report and give it some serious
thought.
The agencies involved, even the ones we are talking about
restructuring, are fine agencies and we have confidence in
them. I work with them everyday, but there are better ways to
do business and we are going to have to do business in a better
way in this century to keep this country the way that it needs
to be.
If I have one fear about this whole program that we have
put 2 years of our lives into, it would be that nothing comes
of it and then there is some big crisis 3 or 4 or 5 years from
now and we pull this copy down off the shelf of this report and
dust it off and start looking at it. I hope everybody will
really look at it. This is important to the security of the
United States and of all of our people.
I want to thank you, Senator Thurmond, for allowing me to
be a part of this program, and hope to work with you in the
future in improving law enforcement.
Senator Thurmond. Thank you very much.
Mr. Gallegos.
STATEMENT OF GILBERT G. GALLEGOS
Mr. Gallegos. Thank you, Mr. Chairman, and I want to echo
the sentiments of my other commissioners and my colleagues on
this very important study of Federal law enforcement.
Congress really gave us a challenge through the 10
provisions in the Act on how to come up with ideas that would
make Federal law enforcement a little bit more responsive not
only to the American people, but also to other law enforcement
agencies, especially the State and local.
I guess the challenge is really what do you expect of
Federal law enforcement. If we expect to do the same things, or
expect them to do the same things that they have done for the
last 50 years, then you can do like the Chief says and put this
report up on the shelf and put it away and 50 years later open
it up again.
But if we really expect Federal law enforcement to have all
the tools that they need--and they are all fine, fine agencies,
from ATF to FBI to the Capitol Police to the Government
Printing Police to the Park Police. They are all fine agencies,
but quite frankly what we found in our review of these agencies
is they don't have the resources. When the Capitol Police can't
talk over the radio with the Park Police, when the Park Police
can't talk over the radio with the park rangers and they are
all in the same area, it is shocking.
And like the Chief said, if there is a tragic event, as
happened here in the U.S. Capitol, and the agencies can't even
communicate, how do we expect them to do their job? And I think
we found that time and time again, and I think it is
unfortunate that we ran out of time, to be honest with you. We
had 2 years and the time was not there to look at the smaller
agencies, those agencies that are out there day in and day out
that are totally unprotected, that don't have the resources.
We had testimony of some small agencies like in Interior
and others where they don't even have a budget that is
appropriated by Congress. They are just lumped in together with
everybody else, and maybe they are fortunate to be able to draw
some money down. That is why we spoke about that in our report.
Especially in the equipment area, as the Chief said, the Park
Police are 20-percent understaffed.
But we find that in a lot of the smaller agencies where
they don't have the resources, not only the tools, the
technology, but they don't have the people resources to be able
to do the job. So I think that this report has to be taken in
the context that we can do more, and we can do more if we
coordinate our efforts a little bit better.
Another area that I would like to address is the area of
terrorism and the counter-drug initiatives around the country
by Federal officers and by State and local. We had testimony
that there seemed to be a disconnect in the area of dealing
with criminal intelligence where one agency doesn't coordinate
their intelligence efforts with the other agency. They all may
be working drugs or they all may be working one case, but using
the tools, the technology that we have today, we should be able
to do a better job with that.
But we should also be able to do a job in delivering that
information to the State and local agencies across this country
who really have the bulk of the responsibility for enforcement
of the laws of this country. In the criminal intelligence
field, again, it makes it difficult, and we had testimony about
the fact that State and locals don't seem to be able to glean
the same intelligence information as Federal agencies.
In the area of terrorism, we have the same situation. You
ask yourself who is the first public safety officer that
responds to a terrorism act, and every one that we have had in
this country, every major one that I know of, it is either a
State or local police officer or it is a firefighter or an
ambulance driver or search and rescue or something.
Yet, we have been unable to give them the tools and the
information from the Federal level to the State and local level
so that they can be able to better respond to the terrorist
acts that really hurt all of us. So I think it is important
that we really come up with some ideas, and we are proposing in
this report how to do a better job with that.
In the area of public accountability, we did a national
survey, and the results are in the report, of really what the
feelings of the American public were about Federal officers and
the job that they were doing. For the most part, the American
people support the Federal officers just like they support the
State and locals, and we were gratified to hear that. But there
are some areas of concern, and one of them was in
accountability and how a citizen of this country could
challenge an issue or take a complaint to Federal agencies.
There was almost a disconnect there. They didn't feel that they
knew how to do that.
The Attorney General and her staff, as previous Attorneys
General, have been going around the country saying how State
and local agencies have got to be more accountable through the
complaint process on State and local officers. Well, we in this
report issued the same challenge to Federal officers. If the
Department of Justice can insist that State and locals be more
responsive, we feel that Federal officers should also be
responsive.
But in regard to the complaint process and investigation of
officers when there are complaints, legitimate or illegitimate,
we also have to keep in mind that Federal officers also have
the rights of everybody else and that they have due process
rights, which we feel is proper and should continue or should
be made clear that Federal officers should be treated fairly at
all times and be given all the due courtesies that we would
give to anybody else.
So what we thought in this report is we wanted to issue a
report that was thought-provoking, that would challenge and
would make the issues known the way we see them. And as Senator
Sessions said, there are a lot of ``can'ts'' out there. If
there is a will to make Federal law enforcement better, I think
that this report is a start to make it a little bit better for
an already fine group of Federal officers across this country.
Thank you, Mr. Chairman.
Senator Thurmond. Thank you, Mr. Gallegos.
Mr. Sanders.
STATEMENT OF ROBERT E. SANDERS
Mr. Sanders. Thank you, Mr. Chairman, for the opportunity
to appear today before this subcommittee.
Congress, in addition to giving us challenges, gave us the
rare opportunity to be totally objective. We had the ability to
focus on the area of inquiry and to find what is, and we did
that, and then to make recommendations on what should be,
without regard for what might be popular, what could be
politically correct, what might be the term of the day, the
short-term fix.
We looked at jurisdictions, we looked at missions, and we
looked at the policies of the major law enforcement agencies.
We looked at the interrelationships with other Federal agencies
and the relationships with State and local police departments.
We tried to iron out what jurisdictions would be essential and
which would be non-essential to face the challenges of the 21st
century.
In BATF, we found a small agency with disparate missions
which are competing for dominance. One part of ATF is
responsible for the administration of the taxes, for collecting
taxes and regulating the alcohol, beer, wine, and tobacco
industries. The other part of ATF and the part that we focused
on is the responsibility to enforce the Nation's firearms and
explosives laws. I had the honor and privilege to be the chief
of ATF's law enforcement component during my career in Federal
law enforcement, and some of my experiences are reflected in
the report.
Looking at the structure of ATF, the first issue is will
the responsibility for tax collection and regulation of
industries producing luxury items play any role in law
enforcement in the 21st century. The answer is a resounding no.
It did in the 1920's and the 1930's when we had Prohibition and
we had a Federal crime to manufacture or transport or possess
distilled spirits, and even beer.
In the 1940's and 1950's, we had a lesser problem which was
largely regionalized in the southeast region with non-tax-paid
distilled spirits, moonshine whisky in the southeastern part of
the country, which was having a corrosive effect on State and
local governments and law enforcement in general. But these
were wars that were fought in the century past and which are
over. Our mandate was to make recommendations to prepare for
the battles which will be coming up in the 21st century.
The second issue with ATF is do the competing missions
within the same agency have an adverse effect on law
enforcement, and the answer is yes. The Commission analyzed the
study underlying ATF's creation as a bureau, as a separate
bureau, where it was taken from IRS and made a separate bureau
in 1972. We looked at major studies of firearms law enforcement
and its effectiveness, including congressional hearings in 1986
on the Firearm Owners Protection Act. These were major studies.
The consistent finding in all those studies was that the
collection of taxes and the regulation of the industries are
incompatible with the basic mission of firearms and explosives
enforcement, and these duties should be transferred to the IRS,
where they originally were, or somewhere else in Treasury. Vice
President Al Gore performed a similar study, Reinventing
Government, and came to the same conclusions. So the
recommendations of the Commission merely buttress the findings
of earlier studies, and we come back to the question of can we
do something that hasn't been done before.
A few words about the agency cultures, the cultures in one
agency between the two forces, regulation and enforcement. It
is axiomatic that criminals and crime cannot be regulated; they
are not susceptible to regulation. Only the law-abiding will
comply with the law and all the regulations that we care to
write.
This is a Nation that was founded on the principle of the
rule of law. The law enforcement philosophy is simply that the
cause of crime is the criminal, and the arrest and
incarceration of criminals will, one, deter and, two, prevent
crime. And the deterrence and prevention of crime is what it is
all about, a better quality of life for the American people.
There is one tiny speck of society, the criminal element, which
must be the focus of all the efforts of the agency.
On the other hand, the guiding philosophy of the regulator
is that violent criminals can be restricted in their access to
firearms by limiting the accessibility of firearms to the
public. Within ATF, the competing philosophies, it is never all
or nothing; it is somewhere in the middle, and it is time that
we meet at the level of the criminal and focus all the
attention on the criminal.
One anecdotal incident before I leave. During my career in
Federal law enforcement, there was another agency in Treasury
that, as Senator Schumer said, was much maligned, and that was
the Federal Bureau of Narcotics. Over a long period of time,
the Federal Bureau of Narcotics became the Bureau of Narcotics
and Dangerous Drugs, in some obscure department that I don't
even remember, and ultimately came to the Department of
Justice.
And there can be no question about the effect of being in
the Department of Justice and associated with the FBI has had
on DEA, as we know it today. The ability to investigate complex
investigations, the management changes that were effected,
cannot be disputed. We don't hear any calls for the DEA to be
transferred back to Treasury.
That concludes my remarks and I will be happy to answer any
questions.
Senator Thurmond. I have some questions here and I will
proceed with those now.
Do any of you have any further suggestions?
[No response.]
Senator Thurmond. Judge Webster, there was considerable
debate when the Commission was created about whether it would
conduct investigations of specific Federal cases. However, it
appears that you decided against this approach and the
Commission appears to view Federal law enforcement in a
positive light. Is this correct?
Mr. Webster. That is correct, Mr. Chairman.
Senator Thurmond. Judge Webster, most agree that there must
be some separation of law enforcement authority to serve as a
check and balance on power and ensure that the Federal
Government does not develop one national police force. Would
combining ATF and DEA into the FBI bring America too close to a
national police force?
Mr. Webster. Mr. Chairman, the answer is no, and if I may
give my reasons, every member of this Commission unanimously
endorsed that particular recommendation. Every member of this
Commission is emphatically opposed to a national police force.
There are some 11,000 special agents in the FBI. That is
approximately one-third the size of the police force ofNew York
City, and they must operate around the globe. If there were to be an
amalgamation of the resources and the talent in ATF and DEA, that would
only represent an additional 4,000-plus from DEA and some 1,800 from
ATF. It would not materially increase the FBI to the extent that anyone
could arguably say that that group, with, say, 17,000 or 18,000 people
in it, with some 85,000 Federal law enforcement officers, now became a
national police force.
Furthermore, I think the history, the training, and the
close association with the Department of Justice, with direct
reporting to the Attorney General, over the years has made
those in the FBI extremely conscious of their responsibilities
under the rule of law. I cannot imagine that strengthening law
enforcement in this area by putting these three fine
organizations together would threaten a Federal police force or
would damage our concept of what the rule requires of those in
Federal office.
Now, that is a suggestion that we have made. It has been
made before. We felt obliged because of our unanimous agreement
to give it to this committee and to the Congress as our
considered opinion. I can recall 20 years ago when Attorney
General William French Smith came into office and determined to
bring the FBI into drugs. Those in the FBI had been thinking
about it a long time, and I was there as Director. We were
unanimously of the view that drugs had gotten too threatening,
we had seen too much of it in organized crime, and that we had
a role to play. We wanted to play it.
The thought at that time, and the order of the Attorney
General was to have the DEA report through the Director of the
FBI to the Attorney General, thus bringing us that much closer.
I was not in favor 20 years ago of a merger of the two
organizations. I believed that it made sense in the longer
term, but I believed that culturally, structurally, it was
premature to do that. And it was my view, let's make them more
alike, get them a chance to work together--this was the FBI's
first foray into official drug enforcement--and let's see if
over time they won't reach a point where they could come
together successfully.
We moved the DEA into Quantico so that it could receive the
same kind of training that the FBI special agents did. We took
a series of steps to improve the level of coordination and
cooperation. But coordination is a reed that law enforcement
has to lean on, and sometimes it becomes a lean reed.
I was down at Quantico not long ago when one of the special
agents who was very helpful to me retired and I had a chance to
talk to some of the drug enforcement agents down there as well.
A great deal has happened in 20 years, and as we confront the
challenges of the future, particularly with the international
aspects of narcotics and global terrorism and narcoterrorism,
it seems to me that those organizations could work together
better in the same house, utilizing the same laboratories,
utilizing the same indices and all the other combined skills
that would make them more productive.
I can't give you the level of experience I have with DEA
when I talk about ATF, but I can say when I was a U.S. attorney
in 1960, I had tremendous admiration for the men and women in
the Bureau of Narcotics who were struggling against enormous
odds with very few resources, many of them in life-threatening
situations. I can't tell you how many agents I saw walking
around with bullet wounds and bandages, and when they were
finally merged into--some of the process that took them from
Treasury on into the Department, good things happened.
Now, with ATF, there is, to me, a curious situation here.
Agents are asked to, on the one hand, deal with problems of
alcohol, on another problems of guns, and on another problems
of tobacco. There are criminal laws that need to be enforced. I
am not sure why that particular mix makes sense in a world in
which structure is going to become increasingly important. It
does make sense, it seems to me, to leave those regulatory
functions where they are, in Treasury for ATF, and in the
Department of Justice for DEA, and put those law enforcement
capabilities with the FBI and the DEA.
Mr. Chairman, I realize I have given you too long an
answer, but I wanted you to get a sense of why we think not
only does it make sense, but that we are ready to approach this
now. We have extraordinarily talented people. Structurally,
today, it does not make sense to us. We think that a
consolidation can be and should be seriously approached.
Senator Thurmond. Judge Webster, your report calls for a
greater focus on narcotics trafficking, which is the primary
mission of the DEA. However, the report also calls for the DEA
to be made a division of the FBI. Would making the DEA part of
the FBI, which has a wide variety of missions, give the
impression that the Government is putting less emphasis on the
war on drugs?
Mr. Webster. I certainly hope not, Mr. Chairman. I can't
imagine that a structure that brought the FBI and the DEA
together would be anything less than one in which the narcotics
efforts would be one of the major divisions of the FBI, with
its chief reporting directly to the Director of the FBI and
able to bring to bear resources that are not ordinarily
available to DEA without considerable effort and coordination.
So I would think they would be very much in the picture. The
fact that the FBI was totally committed to that exercise
because it had the full responsibility, with DEA, I think would
only argue for a stronger perception of the anti-drug effort in
this country.
Senator Thurmond. The next question is for you and Chief
Stewart. The report notes overlaps between the FBI and DEA
regarding drug cases, and recommends that DEA become part of
the FBI. However, wouldn't it be more efficient to take the
drug mission of the FBI and the accompanying resources and
transfer that mission to the DEA?
Mr. Stewart. Well, clearly it would eliminate the
duplication of effort problem if you were to do that. However,
I don't know that the same amount of resources would be devoted
to the drug problem as would be if the two agencies were
together. You have different components of agencies; for
instance, something as minor as polygraphs, intelligence-
gathering, support units for major operations, major raids, all
of this type thing.
If someone were to suggest, for example, that an agency
such as SLED on a State level were to take its narcotics unit
and turn it into another separate State agency, I think we
would be laughed out of the State. Or if a major city police
department was going to take its narcotics unit and turn it
into a whole separate agency in the city, I think it might not
make any sense to do it on that level. I don't know why it
makes any sense to do it on a Federal level.
I think, if anything, there would be more resources
available. With the FBI's involvement in tracking organized
crime and transnational drug organizations, there would surely
be a duplication of effort there. Now, to take drugs totally
away from the FBI would eliminate that, but I think you would
have a better focus and a more total concept of drug
enforcement to have it within one shot.
Mr. Webster. Mr. Chairman, I agree with everything that
Chief Stewart has said, so I won't try to repeat it. I would
simply again refer to the fact for the Chair that perhaps an
even more important recommendation, a broader recommendation on
structure is to make the Attorney General responsible for law
enforcement in this country.
I believe that the Attorney General's relationship to the
FBI over the years puts it in a better position to receive
these resources rather than to begin to break up their own
resources otherwise directed to different kinds of organized
crime and different kinds of terrorism simply to preserve the
identity of an agency that could be very much alive and well
inside the FBI.
Senator Thurmond. Mr. Sanders, concerns have been raised in
recent years about the decline in gun prosecutions and in gun
case referrals to the Department of Justice from ATF. Do you
believe that putting ATF enforcement into the FBI would make it
more likely that gun prosecutions will increase?
Mr. Sanders. The statistics that I have read in public
documents, Mr. Chairman, indicate that the production has
greatly decreased, the number of prosecutions of firearms
cases. I think the first stage is to separate the regulatory
part of ATF from the enforcement side so that there is a clear
law enforcement mission and it is not eroded by the regulatory
impact.
Following that, you would have a stand-alone agency within
Treasury which would be responsible for only the enforcement of
the firearms and explosives laws. There is no regulation which
goes with the firearms and explosives laws. There is a small
licensing component, but no regulation, no fines, no
suspension. It is all pure law enforcement. So I think that
wherever that organization is, whether it remain in Treasury or
be removed to the FBI, would be a concentrated law enforcement
agency which would increase production.
Senator Thurmond. Senator Sessions, take charge. I will be
back in just a minute.
Senator Sessions. Thank you, Senator Thurmond.
Well, I think that was not a bad question, Mr. Sanders, and
the question is if we merge ATF into the FBI, routine run-of-
the-mill, bread-and-butter gun cases that, in my view, actually
reduce violent crime--are they going to go up or down?
Mr. Sanders. The essence of the statute, Senator Sessions,
is the simple one-gun cases against bad people. That is how the
statute should be enforced.
Senator Sessions. That is what the thing was all about.
Mr. Sanders. Yes, sir.
Senator Sessions. And it works, in my view.
Mr. Sanders. It does work.
Senator Sessions. Some of my best friends are ATF agents. I
don't go fishing unless I go with an ATF agent.
They have great relations with local law enforcement as a
rule, don't they, Mr. Gallegos?
Mr. Gallegos. That is correct, sir.
Senator Sessions. Judge Webster, you have seen this system
from a couple of different angles, and first let me tell you
how much I appreciate your once again taking a lead in law
enforcement. You have on several occasions stepped up to the
plate at critical times in this country's history and provided
leadership and integrity and guidance that has been very
valuable.
As I look over your recommendations, I can't dismiss any of
those recommendations. I think they are worthwhile, and any of
us who care about making this system better needs to be dealing
with those very issues. And I am sort of playing around right
now, asking a few questions about it.
Mr. Webster. Thank you, sir.
Senator Sessions. But I think you have really clarified our
thinking and got us focused on some things that are long
overdue in being done. It strikes me that we do have too many
agencies and there is too much competition among those
agencies. Did you have occasion to look at the two gun-tracing
programs that the FBI and the ATF both developed simultaneously
and, in your opinion, is that an example of unwise competition
and wasting of taxpayers' money?
Mr. Webster. Well, it is potentially exactly that kind of
example. I don't pretend expertise on it, but anytime two
organizations are going after the same result, you have a
number of questions on how transferable, how usable will it be
in other agencies, or is it just designed to fit the machinery
inside one agency.
There are arguments that we used to make in the
intelligence world about competitive analysis, but it is a
different thing when you are trying to produce something that
will serve all of law enforcement and you have two people going
off in potentially different ways and different approaches. And
the rest of law enforcement, State and local, have to wait and
guess which one they can properly plug into.
Senator Sessions. Mr. Sanders, would you comment on that?
Mr. Sanders. Yes, Senator. Both systems were well-
intentioned and their purpose was to assist State and local law
enforcement. We heard testimony from the labs, from the State
and local labs that not only was it not providing the
assistance, but they were forced to duplicate their efforts and
service both systems because they didn't know which system
would end up on top.
Senator Sessions. And the FBI and DEA were both----
Mr. Sanders. FBI and ATF.
Senator Sessions [continuing]. ATF--were like salesmen
trying to sell their systems, arguing why theirs was better
than the other?
Mr. Sanders. If you were to describe it, you would just say
it can't happen here; that can't happen.
Mr. Webster. I would put in another plug for enhancing the
authority of the Attorney General. The Attorney General could
step in in a situation like that.
Senator Sessions. Well, Judge Webster, now you raised a
question. How long is the tenure of the FBI Director now?
Mr. Webster. Not more than 10 years.
Senator Sessions. Not more than 10 years. They are
senatorially confirmed, and for a lot of reasons people want--
and you served in that office--an independent FBI Director. The
Attorney General basically serves at the pleasure of the
President, and the FBI is jealous of their prerogatives.
How could we move to giving the Attorney General more
coordinative power, realistically? How can we make that a
reality? I think that ought to be done.
Mr. Webster. Well, it is a combination of an executive
order supplemented by congressional concurrence, as I
understand the current law that restricts any restructuring and
requires congressional concurrence. The lead could come either
from the Congress or from the executive branch if they were
sympathetic to the recommendations.
I was looking for the list of recommendations that we made
with respect to the Attorney General. Here it is; I have it on
pages 108-109. The answer to your question is just what I think
I said, although not as artfully: Strengthen Executive Order
11396 which is already on the books, updating it through
presidential or congressional action, if necessary, to reflect
new global and national realities, and reissue it to ensure the
Attorney General becomes the focal point of the Federal
Government.
Senator Sessions. So let me interrupt you now. Here, we
have gone through a process, and I was troubled by it and not
too certain we did the right thing. We have eliminated the
independent counsel.
Mr. Webster. Yes.
Senator Sessions. So that leaves all Federal law
enforcement under the control of the Attorney General. Would
you agree? Well, no.
Mr. Webster. No. That is the problem.
Senator Sessions. I guess you have got Secret Service and
ATF and other departments.
Mr. Webster. That is right, different departments.
Senator Sessions. But the prosecutorial authority is under
the Attorney General, the ultimate prosecutorial authority.
Mr. Webster. Yes, that is right.
Senator Sessions. I am troubled by the fact that the
Attorney General is the personal appointee of the President,
serves at the pleasure of the President, and may be called upon
to investigate matters that would be embarrassing to, or even
criminally implicate the President or high executive officials.
We have no independent counsel now, and so would you agree
that we need not, at least under those circumstances, undermine
the independence of the FBI? That at least is one agency with
some additional independence in this process.
Mr. Webster. I certainly agree with you, Senator. I don't
believe that our suggestion was intended, nor do any of the 15-
or-so specific recommendations that are contained on page 109
of the report lead us in that direction. The FBI has often been
criticized for not acting responsive enough. In point of fact,
the FBI reports through the Attorney General and not otherwise,
and it has jealously guarded its independence from the White
House in terms of taking specific tasking on criminal cases, or
not taking specific tasking.
It does have to pass muster with the Department of Justice
and the Attorney General. I don't know of any alternative to
that, but the role that is defined here is not dissimilar from
that of the Director of the Central Intelligence as to all of
the other intelligence agencies in the community. It is more
than a den chief role, but it does not destroy their
independence. It talks about things as developing and
implementing objectives and guidance for law enforcement, and
formulating and implementing policies and procedures regarding
law enforcement.
It does not anywhere in here suggest that she should
arbitrarily decide to foreclose an investigation that is
otherwise authorized under existing guidelines of the Attorney
General himself or herself. I am reminded of a previous
Attorney General some years back who was greatly loved and
independent to the extent that he said, the President is
entitled to my best opinion; the President canfire me, but he
may not change my opinion. And I think that people felt that that is
the way it would be.
We had a different Attorney General who resigned on matters
of principle. And as long as we have principled Attorneys
General who are reminded either by Senators or others of that
responsibility, I don't fear for the Republic. I fear for the
Republic if our Federal law enforcement system goes off in all
directions and no one, including the Attorney General, has the
authority to pull it together and make it go and work in
harness.
Senator Sessions. Well, you have an opportunity to fix
responsibility with somebody, and it is a rather bizarre
circumstance we have today. And I listed a lot of agencies, big
agencies; one is the U.S. Marshals Service. That is a growing
agency and, in my view, has less to do than it did 10 years ago
in some ways and is probably bigger and higher-paid.
The taxpayers are entitled to the finest production that we
can get for them. There is no doubt in my mind that as years go
by, certain agents become more productive and certain agents
become less productive. We need to figure a way to get more
resources to those who produce and a way to get rid of some of
those who don't produce. I have seen that as just blatantly
clear.
The idea that if you took the law enforcement from ATF--I
won't go into that proposal. Let me ask you this. I have
thought there is sort of a harmonious cultural relationship
between the Secret Service and the FBI. They were trying to
give the Secret Service more financial responsibility, more
money laundering responsibility. The Secret Service protective
duties could easily be a special responsibility of agents
within the FBI, and all agents could be available to assist on
big days when something special is happening.
Have you given any thought to a consolidation of the Secret
Service?
Mr. Webster. We did give thought to it, and within the time
frame that we had we couldn't debate out all the issues. But
there was really no support from within the Commission for
consolidating those. They have mostly separate functions and
they have worked well together in the past. In the white collar
crime area, particularly bank-related crimes, the Secret
Service has the expertise and has performed well, and that
keeps them busy when the protective issues are not on the front
burner. So there is a kind of good working back and forth in
those two skill areas. That has never really been a problem
between the two agencies, but where you do have, as you do with
DEA and FBI, concurrent, not staggered but concurrent
responsibility, it is ripe for unnecessary trouble.
Senator Sessions. Is there any concurrent Secret Service
and FBI jurisdiction over financial matters?
Mr. Sanders. There is some, Senator, but they don't seem to
be running into each other and conflicting.
Senator Sessions. Well, they don't, but they are doing
basically the same thing. They are working with banks and
credit card companies and people who are defrauding all over
the country and things like that. I am not sure that they
really wouldn't perform better as one unit.
Mr. Gallegos.
Mr. Gallegos. Mr. Chairman, Senator Sessions, one of the
areas that we did discuss, and Chief Stewart alluded to it, was
in the laboratories. What we found was a tremendous amount of
duplication of effort, or capabilities, I would say--not
effort, but capabilities within the labs. The Secret Service
has a document lab, the Immigration people have a lab, the FBI
has a lab. They are all fine labs, but they all do document
work.
Senator Sessions. We always wanted the Postal fingerprint
guy, though.
Mr. Gallegos. And the Postal people. Everybody has a lab,
and that could be an area where there could be more joint
effort there rather than having a lot of separate bureaucracies
and separate efforts by the various agencies.
Senator Sessions. That is a good suggestion.
Mr. Gallegos. But in regard to either joining or
duplication of effort, we did talk about those specific issues.
Senator Sessions. I would just ask you one thing. Do you
believe that backups over work in labs on drugs and other
laboratory matters in State and local police departments are
adversely affecting law enforcement? That could be an
appropriate role for the Federal Government to help support
State and local laboratories.
Mr. Gallegos. Mr. Chairman, Senator Sessions, I think there
could be more effort--and I am not saying that they don't; the
DEA has a lab and the FBI has a lab.
Senator Sessions. I am talking about like your State drug
cases. In Alabama, I see a report that our laboratories' drug
analysis is backed way up, therefore delaying the commencement
of drug prosecutions. If the Federal Government wanted to help
State and local law enforcement, based on your experience,
would that be a way to help them?
Mr. Gallegos. I think it would be an excellent way to help.
The other thing, though, when we heard testimony from the State
labs was really the evolving capabilities and expertise in the
State labs. In some respects, the States don't need the Federal
agencies anymore. In other respects, they do.
Senator Sessions. I understand that.
Mr. Gallegos. So I think there has to be kind of a tradeoff
of effort and coordination of effort.
Mr. Stewart. I think you are familiar with the National
Forensic Act that a number of State directors have come to you
and Senator Thurmond, as well, about and is now under
consideration here. I can tell you there is not a greater
service that the Congress could provide to State and local law
enforcement than to help our forensic science laboratories. We
are desperate for help.
Senator Sessions. Now, that is a big statement you just
made, and my instinct tells me the very same thing. When you
have to wait 90 days before you can commence a cocaine case
because the State lab is so overworked they can't get the
report back, then that has really fouled up your legal system.
Sometimes, it is a lot longer than 90 days.
Is that what we are referring to?
Mr. Stewart. Absolutely, and not only drugs, but in other
areas as well. Drugs is one of the primary problems we have
right now, drugs, toxicology, and some other areas. It is
really a serious problem, and I don't think there is a greater
thing that Congress could do.
You have got to understand 95 percent of all the forensic
science work done in this country is done in a State or local
crime lab. It is not done in a Federal lab. They are putting
100,000 new police officers on the streets of the United
States. The evidence they seize that goes to a laboratory is
going to State and local laboratories. So the Federal
Government is putting all these new officers on the street, but
the State labs are not getting the assistance that we need to
keep up with that new volume, or the old volume as far as that
goes.
Mr. Dahlin. I wanted to return to your earlier question on
the Secret Service. We did have a proposal by one of the people
who testified saying we ought to create a Cabinet-level
department of law enforcement, bring it all together. And we
rejected that because we have a concern that the Members have
that we do not want a national police force.
But I would invite your attention and members of the
committee and others to the recommendation that is on pages 110
and 111, where we are suggesting that in the longer term it may
make sense to create a unit that would be responsible
principally for financial and regulatory enforcement that would
bring together folks from the Secret Service and the Customs
Service and IRS enforcement to really concentrate our efforts
in that area. And so in not recommending bringing the Secret
Service into the FBI, we are not suggesting that we are perfect
in that area. We would like to offer this other option for your
consideration as well.
Senator Sessions. Mr. Chairman, thank you.
Senator Thurmond. Chief Stewart, the report recommends that
Federal agencies be required to regularly undergo accreditation
by outside agencies. Based on your experience with
accreditation on the State level, do you think accreditation is
important for Federal law enforcement?
Mr. Stewart. Yes, sir, I do, and you are talking about a
number of issues here. You are talking about the integrity of
law enforcement, you are talking about professionalism, you are
talking about standardization and uniform policies and
procedures that every law enforcement agency, no matter whether
it is Federal, State or local--no matter what the level, they
should live up to these standards.
There is a lot of time and effort that has been expended to
come up with these standards. As I said, it was created by a
Federal grant from Congress. A lot of time and effort has been
put into creating this. There is a commission that is made up
of law enforcement officials and academics from different
levels that meets and comes up with these standards. And then
an inspection team comes out and inspects the organization to
see to it that all these standards are met.
I can't think of anything the Federal agencies could do to
encourage public confidence and relationships with State and
local law enforcement, improve those relationships, than the
national accreditation program. As I have said, a number of
Federal agencies are now in the lab accreditation program with
ASCLD, and the Marshals Service and the U.S. Capitol Police are
now involved in aspiring to obtain this accreditation from
CALEA. I don't see a downside.
Some Federal agencies say, well, it doesn't apply to us.
Well, SLED is a criminal investigative agency with a criminal
justice information center, computerized, and a forensic
science laboratory which is accredited. But we don't do street
patrol or many normal police functions. Yet, we are nationally
accredited. We have the two accreditations that are possible
for us to attain. So it can apply to criminal investigative
agencies, and does.
Most of the Southeast State criminal investigative
agencies--Florida, South Carolina, Georgia, North Carolina,
Tennessee--are all nationally accredited, the State criminal
investigative agencies. It is one thing, if nothing else, that
the Southeast is clearly a leader in and we are proud of that
and hope that the Federal agencies will become more involved.
Senator Thurmond. Judge Webster, one of your conclusions is
that the Attorney General should have broad authority to
coordinate law enforcement matters. If the Attorney General's
role becomes greater, are you concerned that non-DOJ agencies
might be at a disadvantage in terms of resource allocations and
jurisdictional conflicts?
Mr. Webster. I am not concerned, Mr. Chairman, but I can't
say that there isn't some possibility of that. However, the
kinds of authorities that we outline on page 108 and 109, and
indeed part of 110 of our report are not the kinds of things
that are designed to make the other agencies less important or
less effective. Quite the reverse.
My experience as Director of Central Intelligence, under
which I had some of these kinds of authorities to deal with the
other members of the intelligence community, such as DIA, NSA,
INR at the State Department, the military intelligence services
and others, made it more likely that the community as a whole
would be aware of and supportive of the role of these other
agencies. They were not subsumed at all, and it would be my
hope and expectation that that would be the same result with
these recommendations.
Senator Thurmond. Judge Webster, in the report's discussion
regarding law enforcement priorities for the new century, you
note terrorism and narcotics trafficking. Do you think that
white collar crime, such as money laundering, is an increasing
problem that deserves top attention in the new century?
Mr. Webster. I absolutely do. Some of those problems, as we
see them, for the future involve the globalization of crime,
most of which involves, as I think the chairman pointed out
earlier, money. Crime is always about money, except for a few
crimes of passion that we are not involved in jurisdictionally.
As Russian mafia groups form alliances with American La
Cosa Nostra and Sicilian mafia and other places around the
world, as we have already seen, we have enormous schemes, high-
stake financial things, all in the rubric of white collar
crime. Some of it moves into the terrorism field by definition,
but most of it has to do with stealing, and increasingly
stealing by means of electronics, the computer, and so forth.
So I don't think white collar crime is going to go away. It is
very much a part of the 21st century and needs to be addressed
with some of the suggestions we have made here.
Senator Thurmond. Chief Stewart, your report has many
meaningful findings. For example, it explains that practically
every Federal agency of any size has its own separate police
force. There appears to be no good reason for 150-or-so
separate police forces. How do you believe they could be
consolidated?
Mr. Stewart. Unfortunately, we didn't have the time to go
into a study of that in great detail other than to identify the
problem. We do note, though, that there are several law
enforcement agencies in small areas even right here on Capitol
Hill maybe even employed by Congress that could possibly be
somewhat easily merged, and at this point may not even be able
to talk to each other on the radio, we are told.
However, we were hoping that the board that we suggest be
put together from amongst the law enforcement agencies in the
Federal Government working with the Attorney General would put
great study into that. I know within the Department of the
Interior and the Department of Agriculture there are a number
of small agencies that at least within their own agencies could
be combined.
But one of the biggest things that Gil Gallegos spoke to
earlier is attention is not given to these law enforcement
agencies. They don't have the manpower, they don't have the
equipment to do the jobs that they are expected to do. Here
again, it is something I think national accreditation might
play a large role in. If the agencies were submitted to the
process of national accreditation, you could find out where the
shortcomings were and see what actions could be taken. But,
clearly, the law enforcement agencies within a Cabinet agency,
the uniformed ones, could be better coordinated and possibly
some mergers in there where it is appropriate, and we would
hope that that would be done.
Senator Thurmond. Judge Webster, one of the report's
creative recommendations regards the federalization of crime as
a serious problem. Your report suggests that a law enforcement
impact statement be written to accompany legislation that would
create new Federal crimes, similar to budget impact statements.
Please explain how a law enforcement impact statement might
discourage the Congress from creating new Federal crimes.
Mr. Webster. I would be happy to try. This suggestion in
one form or another has been made in successive years by such
people as the late Chief Justice Warren Burger, who was
concerned that every time Congress, in its desire to be helpful
to meet a problem, passed a law making particular conduct a
Federal crime even though it was already a crime in all of the
States of the Union. It added to the burden of the whole
justice system. It requires more investigators, it requires
more prosecutors, it makes a larger caseload for the trial
courts and the courts of appeals.
The hope, just as it was with the environmental impact
statement, was that when someone came forward with the idea--I
am being facetious now--that anyone who uses a handgun with his
left hand has somehow committed a Federal crime using any kind
of pretext to invoke Federal jurisdiction, they may be creating
a series of problems for the justice system.
Accordingly, the advocates of that type of legislation
really ought to be required to take a look at what that is
going to cost in human available personnel, cost in judicial
resources, prosecutorial resources, and then let the Congress,
with that information, make a judgment whether it is worth the
candle to pass duplicate legislation of what is already on the
books at the State and local level.
Senator Thurmond. Judge Webster, regarding the
federalization of crime, you also recommend that new Federal
crimes have a 5-year sunset provision. Please explain why you
think this is important.
Mr. Webster. It is part of our view that measures have to
be taken to curtail the expansion of the Federal arm into the
criminal justice system, and that things go on the books and
they stay there forever. There were about 12, I am told, maybe
less, on the books when our Constitution was adopted. There are
over 3,000 laws that criminalize conduct under Federal
jurisdiction today.
So if a new one is proposed, we think it would be healthy
to have a sunset provision so that the Congress would have to
take another look. Maybe we have the wrong number of years, but
we suggested 5 so that the Congress, in order to save that
legislation down the road, would have to decide it was a good
thing. Otherwise, it would automatically expire if Congress
didn't think enough of it to renew it.
Senator Thurmond. Senator Sessions.
Senator Sessions. When I was U.S. attorney, I wanted a U.S.
attorney's impact statement. I think we even passed a
resolution of the U.S. attorneys that that be done.
With regard to the firearms, the real impact of Federal
firearms prosecutions is on the prison system, and it does not,
in my view, require large amounts of increases in prosecutors
or ATF agents. If I ran both those agencies, you could have a
50-percent increase in prosecutions without any increase in
personnel within 6 months. It is just a question of where you
set your priorities.
But if you do a lot of the gun cases which traditionally
were street-type crime cases that this Congress and this
President have made a high priority--if you do that, you do put
some people in jail and you do have to build some Federal jail
space. That is an impact statement that really needs to be
considered in the process.
Gil, you mentioned the people who will first respond to a
terrorist act, your colleagues and sheriffs' deputies and fire
departments. Do you believe it is a fit role for the Federal
Government to help train those people on how toreact to the
various threats that they may face?
Mr. Gallegos. Absolutely, Mr. Chairman, Senator Sessions.
In our report, we also recommend that the Attorney General
establish an interagency training board that would look at
various training requirements. One of the requirements that we
are recommending is that there will also be State and local
training experts that would have the ability to provide input,
and the reason is so that they would be able to better mesh the
idea of law enforcement training and how that carries on to the
States and the cities on how to better respond to terrorism or
some other crime. So we felt that it was important enough that
there should be a consolidated effort to do that, and through
training and through this board they could really get to the
meat of what is needed out in the field.
Senator Sessions. Mr. Chairman, I would just mention that
Fort McClellan, which was the Army's chemical weapons school in
Alabama, is now beginning a program to train first responders.
They have a waiting list of applicants and they have utilized
their faculty from previous times and their chemical training
facilities and all to do that. And it has been very well
received, but we have put very little money in that in terms of
how we are spending on counterterrorism. It is chicken feed,
really, and I was disappointed this year that there wasn't an
increase.
I think it will have to go up in the future because the
true fact is that it is our police and fire people who are
going to be there first and if they don't recognize anthrax or
some poison gas, they are going to die and citizens are going
to die. We can help them be prepared for that, I believe.
Judge Webster, on federalism, that is a very legitimate
issue. I am sure all of you have discussed that and you have
wrestled with it. I think it is appropriate, perhaps unwise on
occasion, for the Federal Government to recognize certain areas
that represent threats to the peace and dignity of the Nation
and to emphasize it. We did it with drugs. We made a major
step; we made concurrent jurisdiction with drugs, and we have
done it with firearms. Arguments could be made that both of
those are Federal Government coopting cases that should be
State cases.
My general view is if we have good ATF agents and good
prosecutors who have time to prosecute gun cases, they ought to
be prosecuting them as they can in helping fight this problem
in partnership with the State and local police. The way we did
it in Mobile and the way they did it in Richmond was that the
chief of police and the U.S. attorney and the ATF actually have
a little memorandum of understanding on how they are going to
work the cases. And they work together, utilizing the
capabilities of the Federal courts for certain type cases and
State courts for others, and achieve some real results.
But we are prosecuting cases. Federal judges told me, and I
know they have told you, Judge Webster, this is a gun case that
ought to be tried in State court. But unless we change the
laws, I am inclined to think we ought to enforce them and use
the resources we have got for that.
Mr. Webster. Our big problem was not so much with the laws
that are on the books. It was just simply randomly enacting new
laws because the Federal Government just sort of wanted to get
in, wanted to be helpful. Those determinations that you
describe are conscious judgments that they represented a threat
to our national security and our national well-being, and that
is certainly consistent with the Lincoln Doctrine which we
quote in here that the function of the Federal Government is to
do for the people and the States what they can't do as well for
themselves, or cannot do at all. When they run up to a road
block where they need help, nothing in our report should be
considered as opposing that.
The Nunn-Lugar-Domenici bill is directed at precisely the
kind of training that you were talking about for first-on-scene
people for weapons of mass destruction, and we really badly
need that now, not after the bomb goes off.
Senator Sessions. And we have made some progress in that, I
believe, philosophically, in that the Department of Defense is
giving that up to the Department of Justice because they are
troubled by military training and being deeply involved in
domestic response efforts of the cities and counties. I think
that is probably more healthy.
Professor Dahlin, do you have anything to add to this
discussion? It might be good to have a professorial view.
Mr. Dahlin. You give a professor a chance and, of course, I
have something to add. I guess I would make two or three
points. First of all, back to the concern about national police
and all of that, I think that the greatest danger to a national
police force is a national criminal code. So if we keep adding
and federalizing more and more common street crimes, someday we
may wake up and look and say, look what we have done.
Second, I think that the recommendations for an impact
statement and for a 5-year review are designed to help Congress
do just what you are suggesting. You make a considered judgment
that indeed this is a national issue. The impact statement
allows that judgment to be ratified before the law is passed,
and the 5-year review allows it to be tested against reality
afterwards.
Finally, I am very concerned, and I think my fellow
commissioners are as well, that what often has been happening
is Congress passed a law, but it doesn't reallyadd enough
personnel even to the law enforcement agency, much less at the
prosecutorial level or the judicial level or the correctional level. So
you have a law that says an agency is supposed to enforce the law and
the reality is they are not, and it seems to me that is a recipe for
public cynicism. Of course, every time you pass a law where there is a
jurisdiction with a State and local agency, you have now multiplied the
number of coordination issues we have got to deal with.
So I think that absolutely, as Judge Webster said, there
will be occasions when it is appropriate in our increasingly
interconnected world for Federal law enforcement to get into
areas that traditionally perhaps it has not. But that ought to
be a much more deliberative, contemplative decision than I
think it is at the present time.
Senator Sessions. Thank you, Mr. Chairman.
Senator Thurmond. Mr. Gallegos, your report recommends that
the law enforcement and intelligence communities review their
procedures and policies to ensure that they have adequate
resources to coordinate activities. There seems to be no all-
encompassing national intelligence architecture in the areas of
terrorism and counter-drug intelligence-gathering.
Do you have any recommendations concerning streamlining the
intelligence coordination among agencies?
Mr. Gallegos. Yes, sir, Mr. Chairman. One of the concerns
that we had was the connectivity questions that come up with
computerized intelligence. We know that the different
agencies--Department of Justice, FBI, DEA, the Secret Service--
everybody has their own component of criminal intelligence
data.
What has been the real obstacle to consolidating that data
is that the agencies either reluctantly have connected some of
it or have just said they are not going to connect it. And we
feel that that has to be a focus so that they are all dealing
with the same information the same way. What has been found is
that the agencies don't have the capabilities or perhaps the
will to exchange that intelligence information.
We also have the creation of the various intelligence
centers, from the EPIC Center in El Paso, which to this day is
very reluctant to give up anything, any kind of information,
especially to State and locals----
Senator Sessions. They might collect it, but they are not
too quick to give it out.
Mr. Gallegos. Absolutely. They take your information, but
it is hard to get your own information out of it. I know that
from personal experience.
But the key is to get these different intelligence centers
to talk to each other and to exchange the information and to be
able to disseminate that information as appropriate. That is
the key, not to have blanket dissemination, but to be able to
disseminate the information based on the need to those
particular agencies, whether they be Federal or State and
local.
That is part of the policy development that has to be
undertaken to ensure that it is easier to disseminate the
information and that all the road blocks are not there. So when
you have an agency that needs the intelligence, they can get it
and they can use it appropriately.
Senator Thurmond. Judge Webster, your report makes
recommendations to greatly change the roles of the inspector
general. You recommend that the offices of inspector general
lose their investigative powers, with investigations apparently
remaining within the agency. According to the results of your
public opinion survey, 78 percent of Americans favor outside
monitors of agencies authorized to report any abuses of power.
Is your recommendation regarding the inspectors general
consistent with public opinion?
Mr. Webster. Mr. Chairman, I am not sure that it is
consistent with public opinion, and I am not sure to what
extent the public has an actual awareness of what the inspector
general does and how that works out with the other agency
responsibilities that have internal policing.
Our concern was that the inspectors general over the
years--and we have had some very good ones in time--tend to
focus more and more of their time on internal policing, that is
law enforcement investigation, rather than their principal
focus to see whether the agency or the department is doing its
job well and whether or not it is using efficient management
procedures and whether people are carrying out their work for
the people of this country in an aggressive and informed way.
I confess a personal bias that I have always thought from
the days when the inspectors general were first created that I
wish they had been called auditors general because that is a
role that the public generally thinks they are doing. They are
monitoring how money is spent and how effective and efficient
the performance is, and that is a very important outside role
and I think it should not be diminished.
But inside the Department of Justice, we have had at any
given time an inspector general, a head of the Office of
Professional Responsibility, and a head of the Office of Public
Integrity. This is bound to create internal tensions and
confusion. And we thought that as long as we were giving you
our best suggestions for the future that we really ought to
examine what an independent inspector general contributes that
is not already being done in the Department.
Senator Thurmond. Now, this question is for all of the
panelists, all of you. The report makes numerous
recommendations in various areas. I ask you this: What do each
of you think is the one recommendation of your report that is
most critical for the Congress to address immediately, and why?
We will start right here.
Mr. Dahlin. Well, if you force me to take one, I guess I
would take the strengthening of the executive order and giving
the Attorney General greater authority because I think that
would be at least a beginning step in helping to pull together
law enforcement in a way that seems critical to me if Federal
law enforcement is to be prepared to work with the problems
that are going to be there in the 21st century.
Mr. Stewart. I would say eliminate the duplication of
effort, duplication of responsibility, which causes
disorganization and waste of resources.
Mr. Webster. It is impossible for me to separate those five
suggestions. There are many, many suggestions, dozens of
suggestions. There are five basic principles that we submitted
to you and they are integral; they can't really be separated.
If we look into the future of law enforcement in this
century and where it is going to take us, we must have a
strong, central, accountable source of leadership, such as
Professor Dahlin emphasized. We must have the intelligence and
the information needed to combat terrorism. We must make global
crime a national priority, and we must, in order to maintain
our effectiveness, reduce the trend toward federalization.
Finally, we must have a focus on professionalism, integrity,
and accountability.
Now, it is up to the Congress how many of the specific
suggestions we have made in our more lengthy report it wishes
to push forward, but I think all five of those principles of
concern need in some way to be addressed.
Mr. Gallegos. Mr. Chairman, I would echo the sentiments of
Professor Dahlin. I think Executive Order 11396 creating the
responsibility for the Attorney General is the biggest step to
really consolidating the efforts and the coordination of
Federal law enforcement.
While I agree with the chairman that the other principles
have to be taken into consideration, I think this would be a
tremendous step to really reducing the duplication of effort
and really consolidating law enforcement as it should be.
Mr. Sanders. Mr. Chairman, I think we are all saying
basically the same thing that the package of recommendations
are intertwined and irretrievably connected, and I would select
all of them.
Senator Thurmond. Senator Sessions, do you have anything
else you want to take up?
Senator Sessions. Well, I was intrigued by the inspector
general recommendation. That is consistent with the long-term
suspicion or feeling I have had that you really need--the best
investigations I have had, Judge Webster, within an agency came
from the FBI. There is pressure on inspectors general to not
embarrass the agency, to get people to resign perhaps and just
go away. I hate to say that, but there is not the intensity of
interest of actually having a case go to trial and have that
deterrence and justice that comes from a public official who
has been mismanaging or stealing. So if we could separate those
roles of auditing from criminal prosecutions, I think we might
be better off, and I share that.
Again, Mr. Chairman, I think this report is very valuable.
We simply have to consider how we can better produce law
enforcement in America at less cost and a better product, to
avoid duplication, counter-productivity, sometimes actual
hostility between agencies, sometimes unbridled competition,
such as over the gun-tracing thing. Those things could be done
better if we had stronger leadership.
It ultimately will come down to having an Attorney General
and high officials who have a passion for producing excellence.
If you give the power to the Attorney General and the Attorney
General is not interested or doesn't even have a Criminal
Division chief for 18 months and is not interested in that and
focused it, then you are not going to get the productivity we
need. Perhaps that is something we need to look at in
confirmations in the future, is will this person try to honor
the taxpayers' money and produce efficient and effective law
enforcement agencies for America.
Mr. Chairman, thank you for holding this. I have enjoyed it
a lot. I respect this panel. I have known most of them for
previous years. The report is of great value, and I think it is
up to us now to wrestle with it and see if we can't improve law
enforcement in America.
Senator Thurmond. Were you the attorney general in Alabama
or a prosecuting attorney?
Senator Sessions. I was U.S. attorney for 12 years and
attorney general for 2.
Senator Thurmond. That experience has been very valuable to
you.
Senator Sessions. Thank you, sir.
Senator Thurmond. Now, before closing, I would like to
place into the record a statement by Senator Hatch, and also a
statement by Senator Leahy.
[The prepared statements of Senators Hatch and Leahy
follow:]
Prepared Statement of Senator Orrin Hatch
Let me welcome the members of the Commission on the Advancement of
Law Enforcement to our hearing this afternoon. I helped established the
Commission in 1996 as part of the Hatch-Dole Anti-terrorism and
Effective Death Penalty Act. I felt then that it was important to have
an experienced panel of experts, from different law enforcement
perspectives--federal, state and local--to examine our federal law
enforcement structure in light of the changing environment of the 21st
century. I feel even more strongly about that now, and I look forward
to reviewing your report in greater detail and working with you as we
explore ways to improve the federal government's role in protecting our
citizens.
I am eager to explore your recommendations for improving
coordination and cooperation with state and local law enforcement
agencies. In addition, it has become increasingly clear to me that
cyber-crime and cyber-terrorism, both foreign and domestic, pose the
most significant new challenge to law enforcement. I strongly agree
that the tools and techniques that carried this nation through the 20th
century will not suffice in the 21st. To that end, the Committee will
closely examine these issues in the coming months to make sure law
enforcement is not outflanked by criminal activity carried out through
our new information technologies.
The Commission's report also makes a number of recommendations for
consolidation, some of which have been suggested before, such as the
recommendation to combine the law enforcement functions of the ATF and
DEA into the Federal Bureau of Investigation. I have long been open to
the idea of consolidating ATF's enforcement functions within the
Justice Department.
In particular, I am eager to do what I can to improve the Clinton
Administration's dismal record of enforcing our firearms laws. In 1994,
Congress passed the Brady law which required background checks for gun
purchases. In December 1998, the National Instant Check System became
operational. As of 1999, more than 250,000 persons who cannot legally
purchase a gun have been prohibited from purchasing a gun because of
these background checks.
Even though it is a federal felony to lie on a background check
application for a gun purchase, the Clinton Administration rarely
prosecutes these cases. Of the more than 250,000 persons who have been
prohibited from buying a gun since 1994, there have reportedly been
less than 200 referrals for prosecution. Just last month, the Denver
Rocky Mountain News revealed that Colorado residents who lie on Brady
background check applications are rarely prosecuted. I hope that the
Justice Department will begin to prosecute Brady violations and will
increase gun prosecutions generally.
While the Administration continually tries to politicize the issue
of crime, I believe we must put public safety ahead of politics. The
American people deserve no less. I thank the distinguished
Commissioners and their staff for all the hard work that has gone into
this report. I and the Committee look forward to working on these
issues.
______
Prepared Statement of Senator Patrick J. Leahy
The Report of the Commission on the Advancement of Federal Law
Enforcement released earlier this week fulfills a congressional mandate
issued as part of the Antiterrorism and Effective Death Penalty Act of
1996. It has taken longer than the original two years anticipated in
that mandate to reach this stage, but the observations and
recommendations of the distinguished members of the Commission are no
less timely. I want to thank each of the Commission members for their
distinguished public service both in the past and in connection with
this report.
No nation is safe enough that it can afford sit back and believe it
is adequately prepared to handle all possible threats to the public's
safety. The United States should continually be updating its law
enforcement resources and reevaluating the organization and goals of
our Federal law enforcement efforts. While we may not all agree about
specific recommendations, the report is an important contribution to
making those ongoing efforts. I would like to comment briefly on three
of the report's recommendations.
First, the report recommends that enforcement of our firearms and
explosives laws currently handled by the Bureau of Alcohol, Tobacco and
Firearms and the enforcement responsibilities of the Drug Enforcement
Administration be transferred to the Federal Bureau of Investigation.
In previous Judiciary Committee hearings on the incidents at the Branch
Davidian compound in Waco, Texas, I have raised real concerns about the
continuation of the Bureau of Alcohol, Tobacco and Firearms.
While I do not believe in change for the sake of change, I will
keep an open mind to the suggestions of the Commission on reorganizing
our Federal law enforcement agencies. Concentrating federal law
enforcement powers not only under the Attorney General but also under
Directors of the Federal Bureau of Investigation, who serve unique ten-
year terms and may not be appointed or accountable to a serving
President, may strike some as putting too much power in the hands of
one person.
Furthermore, the Commission was created by Congress out of concern
over the quality of federal law enforcement agencies in the aftermath
of the tragedies at Ruby Ridge, Idaho, in 1992 and Waco, Texas, in
1993. The conduct and role of the FBI in both those incidents has been
rightly and strongly criticized in independent and congressional
investigations. As the ongoing investigations by Special Counsel John
Danforth and by Senator Specter suggest, the final chapter on the Waco
incident has not yet been written. While the FBI has made important
organizational changes since those two incidents, we should move
cautiously before concentrating additional power in that single law
enforcement agency.
Second, I agree with the Commission's recommendation that we must
focus additional effort on computer-related crimes. On July 1, 1999, I
introduced S. 1314, the Computer Crime Enforcement Act, along with
Senators DeWine and Robb. Our legislation would authorize a Department
of Justice grant program to help States prevent and prosecute computer
crime. Grants under the bill may be used to provide education,
training, and enforcement programs for State and law enforcement
officers and prosecutors in the rapidly growing field of computer
criminal justice.
Computer crime is quickly emerging as one of today's top challenges
for state and local law enforcement officials. All 50 states have now
enacted tough computer crime control laws. These state laws establish a
firm groundwork for electronic commerce, an increasingly important
sector of the nation's economy. Unfortunately, too many state and local
law enforcement agencies are struggling to afford the high cost of
enforcing their state computer crime statutes. Our legislation, the
Computer Crime Enforcement Act, would help address the worsening
threats we face from computer crime.
Technology has ushered in a new age filled with unlimited potential
for good. But the Internet age has also ushered in new challenges for
federal, state and local law enforcement officials. Congress and the
Administration need to work together to meet these new challenges while
preserving the benefits of our new era. The Computer Crime Enforcement
Act is a common sense solution that puts the responsibility of computer
crime law enforcement back in the hands of the States. They are the
ones who should be prosecuting these crimes.
Finally, I agree with the Commission's recommendation that the
Congress should restrain its impulse to federalize more local crime
laws. I spoke on the floor of the Senate on March 2, 1999, about this
issue after the release a year ago this month of the comprehensive
report of the American Bar Association's Task Force on Federalization
of Criminal Law, chaired by former Attorney General Edwin Meese. We
should think carefully before federalizing crimes traditionally handled
by the State and local enforcement authorities. Each time we federalize
a crime, we are essentially telling our State legislatures, our State
law enforcement officials, and our State prosecutors that they are
insignificant.
Every Congress in which I have served--I have served here since
1975--has focused significant attention on crime legislation. No matter
which party controls the White House or either House of Congress, the
opportunity to make our mark on the criminal law has been irresistible.
In fact, more than a quarter of all the Federal criminal provisions
enacted since the Civil War have been enacted since 1980 and more than
40 percent of those laws have been created since 1970.
In fact, at this point the total number is too high to count. The
best that the Meese Task Force could do was estimate the number of
Federal crimes to be over 3,300. Even that does not count the nearly
10,000 Federal regulations authorized by Congress that carry some sort
of sanction.
Federalizing criminal activity already covered by State criminal
laws that are adequately enforced by State and local law enforcement
authorities raises three significant concerns, even if the Federal
enforcement authority is not exercised.
First, dormant Federal criminal laws may be reviewed at the whim of
a Federal prosecutor. Even the appearance--let alone the actual
practice--of selectively bringing Federal prosecutions against certain
individuals whose conduct also violates State laws, and the imposition
of disparate Federal and State sentences for essentially the same
underlying criminal conduct, offends our notions of fundamental
fairness and undermines respect for the entire criminal justice system.
Second, every new Federal crime results in an expansion of Federal
law enforcement jurisdiction and further concentration of policing
power in the Federal government. Americans naturally distrust such
concentrations of power. That is the policy underlying our posse
comitatus law prohibiting the military from participating in general
law enforcement activities. According to the Meese Task Force, the
ranks of Federal law enforcement personnel grew a staggering 96 percent
from 1982 to 1993 compared to a growth rate of less than half that for
State personnel. The Task Force correctly noted in its report that:
``Enactment of each new federal crime bestows new federal investigative
power on federal agencies, broadening their power to intrude into
individual lives. Expansion of federal jurisdiction also creates the
opportunity for greater collection and maintenance of data at the
federal level in an era when various databases are computerized and
linked.''
Finally, and most significantly, Federal prosecutors are simply not
as accountable as a local prosecutor is to the people of a particular
town, county or State. I was privileged to serve as a State's Attorney
in Vermont for eight years and went before the people of Chittenden
County for election four times. They had the opportunity at every
election to let me know what they thought of the job I was doing.
By contrast, Federal prosecutors are appointed by the President and
confirmed by the Senate, only two Members of which represent the people
who actually reside within the jurisdiction of any particular U.S.
Attorney. Federalizing otherwise local crimes not only establishes a
national standard for particular conduct but also allows enforcement by
a Federal prosecutor, who is not directly accountable to the people
against whom the law is being enforced. The Meese Task Force warned
that the ``diminution of local autonomy inherent in the imposition of
national standards, without regard to local community values and
without regard to any noticeable benefits, requires cautious
legislative assessment.''
I thank the members of the Commission for coming to testify before
the Committee today. Their hard work and dedication to making law
enforcement efforts in the United States as organized and prepared as
possible are commendable and constructive. I look forward to discussing
these important issues with them.
Senator Thurmond. Now, we will keep the record open for
about one week for follow-up questions or for additional
materials to be placed in the record.
Senator Sessions, do you have anything else?
Senator Sessions. No, sir.
Senator Thurmond. Now, I want to thank all of you witnesses
for attending and giving the fine testimony you did. Your
presence here and your testimony is most valuable not only to
help us but for the common good. We thank you again for your
presence and your good work, and wish you well.
We now stand adjourned.
[Whereupon, at 4:16 p.m., the subcommittee was adjourned.]
A P P E N D I X
----------
Questions and Answers
----------
Responses of the Commission to Questions From Senator Leahy
Question 1A. Computer crime is quickly emerging as one of today's
top challenges for State and local law enforcement officials. All 50
States have now enacted tough computer crime control laws.
Unfortunately, too many State and local law enforcement agencies are
struggling to afford the high cost of equipment and training to enforce
these statutes. How does the Commission recommend that Congress address
this problem and enhance law enforcement's ability to enforce State
computer crime laws?
Question 1B. While the Commission has refrained from opining about
pending legislative proposals, in light of the Commission's
recommendation against further federalizing crime, please explain
whether the approach of S. 1314, the Computer Crime Enforcement Act,
which would create a grant program for State and local law enforcement
agencies to enhance their technology and training to combat computer
crime, respects the appropriate role of State and local law
enforcement?
Answer. The Commission strongly agrees that computer crime is
rapidly emerging as one of the top challenges for State and local law
enforcement. Indeed, the Commission raises the specter of cybercrime in
its opening sentence in the Introduction to the report (page 15).
We note on the same page that ``Cybercrime can assault any county's
physical and information infrastructure.'' In sections on
cyberterrorism (page 69) and on international cybercrime (page 75), we
analyze the implications of the very serious subject.
In question 1A, you ask how Congress might address this problem and
enhance the ability of States to enforce their computer-crime laws. We
suggest:
A Federal program of grants, technical, and training to States
to help them develop and expand their capability and capacity
to enforce computer-crime laws;
Federal research and development to find way to cope with this
kind of highly complicated criminal activity; and
Use of Federal ability to coordinate law enforcement
activities across several States, which may be necessary to
assist States in preventing, investigation, and prosecuting
computer crime.
These kinds of activities are entirely proper for the Federal
Government provide strong support to States while limiting Federal
intrusion, and place responsibility and accountability at the
appropriate level of government.
In question 1B, you ask for the Commission's views on the approach
of S. 1314, the Computer Crime Enforcement Act, which would create a
grant program for State and local law enforcement agencies to enhance
their technology and training to combat computer crime. Does this
approach respect the appropriate role of State and local law
enforcement?
The Commission's answer is yes, this approach does respect the role
of State and local law enforcement. As we state in our answer to
Question 1A, a grant program as envisioned in S. 1413 is consistent
with concepts of Federalism that the Commission believes should guide
Congress in enacting legislation affecting State and local law
enforcement.
Question 2. The Child Custody Protection Act, S. 661/H.R. 1218,
would establish a new Federal criminal prohibition against transporting
a minor across State lines for the purpose of avoiding a law where the
minor resides respecting parental involvement in the minor's decision
to obtain an abortion. A consequences of this law would be that Federal
investigative and prosecutorial resources would be employed to enforce
State parental involvement laws, including in States without such laws
but where a minor may travel to obtain an abortion. Is this proposal
consistent with the principles against the federalization of crime that
the Commission articulated in its report?
Answer. As a general rule, the Commission believes that if a State
has the power to prosecute a crime in that State, it should do so.
In cases where both a Federal and State interest can be
established, the Commission proposes a thorough study of the
implications of making the crime a Federal crime. Under the
Commission's proposed Federalization Prevention Act, Congress and the
Executive Branch would be required to provide a Law Enforcement Impact
Statement in addition to the current budget impact statement.
Obviously, in the example you provide, important issues to be addressed
in the impact statement would be the extent to which such a law would
use Federal investigative and prosecutorial resources and the effect of
such usage both on State and local law enforcement and on the ability
of Federal law enforcement to focus on cybercrime, cyberterrorism, and
other emerging Federal law enforcement issues. That analysis of the
impact of the legislation under consideration would provide Congress
with information at the beginning of the legislative process. Over the
5 years following enactment, Congress would be able to consider the
value of the criminal statute, and the statute would expire after 5
years under a sunset provision unless Congress extends it.
Question 3. As the Commission's report points out, the Federal
Government exercises concurrent jurisdiction over many crimes
traditionally handled by State and local law enforcement. In a number
of cases in which concurrent jurisdiction exists, the Federal
Government has sought or is seeking the death penalty in States that do
not permit the imposition of such penalty, despite Department of
Justice guidelines that in cases of concurrent jurisdiction, ``a
Federal indictment for an offense subject to the death penalty will be
obtained only when the Federal interest in the prosecution is more
substantial than the interests of the State of local authorities.'' In
order to minimize Federal forum-shopping and respect more fully the
views of State residents and voters on the issue of the death penalty,
would the Commission support a proposal requiring the Attorney General
or her designee to certify, before a Federal death penalty may be
sought, that (1) the State does not have jurisdiction or refuses to
assume jurisdiction over the defendant; (2) the State has requested
that the Federal Government assume jurisdiction; or (3) the offense
charged clearly invokes specific Federal interests, including crimes of
genocide; terrorism; use of chemical weapons or weapons of mass
destruction; destruction of aircraft, trains, or other
instrumentalities or facilities of interstate commerce; hostage taking;
torture; espionage; treason; the killing of certain high public
officials; or murder by a Federal prisoner?
Answer. This question raises issues involving concurrent Federal
and State jurisdiction, specifically cases where the Federal Government
seeks a death penalty in States that do not permit imposition of the
death penalty. You cite Department of Justice guidelines to the effect
that ``a Federal indictment for an offense subject to the death penalty
will be obtained only when the Federal interest in the prosecution is
more substantial than the interests of the State or local
authorities.'' You ask if the Commission would support a proposal that
requires the Attorney General or her designee to certify, before a
Federal death penalty may be sought, that (1) the State does not have
jurisdiction or refuses to assume jurisdiction over the defendant; (2)
the State has requested that the Federal Government assume
jurisdiction; or (3) the offense charged clearly involves specific
Federal interests, including crimes of genocide; terrorism; use of
chemical weapons or weapons of mass destruction; destruction of
aircraft, trains, or other instrumentalities or facilities of
interstate commerce; hostage taking; torture; espionage; treason; the
killing of certain high public officials; or murder by a Federal
prisoner.
The Commission's answer is yes, we would support such an approach.
What this question proposes is consistent with our views about keeping
lines of jurisdiction and authority clear between Federal and State law
enforcement. This approach ensures that cases with serious Federal
implications can be prosecuted in Federal courts, while those more
weighted toward State interests are prosecuted in State courts. An
example of how this might work can be seen in the current Federal
prosecution for murder in the Starbuck's robbery in Washington, DC; the
Attorney General has approved a prosecution that seeks the death
penalty, even though the death penalty is not permitted under District
of Columbia criminal law.
We also note that the issues raised in this question are
appropriate matters to be considered in the Law Enforcement Impact
Statement that we mention above.
Responses of the Commission to Questions From Senator Biden
Question 1. There has been a great deal of debate about forcing the
U.S. Attorneys to prosecute gun cases with a Federal nexus. Is this an
example of the strain on the system that is of concern to the
Commission?
Answer. Indeed, there has been a great deal of debate on the
ability or inability of U.S. Attorneys to prosecute Federal gun cases
in all their manifestations. For example, on October 21, 1999, Deputy
Attorney General Eric Holder said prosecution by U.S. Attorneys of all
400,000 people who filed false statements [on gun purchases] would
``overwhelm the system.'' In other instances, low rates of prosecution
have already been identified by the Executive Office of the United
States Attorney:
Prosecutions under the Brady Act (background checks);
Prosecutions for the transfer of a handgun or ammunition to a
juvenile;
Possession of a handgun by a juvenile;
Prosecutions of possession or discharge of a firearm in a
school zone; and
Prosecutions for possession of firearms by a juvenile at
school.
The Commission is concerned about these types of strains on the
Federal system. It is for this reason the Commission proposed the
Federalization Prevention Act. Under that Act, proposed legislation
would be examined, before passage, to determine its impact on the
Federal system--and reexamined after 5 years to ascertain whether it is
working as expected.
Question 2. You indicate in your report that ``although technically
Constitutional, there are public perception problems related to double
jeopardy.'' I know that the Department of Justice has a policy on
this--it's called the Petite Policy (the Petite Policy is the process
by which Justice decides which cases to prosecute even though the
States already have done so). And, I also know that they prosecute
cases after a State has already done so only in rare cases and only
with high-level Justice Department approval. Do you know of any
specific examples of cases where someone was charged and brought to
trial in both State and Federal courts that caused the type of public
perception problem that you are alleging?
Answer. The quoted phrase does not appear in the Commission
Report's narrative on double jeopardy (see page 92). The Commission
Report says, ``Equally troubling is the possibility that federalization
threatens the concept of `double jeopardy' in a very real, but not
unconstitutional manner.''
The Commission relied on the content of the ABA's 1998 \1\ study
and analysis of the double jeopardy issue on the following point: a
behavior may violate both State and Federal law. Under the concept of
dual sovereignty (the State and the Federal Government), the Supreme
Court has said that the same offense can also be viewed as a different
offense for Constitutional purposes. But as the Senator notes, the DOJ
Manual is guided by the Petite policy in these instances, and instances
of this type of prosecution are extremely low, perhaps several dozen a
year and only when there is a compelling Federal interest support dual
or successive Federal prosecution.
---------------------------------------------------------------------------
\1\ Task Force on Federalization of Criminal Law (1998), The
Federalization of Criminal Law: Defending Liberty, Pursuing Justice,
Washington, DC: American Bar Association.
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The Commission Report does not allege a ``public perception
problem.'' The Commission's public opinion survey did not ask a
specific question on double jeopardy. The Commission relied on its
collective experience when it noted that the ``widespread application
[of double jeopardy] could strike many Americans as unfair.''
The Commission's intent was to draw attention to potential
consequences of a widespread applicability of double jeopardy cases
that may go beyond Petite guidelines. For example:
The distinction, or appearance of dual punishment, between an
excessive financial penalty payment and criminal prosecution;
Cases where the same offense can violate separate State and
Federal laws (for instance, the Rodney King cases--State
assault charges on the arresting officers versus Federal
charges that police officers violated King's constitutionally
protected right to be free from the use of unreasonable force
during arrest);
Cases like that of Terry Nichols (Oklahoma bombing), who is
claiming that a State trial for first degree murder (160
counts) would constitute double jeopardy because he has already
been convicted in Federal court of eight counts of involuntary
manslaughter in the deaths of eight Federal agents; and
A State court judge (Idaho) dismissed a State murder charge
against Kevin Harris (Ruby Ridge incident) after his acquittal
in Federal court of murdering a Federal agent. The judge
invoked the State's double jeopardy law, saying he could not be
tried again after his acquittal.
Double jeopardy issues have the potential to strike the American
public as unfair, depending on one's perspective on sensitive issues:
being deprived of assets and being subjected to criminal punishment,
race relations/civil rights, acts of terrorism and the demands for
justice, etc. If double jeopardy issues might be seen as unfair, it is
clear also that even for the legal profession, there is confusion. As
then-Justice Rehnquist once said, ``* * * the decisional law in the
[double jeopardy] area is a veritable Sargasso Sea which could not fail
to challenge the most intrepid judicial navigator.'' Albernaz v. United
States, 450 U.S. 333 (1981).
Question 3. You indicate in your report that Title 18 of the
Federal Criminal Code is ``unwieldy.'' Can you cite any examples of
statutes that need to be modified or eliminated? Can you name me five
Federal crimes that should not be Federal crimes and why?
Answer. At this juncture, there are more than 3,000 Federal crimes
on the books. Few crimes, no matter, how local in nature, are beyond
the reach of Federal criminal jurisdiction, and the number of crimes
deemed ``Federal'' continues to increase. The 1994 Crime Bill alone
created two dozen new Federal crimes, including: driveby shootings;
possession of handguns near a school; possession of a handgun by a
juvenile; embezzlement from an insurance company; theft of a major
artwork; and murder of a State official assisting a Federal law
enforcement agency. Although many of these crimes are a threat to
public safety, they are already outlawed by the States and need not be
included in the Federal Criminal Code.
As a result of the trend toward federalization, the Federal
Government often becomes involved in cases that are better handled by
local law enforcement personnel. Carjacking is another example of a
crime that should never have been federalized. The Federal carjacking
law was enacted in response to an atrocity that occurred in the State
of Maryland. The law was unnecessary because most States already had
carjacking laws and a crime designation to cover the offense. Other
statues that fall into this category relate to school violence,
disrupting rodeos, sale of drugs in school zones, and the transfer of
guns in school zones.
The Supreme Court took a stand on the last offense in United States
v. Lopez when it declared the Gun Free School Zones Act of 1990
unconstitutional. The Act made it aFederal offense for any person to
possess a firearm at any place that the individual knows is a school
zone. In Lopez, a State indictment was dismissed so that Federal
charges could be brought, even though the State (like nearly all
States) had laws that prohibit guns in or near schools.
Our views on this subject were reinforced not only by the 1998 ABA
study but also by the testimony of the expert witnesses who appeared
before the Commission.
Question 4. In your report you call for an external review of
Federal law enforcement. Do you have concern that this is just going to
add another layer of bureaucracy to a system that you are criticizing
for being too bureaucratic?
Answer. No. External review will not create a new bureaucracy
review and accreditation are handled by the Commission on Accreditation
of Law Enforcement Agencies, Inc. (CALEA), which already exists and
was, in fact, created under a grant from the U.S. Department of
Justice. Moreover, as the Commission reported (page 103), accreditation
is a voluntary process of self-study and peer-review based on some 436
law enforcement standards developed by law enforcement professionals
around agency missions and mandates. Since CALEA began in 1979, some
500 law enforcement agencies in the United States have been accredited
through the program. The U.S. Marshals Service has already earned
accreditation from CALEA and the Capitol Police are currently in the
process of obtaining such accreditation.
In addition, Federal crime laboratories are joining the American
Society of Crime Laboratory Directors (ASCLAD), an organization of more
than 400 directors of local, Federal, and international forensic
laboratories. ASCLAD's primary interest is in achieving quality in the
delivery of forensic science services by improving the quality of
management practices in forensic laboratories. The FBI and, it is
believed, DEA are already members. We believe that every Federal
criminal forensics laboratory should be accredited based on scientific
standards currently in place in professional laboratories around the
country. Compliance will help build public and judicial confidence in
laboratory findings, much like those found in State and local
government.
The Commission heard testimony on the value of external review and
accreditation from several respected law enforcement professionals,
including Jami St. Clair, President of ASCLAD, and Sylvester Daughtry,
Jr., Chairman of CALEA.
The Commission, in its report, recommends the creation of the
Federal Law Enforcement Officer Training Board and the Interagency
Coordination Board. If created, these boards will facilitate the
coordination of policy development, operations, and methods for
evaluating the efficiency of agencies. regarding the issue of oversight
of citizens complaints, this is the responsibility of the Attorney
General. The Congress must fulfill its oversight duties with respect to
Federal agencies by ensuring that the Attorney General investigates and
reports on citizen complaints.
Question 5. You recommend that Executive Order 11396 (giving the
Attorney General broad authority over all criminal matters) be updated
to reflect new national and global realities. You also suggest that it
be reissued so that the Attorney General becomes the focal point of
Federal law enforcement. But, the Executive Order is quite clear
regarding the Attorney General's authority. What can she do immediately
to see that the order is carried out and that the problem of too many
conductors leading too many orchestras is addressed? What can be done
to help facilitate this process?
Answer. Executive Order No. 11396 was signed by President Lyndon
Johnson more than 30 years ago and has lain dormant since. As noted in
our report, if the directive had been carried out, the Commission
believes that many of the coordination problems that trouble Federal
law enforcement today would have been put to rest.
Because the Executive Order has lain dormant for so long, however,
the Commission believes that attempting to implement it at this late
date in the life of the current Administration would not be effective.
In fact, given how long the Executive Order has been ignored, we
believe its purposes can be realized only by reissuing and
strengthening it to reflect the new global and international realities.
As noted in our report, the revised executive Order should incorporate
coordinating authority for the Attorney General that is as broad as the
authority the Director of Central Intelligence has with regard to
intelligence matters under Executive Order No. 12333. Specifically, the
revised Executive Order No. 11396 should provide the Attorney General
with explicit authority to:
Act as the primary advisor to the President on law enforcement
matters;
Develop and implement objectives and guidance for the law
enforcement community;
Promote and ensure the development and maintenance of services
of common concern to Federal law enforcement agencies;
Formulate and implement policies and procedures regarding law
enforcement;
Ensure that the law enforcement community establishes common
security and access standards for managing and handling data
and intelligence;
Ensure that programs are developed to protect information,
sources, informants, methods, and analytical procedures;
Establish appropriate staffs, committees, and other advisory
groups to assist in the execution of the responsibilities of
the Attorney General;
Monitor agency performance and, as necessary, conduct program
and performance audits;
Provide for policies to ensure uniform procedures for
responding to citizens' allegations of misconduct on the part
of Federal law enforcement agencies or officers;
Reduce unnecessary overlap or duplication among agency
programs and missions; and
Submit an annual report to Congress about accountability,
citizens' complaints, and their resolution.
In addition, as noted in our report, an Attorney General
strengthened in the full exercise of the powers contemplated in the
revised Executive Order No. 11396 will require advice and guidance on
any number of matters. That is why the Commission also recommends the
establishment of a permanent, independent, Interagency Advisory Board
on Federal Law Enforcement. Such a board will make the Attorney
General's increased authority more palatable to other Federal law
enforcement agencies. It will also improve the quality of the decisions
that the Attorney General makes in carrying out this increased
authority.
Question 6. You have suggested that the FBI become the sole
criminal activity and national security agency. You have also suggested
that significant portions of the Bureau of Alcohol, Tobacco and
Firearms be merged into the FBI and that the Inspector General's
Offices be consolidated. Do you suggest other mergers that are not
contained in your report? What do you see as the most significant
hurdles to these mergers? What will the mergers really mean off paper--
will there by layoffs of law enforcement officers? How would Congress
oversight jurisdiction change?
Answer. This multi-part question goes to the heart of the
consequences of proposing mergers, consolidations, and elimination of
Federal law enforcement agencies.
This question raises issues that are the proper concern of the
Commission's proposed permanent Interagency Advisory Board on Federal
Law Enforcement and how it might operate. This 19-member board, made up
of representatives of the 14 major law enforcement agencies examined in
our report and five additional representatives from other Federal law
enforcement agencies, would provide the Attorney General with advice in
two areas: the needs of small agencies; and the growth and role of the
function of the Inspector General. A principal focus of Interagency
Advisory Board work would be to assess the effects of mergers,
consolidations, and elimination of Federal law enforcement agencies.
(Page 111.) The matter of Congressional oversight jurisdiction is, of
course, an entirely different matter and one for Congress itself to
consider.
Before we address the questions, we wish to clarify and correct
what appear to be two misapprehensions: First, at no time has the
Commission advocated that the Federal Bureau of Investigation become
the ``sole criminal activity and national security agency.'' On the
contrary, the Commission greatly respects the missions, jurisdictions,
capabilities, and personnel of the many Federal criminal justice and
national security agencies that contribute so effectively to the safety
and security of our citizens and our Nation. We do believe that greater
effectiveness and efficiency can be affected through restructuring the
Federal law enforcement community along the more functional lines that
we suggest in our Recommendation I (page 108), but we do not recommend
that the FBI become the sole criminal justice agency. Likewise, we
believe that far more effective use can be made in Federal, State, and
local law enforcement of intelligence gathered by the Nation's
intelligence agencies. This use is particularly important in light of
the spread of global crime, cybercrime, and terrorism. We do not
recommend that the FBI become the sole national security agency.
Second, at no time does the Commission recommend that Offices of
Inspectors General be ``consolidated.'' We believe that the current
structure of the OIGs should be examined with an eye toward
restructing, and that such a review might turn up cases in which some
offices could be merged. Congress might request that the Interagency
Advisory Board undertake such a review and provide Congress with its
recommendations.
The Commission will now address this multi-part question in order:
Question 6A. Does the Commission suggest other mergers that are not
contained in its report?
Answer. No. Although the Commission does not recommend merges not
contained in its report, we do recommend that Congress and the
President look toward a long-term restructuring that would rationalize
and realign Federal law enforcement and security agencies in the
Executive Branch into five broad functional areas (pages 110-111):
Criminal Activity and National Security;
Protective and Border Security;
Financial and Regulatory Enforcement;
Corrections Enforcement; and
Resource Enforcement.
This realignment would doubtless involve mergers of agencies. For
example, the Commission suggests an incorporation of the functions of
the Bureau of Land Management and the Fish and Wildlife Service (now in
the Department of the Interior) with existing law enforcement functions
from the Department of Agriculture. (Page 111.) Currently, three
separate law enforcement agencies report to Congress--Capitol Police,
Government Printing Office Police, and the Library of Congress Police.
In fact, if these three were consolidated, there would only be one
chief of police, one set of hiring and training standards and policies,
integrated communications systems, and reduction of bureaucracy.
Question 6B. What does the Commission see as the most significant
hurdles to these mergers?
Answer. The hurdles to mergers of Federal law enforcement agencies
are parochialism and protection of bureaucratic turf. The problems of
overlapping jurisdictions, duplication of effort, and multiplicity of
the same functions have been well studied by other groups before us,
including Vice President Al Gore's Performance Review (please see our
answer to Questions 8 and 11, below). In fact, every independent review
that we could find arrived at the same conclusions that we did about
consolidating agencies. These other groups have understood, as we do,
that existing agencies, and their Congressional oversight committees,
are reluctant to give up their territory or their power.
We also recognize the difficulty that Congress faces in addressing
the different agency authorizations. Congress looks at Federal law
enforcement agencies department by department in the various
authorization bills. Committee consideration of this legislation is
also based on agency, not function. We address this dimension in
Question 6D.
Question 6C. What will these mergers really mean off paper--will
there be layoffs of law enforcement offices?
Answer. No. The Commission believes that there is plenty of
criminal justice work to do, and that Federal law enforcement personnel
levels should not be reduced. We do recommend some shifts in personnel
and reviews of existing structures to obtain ``more bang for the buck''
in Federal law enforcement. But we have not suggested and do not now
suggest any layoffs. The Commission heard testimony that actually more
officers are needed, especially by the agencies that perform patrol and
other uniform services.
Question 6D. How would Congressional oversight jurisdiction change?
Answer. In some cases, Congressional oversight jurisdiction would
change significantly. Committees and Subcommittees charged with
oversight of Federal law enforcement agencies that were merged have to
reallocate oversight responsibilities. Examples are the transfer of law
enforcement functions of the Bureau of Alcohol, Tobacco, and Firearms
from the Department of the Treasury to the FBI, and the merger of the
Drug Enforcement Administration into the FBI.
The effect on Congressional oversight should not be minimized. It
could be difficult to accomplish. Just a few years ago, however,
Congress itself reorganized its Committees with new functions, new
oversight jurisdictions, and even newnomenclature--all along more
functional and less traditional lines. The same could be done here.
Question 7. We do have an agency that is supposed to streamline and
coordinate drug policy--and that agency is the Office of National Drug
Control Policy. I fought for 10 years to get that office funded. Have
you consulted them regarding streamlining and who is best equipped to
take on these tasks?
Answer. In Appendix H. Acknowledgments of its final report, the
Commission states: ``Unfortunately, a few persons, including some heads
of Federal law enforcement agencies, declined the Commission's
invitation to testify, thus depriving the Commission--as well as
Congress and the American public--of valuable and useful information
for this report.'' Although the Commission invited the head of the
Office of National Drug Control Policy or his representative to appear
before it numerous times, all of its invitations were repeatedly, and
adamantly, declined.
Question 8. Why not just take the FBI's drug crime jurisdiction
away? Is there really a significant difference between putting the DEA
under the FBI--or having both under the general umbrella of Justice?
Answer. Your question poses the alternative to the Commission's
recommendations that drug crime jurisdiction be moved from the Drug
Enforcement Administration to the Federal Bureau of Investigation. Why
not just remove drug crime jurisdiction from the FBI and place it in
DEA--or at least place both ``under the general umbrella of Justice''?
Removal of drug crime law enforcement responsibilities, such as
they exist, from the FBI to DEA would make no sense. A large number of
operational and administrative activities that support law enforcement
prevention, identification, investigation, and other efforts within the
FBI would have to be duplicated within DEA. The transfer of drug crime
jurisdiction from the FBI to DEA would make matters far worse than they
are now--all operational activities and support services are now
duplicated within DEA for the single purpose of drug law enforcement.
(Report pages 110-115.)
Quite to the contrary, one reason for moving DEA functions to the
FBI is to provide DEA's drug law enforcement activities with the whole
range of support capability that the FBI brings to the table. The
advent of cybercrime and transnational crime necessitates a closer
working relationship between agencies. A consolidated FBI, DEA, and ATF
will absolutely facilitate the dismantling of criminal operations and
terrorist cells because more effective investigations are best handled
and coordinated within one agency.
Please note that, to ensure that drug enforcement activities
continue to have high visibility and access to law enforcement
officials at the highest levels, the Commission believes that this
newly transformed function should be headed by a senior official who
reports directly to the Director of the FBI. (Footnote 111.)
Other thoughtful observers have arrived at the same recommendation
that the Commission makes. In the early 1980s, when William French
Smith was Attorney General, Rudolph W. Guliani, then Associate Attorney
General, oversaw a study that recommended the merger of the DEA into
the FBI. In 1993, moreover, Vice President Al Gore made the same
recommendation in this report, ``Red Tape to Results.'' (Page 115 and
footnotes 112 and 117.)
The Commission believes that removal of drug law enforcement
responsibilities--accompanied by budget, statutory authority, and
personnel--from DEA to the FBI, in a new separate division, would
reduce unnecessary overlap and duplication among agency activities. The
other way around, the merger would increase overlap and duplication.
Finally, you ask about the difference between moving DEA under the
FBI or leaving both ``under the general umbrella of Justice.'' The
Commission believes that the differences are very great. First, by
leaving both agencies under the general umbrella of Justice,
duplication and redundancy would continue and likely grow; DEA will
need to build out more capability that it now lacks and that already
exists in the FBI. Second, sharing of intelligence, planning for
coordinated activities, and operational cooperation in and control of
field operations would continue to be accomplished through the Attorney
General's office, because both the Director of the FBI and the
Administrator of DEA report to the Attorney General. The Commission
believes that this sharing, coordination, and cooperation will be
accomplished more effectively through a senior official (namely, the
Director of the FBI) who is more accessible, closer to the field, and
more conversant on a daily basis with activities in both the FBI and
the newly reconstituted DEA.
The Commission quoted, with approval, the assessment given in the
Gore report cited above:
* * * a drug case may involve violations of financial,
firearms, immigration and customs laws, as well as drug
statutes. Unfortunately, too many cooks spoil the broth.
Agencies squabble over turf, fail to cooperate, or delay
matters while attempting to agree on common policies. (Page
114)
The Commission recommendation is aimed at reducing the number of
cooks.
Incidentally, the Commission believes that the drug criminal law
enforcement should, under any plan for reorganization, remain within
the Justice Department. Congress may place other Federal programs aimed
at reducing the illegal drug problem in the United States in other
Federal agencies, especially the Department of Health and Human
Services. Those programs may relate to health and social aspects of the
problem, but programs relating to criminal law enforcement should
remain solidly within the Department of Justice. Indeed, in a message
to Congress in 1968, President Lyndon Johnson recognized to his
dissatisfaction that drug enforcement activities were split at that
time between the Department of the Treasury and the Department of
Health, Education, and Welfare, based on the type of drug violation
involved (whether marijuana or LSD). He proposed consolidating drug
enforcement within the Justice Department, where it very properly
resides today.
Question 9. Your report suggests that we ``ensure that the
legitimate needs of law enforcement agencies to override encryption
systems are balanced by judicial supervision to protect the privacy and
civil liberties of civilians.'' Of all the different proposals that
have been put forth over the past few years, is there one plan that you
believe should be adopted?
Answer. By one count, the Electronic Privacy Information Center
listed more than 50 bills in Congress under the rubric of tracking
privacy, speech, and cyber-liberties as of September 1999. The
Commission could not evaluate these legislative proposals and is not in
a position to knowledgeably recommend one over another. It leaves that
to the professionals in this area. The Commission does, however,
believe that whatever proposal is finally passed must meet the
legitimate needs of law enforcement while protecting the privacy and
civil liberties of private citizens. To these ends, we suggest the
following general guidelines for such legislation:
Balance resources between prosecution and protection;
Educate people on how to protect their systems;
Promote development of capabilities of State consumer
protection agencies;
Encourage industry to improve its own security;
Encourage the Federal Government to protect its own systems;
Encourage industry to develop a clearinghouse of reliable
information, consumer software, firewalls, and other technology
to protect systems;
Train State and local prosecutors to prosecute cyber
violators, but coordinate with the FBI, not the Department of
Commerce, on source detection nationally and internationally;
Relegate the Federal/FBI role to cases involving national
security and substantial national economic interests;
Enact Federal legislation with stiff penalties for
unauthorized selling of personal information;
Promote policies that are not intrusive on personal systems by
government; and
Avoid a knee-jerk barrage of compartmentalized legislation.
Instead, get serious and develop a coherent plan.
In addition, the Commission wants to stress the importance of
providing additional funds for research and technology to deal with
terrorist threats. To take but one example: encryption of information
by criminals presents serious threats to public safety. Encryption may
be used by terrorists (or by drug lords) to communicate their plans in
secret, or to maintain records in a form that frustrates search
warrants and wiretap orders. The Government and the private sector must
proceed together with energetic efforts to protect the legitimate needs
of citizens and businesses for electronic communication and electronic
commerce, while preserving Government's legitimate need to gain access
to data and information as part of legally authorized search
procedures.
In similar fashion, electronic commerce, ``smart'' cards, and
Internet trading are fast becoming established as standard practice for
financial and telecommunications services. Shifting from paper money to
its electronic equivalents present serious new international challenges
for law enforcement at all levels. Additional research focusing on the
vulnerability of these emerging technologies to terrorism and
international crime needs to be undertaken.
Finally, the Commission notes that the Information Age brings with
it new threats to national security and to a wide variety of critical
public and private services. As recent analyses from the Center for
Strategic and International Studies (CSIS) point out, the real
possibility for an ``electronic Waterloo'' exists if public officials
do not pay sufficient attention to threats to the Nation's information
security. The Commission endorses the CSIS report and calls for the
development of national security policies that respond effectively to
the emerging threat of cyberterrorism and cybercrime. At the same time,
the Commission is aware of recent criticisms that policies governing
cybersecurity at times appear to be pursued without explicit
consideration of potential threats to privacy and civil liberties. Law
enforcement officials must understand that the techniques, procedures,
and technologies at issue here are so powerful that Federal agencies
must be alert to public anxieties about the potential for abuse, no
matter how remote that potential may be.
Question 10. You suggest that a 5-year sunset provision be adopted
so that all crimes defined as Federal expire after 5 years. What public
policy would this facilitate? How would you draw the line and make a
distinction between what crimes should have a sunset provision?
Answer. This provision would facilitate several public policies.
First, it would support the Constitutional principle of Federalism
itself by helping to ensure a reasoned division ofresponsibility
between the Federal Government and State governments. Second, this
provision would help promote respect for the rule of law by helping to
limit Federal law enforcement efforts to those areas that clearly can
be seen to be matters requiring the energies of Federal law enforcement
agencies. Under this provision, we are more likely to have vigorous
Federal enforcement of the laws that can withstand this scrutiny,
whereas under our current system Federal laws are passed but often not
enforced to any great degree. Such ``hollow laws'' breed disrespect for
the rule of law. Third, for the reasons just noted, this provision will
advance the public policy of effectiveness in enforcement. Fourth, a
more rational division of labor between Federal and State law
enforcement efforts will be more efficient as well. Finally, by
limiting Federal law enforcement's involvement in areas better left to
State and local law enforcement, Federal law enforcement will be freed
to pursue the very serious national and transitional criminal activity
that pose an increasing risk to the safety and security of our
citizens.
As to how to draw the line to determine what crimes should have a
sunset provision, the Commission believes that enacting a new
Federalization Prevention Act that requires the Congress and the
Executive Branch to provide a Law Enforcement Impact Statement--in
addition to the existing budget impact statement--is one important way
to get to this issue. Additionally, the sunset provision of this new
act would ensure that newly enacted statues meet their intended
purposes and that:
The statutes do not cause adverse financial or other burdens
to State, local or even Federal law enforcement agencies and
personnel;
The statutes are in fact necessary and not simply promulgated
to address a crime that is in the public mind but is already
addressed at the State level;
and/or
The statutes do not deal with a crime that is no longer an
issue.
Question 11. You have suggested that there are too many Federal
police forces, and cite as an example the fact that Congress and the
Supreme Court have different forces even though they are across the
street from each other. What should be done to address this problem?
Answer. This question raises the issue of the proliferation of
Federal police forces. The Commission does not take a simplistic view
of this matter; we do not think that there are simply too many Federal
police forces.
Rather, the Commission recommends a review of the number of Federal
police forces with an eye to consolidating agencies where appropriate.
One opportunity for consolidation might involve those forces that
operate directly under Congress, namely the U.S. Capital Police, the
Library of Congress Police, and the Government Printing Office Police.
These agencies might be merged into one agency, with a goal of
eliminating duplication, achieving savings in resources, reducing the
number of separate bureaucracies, and increasing operational
efficiency.
The Commission thinks that this kind of merger offers an ideal
example of how its proposed permanent Interagency Advisory Board on
Federal Law Enforcement might operate. This 19-member board, made up of
representatives of the 14 major law enforcement agencies examined in
our report and five additional representatives from other Federal law
enforcement agencies, would provide the Attorney General with advice in
two areas. One of those areas would involve the need for many small
Federal police agencies, including those on Capitol Hill. (Page 111.)
The Commission noted, as your question correctly states, that
Congress and the United States Supreme Court have different police
forces even though they are located across the street from each other.
The Commission hastens to point out that it did not mean to imply a
merger between these police forces; to do so might raise Constitutional
issues of separation of powers.
As to the merger of Federal police agencies that report to Congress
or of those within the Executive Branch, concerns about separation of
powers do not arise. The Commission recommends a review by the
Interagency Advisory Board to eliminate duplication, to set common
standards for police, and to achieve more efficiency. Many States and
municipal jurisdictions have undertaken this effort, and have done a
good job.
Additional Submissions for the Record
______
commission on the advancement of federal law enforcement; nation faces
challenging crimes in the new century, commission warns
Washington.--Global crime, cybercrime, and terrorism in new and
increasingly dangerous forms will threaten the safety of Americans and
the national security of the United States early in the next century, a
Congressional Commission warned today. In the past two months alone:
Terrorists who highjacked a civilian airliner were not
apprehended and may commit other terrorist acts in the future.
An individual crossed our northern border with what were
described as powerful bomb-making materials. U.S. and Canadian
authorities are investigating a link to others with possible
terrorist connections.
Much concern was expressed about terrorism and computer crime
at the millennium. Fortunately, no serious incidents took
place.
The President continues initiatives to fight cyber-terrorism
and to improve law enforcement capabilities of the Bureau of
Alcohol, Tobacco, and Firearms.
Virginia Governor Gilmore's Commission, established by the
Congress, reportedly will conclude that the Nation is
vulnerable to terrorists armed with weapons of mass
destruction.
Data gathered by the Commission on the Advancement of Federal Law
Enforcement raises serious concerns about the readiness of the Federal
Government to meet its responsibilities to protect Americans and the
Nation, the Commission said in a report delivered to Congress today.
``The Nation must move now, on an urgent basis, to prepare to
detect these criminal activities at the source, to counter them in all
appropriate ways, and to protect Americans to every possible extent,''
the Commission said.
Congress directed the Commission to explore such concerns as the
coordination of Federal law enforcement agencies and cooperation
between Federal agencies and their State and local counterparts. Global
criminal cartels, cybercrime (computer-based crime), and terrorism
challenge law enforcement agencies in this country at all levels of
government, the Commission found. The Commission identified many areas
in need of improvement in coordination and cooperation.
Under Commission recommendations, a revamped Federal law
enforcement structure would make the Attorney General responsible for
coordinating all major Federal law enforcement policies and practices,
giving her sweeping authority to focus the Nation's law enforcement
resources on critical problems. Federal law enforcement is not
sufficiently marshaled or focused on key issues, the Commission found.
Law Enforcement functions of the Bureau of Alcohol, Tobacco, and
Firearms, now part of the Department of the Treasury, would be moved to
the Federal Bureau of Investigation. The entire anti-drug effort of the
Drug Enforcement Administration would become a separate division of the
FBI under the reorganization. Both the FBI and DEA are now part of the
Department of Justice.
``Much of today's current structure is based on problems of the
past, such as Prohibition,'' said Commission Chairman William H.
Webster, a former Federal judge, Director of the FBI, and Director of
Central Intelligence. ``The Nation critically requires a Federal law
enforcement establishment that is ready to meet the crime problems of
the future.''
Those problems, the Commission said, are increasingly likely to
involve global criminal enterprises, including terrorism, narcotics
trafficking, and cybercrime, among others. At the same time, the
Commission said that Congress should resist the tendency to
``federalize'' more and more crimes. Most crime in the United States is
local in nature, the Commission noted, and State local governments
provide most law enforcement. Because its resources are limited, rather
than focus on local crimes, Federal law enforcement should focus on
crimes that are national and international in nature and that are
otherwise designated as its responsibility under Federal law. It
should, however, continue to provide technical and scientific support,
including access to criminal justice databases, to State and local law
enforcement agencies.
``The Nation needs and deserves a Federal crime-fighting force that
knows its proper role,'' said Webster, ``operates in a highly
coordinated way, shares information, is better trained, and makes much
better use of high technology than is the case today.''
Congress established the Commission in the Antiterrorism and
Effective Death Penalty Act of 1996. With submission of its report, the
Commission completed its work and expires at the end of February.
Hearings on the report are expected in both the House and Senate.
Copies of the Commission report can be purchased from the
Government Printing Office, Superintendent of Documents, by calling
202-512-1800 and asking for ``Law Enforcement in a New Century and a
Changing World'' (Order No. 020-000-00276-0).
The report also can be downloaded from the University of Arkansas,
Criminal Justice Institute National Center for Rural Law Enforcement
website at www.ncrle.net.
For further information, please contact:
Honorable William H. Webster
Milbank, Tweed, Hadley & McCloy
Washington, DC
202/835-7550
Chief Robert M. Stewart
State Law Enforcement Division, State of South Carolina
Columbia, SC
803/737-9000
Professor Donald C. Dahlin
Department of Political Science, University of South Dakota
Vermillion, SD
605/677-6497
Gilbert G. Gallegos
National President, Fraternal Order of Police
Albuquerque, NM
505/344-3159
Robert E. Sanders
Punta Gorda, FL
941/575-2114.
______
Fact Sheet--Commission on the Advancement of Federal Law Enforcement
For the first time in recent history, a Congressional Commission
set out to study the integration of widely disparate and often
conflicting issues to strengthen the law enforcement fabric of the
Federal Government while protecting democracy and the rights and
liberties of individual citizens.
The Commission on the Advancement of Federal Law Enforcement saw
its role as one of calling the Nation's attention to the broadcast
concerns in national and international law enforcement and urging it
and its Federal law enforcement establishment to break down the
barriers of institutional thinking and find new ways to approach the
challenges of crime in the new century.
In creating the Commission, Congress issued a broad mandate of
issues for study. From the outset, the Commission determined that
conducting an in-depth study of Federal law enforcement, with all of
its complexities, was impossible within the mandated reporting period.
Thus, it decided to synthesize the main issues that will distinguish
law enforcement in the next century from law enforcement today.
Global crime, cybercrime, and terrorism pose the new, emerging
security threats to the Nation and challenge the Federal law
enforcement community. The report of the Commission on the Advancement
of Federal Law Enforcement is a call for an open mind, for a rethinking
of current law enforcement approaches, for a willingness to move
forward so that Federal law enforcement can safeguard the Nation's
citizens and protect the Nation's security in the years to come.
commission mandate
Section 806 of Public Law 104-132 (Antiterrorism and Effective
Death Penalty Act of 1996) provided for the establishment of a five-
member Commission on the Advancement of Federal Law Enforcement and
mandated that the Commission report its findings to Congress and the
general public within 2 years.
The Commission charter directed it to examine 10 factors related to
Federal law enforcement:
Federal law enforcement priorities for the 21st century,
including capabilities to investigate and deter terrorism;
The manner in which significant Federal criminal law
enforcement activities have been conceived, planned,
coordinated, and executed;
Standards and procedures of Federal law enforcement, including
their uniformity and compatibility;
The investigation and handling of specific Federal criminal
law enforcement cases, selected at the Commission's direction;
The need for the current number of Federal law enforcement
agencies and units;
The location and efficacy of the office with direct
responsibilities for interagency coordination--aside from the
President of the United States;
The degree of assistance, training, education, and other human
resource management assets devoted to enhancing
professionalism;
The existence and efficiency of independent accountability
procedures;
Coordination among law enforcement agencies with regard to
international crime; and
Coordination of Federal law enforcement activities with those
of State and local enforcement agencies.
An additional charge in Section 806 authorized the Commission to
examine any other matters it considered appropriate.
The Commission wrestled with this complex and sweeping mandate
througout its tenure, ever mindful that its deliberations were taking
place in the shadow of the five recent major events that involved law
enforcement--the bombings of American embassies in Kenya and Tanzania;
the bombing of the World Trade Center in New York; the destruction of
the Alfred P. Murrah Federal Office Building in Oklahoma City; the
deadly inferno that ended the confrontation with Branch Davidians in
Waco, Texas; and the tragic standoff at Ruby Ridge, Idaho. The
specifics of the Commission's charge, and the larger issues in which
they are embedded--issues of personal safety and security, freedom from
unreasonable search and seizure and protection against domestic and
foreign terrorism--affect every man, woman, and child in the United
States.
Over its 2-year tenure, it met more than 20 times and took verbal
and sometimes written testimony from some 70 witnesses, including two
members of President Clinton's Cabinet and numerous presidential
appointees. Its work was also informed through several other sources of
data. For example, at the direction of the Commissioners, staff--with
assistance from the survey research firm, QS&A Research--conducted a
nationwide public opinion survey. In addition, more than 140 leaders of
Federal agencies with responsibilities in some facet of law enforcement
were asked to respond to a 31-question survey prepared and administered
by Commission staff. From the 37 completed survey responses received,
staff prepared a detailed analysis of data from the 14 agencies
considered to be the primary Federal law enforcement entities.
In the main, the Commission's interest focused on agencies that
employ ``1811 series'' employees--and other personnel with the
authority to investigate, carry firearms, and make arrests.
In addition, Commission staff conducted an extensive review of the
literature on law enforcement, Federal law enforcement, and the
administration of justice. Finally, the Commission contracted for
papers on specific issues--such as terrorism, transnational crime,
narcotics trafficking, and the nature and origins of Federal law
enforcement in the United States--from the academic community. This
combination of surveys, literature review, and academic papers
represents one of the most extensive examinations of Federal law
enforcement in recent history.
background
The connection of the work of the Commission on the Advancement of
Federal Law Enforcement to the well-being of the American people is
direct and simple.
The initial concept for the Commission was developed following the
disasters at the Branch Davidian Compound and Ruby Ridge--events that
raised serious questions about the quality of Federal law enforcement.
The interests that motivated policy makers to launch the
Commission's study varied, sometimes quite dramatically. Some
policymakers wondered about the Federal Government's capacity to
protect American citizens from foreign terrorists acting on U.S.
shores. Others were concerned that policy on essential aspects of law
enforcement, such as the use of deadly force, was either unclear or
ignored, a situation fraught will peril for citizens and officers
alike. Still others worried that too many Federal law enforcement
entities had been created, making coordination among them, and with
State and local law enforcement agencies, difficult, if not impossible.
Almost certainly, just as many people were intent on using the two
tragic incidents listed above, to criticize Federal law enforcement as
were committed to examining any mistakes made to determine how to
prevent similar tragedies in the future.
All in all, the range of views that accompanied the initial
conceptions of the Commission was disparate. Some were perceived--
fairly or unfairly--as charged with ideological overtonesfrom all sides
of the political spectrum. As a consequence, when Section 806 was
finally enacted, initial plans for the Commission's budget and term of
office were cut back. Months passed before an appropriation for the
Commission's work was enacted and almost 2 years went by before the
full, five-member complement of Commissioners was appointed.
In the years that intervened between the initial conception of the
Commission and its authorization, funding, and creation, the United
States passed a lethal watershed, witnessing one of the most brutal
terrorist acts ever carried out on American soil--the destruction of
the Alfred P. Murrah Federal Office Building in Oklahoma City. In April
1995, two Americans, Timothy McVeigh and Terry Nichols conspired to
detonate a powerful and sophisticated homemade bomb hidden in a truck
parked outside the building. Their bomb killed 168 people, including
children in a daycare center.
Rapid police communication led to the holding of McVeigh, who had
been apprehended immediately after the bombing on an unrelated traffic
offense. Effective law enforcement agency coordination led to a
powerful prosecution that resulted in the conviction of the two primary
culprits. During the course of that investigation, however, the climate
under which the Commission's mandate was framed changed dramatically.
Federal agencies, fairly or unfairly, derided for poor performance
at Ruby Ridge and Waco, were perceived to have performed with
praiseworthy professionalism in Oklahoma City. Within minutes of the
explosion, the building and the surrounding crime scene were secured.
Within hours, a sketch of a suspect (drawn with sufficient accuracy to
alert the local police officers who had arrested McVeigh) was in the
hands of police forces around the county. Within a day, a vehicle
identification number attached to a bit of a truck axle discovered a
block from the explosion, led investigators to a local truck rental
agency. And, within a week, a fairly complete picture of the recent
comings and goings of McVeigh and Nichols was available--a picture
tying McVeigh irrevocably to the barbarous act and to his jail cell.
The Federal law enforcement system, illuminated in the glare of intense
international publicity, had carried out is functions responsibly,
professionally, credibly, and well.
The success of investigators and other law enforcement personnel in
apprehending and developing evidence against McVeigh and Nichols
transformed public perceptions of Federal law enforcement and the
perceived role for the Commission. Instead of serving as a vehicle for
criticizing Federal law enforcement agencies, the Commission was now
encouraged to examine strengths and weaknesses. The Commission's
mandate, broad as it was, laid out the possibility of an investigation
that recognizes that perfect performance, however much desired, is also
well nigh impossible. The specifics of the Commission's charge and the
larger issues in which they are embedded--issues of personal safety,
freedom from unreasonable search and seizure, and protection against
the threat of domestic and foreign terrorism--are compelling as law
enforcement enters a new century and changing world.
central conclusions
Because of the complexity of its charge, this Commission does not
want its central conclusions obscured by the amount of detail in the
document that follows. Based on a study that involved approximately 70
witnesses, a comprehensive literature review, and a review of papers
and surveys commissioned for its use, the Commission wishes to state
its conclusions as directly and simply as possible. It believes that:
Federal law enforcement agencies are among the finest in the
world and that most Americans share that view.
Of necessity, the Federal law enforcement apparatus is large
and complex. Different agencies have different missions and
quite distinct areas of jurisdiction. Better coordination is
necessary and desirable, and some consolidation is required.
The capacity for oversight and coordination is weak and needs
improvement. As a policy matter, it is difficult to know who is
in charge of what. With issues of citizen safety andnational
security at stake, effective cooperation, greater clarity of roles and
responsibilities, and agreement on uniform standards should not be left
to chance.
Law enforcement officers will confront vastly more
sophisticated and complex crimes in the 21st century than ever
before. The Federal law enforcement community must prepare for
this new reality.
recommendations
Based on these conclusions, the Commission presents a five-part
action agenda. Its recommendations emphasize the need for the President
and Congress to:
I. Make it clear that the Attorney General has broad coordinating
authority for Federal law enforcement and for minimizing overlap and
duplication.--The Commission recommends that the President and Congress
improve the administration of Federal law enforcement, and its
effectiveness, by making it clear that the Attorney General has broad
authority for oversight and coordination and by minimizing overlap and
duplication of agency functions.
II. Provide the intelligence and information needed to combat
terrorism.--The Commission recommends that the law enforcement and
intelligence communities review their procedures and policies to ensure
that the President, Congress, and the National Security Council have
adequate resources to coordinate activities and to pursue the
information that Federal, State, and local law enforcement agencies
need to combat terrorism.
III. Make global crime a national law enforcement priority.--The
Commission recommends that the President and Congress expand the attack
on global crime, narcotics trafficking, and cyber-crime with new
determination and energy.
IV. Reverse the trend toward federalization.--The Commission
recommends that Congress and the President support a new
``Federalization Prevention Act'' to minimize Federal intrusion into
State and local law enforcement and reverse the recent trend toward
``federalizing crime.''
V. Focus on professionalism, integrity, and accountability.--The
Commission recommends that the President and Congress require that
Federal law enforcement agencies establish new standards for
professionalism, integrity, and public accountability.
toward a new century and a changing world
This Commission believes that the Nation will face grave law
enforcement challenges in the years ahead. Its five-part action agenda
is designed to address those challenges. Members of the Commission
believe that the public understands the need for these actions and will
support policymakers as they work to put them in place. The Commission
urges the Congress and the President to move forward with its agenda.
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]President's Council on Integrity and Efficiency,
Executive Council on Integrity and Efficiency
March 2, 2000.
Hon. Strom Thurmond, Chairman,
Subcommittee on Criminal Justice Oversight, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Chairman Thurmond: Enclosed is the response from the
President's Council on Integrity and Efficiency (PCIE) and the
Executive Council on Integrity and Efficiency (ECIE) to the Commission
on the Advancement of Federal Law Enforcement report, ``Law Enforcement
in a New Century and a Changing World,'' presented at your hearing on
February 3, 2000. We request that this response in its entirety be
included in the record for this hearing as our official response to the
Commission's report.
The 1978 Inspector General Act and amendments established that the
detection and prevention of fraud, waste, abuse, and wrongdoing in the
Federal Government would be one of the highest priorities of the
Offices of Inspector General. The Inspector General community has lived
up to this responsibility. Over the last nine years, the community has
achieved more than 122,000 successful criminal prosecutions and
obtained over $13 billion in investigative recoveries. Our successful
record in handling varied and complex criminal and civil cases and
working with other law enforcement agencies speaks for itself.
As discussed in the enclosed response, the Commission's report
contained inaccuracies, unsupported statements, and conclusions that
lack empirical data and factual findings. We are further troubled that
the Commission did not provide an opportunity for the Inspector General
community to present substantive information concerning our operations.
Thank you for allowing the community to provide our views on the
Commission report. We welcome the opportunity to further discuss our
response or address other issues related to the Inspector General
community.
Sincerely,
Gaston L. Gianni, Jr.,
Vice Chair, PCIE.
Barry R. Snyder,
Vice Chair, ECIE.
Enclosure.
______
RESPONSE TO THE FINAL REPORT OF THE COMMISSION ON THE ADVANCEMENT OF
FEDERAL LAW ENFORCEMENT--``LAW ENFORCEMENT IN A NEW CENTURY AND A
CHANGING WORLD''
Executive Summary
The President's Council on Integrity and Efficiency (PCIE) and the
Executive Council on Integrity and Efficiency (ECIE) categorically
disagree with the recommendations of the Commission on the Advancement
of Federal Law Enforcement (Commission), as they apply to the inspector
general community. The Commission's observations, which are flawed and
unsupported, suggest that law enforcement authority be removed from the
Offices of Inspector General (OIGs) and assigned to other federal law
enforcement agencies, such as the FBI and Customs Service. The
Commission cites no objective evidence to support its sweeping
recommendations with regard to the OIGs. Further, we are concerned that
the members of the Commission were not sufficiently informed as to how
OIGs actually operate, since the IG community was not consulted about
the Commission's proposals or given the opportunity to provide the
Commission with substantive information concerning our operations.
In fact, an accurate and objective review of the record would
reveal the following:
OIG law enforcement operations have been highly successful in
producing tangible results, directly addressing the problems of
fraud, abuse, waste, and wrongdoing in federal programs. During
fiscal years 1991 through 1999, the PCIE and ECIE member
agencies achieved more than 122,000 successful criminal
prosecutions and obtained over $13 billion in investigative
recoveries. In addition, federal agencies took more than 19,000
personnel actions based on PCIE and ECIE investigations during
the same period.
The Commission's recommendations directly conflict with
rationale of the Inspector General Act of 1978 and its
amendments. This legislation specifically assigned investigate
authority to the OIGs because investigations of fraud, waste,
and abuse conducted by ``traditional'' law enforcement agencies
were not effectively coordinated and did not contribute to
improved program management at the agency level.
For over 20 years, the OIG law enforcement community, through
the PCIE and ECIE, has collectively undertaken aggressive
measures to foster high professional levels of training, work
quality and work standards. As a result, the PCIE and ECIE
members have developed a highly skilled and diverse workforce
of approximately 2,900 criminal investigators involved in
criminal and related civil cases nationwide.
The OIGs are well established within the law enforcement
community. The IGs are as accountable to the Department of
Justice for their investigative efforts as every other federal
law enforcement entity. The Department has extended blanket
deputation to all PCIE-member OIGs, and supports legislation to
grant statutory law enforcement authority for those offices.
Both proposed statutory and existing law enforcement
authorities are exercised and monitored under procedures
developed by the Department of Justice.
As Congress specifically recognized and assured when it passed
the Inspector General Act of 1978, no conflict of roles exists
among or between the audit, evaluation, and criminal
investigations components of the OIGs. The Commission's
supposition that such a conflict exists or could arise is
unsupported and incorrect. Placing investigators together with
auditors, analysts, and attorneys in the overall OIG
organization has generated a highly effective, synergistic
environment which has substantially improved their
effectiveness in dealing with white collar crime, and which
would be destroyed if law enforcement authority were to be
removed from the OIGs.
The Commission's recommendations to remove law enforcement
authority from OIGs would not be practical to implement, or if
implemented would be detrimental to effective management of
federal programs. Among the problems likely to arise would be
severely limited information flow to agency heads and the
Congress on law enforcement issues, diminished coordination of
investigative activities within and across agency lines, and a
drastic loss of expertise about agency programs among law
enforcement personnel.
Introduction
This white paper provides the responses of the President's Council
on Integrity and Efficiency (PCIE) and the Executive Council and
Integrity and Efficiency (ECIE) to the final report of the Commission
on the Advancement of Federal Law Enforcement (Commission).
The members of the PCIE and ECIE appreciate being afforded the
opportunity to place their views on the record. For the purposes of
this paper, we are limiting our remarks strictly to the Commission's
comments and observations pertaining to the offices of inspector
general (OIGs or IGs). As will be apparent, we differ pointedly with
the Commission's conclusions about the role and organizational
placement of the OIGs within the federal law enforcement community.
The Commission's report contains a number of sweeping
recommendations that would alter not only the fundamental conceptual
underpinnings of the inspector general community, but also the way in
which law enforcement services are made available to most federal
agencies. However, it appears that the Commission reached its
conclusions without objective evidence or empirical support for their
opinions. While our disagreement with the Commission's report extends
to essentially every aspect of their views about the inspectors
general, we are focusing this paper on the five issues listed below,
which we believe represent the principal thrust of the Commission's
commentary:
1. The Commission favors an ultimate configuration of the
federal law enforcement structure under which IG law
enforcement authority would be assigned to other agencies
(presumably the FBI), leaving the IGs to function as ``Auditors
General.''
2. The proposed Interagency Advisory Board on Federal Law
Enforcement which the Commission recommends to be established
in the executive branch, should be ``directed to examine the
growth and role of the function of the Inspector General * * *
throughout the Federal Government and to consider the wisdom
and feasibility of consolidating these offices.''
3. The Commission's report questions the ability of OIGs to
maintain appropriate professional standards, training, and
quality in its law enforcement activities.
4. The Commission believes that the proliferation of so many
independent law enforcement entities makes it difficult to
achieve the level of coordination by the Department of Justice
contemplated under EO 11396 (February 1968). The Commission's
report makes repeated references to the IGs as the principal
source of such proliferation and, on page 47, offers the
observation that, ``to bring a more realistic frame of
reference to the discussion'' the number of federal agencies
with law enforcement authority could be readily reduced by 40
percent if the OIGs were to be consolidated into a single
entity.
5. The Commission perceives there to be inherent conflicts
between the program review/evaluation role of the IGs and their
law enforcement role.
This white paper will clearly show that the foregoing conclusions
and observations are neither accurate nor justified by reference to the
way in which the IG community implements its law enforcement
authorities.
The Inspector General Legislation Shapes the Role and
Organization of the OIGs
The changes in IG authorities contemplated by the Commission are in
direct conflict with the rationale behind Inspector General Act of 1978
(Act), its amendments, and the case law construing the legislation.
While recommending, in effect, that twenty years of law and practice
based on the IG Act should be reversed, the Commission made essentially
no reference to the legislative underpinnings of the IG community.
However, the role and organization of the OIGs are entirely derivative
of the IG Act, and it is simply not possible to understand the IG
concept without reference to the legislation. Therefore, as our
starting point for setting the record straight we will explain the
purposes of the Act and the shortcomings in the structure of federal
law enforcement that it was designed to correct.
The implicit language and legislative history of the Act make it
clear that the Congress was addressing many of the concerns raised by
the Commission's report, particularly with respect to coordination of
law enforcement activities between the Department of Justice and other
executive agencies. By creating inspectors general in each agency with
independent investigative capabilities. Congress expected to remove
conflicts of roles among and between agency components responsible for
investigations of agency programs. By establishing investigative
offices with expert knowledge of the programs and organizational
structure of their respective agencies, Congress recognized that
management's needs would be more effectively served than by drawing law
enforcement services from another agency. This organizational structure
would also realize the synergistic effects of having audit and
investigative personnel working in concert on problems of fraud and
abuse in agency programs.
Congress repeatedly and explicitly stated its intent that the
inspectors general be investigative officials. Each PCIE IG must, by
law, appoint an Assistant Inspector General for Investigations, ``who
shall have the responsibility for supervising investigative activities
relating to [his/her agency's] programs and operations [IG Act, 5
U.S.C. App. at section 3(d)(2)]. Further, Congress directed that it is
the ``duty and responsibility'' of each Inspector General to ``conduct
* * * audits and investigations relating to the programs and
operations'' of their parent agency (emphasis added).
The role of the inspectors general as criminal investigators has
also been clearly and repeatedly recognized by federal courts. See, for
example, U.S. v. Educational Development Network Corp., 884 F.2d 737,
740-744 (3rd Cir. 1989) (recognizing anInspector General's authority to
issue a subpoena in a criminal investigation); U.S. v. Aero Mayflower
Transit Co., Inc., 831 F.2d 1142, 1145 (D.C. Cir. 1987) (recognizing
both civil and criminal investigative authorities of the Inspectors
General with coextensive subpoena powers); U.S. v. Medic House, Inc.,
736 F.Supp. 1531, 1537 (W.D. Mo. 1989) (enforcing a subpoena in a
Medicare criminal fraud case, noting that the IG has ``express
authority'' to conduct such cases).
Excerpts From the Legislative History of the Inspector General Act
A review of the legislative history of the Inspector General Act of
1978 indicates that Congress considered many of the same issues of
coordination and cooperation raised by the Commission, and designed the
Act to alleviate them. In reporting the Act to the House, the
Government Operations Committee acknowledged that Justice Department
officials had testified that: ``with some exceptions, working
relationship with other Federal departments and agencies on fraud
matters (were) far from optimum. [They] also told the subcommittee that
coordination would be easier if all agencies had a single high-level
official devoting full time to overall direction of both audit and
investigative activities.'' (House Report No. 95-584, pages 5-6, 1978)
On this same issue, the corresponding Senate Report No. 95-1071
states, at page 7, that the existence of an inspector general with both
audit and investigative authority ``strengthens cooperation between the
agency and the Department of Justice in investigating and prosecuting
fraud cases. The Department [of Justice] testified emphatically that
those agencies that have been the most effective co-partners * * * have
been those with viable offices of Inspector General.'' As Deputy
Assistant Attorney General Keeney testified, ``The combining of audit
and investigation functions under an Inspector General in the
respective departments and agencies virtually ensures that the
performance of the agencies will improve.''
During floor consideration in the Senate on September 22, 1978, of
H.R. 8588, The Inspector General Act of 1978, Senator Eagleton
discussed the rationale for calling the office ``Inspector General'' as
opposed to the Senate-proposed ``Inspector and Auditor General.''
Senator Eagleton stated: ``It has an established, well-understand
meaning. It conveys rather a multiplicity of functions, including
audit, investigations, inspection review of legislation and the
formulation and coordination of all policies to promote efficiency and
economy in Government and prevent and detect fraud, abuse and waste.
The change of name signals no reduction in my determination and the
committee's that the audit function play an essential role in the work
of the new Inspectors General. One hundred investigators operating on
their own can accomplish comparatively little when dealing with
multibillion-dollar programs. One hundred investigators operating in
connection with several hundred authors can become a vital force to
combat fraud, abuse, and waste in agency operations and programs, and
to promote economy and efficiency generally.'' (Congressional Record,
September 22, 1978, page S30954)
On the question of possible conflicts between audit and
investigative roles, the Senate Report indicated that: ``the
legislation gives * * * no conflicting policy responsibilities * * *
sole responsibility is to coordinate auditing and investigating efforts
and other policy initiatives designed to promote economy, efficiency
and effectiveness of the programs of the establishment.''
On the Senate floor, Senator Eagleton further discussed the
statutory provision for separate offices for audit and investigations:
``The second amendment restores a provision which the committee deleted
from the House version of H.R. 8588. The House-passed bill provided
that each Office of Inspector General would have an Assistant Inspector
General for Audit and an Assistant Inspector General for Investigation.
The committee believed that while most Inspectors General would
organize their offices with separate assistants in charge of audit and
investigation, such a requirement should not be statutorily mandated.
Both the House and Senate committees, however, agreed that the offices
would operate more effectively if the separation between audit and
investigation was statutorily delineated and I have no reluctance to
adopt the House approach.'' (Congressional Record, September 22, 1978,
S30954)
Further, Representative Fountain stated that enactment of this
legislation would: ``help to coordinate, within each agency and
throughout the Government, the work of numerous audit and investigative
units which are now disorganized and without effective leadership.''
(Congressional Record September 27, 1978, H32033)
As will be shown in the remainder of this paper, stripping the IGs
of investigative authority would return agencies to the situation,
which existed before passage of the IG Act. Although the Commission
does not address these facts, the record clearly demonstrates that, in
the pre-IG period, law enforcement efforts within agencies often
operated at cross-purposes and the means of addressing fraud, waste,
abuse, and wrongdoing were uncoordinated either within and across
agency lines. These unsatisfactory situations--precisely those which
the Commission wishes to avoid--were resolved by the IG Act, but could
recur if the history of the Act and the accomplishments of the IG
community under the IG legislation are ignored.
Achievements of the Inspector General Law Enforcement Community
The IG Act of 1978 was passed by nearly unanimous votes in both
houses of Congress, despite the fact that the (Carter) Administration
opposed the measure, and nearly every agency called to testify about it
recommended that IGs not be provided statutory authorities. Now, over
twenty years later, offices of inspector general with full statutory
powers are in place in essential every federal agency. They are
mainstays of the effort to address criminal activity in federal
programs. Congress has maintained continuous oversight of the IGs, and
on several occasions, with strong support of several Administrations,
has expanded both the number of IG offices and their authorities.
Although the Commission chooses to view this as a ``startling''
proliferation of small law enforcement agencies, we would suggest that
it is more accurately depicted as demonstrating how the success of the
IG concept has justified its being expanded and strengthened.
Further, the IG law enforcement entities have compiled an
outstanding record of tangible accomplishments. While success cannot be
measured solely by outputs, the numbers below unambiguously indicate
that (1) IG law enforcement entities are producing substantial results
in their present organizational configuration and, (2) the issues they
address--fraud, abuse, and wrongdoing in federal programs--represent
significant and serious problems that warrant focused and specialized
law enforcement attention.
SELECTED INVESTIGATIVE OUTPUTS, PCIE AND ECIE MEMBER ORGANIZATIONS FY
1991-FY 1999
------------------------------------------------------------------------
Output Measure Results
------------------------------------------------------------------------
Investigative Recoveries.................. $13,025,606,341
Successful Prosecutions................... 122,774
Personnel Actions......................... 19,359
------------------------------------------------------------------------
Notes: (1) Source of date is PCIE/ECIE Progress Reports to the
President, FY 1991-1999. (2) Numbers have been edited wherever
possible to remove duplicative or overlapping reports resulting from
joint activities. (3) Includes results reported by the Chief Postal
Inspector as a member of the ECIE, 1991-1996, and by the Office of
Inspector General, U.S. Postal Service, 1997-1999. (4) Reporting
period 1991-1999 was selected to reflect uniform reporting standards
which came into use in 1991.
In contrast, the Commission report adduced no evidence--either
statistical or anecdotal--to suggest that the IGs have not been
effective, or that law enforcement within federal agencies would
improve if authorities were to be stripped from the IGs and placed in
the FBI or other agencies. The Commission's authoritive iteration of
its position regarding IG law enforcement authorities appears as the
following unsupported statement of opinion, on page 116 of its final
report: ``The Commission believes that to the extent Inspectors General
are involved in law enforcement operations the cooperation of existing
law enforcement officials from agencies such as Customs and the FBI to
work with OIG officials is a better route than creating separate law
enforcement entities within OIGs.''
International Coordination and Law Enforcement Quality
in the IG Community
The Commission report makes repeated and generalized observations
to the effect that ``small'' law enforcement agencies (a category in
which the Commission clearly includes the (IGs) find it difficult to
maintain adequate standards of training, quality control, and
professionalism. The underlying assumption of these comments appears to
be that quality and professionalism are directly proportional to the
size of a law enforcement agency.
We find the Commission's analysis to be oversimplified and its
assumptions erroneous as applied to the IG community. Virtually since
their inception under the 1978 IG Act, the IG law enforcement entities
have worked closely with each other and with other agencies to assure
the quality of their work and the professionalism of their personnel.
As the results of these efforts, law enforcement with the OIGs has
evolved into a community of over 2,900 well-trained criminal
investigators whose primary thrust involves federal criminal or related
civil cases, often worked in conjunction with the ``traditional''
agencies such as the FBI, U.S. Secret Service, ATF, DEA, and Customs,
as well as state and local law enforcement bodies. Many of the OIG
cases involve specialized areas of investigation where the other
agencies defer to the expert knowledge of the IG special agents. Rather
than discounting ``small'' law enforcement agencies out of hand as
being doomed to professional inferiority, we would suggest that the IG
community's collective activities represent a standard on which other
agencies can model their own efforts to assure that they observe the
highest levels of training, quality, and professionalism.
Within the IG community, the PCIE and ECIE have taken the lead in
ensuring professional quality criminal investigations. These efforts
have been coordinated through the PCIE/ECIE Investigations Committee,
which is comprised of IGs from representative agencies who have been
active in various aspects of law enforcement and the Director, Office
of Government Ethics. The chair of the committee has traditionally been
an Inspector General with diverse federal law enforcement experience.
The Investigations Committee has produced several documents that
have provided guidance to the community on professional law enforcement
standards. Arguably, the most important is the revised ``Quality
Standards for Investigations.'' This publication includes individual
investigator standards for qualifications, independence, and due
professional care. It also establishes cases management standards in
planning, execution, reporting and information management. The
standards recommend each criminal investigator have professional
training adequate to conduct criminal investigations at the federal
level and that special agents also be involved in professional
developmentprograms providing increased knowledge levels as the
investigators advance through their career.
Two other publications of particular note developed through the
Investigations Committee are a ``best practices'' document and a
government-wide publication entitled ''OIG Investigations and You.'' In
1998, a working group of Assistant Inspectors General for
Investigations (AIGIs) developed model guidance for all OIGs in
operational practices within law enforcement agencies. These included
training standards, types, use and care of weapons, use of deadly
force, investigative practices, civil liberties, and record keeping.
The working group suggested minimum training standards that required
every criminal investigator complete training from the Federal Law
Enforcement Training Center (FLETC), the FBI Academy, or other
comparable basic training program. ``OIG Investigations and You'' was
prepared by the Investigations Committee as an electronic document that
could be distributed to the entire federal workforce. This pamphlet
explains the rights and responsibilities of federal employees when they
are involved in an OIG investigation.
Another critical role of the Investigations Committee is oversight
of the Inspector General Criminal Investigator Academy (IGCIA) located
in Glynco, Georgia. Serving as the board of directors for the IGCIA,
the committee has worked closely with FLETC officials and the community
to develop a professional training program for IG special agents that
meets recommended standards for federal investigators. In the past
year, the IGCIA was dramatically increased in size to better meet the
training needs of the OIG community. The IGCIA provides criminal
investigator training for IG special agents as the designated follow-up
to the FLETC Criminal Investigator Basic program. The IGCIA also
conducts follow-up training in areas of investigations deemed critical
to meet DOJ and community standards. Advanced training is also provided
to meet special training needs as individuals continue through their
career.
Closely related to this effort, the IG community has actively
participated in the operations of FLETC, including representation on
the FLETC Board of Directors, curriculum development committees, and
other development programs. Special agents from the PCIE and ECIE
agencies participate in classes at FLETC, and occasionally, on an as-
needed basis, at the FBI Academy and other accredited training
facilities.
Though the Investigations Committee remains the central focal point
for investigative issues, there are other activities within the
community that have influenced the development of community-wide
professional law enforcement operations. These include the coordination
of joint OIG investigations, establishment of quality assurance
programs in every OIG, participation in multi-agency task forces, and
legal coordination.
Every OIG has established quality assurance safeguards within its
investigative program. These address the need for maintaining the
highest quality of professional operations. Most of these reviews are
based upon the standards established in ``Quality Standards for
Investigations.''
Coordination by the Department of Justice
The Commission's assertions that proliferation of OIGs and other
``small'' law enforcement agencies undermines the overall direction of
federal law enforcement efforts and makes coordination by the
Department of Justice (DOJ) difficult are not reflected in actual
practice. The IGs are as accountable for their actions as any other law
enforcement agency, and, because of the semiannual requirements, must
provide a public record of their principal activities on a regular and
continuing basis. Every IG has a continuing relationship with
congressional oversight committees and, because of their audit role,
with the General Accounting Office (GAO). Every IG holds membership on
either the PCIE or ECIE, which are chaired by the Office of Management
and Budget and exist precisely for the purposes of assuring that the
IGs efforts are appropriately coordinated within the Executive Branch
and that important government-wide problems are addressed.
On a case-by-case basis, Assistant United States Attorneys direct
most federal law enforcement efforts by making prosecutorial decisions
in their respective districts concerning issuance of indictments,
empanelling grand juries, use of grand jury subpoenas, and the approval
of surveillance, undercover operations and other investigative
techniques. IG criminal investigators are subject to all of the
Department of Justice standards, guidelines, and control associated
with these activities. Through this process, DOJ and the United States
Attorney's Offices provide oversight as well as guidance to the OIGs.
With few exceptions, the United States Attorneys have embraced and
commended the investigative services they have received from the OIGs,
recognizing both the investigative abilities of OIG agents and the
expertise that these agents possess with respect to specific agency
programs.
In addition, the Department of Justice has supported OIG inclusion
in special task force operations, which are being used more frequently.
These task forces cover the range of federal investigations in areas
such as welfare and Medicare fraud, health care fraud, organized crime,
drug trafficking, border and immigration integrity, multi-objective
projects such as Operation Safe Homes and Operation Talon, and other
high profile criminal investigative initiatives involving the programs
of every federal agency. Not only are special agents from OIGs included
in these task forces, they are considered full partners, often taking
lead roles in critical aspects of an investigation. These partnerships
in most cases include, among other, the FBI, Secret Service, DEA, ATF
and/or Customs.
While the IG Act of 1978 did not explicitly provide a full range of
criminal law enforcement authorities, because of the proven success and
professionalism of the IG law enforcement community, such authorities
have become available progressively as the OIGs have evolved. For many
years, the only method by which full law enforcement authority was
extended to most OIG investigators was for the DOJ to authorize
deputation to each individual on a case-by-case basis. However, at this
time, blanket deputation for IG special agents is provided through
memoranda of understanding (MOU) between DOJ and the respective OIGs.
As a further step, DOJ now supportslegislation to grant statutory law
enforcement authority (to include uniform qualification and related
standards) for all OIGs in the PCIE.
Deputation agreements mandate uniform standards for completing
basic and continuing special agent training, including regular criminal
and civil legal updates, and for conducting criminal investigations. It
also requires coordination and procedural adherence to DOJ standards.
The present blanket authorities through the MOUs also require reporting
and DOJ oversight of IG investigative operations. The net result is
observance of professional standards throughout the IG community that
meet all the requirements of the DOJ.
Further, the inspectors general have MOUs with the FBI and other
federal law enforcement agencies to ensure coordination. This has
resulted in a working relationship that ensures that all aspects of
federal law enforcement work closely together. It also means that
overlapping or conflicting investigations are less apt to happen. Some
of these agreements have been in place since the establishment of the
first IGs in 1978.
Clearly, the existence of law enforcement components within
individual OIGs has strengthened rather than undermined federal law
enforcement efforts. Even if ``traditional law enforcement'' moves in
the direction envisioned by the Commission, to combat globalized crime,
more sophisticated narcotics trafficking, and terrorism, the need to
address crime in government programs will continue to exist. Although
the Commission does not appear to make the connection, we note the
finding in their own survey of attitudes toward crime (discussed on
page 30 of the Commission's final report) that ``white collar fraud,''
which is the principal focus of IG law enforcement, elicits a high
level of public concern, equivalent to carjacking and organized crime.
Thus, instead of conflicting or overlapping, the continued presence of
strong IG law enforcement authorities remains essential to ensuring
that the priorities of Congress and the American public are
implemented.
Working Together--Synergy Without Conflict
As quoted above from the IG Act's legislative history, in
fashioning the IG legislation, Congress very intentionally did not
choose to isolate the law enforcement personnel who would be
investigating agency programs within an organization devoted solely to
criminal law enforcement. As anticipated, the investigative role of the
IGs has been greatly improved by the close working relationships among
the investigators, auditors, attorneys, and evaluators who comprise IG
staffs. Indeed, skilled analysis by auditors of complex financial
transactions involved in white collar fraud schemes has become a
cornerstone of efficient investigation and prosecution of those crimes.
Implementing the Commission's recommendation to remove law enforcement
authority from the IGs would sever this collaboration by removing the
investigators, with their specialized experience and expertise, from
the agencies in which they are located. There is no historical,
anecdotal, or statistical evidence of which we are aware, or which is
offered by the Commission, to support the upheaval their recommendation
would cause.
Removing Law Enforcement Authority Would Disrupt Important
Contributions to Management of Agency Programs
The foregoing sections of this white paper demonstrate that the IG
offices, as presently constituted, have met and exceeded all of the
expectations which Congress associated with the IG Act. Further, the
IGs have been operationally effective, and have implemented and
observed very high standards of quality, training, and professionalism.
In the absence of any information or analysis by the Commission to
buttress its viewpoint, these factors alone provide convincing support
for maintaining IG law enforcement authorities.
There is, however, yet another serious shortcoming of the
Commission's report. Although the Commission purported to address only
law enforcement concerns, in fact it undertook to make recommendations
about the structure, function, and role of parts of nearly every
federal agency. And those parts--the OIGs--themselves have the
authority to affect essentially every program in their respective
agencies. Therefore, an assessment of the Commission's report cannot
focus simply on law enforcement in isolation, but must consider the
potential impact of its comments and recommendations on the full range
of management challenges facing federal agencies.
By this standard, we conclude that actual implementation of the
Commission's recommendations about the IG community would either
generate results contrary to their expressed purpose or would create
management problems more serious than the law enforcement problems the
Commission discusses. Specifically, if law enforcement authority were
to be removed from the OIGs in keeping with the Commission's
recommendations, we believe the following three management problems
would quickly ensue. Ironically, Congress recognized in 1978 that the
absence of law enforcement at the agency level generated precisely
these problems, and they addressed all of them in the IG Act.
a. information flow to congress and the agency heads would be reduced
The Inspector General Act establishes an information flow that is
unique among federal law enforcement agencies. The IGs ultimately
report their findings to and through the agency head. At the same time,
the mechanism of the IG semiannual reports assures that information on
the IGs most significant results, accomplishments, and problems is
provided to Congress. The ``seven-day letter'' provision, although
seldom used, provides an independent ``fast track'' channel for the IG
to bring exceptionally serious problems to Congress' attention on an
urgent basis.
All of these provisions were in direct response to (1) the obvious
void of information flow among the traditional law enforcement
agencies, federal agencies whose programs or personnel were being
investigated, and Congress, and (2) the limitations of thecase-by-case
approach taken by the traditional law enforcement agencies as a means
of developing useful information for the program management or
legislative perspective. The IG Act requirement that the agency head
forward the IG report to Congress, with his comments, assures both that
agency management considers and addresses the IGs' reports and that
Congress receives the benefit of management input, as well as the IGs,
on significant problems.
The current reporting system fills the essential needs of both
agency management and Congress for continuing and reliable information
about problems that warrant their attention and action. However,
adopting the Commission's recommendations for removing law enforcement
authority from the IGs would re-create the former information void.
Outside law enforcement agencies would have no responsibility to report
to agency heads or Congress, and the connection between investigative
results and program operations--the essence of the IG Act reporting
system--would be lost.
b. the igs' positive contribution to effective program management
would be dismissed
From the inception of the statutory inspectors general, both
Congress and the agencies have understood them to be more than simply
audit and law enforcement organizations superimposed on existing agency
structures. In fact, the premise of the IG concept is that it would
improve the management of federal programs by identifying and rooting
out fraud, abuse, waste, inefficiency, and wrongdoing. To consider IGs
strictly as law enforcement entities is to ignore their larger,
underlying purpose.
Placement of the IGs, and their associated law enforcement
authorities, within the agency, gives the agency head more control of
his programs than if the law enforcement personnel serving the agency
were from another agency. On page 58 of its final report, the
Commission states that: ``[T]he independence of OIGs as mandated by
Congress from program operations and from management within a
department can become a future problem area without coordination and
oversight of IG action.''
But in fact, this statement is not only unsupported by any
objective information in the Commission's report, it is inherently
illogical as support for removing law enforcement authority from IGs
and placing it in another law enforcement agency. As the IG Act
unambiguously recognized, an agency is far better able to coordinate,
and benefit from, law enforcement activities undertaken by its IG than
it would the activities of the FBI if law enforcement authority were
removed from the IG and placed with the FBI.
The proximity and visibility of OIG agents within an agency bestows
several tangible advantages for the integrity of the agency's programs.
First, an official with concerns about fraud in his programs will be
far more likely to contact an OIG agent in the office next door than to
call a ``centralized law enforcement entity.'' Further, the presence of
an OIG with law enforcement capabilities generates a deterrent effect.
Many OIGs conduct fraud awareness and outreach programs. In fact, such
proactive efforts are mandated in the IG Act, which speaks of the
``preventing'' as well as ``detecting'' fraud, waste, abuse, and
mismanagement. The effectiveness and feasibility of outreach activities
are tied directly to their applicability to specific situations found
in the agency. A centralized law enforcement agency would likely find
it difficult to mount efforts which are relevant across the board.
The Commission's quotation of a National Performance Review
comment, which is taken out of context, to the effect that some agency
personnel consider IG personnel to be high-handed, is utterly
misleading. It was not a conclusion of that report, but a statement by
an anonymous government official. Any law enforcement organization may
be considered threatening or coercive by persons who are subject to its
authority; in fact, federal employees may be compelled to provide
information to IGs and all other federal law enforcement agencies, to
the extent that such disclosures do not violate their constitutional
rights. The fact that some nameless persons may hold a certain opinion
of IG staff does not support the point that it is inappropriate for law
enforcement authority to reside in the IGs.
c. law enforcement efforts would suffer from the loss of specialized
knowledge of agency programs
We strongly disagree with the Commission's premise that the IG
community is outside the ``mainstream'' of federal law enforcement. In
fact, over 20 years of expertise in addressing criminal violations
particular to the agencies they serve has actually placed the IG
criminal investigative components in a better position to service the
law enforcement needs of their agencies than a ``generalist'' law
enforcement entity. To suggest, as the Commission seems to do, that a
general federal law enforcement agent could be conversant in the
intricacies of Medicare fraud, oil and gas royalty fraud, and passport
and visa fraud is simply not reasonable. Further, OIG special agents
not only have expertise germane to their own agency, but also on the
way common frauds are prepetrated in the agency context. For example,
while OIGs in all agencies may investigate procurement fraud, procuring
services to construct an embassy overseas is vastly different from
procuring a cleanup of a wetland endangered by an oil spill. Simply
knowing the Federal Acquisition Regulations is not enough--to be truly
effective, one needs to know how it is applied within the specific
agency.
Many of the trends noted the Commission report itself as to the
increasing sophistication and organization of criminal behavior mean
that the need has increased for federal law enforcement personnel to
``specialize'' and become truly expert about what they are doing.
Congress has recognized this by heightening the responsibilities of
various IGs to fight fraud. One among many examples is the Health
Insurance Portability and Accountability Act of 1996 (HIPAA), which
established the Health Care Fraud and Abuse Control Program,
administered jointly by the Attorney General and the Department of
Health and Human Services (HHS), acting through the HHS Inspector
General [see 42 U.S.C. 1230a-7c(a)(1)]. The HHS IG receives mandatory
funding from the Medicare trust funds to support intensified efforts
against fraud and abuse in theMedicare/Medicaid programs. Using its new
authority and resources, in three years since passage of HIPAA, the HHS
IG has achieved a 139 percent increase in criminal convictions in
health care cases, a 111 percent increase in health care administrative
sanctions, and a 51 percent increase in fines, penalties, restitution,
and multiple damages in health care investigations over the combined
total amount for the prior 10 years.
In this regard, government program needs warrant the same highly
directed and expert attention as the problems of terrorism,
international narcotics trafficking, and global crime identified by the
Commission's report. Further, much as ``specialized'' law enforcement
personnel may not be aware how to address terrorism, efforts to combat
fraud in government programs will not be well-served by a
``generalist'' law enforcement entity that needs to learn the
intricacies of the victimized program before it can develop an
investigative plan to deal with the criminal. Although the Commission
may hold the opinion that it is ``better'' to provide law enforcement
services from large ``generalist'' agencies than from smaller
``specialist'' entities, it offers no evidence to indicate the need for
one excludes or replaces the need for the other.
______
President's Council on
Integrity and Efficiency,
February 4, 2000.
Hon. Strom Thurmond, Chairman,
Subcommittee on Criminal Oversight, Committee on the Judiciary, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: As Chairman of the Investigations Committee of
the President's Council on Integrity and Efficiency, I want to register
my strong opposition to the conclusion reached by the Commission on the
Advancement of Federal Law Enforcement concerning the investigative
authority of Inspectors General. On page 116 of its report, ``Law
Enforcement in a New Century and a Changing World,'' the Commission
recommends: ``* * * the function of the Office of the Inspector General
should be to act as an Auditor General, not as a law enforcement
entity.''
We do not duplicate other law enforcement agencies. We coordinate
and work closely with the Attorney General and the U.S. Attorneys to
enhance their ability to investigate and prosecute fraud in our
respective agency programs.
The hallmark of our existence is independence from political
pressure and objectivity in finding fact. We are a justifiably proud
community of office of inspectors general because of our
accomplishments. Our law enforcement agents are traditionally and
extensively training in all aspects of criminal law enforcement. They
are professional in every sense of the word and possess the integrity
and accountability necessary to ensure productive law enforcement.
I request to have this letter placed in the record of the Committee
Hearing of February 3, 2000 on this report and the opportunity to meet
with you to discuss the specifics of why the report is erroneous with
respect to these matters. Please feel free to call me at (202) 606-
1200.
Sincerely,
Joseph R. Williams,
(For Patrick E. McFarland,
Chair, Investigations Committee).
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