[Senate Hearing 107-447]
[From the U.S. Government Publishing Office]
S. Hrg. 107-447
OVERSIGHT OF THE FBI
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
JUNE 20 AND JULY 18, 2001
__________
Serial No. J-107-27
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2002
____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
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WEDNESDAY, JUNE 20, 2001
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 16
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 13
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 8
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 10
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 6
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin... 18
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky. 60
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 15
WITNESSES
Bromwich, Michael R., former Inspector General, Department of
Justice, Washington, D.C....................................... 29
Danforth, John C., former United States Senator from the State of
Missouri, St. Louis, Missouri.................................. 19
Fine, Glenn A., Inspector General, Department of Justice,
Washington, D.C................................................ 23
Rabkin, Norman J., Managing Director, Tax Administration and
Justice Issues, General Accounting Office, Washington, D.C..... 39
Webster, William, Senior Partner, Milbank, Tweed, Hadley and
McCoy, LLP, Washington, D.C.................................... 25
WEDNESDAY, JULY 18, 2001
STATEMENTS OF COMMITTEE MEMBERS
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 93
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 99
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin... 156
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 63
WITNESSES
Dies, Bob E., Assistant Director, Information Resources Division,
Federal Bureau of Investigation, Washington, D.C............... 77
Kelly, Raymond W., Senior Managing Director, Bear Stearns, New
York, New York and former Commissioner, U.S. Customs Service... 72
Kiernan, Patrick J., Supervisory Senior Resident Agent, Federal
Bureau of Investigation, Washington, D.C....................... 133
Perry, Frank L., Supervisory Senior Resident Agent, Federal
Bureau of Investigation, Washington, D.C....................... 128
Roberts, John E., Unit Chief, Office of Professional
Responsibility, Federal Bureau of Investigation, Washington,
D.C............................................................ 114
Senser, Kenneth H., Acting Deputy Assistant Director, Security
Programs and Countermeasures, Federal Bureau of Investigation,
Washington, D.C................................................ 83
Werner, John, Blue Sky Enterprises of North Carolina, Inc., Cary,
North Carolina................................................. 121
------
QUESTIONS AND ANSWERS
Questions from Senators Leahy and McConnell for Senator Danforth. 144
Questions from Senator Leahy for Norman Rabkin................... 145
Responses of John C. Danforth to questions submitted by Senators
Leahy and McConnell............................................ 146
Responses of Norman J. Rabkin to questions submitted by Senator
Leahy.......................................................... 148
Responses of William H. Webster to questions submitted by Senator
Leahy.......................................................... 149
SUBMISSIONS FOR THE RECORD
Ashcroft, Hon. John, Attorney General of the United States,
memorandum, June 20, 2001...................................... 152
Federal Bureau of Investigation:
John E. Collingwood, Assistant Director, Office of Public and
Congressional Affairs, letter, June 20, 2001............... 153
Louis J. Freeh, Director, memorandum, August 15, 2000........ 154
Hatch, Hon. Orrin G., Major Accomplishments of FBI Director Louis
J. Freeh, 1993-2001, summary................................... 160
Walker, Samuel, Department of Criminal Justice, University of
Nebraska at Omaha, Omaha, Nebraska, statement.................. 156
OVERSIGHT: RESTORING CONFIDENCE IN THE FBI
----------
WEDNESDAY, JUNE 20, 2001
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 1:05 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Feinstein, Feingold, Schumer,
Durbin, Hatch, Grassley, and Sessions.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good afternoon. The Judiciary Committee
will begin oversight hearings on the Federal Bureau of
Investigation today. Oversight of the Department of Justice, of
which the FBI is a part, is among this Committee's most
important responsibilities, and there has never been a greater
need for constructive oversight of the Bureau.
The FBI has long been considered a crown jewel of law
enforcement agencies. Unfortunately, today it has lost a lot of
its earlier luster. Unfortunately, the image of the FBI in the
minds of too many Americans is that this agency has become
unmanageable, unaccountable and unreliable. Its much-vaunted
independence has been transformed for some into an image of
insular arrogance.
I think this is unfortunate because of the extremely
dedicated men and women in the Bureau, many who do work at the
finest possible level. But we now have an historic window of
opportunity to examine the present state of the FBI and help
guide constructive reforms to make the Bureau more effective,
better managed and more accountable.
The current FBI director has announced his resignation. No
successor has yet been named, and so this is a particularly
appropriate time for us to take stock and think about how we
should plan for the FBI in the 21st century, and also what
guidance this Committee might give to the new director, whoever
he or she may be.
I would hope that these hearings will help the members of
this Committee prepare for the new director's confirmation
hearings. We had invited Director Freeh here today to thank him
for his public service and to hear from him what his advice
would be to his successor. I thought it would be appropriate to
begin these hearings by acknowledging all the positive
contributions he has made during his last 8 years. I also
wanted to get his assessment of the problems that remain. When
I spoke to him last week, he explained that he would not be
able to attend.
In recent years, we have seen case after case where the FBI
has fallen short, and sometimes far short of the high standards
of professionalism and integrity that we expect of our Nation's
premier law enforcement agency.
Last month, a veteran FBI agent was indicted for allegedly
selling some of this country's most sensitive classified
information to the Russians. According to the indictment, it is
claimed spying went on for more than 15 years before the FBI
detected the source of major security breaches and intelligence
losses, despite numerous red flags that pointed to him. We
learned from press reports today that just last week a support
employee of the FBI in Las Vegas was arrested for allegedly
selling sensitive investigative material to organized crime for
over a year.
In the Oklahoma City bombing case, the FBI revealed only a
few days before the defendant was scheduled to be executed that
it had violated its discovery obligations by failing to turn
over thousands of pages of documents to the defense. While the
trial judge later ruled that this violation did not undermine
the defendant's conviction or death sentence, the trial judge
noted that it was up to others to hold the FBI accountable for
its conduct.
Whatever questions the belated document production raised
about the efficacy of the FBI, the trial judge concluded that
the integrity of the adjudicative processes leading to the
verdict and death penalty were sound. The judge said, ``There
is a great deal of difference between an undisciplined
organization and an organization that is not adequately
controlled that can't keep track of its information. Those are
not the questions here. We are not here for the purpose of
trying the FBI.''
But the Oklahoma City bombing case is only the most recent
one in which the FBI has violated its disclosure obligations.
In 1995, a Subcommittee of the Judiciary Committee, under the
leadership of Senators Specter and Kohl, held hearings on the
tragic events at Ruby Ridge. The Subcommittee report, in which
I joined, found that the FBI had willfully and repeatedly
failed to abide by discovery rules and had irreparably damaged
the Government's presentation of evidence at the criminal
trial, causing a Federal judge to impose contempt sanctions.
We have also seen cases such as those of Wen Ho Lee,
Richard Jewell and Tom Stewart, in which the FBI improperly
leaked information about an ongoing criminal investigation.
More than that, these premature leaks about suspected criminals
may focus attention on the wrong persons and allow the real
culprits to escape detection. We saw this after the Centennial
Olympic Park bombing in July 1996, during the Summer Olympic
Games. The FBI was making it very clear to the country that
they had the right person, had him under surveillance, and so
and so forth, and then finally acknowledged a series of
mistakes. They had the wrong person. By then, the person they
eventually charged had fled the area.
Tom Stewart was paid $6 million in damages last year as a
result of the FBI wrongfully releasing damaging information
that he was a criminal suspect. Wen Ho Lee's suit is still
pending. Of course, we know the amounts of money paid following
Ruby Ridge.
Serious questions have been raised about the FBI's use of
informants. There have been cases in which FBI agents have
allegedly leaked confidential law enforcement information to
criminal informants, and then the informants use that as a way
to flee.
In a case in Boston, I think one of the most egregious
matters, the FBI allegedly allowed two innocent men to spend
decades in prison for a murder that the FBI knew had been
committed by one of its informants. In a case in New York, an
FBI agent allegedly leaked information in a Mafia case about
the imminent arrest of a confidential informant's son, who then
fled.
Everybody on this Committee knows the tremendous things
that the FBI has done to protect and preserve the people of
this country and to uphold our laws. But when we see these
kinds of failures and mistakes, it is no wonder that public
confidence has weakened in the FBI.
According to a recent Gallup poll, only 38 percent of
Americans have a great deal or quite a lot of confidence in the
FBI. Twenty-three percent of those polled had very little or no
confidence in the FBI. Confidence in State and local police is
substantially higher, with about 60 percent of Americans having
a great deal or a lot of confidence.
An erosion of public trust threatens the FBI's ability to
perform its mission. Think of the effect it will have on judges
and juries and people who must rely on the FBI. Think of what
happens when FBI agents perform forensic and other critical
work for law enforcement and we cannot trust them.
We have allocated to the FBI millions, even billions of
dollars in increased funding because we wanted to have it
become one of the world's leading crime-fighting agencies.
Simply throwing money is not enough; we must do the oversight
necessary.
We are not here to find ways to tear down the FBI, but to
find ways to restore confidence in it. There are many
irresponsible critics of the FBI who promote their conspiracy
theories on Internet web sites and in the popular media.
Fortunately, the great majority of American citizens have too
much sense to believe in this.
The FBI is a national asset, and we should help it function
effectively. We should not overlook the brave men and women,
many of whom put their lives on the line for us all the time,
from the FBI. We often forget the far greater number of cases
where the FBI does its job quietly, professionally and without
public fanfare, as we focus on those where they don't. Any
constructive criticism of the FBI as an institution is not
meant in any way to disparage its agents' sacrifices on our
country's behalf.
Our efforts must be, and I am confident will be bipartisan.
During the past several weeks, Senators on both sides of the
aisle have expressed their concern about the present state of
the FBI. They have talked about various legislative proposals
to address the problems they have identified, both Republicans
and Democrats have. So it is not an issue of either political
party; it is an issue of the future security of our country.
We have to ask ourselves, who polices the FBI? Our focus is
the mechanisms that currently exist for overseeing the
activities of the FBI, and we should identify any gaps there.
We have an outstanding panel here today. Most are known to
each member of this Committee. They all have familiarity and
expertise with different aspects of the oversight process, and
we will hear from them because our goal is to restore the
luster, the effectiveness and the professionalism of this law
enforcement agency and make it a crown jewel of not only our
law enforcement agencies but those throughout the world.
[The prepared statement of Senator Leahy follows:]
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
Today, the Judiciary Committee begins oversight hearings on the
Federal Bureau of Investigation. Oversight of the Department of
Justice, of which the FBI is a part, is among this Committee's most
important responsibilities. There has never been a greater need for
constructive oversight of the FBI. The FBI has long been considered the
crown jewel of law enforcement agencies. Today, it has lost some of its
earlier luster. Unfortunately, the image of the FBI in the minds of too
many Americans is that this agency has become unmanageable,
unaccountable and unreliable. Its much vaunted independence has
transformed, for some, into an image of insular arrogance.
We now have an historic window of opportunity to examine the
present state of the FBI and help guide constructive reforms to make
the Bureau effective, better managed, more accountable. The current FBI
director has announced his resignation. No successor has not yet been
named. This is a particularly appropriate time for us to take stock and
think about how we should plan for the FBI of the 21st century. I would
hope that these hearings as will help the Members of this Committee
prepare for the new Director's confirmation hearings as well as apprise
the nominee of the challenges that confront us all.
We had invited Director Freeh here today to thank him for his
public service and to hear from him what his advice would be to his
successor. I thought that it would be appropriate to begin these
hearings by acknowledging all the positive contributions that he has
made during the last eight years. I also wanted to get his assessment
of the problems that remain. He explained to me when we spoke last week
that he was unavailable due to illness in his family. We regret that
family illness has prevented him from joining us here this afternoon,
and wish his family good health.
In recent years we have seen case after case where the FBI has
fallen short--and sometimes far short--of the high standards of
professionalism and integrity that we expect of our nation's premier
law enforcement agency:
Last month, a veteran FBI agent was indicted for
allegedly selling some this country's most sensitive classified
information to the Russians. According to the indictment, his
alleged spying went on for more than 15 years before the FBI
detected the source of major security breaches and intelligence
losses, despite numerous ``red flags'' that pointed to the
defendant. According to the public complaint and indictment in
the case, these ``red flags'' included a 1986 wiretapped
conversation between the defendant and a KGB officer in the
Soviet embassy; the confession of a convicted American spy,
Earl Pitts, who warned about another ``mole'' within the FBI
and specifically named the defendant; the report of an FBI
analyst, who also warned of a ``mole'' within the FBI, but
whose warnings were not credited; and the defendant's own
suspicious financial situation and use of FBI computers.
We learned from press reports today that last week, a
support employee of the FBI in Las Vegas was arrested for
allegedly selling sensitive investigative material to organized
crime for over a year.
In the Oklahoma City bombing case, the FBI revealed
only a few days before tile defendant was scheduled to be
executed that it had violated its discovery obligations by
failing to turn over thousands of pages of documents to the
defense. While the trial judge later ruled that this violation
did not undermine the defendant's conviction or death sentence,
the trial--judge noted that it was tip to others to hold the
FBI accountable for--its conduct. Whatever question the belated
document production raised about the efficacy of the FBI, the
trial judge concluded that the integrity of the adjudicative
process leading to the verdict and death penalty were sound. He
said: ``there is a great deal of difference between an
undisciplined organization or organization that is not
adequately controlled or that can't keep track of its
information--those are not the questions here. We're not here
for the purpose of trying the FBI.''
The Oklahoma City bombing case is only the most recent
one in which the FBI has violated its disclosure obligations.
In 1995, a Subcommittee of the Judiciary Committee, under the
leadership of Senators Specter and Kohl, held hearings oil the
tragic events at Ruby Ridge. The Subcommittee report, in which
I joined, found that the FBI had ``willfully and repeatedly
failed to abide by discovery rules,'' and had ``irreparably
damaged the government's presentation of evidence at the
criminal trial,'' causing a federal judge to impose contempt
sanctions against the government.
We have also seen cases such as those of Wen Ho Lee,
Richard Jewell and Tom Stewart in which the FBI has improperly
leaked information about an ongoing criminal investigation.
This is a deeply serious issue that troubles all who are
concerned with protecting the integrity of our justice system
and the constitutional rights of our citizens. More than that,
these premature leaks about suspected criminals may focus
attention on the wrong persons and allow the real culprits to
escape detection, to the detriment of our public safety and
national security. For example, the criminal who committed the
Centennial Olympic Park bombing in July 1996, during the Summer
Olympic Games, remains at large. On occasion, these leaks
result in substantial verdicts against the government for which
we taxpayers foot the bill. Tom Stewart was paid S6 million in
damages last year as a result of the FBI wrongfully releasing
damaging information that he was a criminal suspect. Wen Ho
Lee's lawsuit against the government is still pending.
Serious questions have also been raised about the
FBI's use of informants. There have been cases in which FBI
agents have allegedly leaked confidential law enforcement
information to criminal informants, which the informants then
used to commit crimes or to flee. In a case in Boston, the FBI
allegedly allowed two innocent men to spend decades in prison
for a murder that the FBI knew had been committed by one of its
informants. In a case in New York, an FBI agent allegedly
leaked information in a Mafia case about the imminent arrest of
the confidential informant's son, who then fled.
This list of failures and mistakes has seriously weakened public
confidence in the FBI. According to a recent Gallup poll, only 38
percent of Americans have ``a great deal'' or ``quite a lot'' of
confidence in the FBI, and 23 percent of those polled had very little
or no confidence ill the FBI. Confidence in state and local police is
substantially higher, with about 60 percent of Americans having ``a
great deal'' or ``quite a lot'' of confidence in these other law--
enforcement forces. This erosion of public trust threatens the FBI's
ability to perform its mission. Citizens who mistrust the FBI will he
less likely to come forward and report information about criminal
activity. Judges and jurors will be less likely to believe the
testimony of FBI witnesses. Even innocent or minor mistakes by the FBI
in future cases may he perceived in a sinister light that is not
warranted. Since FBI agents perform forensic and other critical work
for many law enforcement agencies on the federal, state and local
levels, the repercussions of this lapse in public confidence in the FBI
has rippled far beyond just federal criminal cases.
To many of us in Congress, this is a particularly troubling
situation. For years, we have almost never said no when the FBI has
asked us for new resources. We have allocated to the FBI millions of
dollars in increased funding because we all wanted to see it remain the
world's leading crime-fighting agency. It should be obvious now that
simply throwing more money at the FBI is not the answer. The time has
come when this Committee must exercise its oversight responsibilities
and take a hard, thorough and nonpartisan look at the FBI to determine
what has gone wrong and what can be done to fix things.
But as we go about this process, there are several things that we
need to bear in mind.
First, our purpose in holding these hearings is to find ways to
restore confidence in the FBI, not to tear it down. There are many
irresponsible critics of the FBI who promote their conspiracy theories
on Internet Web sites and in the popular media. Fortunately, the great
majority of the American people have too much common sense than to
believe them. The FBI is a vital national asset, and we need it to
function effectively.
Second, we must not overlook the fact that the FBI is staffed by
many brave, dedicated men and women who risk their lives protecting the
interests of this country and the safety of its citizens. While we are
constantly reminded of the cases where things have gone wrong, we often
forget the far greater number of cases where the FBI does its job
quietly, professionally and without public fanfare. Any constructive
criticism of the FBI as an institution is not meant in any way to
disparage its agents' sacrifices on our country's behalf.
Finally, our efforts must be, and I am confident will be,
bipartisan. Over the past several weeks, senators on both sides of the
aisle have expressed their concern about the present state of the FBI
and discussed various legislative proposals to address the problems
they have identified. This is not a Democratic or Republican issue. The
future security of our country is far too important.
The question at the center of our first hearing is this: Who
polices the FBI? Our focus is the mechanisms that currently exist for
overseeing the activities of the FBI, and we intend to identify any
gaps and problems that currently exist in FBI oversight, determine the
status of oversight investigations that are currently underway and
begin to formulate ways that oversight can be improved. We are
extremely fortunate to have with us an outstanding panel of
distinguished witnesses who have familiarity and expertise with
different aspects of the oversight process. I look forward to hearing
from them about how this process works now and how we can make it work
better to ensure that mistakes are acknowledged, constructive
recommendations for reform are adopted, and intentional misconduct is
adequately punished. Our goal is to restore the luster, the
effectiveness and the professionalism of the crown jewel of law
enforcement agencies.
Chairman Leahy. I turn to my good friend, the senior
Senator from Utah.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Thank you, Chairman Leahy. I would like to
thank you for convening this hearing.
The Federal Bureau of Investigation, of course, is the
preeminent law enforcement agency in the world. It plays an
essential role in our criminal justice system, and its ability
to investigate crimes and find out the truth is unmatched
anywhere in the world.
There are millions of cases that the FBI has handled. I
think we can always single out a few where it hasn't handled
them very well, but that is probably true of, I believe, any
organization. It may even be true of the U.S. Senate. I doubt
it, but you never know.
That said, there are serious issues concerning the
operation of the FBI that must be addressed in a thoughtful,
substantive, and proactive way. The American people rely on the
protections provided by the fine men and women at the FBI and
deserve the best possible performance that the FBI can deliver.
Unquestionably, there is always room for improvement in the
operation of the Bureau. The FBI, in conjunction with the
Justice Department, simply must adhere to the highest standards
of conduct in its investigations, in its use of informants, and
in the fulfillment of its discovery obligations.
It is important, however, to keep the current problems at
the FBI in perspective. The men and women of the FBI are
dedicated professionals to whom we owe a great debt of
gratitude. They solve difficult and important cases everyday.
Despite the serious problems that exist, the fact remains that
the FBI solved the Oklahoma City bombing, the World Trade
Center bombing, and the terrorists attacks in East Africa,
among the literally hundreds of thousands of others that do not
get the same profile in the press.
I might add that we don't see headlines about some of these
great things that they do because they are not emphasized. When
was the last time you saw a headline where the FBI stopped
terrorist organizations in very serious attempts to spread
biological and other types of chemical weapons, weapons of mass
destruction? But they have.
Chairman Leahy has expressed a desire to do a series of
oversight hearings on the FBI. I fully support him in this
effort and commend him for his prompt attention to this matter.
This Committee's oversight responsibilities are an important
element of our system of constitutional checks and balances.
I think it needs to be emphasized that, in my opinion, the
focus of the oversight must be to improve the FBI and prepare
it to be even more effective in the 21st century. Confidence in
the FBI and in the criminal justice system generally is
necessary for our system of governmental law enforcement to
operate effectively.
I believe we must vigorously and constructively examine the
current managerial issues and focus on how to build a better
FBI. In particular, I believe we should look critically at the
culture of the FBI and how it is or is not effectively
integrated with the Justice Department.
I also believe that as we proceed through this essential
oversight process, we must continue to be careful to respect
the existence of ongoing criminal investigations, especially
some of these high-profile, important investigations. We have
to be very careful to respect the existence of inspector
general investigations and, of course, all national security
issues.
Our Committee is best suited to a vigorous examination and
debate of the policy issues involved and less equipped to
perform the intensive factual examinations already underway in
the open criminal and IG investigations. I look forward to
working with Chairman Leahy and other members of this Committee
to ensure thorough oversight of the Bureau, while continuing to
be sensitive to the investigations and national security
concerns of some of the active matters at the Bureau.
In the end, I believe that any constructive oversight and
development of future reforms at the FBI must address two key
issues: one, a permanent oversight mechanism, and two, a
mechanism through which outside experts can bring their
expertise and objectivity to bear on the possible solutions to
the problems that exist at the FBI.
As to the first issue, there are various proposals, ranging
from improvements to the Justice Department's Inspector General
and its ability to perform oversight at the FBI, to the
establishment of a separate inspector general exclusively for
the FBI. I look forward to working with my colleagues in
evaluating these ideas, although I generally favor working
within the Justice Department structure.
On the second issue, I have announced that I have been
working with Senator Schumer to develop a bipartisan, expert
blue-ribbon commission to do a strategic, thorough review of
the FBI and make recommendations for its improvement. I commend
Senator Schumer for his leadership on this issue and look
forward to working with him and our distinguished chairman,
Senator Leahy, to see that this legislation is enacted.
The Schumer-Hatch legislation would create a commission
which would be able to bring outside, objective expertise to
bear on the issues that currently challenge the FBI. The
inspector generals are great at doing factual investigations,
but they are not designed to do strategic, long-term
recommendations on these important policy and managerial
issues. The blue-ribbon commission can fill that gap. It is
bipartisan, objective, and focused upon solutions, not
headlines.
I welcome our witnesses either today or in the coming days
to provide us with their views and recommendations on improving
this particular legislation. I welcome all of the witnesses
here today, good people, and I look forward to hearing from
each and every one of you. This is a distinguished panel, and I
will work with the Chairman to constructively pursue this
important oversight project.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Hatch.
We have had some good effects of just having the hearings.
We have had one response from the Department of Justice and the
FBI. The FBI has written a letter promising better cooperation
with the GAO, one of the things I raised with them. The
Attorney General has asked the Deputy Attorney General to
conduct a comprehensive review of the FBI.
Both of these things are welcome, and I will put that
correspondence in the record.
I turn to the distinguished Senator from California.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thanks very much, Mr. Chairman, and let
me join with the Ranking Member in thanking you for holding
these hearings.
Mr. Chairman, I believe that every member of this
Committee, on the Republican side and on the Democratic side,
has a deep and abiding respect for the Federal Bureau of
Investigation. I think we have seen time after time, under the
most difficult of circumstances, in major criminal events, the
energy, the creativity and the experience really prove to
enable an arrest to be made. I think it is a very important and
critical institution in our Government.
However, I have noticed a couple of things, and I am not
going to read; I am just sort of going to talk about what I
feel. I have seen in this very professional culture a kind of
arrogance creep, and that arrogance puts itself forward in
different situations.
I went through the Ruby Ridge hearings, I went through the
Waco hearings. I saw where the Washington aspect of the FBI can
essentially duck in a major event and the SAC takes the
responsibility for what might happen. So I recognize that there
is a precarious balance.
But I have seen a few things just in the popular press that
have really concerned me, and let me just lay out, because
everybody knows about this, the Monica Lewinsky case, where FBI
agents held that young woman for a long period of time without
allowing her to have counsel, and as a product she was
terrified. That wasn't necessary. Why do it? That is the first
instance.
Another instance was in the Wen Ho Lee case. I think Mr.
Bromwich has suggested that it is almost impossible to imagine
that such unprecedented charges, the first ever criminal
charges under the Atomic Energy Act, would have been made if
Mr. Lee had not been previously targeted by the FBI.
Then there was the reported conduct during the
interrogation of Wen Ho Lee, when he was compared to the
Rosenbergs, and the insinuation was that if he didn't cooperate
he would go the way of the Rosenbergs. If, in fact, that
happened, it is not professional conduct of well-trained law
enforcement officers, I don't believe.
I have also seen instances of leaking information, and I
don't think that is professional conduct either. Let me give an
example. During the World Trade Center case, it is my
understanding that one of the defendants, without a lawyer, set
up a meeting with prosecutors and FBI agents to negotiate for a
lighter sentence. At that meeting, it is reported that the
defendant incriminated another terrorist defendant, a person
suspected of helping bomb our embassies in Kenya and Tanzania
who was then under arrest and awaiting trial.
The substance of that secret meeting was then leaked
practically verbatim to the New York Times, which ran a lengthy
article on October 22, 1998. So, in other words, the New York
Times ran a story about one defendant's attempt to gain a
lighter sentence by offering uncorroborated allegations against
another defendant, and did so while that second defendant was
still awaiting trial. So I think disclosures like that, whether
it is a question of management, whether it is a question of
constant in-service training, to me are wholly improper.
That even hit closer to home last week when a Federal judge
ruled that a Justice Department official--and I don't know
whether this was FBI or Justice--may have leaked information in
the Newark Star Ledger, in violation of Federal grand jury
secrecy rules. I would like to just quickly read from that
opinion.
``In the March 6, 2000, Star Ledger article, submitted by
Senator Torricelli, information regarding the issuance of grand
jury subpoenas to Committee fundraisers and donors is
attributed to a senior Justice Department official, who was
later described as speaking on the condition of anonymity. The
attribution clearly satisfies the second prong of the Lance
test''--that is the test for determining whether the movant has
made a prime facie case for showing a violation of grand jury
secrecy rules--``because officials in the Justice Department,
of which the task force was a part, qualify as persons covered
by Rule 6(e)'s secrecy provisions.''
Now, of course, we don't know who that senior official in
the Justice Department is, but these again, I think, are things
that show a kind of arrogance, if you will, creeping into how
you handle individuals and how you handle case material. So I
am going to ask some questions--all of you are very
distinguished and very knowledgeable--about what you might do
to handle that.
Thanks, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Grassley.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. ``Restoring Confidence in the FBI'' is a
particularly good title for this hearing because confidence is
what truly goes to the heart of the issue that we are here to
discuss today.
My father taught me the FBI could do no wrong, but I think
confidence in the FBI, particularly the presumption of
integrity, has been shaken. There is no question that for too
long the FBI has broken faith with the American people. The
time for meaningful and lasting reform is now, and it is up to
us to help the FBI regain the trust and confidence of the
American people.
As an advocate for FBI reform, what often gets lost in my
comments is the respect that we must all have, and I have, for
the thousands of men and women who are serving their country
well as FBI employees. But the FBI management is broken, and
this does a real disservice to the hard-working agents on the
street.
Now, at long last, we have consensus for reform. Reform
should be structured around three areas: accountability,
jurisdiction and leadership; accountability through the
enhancement of executive and congressional oversight,
jurisdiction through the streamlining of the FBI's
investigative responsibilities, and leadership through the
selection of a new director with an appetite for reform and the
wherewithal to accomplish it.
The issue of accountability is the most important part of
the reform effort. The FBI is buried under a mountain of
evidence proving that it cannot police itself. The culture
within the FBI is so entrenched that there can be no way of
changing it without introducing an element of independent
oversight.
There are many options, but at this time I believe the
option that we should choose is to enhance the existing
structure of the DOJ Inspector General as the more viable
course to take. This is a position that I have been advocating
since the FBI Crime Lab investigation in 1997.
I am hesitant to create an entirely new inspector general
bureaucracy in the FBI that may only serve to isolate and
insulate the Bureau further from the rest of the law
enforcement community. It is exactly this notion of privilege
and separateness that helps to feed the Bureau's culture of
arrogance.
With regard to jurisdiction, many of you may remember the
Webster Commission. I am pleased that Judge Webster is here.
One of the recommendations of that commission was to expand
jurisdiction of the FBI and that the DEA and the ATF should be
folded into the FBI.
Here today, sitting in the wake of the Hanssen and McVeigh
fiascoes, it seems to me that is not a viable option. It
couldn't be clearer that the FBI has simply become too unwieldy
to be effectively managed. The answer to the problem at the
Bureau will not be found in increasing its jurisdiction, nor
will the concerns of the American people be addressed by
creating a de facto national police force.
The history of congressional response to the FBI's problems
has usually been that the FBI ends up with a bigger budget,
more program jurisdiction, and the director walks out of this
room with a nice pat on the back. I believe that the FBI will
become a more efficient and accountable organization through
the narrowing of its investigative focus.
Finally, with an opening for the Director of the FBI, this
gives us a real opportunity. President Bush will be naming that
new director, and that person needs to make changes. This
person needs to change the kind of culture that places
publicity and image before basics and fundamentals. This person
needs to change the kind of culture that holds press
conferences in high-profile cases before all the facts are in.
We have seen the consequences of this approach in cases such as
Richard Jewell, Wen Ho Lee, and the TWA 800 investigation.
The new director needs to change the kind of culture that
suppresses dissent and discourages independent oversight.
Director Freeh once stated the following with regard to the
FBI: ``We are potentially the most dangerous agency in the
country if we are not scrutinized carefully.'' I agree, so let
us now get down to the business of helping the FBI and its new
director regain trust and confidence from the American people.
[The prepared statement of Senator Grassley follows:]
Statement of Hon. Charles E. Grassley, a U.S. Senator from the State of
Iowa
Mr. Chairman, Senator Hatch, colleagues, and distinguished guests;
today, we highlight the issue of FBI oversight. As most of you know, I
have been a long-time advocate of the need for enhanced FBI oversight
and I am very pleased to be able to address this distinguished group on
this vitally important issue.
I would like to begin by saying that the title of today's hearing,
``Restoring Confidence in the FBI'', is particularly appropriate
because the word ``confidence'' is what truly goes to the heart of the
problem we are here to discuss today. All of the public institutions in
this country have a moral contract with the American people. This
contract--deceptively simple in design balances the trust of the
American people with the performance of those entrusted to their
service. I grew up--the son of a farmer--with a whole generation of
people believing the FBI could do no wrong. My father taught me to be
proud of the FBI. But now that confidence--that presumption of
integrity--has been shaken. Let there be no question, for far too long,
the FBI has broken faith with the American people. When our public
servants fail in their performance, then they lose the trust and
confidence of the American people--and the moral contract is broken.
The time for meaningful and lasting reform is now. It is up to us to
rewrite and restore that moral contract, and to help the FBI regain the
trust and confidence of the American people.
As an ardent advocate of the FBI reform, what often gets lost in my
comments is the respect that I have for the thousands of men and women
serving their country as FBI employees. My criticisms should in no way
minimize the great sacrifices that our honest and hardworking FBI agent
and support personnel make every day for our country. But these men and
women--as do the American people--need and deserve an organization that
has integrity and credibility. The FBI management system they are
working within is broken, and this does a real disservice to the
hardworking agents on the street. For too long the FBI has grown
essentially unchecked by any meaningful oversight. The result has been
the development of a pervasive atmosphere of arrogance. This cloud of
arrogance permeates the every day activities of the Bureau and shows
contempt for any public or private entity that dares to question its
motives or performance. And, perhaps more importantly, this cloud of
arrogance also shows contempt for those within the FBI organization who
are brave enough to sound the alarm. I sponsored the Whistleblower
Protection Act in 1989, yet to this day, the FBI has failed to
adequately protect FBI agents who speak up about management problems.
Now, at long last, it appears we have a consensus for reform. We can
agree, at least, something must be done. I would like to suggest that
the plan for reform should be structured around three areas:
Accountability, Jurisdiction, and Leadership. Accountability, through
the enhancement of executive and congressional branch oversight;
Jurisdiction, through the streamlining of the FBI's investigative
responsibilities; and Leadership, through the selection of a new
Director with an appetite for reform and the wherewithal to accomplish
it.
First, I would like to address the important issue of
accountability. Here, I believe, is the most vital part of the reform
effort. Let it be understood, the current system involving the FBI's
Office of Professional Responsibility cannot be allowed to continue as
is. The FBI is buried under a mountain of evidence proving that it
cannot police itself. The culture within the Bureau is to stifle
dissent and to marginalize those who would expose waste, fraud and
abuse. Senior management places a higher value on maintaining image
rather than rooting out wrong. This attitude is so entrenched in the
culture of the FBI that there can be no way of changing it without
introducing an element of independent oversight. The two most prominent
options being discussed are to either create an independent Inspector
General of the FBI, or to enhance the existing powers of the Inspector
General of the Department of Justice. Either of these options would
bring a much-needed element of oversight and accountability to the FBI
that is not there today. But, at this time, I would argue that the
option to enhance the existing structure of the DOJ Inspector General,
a position I've taken since the FBI Crime-Lab investigations in 1997,
is the more viable course to take for the following reasons. First,
there is already a structure in place at DOJ. While some have argued
that the size and importance of the FBI and the sensitivity of their
operation calls for a separate IG, I would argue differently. As part
of the Department of Justice, the FBI should be treated as such, and
should not be accorded any special treatment. And, I am hesitant to
create an entirely new bureaucracy that may only serve to isolate and
insulate the Bureau further from the rest of the federal law
enforcement community. It is exactly this notion of privilege and
separateness that helps to feed the Bureau's culture of arrogance.
In addition to the enhancement of the powers of the DOJ IG, I would
advocate some additional provisions, such as: the addition of
whistleblower protection provisions; clarification on the provisions
for agency, departmental, and congressional notification; and
clarification on the provisions for agency and/or departmental
interference in IG investigations.
Further, Congress needs to better fulfill its constitutional
responsibility of oversight. One way this could be improved is through
the creation of a Subcommittee within the Committee on the Judiciary
that would be directly responsible for FBI oversight and would
complement the reporting structure already in place.
There has also been a proposal for an, ``FBI Review Commission'',
which would undertake a comprehensive review of the FBI in its entirety
and make recommendations for congressional action. I had an opportunity
to see a draft outline of this Commission's mandate and I was very
impressed. But I have to express some reservations about the idea for
the following reasons.
First, as I mentioned earlier, the time for reform is now. We
already know what is wrong with the Bureau. If we wait eighteen months
for a commission to make recommendations, we may very well lose the
momentum for reform that we have right now. In this age of 24-hour news
cycles, the public will soon lose their appetite for FBI reform,
Congress will move on to other issues, and the FBI will continue to
operate as before. We cannot afford to wait to make these important
changes. Secondly, if past results are any guarantee of future
performance, the history of FBI commissions don't inspire much
confidence in their ability to effect change. As a matter of fact, the
end result has usually been that the FBI ends up with a bigger budget,
more jurisdiction, and the Director walks out with a nice pat on the
back. However, in order to take advantage of some of the good ideas
presented within this proposal, perhaps it would make sense to allow
the new Inspector General entity to follow through on this study, and
conduct a comprehensive review of the FBI as part of their initial
directive.
Next, I would like to address the issue of FBI jurisdiction. As
many of you may remember, the Webster Commission on the Advancement of
Federal Law Enforcement, convened in part due to Waco and Ruby Ridge,
actually recommended the expansion of the FBI--that the DEA and the ATF
should be folded into the Bureau. Here today, sitting in the wake of
the Hanssen and McVeigh fiascos, I think even Judge Webster would have
to admit the folly of that notion. It could not be any clearer that the
FBI has become too big and too unwieldy to be effectively managed. The
answer to the problems within the FBI will not be found in increasing
their jurisdiction; nor will the concerns of the American people be
assuaged by creating a de facto national police force. The expansionist
philosophy of the FBI only serves to feed their culture of arrogance.
To be sure, even though the FBI is already overburdened with
jurisdiction, it is fiercely protective of its current turf, while
continuing to move like the Pac Man into new areas. Yet, it has been
proven time and again that the FBI cannot maintain effective
partnerships with our public and private sectors. It doesn't need more
jurisdiction, it needs less. Let the Bureau continue to operate in its
core areas such as counter-intelligence, counter-terrorism, and
organized crime. But, I believe the FBI will become a more efficient
and accountable organization through narrowing its investigative focus
and sharing its disparate jurisdictional responsibilities with other
law enforcement agencies.
Finally, I want to address the matter of leadership. With an
opening for Director of the FBI comes an opportunity. President Bush
will be naming a new Director, and that person needs to make changes.
I've sent a letter to the President, asking him to pick a new Director
who understands the problems with the FBI management culture and is
committed to restoring public confidence. This person needs to change
the kind of culture that places publicity and image before basics and
fundamentals. This person needs to change the kind of culture that
holds press conferences in high-profile cases before the investigation
is complete and all the facts in. We've seen the consequence of this
approach in celebrated cases such as with Richard Jewell, Wen Ho Lee,
and the TWA 800 investigation. The American people deserve an FBI that
doesn't make these kinds of mistakes. But more importantly, the
American people deserve an agency that is honest and forthright about
their errors. So, finally, our new Director needs to change the kind of
culture that suppresses dissent and discourages independent oversight.
Director Freeh once stated the following with regard to the FBI; ``We
are potentially the most dangerous agency in the country if we are not
scrutinized carefully.'' I couldn't agree more. So, let us now get down
to the business of helping the FBI, and its next Director, regain the
trust and confidence of the American people.
Chairman Leahy. I thank the Senator from Iowa, and would
note that he has been very consistent in looking at these
issues over the years and has been very constructive in his
criticism.
The Senator from Wisconsin, Senator Feingold.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman, for calling this
hearing. I would ask that my full statement be placed in the
record.
Chairman Leahy. Without objection.
Senator Feingold. The issue of Federal Bureau of
Investigation oversight is timely because of obviously some
specific recent cases, but it would be significant and welcome
at any time as an opportunity to examine the role of the FBI in
the relationship of the U.S. Government to the American people.
Let me join in the praise that others have indicated for so
much of what the FBI does. I recently ran into a number of FBI
people at the Milwaukee airport and could tell that it was a
tough time for them, and expressed my positive feelings about
many things that it does.
But the most immediate reasons for this hearing are a
series of setbacks for the FBI in recent years. Some of the
others have been listed, but I just have to mention again the
missing McVeigh documents, the Hanssen case, the Wen Ho Lee
case, the years-late production of the tapes in the Birmingham
bombing, the problems in the FBI Lab, Richard Jewell and the
Olympic bombing, and charges of racial bias in promotions at
the FBI are some that come to mind.
Director Freeh is understandably not here due to important
personal concerns. I wish he were here because he is best
equipped to illuminate our examination of FBI oversight. I hope
that his eventual successor is here or at least listening to
this hearing because his successor will be in the best position
to help us further determine what changes in FBI oversight are
needed and to lead the FBI in embracing these changes.
For today, the immediate objective is to understand the
state of oversight of the FBI and to determine what changes may
be necessary in the oversight process. In particular, I would
like to hear from the witnesses on a few matters.
What is the current range of oversight mechanisms to which
the FBI is subject and the status of the various inquiries now
underway? How did it come to pass that the FBI and DEA are not
as immediately subject to the scrutiny of the Department of
Justice Inspector General, as are other agencies and offices at
the Justice Department? What is the rationale for that
arrangement and is it justified?
Is it fair to assume that any of the recent troubles at the
FBI may have been caused by deficiencies in oversight of the
Bureau? Is there anything unique to the history, culture and
mission of the FBI that makes it less accommodating of vigorous
oversight? Finally, how can the Senate be most constructive in
carrying out its oversight responsibilities with respect to the
FBI?
I welcome the witnesses and look forward to their
testimony.
Thank you, Mr. Chairman.
[The prepared statement of Senator Feingold follows:]
Statement Of Hon. Russell D. Feingold, a U.S. Senator from the State of
Wisconsin
Mr. Chairman. Thank you for calling this hearing today. The issue
of Federal Bureau of Investigation oversight is timely because of some
specific recent cases, but it would be significant and welcome at any
time as an opportunity to examine the role of the FBI in the
relationship of the United States government to the American people.
The most immediate reasons for this hearing are a series of
setbacks for the FBI in recent years--we have heard the list: the
missing McVeigh documents, the Hanssen case, Los Alamos and the Wen Ho
Lee case, the years-late production of the tapes in the Birmingham
bombing, problems in the FBI lab, Richard Jewell and the Olympic
bombing, charges of racial bias in promotions at the FBI.
It's a familiar, if troubling, list, but also familiar are the
storied successes throughout the history of the FBI, from the days of
Prohibition era gangsters and bank robbers to the pursuit of the agents
of our adversaries in the Cold War, to the great drug busts of recent
decades and the continuing effort to contain organized crime and the
threat of international terrorism. And there can be no question that
the FBI remains an outstanding and effective law enforcement agency.
Maybe the greatest triumph of the FBI has been the terrorist attacks
that never happened. While the FBI over the years has had its lapses in
respecting the civil liberties of some Americans, perhaps the greatest
achievement of the Bureau has been that it has done so well in solving
crime and foiling conspiracies while operating in a nation that so
respects individual liberty.
So there is something that at first seems incongruous about the
recent problems we have heard, and the FBI we grew up admiring. But
perhaps the admiration, even awe, that many have felt toward the FBI is
related to the inadequacy that may exist in FBI oversight. Perhaps it
accounts for the uniquely limited oversight regime to which the FBI is
subject. Perhaps it accounts for the reality that the FBI apparently is
seen by most of the public and perhaps some in the Bureau itself, as
having an identity virtually separate from the Department of Justice of
which it is a part, and remote from the authority of the Attorney
General, to which the FBI Director and all FBI personnel ultimately
report. Perhaps it is reflected in the occasional hesitance of Congress
and even Presidents to question the actions of the FBI and its leaders.
Director Freeh understandably is not here today, due to important
personal concerns. I wish he were here, because he is best equipped to
illuminate our examination of FBI oversight. I hope that his eventual
successor is here, or least listening to this hearing, because his
successor will be in the best position to help us further determine
what changes in FBI oversight are needed, and to lead the FBI in
embracing those changes.
But for today, the immediate objective is to understand the state
of oversight of the FBI and to determine what changes may be necessary
in the oversight process. In particular, I want to hear from the
witnesses about a few questions:
what is the current range of oversight mechanisms to
which the FBI is subject and the status of the various
inquiries now under way;
how did it come to pass that the FBI and DEA are not
as immediately subject to the scrutiny of the Department of
Justice Inspector General as are other agencies and offices at
the Justice Department. What is the rationale for that
arrangement? Is it justified?
is it fair to assume that any of the recent troubles
at the FBI may have been caused by deficiencies in oversight of
the Bureau?
is there anything unique to the history, culture and
mission of the FBI that make it less accommodating of vigorous
oversight?
how can the Senate be most constructive in carrying
out its oversight responsibilities with respect to the FBI?
I welcome our witnesses and look forward to their testimony. I may
have further questions for them individually. Thank you Mr. Chairman.
Chairman Leahy. Thank you.
The Senator from New York.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman. I want to thank
you for your quick and immediate leadership in holding this
important hearing.
I want to begin by emphasizing that I consider myself a
longtime supporter of the FBI. It is the No. 1 law enforcement
agency in the world. We have to make sure it stays that way. I
have also been a supporter of my fellow New Yorker, Director
Freeh. He has done an excellent job in many areas, particularly
in pursuing terrorist cases and instilling integrity at all
levels of the Bureau. But, Mr. Chairman, sometimes you owe it
to a friend to look him in the eye and tell him the hard truth,
and that truth is this: the FBI has made mistake after mistake
after mistake. And many of us are wondering now if those are
random mistakes or there is not something deeper.
From Richard Jewell to Wen Ho Lee, from the Crime Lab to
the McVeigh documents, from rogue informants to Robert Hanssen,
serious questions are now dogging the FBI. Just this morning,
there are reports that an FBI security expert sold classified
lists of witnesses and informants to the mob and other targets
of criminal investigation in my State of New York.
There have been several examinations of some of the
incidents I have mentioned over the last few years, and each
has shed light on a particular episode and spawned particular
suggestions, but none have looked at the whole picture. It is
high time to step back and take a comprehensive look at the
Bureau from top to bottom.
Has the FBI's culture become too insular and unresponsive
to warning signs? Has the phenomenal growth of recent years
made it even harder to bring about change? Whatever it is, the
public is watching and they are beginning not to like what they
see. Poll after poll shows confidence in the FBI plummeting,
and that is dangerous for an agency that needs the cooperation
of average citizens, that needs to recruit informants, that
needs to persuade judges and juries in court, an agency we all
need to be in tip-top shape.
So, Mr. Chairman, in order to give the FBI the thorough and
systematic review that it badly needs, Senator Hatch and I are
introducing the FBI Reform Commission Act today. The bill will
set up a blue-ribbon commission of law enforcement experts to
look at all aspects of the FBI. It will determine whether all
the FBI really needs at this point is a tune-up or, as many
fear, a more fundamental overhaul.
This kind of deep and thorough oversight is very much
needed. We don't want to look at each individual case, except
to see whether they form a pattern of why things went wrong.
Congress can do very good oversight into specific issues, but
this kind of thorough, top-to-bottom review can only be done by
a group of experts who devote their full time to it.
You know, Mr. Chairman, when one reaches a certain age,
your physician will tell you, instead of the annual checkup, it
is time to look at you inside out, top to bottom, and see what
might be wrong. It is now that time for the FBI.
So, specifically, the blue-ribbon commission will function
outside the FBI and will analyze the way the FBI monitors
itself, whether outside oversight is needed, how it manages
information and conducts investigations, and other issues. The
commission will then recommend to the President and the
Congress systematic reforms that are necessary. They will be
appointees of the President and of the Majority and Minority
Leaders of both Houses.
As longtime friends and supporters of the FBI, Senator
Hatch and I believe this is the best way for the Bureau to puts
problems behind it and begin rebuilding the public trust. Every
bureaucracy needs an in-depth, critical examination every few
decades, and that moment has arrived for the FBI. In the end,
finding and fixing the problems at the FBI won't just leave the
Bureau better off, it will leave all of us better off, and we
have to begin that process now.
Chairman Leahy. I thank the Senator from New York. When he
mentioned those of a certain age, I leaned over to Senator
Hatch and I said I am not sure which one of us he is referring
to, but I know it couldn't be Senator Hatch because he looks
much younger.
The Senator from Illinois.
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you very much, Mr. Chairman, and
thanks for scheduling this hearing. It is timely, and I am glad
we have a chance to consider the serious issue before us.
Though not altogether pleasant, it is an important assignment.
People have referred to the public opinion polls, and they
are pretty clear that an organization that enjoyed universal
respect has now come under fire and Americans have many
questions about the leadership at the FBI. That shouldn't take
away from the thousands of special agents and other staff
people who literally get up every day, put on a badge and put
their lives on the line for America, fighting terrorism and
combatting drugs and organized crime, and the long agenda of
responsibilities we have given to the Federal Bureau of
Investigation.
Yet, despite the Bureau's many accomplishments, we continue
to see a litany of embarrassing blunders. They have been
recounted over and over in these introductions--the loss of
4,000 pages of critical material for the McVeigh trial, the
situation involving Wen Ho Lee, the whole question involving
Richard Jewell at the 1996 Atlanta Olympic Park bombing, the
information that has come out from Boston involving FBI agents
withholding informant reports that would have aided the defense
of Joseph Salvati, who spent 33 years in prison for the 1965
murder of Edward Deagan, and then on February 20 of this year
the chilling disclosure that one of its own, Agent Robert
Hanssen, had operated undetected within the agency as a Soviet
mole for 15 years, or even longer.
Are these merely coincidences? Some have noted they are
only a handful of instances in an agency which deals with
thousands of challenges every single day. I think that I would
like to speak to the fact that we collectively hope that it is
not just a matter of time before another incident of ineptness
percolates to the surface, calling into serious doubt the
agency's adherence to values that Director Freeh recounted when
he was before this Committee a few years back.
The cover story of a recent U.S. News and World Report asks
squarely ``What Is Wrong with the FBI: Cracking the Case.'' It
is time we get that question answered and we get our Nation's
No. 1 investigative force's house back in order.
What is so troubling is that the issues that we are
addressing today didn't just materialize. Take a look at two
headlines from Time magazine: ``The weight of the evidence: the
case against McVeigh is strong, but the mess at the FBI and the
babble of witnesses make it vulnerable''; and the second one:
``The FBI: the gang that couldn't examine straight.''
The importance of these two headlines is the fact that they
appeared in Time magazine on April 28, 1997, 4 years before the
disclosures which were of such great embarrassment to the FBI
and so startling to the American people. Those headlines 4
years ago really could have been headlines leading to today's
hearing.
We have known for a long time that there are things that
need to be changed in the FBI. I think we all understand the
legacy of J. Edgar Hoover. It was a legacy which exulted
independence from political oversight. In fact, Mr. Hoover's
tactics have been well documented when it came to dealing with
Congress. He held Congress at bay because of the information
that he had collected, but in holding the political officials
at bay, he also held at bay political accountability, and that
is why we are here today.
This morning, Senator Arlen Specter and I introduced
legislation to create a separate inspector general for the FBI.
I notice that one of the witnesses here has characterized it a
little differently than the way we wrote it. This inspector
general would be under the supervision of the Attorney General,
like the Inspector General for the rest of the Department of
Justice.
What we have found in our investigation is that the Hoover
legacy and the current leaders at the FBI have created a
fortress mentality that has really held away the type of
oversight that we demand of every Federal agency. I don't
believe that we can assault that fortress without putting
someone behind the gates. That is an inspector general working
full-time, as we have an inspector general in 57 other Federal
agencies. If the model doesn't work here, how is it working in
other agencies? I think it is an important question we need to
ask and answer.
I applaud the idea of a commission to look in depth at many
different things that might be considered, but it is an ad hoc
approach which will give us guidance. What we need is a person
on the ground, in the agency, accountable to the Attorney
General as well as to Congress, reporting on ways to make this
agency more effective.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
I don't see any other Senators here. I will put a statement
by Senator Kohl in the record.
[The prepared statement of Senator Kohl follows:]
Statement of Hon. Herbert Kohl, a U.S. Senator from the State of
Wisconsin
A little less than six years ago, the Director of the Federal
Bureau of Investigation appeared before the Judiciary Committee to
address concerns about the F.B.I.'s actions during Ruby Ridge. I was
the ranking Democrat on that important investigation. During the course
of that inquiry, we found widespread problems within the F.B.I. and
made a number of suggestions for reform ranging from the way the F.B.I.
trains its snipers to the way it handles documents.
In light of the recent problems with the McVeigh prosecution, one
section of the report has immediate relevance:
``The Subcommittee is concerned that, even today, officials of
the FBI may not be fully cognizant of their constitutional duty
and statutory obligations with regard to criminal discovery. .
. .We expect the FBI to improve the education of its agents in
this regard.
``The Subcommittee asks the FBI to institute programs to
improve the quality of its response to criminal discovery
demands, including attention to the organization, coordination
and monitoring of discovery requests and responses.''
We should be very concerned that the F.B.I. has not succeeded in
addressing all of the concerns raised in the report almost six years
ago. The problems were serious then, and the mishandling of documents
in the McVeigh case demonstrates a continuing and perplexing lack of
organization. What else is going on at the F.B.I.? How many other
concerns have been given short shrift?
Of course, this hearing concerns much more than the F.B.I.'s
ability to comply with their criminal discovery responsibilities. None
of those issues, however, is more important to public confidence in the
F.B.I. than the agency's capacity to observe the most basic rules of
criminal procedure. This problem potentially infects every federal
criminal case.
As we learned during the Ruby Ridge hearings, overseeing and
investigating the F.B.I. is not easy. But when done well, it can be
productive and effective. The first principle of F.B.I. oversight must
be that our goal is to improve and respect this vital agency--not to
attack or destroy it. F.B.I. agents are dedicated and hardworking
individuals who have a lot to be proud of. I look forward to what can
be done to instill public confidence in the Bureau.
Chairman Leahy. We will leave the record open for
statements by any other members of the Committee who couldn't
be here.
Gentlemen, I thank you for being patient. This is matter of
some concern; I think the fact that, again, we have heard from
people on both sides of the aisle who want to look into this.
We are fortunate to have Senator John Danforth here. He is
currently a senior partner at the St. Louis law firm of Bryan
Cave. Senator Danforth was asked by former Attorney General
Reno to lead an investigation into the events at the Branch
Davidian compound in Waco. Last July, he issued an interim
report on that.
On a personal note, I would say that I had the pleasure of
serving with Senator Danforth for 18 years here in the Senate.
We joined hands on a number of issues, traveled together, did a
number of things together, and he is one of the most respected
people we have had in the Senate in either party.
Glenn Fine is the current Inspector General of the
Department of Justice. He was appointed to that office in
December of last year. He has been with the IG's office since
1995. Attorney General Ashcroft has commissioned Inspector
General Fine to conduct investigations on the reasons behind
the FBI's belated document production in the Oklahoma City
bombing case and whether the FBI knew or should have known
about alleged spy Robert Hanssen's espionage activities. I have
discussed both of those issues with the Attorney General. I
know of his concern and I know of his respect for Mr. Fine,
which we join in.
Our next witness would then be Judge William Webster. Judge
Webster is currently a senior partner with the Washington law
firm of Millbank Tweed. Judge Webster has a distinguished
record of public service. He was a member of the Eighth Circuit
Court of Appeals. He was director of both the FBI and the CIA,
I think the only person who has held both of those positions.
Most recently, in the wake of the apprehension of Robert
Hanssen, Attorney General Ashcroft and FBI Director Freeh asked
Judge Webster to chair a blue-ribbon commission to examine the
Bureau's internal security procedures.
Judge Webster is well known to all here in the Senate and
has high regard and respect from all members of the Senate.
Michael Bromwich is currently a litigation partner in the
Washington and New York law offices of Fried Frank. Mr.
Bromwich was Inspector General of the Department of Justice
from 1994 to 1999. During his tenure, he conducted numerous
investigations on topics ranging from the FBI Crime Lab issues
that we have talked about earlier today, to the Aldrich Ames
affair, to the handling of classified documents in the campaign
finance investigation.
Our final witness is Mr. Norman Rabkin, who is the Managing
Director of the General Accounting Office's Office of Special
Investigations. He has on several occasions conducted
investigations into FBI activities.
Senator Danforth, would you lead off, please.
STATEMENT OF JOHN C. DANFORTH, FORMER U.S. SENATOR FROM THE
STATE OF MISSOURI
Mr. Danforth. Mr. Chairman, thank you very much.
Mr. Chairman, I was special counsel in the Waco
investigation, and to me one of the lessons of the Waco
investigation is the importance of candor and openness in the
FBI, in Government in general, and the ability to admit
mistakes, when people make mistakes or know of mistakes, and to
come forward and be able to talk about them and correct those
mistakes.
The situation before I became special counsel was this: in
the summer of 1999 Time magazine had a poll and the poll said
that 61 percent of the American people believed that the FBI
started the fire at Waco. Now, when 61 percent of the American
people believe such a dire thing as that Federal agents started
a fire that killed some 80 people, that is a real breakdown in
public confidence in their Government. That is why I believed
that the Waco investigation was so important.
We looked into some very dark charges that had been made
against the FBI, that the FBI started the fire, that FBI agents
fired guns into the complex when the building was on fire to
pin people into it. In our investigation, which lasted 14
months and cost $17 million, we proved with absolute certainty
that these dark thoughts about the FBI were definitely not
true. There was no real evidence to support these charges, and
there was overwhelming evidence to prove the negative that they
didn't happen.
So the question is how could it be that 61 percent of the
people of our country believed that the FBI did these things?
What happened was this: right after the tragedy at Waco, that
same afternoon the FBI in its statement said that no
pyrotechnic tear gas devices were used at Waco that day.
Subsequently, that same statement was repeated a number of
times. It was repeated in testimony before the House by both
Attorney General Reno and then-FBI Director Sessions.
Sitting in the room behind both General Reno and Director
Sessions was the commander of the Hostage Rescue Team, and this
person was the person who gave the instructions to fire
pyrotechnics that morning and he did not correct the witnesses.
Now, in fact, the use of pyrotechnics that morning had
nothing to do with the start of the fire, absolutely nothing.
The pyrotechnics were fired 4 hours before the fire broke out
and they were aimed at a concrete structure 75 feet away from
the complex. So it had no effect at all, but a misstatement was
made and nobody corrected it, including the person who gave the
command to use the pyrotechnics.
And it was not known until more than 6 years after the
tragedy that pyrotechnics had been used. Then, after it became
known, of course, the public reaction, or a lot of the public
said, well, we have been fooled, we have been lied to;
something happened and we didn't know about it. They suspected
the worst. That was the story of Waco, and that is what
triggered the breakdown in public confidence and that is what
led to this very extensive investigation that we conducted.
I believe that there was a lack of candor on the part of
the FBI and on the part of the Justice Department over a period
of 6 years. I don't think it was a cover-up of a bad act. I
think it was basically trying to cover embarrassment. Somebody
made a mistake in a statement, and mistakes aren't permitted
and let's not admit to mistakes, so let's not say anything to
set the record straight. I believe that really is the lesson of
Waco.
I have in my written testimony, and I could provide for the
Committee more examples of during the course of the
investigation where the FBI was less than forthcoming in
providing information to my investigators. That is true, but I
think it is also a sign of the more general problem, and that
is that there is a lack of openness and a lack of willingness
to say, well, we are a Bureau that makes mistakes and therefore
we don't want anybody to look at us.
This is not a uniform position within the Bureau. Director
Freeh was very forthcoming in helping us, and a number of
agents were. The Hostage Rescue Team that participated in the
events of April 1993 were very open in describing exactly what
happened. I think it is important to recognize that we can't
tar everybody with a brush here. But there certainly were
people within the FBI who were less than forthcoming, and it
complicated our investigation and it was part of a general
problem.
Now, Mr. Chairman, my red light is on and I promise you I
won't speak for more than a minute, but I do want to say this
as we are looking at the FBI. If I am correct that the problem
is a lack of willingness to correct mistakes and be open about
mistakes, it is very important that we as a country do not
create a mind set where mistakes are just intolerable and where
they are so unforgivable that the natural reaction is I am not
going to let you know about them.
I think that is what happened in the Waco case. I think it
happened right after the disaster and I think it happened
during our investigation, where people did not want to come
absolutely clean and where they wanted to hide the ball because
they were afraid of being humiliated. I really believe it is
important that we make a clear distinction between mistakes
which all of us are going to make and we encourage people to
come clean, and the real expose material which is the subject
matter of a lot of hearings and a lot of investigative
reporting.
The FBI did not do anything that was dark at Waco, but some
of its people were afraid to come forward with the truth for
fear of embarrassment, and that is what created the breakdown
in public confidence.
[The prepared statement of Mr. Danforth follows:]
Statement of John C. Danforth, former U.S. Senator from the State of
Missouri
After 14 months of exhaustive investigation, costing the taxpayers
$17 million, I am absolutely convinced that the FBI had nothing to hide
about Waco. The FBI did not do the dark things some people suspected.
Agents did not cause the fire that killed scores of Branch Davidians.
Agents did not fire guns into the complex. The evidence exonerating the
FBI is overwhelming on these points. Evidence implicating the FBI is
non-existent.
Yet, some FBI personnel and some Justice Department lawyers were
not forthcoming in reporting the events at Waco, and some FBI personnel
were not cooperative with my investigation.
Lack of openness and candor caused and then complicated my
investigation. And, far more important, lack of openness and candor
undermined public confidence in government.
On August 26, 1999, a Time magazine poll indicated that 61 percent
of the public believed that federal law enforcement officials started
the fire at Waco. That is what I mean by undermined public confidence
in government. Absolutely no evidence supported this terrible belief.
Its principal cause was lack of openness and candor by some people in
the Justice Department and some people in the FBI.
Beginning on the day of the fire, the FBI and the Justice
Department insisted that no pyrotechnic tear gas rounds had been fired
at Waco. This was an innocent but mistaken assertion. An FBI agent had
fired three pyrotechnic rounds at a target 75 feet away from the Branch
Davidian complex, four hours before the fire started. The firing of
pyrotechnic tear gas rounds had no bearing on the tragedy that
followed.
Some FBI and Justice Department officials who knew of the
pyrotechnic rounds were not forthcoming in setting the record straight.
Had they come forward with the truth, there would have been no cause
for believing there was any implication with the fire. Instead, when
the public learned that pyrotechnics had been used and not disclosed,
61 percent assumed the worst.
My thoughts about why people who knew the truth didn't tell the
truth are speculative, but I would bet a lot that I'm correct. I think
that the motive is not to hide evil deeds, but to avoid embarrassment.
A long standing value of the FBI is not to embarrass the FBI. Mistakes
are embarrassing, so, rather than admit them, cover them up.
Late in April, 1993, the Hostage Rescue Team commander who had
authorized the use of pyrotechnics sat silently through the
Congressional testimony of Attorney General Reno and FBI Director
Sessions without correcting their mistaken statements suggesting that
pyrotechnics had not been used. To have corrected the FBI's previous
denial about pyrotechnics might have embarrassed the Bureau.
In 1996, an FBI attorney neglected to transmit information about
the use of pyrotechnics to a Justice Department attorney. I think that
her negligence was an embarrassment to her, perhaps something that
would jeopardize her career. So she began lying about her negligence to
my investigators.
The irony is that attempts to cover up embarrassment cause
embarrassment to the Bureau, and destroy public confidence as well.
It is important to keep things in perspective. Every instance of
failure to produce records isn't a cover-up or an intentional effort to
avoid embarrassment. In the Waco investigation, we examined 2.3 million
pages of documents. In major cases such as Ruby Ridge, Waco and
Oklahoma City, hundreds of FBI agents are involved, and all of them are
generating paper. I am sure that systems for managing information can
be improved, but I am sure that there will always be a drawer somewhere
or a box somewhere with something in it. So I would caution against a
standard of perfection.
However, it was clear in the Waco investigation that at least some
people in the FBI were cavalier or resistant in turning over evidence
to outsiders.
Until September, 1999, the FBI denied the existence of Forward
Looking Infrared (FLIR) tapes containing audio evidence of the approval
of pyrotechnics. The government did not turn them over during the
criminal trial of surviving Branch Davidians, nor in response to a
Congressional request in 1995, nor in response to specific FOIA
requests from 1995 to 1997. Then, in late August, 1999, the FBI located
at HRT headquarters a previously undisclosed FLIR tape. On September 1,
1999, two more tapes mysteriously appeared in an FBI file cabinet. To
say the least, the FBI was cavalier in not producing this evidence.
Days after the tragic fire, FBI agents attempted to disable by
gunshot a pyrotechnic projectile found at the scene. Obviously this was
evidence that pyrotechnics had been used. One of the supervising agents
on the scene took notes of this event; however, instead of keeping his
note pad describing this event in his office with his other notes, he
kept it in the attic of his home. A second supervising agent repeatedly
and implausibly told our investigators that he had no recollection
relating to pyrotechnic tear gas at Waco.
It's important to recognize that FBI agents who actually
participated in the tear gas insertion were completely forthcoming in
describing what happened, including the use of pyrotechnics. Also,
Attorney General Reno, Deputy Attorney General Holder and Director
Freeh clearly called for cooperation with my investigation. Similarly,
notwithstanding our problems with the General Counsel's office of the
FBI, I believe that the General Counsel himself, Larry Parkinson, was
trying to be helpful. But, while many were willing to help, others kept
information from us.
The FBI's Office of General Counsel was not as cooperative as its
head. Convinced that certain individuals were withholding information
from our investigators, we threatened to obtain a search warrant, and
sent 11 agents and three lawyers to the Office of General Counsel to
search its files.
I believe that, within the FBI, there are strong pressures to
resist divulging information to outsiders.
Soon after I was appointed Special Counsel, my office realized that
we would need a liaison with the FBI who would be the contact person
for our investigation. Deputy Special Counsel Ed Dowd asked FBI
Supervisor Special Agent John Roberts if he would be interested in this
role, having been told by Postal Inspectors that Roberts had done an
excellent job with the Ruby Ridge investigation. According to Dowd,
Roberts didn't want to act as liaison, claiming that working with our
office would hurt his career in the FBI.
Supervisor Special Agent Patrick Kiernan, a lawyer who teaches
ethics at the FBI Academy, became our liaison, and did an excellent
job. Kiernan has told me that he believes that people within the FBI
have retaliated against him for assisting my investigation, and that he
has filed the appropriate referrals with the FBI's Office of
Professional Responsibility.
Whether or not the concerns of Roberts and Kiernan about their
careers are well founded, the fact that they have those fears indicates
to me that there is a culture within the FBI of noncooperation with
inquiries from outside the Bureau and of protecting those within the
Bureau from criticism.
People have suggested several ways to improve the FBI including the
creation of an Office of Inspector General or a Blue Ribbon Commission.
These may be good ideas. But my own belief is that the only way to
correct a cultural problem is to change the culture.
This means that there must be a persistent message that the role of
the FBI is to protect the country and the Constitution, not to protect
the FBI from criticism, and that lack of candor and openness hurts the
FBI and destroys public confidence as well.
It is a message that must come from the top: from the President,
from the Attorney General and from the Director of the FBI. It must be
heard on the first day a new agent arrives at the FBI Academy, and it
must be repeated every day until retirement.
And because it is human nature for today's enthusiasms to become
tomorrow's forgotten resolutions, it is important that Congress put in
place a permanent system for overseeing the FBI.
And if there is an ``old boys network'' of FBI officials who create
and enforce a closed culture within the Bureau, it is important to
replace these people. Otherwise, any reform would be sure to founder on
everyday resistance from within. I would not humiliate them. I'm sure
they believe that what they are doing is for the best. But I would
replace them. I would give them farewell parties and effusive thanks,
and I would send them on their way.
Finally, it is important for all of us--Congress, the media, the
public--to acknowledge our own responsibilities for the lack of
openness we lament in government. When public officials fear that the
disclosure of their mistakes would lead to personal humiliation and
professional ruin, it is understandable if they prefer concealment to
candor. By confusing the discovery of human error with the
sensationalism of exposes, we help create a mentality in government
where the first law is self-preservation.
If we really believe that making mistakes is not as bad as hiding
mistakes, then it is our responsibility to keep that in mind and
express it in words.
Chairman Leahy. Thank you very much, Senator.
Mr. Fine.
STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, DEPARTMENT OF
JUSTICE, WASHINGTON, D.C.
Mr. Fine. Mr. Chairman, Senator Hatch, and Members of the
Committee on the Judiciary, I appreciate the opportunity to
appear before the Committee this afternoon to discuss the work
of the Department of Justice's Office of the Inspector General,
and in particular our oversight work in the FBI.
Let me begin by providing a brief overview of the structure
and staffing of the OIG. The OIG was established by the
Inspector General Act Amendments of 1988, a decade after
inspector generals were created for many other Federal
executive branch agencies. The OIG is an independent within the
Department that, by statute, reports both to the Attorney
General and to Congress.
The OIG has a staff of approximately 360 investigators,
auditors, inspectors, program analysts, attorneys and support
staff. The OIG investigates criminal and administrative
misconduct by Department employees, and conducts independent
audits and evaluations of Department programs and financial
statements.
The OIG's jurisdiction to investigate misconduct in the
Department is limited, however. When Congress created an
Inspector General in the Department, it permitted the
Department's Office of Professional Responsibility, known as
DOJ OPR, as well as the FBI's Office of Professional
Responsibility and the DEA's Office of Professional
Responsibility, to continue to exist outside of the OIG.
In 1994, an Attorney General order set out the respective
authority of each office to investigate misconduct in the
Department. In general, under this order, DOJ OPR has the
authority to investigate misconduct of DOJ attorneys acting in
their capacity to litigate, investigate, or provide legal
advice. FBI OPR and DEA OPR have the authority to investigate
allegations of misconduct by employees of their agencies. The
OIG has the authority to investigate other allegations of
misconduct throughout the Department and its components.
The OIG may only undertake investigations in the FBI and
the DEA when the Attorney General or Deputy Attorney General
specifically authorizes us to do so in a particular case.
During the past several years, the OIG has received such
authority to conduct a number of investigations in the FBI. My
written statement provides a more detailed overview of these
investigations, which includes the FBI's performance in
uncovering the espionage activities of former CIA Officer
Aldrich Ames and a review of allegations of improper and
inadequate practices in the FBI Laboratory.
The Attorney General has recently assigned to the OIG two
sensitive investigations relating to the FBI. The first
concerns the alleged espionage activities of FBI employee
Robert Hanssen. Shortly after the FBI Director announced
Hanssen's arrest, the Senate Select Committee on Intelligence
and the Attorney General asked the OIG to examine the
Department's performance in the Hanssen case.
We have assembled a 10-person team of attorneys, special
agents, analysts and support staff, several of whom worked on
the OIG Ames review. Our review of the Hanssen matter will
build on our already substantial base of knowledge about the
FBI's performance in uncovering espionage during the period of
Ames' spying, a period that overlapped in part with when
Hanssen allegedly was supplying classified information to the
Soviets.
In the Ames review, we produced a lengthy report describing
deficiencies in the FBI's performance in determining the cause
of the unprecedented and catastrophic losses suffered by both
the CIA and the FBI in their Soviet intelligence programs. Our
intention in the Hanssen investigation is to provide a
similarly detailed report that thoroughly examines the FBI's
performance in preventing, detecting and investigating
Hanssen's alleged espionage.
The second matter we are currently investigating is the
FBI's belated production of documents in the Oklahoma City
bombing cases. On May 11, the Attorney General asked the OIG to
investigate the circumstances surrounding this belated
production of documents. We immediately assembled an
investigative team of OIG employees, consisting of 5 attorneys,
2 special agents, 2 auditors, a paralegal and support
personnel. The team is led by an experienced former Federal
prosecutor who is the head of the OIG unit that conducts
special investigations. As of this date, the team has requested
and reviewed numerous FBI documents, and conducted more than 70
interviews of personnel from FBI headquarters, Main Justice,
Oklahoma City, and 6 FBI field offices.
I do not believe it appropriate to discuss the evidence
that OIG team is finding at this stage of the investigation.
However, I can describe the scope of our review.
The OIG's investigation focuses on why the documents were
produced late, the reasons for the delay, whether the FBI acted
in a timely fashion upon learning that the documents had not
been produced, and any systemic problems that this matter
reveals about the FBI's handling of discoverable documents.
We have done a considerable amount of work in this
investigation. However, we intend to conduct many more
interviews. Although we do not intend to interview FBI
personnel at all 56 FBI field offices, we intend to fully
investigate a sample of FBI offices and survey others to
determine what happened with the documents in those offices. We
plan to issue a detailed report of our investigation as
expeditiously as possible.
Finally, I want to note one important issue that the OIG
has been struggling with over the past several years. The
resources provided to the OIG have not kept pace with either
our increasing responsibilities or the Department's explosive
growth. In fact, due to budget constraints, the OIG's workforce
has been cut by 100 employees within the past 2 years.
Resource limitations aside, however, the OIG has a proven
track record of conducting high-quality, independent oversight
of Department programs and operations. Moreover, on the limited
number of occasions when we have received the authority, the
OIG has produced comprehensive reports that have identified
serious systemic weaknesses in FBI programs and provided
constructive recommendations for improvement.
That concludes my oral statement, Mr. Chairman, and I would
be pleased to answer any questions.
Chairman Leahy. Thank you, and your full statement, of
course, will be made part of the record.
Judge Webster.
STATEMENT OF WILLIAM WEBSTER, SENIOR PARTNER, MILBANK, TWEED,
HADLEY AND MCCOY, LLP, WASHINGTON, D.C.
Judge Webster. Thank you, Mr. Chairman. I am pleased to
have an opportunity to be here this morning. I am not sure in
which incarnation you wish me to speak.
I would like to clarify one thing that may be confusing.
Senator Grassley referred to the Webster Commission. That was a
commission established by this Congress to conduct a 2-year
study on the advancement of Federal law enforcement. We made
certain recommendations at that time. I agree with Senator
Grassley that the issue of consolidation is probably not a good
one to advance at this level of uncertainty, but I want to say
only in respect to that that we did so because there are now
148 Federal agencies with law enforcement responsibilities.
We have gone in the Federalization of crime from half a
dozen at the founding of our country to over 3,000 Federal
crimes, including unlawful conduct at a rodeo. There are very
important Federal crimes, but there are also a lot of----
Chairman Leahy. Not a big issue in Vermont, I want to say.
Judge Webster. I am sure it isn't, Mr. Chairman.
The FBI is now handling an inventory of 800,000 cases. It
calls for the kind of look that we conducted and, of course,
the kind of look that you are going to conduct.
I would like to take just a minute out of my time to
reminisce briefly about the circumstances when I came to office
23 years ago. We were in the wake of the so-called ``black
bag'' jobs, the Church Committee report, and other reviews of
Federal law enforcement and intelligence community activities.
I was given 68 agents to consider disciplining as a result
of those activities, discovering in the process that in the
wake of the Supreme Court decision in 1972, not one single
thing was done by the Bureau or the Department of Justice to
educate the special agents as to the change in law in regard to
the need for warrants in domestic security cases.
There was a lot of concern. When I was sworn in, President
Carter took pains to say that he knew of no other organization
that had as much impact upon public confidence in Government
than the FBI, that when the FBI did well, people felt good
about their Government. I think what was unwritten and unsaid
at that point in time was that when it didn't feel good about
the FBI, it didn't feel as good about its Government. It is
important, I think, for management to understand that.
There were days of so-called plausible deniability, a new
term I learned when I came to Washington. I said you have to
understand there is no such thing in this agency as plausible
deniability. Only the President of the United States may claim
plausible deniability in international affairs, and you hurt
the director when you do not tell him that you have a problem
so that he can assist in dealing with it. I believe that to be
true today.
I also remember that we will go through cycles in which two
separate cries will seek dominance. One is leave us alone,
don't interfere with our privacy, don't intrude. The other one
is why don't you do something about all this crime and the
threat of terrorism and other things. And it is the job of the
Bureau to balance that, and I believe over time its record has
been very good in that respect.
I might also say two other things that I used to say more
times than people liked to hear that each of us carries the
reputation of the other around in his pocket. It was something
that people needed to be reminded of when they thought about
doing things such as Senator Danforth described. It does not
help the agency when people do not remember the proud record
that it has and the importance of preserving it, and the
reputations of the very gallant men and women who stand in our
place every day of our lives.
Finally, one other thing and then I will proceed to what I
think my role is today, and that is I think that the FBI has
enjoyed a very objective disciplinary system and has never
hesitated to discipline when disciplinary reasons were
apparent.
On the investigative side, the facts are developed. The
investigator, just as the FBI does in relation to the United
States Attorney's office, does not prosecute. He turns the
matter over to the Office of Professional Responsibility, which
then makes recommendations based upon an effort to be a
consistent pattern of discipline.
So I think you will find, regardless of what direction you
go in respect to future oversight, that the FBI has not shrunk
from dealing with issues of discipline; in fact, wish to have
it.
I see I have pushed the light too far for my own good.
Chairman Leahy. Take whatever time you need.
Judge Webster. Thank you. I would like to tell you a little
bit about I have been asked to do by the Attorney General and
Director Freeh, and that is to look into the internal security
procedures of the Federal Bureau of Investigation in the wake
of the Robert Hanssen case.
I might say that Inspector General Fine and I have met on
two occasions to make sure that we were cooperating and not
working against each other and would appropriately share
information that would be helpful to you and to their own
responsibilities.
I define our mission in this shorthand way. We are not
investigating the Hanssen case. We will learn, we will be
informed by what we get from the inspector general and from
other sources. But our mission, I think, is to reduce the time
between defection and detection. It is that simple.
No one should be allowed to function as a traitor in the
Federal Bureau of Investigation, much less anywhere else, for
15 years. The problem everyone understands is that we can't
preclude someone turning sour in the midst of his career, but
we can make every effort to be sure that we recognize that
change of attitude and purpose, and do so in the best possible
way without destroying the morale and the trust and the bond
that exists within the FBI. The FBI has accepted, for example,
in drug testing intrusions on privacy interests for the greater
good, the example to be set, and so on. We are looking at that
and we are looking to see how it would be done.
Well, what have we done and where are we? I have
established a very excellent staff to tackle and break down the
assignments, and I would like to just list those to you, but
also not only mindful of the fact that a former director of the
FBI has been asked to head this commission--incidentally,
Director Freeh asked me to take this on even before he made the
arrest of Robert Hanssen, subject to the approval of the
Attorney General which came immediately afterwards.
I have asked as an oversight commission--I don't want to
engage them in all the work that is involved, but to look at
what we are doing, to look at what I am doing and to tell me
where we ought to be doing things differently, or more or less,
and to assess our judgments.
I have asked, and they have agreed to serve, former
Secretary of Defense and Minority head of the Senate
Intelligence Committee, William Cohen; former Secretary of the
Army Clifford Alexander; former Speaker of the House Thomas
Foley; former Trade Representative and a very distinguished
public official, Carla Hills; Robert Fisk, former special
prosecutor in New York; and former Attorney General Griffin
Bell. I hope that they will insist on the level of credibility
that will convince you that whatever we are able to come up
with is worth listening to.
Now, we have divided our task into four basic areas.
Personnel security. We have a task force working on key issues,
including the use of the polygraph, the adequacy of background
investigations and how seriously they are taken, and means of
indicia of defection.
We have a task force on document security which will
address and is addressing the collection, control,
dissemination and destruction of classified information,
particularly SCI and FISA information, and the adequacy of
``need to know'' assessments. I might add that we were
immediately given a package of all of the known rules and
regulations in this area by the FBI upon my appointment.
Third, organizational security. We are undertaking a
comparison of security policies and practices in various other
agencies, the FBI and the other intelligence community
activities, to see what can be learned elsewhere, and the
security, training and education areas.
And, fourth, we have a task force on information systems
security, and that was specifically mentioned by the Attorney
General. We are looking at the adequacy of security protections
for classified computer and telecommunications systems. We are
looking at the adequacy of the audit trail capabilities, the
implementation of automated trip wires, the detection methods,
ways that we can have electronic librarians that will recognize
when someone who doesn't belong in a particularly highly
classified area is walking around.
I have a staff now of approximately nine attorneys, headed
by Michael Shaheen, a distinguished former head of the Office
of Professional Responsibility at the Department of Justice.
Most of our staff members are assigned and seconded to us from
other agencies of Government.
I have also asked Russell Bremer, and he has been working
with me. He was a former general counsel at the CIA. He worked
with me at the FBI on the 68 agent cases, and I have asked him
to assume major responsibility on the polygraph issues and the
use of polygraph as a vetting process, which prior to the
Robert Hanssen case did not exist, except on an entry-level
basis.
I could list all of them. They are absolutely outstanding,
and we have some 17 investigators, experts and consultants from
other agencies of the Government and the military.
We have made a good deal of progress. We have conducted
many interviews. We have been meeting with the other agencies
and with officials in the FBI, including Neil Gallagher, who
heads the National Security Division. We have been
coordinating, as I said, with Inspector General Fine. We have
coordinated with the Hanssen prosecution team in order not to
step on their work and thereby create issues of privilege, and
so forth.
We have briefed the Attorney General and the Deputy
Attorney General, and we have tried to work out and are working
out the problems that come from having the application of FACA,
the Federal Advisory Committee Act, and its implications for us
so that we can have our closed meetings and deal with highly
classified information.
Chairman Leahy. I think as you said, Judge Webster, nobody
is shocked to find that the Russians or any other group,
including some friendly to us, may try to get somebody to
defect or to spy for them or provide material. What has been
shocking to this Committee--and a number of members of this
Committee also serve on the Intelligence Committee--what is
shocking is why it took so long to detect them. We will be very
anxious to see what you come up with on that.
We will, of course, continue to ask questions here and try
not to bump into what you are doing. I am not trying to witch-
hunt in the Bureau, but I am just trying to make sure that we
don't have another situation like this. If somebody is leaving,
as the press has reported, warning signals all over the place
and doesn't get caught, I worry what we are doing about
catching somebody who shows a little bit more finesse.
Judge Webster. Well, we have one here. We have what I call
a 500-year flood, and we will learn from that.
Chairman Leahy. I hope so.
Judge Webster. I think it would be naive to assume that we
will never have another defection.
Chairman Leahy. Of course, we will have more, but we can
have better----
Judge Webster. We can be prepared.
Chairman Leahy. Yes. Thank you.
Mr. Bromwich.
STATEMENT OF MICHAEL R. BROMWICH, FORMER INSPECTOR GENERAL,
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Bromwich. Thank you, Mr. Chairman, Senator Hatch,
members of the Committee. I am currently partner in the
Washington, D.C., and New York offices of the law firm of
Fried, Frank, Harris, Shriver and Jacobson. Before joining the
firm in 1999, I had spent 13 of the previous 17 years in public
service, first as a Federal prosecutor in both New York and
Washington, and for the last 5 years, from 1994 to 1999, as the
Inspector General for the Department of Justice.
While I was Inspector General, the office conducted a
number of significant reviews of the FBI, including in-depth
investigations of the FBI Laboratory, the FBI's role in the
Aldrich Ames affair, and the FBI's problems in handling
classified information during the campaign finance
investigation. I welcome the opportunity to be here today to
testify about the important and very timely subject of
oversight of the FBI.
My prepared testimony reviews in some detail the history of
the past decade relating to FBI oversight and some of the
challenges and frustrations we at the OIG faced during my
tenure. I am submitting that statement for the record. In this
brief statement, I will focus on the theme of this hearing,
which is restoring confidence in the FBI.
These last several months, as has been noted by many of the
members, have been extremely difficult ones for the FBI and for
those who care about public confidence in it. In the past
month, we have heard about an FBI that is allegedly out of
control, fails to respect the rights of criminal suspects and
defendants, and is characterized by a cowboy culture more
concerned with newspaper headlines than justice. Recent polls
have demonstrated that, and the damage to the Bureau's
reputation.
I think that the ``out of control'' rhetoric and
suggestions about its culture are overstated, and in any event
are not very helpful in understanding the dimensions of the
problems or in arriving at solutions. For the most part, the
men and women of the FBI have chosen careers of public service
and committed themselves to the noble calling of Federal law
enforcement. They do their jobs and they do them well, but the
problems cannot be ignored or dismissed.
I share with this Committee the view that one of the
principal means for restoring confidence in the FBI is to
ensure that it is subject to adequate oversight. I believe the
principal tool for upgrading the amount and quality of
oversight over the FBI is to strengthen the Justice
Department's Office of the Inspector General.
At present, its ability to perform comprehensive and
aggressive oversight is limited by jurisdictional limitations
and resource shortfalls. The Justice Department may not, at his
own initiative, conduct investigations of misconduct among
personnel at the FBI without the permission of the Attorney
General or the Deputy Attorney General.
I am aware of no similar limitation that exists for any
other IG. This means that the FBI, arguably the most powerful
agency in the Federal Government, is currently subject to less
oversight than any other agency. A bill in the House to change
that system in 1997, following the OIG's FBI Lab and Ames
reports, died, and Attorney General Reno would not change the
situation herself.
Although my prepared testimony explains the genesis of the
limitation on the OIG's jurisdiction in historical and
institutional terms, it makes no sense any longer, assuming it
ever did. Lifting the existing jurisdictional limitations will
not cause the Justice's OIG to insert itself into sensitive
intelligence and law enforcement activities.
The concerns about interfering with the ability of the FBI
to carry out its critical law enforcement and
counterintelligence responsibilities are overblown. The IG Act
already gives the Attorney General the authority to block any
IG investigation or audit if he or she determines that the
activity will interfere with an important function or activity.
To my knowledge, that provision has been used only once, when
Attorney General Reno and I had an honest disagreement about
the relative importance of the OIG's crack cocaine report, on
the one hand, and an ongoing narcotics investigation on the
other.
So the mechanism exists currently to block the OIG from
taking specific actions, but there is accountability built into
the system because Congress must be notified of the Attorney
General's action. It does not happen under a cloak of secrecy.
The more important issue is ensuring that the Justice OIG
has the resources necessary to do its job. Authority without
the resources is a ticket to frustration and failure. The OIG
never possessed the resources necessary to meet its
responsibilities during my tenure, and its current condition is
far worse, after the substantial cutbacks over the past 3
years. Congress obviously has the power and should seize the
opportunity to remedy this serious deficiency. It is time for
Congress to restore the strength of an agency that has been
weakened in an arbitrary and irrational way.
Addressing the problem of insufficient oversight over the
FBI, two distinguished members of the Senate and this
Committee, Senators Specter and Durbin, have proposed creating
a separate IG for the FBI. The strength of such a proposal is
that it recognizes the problem and suggests an institutional
mechanism, presumably backed with sufficient funding. But I
believe that it reaches, respectfully, the wrong conclusion.
One problem is that it reinforces the separateness of the
FBI. Among the problems we have seen in recent years, in my
judgment, is an FBI that at times has been only nominally part
of the Justice Department. While such a strategy may have been
useful to the Bureau in some respects, it is fundamentally
inconsistent with the appropriate role of the FBI and counter
to its long-term interests. The creation of a separate IG for
the FBI underscores its separateness and thus, in my judgment,
moves in the wrong direction.
Second, I doubt the creation of an FBI IG would address the
crisis in public confidence that currently affects the FBI.
Seven or 8 years ago, it was sometimes very difficult to
persuade people that the Justice Department IG was sufficiently
independent to perform aggressive oversight over all aspects of
the Department, including the FBI.
Over time, it earned legitimacy and credibility because of
specific examples of oversight, including the investigations of
the FBI mentioned earlier in my testimony. That same legitimacy
would be much harder for an FBI IG to claim because it would
have to start from scratch and it would reside within the FBI.
Third, the creation of a separate IG for the FBI risks
further confusing the already confused institutional
configuration relating to FBI oversight. There also would be
the practical and logistical difficulties of creating a brand
new institution. Where would the personnel come from, from
within the FBI? If so, how can Congress and the public be
assured of its independence? If from the outside, it will takes
months, if not years, for skilled and experienced personnel
equal to the task to be hired. We cannot wait that long.
And what would happen when, as is frequently the case, the
specified piece of oversight requires the examination of not
simply FBI personnel, but also the actions of prosecutors or
other Justice Department personnel with whom the FBI personnel
work? Presumably, a joint effort of the FBI IG and the Justice
Department IG would be required. This adds coordination
problems on top of investigations that are already
substantively complex and difficult.
In short, I agree with the impulse behind the proposal to
create a separate IG for the FBI; that is, to enhance the level
of oversight over the FBI. But I believe the fuller and more
prompt realization of those objectives can be achieved through
full funding of the Justice Department's OIG and through
eliminating the current restrictions on that office's ability
to perform oversight.
Chairman Leahy. What you are saying, in effect, is if there
is going to be a Justice Department IG, the IG should be for
everybody in the Justice Department.
Mr. Bromwich. That is exactly right, Mr. Chairman.
Chairman Leahy. And everybody in the Justice Department
should be treated the same, and that includes the FBI.
Mr. Bromwich. That is exactly right.
Chairman Leahy. Thank you.
Mr. Bromwich. Just finishing up, in the process of doing
the FBI Lab investigation, we learned that the FBI had long
resisted opening itself to the entity responsible for
accrediting crime labs throughout North America. In discussing
this with the forensic scientists who were members of our
investigative team, I learned unfortunately that this was part
for the course.
They told me that in the exchanges between personnel from
the FBI Lab and from other labs, the FBI was there to impart
knowledge and wisdom rather than to receive it, and the FBI did
not act as though it had anything to learn from others. That
attitude--some describe it as institutional arrogance--has
deprived the FBI, of lessons to be gained from mutual exchanges
with other law enforcement agencies and other large and complex
organizations.
The backwardness of the FBI's computer systems and
recordkeeping practices are at least in part the product of
resisting the advances in technology that swept through the
rest of the organizational world some time ago. Although mutual
exchanges with other institutions may not generally be regarded
as a form of oversight, the FBI can benefit immeasurably from
opening itself to outstanding influences of various kinds. This
would reflect a humility and a willingness to learn from others
that the Bureau has too often seemed to lack. Opening itself up
will help the Bureau to overcome its debilitating insularity
and embrace the outside world in a constructive manner.
Mr. Chairman, that concludes my prepared testimony. I would
be happy to answer any questions.
[The prepared statement of Mr. Bromwich follows:]
Statement of Michael R. Bromwich, Former Inspector General, Department
of Justice, Washington, D.C.
Mr. Chairman, Senator Hatch, members of the Committee:
I am currently a partner in the Washington D. C. and New York
offices of the law firm of Fried, Frank, Harris, Shriver & Jacobson.
Before joining the firm in September 1999, I spent 13 of the previous
17 years in public service, first as a federal prosecutor in New York
and Washington, and for the last five years, from 1994 to 1999, as the
Inspector General (IG) of the Department of Justice. During the time I
served as Inspector General, the Office of the Inspector General (OIG)
conducted a number of significant reviews of the FBI, including in-
depth investigations of the FBI Laboratory, the FBI's role in the
Aldrich Ames affair, and the FBI's problems in handling classified
information in the campaign finance investigation. I am pleased to be
here to testify about the important and timely subject of oversight
over the FBI.
I think it might be most useful for me to address some of the
recent historical issues relating to FBI oversight. First, I will
describe the state of oversight over the FBI and the institutional
configuration relating to such oversight when I arrived at the
Department at the end of 1993. Second, I will describe the experiences
- the challenges and frustrations - I experienced during my five-year
tenure as IG as they relate to FBI oversight. Third, I will describe
what I view as the central oversight issues that need to be considered
by this Committee, including the recent proposal to create a new and
separate inspector general within the FBI. I should add that my review
of the events described in this statement is based on my best
recollection rather than on any comprehensive review of the relevant
documents.
I. Background
The Inspector General Act of 1978 (IG Act) established inspectors
general in cabinet level agencies and many independent agencies,
accelerating a movement to create independent audit, program
evaluation, and investigative agencies in the executive branch and
continuing a trend that had begun in the early 1970s. A number of
agencies, including the Treasury and Justice Departments, were not
included in the 1978 law. Although there were multiple reasons for the
omission of the Justice Department from the scope of the original
Inspector General Act, the principal arguments were that the Justice
Department already had an internal affairs-type entity the Office of
Professional Responsibility (OPR), which had been established by
Attorney General Levi in the mid-1970s--and that there were separation
of powers-related concerns about putting an independent inspector
general, with reporting responsibilities to the Congress, in the
department headed by the Attorney General (AG), the nation's chief law
enforcement officer. For these reasons and others, the Justice
Department OIG was not created until 1988, when Congress passed the
Inspector General Act Amendments of 1988.
The Justice OIG was set up through the consolidation and
amalgamation of elements of the Justice Department, including units and
personnel drawn from the DEA, the Marshals Service, the Immigration and
Naturalization Service (INS), the Bureau of Prisons, and the Justice
Management Division. The Justice Department OIG opened its doors in the
spring of 1989 with an acting inspector general. The Senate confirmed
the first Justice Department inspector general in the latter part of
1990.
The legislation that created the OIG provided it with audit and
program review authority that was virtually unlimited, including over
the FBI. In practice, as I learned when I arrived, the FBI made life
both difficult and unpleasant for OIG personnel engaged in work
involving the FBI. Because doing work in the FBI was so timeconsuming
and frustrating, because there was a general lack of cooperation from
FBI personnel, and because OIG personnel were more knowledgeable about
other components of the Department than about the FBI, the OIG did
fewer audits and less program evaluation work in the FBI than I would
have liked. OIG professionals turned their attention to parts of the
Justice Department where they could do their jobs more effectively and
have something to show for it.
As to investigations, the scope of the OIG's investigative
authority over FBI personnel and DEA personnel was controversial and
confusing almost from the outset. In addition to the OIG and OPR, there
were the two other internal affairs arms in the FBI and DEA-FBI-OPR and
DEA-OPR--whose existence was left undisturbed by the statute and by the
creation of the OIG. The statute suggested a particular division of
responsibilities, although the combination of the statute and the
legislative history made clear that the Attorney General retained
substantial discretion in allocating matters within this institutional
hodgepodge. Because the statute made the scope of the OIG's
investigative jurisdiction uncertain, there was need for some form of
clarification. In 1992, the Deputy Attorney General issued an order to
clarify matters. The order, known as the Terwilliger Order, generally
gave the jurisdiction over attorneys and law enforcement personnel to
the Justice Department's OPR, even though it lacked the manpower to do
a credible job in that regard. This did nothing to solve the problem,
but it served to diminish the stature of the OIG within the Justice
Department.
One factor in this early history that helps explain the failure to
provide any investigative oversight over the FBI was the general
hostility of the Department, including the FBI, towards the creation of
the OIG and the seeming desire to marginalize it. This was reflected in
what I found when I arrived at the Department in late 1993--that the
OIG had not been fully accepted by the rest of the Department in the
first four years of its existence. This was not attributable to any
deficiencies on the part of the OIG but, instead, was the result of
what appeared to be an attempt to marginalize it. Nor was the notion
taken seriously that the OIG could conduct investigations into
significant matters involving complex law enforcement and national
security issues.
When the possibility of my becoming the Justice Department's
Inspector General was initially raised with me, the then-Deputy
Attorney General stressed his concern about the ability of the
Department to conduct major, credible internal investigations into
matters of substantial significance. The initial investigations into
Ruby Ridge and Waco had been completed, and both he and the Attorney
General appeared to be dissatisfied with the ad hoc methods and
mechanisms used to conduct these inquiries. One of my mandates was to
create a credible investigative vehicle within the OIG.
When the Deputy Attorney and Attorney General originally recruited
me to become the Inspector General, in mid-1993, it was on the
understanding that the OIG and OPR were to be merged. However, before
Attorney General Reno could make a decision on the merger that had been
proposed by the Deputy, members of this Committee made clear that it
would not move ahead with my confirmation if the merger went forward.
In that context, Attorney General Reno declined to approve the merger.
I was confirmed as IG in June 1994.
II. FBI Oversight from 1994-1999
One of the first issues that needed to be addressed, once I became
IG, was to clarify the respective jurisdictions of the various internal
affairs offices. The process, which took several months, culminated in
the Attorney General's jurisdictional order, signed by Attorney General
Reno, in November 1994. The main issue to be resolved was determining
which cases would be worked by the Justice Department's OPR and which
by the OIG. Providing the OIG with meaningful investigative oversight
over the FBI and DEA did not figure as a matter of serious debate; it
was clear that the FBI and DEA opposed it and that the Department's
leadership was not willing to impose it. Sorting out the jurisdictional
boundaries between the OIG and the Justice Department's OPR was a more
pressing and practical issue.
Attorney General Reno's jurisdictional order established that the
Justice Department's OPR was responsible for investigating allegations
against lawyers prosecutors and others--acting in their capacity as
lawyers. This established OPR's core function as its sole function--
investigating allegations against lawyers, such as grand jury abuse,
abuse of the discovery process, other alleged unethical conduct in the
course of litigation and in trials, and similar types of matters. The
FBI and DEA internal OPRs were accorded primary responsibility for
investigating allegations of misconduct against personnel in their
respective agencies. The OIG was responsible for investigating
everything else, which was a substantial expansion of its previous
investigative jurisdiction. The jurisdictional order provided that the
OIG could conduct an investigation of FBI or DEA personnel only with
the consent of the Attorney General or the Deputy Attorney General.
In the absence of such consent, the OIG had no authority to conduct
investigations as opposed to audits or program reviews--in the FBI or
DEA. This imposed a limitation on the jurisdiction of the OIG that, to
the best of my knowledge, did not exist with respect to any other
inspector general in the federal government. This privileged and
protected status reflected the FBI's clout within the Justice
Department--DEA always appeared to be a free rider in these
discussions, benefiting from the special protection the FBI sought for
itself--and served to limit the scope of the OIG's oversight over the
FBI.\1\ It became clear tome that, in order to expand the OIG's
oversight jurisdiction over the FBI, we would have to first demonstrate
our ability to do investigations of complex law enforcement and
intelligence matters.
---------------------------------------------------------------------------
\1\ The jurisdictional order required the FBI-OPR and DEA-OPR to
provide information on its misconduct investigations to the OIG on a
regular basis to enable the OIG to make informed decisions on whether
to request authority to investigate specific matters. No such reporting
took place until this Committee conducted hearings into the Ruby Ridge
matter and inquired about the compliance of the FBI and DEA with the
reporting provisions of the jurisdictional order. Almost immediately,
the Deputy Attorney General ordered the FBI and DEA to comply with the
terms of the order and information began to be supplied. Although the
quality of the information originally provided left much to be desired,
the FBI and DEA worked over time to supply the necessary information in
a usable and understandable format.
---------------------------------------------------------------------------
a. ames
In November 1994, the House Permanent Select Committee on
Intelligence (HPSCI) filed a report of its inquiry into the Aldrich
Ames affair. One of its recommendations was that the OIG conduct an
inquiry into the FBI's role in the affair analogous to the review
previously conducted by the CIA OIG. As we sought to assemble a team to
conduct the investigation, we learned that the FBI was trying to
convince the chairman of HPSCI and the top staff members to permit the
FBI to review its own conduct, foreclosing the OIG's review. The FBI
told staffers that I was uninterested in conducting the review, and was
unable to do so, and was close to reaching an agreement with the
Committee that would have permitted the FBI to review its own conduct.
The staffers appeared shocked when they learned that the FBI had wholly
misrepresented my attitude towards conducting the review. Our belated
discovery of the FBI's attempts to block the OIG's review and
discussions with the HPSCI staff served to get the project back on
track.
Ultimately, we produced a detailed account of the FBI's efforts
over a seven-year period to determine the source of the enormous
intelligence losses caused by Ames. Once the FBI reconciled itself to
the fact that the OIG would be doing the review, we generally got good
cooperation from the FBI in providing personnel to assist with the
project, in producing documents, and in making witnesses available. I
have little doubt that we were able to bring a degree of independence
and objectivity to the review that would have been beyond the capacity
of any review conducted by the FBI itself. Although the head of the
Bureau's National Security Division publicly dismissed the report upon
its release as containing nothing new and nothing that the FBI had not
already figured out on its own, we were subsequently told by
Congressional staffers that the report's recommendations had been
extremely useful in monitoring the Bureau's progress in addressing some
of the deficiencies that had been noted. And, when the alleged
activities of Robert Hanssen were reported earlier this year, the
Bureau publicly stated that it had implemented the recommendations
contained in that 1997 report.
b. fbi lab
Probably the most well-known example of investigative oversight we
conducted during my tenure as IG was our investigation of the FBI
Laboratory. After conducting a preliminary inquiry into allegations of
misconduct and shoddy and unscientific work in the FBI Laboratory, we
expanded the review into a full-scale investigation in the fall of
1995. At the time, FBI-OPR was handling some of the allegations made by
a scientist within the FBI Lab, and the OIG was handling others. When
some of the allegations became public, it became clear that the
credibility of the investigative results turned on their being done by
an entity outside the FBI. For this reason, I went to the Deputy
Attorney General and sought, under the jurisdictional order, to assume
responsibility for reviewing the allegations then being reviewed by
FBI-OPR. The Deputy Attorney General asked that I meet with the FBI
Director to see whether he objected to our assuming total
responsibility. I did so in early August 1995, and Director Freeh
raised no objection.
After an eighteen-month long investigation, we issued a lengthy
report in April 1997 supporting many of the allegations of poor
scientific practices and substandard work being performed in the three
sections of the Lab we examined closely. We rejected some of the most
far-reaching allegations that had been made, including allegations of
perjury, obstruction of justice, and suppression of exculpatory
evidence. We made 40 recommendations, all of which were accepted by the
FBI. In addition, during the course of our review, we strongly
recommended that a world-class scientist be named to head the Lab
rather than an agent, as had been the case previously, and as the
Bureau was intending to do again. Following the intervention of the
Attorney General, the Bureau conducted an extensive search and
appointed a well-known and highly-respected scientist to head the Lab.
c. campaign finance investigation
In September 1997, it was disclosed that the FBI Director and the
Attorney General had not been properly briefed on classified
information collected by the FBI that suggested involvement of the
Chinese government in the 1996 presidential election. The AG and the
FBI Director turned to the FBI initially to examine the problem; the
OIG was not consulted. At the end of November 1997, the AG learned of
additional problems of the same kind. At that point, she advised the
FBI that she was asking us to investigate the matter; she did so over
the Director's objections.
In July 1999, the OIG issued a highly classified report and an
unclassified executive summary containing its findings and
recommendations. The findings and recommendations included both matters
relating specifically to the structure and function of the campaign
finance investigation and relating to more general systemic problems.
In the category of systemic problems, the investigation found major
defects with the manner in which the FBI's computer systems were used.
Most of these were management and operational problems, rather than
purely technical issues. For example, the investigation found that
agents had too much discretion in entering investigative information,
thus risking the failure to enter significant data into the system;
that agents and other personnel using the computer systems were
insufficiently trained in using the systems properly; and that, as a
result, the ability to retrieve relevant information was significantly
impaired. We have apparently seen some of the bitter fuits of these
computer system management problems in the McVei documents matter,
although we need to await the results of the current Inspector
General's investigation to determine how much of the explanation is
attributable to computer problems and how much to other factors.
d. other matters
In addition to the matters summarized above, there were other FBI
oversight matters that arose during my tenure that raised questions
about the appropriate body to perform the oversight. In connection with
allegations relating to the Ruby Ridge matter, the allegations against
high-ranking executives at the FBI were sent to the Justice
Department's OPR, rather than to the OIG. OPR began its review without
the OIG's knowledge, even though the OIG was better equipped, in my
judgment, to conduct the investigation because it has its own
complement of law enforcement personnel and therefore does not need to
rely entirely on assistance from the FBI, as has been the case with
OPR. When the issue was raised with top Department management, they
said it was too late to unscramble the egg. The same general sequence
explained OPR's role in the Richard Jewell matter.
Arguably, both of these matters were within the jurisdiction of
FBI-OPR because the allegations were focused on FBI personnel. And,
arguably, FBI-OPR was prudent in calling for assistance. The
institutional problem was that Justice's OPR had long been considered
by people in the Department and the FBI as having something other than
an arm's length relationship with the FBI. In part, this has been
because, on matters of major significance, including those matters
involving investigations of FBI personnel, OPR has tended to rely
heavily on FBI personnel to provide investigative support because it
lacks its own staff of non-lawyer investigators. On matters of such
great importance, in order to ensure public confidence in the oversight
of the FBI, and the confidence of FBI personnel themselves in the
independence and objectivity of the review, the oversight needs to be
performed by an entity that is not closely identified with the FBI.
Two other matters that arose during my tenure are worth noting, in
which the jurisdictional restrictions on the OIG resulted in important
oversight over the FBI being conducted by other entities. In the summer
of 1997, allegations arose about FBI misconduct in the context of a
major organized crime case in Boston. These allegations included the
alleged willingness of FBI agents to permit organized crime figures,
because of their status as FBI informants, to commit murder and other
crimes of violence against other persons involved in organized crime
activities. I approached the then-acting Deputy Attorney General about
allowing the OIG to assume responsibility for the review. The request
was denied.
Second, in the spring of 1999, the Wen Ho Lee case had begun to
collapse and there were calls from Congress and the media for a full
internal investigation of the activities of both FBI personnel and
Justice Department lawyers. At the time, the OIG was struggling with
major budget problems. Even so, I went to the Deputy Attorney General
and requested that the OIG conduct the review. For reasons that were
not fully explained, the Deputy said that the OIG had not been
considered for conducting the review. Ultimately, we were advised that,
because of the budget problems the OIG was experiencing at the time, we
were thought not to be capable of undertaking the review. That decision
had been made without any consultation with us whatsoever. Although the
Department asked a very capable and competent prosecutor to conduct the
review, that is beside the point. As an institutional and oversight
matter, it turned back the clock to the ad hoc world of 1992-93, where
oversight solutions were developed on the fly with little regard for
establishing continuity and stability in the oversight of the FBI.
e. resource issues
Oversight requires resources--both the right people and sufficient
funding. During my tenure, our attempts to change the mix of personnel
to conduct more complex pieces of oversight over the FBI ran aground
because of lack of funding.
My experience has been that the type of oversight reflected in the
FBI Lab, Ames, and campaign finance oversight investigation requires a
mix of lawyers, investigators, and other personnel. When I arrived at
the OIG, it was ill equipped to conduct such oversight. Of the
approximately 400 people on board at the time, there were only a
handful of lawyers, none of whom had any prosecutorial or investigative
experience. In fact, the current Inspector General, Mr. Fine, was the
first lawyer I hired specifically to do this kind of complex oversight
work. My efforts over the years to build up this capability in any
substantial way were only partly successful; even after the reports on
the Ames and FBI Lab matters were completed in early 1997, I was unable
to get the Attorney General and Deputy Attorney General to approve
enhanced funding for this purpose. Their approach was to try to get us
to enlist personnel detailed from other parts of the Department, most
notably the U.S. Attorney's Offices and the Criminal Division, rather
than augment the OIG's funding. Sometimes this solution worked well;
sometimes it did not. In any event, I did not view it then--and I do
not view it now--as a sustainable solution over the long term. The OIG
needs to have its own personnel available to conduct oversight of
complex matters. To date, because of budgetary issues, caused during my
tenure by the failure of the Justice Department, OMB, and the Congress
to provide adequate funding, this has not been the case. We were able
to build up this capability to some extent, but not nearly to the
extent that the workload required.
This general long-term structural and funding problem took a more
ominous turn starting in the second half of 1998. At that time,
staffers on the Senate Appropriations Subcommittee suddenly, and
without any warning, took strong exception to a funding mechanism that
had been used continuously since 1992. They were able to do so without
any evident concern for the impact their actions would have on the
oversight capacities of the OIG, much less on the personnel within the
organization. I was never able to determine the real motivation for the
attacks on the OIG, but the bitter and unfortunate result was a
substantial degradation in the ability of the OIG to conduct oversight
over the FBI and the rest of the Department. For the better part of my
last year as IG, the energies of top management in the OIG were heavily
devoted to staving off draconian budget cuts, rather than focusing
exclusively on the OIG's oversight function. At one time, the OIG was
threatened with budget cuts that would have resulted in close to a 50%
cut in personnel. Although the worst cuts were avoided, the damage to
the OIG was severe. The OIG is still dealing with the debilitating
effects of that episode.
III. Restoring Confidence in the FBI through Stronger Oversight
These last several months have been extremely difficult for the FBI
and for those who care about public confidence in the FBI. This should
include all of us. When it was disclosed just over a month ago that
thousands of pages of documents generated in the Oklahoma City bombing
investigation had not previously been provided to prosecutors and
defense counsel, it was simply the most recent in a string of major
embarrassments for the FBI. The failure to produce the documents in the
McVeigh case, just days before his scheduled execution, was only the
most recent setback for the Bureau, adding to a list that, since the
beginning of this year alone, includes the following: disclosures of
the 15-20-year-long espionage activities of Robert Hanssen; the failure
to disclose tape recordings in the Birmingham church bombing case to
the Alabama state attorney general; and the Boston man wrongfully
imprisoned for 30 years because FBI agents were apparently more
interested in protecting an informant than in freeing an innocent man.
In the past month, we have heard about an FBI that is allegedly out
of control, fails to respect the rights of criminal suspects and
defendants, and is characterized by a ``cowboy culture'' more concerned
with newspaper headlines than justice. Recent polls have demonstrated
that the FBI's public reputation has been seriously damaged: for
example, a Washington Post/ABC poll published shortly after the
disclosure relating to the McVeigh documents showed that a bare
majority of the American public--53% said it has a favorable impression
of the FBI, down 30 points from six years ago. I think the ``out of
control'' rhetoric and suggestions that the FBI is characterized by a
``cowboy culture'' are overstated and in any event may not be very
helpful in understanding the dimensions of the problems or in arriving
at solutions. But the problems cannot be ignored or dismissed.
If there is any unifying theme to these failures, it appears to be
a failure of basic supervision, management, and oversight. For example,
the McVeigh document debacle seems to have been a combined failure of
computer systems and inadequate management attention, at the
headquarters and field office level, to the fundamental task of
collecting and retrieving investigative materials. The failure to
detect and limit the alleged Hanssen spying spree appears to be a
combination of inadequate internal controls on access to highly
classified information and the failure adequately to screen and monitor
FBI personnel. Definitive judgments on these matters, as well as the
others, will have to await the investigations now in process, but, in
the meantime, the FBI will have to push ahead and address its various
management and organizational challenges.
a. choice of a new director
With Director Freeh having announced his intention to resign as
Director, and expected to leave office shortly, President Bush has the
important task of choosing his successor. President Bush need not--and
in my view probably should not--adhere to the recent model of selecting
the new director from the federal judiciary. Indeed, the kind of
managerial experience and expertise most needed at the FBI is unlikely
to be found there. It is, of course, vital that the next FBI Director,
like Judge Webster, be a person whose personal and professional ethics
are beyond reproach. But that is not enough to ensure that the FBI
Director will be able to address adequately the substantial management
and organizational challenges he or she will face and the critical task
of rebuilding the Bureau's morale, which is at a low ebb.
It is, however, critical that the principle embodied in the
selection of federal judges be followed: the selection must avoid even
the suggestion of partisanship. The next director should be selected--
and the Senate should exercise its advise and consent function--based
on whether the nominee has the right mix of law enforcement and
managerial experience to handle the complex challenges of the FBI. The
FBI does not need a super cop at its helm, nor can it easily absorb
someone who has been selected for reasons other than his or her law
enforcement and management credentials. And, the nominee needs to
understand and accept the legitimacy of external oversight--both
Congressional oversight and executive branch oversight.
b. proposal for a separate fbi ig
There is general agreement that the FBI needs stronger oversight
and that the current system of oversight, which places primary
responsibility on FBI-OPR, as well as on the Inspections Division of
the FBI, has not been adequate. Addressing this problem, two
distinguished members of this Committee--Senators Specter and Durbin--
have proposed creating a separate IG for the FBI in order to create an
institution specifically devoted to FBI oversight. The strength of such
a proposal is that it recognizes the problem and suggests an
institutional mechanism--presumably backed with the promise of
sufficient funding. But I believe that it reaches the wrong
institutional conclusion.
Among the problems we have seen in recent years, in my judgment, is
an FBI that at times has been only nominally part of the Justice
Department. While such a strategy may well have won larger budgets for
the FBI, it is fundamentally inconsistent with the appropriate role of
the FBI, and counter to its long-term interests. The creation of a
separate IG for the FBI that underscores its separateness moves in the
wrong direction. For most of our history, concerns about the FBI's
becoming a national police force have been countered by the assurance
that it is under the control of the Justice Department and the Attorney
General. A separate FBI IG who reports jointly to the FBI Director and
the Congress, rather than to the Attorney General, would undermine the
principle that the FBI is apart of the Justice Department.
Second, I doubt the creation of an FBI IG would address the crisis
in public confidence that currently affects the FBI. As difficult as it
sometimes has been to persuade people that the Justice Department IG is
sufficiently independent to perform aggressive oversight over all
aspects of the Department, including the FBI, it has earned legitimacy
and credibility over the twelve years of its existence with specific
pieces of oversight, including the investigations of the FBI described
earlier in my testimony. That same legitimacy would be much harder for
an FBI IG to claim because it would reside within the FBI and the IG
would report to the FBI Director as well as Congress, rather than to
the Attorney General. Nor would having the FBI IG report to the
Attorney General solve this problem.
Third, the models for the proposal, I believe, are the CIA OIG and
the OIG for Tax Administration, which, I believe, is the only other IG
created within an agency where an IG already exists. Both cases are
very different from the situation facing Congress in dealing with the
FBI and, therefore, do not constitute a persuasive precedent for
creating a separate IG for the FBI. The creation of a statutory IG at
the CIA was designed to strengthen the oversight at that agency and
give the IG recourse to Congress if CIA management failed to address
significant issues. Before the creation of the IG, there was no other
independent oversight mechanism, such as exists within the Justice
Department's OIG, to perform such oversight. The non-statutory CIA IG
was considered to be without significant clout and was not taken
seriously within the Agency.
In the case of the IG for Tax Administration, it was created in an
environment in which the Treasury IG had exercised no meaningful
oversight over the IRS and shown neither the interest nor the ability
to do so. Indeed, to be blunt, the Treasury OIG at that time was a
largely dysfunctional agency that had shown little or no ability to
carry out its oversight functions over the law enforcement components
of the Treasury--Customs, ATF, and the Secret Service--and whose IG was
ultimately investigated by the Permanent Subcommittee on Investigations
and left office under a cloud.
In short, I do not believe that the experience of either the CIA IG
or the Tax Administration IG supports the creation of a separate FBI
IG. Moreover, the creation of yet another institutional entity
responsible for FBI oversight risks heightening the institutional
confusion that already exists over which agencies have what FBI
oversight responsibilities. There also would be the practical and
logistical difficulties of creating an institution from scratch. Where
would the personnel come from? From within the FBI? If so, how can
Congress and the public be assured of its independence? If from the
outside, it will take months if not years for skilled and experienced
personnel equal to the task to be hired. Although I agree with the
impulse behind the proposal to create a separate IG for the FBI--to
enhance the level of oversight over the FBI--I believe the fuller and
more prompt realization of its objectives can be achieved through full
funding of the Justice Department's OIG and through the elimination of
the current restrictions on its ability to perform oversight over the
FBI.
c. strengthening the justice department oig
As I mentioned earlier, the Justice Department Inspector General
may not, at his own initiative, conduct investigations of misconduct
among personnel at the FBI without the permission of the Attorney
General or the Deputy General. I am aware of no similar limitation that
exists for any other Inspector General. This means that the FBI--
arguably the most powerful agency in the federal government--is
currently subject to less oversight than any other agency. A bill in
the House to change that system in 1997 following the OIG's FBI
Laboratory and Ames reports--died, and Attorney General Reno would not
change the situation herself. Although I have explained the genesis of
the limitation on the OIG's jurisdiction, it makes no sense any longer,
assuming it ever did.
There are no reasonable grounds for concern that lifting the
existing jurisdictional limitation will cause the Justice OIG to insert
itself into sensitive intelligence and law enforcement matters, thus
interfering with the ability of the FBI to carry out its critical law
enforcement and counterintelligence responsibilities. The IG Act
already gives the Attorney General the authority to block an IG
investigation or audit if he determines that the activity will
interfere with an important function or activity. To my knowledge, that
provision has been used only once--when Attorney General Reno and I had
an honest disagreement about the relative importance of the OIG's CIA
crack cocaine report weighed against an ongoing narcotics investigation
that she felt would be impaired if the report had been publicly
released immediately upon completion. Accordingly, the mechanism exists
to block the OIG from taking specific actions that may be viewed as
potentially harmful, but there is accountability built into the system:
the Attorney General's action must be the subject of a notification to
Congress.
The more important issue is ensuring that the Justice OIG has the
resources necessary to do its job. Authority without the resources is a
ticket to frustration and failure. The OIG never possessed the
resources necessary to meet its responsibilities during my tenure, and
its current condition is far worse after the substantial cutbacks over
the past three years, during which its staffing levels dropped more
than 20% during a period in which the Department's growth continued to
be vigorous. Congress obviously has the power--and should seize the
opportunity--to remedy this serious deficiency. It is time for the
Congress to restore the strength of an agency weakened in an arbitrary
and irrational way.
d. opening the fbi to outside influences
In the process of doing the FBI Laboratory investigation, we
learned that the FBI had long resisted opening itself to the entity
responsible for accrediting crime laboratories throughout North
America. In discussing this with the forensic scientists who were
members of the investigative team, I learned that this was par for the
course--that in the exchanges between personnel from the FBI Lab and
from other labs, the FBI was there to impart knowledge and wisdom,
rather than to receive it.
That attitude--some describe it as institutional arrogance--has
deprived the FBI of the benefits and lessons to be gained from mutual
exchanges with other law enforcement agencies and other large and
complex organizations. The backwardness of the FBI's computer system
and record keeping practices, now so painfully highlighted in the
McVeigh case, is at least in part the product of resisting the advances
in technology that swept through the rest of the organizational world
some time ago. Although mutual exchanges with other institutions may
not generally be regarded as a form of oversight, the FBI can benefit
immeasurably from opening itself to outside influences of various
kinds. This will help the FBI to overcome its debilitating insularity
and embrace the outside world in a constructive manner.
That concludes my prepared testimony. I am happy to answer any
questions you may have at this time.
Chairman Leahy. Thank you very much.
Mr. Rabkin.
STATEMENT OF NORMAN J. RABKIN, MANAGING DIRECTOR, TAX
ADMINISTRATION AND JUSTICE ISSUES, GENERAL ACCOUNTING OFFICE,
WASHINGTON, D.C.
Mr. Rabkin. Mr. Chairman, Senator Hatch, members of the
Committee, I am pleased to be here today to discuss the GAO
access to the FBI's data, documents and personnel. I would like
to briefly describe the nature of the work we do at the FBI,
talk about our general authority for access at any Federal
agency, and then relate some of our recent experiences with the
FBI.
As you probably know, GAO is the investigative arm of the
Congress. This means that we respond to your requests for
audits, evaluations and investigations of Federal activities.
Our mission is to support the Congress in meeting its
constitutional responsibilities and to help improve the
performance and accountability of the Federal Government for
the benefit of the American people. To effectively carry out
that mission, we need the cooperation and support of the
Federal agencies and other organizations that we review.
We have issued about 50 products concerning the FBI over
the past 5 years or so. About 10 of these products focus
specifically on the FBI. The rest include the FBI as one of
several agencies that we have reviewed.
Congress has given us broad authority to access the FBI's
data, documents and personnel in order to conduct our work.
This is the same authority we rely on to perform our work at
all Federal agencies. We also have specific authority to
enforce our access.
While things go smoothly on occasion, on many other
occasions our access at the FBI has been difficult, resulting
in us having to follow cumbersome procedures to meet with
Bureau officials and to get basic information about their
programs and activities.
The types of recent access problems fall into several
categories. The first is delay in receiving documents that we
have requested and arranging meetings with FBI officials. For
example, the Chairman of the Senate Governmental Affairs
Committee recently asked us to review the FBI's foreign
counterintelligence investigations. Specifically, we looked at
the FBI's coordination of information it obtained with other
components within the Justice Department, most notably the
Criminal Division. Although this is a very sensitive subject,
our work focused on policies and procedures and the FBI's
adherence to them, not on the decisions regarding the
investigations or the intelligence they produced.
At the start of our work, we submitted a written list of
questions to the FBI concerning intelligence coordination. It
took almost 4 months for the FBI to respond to our request.
During that time, our staff contacted FBI officials at least 15
times to inquire about the status of their response.
Setting up meetings with FBI officials can also be a
lengthy process. While the FBI has told us that its goal is to
organize these meetings within 2 weeks, the elapsed time from
meeting request to actual meeting for 3 of the 4 meetings on a
current job took from 35 to 124 days. In the worst case, when
the meeting finally took place the FBI sent substitutes for the
official who was originally expected to attend the meeting.
Another problem we incur relates to the quality of the
documentation the FBI provides. On a recent job we did for the
Chairman and Ranking Member of this Committee's Subcommittee on
Technology, Terrorism, and Government Information, we
encountered numerous occasions in which the FBI was only able
to provide us unsigned and undated print-outs of documents we
requested, rather than the final signed versions. This
presented problems for ensuring that the information
represented the official position of the FBI and when that
position became effective.
While infrequent, in some cases the FBI has denied access
to the information we have requested. For the most part, the
information we have requested has been no more sensitive than
the information we routinely receive from other agencies during
our work.
For example, for our work related to Federal teams that
respond to chemical, biological, radiological and nuclear
terrorist incidents, the FBI refused to provide us with
information on the missions, budget and resources of its
response teams. The FBI said that providing that information to
us would jeopardize the teams' operational security, even
though the information was unclassified. Although we could have
acted to enforce our request for this information, we discussed
it with our client and decided to drop the FBI from the scope
of our review.
We have had some assignments involving the FBI in which
access was not a problem. For example, during our recent review
of Federal funding for the Los Angeles, Atlanta and Salt Lake
City Olympic Games, our request for information about the types
of projects and the activities that the FBI was funding was
answered in a timely and cooperative way.
In summary, the FBI's reluctance to consistently honor our
statutory rights of access has forced us to expend significant
energy and resources. The FBI has also limited our ability to
respond to our clients, the congressional Committees and
Members of Congress, in a timely and efficient way.
We recognize that the FBI's responsibility to investigate
criminal activity carries with it a set of imperatives that
limit its discretion to disseminate certain types of
information in order to protect the rights of the accused and
the integrity of the investigative process. We believe,
however, that these imperatives do not exempt the FBI from
congressional oversight. The FBI can and should provide a much
wider range of information about its activities to the Congress
and to us.
I might add that we met yesterday with the Assistant
Director of the FBI for Public and congressional Affairs. We
discussed the nature of our concerns with them again. We have
met with them in the past, and this morning he sent me the
letter that the Chairman introduced into the record, agreeing
to change procedures that should make our access better.
Chairman Leahy. Purely coincidental with the holding of
this hearing or the day of this hearing, I am sure. That is my
statement, Mr. Rabkin. I am not going to hang that one on you.
Mr. Rabkin. Mr. Chairman, there are many areas where we can
make a contribution to improving the FBI's activities and its
management of them. We look forward to working with this
Committee and others to help make the FBI as effective and
efficient an agency as it can be.
That completes my oral statement, Mr. Chairman.
[The prepared statement of Mr. Rabkin follows:]
Statement of Norman J. Rabkin, Managing Director, Tax Administration
and Justice Issues, U.S. General Accounting Office, Washington, D.C.
I am pleased to be here today to discuss our recent experiences
with the Federal Bureau of Investigation (FBI) related to access to the
data., documents, and personnel that we have requested in doing our
audit work for the Congress. Concern about access to records and people
at the FBI is not a new topic for us. Indeed, in July 1991 we testified
on access problems that we had at the Justice Department, most of which
involved the FBI. Although Congress has not asked us to do a
significant body of work at the FBI, we believe that there are many
areas where we can make a contribution to improving the agency's
activities and its management of them.
Let me start by outlining our statutory right of access to agency
records, including those at the FBI, and follow with some examples from
our recent experience. Most of these examples are related to specific
access problems. I also want to note some positive experiences as well,
because although not the norm, we want to present a fair picture.
In summary, the Congress has given us broad authority to access the
FBI's data, documents, and personnel in order to conduct our audits,
evaluations, and investigations. This is the same authority we rely on
to perform our work at all federal agencies. While things go smoothly
on occasion, on many other occasions our access at the FBI has been
difficult, resulting in us having to follow cumbersome procedures to
meet with Bureau officials and get basic information about their
programs and activities. We have had access issues in a number of
agencies over the years. However, across law enforcement-related
agencies, FBI access issues have been the most- sustained and
intractable.
Background
Over the past 5 years, we have issued about 50 products that
include information related to the FBI's operations and activities. In
only about 10 cases, however, has the FBI been the focus of this work.
For example, our report on the National Infrastructure Protection
Center (NIPC), located within the FBI, describes its progress in
developing national capabilities for analyzing cyber threats and
vulnerability data and issuing warnings, enhancing its capabilities for
responding to cyber attacks, and establishing information-sharing
relationships with government and private-sector entities.\1\ More
often, our work includes the FBI as one of multiple agencies that are
the subject of a given review. For example, last year we reviewed
security protection for agency officials and the FBI was but one of 30
agencies that we covered.
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\1\ NIPC was established in 1998 as an outgrowth of the FBI's
Computer Investigations and Infrastructure Assessment Center and is
located in the FBI's Counterterrorism Division. The NIPC director and
most of the analysts are FBI staff. Other staff are detailees from
other federal agencies and from international partners such as Canada.
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When we initiate work with federal agencies we formally notify key
officials about the planned review and meet with them to discuss the
objectives of our work. At that meeting we try to determine which
agency officials we should interview and what documents or data the
agency has that may pertain to our work. At the FBI (and at other
agencies), a designated liaison acts as our contact for arranging
meetings and access to documents. With few exceptions, we work through
the FBI liaison rather than contacting FBI officials directly.
In the course of our work across almost all federal agencies, we
routinely receive large amounts of information, some of it highly
sensitive. We are careful to guard the security of this information in
a manner that meets or exceeds the safety standards established by the
source agencies. We have an excellent record in relation to
safeguarding sensitive and classified information.
GAO's Statutory Access Authority
We have broad statutory right of access to agency records in order
to conduct audits and evaluations. Under 31 U.S.C. 716(a), federal
agencies are required to give us ``information about the duties,
powers, activities, organization, and financial transactions of the
agency.'' This statute applies to federal agencies, including those
performing law enforcement functions (such as the FBI), and does not
exempt law enforcement information from our access authority. If
agencies do not make this information available in a reasonable time,
we have the authority to demand access. We do this by sending the head
of the agency a letter stating our authority and our reasons for
needing the information. The agency has 20 days to respond, after which
the Comptroller General may file a report with the President, the
Director of the Office of Management and Budget (OMB), the head of the
agency, and the Congress. If the agency still has not granted us access
within another 20 days, the Comptroller General can bring suit in
federal district court unless (a) the records relate to activities the
President has designated as foreign intelligence or counter-
intelligence activities, (b) the records are specifically exempt from
disclosure by statute, or (c) the President or the OMB Director
certifies that the information being requested is covered by one of two
exemptions listed in the Freedom of Information Act (FOIA),\2\ and that
disclosure reasonably could be expected to impair substantially the
operations of the government. (See 31 U.S.C. 716(d).)
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\2\ The two relevant F01A exemptions are exemptions 5 and 7.
Exemption 5 (contained in 5 U.S.C. 552(b)(5)) exempts from public
disclosure inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in
litigation with the agency. Exemption 7 (contained in 5 U.S. C.
552(b)(7)) exempts from public disclosure records or information
compiled for law enforcement purposes, but only to the extent that the
production of such law enforcement records or information (A) could
reasonably be expected to interfere with enforcement proceedings; (B)
would deprive a person of a right to a fair trial or an impartial
adjudication; (C) could reasonably be expected to constitute an
unwarranted invasion of personal privacy; (D) could reasonably be
expected to disclose the identity of a confidential source. . .; (E)
would disclose techniques and procedures for law enforcement
investigations or prosecutions or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or (F) could
reasonably be expected to endanger the life or physical safety of any
individual.
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In the past, we issued a demand letter to the FBI requiring it to
provide us with information in accordance with our statutory authority.
In that instance the FBI ultimately complied with our request. However,
the use of our statutory enforcement authorities can be adversarial and
timeconsuming. We prefer to work out arrangements that will serve us
well in all our work with the FBI and, therefore, enable us to respond
promptly and completely to congressional requests.
In that spirit, in March 2000 we met with FBI officials to discuss
numerous specific access issues and to try to work out more efficient
arrangements to complete our work. At that meeting, and in a subsequent
letter from the Assistant Director of the FBI's Office of Public and
Congressional Affairs, the FBI pledged to do a better job in providing
us access to records and people. As you will see from the recent
examples cited in this testimony, our access problems have not been
resolved.
Multiple Types of Access Problems with the FBI
The types of recent access problems fall into several categories
and sometimes overlap. One of our greatest problems is delay. This
relates to both receiving documents that we have requested and
arranging meetings with FBI officials. We have experienced significant
delay in an engagement we are just finishing - a review requested by
Senator Fred Thompson when he was the chairman of the Senate
Governmental Affairs Conunittee. The focus of that review is the FBI's
coordination of foreign counterintelligence investigations, where
criminal violations are implicated, with other components within the
Justice Department, most notably the Criminal Division. Although this
is a very sensitive subject, our work focused on coordination policies
and procedures and the FBI's adherence to them, not on the decisions
regarding the investigations or the intelligence they produced. A work
log maintained for this job indicates that 112 days elapsed from when a
written list of questions was delivered to the FBI to the delivery of
its response.\3\ During this almost 4-month period, we contacted the
FBI at least 15 times to inquire about the status of the response.
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\3\ Due to our experience on FBI reviews, we have urged our staff
to keep detailed records of their requests for data or meetings, the
FBI's responses to those requests, and subsequent contacts when the
agency does not respond in a timely manner.
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In another case, we experienced delays in receiving documentation
for our work requested by Rep. Christopher Shays, Chairman of the House
Government Reform Subcommittee on National Security, Veterans' Affairs,
and International Relations, and Rep. Ike Skelton, Ranking Minority
Member of the House Committee on Armed Services. The request concerned
coordination between the FBI and several other federal agencies. The
issue again was very sensitive, and the report was classified.
Beginning in May 1999, we had asked the FBI to produce documents
showing administrative guidance it had issued on these activities, the
process by which these activities were approved, the timing and
duration of specific activities, and evidence of interagency
coordination. FBI officials told us they would locate and gather the
documents for us. In December 1999, after senior GAO executives
intervened, the FBI provided us a minimal and incomplete summary--not
copies of original documents. In February 2000--9 months after our
initial request--FBI officials told us they had no documentation or
other records on the activities.
In other examples, we experienced delays in receiving documents
related to our work on reports entitled, Gun Control: Implementation of
the National Instant Criminal Background Check System and Combating
Terrorism: Federal Agencies' Efforts to Implement National Policy and
Strategy, among others. Needless to say, these delays affected our
ability to do our work efficiently and adversely affected our ability
to provide timely information and advice to the Congress by postponing
the issuance of our reports.
Setting up meetings with FBI officials can also be a lengthy
process. While the FBI has told us that its goal is to organize
meetings within 2 weeks, elapsed time from meeting request to actual
meeting for 3 of the 4 meetings on a current job took 35 days, 41 days
and 124 days. In the last case, when the meeting finally took place,
the FBI sent substitutes for the official who was originally expected
to attend the meeting. In these cases and in many more, the failure of
the then FBI liaison and the liaison's superiors to return telephone
calls concerning the status of our request added to our frustration and
inefficiency.
Another problem relates to the quality of documentation the FBI
provides. In our recent work related to the NIPC, requested by Senator
Jon Kyl, then Chairman, and Senator Dianne Feinstein, then Ranking
Member, of the Subcommittee on Technology, Terrorism, and Government
Information, we encountered numerous occasions in which the FBI was
only able to provide us with unsigned and undated printouts of
documents we requested rather than final signed versions. Another case
related to our work that resulted in the classified report mentioned
earlier. The FBI sent us an ``unofficial'' document without letterhead,
signature, date, or cover letter. This presents problems for ensuring
that the information represents the official position of the agency and
when the position became effective.
FBI officials in some cases have not been forthcoming with the
types of details that would provide a richer picture of the issues we
are auditing. In the case of our NIPC work, the FBI gave us a great
deal of detailed information, much of which reflected favorably on its
program, after receiving a draft of our report. Had this information
been provided earlier when we originally asked for it--we could have
done a more efficient job in conducting our audit work and drafting our
initial report.
While infrequent, in some cases the FBI has denied us access to the
information we have requested. For the most part, the information
requested has been no more sensitive than information we routinely
receive from other agencies during our work. For example, for our work
related to federal teams that respond to chemical, biological,
radiological, and nuclear terrorist incidents (requested by Rep. Ike
Skelton, the Ranking Minority Member of the House Armed Services
Committee), the FBI refused to provide us with information on the
missions, budget, and resources of its response teams. The FBI said
that providing the information to us would jeopardize the teams'
operational security, even though the information was unclassified.
Although we could have acted to enforce our request for this
information through the statutory mechanisms described earlier, we
decided to drop the FBI from the scope of our review. We needed to
provide our client a composite picture of all federal agencies involved
in this effort (we reported on 8 such agencies) and did not want to
delay our report waiting for information from one agency.
No Access Problems in Some Recent Reviews
We have had some assignments involving the FBI in which access was
not problematic. For a review of federal funding of the Los Angeles,
Atlanta, and Salt Lake City Olympic Games, for example, a request for
information about the types of projects and activities the FBI was
funding was answered in a timely and cooperative manner. Similarly,
information for a review of computer security expenditures was provided
with only minimal delays. Finally, although there were some delays in
scheduling meetings and gaining access to documents, work on improving
counterterrorism operations was not significantly delayed because other
tasks could be completed while waiting for the requested information.
Our staff on this assignment did not consider access a problem.
Although our examples of reviews that encountered access problems
span a large number of assignments, in these assignments as well there
are examples of good cooperation in providing information. The team
working on the NIPC engagement, for example, found that field agents
provided detailed and useful information when they were interviewed and
that access improved during our review. We also note that for one
meeting on our current foreign counterintelligence coordination
assignment, a meeting was held the day after it was requested.
Conclusions
While over time we have experienced access-to-records problems at
different federal agencies, our experience at the FBI is by far our
most contentious among law enforcement agencies. The FBI's reluctance
to consistently honor our statutory rights of access has forced us to
expend significant energy and resources. The FBI has also limited our
ability to respond to our clients--congressional Committees and
individual Members of Congress--in a timely and efficient way.
We recognize that the FBI's responsibility to investigate criminal
activity carries with it a set of imperatives that limits its
discretion to disseminate certain types of information, to protect the
rights of the accused and the integrity of the investigative process.
We believe, however, that these imperatives do not exempt the FBI from
congressional oversight. The FBI can and should provide a much wider
range of information about its activities to the Congress and to us.
A partially informed Congress cannot provide adequate oversight,
balance competing interests fairly, resolve issues effectively, or
deliberate soundly.
Mr. Chairman, this concludes my prepared statement. I would be
pleased to answer any questions you may have.
Chairman Leahy. Thank you very much.
Well, let's look at the situation we have. We hear in many
ways the same story that we hear from a lot of different fronts
that the FBI can make it difficult and unpleasant if you have
an outside organization conducting review and oversight. They
did answer quickly in the area where obviously they are being
asked by the appropriations Committees how much extra money
they want for Atlanta.
Mr. Bromwich talks about when he was the Justice Department
IG that personnel from his office found doing work they were
authorized by statute to do ``time-consuming and frustrating
because there was a general lack of cooperation from FBI
personnel.'' Of course, Mr. Rabkin talks about their efforts to
fulfill congressional requests for oversight of the FBI are
made difficult due to resistance at the FBI.
Senator Danforth, who served as special counsel appointed
by former Attorney General Reno, said that, in his view, there
are strong pressures to resist divulging information to
outsiders. Even though he carried the writ of the Attorney
General, he had to threaten a search warrant to get documents
from the FBI.
Now, this seems to run through a lot of the areas and seems
to be part of an FBI culture. I would have liked to have heard
directly from FBI Director Freeh, but as I had stated before,
he is unavailable. But I also think back to what Judge Webster
said, that he told them about plausible deniability, that there
was no such thing and hiding for one hurts them all, and that
instead they should be very open, the director and others, so
that problems can be corrected.
Senator Danforth, in your testimony you also said that FBI
agents who assist these outside investigators find that it is
not a very good career move within the FBI. I am talking about
the culture. You talked about a supervisory agent who did an
excellent job helping to serve as liaison during your Waco
investigation, but he felt that he was retaliated against
because of it. Another supervisory FBI agent declined to work
with your office because he thought that it would hurt his FBI
career. Now, these are supervisory levels; this is not some
junior agent who is just out of the academy and wondering where
he or she is going to be assigned first.
Do you think that the current whistleblower protections
that we now have for FBI agents are adequate, or do we need
better?
I know Senator Grassley would be most interested in the
answer to that, too.
Mr. Danforth. These are two current cases, Mr. Chairman, of
people within the FBI who believed that cooperating with a
special counsel looking into even what turned out to be
innocent acts in the FBI were not good career moves.
The first was the FBI supervisory special agent who ran the
investigation of Ruby Ridge. My deputy approached this person
early in our investigation and asked if he would be interested
in serving as our liaison with the FBI to facilitate getting
records, and so forth, from the Bureau, and he said that he
thought that it would be very damaging to his career.
We had a really excellent person named Patrick Kiernan who
did serve as our liaison, and he has said to me that he
believes that just working with us and facilitating the work of
the special counsel's office was something that was damaging to
him in his career in the FBI.
I believe that this is part of a culture. I don't think it
is universally shared within the FBI, but I think that it is
there, the idea that the FBI is not there to be investigated,
it is there to do the investigation, and that anybody who is
participating in anything that could result in any criticism of
the FBI is in jeopardy for doing that. To me, this is the
essence of the problem.
Chairman Leahy. Well, I tend to agree with you. If you are
not willing to admit or bring to light mistakes, you are just
condemned really to repeat the mistakes.
I might ask Mr. Fine and Mr. Bromwich--I will start with
Mr. Fine, then Mr. Bromwich--have you found in your experience
that FBI agents come to you with complaints?
Mr. Fine. Yes, they do. Under the new whistleblower
regulations that apply to the FBI, we are charged, along with
the Department's Office of Professional Responsibility, with
investigating claims of whistleblower retaliation, claims by
FBI agents that they were retaliated against because of
disclosure of waste, fraud or abuse within the FBI.
It is very difficult to prove those whistleblower
retaliations. It is very hard to find a smoking gun, but we do
find the same claims that Senator Danforth alluded to that FBI
agents who are charged with investigating others in the FBI
believe it is not a career-enhancing move, and believe that it
is not helpful to them to expose FBI superiors or the FBI to
the same searching scrutiny that you would expect of
investigators investigating outsiders.
In my view, that is a reason to have an outside entity who
is not dependent upon the people whom they are investigating
come in and investigate the FBI. It is understandable that
agents within the FBI who are charged with investigating
misconduct of the FBI might hesitate to do so, might feel that
this will not redound to their benefit. I believe that you need
outside, independent, dedicated people who are solely given the
responsibility to investigate and not have to rely upon the
people that are investigating for advancement or promotion to
do that work.
Chairman Leahy. Are you referring to having the Justice
Department IG be the one to conduct the role, unhampered,
unhindered, as they would anywhere else within the Department
of Justice?
Mr. Fine. Yes, I believe that would be the appropriate way
to go. We are not dependent upon the FBI. We have career people
whose sole job it is to provide oversight, and I think that is
a better mechanism than having an entity within the FBI or
people who are rotating through this office to do that kind of
outside oversight.
Chairman Leahy. Mr. Bromwich, do you feel that same way?
Mr. Bromwich. I feel the same way. Let me just provide one
anecdotal example that is important to what Senator Danforth
said. In connection with our review of the Ames matter,
starting in early 1995, I recall us having a very difficult
time getting FBI agents with substantial counterintelligence
experience detailed to us, because they didn't want to come
over because they did not view it as a career-enhancing move.
Then once on the team, there was a great reluctance on
their part to reach conclusions that were critical of the FBI.
And then as the final underscoring of that, when the report was
released the FBI personnel who were assigned to my office and
under the supervision of people in my office declined to have
their names on the report, even though everyone else who worked
on the project were. That, to me, strongly suggested that they
were unwilling to fully participate in a report that was, in
the end, quite critical of the FBI.
Chairman Leahy. Thank you.
Senator Feinstein.
Senator Feinstein. Thanks, Mr. Chairman. I am just going to
ask two questions, and I want to use my time wisely.
Mr. Bromwich, I have read many of your reports. I have a
great respect for your integrity. You write in the New York
Times--I guess it is an op ed piece--``The FBI needs a
manager.'' Let me quote one thing.
``The FBI needs greater external oversight. congressional
oversight is crucial, but it is episodic and fitful.'' I think
we would all agree with that. ``The executive branch ensures
central, continuing monitoring of its departments and agencies
through its inspectors general, but the FBI has been largely
exempt from the system. The Justice Department's Inspector
General may not conduct investigations of misconduct among
personnel at the FBI without the permission of the Attorney
General or the Deputy Attorney General. The FBI, arguably the
most powerful agency in the Federal Government, is thus subject
to less oversight than any other agency.'' That is a compelling
statement to me.
What is the history behind this that the IG cannot inspect
any member of the Department without the specific approval of
either the director or the assistant director?
Mr. Bromwich. It is a complicated history. I try to go into
it in some depth in my prepared statement, but basically the
Justice Department did not want an inspector general for 10
years. The original batch of IGs were created through
legislation in 1978. It took 10 years for the Justice
Department to get its own, and during that period there was, it
is my understanding, fairly substantial resistance to bringing
an IG in.
One of the complaining parties was the FBI, such that when
there was the statute passed in 1988 creating the Justice IG, a
series of compromises were reached in the legislation and then
implementing the legislation that really stripped the Justice
IG of the responsibility for doing misconduct investigations in
the FBI.
Senator Feinstein. What you are saying is that is unique in
the Federal Government?
Mr. Bromwich. So far as I am aware, it is unique.
Senator Feinstein. In your professional judgment, would it
be helpful if we were to amend the Code in that regard?
Mr. Bromwich. Extremely helpful, and I think it is the
right thing to do.
Senator Feinstein. Thank you very much. Now, let me go to
one other aspect, and that is the Wen Ho Lee case. In my view,
when you file 59 charges against a person and you hold them in
solitary confinement for 9 months, you ought to have something
substantial to back it up with. And then to simply throw out
all the charges, except a charge that was commonly performed,
and that is downloading from your computer--I have had people
come in and tell me who worked at that facility that that has
been done by at least 100 people that they know of. I get very
curious as to what was really going on there.
What do you think was, and why do you believe that Wen Ho
Lee was targeted?
Mr. Bromwich. I don't really know what went on there. As I
indicate in my statement, my agency did not investigate that
matter. Indeed, we sought to investigate and we were not
permitted to. There has been a Justice Department investigation
of that matter, handled by a very senior Assistant United
States Attorney from the Eastern District of Virginia, and I
think that his conclusions are obviously worth taking
seriously. The op ed piece that I think you are referring to is
one that I wrote just based on newspaper information and some
knowledge of the way these kinds of cases work.
Senator Feinstein. So you are backing away?
Mr. Bromwich. No, I am not backing away. I think that in
this case there was a tremendous amount of political pressure
that was placed both on the Justice Department and the FBI,
generated in part by scares about the Chinese trying to take
over the 1996 election. Unfortunately, I think law enforcement
agencies and sometimes the Justice Department are not very good
at resisting that kind of pressure, and I think that is
probably what happened here.
Senator Feinstein. You write, again, in the New York Times,
and I quoted it earlier, that it is almost impossible to
imagine that such unprecedented charges, the first ever
criminal charges under the Atomic Energy Act, would have been
made if Mr. Lee had not been previously targeted. ``The
Government's claim that it wanted to solve the mystery of what
happened to the information is not compelling. Criminal charges
are rarely brought to solve mysteries, and as the judge pointed
out, the Government has yet to explain why Mr. Lee's offers
before his arrest to explain the missing tapes were not
sufficient to meet the Government's legitimate concerns.'' To
me, those are very significant words coming from an IG who is
going to use words very carefully.
Mr. Bromwich. I fully subscribe to what I said then,
Senator. I found it a very disturbing case, and disturbing in
the way that both the Justice Department and the FBI handled
it.
Senator Feinstein. Does anyone on the panel have any
comment on this point, because this is rather fundamental to
the mission of an agency when you hold somebody for 9 months in
solitary confinement and then drop all the charges, unless
there was a targeting. And that concerns me very deeply, if
that were to be found to be the case.
Mr. Webster, I see you sort of moving around.
Judge Webster. Senator, I am tempted to make a comment, and
I think I made some reference to it earlier. The FBI does not
charge; the United States Attorney and the Department of
Justice charge. They make the decision whether to prosecute or
not, and they make the decision whether to reduce the charges
or dismiss them.
So I think it would not be accurate to say that the FBI
influenced the elimination of those. They may have expressed a
desire, as I found always the case both here and on the
intelligence side, at CIA, of wanting to know as much as
possible about someone who was believed to be committing acts
of espionage, how much damage they had done to whom and why,
and who were other people who might have been involved. They
are not always fortunate enough to get that information, but I
believe it is a natural desire on their part. I found it true
in the military; let them go, just make sure we know what
damage they did.
So I think there may be some area of questionable
testimony, matters of what kind for which the FBI would be
accountable and which may have influenced the decision to
settle for a lesser charge, in the hope of cooperation, rather
than have a case that might not be won.
Senator Feinstein. Does anyone have any comment on that?
As I understand it, the FBI essentially went public with a
number of comments on the subject, particularly on the issue of
wiretaps, which the Attorney General had refused to do and was
later proven, I think, to be correct. So I mean I as a
policymaker would deduce that the FBI had a substantial stake
in this case and throwing out, Mr. Webster, all of the charges,
except for downloading information. That is a stunning
turnaround.
Judge Webster. I agree, but I don't think it was the FBI's
decision.
Senator Feinstein. To turn around?
Judge Webster. The FBI had no authority to drop anything.
This was a Department decision.
Senator Feinstein. All right. Does anybody have any further
comment on that?
If not, then I think my time is up.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, and we will follow up on this
because, Mr. Bromwich, you raised a very good point. In Mr.
Bromwich's testimony he had said the problem he was having
after he was asked to review the Wen Ho Lee case and how he was
stopped, but we will go into that in another round.
Senator Sessions was here earlier and we are glad to have
him back.
Senator Sessions. Thank you, Mr. Chairman.
Senator Danforth, I appreciate your summary remarks. I
think that reflects what so many of us who love and respect the
FBI feel about its strengths and its weaknesses. Without doubt,
there is no large agency in the world that can compare to it,
in my view, in terms of integrity and hard work and ability.
But I do sense, in 15 years as a Federal prosecutor working
with the FBI daily, that they do tend to not want to admit
error, and that compounds problems and it is not a healthy
attitude.
Director Webster, you have been there as judge and director
of the FBI. Do you think that this perception that I think is
widely held among Federal prosecutors that the FBI is too
reluctant to admit errors is an institutional problem that
needs to be rooted out, and if so, how can we do it?
Judge Webster. It is a fair question, Senator Sessions. I
could also add that I worked with the FBI as a Federal
prosecutor when I was U.S. Attorney. One of the things I always
found was that special agents tell the truth. Now, with 11,000
agents, somebody is going to breach that.
Senator Sessions. I would agree with that. They tell the
truth.
Judge Webster. On the witness stand, they tell the truth;
good or bad, they tell the truth. The question you are asking
me is if the news is bad, are they necessarily going to tell
it? And I don't ascribe that to any current reality of career
destruction by telling we have got a problem.
It was my experience that I received the most heat and had
the most difficulty in 9 years that I can remember in
situations in which things that should have been brought to my
attention didn't get there, not because it was illegal, but
because someone made the judgment that it wasn't important
enough.
The Cispis case, which you may remember, was a painful
thing for me because I was leaving the FBI to go to the CIA and
didn't know anything about the inquiry into a group of
religious leaders allegedly assisting a terrorist group in El
Salvador. The man at the desk was following Attorney General
Levi's guidelines and did not have to report it upstream.
Because we train the FBI not to be politically or
partisanly oriented, he just didn't see that investigating or
at least running name checks on 100 or so clerics was going to
be a matter of public concern. So he didn't tell anybody about
it, and because he didn't tell anybody about it, I never heard
about it. That is a condition that I think needs to be worked
on all the time. They made the judgment.
In the McVeigh case, I am going to speculate a little here
because there is a commission, I believe, that is going to look
into this and come out with it. But we do know thus far that a
Federal judge took a look at it and a court of appeals took a
look at the material and decided it had nothing to do with the
guilt or innocence of Mr. McVeigh.
What I suspect is that with the vast amount of information
being collected--the most investigated case in our history, I
understand--people in field offices looked at some of the
anonymous letters, the newspaper clippings, the contributions
of psychics, and put that somewhere else because it wasn't
Brady material, it didn't have to do with guilt or innocence,
and they were filing that way.
Senator Sessions. They decided to do that?
Judge Webster. They decided to do that. A prosecutor later
decided he was going to go beyond Brady, so he asked for
everything. They were in the midst of converting their entire
computer system at that point, and they asked for it from
headquarters 5 or 6 times urgently to get everything out there.
I used to say be careful what you tell the Congress,
because only at the FBI and only in the CIA are things never
lost forever. I can think of a lot of agencies in Government
where you could safely say we have no such records because they
will never find them. But sooner or later, in the FBI or CIA
they will come to light. And when they do, my experience has
been they have been honest about it; they have been
forthcoming. Here they are; they came in at the last minute,
but they came, and they did not affect guilt or innocence.
I make no excuse for it because it slopped over and clouded
one of the most important, successful investigations in
American history--little bits and pieces of a truck traced to a
rental agency identifying the people responsible in a very
short period of time, but millions of pieces of paper came in.
We have to face the fact that at the FBI the culture is, as
I see it, that we can do anything within our jurisdiction. We
will go anywhere and do anything we are asked to do. That is
different from a number of other agencies, and they are proud
of that. That accounted in some measured for new technology for
which they were not adequately prepared to address the issues.
I remember bringing in two people from the outside to
address our computerization back 20 years ago. They did a fine
job, but as you know, technology is moving so fast that you
really have to stay up with it. Congress was not in a
particular hurry to keep renewing the technology every 2 or 3
years, the way it is done in industry, and they are living with
equipment that was behind the times with people who were
managing it who were behind the times.
Technology at the labs--they should have, in retrospect,
been bringing people in from the outside to be sure that they
had the benefit of modern technology, not relying on their own
resources, as good as they might have been. Those are areas for
scrutiny, and I think that in the light of things that have
happened changes will come. They are already coming in the wake
of the Hanssen case, I am glad to see.
But I don't think it has to do with the character and
credibility of the men and women who serve there or their
willingness to tell the truth. Sometimes, they made a judgment
that these things aren't important. They should be careful
about making judgments like that.
Senator Sessions. Well, I am glad you answered it that way
because you are correct. Some agent in some office gets a
teletype to send in all things related to a certain case, and
two things can happen. It gets lost, it never really gets
there, it doesn't get produced or the computer doesn't work,
or, second, somebody can look at it and say what I have doesn't
make any difference, and throws it away. This isn't
discoverable evidence; some lawyer told me this isn't Brady
material, I don't have to produce it, and just not do it. The
combination of those things sometimes causes a problem.
I know when I tried a multi-district case, there was always
a lot of paranoia about do we have all the documents from all
the outlying offices. I learned to specifically ask, because
you would too often find that they had given you everything in
the local office, but not the leads that had been run around
the country. People don't realize how easy it is to make those
mistakes, in a big bureaucracy how these things can happen.
But I do think there is a bit of a problem. I don't know if
it comes back from the Hoover days, which has a lot of the
great strengths of the FBI, whether it comes from their
intelligence mission, counter-espionage mission that they have.
But there is a bit there that I think when it comes to trying
public cases in the United States district courts of America,
they need to be more open and more forthcoming, and I think the
leadership needs to require that.
I have taken too much time.
Chairman Leahy. That is all right. I think I find myself in
a great deal of agreement with what the Senator from Alabama is
saying and I appreciate him doing that.
Senator Sessions. Does that make you nervous?
[Laughter.]
Chairman Leahy. Probably not half as nervous as it is
making your caucus. They are terrified they might lose another
one. I am sorry. Maybe it is because I was born in Vermont,
that slipped out.
Senator Schumer.
Senator Schumer. Thank you. I want to thank our five
witnesses for their fine testimony and every one of you for
your service to this Government and to this country.
I am trying here--and as you can see, the focus I have
taken is not the specific individual cases which many of you
have talked about, but what is the deeper thread. And I guess I
would ask each of the witnesses or any of the witnesses who
wishes to respond, although I would ask them to be brief
because the time is so limited, do you think there is a deeper
thread behind all of these different issues?
Admittedly, these are all complicated cases where, as
Senator Sessions said, it is easy to make mistakes. But it just
seems there are too many of them; there are more of them these
days than there used to be. I will tell you what the average
citizen thinks. They think if there are mistakes in the high-
profile cases where there should have been extra care, imagine
what is going on in the low-profile cases where there was
probably a little less scrutiny and a little less supervision
from the top.
The second question I have is do you think that an agency
that has to be nimble and sort of lean, somehow this agency has
gotten too large? It is almost impossible to expect the FBI,
say, when Judge Webster was there, which was probably half the
size--is that fair to say--to be as good now.
I will just tell you one little story which bothered me. I
have a friend who is in a prosecutorial office in New York
City, top level, one of the best prosecutors in the city. This
is in a city office, and this person said to me that they would
rather have now a New York City police detective on a case than
an FBI agent. Even though the FBI agent was a more qualified
person, there were so many places that that person had to check
and so many bureaucratic loopholes that they had to go through
that they couldn't be as effective on the case as they used to
be, which I found kind of surprising.
So let me ask first the two inspectors general what they
think and then maybe go to Mr. Danforth and then Judge Webster.
Mr. Fine. Senator Schumer, I do think it is an issue and a
problem. It is a management problem, in my view. In many of the
smaller cases, you have agents who know the details of the
case, know all of what is in the files and can go by the seat
of their pants without a computer system or a management system
that you need in the high-profile, the extensive, the extended
cases that you are getting in the FBI, such as in the Oklahoma
City bombing case.
I also believe it is an important issue about attending to
the details and document management and the discovery
obligations that to some extent has not been the focus of
attention the way it should be within the FBI. The glamorous
part of the job is to investigate, to catch the criminal. But
an equally important part of the job is to ensure that the
documents are produced, the discovery obligations are attended
to. And I believe that the focus of the FBI has sometimes not
been directed in that way the way it should.
I do believe it is also important for the FBI to open
itself up to outside influences, outside people. I believe the
FBI has done some good things by bringing in outsiders to bring
new ways of operating to the FBI, both in the FBI Laboratory in
response to our report, bringing in outside scientists rather
than an examiner who rose through the ranks of the FBI, and
also in the Information Technology Division. They have a new
director there from IBM who I believe is doing good things.
So I believe it is important for the FBI to bring in
outside influences, outside people, and open itself up to
outside scrutiny.
Senator Schumer. They are not doing enough of that now.
Mr. Fine. They need to do more of it.
Senator Schumer. I would ask the others what they think of
the idea of the commission that Senator Hatch and I have talked
about, and any suggestions as to how it should be structured.
Mr. Bromwich. I agree with you, Senator Schumer, that every
agency could use that kind of top-to-bottom inspection at least
every few decades. I think that with all of the public problems
that the FBI has had in recent days, this is as good a time as
any.
I think we shouldn't strain to find common threads
everywhere in all of these problems, but I do agree with Mr.
Fine that there are some management and supervision issues that
do run through some of these cases. For example, we found in
the Lab that complaints about the way preparation of scientific
reports were handled were not handled by supervisors in the
Lab. They were ignored, they were swept under the rug, and the
problem became far worse. As Senator Grassley recalls, I am
sure, it became really a cancer in the Lab.
I also agree that the FBI in the information technology
area, in the Lab and elsewhere, needs to open itself up.
Director Freeh did the right thing in bringing in a world-class
scientist to head the Lab after the IG's investigation. But
originally they were proposing three agent candidates from
within the FBI and were really following the course of business
as usual.
I think it is very important that when a major piece of
oversight work is done like the Ames review of the FBI Lab
review that the Congress can have confidence that the top
management of the FBI simply doesn't agree with the
recommendations in a perfunctory way, but that it has been a
bit of a wake-up call and that they have actually changed their
practices. I think Congress can be helpful in that regard.
As to the issue of whether they are too large or not, they
probably are, but I think with the right people in terms of
managers and the right systems I think it can function, and
function well, and restore some of the lustre to its reputation
that it may have lost in recent months.
Senator Schumer. Senator Danforth?
Mr. Danforth. Senator Schumer, first let me say that----
Senator Schumer. And I just want to thank you for your
great work on Waco. It was a true national service.
Mr. Danforth. Well, thank you very much.
Senator, I don't think any agency, or human being for that
matter, no matter how small it becomes, is ever going to be
mistake-free. We examined in our investigation 2.3 million
pages of documents. We had 15 people who did nothing but look
at documents. My guess is in Oklahoma City there were many more
documents than that, and they were probably produced by
hundreds, if not thousands, of FBI agents. Therefore, the fact
that, say, 4,000 or whatever the number was were missing, that
to me is to be expected. I think there is always going to be a
box somewhere that people come up with.
I think that it is a mistake to have a standard of absolute
perfection with respect to mistakes because I think if we do
that and every mistake is investigated, then that is to say
cover up your mistakes because you are going to be in big
trouble if you make them.
I do believe that there are people within the FBI who don't
want anybody to believe they make mistakes, and I think that
that was the story of Waco. Instead of coming forward
initially--and if they had done that, everybody would have
said, OK, fine, thanks for explaining it--they didn't come
forward.
I further believe that during our investigation there were
people within the FBI who just plain didn't want to cooperate
with us. I think it was a small fraction, but I think that they
were some pretty well-placed people. We had difficulties with
the general counsel's office, not with the general counsel
himself, Larry Parkinson. We think he was cooperative. But we
did have problems with them. They were not producing everything
to us. We at one point had to threaten a search warrant, and we
had to send 3 lawyers and 11 postal inspectors to the FBI to
look for documents on our own because we didn't have any
confidence in them.
So I think I agree with what Senator Sessions said. I don't
think it is quite as benign as Bill Webster said. I think that
there are a lot of mistakes, but I think that there is a
culture in the FBI, somewhere in the FBI, to keep this from
coming out in the public.
I believe that the most important reform is to change that
culture, and I don't think there is any easy way to do it. I
think oversight from this Committee on a systemic basis, not
just every now and then, is very, very important. I believe
that the President of the United States, the Attorney General,
and the Director of the FBI have got to make it clear to every
agent from day one at the FBI academy that there are worse
things than making mistakes, and the worst thing is not being
forward about making that mistake.
Senator Schumer. My time is up. Thank you. I appreciate it.
Chairman Leahy. Senator Grassley.
Senator Grassley. Thank you all very much for your
testimony on this very important issue. It is very timely to
have a hearing like this, as the administration is selecting a
new director.
I am going to start with Mr. Bromwich. I want to ask the
question and then I want to give some backup. This would be
asking you for suggestions of what could be done to better
address the issue of whistleblower protection within the FBI.
I ask this because you remember the name of Dr. Fred
Whitehurst. He was, I think, the highest-profile whistleblower
that I have ever had go to an IG. He suffered attacks, not only
retaliation from his FBI colleagues, but also from you as well.
You were recently quoted as saying that you now wish your
report had made it clearer that Whitehurst deserves full credit
for exposing serious misconduct. So I believe we can learn
something from your reflection of 4 or 5 years on that.
Mr. Bromwich. Thank you very much for saying that, Senator
Grassley.
It is true that Dr. Whitehurst was the principal source of
allegations for our FBI Lab investigation, and it is true that
in retrospect I think we were perceived as being too critical
of him rather than commending him sufficiently for the service
he performed.
We did it the way we did it because we held him to the same
standard as all of the examiners against whom he made
allegations, and against that standard he fell short in many
respects because many of his allegations were not supported by
the evidence.
But what concerned me and what led me to say what I said
was I think that we were perceived as more critical of him and
not sufficiently appreciative of the service he rendered by
bringing his allegations forward. And there is no doubt that
but for his persistence in bringing the allegations again and
again and again over a long period of time within the FBI and
finally to the IG's office that the reforms that have
subsequently been made in the FBI Lab would not have been made,
and he deserves credit for that.
All of the details of the current Whistleblower Act are
ones that I am not deeply familiar with, but my impression,
Senator Grassley, is it is still too complicated and too
indirect for FBI whistleblowers on a range of allegations of
misconduct to bring those directly to the inspector general
rather than jumping through hoops before they have to do so.
So I think that would need to be examined to determine
whether there are still too many barriers that interfere with
the ability of FBI employees who believe they have knowledge of
wrongdoing to bring those forward to an entity outside the FBI.
Senator Grassley. I want to pick your brain on increasing
the authority of the Department of Justice Inspector General
and more on mechanics. What do you propose should happen to the
FBI's Office of Professional Responsibility, and what
structural changes would you recommend within the Justice IG in
terms of personnel and organization to deal effectively with
the new responsibilities, if it would take any new
responsibilities?
Mr. Bromwich. Let me take a quick pass at that, but I think
Mr. Fine is currently thinking about that issue as well.
I think that just as has been the case with many other
Justice Department components where there are still internal
affairs arms that handle the non-criminal and less serious
matters, there would still be an important function to be
served either by FBI OPR or by some other entity. In other
words, I don't think it would need to be eliminated from
existence. And, in fact, I don't think that would be a good
idea.
But I think that all criminal matters and all
administrative misconduct allegations at a certain level of
employee or above should, by rights, sort of go first to the
inspector general's office, and it ought to be up to that
office to refer things back to the FBI.
Again, we are not writing on a clean slate here. That is
exactly the sort of system that has existed with respect to the
internal affairs arms in other Justice Department components
that have law enforcement functions--the Marshals Service, the
Immigration Service, the Bureau of Prisons, and so forth. It is
only the FBI and the DEA that have had this special status that
allows them to have primary jurisdiction over misconduct
matters relating to personnel in those agencies. I think it is
a two-tiered system, it is an unequal system, and it is a bad
system.
Senator Grassley. Do you have something you want to add to
that?
Mr. Fine. Yes, Senator Grassley. I agree with Mr. Bromwich.
I believe that the relationship of the IG at the Department of
Justice and the FBI OPR should be similar to the relationship
that the IG has with other entities in the Department.
I believe FBI OPR can and should investigate and deal with
discipline of line agents for certain matters. But on criminal
matters and high-level administrative misconduct or sensitive,
high-profile matters, the Department of Justice IG should have
the authority and the resources to be able to investigate those
matters.
Senator Grassley. Let me have 15 minutes to--or 15 seconds
to----
Chairman Leahy. I was about to get Senator Durbin's name
plate on the side of my head on that one, but go ahead.
[Laughter.]
Senator Grassley. Several of the speakers made reference to
my use of the words ``cowboy culture.'' Recently, I did that,
but I also first did that in 1997 when we were involved with
the FBI crime lab problems and Mr. Bromwich's own
investigations of them. At that particular time, we were
dealing with this organization that attempted to thwart an
independent investigation, launched its own sham investigation,
and then attempted to discredit and destroy the careers of
their own respected scientists who brought these problems to
light. On top of all the other cases where there is evidence of
screw-up, in most of these the real foul-ups within the FBI
occurred after the initial mistakes were revealed.
I can't help but continue to use the words ``cowboy
culture'' when the fundamentals of the FBI are being forgotten,
and those fundamentals are that when their agents seek the
truth and let the truth convict, they do a good job. But it is
in these other cases where they try to interfere with that
process that they have created a problem for themselves.
Thank you.
Chairman Leahy. I agree, and the Senator from Iowa has been
consistent in these concerns for as long as I have been on this
Committee.
The Senator from Illinois.
Senator Durbin. Thank you, Mr. Chairman. I would like to
say, although I believe that a separate inspector general for
the FBI is the appropriate thing to do, I would like to at
least put a word of defense in here because some question my
conclusion.
Mr. Bromwich has said that he believes that changes within
the law and within the OIG could make a difference. That is
possible. It could be an approach that is equally effective,
maybe more so. I am not sure.
Here is my misgiving: when you take a look at the budgetary
figures for the Department of Justice between 1993 and the year
2000, it is fairly overwhelming. The size of the Department of
Justice increased from an $11.2 billion budget to $21 billion.
The workforce at the Department of Justice went up from 98,000
to 130,000 in that period of time.
The FBI increased dramatically in size, from $2.1 billion
to $3.6 billion, a 70-percent increase in their budget. In the
same period of time, the OIG budget went up 18 percent. That's
DOJ, 90 percent; FBI, 70 percent, OIG budget, 18 percent. And
then when you look at the actual people working in OIG, it
decreased by 15 percent.
So while the number of employees that the OIG had
jurisdiction over increased by 32,000, the number of watchdogs
in the inspector general's office decreased by 15 percent. I
would have to check to make sure, but it is hard for me to
believe that Congress did that alone. My guess is that the
administration and the Attorney General at the time in each of
the annual budgets was at least complicity in this decline of
resources in OIG.
Put that lack of attention to the inspector general's
responsibility together with what we have heard over and over
today about the culture at the FBI and I hope you understand
why I have come to the conclusion--and some may join me and
some may not--that creating a separate inspector general that
is accountable not only in his or her activity but also in his
or her budget will tell us whether or not we have a cop on the
beat when it comes to keeping an eye on the working of the FBI.
I think otherwise, as you have reported, Mr. Bromwich, in
your statement here, the OIG again is going to continue to be
marginalized, excluded, shunned, cloistered. The FBI knows how
to do this. The GAO learned that. I think the Intelligence
Committee here on the Hill has learned that, too. The FBI is
pretty good at this. They have developed this skill over many,
many decades, and that is why I think a separate IG might be
the way to go.
Let me address a specific issue that I think goes to
management maybe more than motive, and that is this whole
question of computers. Sitting in the Intelligence Committee, I
received a briefing which I thought was amazing and then read
about it the next day in the New York Times--no surprise--that
talked about Mr. Hanssen's activities 10 years ago.
Mr. Hanssen fancied himself as a computer buff, and he
tended to know more about computers than most of the people he
worked with. So he bought a hacking device, put it into his
computer, hacked into his superior's computer, downloading
information about Russia he wasn't supposed to have. And then
do you know what he did? He reported himself.
He went to his superior and said, I just hacked into your
computer, pulled down the information about Russia I am not
supposed to have, and I want to show you how porous our system
is, how vulnerable it is. Very crafty thinking on his part,
because from that moment forward he could hack as much as he
wanted and say it is just another experiment to show you how
vulnerable we are. Well, we know those experiments were
deriving information which, it has been alleged, he sold to the
Russians.
Now, what I find interesting here is that this U.S. News
and World Report goes into some question about computers at the
FBI. You would think that an agency with this responsibility of
investigation would have to be on top of the computer business
if they are going to be effective.
What we read in the news report here really suggests
otherwise. ``One of the FBI's divisions still uses computers
with 386 micro processors, chips so old they haven't been sold
for nearly a decade. FBI computers don't have rudimentary
Internet browsers. Agents can't even send e-mail outside the
Bureau's internal network.''
Mr. Robert Diaz, 52 years old, a retired IBM exec who has
been hired to try to clean up the computer mess said that for
half a century agents and friends of agents ran everything.
``And what do they know about computers,'' he says. ``It beats
me.'' ``Almost every organization upgrades its computer
networks every 2 or 3 years,'' Diaz says, ``but at the FBI 60
percent of the desktop PCs are 4 to 8 years old. The networks
are 12 years old. The system is not built for the level of
complexity agents must deal with today.''
Mr. Fine, you reported this, didn't you? You had an
investigation 5 or 6 years ago that went into this problem and
really pointed to the fact that going beyond the fortress
mentality at the FBI, there frankly was a question of
competency when it came to the mechanics of the operation of
the Bureau. But from what I can gather, for 4 or 5 years there
has been no response, or very little. Was that the case?
Mr. Fine. We have reported that. In addition, we did a
review in the campaign finance investigation and found that
they were not inputting data into the computer system, that
they were not using it the way they should, that they couldn't
with confidence state what was in the computer, and that if
they had done a search they would get it. Quite frankly, the
response to the report was we agree and we will take measures.
But we recently learned that they have not responded to it.
Senator Durbin. Exactly the point. Was it not your
responsibility as inspector general to find that sort of thing?
Going beyond the question of whether or not there is some venal
conduct here, we are talking about competency in management.
And you found, and I think it has been found and repeated here,
that when it came to the management of the premier law
enforcement agency in America, they were in the horse-and-buggy
era and they are still stuck there.
Mr. Fine. They still have problems. I think that is why it
is a good idea to bring in someone from the outside. But we are
seeing even now that many of the agents aren't trained
sufficiently, aren't using the computers properly, don't have
adequate computer support. It is a significant problem.
Senator Durbin. And so when 4,000 documents don't show up
in the McVeigh case, I think it is conceivable that there were
millions, as Senator Danforth has said, but it was the largest
terrorist act in the history of the United States. It was the
highest profile case in modern memory, and maybe it is just
possible that beyond someone pushing a box under a desk, their
computers just might not have been up to the job. I don't know
the answer. Maybe Judge Webster will tell us the answer to that
as part of his investigation, too.
Mr. Fine. That is part of our review in the Oklahoma City
bombing case and we certainly will be looking at that, Senator.
Senator Durbin. Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Gentlemen, I thank all of you. We will submit other
questions for the record. We have kept you longer than we had
said, and this is obviously the first of what is going to be
many such hearings.
I was struck by a couple of things, if I could just take a
moment on this. Judge Webster talked about the tremendous
increase in the Federalizing of crimes. I said once in one of
these things, the next thing we know we are going to have a
Federal crime on jay-walking in a neighborhood because somehow
that street goes out to the town road, which goes to the State
road, which goes to the Federal interstate highway. But we are
going to have to hire a few extra officers for that. The rodeo
one is interesting.
I am struck by the days when I was a prosecutor and I got a
call 1 day from the local sheriff who said, you know, we
recovered this 5-year-old car that is kind of banged up and had
been reported stolen. The next thing you know, there are two
FBI agents here who want to take over the case. It wasn't until
we had a meeting and were briefed in Washington, a number of
the prosecutors--Mr. Hoover was very proud about the enormous
amount of money they recover for the country, and it was
basically stolen car cases that would be reported at face value
that the local sheriff had probably found anyway. And I thought
how terrible it was to send a well-trained FBI agent out on
that.
I mentioned to Senator Hatch here earlier that I think if
we want to do a Presidential commission or a commission, we
ought to have somebody go back now through the whole Federal
criminal code, and I think we could throw out three-quarters of
what is there and allow State and local governments to handle
them. They are far better trained for it.
Obviously, in the Oklahoma City bombing, nobody could have
put all that together the way the FBI did. Let them concentrate
on things like that and let local law enforcement take care of
the things they want. We would all be better off. The courts
would have a lot less things in them. Everybody from Chief
Justice Rehnquist on have said we are clogging up the courts
with cases that should be in State courts because we have
criminalized so much.
What Senator Danforth has pointed out about the
balkanization in here--we have got to find a way to break that
down because I want the FBI to be the best possible. The
country is better off for that. And just as we make mistakes in
the Congress and we have to own up to it, if there are mistakes
in agencies of whatever departments, own up to them. Usually,
the result is you are a better department afterwards because
you correct the mistakes and move on from there. And don't
punish the person who points out the mistake.
So thank you all very, very much for taking such time out
of your very busy schedules.
We have a statement from Senator McConnell which we will
put in the record.
[The prepared statement of Senator McConnell follows:]
Statement of Hon. Mitch McConnell, a U.S. Senator from the State of
Kentucky
I would first like to thank the Chairman for calling this important
hearing. All Americans are troubled by the stream of allegations
surrounding the FBI over the last eight years, stemming from incidents
such as Waco, Ruby Ridge, and more recently, the Hanssen and McVeigh
matters. The number and significance of these incidents strongly
indicate-if not necessitate the conclusion-that there are systemic
problems in the Bureau's operations. And it is therefore highly
advisable for the Chairman to convene this hearing to determine the
scope of the problems that exist and the best solutions for them.
That being said, the FBI is still, in my opinion, the foremost law
enforcement agency in the world. Its successes over the years are both
legion and legendary, and its agents and employees are some of our
finest public servants. It is because of the desire to see the Bureau
maintain this preeminent status that today we are taking a hard look at
its operations. It is a disturbing marker for the rule of law when, for
example, 61% of Americans believe that their FBI started the fire that
consumed so many citizens at Waco. And it is just as disturbing when,
as our former colleague found, these beliefs are unjustified and their
causes-dishonesty, delay and disingenuousness-seemingly preventable.
I continue to support evaluating the best remedies for the problems
that have plagued the FBI in the recent past. But my preliminary
opinion is that funding increases for the Office of Inspector General
in the Department of Justice and establishing a separate Inspector
General's Office for the FBI may be necessary-but they are not
sufficient-conditions for major improvement. If, as Senator Danforth
believes, the problem is one of culture, then it would seem to me that
additional investigative offices and increased funding would provide
better and quicker explanations as to what caused problems, but I don't
know how effective such measures will be in helping prevent these
problems in the first place. It seems, as Senator Danforth suggests,
that a more organic remedy is needed, beginning with strong and
persistent messages from the Attorney General and the Bureau's Director
that, as our former colleague put it, ``the role of the FBI is to
protect the country and the Constitution, not to protect the FBI from
criticism.''
In closing, let me thank the Chairman again for recognizing the
need for us to explore this matter. I enjoyed reviewing the prepared
remarks, and I look forward to hearing from our witnesses. Thank you.
Chairman Leahy. The Committee stands adjourned.
[Whereupon, at 3:26 p.m., the Committee was adjourned.]
REFORMING FBI MANAGEMENT: THE VIEWS FROM INSIDE AND OUT
----------
WEDNESDAY, JULY 18, 2001
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:07 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Feinstein, Schumer, Durbin,
Cantwell, Hatch, Grassley, Specter, and Sessions.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. I know that Senator Hatch is
testifying at another hearing and will be joining us very soon.
Senator Grassley is here. Senator Grassley, if you have no
objection, I am going to go ahead and start the hearing.
Senator Grassley. I think that would be perfectly all
right, unless Senator Hatch's staff says otherwise.
Chairman Leahy. He is testifying. We will start with my
statement and then we can always go to Senator Hatch, or if he
is detained longer there we will break into the testimony for
him to speak.
This is the second hearing we have held on the Federal
Bureau of Investigation. I said when I became Chairman I
thought it was time to take a long overdue look at some
problems in our Nation's foremost law enforcement agency.
Before I address the subject of today's hearing, I want to
note three significant developments concerning the FBI that
have taken place in recent days. The first is that the
President has announced his intention to nominate Robert
Mueller to be the Director of the FBI. I have met with Mr.
Mueller and I know several other members of the Committee have,
too, and I intend to proceed with his confirmation hearing
expeditiously. As soon as the President actually sends the
nomination to the Senate, we will schedule and move forward
with a hearing.
The second important recent development concerns an issue
that was at the heart of this Committee's meeting earlier, and
that is FBI oversight. Last Wednesday, the Attorney General
issued an order redefining the jurisdiction of the Office of
Inspector General to give it authority to investigate
allegations of misconduct by employees of the FBI and the Drug
Enforcement Administration.
As the witnesses at our last hearing explained, the scope
of the Inspector General's authority over the FBI has been a
source of recurring controversy and it has made FBI oversight
more difficult over the years. I commend Attorney General
Ashcroft for his wise decision to remove the remaining
restrictions on the Inspector General's authority, and I want
to acknowledge Senator Grassley for his efforts in helping to
encourage this important reform.
But even though the Justice Department's internal rules
have been changed, and I do commend the Attorney General for
that, I believe we need to make this change permanent by
legislation. We should not leave matters in a position where
the Inspector General's important role in performing FBI
oversight could once again be frustrated by the stroke of the
pen by a future Attorney General.
Now, the third development that bothers me greatly as
Chairman of this Committee, was yesterday's announcement by the
Attorney General about weapons and computers that are missing
from the FBI's inventory.
It is not just the number; when you look at the number of
guns as compared with the number of guns in the FBI inventory,
it seems to be a very small number. If you look at the number
of computers, it may be a small number. But what bothers me is
that some of the computers supposedly contained classified
information. You would think after the total fiasco of the
FBI's handling of the Hanssen matter that they would have
learned on this matter. We also have missing weapons: 184 were
stolen; 265, including 91 training weapons, were reported lost
or missing, and 184 laptop computers.
Now, I said at the beginning of this that there are some
very, very serious management problems in the FBI, and I am
hoping these hearings will help us identify them. In trying to
figure out what we do next, we have to look at what has been
done in the past.
FBI headquarters in Washington constantly struggles to stay
abreast of developments in the FBI's 56 field offices and 44
legal attache, or LEGAT offices, and to ensure that each of
these offices is following orders and procedures. It is often
when field offices ignore or do not fully comply with orders
from headquarters that problems happen. One example is the
FBI's belated production of the Oklahoma City bombing papers.
We continue to await the outcome of the Justice
Department's Inspector General review of how this happened in
the face of 16 separate orders from headquarters. The Director
of the FBI himself sent an order for pretrial production of
these documents: 16 orders sent from headquarters, and still
they were not all produced.
Then we have the May 2000 report of the Attorney General's
Review Team. This was headed by Federal prosecutor Randy
Bellows on The Handling of the Los Alamos National Laboratory
Investigation of Wen Ho Lee. This dissected the relationship
between FBI headquarters and the Albuquerque, New Mexico, field
office, and found serious flaws, some of which stem from a fear
on the part of lower-level FBI agents at headquarters of being
perceived as criticizing more senior members.
While the full Bellows report remains classified, in
response to a request from Senator Specter and myself, the
Justice Department has provided the Committee with an
unclassified version of the report. The report documents how
the National Security Division became aware of the field
office's ``poor handling of the case,'' yet--and this is the
important part--``took no effective measures to fix the
problem, even when it was given an opportunity to do so.
Instead, it simply attempted to run the case from FBI
headquarters, an approach that was unmanageable from the start
and which would severely handicap the investigation.''
When, for example, two extra agents were sent to the field
office to assist in the Wen Ho Lee investigation, they were
diverted to other investigations. And when they were diverted
to other investigations, the Assistant Director of the FBI's
National Security Division was not informed. A unit chief in
the same headquarters division explained, ``it would have been
`impolitic' to advise [the Assistant Director] of the division.
He said the `culture' of the FBI is `very intolerant' of that
kind of reporting.''
This unit chief told another supervisory agent that he
should not `` `stir the beans' because it would have been
inappropriate to `mess with the SAC's decision.' '' He warned,
``you don't get ahead in the FBI `if you stab SACs in the
back.' '' As a consequence, the problem of the two agents being
diverted remained unresolved.
Periodic inspections provide a significant mechanism for
FBI headquarters to check on the progress of cases and
communicate in the form of interrogatories specific complaints
to field offices about their handling of cases. But not
withstanding that, the Bellows team found some dirty laundry
there, too.
A supervisory agent involved in the Wen Ho Lee
investigation at headquarters said that ``interrogatories are
not, in reality, used as an opportunity to complain about a
field office: we're never allowed to be candid in
interrogatories.'' '
Now, this, of course, prompted appropriately strong
criticism in the Bellows report, which stated, ``If true, if
the FBI's `culture' does not encourage, indeed require, that
FBI-HQ personnel be blunt and candid in interrogatories, this
essentially eviscerates the value of the interrogatories. .
.The issue is [redacted] failure to avail itself of an
institutional mechanism--the inspection process--which is
specifically designed by the FBI to ensure that all significant
problems in a field office are identified and addressed in an
inspection.'' In effect, the process is there, but the process
is not allowed to work. It is like a catch-22; the major is in
only when he is out.
The Bellows report concluded that ``[i]f the FBI `culture'
discourages `full disclosure' in the interrogatories or
interviews associated with the inspection process, that
`culture' needs to be altered. All FBI personnel should be
advised that the FBI will not tolerate anything other than
`full disclosure' in the inspection process.'' This
recommendation is so patently obvious it is shocking that it
had to be made. I cannot imagine a single Senator on this
oversight Committee who would disagree with that conclusion. So
the challenge to the new Director and new management team he
brings into the FBI will be to make sure it happens.
Even within FBI headquarters, disputes between the National
Security Division and the Criminal Investigative Division over
the Wen Ho Lee investigation appear to have slowed the
investigation down. In a heavily redacted part of the Bellows
report, we learn that concern over the effect of an espionage
prosecution on the FBI Director's interest in opening a LEGAT
in Beijing was a factor in the investigation. Be careful how we
investigate the Wen Ho Lee case because we want to open an
office in Beijing. Good Lord. You can understand why the
Bellows report summarizes ``the stark choice'' of concern to
certain senior FBI agents ``that it might come down to doing
without Beijing LEGAT or espionage prosecution.'' It should be
an easy choice. ``Finally, this must be said: NSD permitted
CID's admittedly legitimate concerns about [redacted]
sensitivities to undermine a critical FBI investigation about
[redacted] espionage.''
We are fortunate today to have former Commissioner of the
U.S. Customs Service, Raymond Kelly, to talk to us about
structural problems he encountered at that law enforcement
agency and what he did about them.
Another key area of concern about FBI management is in the
area of security and information technology. In a letter last
month to Chairman Sensenbrenner of the House Judiciary
Committee, former FBI Director Freeh conceded that the FBI's
computer systems were ``obsolete'' and that its approach to
planning and funding for improvements was ``inadequate.'' At a
briefing last week, the FBI told our Committee staff that there
are no less than 15 areas where the FBI's internal security
must be improved.
We will be hearing today from Mr. Bob Dies. Mr. Dies is a
former executive at IBM who has been hired by the FBI as an
assistant director to take on the herculean task of upgrading
its information technology. Mr. Dies will tell us what he has
discovered since he took the job.
We are also going to hear from Mr. Ken Senser, who has
recently been brought in from the Central Intelligence Agency
to be a Deputy Assistant Director of the FBI in charge of
internal security. Internal security at the FBI is obviously a
major concern, especially in the wake of the egregious breach
of internal security in the Hanssen case, and we appreciate Mr.
Senser's helping to keep the Committee informed.
A final management issue that our hearing will address is
how the FBI handles its internal discipline. It is important
that the process be perceived as fair. A perception that
credible allegations of misconduct are being whitewashed or
that a double standard of discipline is being applied in which
senior supervisors get lighter punishment than line agents will
erode confidence from the public. Moreover, those who
investigate allegations of misconduct must know they are free
to do their jobs and pursue their investigation wherever it may
lead without any fear of retaliation.
Some of the most disturbing testimony at our last hearing
was given by Senator Danforth, who told of two FBI agents who
believed they had been retaliated against for their work on the
Ruby Ridge investigation and the Waco investigation. At the
heart of these management flaws is how the agency deals with
those employees.
Senator Danforth said, ``I do believe the FBI has an
unwritten policy of doing nothing to embarrass the FBI. The
agency has a great deal of leverage over its agents and
significant ability to punish `troublemakers,' with its power
of promotions and job assignments. Therefore I believe that
there is a real reluctance on the part of most FBI employees to
report wrongdoing. . .The reality for an employee who loves his
job is that there is no realistic protection from the isolation
and rejection which can result from reporting wrongdoing within
the organization or exposing it to criticism. . .The consistent
message from the Department of Justice and the FBI should be
that careers in the agency can survive mistakes, because
everyone makes mistakes, but careers cannot survive coverups.
Candor must be the highest value at the FBI.'' I couldn't agree
more with Senator Danforth. The Committee will hear first-hand
accounts from current and retired FBI agents about their
experiences.
In the Ruby Ridge report, almost 6 years ago, we observed
that ``FBI agents conducting internal reviews were not
adequately insulated from the subjects of their review.'' We
noted instances of ``friends reviewing friends' conduct and the
subjects of the reviews later sitting on the promotion boards
of the very agents who reviewed their conduct.''
I think we are going to hear that this ``good old boy''
network has been allowed to persist. Some may find it
surprising to learn that the final recommendations on
punishment for those agents involved in the aftermath of Ruby
Ridge were issued quietly and without fanfare. When? Almost 9
years later, in January 2001.
The decision was that no disciplinary action should be
taken against any FBI agents involved in the Ruby Ridge matter
beyond those lower-level employees already disciplined. The
conclusion was contrary to the well-supported findings and
recommendations of the Office of Professional Responsibility of
the Department of Justice, as well as the Justice Management
Division's own Task Force on Ruby Ridge. They had recommended
sanctions against four supervisory FBI agents.
The JMD decision disregarded most of the recommendations
and acknowledged the allegations against only two FBI agents
who had been found by the investigators to have failed to
ensure the integrity of interview notes or to conduct a
complete or adequate investigation of Ruby Ridge. Because the
Assistant Attorney General for Administration was unwilling to
ascribe improper motive to the employees, no discipline came
out.
We are not trying to reopen old investigations, but we are
showing that things have to be done differently. And we
remember that the great majority of FBI agents bear no
responsibility for any of the problems we have been discussing.
Former Agent John Werner, who will be testifying on our
second panel, states that the majority of the members of the
Senior Executive Service at the FBI are ``sincere, dedicated
law enforcement professionals,'' and that his observations of
improper influence and misconduct relate only to a minority. I
agree with him. We shouldn't forget the debt we owe to the FBI
or the very thankless jobs that so many of them take on.
I would conclude with what Judge Webster said. He said that
in the courtyard of the FBI there is this inscription: ``The
key to effective law enforcement is cooperation at all levels
and with the support and understanding of the American
people.'' The purpose of these hearings is to restore the
confidence of the American people that the FBI is living up to
this motto. We want to make the FBI the best it can be.
[The prepared statement of Senator Leahy follows:]
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
Today, the Judiciary Committee is holding its second oversight
hearing on the Federal Bureau of Investigation. Before I address the
subject of today's hearing, I want to note three significant
developments concerning the FBI that have taken place in recent days.
The first is that the President has announced his intention to nominate
Robert S. Mueller to be the next FBI Director. I have met with Mr.
Mueller, as I know several other Members of the Committee have, and I
intend to proceed with his confirmation hearing expeditiously, after
the President formally sends his nomination to the Senate.
The second important recent development concerns an issue that was
at the heart of this Committee's hearing last month: FBI oversight.
Last Wednesday, the Attorney General issued an order redefining the
jurisdiction of the Office of Inspector General to give it authority to
investigate allegations of misconduct by employees of the FBI and the
Drug Enforcement Administration. As the witnesses at our last hearing
explained, the scope of the Inspector General's authority over the FBI
has been a source of recurring controversy that has made FBI oversight
more difficult for many years. Although the Inspector General statute
gives the Inspector General broad authority to investigate the FBI,
various internal rules of Department of Justice have limited that
authority. In 1992, then-Deputy Attorney General Terwilliger issued an
order that generally gave the jurisdiction over attorneys and law
enforcement personnel only to the Justice Department's OPR. The
Inspector General's authority was broadened in 1994 by then-Attorney
General Reno, who issued an order superseding the Terwilliger order and
granting the Inspector general the authority to investigate FBI
personnel when the investigation was specifically authorized by the
Attorney General or by a Deputy Attorney General. While this was a big
step in the right direction, it did not go far enough.
I commend Attorney General Ashcroft for his wise decision to remove
the remaining restrictions on the Inspector General's authority. I also
acknowledge Senator Grassley for his efforts in helping to encourage
this important reform. However, while the changing of the Justice
Department's internal rules is certainly a welcome development, I
believe that we need to make this reform permanent by legislation. We
should not leave matters in a position where the Inspector General's
important role in performing FBI oversight could once again be
frustrated by the stroke of the pen by a future Attorney General.
The third development was yesterday's announcement by the Attorney
General about weapons and computers that are missing from the FBI's
inventory. This audit again underscores some of the management problems
we are examining through these hearings and that we hope to help
remedy, and we will discuss this latest example, and what it means,
with our witnesses today.
In order for us to understand why the FBI has had the number of
problems that it has in recent years, it is important to look at how it
is managed. In recent months, we have seen a number of indications that
the FBI's management is badly in need of an overhaul. We see the
results of management failures, for example, in the discovery violation
in the Oklahoma City bombing case, which led to the delay in carrying
out the court-ordered execution of Timothy McVeigh. We also see it in
the FBI's failure for more than 15 years to detect the espionage
activities of former agent Robert Hanssen, who pleaded guilty to
selling some of this country's most sensitive classified information to
the KGB.
The management problems at the FBI may stem in part from how the
organization is structured. FBI Headquarters in Washington constantly
struggles to stay abreast of developments in the FBI's 56 field offices
and 44 foreign Legal Attache or ``Legat'' offices and to ensure that
each of these offices is following orders and procedures. It is often
when field offices ignore or do not fully comply with orders from
Headquarters that problems happen--for example, in the FBI's belated
production of documents in the Oklahoma City bombing case. We continue
to await the outcome of the Justice Department's Inspector General
review of how this happened in the face of 16 separate orders from
Headquarters for pre-trial production of these documents.
The May, 2000, report of the Attorney General's Review Team, headed
by federal prosecutor Randy Bellows, on The Handling of the Los Alamos
National Laboratory Investigation of Wen Ho Lee, dissected the
relationship between FBI Headquarters and the Albuquerque, New Mexico,
field office and found serious flaws, some of which stem from a fear on
the part of lower-level FBI agents at Headquarters of being perceived
as criticizing more senior agents in the field. While the full Bellows
report remains classified, in response to a request from Senator
Specter and myself, the Justice Department has provided the Committee
with an unclassified version of the report. This report documents how
the National Security Division became aware of the field office's
``poor handling of the case,'' yet ``took no effective measures to fix
the problem, even when it was given an opportunity to do so. Instead,
it simply attempted to run the case from FBI Headquarters, an approach
that was unmanageable from the start and which would severely handicap
the investigation.'' (Bellows Report, p. 4).
When, for example, two extra agents were sent to the field office
to assist in the Wen Ho Lee investigation but were diverted to other
investigations, the Assistant Director of the FBI's National Security
Division was not informed. A Unit Chief in the same Headquarters
Division explained that ``it would have been `impolitic' to advise [the
Assistant Director] of the diversion. He said the `culture' of the FBI
is `very intolerant' of that kind of reporting.'' (Bellows Report, p.
98). This Unit Chief told another supervisory agent that he should not
`` `stir the beans' because it would have been inappropriate to `mess
with a SAC's decision.' '' (Id., at p. 99). He warned ``that you don't
get ahead in the FBI `if you stab SACs in the back.' '' (Id.). As a
consequence, the problem of the two agents being diverted remained
unresolved.
Periodic inspections provide a significant mechanism for FBI
Headquarters to check on the progress of cases and communicate, in the
form of ``interrogatories,'' specific complaints to field offices about
their handling of cases. Yet the Bellows Team uncovered some dirty
laundry there, too. A supervisory agent involved in the Wen Ho Lee
investigation at Headquarters said that ``interrogatories are not, in
reality, used as an opportunity to complain about a field office:
`We're never allowed to be candid in interrogatories.' '' (Bellows
Report, p. 161). This prompted appropriately strong criticism in the
Bellows Report, which stated: ``If true, if the FBI `culture' does not
encourage, indeed require, that FBI-HQ personnel be blunt and candid in
interrogatories, this essentially eviscerates the value of the
interrogatories. . . .The issue is [redacted] failure to avail itself
of an institutional mechanism--the inspection process--which is
specifically designed by the FBI to insure that all significant
problems in a field office are identified and addressed in an
inspection.'' (Id. at p. 161, italics in original).
The Bellows Report concluded that ``[i]f the FBI `culture'
discourages `full disclosure' in the interrogatories or interviews
associated with the inspection process, that `culture' needs to be
altered. All FBI personnel should be advised that the FBI will not
tolerate anything other than `full disclosure' in the inspection
process.'' (Bellows Report, p. 774). This recommendation is so patently
obvious it is shocking that it had to be made. The challenge to the new
Director and new management team he brings into the FBI will be to make
sure it happens.
Even within FBI Headquarters, disputes between the National
Security Division (NSD) and the Criminal Investigative Division (CID)
over the Wen Ho Lee investigation appear to have slowed the
investigation down. In a heavily redacted portion of the Bellows
Report, we learn that concern over the effect of an espionage
prosecution on the FBI Director's interest in opening a LEGAT in
Beijing were a factor in the investigation. The Bellows Report
summarizes ``the stark choice'' of concern to certain senior FBI agents
``that it might come down to doing without Beijing legat or espionage
prosecution. . . Finally, this must be said: NSD permitted CID's
admittedly legitimate concerns about [redacted] sensitivities to
undermine a critical FBI investigation about [redacted] espionage.''
(Bellows Report, p. 183-84).
This is an area where we are lucky to have former Commissioner of
the U.S. Customs Service, Raymond W. Kelly, here to talk to us about
structural problems he encountered at that law enforcement agency and
what he did about them.
Another key area of concern about FBI management is in the area of
security and information technology. In a letter last month to Chairman
Sensenbrenner of the House Judiciary Committee, former FBI Director
Freeh conceded that the FBI's computer systems were ``obsolete'' and
that its approach to planning and funding for improvements was
``inadequate.'' At a briefing last week, the FBI told our Committee's
staff that there are no less than 15 areas where FBI's internal
security must be improved. We will be hearing today from Mr. Bob Dies,
a former executive at IBM who has been hired by the FBI as an Assistant
Director to take on the Herculean task of upgrading its information
technology. Mr. Dies will tell us what he's discovered since he took on
this job and how his efforts to upgrade the FBI's computer systems are
progressing. We will also hear from Mr. Ken Senser, who has recently
been brought in from the Central Intelligence Agency to be a Deputy
Assistant Director of the FBI in charge of internal security. Internal
security at the FBI is obviously a major concern in the wake of the
Hanssen case, and we appreciate Mr. Senser's helping to keep the
Committee informed in this critical area.
A final management issue that our hearing will address is how the
FBI handles its internal discipline. A well-managed law enforcement
agency needs to deal appropriately with allegations of misconduct by
its agents and employees. Further, it is important that the process be
perceived as fair by both its employees and the American public at
large. A perception that credible allegations of misconduct are being
whitewashed, or that a double standard of discipline is being applied
in which senior supervisors get lighter punishment than line agents for
the same offenses, will erode public confidence and demoralize the
agency's own employees. Morever, those who investigate allegations of
misconduct must know that they are free to do their jobs and pursue
their investigation wherever it may lead, without fear of retaliation.
Some of the most disturbing testimony at our last hearing was given
by Senator Danforth, who told of two FBI agents who believed that they
had been retaliated against for their work on the Ruby Ridge
investigation and the Waco investigation. In our second panel of
witnesses, we will be hearing from those two agents, along with two of
their colleagues. They will be giving us a unique insider's perspective
on the FBI's internal disciplinary process.
The purpose of these hearings is not to re-hash old mistakes or to
re-open old investigations. This is not a re-investigation of what
happened at Waco, Texas. The review so ably conducted by former Senator
Danforth is the definitive investigation of that matter. Nor are these
hearings intended to be a re-investigation of what happened at Ruby
Ridge, Idaho, since that matter was thoroughly reviewed by this
Committee under the leadership of Senator Specter and Senator Kohl in
1995. Nevertheless, we are going to hear about both those events today.
How the FBI handled the aftermath of both those tragedies can
illuminate the management flaws that persist within the Bureau and must
be corrected.
At the heart of these management flaws is how the agency deals with
those employees who are tasked with examining the FBI itself. Senator
Danforth identified this crucial problem in response to my written
questions. He said:
``I do believe the FBI has an unwritten policy of doing nothing
to embarrass the FBI. The agency has a great deal of leverage
over its agents and significant ability to punish
`troublemakers,' with its power of promotions and job
assignments. Therefore I believe that there is a real
reluctance on the part of most FBI employees to report
wrongdoing. . . .The reality for an employee who loves his job
is that there is no realistic protection from the isolation and
rejection which can result from reporting wrongdoing within the
organization or exposing it to criticism. . . .The consistent
message from the Department of Justice and the FBI should be
that careers in the agency can survive mistakes, because
everyone makes mistakes, but careers cannot survive coverups.
Candor must be the highest value at the FBI.''
The Committee will hear first-hand accounts from current and
retired FBI agents about their experiences on the front-line of
conducting internal investigations of the FBI.
A related issue is how, once an internal investigation has been
completed, the FBI resolves the matter and, specifically, decides who
is culpable and what the punishment, if any, should be. In the Ruby
Ridge report filed by the Subcommittee on Terrorism, Technology and
Government Information almost six years ago, we observed that ``FBI
agents conducting internal reviews were not adequately insulated from
the subjects of their review.'' We further noted instances ``of friends
reviewing friends' conduct and the subjects of the reviews later
sitting on the promotion boards of the very agents who reviewed their
conduct.'' In short, we warned that ``[t]his has created the impression
that a small group of insiders review the conduct of the FBI, punishing
lower level, `outsider' FBI agents and protecting higher-level, inside-
track FBI agents.''
Unfortunately, we will hear that this ``good old boy'' network has
been allowed to persist. Some may find it surprising to learn that the
final recommendations on punishment for those agents involved in the
aftermath of Ruby Ridge were issued quietly and without fanfare almost
nine years after that 1992 tragedy, in January, 2001. The decision,
made by the Justice Management Division of the Department of Justice
over three years after being tasked to evaluate recommendations for
discipline, was that no disciplinary action should be taken against any
FBI agents involved in the Ruby Ridge matter beyond those lower-level
employees already disciplined in January, 1995. This conclusion was
contrary to the well-supported findings and recommendations of the
Office of Professional Responsibility of the Department of Justice as
well as the Justice Management Division's own Task Force on Ruby Ridge.
Those offices recommended sanctions against four supervisory FBI
agents. JMD's Task Force also recommended that the discipline
previously imposed on three lower-level agents be rescinded because of
procedural defects in the original investigation and exculpatory
information that had subsequently been developed.
Nevertheless, the JMD decision disregarded most of these
recommendations and acknowledged the allegations against only two FBI
agents, who had been found by the investigators to have failed to
insure the integrity of interview notes or to conduct a complete or
adequate investigation of Ruby Ridge. Yet, because the Assistant
Attorney General for Administration was unwilling to ascribe improper
motive to the employees, no discipline was imposed.
Again, our purpose is not to reopen old investigations, and
fairness to those agents who were under investigation prohibits a more
specific discussion of the case. The documents reflecting these
decisions are not public. Nevertheless, the adjudication conducted in
the Ruby Ridge investigation shows precisely why some have come to
question whether there is a double standard among FBI agents on matters
of internal discipline.
Of course, it is always important to remember that the great
majority of FBI agents bear no responsibility for any of the problems
we have been discussing. Former agent John Werner, who will be
testifying on our second panel, states that the majority of the members
of the Senior Executive Service at the FBI are ``sincere, dedicated law
enforcement professionals'' and that his observations of improper
influence and misconduct relate only to a vocal minority of the Senior
Executive Service. We should never forget the debt that we owe to all
of the FBI agents who do their jobs fairly and professionally and who
risk their lives in service to this country.
The American people and this Committee owe a debt of gratitude to
the courage of the agents who are with us to share their experiences
and observations today. The thankless assignments they have accepted
within the Bureau were taken and performed by them at considerable
personal and professional cost. Their service to the nation and to the
bedrock interests of the Bureau itself are in the best tradition
selfless public service and of the bravery that is the centerpiece of
the FBI emblem.
In answers to the written questions I submitted after our last
hearing, Judge Webster made an interesting observation. He said that in
the courtyard at the FBI headquarters in Washington, there is the
following inscription:
``The key to effective law enforcement is cooperation at all
levels and with the support and understanding of the American
people.''
The purpose of these hearings is to restore the confidence of the
American people that the FBI is living up to this motto. Our purpose is
to make the FBI the best that it can be.
Chairman Leahy. What we are going to do this morning is we
will interrupt for Senator Hatch when he is able to get here,
but I am delighted that we have, first, Ray Kelly, who
encountered a number of matters when he came into Customs after
a long career in law enforcement.
Senator Schumer?
Senator Schumer. Mr. Kelly is a great New Yorker and I
wanted to join you, Mr. Chairman, in welcoming another great
New Yorker before this panel.
Chairman Leahy. Well, thank you. I appreciate that. I have
known Ray Kelly for a long, long time, wearing a number of
different hats, including being with him in Haiti and spending
a couple of days with him down there. We also have mutual
friends that go back to his Marine days and my association with
friends of the Marine Corps and my son's time in the Marine
Corps.
Mr. Kelly?
STATEMENT OF RAYMOND W. KELLY, SENIOR MANAGING DIRECTOR, BEAR
STEARNS, NEW YORK, NEW YORK
Mr. Kelly. Thank you, Mr. Chairman. Thank you, Senator, for
those kind remarks. Members of your Committee, thank you for
your invitation to be here today.
I came to Federal law enforcement after a 30-year career in
the New York City Police Department, and I also served in the
United States Marine Corps. The one thing both organizations
have in common is that they are very hierarchical. While both
encourage initiative on the part of their front-line troops,
the fact remains that both organizations insist on adherence to
a strict chain of command. They also maintain tight spans of
control.
For example, the span of control in the New York City
Police Department would begin with sergeants and five police
officers reporting to lieutenants, lieutenants reporting to
captains, captains to inspectors, inspectors to chiefs
throughout the top of the organization.
I mention this because when I came to Federal law
enforcement, first as Under Secretary of the Treasury for
Enforcement and later as Commissioner of U.S. Customs, I was
struck by the relatively loose span of control and the
horizontal structure of enforcement agencies in the Federal
sector.
Where my municipal and Marine Corps experience was very
hierarchical, Federal law enforcement tended to be more
lateral. For example, when I arrived at Customs, there were 20
special agents-in-charge, scattered across the United States,
100 resident agent-in-charge offices, and 55 more attaches in
24 foreign countries, all reporting to one assistant
commissioner in Washington. The ratio in that span of control
was more than surprising; it was, in my judgment, unmanageable,
certainly on a day-to-day basis. The result was that the
investigative arm of the Customs Service was balkanized under
the various special agents-in-charge. Management in Washington
was often uninformed.
To correct this situation, we divided the country into
three administrative regions--East, Central and West. The
special agents-in-charge of each region had to report to a new
director for each of the regions. Those three directors, in
turn, reported to the assistant commissioner. Our attaches
abroad were directed to report to a new deputy in the existing
Office of Foreign Operations.
The result was a much more manageable span of control. The
assistant commissioner in Washington could get a quick picture
of what was happening nationally and internationally by talking
to 3 people who reported to him, instead of over 40. Similarly,
with three deputies, the assistant commissioner could execute
and follow up on policy, making certain his orders were not
only transmitted but also complied with. In addition,
inspections on a much more frequent basis could be conducted.
With big, widely dispersed organizations, in my judgment,
it is not enough for headquarters to send teams to the field to
conduct periodic inspections every few years. There should be
daily oversight, and a rational span of control allows that to
happen.
The balkanization I described was not limited to the
Customs Office of Investigations. It affected the Office of
Field Operations as well, where Customs personnel were assigned
to 301 ports of entry located across the country. For a time,
individual port directors tended to set their own policy. That
led to the phrase ``port-shopping'' by brokers and others, who
found that the rigor in which Customs regulations were being
enforced varied from port to port.
A policy of ``power to the ports'' was encouraged for a
time as managers tried to apply to the Federal Government the
devolution of power that was becoming popular in American
business. The problem is Federal law enforcement is not a
business enterprise. Its employees are responsible for
enforcing the law, not making sales quotas. They are armed and
have authority to conduct personal searches, make arrests, and
use deadly force.
That kind of authority demands tight spans of control,
close supervision, a rigorous chain of command, and oversight.
The lack of it caused problems besides port-shopping.
Internally, the lack of consistently executed policy led to
complaints of unevenness and favoritism in disciplinary
procedures and promotions.
Discipline for the same transgression, for example, might
be dispensed differently, depending on the region of the
country or who an employee knew within the Service. We changed
that by establishing an agency-wide disciplinary review board
with rotating membership.
One of the problems Customs experienced with the public was
inconsistency in the way in which passengers arriving at
various international airports were subject to searches.
Customs has broad authority to detain and search travelers, and
did so. What was missing was a coherent policy that was closely
supervised and uniformly adhered to. Once that policy was in
place and closely supervised, the number of searches of law-
abiding travelers plummeted and the number of seizures of
narcotics and other contraband increased. The authority never
changed. What changed was how we managed it.
I don't mean to single out the Customs Service. It happens
to be the Federal agency that I am most familiar with. As Under
Secretary of the Treasury, I saw similar issues with the other
Treasury enforcement bureaus. I realize that some of these
management problems are inherent to the geographical reach of
Federal law enforcement agencies.
Where none of the 40,000 police officers in the New York
City Police Department are normally more than an hour or so
away from headquarters, Federal law enforcement has thousands
of agents scattered across multiple time zones, and even
continents. That kind of geographic diversity imposes its own
management problems. Management of such far-flung personnel and
resources will tend to devolve to onsite middle managers unless
strong leadership, supported by a workable management
structure, exerts itself in Washington.
To help us know what was happening on a daily basis, we
established a 24-hour operations center, to which all officers,
national and around the world, were required to report
significant events. The incidents would be briefed around the
same table each morning at 8:30 a.m. to the headquarters
executive staff. This way, my executive staff got a good
snapshot of what was happening agency-wide and not just in
their own corner of it.
The head of the agency must be persistent in demanding to
know what is happening in the field and in making certain
national policy is carried out there. Otherwise, power will
devolve in a vacuum of leadership to the entrenched careerists
in the field, where policy may be applied unevenly, if at all.
With the advantage of a 10-year term, however, the FBI
Director is less prone to be frustrated by those who might try
to resist his leadership by waiting him out in hopes of a
change in administration. Congress may want to consider
applying terms of office for the heads of other Federal law
enforcement agencies.
Finally, I want to comment on one very important issue
related to the management of any Federal law enforcement
agency, any police agency for that matter, and that is
integrity and the internal affairs function needed to protect
it.
Internal affairs tends to get short shrift in law
enforcement. Police critics often call for the function to be
handled independently by an outside agency. Law enforcement
executives often fail to give internal investigative components
the attention and resources they need.
I believe that every law enforcement agency needs a robust
internal investigative function within its ranks. While the
inspectors general and other outside entities can play an
oversight role, nothing is more effective in preventing and
pursuing corruption within law enforcement than a credible
internal affairs unit. It takes a good insider to catch a bad
one, and toward that end internal affairs needs to be staffed
by the best and brightest investigators available.
Service in internal affairs in an ideal world should be
mandatory, with rotation through internal affairs as part of
the promotion track. The head of internal affairs should report
directly to the head of the law enforcement agency, not through
a deputy, and he or she should report on a daily basis.
The internal investigative function will never be popular.
That is why it is important that internal affairs is fully
supported from the top, with total access to the head of the
agency, staffed with the best of personnel and supported with
the best of equipment.
An organization is only as good as the people who are
recruited and trained to work for it. Federal law enforcement,
and the FBI in particular, has a reputation for attracting
highly skilled and highly motivated individuals. That continues
to be true and it is a major plus for the FBI.
The challenge is not who to manage, but how to manage them,
how to manage a large, far-flung workforce with a broad and
complex law enforcement mission. That is a heavy lift for
anyone. To lighten the load and manage effectively, I would
recommend focusing on the four essentials that I have outlined
today: first, impose a strict managerial hierarchy; second,
maintain a tight span of control; third, inspect regularly to
make certain policy is being implemented in the field; and,
fourth, ensure integrity through a robust internal affairs
program within the agency.
Thank you, Mr. Chairman, and I am available to answer
questions.
[The prepared statement of Mr. Kelly follows:]
Statement of Raymond W. Kelly, Senior Managing Director, Bear Stearns,
New York, New York
Mr. Chairman, members of the Committee, thank you for this
opportunity to testify.
I came to Federal law enforcement after a 30-year career in the New
York City Police Department. I also served in the United States Marine
Corps. The one thing both organizations have in common is that they are
very hierarchical. While both encourage initiative on the part of the
their front line troops, the fact remains that both organizations
insist on adherence to a strict chain of command. They also maintain
tight spans of control. For example, the span of control in the New
York City Police Department begins with a sergeant and five police
officers, lieutenants reporting to captains and so on through to the
very top ranks of the organization.
I mention this because when I came to Federal law enforcement,
first as Under Secretary of the Treasury for Enforcement and later as
Commissioner of U.S. Customs, I was struck by the relatively loose span
of control and the horizontal structure of enforcement agencies.
Where my municipal and Marine Corps experience was very
hierarchical, Federal law enforcement tended to be more lateral. For
example, when I first arrived at Customs, there were 20 Special Agents
in Charge scattered across the United States, 100 resident agent in
charge offices and 55 more attaches in 24 foreign countries--all
reporting to one assistant commissioner in Washington. The ratio in
that span of control was more than surprising. It was unmanageable;
certainly on a day-to-day basis. The result was that the investigative
arm of the Customs Service was number of searches of law-abiding
travelers plummeted, and the number of seizures of narcotics and other
contraband increased.
Balkanized under the various Special Agents in Charge. Routin,
centralized management in Washington was often weak and uninformed. To
correct the situation, we divided the country into three administrative
regions: East, Central and West. The Special Agents in Charge in each
region had to report to a new director for each of the regions. Those
three directors, in turn, reported to the assistant commissioner. Our
attaches abroad were directed to report to a new deput in the existing
office of Foreign Operations.
The result was a much more manageable span of control. The
assistant commissioner in Washington could get a quick picture of what
was happening nationally and internationally by talking to three people
who reported to him, instead of over 40. Similarly, with three
deputies, the assistant commissioner could execute and follow up on
policy, making certain his orders were not only transmitted, but also
complied with. In addition, inspections on a much more frequent basis
could be conducted.
With big, widely dispersed organizations, it is not enough for
headquarters to send teams to the field to conduct periodic inspections
every few years. There should be daily oversight. And a rational span
of control allows that to happen.
The balkanization I described was not limited to the Customs Office
of Investigation. It affected the Office of Field Operations as well,
where Customs personnel were assigned to 301 ports of entry located
across the country. For a time, individual port directors tended to set
their own policy. That led to ``port shopping'' by brokers and others
who found that the rigor in which Customs regulations were being
enforced varied from port to port.
This policy of ``power to the ports'' was encouraged for a time, as
managers tried to apply to the Federal government the devolution of
power that was becoming popular in American business.
The problem is Federal law enforcement is NOT a business
enterprise. Its employees are responsible for enforcing the law, not
making sales quotas. They are armed and have authority to conduct
personal searches, make arrests and use deadly force.
That kind of authority demands tight spans of control, close
supervision, regorous chain of command and oversight.
The lack of it caused problems besides port shopping.
Internally, the lack of consistently executed policy led to
complaints of unevenness and favoritism in disciplinary procedures and
promotions.
Discipline for the same transgression, for example, might be
dispensed differently depending on the regions of the country or whom
an employee knew within the Service. We changed that by we establishing
an agency-wide Disciplinary Review Board with rotating membership.
One of the problems Customs experienced with then public was
inconsistency int he way in which passengers arriving at various
international airports were subjected to searches. Customs has broad
authority to detain and search travelers, and did so. What was missing
was a coherent policy that was closely supervised and uniformly adhered
to. Once that policy was in place and closely supervised the number of
searches of law-abiding travelers plummeted, and the number of seizures
of narcotics and other contraband increased.
The authority never changed. What changed was how we managed it.
I don't mean to single out the Customs Service. It happens to be
the Federal agency I'm most familiar with. As Under Secretary of the
Treasury, I saw similar issues with the other Treasury enforcement
bureaus.
I realize that some of these management problems are inherent to
the geographical reach of Federal law enforcement agencies.
Where none of the 40,000 police officers in the New York City
Police Department is normally more than an hour or so away from
headquarters, Federal law enforcement has thousands of agents scattered
across multiple time zones and even continents.
That kind of geographic diversity imposes its own management
problems.
Management of such far-flung personnel and resources will tend to
devolve to onsite middle managers unless strong leadership, supported
by a workable management structure, exerts itself in Washington.
To help us know what was happening on a daily basis, we established
a 24-hour operations center to which all offices national and around
the world were required to report significant incidents.
The incidents would be briefed around the same table each morning
at 8:30 a.m. to headquarters executive staff. This way, my executive
staff got a good snapshot of what was happening agency-wide and not
just to their corner of it.
The head of the agency must be persistent in demanding to know what
is happening in the field and in making certain national policy is
carried out there.
Otherwise, power will devolve in a vacuum of leadership to the
entrenched careerists in the field, where policy may be applied
unevenly, if at all.
With the advantage of a 10-year term, however, the FBI director is
less prone to be frustrated by those who might try to resist his
leadership by ``waiting him out'' in the hopes of a change in
administrations. Congress may want to consider applying terms of office
for the heads of other Federal law enforcement agencies.
Finally, I want to comment on one very important issue related to
the management of any Federal law enforcement agency; any police
agency, for that matter. And that is integrity, and the internal
affairs function needed to protect it. Internal affairs tends to get
short shrift in law enforcement. Police critics often call for the
function to be handled independently by an outside agency. Law
enforcement's executives often fail to give internal investigative
components the attention and resources it needs. I believe that every
law enforcement agency needs a robust internal affairs function within
its ranks. While the inspector generals and other outside entities can
play an oversight role, nothing is more effective in preventing and
pursuing corruption within law enforcement than a credible Internal
Affairs Unit. It takes a good insider to catch a bad one. And, toward
that end, internal affairs needs to be staffed by the best and
brightest investigators available. Service in internal affairs ideally
should be mandatory, with rotation through internal affairs as part of
the promotion track. The head of internal affairs should report
directly to the head of the law enforcement agency--not through a
deputy--and he or she should report on a daily basis. The internal
affairs function will never be popular. That's why it is important that
internal affairs is fully supported from the top, with total access to
the head of the agency, staffed with the best of personnel and
supported with the best of equipment.
An organization is only as good as the people who are recruited and
trained to work for it. Federal law enforcement, and the FBI in
particular, has a reputation for attracting highly skilled and highly
motivated individuals. That continues to be true, and it is a major
plus for the FBI. The challenge is not who to manage, but how to manage
them. How to manage a large, far-flung workforce with a broad and
complex law enforcement mission. That's a heavy lift for anyone. To
lighten the load and manage effectively, I would recommend focusing on
the four essentials I've outlined today: First: Impose a strict
managerial hierarchy. Second: Maintain tight span of control. Third:
Inspect regularly to make certain policy is being implemented in the
field. And Fourth: Insure integrity through a robust internal affairs
program within the agency. Thank you, and I'll be happy to try to
answer any of your questions.
Chairman Leahy. Thank you very much, Mr. Kelly.
Mr. Dies, I realize I mispronounced your name earlier and I
apologize for that. I am delighted to have you here. You have
spent, I believe, a year now with the FBI.
Mr. Dies. A year this week.
Chairman Leahy. A year this week. Aren't you lucky to get
the chance to be here to celebrate that year's anniversary?
Go ahead, please.
STATEMENT OF BOB E. DIES, ASSISTANT DIRECTOR, INFORMATION
RESOURCES DIVISION, FEDERAL BUREAU OF INVESTIGATION,
WASHINGTON, D.C.
Mr. Dies. Thank you. I have prepared a statement for the
record. I can read it or you can accept it and I will comment
on it.
Chairman Leahy. Why don't you comment on it and we will put
the whole statement in the record? Please comment on it.
Mr. Dies. As you mentioned, I was with IBM for 30 years. I
retired--
Senator Sessions. Mr. Chairman, has his testimony been made
a part of the record?
Chairman Leahy. It will be part of the record, yes.
Senator Sessions. I just haven't received it. I don't think
I have it.
Chairman Leahy. I beg your pardon?
Senator Sessions. I don't think I have it. Do others have
it?
Chairman Leahy. I had assumed we had it and I apologize for
that.
Mr. Dies. I am happy to go through it, if you wish.
Chairman Leahy. I had assumed it was already in here.
Senator Sessions. You know, sometimes we have people who
are slow to get their statements in.
Chairman Leahy. I am advised by the staff it arrived just
this morning and we just barely got it.
Senator Sessions. Well, that is a problem. I think if we
have a rule that it is supposed to be in, Mr. Chairman.
Chairman Leahy. It was supposed to have been in before now.
Senator Sessions. Well, anyway, I will listen carefully.
Chairman Leahy. To help Senator Sessions, why don't you
give the statement, Mr. Dies? Give the statement as you have
prepared it, in full.
Mr. Dies. OK, good morning, Mr. Chairman. As you said, I
have just completed 1 year with the FBI after a career in the
private sector.
Former Director Freeh, I believe, understood that the FBI
technology infrastructure was not modern, and he asked me to
join me specifically to review what they had, prioritize the
problems, recommend the fixes and, if possible, begin
implementing the fixes in an orderly fashion.
In the past decade, the Bureau has made significant
investments in technology, but for certain programs
specifically in support of State and local law enforcement with
systems such as the Fingerprint Identification System, the
National Crime Information System, which, of course, reports
whether a car is stolen or an individual is a felon, and so
forth.
The FBI has also invested in technology for specific crimes
that are of national interest, such as crimes against children
in a program they call Innocent Images, and in DNA data bases
for violent offender notification, known as CODIS, and the
protection of our economic and physical infrastructure, known
as the National Infrastructure Protection Center. What we need
to do now is invest in the tools and support to satisfy the
basic investigative needs of our special agents and their
support personnel.
Let me give you a quick overview of what I will be
testifying to this morning. One, the FBI knows that its
information technology needs repair. Two, this past year we
have initiated some changes in programs and management to begin
correcting the basis IT problems, technology problems, and to
position the FBI for the future. That effort is a foundation
program we call Trilogy.
Three, Congress has supported us in the Trilogy effort both
with funding and with active and thoughtful attention by this
and other Committees, for which, as someone new to Government
services, I am personally grateful.
Four, we are on schedule with costs and we will implement
the Trilogy program as authorized. Fifth, in light of recent
events, we need to improve the FBI's security operations and
other areas such as document management.
Finally, for security, we have created a single point of
contact and accountability reporting to the Deputy Director,
and we have recruited a career security executive, with the
help of the CIA--Ken Senser, to my left. He will speak after I
finish.
While we have taken steps to begin repairing our IT
systems, the systems are, in fact, in need of significant
repair and modernization. So I appreciate your counsel and
support in those activities.
The current situation: The FBI's job, of course, is
investigating. Technology and computers are supposed to be
tools for the FBI to use to accomplish its job. The Bureau's
future ability to deter and prevent crimes requires the use of
modern information technology.
For a variety of reasons, the FBI information technology
has had no meaningful improvement in well over 6 years, and
parts of the system are much older. More than half of the
Bureau's desktops are between 4 and 8 years old. They cannot
run today's basic software, which means many of the agents
accessing FBI data can't use the basic ease-of-use features--
point and click, using a mouse, et cetera--and the frustration
that creates is enormous.
The majority of a our smaller offices are connected to our
internal network that speeds the equivalent of a 56K modem,
which is, for those that use technology, a speed less than many
of your children would use at home to connect to the Internet.
The agents themselves are unable to electronically store
much of the information that they have about their case in our
investigative data bases, including photographs, graphical
information and tabular data. Fundamentally, at the dawn of the
21st century, the FBI is asking its agents and support
personnel to do their jobs without the tools other companies
use or that you and I would use at home.
Our Trilogy project is a program you approved. It is a 36-
month program to do three things. First, in the network side,
communications between our facilities, it will, in fact,
provide high-speed links between the FBI locations. Second, we
will replace the hardware and software within each office so
that the employee is, in fact, linked at their desk to the
information in the FBI. Finally, we have identified five
specific applications which we will significantly enhance so
that they can, in fact, do their casework in a more orderly and
productive manner.
Trilogy is structured to enhance the investigative ability
of the agents and support personnel. It will provide the basic
resources and fundamental tools the FBI needs to support their
investigations. It will provide basic relief for the
shortcomings I just mentioned. It is a necessary foundation
upon which the other technologies can be added. We have awarded
these contracts and the programs are in process.
The Trilogy program enables us to have a workable system.
It will not by itself give the FBI a world-class, state-of-the-
art system. It does give us a foundation upon which we can
build and it is the necessary first step toward state-of-the-
art. The other components of a state-of-the-art system cannot
be implemented without, in fact, the foundation. You can't
build a house without a firm foundation, and for practical
purposes Trilogy is that foundation.
We will have more to do than just the Trilogy project. We
need to provide our investigative teams with collaborative
tools, with better communication with other law enforcement
agencies, with the means to know the collective experiences of
the whole FBI so that they can always use the best practices
that have been developed. We are going to also need to work on
the basic plumbing, the financial, accounting and personnel
systems that were put in place in the FBI in the 1980's.
However, our most pressing need has come to light as a
result of the investigative work done to bring about the arrest
of Robert Hanssen. Our security operations must be
strengthened. Improved security is the most pressing need and
the major focus area since the arrest of Robert Hanssen.
The FBI has been active in working on its security
problems. The Director created a task force in March of
assistant directors to review FBI policies and procedures. He
asked me to lead that task force, and by April we had made four
specific recommendations that I would like to comment on.
First, the task force recommended establishing overall
accountability for security in a single place, having a single
functional responsibility, someone who knows all of the
required piece parts to the security puzzle. This has been
done. The Security Program Office has been reorganized. We have
asked Ken Senser, an 18-year career security and
countermeasures executive from the CIA, to lead that operation
and cause the change required.
Secondly, security encompasses more than just the
technology it uses. You need to have accountability. You need
to have procedures and policies and people in charge and
accountable for implementing the procedures and policies. The
policy management system to go with the new security system is
being addressed and they have agreed to put it in place.
Third, we found from the Department of Defense that a
primary deterrent to the insider threat is, in fact, education
and awareness of the basic people within the Bureau. So an
aggressive program for education and training was begun.
Finally, the task force recommended that we work with the
new security program executive, Mr. Senser in this case, to
properly prioritize, rank and identify the changes which had to
be made Bureau-wide for the security program to be effective.
The information used for these policies and procedures is
being developed as rapidly as possible, with the constraint of
getting it right. Proposed solutions will be structured to
incorporate additional recommendations that may come from the
Webster Commission. However, it is prudent for us not to wait
for the Webster Commission final report before we begin.
In summary, our infrastructure today for technology is in
need of serious repair and our approach to IT planning and
funding, as you pointed out, Mr. Chairman, has been less than
adequate. The infrastructure upgrade program which we call
Trilogy is a significant first step, but it is a first step of
a series of steps that need to be taken.
Recent public events clearly indicate a need to quickly go
beyond the infrastructure with Trilogy and incorporate state-
of-the-art IT security processes and a world-class records
management system. Those would be our first two additional
priorities. The needs for other systems would have to wait on
those.
Such an effort requires continual commitment to change at
the Bureau, and although I have only been there for a year, I
believe the Bureau can make those changes, if asked. Such an
effort also requires a continual commitment from the Senate and
from the House to support us in the required investments.
Mr. Chairman, I appreciate the opportunity to address the
Committee. I look forward to your continued interest, and with
that I would like to introduce Ken Senser, who, as I said, is
the CIA executive who was detailed to the FBI to lead these
security changes.
[The prepared statement of Mr. Dies follows:]
Statement of Bob E. Dies, Assistant Director, Information Resources
Division, Federal Bureau of Investigation, Washington, D.C.
Good Morning, Chairman Leahy, Senator Hatch and other members of
the Committee. My name is Bob Dies. And I have just completed one year
with the FBI, after a career in the private sector. Former Director
Freeh understood that the FBI infrastructure was not modern, and he
asked me to join the Bureau to review the problems, prioritize the
requirements, and begin implementing the necessary changes in an
orderly fashion.
In the past decade, the Bureau has made significant investments in
technology for programs in support of state and local law enforcement
agencies, such as fingerprint identifications (known as IAFIS), the
National Crime Information Center (known as NCIC 2000) and national gun
checks (known as NICS). The FBI has also invested in technology for
specific programs of national priority, such as crimes against children
(known as Innocent Images), DNA databases for violent offender
identification (known as CODIS), and the protection of our economic and
physical infrastructure (known as the National Infrastructure
Protection Center, or NIPC). What we need to do now is invest in the
tools and support to satisfy the basic investigative needs of all our
Special Agents and all their support personnel.
Overview
Let me provide you a quick overview of what I will be testifying to
this morning:
1. The FBI knew that its Information Technology (IT) needed
repair.
2. This past year we have initiated some changes in programs
and management to begin correcting the basic IT problems and to
position the FBI for the future. Our effort has as its
foundation a program we have named Trilogy.
3. The Congress has supported us in this Trilogy effort, both
with funding and with the active, thoughtful attention by this
Committee as well as others, for which, as someone new to
government service, I am personally grateful.
4. We are on schedule and within costs to implement the Trilogy
program improvements you authorized.
5. In light of recent events, we need to improve the FBI
security operations and other areas, such as document
management.
6. For secuity, we have created a single point of
accountability, reporting to the Deputy Director and recruited
a career security executive, Ken Senser, to runt it. He has
identified specific security enhancement initiatives needed to
improve our security. He will speak more fully about security
after my statement.
While we have taken steps to begin repairing our IT systems, these
Systems are in need of further modernization beyond that of Trilogy.
And so again, we are in need of your good Counsel and your support.
Current Situation
The FBI's job is investigating. Technology and computers are
supposed to be tools the FBI uses to accomplish its job. The Bureau's
future ability to deter and prevent crimes requires the use of modern
information technology.
For a variety of reasons, the FBI information technology has had no
meaningful improvements in over 6 years. Some parts of our system are
much older:
More than 13,000 of our desktops are 4 to 8 years old.
They cannot run today's basic software. This means that many
Agents accessing basic FBI data cannot use basic ``ease of
use'' features that your teenagers have enjoy for years, such
as using a mouse to move around the screen. The productivity
loss and frustration that result are enormous.
The majority of our smaller offices are connected to
our internal network at speeds equivalent to a 56KB modem--a
speed less than many individual Internet users have at their
homes.
Agents are unable to electronically store much of
investigative information into our primary investigative
databases, including photographs, graphical and tabular data.
Fundamentally, at the dawn of :the 2I5` century, the FBI is asking
its Agents and support personnel to do their jobs without the tools
other companies use or that you may use at home on your system.
What Trilogy Is
The Trilogy program you approved is the FBI's foundational 36-month
program to upgrade the infrastructure technologies throughout the FBI.
It consists of 3 components:
Network. High-speed connections linking the offices of
the FBI.
Information Presentation. Hardware and software within
each office to link each employee at their desk to the entire
FBI.
User Applications. Several user-specific software
tools to enhance each Special Agent's ability to organize,
access and analyze information.
Trilogy is structured to enhance the investigative ability, of
Agents and support personnel. It will provide the basic resources and
fundamental tools tile FBI needs to support investigations. Trilogy
will provide basic relief for the shortcomings I just mentioned.
Trilogy is a necessary foundation upon which other technology can be
added.
We have awarded contracts to implement both parts of our Trilogy
program, and all of its are anxious to begin seeing the results.
What Trilogy Is Not
The Trilogy Program enables the FBI to have workable system of
information technology resources. Trilogy will not by itself give the
FBI a world-class, state-of-the-art system.
Trilogy gives the FBI a foundation upon which it can build. Trilogy
is the necessary first step toward state-of-the-art. The other
components of a state-of-the-art system cannot be implemented without
first implementing critical parts of Trilogy. You cannot build a house
without first pouring the foundation. Trilogy is that foundation. As
that foundation is being built, we can and should begin work on the
follow-on components necessary to get the FBI more competitive.
Improved Security
We have much more to do than just Trilogy. We need to provide our
investigative teams collaborative tools, better communications with
other law enforcement agencies, and the means to know the collective
experiences of the whole FBI, so they can always use the best practices
of the FBI.
We also need to work on the basic ``plumbing'', the financial,
accounting and personnel systems that we first put in place in the
1980's.
However, our most pressing need has come to light as a result of
the investigative work done to bring about the arrest of Robert
Hanssen. Our security operations must be strengthened
Improved security is the most pressing need and a major focus area
since the arrest of Robert Hanssen. The FBI has been active in
improving its security. The Director created a taskforce last March of
Assistant Directors to review FBI policies and procedures, and make
recommendations. It made recommendations in April:
1. This taskforce recommended establishing overall
accountability for security in one place, having a single
function responsible for knowing all the pieces to the security
2. Security encompasses more than the technology it uses. Given
the establishment of a overall single accountability function.
it is time to tighten the security policy management system.
The foundation for a good security program is to have sound
policies in place, and to enforce them. Policy and procedures
must be established, against which technology can be introduced
to enforce and monitor.
3. This taskforce recommended immediate investment in training
and education on security throughout the Bureau.
This taskforce recommended it assist the Security Program in
prioritizing the areas necessary to get us where we should be
on security. Ken Senser has identified several areas of
attention for improvements. Ken will discuss these in a few
minutes.
The information used for these policies and procedures will be
developed as rapidly as possible, within the constraint of first
getting it right. Any proposed solutions will be structured to
incorporate additional recommendations that may come from the Webster
Commission. However, we are not waiting for those recommendations
before taking meaningful actions to enhance FBI data security.
Summary
Today, our IT infrastructure is in need of repair and our approach
to IT planning and funding has been less than adequate. Our IT
infrastructure upgrade program, ``Trilogy'', represents the significant
step in what we believe should be a continuing effort to keep pace with
technology changes and to stay ahead of increasingly IT-sophisticated
criminals.
Recent public events clearly indicate a need to quickly go beyond
Trilogy's infrastructure plan to incorporate a state-of-the-art IT
security process and a world-class records management system. Those
would be our first two priorities. We can then turn our attention to
modernizing and integrating the Bureau's remaining investigative,
administrative and financial systems. Those needs for those systems
indicate that we should prioritize first on other investigative systems
followed by the administrative and financial systems.
Such an effort requires a continual commitment to change that has
been difficult for the FBI culture in the past; although I am new; I
believe the Bureau is up to this challenge. Such an effort also
requires a continual commitment from Congress to support and encourage
the changes.
Mr. Chairman, I appreciate the opportunity to address this
Committee. I look forward to your continued interest in our efforts,
and your thoughtful advice on how we can best improve the technology
systems in the FBI. Thank you.
Chairman Leahy. Mr. Senser, we are delighted to have you
here. Your whole statement, which I understand we do have, will
be placed in the record. I would ask you if you might summarize
that, with a special emphasis on the area of concern that many
of us have expressed, both Republicans and Democrats on this
Committee, that security is not adequate at the FBI to be
handling some of these very, very sensitive especially
espionage cases or terrorism cases.
So, Mr. Senser, it is over to you and I appreciate you
being here.
STATEMENT OF KENNETH H. SENSER, ACTING DEPUTY ASSISTANT
DIRECTOR, SECURITY PROGRAMS AND COUNTERMEASURES, FEDERAL BUREAU
OF INVESTIGATION, WASHINGTON, D.C.
Mr. Senser. Good morning, Chairman Leahy and Senators. I do
appreciate the opportunity to address the very important matter
of reviewing and transforming the FBI's security program in
order to transform it into a world-class operation that is
capable of addressing the formidable threats facing the FBI
today.
This review process actually began in late 1999 and, after
the arrest of Robert Hanssen, accelerated. The recent arrests
of Hanssen and of James Hill in Las Vegas should leave no doubt
in anyone's mind that there are committed adversaries that have
both the intent and capability to do serious harm to the FBI's
security and to the interests of the United States.
The FBI is an extremely valuable target for a wide variety
of opponents who are interested in interfering with
investigations, compromising sensitive information, and also
physically harming our employees. For this reason, today I will
provide only a very general statement so as not to provide a
detailed road map for any persons who are interested in
actually doing harm to the interests of our country.
Suffice it to say that we have done a very detailed review
of the FBI's security program and, as I will outline, we have
identified a number of focus areas as well as 15 specific
categories of enhancements that need to be either bolstered,
redesigned, or in some cases established for the first time.
I am available, of course, to speak in a closed session to
go into the details of both the problem areas as well as the
focus areas, and have provided a more-depth briefing to your
staffs about the areas being taken.
Chairman Leahy. In fact, I might note, Mr. Senser, I have
read some of the classified material in here. It will be
necessary at some time, and we will do it at a time that works
best for the most Senators, to have a classified briefing in a
closed-door session.
Go ahead.
Mr. Senser. As Mr. Dies already described, Director Freeh
established the assistant director task force and that task
force had made four recommendations for immediate action. I am
the result of one of those recommendations. In late April, I
was selected to lead the total transformation of the FBI
security program, as well as to oversee its day-to-day
operations.
As mentioned, I am a senior intelligence service officer
that is detailed to the FBI from the CIA. My 18-year career
with the Agency has been exclusively focused in the area of
security and I have had assignments in a number of different
disciplines of security, to include personnel, physical,
technical, and protective security.
The original purpose of my detail assignment, which
actually began in October 1999, was to serve as an adviser and
a deputy to the FBI security programs manager. That 15-month
time period between my initial assignment and the arrest of
Robert Hanssen gave me a unique opportunity to view the FBI
security program through the lens of an outsider. Additionally,
as I will mention, I have also brought in other outsiders from
the intelligence community to help us in this transformation of
the FBI program.
As I said, in the late 1999, early 2000 timeframe, we
initiated a self-assessment of the security program. There was
clearly a recognition that the program was fragmented and was
dispersed across many different divisions at the FBI. It lacked
an integrated vision and security initiatives were often poorly
coordinated, inefficient and not as effective as possible.
Additionally, seven specific areas within the program were
identified for more intense focus.
The security program developed a program plan in order to
address these deficiencies, and various management and
operational processes were either initiated or modified in
order to improve the delivery of security services. Also, as a
result of this review, Deputy Director Pickard in May 2000
established the FBI Security Council in order to facilitate the
development of an integrated and unified strategic security
vision for the FBI.
In the wake of Robert Hanssen's arrest on espionage charge,
as you all know, Director Freeh implemented a number of
immediate actions, one of which was asking Judge Webster to
begin his review of the security program and to recommend
improvements. In addition, there were a number of other interim
security enhancements started; specifically, a process for a
more enhanced review of our automated case support system and
the access that people had to sensitive files in that system.
We have initiated a limited expansion of our polygraph
program and we have implemented other measures that are
designed to elevate the status of security within the FBI and
to begin the process of changing the security culture at the
FBI, which is imperative.
Additionally, as I mentioned, there was a considerable
effort to bring in support from across the intelligence
community. We now have officers detailed from CIA and the
National Security Agency, and they are helping us to develop a
robust security education and awareness program, which is one
of the best investments an agency can make in terms of
improving their security program. We are also reviewing the
handling, storage and processing of sensitive compartmented
information, and working to establish a professional security
cadre at the FBI.
As far as the future, the seven focus areas that I have
mentioned where we are concentrating our effort and were
developed actually prior to the Hanssen arrest have led to a
detailed, comprehensive and integrated security enhancement
program that contains many initiatives designed to address
those focus areas. Nothing we have discovered to this point
subsequent to Hanssen's arrest would change the need for the
security enhancements that we have identified.
Additionally, the enhancements have been prioritized in an
order that we believe reflects the seriousness of the gaps or
focus areas that need to be addressed. Now, while these have
been prioritized, it is important to understand that we can't
pick and choose. We believe because of the interdependence of
these enhancements that this should be looked at systematically
as an integrated program.
Additionally, it is important to realize that these changes
are going to take some time. The recommendations and the
additional deficiencies that we may identify as our review
continues and the reviews of Judge Webster and the Department
of Justice Inspector General, will most likely mean that other
enhancements will be proposed. So the plan that we have is a
very dynamic plan and it is something that as of today we
believe is the best approach for addressing these focus areas.
In summary, no security program can absolutely prevent a
trusted insider from deciding to compromise the Nation's
secrets. What we intend to do is to develop a program that
provides a significant level of deterrence so that those
persons who are thinking logically may think twice about the
decision to spy, and also to have a system that, if somebody
does decide to compromise information, quickly identifies the
individual and also minimizes the damage that may occur as a
result of the compromise.
[The prepared statement and an attachment of Mr. Senser
follow:]
Statement of Kenneth H. Senser, Acting Deputy Assistant Director,
Security Programs and Countermeasures, Federal Bureau of Investigation,
Washington, D.C.
Good morning, Chairman Leahy, Senator Hatch and other members of
the Committee. I am pleased to appear this morning to discuss the very
important matter of the review of the FBI Security Program and its
transformation to a world-class operation capable of addressing the
formidable threats facing the Bureau, a process that began in late Fall
1999 and accelerated after the arrest of Robert Hanssen. The recent
arrests of Hanssen and James Hill should leave no doubt that there are
committed adversaries with the intent and capability to harm the
interests of the FBI and the United States. As the premier domestic
agency conducting criminal, counterintelligence, and counterterrorism
investigations, the FBI is an attractive target for a wide variety of
opponents who continuously strive to impede investigative operations,
obtain sensitive information, and initiate and implement reprisal
actions against Bureau personnel or facilities. For this very reason,
the details I provide its this public briefing will be very general to
prevent outlining a roadmap for those. persons intent on harming our
country's interests. Suffice it to say, that we have conducted a
detailed analysis and, as I will outline, identified and began
addressing 15 categories of security areas that need to be bolstered,
redesigned or, in some cases, established for the first time. I am
available to present, in a closed session, a more substantive
description of both those areas of the FBI Security Program that
require intense focus and the detailed enhancement plan we have
formulated to improve the Bureau's security posture. Your staffs have
received an in-depth briefing of the problem areas identified and the
actions being taken.
Background
In late March 2001, Director Freeh took a number of internal
security enhancement actions to include the appointment of a task force
of Assistant Directors (ADs) to ensure the complete identification and
effective implementation of a number of interim security enhancements
begun shortly after Hanssen's arrest. Director Freeh also charged this
task force, chaired by Bob Dies, AD Information Resources Division,
with identifying and implementing any other interim changes that may be
appropriate to enhance the FBI's Security Program and are sufficiently
urgent so as to not await the outcome of either Judge Webster's review
or that of the Department of Justice Inspector General.
In mid-April 2001, the security task force concluded that the FBI
as a foundation for a robust internal security program must have a
single executive manager responsible and accountable for the entire
security ``enterprise''. The existing security program function was
fragmented throughout a number of different divisions and there was
nobody overseeing the various security ``puzzle pieces''. The initial
recommendation of the task force to Deputy Director Tom Pickard was
that the existing security program be separated from the National
Security Division as a stand-alone entity, reporting to the Deputy
Director, and that an executive manager be identified to specifically
direct and be accountable for the security program. The task force also
recommended that a formal process be established to consistently
establish, implement, technically support, enforce, and educate
personnel regarding security policy. Deputy Director Pickard and
Director Freeh immediately adopted these recommendations.
I was then selected to lead the total transformation of the FBI's
Security Program, as well as, oversee its day-to-day operations. I am a
Senior Intelligence Service officer detailed to the FBI from the
Central Intelligence Agency (CIA). My 18-year career with the CIA has
been exclusively within the security field and I have served
assignments in the disciplines of personnel, technical, physical, and
protective security. The original purpose of my detail assignment,
initiated in October 1999, was to serve as a deputy and advisor to the
FBI Security Programs Managei. The 15 months between the start of my
detail assignment and the arrest of Hanssen gave me the unique
opportunity to view the FBI's security apparatus using the lens of an
``outsider''. As I will mention later, other outside experts have been
detailed to the FBI to assist in this critical endeavor.
My responsibilities include identifying the necessary security
processes (``puzzle pieces'') and ensuring that each one has an
``owner''. The process owners will develop the security policy
statements and other supporting documentation which will require the
approval of at least two FBI executives, one of which will always be
mine, before final review and approval by the Deputy Director or
Director.
Basic Security
An effective security program utilizes the principles of risk
management. It is impractical and cost prohibitive to attempt to remove
all risk from operations. Risk management is the process of selecting
and implementing countermeasures to achieve an acceptable level of risk
at a reasonable cost. Applying risk management within the security
discipline involves:
The collection and evaluation of accurate and detailed
information pertaining to:
The nature and value of assets being protected.
The degree of a specific type of threat.
The extent of the related vulnerabilities.
The identification and evaluation of risks.
A cost-benefit analysis of countermeasures to mitigate
specific selected risks.
When countermeasures are applied to mitigate the risk, they are
done so in a layered manner. These layers, or ``rings of security'',
are constructed from the outermost perimeter to the asset itself.
Countermeasures must be integrated and considered in a systems
approach. To do otherwise potentially allows the adversary to identify
the vulnerabilities that were not properly addressed, thereby negating
the positive effect of the countermeasures that were applied.
Pre-Hanssen Security Review
In early 2000, the Security Program initiated a self-assessment of
its Program. There was a recognition that the Program was fragmented
and dispersed across several different divisions. It lacked an
integrated vision and security initiatives were often poorly
coordinated, inefficient, and not as effective as possible.
Additionally, seven areas within the Program requiring greater focus
were identified. The Security Program established a Program Plan
designed to address these deficiencies. Various management and
operational processes were initiated or modified to improve the
delivery of security services.
As a result of this review, Deputy Director Pickard established the
FBI Security Council in May 2000 to facilitate the development and
maintenance of a unified, strategic security vision. The purpose of the
Council was to address Bureau-wide operational and policy issues that
impact the FBI Security Program. The Council discussed a number of
issues, to include; the status of FBI efforts to certify and accredit
its information systems; strategies to improve information assurance;
and options for consolidating responsibilities in various areas, such
as, communications security and background investigations.
Post Arrest Actions
In the wake of the arrest of Robert Hanssen on espionage charges,
Director Freeh asked Judge William H. Webster to conduct a thorough
review of the FBI's internal security functions and procedures and to
recommend improvements. As a former FBI Director, CIA Director, and
Director of Central Intelligence, Judge Webster is, of course, uniquely
qualified to undertake this review. Judge Webster has assembled an
impressive team of highly crederitialed individuals to assist him in
conducting this review. Those members are: Clifford L. Alexander, Jr.,
Griffin B. Bell, William S. Cohen, Robert B. Fiske, Jr., Thomas S.
Foley, and Carla A. Hills. The FBI is committed to providing Judge
Webster and his team complete and timely access to FBI records,
personnel, and resources to complete this task.
Judge Webster has also established a team of investigative
attorneys to assist in this review. Those attorneys are currently
conducting interviews and reviewing documents in order to formulate
recommendations to improve FBI security policies and procedures. We
welcome their recommendations and are committed to implementing them as
expeditiously as possible. I maintain regular contact with
representatives of the review team to keep them informed of proposed
security enhancement initiatives.
The following interim security enhancements have been initiated:
Enhanced Computer Audit Procedures. Some of the FBI's most
sensitive information is contained in electronic case files in the
Automated Case System. Access is determined both by one's assignment
and restrictions placed when the case is opened or data entered.
Director Freeh instructed our personnel to implement regular
reviews on our most sensitive cases -reviews that can highlight all
individuals who have looked at the case files--so that the case agents
and their supervisors can be responsible for assuring these cases are
being accessed by only those with a need to know.
The FBI's Electronic Case File (ECF) Document Access Report (DAR)
shows accesses to all documents in a particular case file for a
specific period of time. The DAR shows the user who conducted the
captured activity, the date and time, and the actions taken (e.g., list
serials, view text, print, or download).
Case Agents assigned to the most sensitive investigations will
review the DARs every 90 days and, with their supervisors, will be
responsible for resolving unexplained accesses. As part of the
resolution process, the Agent and his supervisor may decide that more
frequent monitoring of a specific case is warranted to determine
whether accesses were anomalous and accidental or repeated and
unauthorized.
This procedure should act as a strong deterrent as well as identify
unusual entries into sensitive files. It will not stymie the flow of
information necessary for effective counterintelligence. If this
monitoring system had been in place, Hanssen would have known that
every time he accessed a case or program as a result of ``surfing,''
his entry would have been identified to the case Agent and questioned.
And even though Hanssen did not conduct an unusual number of searches
against FBI records, the fact that he was conducting these searches at
all would have been immediately apparent and raised suspicions.
Expanded Polygraph Program. Currently, the FBI conducts polygraphs
of all new employees prior to them beginning their service. In
addition, individuals with access to certain sensitive programs or
cases are polygraphed and, of course, the polygraph is used during
serious internal inquiries to resolve unexplained anomalies and
ambiguities.
As an interim measure, we identified for periodic polygraph
examination those individuals who, by the nature of their assignment,
have broad access to the FBI's most sensitive information. This
includes any level of employee in any occupation who has access to our
most sensitive information, such as data base administrators. In
addition, we are conducting polygraph examinations of those employees
leaving for and returning from permanent foreign assignments. These
polygraph examinations are essentially complete. A more significant
proposal for expanding the polygraph program is currently being
reviewed by the AD security task force.
Judge Webster will closely examine the entire polygraph issue to
include random polygraphs and inclusion of the polygraph as part of the
five-year reinvestigation every employee now undergoes.
As there are elsewhere in the Intelligence Community, there will be
unexplainable false positives and, as we saw in the Ames case, false
negatives. On balance, however, we believe the potential for damage to
be done by traitors outweighs these concerns. Accordingly, Director
Freeh implemented this interim step with the full expectation that
Judge Webster will examine this issue in its entirety and make further
recommendations.
Enhanced Reinvestigation Analysis. In order to practice sound risk
management, the FBI will devote additional resources to the
reinvestigation process of those employees assigned to positions with
sensitive access. Director Freeh mandated that an enhanced analysis
capability within the Security Program be established to conduct
security adjudications and to resolve any anomalies resulting from the
reinvestigations of persons with access to the most sensitive FBI
information A separate unit was established within the Security Program
for this purpose. The unit will also serve as the point for CI security
integration. It is in the process of being staffed. A cadre of nine
contractors (retired FBI Special Agents) is already onboard and
preparing their analytical work to support this program.
Other Measures Implemented. In addition to the ongoing efforts
discussed above, Director Freeh directed implementation of the
following changes to facilitate the continued incorporation of security
into the FBI culture so that it is recognized as an integral part of
operations:
The security officer(s) in each Field Office will
report directly to the Assistant Director in Charge or Special
Agent in Charge to ensure that security issues are afforded the
appropriate level of Executive attention.
Each Assistant Director in Charge and Special Agent in
Charge will establish a Security Council, modeled on the FBI
Security Council, to provide a forum for addressing security
issues affecting their components. These Security Councils will
include both support and Special Agent personnel and will
provide a broad representation of the respective Field Offices
and Headquarters components.
The Training Division, in conjunction with the
Security Program, will provide a greater focus on security,
particularly with regard to operational security, during FBI
Special Agent and new employee training programs.
The Security Program conducted a Bureau-wide training
conference for Security Officers in June at Quantico to ensure
that Security Officers are better prepared to exercise their
important responsibilities. The Security Officers were also
given the opportunity to meet with representatives of the
Webster Commission to discuss the security situation at the
FBI.
Interagency Support. Professional security officers from the
Central Intelligence Agency (CIA) and the National Security Agency
(NSA) have been detailed to the Security Program to assist in: (1)
developing the security education and awareness program; (2) reviewing
the handling, storing and processing of Sensitive Compartmented
Information (SCI); and, (3) establishing a professional career
development and training proposal for the FBI Security Officer. In
addition, FBI field Security Officers are currently TDY to headquarters
to assist in this effort.
Security Education and Awareness:
In coordination with the Inspection Division, a ``Back
to Basics'' training day is scheduled throughout the FBI to
address the critical issues facing the FBI, to include
security. A lesson plan has been developed to ensure important
security policy and procedures are consistently and clearly
understood by all FBI employees.
Security Education and Awareness training materials are being sent
to FBI field offices from other intelligence community members to
establish a resource library that will enhance employee awareness of
security procedures. Creation of FBI specific security awareness
materials are underway.
SCI Security:
The FBI is currently reviewing its SCI handling
procedures to ensure compliance with intelligence community
standards. This effort is being led by a CIA officer that
includes a written survey of all SCI activities in the FBI.
Understanding the need for SCI access by senior FBI
officials, two Sensitive Compartmented Information Facilities
(SCIFs) are being constructed and accredited on the 7th floor
of FBI headquarters. In addition, six Secure Working Areas
(SWAB) are being established to ensure secure and ready access
to SCI materials reviewed by the Director, Deputy Director, and
Assistant Directors.
Professional Development and Training for the FBI Security
Officers:
An updated Security Officer's Manual has been produced
that includes a ``cookbook'' to assist the security officer in
implementing security policies and procedures. This
practitioners's guide will address the immediate training needs
for the FBI field Security Officer.
A study is underway to evaluate the process for
selection, retention, and development of highly skilled
candidates for the FBI Security Officer positions. An
examination of a career path for professional Security Officer
is being conducted.
The Future
Using the seven focus areas identified during the pre-Hanssen
review of the FBI Security Program, I have overseen the development of
a detailed, comprehensive, and integrated set of security enhancement
initiatives. Nothing yet discovered subsequent to the arrests of
Hanssen or Hill change the need for the security enhancements already
identified. The enhancement initiatives have been assigned to 15
prioritized categories. It will take time to transform the FBI Security
Program. While the initiatives are prioritized, it will not be
effective to cut the proposal into pieces. They are interdependent.
Additionally, I anticipate that other security deficiencies will be
discovered as our comprehensive review, and those of Judge Webster and
the Department of Justice Inspector General, continues.
Summary
No security program can absolutely prevent a ``trusted insider''
from making the decision to compromise this organization and the
country. However, it is our goal to provide a significant level of
deterrence; potentially influencing those persons who are thinking
logically. We also intend to create a system that will result in the
ability to more swiftly detect those persons who do choose to
compromise sensitive information and to minimize the damage resulting
from the compromise. To be successful, we must and are changing the
security ``culture'' at the FBI. It will also take this Committee's
support.
Mr. Chairman, I appreciate the opportunity to address the Committee
and look forward to our continued collaboration to reach our mutual
goal of a secure FBI. Only then can we achieve the success necessary to
ensure the continued security of this great nation.
U.S. Department of Justice
Federal Bureau of Investigation
Washington, D. C 20535
July 23, 2001
Honorable Patrick J. Leahy
Chairman
Committee on the Judiciary
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
Thank you for the opportunity to testify before your Committee last
week to describe the significant deficiencies in the FBI Security
Program and the steps being taken to address them. As I have reflected
on what was said, and after speaking with persons who are more familiar
than I with the current state of the FBI's property accountability
system, I want to correct my testimony on one point.
Relative to the FBI's ability to control laptop computers, you
asked me:
``Is there a system in place today so if you have a computer
with classified information that somebody in the FBI can say at
2 o'clock this afternoon 'I know where every one of the
computers is with classified information and who has them?' ''
My answer was: ``Today, yes, that is true.''
While that certainly is a reasonable objective for a property
accountability system, I have learned subsequent to my testimony that
the level of control outlined in your question is not possible today at
the FBI. Work continues to tighten the property controls so that
assurances can be made regarding the status and physical location, at
any time, of all accountable FBI property. This includes laptop
computers.
I regret any misunderstanding I may have caused as a result of my
error. I continue to look forward to working with you and the Committee
on this very important matter.
Sincerely yours,
Kenneth H. Senser
Acting Deputy Assistant Director
Security Programs and Countermeasures
Chairman Leahy. That is the point that concerns me the
most. I agree with you on the question of the trusted insider.
In any organization as large as the FBI, that is a problem you
are going to have. But also within that organization, as large
as it is, you have a smaller universe of people who have the
most sensitive information. What bothers me is not so much what
you describe is being planned with the review in the future.
What bothers me is a management culture that did nothing about
this problem a long time ago.
Mr. Dies, yesterday, as you know, my office and everybody
else's office here was informed, as was the public, by the
Department of Justice that the FBI currently has 449 weapons
unaccounted for. Most of them are handguns; some are shotguns
and machine guns. I realize that is out of a total of 490,000
weapons owned by the Bureau. As I mentioned earlier, I am very
concerned about the 184 unaccounted-for laptops, including 4
purportedly used for classified information.
Do you know when the FBI first became aware of this?
Mr. Dies. No, I don't. Other people might, but I don't. I
am sure we can get you briefed on it.
Chairman Leahy. Well, it would be interesting to find out
when this first came to the attention of the FBI. To his
credit, the Attorney General has discovered the situation and
he is going to take a number of steps, such as requiring a
Department-wide check to account for all weapons.
Mr. Senser. Mr. Chairman, I have some information on that
topic.
Chairman Leahy. Go ahead, Mr. Senser.
Mr. Senser. As I mentioned earlier, the FBI established the
Security Council in May of 2000. As part of some of the
initiatives that the Security Council began to look at, one of
them was the notion of protection of computers and life cycle
controls on the computers, as well as the protection of laptop
computers.
This led actually to a series of recommendations that were
approved and disseminated to the FBI population in early 2000
relative to the emphasis on control of laptops and the
information that they process. As part of that review, it
became apparent that there were issues with the accounting
system for laptops, and the focus began on trying to identify
situations where information might have been lost or
classified--
Chairman Leahy. By ``issues'' you mean they didn't know
where all the laptops were?
Mr. Senser. Yes, in the sense that in a lot of cases it was
impossible to even make an assessment because the records were
such that you could not tell whether the equipment was properly
disposed of or not, who used the equipment, what it was used
for, and so on.
Chairman Leahy. Would everybody agree this is a serious
problem with regard to the FBI's security information and
technology programs?
Mr. Senser. Absolutely.
Chairman Leahy. Mr. Dies, you, too?
Mr. Dies. You bet.
Chairman Leahy. Are we going to find a better way to track
guns and laptop computers?
Mr. Dies. It is a combination of having a better system in
place to help them, but it is of no use if you don't follow the
system. So when people have an asset assigned to them and that
asset goes out of service, you log it in as out of service. You
don't forget to log it in and people are held accountable for
the results.
Chairman Leahy. Now, let's be clear on this. You can put
the systems in, but I think your last point is the important
one. Somebody has got to be held accountable. Who is held
accountable?
Mr. Dies. Do you want to take that?
Mr. Senser. Well, at the time actually there was nobody
held accountable in the sense that the FBI policy was very
clear on the control of laptop computers, and more specifically
any laptop computers that might be used to process classified
information.
Chairman Leahy. You are saying nobody is held accountable,
so you could have laptops with classified information and you
sort of leave it up to the person who is holding it to make
sure they are turned in when they are supposed to be?
Mr. Senser. Well, what I am saying is--
Chairman Leahy. We have got a much better system than that
here in the Senate.
Mr. Dies. There is an automated system which is supposed to
track all of our properties over $500, for example.
Chairman Leahy. I don't care about the $500. I mean, you
could have a $100 Palm Pilot with classified information on it.
I am not doing an accounting system here. I want to know, is
there a system in place today so that if you have a computer
with classified information, somebody in the FBI can say at two
o'clock this afternoon I know where every one of the computers
is with classified information on them and who has them.
Mr. Senser. The answer is today, yes, that is true. As I
mentioned, in early 2001 there were four recommendations put
forward based on the work of the FBI Security Council, one of
which was to reemphasize to all FBI employees the importance of
the protection of laptops and the information they process.
The second was to ensure that our Inspection Division on
all audits and inspections of field offices do a 100-percent
accounting of the laptops assigned to that entity. The third
was to report to our Office of Professional Responsibility any
laptops that were identified as missing or stolen. And the
fourth was to institute a process whereby every 6 months the
computer specialists for those offices physically put their
hands on every laptop, reviewed those laptops for viruses and
to ensure that the software was appropriate, and to do a check
of the security of those laptops.
Chairman Leahy. As one who has sat on this Committee for 25
years and observed the FBI for 25 years, there is good news and
bad news. The good news is I am sure that the people who would
normally be handling these laptops with this classified
material are themselves going to be very careful of it. I have
seen FBI agents in very difficult, highly classified
operations; I have talked with a number of them. I am convinced
that they would be protecting this information with their
lives, if necessary, especially if the security of the United
States is involved.
What I want, though, is something so that if you do have a
Hanssen or another person with bad intentions that they know
these things are being tracked, and we know that the laptops
are not going to be inadvertently left where somebody else
might find it. That is my concern.
You have got to have both the electronic checks that are
available, but you have also got to have the ability to go and
find when somebody is outside the loop and be able to identify
them quickly.
Mr. Kelly, you referred to problems with the 20 special
agents-in-charge in the Customs Service scattered across the
country. I think the term you used was ``entrenched
careerists.'' The FBI has almost three times that many SACs,
and they each report, as I understand it, separately to FBI
headquarters.
Now, we saw the problems with McVeigh. They failed to
produce records, even though the Director had given an order
that they had to. In the Wen Ho Lee case, a field office lacked
counterintelligence resources and then disregarded FBI
headquarters orders in an espionage case.
You adopted a regional structure in the Customs Service,
but you know how strong field office autonomy is in the Bureau.
Do you think the new Director should challenge the autonomy of
the SACs and put a regional structure in place?
Mr. Kelly. Mr. Chairman, I think it worked for Customs.
Again, it is a far-flung organization that is in 24 foreign
countries and 100 RAC offices. I think what we needed in
headquarters was real-time information. We weren't getting it.
It was very reactive. If you wanted to find out about a case,
it took days to get that information up.
I think that structure should be explored. I think, as I
say, it has been helpful. You are able to hold people
accountable in a much more direct way for a whole host of
issues. Perhaps it is even property management, those sorts of
things. I just believe, in law enforcement, in a much tighter
span of control.
Again, there has been this notion of empowerment, pushing
power down. I think in the unique law enforcement field, that
has to be examined closely because, as I said, we have the
authority to arrest folks. Obviously, the FBI is talking about
very sensitive investigations concerning national security. In
Customs, we were concerned about personal search and how do you
have uniform policies throughout the country.
I would just simply suggest that that structure be
examined. It gives the CEO of whatever agency you are talking
about the ability to talk to a smaller number of people and get
real-time information, and hold them accountable and
responsible again on a real-time basis.
Chairman Leahy. These things all kind of come together in a
way, and one of the reasons for these hearings is to find out
how we can do it better. This Committee and the members of this
Committee have supported huge increases in money for the FBI,
something that is not going to continue unless there are
improvements.
Mr. Dies, you came to the FBI from industry and you were
asked to put together a new technology program. You said, if I
recall your testimony correctly, that the FBI did not make any
meaningful improvements in its information technology in over 6
years and its computers were often incompatible. There is not a
successful organization in business in the world that is not
doing improvements where you can at least talk to each other
and updating their computers.
Now that you are familiar with the current status of the
FBI computer systems, can you identify problems that
contributed to Robert Hanssen's ability to spy for the KGB for
over 15 years from within the FBI? And if there are parts of
this that you are going to have to give us in a classified
area, be sure and tell us that and we will arrange to do that.
Mr. Dies. Let me say in a general sense that the technology
security that was there was not specific enough, it was not
granular enough. It was not always executed with management
practices and follow-up as it should have been. I think the
details of it we might be better off having in a closed
session.
Chairman Leahy. Is it fair to say, though, that you did
find a number of things that, had they been done differently,
would have at least greatly hampered Mr. Hanssen's ability to
escape detection?
Mr. Dies. It is certainly true that I have recommended they
change some things so that things like this might be handled in
a little more expeditious fashion.
Chairman Leahy. I think we understand each other.
Senator Grassley?
Senator Grassley. Mr. Chairman, I would like to take some
of my time for a statement, if I could.
Chairman Leahy. Of course.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. First of all, it would be to thank you
for doing a good job of oversight on this issue. I don't think
we have spent enough time on oversight, and I think when we
don't, then we don't fulfill our constitutional
responsibilities and bureaucracy has a longer leash.
In the case of the FBI, I think too often we have melted
before the FBI Director, who is called up here and asked some
softball questions. The FBI usually goes away with more money,
more power, and not any change in culture. So I thank you for
doing this.
It was almost 1 month ago that we met in this room to
discuss ways in which we might help the FBI regain the
confidence of the American people. While there is much work yet
to be done, as evidenced by the latest situation involving
weapons and laptops computers, we are beginning to see some
positive results.
First, President Bush has nominated Deputy Attorney General
Robert Mueller to be the next Director. I had an opportunity to
meet with Mr. Mueller last week and discuss with him several
concerns that I have with how the Bureau has been managed over
the last several years. I look forward to that confirmation
hearing, where I will further assess his ability to make vital
and necessary changes and eventually make up my mind on how to
vote on his confirmation.
Second, I commend Mr. Ashcroft for the action he took last
week to enlarge the jurisdiction of the Office of Inspector
General. I have been saying for years that the FBI should not
be allowed to police itself, and obviously I am encouraged by
this new step toward the establishment of a free and
independent oversight entity.
But I would also add a word of caution. These changes
result from an administrative order, as you have said, and
there is a need to put them in law, codify them. This is
particularly essential with respect to whistleblower
protections, which I am pleased to see were also addressed in
the administrative order. But I think also not only should they
be codified, but they fall far short of offering sufficient
protection against retaliation of FBI personnel coming forward
with protected disclosures.
I would like to make one thing very clear which is a
concern of mine as I work on FBI reform. The comments that I
make about the FBI should not minimize the great sacrifices
made everyday by hard-working FBI agents and support personnel.
I received a call, for instance, last week from a special
agent-in-charge. He and some of the folks in his office were
concerned about some of the comments that I have made about the
FBI. I told the special agent-in-charge that I believed the
great majority of men and women in the FBI serve their Nation
proudly, that the FBI works best when it sticks to the
fundamentals, and that is to find the truth and let the truth
convict.
But I also told him they deserve an organization that has
integrity and incredibility, and it is the FBI management
system that is broken. The system that is now in place does a
real disservice to the hard-working agents on the street.
The FBI has an institutional arrogance in the way that it
deals with its own employees, Congress, and its fellow law
enforcement agencies. Part of this arrogance lies with the
Bureau's propensity to place image and publicity before basics
and fundamentals. An example is holding news conferences in
high-profile cases before the investigation is complete and all
the facts are in.
It is also a type of arrogance that the General Accounting
Office recently encountered when they found it took an average
of 66 days to just set up an appointment with officials at FBI
headquarters. Certainly, this arrogance is further supported
and reinforced by the organizational structure at the Bureau. I
believe it is vitally important for the next Director to
recognize the need for change in this structure.
As I think we will see from testimony today, it is clear
that a double standard exists within the FBI, one for senior
officials and another for rank-and-file. It has been a well-
known practice within the Bureau for many years that senior
officials and rank-and-file agents are given different
punishment for similar misconduct or offenses.
When line agents are routinely given penalties that are by
the book, senior officials are routinely given a slap on the
wrist. This has been a classic example of the fox guarding the
hen house. Senior FBI officials are given the responsibility
for adjudicating the misconduct of their peers. The problem is
these senior officials become so blinded by the need to protect
the reputation of their peers in the Bureau that they fail to
realize the consequences of their actions bring far more
damaging results.
The organizational structure of the FBI and the manner in
which the Bureau manages its people and programs only serves to
contribute to this unbalanced, obstructive condition. If there
is anyone who still wonders what I mean when I talk about the
FBI culture of arrogance, I can think of no better example than
this.
One can only imagine the kind of effect that this double
standard has on morale within the agency. Clearly, this
situation would be destructive in any setting, but it has
become particularly devastating to individuals at an
institution who are sworn to uphold truth and justice.
Let me give you an example of just how pervasive this
problem is within the FBI. We had an internal survey that found
that less than 5 percent of the FBI agents sampled indicated an
interest in promotion to FBI headquarters, and of non-SES
agents who have already been assigned to FBI headquarters, less
than 6 percent sampled believe that the experience was
positive.
Another by-product of this institutional arrogance comes at
a significant cost to the American taxpayers. The mishandling
by the FBI of situations such as Dr. Fred Whitehurst and Mr.
Tom Stewart have cost the taxpayers $1 million and $6 million,
respectively. Settlements such as these can highlight deeper
problems with an agency.
For that reason, I am sending a letter today to Attorney
General Ashcroft asking for a detailed list of incidents in the
past 5 years in which the Department of Justice has made a
payment of over $25,000 to either private citizens or
Government employees, because Congress has a duty to know what
disciplinary actions are being taken against those Federal
employees who may have caused significant expenditures of
taxpayers' funds.
A failure to properly discipline inappropriate actions by a
Justice Department employee can send the wrong message to all
employees, and I believe this information will provide a better
understanding of the concerns about the disparity of treatment
between SES and the rank-and-file employees within the FBI.
The erosion of trust in the FBI is happening both from
inside as well as outside the FBI. We now have a historic
opportunity to help the FBI regain the trust and confidence of
its own agents, as well as the American people. We already
beginning to see some progress and I look forward to continuing
to help the FBI and its next Director regain that trust.
I would also like to make a comment about the latest mishap
to you, Mr. Dies and Mr. Senser, representing management today.
The history of the FBI's cooperation with outside entities,
including Congress, leaves much to be desired. The
investigation that will be performed by the Department of
Justice Inspector General into lost or stolen weapons and
laptops at the FBI will be the first under this new Attorney
General's order.
I suggest to both of you that you view this as an
opportunity to change the tactics of the past and fully
cooperate with the Inspector General's investigation. I, for
one, will follow the investigation very closely not only
because I want to know what happened, but also to see if this
investigation cooperation is done in a very usual way.
I believe it was a Supreme Court Justice who once said that
sunshine is the best disinfectant. Perhaps we should have the
Government Printing Office print this slogan and put it in
every office that we have.
I guess I will only have time for one question, so this
will be to you, Mr. Dies, and it is regard to the computer-
related problems that you talked about. Without addressing the
management that oversees those problems, I don't really think
you have solved the real problem. So how is the FBI addressing
the management of these systems?
For example, to blame the delay of the McVeigh documents on
computer glitches, I think, would be to look at the wrong
place. You have got to look at the management of the systems as
well as the systems.
Mr. Dies. I think Director Freeh was very candid when he
said this was not a computer problem, this was a management
problem on the McVeigh document case, short and simple.
From the computer and support side, I can make things
easier for the people to use. I can make it easier for them to
do things. If they don't execute what they are told to execute,
it will do little good. So we can put the systems in place to
help them, we can make it less burdensome, we can make it
easier for someone to operate within the defined environment.
Executing as you are told to is not a computer problem; that is
a management system problem.
Senator Grassley. Thank you, Mr. Dies. Thank you, Mr.
Chairman.
Chairman Leahy. The Ranking Member has arrived from his
other hearing. I just checked with him and, with his
permission, we are going to go to Senator Durbin, who has been
waiting here, next for questions. Then we will go to Senator
Hatch, who has both questions and an opening statement.
Senator Durbin?
Senator Durbin. Thank you very much, Mr. Chairman, and
thank you for this hearing. It is certainly timely.
I want to thank this panel and I want to join in
acknowledging Mr. Kelly's presence here. When I first came into
the U.S. Senate, we discovered a practice in the Customs
Service in Chicago that needed correction, and needed it
quickly.
I want to salute you, Mr. Kelly. You didn't waste any time,
you didn't come up with any excuses. You made the change in a
hurry and I think it was in the best interests of the Customs
Service and our Federal Government. That kind of decisive
leadership is rare in Washington. You did a great job for your
country with the Customs Service, and thank you for being here
today with your suggestions.
As I listened to the testimony here from this panel, and I
respect the fact that you are all here bringing us information
about what is going on, it is clear to me that the FBI has not
been starved for funds. The FBI has been starved for
leadership.
It is hard to believe that the situation has disintegrated
and deteriorated to the point that it has at this once great
institution where so many men and women, 25,000-plus, who put
their lives on the line for the country and are dedicated
people, could allow this situation to reach the point that it
has today.
How did this great agency fall so far so fast, or has this
been there for such a long time and it has been carefully
concealed? Can the Federal Bureau of Investigation stand up to
an investigation? I think that is what this Committee is asking
today.
Mr. Dies, for example, there is an article in the Federal
Times here. I don't know if you saw it, but you may know the
individual who is quoted. His name is Mark Tanner. He is the
FBI's deputy chief information officer, and it is my
understanding he is working with you on this Trilogy project to
try to modernize the information technology available to the
FBI.
Mr. Dies. He reports to me.
Senator Durbin. Pardon me?
Mr. Dies. He reports to me, that is correct.
Senator Durbin. I think he has been very honest and candid
in this interview and I would just like to get your reaction to
a couple of things he said.
I quote from the Federal Times article: ``While Tanner is
happy to bring his fellow agents the benefits of modern
technology, he occasionally get frustrated by the bureaucratic
procedures that come with a headquarters position. `The budget
process is difficult,' he says. `There are so many layers of
oversight and each person in the chain thinks their job is to
cut your request, not refine it or understand what is really
needed.'''
He is asked at one point, ``Is there any part of this job
that came as a surprise to you?'' And he says, ``I was
surprised by the length of time it takes to gain support for
modernization of the FBI information technology.'' I can't
imagine a business that would tolerate that mentality through
one quarterly earnings report, let alone as a permanent mind
set.
Does this accurately reflect the resistance within the FBI
to change and modernization?
Mr. Dies. As to your comment about commercial organizations
couldn't tolerate this, they could, but only for one or two
quarters. They would then be out of business. You either use
the competitive technologies or you don't exist in the
commercial market.
I have only been there a year, but my opinion is there are
two parts to the FBI culture. One part you don't want to
change; the dedication of the men and women out there is
unbelievable. What they do, day in day out, with no technical
support from the systems side is truly amazing.
All organizations have barnacles and resist change. I don't
think the Bureau is any different. They have to learn to
change. They have to be willing to accept technology as a tool,
if you use technology, or implement security programs and be
accountable for the results or whatever. So they have a long
way to go.
If you have an afternoon to talk about the frustrations of
the budget process or a whole day to talk about the
frustrations of the procurement process, I am at your disposal
because it is really a nightmare if you come in from the
outside to try to help.
Senator Durbin. But what I am asking you is, within the
FBI, are you receiving cooperation in this effort to modernize
and change this mind set and this antiquated technology that
can't keep up with modern needs?
Mr. Dies. I am getting all the help I have asked for. It is
not easy. Are there recalcitrants and people dragging their
feet? Of course, there are in any organization. When I have
asked for help, I have gotten what I have asked for and I am
comfortable at this point that we can get it done.
Senator Durbin. Mr. Senser, you have been involved in
security and intelligence work with the CIA and now with the
FBI. It strikes me as odd that the CIA, an important
intelligence organization, apparently was able to modernize and
keep up with changing technology and the FBI was left in the
Dark Ages. Can you explain it?
Mr. Senser. No. Actually, I can't explain it, but I think
it is evident when you look at the results. There is a very
different automation environment in the two organizations.
Senator Durbin. Can you tell me what you mean by that?
Mr. Senser. Well, in terms of processes, and I will stick
to security, for example, we have a requirement that says that
when somebody is preparing to travel overseas, they need to
file a foreign travel report so that it can be duly noted and
reviewed, brief them on the hazards, and so on.
At the Agency, the process is electronic. You fill it out
online. It gets sent and approved electronically. It goes to an
automated data base. At the Bureau, it is a paper process. It
goes to a paper file, and that limits your ability from a
security and counterintelligence standpoint, for example, to
search data bases, look at windows of time to see who may have
traveled overseas, and so on. So it is just a very different
environment.
Senator Durbin. Well, let me just say--and I will turn it
back over to the Chairman because I know Senator Hatch is
waiting to make his opening statement--I have made a suggestion
with Senator Specter about the creation of an inspector general
for the FBI, and that inspector general would report to the
Attorney General. There would be no question that that would be
the line of command.
The reason I did that and the reason that Senator Specter
joined me was the belief that there has been a resistance to
this sort of inspection for a long, long time. Although we can
point on paper to all sorts of things that should have caught
the problems that we are seeing in the newspapers every
morning, the fact is it didn't happen.
There is a wall that has been built between the FBI and the
Department of Justice, and the agencies that have been
empowered to look over that wall and find out what is going on
have failed. They have failed miserably. When we can't find
weapons and we have laptop computers with classified
information disappearing, and when Robert Hanssen--and this was
reported in the newspapers--can put a hacking device on his own
computer at the FBI, hack into his superior's computer, take
down classified information he wasn't supposed to see, and then
report himself and nothing comes of it other than his continued
betrayal of the United States and its security, that tells me
that the system has completely disintegrated in terms of
inspectors general and what they are expected to do.
I am open to suggestions here, but I think merely a nod of
the head and a furrowed brow and a show of concern isn't
enough. We have got to take a look at this once proud agency
and put it back into the position it deserves.
Thanks, Mr. Chairman.
Chairman Leahy. Thank you, and I would tell the Senator
from Illinois I totally agree with him on that.
As I mentioned at the beginning of the hearing, Senator
Hatch was testifying on an extremely important issue at another
hearing. Following our normal custom, we will go to Senator
Hatch and then go back to the order they came in, which would
be Senator Sessions.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman. I am
delighted to be with you. I did have to testify in another
hearing and it took this long to get here. I thank you for
convening this hearing and continuing this important oversight
effort.
Today's hearing, with its focus on management issues, is
timely in light of the latest revelations concerning firearms
unaccounted for at the FBI, and 184 missing laptop computers, 4
of which may contain classified information. This is simply
inexcusable. Apparently, this was a department-wide problem
during the previous administration, as over 500 weapons are
also unaccounted for at the INS.
Lax administrative controls over sensitive materials like
these cannot be tolerated. This is another example of why I
think the FBI would benefit from a commission of outside
experts doing a top-to-bottom review of the agency, as Senator
Schumer and I have proposed.
The latest revelations also highlight the challenges ahead
for the new FBI Director, Bob Mueller, whose nomination I hope
this Committee will consider as soon as possible. I think that
needs to be done.
I applaud President Bush for his choice, and I think that
Bob Mueller will become an excellent Director. He is a
principled, dedicated public servant with a proven record in
law enforcement and reform. His no-nonsense style has served
him well and helped him vastly improve the performance of the
U.S. Attorney's office in San Francisco, and I think he can do
the same thing at the FBI.
There are many issues facing the FBI that I am pleased that
today's hearing is addressing. Technology is not by itself the
answer to all of the problems at the FBI, but it is
unquestionably an essential part of the solution. I am pleased
to see that the FBI has reached outside itself to an industry
expert to develop the best possible system to fit its needs.
Technology, however, is only a tool to enforce policies. It
is people who must set the standards, make the value judgments,
and insist upon adherence to those judgments. I am pleased,
therefore, that we also have with us today a key FBI official
who is helping to shape one set of policies critical to the
FBI, and that is internal security.
I am pleased to have all three of you here today, and all
three of you are giving, I think, very important testimony. But
I am talking right now about Deputy Assistant Director Ken
Senser, the new head of the FBI's internal security program,
who is here to discuss the FBI's plan for upgrading its
security program.
Like several key FBI officials, Mr. Senser's background
comes from outside the FBI. He is an 18-year veteran of the
CIA, who brings an important, independent expert perspective on
how the FBI can protect itself and its operations from internal
and external security headaches.
I also welcome the testimony of the current and former
agents on our second panel, whose testimony will focus on
internal discipline at the FBI and how the investigation and
adjudication of disciplinary matters can be improved.
I applaud Attorney General Ashcroft for taking important
and positive steps last week aimed at addressing misconduct
issues. The Attorney General on his own initiative expanded the
role of the Department of Justice Inspector General and gave
that office original jurisdiction and right of first refusal
over all allegations of misconduct by Justice Department
personnel that are unrelated to the professional
responsibilities of Justice Department attorneys related to
their legal work. This is an important step which immediately
addresses the problem without precluding additional
Congressional action.
Some of the agents testifying here today have expressed
concerns over a perceived double standard under which senior
officials at the FBI are punished less severely than regular
agents for the same infractions. This is a very serious issue
and one that former Director Louis Freeh tried to address in
August of 2000 by taking the constructive first step of
eliminating the separate SES Disciplinary Board.
I would like to make part of the record a copy of an August
15, 2000, memo from Director Freeh setting forth his basis for
changing the policy.
As described in the memo, some of the disparity in
discipline is also the result of statutes and regulations, and
I think it is entirely appropriate for the Committee to examine
this statutory scheme which restricts the type of discipline
that can be given to senior officials and whether it should be
changed to equalize the available punishments for all employees
regardless of rank.
The statutory scheme, however, does not account for all
cases of disparity of treatment. There have been cases where
senior officials have probably been treated too leniently.
Senior officials must be held to the highest standards of
conduct. They must set the example for the rest of the agency.
Any lasting improvements to the FBI's culture will have to be
embraced and enforced at the top, and I think that Bob Mueller
is just the kind of guy who can make this happen.
One tool I want to give to the new Director is the benefit
of an independent review of the agency by outside experts from
a variety of fields. I have joined with Senator Schumer in
sponsoring the FBI Review Commission Act of 2001, which would
established a mechanism for a first-rate group of experts from
a variety of fields like management, technology, and
intelligence to do a thorough review of the FBI and make
strategic recommendations to the Director for improvements.
Such an independent group, with no turf to protect or axes to
grind, could really help bring the best practices of the
corporate and scientific worlds to bear on the challenges
currently facing the FBI.
There will be a lot of suggestions for improvements to the
FBI. Some are underway, others are being developed. We in
Congress are right to scrutinize the plans for reform and to be
vigilant in our oversight. We will not blindly accept changes,
but will question and test them to ensure that they will
address the problems which exist. Through this process and by
working in collaboration with the Justice Department and the
new FBI Director, I hope we can be a constructive part of a
revitalization of the FBI.
Mr. Chairman, I for one have been very pleased with the
service of Louis Freeh for these last many years. He inherited
an agency that really was having a great deal of difficulty,
and he helped straighten out an awful lot of things that were
wrong about the agency and did, I think, as good a job as he
could under the circumstances. And his record of major
accomplishments is really a tremendous record, but it is
apparent that we still have work to do.
The new Director is going to have the benefit of these
hearings and the benefit of the revelations that have come
forth, and I am hopeful that the new Director, with the help of
Congress, will get the job done and help to restore the
agency's reputation in some of these areas.
But I don't want to leave the impression that I was
displeased with Director Freeh's service. I thought he did a
terrific job and I think most people who know him believe that
he did a terrific job under the circumstances. Does anybody
have the ability to solve all problems? The answer to that in
an agency as big as this one is no, but we have to keep working
on it because this is the premier law enforcement organization
in the world and I want to make sure that these types of
problems don't happen again.
Let me just ask you this, Mr. Dies. Do you anticipate any
additional budget requests for fiscal year 2002 related to
technology upgrades at the FBI, and if so, what will the
requests likely be?
Mr. Dies. Senator, the first priority, as I said, is to
shore up the security holes that have become apparent. Some of
those are technology-supported, some of those are personnel-
related. We have put to Justice and OMB the requests. The cycle
we are in cued those requests up in 2003. I think you will want
us to move significant chunks of that up to 2002. I don't think
you want to wait until 2003 to get started on this problem.
So a top priority for the FBI in terms of increased focus
and funding will be to plug the security holes. Behind that
would be a better document management system to correct the
kinds of problems we had with the McVeigh case. Those two
things are both, as I said, currently aimed in this budget
cycle at 2003. I as a citizen would encourage you to let us get
started on that a little earlier.
Senator Hatch. Well, thank you. I am really pleased that
you are there. You are a 30-year veteran of IBM and you have
been hired a little over a year ago to supervise and implement
the FBI's technology upgrades. So I am really tickled to see
you in that position.
Mr. Dies. Thank you.
Senator Hatch. Of course, Mr. Kelly, I am very proud of you
and the work that you do. You are doing a great job.
Let me just ask you these two questions, Mr. Senser, and
then I will cease. A key principle of security is defense in
depth, where security measures are layered together, as you
know. How will you bring this concept to bear on the revamped
security plan at the FBI?
And then let me just ask this second question, and I will
be happy to repeat it again if you need it. Have you been
coordinating the interim security measures the FBI is taking
with the Webster Commission so that they are aware of what you
are doing?
Mr. Senser. To answer your second question first, we have
had a very close relationship with the Webster Commission, Mike
Shaheen, and talked frequently about the recommendations that
we are developing, as well as the enhancements we have
initiated. So I believe we are very closely aligned and agree
on the philosophy and the steps that we have taken to date.
In terms of your first question, this is a very difficult
issue to address at the FBI in the sense that defense in depth
comes from proper integration of activity. And at the FBI,
security is dispersed through a number of different divisions
and there are responsibilities for security at a number of
different divisions.
The initial attempt at addressing that took place in May
2000 with the initiation of the FBI Security Council, which was
the first forum that the FBI had to bring these issues together
across divisional and organizational boundaries. But we have
got to go further, and our initiative and our recommendations
will address that.
Senator Hatch. Well, I, for one, am happy to have you
there, both of you, and Mr. Kelly as well.
Let me just put in the record some of the major
accomplishments of FBI Director Louis Freeh so that we all
understand that this is an ongoing thing, that we have got to
continue to upgrade the agency, but he did a terrific job while
he was there.
So if I can, Mr. Chairman, I will put a list of some of the
major accomplishments in the record at this point.
Chairman Leahy. Without objection.
It should be noted that these hearings were not designed as
a judgment on the administration of any past Director, but
rather are a long overdue look at some of the inherent problems
in the FBI. This Committee has authorized so many billions of
dollars. We want to have the best, and that is why I have made
it a point to have long talks with both Attorney General
Ashcroft and the soon to be nominated Director, Mr. Mueller,
regarding it. In fact, for that matter, we will be scheduling
Mr. Mueller's nomination hearing as soon as the President sends
the nomination up here.
Senator Sessions?
Senator Sessions. Thank you, Mr. Chairman. We are moving
toward, I believe, an institutional spasm, a catharsis perhaps,
with the FBI. That happened with the Internal Revenue Service.
They were perceived as being arrogant, separated from the
people, and marching to their own drummer. And I think we went
too far with the IRS. I think what can be shown today is that
we damaged that agency more than we benefited that agency.
I have the greatest respect for FBI agents, and I have
known them personally. Some of them are my closest friends; I
have known them for 15, 20, 25 years. My concern is that we do
make a change. It is time for particularly the middle-level
bureaucrats within the agency to change, to realize that
control and secrecy and direction all from Washington at their
own will is not always healthy. We need a Bureau that is more
responsive to the times that we are in, Mr. Chairman.
I guess I would just say to you, in this hearing your
challenge is going to be to make sure that Mr. Mueller and the
people that he brings on board and those who are already there
realize that we expect improvement and change, and at the same
time not to damage one of the great investigative agencies of
all time. I really believe that. They do so much good work. The
agents that I have worked with over the years--I know them,
their integrity, their hard work, their dedication, but there
are some things that are troubling and it is time to fix them.
Mr. Kelly, I wanted to ask you and confront you a little
bit on your views. I am not sure the regional administrative
departments wouldn't be helpful. Perhaps that is a very good
idea, but what I am troubled about is a mentality that
everything has to be approved from Washington and that the
tendency of the Federal department head is to believe they must
control everything.
McDonald's controls the quality of their hamburgers and how
long it takes to get them served and so many other things that
they do, but they don't have somebody watching each individual
store everyday, second-guessing every order for a hamburger.
Is there someplace in there that we could reach an accord?
Mr. Kelly. Yes, Senator, I think there is a middle ground.
When you do have these far-flung, diverse organizations, they
do tend to develop their own policies, their own way of doing
business. I think from my own experience that we imposed an
additional level that I think made policy more consistent and
enabled us to get real-time information at headquarters, which
was certainly lagging when I got there.
That doesn't mean that they direct every activity by any
means, but you will find--again, I am talking about my Customs
experience--that SACs become very independent, and unless there
is, in my view, some oversight, some communication on a regular
basis to another level of management, there is very little
communication.
Now, when something is going to be done, when they are
going to take an action, yes, in the structure that I found
they would go to headquarters. But short of that, there wasn't
adequate communication. In addition, there wasn't inspection,
and I don't mean necessarily formal inspection, but there
wasn't an examination of practices on a regular basis. So I
think you can reach something in the middle where you are not
controlling every activity but headquarters knows on a real-
time basis what is going on.
Senator Sessions. Well, one of the things that President
Reagan did that was marvelous--and I came on as United States
Attorney in the early 1980's--he said we are going to have a
local law enforcement coordinating Committee, and that
coordinating Committee included the sheriffs and the chiefs of
police and the law enforcement community, United States
Attorneys and all the Federal agencies, and they would decide
what priorities were important for that community.
What we found is they didn't always coincide with the
priorities back in Washington. They wanted organized crime, but
there might not be any organized crime, La Cosa Nostra, in
Mobile, Alabama, but we had other kinds of crime of critical
importance.
So I don't want to get to a situation in which we have some
sort of centralized domination telling every agent what their
daily priorities ought to be. I do believe that the SACs should
be participating in these Committees that still exist,
developing localized priorities, and they ought to be respected
in that. So there is a balancing act. I understand that.
Mr. Senser, I have just in the back of my mind over the
years felt that some of the problems in the FBI may be that it
has a major counterintelligence mission, and that that somehow
spills over into all the other work that they do, creating a
wall sometimes, a secrecy, a sense that they are more separate
and apart than the average law enforcement agency would be.
Have you ever given any thought to perhaps separating
within the FBI counterintelligence more clearly from the
routine law enforcement, and would that perhaps serve both
missions better?
Mr. Senser. I haven't focused on the removal of
counterintelligence of the agency, but what--
Senator Sessions. Or dividing it within the agency.
Mr. Senser. Yes. Those kinds of things we have looked at in
the sense that the task is much more complex than what might
be, for example, at the CIA, where everything is very
homogenous; it is all intelligence work. Eighty percent of the
FBI focused on criminal investigations that are not classified.
So you have a very different environment that you have to
protect and a wide variety of information and different
requirements on sharing that information.
So we have conceptually talked about some ideas in terms of
systems and doing other things, virtual networks and things, to
separate those activities from the classified and the non-
classified.
Senator Sessions. I don't know where it comes from, but
there is, according to almost every Federal prosecutor I know,
a belief that Senator Grassley is basically correct that within
certain high levels of the FBI there is a culture of arrogance,
a sort of defensiveness that is unhealthy.
I am not sure some of that doesn't come from their concern
about secrecy, that they are disciplined and they are supposed
to contain information and not distribute it too recklessly.
Some United States Attorney calls and says the court wants this
document, and they are not real sure it needs to go and they
don't think it should go. They start making independent
decisions that get us in big-time trouble, as I think may have
happened in the McVeigh case.
But I do believe that breaking down that culture may
require a separation because when you are dealing with Hanssen
or somebody dealing with high-level espionage-type issues, they
have got to be exceedingly secretive and disciplined about
everything they do. But it should not spill over into the
normal savings and loan fraud case or a bank robbery or
something like that.
I tend to agree that the FBI is not starved for funds. I do
not believe the FBI is starved for funds. I think the challenge
of reorganization and improving that agency goes beyond money,
and I expect that Bob Mueller will be confirmed. From my
experience with him, I knew him when he was United States
Attorney in Boston. I think I knew him when he was the chief
assistant there. He has been a career prosecutor all his life.
He is a Marine, he is a tough leader. I think he has the will
and the experience and the insight to improve the FBI. And
those who do not cooperate in that, I hope the hammer will fall
on them.
I think the Bureau is going to have to get on board and we
are going to have to improve this agency, and if they are not
cooperative with Mr. Mueller in the improvement of it, the
result is going to be this agency could be damaged like any
other agency because this Congress wants some changes, and I
think the American people do.
I would finally say, in an agency as big as the FBI, the
way the world develops is when you have an error and the media
wants another error, they have got the whole United States and
hundreds of thousands of cases going on everyday and it is easy
to go out and find this error, that error and that error, and
say the whole FBI is incompetent. I do not believe that is
fair.
I do think it is time for a culture improvement within the
Bureau, but I don't think it is fair to say that on a routine
basis they are not doing excellent work throughout this
country. I know they are and I wanted to say that.
Thank you, Mr. Chairman
Chairman Leahy. And I don't think you have heard anybody
say otherwise here in this Committee.
The distinguished senior Senator from California.
Senator Feinstein. Thanks very much, Mr. Chairman. I just
wanted to pick up on something that Senator Sessions said
because having sat through both the Ruby Ridge, which both
Senators Hatch and Leahy have as well, and the Waco
investigations that this Committee did, what appeared to me was
that the attribution, the responsibility, didn't really go up
the line adequately, that SACs had so much authority, and when
you really tried to get to the top here in Washington, well,
nobody really said do this or do that. I think that is one of
the problems.
I have discussed this personally with Mr. Mueller. I think
he is going to change that so that on the big incidents where
the whole kind of professional quality of the FBI is at stake,
responsibility is at the top. I think there is no better thing
in those incidents than someone at the very top going out to
the field to really be there, to really witness what is
happening, and to be prepared to be responsible for the
decisions that are made so that some SAC somewhere doesn't make
them and then they are the ones that are kind of hung out to
dry when everything goes wrong. So that is the first thing I
wanted to say.
The second thing is I have a great respect for Ray Kelly. I
have known him now for a while. I have watched him as
Commissioner of Customs. We have had a lot of opportunity to
talk.
I would like to ask you this question. Questions have
arisen about which type of disciplinary oversight is better,
whether it is peer review within the FBI, an internal affairs
unit that we might have in a local police department, or a
strong outside authority that can come in and do an
investigation from the outside.
Some former agents, one of whom will testify later, believe
that the peer pressure involved in agents investigating other
agents works best. Others argue that peer review really just
leads to cover-ups and a kind of ``protect one's own
situation.''
Given your experience at Customs, as well as NYPD, and
knowing of your knowledge about the FBI, which system do you
think would work best?
Mr. Kelly. I think a combination of both, Senator, and in
my prepared remarks I talked about the need, in my judgment,
for a robust internal investigative component that is supported
from the top that reports to the top of the agency. But what I
think you should have is oversight of that entity by in this
case the Office of Inspector General in the Justice Department.
Now, the Treasury Department has a construct like that. It
also has a separate IG for tax administration. I am not talking
about that. I am talking about the other IG system where, for
instance, in Customs you have an internal investigative
component of about 150 people. We tried to get the best
investigators from the Office of Investigations and we rotated
them into Internal Affairs.
The Office of Inspector General has the ability to take
over any case, to monitor internal investigations. Indeed,
every investigation that targets a GS-15 or above goes
automatically to the IG. But they can supersede; they can, in
essence, take any case themselves. I think a combination like
that can work.
I think if you take it totally out of the agency, you lose
a lot. You lose the knowledge of the culture, you lose the
knowledge of how it works on a day-to-day basis. The
investigators are removed from it. So I think you can have a
combination and that is what I would recommend.
Senator Feinstein. Well, you know, a lot of what I see that
has happened that has, I think, dulled the very stellar image
of the FBI is really kind of a lack of professionalism. I would
have to put it to that. I mean, the equipment missing is really
a lack of professionalism.
What the agents said and how they conducted themselves
working the Wen Ho Lee case, making threats--I don't think that
is good professionalism. The number of leaks that have come
out--as a matter of fact, my staff did a NEXIS-LEXIS data base
search, because I have been trying to write some legislation on
preventing leaks, and they found various iterations of
``Department of Justice sources say'' and ``FBI sources say'';
over the past 2 years, over 1,000 examples of that.
I strongly believe that professionals in an investigative
situation should not say anything to the press about that
investigation because people get tried in the press then, as we
have seen happen so many times. So I have sort of come to the
conclusion that you are right about the culture, that the
culture is a much more relaxed culture today than it used to be
10 or 15 years ago.
Can you comment on that? Maybe I am all wet.
Mr. Kelly. As far as talking to the press is concerned or
leaks in general?
Senator Feinstein. As far as talking to the press and in
terms of the stringencies of the professional responsibilities
that they carry out.
Mr. Kelly. I think in law enforcement, in general, that is
an issue, that is a problem. I think there are lots of leaks
and people talking to the press. I think it can be tightened up
if management at the highest levels of an agency put out the
word that, hey, we don't want you to do this.
A lot of times, it is done because of competitiveness.
Agencies are competing against each other; they are competing
for budgets. They want to get the story out to show they are
doing a good job. I think it can be tightened up if the head of
the agency makes it clear that there will be consequences if
you do that, but oftentimes it is tacitly supported by the head
of the agency.
Senator Feinstein. Could I have the other two gentlemen
comment on that point?
Mr. Dies. There are lots of ways to do things. I can only
speak from the commercial corporate world, where we had the
inspections pretty much done as close to the site of the
infraction as possible within certain guidelines. And certain
classes of things percolate right up, so it is much in the same
way.
I am not one that would be knowledgeable about the pros and
cons of an external IG organization or equivalent. I would not
know how to comment.
Senator Feinstein. Do you believe that an internal review
is more effective?
Mr. Dies. I think there is a phrase they use at IBM: you
expect what you inspect. So you get what you pay for. If you
expect somebody to follow a set of guidelines and procedures,
you have to make darn sure they do, and if they don't, you take
action. Letters to the file are nice, but sometimes
insufficient.
I think internal reviews, if properly managed, probably
could be OK, but I will step aside on that to the Committee
here.
Senator Feinstein. So what you are saying is stronger
management. You said before that procedures can be in effect,
but if somebody doesn't manage them--
Mr. Dies. If you have the right management, you enforce the
procedures and you have an organized approach to this problem,
there is no reason it can't work. That would be my opinion.
Senator Feinstein. Would you like to comment?
Mr. Senser. I agree. I mean, for the most part, when
expectations are clear, when people understand what the
ramifications are of violating department policy and serious
action is pursued, I think most of the oversight can be
accomplished internally, and in maybe some cases of very senior
managers that you would want an outside organization or other
entity to look at it.
Senator Feinstein. Mr. Chairman, as a matter of fact, I
have an appointment with Mr. Mueller, so I am going to ask to
be excused and for the first time, I think, end before my red
light went off.
Thank you very much.
Chairman Leahy. I appreciate the Senator's involvement.
This is a matter about which she has raised numerous and
valuable questions in the past, which I appreciate.
Again, I would emphasize this is not a case of us ganging
up on the FBI. Everybody here has a great deal of appreciation
for some of the tremendous things that the FBI has done in the
past and continues to do today. Unfortunately, many of the
things they do the best we can't even talk about because we
want to make sure they keep on doing it. So we should note
that.
We do want to make sure, though, with all the money being
spent, that we are bringing them into the 21st century, as Mr.
Dies and Mr. Senser have said, needs to happen in the FBI's
information technology and security systems. And what Mr. Kelly
has said, of course, has been to reflect some management
things. Sometimes, we have management by inertia, or we can
have management by innovation, and I would like to have more
management by innovation and less by inertia.
So I thank the Senator from California, and I would turn to
the Senator from Washington State.
Senator Cantwell. Thank you, Mr. Chairman, and thank you
for holding this very important Committee hearing. I apologize,
having two other Committee assignments this morning, that I
wasn't here to hear your testimony in person, but I have
reviewed them and have a few questions for Mr. Dies and Mr.
Senser.
I see in the background, Mr. Senser, that you were formerly
with the CIA and that was for a period of years, is that
correct?
Mr. Senser. I am actually detailed to the FBI from the CIA
and I am an 18-year security veteran with the CIA.
Senator Cantwell. And, Mr. Dies, your background prior to--
Mr. Dies. Thirty years with IBM.
Senator Cantwell. Obviously, we are here reviewing a number
of concerns about a variety of cases and also information about
equipment and information. And I think a lot of us probably
came with a great deal of concern and anxiety.
Having read your testimony, I feel like we have just found
out that where there is smoke, there is fire. That is, that the
system security and level of what I would call ``network
assurances'' and a variety of things that are probably in--and
I want to get to this question--other agencies like the NSA or
the CIA are at much higher levels of sophistication than they
are at the FBI. What we are hearing today is basically we are
at a very, very elementary level. In fact, the things that have
exploded into the public realm really do signify a much greater
underlying problem here. That is my assessment of reading your
testimony.
When we start with Trilogy is basically getting you system
functionality. It is not security. It is getting you a software
system and ease of use. So I wish I was wrong on that
assessment, but I think I am right.
I don't know if you care to comment on that first
statement?
Mr. Dies. I think the sad news is you are absolutely
correct.
Mr. Senser. And from the security standpoint, it is
somewhat complex, but it gets back even to the general culture
of security at the FBI which has to be changed.
Senator Cantwell. Maybe I have a different perception, and
I don't think it is just from watching movies like ``Mission
Impossible'' or ``Code Breakers'' or what have you, but I
definitely get a sense that the NSA and the CIA, who are in
similar, related businesses, have much more sophisticated
communications and security systems.
Is that correct, having been with the CIA?
Mr. Senser. For the most part, yes. Of course, there are
always vulnerabilities, and certainly Ames was an example for
the CIA of some vulnerabilities that were not addressed but
that have been acted upon and the security improved
considerably. Every lesson gives you learning points. But I
think it is a fair statement to say that many, if not most, of
the other agencies are ahead of where the FBI is today.
Senator Cantwell. And why is that?
Mr. Senser. Again, having not grown up in the FBI, it is
hard to make a conclusion, other than there are always
priorities and the FBI is very mission-oriented, investigative,
operational, get the job done. Sometimes, that competes with
security, where you are trying to protect information; you are
trying to say, wait, before you do that, let's talk about it.
But, again, it is a culture that we are working to change.
Mr. Dies. I might make two comments, Senator. One is in the
tactical operations supporting investigations, some of the
technologies the Bureau uses are really quite sophisticated and
quite good.
The second point is my personal opinion would be neither
the technology nor the security operations were of sufficient
high priority that they got the attention they deserved over
perhaps a decade. What we are now wrestling with is how to get
the car on the highway and up to speed, both from a technology
and a security standpoint. And the challenge will be to keep in
front of everyone's minds and make sure that it doesn't get
side-railed again once we do fix it.
Senator Cantwell. Well, I think it is an interesting
question, Mr. Chairman, whether it is the nature of those other
two agencies, and the information business that they are in, if
they might have put higher priorities on protecting their own
information.
But nonetheless wouldn't you say that one of the things
that the agency should be doing is looking to those other
agencies for best practices?
Mr. Senser. Absolutely, and that is taking place, of
course, with myself being detailed from the CIA. But as I
mentioned in my statement for the record, we have already gone
out to the CIA and brought in somebody to specialize on the
protection of sensitive, compartmented information and other
very sensitive information.
We have gone out to the NSA and brought somebody in to
specialize on security education and awareness, which is one of
the most beneficial areas you can focus on in terms of getting
a return on your investment. And we have somebody else coming
in from the CIA that is going to take over the management of
the physical, technical and information security areas,
reporting to me.
So we are drawing on the community. We have benchmarked, we
have gained best practices, and everybody has been very
cooperative and eager to help us get this car back on the road
and moving in the right direction.
Mr. Dies. The good news, if there is good news here,
Senator, is that other agencies and other businesses know how
to do this, and we have to import best practices, not reinvent
some of the practices. So whether it is defense in depth from
the Defense Department or NSA, CIA, ATF, there are people who
are willing to help us and, to date, have been willing to do so
when asked.
Senator Cantwell. I didn't see that quite outlined in your
section on security here, but do you have something more
detailed here about the steps for--
Mr. Senser. I do talk in the statement about bringing other
professionals in. What I didn't go into detail in the statement
on was the specific focus areas that we have identified, as
well as the details of the enhancement plan that we have
outlined, because of the concern for providing a detailed road
map to somebody whose desire it would be to harm the country's
interests.
But as I have also mentioned, we are more than happy to
talk to the members in private, and we have already given a
more detailed briefing to your staffs on these areas and what
we are doing to fix them.
Senator Cantwell. Well, I do have another question about
the overall network security, and again I have a sense that the
CIA and NSA are up here and the FBI is way down here, again
because maybe that mission wasn't clearly detailed.
But do we have great concern today about the security of
the system?
Mr. Senser. Well, again, there are always pros and cons,
and Mr. Dies can also comment, but from the standpoint of--
Senator Cantwell. I am sorry. Your internal network is what
I am specifically referring to.
Mr. Senser. Right, and the good news is that it is an
internal network and there is very little connectivity between
the FBI system and the outside world, which makes security of
that system an easier task to accomplish. The downside is we
are not interoperable with a lot of areas in the Government.
Mr. Dies. The FBI is a fairly closed system. We have had
the NSA, for example, as late as 90 days ago do a penetration
test. So the fort, if I can call it that, is fairly well
insulated from the outside. That doesn't do a darn thing for
you on the insider threat, however. So if you have an insider
inside the fort, a Robert Hanssen or someone like that, having
the right layers of defense externally, a defense in depth at
the network level, so to speak, is helpful, but insufficient.
You have to have those layers inside your systems. You have to
have the management systems there and the practices. Those can
be strengthened, and should be strengthened, and are part of
the 15 recommended actions from Mr. Senser.
Senator Cantwell. Again, I am surprised at some of this
information that we are so far behind. It is going to take more
than you two gentlemen, so how do we get the new Director and
the mission of the agency to understand the significance of
this, both from a security perspective, but also from an ease
of use and technology perspective?
Mr. Senser. From my standpoint, in terms of security the
attitude and the approach starts from the top. The Director has
got to be very adamant that this is of value, it is important,
and that it will be followed in the agency.
As an example, George Tenant came out and said that his
value of security in counterintelligence is paramount, and that
will be translated throughout the organization based on the
values of the Director. And so by ensuring that Mr. Mueller
also holds that value, then it will start from the top and
change will begin to happen.
Senator Cantwell. Thank you, Mr. Chairman. I do believe
this is such an important issue that we should continue to
monitor this progress and procedures and get more information
particularly as it relates to the security of their network and
the processes that they are undertaking.
My sense is that you are basically turning a big ship
around as it relates to something very critical to the
information, and I am not sure I have seen the resources both
from a manpower perspective and the mission focus in some of
the documents that says we are going to get it turned. But I
appreciate your testimony and honesty this morning.
Chairman Leahy. Thank you.
And I might say while the Senator is still here, Mr. Dies,
you mentioned the NSA penetration effort. If we can be
briefed--I would suspect that would be in a closed hearing, but
to have our secured staff and Senators who want to be briefed
on just what happened in that and where we are.
Mr. Dies. No problem.
Chairman Leahy. I think Senator Cantwell may be one who
especially is at that briefing because she has more expertise
in this than many of the rest of us, but I know I would be very
interested in seeing how that went.
Senator Schumer?
Senator Schumer. Well, thank you, Mr. Chairman, and I want
to thank you for holding the hearing. I apologize to the
witnesses for being in and out of the room. They were marking
up ILSA, the Iranian and Libyan Sanctions Act, in Banking at
the same time that this was going on. I am the sponsor of that.
I want to join my colleagues in asking a whole lot of
questions here. I come as somebody who has been a friend of the
FBI for a long, long time, but yesterday's revelation that
hundreds of FBI firearms and computers have been lost and
stolen is not the first bit of trouble we have seen. If it were
just this last revelation, one would say, OK, they made a
mistake.
But when it is incident after incident after incident and
then there is this one, sub-machine guns missing and a computer
with classified information, you have to say to yourself what
is going on in the FBI? Is something rotten in Denmark?
In a certain sense, it isn't just rifles or sub-machine
guns or laptops with classified information that have somehow
eluded the FBI; it is basic public trust. When I grew up, I was
so proud that America had an FBI, and you would see the TV
shows and everything else like that. And now if you look at it,
to be honest, the FBI is just taking a beating.
One survey reports that 40 percent of the public views the
FBI less favorably than before, while 36 percent express doubts
about the honesty of the FBI's methods. That is pretty
fundamental and pretty frightening. Another poll showed that
Americans have twice as much confidence in their local police
as they do in the FBI, even though the most FBI is the most
sophisticated and well-financed investigative agency in the
world and was once the crown jewel of law enforcement.
I always ask about law enforcement; I care about it. It has
been a good part of my career. I asked someone very active in
one of the homicide bureaus in New York City what they thought
of the FBI, and the answer was that they would rather have a
New York City Police detective on a homicide case now than an
FBI agent because the FBI agent had so many bosses to report to
and so many hoops to jump through that they were losing
effectiveness.
I think somebody said it here, but in a certain sense the
FBI has become a place where the sum is less than the parts.
The individual agents are great. The individual personnel from
the bottom to the top are great. Like Orrin Hatch, I have been
an admirer of Louis Freeh, even though I have disagreed with
him on certain things. But when you add it all up and put it
together, something is wrong. Perhaps it has expanded too
quickly. Perhaps the focus has been on new things like
terrorism, where you have done a very good job. But something
is wrong.
But I still have hope. I believe that while the FBI may be
down right now, it is certainly not out. The personnel are too
good, the tradition is too strong, and the Bureau functions are
so much more needed today than they even were 20 or 30 years
ago that we still want it to work.
I believe the President's appointment of Bob Mueller will
give the FBI just what it needed, a serious, conscientious
person who knows how to burrow through, who is very familiar
with law enforcement, who doesn't have a big name and a
different agenda, but who will roll up his sleeves and get down
in there.
I guess what I would say to sum it up in a certain sense is
that the FBI's recent struggles remind me of Tiger Woods. He is
the greatest golfer in the world, but he gets in a slump, and
it is instructive to see what he does when he is struggling. He
goes back to the basics. He starts working on his swing and his
game. He breaks his swing down, builds it back up, and he comes
back better than ever.
With this enormous and now hugely complex agency, that is
what we have to do. It is not just a little thing here or a
little thing there. It is just too much, and so I believe that
the Bureau needs an outside, comprehensive review from all
angles. And I know that our Chairman has been pushing this kind
of thing, and this hearing is indicative of it.
Last month, Senator Hatch and I introduced the FBI Reform
Commission Act. The bill will set up a blue-ribbon commission
of law enforcement experts to look at all aspects of the FBI.
This is not just an annual check-up. About once every 5 years,
at least when you get to be my age, you go to a physician and
you get a top-to-bottom. They look at you, they turn you inside
out, they poke you in every different place to see how you are.
That is what the FBI needs, not every 5 years, but certainly
every 20 or so.
That is what this commission is supposed to do. It is more
than a tune-up; it is a fundamental and structural examination
to look at what kind of overhaul is needed. It will operate
outside the FBI. It should be composed of law enforcement
experts who don't have an axe to grind.
We do a good job here. There is no one better than the
Chairman at being fair in holding hearings, but we can't hold
hearings everyday on every segment of the FBI. That is why I
feel this kind of comprehensive look is needed, and I hope we
can do it. I have introduced this, as I mentioned, with my
friend Orrin Hatch, from Utah. It is hardly partisan. Both of
us have been regarded as pro-law enforcement.
I guess my question to all three of you is what is your
view--I am not asking you to comment on our specific
legislation, but what is your view of the need, given that we
have had so many different mistakes, for an outside look by
experts, you know, a 6-month or a 9-month look?
I asked Mr. Mueller this, and he is obviously not allowed
to say that much right now in the sensitive time that he is,
but I think he was very positively disposed toward something
like this.
So I would first ask Ray Kelly, who is not with the agency
and is somebody who is a great law enforcement leader, and then
Mr. Dies and Mr. Senser what they think of that type of idea.
Mr. Kelly. Senator, I think that idea is sound. I must say
I have had only positive experiences with the FBI for a long
time. The thing that comes most readily to mind is the World
Trade Center bombing. I was Police Commissioner of New York
when that took place. We worked very closely with the FBI. I
have had great admiration for them and a lot of friends of mine
are in the Bureau. But I think every organization can use an
examination like that. I think it is wise, so I certainly
support the concept.
Senator Schumer. I would just say to you, Mr. Kelly, an
example of how good the FBI is in the World Trade Center
bombing and in terrorism. Back in 1993, I had been always
focused a little bit on the terrorism issue and I said we are
going to have some kind of incident here, and unfortunately it
happened much worse than anybody thought in terms of the World
Trade Center.
At that point, the FBI, not due to itself--they had been
under pressure from Congress and had taken all sorts of people
out of counterterrorism and all these other things, and they
were really weak. And they built themselves up, and I think
everyone who has looked at the counterterrorism measures that
the FBI has taken gives them an A or an A-plus, and that is
what gives us so much hope in the agency. It just seems that in
some of the basic and other more fundamental areas, they do
need that reexamination, restructuring and revivification, if
you will.
What do you think of it, Mr. Dies? Just a general comment
because I know you can't comment on specific legislation.
Mr. Dies. I understand. I am not a law enforcement
professional, but I think back to the laboratory at the FBI
which got in serious trouble. They brought in an outsider to
run it, Dr. Kerr. I think they understand that the base
technology they provide to their agents is insufficient. The
security things aren't there. As a private citizen, that was a
scary thought to me, and perhaps I can help for a couple of
years and get them started.
In the security operations, you have a CIA fellow sitting
to my left. I think there is value in an agency--whether it is
hiring external management for a period of time or whether it
is oversight and other ideas, any company, any agency can
benefit from ideas and inspection. It is how you choose to do
that, and the choice on that is yours.
Senator Schumer. Mr. Senser?
Mr. Senser. Senator, I also agree that outside ideas and
perspectives bring value to the organization, so it should be
welcomed.
Senator Schumer. Mr. Chairman, I thank you. I know these
witnesses have been here a long time, as have you. I do have
one or two other specific questions and I would ask permission
to submit those in writing.
Chairman Leahy. Thank you, and the record will be open for
that.
We will recess for just 2 minutes to give the panels a
chance to change. I want to thank Commissioner Kelly, Mr. Dies
and Mr. Senser for being here. As you can tell from the
questions, we will probably see you again, as we are going to
be doing some follow-up. Some of the things we have suggested
will have to be done in a classified session and we will
arrange a time when we can do that in a secure room.
Mr. Kelly, it is always good to have you here. You have
honored law enforcement in each of the hats you have worn and I
appreciate you being here.
[The Committee stood in recess from 12:23 p.m. to 12:29
p.m.]
Chairman Leahy. We will put a statement by Senator Kohl and
a statement by Professor Samuel Walker and a September 1999
report by the FBI Law Enforcement Ethics Unit on double
standards mentioned in the testimony, in the record.
I am delighted, Mr. Roberts, Mr. Werner, Mr. Perry, and Mr.
Kiernan, that you are here. I apologize that it has taken
longer than I thought and I appreciate you spending the time to
sit here. It is an important hearing. I am already getting
calls from a number of the Senate offices that have been
watching it on our closed circuit TV, so the hearing is
generating a great deal of interest.
Mr. Roberts, why don't we begin with you, sir?
STATEMENT OF JOHN E. ROBERTS, UNIT CHIEF, OFFICE OF
PROFESSIONAL RESPONSIBILITY, FEDERAL BUREAU OF INVESTIGATION,
WASHINGTON, D.C.
Mr. Roberts. Mr. Chairman, thank you very much. I
appreciate the opportunity to appear before the Committee to
discuss serious issues facing the Federal Bureau of
Investigation, and in particular what we collectively do and
can do to make the FBI better, restoring credibility to this
great organization. Of significant importance is the ability of
the FBI to conduct aggressive, objective internal
investigations. Therefore, the protection of those employees
assigned internal affairs work for the FBI needs to be
considered.
I am grateful to be an FBI employee. I am proud to be
associated with the tremendous men and women of this great
organization. The efforts of the agents and support personnel
are remarkable, and the work that is conducted by this
organization everyday is impressive.
I am currently the Unit Chief for Internal Investigations
in the Office of Professional Responsibility, the internal
affairs component of the FBI. The support and agent employees
assigned to OPR are competent, dedicated and hard-working. I am
proud to serve with them.
Resources in the OPR of the FBI, not unlike any other
organization, are strained. In what was a record number of
internal investigations in 2000, OPR supervisory special agent
positions were recently reduced by three. This is a reduction
difficult to understand, given the record number of internal
investigations conducted by OPR and the need to conduct ethics
training.
Like so many employees in the FBI, I have served in a
number of assignments. In 1995, I was named as one of two
inspectors in charge of the Ruby Ridge investigation, an
investigation conducted under the direction of the OPR for the
Department of Justice and the Acting United States Attorney for
the District of Columbia.
Today, you have before you individuals who have substantial
experience in FBI internal affairs investigations. I am
concerned with the perception of a double standard in the FBI's
disciplinary process and the consequences for those FBI
employees who conduct such investigations. I believe the
ability to conduct complete, objective and competent
investigations and the leadership of the FBI has been
questioned.
Of concern to me, and what should be of concern to others
is the apparent deference paid to Senior Executive personnel
who are found to have violated FBI policy, rules and
regulations. There is the perception that a double standard of
punishment exists in the FBI. This should be alarming to all of
us because not only is it fundamentally unfair, but more
important, if the rank-and-file of any law enforcement
organization believes that their executive management condones
or approves of misconduct, that is a precursor for corruption,
and that, sir, is destructive.
I would like to briefly comment on two high-profile FBI
internal investigations, the Ruby Ridge incident and subsequent
investigations into allegations of misconduct on the part of
FBI employees and a retirement party attended by senior
executives who falsely claimed reimbursement for travel to that
event.
Most people are aware of the August 1992 incident at Ruby
Ridge, Idaho, involving the FBI and other law enforcement
agencies. In 1993, following a trial in this matter, the
Department of Justice and the FBI initiated inquiries into
numerous allegations of misconduct by Government personnel in
connection with the standoff at Ruby Ridge. These inquiries
resulted in disciplinary action in January 1995 against
numerous FBI employees.
In May 1995, the Department of Justice Office of
Professional Responsibility received a letter from one of the
FBI employees disciplined in that matter alleging that the
person selected by the FBI to head the Ruby Ridge inquiry had
manipulated the inquiry to find scapegoats and to avoid holding
higher-ranking FBI officials responsible for the August 1992
events at Ruby Ridge, and that the person heading the inquiry
had purposefully attempted to steer the inquiry away from any
findings unfavorable to higher-level executives in the FBI.
In May 1995 while I was serving in the Boston Division of
the FBI, personnel from OPR, Justice Department, met with the
Director of the FBI, telling him that an investigation into
these most recent allegations was necessary. The Department of
Justice personnel from OPR requested Mr. John L. Werner, to my
left, and me to conduct the investigation. The Director of the
FBI agreed to this request and ordered that Mr. Werner and I
conduct the investigation, along with the Office of
Professional Responsibility, Department of Justice.
In May 1995, we were assigned to the Department of Justice,
and shortly thereafter we were named inspectors in charge of
the Ruby Ridge investigation, the second investigation of the
Ruby Ridge incident. After reviewing the reports prepared
during the first Ruby Ridge investigation, Mr. Werner and I
concluded that crucial interviews were not conducted and very
serious allegations of misconduct not thoroughly investigated.
These investigative failures resulted in a flawed
investigative report. In my opinion, had a thorough and
competent investigation been conducted in the first
investigation, there would not have been a need for a second
investigation.
For example, crucial interviews were not conducted of all
employees assigned to the Strategic Information Operations
Center, commonly known as the SIOP. It is the command center
for the FBI which was staffed 24 hours a day during the Ruby
Ridge incident by numerous employees. Interviews of employees
assigned to the SIOP were conducted, but there was not a
written record made of those interviews.
Additionally, information surfaced during the first
investigation that there was an After Action Conference
following the Ruby Ridge incident and an After Action Report
may have been prepared. The After Action Report could not be
located and the investigation did not pursue that evidence. As
we know now, the report was destroyed and a senior executive
was convicted for his part in the destruction of that document.
In approximately September 1995, this investigation was
referred to the Acting United States Attorney for the District
of Columbia and continued until July 1997. This investigation
again resulted in the conviction of an FBI senior executive for
the destruction of the After Action Report.
At the conclusion of the criminal investigation, I
requested that the Acting United States Attorney for the
District of Columbia refer to the Office of Professional
Responsibility, Department of Justice, certain allegations of
misconduct that arose during the investigation but did not rise
to the level warranting criminal prosecution. Those referrals
were made.
In September 1997, under the direction of the Department of
Justice, there was an administrative investigation commenced
into those allegations. In June 1999, the investigation was
completed and the findings, along with recommendations for
discipline, were forwarded to the Department of Justice,
Justice Management Division, by the Justice Department OPR. In
January 2001, the Assistant Attorney General for Administration
of the Department of Justice found no misconduct on the part of
FBI employees.
In the Ruby Ridge matter, Mr. Werner and I investigated
allegations of serious misconduct on the part of some senior
executives who were very popular individuals. As such, they had
a great deal of support from many in the FBI. Consequently,
almost immediately upon being assigned to the Ruby Ridge
investigation, a senior executive in the Boston Division where
I was assigned demanded that I return to the Boston Division
and discontinue my assignment to the Ruby Ridge investigation.
When I told him that was not possible, he threatened to go
to the Deputy Director of the FBI and have me removed from the
investigation. This senior executive questioned the need for
the investigation and his behavior escalated to where he wanted
virtually nothing to do with me and then set out to take out
his anger on my wife, a support employee in the Boston
Division. The senior executive's actions against my wife and me
required that we be transferred from that division.
Throughout the assignment to the Ruby Ridge investigation,
Mr. Werner and I received what we perceived to be threats from
senior executives. We were told that we did not work for the
FBI.
I see that my time is up.
Chairman Leahy. No, that is all right. Go ahead.
I was just going to say nobody is more cooperative with
photographers than I am, but why don't you take the pictures
you need and then let us have the witness table to ourselves?
You have become sort of an integral part of it. Using 180-,
200-, 300-millimeter lenses, you don't have to be right on top
of the witnesses. It is pretty distracting for those of us up
here. If you could do it in a way that you don't block either
the witnesses or us, you are welcome to stay, but the hearing
is primarily so that the Senate can get this information.
Go ahead, Mr. Roberts.
Mr. Roberts. Mr. Werner received what we perceived to be
threats from some senior executives. We were told that we did
not work for the FBI, that our assignment to the Ruby Ridge
investigation could have an impact on our careers, and that
being assigned to the investigation would not be good for us in
the end. At one point, a retired senior executive made the
comment that the assignment to the Ruby Ridge investigation was
not good for my career.
I bring this information to light just to illustrate the
effort on the part of some senior executives, not all, but some
to have Mr. Werner and me removed from the Ruby Ridge
investigation. What occurred during the Ruby Ridge
investigation should not be viewed as an isolated incident.
There are various subtle and not so subtle actions taken which
may impact an employee's career.
The second one was a retirement party and was initiated in
late 1997 based on allegations that senior executives traveled
to the retirement party and submitted expense vouchers
containing false information. This investigation found that
false vouchers were submitted by these individuals, but the
adjudication findings by their peers were that these employees
failed to pay attention to detail. And they received letters of
censure, a relatively light disciplinary action. Similar cases
of voucher fraud committed by non-Senior Executive personnel
result in different findings, harsher punishment.
It is significant to point out that there has been a change
to the disciplinary process so that senior executives now are
part of one disciplinary process for the FBI, which is a
tremendous effort and I think it is applauded by all.
I believe that arrogance is a great part of the problem in
the FBI today. Oversight is the first step and, for most, a
welcome step in renewing confidence in the FBI. The cure for
the FBI's problems is strong leadership. What we in the FBI
have to learn is that protecting the organization rather than
acknowledging errors up front is not always the best course of
action. Hoping that problems will go away or that no one will
find out about the mistakes is destructive.
Although we in the FBI refer to the organization as ``our
FBI,'' in fact, the FBI belongs to all of us in this great
country. We serve the American people and they have an absolute
right to an FBI that is corruption-free and operates at a high
expectation of excellence.
The Ruby Ridge and the retirement party matters completely
destroy any concept of fundamental fairness. In my opinion, it
is one thing to believe that you are the greatest law
enforcement organization in the world, but it is quite another
to voice that opinion. I believe that such statements offend
every other law enforcement officer in the world who places his
or her life on the line each and every day. We need to let our
actions and accomplishments speak to our greatness.
It was during this Committee's hearing in June 2001 that
whistleblower protection for FBI employees was discussed. I do
not have a great deal of confidence in the protection of FBI
employees for whistleblower complaints. This lack of confidence
is due to in large part to a senior executive representing to
me that he had a visceral dislike for the whistleblower statute
and feels it is a bad law.
I think the belief of this individual is that employees are
able to make allegations that are later proven to be
unsupported by evidence and the employee is protected for those
disclosures. I do not believe that anyone is going to admit to
retaliating against an employee for making protected
disclosures, and it is rare that a smoking gun can be found
which would prove any act of retaliation.
This concludes my testimony. I am more than happy to answer
any questions you may have.
[The prepared statement of Mr. Roberts follows:]
Statement of John E. Roberts, Unit Chief, Office of Professional
Responsibility, Federal Bureau of Investigation, Washington, D.C.
Mr. Chairman, Senator Hatch, and members of the Committee on the
Judiciary:
I appreciate the opportunity to appear before the Committee today
to discuss what I believe are serious issues facing the Federal Bureau
of Investigation (FBI), and, in particular, what we can collectively do
to make the FBI better, restoring credibility to this great
organization. Of significant importance is the ability of the FBI to
conduct aggressive, objective internal investigations of FBI employee
misconduct. Therefore, the protection of those FBI employees assigned
to conduct the internal affairs work for the FBI needs to be
considered.
I am grateful to be an FBI employee and I am proud to be associated
with the men and women of this great organization. The efforts of the
agents and support personnel are remarkable and the work that is
conducted by this organization every day is impressive.
I am currently the Unit Chief (UC) in the Office of Professional
Responsibility (OPR), FBI, responsible for internal investigations, a
position I have held since July 1997. I have served in the Louisville,
Miami and Boston Divisions of the FBI, as a Supervisory Special Agent
(SSA) in the OPR, FBI, the Inspection Staff, Inspection Division, and
as one of two Inspectors in Charge of the Ruby Ridge investigation
under the direction of the OPR, Department of Justice (DOJ) and the
Acting United States Attorney for the District of Columbia.
The OPR, FBI is composed of two Internal Investigative Units
(IfUs), two Adjudication Units (AUs), the Law Enforcement Ethics Unit
(LEEU), and an Administrative Unit, all staffed by competent, hard
working and dedicated SSAs and support employees. The OPR operates
under the direction of an Assistant Director (AD) and a Deputy
Assistant Director (DAD). My responsibility is to review all
allegations of employee misconduct, determine the proper course of
action, and to conduct, or, direct the conduct of all FBI internal
investigations. I am the first phase in the disciplinary process of the
FBI. At the conclusion of the internal investigative phase, the
investigative results are reviewed for completeness by the IIUs and are
referred to the AUs for a decision on the necessity for discipline.
Approximately 75% of all internal investigations are delegated to field
and FBI Headquarters (FBIHQ) divisions for investigation. The remaining
25% of the internal investigations are conducted by the IIUs, because I
have determined that there is an appearance of a conflict, or, actual
conflict with the field or FBIHQ division conducting the investigation,
the allegation of misconduct involves a Senior Executive Service (SES)
employee, or, senior management of the division, the allegation of
misconduct appears to be a matter that may generate substantial public
interest, and when field divisions lack sufficient resources and/or
request OPR's assistance in conducting an investigation. Resources in
OPR, not unlike any other organization, are strained. In what was a
record number of internal investigations in 2000, OPR SSA positions
were recently reduced by three. This is a reduction difficult to
understand, given the record number of investigations conducted by OPR,
the need for an internal affairs component, and the need for the LEEU
to conduct ethics training.
You have before you today individuals who have substantial
experience in FBI internal affairs investigations. I am employee who is
concerned with perception of a double standard in the disciplinary
process in the FBI and the consequences for those FBI employees who
conduct such investigations. I believe the ability to conduct complete,
objective and competent investigations and the leadership of the FBI
has been questioned. Of concern to me is the apparent deference paid to
SES personnel who are found to have violated FBI policy, rules and
regulations. Although it is not likely that non-SES FBI employees know
the results of SES internal investigations and the discipline these
executives receive, it is the perception that there is a double
standard of punishment in the FBI. This should be alarming to all of
us, because if the rank and file of any law enforcement organization
believe that their executive management condones or approves of
misconduct, that is a precursor for corruption.
Therefore, I would like to briefly comment on two high-profile FBI
internal investigations. The first is the Ruby Ridge incident and the
subsequent investigation into allegations of misconduct on the part of
FBI employees. In August 1992, the incident at Ruby Ridge, Idaho,
involving the FBI and other law enforcement agencies, occurred. In
1993, following the trial where Randall Weaver and Kevin Hams were
acquitted, the DOJ and the FBI initiated inquiries into numerous
allegations of misconduct by government personnel in connection with
the standoff at Ruby Ridge. These inquiries eventually resulted in
disciplinary action in January 1995, against numerous FBI personnel.
On May 3, 1995, the OPR/DOJ received a letter from one of the FBI
employees disciplined as a result of this employee's actions at Ruby
Ridge. The employee alleged that the person selected by the FBI to head
the inquiry which resulted in the discipline of this employee, had been
manipulated to find scapegoats and to avoid holding higher-ranking FBI
officials responsible for the August 1992 events at Ruby Ridge. In
particular, this employee alleged that the person heading the inquiry
had purposely attempted to steer the inquiry away from any findings
unfavorable to higher level executives of the FBI.
In May 1995, while serving in the Boston Division of the FBI,
personnel from the OPR/DOJ met with the Director of the FBI and advised
the Director that an investigation into the allegations raised in the
disciplined FBI employee's letter was necessary. The OPRJDOJ personnel
requested the Director to assign Mr. John L. Werner and me to conduct
the investigation. The Director ordered that Mr. Werner and I conduct
the investigation, and, in May 1995, we were assigned to the OPR/DOJ,
and shortly thereafter named as Inspectors in Charge of the Ruby Ridge
investigation, the second investigation of the Ruby Ridge incident, an
investigation that was administrative in nature. Mr. Werner and I
reviewed the reports prepared during the first Ruby Ridge investigation
and concluded that significant interviews were not conducted and
significant allegations of misconduct were not thoroughly investigated.
These investigative failures resulted in flawed investigative results.
In my opinion, had a thorough and competent investigation been
conducted, there would not have been a need for this second
investigation. For example, significant and critical interviews were
not conducted of all employees assigned to the Strategic Information
Operations Center (SIOC), the command center for the FBI which was
staffed 24 hours a day, during the Ruby Ridge incident. Those
interviews, of a few employees assigned to the SIOC, were not recorded
in written form, either in signed, sworn statements or FD-302s, which
is the FBI's report of interview form. Additionally, information had
surfaced that there was an After Action Conference following the Ruby
Ridge incident and a After Action Report may have been prepared. The
After Action Report could not be located and the investigation did not
pursue that evidence. As we now know, the report was destroyed and an
SES employee was convicted for his part in the destruction of that
document.
The Ruby Ridge investigation to which Mr. Werner and I were
assigned became a criminal investigation in approximately September
1995, and continued under the direction of the Acting United States
Attorney for the District of Columbia. That investigation continued
until July 1997, and resulted in the conviction of an FBI SES employee.
At the conclusion of the criminal investigation, I requested that
referrals be made by the Acting United States Attorney for the District
of Columbia to the OPR/DOJ of serious misconduct issues that were noted
during the criminal investigation and which did not warrant criminal
prosecution. These referrals were made and an administrative
investigation was initiated under the direction of the OPR/DOJ in
approximately September 1997. This investigation addressed serious
misconduct allegations against numerous FBI employees, to include seven
SES employees. In June 1999, the investigation was completed and the
findings, along with recommendations for discipline were forwarded by
OPR/DOJ to the Justice Management Division, DOJ, for adjudication. In
January 2001, the Assistant Attorney General for Administration, DOJ,
found that there was no misconduct on the part of FBI employees. I find
this conclusion to be outrageous and I believe anyone who reviews this
matter will find the conclusions alarming.
The Ruby Ridge investigation to which Mr. Werner and I were
assigned investigated allegations of serious misconduct on the part of
some SES personnel who were popular individuals. As such, they had a
great deal of support from many in the FBI. Consequently, almost
immediately upon being assigned to the Ruby Ridge investigation, an SES
employee in the Boston Division where I was assigned, demanded that I
return to the Boston Division and discontinue my assignment to the Ruby
Ridge investigation. When I told him that was not possible, he
threatened to go to the Deputy Director of the FBI and have me removed
from the investigation. This SES employee questioned the need for the
investigation and his behavior escalated to where he wanted nothing to
do with me and then set out to take his anger out on my wife, a support
employee also assigned to Boston Division. This SES employee's actions
against my wife and me required that we be transferred from that
division. Throughout our assignment to the Ruby Ridge investigation,
Mr. Werner and I received, what we perceived to be threats from some
SES personnel. We were told that we did not work for the FBI, that our
assignment to the Ruby Ridge investigation could have an impact on our
careers, and that being assigned to the investigation would not be good
for us in the end. At one point, a retired SES person made the comment
that the assignment to the Ruby Ridge investigation was not good for my
career. I bring this information to light to illustrate the effort on
the part of some SES personnel to have Mr. Werner and me removed from
the Ruby Ridge investigation.
What occurred during the Ruby Ridge investigation should not be
viewed as an isolated incident. There are various subtle and not so
subtle actions taken which may impact an employee's career. For
example, within the last year an SES employee made unprofessional
comments to two Inspectors during an inspection. The comments could
have been interpreted as a threat to influence the careers of the
Inspectors. Additionally, a review of career board activities will
likely reveal that some career board members who have been subjects of
internal investigations will sit in judgement of the investigator who
conducted the internal investigation.
The second investigation I will briefly discuss was initiated in
late 1997, based upon allegations that seven SES personnel traveled to
a retirement party and submitted expense vouchers containing false
information. This investigation found that false vouchers were
submitted by these individuals, but the adjudication findings by their
peers were that these employees failed to pay attention to detail and
they received letters of censure, a relatively light disciplinary
action. Violations such as voucher fraud committed by non-SES personnel
result in different findings and harsher punishment.
It is significant to point out that investigations of alleged
misconduct as that found in the Ruby Ridge and retirement party
matters, can likely result in an employee not being promoted, not
receiving awards, and not receiving a requested transfer. In the two
cases I just discussed, some of the SES employees received promotions
and thousands of dollars in cash awards during the pendency of the
investigations. Recently, the SES disciplinary policy was changed so
that now the FBI has one disciplinary process for all employees.
It is my impression that many in the FBI know of the problems the
organization faces. I believe that arrogance is a great part of the
problem in the FBI today and that oversight is the first step in
renewing confidence in the FBI. All of us in the FBI should welcome
oversight. The cure for the FBI's problems is strong leadership. I am
not sure if a separate Inspector General will be a better solution for
the FBI, or, if the Inspector General for DOJ is the solution. What we
in the FBI have to learn is that protecting the organization is not
always the best course of action. It is better to acknowledge errors up
front, rather than hoping they will go away or that no one will find
out about the mistakes. Although we in the FBI refer to the
organization as our FBI, in fact, the FBI belongs to all of us in this
great country. We serve the American people and they have a right to an
FBI that is corruption free and operates at a high expectation of
excellence. In my opinion, it is one thing to believe that the you are
the greatest law enforcement organization in the world, but it is quite
another to voice that opinion. I believe that such statements offend
every other law enforcement officer in the world who places his or her
life on the line each and every day. We need to let our actions and
accomplishments speak to our greatness.
It was during this Committee's hearing on June 20, 2001, that
Whistleblower protection for FBI employees was discussed. I do not have
a great deal of confidence in the protection of FBI employees for
Whistleblower complaints. This lack of confidence, in a large part, is
due to a senior executive of the FBI telling me that he has a visceral
dislike for the Whistleblower statute and feels that it is a bad law. I
think his belief is that employees are able to make allegations that
are later proven to be unsupported by evidence, and the employee is
protected. Although I do not share this belief, I do not believe that
anyone is going to admit to retaliating against an employee for making
protected disclosures and it is rare that a ``smoking gun'' can be
found.
This concludes my prepared testimony. I am happy to answer any
questions you may have.
Chairman Leahy. Thank you, Mr. Roberts.
I would note for the record that I and other members of
this Committee discussed with the soon to be nominated Director
of the FBI, Mr. Mueller, the fact that there would be this
panel and probably subsequent panels testifying. And I asked
for his personal assurance that he would make absolutely sure
retaliation did not take place. I also made it very clear that
there would be a very strong bipartisan reaction from Senator
Grassley, myself and others if that happened.
I appreciate your testimony, Mr. Roberts. If you could
stand by, we will go to Mr. Werner.
STATEMENT OF JOHN WERNER, BLUE SKY ENTERPRISES OF NORTH
CAROLINA, INC., CARY, NORTH CAROLINA
Mr. Werner. First, I want to thank the Committee and the
Chairman for the invitation to testify here today. I am a self-
employed general contractor in Cary, North Carolina. After more
than 27 years of service, I retired from the FBI in 1999.
During my career, I investigated criminal wrongdoing in
Washington, D.C., served as a foreign counterintelligence
supervisor, worked in the Office of Professional Responsibility
as a supervisor, and supervised the Raleigh resident agency
until my retirement.
Additionally, I had extensive experience in internal
affairs investigations, beginning about 1985. This included my
being the supervisor responsible for the investigation of
alleged wrongdoing against then-FBI Director William Sessions
and his executive assistant.
In another case, with Mr. Roberts, as he has said, I was
ordered back from my office in Raleigh to investigate cover-up
allegations in the Ruby Ridge matter. I was also involved in
numerous other internal investigations of FBI management.
I realize we are here today to address FBI management
reforms and to discuss FBI problems and potential fixes for
these problems. It is important not to forget the dedicated
hard work performed by 26,000 FBI employees who successfully
investigate thousands of cases each year. There are things
broken in the FBI, primarily management-related, but the basics
of how agents conduct their investigations are not broken. The
rank-and-file employees are hitting on all cylinders, albeit
frustrated over the inefficiencies of management, broken or
non-existent information systems, and concerns over being held
to a higher standard than senior management.
Management problems in the FBI begin with the Senior
Executive Service. It would not be fair to suggest all members
of the SES have been engaged in abuses of authority described
herein because the majority are sincere, dedicated law
enforcement professionals who have made many sacrifices for the
Bureau. My remarks are being addressed to that vocal minority
of SES members, often referred to as ``the club'' by street
agents, who are motivated by self-preservation and self-
interest at any cost. For the most part, these SES personnel
are not motivated by the best interests of the FBI.
In testimony before this Committee, former Senator John
Danforth suggested that an element of management misconduct
concerning the failure of disclosing wrongdoing has its roots
in employees' desire not to embarrass the Bureau. While there
may be an element of this involved, I would suggest that
protecting their self-interest is primary and the excuse of not
embarrassing the Bureau is a convenience to justify that
misconduct.
Hiding behind a wall of arrogance, senior managers hold the
belief that they always know what is best for the Bureau. These
SES members are intolerant of any suggestion that their way is
wrong. They use intimidation and retaliation against anyone who
would be so impertinent to challenge their interest.
SES personnel have retailed against agents who have been
assigned investigations of SES misconduct. Special Agent
Roberts has had his career seriously impaired because of his
determined hard work on a number of high-profile cases
involving SES personnel. These retaliatory practices send a
chilling message to any other agent who might be charged with
similar investigations.
There are instances where SES executives have taken action
or avoided action to protect their own from career perils. In
the first investigation of Ruby Ridge, SES inspectors sought to
protect certain fellow peers from administrative discipline by
conducting a sloppy and incomplete investigation. At the same
time, they were most willing to hang lower-tier employees out
to dry.
Another way the SES members protect themselves is by
handling SES misconduct adjudications differently from other
cases. Until recently, the SES Board adjudicated SES matters.
The discipline for SES infractions was typically somewhat less
harsh to much less harsh than that given to non-SES employees
charged with the same offense. This double standard has
debilitated rank-and-file employees' morale and, as will be
noted later, is one of the reasons quality agents are
disinclined to enter the career development program.
There are many recognized root problems in the management
structure of the FBI that senior management has neglected to
seriously address. The SES staff resists changing a system that
benefits them and ensures excessive headquarters control over
field operations. These problems have created disincentives
that dissuade quality agents from participating in career
development.
There are significant barriers that discourage agents from
wanting to participate in career development. For example, to
promote to assistant director, an agent must make a minimum of
six career moves, most requiring family relocation, and at
least three tours of duty at headquarters. This gives
headquarters senior management a stranglehold over these rising
agents, requiring absolute allegiance to the SES staff.
Another FBIHQ issue concerns SES personnel prohibiting non-
agent professional staff from assuming FBI positions that
historically have been filled by agents. Agents are expensive,
scarce resources who are better utilized in the field. Simply
stated, there is an abundance of FBI positions currently filled
by agents that could be more efficiently and economically
filled by support staff on a more consistent and permanent
basis.
In 1998, Special Agent Carl Christiansen, then the
Louisville Division assistant special agent-in-charge, ASAC,
was tasked with conducting a survey of the executive
development selection program to determine what impacts an
agent's decision to participate in management. The following
are a few of the results.
There are far more disincentives than incentives in
participating in career development. There are too many
transfers, inadequate financial incentives, et cetera. FBIHQ
assignments were viewed as very negative because headquarters
work was viewed as clerical, devoid of supervisory
responsibility, and did little to prepare an agent for future
assignments. Agents expressed a reluctance to become involved
in a management system they believed to be hypocritical and
lacking ethics.
SA Christiansen and his Committee identified some of the
underlying reasons for agents' disinterest in career
development. The FBI's organizational structure, culture and
approach to management are no longer suited to today's world.
They recommended that the Director needed to make drastic
changes to the structure and philosophy of management to allow
the organization to adapt more readily to a quickly changing
environment.
When SA Christiansen presented the survey recommendations
to a group of 15 SES employees, the proposals were scoffed at.
To date, only a few minor changes have been made to the CDP as
a result of the survey. Recently, the outgoing president of the
FBI Agents Association, John Sennett, stated in a letter in his
president's column in the FBIAA newsletter, ``Along with better
information automation, the FBI must retool. We must reengineer
our administrative and investigative practices, keep what is
worth keeping. We also have to be aggressive in throwing away
outdated and cumbersome administrative practices that drag down
even the best and most energetic investigator.''
I fully agree with both SAs Christiansen and Bennett. A
holistic overhaul of the entire system is needed, starting with
the multi-tiered, bloated headquarters structure which is not
necessary. The review might start with an eye toward expanding
the management career track in the field to enable a street
agent to rise to ASAC without a transfer to headquarters. New
practices along these lines may begin to attract the FBI's best
and brightest into management.
The blue-ribbon commission proposed by this Committee,
intended to examine all aspects of FBI operations, is a
positive step toward revamping the current system. I would
encourage the commission to research the pros and cons of a
separate pay system for Federal law enforcement. The Office of
Personnel Management researched this in 1993 at the direction
of Congress and issued a report.
The management survey I mentioned above found pay
compression at the top as a disincentive to career development.
In addition, the survey shows that agents believe that anyone
who volunteers to be a manager will become one because they do
not see a valid performance appraisal system that measures
management attributes. An overhaul of the pay system would
address pay compression and performance appraisal issues that
are of great concern to the FBI, the FBI Agents Association,
and other Federal law enforcement agencies.
Due to recent FBI management failures, there has been a
call for increased oversight over the FBI's internal watchdog
functions. The oversight options are as follows: one, continue
to operate the FBI's OPR Division in its present form, with the
addition of an oversight function by the Senate Judiciary
Committee or similar body. Two, expand the oversight of the
Office of Inspector General, Department of Justice, to assume
the functions of the FBI's OPR. And, three, create an Office of
Inspector General in the FBI.
On June 20, 2001, Senate bill 1065 was introduced, calling
for the creation of an inspector general for the FBI. Last
week, Attorney General John Ashcroft expanded the OIG/DOJ
authority to investigate all internal matters for both the FBI
and Drug Enforcement Administration. As a practical matter,
because of the Attorney General's action, I believe only the
last two options remain viable.
In considering these two approaches, I favor the FBI IG
concept, with a very important caveat. The FBI IG's
investigative staff should be comprised of FBI personnel. Based
on my extensive FBI internal affairs experience, I strongly
believe that FBI agents can best effectively investigate their
own. In the FBI's OPR history, the office has never failed to
conduct aggressive, hard-hitting investigations of misconduct,
regardless of the subject's position.
The FBI's OPR has proven its independence and I am
confident that the office would be loyal to the mission of the
IG. Additionally, using FBI personnel who are already in place
is a more cost-effective approach. This is especially
significant when compared to increasing the $42 million budget
of the OIG/DOJ office for additional investigators, training
and staff to handle the increased workload.
The FBI IG approach also preserves an increased element of
independence for the FBI over the OIG.
Chairman Leahy. Mr. Werner, I apologize, but I am going to
have to ask you sum up because we had to leave here at 12:30
and it is now 12:55. So we are running into a little bit of a
problem.
Mr. Werner. The only point I wanted really to make here is
the fact that the independent office within the FBI, the IG
office within the FBI, preserves an element of independence
that I think is crucial to the FBI's functioning as an
investigative agency responsible for the investigation of
Federal--
Chairman Leahy. And you don't see that as contradictory
when you said earlier that many who say they are protecting the
Bureau are actually protecting each other?
Mr. Werner. Sir, I believe that if you charge an office
with that responsibility and it is clear from the Director and
senior management that they have unfettered access to employees
and are given the green light to do aggressive, hard-hitting
investigations, it can be very effective, and has been
effective in the past.
Chairman Leahy. As you know, that is one of the things we
are going to have to wrestle with, so your statement is
extremely valuable to us. We are asking you for your expertise,
having been there. We look at it from the outside. You have
been there on the inside.
[The prepared statement of Mr. Werner follows:]
Statement of John Werner, Blue Sky Enterprises of North Carolina, Inc.,
Cary, North Carolina
I want to thank the Committee for the invitation to testify.
Background
I am a self-employed general contractor in Cary, N.C. After more
than 27 years of service, I retired from the FBI in 1999. During my
Federal Bureau of Investigation (FBI) career, I investigated criminal
matters in Washington, D.C., served as a Foreign Counterintelligence
supervisor, worked in the Office of Professional Responsibility (OPR)
as a supervisor, and supervised the Raleigh Resident Agency until my
retirement. Additionally, I had extensive experience in internal
affairs investigations beginning about 1985. This included my being the
supervisor responsible for the investigation of alleged wrongdoing
against then FBI Director William Sessions and his executive assistant.
In another case, Special Agent (SA) John Roberts and I were ordered
back from our respective field offices to investigate cover-up
allegations in the Ruby Ridge matter. I was also involved in numerous
other internal investigations of FBI management.
Management Issues, Ethical Standards
I realize we are here today to address FBI management reforms,
discuss FBI problems and potential fixes for these problems. It is
important not to forget the dedicated hard work performed by the more
than 26,000 FBI employees, who successfully investigate thousands of
cases each year. There are things broken in the FBI, primarily
management-related, but the basics of how agents conduct their
investigations are not broken. Page 1 of 8
The rank and file employees are hitting on all cylinders, albeit
frustrated over the inefficiencies of management, broken or nonexistent
information systems, and concerns over being held to higher standards
of conduct than senior management.
Management problems begin with the FBI's Senior Executive Service
(SES) personnel. It would not be fair to suggest all members of the SES
have been engaged in abuses of authority described herein, because the
majority are sincere, dedicated law enforcement professionals who have
made many sacrifices for the Bureau. My remarks are being addressed to
that vocal minority of SES members, often referred to as the ``Club''
by street agents, who are motivated by self-preservation and self-
interest at any cost. For the most part, these SES personnel are not
motivated by the best interest of the FBI.
In his testimony before this Committee, former Senator John
Danforth suggested that an element of management misconduct, concerning
the failure of disclosing wrongdoing, has its roots in the employees'
desire to ``not embarrass the Bureau.'' While there may be an element
of this involved, I would suggest that protecting their self-interest
is primary, and the excuse of ``not embarrassing the Bureau'' is a
convenience to justify their misconduct. Hiding behind a wall of
arrogance, senior managers hold the belief that they always know what
is best for the Bureau. These SES members are intolerant of any
suggestion that their way is wrong. They use intimidation and
retaliation against anyone who would be so impertinent as to challenge
their interests.
SES personnel have retaliated against agents who have been assigned
investigations of SES misconduct. Special Agent Roberts, who is here
today, has had his career seriously impaired because of his determined
hard work on a number of high profile cases involving SES personnel.
These retaliatory practices send a chilling message to any other agent
who might be charged with similar investigations.
There are incidences where SES executives have taken action or
avoided action, to protect their own from career perils. In the first
investigation of Ruby Ridge, SES Inspectors sought to protect certain
fellow peers from administrative discipline by conducting a sloppy and
incomplete investigation. At the same time, they were most willing to
hang lower tier employees ``out to dry.'' Another way the SES members
protect themselves is by handling SES personnel misconduct
adjudications differently from other cases. Until recently, the SES
Board conducted SES adjudications. The discipline for SES infractions
was typically somewhat less harsh to much less harsh than that given to
non-SES employees charged with the same type of offense. This double-
standard has debilitated rank and file employees' morale and, as will
be noted later, is one of the reasons quality agents are disinclined to
enter the Career Development Program (CDP).
Management Structure Overhaul
There are many recognized root problems in the management structure
of the FBI that senior management has neglected to seriously address.
The SES staff resists changing a system that benefits them and ensures
excessive headquarters control over all field operations. These
problems have created disincentives that dissuade quality agents from
participating in the CDP.
There are significant barriers that discourage agents from wanting
to participate in career development. For example, to promote to the
level of Assistant Director (AD), an agent must make a minium of six
career moves, most requiring family relocations, and at least three
tours must be conducted at FBIHQ. This gives headquarters senior
management a stranglehold over these rising agents, requiring absolute
allegiance to the SES staff. In addition, these frequent transfers do
not give the Bureau ample time to judge the management ability of its
managers.
Another FBIHQ issue concerns SES personnel prohibiting non-agent
professional staff from assuming FBIHQ positions that historically have
been filled by agents. Agents are expensive, scarce investigative
resources who are better utilized in the field. Simply stated, there is
an abundance of FBIHQ positions, currently filled by agents, which
could be more efficiently and economically filled by support staff in a
more consistent and permanent basis.
In 1998, Special Agent Carl Christiansen, then the Louisville
Division Assistant Special Agent in Charge (ASAC), was tasked with
conducting a survey of the Executive Development Selection Program
(EDSP) to determine what impacts an agent's decision to participate in
management. The following is a sampling of the survey results:
There are far more disincentives than incentives to
participating in the CDP. There are too many transfers,
inadequate financial incentives, etc.;
FBIHQ assignments were viewed as very negative because
headquarters work was viewed as clerical, devoid of supervisory
responsibility, and did little to prepare an agent for future
assignments;
Agents expressed reluctance to become involved in a
management system they believed to be hypocritical and lacking
ethics.
SA Christiansen and his Committee identified some of the underlying
reasons for agents' disinterest in the CDP. The FBI's organizational
structure, culture and approach to management are no longer suited to
today's world. They recommended that the Director needed to consider
drastic changes to the structure and philosophy of management to allow
the organization to adapt more readily to a quickly changing external
environment. When SA Christiansen presented the survey recommendations
to a group of 15 SES employees, the proposals were ``scoffed'' at. To
date, only a few minor changes have been made to the CDP as a result of
the survey.
Recently the outgoing President of the FBI Agents Association
(FBIAA), SA John J. Sennett, stated in the ``President's Column'' in
the Spring 2001 FBIAA newsletter, ``Along with better information
automation, the FBI must re-tool. We must re-engineer our
administrative and investigative practices. Keeping what is worth
keeping, we also have to be aggressive in throwing away outdated and
cumbersome administrative practices that drag down even the best and
most energetic investigator.''
I fully agree with SA's Christiansen and Sennett. A holistic
overhaul of the entire system is needed. This should begin with a
critical evaluation of the true needs of FBIHQ. For example, the multi-
tiered, bloated headquarters structure is not necessary. The review
might start with an eye toward expanding the management career track in
the field to enable a street agent to rise to ASAC without a transfer
to headquarters. New practices, along these lines, may begin to attract
the FBI's ``best and brightest'' into management. The ``Blue Ribbon''
commission proposed by Senate Bill 1074 intended to examine all aspects
of FBI operations is a positive step toward revamping the current
system.
I would encourage the commission to research the pros and cons of a
separate pay system for federal law enforcement. The Office of
Personnel Management researched this matter in 1993 at the direction of
Congress and was the subject of a report, entitled ``Report to Congress
A Plan to Establish a New Pay and Job Evaluation system for Federal Law
Enforcement Officers.'' The management survey, mentioned previously,
found pay compression at the top Page was a disincentive to CPD
participation. In addition, the survey showed that agents believe that
anyone who volunteers to be a manager will become one, because they do
not see a valid performance appraisal system that measures management
attributes. An overhaul of the pay system would address pay compression
and performance appraisal issues that are a great concern to the FBI,
FBIAA, and other federal law enforcement agencies.
FBI Oversight
Due to recent FBI management failures there has been a call for
increased oversight over the FBI's own internal watch dog functions.
The oversight options are the following:
1. Continue to operate the FBI's OPR Division in its present
form with the addition of an oversight function by the Senate
Judiciary Committee or a similar body;
2. Expand the oversight of the Office of Inspector General,
Department of Justice (OIG/DOJ) to assume the functions of the
FBI's OPR; and
3. Create an OIG in the FBI.
On June 20, 2001, Senate Bill 1065 was introduced calling for the
creation of an Inspector General (IG) for the FBI. Last week, Attorney
General John Ashcroft expanded the OIG/DOJ authority to investigate all
internal matters for both the FBI and the Drug Enforcement Agency. As a
practical matter, because of the Attorney General's action only the
last two options remain viable.
In considering these two approaches, I favor the FBI IG concept
with a very important caveat: the FBI IG's investigative staff should
be comprised of FBI personnel. Based on my extensive FBI internal
affairs experience, I strongly believe that only FBI agents can most
effectively investigate their own. In the FBI's OPR history, the office
has never failed to conduct aggressive, hard-hitting investigations of
misconduct, regardless of the subject's position. For example, other
agents and I conducted a thorough investigation of former Director
Sessions, which resulted in his removal from office. The FBI's OPR has
proven its independence, and I am confident the office would be loyal
to the mission of the IG. Additionally, using FBI personnel, who are
already in place, is a more cost effective approach. This is especially
significant when compared to increasing the 42 million dollar budget of
the OIG/DOJ office for additional investigators, training, and staff to
handle the increased work load.
The FBI IG approach also preserves an increased element of
independence for the FBI over the OIG/DOJ concept, while still
establishing appropriate oversight by Congress. Increased control by
the OIG/DOJ could erode that independence in the future. I want to
emphasize that it is absolutely necessary to protect the Bureau's
investigative independence so that its ability to investigate
wrongdoing within the Federal Government is not impaired. An apolitical
FBI is a must. Some of the worst sins committed by senior FBI
management were those acts that created the impression that the FBI was
politicized, such as the Filegate matter.
The problems with expanded control by the OIG/DOJ are considerable.
If the FBI is no longer responsible for investigating internal
wrongdoing, the FBI's ability to maintain strong command over its
operations and employees is weakened. The organization itself is
undermined. The FBI, every law enforcement agency, should be forced to
conduct its own internal affairs investigations in an honest and
straightforward manner. Additionally, the OIG/DOJ personnel would
always be considered outsiders who would never gain the FBI employees'
confidence and cooperation, which are necessary for successful internal
affairs investigations. Non-FBI investigators would be hampered in
their investigative efforts by not knowing the culture, mores,
relationships, and subtle nuances of the FBI environment.
I am hopeful Attorney General Ashcroft will reconsider giving OIG/
DOJ the authority to handle the FBI's internal affairs and support an
FBI IG.
I would be pleased to answer any questions.
Chairman Leahy. Mr. Perry, would you go ahead, please?
STATEMENT OF FRANK L. PERRY, SUPERVISORY SENIOR RESIDENT AGENT,
FEDERAL BUREAU OF INVESTIGATION, WASHINGTON, D.C.
Mr. Perry. Mr. Chairman, you have my statement and I will
be brief and not read it all.
In response to your invitation to appear before the
Committee today, I offer a brief summary of my experience and
what I intend to be and hope are constructive recommendations
for the future of the FBI. These are offered with a sense both
of humility and gratitude for an organization that now needs to
examine itself honestly and with a sense of calling to better
protect human rights and promote the national security.
I joined the FBI as an agent in 1982 and have served in
various divisions, to include Internal Affairs and as the head
of the Office of Law Enforcement Ethics. I have listed in my
statement various other assignments, but I will skip those.
With regard to the purpose of this hearing, I respectfully
submit that I investigated hundreds of OPR matters and was
exposed to about 2,500 such cases over a 5-year period.
In 1992, several of us in OPR began to see a change in the
nature of FBI misconduct. While still a very small percentage
of the agent population, approximately 1 to 2 percent were
involved in substantiated allegations of serious and criminal
misconduct. These substantiated allegations were becoming of a
more premeditated nature, as opposed to misconduct resulting
from poor judgment.
The good news, subsequent to a 6-month, honest look at
ourselves was that we saw no trends of special agents engaging
in civil rights abuses, brutality, drugs, and classic quid pro
quo corruption. We were seeing trends in certain categories
that prompted OPR, comprised totally of FBI agents and with no
prompting from the Department of Justice, to research and
recommend to the Director a comprehensive, proactive ethics
initiative designed to prevent misconduct as opposed to merely
reacting to it. Any such training and culture-changing
initiative could not be muzzled or constrained or covered up in
any fashion. Mr. Freeh agreed, and the program was begun in
1996.
As head of that office, I wanted to look at ways that
policies, programs and training would be meaningful and neither
politically expedient nor mere window dressing. I believe the
internal affairs and training components of the FBI were
beginning to feel better about the course of the FBI due to
this collaborative effort.
During this time, I was asked to investigate the FBI's
investigation of the Ruby Ridge standoff, and after dozens of
interviews and document reviews drafted the results, with the
oversight of the Justice Department's OPR and Justice
Management Division. And I encountered overwhelming candor and
forthrightness from FBI agents, but, sadly, I also encountered
resistance on the part of some senior FBI executives regarding
results that were nothing less than objective and balanced, but
often organizationally unflattering, which were reached based
upon a preponderance of testimony and evidence.
I do not believe there was a conspiracy or systematic plan
to obstruct or cover up. I do believe, because of this case and
so many others to which I was exposed, that the culture of the
FBI is such that, as Mr. Grassley indicated, some senior
executives have been motivated by a desire not to embarrass the
Bureau, as opposed to honoring the mission and purpose of the
FBI--investigate, seek, find, speak and apply the truth.
In my judgment, this tendency does not constitute
corruption. It constitutes a ``made member'' or ``club''
mentality, as Mr. Werner indicated, that has led to the
perception that the organization is oftentimes less than
forthcoming, and circles the wagons rather than squares off and
confronts what are often tragic mistakes as opposed to ethical
wrongdoing.
This culture can be changed without disparaging any
individuals. Senior managers often are rated on issues that
amount to form over substance or image over crime control. I
would therefore suggest that the inspection process, similar to
the OPR process, entail the use of signed, sworn statements to
assess a senior manager's performance and the corresponding
client surveys, as opposed to what is still perceived as a
``blue skies'' or ``contract'' approach.
I would argue that the measures of managerial performance
known as ``effectiveness'' and ``efficiency'' be coupled with
the ethical aspect of management in assessing leadership
competence and advancement. For example, a manager's candid
assessment and attack of a crime problem is more important to
the taxpayer than emphasis on image, accommodation, or
avoidance of violating a compliance issue; that is, making a
mistake.
As William James put it, there are worse things than being
wrong, and Mr. Danforth put the same point before this
Committee as ``. . .making mistakes is not as bad as hiding
mistakes.'' I would add that this self-inspection or
performance process--and this is the first of my two points--
continue to be conducted by selected special agents, with
Department of Justice oversight, assessment and co-inspector
status, the latter of which is not in place now, but would add
to the credibility of the senior management promotion process.
The FBI's internal affairs, or OPR, process historically
has been, in my judgment, a firm and fair process below the
senior executive level. This view prompted me to ask Mr.
Kiernan to research whether the FBI had a double standard of
discipline, as perceived by many--and you have that report, I
believe--such that senior executives were not held to a higher
standard of professional responsibility and accountability
pursuant to substantiated allegations of misconduct.
A 10-month study, which was scrutinized in detail by Mr.
Freeh and his direct subordinates, showed a double standard, or
certainly what was perceived to be one by the ran-and-file. As
a result, Mr. Freeh formally changed the form and content of
senior executive discipline and accountability in August of
2000, as you, Mr. Leahy, alluded to at the beginning of this
session.
This was a step in the right direction, but I am not
convinced that this policy changed the culture problem we are
here to address. This tendency by some to allow, if not
promote, the culture of reluctance to recognize sincere,
objective and unselfish attempts to better the organization
must be addressed and monitored by the next Director.
I believe Mr. Freeh tried, and succeeded to some measure.
He commented to me once, out of frustration, that some senior
executives complained to him that he was over-emphasizing
``this integrity thing.'' This type of comment does not
represent the majority opinion of senior managers. It is
symptomatic of the culture that, while emphatically not
corrupt, is complacent, if not resistant to ethical oversight.
So my last point: Internal discipline should be
investigated by FBI agents, with the oversight of an artful and
vigilant, though not zealot, OPR entity of the Department of
Justice or the OIG. ``Physician, heal thyself'' is not an
inappropriate analogy in this context. I see no need for a
separate OIG, though I am aware that this is the minority
opinion on that point.
Special agents respond better to special agents and are
more forthcoming, and fear peer review more than review by an
outside agency. It is my understanding that in the military
court martial setting, many defendants prefer facing an
independent magistrate rather than a jury of their peers.
This culture is not to be construed as part of the cover-up
or ``circle the wagons'' culture. This tenet of internal
discipline comes from professional pride, not arrogance, in
that with the FBI's expanding jurisdiction, which includes
investigation of so many other Government agencies, it is a
contribution to esprit de corps to know that Congress and the
White House allow us to investigate ourselves using, with
oversight, a higher standard of honesty and fairness. Such
moral freedom, as it were, may sound high-minded, but I have
seen this process, with the appropriate leadership and
Department of Justice oversight, work amazingly well, firmly,
fairly, and without zealotry or political influence.
The Criminal Division of the Department of Justice, not
OPR, had oversight of the original Ruby Ridge matter, and the
Justice Management Division of the Department adjudicated the
last of the administrative inquiries. Even so, it is FBI agents
that you have called before you today, who are responding to
your request to truthfully attest to internal problems, and I
believe that to be significant.
In closing, distinguished members, my experience, my
research and my conscience lead me to believe that we have a
healthy baby and need not throw it out with the bath water we
are examining. The FBI does need to come to recognize, as the
ancient Greek thinkers knew, that a preoccupation with being
``the best'' can indeed be an enemy of the good.
I have spoken to these issues in an article published in
February of this year by the FBI's own Law Enforcement
Bulletin, copies of which I believe you have requested and have
been provided, so I will not go into these recommendations
here.
We do expect of our leadership and all of our managers and
agents and professional support the realization in all of our
policies of hiring, promotion and crime-fighting that a morally
good FBI is the best FBI, and that the way to maintain the good
we have done, but become better all the while, is to put
justice, fairness and the truth over considerations of image,
career and accommodation. We know what to do. We require the
collective will, culture and leadership to consistently do it.
[The prepared statement of Mr. Perry follows:]
Statement of Frank L. Perry, Supervisory Senior Resident Agent, Federal
Bureau of Investigation, Raleigh, North Carolina
Mr. Chairman and Distinguished Members of the Committee:
In response to your invitation to appear before the Committee
today, I offer a brief summary of my background and FBI experience, and
what I intend to be and hope are constructive recommendations for the
future of the FBI. These are offered with a sense of both humility and
gratitude for an organization that now needs to examine itself honestly
and with a sense of calling to better protect human rights and promote
the national security.
I joined the FBI as a Special Agent in 1982, and have served in the
Charlotte and Tampa Divisions, Washington Field Office, and FBI
Headquarters, working organized crime, narcotics, domestic and
international terrorism, and counterintelligence. After a three year
tour of duty as an undercover agent for the National Security Division,
I was selected as a supervisor for the FBI's Internal Affairs Division
(Office of Professional Responsibility (OPR)), where I served for five
years. In 1996, I was appointed by the Director as head of the Office
of Law Enforcement Ethics at the FBI Academy, Quantico, Virginia. I am
currently the Supervisory Senior Resident Agent of the Raleigh Office,
which reports to the Charlotte Division.
With regard to the purpose of this hearing, I respectfully submit
that I investigated hundreds of OPR (Internal Affairs) matters and was
exposed to about 2,500 such cases over a five year period. In 1992,
several of us in OPR began to see a change in the nature of FBI
misconduct. While still a very small percentage of the Agent population
was involved with substantiated allegations of serious and criminal
misconduct (one to two percent of the entire Special Agent and
management population), the substantiated allegations were becoming of
a more premeditated nature, as opposed to misconduct resulting from
poor judgment. The good news subsequent to a six month honest look at
ourselves was that we saw no trends of Special Agents engaging in civil
rights abuses, brutality, drugs, and classic or quid pro quo
corruption. We were seeing trends in certain categories that prompted
OPR, comprised totally of FBI SAs, and with no OPR/DOJ prompting, to
research and recommend to the Director a comprehensive proactive ethics
initiative designed to prevent misconduct as opposed to merely reacting
to it when it occurred. Any such training and culture-changing
initiative could not be muzzled or constrained or covered up. Mr. FREEH
agreed, and the program was begun in 1996.
As head of that office, I wanted to look at ways policies, programs
and training would be meaningful and neither politically expedient nor
mere window dressing. As a result, we drafted a curriculum that
attempted to understand the moral foundation of the Constitution to
which we gave an oath to defend. We wanted our recruits to come to see
their work as a calling to defend human rights, which often involved
the paradoxes of undercover work and other law enforcement-specific
moral dilemmas, emphasizing that justice means nothing without the
complete truth eventually coming out in the discovery and courtroom
setting. Such understanding and practice prevents corruption, while
maintaining the highest performance and prosecutorial standards. I
believe the Internal Affairs and Training components of the FBI were
beginning to feel better about the course and future of the FBI.
During this time, I was asked to investigate the FBI's
investigation of the RUBY RIDGE standoff, and after dozens of
interviews and document reviews, drafted the results with the oversight
of the Justice Department's OPR and Justice Management Division (JMD).
I encountered overwhelming candor and forthrightness from FBI Agents,
but sadly I also encountered resistance on the part of some senior FBI
executives regarding results that were nothing less than objective and
balanced, but often organizationally unflattering, which were reached
based upon a preponderance of testimony and evidence. I do not believe
there was a conspiracy or systematic plan to obstruct or cover up
results. I do believe, because of this case and so many others to which
I was exposed while in OPR, that the culture of the FBI is such that,
as one of the members of this Committee has put it, some senior
executives have been motivated by a desire not to embarrass the Bureau,
as opposed to honoring the mission and purpose of the FBI: investigate,
seek, find, speak, and apply the truth. In my judgment, this tendency
does not constitute corruption. It constitutes a ``made member'' or
``club'' mentality that has led to the perception that the organization
is oftentimes less than forthcoming, and circles the wagons rather than
squaring off and confronting what are often tragic mistakes as opposed
to ethical wrongdoing.
This culture can be changed without disparaging any individuals.
Firstly, an organizational obsession with compliance issues at the
expense of fundamental case-making as a result of aggressive, honest,
investigative effort, must be changed. Senior managers often are rated
on issues that amount to form over substance or image over crime-
control. I would therefore suggest that the inspection process, similar
to the Internal Affairs process, entail the use of signed sworn
statements to assess a senior manager's performance and the
corresponding climate surveys, as opposed to what is still perceived as
a ``blue skies'' or ``contract'' approach. I would argue that the
measures of managerial performance known as ``effectiveness'' and
``efficiency'' be coupled with the ethical aspect of management in
assessing leadership competence and advancement. For example, a
manager's candid assessment and attack of a crime problem is more
important to the taxpayer than emphasis on image, accommodation or
avoidance of violating a compliance issue (i.e. making a mistake). As
William James put it, there are worse things than being wrong (Mr.
Danforth put the same point before this Committee as ``. . .making
mistakes is not as bad as hiding mistakes.''). I would add that this
self-inspection or performance process continue to be conducted by
selected Special Agents, with DOJ oversight, assessment, and co-
inspector status, the latter of which does not currently obtain, but
would add to the credibility of the senior management promotion
process.
The FBI's Internal Affairs historically has been, in my judgment, a
firm and fair process, below the Senior Executive (SES) level. This
view prompted me to ask Mr. KIERNAN to research whether the FBI had a
double standard of discipline as perceived by many, such that senior
executives were not held to a higher standard of professional
responsibility and accountability pursuit to substantiated allegations
of misconduct. A ten month study which was scrutinized in detail by Mr.
FREEH and his direct subordinates showed such a double standard
existed, or certainly was perceived to be so, and as a result, Mr.
FREEH formally changed the form and content of senior executive
discipline and accountability in August of 2000. This was a step in the
right direction, but I am not convinced that this policy changed the
``culture'' problem we are here to address.
This tendency by some to allow if not promote the culture of
reluctance to recognize sincere, objective, and unselfish attempts to
better the organization must be addressed and monitored by the next
Director. I believe Mr. FREEH tried, and succeeded to some measure. He
commented to me once out of frustration that some senior executives
complained to him that he was over emphasizing ``this integrity
thing.'' This type of comment does not represent the majority opinion
of senior managers. It is symptomatic of the culture that, while
emphatically not corrupt, is complacent if not resistant to ethical
oversight.
So, my last point: internal discipline should be investigated by
FBI Agents, with the oversight of an artful and vigilant though not
zealot, DOJ entity, be it OPR or the OIG. ``Physician, heal thyself' is
not an inappropriate analogy in this context. I see no need for a
separate OIG, though I am aware this is the minority opinion on that
point. Special Agents respond better to Special Agents and are more
forthcoming and fear peer review more than review by an outside agency.
It is my understanding that in the military court martial setting, many
defendants prefer facing an independent magistrate rather than a jury
of their peers. This culture is not to be construed as part of the
cover up or ``circle the wagons'' culture. This tenet of internal
discipline comes from professional pride--not arrogance--in that with
the FBI's expanding jurisdiction which includes the investigation of so
many other government agencies, it is a contribution to esprit de corps
to know that Congress and the White House allow us to investigate
ourselves using, with oversight, a higher standard of honesty and
fairness. Such ``moral freedom'' as it were may sound high-minded, but
I have seen this process, with the appropriate leadership and DOJ
oversight, work amazingly well: fairly, firmly, and without zealotry or
political influence. The Criminal Division of DOJ, not OPR, had
oversight of the original Ruby Ridge matter, and the Justice Management
Division of DOJ adjudicated the last of the administrative inquiries.
Even so, it is FBI agents that you have called before you today, who
are responding to your request to truthfully attest to internal
problems, and I believe that to be significant.
Distinguished members, my experience, my research, my conscience
lead me to believe that we have a ``healthy baby'' and need not throw
it out with the bath water we are examining. That baby, the FBI, does
need to come to recognize, as the ancient Greek thinkers knew, that a
preoccupation with being ``the best'' can be an enemy of ``the good''.
I have spoken to these issues in an article published in February of
this year by the FBI's own Law Enforcement Bulletin, copies of which I
believe you requested and have been provided, so I will not detail
these recommendations here. We do expect of our leadership, mid-level
managers, special agents, and professional support, the realization in
all our policies of hiring, promotion, and crime fighting that a
morally good FBI is the best FBI, and that the way to maintain the good
we have done but become better all the while is to put justice,
fairness, and the truth over considerations of image, career, and
accommodation. In fact, the best image for an organization is derived
from its efficacy, and that in turn from its professional ethics. We
know what to do; we require the collective will, culture, and
leadership to consistently do it.
Chairman Leahy. Thank you.
Before we go to Mr. Kiernan, I understand each of you have
family members here today. Is that correct?
Mr. Roberts. I have, sir.
Chairman Leahy. Mr. Roberts, who is here?
Mr. Roberts. My wife, Brenda Roberts.
Chairman Leahy. I am glad to have you here.
Mr. Kiernan, you get to be the wrap-up.
STATEMENT OF PATRICK J. KIERNAN, SUPERVISORY SENIOR RESIDENT
AGENT, FEDERAL BUREAU OF INVESTIGATION, WASHINGTON, D.C.
Mr. Kiernan. Thank you, Mr. Chairman. By way of background,
I am currently a supervisory special agent in the Law
Enforcement Ethics Unit at Quantico, Virginia. I have
approximately 15 years in the FBI, the last 3 in that position.
Within that 3-year time period, I spent approximately 14 months
working with the Office of Special Counsel under Senator John
Danforth. I am extremely proud of my 15 years of service to the
FBI.
The Law Enforcement Ethics Unit was established in 1996, as
Mr. Perry stated. In that Unit, I spend the majority of my time
instructing new agents, current agents, FBI support personnel,
as well as police officers from all over the country when we do
some travel, and around the world. The FBI is often looked to
to either initiate or improve law enforcement ethics programs
in these countries.
However, because the FBI is made up of humans, we too have
sometimes fallen short of the excellence expected by the
American public. No one among us is perfect, and I certainly
include myself in that, and we each have to struggle with our
own individual foibles.
One of the additional roles of the Law Enforcement Ethics
Unit is to periodically review the practices, policies and
guidelines of the FBI to ensure the FBI is being fair both to
its own employees and to the American public.
Should we discover a problem, it is our responsibility and
obligation to point it out and correct it. It is my belief that
if the Ethics Unit of the FBI cannot speak the truth concerning
a particular matter and attempt to implement needed change,
what other unit in the FBI would be willing to do that?
In that regard, I came to work on what is now has been
called the SES Report, or the Senior Executive Service
Accountability Report. In that report, there was a perception
among the agent and support population that there was a
perceived disparate treatment between the discipline given the
rank-and-file employee and the Senior Executive Service
management.
Over a 10-month period, I examined cases, I pulled cases. I
looked at statistics, I interviewed knowledgeable personnel
within the FBI's OPR that were aware of specific interviews,
and concluded with a 26-page report that was presented to
Director Freeh on September 1, 1999.
In that report, to the opinion of our unit, the perception
was more than just a perception; it was a reality. We were able
to cite specific cases that, in our mind, did show the
disparate treatment between senior managers and rank-and-file
employees. Some of these cases also showed the great lengths
that senior managers went to in order to mitigate or downgrade
the alleged misconduct of some of their fellow colleagues.
To Director Freeh's credit, he corrected this
inconsistency, and in August of 2000 he changed it, so he
disbanded the Senior Management Board that was reviewing these
cases and created a single disciplinary system for all FBI
employees.
Shortly after this, I was asked to take on the assignment
as the sole liaison for the FBI with the Office of Special
Counsel. Mr. Roberts had initially called me and asked me to
take on this role, despite the fact that he had declined it
based on his previous problems with Ruby Ridge. I was aware of
that, but felt that this was an important assignment and one
that needed to be resolved as quickly as possible so that the
American people would know once and for all what had happened
at Waco.
During the course of my assignment with the Office of
Special Counsel, I was initially assigned to work with the
Office of General Counsel. I believe there was a resistance
there that they still wanted to control the flow of
information. There were certain managers there that I felt were
taking a legalistic approach to the special counsel's
investigation and only wanted to provide what was legally
required, as opposed to all the documents which the Office of
Special Counsel had initially requested.
I believe the OSC agreed with me on this philosophy and, in
fact, subsequently sent approximately 15 investigators over to
the FBI one morning shortly after my assignment began to search
several offices of the Office of General Counsel.
While performing this role, I was guided by one overriding
philosophy, and that was to provide absolutely everything that
had to do with Waco to the Office of Special Counsel so they
could make an informed and independent decision on the
Government's action during that incident. The FBI was not to
make relevancy cuts and not to decide what was important and
what was not.
As a result of taking this what consider ``open the books''
stance, there were occasional disagreements with certain senior
managers, not only in the Office of General Counsel, but other
divisions. People were told not to disclose problematic issues
with me because it would get back to the OSC. I was excluded
from certain meetings that had to do with responding to OSC
requests. Official letters were sent out without my review
because I believe certain managers thought I would object to
the wording. I was referred to as too controversial and, in
short, seen as disloyal for trying to cooperate with the Office
of Special Counsel.
As I was concluding my assignment and looking for other
career opportunities, it was pointed out that it might be best
for me to just return to Quantico and chill out for a while. As
a result of--
Chairman Leahy. I just want to make sure we understand for
the record. The Office of Special Counsel, Senator Danforth,
was there under the direct request and on behalf of the
Attorney General of the United States, who, after all, is over
the FBI. Is that correct?
Mr. Kiernan. That is correct, and in any statement that I
had seen from Director Freeh he always wanted the FBI's full
and complete cooperation with the OSC and that is what I was
going on.
As a result of my time with the Office of Special Counsel,
several potential incidents of misconduct came to my attention.
I forwarded these incidents to the FBI's Office of Professional
Responsibility at the conclusion of my assignment. Three of
those incidents dealt with senior managers. Two of them dealt
with what I considered specifically retaliatory action against
me, and I am content to allow that process to proceed to its
conclusion.
I see my time is up.
Chairman Leahy. Go ahead. I will waive some of my time for
questions. I want you to continue with what happened because
Senator Danforth's efforts in getting the facts from Waco and
your involvement with that is integral to this whole hearing
that we are doing. So I want to hear the rest of that.
Go ahead.
Mr. Kiernan. I believe that some of this criticism we all
hear about in the daily news of the FBI is well deserved. It is
not easy and very frustrating to represent the Ethics Unit of
the FBI, where our goal is to teach the avoidance of many of
these issues, and yet be constantly faced with these when I go
out to instruct either agents or law enforcement officers from
around the country or around the world. It is not easy to
battle people in your own organization when you are just trying
to do the right thing. In an ideal world, the Ethics Unit of
the FBI would never be in conflict with the senior management
of the FBI.
Concerning some suggested improvements, I really strongly
believe that the ethical message that was started by Director
Freeh to the new agents of the FBI never quite made it down to
some of the senior managers of the FBI, and that is where it
really needs to take strong hold and be pulled together.
Unfortunately, career advancement at any cost sometimes becomes
the ultimate goal, and decisions are made for selfish interest
as opposed to the good of the country or the organization.
I would also suggest that the Committee possibly consider
establishing an ethics czar or a senior-level FBI official that
is solely concerned with the ethical implications and
perspective of either a high-level policy decision or
operational decision. There are legal people in place to do
that, administrative procedural people. But if you had one
person that could just sit back and ask the question, is this
really the right course of action for the FBI to take, that
might go a long way toward resolving many of these problems.
Finally, the ethical message itself must be backed up by
action. Simply having a lot of rhetoric will do no good if the
disciplinary system itself is not backed up, including
demotions and dismissals, if that needs to be the case.
Attempting to cover up investigative miscues from the American
public or protect your colleagues from career embarrassment, no
matter how noble the intentions, should be the quickest way to
get fired from the FBI.
In conclusion, I wanted to comment that during a recent
visit to the United States Naval Academy with my family I came
across the Latin phrase ``non sibi, sed patriae,'' which means
``not for self, but for country.'' That is the tone that needs
to be set at the FBI. Each person here today before your
Committee has attempted to do that in the FBI. Countless other
FBI employees do it everyday and live out that philosophy, with
some having paid the ultimate sacrifice. It is for those heroes
and others to come that we here could not simply sit idle and
allow these problems to continue. We all care too much about
this organization.
Hopefully, with your Committee's oversight, a new
administration and a new Director, the FBI can begin its
journey back to becoming the premier law enforcement agency in
the world, one of which the American people can be proud.
Thank you, Mr. Chairman. I am available for questions.
[The prepared statement of Mr. Kiernan follows:]
Statement of Patrick J. Kiernan, Supervisory Special Agent, Federal
Bureau of Investigation
Mr. Chairman, Senator Hatch, and members of the Judiciary
Committee.
Background
I am currently a Supervisory Special Agent of the FBI who works
full-time in the Law Enforcement Ethics Unit (LEEU), based at the FBI
Academy, Quantico, VA. I arrived in this Unit in June 1998 and left for
approximately14 months between November 1999 and January 2001 to work
at FBI Headquarters as the fulltime liaison to the Office of Special
Counsel's (OSC) Waco investigation, led by former Senator John C.
Danforth. Prior to my time in LEEU, I spent 11 %2 years as a Special
Agent assigned to the Dallas Division of the FBI working a variety of
criminal and intelligence assignments. Before joining the FBI, I worked
for two years as an attorney in a small private firm in northern New
Jersey. I am extremely proud of my nearly 15 years of service to the
FBI, especially the last three.
Law Enforcement Ethics Unit
The LEEU was established in 1996 by Director Louis J. Freeh and
originally placed under the supervision of Unit Chief (UC) Frank L.
Perry. Overall supervision of the Unit falls under the FBI Office of
Professional Responsibility (OPR). At the Unit, I instruct New Agents,
current Agents, and FBI support personnel in the importance of always
maintaining high standards, and in never forgetting to place ethics and
integrity at the center of their professional lives. I also have
instructed and met with law enforcement officers from all over the
United States, as well as from foreign countries, including Bulgaria,
Hungary, Macedonia, Montenegro, Albania, Latvia, Egypt, Saudi Arabia,
England, and Ireland. These countries look to the FBI to be the role
model to either initiate or improve their law enforcement integrity
programs. The FBI is often the standard by which others are measured.
However, because the FBI is made up of humans, we too, have sometimes
fallen short of the excellence which is expected and deserved by the
American public. No one among us is perfect. We each have to struggle
with our own individual foibles.
One of the additional roles of the LEEU, when not instructing, is
to periodically review FBI policies, procedures, and guidelines to
ensure that the FBI is being fair to its own employees and to the
American people. Should we discover a problem, it is our responsibility
and obligation to point it out and correct it. It is not a role that we
take lightly, particularly since many times, it may involve taking on a
long-established FBI policy or procedure, which others may have
declined to try to change for fear of negative career consequences or
retaliation. However, my belief is that if the Ethics Unit could not
speak the truth concerning a particular matter and attempt to implement
needed change, what other Unit in the FBI would be willing to do it? It
is this reasoning that has brought me to your hearing today.
Senior Executive Service Accountability Report
During 1999, I was the primary author behind a report entitled
``FBI SENIOR EXECUTIVE SERVICE ACCOUNTABILITY: A HIGHER STANDARD OR A
DOUBLE STANDARD?'' The Ethics Unit had heard on numerous occasions of a
perceived double standard in the administration of discipline between
FBI senior managers and rank and file employees. This was an issue that
needed to be reviewed and challenged if true. Over a ten month period,
cases were reexamined, statistics analyzed, and interviews conducted
with knowledgeable personnel from the FBI OPR. The final report was
handed to Director Freeh on September 1, 1999 by UC Perry.
The findings from the report revealed that disparate treatment did
exist between senior managers and the rank and file FBI employees.
Instead of senior managers receiving greater discipline for an
infraction, as one might expect because of their greater
responsibilities, they oftentimes received less or even none. Specific
cases were cited to illustrate the great lengths fellow senior managers
went through to mitigate or downgrade the alleged misconduct. A
recommendation was made to disband the special senior manager board,
which reviewed all senior manager cases for discipline. To Director
Freeh's credit, he corrected this inconsistency. In August 2000, he
disbanded the senior manager board and created a single disciplinary
system by which all FBI employees would have their cases adjudicated.
Office of Special Counsel Liaison Assignment
In November 1999, I was asked by Senator Danforth to become his
sole liaison to the OSC investigation. He was initially experiencing
some problems in obtaining the FBI's full cooperation. In the Ethics
Unit, we realized the last thing the FBI should be doing was to hinder
or obstruct an outside investigation where the Bureau was accused of
covering up the facts. Every statement I read from the Director was
that the FBI was pledging its ``full and complete cooperation'' toward
the OSC. Anything short of that would only make the OSC and the
American public more suspicious of the FBI. This lack of cooperation
was not the posture to be taking while attempting to gain back the
public's trust. Without that trust, the FBI will never be able to
accomplish its law enforcement mission.
As you may be aware, UC John E. Roberts, FBI OPR, declined this
same liaison role because of how he had been treated after leading an
outside criminal investigation against several of his colleagues within
the FBI. UC Roberts believed his association with the earlier Ruby
Ridge investigation had not made him any new friends in the FBI, and in
fact had harmed his future career opportunities because of the findings
and some of the confrontational interviews he needed to conduct. UC
Roberts made me aware of his previous problems before I accepted the
OSC assignment. At the time, I believed that the public did not fully
understand everything that had happened at Waco and I wanted to be
involved in a short-term high profile investigation which hopefully
would clear it up once and for all.
Interaction Within The FBI
My assignment as the new liaison to Senator Danforth seemed to meet
with immediate resistance from the FBI's Office of General Counsel
(OGC), who I believe still wanted to maintain control of the flow of
information. When it was pointed out to Director Freeh that there was a
conflict of interest with assigning me to the OGC, as some of their own
personnel and practices were under investigation, he changed my
reporting to the FBI's Inspection Division. Although I was placed in a
different Division, the OGC was still coordinating the retrieval and
release of FBI documents to the OSC. Accordingly, I continued to have
almost daily contact with the OGC. Initially, certain managers took the
position that they were only going to provide what was legally
required, as opposed to disclosing all Waco documents, which the OSC
had requested. This stance was similar to an adversarial legal
proceeding. This attitude was unacceptable to the OSC and they signaled
this displeasure to the FBI by ``visiting'' on the morning on December
16, 1999 with approximately 15 investigators to search several offices
of the OGC. Ultimately, although the process was definitely rocky, I do
believe the OSC received full disclosure of any documentary evidence
the FBI had in it's possession and their conclusions regarding the
events at Waco were correct.
While performing my role as OSC liaison, I was guided by one
overriding philosophy. The OSC was to be provided with absolutely
everything that had to do with WACO so they could make an independent
and informed decision about the government's actions during that stand-
off. The FBI was not to make decisions regarding the ``relevancy'' of
the information. That was for the OSC to decide. That is how I
understood the phrase ``full and complete cooperation.'' I was trying
to resolve issues with an eye toward the long-term best interests of
the FBI and the nation, not a short-term expedient ``quick fix.''
Unfortunately, not everyone I dealt with at the FBI had this same
mindset.
As a result of taking this ``open the books'' stance, there were
occasional disagreements with some senior managers from the various FBI
Divisions. As a mid-level manager, I believe many in senior management
were insulted that I was coming into their Divisions and requiring
nothing short of total cooperation with the OSC. While some resented me
for it, I believe many other dedicated Bureau employees realized this
was the proper course of action, no matter how embarrassing the initial
disclosures might be. Yet, people were told not to disclose to me
problematic issues because the revelation would get back to the OSC. I
was excluded from meetings which discussed responding to OSC requests.
Official letters were sent out without my review because I believe
certain managers felt I would object to the language or wording, if it
was not completely honest and forthcoming. I was referred to as ``too
controversial'' and in short, seen as disloyal to the FBI for
attempting to cooperate with the OSC. This is further evidenced by the
fact that when my OSC assignment was concluding and I was looking for
other career opportunities at FBIHQ, it was brought to my attention
that it might be best for me to ``just return to Quantico for a while
and chill out.''
Through my assignment with the OSC, I was made aware of several
instances of potential FBI misconduct, which occurred during the time
period of the Waco stand-off up through the current OSC investigation.
I initially attempted to have the OSC include these matters in their
final report issued in November 2000. However, based on their well-
defined written mandate from Attorney General Janet Reno, the OSC did
not wish to include issues that were not central to their core
investigation. This left me no choice but to report them to the FBI OPR
in December 2000. Three of these referrals dealt with onboard senior
managers of the FBI. Two of those three dealt specifically with what I
perceived as retaliatory action toward me. I am content to allow the
investigative process to proceed and only wanted those actions to be
independently reviewed. I realize that retaliation can sometimes be
very subtle and these cases are difficult to prove.
As difficult as it may be to hear the daily bad news about the FBI,
in my heart, I know some of the criticism is deserved. It makes it even
harder for me to face as I represent the Ethics Unit of the FBI, where
our goal is to teach the avoidance of many of the same problems we are
dealing with today. It is not easy and very frustrating to routinely
battle the leaders of your own organization on issues of ``doing the
right thing.'' In an ideal world, the Ethics Unit of the FBI would
never be in conflict with senior management.
Suggested Improvements
Director Freeh made a great start in 1996 by significantly
expanding the ethics program for the new Agents of the FBI. But the
same message needs to be provided to the leadership of the
organization. I do not believe that people intentionally want to make
unethical decisions. However, everyone, myself included, needs the
occasional reminder of why we joined the FBI. In almost all cases, it
was to make a positive difference in the lives of American citizens. It
was certainly not to make money. Nor should it have been to acquire
power and influence. Unfortunately, sometimes career advancement at any
cost becomes the ultimate goal and decisions are made for selfish
interests, as opposed to the good of the organization or the country.
This certainly is not unique to the FBI, but because of the FBI's
considerable powers, it can have significant detrimental effects for
the public.
I would suggest consideration be given to establishing an Ethics
Czar at FBIHQ, who would have input into every high-level policy or
operational decision. This input would be based solely on an ethical
perspective. Not legal, administrative, or procedural, as there are
already people in place to answer those issues. But simply to step back
from all the other pressures of a high profile criminal investigative
agency and ask ``Is this the right thing for the FBI to do?''
Consideration should also be given to creating a similar position in
every field Division of the FBI. If the FBI is really serious about
implementing its fifth core value, that being ``uncompromising personal
and institutional integrity,'' then we need to do more than teach it to
the new Agents and never talk about it again.
Finally, once the ethical message is out there, it must be backed
up by action. Rhetoric alone will not suffice to truly change any
ingrained cultural problems at the FBI. Those who fail to live up to
the high standards expected of FBI employees must be disciplined
appropriately, including demotions and dismissals. Only by sending a
strong message, through both words and action that unethical behavior
will not be tolerated, can we hope to prevent such misconduct.
Attempting to cover-up investigative miscues from the American public
or protect colleagues from career embarrassment, no matter how noble
the intentions, should be the quickest way to get fired in the FBI.
This is one of the classic law enforcement dilemmas my unit teaches the
new Special Agents of the FBI, ``Honesty versus Loyalty.''
Unfortunately, the loyalty in that equation is misplaced. Loyalty
should be to the country and the United States Constitution, not to
your colleagues and friends who helped promote you. I am not saying
allegiance and fidelity to your associates is wrong. Camaraderie is
very important, especially in a law enforcement agency where Agents on
a routine basis risk their lives for each other. However, when the
choice is between those two worthy moral goals, an FBI employee must
choose ``principles over persons.''
Conclusion
During a recent visit with my family to the United States Naval
Academy, we stopped in at the chapel. Over the entrance doors was a
Latin phrase that I am sure every Naval Academy graduate knows, ``Non
Sibi, Sed Patriae'' which means ``Not for self, but for country.'' That
phrase succinctly summarizes what needs to be done at the FBI. That is
the tone which needs to be set. Each person here today before your
Committee has attempted to do that in the FBI. Countless other FBI
employees live out that philosophy every day, with some having paid the
ultimate sacrifice. It is for those heroes and others to come, why we,
before you today, could not simply sit idle and allow these problems to
continue. We all care too much about this organization. Sometimes you
have to endure short-term pain for long-term health and vitality.
Hopefully, with your Committee's oversight, a new administration, and a
new Director, the FBI can begin its journey back toward the goal of
being the premier law enforcement agency in the world, one which the
American people can be proud.
Chairman Leahy. Thank you, Mr. Kiernan.
I am going to yield first to Senator Grassley, who, like
other members of the Committee, has tried to juggle three other
Committees today and who has spent so much time on this.
So I will yield first to you and then I will complete with
my questions.
Senator Grassley. Thank you, and I don't think that I will
use the full time, Mr. Chairman.
First of all, I want to make clear not only to you, but to
the other people at the FBI, and I want the public to also
appreciate what whistleblowers go through. We appreciate, first
of all, your testifying because I know those of who are still,
and there are three of you still with the FBI, your speaking
may subject you to retaliation.
I want to refer to 18 U.S.C. 1505, which carries a criminal
sanction for interfering with a Committee investigation.
Certainly, retaliation against a witness is interference, so if
at any time you believe that you are retaliated against for
providing information to Congress, I encourage you to contact
any office, but I want to let you know that my office would be
open to receiving your statements and to helping you.
In addition, I am going to be writing to the Attorney
General today and the Acting Director of the FBI, reminding
them of the protections that the law gives employees
cooperating with a Committee investigating, including this
Committee. I hope that other members of the Committee would
join in that effort as well. I know the Chairman has already
spoken out, but I want to make sure that they know I feel the
same way the Chairman does.
Chairman Leahy. I think the message goes out that if you
called either Senator Grassley or myself, you would get
straight through to us.
Senator Grassley. I am going to start with this question:
It is my understanding that after the report prepared by the
FBI Ethics Unit on the SES/rank-and-file double standard,
former Director Freeh disbanded the SES Adjudication Board as a
means to adjudicate senior official misconduct.
First, I would hope that that report, assuming it isn't too
big, is made a part of the record.
Chairman Leahy. It is already part of the record.
Senator Grassley. OK, thank you.
Could any of you comment on the system that is now place to
adjudicate the misconduct of senior officials, and what are the
positives and negatives of the new system?
Mr. Roberts. The system now for SES and non-SES members of
the FBI is one and the same; that is, it goes through the same
disciplinary process. I don't have any information that any of
those cases have been adjudicated to date fully. However, I
think that it was a great move and I am encouraged that this
will be at least part of the answer to having a fair system for
both non-SES and SES employees.
Senator Grassley. Does anybody else want to add anything?
Mr. Perry. I might add, Mr. Grassley, that when we finished
that report we felt it appropriate and prudent to hand it
directly to Mr. Freeh. And Mr. Kiernan thought about how best
to get it to him, but we felt that going through certain chains
of command--and he was fully aware of what we were doing, as
well as the fact that the head of our internal affairs OPR was
fully aware that we were involved in this project, but was not
fully aware of the ``what's'' of the project.
Mr. Freeh reviewed it in detail. I think five assistant
directors looked at it from the point of view of the inspection
process, the legal process, as well as the SES process, and, as
we indicated, approved it in August of 2000.
However, Mr. Kiernan and I did face comments to the effect
that we were ``lone rangers'' and that the Ethics Unit should
not engage in that sort of thing, although Mr. Freeh had
approved it himself. So it is an added symptom of what we had
to go through to have that particular report approved, and it
is now in place.
Senator Grassley. The second question: From your testimony,
it looks like you are split on the question of who should
perform the investigation of senior official misconduct within
the FBI, the FBI OPR agents or an outside entity such as the
Department of Justice IG.
At the same time, the kind of retaliation that has been
experienced by all of you by conducting such investigations
would lead one to conclude that a senior official investigation
is not conducive to career enhancement. Don't you think this is
bound to have a chilling effect, and wouldn't an outside entity
be less liable to succumb to any fears of retaliation?
Mr. Werner. The only thing that is clear to me through the
years that I have worked in internal affairs is that FBI agents
working under OPR, not outside of the OPR process, have always
been able to do the proper thing.
I will point out Ruby Ridge. Both Mr. Roberts and I knew
about relationships that existed between individuals involved
in the original incident, we quickly were able to seize upon
important witnesses and interview them to get important
information that led to the unraveling of the mystery of what
happened during that event. Had it not been for the fact that
we had that prior knowledge of relationships, mores, nuances of
management, I don't think we could have done that.
I think it is important that you have FBI personnel
involved in the process, with some kind of oversight, whether
it be an inspector general of the FBI, using FBI personnel, or
oversight by this Committee over the OPR division of the FBI.
But I think it is important for the organization to investigate
their own, as Mr. Kelly suggested in earlier testimony before
this Committee.
Senator Grassley. That is the end of my questioning. I
thank you very much for being kind to me to let me go first.
Chairman Leahy. Do you have more? If you have another one,
go ahead.
Senator Grassley. To Mr. Perry, in your review of the Ruby
Ridge investigation, you recommended disciplinary action be
taken with respect to several senior FBI officials. Now, I know
you can't provide any names and I don't expect you to, but
could you please describe the reasons for your recommendations;
that is, the type of misconduct that you found?
Mr. Perry. We found that the initial investigation which we
were investigating which was conducted by inspectors--that is
not to disparage that process, but the original investigation
was taken out of the hands of OPR, for a number of good reasons
and some not very good reasons.
We were looking at that investigation because we saw a
circle of conflict, as it were, friends investigating friends,
people who had been promoted having been promoted by
individuals that served on former SES career boards that they
were now investigating and/or adjudicating. We felt that that
entire process was flawed, and that therefore there was a
misuse of position aspect of that, which is an OPR category of
misconduct. We looked at that, as well as the adjudication
process, as well as some actions on the part of others, as it
was alleged that they tended to pull the investigation in
certain directions, away from certain people.
We also looked at an aspect pursuant to the inquiry by Mr.
Werner and Mr. Roberts that certain people had not been
interviewed, that the original investigation was incomplete. In
one case, we found over a dozen people who were not interviewed
who could speak to, for example, the rules of engagement which
led in many ways to the horrible tragedy.
So it was that sort of thing that we wrote up, and I think
there was a preponderance of testimony and evidence that some
actions should have been taken, both negative and positive, and
no actions were taken, to my knowledge.
Senator Grassley. Do you think these things are resolved or
are there still some things from Ruby Ridge unresolved?
Mr. Perry. I believe that a final product that is complete
and objective, unbiased, has yet to be seen as far as from the
point of view of adjudication. In fact, I am not aware of the
Bureau ever releasing the adjudicative results of the
investigation of the investigation.
Senator Grassley. That is maybe something we would want to
pursue.
Chairman Leahy. I think eventually we are going to see it.
I spent an awful lot of time on Ruby Ridge. Senator
Specter, Senator Kohl, myself and others were involved in that.
Hindsight, of course, is always 20/20, but you didn't have to
be too much of an expert to know, one, that there were a number
of serious mistakes made, but, second, that worse than some of
the mistakes made at Ruby Ridge were the efforts made to cover
them up. Promotions were given to people who should have been
severely censured, and other things went on that just made no
sense.
In January of 2001, the Assistant Attorney General for
Administration, Stephen Colgate, found that there was no
misconduct on the part of FBI employees in the Ruby Ridge
matter.
Mr. Roberts, you said that conclusion was ``outrageous and
alarming,'' I believe those were your words. So I would ask,
based upon your knowledge of the facts and the precedent in
disciplining FBI agents, and your own experience in reviewing
the adjudication of the misconduct of FBI agents, do you
believe that agents at the senior management level of the FBI
should have been disciplined, without going into particular
names?
Mr. Roberts. Yes, sir, I do. I also believe that the Ruby
Ridge incident, from beginning to where we are now, is probably
one of the best training documents that could exist on how not
to do things; that is, how not to conduct internal
investigations, how not to do shooting inquiries, how not to
adjudicate a matter.
I do find it alarming, and I don't know how many have had
an opportunity to read that report, but I would submit to you
that to read that report and to see the preponderance of the
evidence would lead most of us to conclude that there was some
serious misconduct, or else we wouldn't be talking about this
today.
It is alarming to me that no one was at fault for what
occurred in the aftermath of the Ruby Ridge incident; that is,
the investigations, those people that conducted the
investigations, the flaws in the investigation, the lack of
following logical leads, logical evidence in an investigation
such as that.
And I might add, knowing that the Department of Justice and
the FBI conducted the investigation jointly, I find it
troubling that those in the FBI who were assisting in that
investigation did not provide the proper guidance to the
Department of Justice attorneys investigating that incident. I
think it is a case of wanting to protect the organization, of
wanting to protect perhaps people that you know or that you
knew or that you had served with. I don't know where this will
go. I don't know how it will end up in the future.
Chairman Leahy. Well, how high up did that culpability go?
I mean, if there were people who were not doing things right or
were covering things up or were failing to follow obvious
trails--and I can think of several instances that justify
everything you have said there from my own experience in that
case, but how high up does that go?
Mr. Roberts. I think it goes to the highest levels of the
FBI, sir, the highest levels.
Chairman Leahy. I believe you are right.
Mr. Roberts. And that is not easy for me to say. I think
you will find that all of us here--
Chairman Leahy. It is not easy for me to say either, Mr.
Roberts, because I am one who has been a very, very strong
supporter of the FBI. My earlier career was in law enforcement.
I have always felt that in many ways the most challenging and
rewarding public career I have had has been in the area of law
enforcement. But Ruby Ridge was a very, very disturbing thing,
and the more you peeled the onion back, the more disturbing it
became.
I am sorry. You were going to say something else. I didn't
mean to interrupt.
Mr. Roberts. I just was going to say that all of us here
thoroughly enjoy being employed by the FBI. We want nothing
else but to be employed by the FBI, but we all four have
concerns, and I think Ruby Ridge is just one of the best
examples of how not to conduct business.
Chairman Leahy. Well, let me just say on a personal note--
and I may have other questions for the record, so we can wrap
this up--you mentioned enjoying being with the FBI. And, Mr.
Werner, even though you are retired, I could feel the affection
and the pride, both of which are deserved, from your own
experience.
You, Mr. Perry, and Mr. Kiernan, you are down there at
Quantico and you see some of the smartest and most able men and
women come into the training programs there, and if they make
it through, you know they are good.
I remember in my days as a prosecutor when we would have
police officers from our State of Vermont at either the local
or State level who were going to go off to the FBI Academy to
get further training, and many with my strong recommendation,
how proud they were and how proud I was to have them back into
a force that ultimately was responding to me and my office.
Even today, I have police officers from our State of
Vermont, very good police officers, many I have known from the
time they were first sworn in, who tell me they have an
opportunity to go into the FBI and they will call me and ask
for my advice. I know the pride they feel in going in there.
What we are trying to do is make sure that pride will
always be justified, not just for the men and women who you
have coming through, but those who are there today and for all
of our sakes. This should be the example of the best of the
world.
I don't want it to be a case where, Mr. Werner, the people
hide mistakes, saying they are trying to protect the image of
the FBI, because that doesn't protect them, as you pointed out,
especially when it is done to protect each other. I don't want
to see SES members on promotion boards making it very clear
that if you blow the whistle or ask questions, you are going to
face it when you reach the promotion board.
I want the best. I mean, no organization is perfect. I got
elected to one that I respect greatly. I think of the U.S.
Senate as being the conscience of the Nation, but we can point
to people in both parties who have not shown that conscience.
We can point out mistakes.
I became the 21st person in our Nation's history to cast
10,000 votes. I can go back to those 10,000 votes and find some
I wish I had done differently. But we do most of what we do out
in the open and in the public, and if we make a mistake we
usually have constituents who are going to tell us about it at
the next election. And when that happens, we usually end up
better. If mistakes have been made in Congress and if they have
been made public, we usually get better for it, and the same
with any law enforcement agency.
I admire what you do, Mr. Werner. I admire what you have
done. I think you are in a proud organization, but I think with
what you have done today in your testimony, you make it
potentially a prouder organization and certainly a better one.
I thank you, and we will stand in recess.
[Whereupon, at 1:36 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
QUESTIONS AND ANSWERS
Questions from Senator Leahy and Senator McConnell for Senator Danforth
1. Senator Danforth testified about an FBI agent who reportedly did
not want to act as the FBI liaison for the Waco investigation for fear
that doing so would hurt his career, and a second agent, who did agree
to act as liaison, who believed that he was retaliated against as a
result.
a. Do you have an opinion of how significant a problem it is
for FBI employees to be reluctant to report wrongdoing within
the FBI because of the fear of retaliation?
b. Is there currently adequate protection for whistleblowers
within the FBI?
c. What, if anything, would be an appropriate way to strengthen
whistleblower protections for FBI agents?
2. Senator Danforth referred to the unwillingness of some in the
FBI to acknowledge their mistakes because of an FBI ``culture'' that
seeks to avoid public embarrassment. What should be done to change this
unwillingness to admit mistakes?
3. Mr. Bromwich testified that the FBI has sometimes been resistant
to obtaining guidance from groups or agencies outside of itself as
shown, for example, in the problems with the FBI laboratory.
a. Do the other members of the panel agree that the FBI needs
to be more open to outside influences?
b. If so, in what ways has such a lack of openness made the FBI
less effective?
c. How could the FBI be made more open to outside influences?
4. One of the specific issues that this Committee may look at is
how well the FBI works with its sister law enforcement agencies. The
1997 Inspector General' s report on the Ames case concluded that the
failure to detect Ames's espionage sooner was partly the result otlack
of coordination between the FBI and the CIA. Recently, we have heard
allegations that the FBI failed to provide evidence to the Alabama
Attorney General that would have enabled him to prosecute two men in
the Birmingham church bombing case in 1977. One of these men was
convicted only this year and another apparently will not be prosecuted
at all because of his mental condition. Do any of you have any view
about how well the FBI works with other law enforcement agencies or
what it might do to improve in this area?
5. Just three weeks ago, the Ninth Circuit Court of Appeals
reversed a district court decision that FBI Special Agent Lon Horiuchi
was immune from prosecution on State manslaughter charges arising from
his role in the 1992 Ruby Ridge standoff. Idaho v. Horiuchi, 2001 WL
604255 (9th Cir. June 5, 2001) (en banc). Four former Attorneys General
and a former FBI Director had filed an amicus brief arguing that the
decision eventually reached by the Ninth Circuit would ``severely
undermine, if not cripple, the ability of future Attorneys General to
rely on specialized units in moments of crisis such as hostage taking
and terrorist acts,'' and that it was ``impossible to imagine a more
chilling circumstance'' than the prosecution of Agent Horiuchi.
Furthermore, the dissenting Ninth Circuit judges stated that the
decision was a ``grave disservice'' to Federal agents, ``who knew until
now that if they performed their duties within the bounds of reason and
without malice that they would be protected from state prosecution by
Supremacy Clause immunity and not subjected to endless judicial second-
guessing.'' This leaves open a disturbing uncertainty concerning when
Federal agents may be prosecuted by states for actions taken in the
course of their official duties. This issue is obviously very important
to the FBI and to Federal law enforcement generally. Do you believe
that it is important for this Committee to consider legislation that
would clarify this difficult area of immunity from State prosecution
for actions taken as a Federal agent?
Question from Senator McConnell to Senator Danforth
Senator Danforth, you testified that the single best way to address
many of the problems you encountered is to ``change the culture'' of
the FBI. But changing the culture in any environment is usually a
difficult task. How achievable is the goal of changing the culture of
the FBI, and other than providing strong and persistent messages about
the importance of honesty, cooperativeness, and accountability, what
else can be done to achieve this goal?
Questions from Senator Leahy for Norman Rabkin
1. Senator Danforth testified about an FBI agent who reportedly did
not want to act as the FBI liaison for the Waco investigation for fear
that doing so would hurt his career, and a second agent, who did agree
to act as liaison, who believed that he was retaliated against as a
result.
a. Do you have an opinion of how significant a problem it is
for FBI employees to be reluctant to report wrongdoing within
the FBI because of the fear of retaliation?
b. Is there currently adequate protection for whistleblowers
within the FBI?
c. What, if anything, would be an appropriate way to strengthen
whistleblower protections for FBI agents?
2. Senator Danforth referred to the unwillingness of some in the
FBI to acknowledge their mistakes because of an FBI ``culture'' that
seeks to avoid public embarrassment. What should be done to change this
unwillingness to admit mistakes?
3. Mr. Bromwich testified that the FBI has sometimes been resistant
to obtaining guidance from groups or agencies outside of itself as
shown, for example, in the problems with the FBI laboratory.
a. Do the other members of the panel agree that the FBI needs
to be more open to outside influences?
b. If so, in what ways has such a lack of openness made the FBI
less effective?
c. How could the FBI be made more open to outside influences?
4. One of the specific issues that this Committee may look at is
how well the FBI works with its sister law enforcement agencies. The
1997 Inspector General' s report on the Ames case concluded that the
failure to detect Ames's espionage sooner was partly the result otlack
of coordination between the FBI and the CIA. Recently, we have heard
allegations that the FBI failed to provide evidence to the Alabama
Attorney General that would have enabled him to prosecute two men in
the Birmingham church bombing case in 1977. One of these men was
convicted only this year and another apparently will not be prosecuted
at all because of his mental condition. Do any of you have any view
about how well the FBI works with other law enforcement agencies or
what it might do to improve in this area?
5. Just three weeks ago, the Ninth Circuit Court of Appeals
reversed a district court decision that FBI Special Agent Lon Horiuchi
was immune from prosecution on State manslaughter charges arising from
his role in the 1992 Ruby Ridge standoff. Idaho v. Horiuchi, 2001 WL
604255 (9th Cir. June 5, 2001) (en banc). Four former Attorneys General
and a former FBI Director had filed an amicus brief arguing that the
decision eventually reached by the Ninth Circuit would ``severely
undermine, if not cripple, the ability of future Attorneys General to
rely on specialized units in moments of crisis such as hostage taking
and terrorist acts,'' and that it was ``impossible to imagine a more
chilling circumstance'' than the prosecution of Agent Horiuchi.
Furthermore, the dissenting Ninth Circuit judges stated that the
decision was a ``grave disservice'' to Federal agents, ``who knew until
now that if they performed their duties within the bounds of reason and
without malice that they would be protected from state prosecution by
Supremacy Clause immunity and not subjected to endless judicial second-
guessing.'' This leaves open a disturbing uncertainty concerning when
Federal agents may be prosecuted by states for actions taken in the
course of their official duties. This issue is obviously very important
to the FBI and to Federal law enforcement generally. Do you believe
that it is important for this Committee to consider legislation that
would clarify this difficult area of immunity from State prosecution
for actions taken as a Federal agent?
6. The work that GAO does for the Congress is very important in
informing both Members and the public and providing sunshine on many
government functions. For that reason, the Congress has provided broad
authority for you to get the information you need to do your work. The
details you provide in your testimony about the delays you face in your
dealings with the FBI and how those delays have adversely affected your
ability to do your work efficiently and provide timely information and
advice to the Congress are important for us to hear.
a. How do you usually try to resolve your access problems at
the FBI?
b. In your testimony you describe several situations in which
you experienced significant delays in getting information from
the FBI that you needed to perform an investigation. Have there
been any circumstances in which the GAO has been unable to
complete an investigation that Congress asked it to perform
because the FBI failed to provide you with information you
requested?
c. What impact has your experience with the FBI had on the kind
and amount of oversight you give the agency?
d. What are some areas that the Committee should consider for
future oversight of the FBI?
7. The GAO performs oversight investigations of many federal
agencies in addition to the FBI. Could you describe how the FBI's
record of cooperation with your oversight investigations compares with
other agencies that are involved in law enforcement or
counterintelligence?
Responses of John C. Danforth to questions submitted by Senators Leahy
and McConnell
Responses to questions from Senator Leahy
Question 1a. As to the extent of the problem, my opinion is based
on conversations with experienced federal prosecutors who worked with
me in the Office of Special Counsel (OSC). I do believe the FBI has an
unwritten policy of doing nothing to embarrass the FBI. The agency has
a great deal of leverage over its agents and significant ability to
punish ``troublemakers,'' with its power of promotions and job
assignments. Therefore I believe that there is a real reluctance on the
part of most FBI employees to report wrongdoing.
Question 1b. I am unaware of what procedures the FBI has to protect
whistleblowers. The problem the OSC confronted was not really a
whistleblower situation. Rather, we were dealing with employees who
were concerned about the effect on their careers of simply doing their
jobs by cooperating fully with ongoing investigagtions. The reality for
an employee who loves his Job is that there is no realistic protection
from the isolation and rejection which can result from reporting
wrongdoing within the organization or exposing it to criticism. This is
only exaggerated in a law enforcement agency when an agent's life may
depend on the support of fellow agents. There is no procedure which
will protect an agent from such perceived consequences.
Question 1c. A system which guaranteed complete anonymity would be
essential. This would probably require being able to report to someone
outside the FBI. But the issue which I believe truly needs to be
addressed is the agency's resistance to being open and candid when
dealing with the public and other governmental organizations. It
appears to be an attitude which permeatesthe agency and which creates
problems for the agency more than a need to protect potential
whistleblowers.
Question 2. The consistent message from the Department of Justice
and the FBI should be that careers in the agency can survive mistakes,
because everyone makes mistakes, but careers cannot survive coverups.
Candor must be the highest value at the FBI.
Question 3a. The FBI is one of the finest, if not the finest, law
enforcement agency in the world. But every agency has room for
improvement. Therefore, I fully agree that the FBI should be open to
suggestions and ideas from outside agencies and groups.
Question 3b. As I think happened in the case of the Waco
investigation, the FBI's sometimes perceived arrogance and lack of
willingness to consider other agencies' input creates a lack of trust
which makes it harder to accomplish its objectives when dealing with
other agencies. I am also well aware that the FBI often is very
successful at working with other agencies and utilizing resources and
ideas of odaee a-,encies.
Question 3c. This is an attitude which must come from the top down.
While the Attorney General can issue orders, the responsibility must
fall to the Director of the FBI, whom all the agents view as their
ultimate boss.
Question 4. There are many stories which could be told about how
well the FBI has worked with other agencies and many stories of how the
FBI did not work well with other agencies. The stories we heard from
Waco indicated that the FBI did not get along well with other law
enforcement agencies there to assist in the situation. However,
situations as volatile as Waco cannot be handled by Committees.
Decisions have to be made on a moment's notice. Decisions cannot be
weighed down by concerns of making sure everyone feels included and has
an equal say. The FBI rightfully demands full control of some of the
matters it handles.
Conversely, the situations listed in your question relate more to
the issue of sharing information. This problem again arises from the
FBI not feeling the need to be open and candid with those outside the
FBI. This is clearly an institutional problem which is created by an
attitude of ``we know what is best.'' Many federal agencies often feel
in competition with each other--vying for recognition, vying for
limited budgetary funds--which leads to the perception that the sharing
of information could be threatening to said agencies. The sharing of
law enforcement information is significantly important to successful
control of criminal activity. A system encouraging all law enforcement
to fully cooperate with each other is a more appropriate remedy than
simply trying to zero in on the FBI.
Question 5. I have not studied the Ninth Circuit opinion. My
initial opinion is that states should not prosecute federal officials
for conduct pursuant to their offices.
Response to a question from Senator McConnell
Each federal law enforcement agency operates with certain goals.
These goals are usually quantifiable into statistics kept by the agency
and submitted to Congress each year. The statistics by which an agency
is judged may need to be adjusted to encourage openness and
cooperation. These same statistical evaluations are also made at the
promotion level for agents. Success for interagency cooperation and
proper disclosure of information should be rewarded.
One of the primary objectives of the FBI is to investigate and help
prosecute criminals. The FBI generally believes that there is a
separation of duties: they investigate, the prosecutors prosecute.
However, many cases could be handled better and information more
readily be shared if the FBI felt it had to answer to the prosecutor at
each stage of the investigation. The prosecutor needs to foster
openness and cooperation to be as successful as possible. There fore,
if he/she is in charge of investigations at an early stage, some of the
problems which have been discussed might be avoided. The director of
the FBI should require that agents work with assistant U.S. Attorneys
on their cases as early as possible.
Leadership is key here. I believe the culture can be changed much
more easily than some would think if it was the number one priority of
the director.
One example points directly to the problem. More than eight months
ago, the Office of Special Counsel referred an FBI attorney to the
Office of Professional Responsibility for lying to federal
investigators during the Waco investigation. No action has yet been
taken to discipline the employee. To the contrary, I have been told she
was given an award for her work on the Waco matter. The FBI should have
a system in place to swiftly deal with employees who do not exercise
total honesty, cooperation and accountability.
In this regard, I am aware of the difficulties today to terminate a
federal employee's employment. Consideration should be given to
eliminating some of the legal obstacles to firing dishonest FBI and
Department of Justice employees. While we must be protective of an
individual's legal rights, a law enforcement agency handling sensitive
matters must have the ability to take swift action to uphold its
standards.
Responses of Norman J. Rabkin to questions submitted by Senator Leahy
1. With respect to the adequacy of protections that are provided to
FBI whistleblowers, we have not reviewed this issue and thus cannot
address the question.
2. Concerning the question about what can be done to change a
``culture'' that is unwilling to admit mistakes, we believe that it is
important particularly for public institutions, like the FBI, to
recognize situations where performance has not met expectations. This
is the first step in assessing the causes and the corrective actions
needed to ensure, if possible, that future efforts meet expectations.
It is also important for such institutions to differentiate between
honest errors in judgement and ones resulting from inappropriate or
negligent actions. Institutions need to be tolerant of the former and
recognize that despite peoples' best efforts unwanted outcomes may
occur. Punishing individuals who make honest misjudgments could create
an institutional environment plagued by decisional paralysis.
Therefore, individuals need to know that as long as they act
responsibly and within their authority, they will not be punished or
become scapegoats if their decisions go awry. In this regard, FBI
management needs to have controls and processes in place that are aimed
at minimizing shortfalls in performance. When shortfalls occur, the
Bureau should have processes and procedures for identifying them and
addressing, through training and/or agency policy revisions, how best
to ensure that they do not occur again. Finally, enhanced and
continuous, constructive oversight of FBI programs and activities by
independent organizations, like GAO and the Justice IG, could help
change the FBI culture by identifying operational problems and
deficiencies, as well as efficiencies, and working with the Bureau to
bring about solutions.
3. With regard to your question about whether the FBI needs to be
more open to outside influences, in several instances and in hindsight,
it is clear that the FBI would be better served by being more open to
outside influences. Certainly as pointed out by Mr. Bromwich in the
Justice Office of Inspector General's 1997 report on the FBI laboratory
and in the FBI's efforts to upgrade its technology, especially as such
technology relates to FBI information systems, outside expertise could
have been helpful. In some other areas, however, the FBI has sought
outside assistance, most notably in investigative areas involving
foreign counterintelligence, counterterrorism, and drug intelligence.
The FBI's increased participation in joint initiatives with other
federal, state, and local law enforcement agencies could go a long way
toward improving its openness to other viewpoints. Likewise, more
openness to and cooperation with independent oversight initiatives and
external reviews on a regular basis could make the FBI more open to
outside influences and alternative approaches.
4. Regarding how well the FBI works with other law enforcement
agencies, we are aware that over the last several years the FBI has
increased its participation in joint task forces and has assigned some
of its agents to work at other agencies as well as having other
agencies' personnel work at the FBI. We have not specifically reviewed
the question of how well the FBI works and coordinates with other law
enforcement agencies.
However, we know from ongoing work in the foreign
counterintelligence area, for example, that at times there are legal
concerns that can affect coordination efforts.
5. Concerning whether the Committee should consider the question of
immunity for FBI agents from state prosecutions, clearly this is an
issue that is important to law enforcement, including the FBI. However,
it is not an issue that we have studied and, therefore, not one on
which we can comment.
6a. Concerning how we try to resolve access problems at the FBI,
our first step is to try to work through the FBI's designated liaison
to resolve problems. If those efforts are unsuccessful, we try to work
through higher-level FBI officials in the Office of Public and
Congressional Affairs. If those efforts are unsuccessful, we refer the
matter to the FBI Deputy General Counsel for resolution. Should this
effort also be unsuccessful, our next step, as noted in our testimony,
is to have the Comptroller General, under GAO's statutory authority,
send the FBI Director a letter demanding access. The FBI Director would
then have 20 days, by law, to respond.to the letter. If access has
still not been granted, the Comptroller General can bring suit in
federal district court to compel access. As also stated in our
testimony, in only one instance has the Comptroller General issued the
FBI Director a demand letter and in that instance the FBI ultimately
complied with our request. It is important to note that the biggest
impediment we often face is not so much the FBI's outright denial of
requests for information and interviews as it is the delays in
providing access to needed documents and pertinent officials and
employees because of the Bureau's bureaucratic process. These delays
invariably lengthen the timeframes of our FBI reviews, in comparison to
reviews of other agencies, and make it very difficult to provide timely
products to congressional clients.
6b. Regarding the question of whether there have been
congressionally requested investigations that we have been unable to
complete because the FBI failed to provide us information we requested,
the answer is no. However, we would note the instance described in our
testimony where in order to avoid delaying the issuance of our report,
we dropped the FBI from a multi-agency review of federal teams that
respond to chemical, biological, radiological, and nuclear terrorist
incidents because the FBI refused to provide us requested information.
There also have been instances where we have had to adjust our
methodology or scope in conducting our work due to difficulties in
obtaining timely access to needed information. For example, during our
review of the FBI's costs associated with the Montana Freemen standoff,
we lost an opportunity to do a partial check of the completeness of the
FBI' reported cost estimates because the Bureau would not provide us
access to the operational plan and report relating to the standoff,
which contained the planned and actual use of assets.
6c. You asked what impact our experience with the FBI has had on
our oversight of the FBI. Our experience with the Bureau has clearly
impacted the work that we have done. Because of the difficulty we have
encountered in obtaining information in a complete and timely manner
even on congressionally requested reviews, we generally have not self-
initiated reviews of specific FBI programs and activities. Moreover, in
recent years, even congressionally requested work has been limited. In
general, the FBI has been more responsive to our efforts when the
Committee or Subcommittee requesting the work has FBI financial or
oversight responsibilities or where the information we are seeking is
for comparative purposes and the primary subject of the review is
another law enforcement agency. But, even in those situations, the
timeframes for our work are often longer than necessary due to FBI
delays in responding to our information requests.
6d. Concerning areas that the Committee should consider for future
oversight, the FBI has a wide range of programs, activities, and
operations to carry out its mission and responsibilities. Over the past
decade, its resources and responsibilities have increased
significantly. Therefore, there is a growing need for oversight of
programs, activities, and operations that have had little or no
external oversight. Future oversight areas could include the
implementation, management, and results of specific investigative and
investigative-support programs; infrastructure issues, such as the
acquisition and implementation of information systems; coordination of
FBI efforts with other investigative and intelligence agencies and with
prosecutorial agencies; controls over significant items such as
confidential informant funds and evidence; and human capital issues,
such as training and skills acquisition. We would be happy to discuss
potential areas with Committee members or staff at their convenience
and in the context of the Committee's agenda and current interests.
7. Comparing the cooperation we have received from the FBI with
that received from other law enforcement agencies, as noted in our
testimony, our access-to-records problems have been by far the most
contentious at the FBI. Can occasion, we have encountered access issues
at other law enforcement agencies because of the general sensitivity of
law enforcement information. However, we have generally been much more
successful in obtaining investigative and program-related information
from other agencies, such as the Drug Enforcement Administration and
Bureau of Alcohol, Tobacco and Firearms, than from the FBI. For
example, in a recent review of a DEA investigative program, we obtained
timely access to a sample of completed DEA headquarters investigative
files with limited redaction.
Responses of William H. Webster to questions submitted by Senator Leahy
The following is in response to Senator Leahy's letter to me dated
June 28, 2001. These answers represent my personal views and not those
of the U.S. Department of Justice's Commission for the Review of FBI
Security Programs which I chair. As the Commission's review and
research continues, my views may change. For your convenience, the
questions' are also listed below.
1. Senator Danforth testified about an FBI agent who reportedly did
not want to act as the FBI liaison for the Waco investigation for fear
that doing so would hurt his career, and a second agent, who did agree
to act as liaison, who believed that he was retaliated against as a
result.
a. Do you have an opinion of how siguificant a problem it is for
FBI employees to be reluctant to report wrongdoing within the FBI
because of the fear of retaliation?
In my experience, special agents were willing to and did report
serious acts of misconduct by other agents to appropriate internal
authorities particularly actions which reflected discredit on the
Bureau. There may have been some who feared retaliation but retaliation
for properly registered complaints is forbidden policy and practice. It
was also the understood policy of DOJ-OPR to monitor careers of FBI
secundees for five years to assure no retaliation.
b. Is there currently adequate protection for whistleblowers within
the FBI?
During my tenure as Director, whistleblowers were fully protected.
In a few circumstances, as in other agencies, substandard employees
will seek whistleblower protection to avoid being held accountable for
poor performance.
c. What, if anything, would be an appropriate way to strengthen
whistleblower protections for FBI agents?
The protections should already there. Periodic reminders in Bureau
messages and publications might enhance awareness and confidence that
this is indeed Bureau policy.
2. Senator Danforth referred to the unwillingness of some in the
FBI to acknowledge their mistakes because of an FBI ``culture'' that
seeks to avoid public embarrassment. What should be done to change this
unwillingness to admit mistakes?
``Don't Embarrass the Bureau'' is a quote out of a different era.
It is human not to advertise mistakes, but the Bureau should emphasize
the importance of responding truthfully to official inquiries and the
reed to cooperate fully to avoid repetition by others (``lessons
learned ''). Discipline for concealment or lack of candor is
appropriate.
3. Mr. Bromwich testified that the FBI has sometimes been resistant
to obtaining guidance from groups or agencies outside of itself as
shown, for example, in the problems with the FBI laboratory.
a. Do the other members of the panel agree that the FBI needs to be
more open to outside influences?
There are areas of specialization that require skills that are
outside normal FBI investigative work. Special agents did not sign up
to do this work. Getting or bringing in outside expertise is more
common today and should be welcomed especially in areas of technology.
Outside accreditation is no longer threatening.
The FBI has drawn on CIA personnel to improve its security and
analytical capability and FBI special agents have participated in
various interagency Committees and joint task forces.
4. One of the specific issues that this Committee may look at is
how well the FBI 1works with its sister law enforcement agencies. The
1997 Inspector General's report on the Ames case concluded that the
failure to detect Ames's espionage sooner was partly the result of lack
of coordination between the FBI and the CIA. Recently, we have heard
allegations that the FBI failed to provide evidence to the Alabama
Attorney General that would have enabled him to prosecute two men in
the Birmingham church bombing case in 1977. One of these men was
convicted only this year and another apparently will not be prosecuted
at all because of his mental condition. Do any of you have any view
about how well the FBI works with other law enforcement agencies or
what it might do to improve in this area?
The unidentified problem which became the ``Ames case'' was
promptly reported to the FBI and one or two special agents were
assigned as liaison. The coordination could have been better and I
believe has been markedly better since that time.
The FBI maintained a position in the EPIC Center of DEA at El Paso,
Texas but did not give open access to its Organized Crime files, These
accommodations have to be made to protect sources.
Corruption in some law enforcement agencies is a constant concern.
Efforts to improve cooperation and integrity can be found both
domestically and internationally. The Bureau's National Academy and
numerous Joint Task Forces attest to this effort. The quotation in the
courtyard at FBI HQ is significant:
``The key to effective law enforcement is cooperation at all levels
and with the support and understanding of the American people.''
5. Just three weeks ago, the Ninth Circuit Court of Appeals
reversed a district court decision that FBI Special Agent Lon Horiuchi
was immune from prosecution on State manslaughter charges arising from
his role in the 1992 Ruby Ridge standoff, Idaho v. Horiuchi, 2001 WL
604255 (9th Cir. June 5, 2001) (en banc). Four former Attorneys General
and a former FBI Director had filed an amicus brief arguing that the
decision eventually reached by the Ninth Circuit would ``severely
undermine, if not cripple, the ability of future Attorneys General to
rely on specialized units in moments of crisis such as hostage taking
and terrorist acts,'' and that it was ``impossible to imagine a more
chilling circumstance'' thane the prosecution of Agent Horiuchi.
Furthermore, the dissenting Ninth Circuit judges stated that the
decision was a ``grave disservice'' to federal agents, ``who knew until
now that if they performed their duties within the bounds of reason and
without malice that they would be protected from state prosecution by
Supremacy Clause immunity and not subjected to endless judicial second-
guessing.''
This leaves open a disturbing uncertainty concerning when federal
agents may be prosecuted by states for actions taken in the course of
their official duties. This issue is obviously very important to the
FBI and to federal law enforcement generally. Do you believe that it is
important for this Committee to consider legislation that would clarify
this difficult area of immunity from State prosecution for actions
taken as a Federal agent?
I believe this issue has Constitutional underpinnings. As you know,
the present prosecutor in that case recently dismissed it. I was one of
those who signed the amicus brief. It might be helpful to clarify and
protect from state prosecutions federal agents who are acting in the
reasonable belief that their procedures were lawful under U.S.law. I
would not however suggest a blanket immunity from civil liability where
actions were grossly negligent or involved unreasonable use of deadly
force.
6. On June 20, 2001, the day of this Committee's first FBI hearing,
Attorney General Ashcroft issued a memorandum requesting the Strategic
Management Council (``SMC '') of the Department of Justice to undertake
a comprehensive review of the FBI and to submit recommendations for
reform by January 1, 2002. The memorandum also requests the SMC to
commission a management study of the FBI by a private fun.
a. Have you had any meetings with members of the SMC to
discuss the coordination of your investigations with
theirs?
No
b. Have you reached any agreements with the SMC as to how to
coordinate your respective reviews with theirs?
No
c. The Attorney General's memorandum requests that you submit your
review to the SMC on or before November 1, 2001. Do you expect to be
able to comply with that schedule?
We will do our best but it is more important to have an informed
and thorough report than to curtail our efforts prematurely. We
understand our charter is not necessarily terminated on November 1, but
we will be prepared to advise the SMC of our progress.
7. Has the F13I taken any steps since the arrest and indictment of
Mr. Hanssen to tighten internal security or is the agency waiting for
you to complete your examination? If any steps have been taken, what
are they?
Steps that appear obvious have been taken and we have been kept
informed. We have not asked that the FBI wait on us. Our
recommendations can be considered even thougb changes have be= made.
For example, the periodic polygraphing of some 500 special agents in
sensitive positions has already been instituted. We hope to have some
judgment ova the scope and frequency of this policy.
8. It was reported last week that James Hill, a support employee of
the FBI in Las Vegas was arrested for allegedly selling sensitive
investigative information to organized crime. Will the scope of your
review of internal security measures cover the many field offices of
the FBI beyond headquarters here in Washington and the personnel
security measures used not just to screen agents but also support
staff?
We feel free to examine security measures as applied in the field
and for all employees.
9. According to recent press reports, the FBI conducted polygraph
examinations of approximately 500 employees in the wake of Robert
Hanssen's arrest. The routine use of polygraphs for screening employees
is a controversial issue, Indeed, this Committee held a hearing on that
subject on April 25th of this year at which experts expressed a variety
of opinions on the reliability of polygraph testing.
a. As part of your review of internal security measures at the P13L
are you looking at the usefulness of polygraph tests?
Yes
b. At the time you were FBI Director, did you use polygraphs in
screening FBI employees with regard to security issues?
No, but I believe it has deterrence and detection value, the need
for which has now been demonstrated. When Director, I took a polygraph
examination to access perceptions about its intrusiveness and
reliability and consulted with experts. I also took a
counterintelligence and life style examination at CIA.
c. Under what circumstances did you as FBI Director use polygraphs
to screen FBI agents as an internal security measure?
d. You subsequently became Director of the CIA. Did the CIA have
any different policy than the FBI?
CIA utilized periodic vetting examinations. Its problem had to do
with backlogging and quality plus some complaints about extended and
occasionally heavy handed interviews. These problems can be addressed
and I attempted to do so.
e. What are your present views on polygraphs?
The polygraph is still an art form that depends significantly on
the skill of the examiner in recognizing inconsistencies and efforts to
defeat it. But it is an important tool and needs to be improved.
The FBI has been very skillful in using the polygraph for
investigative purposes. It needs to maintain those sidlls in applying
it to more numerous vetting procedures. Absolute reliance is dangerous.
There should be other confirmatory information and evidence.
In the area of counterintelligence, I think it can materially
reduce the illegal activities of employees who cannot be 100 percent
sure they can avoid detection. But it must not be seen as reflecting
distrust--it is, rather, one of ``trust but verify''. Particularly
those to whom our most important secrets are entrusted should fully
understand and support its careful use.
10. After the discovery violations in the Oklahoma City bombing
case became public, Director Freeh testified before the House
Appropriations Subcommittee on Commerce, Justice and State on May 16,
2001. At that hearing, Director Freeh stated that he did not believe
there should be an inspector General for the FBI. According to a recent
issue of U.S. News & World Report, ``Freeh will reverse'' himself and
support an ``independent inspector general as a watchdog over the
bureau.'' (June 18, 2001 issue, p. 20). As a former FBI Director, what
are your thoughts on the creation of such, a position?
There have been problems with statutory inspectors general over the
years. There have been important contributions, particularly in the
auditing areas of their work. There is some blurring in the separation
of powers arena that can cause problems. I prefer vesting as much self-
investigative responsibility as possible in the individual agencies. I
do not think I favor a separate IG for the FBI. It makes more sense to
allow the DOJ to continue; to function undez rules established by the
AG, to whom the Director reports. However it proceeds, it must be kept
out of politics. The Rule of Law is not political.
I hope you find this information useful.
SUBMISSIONS FOR THE RECORD
Memorandum from Hon. John Ashcroft, Attorney General of the United
States
Attorney General Memo Regarding FBI Review
Attorney General John Ashcroft today sent the attached memorandum
to Deputy Attorney General Larry Thompson regarding a comprehensive
review of the Federal Bureau of Investigation.
The Strategic Management Council referred to in the memorandum was
created in May by the Attorney General to serve as the formal board
within the Department of Justice to provide direction and leadership on
long range planning and initiatives. The Council reinforces the
linkages among the Department's Strategic Plan, Performance Plan and
the budget process. Primary responsibilities of the Council include
strategic policy and planning, resourse guidance and management, budget
planning and decision-making, and performance planning, reporting and
accountability. The Council reports tot he Attorney General.
The Deputy Attorney General Chairs the Council and the other
permanent members include:
Associate Attorney General
Assistant Attorney General for Administration
Director of the Bureau of Prisons
Director of the Federal Bureau of Investigation
DEA Administrator
INS Commissioner
Chief of Staff to the Attorney General
Office of the Attorney General
Washington, D.C. 20530
MEMORANDUM TO THE DEPUTY ATTORNEY GENERAL
Comprehensive Review of the Federal Bureau of Investigation
As you know, the mission of the FBI is to uphold the law through
the investigation of violations of federal criminal law; to protect the
United States from foreign intelligence and terrorist activities; to
provide leadership and law enforcement assistance to federal, state,
local, and international agencies; and to perform these
responsibilities in a manner that is responsive to the needs of the
public and is faithful to the Constitution of the United States. One
core value that guides the pursuit of this mission is uncompromising
personal and institutional integrity.
In the spirit of enhancing the institutional integrity and
performance of the Federal Bureau of Investigation (FBI), request that
the Strategic Management Council of the Justice Department (SMC)
undertake a comprehensive review of the Bureau, and by January 1, 2002,
submit recommendations to me for reforms within the FBI. The members of
the SMC--including the Deputy Attorney General, Associate Attorney
General, Assistant Attorney General for Administration, Director of the
Bureau of Prisons, Director of the FBI, DEA Administrator, INS
Commissioner and the Chief of Staff to the Attorney General--should
identify and recommend actions dedicated to improving and upgrading the
performance of the FBI, assisting the incoming Director with the many
challenges to be faced, and reinforcing the FBI's effectiveness as the
premier law enforcement organization in the world. In order to assist
the SMC in this important task, I have several additional requests.
First, there are several ongoing reviews or investigations of the
FBI, including the Webster review of the FBI's internal security
procedures and the Department of Justice Inspector General's
investigations of both the Hanssen and McVeigh matters. Please ensure
that each of these reviews are submitted to the SMC on or before
November 1, 2001, so they may inform the Council's recommendations.
Second, I request that the SMC commission a management study of the
FBI, by a private firm, to review policies and practices of the Bureau
including information technology, personnel, crisis management and
performance appraisal. The results of this study should be submitted to
the SMC on or before November 1, 2001, so it may inform the Council's
recommendations.
Finally, the SMC should independently solicit input from other
individuals and organizations, both internal and external, including
Congress, who may have constructive ideas on reforming and improving
the FBI.
Should you need additional information on these requests, please
contact David Ayres, Chief of Staff to the Attorney General. Thank you
for your continued leadership.
U.S. Department of Justice
Federal Bureau of Investigation
Washington, DC 20535
June 20, 2001
Mr. Norm Rabkin
Managing Director
Tax Administration and Justice Team
U. S. General Accounting Office
Washington, DC
Dear Norm:
Thank you for asking us to come over yesterday to discuss your
testimony. It was helpful and, hopefully, constructive.
After returning to Headquarters, I consulted with our Deputy
Director, Tom Pickard, about the issues we discussed. We would like to
take several steps immediately that should make your job easier.
First, Laurie's suggestion to educate our senior management about
GAO--how you function, how you safeguard documents, what you need from
us, etc.--is an excellent one. Our Executive Conference meets nearly
every morning at 8:30. We would like to have you and your staff make a
presentation to us at your convenience.
Second, I mentioned the enormous document production workload we
have at Headquarters and how we have facilitated access to Congress in
some cases by making the raw documents available here for review by
staff. We are prepared to begin that approach immediately, recognizing
that there will still be certain types of information we will want to
protect, e.g., informant identities. Since GAO maintains office space
at FBI Headquarters, implementation of this approach should be
uncomplicated
As an aside, over the last five years, the FBI has reviewed 9.2
million pages of FBI records for release to parties in litigation, to
the Inspector General and Special Counsel investigations of the FBI,
and to Congress, including the GAO. The unit within the FBI responsible
for document review and production has averaged approximately 40
employees throughout this time frame. As we discussed yesterday, this
is a tremendous workload and may have been the cause of some delay in
your receipt of documents.
In addition, we are inclined to adopt the Department of Justice
approach to GAO liaison and facilitate direct interaction between our
program managers and the GAO auditors following your initial approach
to the FBI for a new audit.
Laurie also raised a valid point about delays in returning phone
calls, an issue for which I apologize. We will adopt her suggestion
that if I or any other executive is unavailable, someone else will
return the phone call the same day.
Finally, we will review and revise our internal policy manuals
accordingly but as I said during our meeting, regardless of the precise
language, our liaison assumption with every audit is that GAO has the
proper authority; that the FBI will cooperate, constrained only by
available resources and certain disclosure concerns such as the
identity of informants; and that we will provide access to both people
and documents consistent with this philosophy. Any decision to the
contrary is made based upon larger issues outside the bounds of the
liaison function.
Again, Norm, I appreciate the approach of both you and your staff
on these issues and look forward to working with you to address your
concerns.
Sincerely Yours,
John E. Collingwood
Assistant Director
Office of Public and
Congressional Affairs
U.S. Department of Justice
Federal Bureau of Investigation
Washington. D.C. 20575
August 15, 2000
MEMORANDUM TO ALL SPECIAL AGENTS IN CHARGE
Re: Creation of a Single Disciplinary System for all Employees
On March 5, 1997 (March 5, 1997, MEMORANDUM TO ALL SPECIAL AGENTS
IN CHARGE, RE: STANDARDS OF CONDUCT: DISCIPLINARY MATTERS--REVISION OF
THE FBI'S DISCIPLINARY PROCESS), I instituted reforms designed to
improve the FBI's disciplinary system, merging the internal
investigation and adjudication functions in a reorganized Office of
Professional Responsibility (OPR) and creating new procedural
protections and an independent appeals mechanism. Many previous
concerns about the fairness of our disciplinary system have been
corrected by these reforms. The statistical results show that the
structural reorganization and process efficiencies have steadily
improved OPR's effectiveness. The number of disciplinary inquiries and
adjudications pending more than one year has fallen dramatically, from
24 percent at the end of Fiscal Year 1997 to 8 percent at the end of
Fiscal Year 1999. Continual improvements have been accomplished in
consultation with our employee advisory groups, including the
institution of in-person hearings in proposed dismissal cases and
increased transparency through annual reports of disciplinary actions.
. . (August 25, 1998, MEMORANDUM TO ALL SPECIAL AGENTS IN CHARGE, RE:
ENHANCEMENTS TO THE FBI'S DISCIPLINARY PROCESS.)
In the Memorandum of March 5, 1997, establishing new disciplinary
procedures for the general Bureau population I directed that
``Disciplinary procedures in the FBI's Senior Executive Service
(SES).will conform as closely as feasible to these procedures.'' I have
now determined that with the proven success of the revised
'disciplinary process applicable to non-SES employees, the time has
come to revise our SES disciplinary procedures to mirror those for all
other employees.
Criminal investigations and administrative inquiries for serious
misconduct involving SES members have been subject to the procedural
protections enjoyed by non-SES employees since their implementation in
March 1997 and are conducted with the same impartiality and
thoroughness as are cases involving non executives. However, the
adjudication of administrative violations by the two categories of
employees have involved different procedures. Allegations of serious
miscondLict by non SES employees of the FBI are adjudicated by OPR
based upon application of a precedent database containing all
disciplinary decisions dating back to March 1997. Allegations of
serious misconduct by senior executives are now being referred to an
SES Board if the Deputy Director determines that the allegations appear
to have been substantiated by the OPR inquiry. This Board makes a
disciplinary recommendation based upon its appraisal of the facts and
precedents, with particular reference to the relatively small number of
prior SES disciplinary cases, some of which predate the strengthening
of our disciplinary policies. The SES Board Chairperson then determines
whether adverse action will be proposed against the senior executive,
with the identity of the Deciding Official determined by the level of
the SES member under inquiry. The determination of the Deciding
Official is final, with no provision for appeal. This difference in
adjudication procedures, with different deciding officials applying
different precedent bases, permits a perception of a double standard
which is neither warranted nor permissible, while at the same time
denying SES members the appellate protection enjoyed by other
employees.
Certain governmentwide and Department of Justice regulations make
it impossible for SES and non-SES cases to be adjudicated identically.
By law and regulation, any suspension imposed or. an SES member must.
be .for a minimum period of 15 days, so a decision-maker must choose
between a letter of censure and a suspension of 15 days without :pay
for conduct which might result in a three-day suspension for a non-SES
employee. Moreover, the final decision on discipline of executives at
the level of Assistant Director and above is legally reserved to the
Department of Justice. Despite these differences, I have decided that
the structures and procedures for processing of SES disciplinary
matters should parallel those for non-SES employees, thereby maximizing
consistency and removing any perception of a double standard.
Effective immediately, all disciplinary actions, whether for senior
executives or non-SES employees, will be governed by the procedures
established by my March 5, 1997, and August 25, 1998, memoranda,
insofar as not inconsistent with law or regulation. Criminal
investigations and administrative inquiries for senior executives will
continue to be investigated by OPR, as they are now. Adjudication of
administrative inquiries involving senior executives will become the
responsibility of OPR, just as it is for non-SES employees and will be
based upon uniform application of the precedent cases decided since
introduction of the new procedural protections in March 1997. The same
standards for evaluating evidence will be consistently applied to all
employees, with due regard for the increased responsibilities and
obligations of a senior executive. The Deputy Assistant Director of OPR
will be charged with proposing disciplinary action against SES members,
with the Assistant Director of OPR serving as the Deciding Official,
just as is now the case with GS-15 employees. SES members will now have
access to the same Disciplinary Review Board (DRB) appeal from an
adverse action provided for all other employees, with the Board members
chosen in exactly the same manner provided in my March 5, 1997,
Memorandum for all other employees.
The decision of a DRB will be final for all employees except those
executives for whom disciplinary actions must be decided at the
Department of Justice. DRB decisions for those executives will be
subject to review and correction by the Attorney General or Deputy
Attorney General. To ensure complete equity for all employees and to
define the mechanism by which I will implement my ultimate
responsibility to oversee the personnel of the FBI, I will reserve a
discretionary power to review and correct-disciplinary actions
concerning all other employees. This power of correction, which may
change a disciplinary determination in favor of or to the disadvantage
of an employee, is not intended as an additional level of appeal and
will not be exercised routinely. It is intended to be exercised on my
irlitiative only in those rare and exceptional cases when I consider it
necessary to correct an injustice or to prevent harm to the FBI.
These revisions will help achieve our goal of giving all employees
and the American public total confidence that the FBI's disciplinary
system fairly and expeditiously identifies and punishes misconduct
wherever it occurs within our organization and does so without fear or
favor. To further this goal, OPR's future annual reports will include
information on the number and type of SES disciplinary actions.
Manual changes to follow.
Louis J. Freeh
Director
Statement of Hon. Herbert Kohl, a U.S. Senator from the State of
Wisconsin
More than five years ago, we began the Ruby Ridge investigation in
our Committee. I was honored to serve as the ranking member on that
investigation with Senator Arlen Specter. And together in December
1995, the Subcommittee issued a bipartisan, unanimous report containing
a number of conclusions and recommendations.
Now, so many years later, it is staggering to discover that the
abuses, the mismanagement, and the poor judgment that marred the FBI
during those tragic days in Idaho linger to this day. FBI agents who
should have been scrutinized seem to have been sheltered. FBI agents
who aggressively sought to uncover the truth within the agency believe
they have been injured. The investigation process has been tortuous and
protracted. Substantive reforms have been slow walked.
The results are clear to see. The recent problems with document
production in the McVeigh case were predictable to anyone who read the
Ruby Ridge Report but knew that its recommendations had been ignored.
The errors in the Hanssen case were almost inevitable at some point in
an agency that has a culture of protecting itself from criticism.
The Ruby Ridge investigation we conducted was even-handed and
level-headed. We did it not to tear down the FBI but to build it up, to
make it better. We suggested numerous procedural and substantive
changes to help the FBI. Our goal was not to attack individual agents
or to ruin careers. It was to improve the workings of the FBI to
prevent future errors. However, today's witnesses and the documents
that have been turned over to the Committee show just how entrenched
the culture of defiance and sense of infallibility is within the FBI.
It must be changed. The FBI must realize that it is not above the law,
but rather that it is held to a higher standard.
The vast majority of FBI agents already know this. Now it is up to
the new director to see that institutional reforms are undertaken, that
public trust in the agency is restored, and that past wrongs are
remedied.
Statement of Professor Samuel Walker, Department of Criminal Justice,
University of Nebraska at Omaha
Executive Summary
** Integrity and accountability in many law enforcement agencies
are compromised by the socalled "code of silence" by which officers
fail to report misconduct by other employees.
** The code of silence is perpetuated by a lack of rewards and
protections for those officers might come forward to report misconduct.
** Existing whistle blower laws fail to provide adequate incentives
and protections for potential whistle blowers.
** The proposal offered in this report involves the creation of a
management information system that would document punitive retaliation
for whistle blowing.
** The proposal offered here is based on Early Warning (EW) systems
that are already in place in many local law enforcement agencies.
** The proposed system significantly shifts the burden of
responsibility from individual officers to top management by
establishing that protecting whistle blowers is a priority of the
organization.
The Problem
Achieving integrity and accountability in law enforcement agencies
is seriously impeded by the existence of a so-called ``code of
silence'' among officers.
Police officers who have knowledge about misconduct by fellow
officers often either passively refuse to come forward and report that
misconduct or actively lie to investigators about the alleged events.
At the heart of the code of silence is an officer subculture that
places a higher value on group solidarity than on integrity and
accountability.
An important contributing factor to the code of silence is the
absence of rewards and protections for the honest officers who do come
forward and report misconduct.
The Evidence
Evidence of the existence of the code of silence and a failure to
reward and protect whistle blowing officers is widespread.
** In his pioneering study of the police subculture, William A.
Westley found that officers were willing to lie to protect a fellow
officer accused of misconduct.\1\
---------------------------------------------------------------------------
\1\ William A. Westley, Violence and the Police (Cambridge, MA: MIT
Press, 1970).
---------------------------------------------------------------------------
** Herman Goldstein, one of the leading authorities on American
policing wrote in 1975 that ``There is no more formidable barrier to
eliminating corruption than the blue curtain. . . .'' \2\
---------------------------------------------------------------------------
\2\ Herman Goldstein, Police Corruption (Washington, DC: The Police
Foundation, 1975), p. 30.
---------------------------------------------------------------------------
** The Christopher Commission report on the Los Angeles Police
Department (1991) following the 1991 Rodney King beating concluded that
``Perhaps the greatest single barrier to the effective investigation
and adjudication of complaints is the officers's unwritten code of
silence. . . .'' \3\
---------------------------------------------------------------------------
\3\ Christopher Commission, Report, (Los Angles, 1991), p. xx.
---------------------------------------------------------------------------
** The Mollen Commission investigating corruption in the New York
City police department concluded that ``The pervasiveness of the code
of silence is itself alarming.''\4\
---------------------------------------------------------------------------
\4\ Mollen Commission, Report (New York, 1994), p. 53,
---------------------------------------------------------------------------
** The code of silence frustrates the ability of external citizen
oversight agencies to investigate citizen complaints about alleged
police misconduct.\5\
---------------------------------------------------------------------------
\5\ Samuel Walker, Police Accountability: The Role of Citizen
Oversight (Belmont, CA: Wadsworth, 2001).
---------------------------------------------------------------------------
Retaliation Against Whistle Blowers
There is a general consensus among experts that police departments
fail to reward and protect the good officers who are willing to report
misconduct by fellow officers.
Goldstein concluded that ``The honest officer who survives in an
organizational atmosphere permeated by corruption is usual very
lonely.'' \6\
---------------------------------------------------------------------------
\6\ Goldstein, Police Corruption, p. 50.
---------------------------------------------------------------------------
Corruption scandals such as the one involving NYPD officer Frank
Serpico included apparent life-threatening retaliation.
Forty-one Los Angeles police officers are currently suing the LAPD
for punitive retaliation for their having reported misconduct.\7\
---------------------------------------------------------------------------
\7\ Matt Lait and Scott Glover, ``LAPD Sued by Whistle-Blowers,''
The Los Angeles Times (August 25, 2000).
---------------------------------------------------------------------------
Inadequate Protections for Law Enforcement Whistle Blowers
There are no formal programs in existence today to protect law
enforcement whistle blowers.
Indeed, little specific attention has been given to remedies for
the problem of the code of silence in law enforcement agencies. The
problem of the code of silence receives only cursory mention in the
leading police management texts.\8\
---------------------------------------------------------------------------
\8\ James J. Fyfe, et al., Police Administration, 5 th
Ed. (New York: McGraw-Hill, 1997), pp. 451, 467.
---------------------------------------------------------------------------
A Five-year follow-up report on the Christopher Commission found
that the LAPD had taken few steps to address the problem of the code of
silence.\9\ The code of silence is not mentioned in a massive LAPD
report on the Rampart scandal, and there is only one cursory reference
to the failure of officers to report misconduct by other officers.\10\
---------------------------------------------------------------------------
\9\ Merrick Bobb, et al., Five Years Later: A Report to the Los
Angeles Police Commission )Los Angeles: Los Angeles Police Commisison,
1996), pp. 46-47.
\10\ Los Angeles Police Department, Board of Inquiry Report into
the Rampart Area Corruption Incident (Los Angeles: LAPD, Mary 2000).
---------------------------------------------------------------------------
Katherine Mader, the first Inspector General for the LAPD,
initiated a pioneering investigation of the code of silence.\11\ Ms.
Mader, however, resigned in protest in late 1998 over a lack of
cooperation from the LAPD and the LA Police Commission. The current
status of her initial investigation is not known at this time.
---------------------------------------------------------------------------
\11\ Office of the Inspector General, Six-Month Report (Los
Angeles: Los Angeles Police Commission, January 1997), pp. 41-42, and
Appendix J.
---------------------------------------------------------------------------
Investigations of police misconduct typically deplore the existence
of the code of silence but generally provide no specific suggestions
for ways to either break the code or reward whistle blowers.
Legal Protections for Whistle Blowers
Over the past twenty-five years there has been a growing
recognition of the need to provide protection for whistle blowers in
both government agencies and private organizations.\12\
---------------------------------------------------------------------------
\12\ Terance D. Miethe, Whistleblowing at Work (Boulder: Westview
Press, 1999). Alan F. Westin, ed., Whistle Blowing! Loyalty and Dissent
in the Corporation (New York: McGraw-Hill, 1981)
---------------------------------------------------------------------------
As a consequence a variety of whistle blower protection laws exist
at the federal level and in all 50 states.\13\
---------------------------------------------------------------------------
\13\ Elleta Sangrey Callahan and Terry Morehead Dworkin, ``The
State of State Whistleblower Protection,'' American Business Law
Journal, V. 38 (Fall 2000): 99
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A number of highly publicized cases have created an image of the
whistle blower as a hero: the lonely, conscience-stricken individual
who takes a courageous stand at great personal and professional
sacrifice (e.g., the tobacco industry official portrayed in the film
The Insider).
The social science literature on whistle blowing and the effect of
whistle blower protection laws is not encouraging. The personal costs
of whistle blowing are extremely high. There is a deeply-rooted bias
against ``snitches'' in American culture. The individual whistle blower
runs a high risk of alienating colleagues, losing friends, and
jeopardizing his or her career. It is often very difficult to prove an
allegation of organizational misconduct or retaliation for whistle
blowing.\14\
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\14\ Miethe, Whistle Blowing at Work,
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A Program for Protecting Law Enforcement Whistle Blowers
introduction
The following proposal outlines a program for identifying
retaliation against whistle blowers in law enforcement agencies.
The program is a application of Early Warning (EW) systems, a
concept that has emerged in recent years as an important strategy for
identifying ``problem'' police officers. A recent (January 2001) report
by the U.S. Justice Department, Principles for Promoting Police
Integrity, recommended EW systems as a best practice.\15\
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\15\ U.S. Department of Justice, Principles for Promoting Police
Integrity (Washington, DC: Department of Justice, January 2001).
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The major contribution of this proposal is that it substantially
shifts the burden of responsibility from the individual to the
management of the organization by establishing a formal program to
protect whistle blowers and, by doing so, communicating a message that
the organization encourages the reporting of misconduct.
early warning systems
Early Warning (EW) systems are data-based management tools for
identifying ``problem'' police officers and for providing appropriate
intervention to correct the performance of such officers.\16\
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\16\ Samuel Walker, Geoffrey P. Alpert, and Dennis J. Kenney,
``Early Warning Systems for Police: Concept, History, Issues,'' Police
Quarterly, 3 (June 2000): 132-152. Samuel Walker and Geoffrey P.
Alpert, ``Police Accountability: Establishing An Early Warning
System,'' International City Management Association, IQ Service Report,
32 (August 2000).
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EW systems utilize official performance data such as use of force
reports, citizen complaints, involvement in civil litigation, late for
duty, or other problematic behavior.
Performance data are systematically collected, entered into a data
base, and analyzed for the purpose of identifying those officers who
have disproportionate levels of problematic behavior (e.g.,
significantly more citizen complaints than other officers).
Officers identified by the EW system are then provided counseling
or training designed to correct their performance problems.
impact of ew systems
EW systems have several impacts.\17\ The first is on individual
officers who are put on notice that their performance is sub-standard
and who receive some form of corrective intervention.
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\17\ Walker and Alpert, ``Police Accountability: Establishing an
Early Warning System,'' 3-5.
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The second is on first-line supervisors who are given specific new
responsibilities for addressing problematic performance of officers
under their command.
The third is on the agency as a whole to the extent that the EW
system clearly defines threshold levels of unacceptable performance and
communicates to all personnel that unacceptable behavior will receive
prompt and specific attention. In this respect, an EW system has the
potential for transforming the culture of an organization. Along these
lines, a whistle blower-oriented EW system communicates a message to
all employees that misconduct will not be tolerated and that the
reporting of misconduct is encouraged.
application of ew systems to whistle blowing
EW systems may be applied to whistle blowing by, in effect, turning
the concept on its head. Instead of identifying ``problem'' officers it
becomes a system for identifying and protecting good officers.\18\
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\18\ For a related proposal that applies Early Warning systems to
the issue of racial profiling, see Samuel Walker, ``Searching for the
Denominator: Problems with Police Traffic Stop Data and an Early
Warning System Solution,'' Journal of Research and Policy, 3 (Spring
2001): 63-95.
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The application assumes that an EW system includes a comprehensive
set of performance data, including positive indicators. Regular
performance evaluations and career path information need to be included
in the data base.\19\
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\19\ A potential problem with implementing the original concept of
EW systems is that some -and possibly many- law enforcement agencies do
not currently have either an adequate system of performance reports or
the necessary technological infrastructure.
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The concept is applied in the following manner.
** Assume that an officer claims punitive retaliation for having
reported some official misconduct.
** The performance data in the EW system data base would help
identify any significant changes in that officer's career path that
suggest retaliation.
These might include:
A sudden change in performance evaluations following
misconduct reporting incident.
Reassignment from a preferred position within the
agency to one that has low-status.
Career path stagflation as indicated by a failure to
obtain requested assignments in a pattern that deviates
significantly from prior career path history.
** The data would also protect against an employee with a poor
performance record raising a false claim of retaliation in an effort to
legitimate disciplinary action. For example:
The data base would reveal a history of performance
problems prior to the alleged misconduct reporting incident.
issues and potential problems
The proposed whistle blower protection program requires
considerable investment of organizational resources with respect to
data management. Nonetheless, experts on policing argue that an EW
system is a wise and necessary investment for the purpose of achieving
integrity and accountability. Thus, the whistle blower aspect involves
no more investment of resources than is otherwise advisable.
The data in the system would not automatically prove or disprove
any claim of retaliation. Nonetheless, in a case of actual retaliation
they would provide strong evidence to support the aggrieved officer.
Most important, the program would serve to deter retaliation by
communicating a message to employees about the organization's values.
The proposed program is no cure-all. It is simply a management
information system that can be used wisely or not at all. The
effectiveness of the program depends entirely on a commitment to
integrity and accountability on the part of top management.
Conclusion
The so-called code of silence is a major impediment to achieving
integrity and accountability in law enforcement agencies.
Effective rewards and protections do not exist for officers who
report misconduct.
An Early Warning system-based program can provide performance data
that would provide significant protection against retaliation for law
enforcement whistle blowers.
Early Warning systems are recommended as a best practice for
promoting integrity and accountability and should be adopted
independent of any consideration of whistle blowing.
An Early Warning system-based program for protecting whistle
blowers represents a proactive stance by a law enforcement
organization, sending a clear message that reporting misconduct is
encouraged and will be protected.
FBI Director Louis J. Freeh Major Accomplishments, 1993-2001
Law Enforcement Ethics and Fairness
Core Values: Maintained and re-emphasized five core values for the
men and women of the FBI, including: rigorous obedience to the United
States Constitution; respect for the dignity of all those we protect;
compassion: fairness; and uncompromising personal and institutional
integrity.
Bright Lines: In January 1994, set forth ``bright lines'' that
outline standards of professional and personal conduct for all FBI
employees. Bright lines were later developed concerning sexual
harassment and alcohol abuse.
New Employment/Applicant Guidelines: In 1994, established new
guidelines covering all FBI employees and applicants, including
stronger penalties for misconduct, new drug-use polygraph examinations
for all job applicants, and procedures to prevent bias based on sexual
orientation.
Law Enforcement Ethics:
In 1996, established new Office of Law Enforcement Ethics (later
renamed the Law Enforcement Ethics Unit) to administer a new
interdisciplinary ethics in law enforcement program.
As part of this effort, ethics training for new Special Agents was
significantly enhanced. This training was originally a two-hour block
at the end of the new Agent training. Since 1996, it has encompassed 16
hours of classroom instruction at the beginning of the 16-week training
program. Since 1996, more than 3,300 new Special Agents have received
the enhanced ethics training.
To underscore how the awesome powers of law enforcement can be
misused, initiated guided tours of the Holocaust Museum in Washington,
D.C., in May 2000 for new Special Agents and students of the FBI
National Academy.
Since April 1995, trained 1,357 foreign police officers in law
enforcement ethics and human rights during an 8-week management course;
hundreds more have received specialized training in ethics, public
corruption, internal controls, etc.
Office of Professional Responsibility:
In March 1997, established an enhanced, independent Office of
Professional Responsibility (OPR) headed by an Assistant Director. OPR
investigates allegations of employee misconduct in a fair and timely
fashion and provides appropriate sanctions against those who break FBI
regulations. OPR also assumed responsibility for FBI ethics training.
In 1998, the FBI began releasing annual reports on disciplinary
actions taken by OPR to the news media for nationwide distribution.
FBI Leadership in National Security
New Resources: With the support of Congress, put in place key new
resources and programs to bolster the FBI's ability to counter growing
national security threats:
In In 1998, under order of the President, created a National
Infrastructure Protection Center (NIPC), an interagency center of
computer expertise that works to protect the nation's critical
electronic infrastructures through high-techinvestigations, warnings to
public and private entities, and training programs.
In November 1998, opened a new Strategic Information Operations
Center (SIOC) at FBI Headquarters. SIOC is a 2417 operation that
provides a centralized, high-tech capability to manage multiple crisis
situations.
Established Rapid Deployment Teams in 1998 to enable teams of FBI
experts, investigators, medical personnel, and others to respond
quickly and effectively to terrorist incidents and special situations
in foreign or remote locations.
In 1999, created a new Counterterrorism Division, an inter-agency
effort that gathers, coordinates, and shares intelligence information
with FBI field offices and government agency representatives. An
Investigative Services Division was created at the same time to enhance
the FBI's intelligence capacities and to serve as a center for
intelligence analysis.
Established a Weapons of Mass Destruction (WMD) Operations Unit to
conduct real-time credibility assessments of WMD threats, enabling
incidents to be resolved with greater certainty, speed, and safety than
ever before.
Opened the National Domestic Preparedness Office (NDPO) in October
1998 to help coordinate federal/state/local response to WMD incidents
and threats.
Key Investigations: In concert with the law enforcement community,
successfully investigated and resolved major acts of domestic/
international terrorism, including:
Bombing of the World Trade Center in New York City in February
1993
Bombing of the Alfred P. Murrah Federal Building in Oklahoma
City in April 1995
Serial bombings of Theodore Kaczynski, who was arrested in
April 1996
Deadly assault on CIA employees by Mir Aimal Kasi, captured
overseas in 1997
Bombing of two U.S. Embassies in East Africa in August 1998
Preventions: Prevented more than 40 potential acts of terrorism
from October 1993 to October 1999, including plans to blow up two large
propane gas tanks near Sacramento, California, which could have
resulted in more than 12,000 deaths.
Economic Espionage Act: Worked diligently with Congress to support
the drafting and passage of the Economic Espionage Act of 1996, which
makes the state sponsored and commercial theft of trade secrets a
federal felony for the first time.
CI-21: Supported the creation of a CI-21 (Counterintelligence for
the 21 st Century) board to improve the national counter-intelligence
organization and capability of the U.S. Appointed first
Counterintelligence Executive in March 2001.
Tools and Resources to Support Investigations
Budget: Working with Congress, increased the FBI budget by more
than $1.27 billion to the 2001 Budget Appropriation level of $3.44
billion.
Strategic Plan: In 1998, developed and published a three-tier
Strategic Plan to guide FBI decision-making and resource allocation.
Legal Attaches.
Recognizing Recognizing the need to respond to changes in the
global criminal environmentbrought on by the end of the Cold War, the
advent of globalization, and the development of sophisticated
communications technology, more than doubled the international presence
of the FBI. The number of overseas offices, or Legal Attaches, has
increased from 21 in September 1993 to 44 today.
The staffing at Legal Attaches has grown from 107 Special Agents
and support staff in October 1993 to 172 total employees today.
Laboratory:
Instituted a series of important changes in the organizational
structure of the FBI Laboratory to improve effectiveness and strengthen
management of programs, including the appointment of an internationally
recognized scientist as an FBI Assistant Director of the Laboratory.
In 1998, achieved the formal accreditation of the American Society
of Crime Laboratory Directors/Laboratory Accreditation Board.
DNA innovations:
Introduced a national DNA indexing system that enables
forensic laboratories throughout the country to exchange and
compare DNA profiles electronically, thereby linking unsolved
crimes to each other and to known sex offenders.
Became the first laboratory in the nation to implement
Mitochondrial DNA (mtDNA) analysis and to use DNA profiles to
identify positively a specific individual as the source of a
stain.
Worked with Congress in the passage of the Communications
Assistance for Law Enforcement Act (CALEA) of 1994, which clarifies and
further defines telecommunications carriers' statutory obligation to
assist law enforcement in executing electronic surveillance. The FBI's
CALEA Implementation Section was transferred to the Laboratory in June
2000.
Developed an automated computer technology system that can make
otherwise unidentified links between firearms-related evidence. This
system, renamed the National Integrated Ballistic Information Network
following its merger with a similar ATF system, assists law enforcement
agencies in fighting violent crime.
In 1997, developed mobile, modular laboratories that can be
deployed by air, ground, or sea to conduct on-site forensic analyses
and examinations in a wide spectrum of environments.
Developed a forensic capability known as the World Forensic
Automated Counterterrorism System (World FACTS) that shares information
on evidence interrorist incidents with other forensic laboratories.
Created Evidence Response Teams (ERTs) in FBI field offices. ERTs
are well trained, high-equipped personnel that specialize in organizing
and conducting major evidence recovery operations and have made major
contributions in keyinvestigations, including the Oklahoma City and
U.S. Embassy bombings.
In June 2000, established the Indian Country Evidence Task Force
composed of Laboratory experts in the field of DNA, firearms, latent
prints, and trace evidence. The task force provides dedicated service
to Indian Country cases and addresses the need for timely support and
training.
Technology, Tools, and Information:
In 1999, instituted the Integrated Automated Fingerprint
Identification System (IAFIS). IAFIS replaced the laborious manual
system of checking fingerprints with a high-speed, computerized system
that accepts fingerprint submissions from law enforcement
electronically and responds within hours instead of days.
Unveiled a modernized National Crime Information Center 2000 (NCIC
2000) in 1999. NCIC 2000 is a national computer index of documented
crime and criminals that serves the law enforcement community. Today,
the new system averages more than 2 million transactions a day,
compared to 2 million a year when the original system was established
in 1967.
In 1995, established a dedicated Intranet network called LEO for
all law enforcement to facilitate communication, information-sharing,
and training. Initiated the Technology Assisted Search Program that
employs archeological methodology and remote-sensing geophysical
equipment to locate forensic evidence buried underground or concealed
in buildings or other structures.
Under a provision of the Brady Act, created the National Instant
Check System in 1998 to process background checks on prospective
firearm purchasers.
Recognizing changing technology and the needs and abilities of FBI
Agents, began issuing a laptop computer to each new Special Agent.
Critical Incident Response Group:
In the aftermath of the Branch Davidian Case in Waco, Texas,
created a Critical Incident Response Group (CIRG) in 1994 to
successfully integrate the tactical and investigative expertise of the
FBI into one organization to address terrorist activities, hostage
taking, barricaded subjects, and other crisis situations that
necessitate immediate law enforcement response.
Protecting the American People
Violent Crime:
Enhanced the Safe Streets Task Forces concept, which includes teams
of federal, state, and local law enforcement officers and prosecutors
who work together to combat crimes of vlolence and gangs. The number of
Safe Streets Task Forces has increased from 12 in 1992 to 175 today.
In September 2000, issued ``The School Shooter,'' a report on a
two-year behavioral analysis of recent school shooting incidents.
Organized Crime/Drug Trafficking
Achieved major successes against the largest traditional crime
groups in the nation, including major take downs of La Cosa Nostra
(LCN) Families in New York City, Los Angeles, Philadelphia, Detroit,
Miami, and other cities.
Launched Operation Button Down, a five-year initiative designed to
provide a long-term, sustained, and coordinated attack against the LCN.
The recently ended initiative resulted in the indictment and conviction
of more than 1,500 LCN members and associates.
Launched successful investigations to disrupt organized crime
groups with ties to Mexico, Europe, Russia and Eastern Europe, Asia,
South America, Africa, and the Middle East.
In 2000, established the ``Budapest Project,'' a task force with
the Hungarian National Police that targets Russian/Eurasian criminal
enterprises. To date, seven individuals have been arrested, including a
top ten fugitive of the HNP.
In 1994, established the Southwest Border Project with the DEA to
focus investigative resources to disrupt and dismantle activities of
significant Mexican drug trafficking organizations operating in the
nation's southwest border region.
Established the National Alien Smuggling Initiative to coordinate
national law enforcement agencies and the intelligence community to
combat international alien smuggling organizations.
Cyber Crime:
Opened the National Infrastructure Protection Center in 1998 to
prevent and respond to cyber attacks on critical infrastructures (see
page 2 for more info.).
In May 2000, established an Internet Fraud Complaint Center in
partnership with the National White Collar Crime Center. The center
provides a central repository for complaints and tracks and analyzes
trends in cyber crime. To date, it has received nearly 40,000
complaints from victims in more than 100 countries.
Enhanced the FBI's Computer Analysis and Response Team (CART)
comprised of computer specialists and a network of trained and equipped
forensic examiners assigned to select FBI field divisions. CART
performs thousands of examinations of computer evidence each year and
provides technical support for the investigation and prosecution of
cases involving such evidence.
In cooperation with the U.S. Attorney's Office and federal, state,
and local law enforcement agencies, established the Regional Computer
Forensics Laboratory (RCFL) in San Diego, California, to acquire,
archive, and analyze digital evidence in support of criminal
investigations. The RCFL will serve as the prototype for new regional
laboratories being established across the nation.
In 1995, established the Innocent Images initiative to target
individuals using the Internet to lure minors into illicit sexual
relationships and to receive and distribute child pornography, To date,
the program has resulted in the arrest and conviction of more 800
individuals.
Health Care Fraud:
Worked with Congress to draft the Health Insurance Portability and
Accountability Act of 1996, which provides greatly enhanced funding in
the fight against health care fraud, which costs American taxpayers an
estimated $100 billion a year.
Established Health Care Fraud Task Forces in various field offices
to coordinate investigations with local, state, and federal agencies.
Launched the largest and most complex health care fraud
investigation undertaken by the federal government. In December 2000,
the Columbia/Health Care Corporation of America agreed to pay a $95
million fine for health care fraud, laboratory fraud, overbilling
schemes, and kickback violations. It also agreed to pay an additional
$745 million civil settlement.
Crimes Against Children:
In 1995, established the Innocent Images initiative (see page 5).
In 1997, set up a program that designates at least two Special
Agents in each FBI Field Office to concentrate solely on crimes against
children.
Assigned a Special Agent full-time to the National Center for
Missing and Exploited Children.
Developed and published A Parent's Guide to the Internet.
Civil Rights:
In 1997, formed a new Hate Crimes Unit at FBI Headquarters.
Began active participation in the National Church Arson Task Force
and national and local Hate Crime Working Groups.
Top Ten Fugitives:
Since 1993, a total of 27 "Top Ten" fugitives have been captured.
The latest capture was James Charles Kopp, who was wanted in connection
with the shooting death of Dr. Barnett Slepian and was arrested in
France on March 29.
Improving Relationships
Domestic Law Enforcement
Strengthened cooperation and liaison with individual agencies and
national organizations, including the International Association of
Chiefs of Police, the National Sheriffs' Association, the National
Organization of Black Law Enforcement Executives, the National District
Attorneys Association, and the National Association of Attorneys
General.
Increased the number of Joint Terrorism Task Forces to 30,
significantly enhancing the FBI's ability to work with federal, state,
and local partners in fighting domestic and international terrorist
attacks.
Work closely with federal, state, and local law enforcement
officers and prosecutors in 175 Safe Streets Task Forces (see page 5
for more information).
CIA Partnership:
Significantly strengthened the FBI's partnership with the CIA,
making it the most productive in the history of the two agencies.
Includes exchange high-level officials and close cooperation on
sensitive national concerns such as counterterrorism and
counterespionage.
The new, stronger ties have enabled the two agencies to uncover
government spies like Aldrich Ames, Harold Nicholson, Earl Pitts, and
Robert Hanssen.
Law Enforcement Training:
Through a variety of training programs, the FBI has developed
excellent contacts with domestic and foreign officers and fostered
relationships which have greatly increased cooperative investigations
across the country and around the world.
Since September 1993, provided a comprehensive 11-week management
training course at the FBI National Academy to 8,110 state, local, and
foreign police leaders from all 50 states and 118 nations around the
world.
Through the FBI Field Police Training program, trained 836,189
local and state police at the field level from October 1993 to October
2000.
In April 1995, opened an International Law Enforcement Academy
(ILEA) in Budapest, Hungary, to train foreign police officers from the
former Soviet Union and Eastern Europe in policing under the Rule of
Law. Since its inception, a total of 1,357 foreign officers have
graduated from ILEA's 8-week management course and another 5,015
students have taken various specialty courses.
Since 1994, have trained more than 50,000 foreign police officers
from 150 countries around the world.
International Outreach:
Since taking office, the Director has traveled to 68 foreign
countries and met with over 2,100 foreign leaders.
The expansion of the Legal Attache program has enhanced
partnerships overseas that have proven invaluable in the fight against
terrorism, organized crime, cyber crimes, and transnational crimes in
the information age.
At the request of foreign governments, assisted numerous
investigations in other countries. In 1999, the FBI sent teams of
expert criminal investigators and forensic specialists to examine
suspected massacre sites in Kosovo. The team presented its evidence to
the U.N. International Criminal Tribunal.
Public Outreach:
Created a public Internet home page for the FBI, which is accessed
by more than a million visitors each month. The web page has been used
not only to inform the public but to generate leads that help capture
wanted fugitives.
Support/Concern for Employees
Overall Hiring: With the support of Congress, hired 5,029 new
Special Agents and more than 4,000 technical and professional employees
since September 1993.
Reorganization: In October 1993, announced major reorganization to
streamline operations at FBI Headquarters and improve efficiency.
Diversity within the FBI:
Made dramatic strides in increasing the representation of
minorities and women in the FBI. Since September 1993, the FBI has
hired more than 8,000 women and minority Special Agents and support
personnel, 56% of the total new hires.
In October 1993, appointed the first woman, first Hispanic, and
second African American to serve as an Assistant Director, the second
highest rank in the FBI.
Over the course of his tenure, the Director has appointed three
African-American men, four Hispanic men, one African-American woman,
and one White woman as Assistant Directors.
Developed and implemented the National Special Agent Recruitment
Plan to ensure that the FBI effectively recruits and hires qualified
applicants from all segments of society.
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