[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
INSPECTORS GENERAL: INDEPENDENCE, ACCESS AND AUTHORITY
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HEARING
BEFORE THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 3, 2015
__________
Serial No. 114-4
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Printed for the use of the Committee on Oversight and Government Reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
TIM WALBERG, Michigan Columbia
JUSTIN AMASH, Michigan WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee JIM COOPER, Tennessee
TREY GOWDY, South Carolina GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida TED LIEU, California
MICK MULVANEY, South Carolina BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina MARK DeSAULNIER, California
ROD BLUM, Iowa BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama
Sean McLaughlin, Staff Director
Jennifer Hemingway, Government Operations Subcommittee Staff Director
Sharon Casey, Deputy Chief Clerk
David Rapallo, Minority Staff Director
C O N T E N T S
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Page
Hearing held on February 3, 2015................................. 1
WITNESSES
Hon. Michael E. Horowitz, Inspector General, U.S. Department of
Justice
Oral Statement............................................... 5
Written Statement............................................ 8
Hon. Arthur A. Elkins, Jr., Inspector General, U.S. Environmental
Protection Agency
Oral Statement............................................... 14
Written Statement............................................ 16
Ms. Kathy A. Buller, Inspector General, U.S. Peace Corps
Oral Statement............................................... 22
Written Statement............................................ 24
APPENDIX
Letter for the record submitted by Mr. Chaffetz-August 5, 2014
letter to the committee from 47 Inspectors General............. 76
Letter for the record submitted by Mr. Chaffetz-February 3, 2015
letter to the House Appropriations Committee from Michael E.
Horowitz, DOJ IG............................................... 84
Letter for the record submitted by Mr. Chaffetz-January 30, 2015
letter to Chairman Chaffetz from Ranking Member Cummings
requesting a meeting........................................... 88
Table 2-FY 2014 General Provisions not continued in F............ 89
Letter for the record submitted by Mr. Meadows-January 21, 2015
letter to Tim Delaney, CIGIE, from committee members........... 90
INSPECTORS GENERAL: INDEPENDENCE, ACCESS AND AUTHORITY
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Tuesday, February 3, 2015
House of Representatives,
Committee on Oversight and Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 10:17 a.m. in
Room 2154, Rayburn House Office Building, Hon. Jason Chaffetz
(chairman of the committee) presiding.
Present: Representatives Chaffetz, Mica, Jordan, Walberg,
Amash, Gosar, DesJarlais, Gowdy, Farenthold, Lummis, Massie,
Meadows, DeSantis, Mulvaney, Buck, Walker, Hice, Russell,
Carter, Grothman, Hurd, Palmer, Cummings, Maloney, Norton,
Clay, Lynch, Cooper, Connolly, Cartwright, Kelly, Lawrence,
Lieu, Watson Coleman, Plaskett, DeSaulnier, and Boyle.
Chairman Chaffetz. Good morning. The Committee on Oversight
and Government Reform will come to order. Without objection,
the chair is authorized to declare a recess at any time.
Inspectors General serve the American taxpayers as the
first line of defense against waste, fraud and abuse by
government agencies, and to that end, Congress has given them
unfettered access to agency records. The Inspector General Act
in Section 6(a) says clearly, ``is authorized to have access to
all records, reports, audits, reviews, documents, papers,
recommendations, or other material.'' The Act directs all
records be made and be given to the IGs.
We appreciate you being here. Thank you very much.
I'd like to yield part of my time here to the gentleman
from North Carolina, Mr. Meadows.
Mr. Meadows. Thank you, Mr. Chairman. And thank each of you
for being here. Obviously every day, some 13,000 employees that
work with each one of you go to work to protect the American
taxpayer. Really they're the first line of defense when
American taxpayers feel like they are not getting treated
fairly, and that's what this is about, being treated fairly;
the IGs and the 13,000 people that work with them are there.
The chairman said it well. This is about all records and making
sure that all records are available to you to do the work that
is so important to the American taxpayer. Yet we find that, I
guess, last August that 47 Inspectors General signed saying
that they're not getting all the documents to do the work that
you need to do.
We had a hearing, and again today we have another hearing,
because we have not had the progress that we should have seen.
And so I look forward to hearing from each one of you how we
can make it any more clear that the Inspectors General need to
be able to do their job, it needs to be done without
relationship to--whether it is Democrat, Republican or
unaffiliated, it needs to be done on behalf of the American
taxpayer. And I thank the chairman for making this our first
official hearing. And I yield back.
Chairman Chaffetz. I thank the gentleman.
I want to thank the men and women who serve in these
various offices and agencies. There's more than 13,000 people
who go to work every day. They're supposed to be able to access
all the documents without exception. There aren't exceptions.
The law is crystal clear. They serve as watchdogs, they serve
as impartial people who go and look at these documents to
figure out what is truly happening and look under the hood.
They're essentially the internal auditors. We count on them and
rely on them. If the Inspectors General can't do their job, we
can't do our job, and this is why it is imperative and this is
why I'm proud to have this as my first hearing as chairman of
this committee.
Nothing is supposed to be off limits. The committee needs
to send a strong message we support these hardworking men and
women to access the information they need to fulfill their
mission of holding government accountable.
Now, before I end, I want to address a letter that Ranking
Member Cummings sent to me this past Friday. I appreciate him
sending it to me. It was done in the right spirit. I'm going to
work with him and cooperate with him, and I appreciate that.
The letter that Mr. Cummings sent to me says that we--and
requests that we sit down with the EPA, the EPA inspector
general and the FBI to broker a resolution in a dispute between
the three entities.
Again, I appreciate that invitation, I'm happy to be part
of that meeting. But the letter that was given to me really
drives home the point. The EPA inspector general should not
have to lean on a Member of Congress to broker a deal to try to
negotiate what kind of documents we need to get. The Act is
crystal clear. We are going to go over that today.
And as I conclude here, I'd like to enter into the record--
I'd ask unanimous consent to enter into the record August 5th,
August 5th of 2014, 47 of the 72 Inspectors General sent a
letter, and this issue has not been resolved. I ask that this
be inserted into the record, as well as a letter that was
brought today by Mr. Horowitz. it is dated February 3rd, 2015.
Mr. Horowitz, as you give your opening Statement, and we'll
give you a little extra latitude, if you could perhaps describe
in your own words this letter that you delivered to us here in
Congress today. And I'd also ask unanimous consent that the
letter of January 30th, 2015, from Mr. Cummings to myself also
be entered into the record. Without objection, so ordered.
Chairman Chaffetz. With that, I yield back my time and
recognize the ranking member, Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman, and I want
to thank you for holding this hearing today. I want to thank
all of our Inspector Generals and I want to thank the people
that work with you for what you do every day.
Our Inspector Generals do a phenomenal job on behalf of the
American people, they make our government work more effectively
and efficiently, and they save billions of taxpayer dollars. So
I'm glad we are kicking off our committee's first hearing of
the 114th Congress on this very critical issue.
I welcome all the IGs who are here today, including those
in the audience and those testifying. Inspector general Buller
from the Peace Corps, inspector general Elkins from the
Environmental Protection Agency, and inspector general Horowitz
from the Department of Justice.
Mr. Horowitz, I also want to congratulate you on your new
post as the chairman of the Council of the Inspectors General
on Integrity and Efficiency. It is an honor to have all of you
here today.
You have no greater supporter in the Congress than me. The
work you do is very critical, not only to Federal agencies, but
to this committee. We rely on you for your investigations, your
audits, and recommendations and advice. Your work can be very,
very challenging. You are agency employees, but your job is to
root out waste, fraud and abuse in these agencies. You stand
apart. And in order to fulfill your obligations under the
Inspector General Act, you need to be independent and you need
access to information.
So I understand your frustration when you are not getting
the documents you request. I empathize with you when agencies
cite various other Federal statutes with competing interests
and the system seems to slow to a crawl. You are just trying
simply to do your jobs, and without information, it is
extremely difficult to do so.
I do not want to downplay the interests of the agencies
either; very, very important. They are sometimes put in very
difficult positions. Congress orders them to protect
information from unauthorized disclosure, and we are not always
clear about whether that includes IGs too. For example, after
reports of Peace Corps volunteers being sexually assaulted,
Congress passed the Kate Puzey Act to protect whistleblowers
and help these victims. Based on the law, the Peace Corps
withheld the names of victims as well as specific details about
their sexual attacks, while the IG wanted access to this
information under the IG Act. Working together, they developed
a MOU that fulfills both goals. It allows the agency to protect
the information, and it establishes a process for the IG to
gain access to this information in certain cases. The MOU is
not ideal and it is frustrating that the IG even had to sign
one. But the fact is is that the IG is now getting access to
the information it needs to do its job. That's real. That's
happening.
Personally, I have always believed that the best course is
to try to help the parties resolve these competing statutory
interpretations if possible. I believe that it is preferable to
coming back to Congress and seeking a change in the law. This
is not easy and it sometimes takes hard work, but that is
exactly what I have directed my staff to do. We could sit on
the sidelines and do nothing, or we could get into the effort
and try to make things work.
For example, at our last hearing in September, we heard
about a similar disagreement between the EPA and the IG about
Federal statutes governing Homeland Security-related
investigations. The IG wanted access to this information under
the IG Act, while the EPA cited other statutes that they
believed required them to work through the FBI. On that issue,
my staff worked for many months, meeting with each party to
address their concerns, and I believe that we are now very,
very, very close to a resolution.
The leaders of these offices all seem to have an agreement
in principle, but the FBI senior leadership field officers and
agents need to fully commit. Last Friday I wrote to the
chairman, and he referenced that letter, requesting that we
call these agencies as soon as this week to get us past the
finish line, and I sincerely hope we can do it.
Of course, on some occasions, we have to draw lines. At the
Department of Justice, for example, the IG has waited for
months for the Office of Legal Counsel to render an opinion on
statutes governing their document dispute with the IG over
grand jury and other sensitive investigative information. To
the agency's credit, they said they would support a legislative
fix if necessary, but this ongoing delay is simply
unacceptable. We need a resolution and we need a resolution
soon.
Finally, in some cases, it may not be possible to salvage a
workable outcome. For example, Representative Henry Waxman, who
served previously as the ranking member of the Energy and
Commerce Committee, worked very hard to try to address
management deficiencies at the Chemical Safety Board. Although
he made a number of very sensible recommendations, we heard at
our hearing last September that the CSB chairman failed to
adequately address these problems, and in fact, had created a
dysfunctional work environment.
Mr. Chairman, I want to thank you once again for holding
this hearing. I want to thank you also for agreeing to sit down
with me and other--these IGs from the three agencies to see
what we can work out, but again, I agree with you, we have to
find solutions to this problem so that that does not have to
happen over and over again. But, again, I thank you, and I
yield back.
Chairman Chaffetz. I thank the gentleman. Thank you.
I will hold the record open for 5 legislative days for any
members who'd like to submit a written Statement.
Prior to my recognizing our three panelists today, we have
a number of people in the audience who either serve as an
inspector general or work for one of the Inspectors General.
I'd actually ask you to rise. I'd like to recognize you and, A,
thank you for your service, and just understand your support
and your being here today. If you wouldn't mind standing for a
moment, I'd appreciate it. Thank you for being here.
[applause.]
Chairman Chaffetz. We thank you for your service, we thank
you for your commitment to this Nation, and we are trying to
hold this hearing so that you can better do your job and get
back to work and do the things that you need to do and have
access to the records that we believe under the law you should
be able to have without question.
We are now going to recognize our panel of witnesses. The
first is the Honorable Michael E. Horowitz, who's the inspector
general of the United States Department of Justice. He also is
the new chairman of the Council of Inspectors General on
Integrity and Efficiency, often referred to as CIGIE. The
Honorable Arthur A. Elkins, Jr. is inspector general of the
United States Environmental Protection Agency; and Ms. Kathy
Buller--close enough? I want to get it right, sorry--is
inspector general of the United States Peace Corps.
These three people have testified before this committee
previously, and we welcome you all, but pursuant to committee
rules, all witnesses will be sworn in before they testify, so
if you would please rise and raise your right hand. Do you
solemnly swear or affirm that the testimony you are about to
give will be the truth, the whole truth, and nothing but the
truth?
Thank you. Let the record reflect that all witnesses
answered in the affirmative.
We are going to allocate 5 minutes for each of your opening
Statements. We'll be pretty liberal in that policy. And I've
asked Mr. Horowitz, who brought a letter today that he had sent
to Members of Congress, if you could take a few extra moments
or minutes and explain in your own words that letter as well--
it should be on each member's desk--I would appreciate that. So
we'll now recognize Mr. Horowitz.
WITNESS STATEMENTS
STATEMENT OF HON. MICHAEL E. HOROWITZ
Mr. Horowitz. Thank you, Mr. Chairman, Congressman
Cummings, members of the committee. Thank you for having me
testify here today and thank you for the strong bipartisan
support of this committee as we've discussed these issues.
I wish I could report to you that since we last appeared
before the committee, that the concerns identified in the
letter signed by 47 Inspectors General have been resolved.
Unfortunately, they have not.
My office continues to face challenges in getting timely
access to information. For example, the FBI still maintains
that the Inspector General Act does not entitle us to access
certain records in the FBI's possession, such as grand jury,
Title III electronic surveillance, and Fair Credit Reporting
Act information, because of disclosure limitations in statutes
other than the IG Act.
In May 2014, in an attempt to resolve this dispute, the
Department's leadership referred the matter to the Office of
Legal Counsel. However, 8 months later, we are still waiting
for that opinion. I cannot emphasize strongly enough how
important it is that OLC issue its opinion promptly, because
the existing procedures at the Department undermines our
independence and puts in place a process that essentially is
consistent with the FBI's legal position. The status quo cannot
continue indefinitely.
We appreciate, as I said, the strong bipartisan support
from this committee and the Congress. Most significantly, in
December 2014, a provision included in the Appropriations Act,
Section 218, prohibits the Justice Department from using
appropriated funds to deny my office timely access to records
in its possession unless in accordance with an express
limitation of Section 6(a) of the IG Act. While the only--while
the law only recently went into effect, it is clear that the
Department has taken notice of it and it has had positive
impact. However, despite that action, the FBI continues to
maintain its legal position. As a result, the FBI is continuing
its costly and time-consuming process of reviewing documents
responsive to our requests prior to producing them to us in
order for them to determine whether we are entitled to receive
them.
Our reviews have been impacted by the FBI's process, and
that production has delayed our work, including on
whistleblower retaliation investigations, which we are charged
to undertake and review.
As we are--as we are directed in Section 218, today the--
our office provided the Appropriations Committee with a letter
and cc'd our oversight committees, including this committee,
regarding two whistleblower matters where we have not obtained
timely production to those records, and I'll describe that
letter in a moment.
It is long past time to resolve this legal dispute. The
FBI's position contradicts the plain language of the IG Act,
Congress's clear intent when it created our office, the FBI's
and the Department's practice prior to 2010 of providing the
very same categories of information to our office without any
legal objection, court decisions by two different Federal
district judges stating that our office could receive grand
jury material, and the reasoning of a 1984 decision by the
Office of Legal Counsel concluding that grand jury material
could be provided to the Department's Office of Professional
Responsibility. We remain hopeful that the OLC opinion will
conclude that the IG Act entitles my office to access all
records in the Department's possession. However, should the OLC
should decide otherwise, I would be pleased to work with the
committee to develop an appropriate legislative remedy.
Let me briefly mention other areas where I think the
ability of Inspectors General to conduct strong and effective
oversight could be enhanced. One such area is the capacity of
Inspectors General to obtain testimony from former agency
employees, contractors, and grant recipients. While the IG Act
empowers us to subpoena records from those individuals, we
cannot require them to testify even if they have critical
evidence. While I believe any such authority should include
protections to ensure that it is used appropriately and only
when necessary and does not inadvertently impair Justice
Department prosecutions, I'm confident such protections can be
developed while also empowering Inspectors General to carry out
their responsibilities.
Another area where strong and effective inspector general
oversight could be enhanced is by enabling us to more
efficiently obtain and match readily available information in
furtherance of our efforts to combat fraud and misconduct. This
information currently exists, it does not require any further
collection of information, and Inspectors General in each
agency already have access to it or are entitled to access it.
The timely use of such data will better enable Inspectors
General to identify those who improperly receive Federal
assistance, Federal grants or contracts, or duplicative
payments. In my view, exempting all Inspectors General from
limitations in the Computer Matching Act would greatly assist
our ability to ensure that Federal programs are effective and
efficient, without undermining the purposes of that law.
Finally, I'm aware of concerns that have been raised
relating to the CIGIE integrity committee, including with
respect to the timeliness of its work and the transparency of
its efforts. One of my first meetings as chair of the CIGIE was
with the assistant director of the FBI, who chairs the
integrity committee in order to discuss ways to address these
issues. OIGs must maintain the highest levels of accountability
and integrity, and as the new chair of CIGIE, I will make it a
top priority to improve the procedures of the integrity
committee.
I look forward, as I said, to working with the committee on
these issues. And that concludes my prepared Statement. Let me
turn, then, briefly, if I could, to the letter that we sent
this morning, and this relates to Section 218. And as I
mentioned in the prepared Statement which I had provided to the
committee yesterday morning, we have had looming deadlines with
the FBI. One of them for production was yesterday. The FBI
informed us--and this regards two whistleblower retaliation
investigations that we are undertaking. The FBI had made
partial productions, they had not made complete productions,
they informed us that they needed more time beyond yesterday to
produce the remaining materials, they needed until the end of
this week in one matter, until the end of next week on the
other matter, and that they needed that time for purposes of
reviewing the records to determine whether we were entitled to
access to them or, in their legal opinion, not, based on
restrictions in other statutes, in which case they would then
have had to go and would have to go to the Deputy Attorney
General or the Attorney General for approval to provide them to
us.
We discussed this matter. I had conversations until last
night with the Department about trying to get the information
pursuant to yesterday's deadline. The FBI believes it needs to
continue that process because of its legal views, and as a
result, the deadline passed last night.
And pursuant to the Act, it is on the Inspector General's
office to report those matters to the Appropriations Committee,
and that is why we sent the letter. And regardless of the fact
that, in our view, they needed this week and the following
week, the purpose of the--of the need for that extension was
precisely what Congress in Section 218 said was not
permissible.
Chairman Chaffetz. I thank the gentleman.
[Prepared Statement of Mr. Horowitz follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. I now recognize Mr. Elkins for 5
minutes.
STATEMENT OF ARTHUR A. ELKINS, JR.
Mr. Elkins. Good morning, Chairman Chaffetz, Ranking Member
Cummings and members of the committee. I am Arthur Elkins,
inspector general for the EPA and the CSB. Thank you for
inviting me to appear before you today.
From this seat last June, I addressed impediments to access
at CSB. In September, I addressed broader issues of access and
whether there is a need to strengthen or clarify the IG Act.
Today I will report on progress and challenges that still
remain.
This OIG had requested documents of the CSB in the course
of an investigation, which officials refused to provide,
asserting attorney-client privilege. We explained that such
denial violated the IG Act by obstructing an IGs unfettered
access to all materials and informations available to the
agency. Eventually, I sent a 7-day letter to CSB chairman
Moure-Eraso. Although the CSB forwarded my letter to Congress
as required, CSB officials continued to refuse to produce the
documents.
In June, both the chairman and ranking member of this
committee instructed the CSB to provide the documents to the
OIG. Subsequently, the CSB substantially complied. However,
officials have yet to provide an affirmation of full compliance
with our request. Still, the OIG was able to proceed with and
complete our investigation.
Last week I sent a report to President Obama, who oversees
Mr. Moure-Eraso. That report finds there is evidence sufficient
to support a conclusion that the chairman and two of his senior
officials violated the Federal Records Act in implementing
regulations by using non-governmental email systems to conduct
official government business and not capturing those emails in
the CSB record system.
I would like to thank the committee for taking action in
response to our 7-day letter, which allowed us to proceed with
and conclude our investigation.
In September, I reported that the EPA had asserted the OIG
may have access to intelligence information only with the EPA's
permission. In addition, the EPA's Office of Homeland Security
was conducting investigative activities without any legal
authority, thereby interfering with OIG investigations. Senior
OIG and agency officials have now reached a theoretical
agreement on a substantial portion of the issues, with two
caveats: First, we are only beginning to implement the
agreements; and second, we have not resolved the issue of OHS
having an assigned criminal investigator. We have agreed that
the OIG has access to all EPA activities.
On another brighter note, Administrator McCarthy began 2015
with a memorandum to the EPA work force addressing cooperation
with and providing information to the OIG. She called upon the
vigilance of EPA staff to report fraud, waste and abuse.
Finally, in August, my office received information alleging
an incident of serious misconduct by a senior EPA official.
Over an approximately 5-month period, during which the agency
placed the official on paid administrative leave, the OIG
uncovered additional allegations of improper actions by the
same person. OIG investigators sought to interview the official
a second time, but the official claimed to be retiring
immediately, and refused. In fact, the official still was
employed by the EPA. The agency ordered the official to
cooperate with the OIG, but as the official stalled, retirement
paperwork was processed and the official was allowed to retire,
cutting off the OIGs access and the agency's ability to impose
disciplinary remedies, including termination. Other examples in
which EPA employees refused to appear for OIG administrative
interviews are captured in my written Statement.
The IG Act access mandate predominantly has been applied to
documents. It also applies to people. If an OIG needs to
interview an employee who may have relevant information, other
than when there is a possible criminal exposure, that employee
is obligated to provide the information, but the Act provides
no enforcement mechanism. I believe that this committee should
look into the gap between what the IG Act requires and OIGs
ability to achieve those requirements.
In conclusion, this committee has thanked me and the OIG
community for the work we do in protecting taxpayer funds. We
appreciate that, but there is a disconnect between what the
oversight committees observe and appropriations that emerge
from Congress. Budget levels made available are impeding our
ability to do our work. We've returned $7.33 for every dollar
given to us in the past year. I know this is not an
appropriations committee, but I ask for any help you can
provide.
Access to documents and staff rest with the agency.
Adequate funding must come from Congress. All are necessary to
fully accomplish our mission. Yet the OIGs have control over
none of these. As I stated in September, the concept underlying
the IG Act is fragile and can be likened to a house of cards.
The removal of the cooperation card will cause the foundation
upon which the House is built to collapse.
Mr. Chairman, I will be pleased to answer any questions
that you or committee members may have.
Chairman Chaffetz. I thank you, Mr. Elkins. Appreciate it.
[Prepared Statement of Mr. Elkins follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Ms. Buller.
STATEMENT OF KATHY A. BULLER
Ms. Buller. Chairman Chaffetz, Ranking Member Cummings and
distinguished members of the committee, thank you for inviting
me to appear before you today and allowing me to summarize my
prepared Statement.
As you know, our access issue stems from a sensitive and
important subject: the Peace Corps's handling of volunteer
sexual assault reports. So before I continue, let me emphasize
that our push for access goes beyond our zeal for upholding the
basic principle that transparency and accountability are the
hallmarks of good governance. Our push for access is about
doing everything we can to confirm that volunteers, who
sacrifice so much when serving in remote corners of the world,
receive the services they need when they are victims of sexual
assault.
Standing in our way to fulfilling that duty is a legal
opinion drafted on July 9, 2013, by the Peace Corps former
general counsel. That legal opinion asserts that the Kate Puzey
Act of 2011 overrides my broad right of access to agency
records under the IG Act.
As a result of the legal opinion, Peace Corps established
policies and procedures denying OIG access to information.
These policies effectively undermined one of the key purposes
of the Kate Puzey Act, which is to enhance OIG oversight of
sexual assault incidents to ensure Peace Corps does not repeat
past mistakes.
It is worth reminding the committee that the Kate Puzey Act
was enacted after more than 100 volunteers reported that Peace
Corps had ignored allegations of sexual assault, blamed
victims, and mismanaged their cases.
Since my last testimony on September 10th, Peace Corps has
issued revised policies and procedures that grant OIG access to
more, though not all, information on sexual assault reports.
Unfortunately, these revisions took place only after 2 years of
discussions with the agency, Members of Congress, two
congressional hearings, negative press coverage, and a hold
being placed on a nomination of the Director, and ultimately
the signing of a formal agreement between the agency and the
OIG.
My office is hopeful this agreement will give us enough
information to fulfill some of our oversight duties, and Peace
Corps has been responsive to our requests for information
regarding two cases. However, I have several concerns about the
agreement. First, I am concerned about the appropriateness of
my office having to enter into an agreement to obtain
information that we are entitled to by law and that we need to
fulfill our statutory duties.
I am also concerned that the agreement does not undo all
the damage these policies have caused. Since the agreement was
signed, staff remain confused on how to handle sexual assault
cases, and staff and volunteers remain confused about when they
can or must report information to OIG.
Finally, I'm concerned about Peace Corps's ability to meet
its commitments under the agreement, such as implementing a
system that would permit OIG to review sexual assault cases
without full access to information. Lacking such access,
Congress would be unable to properly assess whether Peace Corps
is adequately responding to victims.
It is clear that despite some progress, this agreement
remains a temporary fix and much work remains to be done to
restore a culture where staff and volunteers communicate openly
with the IG.
Congress and Peace Corps have the power to solve this
issue. Congress could take legislative action to ensure we get
full access to agency records. The Peace Corps, for its part,
could retract the erroneous legal opinion underlying its
misguided policies. As long as that opinion remains in place,
Peace Corps is free to rescind our agreement and withhold or
delay OIG access to sexual assault reports. Moreover, its very
existence sets a dangerous precedent whereby any agency may
withhold information by deciding to interpret a law as
overriding the IG Act.
Allowing agencies to decide when they will or will not
release information to their IG creates a clear conflict of
interest. Not only that, it forces IGs to spend their limited
time and resources wrangling with the agency to obtain
information, as I have done for over 2 years. Taxpayers and
volunteer victims of sexual assault, in particular, deserve
better.
While Peace Corps withdrawing its legal opinion may resolve
our access issue, it will do nothing to help other IGs who are
denied full access to agency records; therefore, I appreciate
the committee's efforts to help restore our access for the sake
of Peace Corps, volunteer victims of sexual assault, and the
entire IG community.
Thank you. That concludes my prepared Statement, and I'm
prepared to take any questions you may have.
Chairman Chaffetz. Thank you.
[Prepared Statement of Ms. Buller follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. I'll now recognize myself for 5 minutes.
Mr. Horowitz, help me understand what the atmosphere was
like at the Department of Justice, and when did this change? I
mean, this is a new phenomenon, is it not?
Mr. Horowitz. This changed in 2010 before I became
inspector general in response to a legal opinion issued by the
FBI's general counsel.
Chairman Chaffetz. So you--prior to that, you were able to
access grand jury information, Title III electronic
surveillance information, Fair Credit Reporting Act
information?
Mr. Horowitz. That's correct. My office had no objection to
any legal access to those.
Chairman Chaffetz. So they had been in operation to be able
to access that information. And then what--I'm trying to get at
the heart of what changed.
Mr. Horowitz. I'm at a loss to look--to understand why,
frankly. And it--when you look at it, the law did not change,
the work we were doing didn't change. In fact, one of the
reviews, we got credit information at the start, and then 2010
came along and we were told we weren't going to get it anymore.
Chairman Chaffetz. What--are you impeded doing your job on
any other information or is it exclusive to those three issues?
Mr. Horowitz. So far it has been those three issues, but we
have a list of several other items where the FBI has indicated
it believes there are problems with producing them to us as
well.
Chairman Chaffetz. How often do you have to negotiate what
you are going to be able to see?
Mr. Horowitz. It has--much like inspector general Buller
said, it has taken far too much of my time and, frankly, it is
taking far too much time of the leadership of various parts of
the Department to work these out.
Chairman Chaffetz. And this is one of the concerns, is that
you have to go in and negotiate for this. And, Mr. Elkins,
what's your experience with that?
Mr. Elkins. Well, I have to agree with everybody on the
panel here. The--the issues that--that I have been confronting
have spanned, you know, over 5 years. And when you think of the
expense not only in my shop, but here on the Hill, the agency,
it is just--it is phenomenal, it just doesn't make any sense,
but I've had the same sorts of issues.
Chairman Chaffetz. Well, what percentage of the information
do you need to come to a complete conclusion?
Mr. Elkins. I need all of the information. To the extent
that I--to the extent that there's any information that's
missing, then I can be assured that, you know, I'm making a
good decision. I need all the information. And the IG Act
envisions that all the information----
Chairman Chaffetz. So how often do you bump into this
problem? I mean, I think before, you had mentioned that you get
90-plus percent of the information, but it is that last little
bit, isn't it, that you're----
Mr. Elkins. Absolutely.
Chairman Chaffetz. Explain that to me. Give me an example
of--do you have something that comes to mind when I bring that
up?
Mr. Elkins. Well, I guess I can, you know--hypothetically,
you know, I can--I can think of a number of different issues.
You know, in the course of any investigation, you know, it is
important that we don't rush to judgment, it is important that
we have all of the information, that we make sure that we are
targeting or we are approaching, you know, the folks who need
to be approached.
Chairman Chaffetz. And sorry to interrupt you there.
Explain to me the situation with the Homeland Security and the
lack of jurisdiction that you see. What are they doing--are
they impeding your ability to do your job? Are they doing the
same job that you're doing? What's happening with that?
Mr. Elkins. Well, in the past--and we've made some progress
in that area, so I want to preface that by saying we've come a
long way in that area, but in the past, what the issue was is
that we were working at opposite ends. There was activities in
terms of investigative activities that clearly fell within the
jurisdiction of the IG that we were not being provided that
information at all, and the Office of Homeland Security,
assuming that they had investigative authority, were going out
on their own and doing their own investigations. But clearly,
you know, you can't have--especially in law enforcement, you
can't have two folks doing opposite--opposite missions. So
that's the type of issues----
Chairman Chaffetz. But they were from--from Homeland
Security?
Mr. Elkins. The Office of Homeland Security within EPA.
Chairman Chaffetz. The last thing I want to bring up in my
last minute here is--and you're fairly extensive in this
description here, but one of the concerns is that people get
into hot water, you're pursuing what's happening, and then they
just file these retirement papers and then the issue just goes
away. They get full retirement, they get full benefits, they're
not held accountable.
Go into a little further detail about these--this
allegation of this one person that you were investigating at
the EPA.
Mr. Elkins. Well, yes. This is a--it is an interesting set
of facts. You know, we had allegations that--of inappropriate
conduct by this particular senior official, and over a period
of time, you know, in doing the investigations, we found
additional individuals who were coming forward and providing
us, you know, more and more information. We felt that we
needed--in order to address some of these issues, we needed to
talk to that individual.
And after about a 4-or 5-month period, when the individual
was placed on administrative leave, once we approached the
individual, he decided that he was going to retire. He didn't
really want to talk to us. It was almost immediate. He said,
I'm retiring today, and within a matter of hours, the paperwork
was cut and he retired.
Now, he was directed by the agency's management to talk to
us, but nothing happened. He didn't talk to us. He says, I'm
retired. The agency produced the paperwork, he was gone. So----
Chairman Chaffetz. My time has expired, but I would hope
that those of us on both sides of the aisle, these allegations
is fairly serious. As the inspector general wrote, the senior
official's inappropriate behavior toward at least 16 women from
2004 to present, violation of security procedures, mishandling
of classified information, lack of due diligence by senior EPA
executives who did not act on this information and did not hold
him accountable, and which it ultimately resulted, as he wrote,
in six additional women being subject to the senior official's
inappropriate behavior from January 2014 to July 2014. We have
to be able to figure this out. These people have to be held
accountable. To just simply retire and take full benefits, not
be held accountable, don't--ignore the investigation here from
the Inspectors General, you just don't get a ``get out of
jail'' free card by just filing some retirement papers and then
not being held accountable.
Appreciate the time here and the patience. Now recognize
the gentleman from Maryland, the ranking member, Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman. And I--and
one of the thing that I just want to ask all of you, you know,
all of us are public servants and, I think, trying to do the
jobs that we are sworn and agree to do. And one of the reasons
why I've spent so much time, and my staff has spent so much
time in this is because I do believe that at times there can
be, I guess, legitimate disputes. Would you agree? I'm just
curious, Mr. Horowitz. Legitimate disputes between the IG
statute and the statutes that these agency heads are using to
say, well, maybe they can't give up the information or they
have to review it or whatever. I mean, are there legitimate
disputes or are you saying that they're trying to hide
something? That's the only other--I mean--one or the other.
Mr. Horowitz. Yes. I'm not here to suggest anybody's making
a legal opinion in bad faith at this point, but the issues that
we had historically discussed were about sensitivity and how to
handle documents----
Mr. Cummings. Right.
Mr. Horowitz [continuing]. And access; not should we get
them, but how do we safeguard them in some of the most
sensitive work we did.
Mr. Cummings. And you, Mr. Elkins?
Mr. Elkins. I would agree. You know, the IG Act is clear.
You know, we need access in order to do our job. There could be
legitimate disputes, and I think built into the system there's
always the opportunity to talk through these disputes, but at
the end of the day----
Mr. Cummings. You got to get--you got to get some
resolution.
Mr. Elkins. We have to have resolution.
Mr. Cummings. And that's what I've been trying to do. Mr.
Elkins, the challenges you've faced in getting the information
from the EPA's Office of Homeland Security have been certainly
a priority of mine, and I know yours. As you know, and my staff
has spent many hours working with your office and the Office of
Homeland Security to help address this issue, and it looks like
we've gotten pretty close.
Since our hearing in September, there have been a series of
additional meetings between your office and the Office of
Homeland Security. Is that right?
Mr. Elkins. That's correct.
Mr. Cummings. And on October 15th, EPA Administrator
McCarthy sent you and the acting associate administrator of OHS
an email, and it said this, ``I want to confirm that OIG shall,
consistent with its authority under the Inspector General's
Act, have access to all information shared between FBI and OHS
under the 2012 MOU subject to OIG personnel having the
necessary clearance and the need to know. This is effective
immediately.''
So that was a positive step in the right direction, right?
Mr. Elkins. That was positive. It was positive.
Mr. Cummings. And our staffers on the committee, both
Democrat and Republican, received a bipartisan briefing in from
your office on January 28th, your counsel, Alan Larsen, stated
that your office has ``seen a lot of progress,'' but he also
said that you ``haven't yet crossed the finish line.'' Is that
right?
Mr. Elkins. That's correct.
Mr. Cummings. Do you agree with Mr. Larsen?
Mr. Elkins. Yes, I do.
Mr. Cummings. So things have improved, but there's still a
long--there's a ways to go, isn't there?
Mr. Elkins. There is a ways to go. And, you know, you also
have to realize trust----
Mr. Cummings. Very important.
Mr. Elkins. And over the years, the trust piece has been
rocked. And so I don't know what I don't know.
Mr. Cummings. Right. And I'm not--I'm just trying to make
sure I get a clear picture here, a complete picture. The--so
when you say that trust has eroded, and I agree, I'm known for
citing the book, the ``Speed of Trust'' by Covey, which talks
about when you cannot trust someone or you don't have a
trusting relationship, it is all downhill and it is almost
impossible to accomplish anything.
So you would say a lot of this is--over the years, has been
caused by this distrust. Is that right?
Mr. Elkins. That's correct. You know, we've--I've had a lot
of assurances over the years that didn't pan out, and, you
know, 4 or 5 years, and here we are today still talking about
this situation.
Mr. Cummings. Can you explain the challenge presented by
the FBI?
Mr. Elkins. Quite frankly, no, I can't explain it. it is--
you know, you have to understand that the MOU that this whole
argument is built on, we weren't a party to that MOU. This was
a unilateral agreement that was put together by the agency and
the FBI which pretty much wrote us out with us have been even a
role in it, so it is difficult for me to understand since I
wasn't a part of the process, but it is not based on any legal
authority. From what I understand, the FBI has even said that
there's no reason that they can't share information with us,
and they're willing to do so.
Mr. Cummings. So things stand right now with the FBI
willing to do so, but----
Mr. Elkins. But we still have an MOU in place that says
that they're not. That MOU is still in place. The MOU hasn't
gone anywhere. As I recall, there is a meeting scheduled in
March between agency management, myself and the FBI, and we are
supposed to sit down. Now, subsequent--or maybe, I understand,
from your office and what I've heard here today that maybe we
will all get together and have a conversation as well, but
until that--that happens, the MOU is still in effect.
Mr. Cummings. Well, the chairman--you heard the chairman in
his opening Statement, and he agreed to sit down with us and
see what we could work out. And I can understand you-all's
position and I understand all of our position is that you
shouldn't even have to do that, you shouldn't even have to,
but--but as I always say, sometimes you have to deal with what
you've got, the cards at that moment. Hopefully we'll get
something more permanent resolved here, but the question
becomes what would you like to see done in that meeting,
accomplished in that meeting?
Mr. Elkins. Well, first of all, I would like for all
parties to agree that the IG should have unfettered access to
information and to people, period. And to the extent we can get
there, we can move forward. We can't get there, and the MOU
stands in the way. So if we can get over that hurdle, that's
what I'd like to see.
Mr. Cummings. And how soon do you want that meeting to
happen, the meeting that----
Mr. Elkins. It should have happened years ago, but I would
like to see it happen today, tomorrow, as soon as possible.
Mr. Cummings. Thank you very much, Mr. Chairman.
Chairman Chaffetz. Thank you. I now recognize the gentleman
from Ohio, Mr. Jordan, for 5 minutes.
Mr. Jordan. Thank you, Mr. Chairman.
Mr. Horowitz, I share your frustration with the Justice
Department as well. I'm going to shift to a slightly different
topic, but still in this general area of frustration with lack
of cooperation and lack of doing what I think they're required
to do under the law.
Are you aware of the fact that Lois Lerner's attorney, Bill
Taylor, reported that Ms. Lerner sat down for a lengthy, and
that's his term, her attorney's term, lengthy interview with
the Justice Department regarding the situation of targeting
conservative groups and that criminal investigation?
Mr. Horowitz. I'm not personally aware of it, but I think
I've read somewhere along the way in news reports.
Mr. Jordan. And my question is do you find that strange
that Ms. Lerner is willing to sit down with the Justice
Department but not willing to answer Congress's questions?
Mr. Horowitz. It would be difficult for me, Congressman, to
answer that without knowing----
Mr. Jordan. But just sort of a--I mean, you're an
accomplished lawyer. Just the general point that, you know, it
is the Justice Department that can put her in jail. We can't
put her in jail. we are just trying to get information so that
the American people can know what happened when the IRS
systematically targeted people for exercising their First
Amendment rights. Don't you think that's a little strange?
Mr. Horowitz. It would be hard for me to opine on what the
strategy was there on----
Mr. Jordan. Mr. Horowitz, last year the U.S. House of
Representatives voted, with 26 Democrats I might add, voted to
call for a special prosecutor at the Justice Department to look
into this investigation, and on May 7th, 2014, May 7th of last
year, 9 months ago, the U.S. House held Lois Lerner in contempt
of Congress.
Do you have any information about what U.S. Attorney Ron
Machen is doing with that Contempt of Congress resolution he
has as district attorney for the District of Columbia?
Mr. Horowitz. I don't.
Mr. Jordan. Do you know how the statute reads, Mr.
Horowitz? The statute says, Section 194 says that such
certification having been made, the contempt resolution having
been made, it shall be the duty to bring the matter before the
grand jury.
Are you familiar with Section 194?
Mr. Horowitz. I'm generally familiar with it.
Mr. Jordan. And wouldn't that seem to point out rather
clearly that Mr. Machen should take this to the grand jury?
Mr. Horowitz. You know, I certainly think there are
questions there and to ask about the----
Mr. Jordan. Now, there's--my understanding--and, again,
you've been at the Justice Department a long time, I've looked
at your bio before, very accomplished attorney. There is an
exception for the U.S. attorney to not take this to a grand
jury. Do you know what that exception is, Mr. Horowitz?
Mr. Horowitz. I don't off the top my head.
Mr. Jordan. I will tell you. It is executive privilege. So
if there's executive privilege, it doesn't have to take it. So,
again, thinking about recent things Congress has done, that
executive privilege exception would apply to, say, the contempt
resolution of Attorney General Holder, correct?
Mr. Horowitz. I'm not sure I've sort of looked at this,
frankly----
Mr. Jordan. Well, let me ask you this: Do you think there's
any type of executive privilege that exists between--for Lois
Lerner?
Mr. Horowitz. Congressman, I'd have to pass on opining on
that. Frankly----
Mr. Jordan. But as a lawyer, the only way executive
privilege would exist for Ms. Lerner is if she had some kind of
conversation with the President or his key advisors. Isn't that
correct?
Mr. Horowitz. My general understanding of executive
privilege law----
Mr. Jordan. Okay.
Mr. Horowitz [continuing]. Would be that.
Mr. Jordan. Okay. Have you looked into why Mr. Machen has
not taken this to the grand jury?
Mr. Horowitz. We have not. And we would not be allowed to
look into that under the jurisdictional authority of our
statute, or we would have questions certainly to raise about
that, about whether we could even look at that.
Mr. Jordan. If this committee asked you to look into that,
could you look into it?
Mr. Horowitz. I don't believe so, although we would
certainly want to look more closely at it. The issue being that
under the IG Act, our office is limited to--in what we can do
to oversee allegations of misconduct by department lawyers.
Mr. Jordan. Okay. Finally, the last thing I would say is
this, Mr. Chairman. This is a pattern. The executive branch
agencies, first they drag their feet, they don't comply with
things Congress wants. I mean, we have a subpoena--as just a
recent example, we have a subpoena that came from this
committee in August 2013 dealing with a situation that took
place in Benghazi, and we've yet to have the State Department
comply with that subpoena a year and a half ago.
So there's all kinds of examples where executive branch
agencies won't work with Congress, won't comply with the law,
just like these Inspector Generals are pointing out today, as
they pointed out in Mr. Horowitz's letter from today, and now,
and now we find out it is across the board. So this is--this
is, I mean, a very appropriate hearing and I appreciate the
chairman doing this. And with that, I would yield back my time.
Chairman Chaffetz. I thank the gentleman. Now recognize the
gentlewoman from the District of Columbia, Ms. Norton, for 5
minutes.
Ms. Norton. Thank you very much, Mr. Chairman. And I want
to thank Mr. Horowitz and all of those associated with the
independent councils in our government.
I am particularly interested in law enforcement material,
perhaps as a lawyer and perhaps because I regard some of this
material as extremely sensitive and because I think this
committee should not simply be exposing problems, but getting
to remedies for these problems. And as I understand it, the
Department of Justice has been reluctant to give access to
certain kinds of information which address, the average person
would regard them as highly secretive, like grand jury matters,
wiretapping matters, even credit reporting matters.
Now, your complaint, as I understand it, is that in order
for you to get access, this has to go through bureaucratic
steps all the way to the deputy attorney general. Is that not
correct?
Mr. Horowitz. That's the process currently set up, that's
correct.
Ms. Norton. And apparently in some of your investigation,
you regard this delay as compromising your office's
independence?
Mr. Horowitz. That's correct.
Ms. Norton. And this is what I want to--want to seek
clarification. Your--the statute couldn't be more generically
clear, without exception. It says, I'm talking about 6--Section
6(a)(1). It states that the IG shall have access to all
records, reports, audits, reviews, documents, and papers. And I
don't know when this statute was passed, but that's what it
said then. I haven't seen the legislative history. All I know
is normally access to something like grand jury, and wiretap
materials is of the utmost secrecy.
Now, the Justice Department says that if they get an Office
of Legal Counsel opinion, then they would apparently be ready
to release this material to the inspector general. Is that not
correct?
Mr. Horowitz. That's what they say they're waiting for, is
the Office of Legal Counsel opinion.
Ms. Norton. Well, I have to tell you, Mr. Horowitz, I can
understand an Office of Legal Counsel not wanting that weight
on his shoulders, whoever he is, when it comes to materials
that have always been regarded as secret, and no matter what
the statute says. And I--and, of course, you're still waiting
and they're still investigating.
I'm wondering if we shouldn't simply call the question and
ask for a change in law so that that would not be on the
shoulders of a single law enforcement officer. When we are
talking about something that in our society has always been
regarded as secret for very good reasons, perhaps even before
there was an independent--an IG statute, should we continue to
wait and should we be content with an Office of Legal Counsel,
or would it not be preferable for this Congress to clarify this
issue once and for all?
Mr. Horowitz. That's an excellent question, Congresswoman.
And just to clarify, my office before 2010 got all of this
information without any legal issue----
Ms. Norton. Yes. And we don't----
Mr. Horowitz [continuing]. From the FBI.
Ms. Norton. So, you know----
Mr. Horowitz. There was no issue.
Ms. Norton. And so we don't know--when we are in the--we
are in an era of growing secrecy, which many of us object to
precisely because we don't know what the secret is, we don't
know what has transpired between 2010 and 2014. We have the
same administration. Has there been a change in administration?
Mr. Horowitz. There has not.
Ms. Norton. So, you know, we are talking about the same
folks, and yet they don't want to give this material over. What
that says to me is that, you know, the next administration, you
could go the same Sisyphus uphill climb.
Isn't it time for some of these matters, at least these
matters involving historically secret matters, because secret
matters for very good reason, no matter who we are talking
about, to simply get a clarification of a statute that is very
general and does not seem to admit of any exceptions, would
that not help at least with such--such sensitive materials to
clarify this matter? And is there any reason for this committee
not to come forward with a change in law once and for all?
Mr. Horowitz. And I think the issue for the inspector
general community has been that the law is clear, the practice
had always been to give us that information.
Ms. Norton. We understand that. I'm talking about the
delays----
Mr. Horowitz. No. And I'm--right.
Ms. Norton. Look, look, Mr. Horowitz, unlike some people on
this committee, I'm remedy-oriented.
Mr. Horowitz. I know that.
Ms. Norton. You know, we can have you back here, and you've
been here before. Now, I'm not talking about the other matters.
Mr. Horowitz. No. I understand.
Ms. Norton. I'm talking about these matters which have
always been considered highly secret. Is there any reason why
we should delay clarifying this in law?
Mr. Horowitz. The concern in the inspector general
community is, yes, if Congress immediately passed something and
it could go through, that would be great, it would resolve all
our issues. The problem is what the Department--the FBI and the
Department and OLC has been looking at is what was Congress's
intent back in 1978 when it passed the statute? And the concern
being that if Congress took--took this up to imply or suggest
for any reason that perhaps the law is unclear, when everybody
in the inspector general community thinks it is crystal clear
and the practice has been that it is crystal clear we get
access to it, that it could, if it didn't pass immediately or
get addressed immediately, it would be cited as a reason not to
give us access going forward. And that's a--that's a
significant concern that we have.
Ms. Norton. I thank the gentleman.
Mr. Chairman, I want to thank you, but I want to say 1978--
between 1978 and 2014, there's such a world of difference in
secret matters, I think this needs to be looked into more
closely. Thank you very much.
Chairman Chaffetz. Now recognize the gentleman from
Michigan, Mr. Walberg for 5 minutes.
Mr. Walberg. Thank you, Mr. Chairman, and thanks to the
panel, each of you, Mr. Horowitz, Mr. Elkins Ms. Buller. Thanks
for the work you do. Sounds like it is pretty much an uphill
battle, and with deference to my colleague as well. I really
think we ought to set the primacy on our discussions here on
the law. What is the law?
I would--I would suggest, Mr. Chairman, that--that rather
than pushing ourselves to change the law, when we hear from a
panel as distinguished as this and the many in the room that
are simply attempting to use the law that is clear. I mean,
I'll read again where section 6(a) of the IG Act States clearly
have--that IG shall have access to all records, reports,
audits, reviews, documents, papers, recommendations, or other
material which relate to programs and operations with respect
to which the inspector general has responsibilities under.
That's pretty clear, even for a nonattorney like myself.
As a minister, I've got to settle disputes on the issue of
Scriptures, but this is the law, and we are doing a good work
here, pushing back against the idea that things change, and
yes, they do. I've had birthdays, 63 of them, and I changed,
but the law is the law, and I think that's our concern for
today.
Mr. Horowitz, many times you've raised the issue of the FBI
restricting your access to certain documents and information.
You even went so far as to include a formal complaint in your
most recent semi-annual report, which is extremely rare. How do
the FBI and DOJ justify withholding grand jury and Title III
material from you?
Mr. Horowitz. The position they have taken since 2010 is
that they have now interpreted those other statutes as placing
limits on what section 6 says in the IG Act.
Mr. Walberg. They've interpreted it?
Mr. Horowitz. That's correct.
Mr. Walberg. You have not had this problem before?
Mr. Horowitz. Prior to 2010 we did not have that issue
raised by the FBI.
Mr. Walberg. What is the process for obtaining these
materials if you need them for an investigation?
Mr. Horowitz. We send the document request to the FBI.
They've put in place, frankly, what's a costly and timely
system of now reviewing records before they produce it to us,
something they hadn't done previously, for the purpose of
determining whether they needed to withhold those materials
from us so they could then look at them, confer with the
Attorney General or the Deputy Attorney General, get an opinion
memorandum from the Attorney General or Deputy Attorney General
authorizing them then to release them to us.
Mr. Walberg. So it is correct or incorrect that you have to
convince the Attorney General to release the materials to you
in any case?
Mr. Horowitz. They certainly have to explain to the
Attorney General. The Attorney General has to conclude it in
each case. We have not yet had us have to go into the room for
those meetings.
Mr. Walberg. How that has that process affected the pace of
your investigations?
Mr. Horowitz. It has had a significant impact on us.
Frankly, the biggest impact is on the staff, when you talk
about the thousands of people who work in the IGs offices. If
you had some of my staff up here explaining to you how it
impacts their day-to-day ability to do their jobs, we get
bogged down, we stop work, you lose valuable time and money and
resources on our side, You have the FBI ramping up on their
side. It is a process that just doesn't need to happen and
didn't happen before 2010?
Mr. Walberg. It affects your independence?
Mr. Horowitz. It absolutely affects our independence.
Mr. Walberg. Which is the rationale that the Congress had
in mind to make sure we had oversight.
Mr. Horowitz. That's correct. If we have to go through the
agency leadership to decide whether we get records, that's a
serious problem undermining our independence.
Mr. Walberg. In your testimony you pointed out that section
218 of the appropriations bill that we are living under now
prohibited DOJ from using any funds to deny your office access
to agency materials.
Do you believe this provision has a positive impact on your
access to records?
Mr. Horowitz. I think it generally has had a positive
impact.
Mr. Walberg. Why do you believe the President in the budget
that he has just released yesterday tries to remove this
provision?
Mr. Horowitz. I can't explain the motivation. I can tell
you I think we've had a--it hass had a productive effect on our
discussions with the Department generally.
Mr. Walberg. Well, the President attempts to explain the
change when he says in the budget address that the Department
is unaware of any specific materials that OIG believed
necessary to its reviews but to which the OIG has not been
granted access.
Have you made the Department aware of access issues?
Mr. Horowitz. Made aware of the access issues as I've
talked about in my Statement and in prior hearings? We haven't
ultimately had anything withheld from us, but that is dependent
on who sits in the corner offices at the Department.
Fortunately, the Attorney General and the Deputy Attorney
General have committed to getting us the material, but it turns
on whether--on a decision by them as opposed to an independent
decision by inspector general.
Mr. Walberg. Okay. Well, I would just add, I am very
interested in why the President would say this when we have a
hearing like this, and we've had one before, I'm certain that
the Inspectors General have concerns why the President would
want to remove that section when it seems so important that
Congress would address it and say we need to use the Inspectors
General appropriately and fully and give them access.
So I thank you for this questioning, and we'll see the
answer.
Chairman Chaffetz. I thank the gentleman. We now recognize
the gentleman from Massachusetts, Mr. Lynch, for 5 minutes.
Mr. Lynch. Thank you, Mr. Chairman, and I thank the ranking
member for holding this hearing, and I want to thank the
witnesses for offering your testimony and helping the committee
with its work.
This really is a, you know, in a way, a constitutional
crisis if this is going to be the position of the
administration or any administration. We had this situation
back during the Bush Administration when we were trying to do
oversight on Iraq reconstruction, and now I see in the last
couple of weeks that--that DOD has taken a position against the
special inspector general for Afghan reconstruction where
information that used to come to this committee, and now I'm
the ranking Democrat on the national security subcommittee,
that information that we got for the last 6 years is now not
available to us.
I guess last night The New York Times reports that there
has been a reversal in part on the part of the NATO resolute
support mission to release some of the information that we used
to get all the time. So we are really hamstrung here. As long
as--I mean, oversight is really a constitutional responsibility
of ours. It is inherent in the balancing of the checks and
balances between the executive, the Congress, and the
judiciary, and if we can't get that information, if we can't
have you as our emissaries in a real way to get that
information to us, we cannot do that part of our constitutional
responsibility.
And, you know, it mystifies me how this is happening all
across the government in all these agencies at the same time
and just recently. Like I said, for 6 years we were getting
this information, these reports, these action reports. You
know, I'm not a conspiracy-minded person, but, you know, I do
have to say that we know, from your reports--actually Stuart
Bowen, who is the inspector general for Iraq reconstruction, he
actually helped us determine that in Iraq we had trained 930--
938,000 Iraqis, military, police, and border patrol.
We spent $25 billion on training Iraqis. So now when the
military comes up with this new plan to train some more Iraqis,
we can push that back on them, and the reason we can is because
Stuart Bowen and members of this committee did dozens and
dozens and dozens--and I give credit to John Tierney, who is no
longer a Member here, but he did some great work on that. The
reason we know that that system does not work and that
Americans--American taxpayers' money was wasted was because of
the work that the inspector generals did, that you-all did.
That's how we got that information.
And now they are saying we can't have that information
because it is embarrassing, it is embarrassing, that that
information that you gave us allows us to hold the executive
accountable. That's the way this is supposed to work, and I
just--I'm troubled by the fact that all of a sudden the
transparency is shutting down, that you are not allowed to do
your jobs. And I just want the say that, you know, at the
outset, both the ranking member and the chairman both said it
is pretty sad that the Inspectors Generals have to come here to
Members of Congress to help them to do their job, but that is--
it might be sad, but this is where we are at. Like the ranking
member said, sometimes you get--you are what you are, and so we
have to have a partnership between the inspector general
community and Congress to make sure that we all do our jobs,
that we help you help the American people. That's what this is
all about.
So maybe it is--maybe it is a legal quandary, maybe we have
to get reaffirmation from the courts that this is indeed our
constitutional obligation, but we have to work together. And
just by closing, I've used up all--almost all my time. I just
want to say that in prior budgets, we had defunded the ability
of the inspector general community to do their job. And I know
that Mr. Elkins eloquently stated that resources are a big part
of this as well.
In order to for them to do their job and help us with the
issues that we are all talking about, we need to fund this part
of government. You can be against big government, you can be
against intrusive government, but you can't be against
functioning government, and functioning government are those
people out there that do this work every single day. And I just
want the say that we ought to remember that when the budget
time comes around. Thank you. I yield back.
Chairman Chaffetz. Thank you. Well said. I appreciate that.
Mr. Gosar from Arizona is now recognized for 5 minutes.
Mr. Gosar. Thank you, Mr. Chairman. Thank you for all that
you guys do at the inspector general's office.
Mr. Horowitz, thank you for everything. Specifically my
next questions come on the Department of Justice. Quick
question. Is the Department of Justice run from the bottom up
or from the top down?
Mr. Horowitz. I think generally from the top down.
Mr. Gosar. Hmm. And you're a dependent or an independent
agency?
Mr. Horowitz. We are an independent agency housed within
the Justice Department.
Mr. Gosar. You're no lesser of an attorney than anybody in
the DOJ?
Mr. Horowitz. I will let others make that judgment,
Congressman.
Mr. Gosar. I think I'd put your credentials against anybody
from what I see.
Whistleblower protection. Are you concerned about that?
Mr. Horowitz. We are deeply concerned about it, and I'm
deeply concerned it is arisen in this context that I've sent
the letter today.
Mr. Gosar. Have you seen the protection of whistleblowers
get stronger today or are they less so than lets say 2009? And
I am picking that particularly.
Mr. Horowitz. Well, we have certainly made efforts to make
them stronger, but when you see this action where we are trying
to move forward on a whistleblower retaliation allegation, and
the--involving an FBI employee and the FBI wants to first
review the documents to see if we are legally entitled to get
access to them, that causes me great concern.
Mr. Gosar. Absolutely. And I go back to something your
partner right next to you said. Trust is a series of promises
kept, and to the gentlewoman across that I've seen, what
happened since 2010, well, there is Fast and Furious, the AP
reparations, Jane Rose and IRS, Benghazi, it goes on and on and
on.
Are you familiar, Mr. Horowitz, with slow walking
documents?
Mr. Horowitz. We have certainly had difficulty getting
prompt access to documents.
Mr. Gosar. Prompt access to documents also supports proper
protection for whistleblowers, does it not?
Mr. Horowitz. That's correct.
Mr. Gosar. So I'm going to go back to your testimony in
September 2014 to this committee. You stated, ``the FBI and
some other department components have refused our request for
various types of documents. As a result, a number of our
reviews have been significantly impeded.'' You added that DOJ
officials caused significant delays in gaining access to
important documents in the IGs review of Operation Fast and
Furious.
Do you believe that the delays caused by the refusal of the
DOJ officials to release documents were intentionally done by
some officials within the agency in order to slow down the IGs
investigations?
Mr. Horowitz. I actually was not, the IG, back when that
all played out before----
Mr. Gosar. But you've seen significant delays?
Mr. Horowitz. But I have certainly seen significant delays.
Mr. Gosar. I mean, just like us in those delays, you've
seen those delays because it took a Freedom of Information Act
to get that information when it was not available to you or us.
Mr. Horowitz. I've seen them, and my staff, frankly, has
lived them.
Mr. Gosar. Okay. So could these delays and impediments to
the investigation in the Fast and Furious which continue today,
amount to obstruction in your opinion?
Mr. Horowitz. They have certainly----
Mr. Gosar. I mean, this is not normal course.
Mr. Horowitz [continuing]. Impacted. Let me just say----
Mr. Gosar. This is not normal course of procedure, is it
not?
Mr. Horowitz. It shouldn't be. Unfortunately, in many
reviews, we are seeing it over and over again, and it has
impacted those reviews.
Mr. Gosar. So let me go back to this DOJ being top down. So
if the Attorney General wants to set an atmosphere of change
and compliance, he could, could he not?
Mr. Horowitz. I think across all of the components, that
culture that was talked about earlier is critical to set.
Mr. Gosar. And the same thing with this President. He
promised an era of transparency, and I've hardly seen, you
know, the most transparent administration period. So even the
President could actually expediate this, could he not?
Mr. Horowitz. I think there are a lot of people in this
process, I agree, that could have an impact by sending a clear
message that what happened prior to 2010, which worked just
fine, no law changing in 2010 is where we should be.
Mr. Gosar. So you are very familiar with the Vaughn Index,
right?
Mr. Horowitz. Correct.
Mr. Gosar. So was there anything in the Vaughn Index that
really merited executive privilege?
Mr. Horowitz. Congressman, I wouldn't opine on that.
Frankly, I haven't--I'm familiar with the index. I frankly----
Mr. Gosar. Once again, it goes to that mindset from the top
down, I mean, so when you start seeing private emails being put
on executive privilege, I mean, it behooves me that we are not
following the law. And the way our system is based is that
everybody in good faith upholds their oath to defend and
protect this Constitution, to uphold the rule of law, would you
agree?
Mr. Horowitz. I agree with that.
Mr. Gosar. So it starts from the top down, not the bottom
up.
Mr. Horowitz. I think, frankly, it is both the top and the
bottom and everything in between that we've had both----
Mr. Gosar. But as an executive, you set the tone. You told
me that----
Mr. Horowitz. That's correct.
Mr. Gosar [continuing]. From the top down. So you set the
tone from the top. And where responsibilities of aggression
are, responsibilities of accountability need to be placed.
Mr. Horowitz. You know, we've taken the position from,
certainly since I've been there in 2012 with the leadership of
the Department that given the past practice, given how things
worked before 2010, there is more than--more than enough good
faith basis to send a message that the IG, as the Section 6
states, is entitled to access all of these records. And we've
always handled them appropriately. We have never violated any
of the provisions in the grand jury secrecy, Title III, et
cetera, that are rightly there to protect privacy interests.
That has never been an issue.
We have done the Hanssen review, we have done national
security reviews, we have done FISA Amendment Act reviews, we
have done PATRIOT Act reviews. I can go on and on about the
sensitive work my office, primarily, as I said, the staff has
done for the 25 years of our existence. We have acted
responsibly and appropriately. Nothing changed in 2010, and
what we need to do is get back to where we were before 2010
when there was a culture of openness and a dialog that occurred
between our office and the components on how we appropriately
handle those materials, review those materials to ensure that
among the most sensitive information, which is what we are
seeing when we are looking at the FBI national security
matters, we do maintain that carefully, and we should have that
dialog. But it shouldn't be whether we see it but how we handle
it and go forward.
Mr. Gosar. Mr. Chairman, I just would like to say that----
Chairman Chaffetz. Thank you.
Mr. Gosar [continuing]. This is a very important question
for the future Attorney General to be asked pointedly about her
views in openness.
Chairman Chaffetz. Thank you. Recognize the gentleman from
Virginia, Mr. Connolly for 5 minutes.
Mr. Connolly. Thank you. Mr. Horowitz, is it not true that
the President is a Kenyan socialist colonialist who lied about
his birth certificate?
Mr. Horowitz. I wouldn't even venture to try and answer
that.
Mr. Connolly. Oh, so in other words, there is some leading
questions an IG should not and cannot answer; is that correct?
Mr. Horowitz. I try not to answer questions that----
Mr. Connolly. Right.
Mr. Horowitz [continuing]. Frankly haven't----
Mr. Connolly. I appreciate the point. I really appreciate
the work IGs do, but in order for us and the public to have
confidence, we also need to have confidence in you. We need to
make sure you are purer than driven snow, and that where there
are any ethical or professional misconduct questions or even
questions about methodology that seem not to be right, that
there has to be a remedy that's accessible and transparent to
address that and correct it; otherwise, your whole
investigation is tainted if you are tainted. Would you agree
with that, Mr. Horowitz?
Mr. Horowitz. I agree completely.
Mr. Connolly. And Mr. Horowitz, you are now the chairman of
something called CIGIE, the Counsel of Inspectors General on
Integrity and Efficiency. Would you briefly tell us what CIGIE
does?
Mr. Horowitz. CIGIE is the umbrella organization of all 72
Federal IGs the Congress set up when it created the IG Act. We
have a number of responsibilities that include coordinating
reviews among IGs, working to get replacements for vacant--IG
vacancies, and we have an integrity committee that oversees
allegations against Inspectors General and their most senior
officials.
Mr. Connolly. You have an integrity committee as a subset
of CIGIE?
Mr. Horowitz. That's correct.
Mr. Connolly. And who chairs--who chairs the integrity
committee?
Mr. Horowitz. The Federal Bureau of Investigation.
Mr. Connolly. The FBI. I hope the chairman heard that. The
FBI chairs the integrity committee.
So when a charge is made about one of your colleagues,
founded or unfounded, and assuming that it doesn't go to one of
the specialized agencies, EEOC goes one place and something
might criminally be referred to another place, but that which
is left goes to the integrity committee about professional
conduct and so forth; is that correct?
Mr. Horowitz. Correct.
Mr. Connolly. And it is chaired by the FBI. So when that
committee----
Mr. Horowitz. Uh-huh.
Mr. Connolly [continuing]. In the due course of time
investigates somebody and comes up with a finding, they then
present the report to you as the chairman of CIGIE for your
review; is that correct?
Mr. Horowitz. They actually by statute don't.
Mr. Connolly. They don't?
Mr. Horowitz. That's correct. They send their report to the
Deputy Director for management at OMB, and if it is a
Presidential appointee, to the President. If it is a non-
Presidential DSE IG, it goes to the agency. It does not go to
the CIGIE chair.
Mr. Connolly. Hmm. So if the broad public wants--let's say
somebody wants to clear his name. Let's say an unfounded charge
comes before CIGIE and the integrity committee and it is
unfounded but it has to be investigated, that report then gets
buried at OMB and maybe never sees the light of day?
Mr. Horowitz. Under the statute, the records would be
maintained by the FBI, and obviously, any recipient of a report
would have a record of it.
Mr. Connolly. How often does the integrity committee meet?
Mr. Horowitz. Frankly, I'm not a member of it. I'm not a
part of it, but one of the things that I certainly want to do
is have it meet on a monthly basis so that we can move matters
more quickly.
Mr. Connolly. So, for example, if there were a complaint or
a charge filed against an IG, is there an immediate process
that gets kicked in, or do we just wait for your biannual
meeting?
Mr. Horowitz. Under the procedures currently in place,
there is a process that kicks in in terms of it going to a
working group to review it, consider it, and then processes
that go forward from there.
Mr. Connolly. And two of us on this committee filed a
complaint against one of your colleagues, and all we got after
a fairly detailed six-page, single-spaced complaint on July 31
of last year, we simply got a one-paragraph thing saying we
reviewed it and we think his response--his response
sufficiently addressed the allegations, period. Thank you very
much. Have a good day.
Is that how you would conduct your review of an agency such
as the one you're assigned to?
Mr. Horowitz. I think that is a issue that's important for
us to take up in CIGIE, to how--how to better deal with the
transparency issues that you've raised and I know we are
concerned, other members were talking about.
Mr. Connolly. Well, we are going to give you a chance,
because I assure you Mr. Cartwright and I will refile our
complaint.
Let me ask a question. I have here the Council of the
Inspectors General on Integrity and Efficiency. You're familiar
with that?
Mr. Horowitz. Yes, I am.
Mr. Connolly. In that document, it says ``IG should avoid
any appearance of partisanship in such engagements. Bipartisan
meetings and outreach is the most appropriate format for such
OIG meetings. If a bipartisan meeting is not feasible, it is
the best practice to ensure the majority and minority
understand the willingness of the OIG to meet separately.''
Would you say that a consistent pattern of meeting with
just one side of the aisle by an IG would be in violation of at
least the spirit of that guidance?
Mr. Horowitz. Congressman, it certainly isn't a practice
that my office would follow. We follow that practices of
reaching out to both sides.
Mr. Connolly. Are you aware of the fact that the ranking
member, Mr. Cummings, and I wrote a year ago, almost to the
day, February 4th, 2014, complaining about that very fact and
that very behavior by J. Russell George, the inspector general
at the tax administration of the Treasury. Are you aware of
that complaint?
Mr. Horowitz. I'm not familiar with it.
Mr. Connolly. I'll make sure you have a copy of it.
Chairman Chaffetz. I thank the gentleman.
Mr. Connolly. I thank the chair.
Chairman Chaffetz. Time has expired. We now recognize the
gentlewoman from Wyoming, Mrs. Lummis, for 5 minutes.
Mrs. Lummis. Thank you, Mr. Chairman, and I want to thank
the gentleman and women of the Office of the inspector general
for your work on behalf of the American people, those here
present and your colleagues as well.
I'd like to focus my questioning on Mr. Elkins and----
Mr. Elkins. Yes.
Mrs. Lummis [continuing]. EPA. Mr. Elkins, is it the case
that on January 16th you sent a memo to the President in
followup to your investigation on the use of private email
addresses by the Chemical Safety Board chairman Moure-Eraso,
and to the general counsel Richard Loeb of the CSB, and the
managing director Daniel Horowitz, and that these--the office
found, your office found information sufficient to support a
conclusion that these three officials used private non-
government emails to communicate on Chemical Safety Board
matters?
Mr. Elkins. That's correct.
Mrs. Lummis. And is it a violation of the Federal Records
Act to do that, to use----
Mr. Elkins. That was our conclusion, yes.
Mrs. Lummis. Okay. Mr. Chairman, I have a copy of Arthur
Elkins' inspector general's report to the President in my hand.
I would like to enter it into the record.
Chairman Chaffetz. We would like to ask unanimous consent
to enter into this into the report pending a review by this
inspector general to make sure that there is no sensitive
information that should not be released, but pending that
review and getting back to our committee, I would ask unanimous
consent that it be entered into the record.
Mr. Cummings. Mr. Chairman, I have no objection except what
you just said. I just want to make sure there are privacy
concerns, should they might adhere to.
Chairman Chaffetz. So we will review these documents, allow
the IG to review these documents before they go into the
printed record. Without objection, that's the way we'll
proceed, and I thank the gentlewoman.
Mrs. Lummis. Thank you, Mr. Chairman.
Has the White House responded to your report, Mr. Elkins?
Mr. Elkins. Yes, the White House has. Actually, yesterday
afternoon, I received a letter from the counsel to the
President, a copy of the letter that was sent to the chair
stating the intent to be compliant with the law in the
expectation that the White House--the expectation of
compliance. So I did receive a letter and there was a followup,
yes. That occurred yesterday.
Mrs. Lummis. And what followup will you be making to your
report based on the White House's response?
Mr. Elkins. Well, at this stage of the process, once our
report is done and we forward it on to the deciding official,
in this case it will be the President, it is really in the
President's ballpark to then make a decision. So there is not
much we can do beyond that. We've made a recommendation, and
you know, that recommendation needs to be acted on, so our role
is pretty much over with.
Mrs. Lummis. Do you know, are officials still using private
emails to conduct official business at the Chemical Safety
Board?
Mr. Elkins. I can't say conclusively that the issue has
been fully resolved because, you know, we haven't received--we
don't know that we received all the information that we
requested, so that's still an open matter.
Mrs. Lummis. Okay. Going back to some testimony that you
provided to this committee in June 2014. You testified that as
of that date in June that the Chemical Safety Board refused,
and to that day, continued to refuse to provide documents that
you requested, and that you determined were necessary to
investigate these activities. Did they ever provide those
documents?
Mr. Elkins. Well, they were supposed to send us an
affirmation that they have complied with our request. To this
date, we are still waiting for that affirmation, so one can
infer that maybe there is still information out there that we
don't have.
Mrs. Lummis. You don't know what you don't know.
Mr. Elkins. Correct.
Mrs. Lummis. I want to switch over to the EPA's semi-annual
report to Congress from the first half of 2014. You indicated
in that report that multiple offices at EPA were obstructing
the OIG, including Homeland Security, chief financial officer,
Chemical Safety and Pollution Prevention, and the Office of
General Counsel all within EPA. Which of those offices have
been most problematic to you?
Mr. Elkins. The office of Homeland Security.
Mrs. Lummis. Is--so no other offices as egregious as that
one, but you've had problems with all of them.
Mr. Elkins. That's a fair assessment, yes.
Mrs. Lummis. Have any of those offices improved?
Mr. Elkins. Yes, I think they have all improved. We have
made progress, and I have to thank this committee for their
efforts because, but for your efforts, I may have a different
report; but for your efforts, things have improved greatly,
yes.
Mrs. Lummis. You testified about being blocked from access
to the EPA's office of Homeland Security. I think that was back
in, well, roughly half a year ago. How were you prevented from
access to information by them?
Mr. Elkins. Well, the prevention really has come about from
just stonewalling, just not providing the information that we
have requested. It is stonewalling. That's the best way I can
describe it.
Mrs. Lummis. Well, and your testimony submitted at that
time, you said that OHS' investigation of John Beale, this was
the guy who defrauded the EPA under the guise of being a CIA
operative.
Chairman Chaffetz. The gentlewoman may finish her question
that may be asked, but the gentlewoman's time has expired so--
--
Mrs. Lummis. You know, Mr. Chairman, I'll allow one of my
colleagues to complete this line of questioning. Thank you.
Chairman Chaffetz. I thank the gentlewoman.
Now recognize the gentlewoman from Michigan, Ms. Lawrence
for 5 minutes.
Mrs. Lawrence. Thank you, Chairman Chaffetz and our ranking
member Mr. Cummings. I believe we have an obligation to
preserve the independence and the effectiveness of the Office
of the inspector general at the Department of Justice as well
as other agencies. I want to thank all of you here today for
your service and for the hard work that you do every day.
Today I would like to direct my questions--my concerns to
the Peace Corps, and if I could ask Ms. Kathy Buller. Your
testimony States that a legal opinion of the previous Peace
Corps' general counsel is ``standing in our way of fulfilling
the duties of the inspector general's office.''
Can you tell us a little bit about the legal issue here and
why there is a disagreement?
Ms. Buller. Back in 2011, Congress passed the Kate Puzey
Volunteer Protection Act, and in that Act they created a system
for Peace Corps to implement its program for assisting victims
of sexual assault, and there were a number of requirements
contained in that legislation. One of them was to create a
system of restricted reporting that would allow a victim of a
sexual assault to come and report that they had been assaulted
and receive whatever services they needed as a result of that
assault without their information being disseminated widely.
That legislation also created a mandatory duty for my
office to do evaluations periodically. Included in those
evaluations is the requirement that we review a significant
number of sexual assault cases to assure that volunteers had,
in fact, received the services that they needed.
In addition, the legislation also contained exceptions to
the prohibitions against disclosure of restricted reporting
information, and one of those exceptions contained the language
that if--if required by other State or Federal statutes, and
the argument that we have been having, or had been having with
the former general counsel, he didn't interpret that particular
provision to include the IG Act even though it specifically
said Federal statute.
Mrs. Lawrence. Thank you.
In your testimony today, you're saying that the Peace Corps
has corrected course by issuing policies and procedures that
grant OIG greater access to information; is that correct?
Ms. Buller. That's correct.
Mrs. Lawrence. So I'm pleased to hear that progress has
been made. I'm pleased to hear that. What policies and
procedures have been issued that has changed and given you the
position that greater access to the Peace Corps information?
Ms. Buller. Until we entered into the MOU, we basically had
a blackout of information concerning restricted reports with
the exception of three pieces of information, and that those
three pieces are the country of the occurrence, the type of
assault that it was, and the type of location, for example, if
it was on public transportation. That was the only information
that we got from restricted reports, and we only got that after
a letter was written by the former chairman of this committee.
So basically we got no information.
After we entered into the MOU, we got more information.
With the exception of certain pieces of PII and explicit
details of the sexual assault, we can get access to that
information. There is several problems that still remain with
that, however. We are dependent on the agency to go through all
of their records to determine what needs to be redacted from
the information that we get. We are never going to be fully
assured that the information that we got is the information
that was contained in the files. We will never be able to go in
and just do an audit of the system to make sure that they are
adequately recording everything that needs to be recorded.
One of the first things that we did years ago was to do an
audit of the crime incident reporting system to make sure that
the crimes that were being reported were being properly
categorized. We could not do that type of an audit on the
restricted reporting information. There are just a lot of
prohibitions to general oversight that we still will not be
able to do.
Mrs. Lawrence. I want to thank you for that update. But one
of the things that I'm hearing from you while we have made
progress, we still have some issues that we need to deal with,
so I want to get back, but I want you to know that we truly
support the work that you do, and this committee is here to
look at those issues as we move forward. Thank you.
Chairman Chaffetz. Thank the gentlewoman. We'll now
recognize the gentleman from North Carolina, Mr. Meadows for 5
minutes.
Mr. Meadows. Thank you, Mr. Chairman. Thank each of you for
your testimony today.
Mr. Elkins, I'm going to follow up on Mrs. Lummis'
questioning and complete her question, and it deals with an EPA
employee who we heard testimony here about him being a CIA
agent for a lengthy period of time, actually, and you know, as
a story that can only be made for television or a movie as it
unfolded. You have been investigating that, but I'm troubled to
hear, and that's what I want to followup on, is that you
indicated that you tried to interview the Office of General
Counsel at the EPA, and that interview was denied. Is that
correct?
Mr. Elkins. We tried to interview a--an attorney in the
Office of General Counsel.
Mr. Meadows. Right.
Mr. Elkins. Yes. And we did not get cooperation from that
attorney.
Mr. Meadows. And so they--are they claiming the Fifth, or
why would they not allow you to get to the bottom of what I
think all Americans believe is just an unbelievable story?
Mr. Elkins. Well, from what I understand, initially, she
just did not want to talk to us. I'm not quite sure that there
was any privilege given, but subsequent to that, I think one of
the areas of privilege is attorney/client privilege being that,
you know, she was a agency attorney and the agency was the
client, and so in some sort of way they thought that----
Mr. Meadows. In a twisted way, attorney/client privilege.
Mr. Elkins. It does not apply.
Mr. Meadows. I'm sure we have a few attorneys out here who
would have a hard time with that argument; would not you agree?
Mr. Elkins. So, absolutely.
Mr. Meadows. Okay. So let us go on a little bit further
because the chairman, in his opening questioning, talked about
another employee who had an issue with an intern and 16 other
alleged offenses of a sexual nature, and yet there was a delay
there in terms of getting you the information; is that correct,
Mr. Elkins?
Mr. Elkins. That's correct. We were not able to get all of
the information.
Mr. Meadows. So because of this delay, we put potentially
other women in harm's way; would you agree with that?
Mr. Elkins. I would agree with that, yes.
Mr. Meadows. So if we are doing that, that this delay of
information that we are hearing that is a consistent theme, not
only with you but I would imagine with a number of others in
the audience here, has real consequences; wouldn't you agree
with that?
Mr. Elkins. It has very serious consequences.
Mr. Meadows. So if it has serious consequences, what do we
need to do to compel compliance, because I think it is very
clear on both sides, both Democrat and Republican, that we
think that this is an important issue, that the intent of
Congress is that you should get all of the information and not
some, and it shouldn't be subject to legal interpretation. What
do we need to do to enforce compliance?
Mr. Elkins. Well, that is the million dollar question.
You're absolutely right. There is a gap in the IG Act that
allows these sorts of things to happen. We can only go so far.
I can only make recommendations if it is not a criminal matter.
We only have so much authority, and we rely really on this body
right here to come up with some solutions. We would be glad to
sit down and talk to you about some ideas.
Mr. Meadows. Well, here, while you're under oath, and we
will not take the time today, but I would ask each one of you,
but also anyone else that happens to be listening, we want
names. We want you to name names of those that are presenting
the problem, and let the chairman and the ranking member know
that, and we will followup.
So it is imperative that we get to the bottom of this so
that no one else potentially gets harmed, whether it is a
whistleblowers or anybody else.
Mr. Horowitz, let me go back to you because one of my
colleagues mentioned about the integrity committee and the
importance of making sure that the IGs do their job and that--
my understanding is that the head of the integrity committee is
the FBI.
Mr. Horowitz. That's correct. They chair the committee.
Mr. Meadows. So they chair the committee, and I know that
on January 21st--and I would ask unanimous consent that the
letter gets put into the record, Mr. Chairman. It was a letter
from Chairman Chaffetz and Ranking Member Cummings and myself
that really wanted us to get the report with regards to some
serious allegations that were made, and I would ask unanimous
consent.
Chairman Chaffetz. Without objection, so ordered.
Mr. Meadows. So do you not find it ironic or troubling that
the FBI who fails to give you information, Mr. Horowitz, chairs
this particular committee and yet they have not complied with
this letter? Do you find that troubling?
Mr. Horowitz. Certainly is a similar concern to what we
have and the issues we face.
Mr. Meadows. So if we are being stonewalled, to use Mr.
Elkins' language, if we are being stonewalled in terms of
transparency within CIGIE, would it not be a better place to
have someone else chair that other than the FBI that may have a
conflict of interest?
Mr. Horowitz. I think there was a serious discussion about
that last year in trying to figure out how to reform and
address some of the concerns in the integrity committee, and I
know there are many members who continue to have that question.
Mr. Meadows. And do you have the----
Chairman Chaffetz. The gentleman's time is expired. We
still have members hoping to ask questions, so----
Mr. Meadows. I will yield back. Thank you, Mr. Chairman.
Chairman Chaffetz. Thank you. We'll now recognize the
gentleman from California, and I want to make sure I pronounce
his name properly. Is it Lieu?
Mr. Lieu. Yes.
Chairman Chaffetz. Very good. Mr. Lieu from California is
now recognized for 5 minutes.
Mr. Lieu. Thank you, Mr. Chairman. I have a question for
Ms. Buller. I agree with your interpretation of the Kate Puzey
Peace Corps Volunteer Protection Act. I find it impossible to
believe that Congress would have intended with this Act, which
was designed to prevent sexual assault cases in the Peace
Corps, to somehow obstruct IGs from investigating sexual
assault cases.
My question to you, because I believe that prior opinion by
their prior general counsel is ridiculous. We now have a new
general counsel. What is your office's relationship with the
new general counsel at the Peace Corps, and do you know whether
or not what the view is of the new general counsel about that
legal opinion?
Ms. Buller. My relationship with the new general counsel is
very good so far. He has been there since October, and we have
had several meetings and discussed a number of issues. I have
not specifically discussed the legal opinion with him. I have
spoken to the Director about it a number of times. I think it
is fair to say that I don't think that she would be opposed to
having it revisited. I don't know what the position of the new
general counsel is on that, but that is something that we could
find out.
Mr. Lieu. Thank you. And then I have a question for the
panel. When I served on active duty in the Air Force, I was a
JAG, and one of my duties was to work with inspector generals
and to review their reports and make recommendations to the
commanding officer, but for this IG system to work effectively,
you needed all employees to feel like they can share whatever
it is they want with IG, completely free and clear. And my
concern is, if we have a lot of one off memorandums of
agreement and different specific issue areas, people get
confused, they don't know what they can or cannot share, so it
seems to me that we need to change the law.
And I understand your concern, following up on what
Congresswoman Norton said about if we were to try to make a
change and it didn't happen, it can be used against you. What
if instead we put in a pretty harsh penalty. We do not change
the standard of the IG Act, we do not say we meant what we
said. We basically add a pretty harsh penalty for violating it.
Would that help you do your job?
Mr. Horowitz. I think that is certainly one vehicle. That
is frankly why we were appreciative of section 218 in the
Appropriations Act because it starts to put forward that notion
of we mean what we say in Congress in section 6(a), and through
an appropriations bill you are obviously limited in what you
can do, but that was a way that Congress tried to take that
action, and I think what you mentioned, Congressman, is another
way, vehicle to get at that issue.
Mr. Lieu. Thank you. I yield back my time.
Chairman Chaffetz. I thank the gentleman. Now recognize the
gentleman from South Carolina, Mr. Mulvaney for 5 minutes.
Mr. Mulvaney. Thank you, Mr. Chairman. I want to talk with
all the witnesses a little bit about how and when this started.
Mr. Elkins, I will start with you because you mentioned
something that I was not familiar with, which was this
memorandum of understanding, I think if I heard it correctly,
between Homeland Security and the EPA that you were not
involved with. When did that happen?
Mr. Elkins. I don't have the date right off the top of my
head, but I believe 4 or 5 years ago.
Mr. Mulvaney. And I think that is what you said to Mr.
Cummings. You have had this difficulty now from 4 or 5 years
ago.
Mr. Elkins. Yes.
Mr. Mulvaney. Ms. Buller, I ask you the same question. Is
there a point in time where you saw the practices changing?
Ms. Buller. Yes, with the passage of the Kate Puzey Act. It
was November 2011.
Mr. Mulvaney. Okay. So November 2011.
Mr. Horowitz, I think you testified that there was a FBI
general counsel opinion in 2010 that was sort of a touchstone
for the change in practices within the agencies that you
oversee. By the way, what was the--what was the subject matter
of that--of that general counsel's opinion?
Mr. Horowitz. There were a couple of reviews going on. One
was Fast and Furious, one was our review of the FBI's use of
its material witness warrants and whether it was appropriate in
exercising its national security authority there. The third was
the FBI's use of national security letters under the PATRIOT
Act, so again we are trying to conduct oversight over the FBI's
use of authorities that Congress gave to it.
Mr. Mulvaney. Mr. Elkins, do you remember, was there
anything pending at your agency or was there something that
happened that gave rise to the MOU? I am just trying to figure
out why it suddenly happened.
Mr. Elkins. You know, I think it was a matter of turf
battles. I think it was personalties deciding that they wanted
to carve out a certain section of authority for themselves, and
they saw a conflict with the IGs role.
Mr. Mulvaney. Okay.
Mr. Elkins. That's my opinion.
Mr. Mulvaney. All right. But what I'm hearing is it is
2010, 2010 or 2011, and 2011. Thereabout is where it changed. I
wish I could ask that question of everybody. We may end up
doing that, if they saw a particular time when the weather
changed, for lack of a better word.
I do want to come back and talk to Mr. Horowitz about the
question one of my colleagues asked you regarding the
President's budget, to go back and cover it real quickly. We
did add the language in section 218 last year. It passed with
bipartisan support, folks on both sides of the aisle supported
that language, and the President has taken it out of his
proposed budget. I originally thought that that might be an
oversight. The budget, as you have seen it, is something like
this, and you could easily miss something like that, and I was
surprised to see the language they included, and I'll read it
to you again, because I think it merits a little bit of
discussion.
This is from the President's proposed budget in explaining
that language coming out. It says, ``The Department is unaware
of any specific materials the OIG believed necessary to its
reviews but to which the OIG has not been granted access.''
It is just not possible that that is a true statement, is
it?
Mr. Horowitz. What that statement does is gloss over how we
get the documents ultimately.
Mr. Mulvaney. Okay. Tell me about that.
Mr. Horowitz. We do not get them pursuant to the IG Act,
some of these documents. What happens is the FBI decides, based
on its legal views, that other statutes limit their ability to
hand it to us, so they go to the Deputy Attorney General or the
Attorney General and say ``can we give it to them, do you give
us permission to give it to them?'' The AG or the Deputy makes
a determination that our review will help them manage the
Department as opposed to the inspector general making that
decision, an independent entity, it is being made--the
Department, in essence, is deciding for itself whether our
reviews will help them so they will allow us to look at the
records.
Mr. Mulvaney. I have been in government to know--long
enough to know how you can gloss language, and I see exactly
what you are talking about. I think the bottom line is that you
still think that the language in 218 is necessary and helpful
to you.
Mr. Horowitz. It has been necessary. It has been helpful. I
can--there have been several issues where--we had with the DEA
recently where, before December--mid December when this became
law, we were having difficulty getting those records. In two
instances in January, we--I engaged with the Administrator of
the DEA and an associate in the Deputy Attorney General's
office who were very helpful in working through those issues,
but we made clear we had a deadline under 218, and in our view,
we needed the documents by the deadline, and so in those
instances I can give precise examples where it has been
helpful.
Mr. Mulvaney. Let me ask you very quickly in the time I
have remaining about an issue that you raised about the
warrantless searches, because there was an article in The New
York Times just last month about it. There was a new report
that was released that had been declassified but still redacted
and sent to The New York Times, and it actually quoted you or
it cited you, it didn't quote you, that said that in the report
on the warrantless searches that was delivered to the Times,
the inspector general, Michael Horowitz, concluded the FBI was
doing a good job, The New York Times' words, making sure that
email accounts targeted for warrantless collections belonged to
non-citizens abroad.
And I guess my question is this: In--and I'm not asking you
to give any classified information. I want to make that clear.
In conducting the review that is the subject of the report that
was recently made public, did you get everything that you asked
for and everything that you felt you needed in order to conduct
your investigation?
Mr. Horowitz. To be clear, in each of the areas, we have
ultimately gotten what we have needed to do our work. The
problem has been in various reviews, and I don't recall that
that is one where it came up, but certainly others related to
the FISA, PATRIOT Act, others are ones where these questions
have been raised. In fact, one of the categories that has not
yet played out but that the FBI has indicated it has questions
about whether it could share information with us is raw data
from FISA matters, and so what Congress has asked us to do is
oversee the FBI's authorities in those areas to make sure they
are exercising appropriately. To do that, we have to know that
we are getting everything and we are getting everything
promptly. That is the challenge we keep facing over and over
and over again.
Mr. Mulvaney. Thank you, sir.
Mr. Meadows [presiding]. I thank the gentleman from South
Carolina. The gentlewoman from the Virgin Islands, Ms.
Plaskett, is recognized for 5 minutes.
Ms. Plaskett. Thank you very much. Good morning. Thank you
so much for your patience and your professionalism in dealing
with these issues. I wanted to direct my questions to Mr.
Horowitz, and thank you for testifying. You testified before
this committee last September and you raised several concerns
about your office's ability with the granting of timely access
to the information. And during that testimony, you stated that
the FBI and other Department components initially refused the
office's request; is that correct?
Mr. Horowitz. That is the issue, yes, that we have been
having.
Ms. Plaskett. And that after that refusal, it was then
elevated to another level and ultimately either to the Deputy
Attorney General or to the Attorney General's office at which
time the quote was, you were granted us permission to access
the records by making the finding that our reviews were of
assistance to them.
Mr. Horowitz. Correct.
Ms. Plaskett. And that the Department further stated that
their intention to do so in future audits and reviews and that
the current Department's leadership had supported our ability
to access those records.
Mr. Horowitz. That is correct.
Ms. Plaskett. So the issue for the Department of Justice
and FBI have been the MOU and the legal opinion that was given?
Mr. Horowitz. The issue is that the FBI believes it needs
to go through this process that they have set up. There is no
actual MOU in place. This is a process they've set up in order
to get that permission here.
Ms. Plaskett. And that process was set up by what measure?
What was the reason for them setting it up?
Mr. Horowitz. There was a--it was in response to the FBI's
legal opinion.
Ms. Plaskett. Legal opinion. So the legal opinion----
Mr. Horowitz. It was not vetted through us.
Ms. Plaskett. Their legal and their belief constrains them
from freely giving----
Mr. Horowitz. Correct.
Ms. Plaskett [continuing]. Information related to grand
jury, wiretap, Fair Credit Reporting Act information, those
types of----
Mr. Horowitz. And maybe others.
Ms. Plaskett. And other types of information.
Now, it is my understanding that the Department has
ultimately granted access to the requested reports and that has
there ever been an instance that you already stated that you
did not receive that?
Mr. Horowitz. We are not aware of any.
Ms. Plaskett. You are not aware of any?
Mr. Horowitz. Right.
Ms. Plaskett. But it is a timing factor?
Mr. Horowitz. It is a timing factor, and I will add, it is
a waste of resources factor.
Ms. Plaskett. Correct.
Mr. Horowitz. The time it takes me, and frankly, my staff
to do it, and the FBI has built this mechanism to review these
records solely for the purpose of having to go to the Attorney
General, the Deputy Attorney General to ultimately give them to
us.
Ms. Plaskett. Uh-huh.
Mr. Horowitz. It is--you----
Ms. Plaskett. Well, having worked on the staff of a Deputy
Attorney General who has oversight over 9,000 attorneys, many
different agencies and divisions within the Department of
Justice, I can imagine that it would take quite a number of
months in some instances before you would receive--you would
come up in the cue to receive the information and the
permission, correct?
Mr. Horowitz. And to be fair, the Deputy Attorney General,
the Attorney General have been very supportive of getting that
material to us. The problem is, at every step of the process
there is a delay. My staff has to go through the issues. The
FBI has to review the records. It then gets elevated to me. I
elevate it to the general counsel in the FBI or the Director or
the Deputy Director. It then goes from there up. All of that
takes time.
Ms. Plaskett. So now, am I understanding also is that the
Department of Justice has stated that they are in a legal
review of this to determine if this should be--this process
should be changed?
Mr. Horowitz. Correct.
Ms. Plaskett. And what is the status of that review?
Mr. Horowitz. To my understanding, all of the briefing, if
you will, was submitted to the Office of Legal Counsel. My
office sent materials. CIGIE sent its submissions. I understand
other components sent submissions back in May of last year. We
have heard at various times we might get the opinion in the
fall, later in the year, but we still have no opinion.
Ms. Plaskett. No deadline has been given for the opinion?
Mr. Horowitz. Not that I am aware of.
Ms. Plaskett. So it would be helpful to you for this
committee to either push forward that opinion to be granted or
a change in the law?
Mr. Horowitz. Agree completely, Congresswoman. From our
standpoint now, any opinion is what we are looking for.
Hopefully it is a good opinion.
Ms. Plaskett. Uh-huh.
Mr. Horowitz. But frankly, if it is not a--we are operating
under the bad-opinion outcome.
Ms. Plaskett. Right.
Mr. Horowitz. That's what's been set up, and we are all
struggling with it because of the lack of a decision. We get a
decision, my guess is Congress would then--if it is bad,
Congress, as we have talked about today, I think would probably
act pretty promptly.
Ms. Plaskett. Well, it appears that you are operating under
a very old law which has broad scope for the Inspector
General's Office, and contrary to maybe my colleague's opinion,
the law is not stagnant, and so there is constant changes that
occur within the law, particularly in areas where technology or
issues or circumstances change which will allow for opinions or
further clarification or some other mechanism to make sure that
the law is applicable to the time in which you are operating.
Mr. Horowitz. There certainly are some issues where that
comes up. I do not think, frankly, in the ones that the FBI has
raised with us, FBI--grand jury, the law has been the same all
through. Title III, it has been the law all the way through,
but there are other areas where we havehad discussions about
how evolving information and technology impacts our access.
Ms. Plaskett. Well, I am thankful that the Department is
working with you, and I am hopeful that this committee will be
able to move that along much faster. Thank you so much, and I
yield the balance of my time.
Mr. Meadows. The gentlewoman's time is expired. The chair
recognizes the gentleman from North Carolina for 5 minutes, Mr.
Walker.
Mr. Walker. Thank you, Mr. Chairman. Thank you, panel, and
to all the IGs who have been sitting out here for right at 2
hours now. I will not use my full 5 minutes by trying to get
strictly and directly to the point.
The pattern here of obstruction is obviously at this point
not an isolated incident, and specifically I want to dial
down--Ms. Buller, the ``u,'' a short ``u'' or a long ``u,'' is
that Buller or Bueller?
Ms. Buller. It is Buller.
Mr. Walker. Okay. Buller. All right. Fair enough. I want to
talk specifically or work toward a question here. I find some
of the things that you have shared today very concerning. My
wife helped launch the sexual assault nurse examiner program at
Wake Forest University Baptist Medical Center, and as a
minister for 15 years, I have counseled some people who walked
with some of the darkest times of their life. These victims,
there are many obstacles, I will put it this way, to come
forward to share such tragic moments in their life, and I'm
troubled, I believe your words were, though there have been
improvements, specifically after the last two committee
meetings, that there have been improvements, challenges remain.
And I struggle with the fact that there are challenges
remaining in such a sensitive and potentially damaging area. I
do not understand that because we are not dealing with just
unethical behavior. We are dealing with criminal behavior in
some of these incidents. So my question for you today is
because of the obstructions that you continue to face from
whoever, unnamed sources at this point, hopefully that will be
resolved in the future, is it fair to say that we could be
protecting these predators--and I will say predators because
even, and the FBI has been thrown out a few times today,
according to the FBI, the one behavior pattern that they have
no proof can be amended are those who are continually sexually
assaulting others.
So my question is, are we, at some point, if we cannot
remove these barriers or challenges, are we protecting these
predators who, in remote areas, have no law enforcement people
to contact?
Ms. Buller. I think the issue we have is with restricted
reporting, and the way--the reason it was created was to allow
people to come forward and get the services they need without
law enforcement necessarily launching an investigation, and we
respect the whole concept of reporting and why it was put into
place.
The problem being that if law enforcement does not find out
about it, then there is nothing that law enforcement can do,
but that is a choice that is being given to the victim, and it
is a legitimate choice, and Congress saw that as a legitimate
choice when they created the Kate Puzey Act, and our problem is
not with restricted reporting. Our problem is with the fact
that restricted reporting has been used to keep information
from my office that we need to perform our oversight
capabilities. Even if we had access to the restricted reported
information in total, my law enforcement officers, by statute,
could not go out and investigate.
Mr. Walker. What do you think may be the first immediate
approach is as far as resolving the frustration?
Ms. Buller. What I did would be to have the Peace Corps
retract the legal opinion, because it is the legal opinion that
was the impetus for all of the policies and procedures. To date
it has not been retracted. The general counsel left the agency,
I believe, in October, and we do have a new general counsel. We
continue to work with him, and hopefully we can get that
retracted, but as I said in my testimony, if we get it
retracted for us, it does nothing to help Art and Mike
Horowitz.
Mr. Walker. Right. A real problem. Thank you Mr. Chairman,
I yield back.
Chairman Chaffetz. Thank the gentleman. Will now recognize
the gentleman from California, Mr. DeSaulnier. Did I pronounce
that properly?
Mr. DeSaulnier. That was great, Mr. Chairman. I apologize.
Chairman Chaffetz. I can not do any better than that. So I
will now recognize you for 5 minutes.
Mr. DeSaulnier. I respond to almost anything close to that,
Mr. Chairman.
Well, I want to thank you all for the job you do. I really
do not think we could overstate the importance of the integrity
of the work you do. As someone who believes in the possibility
of government being a force of enormous good in this country, I
think that those who lack that, it really comes down to trust.
So, Mr. Elkins, I want to talk to you specifically about
some of your comments about the Chemical Safety Board. As you
may or may not know, in the area of California that I
represent, we have a very large intensity of chemical and
hazardous material facilities. It was very important to my
predecessor that this group work well. Just last week we had a
major report from the board on a major incident at the Chevron
refinery in Richmond that just narrowly missed killing or
seriously injuring 18 constituents.
So knowing of the importance, first let me ask you a
general question. You said about not reaching a judgment, this
balance that you all have to face and then the erosion of
trust. Usually it takes two parties, whether it is deliberate
or not, to have that happen, and some of the other comments by
some of my colleagues. Could you--you have done this for a
while. Have there been incidents from your side, from the IG
community, where you wish that the material you had gotten had
not been used in a manner that it had been used that helped to
get us to this point where there is an erosion of trust?
Mr. Elkins. Off the top of my head, I can not really think
of any examples where that has occurred, but let me just state
that we are not above the law.
Mr. DeSaulnier. Understand.
Mr. Elkins. We have an obligation as well, and we could be
subject to sanctions, criminal prosecution if we violate the
law. So it is--I am not talking double standards here.
Mr. DeSaulnier. Okay. And then specifically to the CSB, and
I am familiar some of the personality issues that have happened
at the board. So in your testimony in September, you issued a
7-day letter to try to get the information of the private
emails, and that you said that it was the only time in your
tenure that you had to issue a 7-day letter. Is that accurate?
Mr. Elkins. That is accurate, yes.
Mr. DeSaulnier. So in spite of that, you were able to
complete your investigation, and that led you to, ``evidence
sufficient to support a conclusion that the chairman and two of
his senior officials violated the Federal Records Act in
implementing regulations by using non-governmental email
systems.''
Now, in your investigation, was that deliberate? Did these
three individuals deliberately use their private emails to
avoid the Federal Records Act?
Mr. Elkins. It would sure seem that way, yes.
Mr. DeSaulnier. And are there consequences for them, either
individually or the board?
Mr. Elkins. There definitely are consequences.
Mr. DeSaulnier. Have there been consequences implemented?
Mr. Elkins. Well, the consequences are that we sent that
information on to the White House with--with the ROI, and then
the White House would then have to take actions. And the White
House, as I said earlier, has issued a letter directing that
they comply with the law.
Mr. DeSaulnier. So this is an issue of compliance. And I
find in my previous life in local and state government is
always a big issue, whether it is a civil grand jury or it is a
legislative body trying to get people to comply, and it goes to
a little bit about some of the concerns by previous speakers
about the Peace Corps as well.
So in terms of compliance specifically to CSB, are you
satisfied that they are complying now with the letter of the
law?
Mr. Elkins. No, I can not say that I am totally satisfied,
because they, again, have not affirmed that they have complied
with our requests, so we are still waiting. So until I receive
that affirmation, I do not know what I do not know.
Mr. DeSaulnier. Okay. And, Mr. Horowitz, and again, my
personal experience, whistleblowers are really important, but
how you handle them is really important. So as you work on your
working group, and just briefly if you could mention some of
the struggles, my experience may be accurate or not, but it is
mine, the front end and the back end are two of the most
important, so trying to find out if somebody actually is valid
and has objective material, and I wonder if you could comment
on that, and then the back end when it comes to retribution.
And then last, I have a question on a different subject
matter. Maybe you could tell me, when you allocate resources
for investigations, what percentage do you put to just getting
the information, and has that changed over time?
Mr. Horowitz. On the whistleblower issue, I could not agree
with you more, Congressman. I think it is very important for
IGs and our staffs to respect allegations that come in,
thoroughly look at them, evaluate them, respond. I have found
that simply the response and the interaction with folks coming
forward is very important even if you ultimately conclude there
is not merit or there is not sufficient information to
corroborate the allegation. So that is, I think, very important
on the front end.
And then on the back end, I agree with you. If there is
certainly confirmation of the allegations, making sure that
there are processes in place and protections in place to ensure
that whistleblowers who suffer retaliation have a vehicle to
come forward and get remediation for what occurred and get it
done promptly. And, frankly, one of the concerns, as I said
that I have about the issue that is in the letter today, is
that it comes up in two whistleblower cases where we have
outstanding requests for several months, and the reason we are
being asked to wait even longer through this week or next week
is so the FBI can determine what are things we do not get
access to so the Attorney General Or the Deputy Attorney
General can decide we should get access to it. That is a
problem also in terms of the message to a whistleblower as they
look at issues if they see that process.
Mr. DeSaulnier. Thank the gentleman. Appreciate it.
Chairman Chaffetz. We will now recognize the gentleman from
Georgia, Mr. Hice, for 5 minutes.
Mr. Hice. Thank you, Mr. Chairman.
The law is very clear when it states that all records,
reports, documents, people and so forth are to provide the
information that you need, and, of course, that is the issue
that brings us here. You have stated clearly, each of you, that
in order to do your job, you need 100 percent of the
information that you request. That being the case, what
percentage would you say of that 100 percent do you not receive
or is delayed to the extent that it is problematic? Just--and I
realize this is just a guess, but what would you say?
Mr. Horowitz. Our issue has been the delay issue and the
timely receipt of it, and the Congressman's----
Mr. Hice. Okay.
Mr. Horowitz [continuing]. Question as well, which is it is
taking a substantial amount of my time as inspector general and
a significant time of certain teams of mine who get delayed.
Ultimately they may get the records, but it is taking us, in
some instances----
Mr. Hice. Okay. How much is delayed?
Mr. Horowitz. Months----
Mr. Hice. Okay.
Mr. Horowitz [continuing]. Of time.
Mr. Hice. The rest of you experience a similar type of
thing?
Mr. Elkins. Yes.
Mr. Hice. Okay.
Ms. Buller. In my case, we do not--up until recently, did
not get the records, period, until we entered into the MOU.
Mr. Hice. Okay. So we have a whole gamut of issues here:
Significant delays to the extent that you are unable to do your
job or not receiving the material at all?
All right. Last year Attorney General Holder testified
before the Judiciary Committee in April at that time regarding
this type of issue. He said, ``I'm not sure exactly what the
process is, but I do not think that it is anything that has had
a negative impact on any investigation that he's tried to
conduct.''
What is your assessment of that statement? It sounds like
it is not true.
Mr. Horowitz. Well, the impact on our investigations has
not been that we did not ultimately get the records. The impact
on our investigations has been the time delay, and if there are
findings associated with our efforts, that means we do not
learn of them early enough, the Attorney General does not learn
of them early enough, and the Congress does not learn of them
early enough.
Mr. Hice. But the Attorney General said that he is not
aware of anything that has had a negative impact at all on the
investigation, and that would not seem to be true.
Mr. Horowitz. Well, as I mentioned, that is the impact we
have had, that it's had on us, has been the delay and the delay
in our ability to do our work and get our reports done, and
that does have an impact on--on our ability to do what you--
what Congress has instructed us to do.
Mr. Hice. All right. I understand. Mr. Horowitz, you
mentioned that during this time when you experienced personally
in 2010 delays and the type of things that you are
experiencing, that was right in the middle of some of the
issues that were being dealt with, the PATRIOT Act, national
security issues, Fast and Furious.
Mr. Horowitz. Correct.
Mr. Hice. There were a number of issues taking place at
that time. And we have also determined today that our system
around here in Washington operates with authority, people do as
they are told. Is it reasonable to the average person hearing
this information today to conclude that it would appear as
though somewhere someone in whatever position of authority has
been able to direct agencies to either withhold or delay
information? Would that be a reasonable conclusion?
Mr. Horowitz. In my instance, it was an FBI general counsel
opinion that--and it was from--through the FBI back in 2010.
Mr. Elkins. In my opinion, generally it starts at the top
in terms of messaging, in culture. If the top says it is okay
to do it, then everybody else will fall into line.
Mr. Hice. Okay.
Ms. Buller. In my case, it was a general counsel opinion
that was issued that caused the problem.
Mr. Hice. Okay. So this--the problem that you are facing is
coming from somewhere at some higher level that is giving
directives and it is going through. So as one of my colleagues
mentioned a while ago, we need some names. If you are aware of
any, we--in order to get to the root and pull the root of this
problem up, we need some names, we need something to go by.
Let me shift gears real quickly in the brief moment that I
have left. Have--in the midst of your requesting information,
have you, to your knowledge, ever received back information
that was edited, altered, redacted in any way?
Mr. Horowitz. We have initially received redacted
information. We have also learned through our reviews that
reports--productions that we were told were complete, it turned
out when we interviewed witnesses were not complete, and we had
to go back and ask for supplemental records.
Mr. Hice. Okay. Mr. Elkins?
Mr. Elkins. Yes. I ca not think of any instance where we
have received information that has been redacted.
Mr. Hice. Okay. Ms. Buller.
Ms. Buller. Well, in our case, pursuant to the MOU, they do
redact information before they give it to us.
Mr. Hice. Okay. So we have a multiple issues of problems
here, where you are not receiving information, you're receiving
delayed information, or you're receiving information that, in
one way or the other, is inaccurate when you receive it?
Mr. Horowitz. That--we are being told it is complete, and
it turns out we find other records along the way.
Mr. Hice. Okay. Thank you.
Chairman Chaffetz. I thank the gentleman. I now recognize
the gentleman from Pennsylvania, Mr. Cartwright, for 5 minutes.
Mr. Cartwright. Thank you, Mr. Chairman.
The premise of the hearing today is getting full and
efficient access to the information necessary to conduct
effective oversight, but Congress needs to do oversight on the
Inspectors General as well. In February 2014, as he said here
today, Mr. Connolly and I wrote a letter to Deputy Director
Colbert, inspector general Fong, and Deputy Assistant Director
Campbell to raise serious concerns over the troubling
activities of Treasury inspector general for Tax
Administration, TIGTA for short, J. Russell George, with
respect to TIGTA's May 14, 2013, final audit report named
``Inappropriate Criteria Were Used to Identify Tax Exempt
Applications for Review.'' This included IG George appearing to
have officially sanctioned audit processes and procedures that,
both in appearance and in reality, indicate TIGTA's Office of
Audit was conducting an audit on behalf of and in consultation
with Republican members to the exclusion of Democratic members
and staff.
We concluded that TIGTA produced a fundamentally flawed
audit that harmed the public interest to such a severe extent
that trust and confidence in TIGTA's independence, ethics,
competence and quality control have been called into question
and its effectiveness had been threatened.
We urged the Integrity Committee to investigate the matter.
Their response was ridiculous. I am going to read it to you.
``Dear Ranking Members Connolly and Cartwright, the
Integrity Committee, IC, of the Council of Inspectors General
on Integrity and Efficiency recently reviewed the allegations
you provided about non-conformity to GAGAS and evasiveness in
testimony before Congress by J. Russell George, inspector
general for Tax Administration. Your office referred these
matters for IC consideration on February 5, 2014.
The IC reviewed the allegations against Mr. George and
requested his response. The IC reviewed the response from Mr.
George and determined that his response sufficiently addressed
the allegations, thus, the IC determined the matter did not
meet the threshold for further consideration and has closed the
matter. Thank you for your attention to this matter. Sincerely,
Angela Byers, Acting Chair, Integrity Committee.'' That was
their response.
In September 2014, my office and the Connolly office
requested a copy of the complete unredacted response that was
submitted to the integrity committee by Mr. J. Russell George,
and we still have not got a response. If his response was so
comprehensive and beyond reproach, then why can't we even see
that response?
Look, this is about transparency and consistency. We would
like--we would like to see all the documents related to this.
Mr. Horowitz, can I get a promise from you that you will
share that unredacted response with us in a timely fashion?
Mr. Horowitz. Congressman, I learned about this last night
from Congressman Connolly's staff. The statute that creates the
integrity committee makes the FBI as the custodian of records
for integrity committee matters. So I will follow up and ask
the FBI about the records, but I--I know nothing more than what
you just referenced in the letter, and need to follow up on
that.
Mr. Cartwright. Will you do--will you follow up?
Mr. Horowitz. Yes, I will follow up----
Mr. Cartwright. Thank you, sir.
Mr. Horowitz [continuing]. On the request.
Mr. Cartwright. Because I hope that you and Congressman
Connolly and I and IG George can work together to get the
information we need so that Congress can do its necessary
oversight. Responses like that are just ridiculous and cannot
be tolerated if we are going to believe in transparency and
consistency in our oversight process. Do you agree with that?
Mr. Horowitz. I do. And I have heard concerns raised by
members of both parties about the Integrity Committee and
making sure it is operating more effectively in terms of
timeliness as well as transparency concerns, and something that
we need to talk about. And I think, frankly, some of them are
statutory based on how the Integrity Committee was created. So
I think part of it is us talking with the FBI about the
processes, but part of it is also talking about whether there
needs to be any fixes to the statute.
Mr. Cartwright. Then I thank you for your commitment, Mr.
Horowitz. And, Mr. Chair, I yield back.
Chairman Chaffetz. Thank the gentleman. Now recognize the
gentleman from Oklahoma, Mr. Russell, for 5 minutes.
Mr. Russell. Thank you, Mr. Chairman.
The three of you and scores of your colleagues that stand
with you believe that the IG Act is clear in granting you the
authority to obtain all the documents, and that has been
discussed many times respective to each department. A
Department of Justice Office of Legal Counsel opinion is
pending that has been referenced that will either agree or
disagree with the law. An affirmative ruling solves the
dispute, a negative ruling will provide legal and congressional
options to uphold the law against the ruling.
Given the importance of the OLC ruling to unconstipate the
timely review of information, what can Congress provide, in
your view, to help expedite the ruling so you can do your job?
Mr. Horowitz. I think continued contact with the Justice
Department by the committee and Members of Congress, as I have
been doing, to try and find out when we can expect an opinion.
Mr. Russell. Mr. Elkins?
Mr. Elkins. I will concur with Mr. Horowitz.
Mr. Russell. Ms. Buller?
Ms. Buller. From personal experience, I have noticed that
every time Congress has gotten involved in our issue, we have
seen movement, at least as far as Peace Corps is concerned, so
I concur with what has been said.
Mr. Russell. Would there be any other options beyond asking
when a date could be expected? I mean, obviously they have told
you that it may be in the fall, it may be--we are not sure.
Congress could also get that type of an answer. What other
options might be available?
Mr. Horowitz. Well, certainly something I think we will
discuss and think about and talk with the committee as to
whether there are other options and other issues. As I said, I
think Section 218 in the Appropriation Act has had a positive
impact generally. Obviously there has been an issue that I have
addressed today, but that is a vehicle by which there has been
some change. And I concur fully with what inspector general
Buller said, which is every time Congress has gotten involved,
it has resulted in attempts to address some of our concerns.
Mr. Russell. Other members of the panel?
Okay. Thank you, Mr. Chairman. I yield back my time.
Chairman Chaffetz. Thank you. This--this marks the halfway
point of our hearing, and--hang in there. We are getting there.
We are getting there.
All right. We will now recognize the gentleman from
Georgia, Mr. Carter, for 5 minutes.
Mr. Carter. Thank you, Mr. Chairman. And--thank you, Mr.
Chairman.
And thank all of you for being here and thank you for what
you do. Please don't ever think that what you do is not
important, please don't ever think that what you do is not
appreciated. It is very much so.
I can't help but get the impression, and please correct me
if I am wrong, but at least in certain circumstances, it seems
to be us against them. How did that evolve? I mean, what
happened? What--how did we get to that point? I mean----
Mr. Horowitz. It would--hard for me to say that, the latter
part, because I was not there in 2010, but it is interesting
you say that, because when I talk to my staff and they talk
about what it was like before 2010, it was, we go--we are part
of the Department of Justice, we are independent, but we are
within the Justice Department. We would go to our components
like the FBI and say, we are investigating the Hanssen spy
matter. We need access to records. The discussion would be
about how do we make sure we are looking at them in the
appropriate place with the right people who have the right
clearance, not, we have got to look at them, we are not sure if
you are entitled to them. A completely different dialog and,
frankly, I will go back to what Art said, culture. Inspector
general Elkins has it just right. There was a sea--a
significant change in the attitude with the relationship.
Mr. Carter. Mr. Elkins?
Mr. Elkins. In addition to that, I think in some cases
agencies do not really understand the role of an IG and they
see the IG has an adversary rather than as a vehicle to help
the agency be more efficient and more effective, and that
relates to culture as well, but if you come in with the
attitude that, you know, the IG is an adversary, then that is
going to set a--you know, it is going to set a tone. So I think
that is a part of it.
Mr. Carter. Okay.
Ms. Buller. Well, from my perspective in the Peace Corps,
we really did not have that mentality before the issuance of
the general counsel's opinion. We had country directors who
would call us asking for information, asking if this would be
the type of case that we would normally take, things like that.
Since the issuance of the general counsel's opinion, that
kind of communication has pretty much stopped, which is really
detrimental to volunteer victims of sexual assault in
particular, because there are so many opportunities that they
could get information from us on how to do things, how to
process, for example, a safe kit, a rape kit that a country
director does not feel comfortable even calling and asking
anymore.
Mr. Carter. All right.
Mr. Horowitz. I was just going to say, and I want to make
clear also, I have got a lot of components in the Justice
Department. Most of them are still having that relationship. So
we are doing a lot of work, for example, on the Federal Bureau
of Prisons. We have a very strong working relationship with
them. I could name many more components like that. So I do not
want to leave that impression, but we do so much work with the
FBI and the DEA, that that is where a lot of our work ends up
focusing.
Mr. Carter. Okay. Well, very quickly, and, you know, any
time we are in a situation like this, we want to do some self-
assessment. Mr. Horowitz, you said there were 72 IGs and that
40-some-odd had signed off to this. Let's talk about those who
did not. What are they doing differently? Are they not having
any problems, or were they intimidated to not sign, or can we
get any best practices from them? You know, let us----
Mr. Horowitz. I think, frankly, you'd have to talk to the
others who decided not to sign to understand why. I do not
think it was necessarily because they--that the issues they
were facing were the reason, or were not facing, were the
reasons for their decision, but I think I would suggest you
would really need to talk to them.
Mr. Carter. Okay. Fair enough. Fair enough. Okay.
Very quickly, because I want to get this in. The
recommendations that you make, particularly as it pertains to
saving money, which is one of the primary reasons, if not the
primary reasons that I am in Congress, it is because of an $18
trillion debt that I do not want to leave for my children, I do
not want to leave to my grandchildren, none of you do. Are
those recommendations being looked at? Are they being adhered
to? What----
Mr. Horowitz. We followup on all our recommendations and we
find, generally speaking, they are implemented and they are
followed. We have issues at times, but we have a very strong
track record of--at the Department of following up on them.
I will add one way to save money and time, frankly, is
resolve this issue, because it is causing a waste of resources
and time on all sides.
Mr. Carter. Great.
Well, Mr. Chairman, that was the quickest 5 minutes I have
ever seen, but nevertheless----
Chairman Chaffetz. They get faster and faster, I guarantee
you.
Mr. Carter. Okay. Nevertheless, please understand, whatever
the ruling is of the OLC, regardless, what you do is important,
what you do is appreciated. If you continue to have problems,
please, please come back to us.
Chairman Chaffetz. Thank the gentleman. Now recognize the
gentleman from Alabama, Mr. Palmer, for 5 minutes.
Mr. Palmer. First of all, thank each one of you for your
service and for coming today.
Mr. Elkins, I believe you were asked earlier about the
EPA's Office of Homeland Security. Is this the office that
utilizes armed agents?
Mr. Elkins. No. They should not have any armed agents.
Mr. Palmer. Are you aware, or do you know what office or
division of EPA has armed agents?
Mr. Elkins. Sure. That would be the CID division.
Mr. Palmer. Okay. Has anyone contacted your office about
the use of these armed agents against private citizens or
municipal governments at any level?
Mr. Elkins. Not that I am aware, but we may have hotline
complaints that just have not reached their way to me as of
yet.
Mr. Palmer. Okay. There is an issue of this that I would
like to address later, Mr. Chairman, this may not be the
appropriate forum for that, of the EPA using armed agents,
particularly against a small town in Alabama where they showed
up at a waste treatment facility, full body armor and weapons
drawn, and I would think that would be an area that would be of
interest to the Inspector General's office in terms of
oversight. That is a little heavy-handed.
Ms. Buller, in regard to the situation at the Peace Corps,
were any of the people who were involved in the sexual assault
prosecuted?
Ms. Buller. We have had instances where we have had
prosecutions for sexual assault. Most of the instances of
sexual assault involved host country nationals, so they are
prosecuted in their country.
Mr. Palmer. Were there any cases where the prosecution may
have been impeded?
Ms. Buller. As far as the--this new policy that's been
implemented?
Mr. Palmer. Right.
Ms. Buller. it is only been in place for about a year. And
if a volunteer chooses to go restricted reporting, there is no
prosecution that's done.
Mr. Palmer. Okay. Then can you speculate, or maybe you can
give an answer as to why your investigation would have been
impeded?
Ms. Buller. It would not necessarily have been my
investigation, it would have been the investigation of the host
country where the incident occurred, but when a person decides
to file a restricted report, it does not go outside of a
specific chain of people, so there would be no possibility for
the local law enforcement to get the information.
Mr. Palmer. Okay. And, Mr. Horowitz, I have a question for
you in regard to the overall discussion that we have had here
today. Do you think any of these delays would constitute
obstruction?
Mr. Horowitz. They certainly have had a significant impact
on our reviews. The--the time ranges are very significant.
Ultimately we have gotten--or we are told we have gotten the
records, so I think that is where it stands at this point. They
have certainly--for the time when we are not getting them, they
have obstructed us and prevented us from completing our work in
a timely fashion.
Mr. Palmer. In regard to a timely fashion, then,
particularly where it involves political appointees, would
that--could that be considered an act of running out the clock?
Mr. Horowitz. I do not know specifically what the motive is
for why this is occurring. Frankly, it started with the FBI
with the general counsel, who is not a political appointee, who
came in. But there certainly could be more done to resolve this
quickly in terms of the OLC opinion, it seems to me. We--again,
we just need an opinion. Hopefully it will be good, but if it
is not good, that will allow Congress to look at what is
problematic from the Department's standpoint and then correct
the problem.
Mr. Palmer. Well, to echo what Congressman Carter said, we
do appreciate the work that you are doing. I think it is
absolutely critical that we have transparency and oversight and
accountability, and anything that can be done to expedite your
work needs to be done. I think we owe it to the American people
to restore confidence in our government. And I thank you for
the job you are doing and for your willingness to come before
us today.
I yield the rest of my time, Mr. Chairman.
Chairman Chaffetz. Thank you. Now recognize the gentleman
from Texas, Mr. Hurd, for 5 minutes.
Mr. Hurd. I'd like to add my thanks to you all on coming
here today. My first question is actually for Mr. Elkins. As a
former CIA officer for 9 years, I was undercover. The case of
John Beale is very interesting to me. It is usually the other
way around. We are saying we are someone else rather than
someone saying they are one of us. What do you need in order to
continue that investigation and bring that to closure?
Mr. Elkins. Well, the--Mr. Beale's case has been closed. He
is serving time in prison----
Mr. Hurd. Okay.
Mr. Elkins [continuing]. Right now.
Mr. Hurd. Well, good work.
And my next question is for Ms. Buller. You know, in the
documents you provided talking about, our push for access is
about fulfilling our collective responsibility to ensure that
we, Congress, the Peace Corps and the OIG do everything we can
to ensure our volunteers, who sacrifice so much time when
serving in remote corners of the world, receive the services
they need when they are victims of assault. And my question to
you is how can we better fulfill our collective responsibility?
You had mentioned earlier about having the Peace Corps retract
their general counsel opinion. What else--what else can be
done?
Ms. Buller. Well, short of Peace Corps retracting the
general counsel opinion, the only other alternative I can see
is Congress taking some sort of action to make it perfectly
clear that the IG Act means what the IG Act says, and that we
have access to all of the information.
Mr. Hurd. Excellent. Thank you for that.
Mr. Horowitz, my next question, in your opening statements,
you talked about the Computer Matching and Privacy Protection
Act. And how is that specifically hindering the ability of the
IG community to execute its responsibilities?
Mr. Horowitz. The issue there is that IGs in one department
have access to certain information; IGs in another department
have access to information. And one of the things that we try
and do, for example, is try and detect improper payments. Where
are individuals getting payments from two agencies that are
duplicative, that they should not get both, they might be
entitled to neither, but they are certainly not entitled to
both. And so that would be an example where if we could
exchange that information and speak about--and match the data
in an easier way through our own initiative, that would be
helpful to us.
Mr. Hurd. So do IGs not have the ability to directly access
information from servers?
Mr. Horowitz. We do not have the--that is a major issue for
several IGs directly, which is we do not have the ability to
directly access that in our own agencies, and we also do not
have the ability to access data or information across agency
without going through the process in the Computer Matching Act
which requires us, for example, to go to the agency's
leadership to decide if they should give us the authority to be
able to match information that would look at potential
misconduct or wrongdoing within the agencies.
Mr. Hurd. So why do some IGs have direct access and others
don't?
Mr. Horowitz. By statute as well as by approval through the
various processes that are laid out in the statute.
Mr. Hurd. So does this impact an IGs independence?
Mr. Horowitz. It would certainly strengthen and--our
ability to be more independent, because to get those approvals
for many of us, we need to go through our agency head. It is
not something that I as IG have the authority to decide. I have
to go through the agency leadership to get that authority, and
so that does impair our independence.
Mr. Hurd. So if the IG has to request access to information
from someone within the agency itself, does this tip off the
agency that the IG is conducting an investigation?
Mr. Horowitz. They would normally be aware generally of our
review. it is, frankly, more a concern that they are managing
the documents. And, as my colleagues said, you do not know what
you do not know. We do not know how thorough it is, how
promptly it is being done.
In my situation, we are being told we are getting
everything. In Ms. Buller's situation, she was being told she
was not getting everything. And that is the concern. It should
be the Inspectors General who are deciding what documents we
need to do our work. The system that is set up for several of
us now is that the agency is deciding what documents it thinks
we should get for our work.
Mr. Hurd. Well, as the chairman of the Information
Technology Subcommittee of this committee, I am looking forward
to having further conversations on this topic, something that
is very important in order for you all to continue to do your
jobs of making sure that the money we collect from citizens is
being used effectively and efficiently. So appreciate your time
and what you guys do.
I yield back the rest of my time.
Chairman Chaffetz. Thank the gentleman from Texas. And now
recognize the gentleman from Wisconsin, Mr. Grothman, for 5
minutes.
Mr. Grothman. Thanks much.
Chairman Chaffetz. If you can hit your button there, talk
button there.
Mr. Grothman. There we are. Okay. There we are.
You talked about expanding--Mr. Horowitz, you talked about
expanding IG authority and compelling more testimony. Can you
give me examples of how that would benefit your work?
Mr. Horowitz. So, for example, we often--we have often
faced the problem where on the eve of an interview, employees
have retired or resigned. At that point, we do not have
access--we can ask them for a voluntary interview, but we can
not compel them to testify, which they would have to do had
they still been an employee. And what we want to ask them about
is conduct while they were employed. And that is the difficulty
we are facing.
Mr. Grothman. Okay. Can you give me any specific example
where you really wish you had that authority?
Mr. Horowitz. Well, one that comes to mind, in the--one of
the reviews we did after Fast and Furious, we wanted to
interview the U.S. attorney from Arizona, who had already
resigned from the Department, and he declined our voluntary
request for an interview. We have no further ability to get
that information. He had actually provided testimony to the
Congress, I believe to this committee, and the committee then
allowed us to see the testimony he had given to you, but that
is how we got his information.
Mr. Grothman. Okay. That applies when somebody is no longer
in government service or no longer at their job, or what is
the----
Mr. Horowitz. Correct. it is someone who once was in
government service, we want to talk to them about what they did
while they were in government service, but then left the
service. And at that point--we can subpoena those people, by
the way, for their records, we just can not get their
testimony.
Mr. Grothman. Okay. And you still have the authority over
them if they are working anywhere in the government or do they
have to be in the executive branch or----
Mr. Horowitz. If they are within the executive branch, we
have had instances where we have gone to other IGs in other
agencies and worked with them to compel the testimony, because
they are still employed within the government, within the
Federal Government.
Mr. Grothman. Okay. Could you give me another example of
appropriate boundaries you think where any more authority would
be?
Mr. Horowitz. Well, I think there needs to be some
assurances, protections built in that were--that there are
careful consideration before we are running out and subpoenaing
individuals who are no longer with the government, for example.
We have got to make sure that we are not compelling testimony
where there is a Justice Department prosecution that could be
impaired. So there are a couple of things that we need to do,
in my personal opinion, to take those steps.
Mr. Grothman. I do not know. Do you ever abuse your
discretion now, you know?
Mr. Horowitz. No. I agree. I mean, I think--but it is the
same thing. For example, subpoena authority that my office has,
there are certain categories of subpoenas that come to me
personally for my personal review. There are others that we
allow folks other than myself to authorize. And I think those
are the kind of controls we--where we want to make sure exist
so that it is elevated to a high level and there is careful
consideration given to it.
Mr. Grothman. Okay. We are almost done here. You are on the
home stretch. I'll ask you--I'll ask you just a broad question
for each one of the three of you.
Obviously, you know, your testimony today is just scary,
because, you know, we rely on you guys so much to make sure our
government is functioning and it is functioning with integrity.
Do you have any broad comments on how you see individuals
responding today? I mean, you have all had a given period of
time in this position, over a given period of years. Say today
compared to 4 years ago, 8 years ago, what have you, do you see
any trends going on?
Mr. Elkins. I do not know if I would call it trends. Ever
since I have been in this role, I have seen these issues that
we are talking about today, they have always been there.
So if there is any trend, the trend is is that having the
support of this committee has made a positive difference,
because to the extent that we are seeing arguments or
obstructions, those instances are actually becoming fewer, and
there is a sense from the agency head at least to want to talk
about cooperation. That would not have happened but for your
involvement. So that is the trend that I am seeing.
Mr. Grothman. Thank you. Go ahead.
Ms. Buller. From my perspective, the trend has been toward
not--it--the staff of the Peace Corps has been very confused by
the general counsel's opinion as to whether or not they can
cooperate with us, whether they can give us any information,
not just the information related to sexual assault. Before the
opinion, we had a fairly good working relationship with the
staff of the Peace Corps. We would have, as all IGs do, little
times where they have questions about what we are doing, but
they were readily answered and we got what we needed. it is
changed now.
Mr. Grothman. Thank you.
Chairman Chaffetz. Thank the gentleman. I thank the
gentleman. I will now recognize the gentleman from South
Carolina, Mr. Gowdy, for 5 minutes.
Mr. Gowdy. Thank you, Mr. Chairman. I want to take this
opportunity to congratulate you and the ranking member on
your--your new title, the ranking member's continuing title,
and thank both of you for having this very important hearing,
which was consistent with your work when you were on the
committee before you were the chairman.
I apologize to our three witnesses. There is a simultaneous
hearing going on in Judiciary, which required my time, but
before I left, Mr. Chairman, I made a note that perhaps at a
future hearing, if you decided it was worthwhile, it might be
productive for us to have the Department and have the Bureau
and have the appropriators here so we can all kind of have this
conversation at the same time. You know, for Mr. Horowitz to
have a position that is not held by the Department of Justice,
I don't know who would win that debate. Mr. Horowitz has a
tendency to win most debates he is in, but I think it would be
helpful for everybody to be at the table together.
With that in mind, Mr. Horowitz, it is been a long time
since I took a class on statutory construction, so I am going
to ask you to help me with that. Here is the phrase: all
records, reports, documents, or materials. What do you think
the word ``all'' means?
Mr. Horowitz. it is been a long time as well for me, but
``all'' means everything, all.
Mr. Gowdy. Now, you had a very distinguished career in the
Southern District of New York. I think you were a white collar
prosecutor. I suspect that when you were doing investigations,
you wanted as many documents as you could have before you made
a charging decision. Right?
Mr. Horowitz. That is correct.
Mr. Gowdy. And you worked for the Department of Justice,
and I assume that when it came time for you to meet your
discovery obligations to the defense, you did not kind of pick
and choose which documents you wanted to turn over, you turned
over all those that you were legally required to do so.
Mr. Horowitz. That is correct. In fact, my practice was to
invite the lawyers in and they could look through the file
cabinets.
Mr. Gowdy. An open file policy.
Mr. Horowitz. Open file policy.
Mr. Gowdy. All right. I want to ask you specifically with
respect to material witness warrants, for those watching at
home who do not know what that is and do not know why it is
important, what is it and what do you want access to that you
are not gaining access to?
Mr. Horowitz. So material witness warrants are a process by
which an agent and a prosecutor can go to a court to arrest an
individual, not for committing a crime, but because they have
relevant evidence that relates to a criminal investigation.
That provision has various restrictions on it.
One of the allegations that occurred after 9/11 was whether
the Department and law enforcement components were abusing that
authority to arrest witnesses. We undertook a review. We asked
for information relating to grand jury proceedings, which is
critical to understanding what is being done, because the very
purpose of arresting the individual is to put them before the
grand jury to get testimony. So in order to understand whether
it is being abused or not, you need to know what's happening in
the grand jury. We asked for that information back. This
occurred right in the outset of some of these issues, 2010,
2011. It took, if I recall correctly, nearly a year to get
resolution on that so we could gain access to those grand jury
records so we could evaluate whether the work was being done
properly or whether we had concerns about it.
Mr. Gowdy. There is an old adage that justice delayed is
justice denied, and evidently we have bought in--we have bought
into that as a country, because there is a Speedy Trial Act
for--for prosecutors----
Mr. Horowitz. That is correct.
Mr. Gowdy [continuing]. So you can get the case to court.
Mr. Horowitz. Right.
Mr. Gowdy. Explain to us why it is not only important that
you get the information, the ``all'' in that statute, but also
get it in a timely fashion?
Mr. Horowitz. We get allegations about waste, fraud, abuse,
about misconduct, about whistleblower retaliation, just to give
you some examples. We are reviewing those to see if, in fact,
they are accurate. I think everyone would agree that if there
are allegations of whistleblower retaliation that prove to be
true, waste, fraud, abuse going on in the Justice Department,
everybody would want to see that uncovered as quickly as
possible so it could be remediated, so it could be addressed,
so it could be fixed. That is the kind of delay that--that is
the kind of impact we are having when we are delayed.
Mr. Gowdy. I think it is important for the folks at home to
understand that the three of you, Jason uses the word sometimes
``auditor.'' Because he is not a lawyer, he uses words that are
easier for him to understand. I think of you as being more
independent, neutral arbiters. You do not work for anybody
except for your fellow citizens. And I really--you know, I do
not know whether I will live long enough to see a Republican
administration or not, but this really should transcend
politics. You cannot do your job without timely access to the
documents. And I do not know the other two inspector generals
as well as I know Mr. Horowitz, but you have a reputation of
being a total, complete strait arrow who calls balls and
strikes exactly as you see it.
Mr. Horowitz. Sure.
Mr. Gowdy. I am completely comfortable with you in your
job. I'd be more comfortable if you had access to all the
documents in a timely fashion. And I wish all three of you
luck.
Mr. Cummings. Will the gentleman yield?
Mr. Gowdy. Certainly.
Mr. Cummings. The--first of all, I think the gentleman's
made some excellent points. And going back to your initial
point with regard to having everybody in the room, I think that
is a great idea. As a matter of fact, the chairman and I had
talked about it a little earlier today, not on the record, that
we were going to try to get these folks on the other side of
this to get an understanding of what is happening there so that
we could move forward, and the chairman has said that perhaps
we would have a hearing, but we would bring those folks in,
because I agree, we have got to get past this, we--and so I
just wanted to make you aware of that.
Mr. Gowdy. Well, I know that when you and Chairman Chaffetz
put your minds in the same direction, there is nothing that
cannot be accomplished. So I----
Chairman Chaffetz. The gentleman's time----
Mr. Gowdy [continuing]. Look forward to----
Chairman Chaffetz [continuing]. Has expired. I now
recognize the gentleman from Colorado, Mr. Buck, for 5 minutes.
Mr. Buck. Thank you, Mr. Chairman.
Mr. Horowitz, I wanted to visit with you a little bit. I
may be the only Member of Congress that worked in an IGs office
a number of years ago before I became a prosecutor, and I have
a concern. Without seeing the IGs subpoena and without hearing
from the other side, do your subpoenas, in any way, inhibit an
investigation? In other words, you are all--you were also a
prosecutor, you understand the discovery requirements that can
be created if there is a parallel investigation, you understand
the concerns with grand jury secrecy and the disclosure that
must be made to a court. Do your--are your requests narrowly
enough drawn so that they do not inhibit FBI prosecutions and
counterintelligence, counterterrorism, very serious areas?
Mr. Horowitz. Very fair question and something as a former
prosecutor, I am acutely aware of. We do a couple of things to
try and be careful in that regard. We tend not to undertake
investigations or reviews while there are criminal cases
ongoing or criminal prosecutions ongoing; we try to make sure
where that is happening but we need to investigate, we do it in
a manner that does not trample into an area that could harm the
case. Best example I can give is, and I was not here at the
time, but post-9/11, we were asked to look at the issues at the
same time the Moussaoui prosecution was going forward. And
everything I have heard from my staff is an example of,
frankly, their longing for the good old days where we did work
together in a manner that the FBI respected our ability to have
to plow--move forward, get the work done, but we also
understood and worked with the agency to make sure that we did
it in a responsible, careful way, but never compromising our
independence, never compromising our thoroughness and making
sure we did everything to get to the bottom of issues.
Mr. Buck. And a perfect example might be a subpoena for--a
grand jury subpoena for financial records. We would typically
ask for 3 or 4 years of financial records, and then get a
monthly statement and then go through the monthly statement and
ask for specific items that we are looking for.
Do you have that relationship with the Bureau at this point
where you can actually ask for a broader area to go through
specifically and say this is what we are really after, can you
help us, or is that something that you do not want to do? Does
that give away your investigation?
Mr. Horowitz. No. We have had that discussion. Indeed, I
will give you a good example. Just recently with the DEA, and
Section 218, we had a deadline approaching, I talked with the
administrator, I talked with an associate in the Deputy
Attorney General's Office with constructive ideas on how to
make sure we saw and had access to the information we needed to
assure ourselves that we were getting that, but then allow them
to keep custody, take custody of the records that were
unrelated and were not of interest to us going forward so that
we could make sure that we had satisfied our needs in terms of
thoroughness, review, et cetera, but also respecting their
concerns about how the records were maintained and stored and
kept.
And those are the kinds of dialogs that should be
occurring; not can we get access, but how do we make sure our
access is done in a manner that is consistent with our
independence, consistent with your expectations of what we need
to do to get to the bottom of issues, but also understanding
that there are countervailing issues and concerns out there.
Mr. Buck. With the short time I have left, I want to ask a
question of the whole panel. And you mentioned the word
``independence.'' From the agency's perspective, often it is
not independence, it is a thorn in their side. What you
discover may embarrass them, what you discover may be something
that they--that is turned around in the press and embarrasses
them in a way that indicates that they are not doing their job
properly, or it could be used for political purposes by others.
How do we overcome that issue? And I throw this open. How
do we--how do we really address the--what we all want, which is
achieving an efficient and accountable government?
Mr. Elkins. I think it boils down to trust ultimately. If
the two parties trust that we are all on the same page--because
at the end of the day, we are all on the same page. You know,
we all work for an agency, and the mission of the agency is our
mission. For EPA, it is to protect public health and the
environment. That is my job to do that as well. But my job is a
little different, because I am focused on identifying where
funds are not being used to the full extent and then making
recommendations that they can. So it really kind of boils down
to trust. If you have got the trust in the relationship, things
can work out. If you do not have trust, it is going to be
rocky.
Mr. Buck. I yield.
Chairman Chaffetz. Thank you. Thank you. Well said. I now
recognize the gentleman, Mr. Cummings from Maryland.
Mr. Cummings. Thank you very much, Mr. Chairman. I want to
thank all of you for being here today. You know, when I was
sitting here listening to you all, I could not help but think
about when I was teaching my--one of my sisters to drive. And
so she is driving along and I am sitting in the driver's seat--
I mean, in the passenger's seat, and a man steps out and she
almost hits him. And I stepped on her foot, literally. You
know, I put my foot on--on the brake, and I said, ``Why did you
do that?'' And she said, ``He should not have been there. I
said, He was there.''
My point is is that, you know, we do have a problem here,
and that is why I have spent so much time, and the chairman and
our committee trying to help resolve the problem, because we do
have a problem. So on the one hand, hopefully we get to some
type of permanent solution, but in the meantime, we want to do
everything in our power to help you do your jobs.
And I understand the frustration. I really do. I understand
you have your--you've got the IG law, which seems to be very
clear, but on the other hand, I have to believe that there are
people on the other side of these arguments who might make very
strong arguments saying that they are trying to obey the law
and trying to do what they believe is right. I have asked you,
I asked you all earlier whether you felt that somebody was
trying to hide something and all that, and you basically said
no. So--so we have got to get past this.
I just want to commit to you that I'm--I am committed to
both--both sides, in other words, to both avenues: one, to do
whatever we have to do right now to get you where you have got
to go and at the same time trying to come up with a permanent
solution. I think we have got to do both. I do not think that
we can stand around and not try to do something to help you get
past some of these immediate problems that you are
experiencing.
And, again, I want to--I want you all to do your jobs. You
have very, very important jobs. I mean, we sit here, and I know
the chairman will agree with me, there are many times we get
very frustrated trying to figure out how do we make sure that
government does what government is supposed to do. And then--
you know, and then--so the now is--now we are at a point where
we--we've got to try to figure out how can we get these issues
resolved as fast as possible.
It is going to be interesting to hear the other side. I
want to hear what they have got to say. I am absolutely
curious, Mr. Horowitz, as to why the same things that you are
requesting that you used to be able to get now you can not get
them. I am curious. I want to know that. I really do.
I also do not want us to move away from what Ms. Norton
said. It may be a situation where there have been some things
that have changed. I do not know. I thought maybe it was
because of 9/11, but this stuff just happened. So--I mean, it
started in 2010, right?
Mr. Horowitz. [no verbal response.]
Mr. Cummings. So, again, and I'm saying to the departments
that are listening to us today, get ready, because we want
maximum cooperation with the IGs, but we also want everybody to
be able to do their job in an effective and efficient manner.
So, again, I want to thank all of you. I want to make sure
that, not just the witnesses, but all the IGs who have taken
the time out to be here today, I want to thank you for making a
difference in our country. I know that many of you all get--
have frustrations, but the fact is that you all are making a
big, big difference, and we want to help you make an even
bigger difference. And may God bless you and God bless all of
those who work with you and support you. Thank you very much.
Chairman Chaffetz. I thank the gentleman. And I want to
echo and--the sentiment that you feel, I think, on both sides
of the aisle. We truly do appreciate the good work, the hard
work, the diligent work that is done within the IG community.
We have more than 13,000 people who dedicate their time and
their lives. They are patriotic Americans. They're trying to
root out the waste, the fraud, the abuse, the bad apples that
might be there, and for that, we thank you and appreciate that.
I know a lot of you work for a long period of time and wonder
does anybody pay attention to that, does anybody read that, and
I assure you that it is of the utmost importance.
As I said at the beginning, if you can not do your job,
then we can not do our job in Congress. And we rely so heavily
on your perspective, your non-partisan view of the world and
the objective viewpoint that you take. And to that extent, I
hope you all carry back how much we love, care and appreciate
those that work day in and day out.
So this has been a bit of a long hearing, and this
committee now stands adjourned. Thank you.
[Whereupon, at 1:13 p.m., the committee was adjourned.]
APPENDIX
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