[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
ANALYZING MISCONDUCT IN FEDERAL
LAW ENFORCEMENT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
HOMELAND SECURITY, AND INVESTIGATIONS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
APRIL 15, 2015
__________
Serial No. 114-28
__________
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR S. SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia PEDRO R. PIERLUISI, Puerto Rico
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TREY GOWDY, South Carolina KAREN BASS, California
RAUL LABRADOR, Idaho CEDRIC RICHMOND, Louisiana
KEN BUCK, Colorado
MIKE BISHOP, Michigan
Caroline Lynch, Chief Counsel
Joe Graupensperger, Minority Counsel
C O N T E N T S
----------
APRIL 15, 2015
Page
WITNESSES
Honorable Michael E. Horowitz, Inspector General, United States
Department of Justice
Oral Testimony................................................. 6
Prepared Statement............................................. 8
Honorable John Roth, Inspector General, United States Department
of Homeland Security
Oral Testimony................................................. 15
Prepared Statement............................................. 17
Herman E. ``Chuck'' Whaley, Deputy Chief Inspector, Office of
Professional Responsibility, Drug Enforcement Administration,
United States Department of Justice
Oral Testimony................................................. 29
Prepared Statement............................................. 31
Mark Hughes, Chief Integrity Officer, United States Secret
Service, United States Department of Homeland Security
Oral Testimony................................................. 46
Prepared Statement............................................. 48
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable F. James Sensenbrenner, Jr.,
a Representative in Congress from the State of Wisconsin, and
Chairman, Subcommittee on Crime, Terrorism, Homeland Security,
and Investigations............................................. 1
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Ranking
Member, Subcommittee on Crime, Terrorism, Homeland Security,
and Investigations............................................. 2
Prepared Statement of the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 3
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 4
APPENDIX
Material Submitted for the Hearing Record
Response to Questions for the Record from the Honorable Michael
E. Horowitz, Inspector General, United States Department of
Justice........................................................ 78
Response to Questions for the Record from the Honorable John
Roth, Inspector General, United States Department of Homeland
Security....................................................... 80
Response to Questions for the Record from Herman E. ``Chuck''
Whaley, Deputy Chief Inspector, Office of Professional
Responsibility, Drug Enforcement Administration, United States
Department of Justice.......................................... 82
Response to Questions for the Record from Mark Hughes, Chief
Integrity Officer, United States Secret Service, United States
Department of Homeland Security................................ 86
ANALYZING MISCONDUCT IN FEDERAL
LAW ENFORCEMENT
----------
WEDNESDAY, APRIL 15, 2015
House of Representatives
Subcommittee on Crime, Terrorism,
Homeland Security, and Investigations
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 2:10 p.m., in
room 2141, Rayburn Office Building, the Honorable F. James
Sensenbrenner, Jr., (Chairman of the Subcommittee) presiding.
Present: Representatives Sensenbrenner, Goodlatte, Chabot,
Poe, Labrador, Buck, Bishop, Jackson Lee, and Richmond.
Staff present: (Majority) Robert Parmiter, Counsel; Alicia
Church, Clerk; Allison Halataei, Parliamentarian & General
Counsel; (Minority) Joe Graupensperger, Counsel; and Veronica
Eligan, Professional Staff Member.
Mr. Sensenbrenner. The Subcommittee on Crime, Terrorism,
Homeland Security, and Investigations will come to order.
Let me say, we are due to have roll calls a little bit
after 3:15, and in order to save time, I am going to ask
unanimous consent to put my opening statement into the record
and ask unanimous consent that everybody else's opening
statement be put into the record. This will give more time for
testimony and more time for questions.
Without objection, that is so ordered.
[The prepared statement of Mr. Sensenbrenner follows:]
Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a
Representative in Congress from the State of Wisconsin, and Chairman,
Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
Good afternoon, and welcome to today's hearing.
Over the past few years, there have been a number of troubling
allegations regarding misconduct by Federal law enforcement agents.
Since April 2012 alone, nearly a dozen high-profile, widely-reported
incidents involving highly-trained law enforcement personnel, including
at the Secret Service and the Drug Enforcement Administration, have
roiled some of our nation's most venerated law enforcement agencies and
have shaken law-abiding Americans' faith in these institutions.
In addition to the problems that have been reported in the media,
and which largely involve the Secret Service, the Justice Department
released documents on Monday to this Committee which cause me grave
concern. In 2010, a DEA Special Agent in Bogota, Colombia, who was a
frequent patron of prostitution, assaulted a prostitute and ``left the
woman bloody.'' He was ultimately suspended for 14 days. In 2011, a DEA
agent solicited sex from an undercover police officer here in the
District of Columbia. He was suspended for a baffling 8 days. And in
2012, as we all know from the recent OIG report, DEA agents engaged in
``sex parties'' with prostitutes supplied by drug cartels. Ten
individuals were involved. Two received letters of reprimand. One
retired. The remaining seven were suspended by DEA for ``Poor
Judgment'' and ``Conduct Unbecoming'', for 2, 1, 3, 3, 9, 10, and 8
days, respectively. ``Poor Judgment,'' indeed.
I will not go into the remaining allegations in detail, because I
have only five minutes, because we have all heard similarly salacious
details from reading the news, and because our friends at the DOJ and
DHS Offices of Inspectors General have done excellent work in this
area. However, it is clear that the allegations of sexual misconduct
and other shenanigans at the Secret Service and the DEA have given the
American people the impression that these federal agencies, rather than
being bastions of professionalism and integrity, can sometimes turn a
blind eye to behavior that is better suited for the frat house, or the
big house, than the White House.
Additionally, I am very troubled by the lack of transparency in the
disciplinary process. We all know it is unreasonably difficult to fire
a federal employee, even for gross misconduct. However, the evidence
points to an epidemic of ``under-discipline'' at the DEA. In many
cases, we have heard that the offending employees are merely placed on
administrative leave, moved to desk duty, or quietly ``resign,'' for
conduct that would be grounds for immediate termination in the private
sector. This cycle of chronic ``under-punishment'' must not be allowed
to continue, particularly since many of these agents have done nothing
less than engage in criminal behavior. I am interested in hearing more
from our panel about exactly what happens when the agencies receive a
complaint about the conduct of an employee.
Following the latest DOJ-OIG report, even Attorney General Holder
felt compelled to act. He issued a memo which ``reiterate[d] to all
Department personnel, including attorneys and law enforcement officers,
that they are prohibited from soliciting, procuring, or accepting
commercial sex.'' As at least one commentator noted, ``Finally, a
Holder memo that got it right.'' However, the fact that the Attorney
General would feel compelled to issue a memo reminding law enforcement
professionals not to solicit prostitutes shows there are real problems
at these agencies. That is why we are here today.
Let me be clear: our intent is not to disparage the vast majority
of federal law enforcement personnel, who do their jobs professionally
and honorably. The Secret Service employs some 6,500 people, and DEA
has 10,000 employees. Every large agency will have a few ``bad
apples,'' and incidents of this nature will occur. However, the public
perception is that federal law enforcement personnel can engage in
severe misconduct, including conduct that would be illegal if committed
in the United States, and the agencies do not take it seriously. It is
my hope that our distinguished panel can help this committee identify
areas where problems exist in the disciplinary process for federal
agents, so that we can implement real solutions.
I look forward to engaging with our panel today on all these
questions.
__________
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Ranking Member,
Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
Today's hearing reflects bipartisan concern about serious instances
of misconduct by federal law enforcement agents and the need to examine
the adequacy of the processes used to report and investigate
misconduct, as well as take disciplinary action when warranted.
Much of the attention to this issue was initially prompted by the
revelations in 2012 involving the solicitation of prostitutes by agents
of the Secret Service and the DEA.
At the time, it was reported that a dozen Secret Service agents
engaged the services of prostitutes before a presidential visit to
Colombia for the Summit of the Americas, which I attended, and we
subsequently learned that DEA agents were involved in that and other
incidents involving prostitutes in Colombia.
In my capacity as Member of the Committee on Homeland Security as
well as this Committee, I examined the Cartagena incident, and met with
then-Director Mark Sullivan to express my concern and press for strong
corrective action, particularly regarding interaction between agents
and foreign nationals while agents are working in foreign countries.
In fact, I have had a history of strong oversight with respect to
issues involving the Secret Service, ranging from the intrusion into
the White House last year to the 2009 incident in which a couple evaded
security to attend a state dinner at the White House honoring the Prime
Minister of India.
I have met with each of the directors of the Secret Service on
multiple occasions over the past several years to discuss and address
performance and misconduct issues. Their mission is critical and
Congress must work to support and strengthen that agency.
Certainly, we should engage in consistent, vigorous oversight of
all of the federal law enforcement agencies to ensure that agents are
conducting themselves appropriately and within the bounds of the law.
As the recent report of the Inspector General of the Department of
Justice makes clear, we have a lot of work to do to address
unacceptable incidents at a number of our federal law enforcement
agencies, particularly including the DEA.
However appropriate this hearing may be, I call on this
Subcommittee to take on other issues related to law enforcement--but at
the state and local level.
We cannot ignore the fact that we have a crisis involving use of
force by police in this country. Because no accurate statistics are
required to be submitted or maintained, we do not know the actual
frequency of police shootings across the country, or all of the
circumstances in which they take place.
I call on this Subcommittee to address these issues by holding
hearings and considering legislation concerning topics such as (1) the
use of lethal force by state and local police departments, (2)
educational requirements, mental health and psychological evaluations,
and training in non-violent conflict resolution received by officers
and recruits, (3) the use of technological devices such as body
cameras, and (4) the state of social science research and statistics in
criminal justice reform.
We have an obligation to the American people to investigate these
issues, to find answers, and adopt solutions.
Less than two weeks ago, a police officer in North Charleston,
South Carolina shot and killed Walter Scott, an unarmed African
American man. Cell phone video footage showed that Scott, who was
struck by four of the eight bullets fired at him, was running away from
the officer.
The victim's mother, Judy Scott, stated that, ``I almost couldn't
look at it, to see my son running defenselessly, being shot. I just
tore my heart to pieces. I pray that this never happens to another
person.''
Her prayer is our call to action. We must investigate what is going
on with these shootings, which happen with alarming frequency, and we
must help prevent them from taking place in the future. That is why I
ask that this Subcommittee take on this issue.
So as we proceed with the current hearing, to address important
concerns related to federal law enforcement, I hope that we will
resolve to work on a bipartisan basis to address these other critical
issues as well.
Thank you.
__________
[The prepared statement of Mr. Goodlatte follows:]
Prepared Statement of the Honorable Bob Goodlatte, a Representative in
Congress from the State of Virginia, and Chairman, Committee on the
Judiciary
Thank you, Chairman Sensenbrenner. I am pleased to be here today,
and I am looking forward to a frank and detailed discussion with our
distinguished witnesses, and the Members of this Subcommittee, on this
important subject.
During my tenure at the helm of this Committee, I have repeatedly
expressed my appreciation for the dedicated law enforcement
professionals who protect and serve our communities. Every day,
thousands of federal law enforcement agents are hard at work, doing
their part to keep Americans safe and delivering them the justice they
deserve.
Unfortunately, the indispensable services provided by the mostly-
anonymous men and women of law enforcement are not what we are here
today to discuss. Instead, we must deal with serious misconduct that
has caused the public to forget that competent and professional service
they expect from their federal law enforcement professionals. It is an
inescapable fact that the exposure of a rogue agent or unsavory
incident or series of incidents--such as agents engaging in sex parties
with prostitutes paid for by drug cartels--stick in the collective
memory more firmly than entire careers worth of effective, unblemished
law enforcement work. That is why it is so important that we get to the
bottom of the troubling revelations involving our federal law
enforcement agencies over the last decade.
My colleagues have already laid out some of the specific lapses in
professionalism and more details can be found in the press. Over the
past few days, this Committee has received additional information from
the DEA indicating that our concerns about agent misconduct,
particularly of a sexual nature, are well-founded. However, of equal
concern to me is the apparent lack of a sufficient response to that
misconduct by the officials in the chain of command. The case examples
we have seen point to an agency with a disturbing tendency not to
appropriately investigate and punish federal law enforcement agents who
engage in severe sexual and other misconduct.
I am pleased that, though they are quite late in doing so, the
agencies appearing before this Committee today finally seem to be
taking this seriously. In December 2013, the Secret Service created its
Office of Integrity, headed by a Chief Integrity Officer, who I assume
has been quite busy over the last year-and-a-half. On Monday, we
received a communication from the DEA indicating that their Office of
Professional Responsibility would undertake ``a comprehensive review of
DEA's processes and procedures for investigating allegations of
misconduct, as well as for determining and effectuating disciplinary
action where appropriate.''
It is good that DEA is conducting that review. I hope your review
will result in significant and worthwhile changes to the disciplinary
process. However, what troubles me is that we are learning about all of
this only after these allegations have become public. The perception of
agencies ``protecting their own'' and bad actors receiving ``slaps on
the wrist'' has gained traction, and Congress has gotten involved. As
professional law enforcement agencies, your integrity should be above
reproach.
Today, this Committee will examine these issues and the processes
in place to address misconduct at the Secret Service and the DEA. I
will be interested in our witnesses' responses to a wide array of
questions. What have you done to address these matters, at the ground
level? Why was this misconduct allowed to persist for so long, and why
does it keep occurring? Does Congress need to legislate in this area?
And most importantly, as the officials responsible for investigating
and dispensing discipline, how will you ensure that this sort of
profoundly disreputable behavior will be met with an appropriately
robust response in the future?
We all have a responsibility to ensure that such behavior, should
it happen again in the future, is handled appropriately so that trust
is rebuilt with the American people and the reputations of our federal
law enforcement agencies are restored.
I thank the witnesses for their testimony, and yield back the
balance of my time.
__________
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
The vast majority of federal law enforcement agents perform as we
would hope, and in fact often engage in acts above and beyond the call
of duty. We are grateful for their service. Unfortunately, the past few
years have brought to light a number of instances of unacceptable
conduct by some of the agents reporting to the Department of Justice
and the Department of Homeland Security.
I have several observations and recommendations concerning this
issue.
First, it is unacceptable for law enforcement officers to solicit
prostitution, engage in sexual harassment, or allow alcohol use to
impair their judgment. Misconduct by law enforcement agents involves
harm to anyone who would be victimized by their behavior, damages
morale within the agencies, and undermines the moral authority
necessary for agents to enforce the law against others.
Of course these are problems suffered extensively outside the law
enforcement community as well. But this Committee is charged with the
responsibility of overseeing the actions of these agents, and we must
investigate these problems and identify solutions.
Consequently, we must ensure that there are strong, independent
mechanisms to review allegations of misconduct. It is difficult for
government agencies to police themselves. That is why we have
Inspectors General and other offices within agencies charged with
investigating misconduct and imposing disciplinary measures, as
governed by the civil service statutes.
The authority of the Inspectors General must be respected within
the Departments, and they must have wide latitude to pursue indications
of waste, fraud, and abuse. That is why I am disturbed that the DEA and
FBI reportedly withheld information from Inspector General's
investigation into these issues. I hope we will hear more about that
today.
Finally, I believe the issues we will explore today provide
additional justification for H.R. 1656, the ``Secret Service
Improvements Act,'' which will strengthen the Secret Service largely by
authorizing additional training and resources. I cosponsor this bill
together with Chairman Bob Goodlatte, Crime Subcommittee Chairman Jim
Sensenbrenner, and Crime Subcommittee Ranking Member Sheila Jackson
Lee.
As we have learned through hearings and other oversight in recent
months, that agency has been stretched thin and morale has suffered.
Assistance that the bill would provide will help the Secret Service
better perform its critical mission and also help a stronger agency
work to prevent future misconduct.
I look forward to hearing from our witnesses about their experience
with these issues and hope they will provide us with recommendations as
to what steps we can take not only to better address instances of agent
misconduct, but also to help prevent them from happening in the first
place.
__________
Mr. Sensenbrenner. I will now introduce each of the
witnesses. We have a very distinguished panel today.
I will begin by swearing in our witnesses before
introducing them. So if you would, all please rise.
Do you and each of you solemnly swear that the testimony
you are about to give is the truth, the whole truth, and
nothing but the truth, so help you God?
Let the record show that each of the witnesses answered in
the affirmative.
You will be getting an abbreviated introduction, as well.
The first witness is the Honorable Michael Horowitz, who is
the Inspector General of the Department of Justice. He is well
known to this Committee. He has worked for DOJ in both main
Justice as an Assistant Attorney General and as an Assistant
U.S. Attorney for the Southern District of New York.
The Honorable John Roth is the Inspector General of the
Department of Homeland Security. He most recently served as
Director of the Office of Criminal Investigations of the Food
and Drug Administration. He is a former Federal prosecutor, a
senior official at the Department of Justice, and at DOJ he was
the Department's lead representative on the Financial Action
Task Force in Paris.
Herman Whaley is the Deputy Chief Inspector of the Office
of Professional Responsibility at the DEA. He has had a
professional career in local law enforcement, as well as a DEA
Special Agent and a group supervisor.
Mark Hughes is the Deputy Assistant Director and Chief
Integrity Officer of the Office of Integrity at the Secret
Service. He has previously been the Deputy Special Agent in
Charge of the Washington field office, and the Deputy Special
Agent in Charge of the Secret Service's Office of Inspection.
So I think all of you know the drill. You have a red,
yellow, and green light in front of you. The green light means
talk away. The yellow light means start to wrap it up. The red
light means that the hook is about ready to be prepared.
Mr. Horowitz----
Ms. Jackson Lee. Mr. Chairman, may I ask a parliamentary
inquiry? What is happening to the opening statements?
Mr. Sensenbrenner. They have been dispensed with by
unanimous consent, everybody's, and they will all be put in the
record.
Ms. Jackson Lee. Well, with a great deal of respect, Mr.
Chairman, I realize I had a constituent in the anteroom, but I
will hope to be able to make comments regarding my opening
statement. So I thank the Chairman very much.
Mr. Sensenbrenner. Okay. Well, each of you will be
recognized for 5 minutes; and, Mr. Horowitz, you are first.
TESTIMONY OF THE HONORABLE MICHAEL E. HOROWITZ, INSPECTOR
GENERAL, UNITED STATES DEPARTMENT OF JUSTICE
Mr. Horowitz. Thank you, Mr. Chairman, Ranking Member
Jackson Lee, Members of the Subcommittee. Thank you for
inviting me to testify today.
Federal agents are held to the highest standards of
conduct, both on duty and off duty. As a former Federal
prosecutor and as Inspector General, I know that the
overwhelming majority of Department agents meet those high
standards and perform their work with great integrity and
honor, thereby keeping our communities safe and our country
safe.
Nevertheless, we find instances where Department agents
engage in serious misconduct, and even criminal violations,
affecting the agency's reputation, potentially compromising
prosecutions, and possibly affecting agency operations.
Furthermore, misconduct that involves sexual harassment
affects employee morale and creates a hostile work environment.
Following the incidents during the President's trip to
Colombia, the OIG conducted two reviews, one relating to
Department policies and training involving off-duty misconduct
by employees working in foreign countries, and one relating to
the handling of allegations of sexual harassment and misconduct
by Department law enforcement components.
Our off-duty conduct report found a lack of Department-wide
policies or other training requirements pertaining to off-duty
conduct, whether in the U.S. or other countries. This was
particularly concerning given recommendations we made in 1996
that the Department provide additional training regarding off-
duty conduct and examine the standards of conduct that apply to
off-duty behavior. Despite our earlier recommendations, little
had changed in the intervening two decades.
We did find the FBI made changes, including providing
comprehensive training for its employees. However, the other
three Department law enforcement components convey little or no
information about off-duty conduct before sending their
employees abroad. Having one of only four law enforcement
components effectively prepare employees for these assignments
demonstrates the need for Department-wide training and
policies.
In March 2015, we issued our report on the nature of
reporting, investigation, and adjudication of allegations of
sexual harassment or misconduct in the Department's four law
enforcement components. The report identified significant and
systemic issues that require prompt corrective action. These
include a lack of coordination between internal affairs offices
and security personnel, failure to report misconduct
allegations to component headquarters, failure to investigate
allegations fully, weaknesses in the adjudication process, and
weaknesses in detecting and preserving sexually explicit text
messages and images. Together, these reviews demonstrate the
need to improve disciplinary and security processes, as well as
to clearly communicate Department expectations for employee
conduct.
Strong and unequivocal action from leadership at all levels
is critical to ensure employees meet the highest standards of
conduct and are held fully accountable for any misconduct.
As we also described in our March report, the failure by
the DEA and FBI to provide prompt information to us in response
to our requests significantly impacted our review. Both
agencies raised baseless objections and only relented when I
elevated the issues to agency leadership. Even then, the
information was incomplete.
In order to conduct effective oversight, an OIG must have
timely and complete access to documents and materials. This
review starkly demonstrates the danger in allowing those being
reviewed to decide on their own what documents they will share
with the OIG. These actions impeded our work, significantly
delayed the discovery of the issues that we ultimately were
able to identify, wasted Department and OIG resources, and
affected our confidence in the completeness of our review.
Unfortunately, this was not an isolated incident, and we
continue to face repeated instances in which our timely access
to records is impeded. Congress recognized the significance of
this issue in passing Section 218 in the recent Appropriations
Act. Nevertheless, the FBI continues to proceed exactly as it
did before Section 218 was enacted.
We were told an opinion from the Department's Office of
Legal Counsel would resolve this issue. Yet 1 year later, after
the Department Deputy Attorney General requested that opinion,
we still don't have the opinion and we have no timeline for its
completion. The Department has said the opinion is a priority,
yet the length of time that has passed would suggest otherwise.
The American public deserves and expects an OIG that is
able to conduct rigorous oversight of the Department's and
FBI's activities. Unfortunately, our ability to do so is being
undercut every day that goes by without a resolution of the
dispute.
Thank you for your continued strong bipartisan support for
our work, and I would welcome any questions.
[The prepared statement of Mr. Horowitz follows:]
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__________
Mr. Sensenbrenner. Thank you very much, Mr. Horowitz.
Mr. Roth?
TESTIMONY OF THE HONORABLE JOHN ROTH, INSPECTOR GENERAL, UNITED
STATES DEPARTMENT OF HOMELAND SECURITY
Mr. Roth. Chairman Sensenbrenner, Ranking Member Jackson
Lee, and Members of the Subcommittee, thank you for inviting me
to testify here today to discuss Federal law enforcement
misconduct within the Department of Homeland Security.
Inspectors General play a critical role in ensuring
transparent, honest, effective, and accountable government. The
personal and organizational independence of IG investigators,
free to carry out their work without interference by agency
officials, is essential in maintaining the public trust not
only of the IG's work but of the DHS workforce as a whole.
Many DHS components have internal affairs offices that
conduct investigations. Under the authority of the IG Act, the
IG has oversight responsibility for those internal affairs
offices. This oversight responsibility generally takes three
forms.
First, we determine upon receipt of a complaint whether the
allegations are of the type that should be investigated by the
IG rather than the component's internal affairs office. A DHS
management directive establishes the IG's right of first
refusal to conduct investigations of misconduct by DHS
employees.
Second, for those investigations the internal affairs
offices conduct, we have the authority to receive reports on
and monitor the status of those investigations.
Lastly, we conduct oversight reviews of DHS component
internal affairs offices to ensure compliance with applicable
policies, reporting requirements, and accepted law enforcement
practices.
The Department employs more than 240,000 employees and
nearly an equal number of contract personnel, including a large
number of law enforcement officers and agents in the U.S.
Customs and Border Protection, U.S. Immigration and Customs
Enforcement, the Secret Service, and the Transportation
Security Administration. We have about 200 investigators in
headquarters and about 30 field offices across the country,
which means we have less than one investigator for every
thousand DHS employees.
Last year we received over 16,000 complaints. A substantial
number of those complaints alleged DHS personnel engaged in
misconduct. We initiated 564 investigations. The remainder were
referred to component internal affairs offices, other agencies,
or were closed. Our investigations resulted in 112 criminal
convictions and 36 personnel actions. Thirteen of these
convictions involved DHS law enforcement personnel, and 21 of
the 36 personnel actions involved law enforcement. These
convictions and personnel actions were for various offenses
including theft, narcotics, child pornography and bribery.
In addition to the criminal matters we handled that are in
my written testimony, we are also responsible for handling
hundreds of complaints about employee misconduct. These include
misuse of government assets, including government vehicles,
failure to report certain contacts with foreign nationals,
engaging in prohibited personnel practices, violation of
conflict of interest restrictions on former DHS employees,
violation of ethical standards concerning government employees,
improper disclosure of classified or law enforcement-sensitive
information, illegal drug use or excessive alcohol use, and
domestic violence and other state and local crimes that affect
fitness for duty.
Although a small percentage of our employees have committed
criminal acts and other misconduct warranting sanctions, the
behavior of these few should not be used to draw conclusions
about the character, integrity, or work ethic of the many. I am
personally grateful for the hard work and commitment to the
mission demonstrated daily by the DHS workforce.
Mr. Chairman, this concludes my prepared statement. I
welcome any questions you or other Members of the Subcommittee
may have.
[The prepared statement of Mr. Roth follows:]
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__________
Mr. Sensenbrenner. Thank you very much.
Mr. Whaley?
TESTIMONY OF HERMAN E. ``CHUCK'' WHALEY, DEPUTY CHIEF
INSPECTOR, OFFICE OF PROFESSIONAL RESPONSIBILITY, DRUG
ENFORCEMENT ADMINISTRATION, UNITED STATES DEPARTMENT OF JUSTICE
Mr. Whaley. Chairman Sensenbrenner, Ranking Member Jackson
Lee, distinguished Members of the Subcommittee, thank you for
the opportunity to testify here today. I appreciate the
opportunity to explain how DEA responds to allegations of
employee misconduct.
I currently lead DEA's Office of Professional
Responsibility, which conducts investigations of all
allegations of misconduct against DEA employees. Misconduct is
generally defined as any violation of the Federal, state, or
local law, or any violation of DEA standards of conduct. OPR
also monitors trends in employee conduct and behavior; makes
recommendations to DEA's executive management when there are
weaknesses in DEA's internal controls, policies or procedures;
and serves as a liaison to the Office of the Inspector General
at the Department of Justice, as well as to other law
enforcement internal affairs units in furtherance of misconduct
investigations.
As a career special agent with over 30 years of law
enforcement experience, I take my role seriously. I want to
protect the reputation of all the DEA special agents that act
with integrity in fulfilling our vital mission by holding
accountable those who don't. We are DEA's single point of
contact for all accusations of misconduct against any DEA
employee, contractor, or deputized task force officer. This is
true regardless of the source of the allegations, whether they
are made anonymously by other DEA employees, supervisors, or
the general public.
I can assure you my office takes every allegation of
misconduct seriously and has procedures in place to ensure that
complete, thorough, and fair investigations are conducted.
DEA's Office of Professional Responsibility is the first of
three parts of DEA's Integrity Assurance Program. Our role is
limited to the investigation of allegations of misconduct. The
Office of Professional Responsibility has no role in the
process of imposing discipline. We collect and document the
facts without opinion or bias and forward that information to
DEA's Board of Professional Conduct, which imposes discipline.
The case is subsequently forwarded to the office of the
deciding official, who determines any disciplinary action.
The Office of Professional Responsibility works closely
with the Office of the Inspector General of the Department of
Justice to ensure all allegations are appropriately
investigated. For every allegation that we receive, OPR shares
the allegation with the Office of the Inspector General. OIG
reviews each accusation of misconduct and determines how the
complaint will be investigated. They can choose to investigate
the complaint unilaterally, refer the complaint back to DEA and
monitor the investigation, or they can refer the complaint back
to OPR for us to investigate.
While I understand we are here to talk generally about how
misconduct allegations are handled by Federal law enforcement,
the recent report by the Inspector General is also relevant. We
must constantly learn lessons and seek to improve our efforts.
In addition to implementing all of the OIG recommendations,
DEA has taken concrete steps to improve both the training we
provide DEA employees, as well as how we coordinate
investigations when allegations are made in an effort to avoid
such problems in the future. These steps include ensuring that
it is clearly understood by all DEA employees that this kind of
behavior is unacceptable; outlining steps that employees and
supervisors must take when incidents occur; increasing training
for all employees, particularly those employees assigned
overseas; further explaining the guidelines for disciplinary
offenses; and improving internal procedures so appropriate
individuals and field management and the Office of Security
Programs and the Office of Professional Responsibility are
promptly made aware of allegations so they can take appropriate
action in a timely manner.
Consistent with the recent direction put forth by the
Attorney General which seeks to not only improve the
communication between my office and the Office of Security
Programs, but also to review the security clearances of the
investigative subjects cited in the OIG report, I am committed
to continuing to review and push for changes to improve this
process. I appreciate the feedback provided by the OIG and look
forward to continuing to work with them to improve our systems.
Thank you for the opportunity to be here with you today. I
look forward to your questions.
[The prepared statement of Mr. Whaley follows:]
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APPENDIX A
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APPENDIX B
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__________
Mr. Sensenbrenner. Thank you, Mr. Whaley.
Mr. Hughes?
TESTIMONY OF MARK HUGHES, CHIEF INTEGRITY OFFICER, UNITED
STATES SECRET SERVICE, UNITED STATES DEPARTMENT OF HOMELAND
SECURITY
Mr. Hughes. Good afternoon, Chairman Sensenbrenner, Ranking
Member Jackson Lee, Chairman Goodlatte, and distinguished
Members of the Subcommittee. Thank you for the opportunity to
appear before you to discuss recent enhancements to the Secret
Service policies and procedures that address allegations of
employee misconduct.
The Secret Service must address allegations of employee
misconduct aggressively, fairly, and consistently. Any
employee, regardless of rank or position, who violates our
standards of conduct to include the failure to report
misconduct will be held accountable.
Secret Service employees take great pride in successfully
carrying out the vital mission of our agency on a daily basis
around the world. Unfortunately, the successes of the many have
been overshadowed by the unacceptable failures of the few,
resulting in significant changes to the way in which the Secret
Service adjudicates allegations of employee misconduct.
In May 2012, the Secret Service established the
Professional Reinforcement Working Group, or the PRWG. This
group, co-chaired by former OPM Director John Berry and
Director Connie Patrick of the Federal Law Enforcement Training
Center, affirmed many existing Secret Service practices and
identified enhancements that could be implemented to further
support the workforce. The Secret Service accepted these
recommendations, and all of them have since been fully
implemented.
Additionally, the DHS OIG issued a report in December of
2013 stating that it did not find evidence that misconduct is
widespread in the Secret Service. However, the report contained
a number of recommendations for the agency, some of which
paralleled those of the PRWG, and all were fully implemented by
April of 2014.
Several recommendations focused on establishing a robust
disciplinary process grounded on transparency, consistency, and
fairness. They also led to the establishment of an Office of
Integrity, a new set of disciplinary policies and procedures,
and the development of a Table of Penalties which identifies
specific actions that constitute misconduct, along with a range
of potential discipline.
As the process now stands, outside of a limited number of
minor violations, allegations are required to be reported
through the chain of command to the Office of Professional
Responsibility, or the OPR. Under certain circumstances,
including allegations that are criminal in nature or involve
senior supervisory personnel, the agency must, pursuant to
Department directives, refer the matter to the DHS OIG.
The OIG will then make a determination whether to accept
the case for further investigation or refer the matter back to
the OPR. Following either the OIG's declination of the referral
or the completion of its investigation, the allegations are
forwarded to the intake group chaired by the special agent in
charge of the Secret Service Inspection Division.
Ultimately, substantiated allegations are presented to the
Office of Integrity. Established in December of 2013, the
Office of Integrity reports directly to the Office of the
Deputy Director and oversees adherence to Secret Service code
of conduct by impartially adjudicating employee misconduct in a
fair, consistent, and timely manner. In accordance with the
Table of Penalties and taking into consideration any mitigating
factors such as the acceptance of responsibility or aggravating
factors such as whether an employee holds a supervisory
position, the Deputy Chief Integrity Officer will prepare a
formal disciplinary proposal for presentation to the employee.
Employees subject to disciplinary action are afforded certain
procedural rights pursuant to Title 5 of the United States
Code, regulations issued by OPM, and corresponding Secret
Service disciplinary procedures. There is no doubt that the
resulting process can take time and can be cumbersome. However,
that system was put in place by Congress to protect the rights
of the government employees, and we at the Secret Service must
respect and operate within that framework.
The foundation of this discipline process is strong.
Standards of conduct will, however, need to be periodically
reinforced and in some instances adjusted, and the consequences
for failing to meet them will need to be clearly communicated.
These functions are core responsibilities of the Office of
Integrity.
For instance, following the March 4 incident, Director
Clancy, in coordination with my office, issued an official
message to all Secret Service employees making clear that they
are required to report through their chain of command any
activities that violate the Secret Service standards of
conduct.
Secret Service employees are provided with a number of
avenues to report misconduct, including the ombudsman, the OPR,
Inspection Division, the DHS OIG, or the U.S. Office of Special
Counsel. Those who fail to properly report misconduct will be
held accountable.
In summary, the Secret Service is committed to ensuring a
strict code of professional conduct, a transparent process for
administering discipline, and accountability regardless of rank
or grade. While it is ultimately the individual responsibility
of employees to adhere to the standards of conduct, the Secret
Service understands that it must provide its employees with
clear, comprehensive policies, and mechanisms to reinforce
them. When misconduct is found to have occurred, there should
be no doubt that there is a mechanism in place to deal with it
swiftly, fairly, and consistently.
Chairman Sensenbrenner, Ranking Member Jackson Lee, this
concludes my testimony. I appreciate the opportunity to explain
the Secret Service disciplinary policy and I welcome any
questions you may have. Thank you.
[The prepared statement of Mr. Hughes follows:]
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__________
Mr. Sensenbrenner. Thank you very much.
I yield myself 5 minutes.
First, I would like to commend the two Inspectors General
here, Mr. Horowitz and Mr. Roth, for a very comprehensive and
enlightening report. Very infrequently do witnesses get
commended from the Chair. Please note that this time both of
you are being commended from the Chair, and we hope that this
is a string that continues.
Now, to Mr. Whaley and Mr. Hughes, let me give a couple of
instances, particularly with the DEA.
In 2010, there was a special agent in Bogota, Colombia who
was a frequent patron of prostitutes, and on one of them he
beat her up and left her bloody. He was ultimately suspended
for 14 days.
And the next year, in 2011, a DEA agent solicited sex from
an undercover police officer in D.C. He was suspended for 8
days.
And then in 2012, we know the DEA agents engaged in sex
parties with prostitutes supplied by drug cartels, meaning the
bad guys that law enforcement is supposed to be penetrating and
bringing to justice.
Now, of those 10 agents, two received letters of reprimand,
one retired. The remaining seven were suspended by the DEA for
poor judgment or conduct unbecoming for 2, 1, 3, 3, 9, 10, and
8 days, respectively.
Now, this behavior is probably more likely to occur in a
frat house or result in going up to the big house but has
nothing to do with a law enforcement agency that depends upon
the respect of the public for the support both in terms of
appropriations as well as credibility in what they do.
Now, let me ask you first, Mr. Whaley, since these were DEA
agents. Just in your personal and private opinion, how long do
you think those suspensions should have been? We will start out
with the one who, in Colombia, was a frequent patron of
prostitutes and left one of them beaten and bloody. Is 14 days
enough?
Mr. Whaley. Sir, that behavior that that agent engaged in
is absolutely deplorable to me, and----
Mr. Sensenbrenner. Should he have been fired?
Mr. Whaley. In my opinion, he should have been fired. Yes,
sir.
Mr. Sensenbrenner. Okay. Now, what is wrong with the
system? Why wasn't he fired?
Mr. Whaley. Well, DEA's disciplinary system is comprised of
three parts, the OPR----
Mr. Sensenbrenner. You have already told us what the three
parts are.
Mr. Whaley. Yes.
Mr. Sensenbrenner. You think he should be fired. I think
everybody on this Subcommittee thinks he should be fired. What
changes in the system are needed to make sure that somebody who
is a repeat offender, from what was in the report, is fired?
Mr. Whaley. Sir, the decision to fire someone would be that
of the deciding official. I thought the behavior exhibited by
that man was deplorable, and if I had the power I would have
fired him.
Mr. Sensenbrenner. Okay.
Mr. Whaley. But it would be up to the deciding official
to----
Mr. Sensenbrenner. Now, in D.C., soliciting a prostitute
who was an undercover police officer only got a suspension.
Isn't that a tap on the wrist?
Mr. Whaley. I was particularly offended by that case
because you had an undercover police officer that was a witness
against the agent, and I agree in that case that he should have
been removed from service as well.
Mr. Sensenbrenner. Okay. Then we have the DEA agents who
were engaged in sex parties with prostitutes supplied by drug
cartels. The longest suspension was 10 days, and I listed a
whole bunch of other numbers. Obviously, if you are engaged in
a sex party with prostitutes that are supplied by the folks
that you are supposed to be enforcing the law against, that
certainly is the ultimate conflict of interest.
Now, do you think that maybe we should have kind of a
suspension suggestion, like we do with the sentencing
guidelines and trying to match offenses, so that somebody at
least has an acceptable period of suspension depending upon how
heinous the offense is?
Mr. Whaley. Sir, in the instance you are referring to in
Bogota, I was concerned not only by the sexual conduct engaged
in by the agents with prostitutes and living quarters and the
close proximity, but also the transactions that were going on
between them. So in that case, yes, absolutely, I think they
were under-punished.
Mr. Sensenbrenner. Well, you can understand why Congress
and the public is upset when we see this outrageous behavior
that is happening, and in every one of these instances I have
cited the suspension has been less than a light tap on the
wrist.
The gentlewoman from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. I join
you in this hearing and I believe this is an important hearing.
Responsibilities that we have on behalf of the American people
is for oversight.
Let me say that I am sickened by the series of stories that
we have had to face in our local communities as we have opened
our local newspapers, because most of Americans view all of the
services that are before me, from the FBI, who is not present,
but the DEA, the ATF, the Secret Service, U.S. Marshalls and
beyond, in a very high level of respect.
You carry the mantra, the red, white and blue, the stars
and stripes, the highest level of integrity. And frankly, I am
very disappointed that we are even having to have this hearing.
I just want to take just a moment as I make just a comment
about law enforcement and the concepts of criminal justice that
I wanted to make mention of in my opening statement. This is
the first criminal justice committee hearing since the killing
of Walter Scott and the unfortunate incident in Arizona where
one was to have a stun gun but yet had a gun that wound up in
the death of an individual in Arizona.
I would indicate that I hope and look forward to the fact
of being able to have hearings on the use of lethal force by
state and local police departments, educational requirements,
mental health and psychological evaluations, and training in
non-violent conflict resolution received by officers and
recruits, the use of technological devices such as body
cameras, the state of social science such as securing
statistics about the use of lethal force.
And I say that because there are many people in America, no
matter what their racial background, who are crying out for
relief. The victim's mother, meaning Walter Scott's mother, the
incident that happened in South Carolina, stated that ``I
almost couldn't look at it to see my son running defensively,
being shot. It just tore my heart to pieces. I pray that this
never happens again.'' And I think we in the United States
Congress have a responsibility to make sure that it never
happens again.
As a segue to my series of questions, I hope that what we
are confronting today on the Federal level, that we can say
that it never happens again.
Let me quickly, Mr. Horowitz--and I will be stopping
questioning since I want to get to a number of questions--your
detailed IG report made reference, I believe, to the fact that
there may have been few, but our review of the handling of
these allegations of harassment and sexual misconduct reveal
some significant systemic issues with the components processes
that we believe require prompt corrective action.
So let me pointedly say to you, why is there not a process
to fire these bad actors?
Mr. Horowitz. Congresswoman, there is a process, and the
disciplinary process that goes forward under Title 5 would
require a charging decision, and one of the concerns we
highlighted, as you noted, was the charges being filed. The
charges being filed were not the charges that the table that
the DEA provides for these kind of offenses. Had certain
charges been brought, a minimum 14-day penalty would have been
required, up to possible removal. In the sexual harassment case
that we cited in our report, if sexual harassment had been
charged and found, removal would have been the only penalty.
So one of our concerns was, like in many decisions you make
with discretion, what decisions were being made at DEA about
what to charge, and the most serious penalties, the most
appropriate charges it didn't seem to us were being filed.
Ms. Jackson Lee. Let me move to Mr. Roth. Thank you.
Mr. Roth, you mentioned in your statement, you discuss
problems with the corruption of border agents and CBP. Please
tell us more about these issues, whether the agencies involved
are appropriately addressing the problems. I really need a
succinct, quick answer.
Mr. Roth. Certainly. When we talk about border corruption,
we are talking about criminal activity, largely. We work
closely with the CBP internal affairs offices and the U.S.
Attorney's Office----
Ms. Jackson Lee. So the point is?
Mr. Roth. They are addressing it, usually through criminal
means.
Ms. Jackson Lee. Mr. Whaley, with the DEA, let me say that
I was in Colombia during this horrific incident, and I think we
should read into the record that the report states that DEA
agents had sex parties with prostitutes hired by local drug
cartels overseas for several years. One of those happened to be
in Colombia. That triggered the investigation in the Secret
Service.
So it is baffling to me--it is alleged that three
supervisory DEA agents were provided with money, expensive
gifts, and weapons from drug cartel members. It baffles that we
do not have an expedited process, and I, for one, am a strong
supporter of the rights of workers. But the question is, if you
already had a record of complete ignoring of the rights of
individuals, tell me why some immediate changes were not made.
Mr. Whaley. The investigation in Bogota happened in 2010,
prior to the Cartagena in 2012, and both of them were decided
at approximately the same time.
Mr. Sensenbrenner. The time of the gentlewoman has expired.
The gentleman from Virginia, the Chair of the full
Committee, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
I have said many times how much respect I have for Federal
law enforcement officers who combat the drug cartels and the
scourge of drugs in this country, who track down terrorists and
prevent terrorist attacks, who put their lives on the line to
protect the President of the United States and others, and the
people around him. But that is not why we are here today. This
is very concerning to me.
Mr. Whaley's testimony says that the DEA generally has an
excellent working relationship with the Office of the Inspector
General, particularly when it comes to investigative matters.
So I want to ask you, Mr. Horowitz, do you agree with that
statement, and are you confident that the DEA is committed to
reform in this area?
Mr. Horowitz. As we noted in our report, we had serious
concerns in this review as to how we were given materials. On
the investigative side, we have had a strong relationship. We
have had difficulties up until recently with regard to audits
and reviews like this one. That has improved recently, and I
will say that the problems currently are primarily with the
FBI.
Mr. Goodlatte. So you were not getting cooperation prior to
this, but with the DEA you are getting more cooperation now
with regard to the data and information and the ability to go
in and examine and conduct an audit?
Mr. Horowitz. That is correct. In fact, Section 218 I think
has had an impact in a positive way with regard to the
compliance by DEA.
Mr. Goodlatte. Now, with regard to the FBI, your testimony
and your report discusses the failures of the DEA and the FBI
to promptly provide all the information you requested despite
the requirements in Section 218 of the Fiscal Year 2015
Appropriations Act, where we specifically address this. Is
there a legislative solution to this problem beyond what we
have already done?
Mr. Horowitz. I have to say, I think the law is clear that
we should be getting the materials. I think the appropriators,
frankly, will have to look and Congress will have to consider
what it means for an organization to not follow a crystal clear
provision that Congress has put in place.
Mr. Goodlatte. In other words, we could withhold some funds
from an agency for failure to comply.
Mr. Horowitz. I think it is up to the Congress to decide
how to treat such a----
Mr. Goodlatte. You know, I hate to do that with the FBI.
They have a very important and very serious role. But it is
also important that they respect the Office of the Inspector
General. I have raised this with the Director of the FBI. Has
there been no improvement there?
Mr. Horowitz. There has been no change at all since
December when Congress passed that provision.
Mr. Goodlatte. Your testimony, Mr. Roth, describes in
detail the allegations of Secret Service misconduct in
Cartagena, Colombia, and the new rules it has instituted
regarding personal conduct. Are you confident that the Secret
Service appears to be taking this matter seriously? Because it
seems to have gone on for several years without them taking it
seriously when we have seen three or four instances just since
the beginning of this year.
Mr. Roth. There is no question that the Secret Service has
taken steps to try to combat this problem. One of the issues
that we have is we believe that there is a feeling among law
enforcement officers, Secret Service officers, that they are
not able to report misconduct up the chain because they will be
either retaliated against or those complaints will be ignored.
We think that is a serious problem within the Secret Service.
We do applaud the structural changes, for example in Mr.
Hughes' group, that have been instituted as a result of our
December 2013 inspection.
Mr. Goodlatte. Is there anything the agency is not doing
that you feel it should?
Mr. Roth. I think it is a difficult problem. I think the
message has to be said loud and clear as to what is acceptable
conduct, and there has to be the ability for agents to be able
to report misconduct in a way that allows them to do so without
fear of retaliation.
Mr. Goodlatte. Mr. Whaley, on Monday evening the Justice
Department sent a letter to this Committee identifying a couple
of significant failures by OPR in connection with the
investigation, including a failure to fully investigate the
misconduct and a failure to properly refer the matter to the
Office of Security Programs. Why were those failures allowed to
happen?
Mr. Whaley. I concur that the investigations cited in the
OIG report were not done as thoroughly as they should have
been. I can assure you that going forward I will personally
ensure that the investigations are done as thoroughly as I can
possibly control.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Sensenbrenner. Thank you.
The gentleman from Ohio, Mr. Chabot.
Mr. Chabot. Thank you, Mr. Chairman.
I would like to ask this question of Mr. Horowitz, Mr. Roth
and Mr. Whaley.
Recently it has come to light that in 2013 the DEA was
caught impersonating an individual on Facebook, including using
provocative photos of her and pictures of her children without
her permission or knowledge. In a January 2015 article in
Newsweek magazine, it stated that the Justice Department
recently reached a settlement with the woman impersonated by
the DEA to the tune of $134,000 of taxpayer money.
Additionally, there is a presentation that was put together
by the DHS Inspector General's Office explaining how to use
fake Facebook pages in an attempt to infiltrate drug rings. At
the same time, the FBI is shopping for location-based social
media monitoring.
Should law enforcement be able to utilize social media to
monitor or impersonate Americans without a court order or
informed consent of the Americans being impersonated, as other
types of monitoring require?
Mr. Horowitz. Congressman, you raise some very significant
issues and something we have had concerns about and have been
discussing internally, and we have done some reviews in these
areas and are considering, frankly, in light of some of the
reports and news you cited, whether we need to look in other
areas as well.
Mr. Chabot. Mr. Roth?
Mr. Roth. It is certainly a matter of concern any time that
you have this kind of conduct that exposes the United States
taxpayer to this kind of potential fiscal liability. We ought
to be looking at that, and certainly that is something that we
are considering as well.
Mr. Chabot. Mr. Whaley?
Mr. Whaley. I know that the instant case you discussed was
handled civilly through the court system. It wasn't handled by
OPR, but I certainly can see the privacy protection concerns
being discussed by you, sir.
Mr. Chabot. All right, very good. Well, we appreciate your
attention to this matter to the degree possible. Let me move on
to another question.
Mr. Horowitz, I will ask you about this. Your testimony
touches on two specific OIG reports regarding misconduct by
employees with the DOJ, specifically referring to those actions
by DEA employees. I was interested in finding out about whether
or not there has been any review of the DEA's use of the
license plates LPR technology in unsavory or nefarious ways.
During a recent staff briefing given by DEA employees, it was
indicated that there have been no identified instances of
misconduct by those law enforcement officers using the database
of license plates.
Has there ever been an objective outside audit or review on
this matter? And with all the other issues facing law
enforcement branches of the DOJ, has this been an issue
discussed internally, or do you take them on their word that
all the users of the database system are using it specifically
for law enforcement purposes and not for other purposes?
Mr. Horowitz. We have not conducted a review of that. We
have noticed, again, the stories and the issues you have
identified, and again it is something we have discussed. I
would be happy to come and speak further with you and your
staff about it as we consider those issues as well.
Mr. Chabot. All right. I would appreciate that, and I will
have my staff follow up with you on that particular matter.
I will yield back at this time, Mr. Chairman.
Mr. Sensenbrenner. Thank you.
The gentleman from Texas, Mr. Poe.
Mr. Poe. Thank you, Mr. Chairman.
Thank you all for being here.
I am embarrassed about this whole situation. It is
embarrassing. It is embarrassing to the country.
I am a former criminal court judge. I know a lot of peace
officers. And like has been said, generally speaking, peace
officers do the work nobody else would do. I respect them a
great deal. And this conduct that has been discussed here today
is not so much a reflection on the rest of us, but it hurts
good peace officers throughout the country, those that work at
the DEA, Secret Service, and state agencies, because too many
want to classify all of them based upon the conduct of a few
here.
But the ones, from what I hear, it seems like some believe
in this system that the rule is for thee but not for me, and
they are not held accountable for what they do as other people
in the country would be held accountable for.
So, Mr. Whaley, just based upon looking at you, you seem to
be a little embarrassed about this whole situation. Is that a
fair statement?
Mr. Whaley. Yes, sir. I hold DEA agents in the highest
regard, and this is very embarrassing to me.
Mr. Poe. I mean, it is tough work. They are all over the
world. They are working undercover. Nobody knows what they are
doing for the good of this country, and here we have a few that
have hurt the reputation really of the whole agency.
I have questions for both you and Mr. Hughes. I will ask
you first. Mr. Hughes, I want to ask you the same questions.
Let's use 2013, or 2014. Maybe you got those. How many
complaints have been filed against DEA agents in 2014?
Mr. Whaley. In 2014, it is approximately 860 allegations of
misconduct.
Mr. Poe. That is fine, allegations. Of those allegations,
how many did you determine, your agency determine were bona
fide allegations?
Mr. Whaley. I don't have an exact number here with me
today, but----
Mr. Poe. Well, why not?
Mr. Whaley. It is going to be approximately 160-some-odd.
Mr. Poe. One hundred and sixty.
Mr. Whaley. Somewhere in that range, yes.
Mr. Poe. Okay, 160. How many of those in 160 were
disciplined by being fired?
Mr. Whaley. I could take that question back and have that
researched for you, sir.
Mr. Poe. Any?
Mr. Whaley. I do know there have been some removals.
Mr. Poe. Five?
Mr. Whaley. I don't know the exact number, sir.
Mr. Poe. Would you be surprised--I mean, you don't know
what number it is.
Mr. Whaley. No, sir, I don't.
Mr. Poe. Okay. How many of them went to jail, were
prosecuted and went to jail?
Mr. Whaley. There have been a number of personnel
incarcerated.
Mr. Poe. How many?
Mr. Whaley. I don't know the exact number, sir.
Mr. Poe. Mr. Roth, do you know?
Mr. Roth. I do not.
Mr. Poe. Mr. Horowitz?
Mr. Horowitz. I can get that quickly, but I don't know the
answer.
Mr. Poe. Okay. I want the answer.
Mr. Sensenbrenner. Without objection, the responses will be
put in the record at this point.
Mr. Poe. Mr. Hughes, the same questions. In 2014, how many
allegations, complaints, by any source, were made against a
Secret Service agent?
Mr. Hughes. Congressman, we have approximately 100 to 120
cases that we provided formal discipline on.
Mr. Poe. All right. Would that include all the complaints,
even the unfounded ones? That is what I am asking you, all the
complaints made against Secret Service agents.
Mr. Hughes. I don't have a solid number for you on that,
sir.
Mr. Poe. So you don't know how many complaints were made by
any source.
Mr. Hughes. A majority of the cases that we provided formal
discipline on were substantiated and were the allegations that
came forward. The way the Office of Integrity works, our
initial stage is an intake stage which evaluates the
circumstances surrounding an allegation.
Mr. Poe. But you can find out the number of allegations.
Mr. Hughes. Yes, sir. I can get that for you.
Mr. Poe. Somewhere along the system, those were removed,
and you had how many bona fide accusations?
Mr. Hughes. That would be approximately 100.
Mr. Poe. How many of those 100 were fired?
Mr. Hughes. Two.
Mr. Poe. How many went to jail for criminal violations?
Mr. Hughes. None.
Mr. Poe. Nobody went to jail.
Mr. Hughes. No, sir.
Mr. Poe. Were any of those--well, how many people were
prosecuted?
Mr. Hughes. None. To the best of my knowledge, there were
none, sir.
Mr. Poe. So, what were the allegations? Can you give us a
list of the allegations that were found to be bona fide by the
Secret Service of that 100-plus?
Mr. Hughes. I would be able to get that list for you. Yes,
sir.
Mr. Poe. And nobody went to jail.
Mr. Hughes. No. Out of all the allegations and discipline
that was brought forward, there were no--very limited criminal
activities that were followed up on within the judicial system.
Mr. Poe. I ask unanimous consent, Mr. Chairman, to submit a
list of questions for each of the witnesses and their answers
be given back to the Chair.
Mr. Sensenbrenner. Without objection, the witnesses are
directed to respond promptly so this can be printed in the
Committee record.
Mr. Poe. I yield back. Thank you, Mr. Chairman.
Mr. Sensenbrenner. The gentleman from Idaho, Mr. Labrador.
Mr. Labrador. Thank you, Mr. Chairman.
Thank you, gentlemen, for being here, for your service.
I am concerned about these actions, mostly because of what
it does with the trust that the general public has with law
enforcement, and I assume that you have the same concern. It
seems, at a time when we have this 24-hour news and we have all
these issues that are happening in America, that continuing to
talk about these issues is bringing down the trust that the
American people have in your agencies, and I don't want that. I
want the opposite. I want people to really feel like they are
being empowered and being protected by your agencies.
Mr. Horowitz, I have a few questions for you. In your
written testimony you discuss the lack of clarity regarding
off-duty conduct for agency personnel and relate that these
conduct requirements have not been updated since 1996. I
understand that clarity for off-duty conduct is vital. However,
don't you find that a little bit troubling, that these agencies
would require more training and more clarity just to determine
that hiring prostitutes is not the right thing when you are
protecting the President of the United States?
Mr. Horowitz. Unfortunately, I think it is pretty clear
from what we have reported here that there does need to be
training and a greater understanding of what is allowed and
what off-duty is not allowed.
Mr. Labrador. But what is it about the culture that would
tell you that that is okay without clarity? I guess that is
where I am having a hard time. To me, that is pretty clear. I
don't need any additional training to let me know that I
shouldn't be doing that.
Mr. Horowitz. I completely agree with you, Congressman. But
I think what is evident here about the culture, certainly that
existed at the time of these events, was how they ultimately
came to be reported, which we describe in our report. So we
have three incidents in there that we describe related to the
prostitution issues. One is in the 2001-2004 time period. OPR
learns of that not from a DEA employee supervisor reporting but
when they arrest Colombian national police for corruption. That
is how it gets reported.
The second one is from 2005 to 2008. That gets reported in
June 2010 in an anonymous letter.
The third one gets reported by the State Department, not by
DEA, and I think that is indicative of the culture and the
problem and a reform that has to happen. Those reports need to
go not 5 years later or 10 years later from somebody else but
immediately.
Mr. Labrador. So, can you describe the type of training,
and quickly, the type of training that you feel will
effectively prevent these instances of inappropriate conduct?
Mr. Horowitz. Well, first of all, there has to be clarity
on what is allowed and what is clearly not allowed. That was
missing. Whether it should have been obvious or not, it wasn't
to certain folks. That has to happen. There has to be real and
rigorous training. The State Department, as we indicate in our
report, the State Department has rigorous training, the Defense
Department has rigorous training, and the FBI has put in place
some comprehensive training. There is no reason that the other
law enforcement components shouldn't be doing the same thing.
Mr. Labrador. Okay. So if the offenders felt that this
behavior was okay despite a set of clear expectations, why
weren't they reported every time? What is missing from the
reporting requirements that we need to change?
Mr. Horowitz. I think there are a couple of things that
should happen. First and foremost, there needs to be a clear,
unequivocal understanding of the responsibilities of every
supervisor that they need to report this kind of misconduct to
headquarters, to OPR immediately.
Number two, there has to be consequences for not doing
that. Much of the discussion is about the actions of the actors
here. But the failures of the supervisors are equally serious.
They didn't have to engage in the prostitution, but they knew
what was going on and didn't take action, and that allowed this
to continue.
Mr. Labrador. So if the issue is that the expectations were
not clear, and you say that the expectations have not been
updated since 1996, why hasn't that been done since 1996? Why
haven't we updated the expectations on a regular basis?
Mr. Horowitz. It clearly should have been done. We issued a
report in 1996 after the good old boy roundup allegations that
occurred back then about much similar issues and allegations,
but in the United States. Twenty years later, 19 years later,
nothing has changed. It should have happened. I think these
kind of hearings and discussions will cause it to happen now.
Mr. Labrador. Do you think there have been more instances
of inappropriate conduct that were simply not reported because
the expectations were not clear?
Mr. Horowitz. That is a great question, Congressman,
because as we indicate here, we found a relatively low number
of instances, but then you have to step back and ask what don't
we know, right? If in the three instances I described it took
someone else to report what was going on, I don't think any of
us can say with any certainty we know what the scope of the
issues were because folks at DEA were not reporting these
events. The corrupt Colombian police officers were, the State
Department did, and an anonymous letter did. And that has got
to change.
Mr. Sensenbrenner. The time of the gentleman has expired.
The gentleman from Louisiana, Mr. Richmond.
Mr. Richmond. Thank you, Mr. Chairman.
Mr. Horowitz, are you familiar with the incident in the
U.S. Attorney's Office in the Eastern District of Louisiana
where top Assistant U.S. Attorneys were blogging and commenting
on cases online?
Mr. Horowitz. I am.
Mr. Richmond. Have you read the OPR report?
Mr. Horowitz. I have read a summary of the OPR report. I
actually have not read the full report.
Mr. Richmond. What is troubling to me--first of all, the
OPR report I think was done in 2013, and it was just released
to the public 2 weeks ago. But what the report seems to
outline, first of all, I think the conduct of the Assistant
U.S. Attorneys borders on criminal violations, and I would ask
that the office look into those, because they have put people
in jail for less than what they did. If you are talking about
New Orleans and the Eastern District of Louisiana, there is a
very severe, I would say, distrust of the U.S. Attorney's
Office and our Federal law enforcement there, and I don't think
that this breeds any more confidence in that, and the U.S.
Attorney's Office has done some very good things.
But this scandal appears to be something that, from the
public perception and my perception, something that is being
swept under the rug and not investigated to its end conclusion.
I know that the Inspector General's Office did not do it, and I
would like the Inspector General's Office to get involved
because I am sure, as I sit here today, that there were FBI
agents that were also involved in this, and the OPR report--I
am not sure if they even had the authority to wage an
investigation into whether the Federal law enforcement partners
of the U.S. Attorney's Office was also engaged in that
activity.
But the culture in that U.S. Attorney's Office was that of
a rogue frat house, with the authority to charge people where
the charging document says ``United States of America versus
you.'' And when people get charged, you know and I know that it
up-ends their life and their life goes on a different journey.
I am not sitting here defending anyone who has been
indicted or charged for breaking the law, but I do want a U.S.
Attorney's Office that is trustworthy, and I want to know that
my FBI agents in that office, in my district, are playing above
board. As I sit here today, I can't tell you that I have that
trust about all of them.
What is it that your office can do in terms of a follow-up
investigation and looking into the actions of the law
enforcement as it relates to that case, and just a general
interaction with my U.S. Attorney's Office?
Mr. Horowitz. Congressman, on that matter, we had some
involvement later on in the process, and I am happy to talk
further with you. I have to go back and refresh myself and also
understand what I am able to say and might need to say in
private to you about the work we did and what we have learned
or not learned. But one of the concerns we had, and I know we
talked about this a year or two ago when this occurred, was we
only came to know about this nearer to the end of the process
than to the beginning because the Department referred the
matter to the Office of Professional Responsibility, not to the
OIG.
Primarily there is the issue out there about our
jurisdiction, and the Inspector General limits our ability to
look at certain matters. In this area, frankly, we thought we
could have done that work, and ending that limitation on our
jurisdiction needs to occur so that if we are going to be
involved in something, we are involved at the earliest parts of
it when the information is fresh and people, for example, are
still working in that office who are available to us, because
we don't have the ability to question people who have left the
office as we would when they were still in the office.
So I would be interested in talking with you further about
that and how we can move forward and speak to you about those
issues.
Mr. Richmond. And I would be interested in knowing the
specific language of the limitations, and a cite would be
helpful because I would be interested in lifting some
limitations. I think the OPR report was carefully written, to
say the least, to still try to put the office in the best light
and protect individuals. Even the version that was released was
redacted significantly. I have heard many people express
concern.
But what that did is we had convictions overturned because
of that report, and we had an entire investigation that was
dismissed because of it. So, I would love to talk to you.
Mr. Chairman, thank you for the time, and I yield back.
Mr. Sensenbrenner. The gentleman's time has expired.
The Chair recognizes the gentlewoman from Texas, Ms.
Jackson Lee, for 2 additional minutes to get an answer to a
question she was propounding to Mr. Whaley.
Do you remember what the question was, sir?
Ms. Jackson Lee. I will restate it.
Mr. Sensenbrenner. Okay.
Ms. Jackson Lee. Let me restate it.
Mr. Whaley, we have learned in recent days that the sex
parties and the solicitation of prostitutes by DEA agents in
Colombia went back as far as 2001. So I was pressing the point
of when your office learned of the behavior, when did you
become aware of the solicitation, and the question is what you
did about criminal behavior that is obviously separate from
other work failures; and why, in knowing this, there was not an
expedited process for those who were on the brink of criminal
behavior? So the process that you offered I think has to
separate itself when you are dealing with actors who were
engaged or DEA agents who were engaged in what could be
considered criminal behavior.
Mr. Whaley. Just like you, I am concerned about the
behavior that was done down there. Like you said, the behavior
happened, began in around 2001. It was reported to OPR in 2010
after the arrest of the corrupt CMP officers.
Ms. Jackson Lee. You didn't know before 2010 about the
behavior in 2001 that was going on for 9 years?
Mr. Whaley. That is correct.
Ms. Jackson Lee. So, if I may, Mr. Whaley, have you looked
back to cure that very severe problem, which is 9 years you did
not know? And as you know, as I indicated, I was in Colombia
with the President when the incidents occurred, and I can
assure you it was an international incident because you were
dealing with young women who were prostitutes. But the question
is, then, we are talking about a culture that no one,
supervisor or otherwise, never got to headquarters. Is that
what you are saying?
Mr. Whaley. I don't believe there is a culture problem in
DEA. None of the agents I have ever worked with, anywhere I
have ever worked, have engaged in similar behavior. But there
were different sets of incidents, one that ran from 2001 to
approximately 2004, and then 2009-2010 to 2012.
Mr. Sensenbrenner. The gentlewoman's time has expired.
Ms. Jackson Lee. I will submit questions for the record,
Mr. Chairman.
Mr. Sensenbrenner. Without objection, all Members may
submit questions to the witnesses within the next 5 days.
If you receive any of these questions, it would be
appreciated that you promptly respond so that the answers can
be placed in the record.
This concludes the business that we have before the
Subcommittee today, and without objection, the Subcommittee
stands adjourned.
[Whereupon, at 3:10 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Response to Questions for the Record from the Honorable Michael E.
Horowitz, Inspector General, United States Department of Justice
Response to Questions for the Record from the Honorable John Roth,
Inspector General, United States Department of Homeland Security
Response to Questions for the Record from Herman E. ``Chuck'' Whaley,
Deputy Chief Inspector, Office of Professional Responsibility, Drug
Enforcement Administration, United States Department of Justice
Response to Questions for the Record from Mark Hughes, Chief Integrity
Officer, United States Secret Service, United States Department of
Homeland Security