[Congressional Record Volume 143, Number 27 (Wednesday, March 5, 1997)]
[Senate]
[Pages S1943-S1945]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             USE OF FBI BACKGROUND INVESTIGATION SUMMARIES

  Mr. LEVIN. Mr. President, I want to take a few moments this afternoon 
to set the record straight on an important point concerning the use of 
FBI background investigations in the consideration of the executive 
branch nominees by the Senate.
  A number of inaccurate comments have been made about the handling of 
FBI files in connection with the pending nomination of Tony Lake to be 
Director of Central Intelligence. Some Senators are calling for access 
to the complete files which the FBI used to prepare the summaries that 
were provided to the White House and the Congress. The Senators cite 
former Senator Tower's nomination to be Secretary of Defense as a 
precedent for requesting those so-called complete files.
  For example, a February 17, 1997, letter to the majority leader, 
signed by 16 Senators, only three of whom were Members of the Senate at 
the time the Tower nomination was considered, and none of whom were 
then members of the Armed Services Committee, states the following:

       As you know, when former U.S. Senator John Tower was 
     nominated for Secretary of Defense, his complete FBI file was 
     placed in a secure room of the Capitol for Members of the 
     Senate to read and evaluate. Given the clear precedent and 
     the critical nature of the position of Director of Central 
     Intelligence, this is the procedure which we believe should 
     be followed in the case of Mr. Lake.

  The fact is, Mr. President, that neither the Armed Services Committee 
nor the full Senate ever had access to the raw investigative files used 
by the FBI to compile its summary of the background investigation of 
Senator Tower. The Armed Services Committee and all Senators had access 
only to the FBI summary of its investigation of Senator Tower to be 
Secretary of Defense.
  I understand that the summary of the FBI's background investigation 
of Tony Lake has already been provided to the chairman and vice 
chairman of the Intelligence Committee, just as the summary of the 
FBI's background investigation of Senator Tower was provided in the 
Armed Services Committee in 1989.
  A little background is useful here on the process of FBI background 
investigations of executive branch nominees. Prior to the submission of 
a nomination to the Senate, the FBI conducts a background investigation 
of the nominee for the purpose of providing the President with 
information about the suitability of a prospective nominee. The report 
of the investigation is submitted to the counsel to the President who 
is responsible for preparing appropriate advice to the President.
  The FBI background material provided to the Armed Services Committee 
in connection with nominations includes only the FBI summary of its 
interviews. If the committee determines that additional information is 
necessary, a request for this information is made of the White House. 
If necessary, the FBI investigates further, and additional summaries 
are provided to the committee. The underlying investigative materials 
are not submitted to the committee, and they never have been. I repeat 
that. The underlying investigative materials, the so-called raw 
investigative materials, are not submitted to the Armed Services 
Committee and they never have been, including in the case of Senator 
Tower when his nomination was before us to be Secretary of Defense.
  The standard practice before the Armed Services Committee has been 
that the summary of the FBI investigation is read only by the chairman 
and the ranking minority member of the committee or their Senator-
designee from the members of the committee. These summaries can be 
extraordinarily personal and confidential, and, for that reason, the 
executive branch is not allowed staff access generally to those FBI 
summaries.
  A February 10, 1989, letter from President Bush's White House 
counsel, Boyden Gray, to the Senate majority leader described the 
``terms and conditions under which summaries of FBI background 
investigations on Presidential nominees have been made available to 
Senators since 1981.'' This is what then-White House counsel Boyden 
Gray said to the Senate majority leader.

       The FBI summary is hand-carried by an attorney in this 
     office to the Senator who reviews the file with the White 
     House attorney. When the Senator has finished reading the 
     summary, it is hand-carried back to the White House.

  That same practice was followed throughout the Bush administration 
and the first term of the Clinton administration.
  Access to FBI summaries was expanded for the committee's 
consideration of the nomination of former Senator Tower to be Secretary 
of Defense in 1989. For the committee's consideration of that 
nomination, Senator Nunn and Senator Warner, the chairman and ranking 
member of the committee at that time, felt that it was important that 
all Senators on the committee have access to the FBI summary of its 
background investigation of Senator Tower and that a limited number of 
committee staff also have access to those summaries to prepare the 
committee report on the nomination.
  After lengthy discussions and negotiations with President Bush's 
counsel, Boyden Gray, Senators Nunn and Warner and Mr. Gray reached a 
written agreement on the terms of access to the FBI summary of its 
investigation of Senator Tower, which allowed all members of the Armed 
Services Committee and a very limited number of committee staff to have 
access to the nine chapters of the FBI summary. The summary was put in 
room S407 here in the Capitol, along with summaries of the summary 
which were prepared by the committee staff, to make it easier for the 
members of the committee to review those summaries.
  Mr. President, the agreement between Senator Nunn, Senator Warner, 
and Mr. Gray makes it very clear that what the Armed Services Committee 
had access to was--and here I am quoting from the access agreement--
``the Federal Bureau of Investigation's summary of its background 
investigation of Senator John Tower.''
  And the agreement here between Senators Nunn and Warner and Mr. Gray 
went on to inventory the material which was provided to the committee 
as follows:

       The FBI summary consists of the following parts:

  This is the inventory agreed upon relative to Senator Tower's 
nomination.

       The FBI summary consists of the following parts: (1) 
     summary memorandum (undated [but which was, in fact, dated 
     December 13, 1988]); (2) summary memorandum (December 23, 
     1988); (3) summary memorandum [which was also] (undated [in 
     this agreement but which was January 6, 1989]); (4) summary 
     memorandum (January 13, 1989); (5) summary memorandum 
     (undated [but which was, in fact, January 25, 1989]); (6) 
     summary memorandum [dated] (February 8, 1989); and (7) 
     summary of the ongoing investigation not yet completed by the 
     FBI.

  Now what that quote is from is the agreement between Senators Nunn 
and Warner and Boyden Gray, the then-White House counsel.
  Mr. President, I wonder how much time I have left?
  The PRESIDING OFFICER. The Chair observes that the Senator's time has 
expired.

[[Page S1944]]

  Mr. LEVIN. If there is nobody else seeking recognition, I ask 
unanimous consent to have 3 additional minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. I thank the Chair.
  So then I observe, Mr. President, that the quote which I just shared 
with this body is from the agreement, and every single item on that 
inventory is a summary document.
  Two additional FBI summaries were added to the seven listed in the 
original agreement before the Senate finally voted on the Tower 
nomination a month later. These FBI summaries, which were eventually 
placed in S-407 for review by all Senators, were the only FBI materials 
received by the Armed Services Committee.
  As Senator Nunn stated on the Senate floor when he opened the debate 
on the Tower nomination--and this probably is the most succinct place 
where Senator Nunn stated this on the Senate floor--

       What we have in S-407 is the summary of interviews the FBI 
     conducted. They prepare the summary. We do not see nor do we 
     have the underlying interviews.

  That is stated about as succinctly and directly as you can by the 
then-chairman of the Armed Services Committee.
  So, in short, the committee did not have access to any raw 
investigative files or interview transcripts, nor did the Senate. What 
we had were the nine chapters of the FBI summary of its investigation.

  Following the committee's action on the Tower nomination, Senators 
Mitchell and Dole reached an agreement with the Bush administration 
that all Senators would have access to the same FBI summary of the 
background investigation of Senator Tower that was made available to 
the members of the Armed Services Committee. In other words, after the 
Armed Services Committee voted, then the agreement between Senators 
Mitchell and Dole was that the full Senate would have access to those 
same summaries that the committee Senators had access to.
  So the fact is, Mr. President, that in considering the nomination of 
Senator Tower to be Secretary of Defense, the Armed Services 
Committee--and eventually all Senators--had access to the FBI summary 
of its background investigation of Senator Tower, no more and no less. 
We did not have access to any of the raw investigative material that 
the FBI used to prepare those summaries.
  Mr. President, the Senate has had the nomination of Tony Lake to be 
Director of Central Intelligence for 2 months. And some Senators have 
questions about Mr. Lake's suitability for the position. Those 
questions should be raised with the nominee in the hearing next week so 
that he can respond, and Senators can then reach their own judgments 
about his suitability for this important position.
  But we should not act on any misunderstanding as to what the 
precedents are relative to raw investigatory materials. And in dealing 
with the Lake nomination, which I am glad to see is now scheduled for a 
hearing, I think it is important that Senators realize that the 
precedents here relative to executive nominees are such that we do not 
have access to those materials because they contain so much rumor, so 
much inaccurate information that we rely on the FBI to go through all 
that raw material and give us the summary reports that then we rely on, 
and then if we need or desire additional information, we make that 
request of the FBI and of the Justice Department.
  There is a larger issue at stake here also, Mr. President, and that 
is the growing intrusiveness of the nomination and confirmation 
process. Make no mistake about it: if the executive branch agrees to 
provide raw FBI files to the Intelligence Committee, a new precedent 
will be set for future nominations to executive branch positions. The 
FBI summaries contain the most personal, private, and sensitive details 
of an individual's life. Some of these details have no bearing on an 
individual's suitability for office.
  As Mr. Gray stated in his February 14, 1989, letter to the Armed 
Services Committee, even the material included in the summary of an FBI 
background investigation is so sensitive that their disclosure could 
jeopardize ``the privacy interests of [the nominee] and others, the 
confidentiality of FBI sources, the FBI's ability to conduct background 
investigations, and our ability to recruit qualified candidates for 
positions of governmental service.''
  It is already difficult to convince talented people to serve in 
government. If people realize that every rumor or allegation that the 
FBI dredges up or that every off-hand comment or statement that someone 
says about a nominee in an interview is subject to being read by 100 
Senators and selected staff--and possible leaks to the media--it will 
be even harder to get the kind of people all of us want to serve in 
confirmed positions in the executive branch.
  I ask unanimous consent, Mr. President, that the February 10, 1989, 
letter from Mr. Gray to the Senate majority leader, the February 14, 
1989, agreement on the terms of access to the FBI summary of its 
investigation of Senator Tower, and the February 14, 1989, letter from 
Mr. Gray transmitting that agreement to Senator Nunn, be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              The White House,

                                Washington, DC, February 10, 1989.
     Hon. George J. Mitchell,
     Majority Leader, U.S. Senate,
     Washington, DC.
       Dear Mr. Majority Leader: As a follow-up to our meeting of 
     January 27, 1989, I am sending you a precise description of 
     the terms and conditions under which summaries of FBI 
     background investigations on Presidential nominees have been 
     made available to Senators since 1981. That description is 
     set forth below.
       At the request of the White House, the FBI conducts a full-
     field investigation of a candidate for Presidential 
     nomination. A summary of the results of this investigation is 
     reviewed by the Counsel to the President prior to a final 
     Presidential decision to nominate the individual in question. 
     Once the nomination is forwarded to the Senate, that summary 
     is made available for review by the Chairman and Ranking 
     Minority Member of the Committee considering the nomination 
     (and the Majority and Minority Leaders if they desire). With 
     the approval of the Chairman and Ranking Minority Member, 
     other Senators on the Committee are given an opportunity to 
     review the summary.
       The FBI summary is hand-carried by an attorney in this 
     office to the Senator who reviews the file with the White 
     House attorney. When the Senator has finished reading the 
     summary, it is hand-carried back to the White House. (Within 
     the White House, access to the FBI summary is limited to 
     members of the White House Counsel's office, the Chief of 
     Staff, and the President.)
       In the event the Chairman and Ranking Minority Member of 
     the Committee believe there are issues that have not been 
     adequately addressed in the FBI summary, the Counsel to the 
     President may request the FBI to conduct further 
     investigation. The summary of that additional investigation 
     is provided to the White House counsel who then makes it 
     available to the Chairman and Ranking Minority Member on the 
     same terms and conditions as the original FBI summary.
       The procedures outlined above are necessary to protect the 
     FBI's investigatory process as well as the privacy interests 
     of the nominee and the other individuals who agree to be 
     interviewed by the FBI. Since the FBI relies on the 
     willingness of people to provide information in a 
     confidential manner, access to this information is limited. 
     For the same reasons, members of this office and Senators 
     have historically refused to comment publicly on the contents 
     of the FBI summary.
       As we discussed, this practice enables the Senate to 
     utilize information prepared by the FBI for the White House 
     in the execution of its Constitutional advice and consent 
     responsibilities. Further, it is my understanding (as 
     evidenced in the enclosed letter from former Deputy Counsel 
     to the President Richard A. Hauser, Section IV of the 
     enclosed old ``Presidential Appointee's Handbook'' (which has 
     been used since at least 1986) and Appendix A of the revised 
     ``Presidential Appointee's Handbook'') that this practice was 
     consistently followed by Senate Committees in their 
     consideration of Presidential nominees between 1981 through 
     mid 1986.* Accordingly, with your concurrence, it is my 
     intention to continue this practice throughout the Bush 
     Administration.
---------------------------------------------------------------------------
     *The one exception to this rule was the Senate Judiciary 
     Committee, which was subject to a separate agreement because 
     judgeships are lifetime appointments.
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           Sincerely,
                                                   C. Boyden Gray,
     Counsel to the President.
                                  ____


 Terms of Access to the FBI Summary of Its Investigation of John Tower 
                  (Nomination as Secretary of Defense)

       The Counsel to the President has agreed to make available 
     to the Senate Armed Services Committee (SASC) four copies of 
     the Federal Bureau of Investigation's summary of its 
     background investigation of Senator

[[Page S1945]]

     John Tower. (The FBI summary consists of the following parts: 
     (1) summary memorandum (undated [December 13, 1988]); (2) 
     summary memorandum (December 23, 1988); (3) summary 
     memorandum (undated [January 6, 1989]); (4) summary 
     memorandum (January 13, 1989); (5) summary memorandum 
     (undated [January 25, 1989]); (6) summary memorandum 
     (February 8, 1989); and (7) summary of the ongoing 
     investigation not yet completed by the FBI.) Since these 
     documents are the property of the Executive branch and 
     involve extremely sensitive information, they will be made 
     available only through the Office of Senate Security located 
     at Room S-407, United States Capitol. Only Senators on the 
     SASC and not more than 6 designated SASC staff members (as 
     determined and designated by the Chairman, SASC, and the 
     Ranking Minority Member) and designated members of the 
     Executive branch shall be granted access to these documents 
     at this location. The names of the designated staff members 
     shall be provided, in writing, to the Counsel to the 
     President prior to their being given access to the documents; 
     and the names of the Executive branch officials shall be 
     provided, in writing, to the Chairman, SASC, prior to their 
     access at this location. A record of all persons using these 
     documents in Room S-407 shall be maintained.
       Access to these documents will be limited to Senators on 
     the SASC and the 6 designated SASC staff members. These 
     documents may be reviewed in Room S-407 only; no additional 
     copies may be made; and no documents may be removed. Any 
     notes derived from these documents shall be treated as 
     sensitive and shall be used only in connection with the 
     Committee's Executive Session deliberations (and vote). At 
     the conclusion of the Committee's deliberations (and vote), 
     any notes shall be destroyed or considered part of the FBI 
     documents for purposes of this Agreement.
       Within 14 days of the conclusion of the Committee's 
     deliberations (and vote) on Senator Tower's nomination, these 
     documents will be returned to the Counsel to the President 
     unless another agreement has been reached with the Senate 
     leadership.
     Sam Nunn,
       Chairman, Senate Armed Services Committee.
     John Warner,
       Ranking Minority Member.
     C. Boyden Gray,
       Counsel to the President.
                                  ____



                                              The White House,

                                Washington, DC, February 14, 1989.
     Hon. Sam Nunn,
     Chairman, Committee on Armed Services, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: With respect to our conversation last 
     Friday regarding access by the Senate Armed Services 
     Committee to the Federal Bureau of Investigation's (FBI) 
     summary of its background investigation of Senator Tower in 
     connection with his nomination as Secretary of Defense, I am 
     gratified that we have now reached an understanding on the 
     way in which we will proceed.
       I believe the fact that all of the Committee's subsequent 
     deliberations involving the FBI summary on Senator Tower's 
     nomination will occur during Executive Session only, that 
     this nomination has significant national security 
     implications, and the unique nature of the allegations 
     concerning Senator Tower warrant a one-time-only exception to 
     the procedures governing access to FBI background 
     investigations by Committee members.
       The documents we will provide are extremely sensitive. 
     Their disclosure could jeopardize the privacy interests of 
     Senator Tower and others, the confidentiality of FBI sources, 
     the FBI's ability to conduct background investigations, and 
     our ability to recruit qualified candidates for positions of 
     governmental service. Therefore, I am pleased that we have 
     agreed on ground rules for Committee access that suit our 
     purposes and yours. The enclosed Terms of Access sets forth 
     the procedures for access, custody, storage, and return to 
     the Executive branch of the FBI background summary. With this 
     understanding, we are prepared to deliver copies of these 
     documents to your Committee immediately.
       I believe that this understanding will make it possible for 
     the Committee to proceed expeditiously on this nomination 
     once the FBI has completed its investigation.
           Sincerely,
                                                   C. Boyden Gray,
                                         Counsel to the President.

  Mr. LEVIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________