[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.
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*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.
____________________