[Congressional Record Volume 143, Number 28 (Thursday, March 6, 1997)]
[Senate]
[Pages S2008-S2010]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  FBI MANAGEMENT FAILURES--PART THREE

  Mr. GRASSLEY. Mr. President, troubling facts continue to surface in 
the FBI crime lab issue. These facts are putting flesh on the bones of 
allegations that much of the lab's analysis is sloppy, not credible, 
fabricated, or all of the above.
  The FBI has charged that these allegations are unfounded, and that 
they are the musings of one Dr. Frederic Whitehurst. Dr. Whitehurst has 
come forward as a whistleblower with serious charges against the lab 
and its management. The FBI chose to shoot the messenger instead of 
taking Dr. Whitehurst seriously.
  After a year of studying Dr. Whitehurst's claims and his information, 
I was not so sure the FBI took the wise course. Then, after a private 
briefing by the Justice Department's inspector general on his 
investigation into these matters, I was even more convinced that the 
FBI has taken the wrong course. And now that the FBI has taken 
personnel action against Dr. Whitehurst in retaliation for his telling 
the truth, I am convinced that the Bureau is dead wrong.
  The FBI's defense--some would say coverup--is slowly unraveling. Last 
week, we discovered that it wasn't just Dr. Whitehurst that has raised 
serious concerns. Another respected scientist, Dr. William Tobin, had 
raised equally serious allegations in 1989. He alleged that an FBI 
agent tampered with evidence and made a series of false statements 
while testifying in court proceedings against then-Judge Alcee L.

[[Page S2009]]

Hastings. I discussed this before this body on February 26, Mr. 
President.
  The FBI covered up this matter. There may be a missing document. Last 
week, at my request, the Attorney General ordered that the FBI not be 
involved in the investigation. The investigation has been given instead 
to the IG. This is because there are major questions about the FBI's 
ability to police itself. The Attorney General gets much credit for 
recognizing the potential conflict involved when the FBI investigates 
these issues.
  In the past 2 weeks, two additional cases--in addition to the Alcee 
Hastings case--appear to reveal similar improper behavior by FBI agents 
testifying in Federal cases. If it sounds to you like a pattern is 
developing, Mr. President, you have been paying close attention. Up to 
now, the FBI's denials had been set in concrete. What you are hearing 
now is the sound of concrete cracking.
  Thus far, the IG has had remarkable success keeping the draft report 
under wraps. But a few press stories about its contents have been 
popping out. Last week, the Miami Herald ran a story about a Florida 
case reviewed by the IG. In that 1988 case, George Trepal was convicted 
of murdering his neighbor by poisoning her soft drink. Mr. Trepal was 
sentenced to death, and is still on death row.
  But as the Herald reports, the testimony of evidence linking Mr. 
Trepal to this murder may have been tainted by an FBI lab supervisor. 
The supervisor may not have had adequate scientific support to identify 
the poison as he did. If the Herald is correct, this is another example 
of the problems found in the Hastings case.
  And now there's a third case, Mr. President. The Associated Press 
reported yesterday that the IG found similar problems in the VANPAC 
case. That is the case involving the 1991 conviction of Walter Leroy 
Moody for the murder of U.S. Circuit Judge Robert Vance and Georgia 
civil rights attorney Robert Robinson. It was Justice Department 
attorney Louis J. Freeh who prosecuted the case.
  Before I get into the specifics of the FBI's wrongdoing apparently 
uncovered by the IG in this case, let me provide some context.
  More than a year before the bombing tragedy in Oklahoma City, 
Director Freeh and his general counsel, Howard Shapiro, had been fully 
briefed about Dr. Whitehurst's allegations of misconduct within the 
lab. They were aware of Whitehurst's charges of a systemic quality 
control breakdown in the lab.
  On February 7, 1994, Whitehurst's attorney wrote to Mr. Shapiro 
informing him of the sensitive nature of the allegations, and how a 
thousand cases could be affected. Whitehurst asked that a special, 
independent, or outside counsel review the matters.
  But the FBI chose another course. It did not empanel an independent 
review. Instead, the matter was assigned to two attorneys within the 
Office of the general counsel. They reported directly to Mr. Shapiro 
and Mr. Freeh.
  No scientist was placed in the decisionmaking chain of command. Mr. 
Freeh, in conjunction with his attorneys, decided they could perform a 
diligent and thorough internal investigation. Mr. Shapiro's exact words 
in his February 14 reply--and remember these words, Mr. President, 
because I intend to refer to them liberally in the future--his exact 
words were, ``The FBI has a long and proud history of performing 
diligent and thorough internal investigations.''
  What is amazing to me is that neither Mr. Freeh nor Mr. Shapiro 
recused himself from the decisionmaking role with respect to the 
review. After all, they had prosecuted one of the cases--the VANPAC 
case--in which Dr. Whitehurst alleged misconduct had occurred.
  In other words, nonscientists with a conflict of interest assumed the 
authority to review significant allegations of scientific and 
evidentiary misconduct that could affect hundreds, if not thousands of 
cases.
  I have now obtained a redacted copy of the results of that review, 
headed by Mr. Freeh and Mr. Shapiro. The findings and recommendations 
were approved by both.
  The first thing they did was fire at the messenger. On the very first 
page, the FBI notes that Dr. Whitehurst could be disciplined for 
providing information about the lab's misconduct to Congress.
  You see, Mr. President, providing information to Congress--and I'm 
quoting the FBI--``violates FBI and DOJ regulations.'' Were you aware, 
Mr. President, that FBI and DOJ regulations override the first 
amendment guarantee of the people's right to petition Congress? If I 
could anticipate your response, Mr. President, neither was I.
  The second issue: During this 1994 review, Mr. Freeh and Mr. Shapiro 
learned that the lab ``would not meet minimal accreditation 
standards.'' The report notes that it was ``incredulous that the 
premiere forensic laboratory in the world'' was ``not accredited.''
  Instead of asking how the failure to reach minimal accreditation 
standards had impacted on past cases, or might impact on future cases, 
the FBI took a different course. The FBI concluded, ``no further 
investigation or action'' was needed.
  In other words, rather than evaluating the potentially serious 
ramifications of the FBI's failure to meet minimal accreditation 
standards, the Bureau circled the wagons and whitewashed the problem. 
They set up a committee to come up with a timetable for accreditation. 
That was 3 years ago. Now, the Bureau tells us they'll be accredited in 
18 months from now. And if you believe that, Mr. President--
  This brings me back to the VANPAC matter. As I mentioned, Mr. Freeh 
had been the lead prosecutor on that case. He got national recognition. 
Mr. Shapiro was his cocounsel. Larry Potts--of Ruby Ridge infamy--was 
the FBI's case agent.
  Dr. Whitehurst had alleged that there were problems with the evidence 
in the VANPAC case. Despite the clear conflict, Mr. Freeh and Mr. 
Shapiro did not recuse themselves. They recused themselves about a year 
and a half later--in September 1995. But at this point in time--
February 1994--they kept themselves at the top of the investigation 
into misconduct in that case.
  Instead of using real scientists to independently review the 
evidence--as the IG did, by the way--Mr. Freeh and Mr. Shapiro used 
their own subordinates. And what was their conclusion after reviewing 
the VANPAC allegations, Mr. President? ``Whitehurst's allegations are 
not supported by any facts.'' That's what it says in their report.
  Now we have a new account--by the Associated Press--that gives us an 
insight into what the IG found in VANPAC. And it seems to conflict with 
the FBI's interpretation. Remember, the IG followed up on Dr. 
Whitehurst's suggestion, and did an independent review. And, the IG 
went out and recruited five of the world's most renowned lab scientists 
for his investigation. In other words, the IG did a proper review.
  According to the AP, the IG report states that ``a lab witness 
overstated test results during the trial.'' And that's not all. Let me 
quote further from the AP story: ``In addition to overstated testimony 
in VANPAC, the report found the lab lacked databases to support its 
conclusions, used unvalidated tests, lacked written test procedures, 
inadequately documented why it discounted test results that undercut 
its conclusions and lacked any record for some tests.''
  Now, this is interesting if true, Mr. President. Because less than 2 
months ago, on January 23, Mr. Freeh told his deputy, Weldon Kennedy, 
``Based upon the VANPAC allegations investigated by the Office of the 
Inspector General [OIG], and despite their findings that none of the 
allegations regarding VANPAC are substantiated, I have decided to 
recuse myself from any of the Whitehurst-related disciplinary or 
administrative matters contained in the OIG report regarding the FBI 
laboratory.''
  Mr. President, I'm not sure whose version is correct--Director 
Freeh's or the AP's. But if this AP story is correct, this is the 
second time Mr. Freeh has been misleading on what's in the IG report. 
On February 26 I pointed out on this floor Mr. Freeh's other 
discrepancy. He said he had been unaware of the Tobin memo: Remember, 
he's the other scientist I referred to earlier who lodged complaints. I 
questioned how he could possibly say that when the IG report containing 
the Tobin allegations had been on his desk for a full month.

[[Page S2010]]

  In sum, Mr. President, we're beginning to see some patterns that back 
up Dr. Whitehurst, and contradict Mr. Freeh and the FBI. First, other 
scientists have surfaced with allegations--not just Dr. Whitehurst. 
Second, it appears that three cases reviewed by the IG found misconduct 
and/or sloppiness.
  When I was growing up back on the farm in Iowa, we had a saying. If 
you reach into a barrel of apples for the first time and pull out a bad 
one, the chances are pretty good there's more bad apples in there. 
Maybe a barrel-full of bad apples.
  So far, based on press reports, that's three bad apples--three out of 
three. Those are pretty high odds.
  What's to be done? Director Freeh made a big splash yesterday 
announcing a new way to handle internal reviews of alleged criminal 
behavior and misconduct. He will increase the number of people working 
on such reviews from 30 to 60.
  The Director doesn't seem to get it, Mr. President. The issue is that 
the FBI can't police itself. Doubling the number of self-policers won't 
change the bottom line. Zero times two is still zero.
  I'm beginning to think those 60 slots are a lot better off--from the 
taxpayers' point of view--being moved to the IG instead. And I intend 
to discuss this with my colleagues on the Judiciary Committee.
  The FBI does not have a long and proud history of self-policing 
notwithstanding what Mr. Shapiro leads us to believe. Look at Ruby 
Ridge. That case certainly doesn't inspire confidence in the FBI's 
ability to self-examine.
  Mr. President, I believe the American people are being mislead by the 
FBI on the problems we're seeing in its crime lab. And all that does is 
continue the erosion of confidence the people have in the FBI.
  It's time the Bureau stopped its narcissistic infatuation with its 
own image. It's time to stop selling an inferior product with false 
advertising. The American people deserve from its chief law enforcement 
agency a product with integrity. They deserve an FBI that does what it 
would have you believe it does. This is an issue of leadership. Quite 
frankly, I am beginning to join the ranks of those whose confidence in 
the Bureau's leadership is diminishing.
  Mr. President, I yield the floor. I do not see any other Members 
ready to speak, so I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Enzi). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. GRAHAM. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator is recognized for up to 15 minutes.

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