[Congressional Record Volume 143, Number 34 (Monday, March 17, 1997)]
[Senate]
[Pages S2350-S2354]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FBI MISMANAGEMENT--PART 4
ig asks fbi director to correct record
Mr. GRASSLEY. Mr. President, I rise today to continue my observations
about major problems in the FBI's crime lab, and about the Bureau's
failed leadership. This is my fourth such statement.
My colleagues are no doubt curious about the harshness of my
criticisms of the Bureau's leadership. But my critique directly matches
the level of the Bureau's misleading of the public.
I have not been unfair or unmeasured in my comments. I dare say, I
have been softer on the FBI than others in Congress. Yet the ranks of
those of us who are perturbed are growing swiftly.
I have raised these issues for two reasons: First, to use the Justice
Department's and FBI's own documents to show where the Bureau is
misleading the public; and second, to contribute an understanding of
why it is happening.
I will briefly remind my colleagues of what I already revealed before
this body. Many of the allegations of the lab's whistleblower--Dr.
Frederic Whitehurst--are being substantiated. FBI documents are showing
that. In previous statements, I have referenced three problem cases,
examined by the Justice Department's Inspector General, that were
uncovered by the press. The three cases are those of Alcee L. Hastings,
George Trepal, and Walter Leroy Moody. The conduct of specific FBI
agents in each of these cases is in question.
Second, the FBI tried to explain Dr. Whitehurst away by questioning
his credibility, and saying no one else backs up his allegations. But
now we know that is false. At least two other scientists have backed
him up. One has been made public. The other is fixing to.
Third, we now know that the FBI investigated these same allegations,
knew about the problems, and covered them up. They did not fix them.
They covered them up. The IG, then, took an independent look and
flushed out the problems. The Bureau is now doing a mad scramble to
control the damage. At the heart of its damage control operation is an
effort to mislead. And that effort comes right from the top of the FBI.
Right from the Director himself--Louis Freeh.
But their scheme is unraveling, Mr. President. I rise today, to
assist in the unraveling process. The public has a right to know what
the FBI is covering up. And I am here to help them know.
The latest case of misleading by the FBI involves the public
testimony of Mr. Freeh approximately 2 weeks ago. On March 5, Mr. Freeh
testified before the House Appropriations Subcommittee on Commerce,
Justice, State. The chairman is Representative Harold Rogers of
Kentucky.
During the hearing, Mr. Freeh was asked why the FBI placed Dr.
Whitehurst on administrative leave. In response, Mr. Freeh stated:
[T]he action that was taken against Mr. Whitehurst was
taken solely and directly on the basis of the recommendation
by the Inspector General and their findings with respect to
Mr. Whitehurst....
Mr. Freeh also said the IG, Mr. Michael Bromwich, was notified about
the action and had not objected. Mr. Freeh concludes by saying:
The only reason that action was taken was because of what
the Inspector General wrote and recommended to the FBI.
When the IG found out what Director Freeh had stated, he fired off a
letter the very next day. He demanded that Mr. Freeh correct the record
in three specific areas.
First, the FBI has consistently maintained that it was not just the
IG report that factored into action against Dr. Whitehurst. I know
this, Mr. President, because the Deputy Director, Weldon Kennedy, told
me the same thing. The other reason involves the FBI's belief that Dr.
Whitehurst would not answer questions in an administrative inquiry. It
seems the FBI Director is using the IG report to hide behind. In my
view, he wants the public to think he was forced by the IG to take
action against a whistleblower.
Second, the IG says it is inaccurate for Mr. Freeh to say the IG did
not object to action against Dr. Whitehurst. In fact, the IG spent over
a year objecting to such treatment of Dr. Whitehurst. I had not known
this before, Mr. President. According to the IG, representatives of the
FBI had an active campaign--for more than a year--to take action
against the whistleblower. The IG spells this out in detail in his
letter.
That sounds suspiciously like retaliation against a whistleblower.
And as you know, Congress has passed statutes prohibiting retaliation
against whitleblowers. But it would certainly explain why the FBI is
over-reacting to the IG's report, with respect to Dr. Whitehurst. I
suspect that the IG would have had nothing but praise for Dr.
Whitehurst, and the Bureau's response would still be, ``See? The IG
recommends that we fire Whitehurst!''
I met on January 28 with then-Deputy Director Kennedy. I asked him
what it was in the IG report that he thought gave the FBI grounds to
take action against Dr. Whitehurst. I am bound to maintain the
confidence of what is contained in the report that Mr. Kennedy cited.
But let me assure you, Mr. President. When you see the report, you will
be scratching your head in bewilderment. I was.
Third, the IG says no such recommendation pertaining to Dr.
Whitehurst is in his report.
These were the three specific points about which the IG took issue
with Mr. Freeh. If I could offer a translation, I will bet Mr. Bromwich
thought Mr. Freeh misled the subcommittee. If Mr. Bromwich indeed
reached that conclusion, the facts would be on his side.
The IG's request that Mr. Freeh correct the record was responded to
on March 11. In letters to both Mr. Bromwich and Mr. Rogers, Mr. Freeh
appears to do what some of his agents have been accused of doing in a
court room--cutting corners to get a conviction.
I ask unanimous consent that those three letters be printed in the
Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
U.S. Department of Justice,
Office of the Inspector General,
Washington, DC, March 6, 1997.
Hon. Louis J. Freeh,
Director, Federal Bureau of Investigation, U.S. Department of
Justice, Washington, DC.
Dear Director Freeh: I am writing to urge you to correct
testimony you gave during your appearance yesterday before
the House Subcommittee on Appropriations. I have reviewed the
videotape of your testimony and believe that your response to
a question regarding Dr. Whitehurst is incorrect in three
respects.
Your testimony was as follows:
Q. (By Chairman Rogers) Now why was Mr. Whitehurst
suspended?
A. What I can say in the open session, sir, is that the
action that was taken against Mr. Whitehurst was taken solely
and directly on the basis of the recommendation by the
Inspector General and their findings with respect to Mr.
Whitehurst, which they furnished us in writing. We notified
the Inspector General and the Deputy Attorney General's
office that we were going to take administrative action. They
did not object to it. The only reason that action was taken
was because of what the Inspector General wrote and
recommended to the FBI. And when that is public, I think you
will be satisfied.
First, we have consistently been informed that the FBI did
not take administrative action against Dr. Whitehurst
``solely and directly on the basis of the recommendation by
the Inspector General and their findings with respect to Mr.
Whitehurst,'' as you testified. Rather, Deputy Counsel James
Maddock has informed us (and others) on several occasions
that the FBI's action was also taken because of Dr.
Whitehurst's refusal--after being administratively
compelled--to testify in 1996 in the matter regarding leaks
of information about the laboratory. Indeed, that dual
rationale was contained in the memo from Weldon Kennedy to
the Deputy Attorney General, a copy of which was sent to
me, on January 24, 1997, notifying her of the FBI's
intention to place Whitehurst on administrative leave that
afternoon.
[[Page S2351]]
Second, it was inaccurate to say that I ``did not object''
when the FBI notified my office that it intended to place Dr.
Whitehurst on administrative leave. In fact, at a meeting
held on January 21, I expressed my opposition when Mr.
Maddock informed us that the FBI intended to take such action
against Dr. Whitehurst. This was consistent with the position
that I had taken over the course of more than a year when FBI
representatives had repeatedly proposed firing Whitehurst or
placing him on some sort of administrative leave. Although it
is correct that I did not specifically respond to Mr.
Kennedy's January 24 memorandum informing the Deputy Attorney
General of the FBI's decision to place Dr. Whitehurst on
leave that same afternoon--or formally reiterate my objection
to taking any action against Dr. Whitehurst--it was because I
had already made my views known rather than because I agreed
with the FBI's proposed action.
Third, your testimony implies that we specifically
recommended that Dr. Whitehurst be placed on administrative
leave based on the draft report. The draft report in fact
contains no such recommendation, nor can it be fairly
construed to imply that such action should be taken while the
draft was being reviewed.
Because I believe the inaccuracies in your testimony should
be corrected as promptly as possible, I urge you to write to
Chairman Rogers and Congressman Mollohan to correct the
record. Should sharing this letter with the Appropriations
Subcommittee assist in correcting the record, please feel
free to include it with your correction.
Very truly yours,
Michael R. Bromwich,
Inspector General.
____
U.S. Department of Justice
Federal Bureau of Investigation,
Washington, DC, March 11, 1997.
Mr. Michael R. Bromwich,
Inspector General, U.S. Department of Justice, Washington,
DC.
Dear Mr. Bromwich: In your letter of March 6, 1997, you
state that it is your understanding that the FBI did not
place Frederic Whitehurst on administrative leave solely on
the basis of the recommendations set forth in your draft
report. Your understanding is correct and I am writing to
clarify my prior statement in that regard.
In a memorandum to Deputy Director Kennedy dated January
23, 1997, I recused myself from any Whitehurst-related
disciplinary or administrative matters contained in the OIG
report regarding the FBI Laboratory. Instead, I designated
the Deputy Director to make or review all such decisions. It
is my understanding that Deputy Director Kennedy based the
decision to place Mr. Whitehurst on administrative leave on
the following two grounds: (1) the FBI's receipt of notice in
your draft findings that you intend to recommend that the FBI
consider whether Mr. Whitehurst can continue to usefully
serve the FBI in any capacity; and, (2) Mr. Whitehurst's
refusal to answer questions, in direct contravention of an
order to cooperate by an FBI Acting Assistant Director, with
regard to an investigation into allegations that Mr.
Whitehurst, without authorization, disclosed official
information to the media.
We maintain that either of these grounds, standing alone,
suffices to justify the temporary personnel action with
respect to Mr. Whitehurst. However, as you know, the
Department of Justice advised against taking any action
concerning Mr. Whitehurst's refusal to cooperate with the
leak investigation until you issued your draft report on the
Laboratory investigation. Therefore, upon review of your
draft findings with respect to Mr. Whitehurst, we notified
your office that the FBI would be placing Mr. Whitehurst on
administrative leave. As we advised Mr. Whitehurst in a
letter dated January 24, 1997, this action did not constitute
an adverse action, did not indicate inappropriate conduct on
his part, and did not involve any loss of pay. However,
because your draft findings put the FBI on notice of
potentially serious problems with respect to Mr.
Whitehurst and other Laboratory employees, the FBI would
have been remiss had it failed to take temporary actions
with respect to these individuals.
We received your draft report on the FBI Laboratory on
January 21, 1997. On January 24, 1997, after reviewing your
findings and recommendations, the FBI temporarily reassigned
two Laboratory employees to positions outside the Laboratory,
temporarily reassigned one employee within the Laboratory,
and placed one employee, Mr. Whitehurst, on administrative
leave with pay. You indicate in your letter that, at a
meeting on January 21, 1997, you expressed opposition to the
decision to place Mr. Whitehurst on administrative leave. I
understand this topic was only briefly addressed and that the
discussion moved on to other topics, which may account for
why both Mr. Maddock and Mr. Collingwood do not recall your
comments on this issue. Furthermore, as you concede in your
letter, you did not respond to the Deputy Director's
memorandum dated January 24, 1997, in which he informed the
Deputy Attorney General that Mr. Whitehurst would be placed
on administrative leave that afternoon.
Finally, you are correct that the draft report does not
specifically recommend that Mr. Whitehurst be placed on
administrative leave. I did not intend to imply that to the
Subcommittee. However, it is significant that, after a 17-
month investigation of the Laboratory, Mr. Whitehurst is the
only FBI employee whose suitability for continued employment
you question. Your findings also make clear that the majority
of Mr. Whitehurst's allegations are unfounded and that he is
often unable to distinguish fact from conjecture. I believe
that the Subcommittee would have considered your draft
findings with regard to Mr. Whitehurst helpful in balancing
your testimony before them on February 26, 1997, that ``[w]e
have found substantial problems based on the allegations that
Dr. Whitehurst made to us.''
In order to clarify the entire record, I recommend that we
provide the Subcommittee Chairman and Ranking Minority Member
with your draft findings concerning Mr. Whitehurst in
executive session and request that the findings be treated
confidentially. I believe a fair reading of these findings
supports Deputy Director Kennedy's decision to place Mr.
Whitehurst on administrative leave with pay pending the
finalization of your report on the FBI Laboratory and our
review of that report to the extent it concerns Mr.
Whitehurst's employment.
I appreciate your having provided me with an opportunity to
address your concerns.
Sincerely,
Louis J. Freeh,
Director.
____
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, DC, March 11, 1997.
Hon. Harold Rogers,
U.S. House of Representatives, Chairman, Subcommittee on
Commerce, Justice, State, and Judiciary of the Committee
on Appropriations, Washington, DC.
Dear Mr. Chairman: Enclosed please find a letter to me from
Michael R. Bromwich, Inspector General, Department of
Justice, dated March 6, 1997, as well as my response to that
letter.
As indicated by Mr. Bromwich, my testimony before the
Subcommittee on March 5, 1997 was incomplete with regard to
the decision to place Frederic Whitehurst on administrative
leave. Although I recused myself from any Whitehurst-related
disciplinary or administrative matters, I understand from
former Deputy Director Kennedy that he based the decision to
place Mr. Whitehurst on administrative leave on two grounds:
(1) the FBI's receipt of notice in Mr. Bromwich's draft
findings that he intends to recommend that the FBI consider
whether Mr. Whitehurst can continue to usefully serve the FBI
in any capacity; and, (2) Mr. Whitehurst's refusal to answer
questions, in direct contravention of an order to cooperate
by an FBI Acting Assistant Director, with regard to an
investigation into allegations that Mr. Whitehurst, without
authorization, disclosed official information to the media.
In response to Subcommittee questioning, I failed to include
the second basis for Deputy Director Kennedy's decision. I
have submitted an amendment to the record in this regard.
In light of the Subcommittee's concerns regarding the
decision to place Mr. Whitehurst on administrative leave, I
believe that Mr. Bromwich's draft findings with respect to
Mr. Whitehurst should be provided to you in full. As you can
see from the enclosed correspondence, I have urged Mr.
Bromwich to share his draft findings with you in executive
session in order to clarify the record and explain one of the
underlying bases for the FBI's temporary action with regard
to Mr. Whitehurst. Mr. Bromwich objects to providing you with
these draft findings and has directed that I not quote from
them in testimony or correspondence with the Subcommittees.
I appreciate the opportunity to clarify my prior testimony
and look forward to providing you and the Subcommittee
members a thorough briefing following the release of Mr.
Bromwich's final report on the FBI Laboratory.
Sincerely,
Louis J. Freeh,
Director.
Mr. GRASSLEY. Mr. President, to begin with, Mr. Freeh, in his letter
to the IG--just as Mr. Kennedy did with me--believes that he can
interpret the IG's report better than the IG can. He is saying to the
IG, in effect, ``I don't care what you meant to say about Dr.
Whitehurst. I care about what you said.'' He then plays a game of
semantics and interprets the IG report as he wishes, not as the IG
intended.
Then, elsewhere in the letters, Mr. Freeh takes a few pot shots at
Dr. Whitehurst and at the IG. I understand why he would take pot shots
at the IG. After all, the IG did an independent investigation of the
crime lab. He apparently, according to news accounts, found credibility
in many of Dr. Whitehurst's allegations. And that contradicts the FBI's
own findings, which were nothing more than a whitewash of the exact
same allegations. And the whitewash was done under this current
director, Director Freeh. And Director Freeh personally signed off on
the review. So, yes, I understand what would motivate the FBI Director
to go after the IG.
But it is less clear why Mr. Freeh, before a subcommittee of Congress
and later under his own signature, would go after Dr. Whitehurst. Why
would the
[[Page S2352]]
FBI Director involve himself, by misleading the public and the
subcommittee, in an attack on Dr. Whitehurst? After all, Mr. Freeh
recused himself from matters dealing with Dr. Whitehurst. Last week, I
released the document showing the recusal.
What kind of recusal is this? Is this part of a Kafka novel? Now,
everyone in the entire Justice Department, including the FBI, knows how
the FBI Director feels about Dr. Whitehurst. When decision-time comes
to fire or retain Dr. Whitehurst, everyone has the message, directly
from the FBI Director, regarding what he thinks about Dr. Whitehurst.
Finally, Mr. President, since I am on the subject of misleading. On
March 5, the same day Mr. Freeh misled the Nation and the subcommittee
on the IG report, he misled the public in another way. He announced in
a press release the enhancement of a more independent Office of
Professional Responsibility, or OPR. The new head of OPR would report
directly to Mr. Freeh and his deputy.
But how can it be independent? It reports directly to Mr. Freeh and
his deputy. Am I again reading one of Kafka's novels? Think of how
reassuring the new, independent OPR is for Dr. Whitehurst, given what
the Director said about him this past week.
The one truism that I have uncovered in all this, Mr. President, is
this: The FBI has shown, beyond a shadow of a doubt, that it cannot
police itself. This institution--the U.S. Congress--has bent over
backward over the years to give the FBI what it says it needs. We have
done it in good faith. We have done it without performing the necessary
oversight. We put too much trust in the FBI. The FBI has squandered our
trust.
In the coming weeks and months, I will attempt to show that, at the
expense of fighting crime effectively, the FBI has engaged in a
colossal campaign to build its empire. They have done it right under
the noses of our oversight committees, the Judiciary Committees--of
which I have been a member since I came to the Senate.
What the FBI needs is a good dose of oversight. They need to be
reined in. There needs to be more independent oversight of their
management. There needs to be more accountability of their budget,
which has grown too large too quickly.
The FBI's leadership has come under fire because of its response to
problems that have surfaced. It has chosen to mislead rather than
acknowledge. That tells me, the Bureau is more worried about its image
than its product.
Until the FBI acknowledges it cannot police itself, and works with
Congress to establish more and better oversight, the FBI's leaders will
keep taking heavy criticism from Capitol Hill.
Mr. President, I ask unanimous consent to have printed in the Record
a copy of a letter from Dr. Whitehurst's attorneys to Director Freeh,
dated today, taking the Director to task for his testimony and
correspondence. I believe this letter will provide the necessary
context for the public to judge whether Mr. Freeh's pot shots were
fair.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Kohn, Kohn & Colapinto, P.C.,
Attorneys at Law,
Washington, DC, March 17, 1997.
Hon. Louis J. Freeh,
Director, Federal Bureau of Investigation, U.S. Department of
Justice, Washington, DC.
Dear Director Freeh: We have read with great interest your
letters dated March 11, 1997 sent to Mr. Michael R. Bromwich,
the Inspector General (``IG'') of the U.S. Department of
Justice (``DOJ'') and the Honorable Harold Rogers, Chairman,
U.S. House of Representatives Subcommittee on Commerce,
Justice, State, and Judiciary of the Committee on
Appropriations, respectively. These two letters directly
concern our client, Dr. Frederic Whitehurst, Supervisory
Special Agent, Federal Bureau of Investigation (``FBI''), and
relate to testimony you provided to the Subcommittee on March
5, 1997.
As a threshold matter, we understood that you had recused
yourself from involvement with any administrative action
concerning Dr. Whitehurst's employment with the FBI or his
whistleblower allegations that have been investigated as part
of the DOJ IG ``Whitehurst Review.'' Nonetheless, by
publishing your opinions concerning Dr. Whitehurst to a wide
national audience, by providing testimony about his
employment status and by requesting an executive session with
a committee of the U.S. Congress to discuss matters related
to Dr. Whitehurst, you clearly have not recused yourself from
these matters. Furthermore, we were informed by a member of
the news media prior to your testimony that you intended to
answer questions concerning the actions the FBI took
regarding Dr. Whitehurst. Thus, your comments about Dr.
Whitehurst do not appear to have been spontaneous or
accidental.
By widely publishing your very negative opinions about Dr.
Whitehurst you have called into question the effectiveness of
any purported ``recusal'' in matters related to the FBI crime
lab or Dr. Whitehurst's employment.
In your letter to Mr. Bromwich you have deliberately
distorted and published selected ``draft'' findings of the
Inspector General in a manner clearly intended to discredit
Dr. Whitehurst. You have alleged that the IG has concluded
that ``the majority of Mr. Whitehurst's allegations are
unfounded and that he is often unable to distinguished
fact from conjecture.''
We highly doubt that the IG reached such conclusions or
whether such conclusions will be contained in any final
report issued by that office. Our review of more than 10,000
pages of documents released by the FBI pursuant to a court
order and other publicly available materials related to the
IG report, demonstrate that the vast majority of Dr.
Whitehurst's major allegations have been fully substantiated.
These include, but are not limited to, the allegation about
misconduct in the Judge Hastings matter, major problems in
the handling of evidence in the Oklahoma City Bombing matter,
major problems in the FBI lab work and testimony in the World
Trade Center Bombing matter, confirmation that Dr.
Whitehurst's reports have been illegally altered and that
illegally altered lab documents have been used as evidence in
courts of law, confirmation that in a case you prosecuted the
FBI Crime Lab did not follow proper protocols or properly
evaluate the evidence, the withholding of exculpatory
evidence in the case of the bombing of an airliner,
confirmation that the contamination of the FBI Lab with the
explosive residue PETN was not properly addressed,
confirmation that your subordinates took adverse action
against Dr. Whitehurst based on his lawful testimony in the
World Trade Center case and his lawful actions of filing
allegations of misconduct with the Department of Justice and
confirmation that you were fully aware that the FBI crime lab
could not meet the minimum standards of accreditation one
year before the Oklahoma City Bombing tragedy occurred.
In regard to your statement that Dr. Whitehurst could not
``distinguish fact from conjecture,'' the fact that many of
his most important allegations have been fully validated
belies this point.\1\
---------------------------------------------------------------------------
\1\ As I am sure you are aware, Mr. James Maddock, FBI Deputy
General Counsel, and the individual appointed to serve as the
FBI's ``point man'' concerning matters related to Dr.
Whitehurst, personally informed us on several occasions in
late 1996 that the FBI knew the IG had validated many of Dr.
Whitehurst's allegations and that the FBI either had or would
take corrective action. Mr. Maddock's statements are at odds
with your characterization of the IG's findings.
---------------------------------------------------------------------------
We are very distressed at your apparent ignorance of the
controlling FBI regulations and Executive Orders which govern
Dr. Whitehurst's whistleblowing activities. As you should be
well aware, in order to encourage employee whistleblowing,
these regulations actually provide for and require the
reporting of ``conjecture.''
We had assumed you were fully aware of Executive Order
12731 signed by President George Bush on October 17, 1990.
This Executive Order, along with the published
``supplementary Information'' interpreting this Order, were
directly provided to every employee of the U.S. Department of
Justice, including Dr. Frederic Whitehurst. In being provided
a copy of this packet of information Dr. Whitehurst was
informed that ``These standards apply to all Department of
Justice employees. Please read and retain them for future
reference.'' Exhibit 1, U.S. Department of Justice, ``This
Package Contains Important Ethics Materials, The Executive
Order On Conduct and the Standards of Conduct'' (undated),
attached hereto. As a loyal and dedicated public servant and
federal law enforcement officer, Dr. Whitehurst read this
packet of information. The Executive Order contained in the
packet states as follows: ``Employees shall disclose waste,
fraud, abuse, and corruption to appropriate authorities.''
Ex. 1, quoting from Executive Order 12731, Part I Section
101(k) (emphasis added).
As you can see, under this Executive Order, Dr. Whitehurst
was under a mandatory duty to report certain allegations to
the ``appropriate authorities.'' Pursuant to this obligation
he in fact informed you and others within the FBI of very
serious problems in the FBI crime lab. After the FBI failed
to take action on these allegations Dr. Whitehurst fully
informed the Inspector General of these allegations.
In regard to your purported concern over ``conjecture,''
the DOJ packet also contained the explanatory notes
concerning Executive Order 12731, Part I Section 101(k) which
were written by the Office of Government Ethics (``OGE'') and
included as part of the final rule making governing the
Executive Order. These comments make explicit what is
implicit in the Executive Order, i.e., that federal employees
had a duty to ``overreport'' indications of misconduct and
that the appropriate authorities would determine whether
allegations were ``spurious.'' The OGE explained this
reasoning as follows:
[[Page S2353]]
``Five agencies suggested changes to Sec. 2635.101(b)(11)
[the OGE Code of Federal Regulations provision which
incorporated the requirements of Executive Order 12731, Part
I Section 101(k)], the principle requiring disclosure of
fraud, waste, abuse and corruption. The recommendation by two
agencies to change ``shall'' to ``should'' was not adopted.
Section 2635.101(b)(11) is a verbatim restatement of the
principle enunciated in the Executive order and the
recommended substitution of precatory for mandatory
language would change the principle. The Office of
Government Ethics does not share those agencies' concern
that the principle will elicit frivolous reporting. The
Government's interest in curbing waste, fraud, abuse and
corruption is better served by overreporting than by
underreporting, and the authorities to whom such
disclosure are to be made can best determine the merits of
allegations and ensure that harm does not result from any
that are spurious.''
Exhibit 1, quoting from Federal Register p. 35007 (emphasis
added).
In addition, the OGE warned that agencies could not require
employees to apply ``complex legal principles'' when
determining whether to report potential ``improprieties.''
Id. Thus Dr. Whitehurst, who read these regulations prior to
filing any allegations with the Office of Inspector General,
or the FBI for that matter, acted pursuant to mandatory
authority when he reported potential violations of complex
legal matters such as improper withholding of Brady
information by the FBI and DOJ, potential perjury, the use of
improper scientific procedures and the lack of scientific
integrity at the FBI lab.
Thus, it is incumbent upon the Director of the FBI to
insure that all FBI employees report any allegations of
misconduct, and to err on the side of ``overreporting'' these
kinds of concerns. We are very troubled that your office has
not enforced the requirement that employees are under a
mandatory duty to disclose indications of misconduct. Instead
of strictly enforcing the law, you have publicly attacked Dr.
Whitehurst for doing exactly what he was require to do under
federal law.
Not only was Dr. Whitehurst required to report his concerns
pursuant to Executive Order, the OGE regulations and the
Department of Justice employee handout, the FBI's own
internal procedures regarding employee conduct required that
Dr. Whitehurst report ``any indication'' of ``possible''
misconduct, whether proven or not, to the appropriate
authorities. Section 1-22(c) of the FBI Manual of
Administrative Operations and Procedures (MAOP) states as
follows:
``Each employee has the responsibility to report promptly,
any indication of possible exploitation or misuse of Bureau
resources; information as to violations of law, rules or
regulations; personal misconduct. . . .''
Exhibit 2, FBI MAOP Section 1-22 (emphasis added), attached
hereto.
Once again, it is clear that Dr. Whitehurst had to report
unproven and ``possible'' ``indications'' of misconduct to
the appropriate authorities. It is fundamentally wrong for
you to challenge his right to ``overreport,'' and ridicule
his allegations as ``conjecture'' in the face of these legal
mandates and in the face of the severe crisis that has gone
unaddressed within the crime lab. To make matters even worse,
you were fully aware of many of these problems in 1994, yet
you failed to approve an independent review of these matters
and failed to correct these problems.
In your March 11th letter to Mr. Bromwich you also state
that Dr. Whitehurst could have been placed on leave as a
result of his ``refusal to answer questions, in direct
ocntravention of an order to cooperate by an FBI Acting
Director, with regard to an investigation into allegations
that Mr. Whitehurst, without authorization, disclosed
official information to the media.'' Once again, your
characterization of events is neither complete nor accurate.
Dr. Whitehurst was asked to answer questions concerning an
investigation conducted by the Inspector General about an
alleged leak of information to a journalist. Dr. Whitehurst
was originally informed that his cooperation with this
investigation was completely voluntary. Specifically, the
Special Investigative Counsel assigned by the IG to conduct
the investigation stated that the interview would be
``voluntary'' and that Dr. Whitehurst could ``terminate'' the
interview ``at any time.'' Exhibit 3, Hutchison to Kohn,
February 13, 1996, attached hereto. The fact that this
interview was originally scheduled as a ``voluntary''
interview is consistent with the manner in which the IG
conducted its interviews during the course of the IG's
``Whitehurst Review.'' Documents reviewed by Dr. Whitehurst's
counsel demonstrate that FBI employees were informed by the
IG of their right to refuse to answer questions and the fact
that such refusal would not result in any adverse actions.
Unfortunately, the FBI issued an instruction that Dr.
Whitehurst could not fully communicate with his private
attorneys concerning the proposed interview. This instruction
was clearly retaliatory, unconstitutional and illegal. The
DOJ was informed that as long as this instruction stood, we
would instruct our client not to answer any questions and
that the government's restriction on Dr. Whitehurst's
communications with his private counsel would be challenged
in federal court. Exhibit 4, Cochran and Kohn to Reno (March
27, 1996) attached hereto.
On March 19, 1996, after the FBI was informed of our
objections to the improper restrictions on Dr. Whitehurst's
communications with counsel, and after Dr. Whitehurst had
been informed that the interview would be ``voluntary,'' the
FBI Acting Assistant Director ordered Dr. Whitehurst to
``appear'' and answer questions on a mandatory basis.
Exhibit 5, Thompson to Whitehurst (March 19, 1996),
attached hereto. This order was issued almost three weeks
after the FBI was informed of our objections and position
regarding the government's interference with Dr.
Whitehurst's communications with counsel.\2\ See, Ex. 4.
---------------------------------------------------------------------------
\2\ Notably, a subsequent attempt by the FBI to force Dr.
Whitehurst to answer hostile questioning by arbitrarily
switching a voluntary interview to a mandatory one was
enjoined by court order. In September, 1996 the FBI once
again ordered Dr. Whitehurst to submit to a mandatory
interview and provide information to a prosecutor. The
retaliatory nature of that instruction was so obvious that a
U.S. District Court Judge issued a temporary restraining
order and a permanent injunction prohibiting the mandatory
interview. Ex. 6, U.S. v. McVeigh, Orders of Judge Matsch
(Sept. 12, 1996 and Oct. 29, 1996).
---------------------------------------------------------------------------
Unfortunately, your letters of March 11th are not the first
time you have treated Dr. Whitehurst in a disrespectful
fashion. In 1994, after Dr. Whitehurst contacted your Office
of General Counsel and, in good faith, attempted to
communicate his concerns about the crime lab, the Office of
General Counsel, with your specific concurrence, ridiculed
him as a ``perfectionist'' who ``refuses to compromise or be
realistic about his expectations of the LD [Laboratory
Division]''. Memorandum of May 26, 1994, initialed by FBI
General Counsel H.M. Shapiro. These types of derogatory
characterizations are inconsistent with the regulations
governing FBI employee-whistleblowing. It is highly
unprofessional for the FBI to personally deride an individual
who had the courage to come forward and point out problems
within the crime lab. Frankly, we are shocked at the complete
disrespect toward Dr. Whitehurst you have repeatedly shown or
approved. Given the FBI's record in its dealings with Dr.
Whitehurst we are not surprised that you objected to the IG's
February 26, 1997 testimony confirming that the IG had
``found substantial problems [at the FBI crime lab] based on
the allegations that Dr. Whitehurst made to us.'' Freeh to
Bromwich, p. 2 (March 11, 1997). The FBI's pattern of
attacking Dr. Whitehurst and ignoring the real problems which
exist in the crime lab are not consistent with the goals of
law enforcement.
In your letter to Mr. Bromwich you suggest that Congress
should be briefed in ``executive session'' about undisclosed
issues related to Dr. Whitehurst. The inference you clearly
intended to leave with any person who read this letter
borders on blatant ``McCarthyism''. You suggest that Dr.
Whitehurst engaged in misconduct which needed to be ``treated
confidentially.'' The facts indicate that the FBI's
treatment of Dr. Whitehurst and its indifference in
responding to his serious allegations will be recorded as
one of the saddest chapters in law enforcement history.
In the future, if you intend to provide any member of
Congress with a ``confidential'' briefing regarding Dr.
Whitehurst, we hereby request that we be notified in advance
of this briefing and that you request permission for Dr.
Whitehurst's counsel to attend any such briefing and respond
to the information you place before Congress.
Finally, your letters of March 11th referenced above were
filed in violation of the Privacy Act and other applicable
federal laws. We hereby request that you take immediate steps
to correct the inaccurate information contained in your
letters. Pursuant to the Privacy Act we also hereby request
that a copy of this letter be sent to all persons to whom you
provided a copy of your March 11th letters. In addition,
pursuant to the Freedom of Information Act, 5 U.S.C.
Sec. 552, the Privacy Act, 5 U.S.C. Sec. 552a and the
February 5, 1997 Order issued by the Honorable Gladys Kessler
in Whitehurst v. FBI, et al., C.A. No. 96-572(GK) (D.D.C.) we
hereby request immediate access to all documents directly or
indirectly related to: (a) the subject matter of this letter;
(b) all interactions with the U.S. Congress related to Dr.
Whitehurst; (c) all notes concerning any conversations
between the FBI and the DOJ IG; (d) all documents related to
and a complete accounting of all disclosures of information
made about Dr. Whitehurst from any FBI employee to any person
outside of the FBI (including, but not limited to, the
Director of the FBI, the FBI Deputy Director, Mr. Jim
Maddock, Mr. Weldon Kennedy, the office of public affairs, of
office of congressional affairs, the Acting Assistant
Director, Laboratory Division and Mr. D.W. Thompson); (e) all
documents in any manner related to the above-referenced March
11, 1997 letters signed by the FBI Director; and (f) all
documents in any manner related to any briefing given by any
FBI employee to any Member of the U.S. Congress, or any
person employed by the U.S. Congress or a Member thereof.
We also request that fees be waived concerning our FOI/PA
request because this information will significantly
contribute to the public interest and the public's
understanding of the operation of its government. In
addition, we request that this FOIA and Privacy Act request
be expedited given the intense public interest in these
matters.
Thank you in advance for your prompt attention. We expect
full compliance with the
[[Page S2354]]
FOIA and Privacy Act requests contained herein within ten
days.
Sincerely yours,
Stephen M. Kohn,
Michael D. Kohn,
David K. Colapinto,
Attorneys for Dr. Whitehurst.
Mr. GRASSLEY. Mr. President, I yield the floor and suggest the
absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. HAGEL. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________