[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.

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