[Congressional Record Volume 149, Number 174 (Tuesday, November 25, 2003)]
[Senate]
[Pages S16070-S16079]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                      NOMINATION OF MICHAEL GARCIA

  Mr. LIEBERMAN. Mr. President, although I do not intend to object to 
the confirmation of Michael Garcia to be Assistant Secretary of the 
Department of Homeland Security, Bureau of Immigration and Customs 
Enforcement, BICE, I do want to take this opportunity to express my 
concern about his handling of an issue that arose during the Committee 
on Governmental Affairs' consideration of his nomination. Specifically, 
I would like to describe my concerns about the way Mr. Garcia responded 
to questions from the committee related to his bureau's participation 
in a search for a plane belonging to a Texas state legislator. My 
concerns about the nominees's answers occurred in the context of 
problems we have been having getting clear and comprehensive answers 
from some other nominees for department positions, and from receiving 
satisfactory answers to inquiries related to our oversight 
responsibilities. I hope that by calling attention to these concerns, I 
can encourage the Department of Homeland Security, DHS to work with its 
oversight committees in a more straightforward and cooperative fashion.
  In this statement, I intend to describe in some detail the 
circumstances that I find troubling. To summarize, I have two main 
concerns. First, it took Mr. Garcia far too long--until well after the 
Governmental Affairs Committee reported his nomination--to acknowledge 
what until then had been a rather uncontroversial fact: that the 
pendency of an investigation by an agency's Inspector General does not 
preclude an official of that agency from responding to congressional 
requests for information about matters that are the subject of the IG's 
investigation. A significant part of Congress' work involves overseeing 
how agencies do their jobs, and this committee in particular often 
conducts investigations of alleged waste, fraud and abuse by agencies. 
If the pendency of an internal investigation stood as a per se bar to 
congressional information requests, our oversight work would often be 
stymied. Mr. Garcia's assertion of virtual immunity from being 
questioned about matters under internal investigation is unfortunately 
emblematic of this administration's and this Department's frequent 
stinginess with sharing information with Congress about matters that 
are appropriate topics of congressional oversight. That this refusal to 
provide information occurred in the context of a committee's 
consideration of a nomination was all the more troubling, because it 
suggested that even at the moment when the incentive for cooperation 
was the greatest, the department was urging its officials to resist 
appropriate requests for information. The department and Mr. Garcia now 
concede that a pending IG investigation is not grounds for refusing to 
provide Congress with information; as they acknowledge, Congress 
frequently inquires into--and receives information about--matters under 
investigation. Although it came frustratingly late, I appreciate their 
willingness to revisit their position and look forward to greater 
cooperation from them on such matters in the future.
  Second, I was concerned that Mr. Garcia's answers to written 
questions were misleading, whether or not he intended them to be, and I 
am even more disturbed that after I challenged Mr. Garcia's responses, 
he and his advisers passed up a number of opportunities to clarify his 
responses. I will describe the back and forth in greater detail below, 
but in short, Mr. Garcia stated in written answers to the committee 
that he declined to answer questions about the search for the Texas 
legislator because the IG's office had directed him not to, even though 
neither he nor his advisers had even contacted the IG's office about my 
questions until he had twice declined to answer them. Mr. Garcia 
continued to maintain that the IG's office directed him not to answer 
my questions, even after I reported to him that the IG's office did not 
believe it

[[Page S16071]]

had issued such a direction and even after one of his advisers was 
explicitly told by the Assistant Inspector General heading the Texas 
investigation that such an answer was inaccurate. After the committee 
reported his nomination, Mr. Garcia ultimately expressed his regret for 
these events, explaining that he did not intend to mislead the 
committee, which is why I will not stand in the way of his nomination. 
But I once again am forced to observe that this exchange was nowhere 
near the frank and honest effort at providing requested information 
that Congress has a right to expect from agency officials. It instead 
appears to have been an effort at finding any excuse for declining to 
answer questions and then, when it became apparent that the excuse 
could not stand, seeking to find any way possible to avoid correcting 
the mistaken assertion. As mentioned, Mr. Garcia has subsequently 
expressed his regret for how he answered these questions, and has 
pledged to better cooperate with the Committee in the future. I am 
hopeful that both he and the department will live up to that pledge.
  To provide more detail: when the Committee on Governmental Affairs 
received the nomination of Michael Garcia on March 26, 2003, he was 
already serving as Acting Assistant Secretary for BICE. He was leading 
the Bureau when, on May 12, 2003, it assisted in a search for the plane 
belonging to a member of the Texas legislature; the search had been 
initiated by leaders from the opposing party, as part of a highly 
political and partisan intrastate redistricting feud. At the time of 
these events it struck me as inappropriate that homeland security 
resources were diverted for this purpose, especially as it set a 
disturbing precedent of misusing the department's powers and authority 
to pursue American citizens who had broken no laws. So, as part of the 
committee's consideration of Mr. Garcia's nomination, I submitted a 
series of written questions about the incident, in my capacity as 
ranking member of the Committee on Governmental Affairs.

  Over the course of several weeks, Mr. Garcia provided answers that 
were unresponsive, unsatisfactory, and inconsistent. Mr. Garcia's legal 
advisers at the Department of Homeland Security appear to have 
compounded the problem by looking for ways to avoid the questions 
rather than clear up misunderstandings that became increasingly 
apparent.
  In written questions sent on May 16, 2003, before Mr. Garcia's 
committee hearing, I asked the following questions:

       On May 15, 2003, the Bureau acknowledged that its Air and 
     Marine Interdiction Coordination Center, AMICC, had earlier 
     that week participated in the search for the airplane of a 
     Texas legislator.
       1. What action was requested of the AMICC, and by whom?
       2. What action, if any, was actually taken by the AMICC? 
     Which federal officials were involved in directing that 
     action be taken?
       3. What other federal agencies were involved, if any, and 
     what actions did they take?
       4. If any action was taken by the Homeland Security 
     Department, please explain how these actions fall within the 
     Department's mission?
       5. If actions were taken in error, or in contravention of 
     Department policy, what steps will be taken to ensure that 
     similar mistakes will not happen again?''

  On May 30, 2003, Mr. Garcia responded that because BICE had referred 
the underlying issues to the Office of the Inspector General, OIG, ``it 
would be inappropriate to offer comment on the questions above.'' He 
attached to his answer a press release BICE had earlier issued, 
offering comment on the matter, including conclusions that BICE had 
acted appropriately in the incident. Concerned by the suggestion that 
the existence of an IG investigation serves as an absolute bar to an 
Executive Branch official providing any information to Congress, my 
staff on June 2, 2003, again asked Mr. Garcia about the issue at the 
bipartisan interview Committee staff routinely conduct in the course of 
considering nominations. Mr. Garcia again declined to answer the 
questions. At the staff interview Mr. Garcia was informed that Congress 
routinely seeks information and testimony about matters under criminal 
investigation, and is routinely provided the information.
  Apparently in response to the concerns raised at the staff interview, 
on June 2 the Chief Legal Counselor to the Department of Homeland 
Security, Lucy Clark, contacted the Counsel to the department's Acting 
Inspector General, Richard Reback. According to Mr. Reback, Ms. Clark 
told him that Mr. Garcia would be appearing for his confirmation 
hearing and asked how he should respond if questioned about the Texas 
matter. At Ms. Clark's request, on June 4, Mr. Reback sent by e-mail a 
hypothetical question and proposed answer, in which Reback suggested 
that Mr. Garcia, if asked ``what actions are you taking on the issue of 
diversion of Department of Homeland Security resources to search for 
Texas State legislators?'', could respond, ``The OIG has asked that any 
questions relating to this matter be directed to them.'' Mr. Reback 
later made clear in a letter to me that he was not aware at the time 
``that specific questions were pending or had been posed.'' Ms. Clark 
did not tell Mr. Reback that Mr. Garcia had already declined to answer 
questions on two occasions, or that he had been informed by Committee 
staff that his answer was unsatisfactory. Mr. Reback later explained 
that he was not directing Mr. Garcia not to answer inquiries from 
Congress. Rather, it was his hope that a referral to his Office could 
be the beginning of a dialogue with Congress, not the end of the 
dialogue.
  After Mr. Garcia's nomination hearing, on June 5, 2003, I remained 
concerned by the suggestion that an IG investigation could immunize 
Executive Branch officials from Congressional information requests. I 
therefore submitted post-hearing questions, which included the 
following inquiries about why Mr. Garcia believed he could decline to 
answer my questions on the Texas matter:

       a. Why do you believe it would be inappropriate to comment?
       b. Did the Office of Inspector General ask you not to 
     comment?
       c. Will you refuse to provide Congress with information on 
     any matter being investigated by an inspector general? If 
     your willingness to provide information to Congress would 
     depend on the circumstances, please specify in what 
     circumstances you would refuse to provide information.
       d. As Acting Assistant Secretary for BICE at the time the 
     incident occurred, do you have any knowledge of the 
     circumstances of your bureau's involvement, either direct or 
     second-hand? Did you take any steps to learn about the 
     bureau's role? Were you involved in deciding how the Bureau 
     should respond to the incident, and to the news reports that 
     described the incident?''

  On Friday, June 13, 2003, Mr. Garcia sent his responses to the post-
hearing questions. Mr. Garcia stated that he had ``received direction 
from the Inspector General's Office to refer all inquiries regarding 
this matter to that office.'' He also stated that ``the IG's office 
directed that it would not be appropriate to comment on this issue and 
that all inquiries be directed to that office,'' and ``in this case I 
was directed to refer all inquiries to the Inspector General's 
Office.'' Mr. Garcia's answers did not specify who had directed him not 
to answer, nor did they describe the nature of the communications with 
the IG's office. In response to the question about whether he would 
refuse to provide Congress with information on any matter being 
investigated by an inspector general, Mr. Garcia responded 
``(g)enerally, I would defer to the IG's office for direction on 
inquiries relating to any matter actively being investigated by that 
office.'' He declined to answer whether he had any knowledge of the 
circumstances of his Bureau's involvement in the incident, and what 
actions he took in its aftermath.

  Aware of no law, custom or precedent that would allow an IG to direct 
an Executive Branch official to decline to answer Congressional 
information requests, I had my staff contact the Department of DHS 
Office of Inspector General to learn more about the IG's views of this 
issue. On the afternoon of June 13, Lisa Redman, the assistant 
Inspector General responsible for the investigation into the Texas 
incident, denied to my staff that anyone from the IG's office had 
directed Mr. Garcia not to comment on the issue. She also informed 
Committee staff that the IG's office had no policy that would have 
precluded him from answering questions about his role in the incident, 
or from giving answers based on information provided by personnel at 
BICE.
  Concerned by this discrepancy, on the evening of June 13, I sent Mr. 
Garcia another set of post-hearing questions, seeking clarification 
regarding

[[Page S16072]]

the apparently contradictory information received from the IG's office. 
My questions also informed Mr. Garcia that both the Congressional 
Research Service and the Senate Legal Counsel had confirmed that an 
ongoing IG's investigation did not provide a legal basis for someone to 
refuse to provide information to Congress.
  As we later learned from Ms. Redman in a letter responding to my 
inquiries, on the morning of June 16, while Mr. Garcia and his staff 
were preparing answers to my questions, Ms. Redman received a telephone 
call from Mark Wallace, who was then Mr. Garcia's principal legal 
adviser at BICE. According to Ms. Redman, Mr. Wallace ``was very 
agitated and stated that the OIG had provided answers [to the 
Committee] inconsistent to those he provided on Mr. Garcia's behalf.'' 
Ms. Redman informed Mr. Wallace that no one from the IG's office had 
``directed'' Mr. Garcia not to answer questions from Congress, that the 
IG's office had never been told about Mr. Garcia's written responses to 
my questions, and that Mr. Wallace should have cleared Mr. Garcia's 
answers with the IG's office before submitting them. She also pointed 
out that the IG's office cannot direct Mr. Garcia to do anything. 
According to Ms. Redman, Mr. Wallace ``became quite angry and demanded 
that we make our responses consistent with his,'' and he ``said it was 
the OIG's fault that Mr. Garcia was now in this situation because we 
were not consistent in our responses.'' Ms. Redman refused to change 
her story.
  According to correspondence I received from Mr. Reback, Mr. Wallace 
also contacted Reback on June 16, in an e-mail ``in which [Wallace] 
stated that the OIG had provided inconsistent guidance to Mr. Garcia on 
responding to questions regarding the Texas matter.'' Mr. Reback said 
that he responded in an e-mail to Mr. Wallace, in which he said he 
explained that ``I had been asked for guidance on what Mr. Garcia could 
say if asked a question [on] the Texas matter at his confirmation 
hearing, and that I had provided guidance reflected in my June 4th e-
mail to Ms. Clark.'' Mr. Reback also told Mr. Wallace that he was 
``unaware that Mr. Garcia ever had received any written questions on 
the matter and had not seen or cleared on [sic] any of his written 
responses.'' Late in the evening of June 16, Mr. Reback was contacted 
by Ms. Clark and another adviser at BICE, Tim Haugh, who provided him a 
copy of draft responses to the questions I sent Mr. Garcia on June 
13th. Mr. Reback did not review or comment on all of the draft 
responses, but did request that ``with respect to questions that 
implicated OIG statements, Mr. Garcia refer to my June 4th e-mail in 
his responses.''
  At 11:00 p.m. on June 16, less than 12 hours before the committee met 
to consider his nomination, Mr. Garcia provided additional responses in 
which he continued to maintain that he had in fact been directed not to 
answer. For the first time, he referred the committee to the e-mail 
message Mr. Reback sent to Lucy Clark on June 4, 2003, but he made no 
mention of Ms. Redman's different interpretation of that communication, 
or of the IG's authority. Despite Ms. Redman's statements to his 
adviser, Mr. Garcia did not correct his earlier assertions that the 
Inspector General has the authority to instruct someone not to 
cooperate with Congress; he cited his legal advisers at DHS and the 
IG's office as the sources of his conclusion.
  At the committee mark-up on the morning of June 17, I expressed my 
concerns about Mr. Garcia's refusal to answer questions about the Texas 
incident, and I questioned whether his reliance on supposed 
instructions from the IG's office were factually accurate or legally 
sound. I entered into an agreement with Chairman Collins that I would 
not object to the committee reporting Mr. Garcia's nomination, but that 
Mr. Garcia's nomination would not go to the Senate floor until my 
questions and concerns had been satisfactorily resolved.
  I subsequently sent letters seeking additional information from Mr. 
Reback, Ms. Redman, and Mr. Garcia. I have already described the 
information I received from Mr. Reback and Ms. Redman. Mr. Garcia, for 
his part, maintained that all of his answers had been accurate, and 
that he had reasonably interpreted Mr. Reback's e-mail as equivalent to 
being directed by the IG's office not to respond. He concluded that at 
all times he was ``guided by a sincere desire not to in any way 
interfere with an ongoing criminal investigation'': ``At no time did I 
intend to evade answers or to in any way challenge the authority of 
Congress to inquire into such matters. I responded based on what I 
reasonably believed was the guidance from the OIG and counsel.''
  Although I am troubled by how Mr. Garcia and his advisers at the 
Department dealt with this issue, I have nevertheless decided not to 
oppose this otherwise qualified nominee. Still, I felt that the issues 
raised during his nomination process were important enough that they 
deserved to be fully aired.
  One of the principal functions of the Committee on Governmental 
Affairs, like all Senate committees, is to ensure that qualified, 
capable and responsible people are ultimately appointed to the highest 
positions in our government, and to conduct oversight over the 
departments and agencies within its jurisdiction. Through both the 
confirmation and oversight processes, we ensure ourselves and the 
American people that our government is functioning as it should be. As 
part of these processes, we regularly engage in dialogues with 
nominees, including through written questions; the integrity of our 
process requires that nominees fully and forthrightly answer the 
questions asked.
  It appears to me that Mr. Garcia and his legal advisers at DHS 
provided answers to the Committee that were misleading factually and 
misstated the legal reasons a nominee could refuse to answer questions. 
For example, Mr. Garcia did not have any communications with any 
official from the IG's office until June 4, 2003, after he had already, 
on two occasions, declined to answer questions about the Texas matter. 
Nevertheless, his answers to my post-hearing questions stated that he 
had declined to answer the questions because ``the IG's office directed 
that it would not be appropriate to comment on this issue and that all 
inquiries be directed to that office.'' Whatever Mr. Garcia's 
intention, that answer was not a factually accurate way of explaining 
answers given before he or his advisers spoke with the IG's office 
about the issue.
  Furthermore, it is now clear that Mr. Garcia never was ``directed'' 
not to answer the questions by the Office of Inspector General--an 
assertion he repeatedly made in his written responses to my questions. 
Regardless of whether Mr. Reback's June 4 e-mail could have been 
interpreted as something stronger than intended, Mr. Garcia's legal 
adviser, Mr. Wallace, knew prior to Mr. Garcia's submission of his 
final set of answers that the IG's office was not directing him not to 
answer questions and had never intended to do so. Nevertheless, Mr. 
Garcia submitted written answers on June 16 in which he continued to 
assert that the IG's office had directed him not to answer the 
questions, referring to Mr. Reback's e-mail. Nothing in the answers 
gave any indication that the IG's office had explicitly rejected this 
interpretation of Mr. Reback's e-mail.
  Mr. Garcia's rationale for not answering the questions raised 
important institutional issues. As a general matter, I find it 
unacceptable for agency officials to argue that the pendency of an IG 
investigation categorically precludes them from responding to 
congressional information requests. Congress often seeks information--
and sometimes even conducts parallel investigations--on matters also 
under review by IG offices. Were the pendency of IG investigations a 
basis for an agency official or employee to decline to respond to 
Congressional inquiries, numerous Congressional inquiries conducted by 
the Governmental Affairs Committee and other Committees would be 
inappropriately stymied.
  The notion that an Inspector General could ``direct'' a Department 
official not to cooperate with Congress was itself troubling. Officials 
at the Inspector General's office understood that they did not have the 
authority to ``direct'' Department officials not to answer questions, 
but neither Mr. Garcia nor his legal advisers consulted with IG 
officials on their choice of words until after they had already sent 
the Committee Mr. Garcia's answers. I was especially disturbed, in this 
context, to

[[Page S16073]]

learn that Mr. Garcia's legal adviser, Mark Wallace, apparently berated 
the Assistant Inspector General and attempted to get her to change her 
version of events to make it ``consistent'' with the answers he had 
previously prepared. If true, this is highly improper behavior for a 
government attorney, and might itself have been worthy of an 
investigation.
  Subsequent to the Committee's reporting of Mr. Garcia's nomination, 
my staff met with him to discuss these issues and my concerns about 
these events as well as with other examples of DHS nominees providing 
less than adequate answers to questions posed during the nomination 
process. In light of Mr. Garcia's statement in that meeting that he did 
not intend to mislead the Committee and now understood the need to 
better cooperate with Congress, I am prepared to move forward with his 
nomination. I could not do so, however, without leaving a complete 
record of my concern over these events.
  Mr President, I thank my colleague, Chairman Collins, for working 
with me towards a satisfactory resolution of this issue. I am glad that 
we have had the opportunity to share with Mr. Garcia and with other DHS 
officials our concerns about how this nomination was handled. I hope 
that in the future the Department of Homeland Security will endeavor to 
work constructively with all senators to avoid misunderstandings of the 
type we experienced in this case, and to take seriously its obligations 
to provide Congress with the accurate, timely and complete information 
it needs.
  In the interest of fairness to all parties, I ask unanimous consent 
that the text of letters from Mr. Reback, Ms. Redman, and Mr. Garcia, 
be printed in the Record following my remarks. Space limitations 
prevent me from including the full text of the pre-hearing and post-
hearing questions asked of Mr. Garcia, and his answers, but those may 
be found in the Committee's hearing record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Department of Homeland Security, Office of Inspector 
           General,
                                    Washington, DC, June 26, 2003.
     Hon. Joseph I. Lieberman,
     Senate Committee on Governmental Affairs, Dirsken Senate 
         Office Building, Washington, DC.
       Dear Senator Lieberman: Thank you for your letter to me 
     dated June 23, 2003, in which you asked me to clarify a 
     matter before the Senate Governmental Affairs Committee, 
     specifically the Committee's consideration of the nomination 
     of Michael Garcia to serve as Assistant Secretary in the 
     Department of Homeland Security. The following responses to 
     your questions are below:
       (1) Did you have any communications with Mr. Garcia about 
     how to respond to questions regarding the Texas matter? If 
     so, please state when each communication occurred, who 
     initiated the communication and who else was present, and 
     please describe the content of the conversation or 
     communication.
       Response: No.
       (2) Did you have communications with any DHS official or 
     employees seeking information on Mr. Garcia's behalf on how 
     to respond to Congressional information requests about the 
     Texas matter or otherwise involved in the drafting of Mr. 
     Garcia's responses? If so, please state the person with whom 
     you had each communication (including his or her title), who 
     initiated the communication, when the communication occurred, 
     and describe the content of the communication.
       Response: Yes. I had telephone conversations with Lucy 
     Clark, DHS Chief Legal Counselor, on the afternoon of June 2, 
     on June 4, and possibly on June 3, 2003. These conversations 
     were initiated by Ms. Clark and each conversation was very 
     brief--I would estimate the total time for all my telephone 
     conversations with Ms. Clark on these days was approximately 
     five to ten minutes.
       Ms. Clark told me that Mr. Garcia would be appearing for 
     his confirmation hearing and asked me how he should respond 
     if questioned about the Texas matter. I replied that Mr. 
     Garcia should state that the matter was under investigation 
     by the OIG and questions should be referred to the OIG. I 
     told Ms. Clark that since the OIG had an open criminal 
     investigation, we did not want people talking about the case. 
     Ms. Clark subsequently asked me to put my comments in writing 
     and I sent her the e-mail on June 4th that has been provided 
     to you. Ms. Redman, Assistant Inspector General for 
     Investigations, reviewed and concurred with my e-mail before 
     I sent it. Mr. Richard Skinner, Deputy Inspector General, 
     reviewed and concurred with my e-mail after I had sent it.
       On June 16th, I received an e-mail from Mark Wallace, 
     Principal Legal Adviser to Mr. Garcia, in which he stated 
     that the OIG had provided inconsistent guidance to Mr. Garcia 
     on responding to questions regarding the Texas matter. Mr. 
     Wallace attached a copy of eight questions from Senator 
     Lieberman to Mr. Garcia. I responded to Mr. Wallace via e-
     mail in which I stated that I had been asked for guidance on 
     what Mr. Garcia could say if asked a question about the Texas 
     matter at his confirmation hearing, and that I had provided 
     guidance reflected in my June 4th e-mail to Ms. Clark. I 
     further stated that I was unaware that Mr. Garcia ever had 
     received any written questions on the matter and had not seen 
     or cleared on any of his written responses. I also stated 
     that I heard nothing more about Mr. Garcia's response to 
     questions on the Texas matter until the afternoon of June 
     13th, when the Assistant Inspector General for 
     Investigations, Ms. Redman, had received oral questions from 
     some of the Committee's minority staff regarding Mr. Garcia's 
     responses. Finally, I stated that the OIG investigation was 
     closed, there was no criminal enforcement action and that Mr. 
     Garcia could answer any questions about the Texas matter. I 
     heard nothing further from Mr. Wallace.
       Late that evening (June 16th), I had conversations with Ms. 
     Clark and with Mr. Tim Haugh, Director of Congressional 
     Relations, Bureau of Immigration and Customs Enforcement, 
     about questions Mr. Garcia had received from the Senate 
     Committee on Governmental Affairs and which Mr. Garcia 
     intended to respond to that day. My conversations were 
     primarily with Mr. Haugh, who provided me a copy of draft 
     responses to those questions. I did not review or comment on 
     all of the responses. I did however, request that with 
     respect to questions that implicated OIG statements, Mr. 
     Garcia refer to my June 4th e-mail in his responses.
       (3) Please indicate specifically whether any communications 
     you had with persons outside the OIG about Mr. Garcia's 
     responses occurred before June 4, 2003.
       Response: Please see answer above.
       (4) Please indicate whether you are aware of any other 
     person employed by the OIG discussing this matter with DHS 
     personnel acting on Mr. Garcia's behalf. If you are aware of 
     any such discussions, please indicate who had the discussion, 
     who initiated it, when it occurred (and specifically whether 
     it was before June 4, 2003) and, to the extent you know, the 
     contents of the discussion.
       Response: I am unaware of any other person employed by the 
     OIG having such discussions other than my conversations on 
     June 2nd and possibly June 3rd as discussed above.
       (5) Mr. Garcia attached your e-mail to Lucy Clark to 
     substantiate his assertion that the IG's office ``directed'' 
     him not to respond to the questions sent to him.
       (a) Please provide in as much detail as you can recall the 
     contents of any communications you had with Ms. Clark that 
     led to you drafting the e-mail provided to the Committee. Who 
     initiated the conversation? What specifically did Ms. Clark 
     tell you about the questions sent to Mr. Garcia? What did she 
     ask you to do?
       Response: Please see my response to question 2 above. As 
     stated, I did not know that Mr. Garcia had received any 
     written questions nor that he had appeared for a Committee 
     staff interview on June 2, 2003.
       (b) Was anyone other than Ms. Clark involved in these 
     communications? If so, state who was involved (including the 
     person's title) and the nature and content of their 
     involvement.
       Response: Please see my response to questions above.
       (c) Did you tell Ms. Clark that you were ``directing'' Mr. 
     Garcia to refer all inquiries regarding the matter to your 
     office?
       Response: I did not use the terms ``direct'' or 
     ``directing.'' However, in my conversations with Ms. Clark, I 
     believe it was clear that the OIG did not ant DHS personnel 
     discussing a matter that was under criminal investigation by 
     the OIG without first coordinating with the OIG.
       (d) Did you believe your e-mail was ''directing'' Mr. 
     Garcia to refer all inquiries regarding the matter to your 
     office?
       Response: Please see my response above.
       (e) The question attached to your e-mail does not use 
     language encompassing all questions related to the Texas 
     matter, but rather asks only what action Mr. Garcia is 
     currently taking on it. The bulk of my questions, in 
     contrast, asked about past events, not Mr. Garcia's current 
     actions. Did you tell Ms. Clark that Mr. Garcia should refer 
     all Congressional questions, including seeking Mr. Garcia's 
     knowledge about underlying events, to the IG's office.
       Response: My conversations with Ms. Clark did not involve 
     that level of specificity. I was unaware of your prior 
     questions to Mr. Garcia at the time I had my conversations on 
     June 2nd-June 4th.
       (f) Did you believe the attachment to your e-mail suggested 
     that Mr. Garcia should not answer the questions reprinted at 
     the bottom of page 1 of this letter?
       Response: At the time I sent the e-mail, I was not aware 
     that specific questions were pending or had been posed. My 
     advice was inthe context of a potential inquiry along the 
     lines stated in my June 4th e-mail.
       (g) Did Ms. Clark (or any other person involved in these 
     communications with you) ask you to provide a different 
     answer than the one you gave to her? If so, that was her or 
     their proposal, and why did you not agree to it? Please 
     describe in full the discussion on this matter.

[[Page S16074]]

       Response: At no time during our conversations on June 2nd-
     4th did Ms. Clark or anyone else ask me to provide a 
     different answer than the one I provided.
       (6) Did you ever direct Mr. Garcia or anyone inquiring on 
     his behalf not to answer questions from Congress on the Texas 
     matter? (If your previous answers dispose of this and/or any 
     of the following questions in their entirety, feel free to so 
     indicate).
       Response: No. Please see my responses to questions above.
       (7) Are you aware of any other OIG personnel directing Mr. 
     Garcia or anyone inquiring on his behalf not to a answer 
     questions from Congress on the Texas matter? If so, please 
     identify the individuals involved, when they issued the 
     direction, to whom they gave it, and the content of any 
     communications related to such direction.
       Response: No. Please see my responses to questions above.
       (8) Do you believe you or anyone in the IG's office had the 
     authority to ``direct'' Mr. Garcia not to answer these 
     questions? If so, please state the basis of that authority.
       Response: No.
       (9) Did you ever tell Mr. Garcia or anyone inquiring on his 
     behalf that it would be ``inappropriate to offer comment'' in 
     response to Congressional questions regarding BICE's 
     involvement in the Texas matter? If so, please identify the 
     person to whom you made this statement, when you made it and 
     the basis for your making that statement.
       Response: I do not remember if I used those exact words. 
     However, it would have been reasonable for Ms. Clark to infer 
     that I believed it would be prudent for Mr. Garcia to check 
     with the OIG before offering comment about the OIG's 
     investigation of BICE's involvement in the Texas matter.
       At the time, the OIG had an open criminal investigation. 
     Generally, we seek to avoid public discussion of open 
     criminal matters to avoid jeopardizing the success of a 
     potential future prosecution, impeding our ability to gather 
     all relevant information, affecting the impartiality and 
     perceived impartiality of our work, and other such concerns. 
     We also try to discourage speculation about the outcome of a 
     pending investigation.
       (10) Had you seen Mr. Garcia's answers to the questions 
     sent to him by the Committee prior to receiving this letter? 
     If so, in what context did you see them? Who showed them to 
     you and when? Were you shown any of Mr. Garcia's written 
     responses before he sent them to the Committee? Regardless of 
     when you saw them, did you believe the answers to be accurate 
     in their representation of the IG office's statements and 
     views? If not, did you communicate that belief to anyone in 
     DHS? If so, to whom? When? What were the contents of that 
     conversation?
       Response: I saw a draft of Mr. Garcia's June 16th answers 
     on the evening of June 16th; I did not see the final document 
     until after it had been sent to the Committee. I believe the 
     responses received by the Committee are accurate in their 
     representation of OIG statements, namely, I sent the June 4, 
     2003, email to Ms. Clark. I did not offer any comment on the 
     responses in any other respect. I did not see the written 
     responses to any of the other sets of questions until 
     provided them by Committee's minority staff in the course of 
     responding to these questions.
       Examining the responses after the fact, I believe that the 
     scope of the OIG guidance may have been misunderstood. The 
     OIG had not intended, and did not direct that no 
     Congressional requests be answered. Instead, we asked that 
     questions be referred to the OIG because the OIG had an open 
     criminal investigation. We did not intend that to be the end 
     of the dialogue with the Congress.
       (11) Please provide any additional information you believe 
     might be helpful to clarify the Committee's record on this 
     matter.
       Response: Legal authority supports the general position 
     that an OIG can withhold certain confidential information 
     from Congress during the course of an open criminal 
     investigation. See 13 Op. Off. Legal Counsel 77 (1989). In my 
     experience, I have found Congressional staff members 
     sensitive to these issues and willing to accommodate OIG 
     concerns.
           Sincerely,
                                                Richard N. Reback,
     Counsel to the Acting Inspector General.
                                  ____

         Department of Homeland Security, Office of Inspector 
           General,
                                    Washington, DC, June 26, 2003.
     Hon. Joseph I. Lieberman,
     Ranking Minority Member, Senate Office Building, U.S. Senate, 
         Washington, DC.
       Dear Senator Lieberman: Thank you for your letter to me 
     dated June 23, 2003, in which you asked me to clarify a 
     matter before the Senate Governmental Affairs Committee, 
     specifically the Committee's consideration of the nomination 
     of Michael Garcia to serve as Assistant Secretary in the 
     Department of Homeland Security. The following responses to 
     your questions are provided below:
       (1) Did you have any communications with Mr. Garcia about 
     how to respond to questions regarding the Texas matter? If 
     so, please state when each communication occurred, who 
     initiated it and who else was present, and please describe 
     the content of the communication.
       Response: No.
       (2) Did you have communications with any DHS official or 
     employee seeking information on Mr. Garcia's behalf on how to 
     respond to Congressional information requests about the Texas 
     matter or otherwise involved in the drafting of Mr. Garcia's 
     responses? If so, please identify the person with whom you 
     had each communication (including his or her title), state 
     who initiated the communication, indicate when the 
     communication occurred, and describe the content of the 
     communication.
       Response: No, not until June 16th and that conversation was 
     with Mark Wallace after he had sent responses to the 
     Committee on Mr. Garcia's behalf.
       (3) Please indicate specifically whether any communications 
     you had with persons outside the OIG about Mr. Garcia's 
     responses occurred before June 4, 2003.
       Response: I had no communications outside the OIG prior to 
     June 4, 2003, regarding Mr. Garcia's responses.
       (4) Please indicate whether you are aware of any other 
     person employed by the OIG discussing this matter with Mr. 
     Garcia or with DHS personnel acting on Mr. Garcia's behalf. 
     If you are aware of any such discussions, please indicate who 
     had the discussion, who initiated it, when it occurred (and 
     specifically whether it was before June 4, 2003) and, to the 
     extent you know, the contents of the discussion.
       Response: I am aware that OIG Counsel Richard Reback was 
     contacted by DHS General Counsel Lucy Clark on June 4th or 
     perhaps June 3rd; during which contact Ms. Clark sought 
     advice from Counsel Reback as to what Mr. Garcia should say 
     if asked about the OIG Texas investigation. Mr. Reback 
     advised me that Ms. Clark initiated contact with him and he 
     provided an email to her in response as to suggested language 
     Mr. Garcia might use. That is the same email previously 
     provided to your staff. Mr. Reback showed me his proposed 
     email before he sent it and I concurred with its contents.
       (5) Did you ever direct Mr. Garcia or anyone inquiring on 
     his behalf not to answer questions from Congress on the Texas 
     matter? If so, please describe when that happened, to whom 
     you gave that direction, who initiated the communication, and 
     the details of your direction.
       Response: No direction was provided by me to Mr. Garcia or 
     anyone acting on his behalf on any matter.
       (6) Are you aware of any OIG personnel directing Mr. Garcia 
     or anyone inquiring on his behalf not to answer questions 
     from Congress on the Texas matter? If so, please describe 
     when that happened, who gave the direction and to whom that 
     direction was given, who initiated the communication, and the 
     details of the direction.
       Response: I am not aware of any OIG contact with Mr. Garcia 
     or anyone on his behalf directing him as to what to say or 
     not to say.
       (7) Do you believe you or anyone in the IG's office had the 
     authority to ``direct'' Mr. Garcia not to answer these 
     questions? If so, please state the basis of that authority.
       Response: No, I do not believe the OIG has the authority to 
     ``direct'' Mr. Garcia or anyone else in DHS to answer or not 
     answer questions from Congress.
       (8) Did you ever tell Mr. Garcia or anyone inquiring on his 
     behalf that it would be ``inappropriate to offer comment'' in 
     response to Congressional questions regarding BICE's 
     involvement in the Texas matter? If so, please identify the 
     person to whom you made this statement, when you made it and 
     the basis for your making that statement.
       Response: No, I never made that statement to Mr. Garcia or 
     anyone on his behalf.
       (9) Had you seen or discussed Mr. Garcia's answers to the 
     questions sent to him by the Committee prior to receiving 
     this letter? If so, in what context did you see them? Who 
     showed them to you and when? Were you shown any of Mr. 
     Garcia's written responses before he sent them to the 
     Committee? Regardless of when you saw them, did you believe 
     the answers to be accurate in their representation of the IG 
     office's statements and views? If not, did you communicate 
     that belief to anyone in DHS? If so, to whom? When? What were 
     the contents of that conversation?
       Response: the first time I saw any questions for Mr. Garcia 
     was on the morning of June 16th. Those questions were e-
     mailed to me by Mark Wallace, who identified himself as Mr. 
     Garcia's Principal Legal Advisor. He sought assistance in 
     preparing responses to those questions on Mr. Garcia's behalf 
     and asked for ``urgent'' help at 9:41 am. I did not see any 
     responses he drafted to those questions until the morning of 
     June 17th. A faxed copy of his responses was under my door 
     when I arrived at work. I e-mailed Mr. Reback at 8:32 am on 
     June 17th and advised him that the responses prepared by Mr. 
     Wallace to Questions 2 and 3 were not accurate as they 
     purported to represent a conversation Wallace and I had the 
     morning of June 16th. I was subsequently told by Mr. Reback 
     that those responses did not get sent to the committee; 
     instead a new (second) set of responses was drafted by the 
     night before and those responses were the ones sent to you by 
     Lucy Clark. The set of responses you received was accurate.
       (10) You indicated to my staff that on Friday, June 13, you 
     had a conversation with the individual who drafted Mr. 
     Garcia's responses to the questions regarding the Texas 
     matter and that you told him that the IG's office had not 
     ``directed'' Mr. Garcia not to respond to the questions. To 
     the extent that you have not already done so in response to 
     the questions above, please answer the following questions 
     with respect to that conversation:
       (a) With whom did you have this conversation (please 
     identify the individual's name and title)?

[[Page S16075]]

       Response: I did say in a meeting with your staff on June 
     19th that I had such a conversation on Friday, June 13th. 
     However, I was mistaken and realized that mistake in 
     reviewing my e-mails and telephone notes. On the afternoon 
     and early evening of Friday, June 13th I had several 
     telephone conversations with Kevin Landy of your staff from 
     whom I learned for the first time that questions and answers 
     had been provided to the Committee by Mr. Garcia. The 
     conversation to which you refer actually occurred on Monday, 
     June 16th between 9:41 and 9:54 am between myself and Mark 
     Wallace, Principal Legal Advisor to Mr. Garcia.
       (b) Because Mr. Garcia sent answers to the questions on 
     that date (DHS staff emailed them to Committee staff at 12:29 
     p.m.), please identify to the most precise extent you can 
     recall when in the day that conversation occurred.
       Response: as indicated above, I misspoke and I did not have 
     any conversations with Mr. Wallace until Monday, June 16th, 
     not Friday, June 13th. My June 13th conversations were with 
     Kevin Landy, not Mark Wallace.
       (c) Who initiated the conversation?
       Response: the conversation on June 16th was initiated by 
     Mark Wallace. He called the main number, asked for Mr. 
     Reback, then Mr. Skinner, and finally me after learning the 
     other two were not available.
       (d) Who else was involved in it?
       Response: No one else was involved in this conversation.
       (e) Please describe in the greatest detail possible, the 
     contents of the conversation.
       Response: Mr. Wallace was very agitated and stated that the 
     OIG had provided answers inconsistent to those he provided on 
     Mr. Garcia's behalf. I asked him to which questions he was 
     referring and he said he submitted a number of responses for 
     the record on Friday (June 13th) and also prior to Mr. 
     Garcia's hearing. I told him that he should have coordinated 
     those responses with the OIG because his responses, as 
     described to me by Kevin Landy on the 13th, were not 
     accurate. He said his answers were accurate, mine were not, 
     and this inconsistency would only make me and the OIG ``look 
     bad.'' I told Wallace that no one had ``directed'' Garcia or 
     anyone else as to what to say and I was not going to state 
     otherwise. He said we had directed Garcia in the form of Mr. 
     Reback's email to Lucy Clark and I disputed that claim. He 
     became quite angry and demanded that we make our responses 
     consistent with his. I told him that he would not be in this 
     situation if he had cleared his answers with the OIG prior to 
     submission. I further said it is not a good idea to speak for 
     the OIG; that is our job. He insisted that ``direct'' is the 
     same thing as ``ask'' if it comes from the OIG and I told him 
     that was not correct and that it was not his right to 
     interpret what he thought the OIG meant. Further, I told 
     Wallace that Mr. Reback's email was clear as to the position 
     of the OIG. The conversation ended as abruptly as it had 
     begun.
       (f) Did the individual show you or describe to you my 
     questions to Mr. Garcia or the answers he had given or 
     proposed to give? If so, what did he say about them?
       Response: Mr. Wallace did not share any prior responses 
     with me. I saw responses for the first time on the morning of 
     June 17th, which were not correct and were not ultimately 
     submitted to the committee. Those responses were to questions 
     Wallace said he received from you sometime between the 13th 
     and the 16th. He did orally confirm during our conversation 
     of the 16th that he was being questioned by you, in writing, 
     as to responses he submitted on Mr. Garcia's behalf on the 
     13th, because I told him I understood that he had submitted 
     questions that we had not seen.
       (g) Did you tell the individual with whom you spoke that 
     the IG's office had not ``directed'' Mr. Garcia not to 
     respond to questions about the Texas matter?
       Response: Yes, I was very adamant on that point and that 
     was why he called me on June 16th. He said we needed to be 
     consistent with responses he had already submitted and that 
     we had ``directed'' Mr. Garcia not to answer questions. I 
     told Wallace that was flat-out incorrect and no one in the 
     OIG had had any communication with Mr. Garcia, let alone 
     ``directed'' him on any matter, nor did we know until the 
     13th (from Kevin Landy to me) that any questions had been 
     submitted in the first place.
       (h) What did you tell the individual with whom you spoke 
     about whether the IG's office had authority to give such a 
     direction?
       Response: I told Wallace that he well knew from his time in 
     the OIG community (he previously worked at FEMA) that an OIG 
     cannot direct anyone (other than OIG employees) to do 
     anything.
       (i) What did that individual ask you to do or say?
       Response: Wallace demanded that we assist him in drafting 
     responses to new questions he had received because it was our 
     fault he had gotten the questions. He said it was the OIG's 
     fault that Mr. Garcia was now in this situation because we 
     were not consistent in our responses.
       (j) What did you say in response?
       Response: I told Wallace that if we had seen his draft 
     responses before he sent them then we could have prevented 
     him from using such a poor choice of language. Prior 
     coordination would have resulted in consistent responses.
       (11) Please provide any additional information you believe 
     might be helpful to clarify the Committee's record on this 
     matter.
       Response: Mr. Wallace left DHS employ on June 18th. He 
     advised Mr. Reback that he had accepted a position as Deputy 
     Campaign Manager for the President's re-election campaign.
           Sincerely,
     Elizabeth M. Redman,
       Assistant Inspector General for Investigations, Office of 
     Inspector General, Department of Homeland Security.
                                  ____

         Department of Homeland Security, Bureau of Immigration 
           and Customs Enforcement,
                                    Washington, DC, July 30, 2003.
     Hon. Joseph Lieberman,
     U.S. Senate,
     Washington, DC.
       Dear Senator Lieberman: This letter is in response to your 
     letter of July 8, 2003, requesting further clarification 
     regarding information previously provided in response to 
     questions for the record involving the Air and Marine 
     Interdiction Coordination Center.
       Please find enclosed responses to each of your questions. 
     Thank you for the opportunity to address your further 
     questions regarding this matter. I would be happy to discuss 
     this matter with you further if you feel such a meeting would 
     be helpful.
           Sincerely,
                                                Michael J. Garcia,
                                       Acting Assistant Secretary.
       Enclosure.

       (1) On May 30, 2003, when you first responded to my 
     questions that because BICE had referred the underlying 
     issues to the Office of the Inspector General, ``it would be 
     inappropriate to offer comment on the questions above,'' did 
     you believe you had been ``directed'' by the IG's office not 
     to answer the questions? If so, what was the basis for that 
     belief? Who told you about such direction and when?
       Response: I think it would be helpful in clarifying the 
     record to set forth the responses made to your inquiries 
     regarding the Air and Marine Interdiction Coordination Center 
     (``AMICC'') and in doing this to detail the substance and 
     chronology of those answers and the basis for the position 
     taken.
       On May 30, 2003, I responded to the first set of questions 
     regarding events at AMICC by stating that the matter had been 
     referred to the Inspector General and that ``[t]herefore it 
     would be inappropriate to offer comment on the questions 
     above.'' At this time I based my statement on the fact that 
     this was a potential criminal investigation and on my 
     experience as a Federal prosecutor. In sum, I was motivated 
     by the belief that it would be inappropriate to offer my 
     comments on this ongoing IG matter. I was also aware that 
     before the House Select Homeland Security Committee on May 
     20, 2003, Secretary Ridge had stated, ``we thought it was 
     very appropriate, based on the multiple inquiries that we 
     received from members of Congress, including yours, that we 
     deploy the means with which Congress has given us. And that's 
     an inspector general within our department.'' He went on to 
     say ``. . . it's not appropriate to be passing that 
     information out right now'' when referring to a request to 
     release the audiotapes. My responses were reviewed by the 
     Department of Homeland Security prior to being sent to the 
     Committee. On June 2, 2003, I was interviewed by staff 
     members for the Committee. At that time, Minority Counsel 
     asked me about my May 30 answers to the AMICC questions, 
     specifically my basis for declining to answer with specifics. 
     I explained that I based this response on my experience as a 
     prosecutor and my concern about commenting on an ongoing, 
     potentially criminal, investigation. Minority Counsel 
     disagreed with this analogy--my experience as a Federal 
     prosecutor--and stated that the law regarding inquiries by 
     Congress made such comment possible. I replied that I was not 
     aware of that legal authority.
       As a result of the statements by Minority Counsel and the 
     continuing interest in this area of inquiry by the Committee 
     as manifested by his questions, I asked my Principal Legal 
     Advisor to get clarification. I understood that he worked 
     through Lucy Clark, Chief Legal Counselor to DHS. I used this 
     avenue of communication with the IG--through counsel--given 
     that the most appropriate medium for communicating with an 
     agency conducting an ongoing criminal investigation into 
     activities by a component of my agency is through legal 
     counsel.
       A subsequent e-mail (previously provided to the Committee) 
     authorized by the Office of Inspector General stated: 
     ``Attached is the language Mr. Garcia can use if questioned 
     on the Texas State legislators issue.'' The attachment 
     read: ``My office referred this matter to the Department's 
     Office of Inspector General (OIG) on the evening of May 
     15, 2003. The OIG has asked that any questions relating to 
     this matter be directed to them.'' I received a copy of 
     this e-mail prior to my confirmation hearing on June 5, 
     2003. It is my understanding that the OIG counsel who 
     provided this e-mail knew that this guidance was being 
     sought in the context of my confirmation hearing. I also 
     received confirmation from Lucy Clark that it would be 
     inappropriate to make any comments and I should refer any 
     questions on this matter during the confirmation process 
     to the OIG. (See Letter from Lucy Clark to Senator Joseph 
     Lieberman, dated June 16, 2003). The

[[Page S16076]]

     AMICC matter was not raised at the June 5, 2003 hearing.
       On June 13, I submitted responses to your post-hearing 
     questions. At that time, in response to the question 
     regarding why I believed it inappropriate to comment, I 
     responded, ``I received direction from the Inspector 
     General's (IG's) Office to refer all inquiries regarding this 
     matter to that office.'' In response to the next question, 
     ``Did the Office of the Inspector General ask you not to 
     comment?'' I responded, ``As noted above, the IG's office 
     directed that it would not be appropriate to comment on this 
     issue and that all inquiries be directed to that office.'' I 
     based these answers on the e-mail from the IG counsel 
     referenced above which stated that the OIG ``has asked that 
     any question relating to this matter be directed to them'' as 
     well as the guidance from Lucy Clark, who I knew to be in 
     contact with the IG's office, that it would be inappropriate 
     to make any comments on this matter during the confirmation 
     process other than to refer such questions to the OIG. These 
     answers were again cleared at the Department level.
       Later that evening of June 13, 2003, I received additional 
     questions on this issue. Those questions referenced a 
     conversation between your staff and the OIG to the effect 
     that referring questions to the OIG regarding an OIG criminal 
     investigation was not consistent with the policy of the OIG 
     and that the Assistant IG conducting the investigation had 
     stated that no one at the IG's office had ever had any 
     communications with me. You then posed several questions 
     related to this ``contradiction.''
       I responded to the first question related to any 
     communications with the IG's office by providing the e-mail 
     discussed above and outlined the method of communication I 
     used to obtain that guidance, namely through my Principal 
     Legal Advisor and the DHS Chief Legal Counselor. While I 
     never had any direct communication with the OIG on this 
     matter, the communication from the OIG's Chief Counsel 
     clearly was intended as guidance for ``Mr. Garcia'' in the 
     confirmation process. I also noted that my answers were 
     cleared through the Chief Legal Counselor for DHS based upon 
     her understanding of her direct communications with the OIG.
       This round of questions raised for the first time an issue 
     with respect to the clear guidance offered by that OIG e-mail 
     and the Chief Legal Counselor. Let me state that I believe 
     that this guidance was the topic of much discussion, at 
     the time, in order to attempt to ensure a coordinated 
     approach to Congress. I understood that my Principal Legal 
     Advisor, as well as Tim Haugh of my Congressional Affairs 
     Office, discussed the issue of referring to the OIG 
     questions regarding the investigation with the OIG Chief 
     Counsel in order to clarify the position and to insure 
     that the responses were accurate. At this time, I also 
     answered the substantive questions about the AMICC matter. 
     My understanding is that both the OIG's Chief Counsel and 
     the Assistant IG assigned to investigate this matter agree 
     that the June 16 responses are accurate with respect to 
     communications with that office.
       (2) According to Richard Reback, Counselor to the Acting 
     Inspector General, Lucy Clark, the DHS Chief Legal Counselor, 
     first called him on the afternoon of June 2, 2003, and spoke 
     with him a final time on June 4, 2003. On June 4, Mr. Reback 
     sent Lucy Clark the e-mail which you provided to the 
     Committee on June 16.
       (a) Were you aware of these conversations between Lucy 
     Clark and Richard Reback? If so, when did you learn of the 
     conversations, from whom, and what were you told about the 
     conversations?
       (b) Did you ever see the text of the e-mail that Mr. Reback 
     sent on June 4? If so, when did you first see it, who showed 
     it to you, and how did you interpret the guidance it 
     contained?
       Response: I was aware that Lucy Clark was in contact with 
     Richard Reback prior to my June 5 confirmation hearing. Prior 
     to my June 5 confirmation, I received a copy of this e-mail, 
     I believe through my Principal Legal Advisor. On advice of 
     DHS counsel, I interpreted this e-mail and the guidance that 
     it would be inappropriate to answer any questions other than 
     to refer the questioner to the OIG as directed in the e-mail.
       (3) On what did you base your statement that you had been 
     directed not to answer the questions?
       Response: I based my answer on the e-mail from the OIG 
     counsel stating that I should respond to questions by stating 
     ``The OIG has asked that any questions relating to this 
     matter be directed to them,'' and on advice of the Chief 
     Legal Counselor that ``in the context of his confirmation 
     hearing, the OIG responded [in response to a request from the 
     Office of General Counsel] that Mr. Garcia should refer all 
     questions related to this matter to the OIG.'' Moreover, I 
     was advised ``it would be inappropriate for him to make any 
     comments on this matter during the confirmation process other 
     than to refer such questions to the OIG.'' (See, Letter of 
     Lucy Clark, Chief Legal Counsel to DHS, to Senator Joseph 
     Lieberman, dated June 16, 2003.)
       (4) Lisa Redman says she told Mark Wallace on the morning 
     of June 16 that he had misrepresented the position of the 
     Office of the Inspector General in preparing your earlier 
     answers. She refused his request to change her responses to 
     make them consistent with your answers. The answers you 
     submitted later that night did not reflect this conversation, 
     but instead held to the answers the IG's office had rejected. 
     The questions I sent you on June 13 specifically noted that 
     the IG's office had denied having the communications you 
     earlier described.
       (a) Were you ever aware of the conversation between Mark 
     Wallace and Lisa Redman? If so, when did you learn of the 
     conversation, from whom, and what were you told about the 
     conversation?
       Response: At some point on June 16, I became aware that the 
     ICE Principal Legal Advisor was engaged in conversation with 
     the Office of Inspector General and was in contact with the 
     Department's Chief Legal Counselor. I was not aware of the 
     substance of the particular conversation referenced in your 
     July 8 questions. I was aware of the conflicting 
     interpretations of the OIG policy as outlined in your June 13 
     letter. As I understood it, the point of the conversations 
     between the Department's Chief Legal Counselor, my Principal 
     Legal Advisor, and the Office of Inspector General were aimed 
     at clarifying the OIG position regarding questions related to 
     the Texas matter and to ensure that the answers submitted on 
     June 16 were accurate. I understand that the OIG agrees that 
     the June 16 answers are accurate.
       (b) Why did you claim in your answers of June 16 that Mr. 
     Reback's e-mail was the basis for your understanding that you 
     had been ``directed'' not to answer questions on the Texas 
     matter, despite Lisa Redman's disavowal of that claim?
       Response: Mr. Reback's earlier e-mail (stating that I could 
     use the following questions if asked about the State 
     legislator issue: ``The Office of Inspector General (OIG) has 
     asked that any questions relating to this matter be directed 
     to them.'') was the primary basis for my earlier answers, in 
     addition to the guidance of the Department's Chief Legal 
     Counselor. At the time I answered the June 13 questions, I 
     had no indication that Ms. Redmon or anyone else at the OIG 
     interpreted that guidance in any other way nor, given the 
     plain language of that text, did I have any reason to do so. 
     The June 16 questions were directed to the basis for my June 
     13 answers. I understand that Ms. Redmon of the OIG did not 
     express her view regarding OIG policy until June 16--not June 
     13 as she had erroneously claimed previously.
       (c) Why did your answers of June 16 refer to the e-mail 
     Lucy Clark received from Richard Reback, but fail to mention 
     the conversation Mark Wallace had with Lisa Redman?
       Response: The e-mail from Reback appeared to state plainly 
     the OIG position (``The Office of Inspector General (OIG) has 
     asked that any questions relating to this matter be directed 
     to them.''). At no time prior to June 16 did I have any 
     indication that Ms. Redmon interpreted that guidance to mean 
     I was free to answer questions based upon my personal 
     knowledge or what others had said to me. Nor was such leeway 
     in any way apparent from the text of the e-mail. My June 16 
     answers were in response to questions aimed at tracking the 
     basis for my June 13 responses (and as stated the basis for 
     those was the Reback e-mail and guidance from Lucy Clark).
       Please indicate whether you are aware of any other person 
     employed by the IG's office discussing this matter with you 
     or with DHS personnel acting on your behalf. If you are aware 
     of any such discussions, please indicate who had the 
     discussion, who initiated it, when it occurred, and, to the 
     extent you know, the contents of the discussion.
       Response: No, only Lisa Redman and Richard Reback.
       (6) What role did Mark Wallace play in drafting each set of 
     your written answers? Who else contributed to the drafting of 
     the answers relating to this matter? What efforts did you 
     make to independently confirm the accuracy of the answers you 
     provided on May 30, June 13, and June 16 with respect to the 
     Texas matter?
       Response: as stated, following standard procedure, the 
     written answers like all testimony were cleared through the 
     following DHS offices: Legislative Affairs, Office of General 
     Counsel, and Office of the Secretary. Additionally, ICE 
     Legislative Affairs (Tim Haugh, Acting Director, and ICE 
     Legal (Mark Wallace, Principal Legal Advisor) reviewed the 
     draft answers. In answering the questions related to the 
     Texas matter, I relied upon the advice of legal counsel, the 
     OIG e-mail, and the fact that the answers were ``cleared'' 
     through DHS.
       (7) With respect to each of the answers you provided on May 
     30, June 13, and June 16 relating to the Texas matter, do you 
     now believe the answers you submitted were accurate? Please 
     explain the basis for your conclusions.
       Response: Yes--for the reasons explained above.
       Based on what you now know, do you still believe that ``the 
     IG's office directed that it would not be appropriate to 
     comment on this issue''? If so, how do you explain the 
     statements to the contrary by officials from the Office of 
     the Inspector General? Please explain the basis for your 
     conclusion.
       Response: The Office of Inspector General stated in an e-
     mail in response to a request for guidance as follows: 
     ``Attached is the language Mr. Garcia can use if questioned 
     on the Texas State legislators issue.'' The attachment read: 
     ``My office referred this matter to the department's Office 
     of inspector General (OIG) on the evening of May 15, 2003. 
     The OIG has asked that any questions relating to this 
     matter be directed to them.'' I believe that I took the 
     appropriate step by having counsel seek guidance from the 
     AMICC

[[Page S16077]]

     regarding the appropriate answer to questions related to 
     an investigation the OIG was conducting. Given that the 
     OIG guidance at the time `'asked'' for question to be 
     ``directed to them'' and an OIG only subsequently 
     suggested different guidance, I believe that directing 
     questions to the OIG was appropriate at the time. I also 
     believe that better communication between OIG and ICE, 
     especially when presented with an inquiry from Congress, 
     is critical and I am committed to facilitating such 
     communication in the future.
       (9) Both the IG's Counsel and the Assistant IG for 
     Investigations have stated that they don't have the authority 
     to direct a Department employee not to answer Congressional 
     inquiries. Do you still believe that an IG's office has the 
     authority to direct you not to provide information to 
     Congress? If so, what is the legal basis for that claim?
       Response: I will be guided by the OIG's interpretation 
     regarding its authority and will ensure proper coordination 
     with that office.
       (10) As you may know, Congress has frequently conducted 
     inquiries into agency matters in which there were also IG 
     investigations. Do you nevertheless believe that the pendency 
     of an IG investigation precludes you or other agency 
     officials from responding to Congressional information 
     requests? If so, what is the legal basis for that claim?
       Response: I would be guided by the OIG with respect to 
     commenting on such matters. Again, I believe better internal 
     coordination on this issue would avoid any conflict in 
     providing responsive answers to Congress.
       (11) Please provide any additional information you believe 
     might be helpful to clarify the Committee's record on this 
     matter.
       Response: I would add that at all times in responding to 
     your questions I was guided by a sincere desire not to in any 
     way interfere with an ongoing criminal investigation, one of 
     high sensitivity and one which I had referred to the IG. At 
     no time did I intend to evade answers or to in any way 
     challenge the authority of Congress to inquire into such 
     matters. I responded based upon what I reasonably believed 
     was the guidance from the OIG and counsel. I would be happy 
     to discuss this matter with you further if you feel that such 
     a meeting would be helpful.
  Mr. FRIST. Mr. President, as the 108th Congress draws to a close, I 
would like to take a few moments to reflect on the tremendous progress 
this Senate has made in moving America forward. Leading the Senate is 
an honor and a pleasure, made all the more so by working with such 
talented people. I thank my fellow Senators for their dedication. It 
has been an exceptional legislative year.
  Back in January, we set an ambitious agenda. We resolved to put the 
economy back on track; lend critical support to the war on terror; and 
promote public health here at home and abroad. Our mission was to 
expand freedom and opportunity, and strengthen America's security.
  In 11 short months we have made major strides towards those goals. 
And we did so by respecting the longstanding Senate values of civility 
and trust, by building strong and reliable relationships, and by 
committing ourselves to action. Each of us can go home this holiday 
season proud of our accomplishments.
  We first set to work passing spending bills left undone by the 
previous Congress. We passed 11 of those bills in just 3 weeks.
  We also passed a budget to establish a blueprint for creating jobs, 
investing in homeland security and education, providing Medicare 
prescription drug coverage and offering health insurance for our most 
vulnerable citizens, America's children.
  With that unfinished business of the last Congress complete, we 
turned our attention to the President's jobs and growth agenda.
  Under the President's leadership, we passed $350 billion in tax 
relief, the third largest tax cut in history. We cut taxes, across the 
board, for 136 million hard-working, tax-paying Americans.
  For America's families, we increased the child tax credit from $600 
per child to $1000 per child, and made sure that money was sent out 
right away. As a result, this summer, 25 million families received 
checks from the United States Treasury of up to $400 per child. In 
total, we returned $13.7 billion to families across the country.
  But that was just the start.
  Under the Jobs and Growth Act of 2003, a family of four making 
$40,000 will see their taxes reduced by $1,133 this year.
  Of the $350 billion in tax cuts and fiscal relief, nearly $200 
billion, fully 60 percent, is provided this year and next.
  Some critics of the tax cut say $1,300 is not a lot of money, that it 
would not make much difference if the bureaucrats took it away again. 
Tell that to the family working hard to raise their children, keep up 
with household expenses, and have a something left over for a family 
vacation. I am fairly certain the United States Treasury did not get a 
flurry of child tax credit checks in the mail from families who said 
they didn't need it.
  Small business owners, too, got a major boost from the tax package. 
Twenty-three million small business owners who pay taxes at the 
individual rate saw their taxes lowered. And we quadrupled the expense 
deduction for small business investment.
  Small business owners are the heart of the American marketplace. 
Workers and consumers depend on the small business sector to generate 
jobs, products, and services. These innovators create 60 to 80 percent 
of new jobs nationwide, and they generate more than 50 percent of the 
gross domestic product.
  By cutting their taxes and encouraging investment, we have helped 
unleash their tremendous economic power.
  Taken together, this year's tax cut and the tax cuts of 2001 are 
providing an astonishing $1.7 trillion in tax relief over the next 
decade. And we are already beginning to see the results. We are now in 
the midst of a strong economic recovery. Consumers have more money in 
their pockets. And businesses are, once again, optimistic about the 
direction of the economy.
  Economic growth in the third quarter soared at an incredible 8.2 
percent annual rate. This is the largest third quarter increase since 
1984.
  Real disposable income is up 7.2 percent for the third quarter, and 
consumer spending is up a whopping 6.6 percent, the biggest third 
quarter growth since 1988.
  Last month, sales of previously owned homes hit their third-highest 
level on record. The National Association of Realtors reports that 
previously owned home sales rose 3.6 percent to a record annual rate of 
nearly 7 million units in September. Meanwhile, housing starts are 
nearing a 17 year high.
  The association credits this phenomenal growth to ``the powerful 
fundamentals that are driving the housing market, household growth, low 
interest rates and an improving economy.''
  This is great news for America's families and for America's 
businesses. When a family buys a home, that not only benefits the 
community, it sets off a chain of purchases that fuel the economy: 
living room furniture, kitchen appliances, washer and dryer, and on and 
on. In short, many other industries benefit from the one family's 
momentous and gratifying decision to buy a home.
  Not only is individual consumption up, the business sector is showing 
impressive signs of recovery, as well. Non-residential investment is up 
more than 10 percent. Business investment went up 11.1 percent in the 
third quarter, and productivity soared by 8.1 percent, its highest 
level in two decades.
  Businesses are rebuilding their inventories and retooling their 
factories. And all of this economic activity is ultimately leading to 
more jobs. Indeed, the labor market appears to be stabilizing and the 
economy is finally creating much needed jobs.
  Over the past 3 months, 286,000 new jobs have come on line. In 
October alone, 126,000 jobs were added.
  Meanwhile, since the tax cut, initial claims for unemployment 
insurance have gone down more than 10 percent. For the seek ending 
November 1, unemployment claims hit a 34-month low. There is more 
progress to be made on this front, but we are on our way towards 
putting Americans back to work.
  And, finally, there is good news for individual State treasuries. 
Their budget gap of nearly $20 billion at the beginning of last fiscal 
year has now declined to a budget gap of less than $3 billion for the 
beginning of this fiscal year. States are beginning to see ``revenue 
surprises'' in their estimates.
  Consumers and businesses, alike, are optimistic about the America's 
economic direction. Inflation and interest rates are low. American 
taxpayers have more of their hard earned money to spend and save as 
they choose.
  We will continue to champion policies that strengthen the economy and 
create jobs. We will continue to pursue fair and free trade policies 
that increase consumer buying power and stoke the economic furnace.

  This session we passed the free trade agreements with Chile and 
Singapore.

[[Page S16078]]

Simultaneously, export grew 9.3 percent in the third quarter, another 
marker of our renewed economy.
  We will continue to fulfill our mission to maximize freedom and 
expand opportunity.
  Which leads me to national security. Our mission to expand freedom 
and opportunity applies not just to our economy, but to our national 
security, as well. Freedom cannot find its fullest expression under the 
threat of terror. But, likewise, terror can not spread where freedom 
reigns.
  That is why, this year, America took the extraordinary action of 
toppling Saddam Hussein and his terrorist-sponsoring regime. In 3 short 
weeks, the men and women of the United States military, with the 
support of 49 nations, swept to Baghdad, ending three decades of 
ruthless Ba'ath Party rule and support for terror.
  In the months since, our soldiers have worked tirelessly, under 
dangerous conditions, to help the Iraqi people build a democracy.
  Our soldiers have rebuilt schools, hospitals, electrical grids, 
pipelines, and roads. They are training Iraqi police forces to patrol 
the streets and hunt down terrorists. Everyday, our troops are helping 
the people of Iraq and Afghanistan move toward becoming free and open 
societies.
  To support their efforts, we passed the President's $87 billion war 
supplemental. We did so because we recognize that investing in the 
future of Iraq and Afghanistan is an investment in our security. 
September 11 taught us a cruel lesson. We learned that we cannot wait 
while storms gather. As the President has said, ``the Middle East 
region will either become a place of progress and peace, or it will 
remain a source of violence and terror.''
  This Senate took bold action to support the war on terror because we 
are determined that progress and peace take root.
  The Middle East is not the only region where we are working to bring 
stability. This session, we passed the Burmese Freedom Act and the 
Clean Diamond Act.
  And we also took the historic action of dedicating $15 billion to 
drive back the HIV/AIDS virus.
  As a Senator, as a doctor, and as a medical missionary, I am 
especially gratified by the Senate's demonstration of compassion on 
this issue. Millions of lives around the world have been cut short by 
the scourge of one tiny virus. Countries have seen entire swaths of 
their populations wiped out and children orphaned, because of the HIV 
virus that causes AIDS.
  By passing the Global HIV/AIDS bill, we help to prevent 7 million new 
infections; provide antiretroviral drugs for 2 million HIV-infected 
people; care for 10 million HIV-infected individuals and AIDS orphans; 
and bring hope to millions of people around the world who are living in 
the shadow of this devastating disease.
  Our work in passing this critical legislation demonstrates that we 
are a country that places a high value on life. History will judge how 
we chose to respond. We can proudly say that we made the right choice 
and took the necessary actions to put an end to one of the worst 
plagues in recorded history.

  We also made the right choice to end partial birth abortion. Partial 
birth abortion is a fringe procedure. It is not taught in medical 
schools. And now, it never will be. With an overwhelming majority, we 
voted to end an immoral procedure, and said ``yes'' to life.
  Indeed, this Senate can be proud of our efforts to protect the most 
vulnerable among us. In January, we passed legislation to establish a 
national AMBER Alert. Law enforcement will now have another tool to 
work with the public to find missing children. In June, we passed 
legislation to protect victims of child abuse. We also voted to extend 
welfare reform to help lift families out of poverty.
  But perhaps the most historic and far reaching legislative 
accomplishment of the 108th Senate happened this morning, when an 
overwhelming, bipartisan majority voted to enact prescription drug 
coverage for our nation's 40 million seniors and individuals with 
disabilities.
  For the first time in its 40-year history, Medicare will offer true, 
comprehensive health care coverage. This worthy program will finally be 
able to keep pace with modern medicine.
  I am deeply thankful for the cooperation, hard work and dedication of 
my colleagues to overcome years of partisan gridlock and finally offer 
America's seniors the security they need and the choices they deserve.
  Medicare reform, the Jobs and Growth tax cuts, the Iraqi war 
supplemental, the global HIV bill--we set our sights high and we more 
than exceeded expectations.
  We are moving America forward, and we will continue to do so in the 
coming months. There is much yet to be done.
  Critically, we must pass the energy bill. We have been debating 
national energy for three years. During the last Congress, we spent a 
total of 7 weeks debating energy on the Senate floor. In this Congress, 
we spent more time debating energy than any other bill. And yet, 
despite all of this, a few in the Senate continue to obstruct progress. 
And while they insist on more debate, natural gas prices continue to 
rise.
  U.S. chemical companies are closing plants, laying off workers, and 
looking to expand production abroad. The U.S. is expected to import 
approximately $9 billion more in chemicals than it exports this year. 
American consumers are getting hit with higher electric bills, and 
small businesses are struggling to contain costs. All because of rising 
energy prices. We must pass the energy plan.
  Not only will it lower prices, it will save jobs and create thousands 
more. It is estimated that this energy package will create at least 
half of a million jobs. The Alaskan pipeline alone will create at least 
400,000. The hundreds of millions of dollars that will be invested in 
research and development of new technologies will not only benefit the 
environment, but will create new jobs in engineering, math, chemistry, 
physics, and science.
  We cannot allow the obstruction of a few in the Senate continue to 
harm the interests of millions of Americans. And I use the word 
``obstruction,'' because we have seen it used to an alarming degree in 
this Congress, nowhere more so than in the consideration of the 
President's judicial nominees.
  Only 2 weeks ago, we had an historic, around the clock, 40 hour 
debate. And after 40 full hours of debate, the minority continued to 
block an up or down vote. This is partisan obstruction pure and simple. 
A minority of Senators is denying all 100 our Constitutional duty to 
advise and consent.

  When we return in January, we will continue to press this issue. 
Nothing less than the United States Constitution is at stake.
  We will also continue to press for policies that expand and 
strengthen our economy. This session, we passed smart, pro-growth 
fiscal policy. We are already beginning to see the results. But there 
is still much to do.
  Frivolous lawsuits are clogging the State courts, wasting taxpayer 
dollars, and inhibiting the innovation and entrepreneurship so critical 
to creating jobs. When it comes to medical malpractice, frivolous 
lawsuits are destroying access to quality health care and, literally, 
imperiling lives.
  America is country that values fairness, and we will return fairness 
to the litigation process.
  We will also work to return fairness to the tax system. We will 
continue to press for reforms that simplify the tax code. Tax payers 
shouldn't have to hire a consultant to file a tax return.
  We will also begin the exciting work of constructing the long awaited 
National Museum for African American History and Culture. America will 
finally have a museum worthy of America's sons and daughters who 
sacrificed so much and have given so profoundly.
  There is much more to do in the year ahead, and I will speak to that 
when we resume in January.
  Each day I walk into this great institution, I am humbled and 
inspired, humbled by the great men and women who have come before, and 
inspired by their example.
  In his 1862 address to Congress, President Lincoln told the assembled 
legislators that America is the world's last, best hope. Those words 
have never been more true than they are today. I am confident that we 
will face the challenges ahead with honor and courage, for the simple 
reason that we are Americans.

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