[Congressional Record Volume 161, Number 182 (Tuesday, December 15, 2015)]
[Senate]
[Pages S8665-S8672]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
UNANIMOUS CONSENT REQUEST--S. 579
Mrs. McCASKILL. Mr. President, I am on the floor this afternoon to
talk about S. 579, which is called the Inspector General Empowerment
Act, but it really ought to be called ``Let the inspectors general do
their jobs.''
As I look back on my time as a State auditor and I think of all I
learned about how government works well and how government behaves
badly, I have a special point of respect for inspectors general because
of the work I did as an auditor. I believe they are our first line of
defense against waste, fraud, and abuse of taxpayer dollars. We should
be helping them every way we can to do their jobs.
I want to thank Senator Johnson, the chairman of the committee I
serve on that has primary jurisdiction on government oversight, and I
want to thank Senator Grassley for his long championing the cause of
inspectors general and the GAO and all of the noble public servants who
are out there every day trying to uncover government behaving badly.
This bill serves three main purposes. It provides additional
authority to inspectors general to enhance their ability to conduct
oversight investigations. It reforms the process by which the Council
of the Inspectors General integrity committee investigates accusations
against IGs, which is very important. IGs need to be above reproach.
Any whiff of politics, any whiff of unethical conduct, any whiff of
self-dealing--we have to empower the Council of the Inspectors General
to deal with that in a way that is effective.
It restores the intent of the 1978 Inspectors General Act to ensure
that IGs have timely access to documents they need to conduct good,
comprehensive oversight audits and investigations.
[[Page S8666]]
Many of the provisions are authorities that the IGs have been seeking
for a long time, and most of them are beyond noncontroversial.
I wish to focus on one section of the bill for a minute and explain
how critical its provision is to congressional overseers and for the
taxpayers. The main issue I wish to talk about today is the section of
the bill that ensures IGs have access to all agency documents. The
Inspector General Act, which was passed in 1978, explicitly grants
access to ``all records, reports, audits, reviews, documents, papers,
recommendations, or other material.''
For the last 37 years, we lived in a world where ``all'' meant all.
But this summer, the Department of Justice Office of Legal Counsel
issued an opinion that allows agencies to withhold documents from the
inspectors general. Other than national security concerns, intelligence
concerns, and statutes that explicitly restrict disclosure of documents
to IGs, all of which are addressed by this bill, there is absolutely no
reason that IGs should have their access to documents restricted. There
is no universe in which the Inspector General Act should be interpreted
to mean anything less than what it says. They have to have access to
the documents or they can't do their work. It really isn't any more
complicated than that.
The convoluted legal reasoning that is being implemented by the
counsel at the Department of Justice is a big step backwards for
effective oversight of our government. We can't expect them to do their
jobs well without fear or favor if they can't get access to the
information that is vital to their work.
When the auditors in my office came back with an access issue, my
instruction to them was this: Well, get on your ``dog with a bone
act,'' because if they are trying to withhold documents from you, there
is something in those documents we need to see.
I think if every agency knows that the inspector general has access
to documents, it will have a deterrent effect on people behaving badly
with taxpayer money or engaging in self-dealing or other activities
that frustrate taxpayers and heighten the level of cynicism that,
frankly, right now is breaking my heart in this country about our
government.
I join with my Republican colleagues today in asking unanimous
consent for this bill to be brought up. We have worked on it for years.
It is time. I appreciate the hard work of both on this, and I stand
shoulder to shoulder with them trying to get this one across the finish
line.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. JOHNSON. Mr. President, I rise today to urge my colleagues to
pass S. 579, the Inspector General Empowerment Act of 2015. I want to
thank Senator McCaskill for her hard work on this and her support and
Senator Grassley for his many years as a real champion of this cause,
as well as the other bipartisan cosponsors of this legislation and for
the work their staff have done on this very important issue.
In 1978 Congress created a crucial oversight partner for all of us--
inspectors general. They are independent watchdogs embedded in each
agency, accountable only to Congress and the American people. That is
crucial. They are the American people's eyes and ears, and they are our
best partner in rooting out waste, fraud, and abuse. As an example, in
fiscal year 2014 alone, inspectors general identified $45 billion in
potential savings to the taxpayer.
What this bill aims to do is to reduce waste, fraud, and abuse by
increasing accountability and ensuring transparency. The bill exempts
inspectors general from time-consuming and independence-threatening
requirements such as the computer matching and paperwork reduction
statutes. It allows inspectors general to compel the testimony of
former agency employees or Federal contractors and grant recipients in
some administrative misconduct or civil fraud cases.
Too often we lose crucial information or have to end an investigation
because the bad actor either leaves Federal employment or is a
contractor or grantee and under current law cannot be subpoenaed. For
example, the State Department inspector general oversees the $10.5
billion the agency obligates in grants every year yet cannot compel
testimony of the grant recipients even in the event of suspected fraud
or misconduct. He can only require current agency employees to speak to
his team, which can result in an incomplete or one-sided investigation.
If we care about oversight and accountability, inspectors general must
be able to compel relevant testimony. In addition to these authorities,
the bill requires inspectors general to publish reports within 3 days
to ensure transparency and accountability.
I want to spend a little bit of time on the transparency aspect of
this. Like many places around the country, we have seen some real
problems with the VA health care system. There was a scandal in the
Tomah facility in Tomah, WI. The result of that tragedy was that people
died. I will never forget a call that I made to the surviving daughter
of Mr. Thomas Baer, a veteran who went to the Tomah facility seeking
care with stroke-like symptoms. Thomas Baer sat in the waiting room for
2 or 3 hours. He suffered a couple of strokes and died. I talked to his
surviving daughter, Candace Baer, and I will never forget the fact that
she said to me: Senator, had I only known, had I only known there were
problems with the Tomah VA health facility, I never would have taken my
father there, and my father would be alive today. That is how important
transparency and accountability is. That is what this bill restores to
the inspectors general.
Finally, the bill reiterates that inspectors general should have
access to all agency documents necessary to do their job, unless
Congress expressly denies that access by statute. The bill not only
maintains current authorities for certain agency heads to keep
inspector general work if it is necessary to preserve the country's
national security interests, it actually enhances those authorities.
In sum, this is a bipartisan commonsense cause. We all want
inspectors general to be able to do their jobs well. That is why this
bill was unanimously approved by my committee--the Senate Committee on
Homeland Security and Governmental Affairs. It is why it has 14
bipartisan cosponsors representing Committees of the Judiciary,
Appropriations, Armed Services, Energy and Natural Resources, and the
Senate Intelligence Committee.
Even retired Senator John Glenn has asked my committee to take action
to ensure inspectors general have access to documents. In the letter he
wrote to my committee and to the House oversight committee, Senator
Glenn says: ``The success of the IG Act is rooted in the principles on
which the Act is grounded--independence, direct reporting to Congress,
dedicated staff and resources, unrestricted access to agency records,
subpoena power, special protections for agency employees who cooperate
with the IG, and the ability to refer criminal matters to the
Department of Justice without clearing such referrals through the
agency.''
This is the heart of what the Inspector General Act asked for. This
is what this bill restores. I cannot imagine anything controversial
about wanting inspectors general to have access to the people and the
documents they need to do their jobs. Americans deserve an accountable,
transparent, and effective government. This is one tangible thing that
we can do to help achieve that common goal.
I urge my colleagues to pass S. 579 today.
Mr. President, I ask unanimous consent to have printed in the Record
an excellent article that appeared in the New York Times, as well as
the letter we received from Senator John Glenn.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Nov. 27, 2015]
Tighter Lid on Records Threatens to Weaken Government Watchdogs
(By Eric Lichtblau)
Washington.--Justice Department watchdogs ran into an
unexpected roadblock last year when they began examining the
role of federal drug agents in the fatal shootings of unarmed
civilians during raids in Honduras.
The Drug Enforcement Administration balked at turning over
emails from senior officials tied to the raids, according to
the department's inspector general. It took nearly a year of
wrangling before the D.E.A. was willing to turn over all its
records in a case that the inspector general said raised
``serious questions'' about agents' use of deadly force.
The continuing Honduran inquiry is one of at least 20
investigations across the government that have been slowed,
stymied or
[[Page S8667]]
sometimes closed because of a long-simmering dispute between
the Obama administration and its own watchdogs over the
shrinking access of inspectors general to confidential
records, according to records and interviews.
The impasse has hampered investigations into an array of
programs and abuse reports--from allegations of sexual
assaults in the Peace Corps to the F.B.I.'s terrorism powers,
officials said. And it has threatened to roll back more than
three decades of policy giving the watchdogs unfettered
access to ``all records'' in their investigations.
``The bottom line is that we're no longer independent,''
Michael E. Horowitz, the Justice Department inspector
general, said in an interview.
The restrictions reflect a broader effort by the Obama
administration to prevent unauthorized disclosures of
sensitive information--at the expense, some watchdogs insist,
of government oversight.
Justice Department lawyers concluded in a legal opinion
this summer that some protected records, like grand jury
transcripts, wiretap intercepts and financial credit reports,
could be kept off limits to government investigators. The
administration insists there is no intention of curtailing
investigations, but both Democrats and Republicans in
Congress have expressed alarm and are promising to restore
full access to the watchdogs.
The new restrictions grew out of a five-year-old dispute
within the Justice Department. After a series of scathing
reports by Glenn Fine, then the Justice Department inspector
general, on F.B.I. abuses in counterterrorism programs,
F.B.I. lawyers began asserting in 2010 that he could no
longer have access to certain confidential records because
they were legally protected.
That led to a series of high-level Justice Department
reviews, a new procedure for reviewing records requests and,
ultimately, a formal opinion in July from the department's
Office of Legal Counsel. That opinion, which applies to
federal agencies across the government, concluded that the
1978 law giving an inspector general access to ``all
records'' in investigations did not necessarily mean all
records when it came to material like wiretap intercepts and
grand jury reports.
The inspector-general system was created in 1978 in the
wake of Watergate as an independent check on government
abuse, and it has grown to include watchdogs at 72 federal
agencies. Their investigations have produced thousands of
often searing public reports on everything from secret
terrorism programs and disaster responses to boondoggles like
a lavish government conference in Las Vegas in 2010 that
featured a clown and a mind reader.
Not surprisingly, tensions are common between the watchdogs
and the officials they investigate. President Ronald Reagan,
in fact, fired 15 inspectors general in 1981. But a number of
scholars and investigators said the restrictions imposed by
the Obama administration reflect a new level of acrimony.
``This is by far the most aggressive assault on the
inspector general concept since the beginning,'' said Paul
Light, a New York University professor who has studied the
system. ``It's the complete evisceration of the concept. You
might as well fold them down. They've become defanged.''
While President Obama has boasted of running ``the most
transparent administration in history,'' some watchdogs say
the clampdown has scaled back scrutiny of government
programs.
``This runs against transparency,'' said the Peace Corps
inspector general, Kathy Buller.
At the Peace Corps, her office began running into problems
two years ago in an investigation into the agency's handling
of allegations of sexual assaults against overseas
volunteers. Congress mandated a review after a volunteer in
Benin was murdered in 2009; several dozen volunteers reported
that the Peace Corps ignored or mishandled sexual abuse
claims.
But Peace Corps lawyers initially refused to turn over
abuse reports, citing privacy restrictions. Even after
reaching an agreement opening up some material, Ms. Buller
said investigators have been able to get records that are
heavily redacted.
``It's been incredibly frustrating,'' she said. ``We have
spent so much time and energy arguing with the agency over
this issue.''
The Peace Corps said in a statement, however, that it was
committed to ``rigorous oversight'' and has cooperated fully
with the inspector general.
Agencies facing investigations are now sometimes relying on
the Justice Department's opinion as justification for denying
records--even records that are not specifically covered in
the opinion, officials said.
At the Commerce Department, the inspector general this year
shut down an internal audit of enforcement of international
trade agreements because the department's lawyers, citing the
Justice Department's guidance, refused to turn over business
records that they said were ``proprietary'' and protected.
The Environmental Protection Agency's inspector general has
reported a series of struggles with the organization over its
access to documents, including records the agency said were
classified or covered by attorney-client privilege. And
investigators at the Postal Service, a special Afghanistan
reconstruction board, and other federal agencies have
complained of tightened restrictions on investigative records
as well.
Hopes of a quick end to the impasse have dimmed in recent
days after the Obama administration volunteered to restore
full access for the Justice Department's inspector general--
but not the other 71 watchdogs.
Attorney General Loretta E. Lynch, asked about the issue at
a House hearing last week, said the proposal was intended to
ensure, at least at the Justice Department, ``that the
inspector general would receive all the information he
needed.''
But watchdogs outside the Justice Department said they
would be left dependent on the whims of agency officials in
their investigations.
``It's no fix at all,'' said Senator Charles E. Grassley,
Republican of Iowa, who leads the Judiciary Committee.
In a rare show of bipartisanship, the administration has
drawn scorn from Democrats and Republicans. The Obama
administration's stance has ``blocked what was once a free
flow of information'' to the watchdogs, Senator Patrick J.
Leahy of Vermont, the ranking Democrat on the Judiciary
Committee, said at a hearing.
A Justice Department spokeswoman, Emily Pierce, said in a
statement on Friday: ``Justice Department leadership has
issued policy guidance to ensure that our inspector general
gets the documents he requests as quickly as possible, even
when those documents are protected by other statutes
protecting sensitive information. The department is unaware
of any instance in which the inspector general has sought
access to documents or information protected from disclosure
by statute and did not receive them.''
Nowhere has the fallout over the dispute been felt more
acutely than at the Justice Department, where the inspector
general's office said 14 investigations had been hindered by
the restricted access.
These include investigations into the F.B.I.'s use of phone
records collected by the National Security Agency, the
government's sharing of intelligence information before the
2013 Boston Marathon bombings, a notorious gun-tracing
operation known as ``Fast and Furious'' and the deadly
Honduran drug raids.
In the case of the Honduran raids, the inspector general
has been trying to piece together the exact role of D.E.A.
agents in participating in, or even leading, a series of
controversial drug raids there beginning in 2011.
Details of what happened remain sketchy even today, but
drug agents in a helicopter in 2012 reportedly killed four
unarmed villagers in a boat, including a pregnant woman and a
14-year-old boy, during a raid on suspected drug smugglers in
northeastern Honduras. They also shot down several private
planes--suspected of carrying drugs--in possible violation of
international law.
An investigation by the Honduran government cleared
American agents of responsibility. But when the inspector
general began examining the case last year, D.E.A. officials
refused to turn over emails on the episodes from senior
executives, the inspector general's office said. Only after
more than 11 months of back-and-forth negotiations were all
the records turned over.
The D.E.A. refused to comment on the case, citing the
investigation. A senior Justice Department official, speaking
on the condition of anonymity because of the continuing
review, said the refusal to turn over the records was the
flawed result of ``a culture within the D.E.A.'' at the
time--and not the result of the Justice Department's new
legal restrictions.
Mr. Horowitz, the inspector general, said the long delay
was a significant setback to his investigation. He now hopes
to complete the Honduran review early next year.
In the meantime, the watchdogs say they are looking to
Congress to intervene in a dispute with the administration
that has become increasingly messy.
``It's essential to enshrine in the law that the inspector
general has access to all agency records,'' said Mr. Fine,
who is now the Pentagon's principal deputy inspector general.
``The underlying principle is key: To be an effective
inspector general, you need the right to receive timely
access to all agency records.''
____
July 23, 2015.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental
Affairs.
Hon. Jason Chaffetz,
Chairman, Committee on Oversight and Government Reform.
Dear Senator Johnson and Representative Chaffetz: Since the
enactment of the Inspector General Act in 1978, the
Inspectors General have provided independent oversight of
government programs and operations and pursued prosecution of
criminal activity against the government's interests.
Recommendations from IG audits have led to improvements in
the economy and efficiency of government programs that have
resulted in better delivery of needed services to countless
citizens. Investigations of those who violate the public
trust to enrich themselves at the expense of honest
taxpayers, of contractors who skirt the rules to illegally
inflate their profits, and of others who devise criminal
schemes to defraud the government have led to billions of
dollars being returned to the U.S. Treasury.
The success of the IG Act is rooted in the principles on
which the Act is grounded--independence, direct reporting to
Congress, dedicated staff and resources, unrestricted access
to agency records, subpoena power, special protections for
agency employees who cooperate with the IG, and the ability
[[Page S8668]]
to refer criminal matters to the Department of Justice
without clearing such referrals through the agency. We
considered these safeguards to be vital when we developed the
Act and they remain essential today. No other entity within
government has the unique role and responsibility of
Inspectors General, and their ability to accomplish their
critical mission depends on the preservation of the
principles underlying the Inspector General Act.
In recent years, IGs have experienced challenges to their
ability to have independent access to records and information
in their host agencies. Broad independent access to such
records is a fundamental tenet in the IG Act and to
compromise or in any way erode such access would strike at
the heart of important law. In short, full and unfettered
access is vital to an IG's ability to effectively prevent and
detect fraud, waste, and abuse in agency programs and
activities.
The Inspector General Act has stood the test of time. The
billions of dollars recovered for the government and the
increased efficiency and effectiveness of government programs
and operations are a testament to the Act's continued
success. Any action that would impair the IG's ability to
achieve their mission--particularly the denial of full and
independent access to agency records and information--would
have an immeasurable adverse impact and severely damage their
critical oversight function. For this reason, I urge you to
take action to protect the independent access rights of
Inspectors General.
Sincerely,
John Glenn,
United States Senator (Ret.).
Mr. JOHNSON. Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, first of all, I wish to compliment
Senator McCaskill and Senator Johnson for their leadership in bringing
this bill out of their committee--a committee I don't serve on but a
bill that is very important to the oversight work of this Senator, and
I hope every Senator considers it to be very important. I would say
that I agree with everything they have said. I want to emphasize what
they said, and I want to take a few minutes to do that because I feel
strongly about this piece of legislation.
There is an important principle here--a very important principle--
that we ought to keep in mind, because it is an insult to 100 Senators
and 435 Members of the House of Representatives when legislation is
written and it is explained very clearly what that legislation is
supposed to accomplish: that an inspector general would have access to
all records. Then we have a lawyer in the Office of Legal Counsel in
the Department of Justice--one person making an interpretation of a law
that is contrary to congressional intent--that one person out of 2
million people in the executive branch of government can override the
will of 535 Members of Congress. That will was expressed way back in
1978.
This is just a little different quote from a letter Senator Johnson
has already talked about from a respected Member of this Senate for 24
or maybe 30 years, Senator John Glenn of Ohio, who was very much
interested in making sure that we had strong oversight by Congress and
that within the executive branch, they had strong oversight that the IG
would do within a specific department.
Senator John Glenn of Ohio was one of the chief architects of this
legislation. He said: ``Full and unfettered access is vital to an IG's
ability to effectively prevent and detect waste, fraud, and abuse in an
agency's programs and activities.''
Here we are with what Senator John Glenn said when he was a Member of
this body and this legislation passed. Then we have one lawyer out of 2
million executive branch employees interpreting a statute contrary to
congressional intent and then overriding it--in other words, giving
Cabinet heads opportunities to avoid doing what the inspector general
law says and what an inspector general needs to do to do their job:
have access to all records.
Senator McCaskill made that clear. Senator Johnson made that clear.
This is a bipartisan effort coming unanimously out of this committee,
that this is an egregious attack on the powers of Congress and we can't
let one person out of 2 million people in the executive branch of the
government get away with it. Yet we seem to have some problems getting
it passed. I don't understand it. You try to explain that to the people
of this country, whether it is in New York City or whether it is in Des
Moines, IA. There is no way this can be justified, that one lawyer out
of 2 million people in the executive branch of government can issue an
opinion and override the Congress of the United States.
I intend to go into some detail about how I feel about this
legislation, if my colleagues haven't come to that conclusion already.
To ensure accountability and transparency in government, Congress
created inspectors general, or IGs, as our eyes and ears within the
executive branch. That is the foresight of one famous Senator and
astronaut by the name of John Glenn. But IGs cannot do their job
without timely and independent access to all agency records. That is
why this bill is called ``all means all.'' Agencies cannot be trusted
not to restrict the flow of potentially embarrassing documents to the
IGs who oversee them. If the agencies can keep IGs in the dark, then
this Congress will be kept in the dark as well.
When Congress passed the Inspectors General Act of 1978, the Congress
explicitly said that IGs should have access to all agency records.
Inspectors general are designed to be independent but to also be part
of an agency. Inspectors general are there to help agency leadership
identify and correct waste, fraud, and abuse. What Cabinet head
wouldn't want somebody in their department to have access to all
records that show that maybe that department isn't spending money
according to congressional intent or maybe not following the law the
way Congress intended? It ought to be welcome by any administration
head.
Fights between an agency and its own inspector general over access to
documents are a waste of taxpayers' money and personnel time. The law
requires that inspectors general have access to all agency records--
precisely, by the way, to avoid these costly and time-consuming
disputes. However, since 2010, a handful of agencies, led by the FBI--
and I respect the FBI, but in this case I don't--has refused to comply
with this legal obligation.
The Justice Department claimed that the inspector general could not
access certain records until--guess what--department leadership gave
them permission to do it, even though the law says they are entitled to
all documents. Requiring private approval from agency leadership for
access to agency information undermines inspectors general
independence. That is bad enough, but it also causes wasteful delays.
After this access problem came to light, Congress took action. So we
have the 2015 Department of Justice Appropriations Act declaring--this
is Congress again declaring--that no funds should be used to deny the
inspector general timely access to all records. In other words, just
this year--or last year when the appropriations bill was passed for
2015--we had Members of Congress saying that this lawyer, out of 2
million executive branch employees, who is frustrating the will of
Congress is wrong.
This new law directed the inspector general to report to Congress
within 5 days whenever there was a failure to comply with this
requirement. In February alone, the Justice Department's IG notified
Congress of three separate occasions in which the FBI failed to provide
access to records requested for oversight investigations. IGs for the
Environmental Protection Agency, the Department of Commerce, and the
Peace Corps have experienced similar stonewalling.
Then, in July, the Justice Department's Office of Legal Counsel--that
is this one lawyer out of 2 million employees--the Office of Legal
Counsel released a memo arguing that we did not really mean ``all
records'' when we put those words in the statute. Here we have somebody
in the Justice Department--one person out of 2 million employees--
trying to tell 535 Members of Congress what they meant when they said
``all'' means all. So let me be clear. We meant what we said in the IG
act: ``All records'' really means all records.
I told my colleagues about the Department of Justice Appropriations
Act responding to this a year ago. Well, 1 week after this report was
issued, that the Office of Legal Counsel issued its awful legal
opinion, Senator Mikulski and Senator Shelby--both outstanding members
of the Committee on Appropriations--sent a letter to the Justice
Department correcting the Office of Legal Counsel's misreading of
[[Page S8669]]
the appropriations rider, also known as section 218. I would like to
read from the Mikulski and Shelby letter:
We write to inform you that the OLC's interpretation of
section 218 is wrong and the subsequent conclusion of our
committee's intention is wrong. We expect the department and
all of its agencies to fully comply with section 218 and to
provide the Office of Inspector General with full and
immediate access to all records, documents, and other
materials in accordance with section 6(a) of the Inspectors
General Act.
So we wrote a statute in 1978. We have no problems with it until this
person--one lawyer out of 2 million executive branch employees--writes
an opinion saying ``all'' doesn't mean all. Then we have Members of the
body who are insulted by that interpretation, and these Members write:
No money in this appropriations bill can be used to carry out that
Office of Legal Counsel opinion. And, if they would have listened to
the members of the Appropriations Committee, Senator Johnson and
Senator McCaskill would not have to work so hard to correct a bad
opinion, contrary to congressional intent, that was written by the
Office of Legal Counsel.
I applaud my colleagues on the Appropriations Committee, particularly
Senators Mikulski and Shelby, for standing up for the inspectors
general.
In early August I chaired a Judiciary Committee hearing on the Office
of Legal Counsel opinion and the devastating impact it is already
having on the work of inspectors general across the country. Remember,
the Office of Legal Counsel is in the Justice Department. Well, we had
a Justice Department witness before our committee disagree with the
results of the Office of Legal Counsel opinion and actually support
legislative action to solve the problem.
So following the hearing, 11 of my colleagues and I sent a
bipartisan--I want to emphasize bipartisan--as well as bicameral letter
to the Department of Justice and the entire inspectors general
community. In this letter, the chairs and ranking members of the
committee of jurisdiction in both the House and the Senate asked for
specific legislative language to reaffirm that ``all'' means all. As
the witness from the Justice Department said, there ought to be
legislative language to correct this awful interpretation by one lawyer
out of 2 million employees in the executive branch, overriding 535
Members of Congress.
It took the Justice Department 3 months to respond to this letter,
and its proposed language was far too narrow to actually override this
Office of Legal Counsel opinion. However, the inspectors general
community responded to our letter within 2 weeks. In September, a
bipartisan group of Senators and I incorporated the core of this
language into the bill we are talking about today, S. 579. It is
entitled the ``Inspector General Empowerment Act of 2015.'' In total,
13 colleagues have joined me on this bill: Senators Johnson, McCaskill,
Ernst, Baldwin, Carper, Cornyn, Lankford, Collins, Ayotte, Kirk,
Mikulski, Fischer, and Wyden. It is bipartisan.
I am grateful to each of them for standing up with me for inspectors
general. I especially want to thank Senators Johnson and McCaskill, as
I have already done, but do it again for working closely with me on
this legislation from the very beginning and for their work in getting
this bill through their committee.
Let me tell you what this bill does. The Inspector General
Empowerment Act includes further clarification that Congress intended
IGs to have access to all agency records, notwithstanding any other
provision of law, unless other laws specifically state that IGs are not
to receive such access.
Let me be clear. The purpose of this provision is to nullify and
overturn this awful decision that this one lawyer in the Department of
Justice out of 2 million-plus Federal employees in the executive branch
issued this opinion. These words, notwithstanding any other provision
of law, are key to accomplishing that goal, but the bill does much more
than overturning the OLC opinion, which has been roundly criticized by
both sides of the aisle. It bolsters IG independence by preventing
agency heads from placing them on arbitrary and indefinite
administrative leave. It promotes transparency by requiring IGs to post
more of their reports online, including those involving misconduct by
senior officials that the Justice Department chose not to prosecute.
Also, the bill equips IGs with tools they need to conduct effective
investigation, such as the ability to subpoena testimony from former
Federal employees. When employees of the U.S. Government are accused of
wrongdoing or misconduct, IGs should be able to conduct a full and
thorough investigation of those allegations. Getting to the bottom of
these allegations is necessary to restore public trust. God only knows
how much restoration of public trust in the government in Washington we
have to restore. Unfortunately, employees who may have violated that
trust are often allowed to evade the IGs inquiry by simply retiring
from the government. So the bill empowers IGs to obtain testimony from
employees like that.
(Ms. AYOTTE assumed the Chair.)
Similarly, the bill helps IGs better expose waste, fraud, and abuse
by those who receive Federal funds. It enables IGs to require testimony
from government contractors, subcontractors, grantees, and subgrantees.
Currently, most IGs can subpoena documents from entities from outside
their agency. However, most cannot subpoena testimony, just documents--
although there are a few agencies that can. For example, the inspector
general for the Defense Department and the Department of Health and
Human Services already have that authority. The ability to require
witnesses outside the agency to talk to the IG can be critical in
carrying out an inspector general's statutory duties or recovering
wasted Federal funds.
The IG community recently provided me with numerous examples of
actual, real-life cases that illustrate the need to subpoena witnesses.
Madam President, I ask unanimous consent to have printed in the
Record a document that lists these accounts.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Inspectors General & Testimonial Subpoena Authority
the use of testimonial subpoena authority
Examples of when Testimonial Subpoena Authority Would Have Been Useful
Below are examples where subjects of IG oversight could
have been served with testimonial subpoena's by an Inspector
General:
1. Among a number of schemes identified during a
multiagency OIG investigation, Target owner of small
businesses submitted overlapping small business proposals to
two federal agencies and obtained funding for both projects,
approximately $500,000 from each agency. During the course of
the projects, the work funded by one of the agencies was
falsely reported out in project reports to both agencies.
National Science Foundation (NSF) OIG requested interviews
with the Target owner and two of his company's employees, and
they initially agreed through counsel to be interviewed.
However, during the first of the interviews, an employee
confessed to having destroyed company timesheets and created
new company time sheets in response to an IG subpoena, and
informed NSF OIG that he did so at the Target's request.
After that interview, the Target declined to be interviewed.
In addition, a fourth employee declined to be interviewed
about his timesheets and work performed, which would have
been relevant to the fraud scheme. NSF OIG's inability to
compel testimony negatively impacted our ability to pursue
the obstruction and other potential charges against the
Target and company employees.
2. In a matter involving a very senior level Securities and
Exchange Commission (SEC) executive, instances of serious
administrative misconduct were being investigated. During the
pendency of the investigation, which had been declined
criminally, the executive resigned and refused to cooperate
any further. As a result, the investigation was completed
without all of the investigative steps completed that would
have indicated whether the misconduct was simply the result
of a ``bad actor,'' or whether there are more systemic issues
that should be addressed by the agency. A testimonial
subpoena would ensure that the necessary investigative steps
could be completed. This is particularly important in an
agency like the SEC where employees are able to leave rather
quickly for private sector jobs (the proverbial ``revolving
door'').
3. The Peace Corps awarded a $1.5 million contract to a
small business under the 8(a) Business Development Program,
which is intended to provide eligible small disadvantaged
businesses additional opportunities to obtain certain
government contracts. The 8(a) Program requires that eligible
small businesses perform a significant portion of the
contract; however, an investigation disclosed that the small
business did not comply with that requirement. Instead, the
small business allowed a large subcontractor to perform
nearly all of the work. Because
[[Page S8670]]
Peace Corps was not in a direct contractual relationship with
the subcontractor actually performing the work, OIG had no
recourse to obtain statements of the subcontractor.
4. During a criminal investigation conducted by the
Consumer Product Safety Commission (CPSC) OIG of allegations
involving a CPSC Assistant General Counsel representing a
company obtain contracts to provide supplies to the DoD,
records were obtained from the CPSC, Department of the Army,
and DoD regarding several of the alleged (accused eventually
pled guilty to them) offenses. However, additional offenses
could not be proven as CPSC OIG had no authority to require
US based members of the foreign company to submit to
interviews or provide testimonial information. CPSC OIG
requested interviews with both senior managers and agents of
the company in question, and although they initially agreed
to be interviewed all later declined.
5. During the course of a review conducted after Fast &
Furious, DOJ OIG wanted to interview a former U.S. Attorney
in Arizona. When asked for a voluntary interview with the
then retired U.S. Attorney declined. DOJ OIG had no way to
reach the retired U.S. Attorney to elaborate on prior
statements he had made.
6. In a Farm Credit Administration OIG case where a senior
staff member retired during an investigation, it was
subsequently discovered he/she had changed official
documents, impersonated an official and committed libel and
slander, before retiring during the middle of an
investigation on other matters. The former government
employee was not receptive to interview post retirement and
due to his retirement from government service, there was no
recourse.
7. Peace Corps OIG, in the course of performing an audit of
one of the largest agency contracts, discovered that an
unauthorized subcontractor was performing the majority of the
work under the contract. The contract was misidentified as a
fixed-price contract, did not include an IG audit clause, and
the subcontractor was not in a direct contractual
relationship with Peace Corps. Peace Corps OIG was hindered
in examining potentially false or fraudulent billing by
having to rely solely on documentary subpoenas.
8. NSF OIG conducted an investigation of two professors, a
husband and wife, who both served as Principal Investigators
at a U.S. university and received grant funds from multiple
federal agencies. The Targets also had full time tenured
positions at a foreign university and used federal funds to
travel to that foreign country, without disclosing their
affiliation in either grant proposals or the U.S. university.
During the investigation, the Targets declined, through
counsel, to be interviewed. The case was declined by the U.S.
attorney's office, and ultimately by the state attorney
general's office. NSF OIG's inability to interview these
Targets negatively affected NSF OIG's ability to obtain all
relevant evidence to effectively pursue grant fraud charges
against the Targets.
9. The Farm Credit Administration OIG was advised of a
contractor who was paid by the agency for contract services
it had not provided. Attempts to contact a company
representative by mail and telephone were not productive
(telephone messages were not returned; certified mail not
answered). Fortunately, OIG was able to prevail upon the FBI
who had contacts with the company representative. Had the
contractor not responded to the FBI contacts, the OIG would
have had little recourse in obtaining information from the
contractor regarding recovery of the funds. There was a
scarce amount of information regarding bank accounts to
subpoena for financial records. A testimonial subpoena would
have been instrumental under those circumstances.
10. In three other small business grant-fraud cases pursued
by NSF OIG, three Targets declined to be interviewed
regarding apparent fraud schemes that had been identified.
Having testimonial subpoena would have provided an important
tool to more effectively pursue these cases.
i. The first Target faked letters of support for his
proposals, applied for duplicate proposals to multiple
federal agencies, listed his in-laws (over 90) as company
employees, and paid for his wife's business facility with
federal funds. Target declined to be interviewed, negatively
affecting NSF OIG's ability to fully investigate the matter.
ii. The second Target provided financial reports to NSF
that did not match his company's expenditure ledger for the
award and appeared to include personal expenditures. The
Target initially agreed to be interviewed but canceled such
interviews on multiple occasions, negatively affecting NSF
OIG's ability to fully investigate the matter.
iii. The third Target made up a fake investment company to
support a matching award from the agency, and the individual
who purportedly signed the investment letter as CFO did not
sign the letter and never heard of the fake investment
company. The Target initially agreed to be interviewed by NSF
OIG, but terminated the interview early on after
understanding the implications of the NSF OIG investigation.
Since then, he has declined to even comply with a subpoena
for documents.
a case study: DOD IG's use of testimonial subpoena authority
Testimonial subpoena authority, found at Sec. 8(i) of the
Inspector General Act of 1978, as amended, 5 U.S.C. App., was
originally provided by Sec. 1042 of the National Defense
Authorization Act of 2010, 111 Pub. L. 84.
Testimonial subpoena authority has never been delegated,
but has always been retained/exercised personally by the DoD
IG.
Internal procedures mandate that before a testimonial
subpoena is issued: (1) the witness, who cannot be a Federal
employee, must have declined a voluntary interview, (2) the
interview must be expected to produce information needed to
resolve critical issue(s) or corroborate essential facts, and
(3) the information sought cannot reasonably be obtained
through any other means.
Sec. 8(i)(3) of the IG Act requires the DoD IG notify the
Attorney General seven days before issuing a testimonial
subpoena. This notice requirement has not hindered the DoD
IG's use of its testimonial subpoena authority.
To date, since 2010, the DoD IG has considered a total of
eight testimonial subpoena requests, all in connection with
administrative investigations:
Two requests were considered but denied because they failed
to meet the internal procedures criteria.
One request, associated with the Retired Military Advisor
(RMA) administrative re-investigation, was authorized by the
DoD IG and served on the witness, a former Assistant
Secretary of Defense for Public Affairs.
Two requests, also associated with the RMA administrative
re-investigation, were authorized by the DoD IG but not
served on the witnesses, a former Secretary of Defense and a
former DoD General Counsel, because the witnesses belatedly
agreed to be interviewed voluntarily.
One request, associated with an internal administrative
review of a DCIS investigation, was authorized by the DoD IG
and served on the witness, a former DoD Deputy Inspector
General for Investigations/ Acting Chief of Staff.
One request, associated with an Audit Policy review of
DCAA, was authorized by the DoD IG but not served on the
witness, a former DCAA Director, because the witness
belatedly agreed to be interviewed voluntarily.
One request, associated with an IPO evaluation of the
transfer of ITAR controlled technology by MDA to NASA, was
authorized by the DoD IG but not served on the witness, a
former NASA contractor, because the witness belatedly agreed
to be interviewed.
Mr. GRASSLEY. Madam President, I also ask unanimous consent to have
printed in the Record a letter I received yesterday from the Project on
Government Oversight.
There being no objection, the material was ordered to be printed in
the Record, as follows:
POGO--Project on
Government Oversight,
December 14, 2015.
Hon. Chuck Grassley,
Hart Senate Office Building,
Washington, DC.
Hon. Claire McCaskill,
Hart Senate Office Building,
Washington, DC.
Dear Senator Grassley and Senator McCaskill: The Project On
Government Oversight (POGO) is a nonpartisan independent
watchdog that champions good government reforms. POGO's
investigations into corruption, misconduct, and conflicts of
interest achieve a more effective, accountable, open, and
ethical federal government. Recognizing the vital role that
Inspectors General (IG) play, POGO has investigated and
worked to improve the IG system since 2006. This work
includes multiple reports on the IG system, maintaining an IG
vacancy tracker, and working with Congress to incorporate
needed reforms in the Inspector General Act of 2008. In light
of this work, we are writing to thank you for introducing the
Inspector General Empowerment Act of 2015, and to urge
Congress to quickly pass this important legislation.
Inspectors General can make all the difference when it
comes to creating a better government, but Congress needs to
ensure that IGs have access to all the information they need
to do their job effectively. Federal agencies have begun to
unreasonably challenge IGs' statutory right to access agency
data in attempts to prevent embarrassing events from coming
to light. It is essential that Congress act quickly to pass
the Inspector General Empowerment Act of 2015 to prevent the
overbroad interpretation of restrictions on IG authority from
becoming accepted law, allowing current and future waste,
fraud, and abuse to remain hidden.
In order to serve as the eyes and ears of Congress, an IG
office must have an unrestricted view of the agency it
oversees. This principle is enshrined in Section 6(a)(1) of
the Inspector General Act, which states that each IG office
shall have ``access to all records, reports, audits, reviews,
documents, papers, recommendations, or other material . . .
which relate to programs and operations with respect to which
that Inspector General has responsibilities under this Act.''
It seems crystal clear that ``all'' means all, but some
agencies have fought back against that idea.
The most blatant rejection of ``all means all'' can be
found in the July 2015 opinion by the Department of Justice's
(DOJ) Office of Legal Counsel (OLC) that improperly limits IG
access and caters to agency resistance to necessary
oversight. If left unchallenged, this opinion will allow
agencies' incorrect interpretation of Section 6(a)(1) to
become de facto law. The OLC's opinion states that the
unfettered access afforded by Section
[[Page S8671]]
6(a) of the Inspector General Act is superseded by specific
restrictions on the dissemination of Title III, grand jury,
and FCRA information. The OLC concluded, for instance, that
the IG office may not be entitled to obtain these records
when conducting financial audits and other administrative and
civil reviews that are only tangentially related to DOJ's
criminal and law enforcement activities. POGO disagrees with
this interpretation because it rests upon a clear misreading
of the common language Congress made clear in the law.
Congressional leaders on both sides of the aisle have
rightly condemned the OLC's opinion, according to which ``all
records'' does not mean ``all records.'' POGO believes this
OLC opinion makes a mockery of the entire IG system: these
offices cannot possibly be effective watchdogs on behalf of
Congress and the American public if agencies restrict IG
access and force them to negotiate with agency leaders for
access on a case-by-case basis. Agency records provide the
raw materials IG offices need to fulfill their statutory
responsibilities. The very purpose of having an independent
IG is undermined if the office has to seek the agency's
permission in order to carry out its mission. Unless Congress
acts quickly, this OLC opinion will gut the IG system and
prevent meaningful oversight.
While many federal agencies handle records that are highly
sensitive and legitimately withheld from public
dissemination, that does not mean they should be withheld
from IG offices, or by extension from Congress, both of which
offer independent oversight and recommendations to improve
agency operations. Secret agency programs are particularly
susceptible to waste, fraud, and abuse, but IG offices cannot
uncover or correct these problems without access to agency
records. Agency actions that deny access to those records
violate our system of checks and balances, and do so unduly,
as IGs have proven they can responsibly handle sensitive
information.
For example, the DOJ Office of the Inspector General (OIG)
has shown that it can effectively and responsibly oversee the
most sensitive DOJ operations without jeopardizing law
enforcement actions. It has reviewed grand jury materials and
other sensitive records when it examined the FBI's potential
targeting of domestic advocacy groups, the FBI's efforts to
access records of reporters' toll calls during a media leak
probe, the President's Surveillance Program, and the firing
of U.S. Attorneys, among other important and high-profile
cases.
Congress needs to clarify that IG offices must be granted
access to all agency records notwithstanding any other
existing or future law or any other prohibition on
disclosure, including but not limited to: 1) the federal
rules of criminal procedure; 2) Title III; 3) the FCRA; and
4) laws such as the Kate Puzey Act that restrict the
dissemination of personally identifiable information. In
addition, Congress should specify that agencies do not waive
the attorney-client or other common law privileges when
records are turned over to IG offices. The Inspector General
Empowerment Act of 2015 addresses this issue and corrects the
troublesome OLC memo. However, until Congress passes the
bill, that memo can be and has been used to block oversight.
The bill also addresses other improper challenges to IG
access. Under the Computer Matching and Privacy Protection
Act (CMPPA), IGs must get approval from agency leaders in
order to match the computer records of one federal agency
against other federal and non-federal records. The Inspector
General Empowerment Act of 2015 would exempt IG offices from
the CMPPA so they can access records at other agencies
without getting approval from the very officials they are
supposed to oversee. Additionally, under current law, IGs can
only compel testimony from federal employees. This means that
former federal employees, contractors, or grant recipients
can refuse to testify before an IG in the course of an
investigation. This bill would provide IGs with testimonial
subpoena power over these individuals, and allow for fuller
and more effective oversight of federal programs and
agencies.
In the light of the erroneous July OLC opinion, it is
urgent that Congress act now to make sure IGs have the
ability to function as intended. Not correcting this
precedent now will cripple current and future IGs and in turn
limit Congress's and the public's ability to oversee the
executive branch and hold it accountable.
Sincerely,
Danielle Brian,
Executive Director.
Mr. GRASSLEY. Madam President, the Project on Government Oversight is
a nonpartisan, independent watchdog that has been advocating good
government reforms for decades. In this letter the Project on
Government Oversight expresses its support for this bill in general and
for provisions that equip inspectors general with the authority to
require testimony. Let it be clear that the bill also imposes
limitations on the authority of IGs to require testimony.
There are several procedural protections in place to ensure that this
authority is exercised wisely. For example, the subpoena must be
approved by a designated panel of three other IGs. It is then referred
to the Attorney General. For those IGs who can already subpoena
witnesses' testimony, I am not aware of any instances in which it has
been misused. In fact, the inspector general for the Department of
Defense has established a policy that spells out additional procedures
and safeguards to ensure the subjects of subpoenas are treated fairly.
I am confident the rest of the IG community will be just as scrupulous
in providing appropriate protection for the use of this authority. You
see, we all win when inspectors general can do their jobs. Most
importantly, the public is better served when IGs are able to shine
light in the government operation and stewardship of taxpayer dollars.
In September we attempted to pass this important bill by unanimous
consent. It has been nearly 3 months since leadership asked whether any
Senator would object. Not one Senator has put a statement in the Record
or come to the floor to object publicly. At the August Judiciary
Committee hearing, there was a clear consensus that Congress needed to
act legislatively and needed to overturn this Office of Legal Counsel
opinion that one person out of 2-plus million employees in the
executive branch overruled this 1978 act that the inspector general
ought to be entitled to all information. Every day that goes by without
fixing the opinion of the Office of Legal Counsel is another day that
watchdogs across government can be stonewalled.
At that hearing, Senator Leahy said this access problem is ``blocking
what was once a free flow of information'' and Senator Leahy called for
a permanent legislative solution. Senator Cornyn noted that the Office
of Legal Counsel opinion is ``ignoring the mandate of Congress'' and
undermining the oversight authority that Congress has under the
Constitution. Senator Tillis stated that the need to fix this access
problem was ``a blinding flash of the obvious'' and that ``we all seem
to be in violent agreement that we need to correct this.''
However, some Members raised concern about guaranteeing IGs unchecked
access to certain national security information. Fortunately, we were
able to agree on some changes to the bill that addressed those
concerns, without gutting the core of the bill. We made these
concessions so the bill can pass by unanimous consent. This Senator
thanks my colleagues who worked with me to arrive at this compromise.
As we move forward, it is important to note the following: First, I
am not aware of a single instance in which an IG has mishandled any
classified or sensitive operational information. IGs are subject to the
same restrictions on disclosing information as everyone else in the
agency they oversee.
Second, the Executive orders restricting and controlling classified
information are issued under the President's constitutional authority.
Naturally, this bill does not attempt to limit that constitutional
authority at all. It just clarifies that no law can prevent an IG from
obtaining documents from the agency it oversees unless the statute
explicitly states that IG access should be restricted. No one thinks
this statute could supersede the President's constitutional authority.
Third, there is already a provision in law that allows the Secretary
of Defense to prohibit an Inspector General review to protect vital
national security interests and to protect sensitive operational
information. We agreed to clarify that already existing provision to
include the ability to restrict access to information as well as to
prevent a review from occurring. However, we kept the language in that
provision that requires notification to Congress whenever that
authority to restrict an IG's access to information is exercised.
After making these changes, we attempted to hotline the revised bill
last week. Since then, no Senator has publicly stated any other
concerns. The cosponsors have worked hard behind the scenes over the
past 3 months in good faith to accommodate the concerns of any and all
Members willing to work with us. Now the time has come to pass this
bill. We all lose when Inspectors General are delayed or prevented from
doing their work.
I urge my colleagues to stand up for Inspectors General, overturn the
Office of Legal Counsel opinion, and restore the intent of the
Inspector General Act. All IGs should have access and timely
independent access to all agency records. The most important thing
[[Page S8672]]
is the principle that not one lawyer--that any one lawyer in the
Department of Justice or any agency of government doesn't have a right
to override the opinion of the Congress expressed in a statute so
clearly as this is expressed.
Madam President, at this time I ask unanimous consent that the Senate
proceed to the immediate consideration of Calendar No. 68, S. 579, the
Inspector General Empowerment Act of 2015; I further ask consent that
the Johnson substitute amendment be agreed to; that the bill, as
amended, be read a third time and passed and the motion to reconsider
be considered made and laid upon the table.
The PRESIDING OFFICER. Is there objection?
Mr. REID. Objection.
The PRESIDING OFFICER. Objection is heard.
Mr. GRASSLEY. Will the Senator yield for a question?
The PRESIDING OFFICER. The Senator from Iowa has the floor.
Mr. GRASSLEY. Madam President, will the Senator yield for a question?
Mr. REID. Yes.
Mr. GRASSLEY. May I ask on whose behalf the minority leader is
objecting? Is it on his own behalf or on behalf of another Senator?
Mr. REID. Other Senators are concerned about it, and I made the
objection on my behalf.
Mr. GRASSLEY. I will not question what the minority leader just said,
but it seems to me we ought to know who that Senator is besides the
minority leader because Senator Wyden and I have worked very hard over
the last 10 years, and we finally got done what we thought was a very
good measure for this body; that the people who put holds on
legislation ought to be made public, and there has been nothing in the
Record. So why don't these people have guts enough to put in the Record
their reasons and who they are? The public has a right to know that.
Mr. REID. I am it.
Mr. JOHNSON. Will the Senator yield for a question?
Mr. REID. No.
Mr. JOHNSON addressed the Chair.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. JOHNSON. Madam President, I want to rise and voice my
disappointment. This is a very commonsense piece of legislation that
has strong bipartisan support. Senator Grassley has worked tirelessly
on this and certainly our committee has as well. We cannot get a
simple, commonsense bipartisan piece of legislation passed by the
Senate--and then the insult of not even hearing what the objection is.
What is the objection to giving the inspectors general the tools they
need to provide the accountability and the transparency to safeguard
American taxpayer money?
I cited my example of the Potomac Healthcare system, the Potomac VA
health care system, where because an inspector general was not
transparent because the VA inspector general held 140 reports on
inspections and investigations, the family of Thomas Baer did not
realize there were problems. They took their father to that health care
facility and their father died of a stroke because of neglect. That is
how important this is. Yet we cannot even hear the reason behind the
objection as to why they would not allow this very commonsense piece of
legislation to pass.
This is very disappointing.
With that, I yield the floor.
Mr. GRASSLEY. I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Gardner). The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRASSLEY. Mr. President, I have a unanimous consent request.
____________________