[Congressional Record (Bound Edition), Volume 147 (2001), Part 11]
[Senate]
[Pages 16089-16090]
[From the U.S. Government Publishing Office, www.gpo.gov]



        FURTHER INVESTIGATION OF THE FBI'S ACTIONS AT RUBY RIDGE

  Mr. GRASSLEY. Mr. President, I rise today to discuss the need to 
revisit an unfortunate chapter in the FBI's history: the investigation 
of the FBI's actions at Ruby Ridge.
  While there have been a number of internal investigations of the 
FBI's actions at Ruby Ridge, the most recent investigation, sponsored 
by the Justice Management Division of the Department of Justice, was 
completed in 1999. The results of this investigation have raised 
serious questions about the integrity of the previous joint 
investigation by the Department of Justice and the FBI, which was 
completed in 1993. Among these questions is whether FBI supervisors who 
headed that previous investigation were personal friends of some of the 
senior executives they were investigating. These questions, and many 
others, were raised in the testimony of four FBI Agents who appeared at 
a Judiciary Committee Hearing on FBI Oversight, chaired by Senator 
Leahy, last month. These exemplary Agents exposed the double standard 
that has existed in how rank and file FBI Agents are punished versus 
FBI Senior Officials.
  So, you might think that the Justice Management Division's report 
would have cleared this matter up. Well, you'd be wrong. As a matter of 
fact, most of us didn't even realize the existence of this report until 
it was brought to light by the testimony of these Agents. It was also 
then that we found that Justice Management sat on this report for two 
years before releasing it internally in January of this year. And, 
despite clear and convincing evidence of irregularities in how FBI 
officials have been punished in this matter, Justice Management 
division has ruled that no new discipline would be imposed against any 
FBI personnel. One of the FBI Agents testifying at the hearing 
described this decision as ``outrageous'' and ``alarming.''
  Three weeks ago, I joined Chairman Leahy and Senator Specter in 
requesting documents relating to the Justice Management Division's 
report. While the Department of Justice was responsive in providing the 
requested materials, many of these documents were subject to protection 
under the privacy act and our staffs could only review them for a short 
period of time.
  Once again, Senator Specter and I have joined Chairman Leahy, along 
with Ranking Member Hatch, and Senator Kohl, to request that these 
documents be provided again, this time with appropriate redactions to 
comply with Privacy act concerns. I ask that this letter be made part 
of the Record.
  Less than twenty-four hours ago we confirmed the nomination of Robert 
Mueller to head the Federal Bureau of Investigation. In his testimony 
before the Senate Judiciary Committee, Mr. Mueller stated, as their new 
Director, the FBI would be honest and forthright about mistakes. While, 
I understand that the mistakes of Ruby Ridge did not occur on Mr. 
Mueller's watch I truly believe that the FBI will never truly make a 
clean break with the past unless matters such as these are resolved.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                    Washington, DC, July 27, 2001.
     Hon. John Ashcroft,
     Attorney General, Department of Justice, Washington, DC.
       Dear General Ashcroft: As you are aware, the Senate 
     Judiciary Committee is conducting oversight hearings on the 
     Federal Bureau of Investigation. At our hearing last week, 
     three present FBI agents and one former agent testified that 
     there is a widespread perception among FBI agents that a 
     ``double standard'' has been applied in FBI internal 
     disciplinary decisions, with members of the FBI's senior 
     executive service receiving far lighter punishment than line 
     agents for similar infractions.
       As a case in point, the witnesses cited the various 
     internal investigations that the FBI conducted into the 1992 
     incident at Ruby Ridge. A 1993 investigation conducted by a 
     DOJ/FBI task force led to the imposition of discipline 
     against 12 FBI employees in 1995. However, information that 
     subsequently came to light has called into question the 
     integrity of that internal investigation. It was alleged for 
     example, that FBI supervisors who headed the internal 
     investigation were personal friends of some of the senior 
     executives they were investigating and that they failed to 
     take basic investigative steps that would have uncovered 
     significant new evidence on questions such as who had 
     approved the FBI's rules of engagement during the Ruby Ridge 
     siege. Based upon this new information, the Office of 
     Professional Responsibility for the Department of Justice and 
     a Task Force of the Justice Management Division recommended 
     in 1999 that two FBI senior executives be suspended and that 
     the FBI Director and one other FBI agent be censured. They 
     also recommended that discipline imposed in 1995 on three FBI 
     agents be rescinded because of procedural irregularities in 
     their disciplinary proceedings as well as exculpatory 
     evidence that had subsequently been developed. However, in 
     January of 2001, the outgoing Assistant Attorney General for 
     the Justice Management Division ruled that no new discipline 
     would be imposed against any FBI agents and that no 
     previously-imposed discipline would be rescinded. One of the 
     agents at our hearing described this decision as 
     ``outrageous'' and ``alarming.''
       In order to evaluate these issues, we requested the 
     production of documents relating to the Justice Management 
     Division's disciplinary decision. The Department of Justice's 
     Office of Legislative Affairs provided our Committee with 
     outstanding cooperation and managed to pull together the 
     requested material in a short period of time. However, 
     because the material contained information that was subject 
     to protection under the Privacy Act, we agreed to return all 
     of the material, with the exception of one document, at the 
     conclusion of the hearing. We have requested, however, that 
     the Office of Legislative Affairs provide us with copies of 
     these documents with appropriate redactions to comply with 
     Privacy Act concerns.
       Although our review of this material has necessarily been 
     limited by time constraints, what we have seen thus far has 
     confirmed that this material is relevant to the issues that 
     our Committee is examining, including the Justice Management 
     Division's January 2001 decision. It appears that the former 
     Assistant Attorney General's decision was based entirely upon 
     an April 17, 2000 memorandum by two Deputy Assistant 
     Attorneys General. That memorandum contains some surprising 
     conclusions. For example, the memorandum appears to conclude 
     that the FBI's rules of engagement at Ruby Ridge were not 
     contrary to any established Department of Justice policy. As 
     you may know, the Senate Subcommittee on Terrorism, 
     Technology and Government Information, after conducting 
     extensive hearings on the Ruby Ridge incident in 1995, 
     concluded that the rules of engagement were clearly 
     unconstitutional and contrary to the FBI's policy on the use 
     of deadly force. Indeed, the illegality of the rules of 
     engagement was conceded in testimony before the Subcommittee 
     by former Deputy Attorney General Gorelick and former FBI 
     Director Louis Freeh. Further, two FBI agents were 
     disciplined in 1995 for their part in promulgating the rules 
     of engagement, precisely because the rules were inconsistent 
     with established FBI policy on the use of deadly force. It is 
     therefore mystifying how anyone could still believe that the 
     rules of engagement were lawful.
       The April 17 memorandum raises other troubling issues. For 
     example, the authors concluded that no discipline was 
     appropriate for senior FBI executives who conducted 
     incomplete investigations into the Ruby Ridge matter because 
     there was insufficient proof that their failures were the 
     result of intentional misconduct. However, under the 
     precedents employed by both the Department of Justice's and 
     the FBI's OPR, intentional misconduct has, in our view, never 
     been a prerequisite for imposing internal discipline; rather, 
     it has been sufficient that an FBI employee acted in reckless 
     disregard of an obligation or standard imposed by law, 
     applicable rule of professional conduct, or Department 
     regulation or policy. For example, according to other 
     documents we have

[[Page 16090]]

     reviewed, it appears that an FBI Inspector who prepared the 
     Ruby Ridge shooting incident report in September 1992 was 
     suspended for five days because Director Freeh found that his 
     analysis of the justification for the shootings was incorrect 
     and incomplete and because his report showed ``inattention to 
     detail'' in referring, for example, to Vicki Weaver as 
     ``Vicki Harris.'' It is difficult to square the suspension 
     imposed on this lower-level FBI employee with the ruling of 
     the Justice Management Division that no discipline may be 
     imposed on senior FBI executives in the absence of proof of 
     intentional misconduct.
       We, of course, understand that none of thee matters 
     occurred under your watch. However, we believe that it is 
     important for our Committee to review carefully how decisions 
     on matters of internal discipline are made within the FBI. As 
     we are sure you can appreciate, the poisonous perception that 
     there is a double standard being applied threatens to 
     undermine FBI morale as well as public confidence. We would 
     therefore appreciate your providing us with appropriately-
     redacted copies of the documents previously produced to our 
     Committee as soon as possible. In its report on Ruby Ridge 
     filed in December of 1995, the Subcommittee on Terrorism, 
     Technology and Government Information noted that allegations 
     of a cover-up in Ruby Ridge were then under investigation by 
     the Department of Justice, but that ``a full public airing of 
     this matter must eventually be undertaken'' and that ``the 
     Subcommittee will consider additional hearings to deal with 
     the cover-up allegations.'' (p. 1124). We intend to pursue 
     these matters within the Committee to ensure that Congress, 
     and the public, are fully informed as to how the FBI handled 
     these important investigations.
           Sincerely,
     Patrick J. Leahy,
       Chairman,
     Charles E. Grassley,
       Senator,
     Arlen Specter,
       Senator,
     Orrin G. Hatch,
       Ranking Republican Member,
     Herb Kohl,
       Senator.

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