[Congressional Record (Bound Edition), Volume 161 (2015), Part 13]
[Senate]
[Pages 18022-18024]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   OVERSIGHT OF THE EXECUTIVE BRANCH

  Mr. GRASSLEY. Mr. President, oversight of the executive branch of 
government by the Congress is as old as the Constitution, it is a 
critical role, and it is one that was intended by the writers of the 
Constitution. I believe oversight leads to better government, better 
laws, and actually saves the taxpayers money. That is why this Senator 
works very hard at oversight.
  I went after the Reagan Defense Department for wasteful spending in 
the 1980s. I held up the Department of Justice nominees during the Bush 
administration to get my oversight letters answered, just as I am doing 
now with the Obama Department of State. I voted in support of giving 
the Judiciary Committee the authority to issue subpoenas regarding its 
inquiry into the firing of U.S. attorneys during the Bush 
administration when a lot of Republicans didn't want that to happen. My 
belief in and exercise of the oversight role by Congress is 
longstanding and nonpartisan.
  Yesterday the Senate minority leader said my investigation into the 
Department of State's use of special government employee designations 
and how Secretary Clinton's private email arrangement interfered with 
the Freedom of Information Act compliance is political. This simply is 
not so. This investigation involves many things, but it does not 
involve politics. His speech

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yesterday inferred that I was doing all these things for political 
reasons. That is simply not true, nor is it in accordance with my 
reputation as an equal opportunity overseer.
  My investigation into the potential abuse of the special government 
employee designations and Secretary Clinton's use of a personal email 
server and the potential spillage of classified information is not 
political. It is evidence-based, and it has something to do with our 
national security.
  Unfortunately, the Department has been largely uncooperative since 
June of 2013. The Department's lack of cooperation has caused me to 
place 22 holds on its nominees. These are not secret holds. I have 
placed, according to the rules of the Senate, a statement in the Record 
of why those holds are placed, and to correct the senior Senator from 
Nevada, my holds do not include 600 Foreign Service officers and do not 
include individuals from Iowa.
  With respect to my pending requests to the Department of State, I am 
still waiting for a full production of documents from my June 2013 
oversight request--the constitutional responsibility of those of us who 
pass laws and appropriate money. That happened to be 2\1/2\ years ago, 
and the State Department has still not produced the materials I have 
requested. The Department has implemented several clever strategies to 
delay the process. I will give you some examples. The Department 
routinely assigns new employees to handle different requests. Each time 
a new employee is assigned we get the same excuses why they cannot 
deliver on our requests. These excuses go something like this: I am 
new, so I don't know who to talk to and where to find the documents.
  For years the Department has delayed in productions, each time with 
more excuses. For instance, the Department still refuses to answer 
whether Secretary Clinton's private server was approved. The Department 
has failed to provide emails for Department personnel communicating 
about Secretary Clinton's private server that we have strong reason to 
believe exist. The Department took over 2 months to schedule a single 
interview with a former employee. The Department for over 2 months has 
refused to provide instructions it gave to Clinton attorney David 
Kendall to secure the thumb drives that contained classified 
information--even though the Department was quoted in the news as 
providing those instructions. The Department has failed to provide 
travel reimbursements and leave documents for its employees. On August 
5 of this year, I requested classification nondisclosure forms for 
Secretary Clinton, Huma Abedin, and Cheryl Mills. On November 5, the 
Department provided those documents to a Freedom of Information Act 
requester but not to the committee.
  I highlight that. The Freedom of Information Act request was made, 
but the same information that was sought by a congressional committee--
one was granted and the other so far has been denied. While the 
Department provided the documents to that requester under the Freedom 
of Information Act, Department employees told me they had been unable 
to find those documents.
  Not only has the Judiciary Committee experienced unacceptable 
Department of State delays in receiving the information we request, 
others inside and outside of the government have experienced delays as 
well.
  The Associated Press sued the State Department over the failure to 
satisfy repeated document requests under the Freedom of Information Act 
related to these same agents. One of these requests dates back 5 years 
ago.
  Judge Richard Leon of the U.S. District Court for the District of 
Columbia, the judge responsible for this case, scolded the State 
Department for its failure to produce documents on time:

       Now, any person should be able to review that in one day--
     one day. Even the least ambitious bureaucrat could do this.

  Let there be no mistake about this investigation. This investigation 
is centered on the Freedom of Information Act, a law that is within the 
Judiciary Committee's jurisdiction. This investigation is centered on 
potential abuse of the special government employee designation that 
allows government employees to be paid by outside employers, in this 
case hundreds of thousands of dollars by a consulting firm run by a 
former Clinton administration employee.
  This investigation is centered on potential violations of the Federal 
Records Act and holding government officials accountable for their 
actions. This investigation is centered on whether public officials 
properly handled classified information.
  Nobody is above the law. Senior government officials and regular 
employees should get equal treatment under the law, and that treatment 
should be fair and objective. It should not depend on what your 
position is.
  When it looks like the treatment is different, we have to figure out 
what is going on. For example, it looks like other government employees 
are subject to very different treatment when accused of mishandling 
classified information.
  Army LTC Jason Amerine, a decorated war hero, contacted Congress to 
try to warn about bureaucratic problems with U.S. hostage recovery 
efforts, problems that he believed were putting lives at risk. He was 
accused of improperly transmitting classified information to Congress 
in the process.
  This war hero was removed from his job, was escorted out of the 
Pentagon, had his clearances suspended, had his scheduled retirement 
delayed indefinitely, was fingerprinted and had a mug shot taken, was 
threatened with court-martial, and was subject to extensive 
investigation.
  After almost a year of being investigated, the Army decided not to 
court-martial Lieutenant Colonel Amerine.
  Instead, he was awarded the Legion of Merit for exceptionally 
meritorious service and was finally allowed to retire. But look at how 
differently he, a war hero, was treated when accused of mishandling 
classified information compared to Secretary Clinton and her 
associates. Where was the minority leader in trying to help this war 
hero from these attacks from this administration?
  Nowhere to be seen is the answer to that.
  It is apparent that some have a selective memory when it comes to 
putting value on oversight and investigations. But I do not. I have 
been consistent
in my oversight role my entire career, investigating Republicans and 
Democrats.
  My oversight and investigations unit is involved in many 
investigations. The vast majority of them have nothing to do with 
Secretary Clinton.
  Looking out for the public interest isn't a waste of time, and I will 
keep at it regardless of misguided attacks on my motivations and 
mischaracterizations of my work. I will continue this investigation 
because the American people have a right to the truth and government 
officials have an obligation to answer to ``We the People.''
  Mr. President, I ask unanimous consent that an article dated 
September 4, 2015, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From the Daily Beast, Sept. 4, 2015]

                   The Hillary Email Double Standard

                          (By Danielle Brian)

       How whistleblowers see their lives destroyed over 
     infractions the powerful get away with.
       Watching the news about Hillary Clinton's emails, it is 
     remarkable to see how many people now have opinions about the 
     overclassification of information and the relative merits of 
     prosecuting people for mishandling classified material or 
     destroying government records.
       Newspapers, blogs, and television reports are full of 
     pundits explaining the law as they see it, with people 
     opining about who is right: the two Inspectors General who 
     assert there was classified material in her emails, or the 
     State Department, which asserts that the information was not 
     classified at the time.
       So where were all these ``experts'' when whistleblowers 
     accused of the same infraction--mishandling classified 
     material--were forced to spend a fortune on lawyers, were 
     fired from their jobs, and were threatened with imprisonment?
       The amount of time being spent by Hillary Clinton defenders 
     and detractors parsing rules, policies, and laws on whether 
     she broke the law is maddening. That time desperately needs 
     to be spent on transforming

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     the classification system and modernizing electronic records 
     retention policies, as promised in the Obama administration's 
     second National Action Plan for the Open Government 
     Partnership nearly two years ago.
       It is hard to reconcile Clinton's actions with her speech 
     at the 2012 opening session of the Open Government 
     Partnership: ``In the 21st century, the United States is 
     convinced that one of the most significant divisions among 
     nations will not be north/south, east/west, religious, or any 
     other category so much as whether they are open or closed 
     societies. We believe that countries with open governments, 
     open economies, and open societies will increasingly 
     flourish. They will become more prosperous, healthier, more 
     secure, and more peaceful.''
       She was right then. It is essential to maintain the records 
     of our policymakers for historical analysis so that the 
     public can know what actions have been taken in our name by 
     our leaders. Clinton did not maintain these records. The fact 
     is she indisputably broke the rules, and although that is not 
     a criminal offense, it certainly is a political one.
       Even more infuriating is the disparity of treatment between 
     the politically powerful and everyday truth-tellers. High-
     level officials often receive little more than a tap on the 
     wrist for mishandling classified information. But 
     whistleblowers seeking to expose wrongdoing and protect the 
     public are almost without exception subjected to overzealous 
     investigations and prosecution.
       Rather than focusing on the distinction between whether a 
     person deliberately released classified information or not, 
     the more appropriate lens is whether there was an intended 
     public benefit for that disclosure, such as protecting public 
     health or safety or revealing wrongdoing.
       Of course the Secretary of State had some classified 
     information in her emails. As Bill Leonard, former director 
     of the federal Information Security Oversight Office, told 
     Reuters, information that foreign officials give U.S. 
     officials in confidence is ``born classified.''
       And yes, the government is dramatically overclassifying 
     information. Clinton herself tweeted that the government's 
     ridiculous classification rules are the ``real problem.'' But 
     rather than tackling the many problems with the 
     classification system, or investigating Clinton through the 
     post-Wikileaks ``insider threat'' program created to 
     investigate individuals who exploited, compromised, or made 
     an unauthorized disclosure of classified information, the 
     State Department has spent weeks defending their former boss 
     and claiming dismissively that nothing was classified at the 
     time anyway.
       General Petraeus, who deliberately gave classified 
     information to his lover/biographer, was afforded similar 
     latitude, with Senator Feinstein going so far as to make a 
     public plea for clemency in his case. In the end he was only 
     given a paltry fine--one that he will be able to pay off with 
     less than one of his speaking engagement fees.
       The Department of Defense Inspector General (IG) tried to 
     bury, and then gutted, its own report that concluded then-CIA 
     Director Leon Panetta had released classified information 
     about the Osama bin Laden raid to the Zero Dark Thirty 
     Hollywood producers. Panetta was never penalized despite the 
     IG's findings.
       In stark comparison, even national security whistleblowers 
     who worked through proper channels, including reporting to 
     their superiors, Inspectors General, and the Congress, are 
     faced with a white-hot vindictive frontal attack from the 
     government.
       NSA whistleblower Tom Drake and Justice Department 
     whistleblower Thomas Tamm both had armed FBI agents raid 
     their homes. Drake reported to the Pentagon IG and Congress 
     about the NSA's unconstitutional and wasteful overreach 
     through its domestic surveillance program (years before 
     Edward Snowden). Tamm also challenged the legality of the 
     government's warrantless wiretap program.
       Tamm lost his clearance and his government career. Drake 
     was prosecuted for espionage and lost his career after 
     pleading to the misdemeanor of ``exceding the authorized use 
     of a computer.'' Both spent a fortune on attorneys.
       Air Marshal Robert MacLean had to take his case all the way 
     to the Supreme Court to prove that he had a right to reveal 
     unclassified information to a TV reporter about the TSA's 
     decision to remove air marshals from high-risk flights after 
     9/11. His disclosure forced the TSA to reverse their plan and 
     to better protect the public by keeping air marshals on 
     cross-country flights. MacLean won, but he and his family had 
     to put their lives on hold while he fought his case for years 
     without a paycheck.
       Lieutenant Colonel Jason Amerine is being investigated by 
     the Army Criminal Investigation Division over accusations of 
     revealing classified information to Congress, which is 
     permitted by law to receive disclosures about wrongdoing in 
     the executive branch. His disclosure to Congress led the 
     White House to overhaul its hostage recovery policies. Yet 
     his retirement from the military, after an extraordinary and 
     decorated career in the Army, has been put on hold 
     indefinitely as the investigation drags on.
       Our system now protects the powerful and attacks the 
     heroes, both of which are fundamentally un-American.
       So let's stop wasting time making politically expedient 
     proclamations that serve no purpose but to score points for 
     candidates. There are real issues all the campaigns should 
     address: We need to dramatically shrink the incidence of and 
     incentives for overclassification. We also need to apply a 
     public interest balancing test so that when there is an 
     alleged breach of classified information, the violation is 
     weighed against the benefits of the information becoming 
     known. And we need to level the playing field so that there 
     aren't different accountability standards for those with 
     clout and those without.
       If the dialogue doesn't change, most federal employees who 
     witnesses waste, fraud. or abuse will feel the chill and 
     decide against stepping forward while the politically 
     powerful class will continue to be rewarded and see their 
     transgressions forgiven.

  Mr. GRASSLEY. I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.

                          ____________________