[Senate Report 107-148]
[From the U.S. Government Publishing Office]



107th Congress                                                   Report
                                 SENATE
 2d Session                                                     107-148

======================================================================



 
         THE FEDERAL BUREAU OF INVESTIGATION REFORM ACT OF 2002

                                _______
                                

      May 10 (legislative day May 9), 2002.--Ordered to be printed

                                _______
                                

Mr. Leahy, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                         [To accompany S. 1974]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (S. 1974) to make needed reforms in the Federal Bureau of 
Investigation, and for other purposes, having considered the 
same, reports favorably thereon, with an amendment, and 
recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and summary..............................................1
 II. Legislative history..............................................3
III. Vote of the Committee............................................4
 IV. The need for legislation.........................................4
  V. Discussion and section-by-section analysis.......................7
 VI. Congressional Budget Office cost estimate.......................23
VII. Regulatory impact statement.....................................25
VIII.Changes in existing law.........................................26


                         I. Purpose and Summary

    The purpose of S. 1974, the Federal Bureau of Investigation 
Reform Act of 2002, is to make needed reforms to strengthen 
effective oversight, enhance security, and improve management 
of the Federal Bureau of Investigation (``FBI'' or ``Bureau''). 
Specific provisions would strengthen oversight by the Inspector 
General of the Department of Justice, increase protections for 
FBI whistleblowers, improve security for FBI and related 
Justice Department information and facilities, provide reports 
needed by the Congress, and eliminate disparities in discipline 
between Senior Executive Service officials and other personnel.
    The legislation is based on a series of bipartisan FBI 
oversight hearings that began in the summer of 2001. These 
hearings included testimony on Senator Danforth's Waco inquiry, 
the Webster Commission report on security in the FBI, and 
Justice Department Inspector General's report on the FBI's 
belated disclosure of documents in the Oklahoma City bombing 
case, as well as testimony from rank-and-file FBI agents, the 
Department of Justice's current and former Inspectors General, 
and the FBI's senior administrative, security and computer 
infrastructure managers. These hearings revealed institutional 
problems at the FBI that require congressional action.
    The hearings highlighted (1) a double standard in 
disciplinary actions for senior FBI management causing morale 
problems within the Bureau; (2) record and information 
management problems and communications breakdowns between field 
offices and Headquarters that contributed to the belated 
production of documents in the Oklahoma City bombing case; (3) 
a dire need to modernize FBI computer systems, despite 
significant budget increases granted to the FBI over the last 
five years; (4) a culture that not only discourages FBI 
employees from reporting problems or wrongdoing, but permits 
retribution against the relatively few FBI employees who do 
``blow the whistle'' on misconduct; (5) lax FBI security and 
personnel procedures that allowed FBI supervisor Robert Hanssen 
to sell critical secrets to the Russians undetected for years, 
without ever getting a polygraph; and (6) no fewer than 15 
different areas of security at the FBI that need fixing.
    The FBI Reform Act targets three goals: to improve 
accountability and oversight of the FBI, to enhance security 
both inside and outside of the FBI, and to prepare the FBI for 
the missions it faces in the 21st Century.
    The bill improves accountability through three reforms:
          (1) codifying the Justice Department Inspector 
        General's authority to investigate all allegations of 
        misconduct at the FBI--not just those referred by the 
        FBI's Office of Professional Responsibility;
          (2) strengthening whistleblower protections for FBI 
        employees who report misconduct; and
          (3) ending the ``double standard'' in the FBI, where 
        senior management officials are not disciplined as 
        harshly as line agents for the same types of 
        misconduct.
    The bill improves security both inside and outside the FBI 
through four reforms:
          (1) creating a Career Security Program in the FBI, to 
        ensure that the FBI has a trained professional cadre of 
        people who can protect against future Hanssen cases;
          (2) establishing a polygraph program to increase 
        security at the same time as protecting employee 
        rights;
          (3) improving the statutory authority for the FBI 
        police, so that the most qualified people can be 
        retained to protect some of the most sensitive 
        terrorist targets in our nation; and
          (4) strengthening Justice Department security to 
        protect sensitive FBI information shared with Justice, 
        including Foreign Intelligence Surveillance Act 
        information.
    The bill helps prepare the FBI for 21st Century national 
security and public safety challenges in three ways:
          (1) requiring a report on the statutory authorities 
        and core mission of the FBI to help guide the FBI in 
        better focusing its activities;
          (2) requiring a specific 10-point plan to modernize 
        the FBI's information technology systems to improve 
        information flow and proper sharing; and
          (3) requiring a General Accounting Office (``GAO'') 
        report on the compilation and use of duplicative case 
        statistics by the FBI and other federal law enforcement 
        agencies.

                        II. Legislative History

    The ``Federal Bureau of Investigation Reform Act of 2002,'' 
S. 1974, was introduced by Chairman Patrick Leahy and Senator 
Charles Grassley on February 28, 2002. The bill was a product 
of Judiciary Committee hearings held beginning in June 2001, on 
FBI oversight, management, information technology and security, 
as well as the confirmation hearing for the new Director of the 
FBI, Robert S. Mueller III. After the bill's introduction, 
additional hearings related to S. 1974 were held in March and 
April 2002, to consider the need for FBI information technology 
and management reforms in light of the report of the Justice 
Department Inspector General on the belated disclosure of FBI 
documents in the Oklahoma City bombing case and to address the 
need for FBI security reforms as identified in the report of 
the Webster Commission, which was charged with reviewing FBI 
security in the wake of the Robert Hanssen espionage case.
    Provisions of title I of S. 1974 to strengthen the 
authority of the Justice Department Inspector General to 
provide oversight and review of FBI and Drug Enforcement 
Administration matters were also contained in the ``21st 
Century Department of Justice Appropriations Authorization 
Act,'' S. 1319/H.R. 2215, which was introduced by Chairman 
Patrick Leahy and Senator Orrin Hatch, reported by the 
Judiciary Committee and passed by the Senate by unanimous 
consent on December 20, 2001.
    On April 25, 2002, the Senate Judiciary Committee favorably 
and unanimously reported S. 1974, by voice vote, with an 
amendment in the nature of a substitute offered by Chairman 
Leahy and cosponsored by Senator Grassley. The substitute 
amendment modified S. 1974, as introduced, in the following 
ways:
    (1) Section 101, p. 3, lines 1-19, was added to clarify the 
Office of Inspector General's authority over heads of Justice 
Department components;
    (2) Section 302(b), p. 10, lines 8-9, was added to clarify 
that FBI security personnel management policies are to be 
implemented at both the headquarters and field office levels;
    (3) Section 702, pp. 31-32, was added to require the Office 
of Inspector General to submit to the Judiciary Committees, for 
five years, annual reports prepared by the FBI's Office of 
Professional Responsibility, including an analysis of any 
double standard in FBI discipline;
    (4) Title VIII, pp. 32-34, was added, based on concerns of 
the Webster Commission, to enhance security at the Justice 
Department where sensitive FBI information is shared, including 
secure communications for processing of FISA matters.

                       III. Vote of the Committee

    The Senate Committee on the Judiciary, with a quorum 
present met on April 25, 2002 to consider the ``Federal Bureau 
of Investigation Reform Act of 2002.'' The Committee considered 
S. 1974 and approved the bill, by unanimous voice vote, with an 
amendment in the nature of a substitute, and ordered the bill 
to be reported favorably to the Senate, with a recommendation 
that the bill do pass.

                      IV. The Need for Legislation

    The need for the FBI Reform Act is predicated on an 
appreciation of both the FBI's importance to the nation and the 
serious concerns about FBI performance that have arisen in 
recent years. The FBI is responsible for the investigation of 
federal crimes, the conduct of intelligence and 
counterintelligence activities, and the provision of services 
to the United States law enforcement community, including at 
the Federal, State and local levels. With more than 25,000 
personnel and a budget of over $4 billion, the FBI is essential 
to combating serious and complex criminal activity, protecting 
the national security against terrorism and espionage, and 
serving all federal, state, and local law enforcement agencies 
with training, laboratory and fingerprint examinations, and 
centralized crime information. After the terrorist attacks of 
September 11, 2001, and the subsequent anthrax attacks in the 
fall of 2001, the nation turned to the FBI for expanded 
investigation, intelligence collection, analysis and 
information sharing to detect terrorists and frustrate any 
potential plans for additional attacks. The new anti-terrorism 
law, the USA PATRIOT Act,\1\ enacted on October 26, 2001 after 
passing overwhelmingly in the Congress, gave the FBI wider 
investigative and intelligence-information gathering powers. In 
an emergency counterterrorism supplemental appropriation for FY 
2002, the Congress added $745 million to the FBI's budget for 
investigative and intelligence capabilities, information 
technology, and security. An additional increase of $225 
million is requested for FY 2003.
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    \1\ Pub. L. No. 107-56 (2001).
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    The FBI's critical and growing responsibilities make it all 
the more necessary to confront the serious weaknesses in the 
Bureau's management and operations that have come to light in 
recent years. In the 1990s the tragic violent confrontations at 
Ruby Ridge and Waco, and subsequent flawed internal 
investigations, led to further inquiries, including an 
independent investigation of Waco events by former Senator John 
Danforth, that exposed failures of FBI officials to be candid 
in admitting errors.\2\ Highly publicized investigative 
mistakes in the Atlanta Olympics bombing case and the Wen Ho 
Lee espionage investigation raised questions about the 
competence and judgment of FBI officials.\3\
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    \2\ Office of Special Counsel; Report to the Deputy Attorney 
General Concerning the Waco Matter (2000).
    \3\ ``Lee Family `Shocked' by FBI Tactics,'' Albuquerque Journal, 
January 9, 2000. Dan Eggen, ``FBI Won't Apologize to Cleared CIA 
Officer,'' Washington Post, August 13, 2001. Ronald Kessler, ``Time to 
Fire FBI Director,'' Washington Post, March 2, 2001. Laurie Cohen and 
David Cloud, ``Counterintelligence: How Federal Agents Bungled the Spy 
Case Against Wen Ho Lee,'' Wall Street Journal, December 8, 2000. Eric 
Lichtblau, ``Tough Criticism Pelts the FBI,'' Los Angeles Times, 
January 21, 2001. See Senator Patrick Leahy Statement, 2000 Cong. Rec. 
S1226-1228 (daily ed. Mar. 7, 2000).
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    This bill stems from the lessons learned during a series of 
Committee hearings on oversight of the FBI from June 2001, 
through April 2002, including hearings on the Webster 
Commission review of FBI security in the wake of the Hanssen 
espionage case\4\ and the Justice Department Inspector 
General's report on the belated FBI disclosure of documents in 
the Oklahoma City bombing case.\5\ The important changes which 
are being made under the FBI's new leadership after the 
September 11 attacks and the new powers granted to the FBI 
under the USA PATRIOT Act have rendered FBI reform a pressing 
matter of national importance.
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    \4\ Statement of Judge William H. Webster, former FBI Director, 
U.S. Senate Committee on the Judiciary Hearing, ``Reforming the FBI in 
the 21st Century: Lessons of the Hanssen Espionage Case,'' April 9, 
2002, p. 21.
    \5\ Statement of Bob Dies, FBI Chief Technology Officer, U.S. 
Senate Committee on the Judiciary Hearing, ``Reforming the FBI in the 
21st Century: Lessons of the Oklahoma City Bombing Case,'' March 21, 
2002, p. 65.
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    Since the attacks of September 11, 2001, and the anthrax 
attacks last fall, the FBI has had the responsibility to detect 
and prevent acts of catastrophic terrorism that endanger the 
lives of the American people and the institutions of our 
country. The men and women of the FBI are performing this task 
with great professionalism at home and abroad. All Americans 
felt safer as a result of the full mobilization of the FBI's 
dedicated Special Agents, its expert support personnel, and its 
exceptional technical capabilities.
    For decades the FBI has been an outstanding law enforcement 
agency and a vital member of the United States intelligence 
community. As the hearings and recent events have shown, 
however, there is room for improvement at the FBI. Only needed 
reform can ensure that the mistakes of the past are not 
repeated. In meeting the international terrorist challenge, the 
Congress has both an opportunity and obligation to strengthen 
the institutional fibre of the FBI based on lessons learned 
from recent problems the Bureau has experienced.
    This view is not the Committee's alone. When Director 
Robert S. Mueller testified at his confirmation hearings last 
July, he forthrightly acknowledged ``that the Bureau's 
remarkable legacy of service and accomplishment has been 
tarnished by some serious and highly publicized problems in 
recent years. Waco, Ruby Ridge, the FBI lab, Wen Ho Lee, Robert 
Hanssen and the McVeigh documents--these familiar names and 
events remind us all that the FBI is far from perfect and that 
the next director faces significant management and 
administrative challenges.''\6\ Since then, the Judiciary 
Committee has forged a constructive partnership with Director 
Mueller to get the FBI back on track.
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    \6\ Statement of Robert S. Mueller III, U.S. Attorney in Northern 
District of California, U.S. Senate Committee on the Judiciary, 
``Nominations Hearing,'' July 30, 2001, p. 25.
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    The Congress sometimes has followed a hands-off approach 
towards the FBI. The FBI's new increased powers, the nation's 
increased reliance on the Bureau to stop terrorism, and the 
President's budget request for increased funding for the 
Bureau, will require increased scrutiny and oversight. Until 
reforms underway at the Bureau demonstrate that problems are 
resolved and new challenges overcome, Congress will have to 
take a hands-on approach.
    Indeed, Committee hearings and other oversight activities 
have highlighted tangible steps the Congress should take in an 
FBI Reform bill as part of this hands-on approach. Hearings in 
2001demonstrated the need to improve FBI internal 
accountability, extend whistleblower protection, end the double-
standard for discipline of senior FBI executives, enhance the FBI's 
internal security program to protect against espionage as occurred in 
the Hanssen case, and modernize the FBI's information technology 
systems. After the initial oversight hearings, the Committee explored 
additional management issues that are reflected in the FBI Reform Act. 
Senator Grassley called attention to the practices of the FBI and other 
federal criminal investigative agencies in over-reporting and misusing 
statistics on their investigations. In addition, FBI officials 
responsible for protecting its facilities informed the Committee of 
difficulties in retaining the most qualified people on the FBI's own 
police force to protect some of our nation's most important and, 
unfortunately, most targeted facilities.
    When Director Mueller announced the first stage of his FBI 
reorganization in December 2001, he stressed the importance of 
taking a comprehensive look at the FBI's missions for the 
future.\7\ Deputy Attorney General Thompson's office informed 
the Committee that the Attorney General's management review of 
the FBI was considering this matter.\8\ Director Mueller has 
stated that the second phase of FBI reorganization will be part 
of a ``comprehensive plan to address not only the new 
challenges of terrorism, but to modernize and streamline the 
Bureau's more traditional functions. . . .'' \9\ Thus, through 
hearings, other oversight efforts, and the statements and 
efforts of the new management team at the FBI, an initial list 
of challenges facing the FBI was developed to serve as the 
basis for S. 1974, as introduced.
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    \7\ Julie Mason, ``FBI Alters Course After 9/11 Attacks,'' Houston 
Chronicle, December 23, 2001.
    \8\ Briefing by Associate Deputy Attorney General Christopher Wray 
to Committee Staff on January 22, 2002.
    \9\ Statement of Robert S. Mueller III, Director of the Federal 
Bureau of Investigation, U.S. House Committee on Appropriations 
Subcommittee for the Department of Commerce, Justice, and State, the 
Judiciary, and Related Agencies Hearing, ``Fiscal 2003 
Appropriations,'' March 6, 2002, p. 25.
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    Following introduction in February, the need for this 
legislation was confirmed strongly at the Committee's hearings 
in March and April on the Webster Commission review of FBI 
security and the Justice Department Inspector General's report 
on belated FBI document production in the Oklahoma City 
case.\10\ Based on testimony at these hearings and other 
information, revisions were made in the bill as introduced, and 
Senators Leahy and Grassley proposed a substitute for adoption 
by the Committee.
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    \10\ Office of Inspector General; An Investigation of the Belated 
Production of Documents in the Oklahoma City Bombing Case (2002).
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    S. 1974 enjoys bipartisan support, especially among those 
who have worked with and appeared before the Committee as 
experts on the FBI's past, the present FBI, and the future of 
the FBI. The following people, among others, have expressed 
support for provisions set forth in S. 1974: Department of 
Justice Inspector General (``IG'') Glenn A. Fine; former IG 
Michael Bromwich; Judge William H. Webster; who headed the 
Commission charged with reviewing the FBI's security programs 
(``Webster Commission''); FBI Chief Technology Officer Bob 
Dies; and FBI Assistant Director for Security Kenneth Senser. 
The legislation was benefitted enormously from the 
contributions of many other witnesses and experts who shared 
their insights with the Committee. The Committee is grateful 
for the testimony and comments of FBI career professional 
responsibility agents, including Supervisory Special Agent 
Patrick J. Kiernan and John E. Roberts, Chief of the Internal 
Investigative Unit at the FBI's Office of Professional 
Responsibility, and former FBI Foreign Counterintelligence 
Supervisor John Werner. Former Senator John C. Danforth, former 
Commissioner of the U.S. Customs Service Ray Kelly, FBI 
Executive Assistant Director for Administration Robert 
Chiradio, FBI Assistant Director for Records Management Bill 
Hooten, and General Accounting Office Managing Director Norman 
J. Rabkin also provided valuable testimony. The bill is also 
supported by the National Whistleblower Center and other 
similar public interest groups that aim to protect both the 
public interest and the rights of those who report government 
waste, fraud, and abuse.

             V. Discussion and Section-by-Section Analysis


                             A. discussion

    The provisions in the FBI Reform Act address three 
challenges, increasing both the oversight and accountability at 
the FBI, improving the security of the FBI, and preparing the 
FBI for the 21st century. Each of the bill's provisions should 
be understood and interpreted in that context, as further 
discussed below.

1. Oversight and accountability

    Titles I, II, and VII of the FBI Reform Act would 
strengthen the system for uncovering and reviewing FBI 
misconduct and imposing appropriate discipline, so that there 
is appropriate accountability. It is also important to create 
institutional safeguards to ensure proper oversight of the 
FBI's activities. This will lead to increased public confidence 
in the FBI as it does its important work.
    Title I would create statutory jurisdiction for the DOJ 
Inspector General over allegations of misconduct in the FBI. It 
would bring the statutory authorities of the Justice 
Department's Inspector General into line with the 
administrative regulations adopted by the Attorney General on 
July 11, 2001, ensuring that there will be no return to a 
system in which the FBI enjoyed unique exemption for scrutiny 
by an independent Inspector General. It would also clarify that 
agency heads within the Department of Justice may be 
disciplined by the Attorney General, a proposition which has 
been assumed to exist for years, and which the Committee seeks 
to reinforce. At the same time, Title I requires reports to 
Congress regarding such disciplinary recommendations, ensuring 
a proper oversight role in these important decisions.
    Title II would strengthen whistleblower protection for FBI 
employees and protect them from retaliation for reporting 
wrongdoing. Title VII would eliminate statutory disparities in 
disciplinary penalties for Senior Executive Service and non-SES 
personnel and require that the FBI's Office of Professional 
Responsibility complete annual reports on its activities, and 
that such reports be submitted to the Judiciary Committees 
through the Inspector General.
    The Committee received testimony at its oversight hearings 
showing that, too often, the independence that is part of the 
FBI's culture crossed the line into arrogance. Senator Danforth 
expressedconcern to the Committee about entrenched executives 
at the FBI who had created a closed and insular culture resistant to 
disclosure of mistakes and to reforms.\11\ His concern was echoed in 
testimony the Committee heard from experienced FBI Special Agents, 
including a unit chief in the FBI's own Office of Professional 
Responsibility, who told us of a ``club'' mentality among some Bureau 
executives who viewed any criticism or change as a threat to their 
careers.\12\
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    \11\ Statement of John Danforth, United States Senator, U.S. Senate 
Committee on the Judiciary Hearing, ``Oversight: Restoring Confidence 
in the FBI,'' June 20, 2001.
    \12\ U.S. Senate Committee on the Judiciary Hearing, ``Reforming 
FBI Management: The Views From Inside and Out,'' July 18, 2001.
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    If there was one message from these witnesses, it was that 
FBI executives needed to be more willing to admit their 
mistakes. Too often their response was to shield the Bureau 
from embarrassment by sacrificing accountability and needed 
reform. For example, Senator Danforth testified that the FBI 
helped fan the flames of conspiracy theories at Waco by 
covering up evidence that it used pyrotechnic rounds, even 
though they had nothing to do with starting the fire.\13\ The 
FBI culture demanded covering up rather than admitting a 
mistake. Of course, as the FBI painfully discovered, the price 
for circling the wagons in this way can be the loss of public 
confidence.
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    \13\ Statement of John Danforth, United States Senator, U.S. Senate 
Committee on the Judiciary Hearing, ``Oversight: Restoring Confidence 
in the FBI,'' June 20, 2001, p. 36.
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    The Justice Department Inspector General is in a position 
to conduct an independent investigation that enables the 
Attorney General and the FBI Director to hold FBI personnel 
accountable and learn the necessary lessons from mistakes. When 
Director Mueller was asked at his confirmation hearing about a 
separate FBI Inspector General, he replied, ``If I were the 
Attorney General I might have some concern about a separate 
Inspector General feeding the perception that the FBI was a 
separate institution accountable only to itself. And I'm not 
certain in my own mind whether or not what the accountability 
you seek cannot be discharged by an Inspector General with 
appropriate personnel in the Department of Justice, as opposed 
to establishing another Inspector General in the FBI.'' \14\ 
Attorney General Ashcroft decided to follow this route, and 
Title I of the FBI Reform Act would codify his action, while 
allowing a future report assessing the necessity of future 
actions to implement the IG's new investigative jurisdiction.
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    \14\ Statement of Robert S. Mueller III, U.S. Attorney in the 
Northern District of California, U.S. Senate Committee on the Judiciary 
Hearing, ``Nominations Hearing,'' July 31, 2001, p. 65.
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    At the Committee hearing on lessons of the Oklahoma City 
bombing case, Justice Department Inspector General Glenn A. 
Fine stated that this provision ``should be in the law so that 
people will know it will continue, and that another attorney 
general . . . whatever he or she decides and knows . . . that 
it is the law that the inspector general has full authority 
throughout the Department of Justice.'' \15\ He further 
stated,''[o]n July 11, 2001, Attorney General Ashcroft issued 
an order that amended 28 CFR Parts 27 and 29 to provide the OIG 
with jurisdiction to investigate allegations of misconduct by 
FBI and DEA employees. However, legislation embodying the OIG's 
new jurisdictional authorities would ensure the permanency of 
this order. . . . A system that depends on permission from the 
Attorney General or the Deputy Attorney General for the OIG to 
investigate specific matters within the FBI suffers from a 
variety of problems. . . . [A]n ad hoc system does little to 
ensure that the OIG receives timely and thorough information 
from the FBI on allegations of misconduct so that we can decide 
whether to request authority to investigate the issue.'' \16\
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    \15\ Statement of Glenn Fine, Inspector General, U.S. Senate 
Committee on the Judiciary Hearing, ``Reforming the FBI in the 21st 
Century: Lessons of the Oklahoma City Bombing Case,'' March 21, 2002, 
p. 65.
    \16\ Answers of Glenn Fine, Inspector General, to written questions 
of Chairman Patrick Leahy, U.S. Senate Committee on the Judiciary 
Hearing, ``Reforming the FBI in the 21st Century: Lessons of the 
Oklahoma City Bombing Case,'' June 20, 2001.
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    Michael R. Bromwich, Department of Justice Inspector 
General in 1994-1999, concurred, stating, ``I think that all 
criminal matters and all administrative misconduct allegations 
at a certain level of employee or above should . . . go first 
to the Inspector General's office, and it ought to be up to 
that office to refer things back to the FBI. . . . That is 
exactly the sort of system that has existed with respect to the 
internal affairs arms in other Justice Department components 
that have law enforcement functions--the Marshals Service, the 
Immigration Service, the Bureau of Prisons, and so forth.'' 
\17\
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    \17\ Statement of Michael Bromwich, former Inspector General, U.S. 
Senate Committee on the Judiciary Hearing, ``Oversight: Restoring 
Confidence in the FBI,'' June 20, 2001, p. 96.
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    Title II is designed to increase the current protections 
for whistleblowers within the FBI. The Committee heard 
disturbing testimony about retaliation against FBI Agents who 
are tasked to investigate their colleagues or who discuss 
issues with the Congress, either directly or through 
cooperation with the General Accounting Office, which assists 
in Congressional oversight.\18\ Therefore, Title II is 
important to ensure that the federal whistleblower protection 
laws protect FBI personnel to the greatest extent possible. 
Senator Grassley stressed the need for this provision and 
developing the language in the bill. The bill would extend 
whistleblower protections to employees who report wrongdoing to 
those who have supervisory authority over them in the chain of 
command or to Congress, and ensure that whistle blowers are 
provided with basic procedural protections, including the 
normal procedures and judicial review provided under the 
Administrative Procedure Act, if they are subjected to 
retaliation. It also would ensure that those who report 
wrongdoing to the Office of the Special Counsel have access to 
the normal Merit System Protection Board rights if retaliated 
against. Strong whistleblower protections also serve as a 
potent weapon in protecting the security of the FBI. When asked 
about the need for better whistleblower protection to help 
enhance the FBI's security, Judge Webster testified, ``I think 
the whistleblower protection as you provided for will be very 
useful in answering that problem.'' \19\
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    \18\ U.S. Senate Committee on the Judiciary Hearing, ``Reforming 
FBI Management: The Views From Inside and Out,'' July 18, 2001.
    \19\ Statement of Judge William Webster, Former FBI Director, U.S. 
Senate Committee on the Judiciary Hearing, ``Reforming the FBI in the 
21st Century: Lessons of the Hanssen Espionage Case,'' April 9, 2002, 
p. 28.
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    The Committee heard highly probative testimony from current 
and retired FBI agents on this issue. John E. Roberts, Chief, 
Internal Investigative Unit, in the FBI Office of Professional 
Responsibility, FBI, testified, ``To say that there is adequate 
protection in the FBI for Whistleblowers, is a position I 
cannot take. I can say that, based on my experience in the Ruby 
Ridge investigation and the Retirement Party investigation, 
investigations which I conducted, there are subtle and not so 
subtle acts of retaliation takenby senior executives in the FBI 
for disclosing misconduct on the part of senior executives.'' \20\ 
Inspector General Glenn A. Fine concurred, stating, ``Even with this 
[current] mechanism, we believe that some FBI employees still believe 
that they will face retaliation and their careers will be harmed if 
they report misconduct. . . . The Committee should consider whether the 
persons to whom FBI employees can raise whistleblower complaints--under 
current regulations the OIG, DOJ OPR, FBI OPR, the Attorney General, 
the Deputy Attorney General, the FBI Director, the FBI Deputy Director, 
or the highest ranking official in an FBI Field Office--is too limited. 
. . . [T]he Whistleblower Protection Act that covers most other federal 
employees (but not those in the FBI) provides a more expansive universe 
of people to whom employees can raise whistleblower complaints.'' \21\ 
Title II provides for such expansion.
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    \20\ Statement of John E. Roberts, FBI's Office of Professional 
Responsibility, Chief of Internal Investigative Unit, U.S. Senate 
Committee on the Judiciary Hearing, ``Reforming FBI Management: The 
Views From Inside and Out,'' July 18, 2001, p. 115.
    \21\ Statement of Glenn A. Fine, Inspector General, U.S. Senate 
Committee on the Judiciary Hearing, ``Oversight: Restoring Confidence 
in the FBI,'' June 20, 2001, p. 46.
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    Title VII improves oversight and accountability in the FBI 
by addressing the issue of a double standard for discipline of 
senior executives. Internal investigations must lead to fair 
and just discipline. A troubling internal FBI study that was 
released at the Committee's July hearing documented a double 
standard at work, with senior FBI executives receiving a slap 
on the wrist for the same kind of conduct that would result in 
serious discipline for lower level employees.\22\ At his 
confirmation hearing, Director Mueller said it is ``very 
important that there be no double standards in accountability. 
There have been allegations that senior FBI officials are 
sometimes treated more leniently than more junior employees. 
Any such double standard would be fundamentally unfair and 
enormously destructive to employee morale.'' \23\
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    \22\ Law Enforcement Ethics Unit at the FBI Academy; FBI Senior 
Executive Service Accountability: A Higher Standard or a Double 
Standard (1999).
    \23\ Answers of Patrick Kiernan, Supervisory Special Agent in the 
FBI Law Enforcement Ethics Unit, to written questions of Chairman 
Patrick Leahy, U.S. Senate Committee on the Judiciary Hearing, 
``Reforming FBI Management: The Views From Inside and Out,'' July 18, 
2001.
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    Title VII would embody that principle by eliminating the 
disparity in authorized punishments between Senior Executive 
Service members and other federal employees and requiring, for 
the first five years, that the annual report (already prepared) 
of the FBI's Office of Professional Responsibility address the 
double-standard issue.
    In response to written questions, Patrick J. Kiernan, 
Supervisory Special Agent in the FBI Law Enforcement Ethics 
Unit, stated, ``The federal statute (5 U.S.C. Sec. 7542) 
limiting SES employees' discipline to letters of censure, 
removal, or suspensions for more than 14 days definitely is a 
contributing factor to the `double standard' in punishment. By 
excluding suspensions of 3, 5, 7, 10, or 14 days, the statute 
effectively ties the hands of the Adjudication Unit of the FBI. 
Suspensions of this lesser period of time are much more common 
than those over 14 days. However, the Adjudication Unit is 
precluded from using them against SES personnel. Therefore, 
when an infraction occurs that would normally fall within a 
suspension of 14 days or less, the Adjudication Unit either has 
to round-up or round-down. The rounding process seems to 
usually favor a member of the SES and results in a simple 
letter of censure. . . . This is not just a problem for the 
FBI, but for many federal agencies. The Office of Personnel 
Management advised that numerous federal agencies had 
complained to them over the course of the last several years 
that this statute took away the agency's flexibility in 
assessing discipline (SES report, p. 3).'' \24\ Title VII would 
provide the needed flexibility.
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    \24\ Answers of Patrick Kiernan, Supervisory Special Agent in the 
FBI Law Enforcement Ethics Unit, to written questions of Chairman 
Patrick Leahy, U.S. Senate Committee on the Judiciary Hearing, 
``Reforming FBI Management: The Views From Inside and Out,'' July 18, 
2001.
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    Title VII is also intended to improve oversight of FBI 
discipline. It requires that, for the next five years, the 
FBI's Office of Professional Responsibility complete an annual 
report of its activities and submit that report to the 
Judiciary Committees through the Department of Justice Office 
of Inspector General. Included in that report, in addition to 
basic information about its cases, will be an analysis of 
whether there is any ``double standard'' being applied to 
discipline of the FBI's higher ranking officials and an 
analysis of whether the Director, or others tasked with 
deciding the discipline to be imposed on FBI personnel, are 
following the recommendations being made by the career internal 
affairs officers who work at the Office of Professional 
Responsibility.

2. Security measures

    The provisions of S. 1974 also address serious concerns 
regarding the security of the FBI and the important information 
which it possesses. The Hanssen espionage case was a tremendous 
shock to the nation and to the FBI. A trusted and experienced 
FBI Supervisory Special Agent was found to have sold many of 
the nation's most sensitive national security secrets to the 
Soviet Union and to Russia. Just as the Ames case forced the 
CIA to revamp its security program after 1994, the Hanssen case 
requires major changes in FBI security. Former FBI and CIA 
Director William Webster chaired a commission that reviewed 
lessons learned from the Hanssen case for the Attorney General 
and the FBI Director, and he presented his unclassified 
findings and recommendations to the Senate Judiciary Committee 
on April 9, 2002. He testified that the security provisions of 
the FBI Reform Act ``offer promise for greater security and 
greater attention to security and greater understanding and 
training of security within the FBI.'' \25\ Many of the 
original provisions of the FBI Reform Act that were based on 
the oversight activities of the Committee, were echoed in the 
recommendations of the Webster Commission, and still more of 
those recommendations were incorporated in the substitute 
amendment adopted by the Committee. FBI security is the primary 
aim of Titles III, IV, V, and VIII of S. 1974.
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    \25\ Statement of Judge William Webster, Former FBI Director, U.S. 
Senate Committee on the Judiciary Hearing, ``Reforming the FBI in the 
21st Century: Lessons of the Hanssen Espionage Case,'' April 9, 2002, 
p. 21.
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    Title III of the FBI Reform Act would establish a Career 
Security Program in the FBI and Title IV would establish an FBI 
Counterintelligence Polygraph Program for screening employees 
and contractors in exceptionally sensitive positions with 
specific safeguards, both of which were recommended by the 
Webster Commission. In addition, as a result of concerns about 
terrorist attacks against FBI targets and a lack of internal 
security also documented in the Webster Commission's report, 
Title V would authorize an FBI police force as part of 
comprehensive security enhancements. Based on specific Webster 
Commission recommendations, Title VIII has been added to 
provide to enhance the security of the Department of Justiceand 
the handling of Foreign Intelligence Surveillance Act (FISA) 
information. Judge Webster testified about S. 1974, stating, ``Mr. 
Chairman, I believe that all of those suggestions which are 
incorporated in your bill offer promise for greater security and 
greater attention to security and greater understanding and training of 
security within the FBI.'' \26\
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    \26\ Statement of Judge William Webster, Former FBI Director, U.S. 
Senate Committee on the Judiciary Hearing, ``Reforming the FBI in the 
21st Century: Lessons of the Hanssen Espionage Case,'' April 9, 2002, 
p. 21.
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    The FBI Career Security Program in Title III would bring 
the FBI into line with other U.S. intelligence agencies that 
have strong career security professional cadres whose skills 
and leadership are dedicated to the protection of agency 
information, personnel, and facilities. The challenges of 
espionage, information technology vulnerability, and the FBI's 
high profile as a target of terrorist attack require that the 
FBI match or exceed the best security programs in the 
intelligence and national security community. This can only be 
achieved by a fundamental change that reverses the tendency, 
found too often in civilian agencies, to treat security as a 
secondary mission and security assignments as obstacles to 
career advancement. Before the Hanssen case, an FBI Special 
Agent experienced as a criminal investigator might be assigned 
for a few years to a security position and then move on without 
building continuity of security expertise. Turnover in FBI 
security work was high, and the top rank was Headquarters 
Section Chief.
    Director Mueller has begun to change direction by creating 
an Assistant Director position to head a new Security Division 
and by supporting the principle of a Security Career 
Program.\27\ Title III of the FBI Reform Act would provide the 
statutory mandate and tools to achieve this goal based on the 
experience of the Defense Department in reforming its 
acquisition career program. The key requirements are leadership 
and accountability in a Security Director, creation of security 
career program boards, designation of security positions, 
identification of security career paths requiring appropriate 
training and experience, and development of education programs 
for security professionals. To help ensure that security 
professionals gain stature comparable to Special Agents, the 
program would limit the preference for Special Agents in 
considering persons for security positions. FBI security 
managers would complete a security management course accredited 
by the Joint Security Training Consortium recently formed by 
the Intelligence Community and the Department of Defense. If 
such a course is not available, the FBI Director could 
substitute a comparable course.
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    \27\ It is the Committee's strong desire that the Webster 
Commission's recommendation that such position be one which reports 
directly to the Director, be heeded.
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    In response to written questions, Kenneth H. Senser, 
Assistant Director in charge of the FBI Security Division, 
stated, ``Currently, FBI Security Officers are not selected 
based on a specific set of required knowledge, skills, or 
abilities related to security. Security Officers experience a 
large turnover rate, receive little formal training and often 
have other collateral duties outside of the security field 
requiring them to split their attention between several program 
areas. The security field is not seen as career enhancing for 
Special Agents and they are usually not held in high esteem 
within the organization. Security Officers chosen from a 
professional support track are not always taken seriously 
because they are not Special Agents. Both of these factors 
result in a lack of credibility and a recurring cycle where 
highly capable employees are not assigned to the security 
function because it is views as a waste of their talents. . . . 
Legislative standards could be helpful.'' \28\
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    \28\ Answers of Kenneth Senser, Assistant Director in charge of 
FBI's Security Division, to written questions of Chairman Patrick 
Leahy, U.S. Senate Committee on the Judiciary Hearing, ``Reforming FBI 
Management: The Views From Inside and Out,'' July 18, 2001.
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    The FBI Counterintelligence Polygraph Program that would be 
established under Title IV of the Act also addresses the 
security issue. Title IV recognizes the security value of 
polygraph screening, but provides specific safeguards for those 
who may be subject to adverse action based on polygraph exams. 
Screening procedures must address the problem of ``false 
positive'' responses, limit adverse actions taken solely by 
reason of physiological reactions in an examination, ensure 
quality assurance and control, and allow subjects to have 
prompt access to unclassified reports on examinations that 
relate to adverse actions against them. Title IV is based upon 
the simple conviction that increased security and protection of 
employee rights can and must coexist at the FBI.
    Title V of the Act would provide long overdue statutory 
authorization for a permanent FBI Police force, to protect 
critical FBI facilities. It would provide the men and women who 
currently guard the highest risk targets with the same pay and 
benefits as members of the Uniformed Division of the United 
States Secret Service. Today the FBI police force operates 
under delegated authority from the General Services 
Administration and apparently has been unable to retain skilled 
personnel at a rate commensurate with the threat and the need 
for experienced leadership. The FBI Reform Act would bring the 
FBI police force generally into line not only with the 
Uniformed Division of the Secret Service, but also with the 
Capitol Police and the Supreme Court police. It is intended to 
be implemented in a manner consistent with the current 
Memorandum of Agreement between the FBI and the Metropolitan 
Police Force of the District of Columbia with respect to the 
delineation of areas surrounding FBI buildings and grounds 
covered in Washington, D.C., and the act is not intended to 
diminish the authority of any other law enforcement agency.
    Title VIII responds to the Webster Commission's statement 
that the Security and Emergency Planning Staff of the Justice 
Department ``seems to suffer from many of the structural 
weaknesses that led us to recommend creation of an Office of 
Security in the Bureau, weaknesses such as inadequate resources 
and insufficient stature within the Department's structure.'' 
\29\ The Commission also discussed the Department's Office of 
Intelligence Policy and Review (``OIPR''), which handles 
Foreign Intelligence Surveillance Act (``FISA'') matters, and 
specifically noted that ``the absence of secure computer links 
between the FBI and OIPR requires that classified FISA 
documents be carried by hand between DOJ and Headquarters, 
creating risks to the physical security of the documents.'' 
\30\ Title VIII would require a report from the Attorney 
General on plans to enhance Justice Department security and 
would authorize additional funds for the security staff and 
OIPR.
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    \29\ United States Department of Justice, Commission for the Review 
of FBI Security Programs; A Review of FBI Security Programs, p. 93 
(2002).
    \30\ United States Department of Justice, Commission for the Review 
of FBI Security Programs; A Review of FBI Security Programs, p. 83 
(2002).
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    The OIPR authorization is consistent with an amendment for 
additional funding offered by Chairman Leahy to S. 2089, the 
``Counterintelligence Reform Act,'' and accepted by the Senate 
Judiciary Committee when that legislation was reported by the 
Judiciary Committee in 2000 and included, in modified form, in 
the Intelligence Authorization Act for FY 2001.

3. Preparing the FBI for the 21st century

    The Attorney General has directed Deputy Attorney General 
Thompson to lead a management review of the FBI, while Director 
Mueller has already begun reorganizing the Bureau. Congress 
must participate in reviewing the FBI's structure and 
identifying its future priorities. The FBI is being called on 
today to protect the national security from terrorist and 
intelligence threats mounted from abroad. FBI investigations 
now extend overseas far more often because of our government's 
decision to use law enforcement as an instrument of national 
security along with diplomacy, military deployments, and 
intelligence operations. At the same time, the FBI must 
continue to handle other uniquely federal areas of criminal 
enforcement, such as complex economic crime, complex criminal 
enterprises, civil rights, environmental, and antitrust 
enforcement. Title VI would require a set of reports to enable 
the Congress to engage the Executive branch in a constructive 
dialogue on building a more effective FBI for the future.
    To help chart the FBI's course, Title VI would direct the 
Attorney General to submit a comprehensive report on the legal 
authorities for FBI programs and activities. The FBI does not 
have express statutory authority for its intelligence and 
counterintelligence activities, but relies primarily on an 
Executive order for its basic legal authority to conduct these 
extensive and costly programs that are vital for protecting the 
United States against international terrorism.\31\ In the late 
1970s, the Judiciary Committee considered enactment of a 
legislative charter for the FBI that would spell out its 
authorities and responsibilities. That proposal was set aside 
in 1980 despite determined efforts by then-Judiciary Committee 
Chairman Kennedy, FBI Director Webster, and Attorney General 
Civiletti to reach agreement. The time may be ripe to revive 
consideration of this effort.
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    \31\ Section 1.14 of Executive Order 12333 (1981) states: ``Under 
the supervision of the Attorney General and pursuant to such 
regulations as the Attorney General may establish, the Director of the 
FBI shall:
    (a) Within the United States conduct counterintelligence and 
coordinate counterintelligence activities of other agencies within the 
Intelligence Community. When a counterintelligence activity of the FBI 
involves military or civilian personnel of the Department of Defense, 
the FBI shall coordinate with the Department of Defense;
    (b) Conduct counterintelligence activities outside the United 
States in coordination with the CIA as required by procedures agreed 
upon by the Director of Central Intelligence and the Attorney General;
    (c) Conduct within the United States, when requested by Officials 
of the Intelligence Community designated by the President, activities 
undertaken to collect foreign intelligence or support foreign 
intelligence collection requirements of other agencies within the 
Intelligence Community, or, when requested by the Director of the 
National Security Agency, to support the communications security 
activities of the United States Government;
    (d) Produce and disseminate foreign intelligence and 
counterintelligence; and
    (e) Carry out or contract for research, development, and 
procurement of technical systems and devices relating to the functions 
authorized above.''
    The National Security Act of 1947, as amended, defines the 
``intelligence community'' in 50 U.S.C. 401a(4) to include ``the 
intelligence elements of . . . the Federal Bureau of Investigation'' 
and implies in 50 U.S.C. 401a(5) that the FBI conducts 
counterintelligence activities, but does not provide express statutory 
authority for FBI intelligence activities. By contrast, such express 
authority is provided for the CIA and the intelligence elements of the 
Department of Defense.
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    The FBI is evaluating whether and how to continue to have 
responsibility for the broad range of investigations that it is 
currently expected to conduct. The extent to which criminal law 
enforcement has been over-federalized and responsibilities, 
which are not uniquely federal, should be handled primarily by 
the states is a matter that requires Congressional input. In 
addition, even among federal law enforcement agencies, federal 
law enforcement personnel perform redundant and overlapping 
functions and missions. The bill would direct the Attorney 
General to recommend whether the FBI should continue to have 
all its current investigative responsibilities, whether 
existing legal authority for any FBI program or activity should 
be modified or repealed, and whether the FBI must or should 
have express statutory authority for new or existing programs 
or activities.
    Title VI recognizes that the task of modernizing FBI's 
information technology and management is as important as 
setting the FBI's future missions. This need was clearly 
demonstrated by the Webster Commission report and the report of 
the Justice Department Inspector General on the belated 
production of FBI documents in the Oklahoma City bombing case, 
as presented to the Committee at a hearing on March 21, 2002. 
Judiciary Committee oversight hearings have documented, and 
Director Mueller has acknowledged, that the FBI must overcome 
years of neglect in this regard. Congress is providing the 
funds requested for information technology improvements, 
especially in the FY 2002 Counterterrorism Supplemental. The 
Congress must ensure, however, that the FBI can and does use 
these funds effectively.
    There is concern that the FBI may need greater flexibility 
than is allowed under current law to procure new information 
technologies. Title VI directs the Attorney General to address 
these concerns in a comprehensive report on a ten-point plan 
for FBI information management and technology. Bob Dies, FBI 
Chief Technology Officer, testified about S. 1974, ``The part 
of it that relates to information management, frankly, I 
thought you had both creative and constructive ideas in there, 
and I would hope you're successful in getting these enacted.'' 
\32\
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    \32\ Statement of Bob Dies, FBI Chief Technology Officer, U.S. 
Senate Committee on the Judiciary Hearing, ``Reforming the FBI in the 
21st Century: Lessons of the Oklahoma City Bombing Case,'' March 21, 
2002, p. 65.
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    Finally, Title VI would require the Comptroller General to 
investigate and complete a report on how statistics are 
reported and used by Federal law enforcement agencies, 
including the FBI. Senator Grassley has focused attention on 
the question whether the FBI and other agencies may be double-
counting criminal investigations and arrests in the reporting 
of accomplishments. There is also a need to ascertain whether 
the FBI and other agencies properly use the statistics which 
they compile in making management decisions, including 
decisions to prioritize certain programs and the evaluation 
either of a program or an employee's performance. It is 
important to get the facts and recommendations that put the FBI 
into the context of the full spectrum of Federal law 
enforcement agencies. Title VI would ensure that the GAO can 
complete this important task by requiring agencies to comply 
with its requests for the information that is necessary to 
assist in preparing this report.

4. Continuing oversight responsibilities

    The FBI Reform Act of 2002 is just one part of the 
Judiciary Committee's bipartisan, hands-on approach to FBI 
reform. Committee oversight hearings considered other 
significant issues arising from the Justice Department 
Inspector General's report on the belated production of 
documents in the Oklahoma City bombing case and the report of 
Judge Webster's Commission on the security lessons of the 
Robert Hanssen espionage case. The Committee also will also 
monitor the actions and goals of Director Mueller and Deputy 
Attorney General Thompson in reorganizing the FBI and charting 
its management course for the future.
    At the same time, the Committee is focusing oversight 
attention on key aspects of FBI and law enforcement performance 
in connection with the September 11 terrorist attacks and the 
lessons learned for developing an effective counterterrorism 
and homeland security program. As contemplated by the sunset 
provisions in the USA PATRIOT Act, the Committee must monitor 
the implementation of new surveillance and investigative powers 
provided to strengthen counterterrorism efforts and, in some 
provisions, law enforcement and counterintelligence generally.
    The FBI Reform Act is designed to strengthen the FBI as an 
institution that has a unique role as both a law enforcement 
agency and a member of the intelligence community. As the 
Judiciary Committee continues its oversight work and more is 
learned about recent FBI performance, additional legislation 
may prove necessary. Especially important will be the lessons 
from the attacks of September 11, 2001, the anthrax attacks, 
and implementation of the USA PATRIOT Act and other 
counterterrorism measures. Strengthening the FBI cannot be 
accomplished overnight, but enactment of the FBI Reform Act of 
2002 will take an important step into the future.

               B. SECTION-BY-SECTION ANALYSIS OF S. 1974

Section 1. Short title

    This section provides a short title: the ``Federal Bureau 
of Investigation Reform Act of 2002.''
    Title I. Improving FBI Oversight. Title I provides for 
improved Department of Justice (``DOJ'') and Congressional 
oversight of the FBI by ensuring that the DOJ Office of the 
Inspector General (``OIG'') is authorized by statute to 
investigate allegations of misconduct at the FBI and requiring 
a report to the Judiciary Committees on how the OIG carries out 
this new authority.

Section 101. Authority of Department of Justice Inspector General

    This section would amend Section 8E of the Inspector 
General Act of 1978 (5 U.S.C. App.) to provide explicit 
statutory authority for the OIG to investigate all allegations 
of criminal or administrative misconduct by DOJ employees, 
including FBI personnel. The OIG is also authorized to refer 
certain matters to the FBI Office of Professional 
Responsibility or to the internal affairs office of the 
appropriate component of the Department. The Attorney General 
is directed to promulgate regulations implementing this OIG 
authority.
    For many years, the FBI was excluded from OIG jurisdiction 
and the FBI's own internal Office of Professional 
Responsibility had sole authority to investigate FBI personnel 
misconduct, unless the Attorney General made an exception. The 
exclusive domains of the FBI and the Drug Enforcement 
Administration to investigate their own misconduct were unique 
in the Department and created the appearance of a conflict of 
interest. On July 11, 2001, Attorney General Ashcroft issued a 
new rule expanding the OIG's jurisdiction over the FBI and DEA. 
This section is consistent with, and codifies, the Attorney 
General's new rule. This section clarifies and buttresses the 
long accepted proposition that the Attorney General has the 
authority to discipline agency heads within the Department of 
Justice and ensures appropriate Congressional oversight 
regarding such decisions.

Section 102. Review of the Department of Justice

    To ensure that the OIG has the necessary structure and 
resources to effectively assume its new jurisdiction over the 
FBI and that the Congress is fully informed of such needs, this 
subsection requires the Inspector General to: (1) appoint an 
official to help supervise and coordinate oversight operations 
and programs of the FBI during the transition period; and (2) 
conduct a comprehensive study of the FBI and report back to the 
Judiciary Committees with a plan for auditing and evaluating 
various parts of FBI (including information technology) and for 
effective continued OIG oversight. The Attorney General is 
required to report back to the Judiciary Committee on whether 
an Inspector General for the FBI should be established. This 
section requires that the Attorney General similarly report on 
what actions are being taken, or need to be taken, in order to 
ensure proper investigation and discipline of FBI employees, 
whether uniform standards for investigating Department of 
Justice misconduct are being established, and whether 
recommended disciplinary guidelines should be established for 
Department of Justice employees who engage in misconduct.
    Title II. Whistleblower Protection. This title amends Title 
5, U.S.C. Sec. 2303, to enhance the whistle blower protection 
provided to FBI employees and protect them from retaliation.

Section 201. Providing whistle blower protection for FBI employees

    Section 201 would amend Section 2303 of title 5, United 
States Code, to expand the types of disclosures that trigger 
whistle blower protections by protecting disclosures, which the 
employee ``reasonably believes'' evidence misconduct, to the 
OIG, the Congress, a person with supervisory authority over the 
employee, or the Special Counsel (an office associated with 
enforcement before the Merit Systems Protection Board 
(``MSPB'') provided for by 5 U.S.C. Sec. 1214). The employees' 
``reasonable belief'' is intended to be interpreted using a 
normal, objective standard which courts apply in a wide variety 
of cases both inside and outside the governmental context, and 
is specifically not intended to adopt the standard set forth in 
LaChance v. White, 174 F.3d 1378 (Fed. Cir. 1999). The 
amendment would also ensure that the proceduralprotections of 
the Administrative Procedure Act, including but not limited to, 5 
U.S.C. sections 554-57 and 701-706, would be followed in cases where a 
complaint of retaliation was made by an FBI employee. These procedural 
protections include, among other things, an impartial decision maker 
and decision based on the ``record'' of any proceedings without ex 
parte contacts, and judicial review as provided. Current laws and 
regulations which allow for the protection of classified material would 
also be available for such proceedings in appropriate situations and 
upon proper showings. The amendment, in new subsection (c), provides an 
individual right of action as provided under Chapter 12 of Title 5 
before the MSPB. The amendment, in new subsection (d), requires the 
Attorney General to prescribe regulations to ensure that the title is 
properly enforced at the FBI.
    Title III. FBI Security Career Program. Title III would 
require the FBI to establish a career security program to 
enhance the internal security of the FBI and ensure that 
appropriate management tools and resources are devoted to that 
task. Security professional career development requirements are 
modeled generally on the statutory Department of Defense 
Acquisition Career Program.

Section 301. Security management policies

    Section 301 would require the Attorney General to establish 
policies and procedures for career management of FBI security 
personnel.

Section 302. Director of the Federal Bureau of Investigation

    Section 302 would authorize the Attorney General to 
delegate to the FBI Director the Attorney General's duties with 
respect to the FBI security workforce and sets forth that the 
security career program will cover both headquarters and the 
FBI field offices.

Section 303. Director of security

    Section 303 would direct the FBI Director to appoint a 
Security Director. It is the Committee's intention that this 
official have unfettered, direct access to the Director of the 
FBI. The Security Director may have such other title as the FBI 
Director may determine. However, the Security Director not be 
an official with extensive non-security responsibilities that 
would dilute his or her focus on security matters.

Section 304. Security career program boards

    Section 304 would provide for the establishment of a 
security career program board to advise in managing hiring, 
training, education, and career development.

Section 305. Designation of security positions

    Section 305 would direct the FBI Director to designate 
certain positions as security positions, with responsibility 
for personnel security and access control, information systems 
security, information assurance, physical security, technical 
surveillance countermeasures, operational, program and 
industrial security, and information security and 
classification management.

Sections 306. Career development

    Section 306 would require that career paths to senior 
positions be published. FBI Special Agents would not have 
preference for a security position, and no positions would be 
restricted to Special Agents unless the Attorney General makes 
a special determination. All FBI personnel would have the 
opportunity to acquire the education, training and experience 
needed for senior security positions. The Attorney General 
would ensure that policies are designed to select the best 
qualified individuals, consistent with other applicable law. 
Consideration would also be given to the need for a balanced 
workforce.

Section 307. General education, training, and experience requirements

    Section 307 would direct that education, training, and 
experience requirements would be established for each position. 
Before assignment as manager or deputy manager of a significant 
security program, a person would have to complete a security 
program management course accredited by the Joint Department of 
Defense-Intelligence Security Training Consortium or determined 
to be comparable by the Director, and have 6 years security 
experience including 2 years in a similar program.

Section 308. Education and training programs

    Section 308 would direct the Director, in consultation with 
the Director of Central Intelligence and Secretary of Defense, 
to establish education and training programs for FBI security 
personnel that are, to the maximum extent practical, uniform 
with Intelligence and Department of Defense programs.

Section 309. Office of Personnel Management approval

    Section 309 would set forth the process for approval of 
requirements set forth under section 307.
    Title IV. FBI counterintelligence polygraph program. This 
title would require the Attorney General to establish an FBI 
Counterintelligence Polygraph Program for personnel in 
exceptionally sensitive positions that reflects consideration 
of the results of a pending National Academy of Sciences review 
of the validity of the polygraph within 6 months after 
publication of that review. The regulations would be prescribed 
in accordance with the Administrative Procedures Act. A similar 
requirement for the Department of Energy was passed in the 
latest Defense Authorization Act.

Section 401. Definitions

    Section 401 would define the term ``polygraph program'' to 
mean the counterintelligence screening polygraph program 
established under section 402. The term ``Polygraph Review'' 
would be defined to mean the review of the scientific validity 
of the polygraph for counterintelligence screening purposes 
conducted by the Committee to Review the Scientific Evidence on 
the Polygraph of the National Academy of Sciences.

Section 402. Establishment of program

    Section 402 would require the establishment of a 
counterintelligence screening polygraph program consisting of 
periodic polygraph examinations of employees and contractors in 
positions, as specified by the Director, as exceptionally 
sensitive. This program shall be established within 6 months of 
the publication of the results of the report of the Committee 
to Review the Scientific Evidence on the Polygraph of the 
National Academy of Sciences.

Section 403. Regulations

    Section 403 would direct that the program have procedures 
that address ``false positive'' results and ensure quality 
assurance and control in accordance with guidance from the 
Department of Defense Polygraph Institute and the DCI. No 
adverse personnel action could be taken solely by reason of 
physiological reaction on an exam without further investigation 
and personal decision by the Director. Employees could have 
prompt access to unclassified reports of their exams that 
relate to adverse personnel action. It is intended that the FBI 
develop program to use the polygraph as a tool to enhance its 
security, but not that the polygraph be used as a substitute 
for independent judgment and investigation, which are the 
hallmarks of a strong security program.

Section 404. Report on further enhancement of FBI personnel security 
        program

    Section 404 would require a report within 9 months of the 
enactment of the Act on any further legislative action 
appropriate in the personnel security area.
    Title V. FBI police. This title would provide statutory 
authorization for an already existing FBI police force that 
protects FBI buildings and adjacent streets. This police force 
is important to protect the FBI both from terrorist attack as 
well as ensuring that sensitive information cannot be easily 
smuggled out of the FBI. Currently, the FBI police suffer from 
a high rate of turnover due to lower pay and fewer benefits 
than the Uniformed Division of Secret Service or Capitol and 
Supreme Court police. This title would close this disparity.

Section 501. Definitions

    Section 501 would define the terms ``Director,'' ``FBI 
buildings and grounds,'' and ``FBI police'' as used in the 
title.

Section 502. Establishment of FBI police; duties

    Section 502 would authorize the FBI Director to establish 
the FBI police, subject to the Attorney General's supervision, 
to protect persons and property within FBI buildings and 
grounds, including adjacent streets and sidewalks within 500 
feet. FBI buildings and grounds would include any building 
occupied by the FBI and subject to FBI supervision and control, 
the land on which such building is situated, and enclosed 
passageways connecting such buildings. FBI police would be 
uniformed representatives of the FBI with authority to make 
arrests and otherwise enforce federal and D.C. laws, carry 
firearms, prevent breaches of the peace, suppress unlawful 
affrays and unlawful assemblies, and hold the same powers as 
sheriffs and constables. FBI police would not have authority to 
serve civil process. Pay and benefits would be equivalent to 
pay and benefits for the Secret Service Uniformed Division.

Section 503. Authority of metropolitan police force

    Section 503 would provide that the authority of the 
Washington, D.C. Metropolitan Police (``MPD'') would not be 
affected by this title. The Committee intends that the terms of 
the current Memorandum of Understanding between the FBI and the 
MPD, including the geographic bounds of FBI police 
jurisdiction, would not be altered by this section. This 
section is intended to enhance the ability of the FBI to retain 
qualified employees and to protect its facilities, it is not 
intended to diminish the police powers or authority of the MPD 
or of any other federal, state or local law enforcement agency.
    Title VI. Reports. This title would require two separate 
reports by the Attorney General and one by the General 
Accounting Office.

Section 601. Report on legal authority for FBI programs and activities

    Section 601 would require the Attorney General to submit a 
report to Congress on the legal authority for FBI programs and 
activities, identifying those that have express statutory 
authority and those that do not. The FBI does not have a 
statutory charter. One was proposed in 1979 but never enacted. 
Many FBI functions including its national intelligence and 
counterintelligence activities are authorized by Executive 
order rather than by statute, which means they could be revoked 
by future Executive order unless legislation is enacted. This 
section also requires the Attorney General to recommend the 
criminal statutes for which the FBI should have investigative 
responsibility, whether the authority for any FBI program or 
activity should be modified or repealed, whether the FBI should 
have express statutory authority for any program or activity 
for which it does not currently have such authority, and 
whether the FBI should have authority for any new program or 
activity. The Committee intends that the FBI evaluate which of 
its current programs are key to its future mission, and which 
are not. For those programs which it needs additional 
authority, the Committee requires its recommendations. For 
those programs upon which the FBI believes it should not longer 
focus, the Committee intends that the FBI recommend appropriate 
``exit strategies'' so that law enforcement can be shifted to 
other local, state, and federal agencies.

Section 602. Report on FBI information management and technology

    Section 602 would require the Attorney General to submit a 
report on FBI information management and technology, including 
whether additional authority is needed to waive normal 
procurement regulations in order for the FBI to effectively 
perform its functions. The report would provide the results of 
pending Justice Management Council studies and Inspector 
General audits and would require submission of a 10-point plan 
for improving FBI information management and technology to 
ensure that: (1) appropriate FBI technology management 
positions are filled by personnel with commercial sector 
experience; (2) access to the most sensitive information is 
audited so that suspicious activity is subject to near 
contemporaneous review; (3) critical information systems employ 
a public key infrastructure; (4) security features are tested 
by the National Security Agency; (5) FBI employees receive 
annual instruction in records and information management; (6) a 
research and development reserve is established; (7) undue 
requirements for less costly software purchases are eliminated; 
(8) contracting with an expert technology partner is 
considered; (9) procedures are instituted to procure through 
contracts of other agencies as necessary; and (10) system 
upgrades are tested before operational deployment.

Section 603. GAO report on crime statistics reporting

    Section 603 would require the General Accounting Office to 
investigate and report on how crime statistics are counted, 
reported, and used by Federal law enforcement agencies. 
Specifically, the report would identify policies that allow 
credit for a single case to be claimed or reported by more than 
one law enforcement agency, the conditions that allow such 
reporting to occur, the number of such cases reported during a 
4-year period, similar multiple claims of credit for arrests, 
the use or misuse of such statistics for administrative and 
management purposes, and relevant definitions. The report would 
include recommendations for how to eliminate unwarranted and 
duplicative reporting and whether such statistics are being 
improperly used for management and administrative purposes, 
including whether enforcement priorities or career advancement 
are overly dependent on the generation of such statistics. 
Federal law enforcement agencies would be required to comply 
with GAO requests for information necessary to prepare the 
report.
    Title VII. Ending the Double Standard. This title would 
address the issue of the ``double standard'' in the FBI, to 
prevent lower level employees from being more harshly 
disciplined than senior FBI officials for the same misconduct. 
Indeed, it is the Committee's intention that higher level 
employees be held to a more rigorous standard of good conduct. 
Section 7542 of title 5, United States Code, would be amended 
to allow disciplinary suspensions of SES members for 14 days or 
less, as is the case for other federal personnel. Current law 
provides only for suspension ``for more than 14 days.'' The 
substitute amendment adopted by the Committee adds section 702 
to require submission of certain reports to be completed by the 
FBI Office of Professional Responsibility.

Section 701. Allowing disciplinary suspensions of members of the senior 
        executive service for 14 days or less

    This section would lift the minimum of 14 days suspension 
that applies in the FBI's SES disciplinary cases and thereby 
provide additional options for discipline in SES cases and 
encourage equality of treatment. The current inflexibility of 
disciplinary options applicable to SES officials was cited at a 
Senate Judiciary Committee oversight hearing in July, 2001, as 
one underlying reason for the ``double standard'' in FBI 
discipline. In effect, those deciding the discipline of SES 
employees are often left with the choice of an overly harsh 
penalty or no penalty at all--so they decide not to impose any 
meaningful disciplinary action. This provision would remove 
that rationale for not imposing meaningful discipline on high 
level employees.

Section 702. Submitting office of professional responsibility reports 
        to congressional committees

    This section would require the OIG to submit to the 
Judiciary Committees, for five years, annual reports to be 
prepared by the FBI Office of Professional Responsibility 
summarizing its investigations, recommendations, and their 
disposition, and also would require that such annual reports 
include an analysis of whether any double standard is being 
employed for FBI disciplinary action. It is intended that both 
the Inspector General and the Committee monitor closely for the 
next five years the progress being made on the imposition of 
discipline at the FBI.
    Title VIII. Enhancing Security at the Department of 
Justice. The substitute amendment adopted by the Committee adds 
this title to implement recommendations of the Webster 
Commission for enhancing security at the Department of Justice, 
which handles sensitive FBI and national security information, 
and for secure communication of information shared between the 
FBI and the DOJ Office of Intelligence Policy and Review 
regarding Foreign Intelligence Surveillance Act matters.

Section 801. Report on the protection of security and information at 
        the Department of Justice

    This section would require the Attorney General to submit a 
report to Congress on the manner in which the DOJ Security and 
Emergency Planning Staff, Office of Intelligence Policy and 
Review, and DOJ Chief Information Officer plan to improve the 
protection of security and information at DOJ, including aplan 
to establish secure communications between the FBI and OIPR for 
processing information related to the Foreign Intelligence Surveillance 
Act.

Section 802. Authorization for increased resources to protect security 
        and information

    This section would authorize funds for the DOJ Security and 
Emergency Planning Staff to meet the increased demands to 
provide personnel, physical, information, technical, and 
litigation security for the DOJ, to prepare for terrorist 
threats and other emergencies, and to review security 
compliance by DOJ components. Amounts authorized would be $13 
million for FY 03, $17 million for FY 04, and $22 million for 
FY 05.

Section 803. Authorization for increased resources to fulfill national 
        security mission of the Department of Justice

    This section would authorize funds for the DOJ Office of 
Intelligence Policy and Review to help meet the increased 
personnel demands to combat terrorism, process applications to 
the Foreign Intelligence Surveillance Court, participate 
effectively in counterespionage investigations, provide policy 
analysis and oversight on national security matters, and 
enhance computer and telecommunications security. Amounts 
authorized would be $7 million for FY 03, $7.5 million for FY 
04, and $8 million for FY 05.

             VI. Congressional Budget Office Cost Estimate

    In compliance with paragraph 11(a) of rule XXVI of the 
standing Rules of the Senate, the Committee sets forth, with 
respect to the bill, S. 1974, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 403 of the Congressional Budget Act of 
1974:

                                                       May 6, 2002.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
United States Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1974, the Federal 
Bureau of Investigation Reform Act of 2002.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                            Dan L. Crippen.
    Enclosure.

S. 1974--Federal Bureau of Investigation Reform Act of 2002

    Summary: S. 1974 would direct the Attorney General and the 
Director of the Federal Bureau of Investigation (FBI) to 
implement certain management reforms and take other measures to 
improve oversight and security at the FBI. The bill would 
upgrade the pay and benefits of the FBI police force to equal 
the compensation package of the United States Secret Service 
Uniformed Division, beginning January 1, 2003. S. 1974 also 
would require the General Accounting Office and the Department 
of Justice (DOJ) to prepare several reports, mostly relating to 
security and management issues. Finally, the bill would 
authorize the appropriation of:
          A total of $52 million over the 2003-2005 period for 
        DOJ's Security and Emergency Planning Staff to improve 
        security in the agency's physical plant and computer 
        systems and to prepare for terrorist threats and other 
        emergencies; and
          A total of $23 million over the 2003-2005 period for 
        DOJ's Office of Intelligence Policy and Review to 
        combat terrorism and espionage, analyze national 
        security policy, and improve its security.
    Assuming appropriation of the necessary amounts, CBO 
estimates that implementing S. 1974 would cost $90 million over 
the 2003-2007 period. This legislation would not affect direct 
spending or receipts, so pay-as-you-go procedures would not 
apply. S. 1974 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not affect the budgets of state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 1974 is shown in the following table. 
The costs of this legislation fall within budget function 750 
(administration of justice).

----------------------------------------------------------------------------------------------------------------
                                                                  By fiscal year, in millions of dollars--
                                                          ------------------------------------------------------
                                                              2003       2004       2005       2006       2007
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Upgraded pay and benefits for FBI police:
    Estimated authorization level........................          2          3          3          3          3
    Estimated outlays....................................          2          3          3          3          3
Security and emergency planning staff:
    Authorization level..................................         13         17         22          0          0
    Estimated outlays....................................         10         16         21          4          0
Office of intelligence policy and review:
    Authorization level..................................          7          8          8          0          0
    Estimated outlays....................................          6          7          8          2          0
Reports and management reforms:
    Estimated authorization level........................          1      (\1\)      (\1\)      (\1\)      (\1\)
    Estimated outlays....................................          1      (\1\)      (\1\)      (\1\)      (\1\)
      Total changes:
        Estimated authorization level....................         23         28         33          3          3
    Estimated outlays....................................         19         26         32          9          3
----------------------------------------------------------------------------------------------------------------
\1\ Less than $500,000.

    Basis of estimate: For this estimate, CBO assumes that the 
authorized amounts will be appropriated by the beginning of 
each fiscal year and that outlays will follow the historical 
spending rates for these activities.
    Based on information from the FBI, CBO estimates that 
implementing the provisions of S. 1974 relating to pay and 
benefits for about 200 members of the FBI police force would 
cost about $2 million in fiscal year 2003 and about $3 million 
in each year thereafter.
    CBO estimates that the reports and management reforms 
required by the bill would cost about $1 million in fiscal year 
2003 and less than $500,000 in each year thereafter, subject to 
the availability of appropriations.
    Pay-as-you-go considerations: None.
    Intergovernmental and private-sector impact: S. 1974 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Estimate prepared by: Federal costs: Mark Grabowicz; Impact 
on state, local, and tribal governments: Angela Seitz; Impact 
on the private sector: Paige Piper/Bach.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                    VII. Regulatory Impact Statement

    In compliance with paragraph 11(b)(1), rule XXVI of the 
Standing Rules of the Senate, the Committee, after due 
consideration, concludes that S. 1974 will not have significant 
regulatory impact.
                     VIII. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 1974, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                          UNITED STATES CODE

           *       *       *       *       *       *       *


            TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *


                          PART III--EMPLOYEES

                     Subpart A--General Provisions

Chapter                                                          Section
21. Definitions...................................................  2101
23. Merit system principles.......................................  2301
     * * * * * * *

[Sec. 2303. Prohibited personnel practices in the Federal Bureau of 
                    Investigation

    [(a) Any employee of the Federal Bureau of Investigation 
who has authority to take, direct others to take, recommend, or 
approve any personnel action, shall not, with respect to such 
authority, take or fail to take a personnel action with respect 
to any employee of the Bureau as a reprisal for a disclosure of 
information by the employee to the Attorney General (or an 
employee designated by the Attorney General for such purpose) 
which the employee or applicant reasonably believes evidences--
          [(1) a violation of any law, rule, or regulation, or
          [(2) mismanagement, a gross waste of funds, an abuse 
        of authority, or a substantial and specific danger to 
        public health or safety.
[For the purpose of this subsection, ``personnel action'' means 
any action described in clauses (i) through (x) of section 
2302(a)(2)(A) of this title with respect to an employee in, or 
applicant for, a position in the Bureau (other than a position 
of a confidential, policy-determining, policymaking, or policy-
advocating character).
    [(b) The Attorney General shall prescribe regulations to 
ensure that such a personnel action shall not be taken against 
an employee of the Bureau as a reprisal for any disclosure of 
information described in subsection (a) of this section.
    [(c) The President shall provide for the enforcement of 
this section in a manner consistent with applicable provisions 
of sections 1214 and 1221 of this title.]

Sec. 2303. Prohibited personnel practices in the Federal Bureau of 
                    Investigation

    (a) Definition.--In this section, the term ``personnel 
action'' means any action described in clauses (i) through (x) 
of section 2302(a)(2)(A).
    (b) Prohibited Practices.--Any employee of the Federal 
Bureau of Investigation who has the authority to take, direct 
others to take, recommend, or approve any personnel action, 
shall not, with respect to such authority, take or fail to take 
a personnel action with respect to any employee of the Bureau 
or because of--
          (1) any disclosure of information by the employee to 
        the Attorney General (or an employee designated by the 
        Attorney General for such purpose), a supervisor of the 
        employee, the Inspector Generalfor the Department of 
Justice, or a Member of Congress that the employee reasonably believes 
evidences--
                  (A) a violation of any law, rule, or 
                regulation; or
                  (B) mismanagement, a gross waste of funds, an 
                abuse of authority, or a substantial and 
                specific danger to public health or safety; or
          (2) any disclosure of information by the employee to 
        the Special Counsel of information that the employee 
        reasonably believes evidences--
                  (A) a violation of any law, rule, or 
                regulation; or
                  (B) mismanagement, a gross waste of funds, an 
                abuse of authority, or a substantial and 
                specific danger to public health or safety,
        if such disclosure is not specifically prohibited by 
        law and if such information is not specifically 
        required by Executive order to be kept secret in the 
        interest of national defense or the conduct of foreign 
        affairs.
    (c) Individual Right of Action.--Chapter 12 of this title 
shall apply to an employee of the Federal Bureau of 
Investigation who claims that a personnel action has been taken 
under this section against the employee as a reprisal for any 
disclosure of information described in subsection (b)(2).
    (d) Regulations.--The Attorney General shall prescribe 
regulations to ensure that a personnel action under this 
section shall not be taken against an employee of the Federal 
Bureau of Investigation as a reprisal for any disclosure of 
information described in subsection (b)(1), and shall provide 
for the enforcement of such regulations in a manner consistent 
with applicable provisions of sections 1214 and 1221, and in 
accordance with the procedures set forth in sections 554 
through 557 and 701 through 706.

           *       *       *       *       *       *       *


           SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS

                 CHAPTER 71--LABOR-MANAGEMENT RELATIONS


                   Subchapter I--General Provisions

           *       *       *       *       *       *       *



                      CHAPTER 75--ADVERSE ACTIONS

           *       *       *       *       *       *       *



                 Subchapter V--Senior Executive Service

 7541. Definitions.
7542. Actions covered.

           *       *       *       *       *       *       *


Sec. 7542. Actions covered

    This subchapter applies to a removal from the civil service 
or suspension [for more than 14 days], but does not apply to an 
action initiated under section 1215 of this title, to a 
suspension or removal under section 7532 of this title, or to a 
removal under section 3592 or 3595 of this title.

           *       *       *       *       *       *       *


             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

                               APPENDIXES

Appendix                                                            Page
1. Reorganization Plans...........................................     3
2. Federal Advisory Committee Act.................................   531
573spector General Act of 1978..................................

           *       *       *       *       *       *       *


               APPENDIX 3.--INSPECTOR GENERAL ACT OF 1978

Sec.
1. Short title.
     * * * * * * *
8E. Special provisions concerning the Department of Justice.

Sec. 8E. Special provisions concerning the Department of Justice

    (a)(1) Notwithstanding the last two sentences of section 
3(a), the Inspector General shall be under the authority, 
direction, and control of the Attorney General with respect to 
audits or investigations, or the issuance of subpenas, which 
require access to sensitive information concerning--

           *       *       *       *       *       *       *

    (b) In carrying out the duties and responsibilities 
specified in this Act, the Inspector General of the Department 
of Justice--
          (1) may initiate, conduct and supervise such audits 
        and investigations in the Department of Justice as the 
        Inspector General considers appropriate;
          [(2) shall give particular regard to the activities 
        of the Counsel, Office of Professional Responsibility 
        of the Department and the audit, internal 
        investigative, and inspection units outside the Office 
        of Inspector General with a view toward avoiding 
        duplication and insuring effective coordination and 
        cooperation; and
          [(3) shall refer to the Counsel, Office of 
        Professional Responsibility of the Department for 
        investigation, information or allegations relating to 
        the conduct of an officer or employee of the Department 
        of Justice employed in an attorney, criminal 
        investigative, or law enforcement position that is or 
        may be a violation of law, regulation, or order of the 
        Department or any other applicable standard of conduct, 
        except that no such referral shall be made if the 
        officer or employee is employed in the Office of 
        Professional Responsibility of the Department.]
          (2) except as specified in subsection (a) and 
        paragraph (3), may investigate allegations of criminal 
        wrongdoing or administrative misconduct by an employee 
        of the Department of Justice, or may, in the discretion 
        of the Inspector General, refer such allegations to the 
        Office of Professional Responsibility or the internal 
        affairs office of the appropriate component of the 
        Department of Justice;
          (3) shall refer to the Counsel, Office of 
        Professional Responsibility of the Department of 
        Justice, allegations of misconduct involving Department 
        attorneys, investigators, or law enforcement personnel, 
        where the allegations relate to the exercise of the 
        authority of an attorney to investigate, litigate, or 
        provide legal advice, except that no such referral 
        shall be made if the attorney is employed in the Office 
        of Professional Responsibility;
          (4) may investigate allegations of criminal 
        wrongdoing or administrative misconduct, including a 
        failure to properly discipline employees, by a person 
        who is the head of any agency or component of the 
        Department of Justice; and
          (5) shall forward the results of any investigation 
        conducted under paragraph (4), along with any 
        appropriate recommendation for disciplinary action, to 
        the Attorney General, who is authorized to take 
        appropriate disciplinary action.
    (c) Any report required to be transmitted by the Attorney 
General to the appropriate committees or subcommittees of the 
Congress under section 5(d) shall also be transmitted, within 
the seven-day period specified under such section, to the 
Committees on the Judiciary and Governmental Affairs of the 
Senate and the Committees on the Judiciary and Governmental 
Operations of the House of Representatives.
    (d) If the Attorney General does not follow any 
recommendation of the Inspector General made under subsection 
(b)(5), the Attorney General shall submit a report to the 
chairperson and ranking member of the Committees on the 
Judiciary of the Senate and the House of Representatives that 
sets forth the recommendation of the Inspector General and the 
reasons of the Attorney General for not following that 
recommendation.
    (e) The Attorney General shall ensure by regulation that 
any component of the Department of Justice receiving a 
nonfrivolous allegation of criminal wrongdoing or 
administrative misconduct by an employee of the Department of 
Justice shall report that information to the Inspector General.

           *       *       *       *       *       *       *


                                  
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