STATEMENT OF SENATOR PATRICK LEAHY,
CHAIRMAN, SENATE JUDICIARY COMMITTEE
“Reforming FBI Management:
The Views From Inside And Out”
July 18, 2001
Today, the Judiciary Committee is holding its second oversight hearing on the Federal Bureau of Investigation. Before I address the subject of today’s hearing, I want to note three significant developments concerning the FBI that have taken place in recent days. The first is that the President has announced his intention to nominate Robert S. Mueller to be the next FBI Director. I have met with Mr. Mueller, as I know several other Members of the Committee have, and I intend to proceed with his confirmation hearing expeditiously, after the President formally sends his nomination to the Senate.
The second important recent development concerns an issue that was at the heart of this Committee’s hearing last month: FBI oversight. Last Wednesday, the Attorney General issued an order redefining the jurisdiction of the Office of Inspector General to give it authority to investigate allegations of misconduct by employees of the FBI and the Drug Enforcement Administration. As the witnesses at our last hearing explained, the scope of the Inspector General’s authority over the FBI has been a source of recurring controversy that has made FBI oversight more difficult for many years. Although the Inspector General statute gives the Inspector General broad authority to investigate the FBI, various internal rules of Department of Justice have limited that authority. In 1992, then-Deputy Attorney General Terwilliger issued an order that generally gave the jurisdiction over attorneys and law enforcement personnel only to the Justice Department’s OPR. The Inspector General’s authority was broadened in 1994 by then-Attorney General Reno, who issued an order superseding the Terwilliger order and granting the Inspector general the authority to investigate FBI personnel when the investigation was specifically authorized by the Attorney General or by a Deputy Attorney General. While this was a big step in the right direction, it did not go far enough.
I commend Attorney General Ashcroft for his wise decision to remove the remaining restrictions on the Inspector General’s authority. I also acknowledge Senator Grassley for his efforts in helping to encourage this important reform. However, while the changing of the Justice Department’s internal rules is certainly a welcome development, I believe that we need to make this reform permanent by legislation. We should not leave matters in a position where the Inspector General’s important role in performing FBI oversight could once again be frustrated by the stroke of the pen by a future Attorney General.
The third development was yesterday’s announcement by the Attorney General about weapons and computers that are missing from the FBI’s inventory. This audit again underscores some of the management problems we are examining through these hearings and that we hope to help remedy, and we will discuss this latest example, and what it means, with our witnesses today.
In order for us to understand why the FBI has had the number of problems that it has in recent years, it is important to look at how it is managed. In recent months, we have seen a number of indications that the FBI’s management is badly in need of an overhaul. We see the results of management failures, for example, in the discovery violation in the Oklahoma City bombing case, which led to the delay in carrying out the court-ordered execution of Timothy McVeigh. We also see it in the FBI’s failure for more than 15 years to detect the espionage activities of former agent Robert Hanssen, who pleaded guilty to selling some of this country’s most sensitive classified information to the KGB.
The management problems at the FBI may stem in part from how the organization is structured. FBI Headquarters in Washington constantly struggles to stay abreast of developments in the FBI’s 56 field offices and 44 foreign Legal Attache or "Legat" offices and to ensure that each of these offices is following orders and procedures. It is often when field offices ignore or do not fully comply with orders from Headquarters that problems happen -- for example, in the FBI’s belated production of documents in the Oklahoma City bombing case. We continue to await the outcome of the Justice Department’s Inspector General review of how this happened in the face of 16 separate orders from Headquarters for pre-trial production of these documents.
The May, 2000, report of the Attorney General’s Review Team, headed by federal prosecutor Randy Bellows, on The Handling of the Los Alamos National Laboratory Investigation of Wen Ho Lee, dissected the relationship between FBI Headquarters and the Albuquerque, New Mexico, field office and found serious flaws, some of which stem from a fear on the part of lower-level FBI agents at Headquarters of being perceived as criticizing more senior agents in the field. While the full Bellows report remains classified, in response to a request from Senator Specter and myself, the Justice Department has provided the Committee with an unclassified version of the report. This report documents how the National Security Division became aware of the field office’s "poor handling of the case," yet "took no effective measures to fix the problem, even when it was given an opportunity to do so. Instead, it simply attempted to run the case from FBI Headquarters, an approach that was unmanageable from the start and which would severely handicap the investigation." (Bellows Report, p. 4).
When, for example, two extra agents were sent to the field office to assist in the Wen Ho Lee investigation but were diverted to other investigations, the Assistant Director of the FBI’s National Security Division was not informed. A Unit Chief in the same Headquarters Division explained that "it would have been ‘impolitic’ to advise [the Assistant Director] of the diversion. He said the ‘culture’ of the FBI is ‘very intolerant’ of that kind of reporting." (Bellows Report, p. 98). This Unit Chief told another supervisory agent that he should not “‘stir the beans’ because it would have been inappropriate to ‘mess with a SAC’s decision.’" (Id., at p. 99). He warned "that you don’t get ahead in the FBI ‘if you stab SACs in the back.’" (Id.). As a consequence, the problem of the two agents being diverted remained unresolved.
Periodic inspections provide a significant mechanism for FBI Headquarters to check on the progress of cases and communicate, in the form of "interrogatories," specific complaints to field offices about their handling of cases. Yet the Bellows Team uncovered some dirty laundry there, too. A supervisory agent involved in the Wen Ho Lee investigation at Headquarters said that "interrogatories are not, in reality, used as an opportunity to complain about a field office: ‘We’re never allowed to be candid in interrogatories.’" (Bellows Report, p. 161). This prompted appropriately strong criticism in the Bellows Report, which stated: "If true, if the FBI ‘culture’ does not encourage, indeed require, that FBI-HQ personnel be blunt and candid in interrogatories, this essentially eviscerates the value of the interrogatories. . . . The issue is [redacted] failure to avail itself of an institutional mechanism – the inspection process – which is specifically designed by the FBI to insure that all significant problems in a field office are identified and addressed in an inspection." (Id. at p. 161, italics in original).
The Bellows Report concluded that "[i]f the FBI ‘culture’ discourages ‘full disclosure’ in the interrogatories or interviews associated with the inspection process, that ‘culture’ needs to be altered. All FBI personnel should be advised that the FBI will not tolerate anything other than ‘full disclosure’ in the inspection process." (Bellows Report, p. 774). This recommendation is so patently obvious it is shocking that it had to be made. The challenge to the new Director and new management team he brings into the FBI will be to make sure it happens.
Even within FBI Headquarters, disputes between the National Security Division (NSD) and the Criminal Investigative Division (CID) over the Wen Ho Lee investigation appear to have slowed the investigation down. In a heavily redacted portion of the Bellows Report, we learn that concern over the effect of an espionage prosecution on the FBI Director’s interest in opening a LEGAT in Beijing were a factor in the investigation. The Bellows Report summarizes "the stark choice" of concern to certain senior FBI agents "that it might come down to doing without Beijing legat or espionage prosecution. . . Finally, this must be said: NSD permitted CID’s admittedly legitimate concerns about [redacted] sensitivities to undermine a critical FBI investigation about [redacted] espionage." (Bellows Report, p. 183-84).
This is an area where we are lucky to have former Commissioner of the U.S. Customs Service, Raymond W. Kelly, here to talk to us about structural problems he encountered at that law enforcement agency and what he did about them.
Another key area of concern about FBI management is in the area of security and information technology. In a letter last month to Chairman Sensenbrenner of the House Judiciary Committee, former FBI Director Freeh conceded that the FBI’s computer systems were “obsolete” and that its approach to planning and funding for improvements was “inadequate.” At a briefing last week, the FBI told our Committee’s staff that there are no less than 15 areas where FBI’s internal security must be improved. We will be hearing today from Mr. Bob Dies, a former executive at IBM who has been hired by the FBI as an Assistant Director to take on the Herculean task of upgrading its information technology. Mr. Dies will tell us what he’s discovered since he took on this job and how his efforts to upgrade the FBI’s computer systems are progressing. We will also hear from Mr. Ken Senser, who has recently been brought in from the Central Intelligence Agency to be a Deputy Assistant Director of the FBI in charge of internal security. Internal security at the FBI is obviously a major concern in the wake of the Hanssen case, and we appreciate Mr. Senser’s helping to keep the Committee informed in this critical area.
A final management issue that our hearing will address is how the FBI handles its internal discipline. A well-managed law enforcement agency needs to deal appropriately with allegations of misconduct by its agents and employees. Further, it is important that the process be perceived as fair by both its employees and the American public at large. A perception that credible allegations of misconduct are being whitewashed, or that a double standard of discipline is being applied in which senior supervisors get lighter punishment than line agents for the same offenses, will erode public confidence and demoralize the agency’s own employees. Morever, those who investigate allegations of misconduct must know that they are free to do their jobs and pursue their investigation wherever it may lead, without fear of retaliation.
Some of the most disturbing testimony at our last hearing was given by Senator Danforth, who told of two FBI agents who believed that they had been retaliated against for their work on the Ruby Ridge investigation and the Waco investigation. In our second panel of witnesses, we will be hearing from those two agents, along with two of their colleagues. They will be giving us a unique insider’s perspective on the FBI’s internal disciplinary process.
The purpose of these hearings is not to re-hash old mistakes or to re-open old investigations. This is not a re-investigation of what happened at Waco, Texas. The review so ably conducted by former Senator Danforth is the definitive investigation of that matter. Nor are these hearings intended to be a re-investigation of what happened at Ruby Ridge, Idaho, since that matter was thoroughly reviewed by this Committee under the leadership of Senator Specter and Senator Kohl in 1995. Nevertheless, we are going to hear about both those events today. How the FBI handled the aftermath of both those tragedies can illuminate the management flaws that persist within the Bureau and must be corrected.
At the heart of these management flaws is how the agency deals with those employees who are tasked with examining the FBI itself. Senator Danforth identified this crucial problem in response to my written questions. He said:
"I do believe the FBI has an unwritten policy of doing nothing to embarrass the FBI.. The agency has a great deal of leverage over its agents and significant ability to punish ‘troublemakers,’ with its power of promotions and job assignments. Therefore I believe that there is a real reluctance on the part of most FBI employees to report wrongdoing. . . . The reality for an employee who loves his job is that there is no realistic protection from the isolation and rejection which can result from reporting wrongdoing within the organization or exposing it to criticism. . . . The consistent message from the Department of Justice and the FBI should be that careers in the agency can survive mistakes, because everyone makes mistakes, but careers cannot survive coverups. Candor must be the highest value at the FBI."
The Committee will hear first-hand accounts from current and retired FBI agents about their experiences on the front-line of conducting internal investigations of the FBI.
A related issue is how, once an internal investigation has been completed, the FBI resolves the matter and, specifically, decides who is culpable and what the punishment, if any, should be. In the Ruby Ridge report filed by the Subcommittee on Terrorism, Technology and Government Information almost six years ago, we observed that "FBI agents conducting internal reviews were not adequately insulated from the subjects of their review." We further noted instances "of friends reviewing friends’ conduct and the subjects of the reviews later sitting on the promotion boards of the very agents who reviewed their conduct." In short, we warned that "[t]his has created the impression that a small group of insiders review the conduct of the FBI, punishing lower level, ‘outsider’ FBI agents and protecting higher-level, inside-track FBI agents."
Unfortunately, we will hear that this “good old boy” network has been allowed to persist. Some may find it surprising to learn that the final recommendations on punishment for those agents involved in the aftermath of Ruby Ridge were issued quietly and without fanfare almost nine years after that 1992 tragedy, in January, 2001. The decision, made by the Justice Management Division of the Department of Justice over three years after being tasked to evaluate recommendations for discipline, was that no disciplinary action should be taken against any FBI agents involved in the Ruby Ridge matter beyond those lower-level employees already disciplined in January, 1995. This conclusion was contrary to the well-supported findings and recommendations of the Office of Professional Responsibility of the Department of Justice as well as the Justice Management Division’s own Task Force on Ruby Ridge. Those offices recommended sanctions against four supervisory FBI agents. JMD’s Task Force also recommended that the discipline previously imposed on three lower-level agents be rescinded because of procedural defects in the original investigation and exculpatory information that had subsequently been developed.
Nevertheless, the JMD decision disregarded most of these recommendations and acknowledged the allegations against only two FBI agents, who had been found by the investigators to have failed to insure the integrity of interview notes or to conduct a complete or adequate investigation of Ruby Ridge. Yet, because the Assistant Attorney General for Administration was unwilling to ascribe improper motive to the employees, no discipline was imposed.
Again, our purpose is not to reopen old investigations, and fairness to those agents who were under investigation prohibits a more specific discussion of the case. The documents reflecting these decisions are not public. Nevertheless, the adjudication conducted in the Ruby Ridge investigation shows precisely why some have come to question whether there is a double standard among FBI agents on matters of internal discipline.
Of course, it is always important to remember that the great majority of FBI agents bear no responsibility for any of the problems we have been discussing. Former agent John Werner, who will be testifying on our second panel, states that the majority of the members of the Senior Executive Service at the FBI are “sincere, dedicated law enforcement professionals” and that his observations of improper influence and misconduct relate only to a vocal minority of the Senior Executive Service. We should never forget the debt that we owe to all of the FBI agents who do their jobs fairly and professionally and who risk their lives in service to this country.
The American people and this committee owe a debt of gratitude to the courage of the agents who are with us to share their experiences and observations today. The thankless assignments they have accepted within the Bureau were taken and performed by them at considerable personal and professional cost. Their service to the nation and to the bedrock interests of the Bureau itself are in the best tradition selfless public service and of the bravery that is the centerpiece of the FBI emblem.
In answers to the written questions I submitted after our last hearing, Judge Webster made an interesting observation. He said that in the courtyard at the FBI headquarters in Washington, there is the following inscription:
“The key to effective law enforcement is cooperation at all levels and with the support and understanding of the American people.”
The purpose of these hearings is to restore the confidence of the American people that the FBI is living up to this motto. Our purpose is to make the FBI the best that it can be.
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