WASHINGTON - Sen. Chuck Grassley today asked FBI Director Robert Mueller to account for findings in a newly uncovered report about the way the bureau fails to take action with problematic FBI employees before they commit abuses and crimes that result in termination and sometimes even prosecution.
The report cited by Grassley in a letter to Mueller was prepared in 2000 by the FBI's own Behavioral Sciences and Law Enforcement Ethics units. Grassley said that the contents of the three-year old BETA report that's been kept under wraps should "see the light of day so that the necessary internal reforms can be made, rather than embarrassing information swept under the rug inside the FBI."
A copy of Grassley's letter follows here.
February 18, 2004The Honorable Robert S. Mueller
Dear Director Mueller:
The purpose of this letter is to inquire and express concern about the Federal Bureau of Investigation's (FBI) response, or lack thereof, to problems in its disciplinary system. Specifically, I have concerns about the Behavioral and Ethical Trends Analysis (BETA) report, its alarming findings, a lack of response to the findings and recommendations, a general lack of support for the project and even efforts to prevent its completion, and attempts to withhold the report from Congress and the public.
The BETA report analyzed the worst of the worst at the FBI - agents whose actions were so egregious that they were fired and oftentimes prosecuted. Authored by the Behavioral Sciences Unit, with the aid of the Law Enforcement Ethics Unit, the shocking report is a laundry list of horrors, with examples of agents who committed rape, sexual crimes against children, other sexual deviance and misconduct, attempted murder of a spouse, and narcotics violations, among many others. For example:
- An agent "was calling sex hotlines with Bureau phones while on duty."
- An agent "engaged in egregious conduct engaging in a non-consensual sexual acts with a subordinate employee (rape)..."
- An agent ... "used his Bureau weapon to shoot his spouse resulting in criminal attempted homicide charges."
- "A former Agent engaged in interpersonal violence, such as sexual abuse of minor children, physically assault of an adult female, and long-term misconduct."
- "A former Agent had a severe gambling/alcohol problem and engaged in theft of informant funds to the excess of $400,000 resulting in an indictment, arrest, and imprisonment."
- "This Agent was dismissed for admission of unauthorized disclosures of classified information to individuals representing a foreign intelligence agency... SA acknowledged disclosing a substantial amount of classified information about the FBI to others..."
- "Former Agent pled guilty to manslaughter after killing his informant, after years of an inappropriate emotional and sexual relationship with her. He covered up the murder ..."
- This Agent was fired for criminal, sexual offenses involving numerous incidents of sexual behavior in public, including public masturbation and frequent assault on his victims. Agent was a paraphiliac engaging in fetishism."
Overall, the report indicated that these fired agents often exhibited warning signs, such as a history of misconduct, before they committed the act that warranted their termination. The majority (63%) of fired agents had been engaged in long-term misconduct, and almost half (45%) had a history of previous disciplinary action. While it's laudable that the FBI does fire agents who commit such terrible acts, these findings raise concerns about whether the FBI was dealing with problem agents soon enough and rigorously enough, possibly because of a reluctance to impose severe discipline. The report states that "There were some 'markers' identified in dismissed FBI Agents that included Agents hired with a checkered past, Agents with an established history of long-term misconduct ... Agents with a history of severe emotional, psychological, family problems, substance abuse problems, or clear indicators of such." By identifying whether there are common traits among agents who commit such wrongdoing, as the BETA report suggests, the FBI might be better able to screen out potentially troubling applicants, more closely monitor agents who commit misconduct and react more quickly to severe and repeated misconduct.
The report also recognizes the double standard in discipline problem: "Serious misconduct is evident at all grades/positions. Senior Executive Service (SES) employees appeared to receive fewer suspensions/dismissals despite indications that they, too, engaged in egregious behavior, similar to non-SES employees." The report does acknowledges that there could be explanations for the differences, and suggests the issue be studied in the future. It is worth noting that none of the agents included in the study were at the SES level. The most likely explanation is that FBI officials at the SES level are able to and allowed to retire before a misconduct investigation makes any progress, or before discipline has been imposed. The OIG recognized this problem in its November 2002 report on the FBI's double standard in discipline: "Eighth, we encountered many instances where senior FBI employees retired while under investigation for misconduct, and the disciplinary process ceased. We believe the FBI should consider continuing the disciplinary process in certain cases, even when an FBI employee retires while under investigation, so that a final disciplinary decision is reflected in the employee's personnel file." In a May 30, 2003 letter to me, you stated that the FBI disagrees with this OIG recommendation.
Another alarming finding in the report was that the FBI failed to conduct a thorough background check on some of the agents in the study, or it hired them despite knowing they had problems: "Despite a negative recommendation or 'no hire' from employers, the individual was hired." The report recommended that the FBI keep statistics on fired agents in the future to identify other trends in behavior.
Such a study or effort, or any study by the ethics unit, appears unlikely. I understand that the ethics unit now has only two supervisors, a significant reduction from the three supervisors and a Unit Chief in the unit just two years ago. It appears that in the last two years, the FBI has actively worked to diminish the ethics unit, starve it of resources and ultimately let it cease to function in any meaningful way. The ethics unit has withered on the vine. I wrote to you more than a year ago about a cut in the ethics unit staff. Robert Jordan, Assistant Director of the Office of Professional Responsibility (OPR) at the time, initiated this reduction in staff shortly after a member of the ethics unit questioned his behavior toward Agent John Roberts and was interviewed with the FBI's knowledge and authorization by our staff regarding Mr. Jordan's actions. It seems the ethics unit has only fallen into more disfavor since that time.
This is unfortunate because it sends a signal to the public, as well as to other law enforcement agencies in this country and around the world, that ethics is not important to the FBI. The specific role and mission of the ethics unit - to teach ethics to new agents and other agencies; and to cast a critical eye on the operations of the FBI and raise concerns about unethical practices - is now essentially gone, and the FBI is the worse for it. The ethics unit's useful and important projects such as the BETA report, or the 1999 report on the double standard in discipline, will be no more.
The BETA report almost never saw the light of day. Preliminary work began in 1996, but approval did not come until January of 1998. However, as the report states on page 80, "Funding was again delayed by FBIHQ in the fall of 1998." I understand there were other obstacles as well, but the report was finally completed in June 2000 and then presented to senior FBI officials. It was not released publicly, nor was its existence even announced.
There were other efforts to cover up the BETA report. Sen. Patrick Leahy - in his capacity as Chairman of the Senate Judiciary Committee at the time - and I requested the BETA report in a letter dated November 26, 2002. We did not receive the report until July 2003. Along with the report came a letter from the Justice Department that stated, in part: "The Bureau has advised that this document consists of a compilation of sensitive data concerning FBI disciplinary matters and should not be publicly disclosed." The letter gives no other justification for the statement that the BETA report should be suppressed. Privacy concerns cannot be an issue, since the fired agents in the study are not named, and even names of agents who worked on the report are redacted. Essentially, the Department letter states the FBI's position is that the BETA report is embarrassing, so the public, who paid for the report with tax dollars, should not know about it. I find this to be a novel approach to suppressing embarrassing information. Usually when agencies seek to suppress information, they invoke reasons such as "classified information" or the "privacy" of bureaucrats who commit wrongdoing.
The statement in the Department's letter raises a number of questions and concerns. First, is the letter accurate about the FBI's position that the BETA report should not be publicly disclosed? Second, please identify by name and title the FBI official(s) who recommended, requested or ordered the Department to make the statement in the letter that the report should not be publicly disclosed. Third, is "sensitive data," or embarrassing information, a new category of information the FBI now seeks to prevent from public disclosure?
This statement in the Department's letter is also a concern because I understand that you are also withholding from Congress the forthcoming study of the FBI's OPR. The FBI received a nearly-final draft of the report last week for purposes of checking spelling and facts. Senator Orrin Hatch and Representative James Sensenbrenner - chairmen of the Senate and House Judiciary Committees, respectively - Senator Leahy, and I last week requested that our offices be briefed on the report within two days of its submission to the FBI. The two days have now passed. I renew the request for an immediate briefing by the attorneys at King & Spalding who authored the report, as opposed to after it is released publicly, which appears to be the FBI's intention. I would appreciate a response to this letter by Friday, March 5, 2004. I thank you in advance for your cooperation.Sincerely,