The bill he sponsored with Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, gives the Justice Department's inspector general authority to oversee the FBI. Grassley and Leahy pledged to seek this authority during a committee hearing last summer on problems with FBI management. The attorney general subsequently issued an order expanding the IG's authority. Today's legislation brings accountability to the FBI by codifying the new jurisdiction for the IG so that the change is not subject to the whim of any particular administration. It also requires the IG to report to Congress on its oversight of the FBI.
Grassley and Leahy's legislation also gives FBI whistleblowers the same rights given to other federal employees by the Whistleblower Protection Act of 1989. Grassley wrote the whistleblower law and said it was time to establish legal protections for FBI whistleblowers. "They were left out in 1989 with the understanding that the attorney general would issue regulations to institute protections. The FBI never made good on that commitment until Dr. Fred Whitehurst blew the whistle in the mid-90s on bad science in the crime lab and the exposure forced the Justice Department's hand. Even so, FBI whistleblowers deserve the full protection of the law, and it's time for Congress to act on their behalf," Grassley said.
The bill introduced today also addresses an issue Grassley has targeted as a major problem with the FBI, its overextended jurisdiction. The legislation he introduced with Leahy says the attorney general must report to Congress on the legal authority for all FBI programs and activities and indicate where statutory authority exists and where it doesn't. Grassley said this report will be used to develop additional strategies to help the FBI concentrate on its primary mission. "The FBI has extended its reach to far too many areas to do its main job right, and that is preventing terrorism. It's not in the FBI's nature to give up any territory. In fact just the opposite is true," Grassley said. "So Congress needs to get involved in scaling back the FBI's jurisdiction in the interest of public safety and security."
Grassley said the legislation introduced today also seeks to eliminate the disparity in disciplinary action within the FBI. "Employees in the Senior Executive Service typically get a slap on the wrist while rank-and-file agents are held to the letter of the law," he said. The Leahy/Grassley bill lifts the current requirement that SES employees be suspended for a minimum of 14 days when such action is taken. Grassley said this will enable FBI managers to discipline SES employees for infractions held against other employees by eliminating the excuse used now that 14 days is overly harsh and enabling suspensions for any number of days, as appropriate.
Grassley has conducted extensive FBI oversight since 1997 and exposed serious mistakes that led to botched investigations and risked public safety. "The FBI has bred a culture that rewards image over product," he said. "Instead of valuing the fundamentals of investigating, the FBI's top management has sent a message with its own actions that careers are made on the publicity of high-profile cases."
Grassley said that the new director and clear mandate following September 11 must change the style-over-substance FBI. "My goal with this reform legislation is to contribute to a new way of doing business, where the FBI's top management rewards what FBI agents do best, seek the truth, and let the truth convict," he said.
Grassley is a senior member of the Senate Judiciary Committee. He is the ranking member of the Subcommittee on Crime and Drugs.
This FBI reform bill is a long time in coming. As you've heard me lament so many times, the FBI has bred a culture that rewards image over product. The top management has sent a message with its own actions that careers are made on the publicity of high-profile cases.
The appointment of a new director last year opened up a big opportunity to turn the FBI around. It was a chance to see the management start valuing the fundamentals of investigating.
And now, with the clear mandate following September 11, there's no doubt that the style-over-substance FBI has to change. The FBI must do its main job right, and that is preventing terrorism.
The goal of our legislation is to contribute significantly to a new way of doing business, where the FBI's top management rewards what FBI agents do best, seek the truth, and let the truth convict.
Key components in the reform proposal we're introducing today are based on what I learned over many years of conducting FBI oversight.
Number one, the attorney general did the right thing last year when he responded to our argument that the Justice Department inspector general should be able to investigate misconduct by the FBI. Before that, the FBI's own internal office of professional responsibility handled it. That's like having the fox guard the henhouse. With this bill, we say the Justice Department IG's authority to watch over the FBI should be permanent.
Second, with this bill, we want to give FBI whistleblowers the same protections other federal employees have under the Whistleblower Protection Act of 1989. I wrote this law, and it was the first bill signed by the first President Bush. FBI employees were left out and the FBI was supposed to issue regulations establishing protections. Well that never happened. The case of the Dr. Whitehurst, who brought to light problems in the crime lab, revealed that omission, and some changes were made but they fall short. It's time to give FBI whistleblowers the full protection of the law.
Third, our bill starts a process that will lead to an FBI that's more focused on top priorities and less able to gobble up jurisdiction where ever it comes along, PacMan-style. I've talked with Director Mueller at length about this problem. The way I see it, Congress is going to help the Bureau by easing its over-burdened jurisdictional demands so it can focus on terrorism. It's a matter of public safety and security.
Finally, our bill takes a step to shrink the disparity in disciplinary action within the FBI. Right now, FBI employees in the Senior Executive Service gets slaps on the wrist and rank-and-file FBI agents are punished to the letter of the law. We can help change this practice by getting rid of an excuse that's used to let top-staff get away without disciplinary action.
I appreciate Chairman Leahy's interest in these important issues. I haven't had much company on Capitol Hill, and the FBI has undergone less-than-rigorous congressional scrutiny.
This bill and continued oversight work are about restoring law and order inside the FBI so that public confidence and public safety and security can be restored on the outside.
Title I. Authority of DOJ Inspector General
Problem ? Prior to Attorney General Ashcroft's order expanding the jurisdiction of the Department of Justice Office of Inspector General (DOJ OIG) to include the FBI and DEA, oversight of these two agencies was done internally. This self-policing was a conflict of interest and provided little real oversight. An Attorney General's order this past summer temporarily remedied the situation. However, this expansion of the DOJ IG jurisdiction needed to be made permanent.
Bill's solution ? Provides for improved DOJ and Congressional oversight of the FBI by codifying the AG's order ensuring that the DOJ OIG is authorized to investigate allegations of misconduct at the FBI. The bill requires a report to the Judiciary Committees on how the OIG carries out this new authority.
Title II. Whistleblower Protection
Problem ? The FBI was excluded from the Whistleblower Protection Act and its amendments. The President directed the Attorney General to formulate some whistleblower protections for the FBI. There was considerable delay before the regulations were formulated and when they were they were little more than an internal review with no appeal. Thus, few FBI whistleblowers have come forward and availed themselves of these weak protections.
Bill's solution ? amends Title 5, U.S.C. § 2303, to enhance the whistle blower protection provided to FBI employees. This provision creates a two tier system:
?Non-confidential information: The first tier of FBI whistleblower protection is for FBI employees who are blowing the whistle on wrongdoing that does not require the disclosure of classified information. These employees will have all the rights and protections afforded other federal employees by the Whistleblower Protection Act (WPA), which can be found in Chapter 12 of Title V. This bill will give them no more and no less protection than is afforded the majority of other federal employees.
?Confidential information: With the refocusing of the FBI mission on anti-terrorism there will be an increasing number of FBI employees who will be forced to disclose classified information in the process of blowing the whistle on FBI wrongdoing. The second tier of protection is for these employees. The bill directs the Attorney General to formulate protections for this class of FBI employees that are consistent with the rights and protections contained in the relevant portions of the WPA (§§1214 and 1221). The amendment would also ensure that the procedural protections of the Administrative Procedure Act, 5 U.S.C. sections 554-57. These procedural protections include, among other things, an impartial decision maker and decision based on the "record" of any proceedings without ex parte contacts.
Title III. FBI Security Career Program
Problem ? The FBI has no program or career track dedicated to internal security. This failure to focus on information security is directly related to the ability of Hansen and other spies to obtain information desired by foreign powers.
Bill's solution ? requires 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 would be modeled generally on the statutory Department of Defense Acquisition Career Program.
Title IV. FBI Counterintelligence Polygraph Program
Problem ? In the wake of the arrest of Robert Hansen, the FBI's polygraph program came under intense scrutiny. The Judiciary Committee held a hearing on the polygraph program and found that the current polygraph program was insufficient to detect spies like Hansen. Also, more needed to be done to protect the rights of innocent employees.
Bill's solution ? requires the establishment of a counterintelligence screening polygraph program consisting of periodic polygraph examinations of employees and contractors with access to sensitive compartmented information, special access program information, or restricted data; directs that the program have procedures that address "false positive" results and ensure quality assurance and control in accordance with guidance from the DOD Polygraph Institute and the DCI; dictates that 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; allows employees to have prompt access to unclassified reports of their exams that relate to adverse personnel action.
Title V. Enhancement and Formalization of the FBI's Police Force
Problem ? Currently, the FBI Police force suffers 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.
Bill's solution ? provides statutory authorization for an already existing FBI police force that protects the FBI building and adjacent streets. This statutory authority would give the FBI police the designation that would warrant higher pay and better benefits, closing the disparity that exists between FBI police and the Uniformed Division of the Secret Service.
Title VI. Reports ? This title requires three separate reports:
FBI Authority and Mission ?
Problem ? 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. This lack of a charter has allowed the FBI to engage in Pac-Man behavior, swallowing the jurisdiction of other federal law enforcement.
Bill's action ? requires 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. 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.
FBI Information Management
Problem ? The FBI has been plagued with problems concerning their securing confidential information and, at the same time, sharing information with others who have legitimate reasons for accessing the information.
Bill's action ? requires the Attorney General to submit a report on FBI information management and technology, including whether the authority is needed to waive normal procurement regulations, provide the results of pending Justice Management Council studies and Inspector General audits, and a plan for improving FBI information management and technology.
GAO Report on Crime Statistics Reporting
Problem ? Federal law enforcement statistics are inflated due to the double and triple counting of single arrests. It is a regular practice for multiple law enforcement agencies to take credit for the same investigation and arrest. This inflation misrepresents the actual work load of the various agencies, which is problematic since these statistics are used by theses agencies to justify their funding requests.
Bill's action ? This section directs the GAO to conduct a review of how crime and investigation statistics are collected, reported and used by federal law enforcement agencies. The report is to be submitted to Congress within 9 months. This report will be helpful in laying the groundwork for any future reform legislation.
Title VII. Miscellaneous.
Disciplinary Suspensions of Members of the Senior Executive Service For 14 Days or Less
Problem ? There is a "double standard" in the way the FBI disciplines its lower level employees and the FBI's Senior Executive Service officials (SES). 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.
Bill's solution ? 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.