Mr. Chairman, Senator Hatch, thank you for holding today's hearing on the nomination of Robert Mueller to be Director of the FBI. The FBI is in desperate need of a director who will make drastic changes to the Bureau's management culture. This person must be able to sweep out the culture of arrogance and replace it with a culture dedicated to truth and honorable service to the American people.
Mr. Mueller, three weeks ago, you and I met in my office to discuss the culture at the FBI. The purpose of that meeting, as well as today's hearing, was to examine whether you have the qualifications and determination necessary to address this and other problems facing the Bureau. In the three short weeks since that meeting, the FBI's culture of arrogance has continued to raise its ugly head. These most recent FBI blunders are further eroding the public's confidence that the FBI is up to the task their nation has called upon them to do.
Just a week after our meeting, the national papers were filled with headlines that the FBI couldn't find their guns. The FBI has lost or had stolen from them nearly 450 firearms and 184 laptop computers. This is inexcusable. The Inspector General is currently conducting an investigation to determine the extent of the damages, but we do know that one of the lost guns was used in the commission of a homicide and at least one of the laptops contained classified information about two espionage cases. These losses reflect a need for fundamental reform.
How can the public have confidence in a law enforcement agency that allows its weapons and secrets to fall into the hands of criminals and spies?
A day after that revelation, the public learned that the FBI plays favorites. In a hearing before this Committee, four senior FBI agents testified that the Bureau has a dual standard for the disciplining of employees. According to these men, Senior Executive Service (SES) employees are given slaps on the wrists for their infractions, while the rank and file agents are often punished to the letter of the law.
Retired Special Agent John Werner, who investigated the Ruby Ridge cover-up, testified before this committee that "in the first investigation of Ruby Ridge, SES Inspectors sought to protect certain fellow peers from administrative discipline by conducting a sloppy and incomplete investigation. At the same time, they were most willing to hang lower tier employees ?out to dry'." He further testified that "this double standard has debilitated rank and file employees' morale and, . . . is one of the reasons quality agents are disinclined to enter the Career Development Program."
How can the public have confidence in the FBI when the honest hard-working agent is discouraged from taking part in the management of the Bureau? How can the public have confidence that the FBI will reform, when a certain segment of the SES personnel is motivated by self-interest and self-preservation?
Most recently, last Thursday, the public saw a good example of how some SES employees abuse their power. The Washington Times reported that a group of FBI managers staged a conference entitled "Integrity in Law Enforcement" that was merely a sham and a cover, so that senior FBI managers could obtain improper reimbursements for traveling to a birthday party for veteran agent Larry Potts. According to The Washington Times, "more than 140 persons, including as many as nine FBI executives and special agents-in-charge of bureau field offices, attended the October 9, 1997, party."
The Washington Times further reported that "no one was disciplined other than to receive letters of censure." This lack of discipline directly counters the letter of the law. In 1994, Director Freeh issued a "Bright Line" memo dictating that voucher fraud and the making of false statements would result in dismissal. Had the rank and file done this, they would have been fired. It appears that some senior managers believe they are above the law.
How can the public have confidence in the FBI, when its senior agents are not punished for this kind of behavior?
These most recent scandals are just more evidence of the problems I outlined in my letter to you, which I'm submitting for the record. The FBI is suffering from a management culture so arrogant that ignoring the rules and covering up is the order of the day.
But, not all the news is bad. In the weeks since our meeting, two things have happened that give us hope that the problems at the FBI can be resolved.
First, I am pleased Attorney General Ashcroft has given the Justice Department's Office of Inspector General the power to conduct independent oversight of the FBI. This is a reform initiative I have long advocated. The Attorney General's order directs that major allegations of misconduct will no longer be handled by the FBI's Office of Professional Responsibility, but will instead by handled by the DoJ's Office of Inspector General. This is essential for reform.
Along these same lines, Senator Leahy and I will soon be offering a bill that will make permanent what the Attorney General's order accomplished regarding oversight of the Bureau and the reporting of misconduct by FBI employees. It would also create a Deputy Inspector General, whose sole responsibility will be oversight of the Bureau. This bill is critical to having reform at the FBI.
Second, there has been some clarification about what actions the new FBI Director can take to initiate reform. When we met in my office, I asked you how much of a free hand you would have in cleaning up the FBI. You didn't know the answer then, but I've since received a response from a letter I wrote the Attorney General asking for the answer. In that letter, the Assistant Attorney General for Legislative Affairs outlined the extent to which, if you are confirmed, you will be able to institute department-wide reforms and make staffing changes, including changes at the senior staff and management level.
Specifically, Assistant Attorney General Bryant writes that "the FBI Director's authority in this area is broader than most of his counterparts in other Department components." According to the letter, the new FBI Director can reassign SES members within the first 120 days following the appointment of a non-career supervisor. The ability to move bad apples is critical to reform.
Mr. Mueller, you have sterling credentials and a great deal of experience. I'm impressed by the way you reformed the U.S. Attorney's Office in San Francisco. A similar overhaul is needed at the FBI. The new director must be committed to fundamentally changing the Bureau's management culture.
July 27, 2001
The Honorable Robert Mueller
United States Attorney
Northern District of California
c/o Office of Congressional Affairs
Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Mueller:
In preparation for your confirmation hearing on Monday, July 30, 2001, I am forwarding to you a list of questions on which I plan to focus. Time will not permit me to provide adequate context for each of these questions during the hearing, so I have taken the liberty of providing some background for you in advance so that you may be better prepared to address my concerns.
1.Do you believe there is a cultural problem within the FBI, and if so, what do you plan to do about it?
In our meeting on July 9, 2001, I discussed a series of FBI problems which I believe point to systemic cultural problems within the Bureau (Ruby Ridge, Waco, TWA 800, FBI Crime Lab, Richard Jewell, Whitey Bulger, Wen Ho Lee, etc.). I am concerned, however, that you may perceive these incidents as isolated occurrences that may not be reflective of an underlying cultural problem. I believe that while this problem has been somewhat troublesome to quantify, at the same time, it appears to be a common thread that is woven into the majority of problems the FBI has experienced over the past several years. The culture of arrogance within the FBI is pervasive, and it has given fuel to the mistaken notion that those within the Bureau are somehow above accountability or reproach. It is the kind of arrogance that places image above substance, exemplified by the Bureau's penchant for holding press conferences in high profile cases before the investigation is complete and all the facts are in. And, it is this kind of arrogance that the General Accounting Office (GAO) found when it took their staff an average of 66 days to set up appointments with FBI officials.
2.What steps will you take to reconfigure the organizational structure of the FBI, and when do you anticipate making your first substantive changes at the Bureau?
Certainly, this same arrogance is further supported by the organizational structure of the Bureau; where the centralization of management authority only serves to reinforce an insular perspective. In our meeting on July 9th, I raised with you the extent to which you will be able to make staffing changes as FBI Director. Following our meeting, I requested and obtained information in this regard from the Department of Justice. Unlike the statute and regulations governing other Government Senior Executive Service (SES) positions, those pertaining to the FBI do not prohibit the involuntary reassignment of SES members during the first 120 days following the appointment of a new non-career supervisor. Similarly, the FBI SES statute does not include the 15 or 60 day notice requirement for reassignment inside or outside the commuting area, respectively.
3.How will you change the Bureau's penchant for denying legitimate access to FBI documents and witnesses?
The FBI's history in this regard has only served to exacerbate the already strained relationships the Bureau has within all three branches of our government. In denying, delaying, or providing incomplete access to records, the FBI shows contempt for any public or private entity that dares to question its motives or performance. This was further evidenced through the alarming testimony of former Senator John Danforth before the June 20, 2001, Senate Judiciary Committee Hearing on FBI Oversight. During the course of his investigation of the FBI's actions at Waco, Sen. Danforth related that FBI personnel "were not cooperative", were "cavalier or resistant in turning over evidence", and their "lack of openness and candor...complicated my investigation." This candor problem was further evidenced by the recent GAO report regarding FBI Assistant Director Neal Gallagher's testimony to Congress on the Wen Ho Lee investigation. AD Gallagher was found to have provided misleading testimony to Congress because he failed to present certain information that had been made available to him.
4.How will you ensure that FBI senior officials and the rank and file will be held to the same standards of conduct?
Recent testimony by four FBI agents (one retired) brought to light the startling disparity in the adjudication of punishment that exists between FBI senior officials and rank and file personnel. The 1999 position paper, "FBI SES Accountability, a Higher Standard or a Double Standard", prepared by the FBI Law Enforcement Ethics Unit, provides a number of examples of this imbalance. Two cases within this report, the 1997 Larry Potts Retirement Dinner, and the Ruby Ridge Review, are emblematic of this debilitating problem. While it is true the publication of this report prompted former Director Freeh to institute important changes, the adjudication of senior officials' misconduct can still be mitigated at the AD/OPR level. The existence of this imbalance has given rise to an "us vs. them" mentality within the rank and file and a predictable degradation of morale. This fact is further exemplified through an internal FBI survey which found less than 5% of the FBI Agents sampled indicated an interest in promotion to FBI Headquarters.
5.Do you agree that the FBI has become too unwieldy to be effectively managed and would become a more efficient and accountable organization through a streamlining of its investigative focus? And, how do you plan to improve the FBI's partnerships with other federal agencies?
The FBI investigates over 300 different classifications of federal crime, each of which fall within one of the following general headings: Violent Crime, White Collar Crime, Organized Crime, Drugs, National Security, and Civil Rights. Contained within these areas are numerous instances of concurrent or overlapping jurisdiction with other federal law enforcement agencies. Further, despite having what many would describe as an already overburdened array of jurisdiction, the FBI has established a campaign of jurisdictional encroachment, impeding many of the essential investigations of other Federal Agencies, such as the Environmental Protection Agency, the DEA, the Secret Service, the Bureau of Alcohol, Tobacco and Firearms, and the U.S. Customs Service, to name a few. This pattern not only seems unnecessary and duplicative, but also tends to erode key partnerships within the federal law enforcement community. An example of this can be found within the National Infrastructure Protection Center (NIPC). Instead of being a focal point to coordinate the investigations of various federal law enforcement agencies, the NIPC has simply become a conduit for the FBI to fund its own computer crime cases.
6.How do you plan to accommodate dissenting views from within the FBI and will you support maximum protections for those who report wrongdoing?
The FBI also has an institutional arrogance in the way that it deals with its own employees. In order to regain the trust and confidence of the American people, the FBI must be open and fully responsive to differing points of view within its ranks. Retaliation against FBI Whistleblowers who "break the code of silence" within the Bureau is oftentimes subtle and inconspicuous, but no less devastating to an Agent's career. This type of retaliation has been experienced by the four exemplary Agents who testified at the July 18, 2001 Hearing. Employees reporting waste, fraud, and abuse must be able to do so in an atmosphere free from the fear of retaliation. Without this freedom, the FBI will continue to suppress and marginalize those who speak up - and it will continue to be business as usual. Further, recent administrative enhancements to Whistleblower protections for FBI agents who come forward with protected disclosures are commendable, but still fall short of providing adequate protection.
In closing, I would like to provide the following advice by way of an observation. Found within the text of former Director Freeh's "Core Values" statement is a passage which, I believe, holds the key to solving the problems within the FBI: "Respect for the dignity of all whom we protect reminds us to wield law enforcement powers with restraint and to recognize the natural human tendency to be corrupted by power and to become callous in its exercise." Your challenge will be to ensure this message is accepted throughout the Bureau with a sense of sincerity, duty, and obligation.
Cordially yours,
Charles E. Grassley
United States Senate