Senator Grassley's Statement from Judiciary Committee FBI Oversight Hearing
Prepared Statement of Senator Chuck Grassley of Iowa
U.S. Senate Committee on the Judiciary
FBI Oversight Hearing
Chairman Leahy, thank you for calling this hearing today. I appreciate your commitment to holding these semi-annual oversight hearings. I thank Director Mueller for coming up here today to discuss some very important matters and answer questions candidly. First and foremost, I’d be remiss if I didn’t start off this hearing in the same way I’ve had to start FBI Oversight hearings for the last two years—with a discussion of outstanding documents and questions that have gone unanswered. In March of this year, Director Mueller testified before this Committee and I expressed my concerns and frustration at the lack of responsiveness from the FBI in answering questions submitted by all members of the Judiciary Committee. Director Mueller shared in my frustrations noting that the FBI had provided responses to outstanding questions to the Department of Justice for review, but that the Department has not yet provided them to Congress.
As we stand here today we have questions from a previous FBI Oversight hearing dated March 2008 that remain outstanding and unanswered. That hearing was held over a year and a half ago. Not having responses to these questions is beyond unacceptable.
The Committee did receive a batch of responses from the March 2008 hearing in September 2008, but that document indicated that more responses were on the way. Unfortunately, those responses never came. Perhaps more disheartening is that we’ve received all the responses to questions from the September 2008 and March 2009 hearings in the intervening time. So, the question is did the Department simply forget to get back to the Committee or do they have something to hide? I’ll also note, that we just received the questions from the March 2009 FBI hearing last evening at 5:15PM. While I appreciate the fact we actually received a response, it hardly provides adequate time to prepare for today’s hearing.
The delay in responding to our questions in a timely and accurate manner is causing other problems. For example, an article run by the Associated Press this morning details an ongoing dispute between the FBI and the ATF. The article discusses a draft report by the Office of the Inspector General which states that the Department of Justice has failed to fix the problems of cooperation between the two agencies. I have been asking questions about the relationship between the FBI and ATF for over two years, and my last question on this topic was submitted to Director Mueller in September of 2008. Unfortunately, I never received an adequate response. In fact, the response I did receive from the Department of Justice simply stated that the Department had received input from the FBI and wanted an opportunity to respond on behalf of all Department agencies. That response from the Department on behalf of all agencies never came.
I find it completely unacceptable that as a member of the Judiciary Committee, I get more information from a newspaper article than directly from the Department of Justice.
The article raises serious concerns about the problems between ATF and FBI. All members of this Committee should be concerned because our staffs received a briefing from the ATF and FBI in May 2008 where they were told that both agencies had a clear understanding of the jurisdictional problems between the agencies and that these problems had been worked out. Today’s story seems to indicate the Inspector General’s report refutes those statements and I want to know what the real story is. It’s clear the Justice Department doesn’t want to answer my questions on this matter directly, so I’ll be following up with a letter to find out if those who briefed our staff were aware of the problems outlined in the draft report. This story seems to indicate otherwise.
Mr. Chairman, we have a real issue with the Department of Justice and until this culture of late and unresponsive answers to our questions is changed, I will exercise my rights to begin holding nominees at the Department.
I do look forward to raising a number of issues today with Director Mueller as I know he’ll do his best to answer questions we put before him directly. Specifically, I want to ask the Director about the following matters:
Whistleblower Protections for FBI Employees
In February of this year, I joined a number of my colleagues in sponsoring S.372, the Whistleblower Protection Enhancement Act of 2009. This vital legislation will update and enhance whistleblower protections for all government employees. The Homeland Security and Government Affairs Committee marked-up this legislation on July 29, 2009, and introduced a substitute bill that included a dangerous provision that strikes the current whistleblower protection system for FBI employees. I have serious concerns about this provision given how hard I had to fight to get the current system in place.
After looking into this matter, it now appears that all the sponsors of the bill agree this provision should to be removed. I’m glad to be leading the charge to knock this ill conceived provision out of the legislation. However, I’m concerned with where it came from and who authored it. One media source stated that the provision was included “at the behest of the FBI.” So, Director Mueller, was that troubling provision included at your request, the request of other FBI officials, or someone else? Director Mueller you have repeatedly stated before this Committee that you will not tolerate any retaliation against whistleblowers so I want to find out: (1) how this provision came to be, (1) if the FBI had a hand in it, and (3) if the FBI did have a hand in it, how he reconciles his previous statements with this effort to strike existing protections.
Inspector General Report on FBI’s Disciplinary System
I also want to talk to Director Mueller about a recent report issued in May by the Department of Justice Inspector General (DOJ/OIG). That report titled, Review of the Federal Bureau of Investigation’s Disciplinary System, brought back to light a longstanding issue I’ve tracked at the FBI, the double standard of discipline between line agents and management. I first raised this issue with Director Mueller during his confirmation hearing back in 2001 following a Judiciary Committee hearing where four senior FBI agents testified about the double standard of discipline between SES employees and rank and file agents. This issue appeared again in 2003 in the Bell-Colwell report which made 15 recommendations to improve the operation of the disciplinary process at the FBI. This issue has been a thorn in the side of the FBI for quite some time and I had hoped all the time and effort spent looking into this problem would cure it. Unfortunately, the latest report found that this double standard of discipline is alive and well.
Specifically, I was concerned to read that the Inspector General found that 33 percent of FBI employees surveyed believed a double standard of discipline exists compared to 11 percent who said there was no double standard. I was more concerned that in the FBI’s response prepared by Deputy Director Pistole that he chose to only address whether FBI employees thought they’d be treated fairly and didn’t address the question of the double standard. I’m also troubled that the Inspector General found that misconduct allegations against SES employees were more likely to be unsubstantiated than that of non-SES employees. Furthermore, SES employees were more likely to have their findings of misconduct overturned on appeal than non-SES employees. I want to hear the Director’s take on this very important topic and plan to ask a number of questions at how to fix this double standard.
FBI Cooperation with the Government Accountability Office (GAO)
In May of this year, the Government Accountability Office (GAO) initiated a review of FBI counterterrorism vacancies at my request, joined by a bipartisan group of Members from both House and Senate Judiciary Committees. The review is human capital focused and is similar to prior work GAO conducted at the FBI from 2002-2004. This review originated following the testimony of FBI whistleblower Bassem Youssef who stated that the FBI’s counterterrorism division was operating at only 63 percent of capacity because it was so poorly managed. The objectives of the current review are to assess: (1) the extent of FBI counterterrorism vacancies and the reasons for the vacancies, (2) the trends in these vacancy rates over time, (3) implications of these vacancies for the Bureau's mission, and (4) the authorities and strategies the FBI is using to address the vacancies
Unfortunately, the GAO advised my staff a few weeks ago that this report was essentially dead, because the FBI will not cooperate. I find this very troubling—and every member of this Committee should be outraged by this fact. I find it curious that the FBI did not have this reaction to the same sort of GAO request in the past. In fact, the FBI worked closely with GAO when it conducted its previous FBI reviews in 2002-2004. Unfortunately, the GAO has encountered bureaucratic roadblocks from the DOJ Office of Legal Counsel (OLC) which claimed that GAO lacks the authority to evaluate most FBI counterterrorism positions, as these positions are scored through the National Intelligence Program (NIP) Budget.
I am very alarmed at this effort to cut off GAO access to information that they have previously collected in the past is part of a greater initiative to limit the ability of Congress to conduct oversight. Further, I have serious concerns that the reliance on the OLC opinion at issue here could have greater impact on the Judiciary Committee as a whole and our ability to adequately evaluate the management and performance of critical FBI components. I will ask the Director a number of questions related to this matter and hope he will be responsive.
Time permitting; I’d also like to discuss some concerns I have with the removal of former Corporation for National and Community Service (CNCS) Inspector General Gerald Walpin and the role the FBI may have played in investigating the complaint filed against him by Acting U.S. Attorney for the Eastern District of California Lawrence Brown. The FBI plays a role in investigating allegations of misconduct by Inspectors General by having an FBI official chair the Integrity Committee of the Council of Inspectors General on Integrity and Efficiency (CIGIE) and I would like to hear more about the FBI’s involvement in this investigation.
I look forward to Director Mueller’s testimony and his responses to these important matters.