PREPARED STATEMENT OF

PATRICK J. KIERNAN

SUPERVISORY SPECIAL AGENT, FEDERAL BUREAU OF INVESTIGATION

BEFORE THE SENATE JUDICIARY COMMITTEE

JULY 18, 2001

 

 

Mr. Chairman, Senator Hatch, and members of the Judiciary Committee.

Background

I am currently a Supervisory Special Agent of the FBI who works full-time in the Law Enforcement Ethics Unit (LEEU), based at the FBI Academy, Quantico, VA. I arrived in this Unit in June 1998 and left for approximately14 months between November 1999 and January 2001 to work at FBI Headquarters as the full-time liaison to the Office of Special Counsel’s (OSC) Waco investigation, led by former Senator John C. Danforth. Prior to my time in LEEU, I spent 11 ½ years as a Special Agent assigned to the Dallas Division of the FBI working a variety of criminal and intelligence assignments. Before joining the FBI, I worked for two years as an attorney in a small private firm in northern New Jersey. I am extremely proud of my nearly 15 years of service to the FBI, especially the last three.

Law Enforcement Ethics Unit

The LEEU was established in 1996 by Director Louis J. Freeh and originally placed under the supervision of Unit Chief (UC) Frank L. Perry. Overall supervision of the Unit falls under the FBI Office of Professional Responsibility (OPR). At the Unit, I instruct New Agents, current Agents, and FBI support personnel in the importance of always maintaining high standards, and in never forgetting to place ethics and integrity at the center of their professional lives. I also have instructed and met with law enforcement officers from all over the United States, as well as from foreign countries, including Bulgaria, Hungary, Macedonia, Montenegro, Albania, Latvia, Egypt, Saudi Arabia, England, and Ireland. These countries look to the FBI to be the role model to either initiate or improve their law enforcement integrity programs. The FBI is often the standard by which others are measured. However, because the FBI is made up of humans, we too, have sometimes fallen short of the excellence which is expected and deserved by the American public. No one among us is perfect. We each have to struggle with our own individual foibles.

One of the additional roles of the LEEU, when not instructing, is to periodically review FBI policies, procedures, and guidelines to ensure that the FBI is being fair to its own employees and to the American people. Should we discover a problem, it is our responsibility and obligation to point it out and correct it. It is not a role that we take lightly, particularly since many times, it may involve taking on a long-established FBI policy or procedure, which others may have declined to try to change for fear of negative career consequences or retaliation. However, my belief is that if the Ethics Unit could not speak the truth concerning a particular matter and attempt to implement needed change, what other Unit in the FBI would be willing to do it? It is this reasoning that has brought me to your hearing today.

Senior Executive Service Accountability Report

During 1999, I was the primary author behind a report entitled "FBI SENIOR EXECUTIVE SERVICE ACCOUNTABILITY: A HIGHER STANDARD OR A DOUBLE STANDARD?" The Ethics Unit had heard on numerous occasions of a perceived double standard in the administration of discipline between FBI senior managers and rank and file employees. This was an issue that needed to be reviewed and challenged if true. Over a ten month period, cases were reexamined, statistics analyzed, and interviews conducted with knowledgeable personnel from the FBI OPR. The final report was handed to Director Freeh on September 1, 1999 by UC Perry.

The findings from the report revealed that disparate treatment did exist between senior managers and the rank and file FBI employees. Instead of senior managers receiving greater discipline for an infraction, as one might expect because of their greater responsibilities, they oftentimes received less or even none. Specific cases were cited to illustrate the great lengths fellow senior managers went through to mitigate or downgrade the alleged misconduct. A recommendation was made to disband the special senior manager board, which reviewed all senior manager cases for discipline. To Director Freeh's credit, he corrected this inconsistency. In August 2000, he disbanded the senior manager board and created a single disciplinary system by which all FBI employees would have their cases adjudicated.

Office of Special Counsel Liaison Assignment

In November 1999, I was asked by Senator Danforth to become his sole liaison to the OSC investigation. He was initially experiencing some problems in obtaining the FBI’s full cooperation. In the Ethics Unit, we realized the last thing the FBI should be doing was to hinder or obstruct an outside investigation where the Bureau was accused of covering up the facts. Every statement I read from the Director was that the FBI was pledging its "full and complete cooperation" toward the OSC. Anything short of that would only make the OSC and the American public more suspicious of the FBI. This lack of cooperation was not the posture to be taking while attempting to gain back the public's trust. Without that trust, the FBI will never be able to accomplish its law enforcement mission.

As you may be aware, UC John E. Roberts, FBI OPR, declined this same liaison role because of how he had been treated after leading an outside criminal investigation against several of his colleagues within the FBI. UC Roberts believed his association with the earlier Ruby Ridge investigation had not made him any new friends in the FBI, and in fact had harmed his future career opportunities because of the findings and some of the confrontational interviews he needed to conduct. UC Roberts made me aware of his previous problems before I accepted the OSC assignment. At the time, I believed that the public did not fully understand everything that had happened at Waco and I wanted to be involved in a short-term high profile investigation which hopefully would clear it up once and for all.

Interaction Within The FBI

My assignment as the new liaison to Senator Danforth seemed to meet with immediate resistance from the FBI’s Office of General Counsel (OGC), who I believe still wanted to maintain control of the flow of information. When it was pointed out to Director Freeh that there was a conflict of interest with assigning me to the OGC, as some of their own personnel and practices were under investigation, he changed my reporting to the FBI’s Inspection Division. Although I was placed in a different Division, the OGC was still coordinating the retrieval and release of FBI documents to the OSC. Accordingly, I continued to have almost daily contact with the OGC. Initially, certain managers took the position that they were only going to provide what was legally required, as opposed to disclosing all Waco documents, which the OSC had requested. This stance was similar to an adversarial legal proceeding. This attitude was unacceptable to the OSC and they signaled this displeasure to the FBI by "visiting" on the morning on December 16, 1999 with approximately 15 investigators to search several offices of the OGC. Ultimately, although the process was definitely rocky, I do believe the OSC received full disclosure of any documentary evidence the FBI had in it's possession and their conclusions regarding the events at Waco were correct.

While performing my role as OSC liaison, I was guided by one overriding philosophy. The OSC was to be provided with absolutely everything that had to do with WACO so they could make an independent and informed decision about the government's actions during that stand-off. The FBI was not to make decisions regarding the "relevancy" of the information. That was for the OSC to decide. That is how I understood the phrase "full and complete cooperation." I was trying to resolve issues with an eye toward the long-term best interests of the FBI and the nation, not a short-term expedient "quick fix." Unfortunately, not everyone I dealt with at the FBI had this same mindset.

As a result of taking this "open the books" stance, there were occasional disagreements with some senior managers from the various FBI Divisions. As a mid-level manager, I believe many in senior management were insulted that I was coming into their Divisions and requiring nothing short of total cooperation with the OSC. While some resented me for it, I believe many other dedicated Bureau employees realized this was the proper course of action, no matter how embarrassing the initial disclosures might be. Yet, people were told not to disclose to me problematic issues because the revelation would get back to the OSC. I was excluded from meetings which discussed responding to OSC requests. Official letters were sent out without my review because I believe certain managers felt I would object to the language or wording, if it was not completely honest and forthcoming. I was referred to as "too controversial" and in short, seen as disloyal to the FBI for attempting to cooperate with the OSC. This is further evidenced by the fact that when my OSC assignment was concluding and I was looking for other career opportunities at FBIHQ, it was brought to my attention that it might be best for me to "just return to Quantico for a while and chill out."

Through my assignment with the OSC, I was made aware of several instances of potential FBI misconduct, which occurred during the time period of the Waco stand-off up through the current OSC investigation. I initially attempted to have the OSC include these matters in their final report issued in November 2000. However, based on their well-defined written mandate from Attorney General Janet Reno, the OSC did not wish to include issues that were not central to their core investigation. This left me no choice but to report them to the FBI OPR in December 2000. Three of these referrals dealt with onboard senior managers of the FBI. Two of those three dealt specifically with what I perceived as retaliatory action toward me. I am content to allow the investigative process to proceed and only wanted those actions to be independently reviewed. I realize that retaliation can sometimes be very subtle and these cases are difficult to prove.

As difficult as it may be to hear the daily bad news about the FBI, in my heart, I know some of the criticism is deserved. It makes it even harder for me to face as I represent the Ethics Unit of the FBI, where our goal is to teach the avoidance of many of the same problems we are dealing with today. It is not easy and very frustrating to routinely battle the leaders of your own organization on issues of "doing the right thing." In an ideal world, the Ethics Unit of the FBI would never be in conflict with senior management.

Suggested Improvements

Director Freeh made a great start in 1996 by significantly expanding the ethics program for the new Agents of the FBI. But the same message needs to be provided to the leadership of the organization. I do not believe that people intentionally want to make unethical decisions. However, everyone, myself included, needs the occasional reminder of why we joined the FBI. In almost all cases, it was to make a positive difference in the lives of American citizens. It was certainly not to make money. Nor should it have been to acquire power and influence. Unfortunately, sometimes career advancement at any cost becomes the ultimate goal and decisions are made for selfish interests, as opposed to the good of the organization or the country. This certainly is not unique to the FBI, but because of the FBI's considerable powers, it can have significant detrimental effects for the public.

I would suggest consideration be given to establishing an Ethics Czar at FBIHQ, who would have input into every high-level policy or operational decision. This input would be based solely on an ethical perspective. Not legal, administrative, or procedural, as there are already people in place to answer those issues. But simply to step back from all the other pressures of a high profile criminal investigative agency and ask "Is this the right thing for the FBI to do?" Consideration should also be given to creating a similar position in every field Division of the FBI. If the FBI is really serious about implementing its fifth core value, that being "uncompromising personal and institutional integrity," then we need to do more than teach it to the new Agents and never talk about it again.

Finally, once the ethical message is out there, it must be backed up by action. Rhetoric alone will not suffice to truly change any ingrained cultural problems at the FBI. Those who fail to live up to the high standards expected of FBI employees must be disciplined appropriately, including demotions and dismissals. Only by sending a strong message, through both words and action that unethical behavior will not be tolerated, can we hope to prevent such misconduct. Attempting to cover-up investigative miscues from the American public or protect colleagues from career embarrassment, no matter how noble the intentions, should be the quickest way to get fired in the FBI. This is one of the classic law enforcement dilemmas my unit teaches the new Special Agents of the FBI, "Honesty versus Loyalty." Unfortunately, the loyalty in that equation is misplaced. Loyalty should be to the country and the United States Constitution, not to your colleagues and friends who helped promote you. I am not saying allegiance and fidelity to your associates is wrong. Camaraderie is very important, especially in a law enforcement agency where Agents on a routine basis risk their lives for each other. However, when the choice is between those two worthy moral goals, an FBI employee must choose "principles over persons."

Conclusion

During a recent visit with my family to the United States Naval Academy, we stopped in at the chapel. Over the entrance doors was a Latin phrase that I am sure every Naval Academy graduate knows, "Non Sibi, Sed Patriae" which means "Not for self, but for country." That phrase succinctly summarizes what needs to be done at the FBI. That is the tone which needs to be set. Each person here today before your committee has attempted to do that in the FBI. Countless other FBI employees live out that philosophy every day, with some having paid the ultimate sacrifice. It is for those heroes and others to come, why we, before you today, could not simply sit idle and allow these problems to continue. We all care too much about this organization. Sometimes you have to endure short-term pain for long-term health and vitality. Hopefully, with your Committee's oversight, a new administration, and a new Director, the FBI can begin its journey back toward the goal of being the premier law enforcement agency in the world, one which the American people can be proud.