TESTIMONY OF FRANK L. PERRY,

SUPERVISORY SENIOR RESIDENT AGENT,

FBI, RALEIGH, NORTH CAROLINA,

BEFORE THE SENATE COMMITTEE ON THE JUDICIARY

JULY 18, 2001

Mr. Chairman and Distinguished Members of the Committee:

In response to your invitation to appear before the Committee today, I offer a brief summary of my background and FBI experience, and what I intend to be and hope are constructive recommendations for the future of the FBI. These are offered with a sense of both humility and gratitude for an organization that now needs to examine itself honestly and with a sense of calling to better protect human rights and promote the national security.

I joined the FBI as a Special Agent in 1982, and have served in the Charlotte and Tampa Divisions, Washington Field Office, and FBI Headquarters, working organized crime, narcotics, domestic and international terrorism, and counterintelligence. After a three year tour of duty as an undercover agent for the National Security Division, I was selected as a supervisor for the FBI’s Internal Affairs Division (Office of Professional Responsibility (OPR)), where I served for five years. In 1996, I was appointed by the Director as head of the Office of Law Enforcement Ethics at the FBI Academy, Quantico, Virginia. I am currently the Supervisory Senior Resident Agent of the Raleigh Office, which reports to the Charlotte Division.

With regard to the purpose of this hearing, I respectfully submit that I investigated hundreds of OPR (Internal Affairs) matters and was exposed to about 2,500 such cases over a five year period. In 1992, several of us in OPR began to see a change in the nature of FBI misconduct. While still a very small percentage of the Agent population was involved with substantiated allegations of serious and criminal misconduct (one to two percent of the entire Special Agent and management population), the substantiated allegations were becoming of a more premeditated nature, as opposed to misconduct resulting from poor judgment. The good news subsequent to a six month honest look at ourselves was that we saw no trends of Special Agents engaging in civil rights abuses, brutality, drugs, and classic or quid pro quo corruption. We were seeing trends in certain categories that prompted OPR, comprised totally of FBI SAs, and with no OPR/DOJ prompting, to research and recommend to the Director a comprehensive proactive ethics initiative designed to prevent misconduct as opposed to merely reacting to it when it occurred. Any such training and culture-changing initiative could not be muzzled or constrained or covered up. Mr. FREEH agreed, and the program was begun in 1996.

As head of that office, I wanted to look at ways policies, programs and training would be meaningful and neither politically expedient nor mere window dressing. As a result, we drafted a curriculum that attempted to understand the moral foundation of the Constitution to which we gave an oath to defend. We wanted our recruits to come to see their work as a calling to defend human rights, which often involved the paradoxes of undercover work and other law enforcement-specific moral dilemmas, emphasizing that justice means nothing without the complete truth eventually coming out in the discovery and courtroom setting. Such understanding and practice prevents corruption, while maintaining the highest performance and prosecutorial standards. I believe the Internal Affairs and Training components of the FBI were beginning to feel better about the course and future of the FBI.

During this time, I was asked to investigate the FBI's investigation of the RUBY RIDGE standoff, and after dozens of interviews and document reviews, drafted the results with the oversight of the Justice Department's OPR and Justice Management Division (JMD). I encountered overwhelming candor and forthrightness from FBI Agents, but sadly I also encountered resistance on the part of some senior FBI executives regarding results that were nothing less than objective and balanced, but often organizationally unflattering, which were reached based upon a preponderance of testimony and evidence. I do not believe there was a conspiracy or systematic plan to obstruct or cover up results. I do believe, because of this case and so many others to which I was exposed while in OPR, that the culture of the FBI is such that, as one of the members of this committee has put it, some senior executives have been motivated by a desire not to embarrass the Bureau, as opposed to honoring the mission and purpose of the FBI: investigate, seek, find, speak, and apply the truth. In my judgment, this tendency does not constitute corruption. It constitutes a "made member" or "club" mentality that has led to the perception that the organization is oftentimes less than forthcoming, and circles the wagons rather than squaring off and confronting what are often tragic mistakes as opposed to ethical wrongdoing.

This culture can be changed without disparaging any individuals. Firstly, an organizational obsession with compliance issues at the expense of fundamental case-making as a result of aggressive, honest, investigative effort, must be changed. Senior managers often are rated on issues that amount to form over substance or image over crime-control. I would therefore suggest that the inspection process, similar to the Internal Affairs process, entail the use of signed sworn statements to assess a senior manager's performance and the corresponding climate surveys, as opposed to what is still perceived as a "blue skies" or "contract" approach. I would argue that the measures of managerial performance known as "effectiveness" and "efficiency" be coupled with the ethical aspect of management in assessing leadership competence and advancement. For example, a manager's candid assessment and attack of a crime problem is more important to the taxpayer than emphasis on image, accommodation or avoidance of violating a compliance issue (i.e. making a mistake). As William James put it, there are worse things than being wrong (Mr. Danforth put the same point before this committee as "...making mistakes is not as bad as hiding mistakes."). I would add that this self-inspection or performance process continue to be conducted by selected Special Agents, with DOJ oversight, assessment, and co-inspector status, the latter of which does not currently obtain, but would add to the credibility of the senior management promotion process.

The FBI's Internal Affairs historically has been, in my judgment, a firm and fair process, below the Senior Executive (SES) level. This view prompted me to ask Mr. KIERNAN to research whether the FBI had a double standard of discipline as perceived by many, such that senior executives were not held to a higher standard of professional responsibility and accountability pursuit to substantiated allegations of misconduct. A ten month study which was scrutinized in detail by Mr. FREEH and his direct subordinates showed such a double standard existed, or certainly was perceived to be so, and as a result, Mr. FREEH formally changed the form and content of senior executive discipline and accountability in August of 2000. This was a step in the right direction, but I am not convinced that this policy changed the "culture" problem we are here to address.

This tendency by some to allow if not promote the culture of reluctance to recognize sincere, objective, and unselfish attempts to better the organization must be addressed and monitored by the next Director. I believe Mr. FREEH tried, and succeeded to some measure. He commented to me once out of frustration that some senior executives complained to him that he was over emphasizing "this integrity thing." This type of comment does not represent the majority opinion of senior managers. It is symptomatic of the culture that, while emphatically not corrupt, is complacent if not resistant to ethical oversight.

So, my last point: internal discipline should be investigated by FBI Agents, with the oversight of an artful and vigilant though not zealot, DOJ entity, be it OPR or the OIG. "Physician, heal thyself" is not an inappropriate analogy in this context. I see no need for a separate OIG, though I am aware this is the minority opinion on that point. Special Agents respond better to Special Agents and are more forthcoming and fear peer review more than review by an outside agency. It is my understanding that in the military court martial setting, many defendants prefer facing an independent magistrate rather than a jury of their peers. This culture is not to be construed as part of the cover up or "circle the wagons" culture. This tenet of internal discipline comes from professional pride - not arrogance - in that with the FBI's expanding jurisdiction which includes the investigation of so many other government agencies, it is a contribution to esprit de corps to know that Congress and the White House allow us to investigate ourselves using, with oversight, a higher standard of honesty and fairness. Such "moral freedom" as it were may sound high-minded, but I have seen this process, with the appropriate leadership and DOJ oversight, work amazingly well: fairly, firmly, and without zealotry or political influence. The Criminal Division of DOJ, not OPR, had oversight of the original Ruby Ridge matter, and the Justice Management Division of DOJ adjudicated the last of the administrative inquiries. Even so, it is FBI agents that you have called before you today, who are responding to your request to truthfully attest to internal problems, and I believe that to be significant.

Distinguished members, my experience, my research, my conscience lead me to believe that we have a "healthy baby" and need not throw it out with the bath water we are examining. That baby, the FBI, does need to come to recognize, as the ancient Greek thinkers knew, that a preoccupation with being "the best" can be an enemy of "the good". I have spoken to these issues in an article published in February of this year by the FBI's own Law Enforcement Bulletin, copies of which I believe you requested and have been provided, so I will not detail these recommendations here. We do expect of our leadership, mid-level managers, special agents, and professional support, the realization in all our policies of hiring, promotion, and crime- fighting that a morally good FBI is the best FBI, and that the way to maintain the good we have done but become better all the while is to put justice, fairness, and the truth over considerations of image, career, and accommodation. In fact, the best image for an organization is derived from its efficacy, and that in turn from its professional ethics. We know what to do; we require the collective will, culture, and leadership to consistently do it.