Opening Statement of John E. Roberts on FBI Management

TESTIMONY OF JOHN E. ROBERTS
Unit Chief, Office of Professional Responsibility,
Federal Bureau of Investigation

Before the Senate Committee on the Judiciary
July 18, 2001

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

I appreciate the opportunity to appear before the Committee today to discuss what I believe are serious issues facing the Federal Bureau of Investigation (FBI), and, in particular, what we can collectively do to make the FBI better, restoring credibility to this great organization. Of significant importance is the ability of the FBI to conduct aggressive, objective internal investigations of FBI employee misconduct. Therefore, the protection of those FBI employees assigned to conduct the internal affairs work for the FBI needs to be considered.

I am grateful to be an FBI employee and I am proud to be associated with the men and women of this great organization. The efforts of the agents and support personnel are remarkable and the work that is conducted by this organization every day is impressive .

I am currently the Unit Chief (UC) in the Office of Professional Responsibility (OPR), FBI, responsible for internal investigations, a position I have held since July 1997. I have served in the Louisville, Miami and Boston Divisions of the FBI, as a Supervisory Special Agent (SSA) in the OPR, FBI, the Inspection Staff, Inspection Division, and as one of two Inspectors in Charge of the Ruby Ridge investigation under the direction of the OPR, Department of Justice (DOJ) and the Acting United States Attorney for the District of Columbia.

The OPR, FBI is composed of two Internal Investigative Units (IIUs), two Adjudication Units (AUs), the Law Enforcement Ethics Unit (LEEU), and an Administrative Unit, all staffed by competent, hard working and dedicated SSAs and support employees. The OPR operates under the direction of an Assistant Director (AD) and a Deputy Assistant Director (DAD). My responsibility is to review all allegations of employee misconduct, determine the proper course of action, and to conduct, or, direct the conduct of all FBI internal investigations. I am the first phase in the disciplinary process of the FBI. At the conclusion of the internal investigative phase, the investigative results are reviewed for completeness by the IIUs and are referred to the AUs for a decision on the necessity for discipline. Approximately 75% of all internal investigations are delegated to field and FBI Headquarters (FBIHQ) divisions for investigation. The remaining 25% of the internal investigations are conducted by the IIUs, because I have determined that there is an appearance of a conflict, or, actual conflict with the field or FBIHQ division conducting the investigation, the allegation of misconduct involves a Senior Executive Service (SES) employee, or, senior management of the division, the allegation of misconduct appears to be a matter that may generate substantial public interest, and when field divisions lack sufficient resources and/or request OPR’s assistance in conducting an investigation. Resources in OPR, not unlike any other organization, are strained. In what was a record number of internal investigations in 2000, OPR SSA positions were recently reduced by three. This is a reduction difficult to understand, given the record number of investigations conducted by OPR, the need for an internal affairs component, and the need for the LEEU to conduct ethics training.

You have before you today individuals who have substantial experience in FBI internal affairs investigations. I am employee who is concerned with perception of a double standard in the disciplinary process in the FBI and the consequences for those FBI employees who conduct such investigations. I believe the ability to conduct complete, objective and competent investigations and the leadership of the FBI has been questioned. Of concern to me is the apparent deference paid to SES personnel who are found to have violated FBI policy, rules and regulations. Although it is not likely that non-SES FBI employees know the results of SES internal investigations and the discipline these executives receive, it is the perception that there is a double standard of punishment in the FBI. This should be alarming to all of us, because if the rank and file of any law enforcement organization believe that their executive management condones or approves of misconduct, that is a precursor for corruption.

Therefore, I would like to briefly comment on two high-profile FBI internal investigations. The first is the Ruby Ridge incident and the subsequent investigation into allegations of misconduct on the part of FBI employees. In August 1992, the incident at Ruby Ridge, Idaho, involving the FBI and other law enforcement agencies, occurred. In 1993, following the trial where Randall Weaver and Kevin Harris were acquitted, the DOJ and the FBI initiated inquiries into numerous allegations of misconduct by government personnel in connection with the standoff at Ruby Ridge. These inquiries eventually resulted in disciplinary action in January 1995, against numerous FBI personnel.

On May 3, 1995, the OPR/DOJ received a letter from one of the FBI employees disciplined as a result of this employee's actions at Ruby Ridge. The employee alleged that the person selected by the FBI to head the inquiry which resulted in the discipline of this employee, had been manipulated to find scapegoats and to avoid holding higher-ranking FBI officials responsible for the August 1992 events at Ruby Ridge. In particular, this employee alleged that the person heading the inquiry had purposely attempted to steer the inquiry away from any findings unfavorable to higher level executives of the FBI.

In May 1995, while serving in the Boston Division of the FBI, personnel from the OPR/DOJ met with the Director of the FBI and advised the Director that an investigation into the allegations raised in the disciplined FBI employee’s letter was necessary. The OPR/DOJ personnel requested the Director to assign Mr. John L. Werner and me to conduct the investigation. The Director ordered that Mr. Werner and I conduct the investigation, and, in May 1995, we were assigned to the OPR/DOJ, and shortly thereafter named as Inspectors in Charge of the Ruby Ridge investigation, the second investigation of the Ruby Ridge incident, an investigation that was administrative in nature. Mr. Werner and I reviewed the reports prepared during the first Ruby Ridge investigation and concluded that significant interviews were not conducted and significant allegations of misconduct were not thoroughly investigated. These investigative failures resulted in flawed investigative results. In my opinion, had a thorough and competent investigation been conducted, there would not have been a need for this second investigation. For example, significant and critical interviews were not conducted of all employees assigned to the Strategic Information Operations Center (SIOC), the command center for the FBI which was staffed 24 hours a day, during the Ruby Ridge incident. Those interviews, of a few employees assigned to the SIOC, were not recorded in written form, either in signed, sworn statements or FD-302s, which is the FBI’s report of interview form. Additionally, information had surfaced that there was an After Action Conference following the Ruby Ridge incident and a After Action Report
may have been prepared. The After Action Report could not be located and the investigation did not pursue that evidence. As we now know, the report was destroyed and an SES employee was convicted for his part in the destruction of that document.

The Ruby Ridge investigation to which Mr. Werner and I were assigned became a criminal investigation in approximately September 1995, and continued under the direction of the Acting United States Attorney for the District of Columbia. That investigation continued until July 1997, and resulted in the conviction of an FBI SES employee. At the conclusion of the criminal investigation, I requested that referrals be made by the Acting United States Attorney for the District of Columbia to the OPR/DOJ of serious misconduct issues that were noted during the criminal investigation and which did not warrant criminal prosecution. These referrals were made and an administrative investigation was initiated under the direction of the OPR/DOJ in approximately September 1997. This investigation addressed serious misconduct allegations against numerous FBI employees, to include seven SES employees. In June 1999, the investigation was completed and the findings, along with recommendations for discipline were forwarded by OPR/DOJ to the Justice Management Division, DOJ, for adjudication. In January 2001, the Assistant Attorney General for Administration, DOJ, found that there was no misconduct on the part of FBI employees. I find this conclusion to be outrageous and I believe anyone who reviews this matter will find the conclusions alarming.

The Ruby Ridge investigation to which Mr. Werner and I were assigned investigated allegations of serious misconduct on the part of some SES personnel who were popular individuals. As such, they had a great deal of support from many in the FBI. Consequently, almost immediately upon being assigned to the Ruby Ridge investigation, an SES employee in the Boston Division where I was assigned, demanded that I return to the Boston Division and discontinue my assignment to the Ruby Ridge investigation. When I told him that was not possible, he threatened to go to the Deputy Director of the FBI and have me removed from the investigation. This SES employee questioned the need for the investigation and his behavior escalated to where he wanted nothing to do with me and then set out to take his anger out on my wife, a support employee also assigned to Boston Division. This SES employee’s actions against my wife and me required that we be transferred from that division. Throughout our assignment to the Ruby Ridge investigation, Mr. Werner and I received, what we perceived to be threats from some SES personnel. We were told that we did not work for the FBI, that our assignment to the Ruby Ridge investigation could have an impact on our careers, and that being assigned to the investigation would not be good for us in the end. At one point, a retired SES person made the comment that the assignment to the Ruby Ridge investigation was not good for my career. I bring this information to light to illustrate the effort on the part of some SES personnel to have Mr. Werner and me removed from the Ruby Ridge investigation.

What occurred during the Ruby Ridge investigation should not be viewed as an isolated incident. There are various subtle and not so subtle actions taken which may impact an employee’s career. For example, within the last year an SES employee made unprofessional comments to two Inspectors during an inspection. The comments could have been interpreted as a threat to
influence the careers of the Inspectors. Additionally, a review of career board activities will likely reveal that some career board members who have been subjects of internal investigations will sit in judgement of the investigator who conducted the internal investigation.

The second investigation I will briefly discuss was initiated in late 1997, based upon allegations that seven SES personnel traveled to a retirement party and submitted expense vouchers containing false information. This investigation found that false vouchers were submitted by these individuals, but the adjudication findings by their peers were that these employees failed to pay attention to detail and they received letters of censure, a relatively light disciplinary action. Violations such as voucher fraud committed by non-SES personnel result in different findings and harsher punishment.

It is significant to point out that investigations of alleged misconduct as that found in the Ruby Ridge and retirement party matters, can likely result in an employee not being promoted, not receiving awards, and not receiving a requested transfer. In the two cases I just discussed, some of the SES employees received promotions and thousands of dollars in cash awards during the pendency of the investigations. Recently, the SES disciplinary policy was changed so that now the FBI has one disciplinary process for all employees.

It is my impression that many in the FBI know of the problems the organization faces. I believe that arrogance is a great part of the problem in the FBI today and that oversight is the first step in renewing confidence in the FBI. All of us in the FBI should welcome oversight. The cure for the FBI’s problems is strong leadership. I am not sure if a separate Inspector General will be a better solution for the FBI, or, if the Inspector General for DOJ is the solution. What we in the FBI have to learn is that protecting the organization is not always the best course of action. It is better to acknowledge errors up front, rather than hoping they will go away or that no one will find out about the mistakes. Although we in the FBI refer to the organization as our FBI, in fact, the FBI belongs to all of us in this great country. We serve the American people and they have a right to an FBI that is corruption free and operates at a high expectation of excellence. In my opinion, it is one thing to believe that the you are the greatest law enforcement organization in the world, but it is quite another to voice that opinion. I believe that such statements offend every other law enforcement officer in the world who places his or her life on the line each and every day. We need to let our actions and accomplishments speak to our greatness.

It was during this Committee’s hearing on June 20, 2001, that Whistleblower protection for FBI employees was discussed. I do not have a great deal of confidence in the protection of FBI employees for Whistleblower complaints. This lack of confidence, in a large part, is due to a senior executive of the FBI telling me that he has a visceral dislike for the Whistleblower statute and feels that it is a bad law. I think his belief is that employees are able to make allegations that are later proven to be unsupported by evidence, and the employee is protected. Although I do not share this belief, I do not believe that anyone is going to admit to retaliating against an employee for making protected disclosures and it is rare that a “smoking gun” can be found.

This concludes my prepared testimony. I am happy to answer any questions you may have.