Congressional Record: February 28, 2002 (Senate)
Page S1352-S1366
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. LEAHY (for himself and Mr. Grassley):
S. 1974. A bill to make needed reforms in the Federal Bureau of
Investigation, and for other purposes; to the committee on the
Judiciary.
Mr. LEAHY. Madam President, I rise today, joined by my good friend
Senator Grassley, to introduce the FBI Reform Act of 2002. This bill
stems from the lessons learned during a series of Judiciary Committee
hearings on oversight of the FBI that I chaired beginning last June.
Even more recently, the important changes which are being made under
the FBI's new leadership after the September 11 attacks and the new
powers granted the FBI by the USA PATRIOT Act have resulted in FBI
reform becoming an pressing matter of national importance.
Since the attacks of September 11, 2001, and the anthrax attacks last
fall, we have relied on the FBI to detect and prevent acts of
catastrophic terrorism that endanger the lives of the American people
and the institutions of our country. The men and women of the FBI are
performing this task with great professionalism at home and abroad. I
think that we have all felt safer as a result of the full mobilization
of the FBI's dedicated Special Agents, its expert support personnel,
and its exceptional technical capabilities. We owe the men and women of
the FBI our thanks.
For decades the FBI has been an outstanding law enforcement agency
and a vital member of the United States intelligence community. As our
hearings and recent events have shown, however, there is room for
improvement at
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the FBI. We must face the mistakes of the past, and make the changes
needed to ensure that they are not repeated. In meeting the
international terrorist challenge, the Congress has an opportunity and
obligation to strengthen the institutional fibre of the FBI based on
lessons learned from recent problems the Bureau has experienced.
This view is not mine alone. When Director Bob Mueller testified at
his confirmation hearings last July, he forthrightly acknowledged
"that the Bureau's remarkable legacy of service and accomplishment has
been tarnished by some serious and highly publicized problems in recent
years. Waco, Ruby Ridge, the FBI lab, Wen Ho Lee, Robert Hanssen, and
the McVeigh documents--these familiar names and events remind us all
that the FBI is far from perfect and that the next director faces
significant management and administrative challenges." Since then, the
Judiciary Committee has forged a constructive partnership with Director
Mueller to get the FBI back on track.
Congress sometimes has followed a hands-off approach about the FBI.
But with the FBI's new increased powers, with our increased reliance on
them to stop terrorism, and with the increased funding requested in the
President's budget will come increased scrutiny. Until the Bureau's
problems are resolved and new challenges overcome, we have to take a
hands-on approach.
Indeed our hearings and other oversight activities have highlighted
tangible steps the Congress should take in an FBI reform bill as part
of this hands-on approach. Last year's hearings demonstrated the need
to improve FBI internal accountability, extend whistleblower
protection, end the double-standard for discipline of senior FBI
executives, enhance the FBI's internal security program to protect
against espionage as occurred in the Hanssen case, and modernize the
FBI's information technology systems. Since last year's oversight
hearings, the committee has explored additional management issues that
are reflected in the FBI Reform Act. Senator Grassley called attention
to concerns about the practices of the FBI and other Federal criminal
investigative agencies in reporting and using statistics on their
investigations. In addition, FBI officials responsible for protecting
its facilities informed us of difficulties in retaining the most
qualified people on the FBI's own police force to protect some of our
nation's most important and, unfortunately, most targeted facilities.
When Director Mueller announced the first stage of his FBI
reorganization last December, he stressed the importance of taking a
comprehensive look at the FBI's missions for the future, and Deputy
Attorney General Thompson's office has told us that the Attorney
General's management review of the FBI is considering this matter.
Director Mueller has stated that the second phase of FBI reorganization
will be part of a "comprehensive plan to address not only the new
challenges of terrorism, but to modernize and streamline the Bureau's
more traditional functions. . . ." Thus, through our hearings, our
other oversight efforts, and the statements and efforts of the new
management team at the FBI, an initial list of challenges facing the
FBI has been developed.
The provisions in the FBI Reform Act address each of these
challenges.
Titles I, II, and VII of the FBI Reform Act strengthen the system for
uncovering and reviewing FBI misconduct and imposing appropriate
discipline, so that there is appropriate accountability. Title I
creates statutory jurisdiction for the DOJ Inspector General over
allegations of misconduct in the FBI. It brings the statutory
authorities of the Justice Department's Inspector General into line
with the administrative regulations adopted by the Attorney General on
July 11, 2001, ensuring that there will be no return to a system in
which the FBI enjoyed unique exemption for scrutiny by an independent
Inspector General. Title II strengthens whistleblower protection for
FBI employees and protects them from retaliation for reporting
wrongdoing. Title VII eliminates statutory disparities in disciplinary
penalties for Senior Executive Service and non-SES personnel.
The committee received testimony in our oversight hearings showing
that, too often, the independence that is part of the FBI's culture
crossed the line into arrogance. Senator Danforth expressed concern to
the committee about entrenched executives at the FBI who had created a
closed and insular culture resistant to disclosure of mistakes and to
reforms. His concern was echoed in testimony the committee heard from
experienced FBI Special Agents, including a unit chief in the FBI's own
Office of Professional Responsibility, who told us of a "club"
mentality among some Bureau executives who viewed any criticism or
change as a threat to their careers.
If there was one message from these witnesses, it was that FBI
executives needed to be more willing to admit their mistakes. Too often
their response was to shield the Bureau from embarrassment by
sacrificing accountability and needed reform. For example, Senator
Danforth testified that the FBI helped fan the flames of conspiracy
theories at Waco by covering up evidence that it used pyrotechnic
rounds, even though they had nothing to do with starting the fire. The
FBI culture demanded covering up rather than admitting a mistake. Of
course, as the FBI painfully discovered, the price for circling the
wagons in this way can be the loss of public confidence.
The Justice Department Inspector General is in a position to conduct
an independent investigation that enables the Attorney General and the
FBI Director to hold FBI personnel accountable and learn the necessary
lessons from mistakes. When Director Mueller was asked at his
confirmation hearing about a separate FBI Inspector General, he
replied, "If I were the Attorney General I might have some concern
about a separate Inspector General feeding the perception that the FBI
was a separate institution accountable only to itself. And I'm not
certain in my own mind whether or not what the accountability you seek
cannot be discharged by an Inspector General with appropriate personnel
in the Department of Justice, as opposed to establishing another
Inspector General in the FBI." Attorney General Ashcroft decided to
follow this route, and Title I of the FBI Reform Act codifies his
action.
The committee also heard disturbing testimony about retaliation
against FBI Agents who are tasked to investigate their colleagues or
who discuss issues with the Congress, either directly or through
cooperation with the General Accounting Office, which assists in
congressional oversight. Therefore, Title II is important to ensure
that the Federal whistleblower protection laws protect FBI personnel to
the greatest extent possible. Senator Grassley deserves great credit
for stressing the need for this provision and developing the language
in the bill. The bill extends whistleblower protections to employees
who report wrongdoing to their supervisors or to Congress, and ensures
that whistleblowers will enjoy basic procedural protections, including
the normal procedures and judicial review provided under the
Administrative Procedure Act, if they are subjected to retaliation. It
also ensures that those who report wrongdoing to the Office of the
Special Counsel have access to the normal Merit System Protection Board
rights if retaliated against.
Title VII addresses the issue of a double standard for discipline of
senior executives. Internal investigations must lead to fair and just
discipline. A troubling internal FBI study that was released at the
committee's July hearing documented a double standard at work, with
senior FBI executives receiving a slap on the wrist for the same kind
of conduct that would result in serious discipline for lower level
employees. At his confirmation hearing, Director Mueller said it is
"very important that there be no double standards in accountability. I
know there have been allegations that senior FBI officials are
sometimes treated more leniently than more junior employees. Any such
double standard would be fundamentally unfair and enormously
destructive to employee morale." Title VII embodies that principle by
eliminating the disparity in authorized punishments between Senior
Executive Service members and other Federal employees.
The Hanssen espionage case was a tremendous shock to the nation and
to the FBI. A trusted and experienced FBI Supervisory Special Agent was
found
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to have sold many of the nation's most sensitive national security
secrets to the Soviet Union and to Russia. Just as the Ames case forced
the CIA to revamp its security program after 1994, the Hanssen case
requires major changes in FBI security. Former FBI and CIA Director
William Webster chairs a commission that is completing its review of
lessons learned from the Hanssen case for the Attorney General and the
FBI Director. It is my hope that Judge Webster will testify before
the Judiciary Committee when his report is complete to present his
unclassified findings and recommendations. The FBI Reform Act includes
provisions that are based on the Judiciary Committee's initial
oversight hearings and we remain open to incorporating the considered
recommendations and reforms for which the Webster Commission may call.
Title III of the FBI Reform Act would establish a Career Security
Program in the FBI and Title IV would establish an FBI
Counterintelligence Polygraph Program for screening personnel in
exceptionally sensitive positions with specific safeguards. In
addition, as a result of concerns about terrorist attacks against FBI
targets, Title V would authorize an FBI police force as part of
comprehensive security enhancements.
The FBI Career Security Program would bring the FBI into line with
other U.S. intelligence agencies that have strong career security
professional cadres whose skills and leadership are dedicated to the
protection of agency information, personnel, and facilities. The
challenges of espionage, information technology vulnerability, and the
FBI's high profile as a target of terrorist attack require that the FBI
match or exceed the best security programs in the intelligence and
national security community. This can only be achieved by a fundamental
change that reverses the tendency, found too often in civilian
agencies, to treat security as a secondary mission and security
assignments as obstacles to career advancement. Before the Hanssen
case, an FBI Special Agent experienced as a criminal investigator might
be assigned for a few years to a security position and then move on
without building continuity of security expertise. Turnover in FBI
security work was high, the top rank was Headquarters Section Chief.
Director Mueller has changed direction by creating a Assistant
Director position to head a new Security Division and supporting the
principle of a Security Career Program. I support this change. Title II
of the FBI Reform Act provides the statutory mandate and tools to
achieve this goal based on the experience of the Defense Department in
reforming its acquisition career program. The key requirements are
leadership and accountability in a Security Director, creation of
security career program boards, designation of security positions,
identification of security career paths requiring appropriate training
and experience, and development of education programs for security
professionals. To help ensure that security professionals gain stature
comparable to Special Agents, the program would limit the preference
for Special Agents in considering persons for security positions. FBI
security managers would complete a security management course
accredited by the Joint Security Training Consortium recently formed by
the Intelligence Community and the Department of Defense.
The FBI Counterintelligence Polygraph Program that would be
established under Title III of the Act also addresses the security
issue. Title III recognizes the security value of polygraph screening,
but provides specific safeguards for those who may be subject to
adverse action based on polygraph exams. Screening procedures must
address the problems of "false positive" responses, limit adverse
actions taken solely by reason of physiological reactions in an
examination, ensure quality assurance and control, and allow subjects
to have prompt access to unclassified reports on examinations that
relate to adverse actions against them. Title III is based upon the
simple conviction that increased security and protection of employee
rights can and must coexist at the FBI.
Title IV of the Act provides long overdue statutory authorization for
a permanent FBI Police force, to protect critical FBI facilities. It
would provide the men and women who currently guard the highest risk
targets with the same pay and benefits as members of the Uniformed
Division of the United States Secret Service. Today the FBI police
force operating under delegated authority from the General Services
Administration has been unable to retain skilled personnel at a rate
commensurate with the threat and the need for experienced leadership.
The FBI Reform Act would bring the FBI police force generally into line
not only with the Uniformed Division of the Secret Service, but also
with the Capitol Police and the Supreme Court police. It is intended to
be consistent with the current Memorandum of Agreement between the FBI
and the Metropolitan Police Force of the District of Columbia with
respect to FBI buildings and grounds covered in Washington, D.C..
The Attorney General has directed Deputy Attorney General Thompson to
lead a management review of the FBI, while Director Mueller has already
begun reorganizing the Bureau. Congress must participate in reviewing
the FBI's structure and identifying its future priorities. The FBI is
being called on today to protect the national security from terrorist
and intelligence threats mounted from abroad. FBI investigations now
extend overseas far more often because of our government's decision to
use law enforcement as an instrument of national security along with
diplomacy, military deployments, and intelligence operations. At the
same time, it must continue with other uniquely Federal areas of
enforcement. Title VI requires a set of reports that would enable
Congress to engage the Executive branch in a constructive dialogue
building a more effective FBI for the future.
To help Congress participate in charting the FBI's course, Title VI
directs the Attorney General to submit a comprehensive report on the
legal authorities for FBI programs and activities. In the late 1970s
the Judiciary Committee considered enactment of a legislative charter
for the FBI that would spell out its authorities and responsibilities.
That proposal was set aside in 1980 despite determined efforts by then-
Judiciary Committee Chairman Kennedy, Judge Webster and Attorney
General Civiletti to reach agreement. The time is ripe to revive
consideration of this effort.
In addition to a comprehensive charter, Congress should consider
whether the FBI should continue to have responsibility for the broad
range of investigations that it is currently expected to conduct. I
believe we have gone too far in federalizing criminal law enforcement
and that more responsibilities which are not uniquely federal can be
transferred back to the states. In addition, even within the Federal
law enforcement family, numerous agencies perform redundant functions.
The Attorney General's report would recommend whether the FBI should
continue to have all its current investigative responsibilities,
whether existing legal authority for any FBI program or activity should
be modified or repealed, and whether the FBI must or should have
express statutory authority for new or existing programs or activities.
Title VI also recognizes that the task of modernizing FBI's
information technology and management is as important as setting the
FBI's future missions. Judiciary Committee oversight hearings have
documented, and Director Mueller has acknowledged, that the FBI must
overcome years of neglect in this regard. Congress is providing the
funds, especially in the FY 2002 Counterterrorim Supplemental for
technology assistance. We must ensure, however, that the FBI can and
does use these funds effectively. There is concern that the FBI may
need greater flexibility than is allowed under current law to procure
new technologies. Congress also needs to see detailed plans as to how
the FBI plans to update its information technology systems.
Unfortunately, the Department of Justice and the FBI have not provided
quarterly status reports on the principal FBI computer upgrade program,
known as TRILOGY, as requested in the Appropriations act for FY 2001.
Title VI directs the Attorney General to address these concerns in a
comprehensive report on FBI information management and technology.
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Finally, Title VI requires the Comptroller General to investigate and
complete a report on how statistics are reported and used by Federal
law enforcement agencies, including the FBI. Senator Grassley has
focused attention on the question whether the FBI and other agencies
may be double-counting criminal investigations and arrests in the
reporting of accomplishments. We also need to ascertain whether the FBI
and other agencies properly use the statistics which they compile in
making management decisions. It is important to get the facts and
recommendations that put the FBI into the context of the full spectrum
of Federal law enforcement agencies. Title VI ensures that the GAO can
complete this important task by requiring agencies to comply with its
requests for the information that is necessary to assist in preparing
this report.
The legislation which Senator Grassley and I introduce today is just
one part of a bipartisan, hands-on approach to FBI reform. The
committee plans additional oversight hearings to consider the Justice
Department Inspector General's report on the belated production of
documents in the Oklahoma City bombing case and the report of Judge
Webster's Commission on the security lessons of the Robert Hanssen
espionage case. The committee also intends to hear from Director
Mueller and Deputy Attorney General Thompson on their response to these
reports and on their actions and goals in reorganizing the FBI and
charting its management course for the future.
At the same time, we are focusing oversight attention on key aspects
of FBI and law enforcement performance in connection with the September
11 terrorist attacks and the lessons learned for developing an
effective counterterrorism and homeland security program. As
contemplated by the sunset provisions in the USA PATRIOT Act, we must
monitor the implementation of new surveillance and investigative powers
provided to strengthen counterterrorism efforts and, in some
provisions, law enforcement and counterintelligence generally.
The FBI Reform Act is designed to strengthen the FBI as an
institution that has a unique role as both a law enforcement agency and
a member of the intelligence community. As the Judiciary Committee
continues its oversight work and more is learned about recent FBI
performance, additional legislation may prove necessary. Especially
important will be the lessons from the attacks of September 11, 2001,
the anthrax attacks, and implementation of the USA PATRIOT Act and
other counterterrorism measures. Strengthening the FBI cannot be
accomplished overnight, but today, with the introduction of FBI Reform
Act, we take an important step into the future.
For all of these reasons, I am pleased to introduce this legislation
with Senator Grassley. I ask unanimous consent that the text of the
bill be printed in the Record along with the sectional analysis.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 1974
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Federal Bureau of
Investigation Reform Act of 2002".
TITLE I--IMPROVING FBI OVERSIGHT
SEC. 101. AUTHORITY OF THE DEPARTMENT OF JUSTICE INSPECTOR
GENERAL.
Section 8E of the Inspector General Act of 1978 (5 U.S.C.
App.) is amended--
(1) in subsection (b), by striking paragraphs (2) and (3)
and inserting the following:
"(2) except as specified in subsection (a) and paragraph
(3), may investigate allegations of criminal wrongdoing or
administrative misconduct by an employee of the Department of
Justice, or may, in the discretion of the Inspector General,
refer such allegations to the Office of Professional
Responsibility or the internal affairs office of the
appropriate component of the Department of Justice; and
"(3) shall refer to the Counsel, Office of Professional
Responsibility of the Department of Justice, allegations of
misconduct involving Department attorneys, investigators, or
law enforcement personnel, where the allegations relate to
the exercise of the authority of an attorney to investigate,
litigate, or provide legal advice, except that no such
referral shall be made if the attorney is employed in the
Office of Professional Responsibility."; and
(2) by adding at the end the following:
"(d) The Attorney General shall ensure by regulation that
any component of the Department of Justice receiving a
nonfrivolous allegation of criminal wrongdoing or
administrative misconduct by an employee of the Department of
Justice shall report that information to the Inspector
General.".
SEC. 102. REVIEW OF THE DEPARTMENT OF JUSTICE.
(a) Appointment of Oversight Official Within the Office of
Inspector General.--
(1) In general.--The Inspector General of the Department of
Justice shall direct that 1 official from the office of the
Inspector General be responsible for supervising and
coordinating independent oversight of programs and operations
of the Federal Bureau of Investigation until September 30,
2003.
(2) Continuation of oversight.--The Inspector General may
continue individual oversight in accordance with paragraph
(1) after September 30, 2003, at the discretion of the
Inspector General.
(b) Inspector General Oversight Plan for the Federal Bureau
of Investigation.--Not later than 30 days after the date of
the enactment of this Act, the Inspector General of the
Department of Justice shall submit to the Chairman and
ranking member of the Committees on the Judiciary of the
Senate and the House of Representatives, a plan for oversight
of the Federal Bureau of Investigation, which plan may
include--
(1) an audit of the financial systems, information
technology systems, and computer security systems of the
Federal Bureau of Investigation;
(2) an audit and evaluation of programs and processes of
the Federal Bureau of Investigation to identify systemic
weaknesses or implementation failures and to recommend
corrective action;
(3) a review of the activities of internal affairs offices
of the Federal Bureau of Investigation, including the
Inspections Division and the Office of Professional
Responsibility;
(4) an investigation of allegations of serious misconduct
by personnel of the Federal Bureau of Investigation;
(5) a review of matters relating to any other program or
operation of the Federal Bureau of Investigation that the
Inspector General determines requires review; and
(6) an identification of resources needed by the Inspector
General to implement a plan for oversight of the Federal
Bureau of Investigation.
(c) Report on Inspector General for Federal Bureau of
Investigation.--Not later than 90 days after the date of
enactment of this Act, the Attorney General shall submit a
report and recommendation to the Chairman and ranking member
of the Committees on the Judiciary of the Senate and the
House of Representatives concerning whether there should be
established, within the Department of Justice, a separate
office of the Inspector General for the Federal Bureau of
Investigation that shall be responsible for supervising
independent oversight of programs and operations of the
Federal Bureau of Investigation.
TITLE II--WHISTLEBLOWER PROTECTION
SEC. 201. INCREASING PROTECTIONS FOR FBI WHISTLEBLOWERS.
Section 2303 of title 5, United States Code, is amended to
read as follows:
"Sec. 2303. Prohibited personnel practices in the Federal
Bureau of Investigation
"(a) Definition.--In this section, the term `personnel
action' means any action described in clauses (i) through (x)
of section 2302(a)(2)(A).
"(b) Prohibited Practices.--Any employee of the Federal
Bureau of Investigation who has the authority to take, direct
others to take, recommend, or approve any personnel action,
shall not, with respect to such authority, take or fail to
take a personnel action with respect to any employee of the
Bureau or because of--
"(1) any disclosure of information by the employee to the
Attorney General (or an employee designated by the Attorney
General for such purpose), a supervisor of the employee, the
Inspector General for the Department of Justice, or a Member
of Congress that the employee reasonably believes evidences--
"(A) a violation of any law, rule, or regulation; or
"(B) mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public
health or safety; or
"(2) any disclosure of information by the employee to the
Special Counsel of information that the employee reasonably
believes evidences--
"(A) a violation of any law, rule, or regulation; or
"(B) mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public
health or safety,
if such disclosure is not specifically prohibited by law and
if such information is not specifically required by Executive
order to be kept secret in the interest of national defense
or the conduct of foreign affairs.
"(c) Individual Right of Action.--Chapter 12 of this title
shall apply to an employee of the Federal Bureau of
Investigation who claims that a personnel action has been
taken under this section against the employee as a reprisal
for any disclosure of information described in subsection
(b)(2).
"(d) Regulations.--The Attorney General shall prescribe
regulations to ensure that a personnel action under this
section shall not
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be taken against an employee of the Federal Bureau of
Investigation as a reprisal for any disclosure of information
described in subsection (b)(1), and shall provide for the
enforcement of such regulations in a manner consistent with
applicable provisions of sections 1214 and 1221, and in
accordance with the procedures set forth in sections 554
through 557 and 701 through 706.".
TITLE III--FBI SECURITY CAREER PROGRAM
SEC. 301. SECURITY MANAGEMENT POLICIES.
The Attorney General shall establish policies and
procedures for the effective management (including accession,
education, training, and career development) of persons
serving in security positions in the Federal Bureau of
Investigation.
SEC. 302. DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION.
(a) In General.--Subject to the authority, direction, and
control of the Attorney General, the Director of the Federal
Bureau of Investigation (referred to in this title as the
"Director") shall carry out all powers, functions, and
duties of the Attorney General with respect to the security
workforce in the Federal Bureau of Investigation.
(b) Policy Implementation.--The Director shall ensure that
the policies of the Attorney General established in
accordance with this Act are implemented throughout the
Federal Bureau of Investigation.
SEC. 303. DIRECTOR OF SECURITY.
The Director shall appoint a Director of Security, or such
other title as the Director may determine, to assist the
Director in the performance of the duties of the Director
under this Act.
SEC. 304. SECURITY CAREER PROGRAM BOARDS.
(a) Establishment.--The Director acting through the
Director of Security shall establish a security career
program board to advise the Director in managing the hiring,
training, education, and career development of personnel in
the security workforce of the Federal Bureau of
Investigation.
(b) Composition of Board.--The security career program
board shall include--
(1) the Director of Security (or a representative of the
Director of Security);
(2) the senior officials, as designated by the Director,
with responsibility for personnel management;
(3) the senior officials, as designated by the Director,
with responsibility for information management;
(4) the senior officials, as designated by the Director,
with responsibility for training and career development in
the various security disciplines; and
(5) such other senior officials for the intelligence
community as the Director may designate.
(c) Chairperson.--The Director of Security (or a
representative of the Director of Security) shall be the
chairperson of the board.
(d) Subordinate Boards.--The Director of Security may
establish a subordinate board structure to which functions of
the security career program board may be delegated.
SEC. 305. DESIGNATION OF SECURITY POSITIONS.
(a) Designation.--The Director shall designate, by
regulation, those positions in the Federal Bureau of
Investigation that are security positions for purposes of
this Act.
(b) Required Positions.--In designating security positions
under subsection (a), the Director shall include, at a
minimum, all security-related positions in the areas of--
(1) personnel security and access control;
(2) information systems security and information assurance;
(3) physical security and technical surveillance
countermeasures;
(4) operational, program, and industrial security; and
(5) information security and classification management.
SEC. 306. CAREER DEVELOPMENT.
(a) Career Paths.--The Director shall ensure that
appropriate career paths for personnel who wish to pursue
careers in security are identified in terms of the education,
training, experience, and assignments necessary for career
progression to the most senior security positions and shall
make available published information on those career paths.
(b) Limitation on Preference for Special Agents.--
(1) In general.--Except as provided in the policy
established under paragraph (2), the Attorney General shall
ensure that no requirement or preference for a Special Agent
of the Federal Bureau of Investigation (referred to in this
title as a "Special Agent") is used in the consideration of
persons for security positions.
(2) Policy.--The Attorney General shall establish a policy
that permits a particular security position to be specified
as available only to Special Agents, if a determination is
made, under criteria specified in the policy, that a Special
Agent--
(A) is required for that position by law;
(B) is essential for performance of the duties of the
position; or
(C) is necessary for another compelling reason.
(3) Report.--Not later than December 15 of each year, the
Director shall submit to the Attorney General a report that
lists--
(A) each security position that is restricted to Special
Agents under the policy established under paragraph (2); and
(B) the recommendation of the Director as to whether each
restricted security position should remain restricted.
(c) Opportunities To Qualify.--The Attorney General shall
ensure that all personnel, including Special Agents, are
provided the opportunity to acquire the education, training,
and experience necessary to qualify for senior security
positions.
(d) Best Qualified.--The Attorney General shall ensure that
the policies established under this Act are designed to
provide for the selection of the best qualified individual
for a position, consistent with other applicable law.
(e) Assignments Policy.--The Attorney General shall
establish a policy for assigning Special Agents to security
positions that provides for a balance between--
(1) the need for personnel to serve in career enhancing
positions; and
(2) the need for requiring service in each such position
for sufficient time to provide the stability necessary to
carry out effectively the duties of the position and to allow
for the establishment of responsibility and accountability
for actions taken in the position.
(f) Length of Assignment.--In implementing the policy
established under subsection (b)(2), the Director shall
provide, as appropriate, for longer lengths of assignments to
security positions than assignments to other positions.
(g) Performance Appraisals.--The Director shall provide an
opportunity for review and inclusion of any comments on any
appraisal of the performance of a person serving in a
security position by a person serving in a security position
in the same security career field.
(h) Balanced Workforce Policy.--In the development of
security workforce policies under this Act with respect to
any employees or applicants for employment, the Attorney
General shall, consistent with the merit system principles
set out in paragraphs (1) and (2) of section 2301(b) of title
5, take into consideration the need to maintain a balanced
workforce in which women and members of racial and ethnic
minority groups are appropriately represented in Government
service.
SEC. 307. GENERAL EDUCATION, TRAINING, AND EXPERIENCE
REQUIREMENTS.
(a) In General.--The Director shall establish education,
training, and experience requirements for each security
position, based on the level of complexity of duties carried
out in the position.
(b) Qualification Requirements.--Before being assigned to a
position as a program manager or deputy program manager of a
significant security program, a person--
(1) must have completed a security program management
course that is accredited by the Intelligence Community-
Department of Defense Joint Security Training Consortium or
is determined to be comparable by the Director; and
(2) must have not less than 6 years experience in security,
of which not less than 2 years were performed in a similar
program office or organization.
SEC. 308. EDUCATION AND TRAINING PROGRAMS.
(a) In General.--The Director, in consultation with the
Director of Central Intelligence and the Secretary of
Defense, shall establish and implement education and training
programs for persons serving in security positions in the
Federal Bureau of Investigation.
(b) Other Programs.--The Director shall ensure that
programs established under subsection (a) are established and
implemented, to the maximum extent practicable, uniformly
with the programs of the Intelligence Community and the
Department of Defense.
SEC. 309. OFFICE OF PERSONNEL MANAGEMENT APPROVAL.
(a) In General.--The Attorney General shall submit any
requirement that is established under section 307 to the
Director of the Office of Personnel Management for approval.
(b) Final Approval.--If the Director does not disapprove
the requirements established under section 307 within 30 days
after the date on which the Director receives the
requirement, the requirement is deemed to be approved by the
Director of the Office of Personnel Management.
TITLE IV--FBI COUNTERINTELLIGENCE POLYGRAPH PROGRAM
SEC. 401. DEFINITIONS.
In this title:
(1) Polygraph Program.--The term "polygraph program"
means the counterintelligence screening polygraph program
established under section 402.
(2) Polygraph Review.--The term "Polygraph Review" means
the review of the scientific validity of the polygraph for
counterintelligence screening purposes conducted by the
Committee to Review the Scientific Evidence on the Polygraph
of the National Academy of Sciences.
SEC. 402. ESTABLISHMENT OF PROGRAM.
Not later than 6 months after publication of the results of
the Polygraph Review, the Attorney General, in consultation
with the Director of the Federal Bureau of Investigation and
the Director of Security of the Federal Bureau of
Investigation, shall establish a counterintelligence
screening polygraph program for the Federal Bureau of
Investigation that consists of periodic polygraph
examinations of employees, or contractor employees of the
Federal Bureau of Investigation who are in positions
specified by the Director of the Federal Bureau of
Investigation as exceptionally sensitive in order to minimize
the potential for unauthorized release or disclosure of
exceptionally sensitive information.
[[Page S1357]]
SEC. 403. REGULATIONS.
(a) In General.--The Attorney General shall prescribe
regulations for the polygraph program in accordance with
subchapter II of chapter 5 of title 5, United States Code
(commonly referred to as the Administrative Procedures Act).
(b) Considerations.--In prescribing regulations under
subsection (a), the Attorney General shall--
(1) take into account the results of the Polygraph Review;
and
(2) include procedures for--
(A) identifying and addressing false positive results of
polygraph examinations;
(B) ensuring that adverse personnel actions are not taken
against an individual solely by reason of the physiological
reaction of the individual to a question in a polygraph
examination, unless--
(i) reasonable efforts are first made independently to
determine through alternative means, the veracity of the
response of the individual to the question; and
(ii) the Director of the Federal Bureau of Investigation
determines personally that the personnel action is justified;
(C) ensuring quality assurance and quality control in
accordance with any guidance provided by the Department of
Defense Polygraph Institute and the Director of Central
Intelligence; and
(D) allowing any employee or contractor who is the subject
of a counterintelligence screening polygraph examination
under the polygraph program, upon written request, to have
prompt access to any unclassified reports regarding an
examination that relates to any adverse personnel action
taken with respect to the individual.
SEC. 404. REPORT ON FURTHER ENHANCEMENT OF FBI PERSONNEL
SECURITY PROGRAM.
(a) In General.--Not later than 9 months after the date of
enactment of this Act, the Director of the Federal Bureau of
Investigation shall submit to Congress a report setting forth
recommendations for any legislative action that the Director
considers appropriate in order to enhance the personnel
security program of the Federal Bureau of Investigation.
(b) Polygraph Review Results.--Any recommendation under
subsection (a) regarding the use of polygraphs shall take
into account the results of the Polygraph Review.
TITLE V--FBI POLICE
SEC. 501. DEFINITIONS.
In this title:
(1) Director.--The term "Director" means the Director of
the Federal Bureau of Investigation.
(2) FBI buildings and grounds.--
(A) In general.--The term "FBI buildings and grounds"
means--
(i) the whole or any part of any building or structure
which is occupied under a lease or otherwise by the Federal
Bureau of Investigation and is subject to supervision and
control by the Federal Bureau of Investigation;
(ii) the land upon which there is situated any building or
structure which is occupied wholly by the Federal Bureau of
Investigation; and
(iii) any enclosed passageway connecting 2 or more
buildings or structures occupied in whole or in part by the
Federal Bureau of Investigation.
(B) Inclusion.--The term "FBI buildings and grounds"
includes adjacent streets and sidewalks not to exceed 500
feet from such property.
(3) FBI police.--The term "FBI police" means the
permanent police force established under section 502.
SEC. 502. ESTABLISHMENT OF FBI POLICE; DUTIES.
(a) In General.--Subject to the supervision of the Attorney
General, the Director may establish a permanent police force,
to be known as the FBI police.
(b) Duties.--The FBI police shall perform such duties as
the Director may prescribe in connection with the protection
of persons and property within FBI buildings and grounds.
(c) Uniformed Representative.--The Director, or designated
representative duly authorized by the Attorney General, may
appoint uniformed representatives of the Federal Bureau of
Investigation as FBI police for duty in connection with the
policing of all FBI buildings and grounds.
(d) Authority.--
(1) In general.--In accordance with regulations prescribed
by the Director and approved by the Attorney General, the FBI
police may--
(A) police the FBI buildings and grounds for the purpose of
protecting persons and property;
(B) in the performance of duties necessary for carrying out
subparagraph (A), make arrests and otherwise enforce the laws
of the United States, including the laws of the District of
Columbia;
(C) carry firearms as may be required for the performance
of duties;
(D) prevent breaches of the peace and suppress affrays and
unlawful assemblies; and
(E) hold the same powers as sheriffs and constables when
policing FBI buildings and grounds.
(2) Exception.--The authority and policing powers of FBI
police under this subsection shall not include the service of
civil process.
(e) Pay and Benefits.--
(1) In general.--The rates of basic pay, salary schedule,
pay provisions, and benefits for members of the FBI police
shall be equivalent to the rates of basic pay, salary
schedule, pay provisions, and benefits applicable to members
of the United States Secret Service Uniformed Division.
(2) Application.--Pay and benefits for the FBI police under
paragraph (1)--
(A) shall be established by regulation;
(B) shall apply with respect to pay periods beginning after
January 1, 2003; and
(C) shall not result in any decrease in the rates of pay or
benefits of any individual.
SEC. 503. AUTHORITY OF METROPOLITAN POLICE FORCE.
This title does not affect the authority of the
Metropolitan Police Force of the District of Columbia with
respect to FBI buildings and grounds.
TITLE VI--REPORTS
SEC. 601. REPORT ON LEGAL AUTHORITY FOR FBI PROGRAMS AND
ACTIVITIES.
(a) In General.--Not later than December 31, 2002, the
Attorney General shall submit to Congress a report describing
the statutory and other legal authority for all programs and
activities of the Federal Bureau of Investigation.
(b) Contents.--The report submitted under subsection (a)
shall describe--
(1) the titles within the United States Code and the
statutes for which the Federal Bureau of Investigation
exercises investigative responsibility;
(2) each program or activity of the Federal Bureau of
Investigation that has express statutory authority and the
statute which provides that authority; and
(3) each program or activity of the Federal Bureau of
Investigation that does not have express statutory authority,
and the source of the legal authority for that program or
activity.
(c) Recommendations.--The report submitted under subsection
(a) shall recommend whether--
(1) the Federal Bureau of Investigation should continue to
have investigative responsibility for each statute for which
the Federal Bureau of Investigation currently has
investigative responsibility;
(2) the legal authority for any program or activity of the
Federal Bureau of Investigation should be modified or
repealed;
(3) the Federal Bureau of Investigation should have express
statutory authority for any program or activity of the
Federal Bureau of Investigation for which the Federal Bureau
of Investigation does not currently have express statutory
authority; and
(4) the Federal Bureau of Investigation should--
(A) have authority for any new program or activity; and
(B) express statutory authority with respect to any new
programs or activities.
SEC. 602. REPORT ON FBI INFORMATION MANAGEMENT AND
TECHNOLOGY.
(a) In General.--Not later than December 31, 2002, the
Attorney General shall submit to Congress a report on the
information management and technology programs of the Federal
Bureau of Investigation including recommendations for any
legislation that may be necessary to enhance the
effectiveness of those programs.
(b) Contents of Report.--The report submitted under
subsection (a) shall provide--
(1) an analysis and evaluation of whether authority for
waiver of any provision of procurement law (including any
regulation implementing such a law) is necessary to
expeditiously and cost-effectively acquire information
technology to meet the unique need of the Federal Bureau of
Investigation to improve its investigative operations in
order to respond better to national law enforcement,
intelligence, and counterintelligence requirements;
(2) the results of the studies and audits conducted by the
Strategic Management Council and the Inspector General of the
Department of Justice to evaluate the information management
and technology programs of the Federal Bureau of
Investigation, including systems, policies, procedures,
practices, and operations; and
(3) a plan for improving the information management and
technology programs of the Federal Bureau of Investigation.
(c) Results.--The results provided under subsection (b)(2)
shall include an evaluation of--
(1) information technology procedures and practices
regarding procurement, training, and systems maintenance;
(2) record keeping policies, procedures, and practices of
the Federal Bureau of Investigation, focusing particularly on
how information is inputted, stored, managed, utilized, and
shared within the Federal Bureau of Investigation;
(3) how information in a given database is related or
compared to, or integrated with, information in other
technology databases within the Federal Bureau of
Investigation;
(4) the effectiveness of the existing information
technology infrastructure of the Federal Bureau of
Investigation in supporting and accomplishing the overall
mission of the Federal Bureau of Investigation;
(5) the management of information technology projects of
the Federal Bureau of Investigation, focusing on how the
Federal Bureau of Investigation--
(A) selects its information technology projects;
(B) ensures that projects under development deliver
benefits; and
(C) ensures that completed projects deliver the expected
results; and
[[Page S1358]]
(6) the security and access control techniques for
classified and sensitive but unclassified information systems
in the Federal Bureau of Investigation.
(d) Contents of Plan.--The plan provided under subsection
(b)(3) shall ensure that--
(1) appropriate key technology management positions in the
Federal Bureau of Investigation are filled by personnel with
experience in the commercial sector;
(2) access to the most sensitive information is audited in
such a manner that suspicious activity is subject to near
contemporaneous security review;
(3) critical information systems employ a public key
infrastructure to validate both users and recipients of
messages or records;
(4) security features are tested by the National Security
Agency to meet national information systems security
standards;
(5) all employees in the Federal Bureau of Investigation
receive annual instruction in records and information
management policies and procedures relevant to their
positions;
(6) a reserve is established for research and development
to guide strategic information management and technology
investment decisions;
(7) unnecessary administrative requirements for software
purchases under $2,000,000 are eliminated;
(8) full consideration is given to contacting with an
expert technology partner to provide technical support for
the information technology procurement for the Federal Bureau
of Investigation;
(9) procedures are instituted to procure products and
services through contracts of other agencies, as necessary;
and
(10) a systems integration and test center, with the
participation of field personnel, tests each series of
information systems upgrades or application changes before
their operational deployment to confirm that they meet proper
requirements.
SEC. 603. GAO REPORT ON CRIME STATISTICS REPORTING.
(a) In General.--Not later than 9 months after the date of
enactment of this Act, the Comptroller General of the United
States shall submit to the Committees on the Judiciary of the
Senate and the House of Representatives a report on the issue
of how statistics are reported and used by Federal law
enforcement agencies.
(b) Contents.--The report submitted under subsection (a)
shall--
(1) identify the current regulations, procedures, internal
policies, or other conditions that allow the investigation or
arrest of an individual to be claimed or reported by more
than 1 Federal or State agency charged with law enforcement
responsibility;
(2) identify and examine the conditions that allow the
investigation or arrest of an individual to be claimed or
reported by the Offices of Inspectors General and any other
Federal agency charged with law enforcement responsibility;
(3) examine the statistics reported by Federal law
enforcement agencies, and document those instances in which
more than 1 agency, bureau, or office claimed or reported the
same investigation or arrest during the years 1998 through
2001;
(4) examine the issue of Federal agencies simultaneously
claiming arrest credit for in-custody situations that have
already occurred pursuant to a State or local agency arrest
situation during the years 1998 through 2001;
(5) examine the issue of how such statistics are used for
administrative and management purposes;
(6) set forth a comprehensive definition of the terms
"investigation" and "arrest" as those terms apply to
Federal agencies charged with law enforcement
responsibilities; and
(7) include recommendations, that when implemented, would
eliminate unwarranted and duplicative reporting of
investigation and arrest statistics by all Federal agencies
charged with law enforcement responsibilities.
(c) Federal Agency Compliance.--Federal law enforcement
agencies shall comply with requests made by the General
Accounting Office for information that is necessary to assist
in preparing the report required by this section.
TITLE VII--MISCELLANEOUS PROVISIONS
SEC. 701. ALLOWING DISCIPLINARY SUSPENSIONS OF MEMBERS OF THE
SENIOR EXECUTIVE SERVICE FOR 14 DAYS OR LESS.
Section 7542 of title 5, United States Code, is amended by
striking "for more than 14 days".
____
S. 1974--Section-by-Section Analysis
title i
Title I of this bill provides for improved Department of
Justice and Congressional oversight of the FBI by ensuring
that the Department of Justice Office of the Inspector
General, "OIG", is authorized to investigate allegations of
misconduct at the FBI and requiring a report to the Judiciary
Committees on how the OIG carries out this new authority.
This title is consistent with provisions in the DOJ
Authorization Act, S. 1319/H.R. 2215, which have passed the
Senate by unanimous consent.
Section 101. Authority of Department of Justice Inspector
General
This section would amend Section 8E of the Inspector
General Act of 1978 (5 U.S.C. App.) to provide explicit
statutory authority for the OIG to investigate all
allegations of criminal or administrative misconduct by DOJ
employees, including FBI personnel. The OIG is also
authorized to refer certain matters to the FBI Office of
Professional Responsibility or to the internal affairs office
of the appropriate component of the Department. The Attorney
General is directed to promulgate regulations implementing
this OIG authority.
For many years, the FBI was excluded from OIG jurisdiction
and the FBI's own internal Office of Professional
Responsibility had sole authority to investigate FBI
personnel misconduct, unless the Attorney General made an
exception. The FBI's exclusive domain to investigate its own
misconduct was unique in the Department and created the
appearance of a conflict of interest. On July 11, 2001,
Attorney General Ashcroft issued a new rule expanding the
OIG's jurisdiction over the FBI. This section is consistent
with, and codifies, the Attorney General's new rule.
Section 102. Review of the Department of Justice
To ensure that the OIG has the necessary structure and
resources to effectively assume its new jurisdiction over the
FBI and that the Congress is fully informed of such needs,
this subsection requires the Inspector General to: 1. appoint
an official to help supervise and coordinate oversight
operations and programs of the FBI during the transition
period; 2. conduct a comprehensive study of the FBI and
report back to the Judiciary Committees with a plan for
auditing and evaluating various parts of FBI, including
information technology, and for effective continued OIG
oversight; and 3. report back to the Judiciary Committee on
whether an Inspector General for the FBI should be
established.
title ii
This title of the bill amends Title 5, U.S.C. Sec. 2303, to
enhance the whistle blower protection provided to FBI
employees and protect them from retaliation.
Section 201. Providing whistle blower protection for FBI
employees
Section 2303 of title 5, United States Code, is amended to
expand the types of disclosures that trigger whistle blower
protections by protecting disclosures, which the employee
"reasonably believes" evidences misconduct, to the OIG, the
Congress, a supervisor of the employee, or the Special
Counsel (an office of the Merit Systems Protection Board,
"MSPB", provided for by 5 U.S.C. Sec. 1214). The amendment
would also ensure that the procedural protections of the
Administrative Procedure Act, including but not limited to 5
U.S.C. sections 554-57 and 701-706, would be followed in
cases where a complaint of retaliation was made by an FBI
employee. These procedural protections include, among other
things, an impartial decision maker and decision based on the
"record" of any proceedings without ex parte contacts and
judicial review as provided. Current laws and regulations
which allow for the protection of classified material would
also be available for such proceedings in appropriate
situations. The amendment, in new subsection (c), provides an
individual right of action as provided under Chapter 12 of
Title 5 before the MSPB. The amendment, in new subsection
(d), requires the Attorney General to prescribe regulations
to ensure that the title is enforced at the FBI.
title iii
Title III requires the FBI to establish a career security
program to enhance the internal security of the FBI and
ensure that appropriate management tools and resources are
devoted to that task. Security professional career
development requirements would be modeled generally on the
statutory Department of Defense Acquisition Career Program.
Sections 301-305. Establishing and defining career security
program
Section 301 requires the Attorney General to establish
policies and procedures for career management of FBI security
personnel. Section 302 authorizes the Attorney General to
delegate to the FBI Director the Attorney General's duties
with respect to the FBI security workforce. Section 303
directs the FBI Director to appoint a Security Director, who,
under Section 304, would chair a security career program
board to advise in managing hiring, training, education, and
career development. Section 305 directs the FBI Director to
designate certain positions as security positions, with
responsibility for personnel security and access control,
information systems security, information assurance, physical
security, technical surveillance countermeasures,
operational, program and industrial security, and information
security and classification management.
Sections 306-309. Career development and training
Section 306 requires that career paths to senior positions
would be published. FBI Special Agents would not have
preference for a security position, and no positions would be
restricted to Special Agents unless the Attorney General
makes a special determination. All FBI personnel would have
the opportunity to acquire the education, training and
experience needed for senior security positions. The Attorney
General would ensure that policies are designed to select the
best qualified individuals, consistent with other applicable
law. Consideration would also be given to the need for a
balanced workforce.
Section 307 would direct that education, training, and
experience requirements would be established for each
position. Before assignment as manager or deputy manager of a
[[Page S1359]]
significant security program, a person would have to complete
a security program management course accredited by the Joint
DoD-Intelligence Security Training Consortium or determined
to be comparable by the Director, and have 6 years security
experience including 2 years in a similar program. Section
308 directs the Director, in consultation with the DCI and
Secretary of Defense, to establish education and training
programs for FBI security personnel that are, to the maximum
extent practical, uniform with Intelligence and DoD programs.
Section 309 sets forth the process for approval of
requirements set forth under section 307.
title iv
This title would require the Attorney General to establish
an FBI Counterintelligence Polygraph Program for personnel in
exceptionally sensitive positions that reflects the results
of a pending National Academy of Sciences review of the
validity of the polygraph, within 6 months after publication
of that review. The regulations would be prescribed in
accordance with the Administrative Procedures Act. A similar
requirement for the Department of Energy was passed in the
latest Defense Authorization Act.
Sections 401-404. Definitions, establishment of program,
regulations, report
Section 402 requires the establishment of a
counterintelligence screening polygraph program consisting of
periodic polygraph examinations of employees and contractors
with access to sensitive compartmented information, special
access program information, on restricted data. This program
shall be established within 6 months of the publication of
the results of the report of the Committee to Review the
Scientific Evidence on the Polygraph of the National Academy
of Sciences. Section 403 directs that the program have
procedures that address "false positive" results and ensure
quality assurance and control in accordance with guidance
from the DoD Polygraph Institute and the DCI. No adverse
personnel action could be taken solely by reason of
physiological reactions on an exam without further
investigation and personal decision by the Director.
Employees could have prompt access to unclassified reports on
their exams that relate to adverse personnel action. Section
404 requires a report within 9 months of the enactment of the
Act on any further legislative action appropriate in the
personnel security area.
title v
This title provides statutory authorization for an already
existing FBI police force that protects FBI buildings and
adjacent streets. Currently, the FBI police suffers from a
high rate of turnover due to lower pay and fewer benefits
than the Uniformed Division of Secret Service or Capitol and
Supreme Court police. This title would close the disparity.
Sections 501-503. Definitions; establishment; authority of
metropolitan police
Section 501 defines the terms "Director," "FBI buildings
and grounds," and "FBI police" as used in the title.
Section 502 authorizes the FBI Director to establish the FBI
police, subject to the Attorney General's supervision, to
protect persons and property within FBI buildings and
grounds, including adjacent streets and sidewalks within 500
feet. FBI buildings and grounds would include any building
occupied by the FBI and subject to FBI supervision and
control, the land on which such building is situated, and
enclosed passageways connecting such buildings. FBI police
would be uniformed representatives of the FBI with authority
to make arrests and otherwise enforce federal and D.C. laws,
carry firearms, prevent breaches of the peace, suppress
unlawful affrays and unlawful assemblies, and hold the same
powers as sheriffs and constables. FBI police would not have
authority to serve civil process. Pay and benefits would be
equivalent to pay and benefits for the Secret Service
Uniformed Division. Section 503 provides that the authority
of the Washington, D.C. Metropolitan Police would not be
affected by this title.
title vi
This title requires two separate reports by the Attorney
General and one by the General Accounting Office.
Section 601. FBI authority and mission
Section 601 requires the Attorney General to submit a
report to Congress on the legal authority for FBI programs
and activities, identifying those that have express statutory
authority and those that do not. The FBI does not have a
statutory charter. One was proposed in 1979 but never
enacted. Many FBI functions including its national
intelligence and counterintelligence activities are
authorized by Executive order rather than by statute. This
section also requires the Attorney General to recommend the
criminal statutes for which the FBI should have investigative
responsibility, whether the authority for any FBI program or
activity should be modified or repealed, whether the FBI
should have express statutory authority for any program or
activity for which it does not currently have such authority,
and whether the FBI should have authority for any new program
or activity.
Section 602. FBI information management
Section 602 requires the Attorney General to submit a
report on FBI information management and technology,
including whether the authority is needed to waive normal
procurement regulations. The report would provide the results
of pending Justice Management Council studies and Inspector
General audits and submitting a 10-point plan for improving
FBI information management and technology to ensure that 1.
appropriate FBI technology management positions are filled by
personnel with commercial sector experience, 2. access to the
most sensitive information is audited so that suspicious
activity is subject to near contemporaneous review, 3.
critical information systems employ a public key
infrastructure, 4. security features are tested by the
National Security Agency, 5. FBI employees receive annual
instruction in records and information management, 6. a
research and development reserve is established, 7. undue
requirements for less costly software purchases are
eliminated, 8. contracting with an expert technology partner
is considered, 9. procedures are instituted to procure
through contracts of other agencies as necessary, and 10.
system upgrades are tested before operational deployment.
Section 603. GAO report on crime statistics reporting
Section 603 requires the General Accounting Office to
report on how crime statistics are reported and used by
Federal law enforcement agencies. Specifically, the report
would identify policies that allow a case to be claimed or
reported by more than one law enforcement agency, the
conditions that allow such reporting to occur, the number of
such cases reported during a 4-year period, similar multiple
claims of credit for arrests, the use of such statistics for
administrative and management purposes, and relevant
definitions. The report would include recommendations for how
to eliminate unwarranted and duplicative reporting. Federal
law enforcement agencies would be required to comply with GAO
requests for information necessary to prepare the report.
title vii
This title would address the issue of the "double
standard" in the FBI, to prevent lower level employees from
being more harshly disciplined than senior FBI officials.
Section 7542 of title 5, United States Code, would be amended
to allow disciplinary suspensions of SES members for 14 days
or less, as is the case for other federal personnel. Current
law provides only for suspension "for more than 14 days."
Section 702. Allowing disciplinary suspensions of members of
the senior executive service for 14 days or less
This section would lift the minimum of 14 days suspension
that applies in the FBI's SES disciplinary cases and thereby
provide additional options for discipline in SES cases and
encourage equality of treatment. The current inflexibility of
disciplinary options applicable to SES officials was cited at
a Senate Judiciary Committee oversight hearing in July, 2001,
as one underlying reason for the "double standard" in FBI
discipline. In effect, those deciding the discipline of SES
employees are often left with the choice of an overly harsh
penalty or no penalty at all--so they decide not to impose
any meaningful disciplinary action.
Mr. GRASSLEY. Madam President, I am pleased to introduce with Senator
Leahy a bill to reform the FBI. For almost a decade I have been engaged
in FBI oversight and during that time I have seen numerous scandals and
coverups. While Director Mueller is working to address these problems,
Congress also has a role to play in the overhaul of the FBI. The FBI
reform bill is designed to address the accountability problems that
have plagued the FBI for years. The bill expands the Department of
Justice Inspector General's jurisdiction, protects FBI whistleblowers,
creates an FBI Security Career program and a Counterintelligence
Polygraph program, enhances the FBI police force, and mandates various
reports by the Attorney General.
I have advocated some of these measures, particularly those dealing
with protecting whistleblowers and expanding the jurisdiction of the
DOJ Inspector General's Office to include the FBI. Let me provide some
more detail about the most important provisions in the bill.
In the past the FBI's own internal Office of Professional
Responsibility was tasked with the sole authority to investigate the
misconduct of FBI personnel. Clearly this constitutes a conflict of
interest. In fact, no other area of the Department of Justice maintains
this type of accountability system.
Last summer, Attorney General Ashcroft issued an order which changed
that situation by expanding the jurisdiction of the Department of
Justice Office of Inspector General to encompass both the FBI and the
DEA. Specifically, the order gave the DOJ Inspector General primary
jurisdiction over allegations of misconduct against employees of the
FBI and DEA. Previously, the Inspector General could not initiate an
investigation within the FBI or the DEA, without receiving permission
from the Deputy Attorney General. I commended Attorney General
Ashcroft's order because I had been saying for many years that the FBI
should not be allowed to police
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itself. I was encouraged that the establishment of a free and
independent oversight entity would have a beneficial impact on the
FBI's management culture.
The bill codifies the Attorney General's order making it a permanent
fixture in the plan to reform the FBI. Specifically, the bill provides
statutory authority for the DOJ Office of Inspector General to
investigate all allegations of criminal and administrative misconduct
by DOJ employees, including those in the FBI and the DEA. However, it
does not abolish the FBI's Office of Professional Responsibility, OPR,
but rather gives the DOJ Inspector General discretion to refer certain
investigations to the FBI OPR. Because the FBI OPR is particularly good
at investigating certain types of low level offenses, it is good that
the Inspector General will have this discretion.
The bill also contains much needed protections for
FBI whistleblowers. As many of you know, I believe that good government
requires that the brave men and women who blow the whistle on
wrongdoing be protected. I have been an active champion of the rights
of federal whistleblowers since 1983. This is because of my strong
belief that disclosures of wrongdoing by whistleblowers are an integral
part of our system of checks and balances. Whistleblowers ensure that
waste, fraud, and abuse are brought to light. Whistleblowers play a
critical role in ensuring that public health and safety problems are
exposed.
I truly believe that reform at the FBI will only occur when FBI
employees feel free to blow the whistle on wrongdoing. Since the FBI
was excluded from the Whistleblower Protection Act I have been
concerned about the retaliation that is often perpetrated against
whistleblowers at the FBI, such as Dr. Fred Whitehurst, who speak out
about abuses and problems with the system.
So, the bill gives FBI whistleblowers the same rights and protections
that other Federal employees currently possess. When FBI employees are
retaliated against for blowing the whistle, they can avail themselves
of all the protections afforded them by the Whistleblower Protection
Act.
Since the FBI has made the fight against terrorism its top priority,
many would be FBI whistleblowers may blow the whistle on wrongdoing
that involves national security issues. Because of the need to keep
that information secure, the bill directs the Attorney General to
formulate regulations to provide specific protections for these
employees consistent with the relevant portions of the WPA and the
Administrative Procedures Act.
Our FBI reform bill addresses several other issues that contribute to
the FBI's culture of arrogance. I have believed for a long time that
one of the biggest contributors to this culture is the cumbersome and
unwieldy jurisdiction of the FBI. The Bureau currently investigates
over 300 different federal offenses, which are divided between 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.
Despite having what many would describe as an already overburdened
array of jurisdiction, the FBI has established a campaign of
jurisdictional encroachment. This "Pacman" philosophy of the Bureau's
past has only served to feed the culture of arrogance. I pointed this
problem out to the DOJ and was pleased to hear of the Attorney General
and the FBI Director's intention to put a stop to that "Pacman"
mentality and limit the FBI's investigatory scope.
But, this will be a complex issue. Just as Congress has been
complicit in the FBI's expansion, we will need to be involved in the
divestiture. The Department of Justice's Strategic Plan states that the
FBI will focus on building and maintaining its utmost capacity to
detect, deter, counter, and prevent terrorist activity. The plan also
encourages the FBI to promote and, when available, use new legislation
and authorities to conduct investigations of terrorist incidents.
It is ironic that in light of this, the FBI continues to view many
violations that it has traditionally investigated as being of strategic
importance. Why are environmental crimes, health care fraud, bank
robbery, telemarketing and financial institution fraud, computer
intrusions, intellectual property crimes, and credit card fraud still
viewed by the FBI as of strategic importance? I understand that
terrorism investigations could potentially involve any one, or a
number, of the above violations, but there are many other Federal
regulatory and investigative agencies that have established historic
expertise in these same program areas.
In its reorganization, the FBI needs to scale back on some of its law
enforcement activities which are duplicated by other Federal and state
agencies. The Bureau needs to completely jettison some of these areas,
but in other areas the Bureau could simply take a secondary role,
allowing another agency to take the lead. It is my hope that by scaling
back on certain FBI investigative activities, the FBI will send a
positive signal in dealing with its counterparts in state, local, and
federal government.
To assist in cutting back on the FBI's jurisdiction, the bill directs
the Attorney General to report to Congress on the legal authority for
FBI programs and activities, identifying those that have express
statutory authority and those that don't. The bill also requires the
Attorney General to recommend what criminal statutes he believes the
FBI should have investigative responsibility for. This report will help
Congress, as we continue to address the FBI's culture of arrogance.
Another issue that contributes to the FBI's culture of arrogance is
the collection, use, and reporting of crime statistics. It is often the
case in Federal law enforcement that several agencies will claim credit
for a single arrest. This double and triple counting of arrests leads
to an inflation of statistics that often misrepresents the actual work
load of the various agencies. This is a problem because these
statistics are used by federal law enforcement agencies, including the
FBI, to justify increases in their funding.
To get a handle on the exact nature and extent of this problem, our
bill directs the GAO to conduct a review of how crime and investigation
statistics are reported and used by Federal law enforcement agencies.
This report will assist us in future legislation on this issue.
There are many more reforms contained in our FBI reform bill, but
there is just one more that I want to focus on today. This reform is a
change in the way employees of the Senior Executive Service are
punished.
Last summer, four exceptional and courageous FBI agents alerted the
Judiciary Committee to the fact that there exists a gross inequality in
the way Senior Executive Service (SES) employees of the FBI and rank
and file agents are disciplined. SES employees are given a slap on the
wrist for their infractions, while the rank and file agents are often
punished to the letter of the law. This issue was further exposed by a
GAO report on the investigation of the Larry Potts Retirement Dinner
scandal. That report reemphasized what had been reveled in the FBI Law
Enforcement Ethics Unit's position paper, "FBI SES Accountability, a
Higher Standard or a Double Standard." These two reports document the
existence of a double standard.
I was glad to see that former Director Freeh abolished the SES Review
Board, but I'm not sure it was a sufficient change for a culture that
has historically treated SES employees with kid gloves.
So our FBI Reform bill attempts to address this problem by providing
some flexibility in how SES employees can be punished. The Senate
Judiciary Committee has heard repeatedly that this inflexibility is one
of the main causes for the inequality in punishment at the FBI.
Currently, the minimum suspension that SES employees can receive is 14
days, to the Bureau's management is often left with the choice of an
overly harsh penalty or no penalty at all--so often they decide not to
impose any meaningful disciplinary action.
Specifically, our bill would lift the 14-day minimum suspension for
SES disciplinary cases to provide for additional options in
disciplining senior executive employees. Hopefully, this change will
help to remedy this double standard.
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In conclusion, I urge my colleagues to support this bill to foster
reform in the FBI. The Bureau is crucial in the war on terrorism. Let's
fix the problems we have helped to create, so that the FBI can again be
he best at what it does.
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