<DOC>
[DOCID: f:45951.wais]
OVERSIGHT OF INVESTIGATIVE PRACTICES OF INSPECTORS GENERAL
=======================================================================
HEARING
before the
SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,
INFORMATION, AND TECHNOLOGY
of the
COMMITTEE ON
GOVERNMENT REFORM
AND OVERSIGHT
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
__________
JUNE 24, 1997
__________
Serial No. 105-71
__________
Printed for the use of the Committee on Government Reform and Oversight
U.S. GOVERNMENT PRINTING OFFICE
45-951 WASHINGTON : 1998
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
J. DENNIS HASTERT, Illinois TOM LANTOS, California
CONSTANCE A. MORELLA, Maryland ROBERT E. WISE, Jr., West Virginia
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
STEVEN SCHIFF, New Mexico EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California PAUL E. KANJORSKI, Pennsylvania
ILEANA ROS-LEHTINEN, Florida GARY A. CONDIT, California
JOHN M. McHUGH, New York CAROLYN B. MALONEY, New York
STEPHEN HORN, California THOMAS M. BARRETT, Wisconsin
JOHN L. MICA, Florida ELEANOR HOLMES NORTON, Washington,
THOMAS M. DAVIS, Virginia DC
DAVID M. McINTOSH, Indiana CHAKA FATTAH, Pennsylvania
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
JOE SCARBOROUGH, Florida DENNIS J. KUCINICH, Ohio
JOHN B. SHADEGG, Arizona ROD R. BLAGOJEVICH, Illinois
STEVEN C. LaTOURETTE, Ohio DANNY K. DAVIS, Illinois
MARSHALL ``MARK'' SANFORD, South JOHN F. TIERNEY, Massachusetts
Carolina JIM TURNER, Texas
JOHN E. SUNUNU, New Hampshire THOMAS H. ALLEN, Maine
PETE SESSIONS, Texas HAROLD E. FORD, Jr., Tennessee
MICHAEL PAPPAS, New Jersey ------
VINCE SNOWBARGER, Kansas BERNARD SANDERS, Vermont
BOB BARR, Georgia (Independent)
ROB PORTMAN, Ohio
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
William Moschella, Deputy Counsel and Parliamentarian
Judith McCoy, Chief Clerk
Phil Schiliro, Minority Staff Director
------
Subcommittee on Government Management, Information, and Technology
STEPHEN HORN, California, Chairman
PETE SESSIONS, Texas CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia PAUL E. KANJORSKI, Pennsylvania
JOE SCARBOROUGH, Florida MAJOR R. OWENS, New York
MARSHALL ``MARK'' SANFORD, South ROD R. BLAGOJEVICH, Illinois
Carolina DANNY K. DAVIS, Illinois
JOHN E. SUNUNU, New Hampshire
ROB PORTMAN, Ohio
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
J. Russell George, Staff Director and Chief Counsel
Mark Uncapher, Counsel
John Hynes, Professional Staff Member
Andrea Miller, Clerk
Mark Stephenson, Minority Professional Staff Member
C O N T E N T S
----------
Page
Hearing held on June 24, 1997.................................... 1
Statement of:
Goss, Hon. Porter J., a Representative in Congress from the
State of Florida........................................... 18
Hamilton, Hon. Lee H., a Representative in Congress from the
State of Indiana........................................... 8
Williams-Bridgers, Jacquelyn, Inspector General, Department
of State; Eleanor Hill, Inspector General, Department of
Defense, chair, PCIE Legislation Committee; Michael
Bromwich, Inspector General, Department of Justice; Patrick
E. McFarland, Inspector General, Office of Personnel
Management, chair, PCIE Investigations Committee; Robert M.
Bryant, Assistant Director, Federal Bureau of
Investigations, Criminal Investigative Division, chair,
PCIE Integrity Committee................................... 44
Letters, statements, etc., submitted for the record by:
Bromwich, Michael, Inspector General, Department of Justice,
prepared statement of...................................... 89
Bryant, Robert M., Assistant Director, Federal Bureau of
Investigations, Criminal Investigative Division, chair,
PCIE Integrity Committee, prepared statement of............ 154
Davis, Hon. Danny K., a Representative in Congress from the
State of Illinois, prepared statement of................... 6
Goss, Hon. Porter J., a Representative in Congress from the
State of Florida:
Letter dated June 3, 1997................................ 19
Prepared statement of.................................... 26
Hamilton, Hon. Lee H., a Representative in Congress from the
State of Indiana, prepared statement of.................... 12
Hill, Eleanor, Inspector General, Department of Defense,
chair, PCIE Legislation Committee, prepared statement of... 76
Horn, Hon. Stephen, a Representative in Congress from the
State of California, prepared statement of................. 3
Maloney, Hon. Carolyn B., a Representative in Congress from
the State of New York, prepared statement of............... 34
McFarland, Patrick E., Inspector General, Office of Personnel
Management, chair, PCIE Investigations Committee:
Information concerning 1992 language..................... 203
Prepared statement of.................................... 109
Williams-Bridgers, Jacquelyn, Inspector General, Department
of State:
Copies of brochures...................................... 193
Letter dated July 31, 1997............................... 177
Memorandum of Understanding.............................. 46
Prepared statement of.................................... 64
Response to statement of Hon. Lee H. Hamilton............ 182
OVERSIGHT OF INVESTIGATIVE PRACTICES OF INSPECTORS GENERAL
----------
TUESDAY, JUNE 24, 1997
House of Representatives,
Subcommittee on Government Management, Information,
and Technology,
Committee on Government Reform and Oversight,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:30 a.m., in
room 2247, Rayburn House Office Building, Hon. Stephen Horn
(chairman of the subcommittee) presiding.
Present: Representatives Horn, Davis of Virginia, Sununu,
Maloney, and Davis of Illinois.
Staff present: J. Russell George, staff director and chief
counsel; Mark Uncapher, counsel; John Hynes, professional staff
member; Andrea Miller, clerk; and Mark Stephenson, minority
professional staff member.
Mr. Horn. The Subcommittee on Government Management,
Information, and Technology will come to order.
Inspectors General serve to protect the integrity of
Federal programs and resources. Through their audits and
investigations, Inspectors General seek to determine whether
program officers, contractors, Federal workers, grantees, and
others are conforming with regulations and laws.
The Offices of Inspectors General were established by the
Inspector General Act of 1978. To carry out their
responsibilities, the Offices of Inspectors General have broad
investigative authority. They have access to documents relating
to programs and operations within their area of responsibility.
They have the ability to administer oaths, affirmations, or
affidavits and the power of subpoena.
Recently, questions have been raised about investigative
techniques used by some Inspectors General. These concerns will
be presented here today by Representative Hamilton, a very
distinguished colleague, who is scheduled to testify on the
first panel. We are fortunate to be joined by a talented group
of witnesses who can help us examine the concerns and evaluate
proposed changes. We will discuss standard investigative
practices by Inspectors General, including types of
investigations, cooperation with other law enforcement bodies,
and arrest authority. We are particularly interested in
communications with witnesses and witness access to counsel.
As we engage in this discussion, it is worth observing that
next year will mark the 20th anniversary of the Inspector
General Act. We should seize this opportunity to broadly assess
the act and reassess it. Our focus today must be the
investigations and law enforcement role of Inspectors General,
but we also would be wise to step back and view the larger
picture: How well is the Inspector General Act working? What
strengths and weaknesses have been revealed during the past 19
years? What improvements could be made?
We will hear from two panels today. First, Representatives
Lee Hamilton of Indiana and Porter Goss of Florida will discuss
their thoughts and actions on this issue.
Second, we will hear from four Inspectors General, as well
as the Assistant Director of the Criminal Investigative
Division of the FBI. Jacquelyn Williams-Bridgers is Inspector
General of the Department of State; Eleanor Hill is Inspector
General, Department of Defense, and chair of the legislation
committee of the President's Council on Integrity and
Efficiency; Michael Bromwich, who is Inspector General,
Department of Justice; Patrick McFarland, who is Inspector
General, Office of Personnel Management and chair of the
Investigations Committee of the President's Council on
Integrity and Efficiency; Mr. Robert M. Bryant, Assistant
Director of the Federal Bureau of Investigation, Criminal
Investigative Division, and chair of the Integrity Committee on
the President's Council on Integrity and Efficiency. We welcome
all of our witnesses.
We are delighted to see two of the most respected Members
of the House before us. I believe we will start with Mr.
Hamilton of Indiana.
[The prepared statements of Hon. Stephen Horn and Hon.
Danny K. Davis follow:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
STATEMENT OF HON. LEE H. HAMILTON, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF INDIANA
Mr. Hamilton. Thank you very much, Mr. Chairman.
I appreciate your extending an invitation to me to testify,
and I want to say at the outset how pleased I am here to be
with my friend and colleague, Congressman Goss. He and I tilted
different ways on an amendment before the House the other day,
but I think we basically approach this problem in the same
manner, and recognize the difficulties of it.
I am very pleased that your subcommittee has chosen to
focus on this issue at this time. We had an amendment on the
floor. I think it is not necessary for me to go into the
details of that amendment, unless you invite me to do so. But
let me talk more generally about the problem.
I appreciate that there are different and expedient
equities involved in balancing the effective and thorough
investigative ability of the Inspectors General with fair
process for individual employees who are the subject of these
investigations. I think we can find that balance, but I don't
think we have it right now, at least not with respect to the
Office of the Inspector General at the Department of State.
I can speak here to what I understand of the investigative
practices and operations of the Office of the Inspector General
and the Department of State. I understand that the objective of
your hearing is broader and you may want to look at the
similarities that may exist or not exist with the Inspector
General community across Washington; what problems, if any, may
be specific or particularly acute in particular offices.
We are dealing, of course, with a State Department
authorization legislation. So my amendment was confined to the
Department of State. I am aware of many complaints about the
investigative conduct of that office. These complaints come
from political appointees of both parties, as well as from
career Foreign Service officers and civil service employees.
It is not my intention to limit the IGs' investigative
authority. My provision was intended to provide individuals
basic information in a timely manner, notice of basic rights,
identification of who will be present at a formal interview,
and an opportunity to talk to counsel. Without going into
specific cases, and certainly not using names, let me just
summarize a couple of these cases.
In one case that has come to my attention, the Inspector
General's office, again at the State Department, carried out a
hurried investigation of the individual's actions, reached
conclusions about the need for disciplinary action, referred
the matter to the Department of Justice, and released its
report to the press.
At each step along the way, the individual under
investigation was provided inadequate notice and opportunity to
review and/or to respond to the serious allegations against
that person. None of the allegations against that person were
substantiated by the independent counsel's review.
In another case, again summarizing and not using any names,
we had an individual who is placed under investigation and
called to an interview as a target, without receiving advanced
notice and where the prosecutor, rather than the IG, conducted
the interview. That prosecutor also confirmed to the newspaper
most sensitive to the individual in his position at the time
that the individual was under criminal investigation. The
spokesperson for the Inspector General seconded that
confirmation, despite policy guidance that the Office of the
Inspector General did not comment in any way on pending
investigations.
In another case involving a Foreign Service employee, the
IG had the individual under investigation, a physician, called
to a medical review board as a pretext to elicit information
and later used against him the statements he made before the
board. The IG's office also devoted extensive staff and
financial resources to overseas travel in the course of that
investigation. In the end, the case was settled
administratively with a de minimis financial penalty imposed on
the individual.
The pattern has been similar in other cases. For example,
individuals will appear voluntarily for an interview with the
IG staff, having no indication that there is an investigation
of a criminal nature against them pending. They enter the room
to find a criminal prosecutor from the Justice Department who
will conduct the interview or, in several cases involving
career officers, Virginia Department of Taxation Criminal
Division representatives. They generally do not arrive for the
scheduled interview with an attorney or even a union
representative.
There are several other cases which have been called to my
attention, cases involving career officers and selective
prosecution, varying methods of dealing with press requests and
other aspects of the operation of the IG office at the State
Department that have a dramatic effect on the lives of
individuals under investigation. Several of them have been
forced to incur thousands of dollars in legal bills just to
clear their names.
Criminal investigations and prosecutions involve a balance
between the basic fair process for individuals under
investigation and sufficient authority to investigate and
prosecute criminal actions. Inspectors General are in a gray
zone. They appear to view themselves as identical to Federal
law enforcement agencies, but they are not prosecutors. They
are not statutory law enforcement, although incrementally,
through executive branch agreements and other means, they have
gained broad investigative authority in recent years. So
finding the appropriate balance in the IG context is a delicate
task.
Most State Department employees do not anticipate a
criminal interview with prosecutors when they are asked to
attend an IG meeting because they may come in contact with IG
employees on a variety of administrative matters. In fact, over
80 percent of the State Department IG office is dedicated to
noncriminal matters: Audits, administrative investigations, and
Embassy inspections.
Upon finding himself in an unanticipated criminal
investigation, the employee may realize that he may insist that
the interview be halted until he has an attorney present. In
practice, individuals, and I think this is understandable, are
often too intimidated at that point in the process to recall
and/or to exercise their right to counsel, particularly when
they are not specifically informed that such a right exists.
They can reasonably think that if they do not cooperate, it
could jeopardize their careers.
So I see a problem when the State Department Inspector
General sees her agents as equal in all respects to FBI agents
in requirements for notice and other aspects carrying out
interviews. It seems to me that if the prosecutor or police
officer calls an individual for an interview, the average
person should be alerted to bring his attorney. That is simply
not the case with the IG. The average employee called to the
IG's office is not likely to bring counsel. Certainly if he is
not informed of what is happening.
In effect, the IG office gives cover to prosecutors on some
occasions to expand on their normal investigative activities
and authorities by allowing them to confront suspects without
warning. I understand that the same IG seems to object to what
she views as undue restrictions on her powers. I read her
correspondence, as well as letters from other agencies'
Inspectors General. These letters describe my position as
attempting to grant special rights to the State Department
employees, setting a dangerous precedent, severely undermining
the authority of the Inspectors General to carry out
responsibilities.
These are very strong words. I think these words seriously
mischaracterize my intent and the impact of the provision I
have proposed. I am not trying to restrict anybody's
investigation, and I do not understand how giving individuals
basic protections in the process should impede investigations.
All we are asking is fair process, a process that reflects the
ordinary components of due process.
My experience in leading investigations, the product of an
investigation will be seen as credible and enduring only when
the process that leads to it can be perceived as fair by all of
the parties involved.
Let me conclude.
With respect to the Office of Inspector General at the
Department of State, during the entire investigation, the IG
gathers evidence for prosecution and receives guidance from
prosecutors of what evidence to gather and how to structure the
investigation. I do not seek to halt that practice.
The IG conducts undercover investigations with the Justice
Department. I am not trying to stop this kind of cooperative
investigation within the guidelines that govern undercover
investigations. Certain investigations and interviews involve
national security matters for which the law already provides
greater investigative freedoms. I do not intend to limit the
U.S. Government's ability to properly carry on intelligence
investigations.
I am very pleased that you are turning your attention to
this issue. An individual who is the target of an IG criminal
investigation should receive notice of what is happening before
he or she walks into an interview where a prosecutor could be
interrogating him or her. The individual should have that kind
of basic information.
The information pamphlet developed several years ago by the
IG's office is inadequate in content and in availability. It
does not inform the employee of his or her rights, and it is
not available in a timely manner. It needs significant updating
and far better and more regular distribution to State, USIA,
and ACDA employees.
The press operations and policy of the State IG need a much
closer look. I would hope that requiring a one-time report to
Congress would be one way of ensuring such an internal review
of policy guidance and practice.
Thank you very much.
Mr. Horn. We thank you.
[The prepared statement of Hon. Lee H. Hamilton follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Horn. Mr. Goss, the gentleman from Florida.
STATEMENT OF HON. PORTER J. GOSS, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF FLORIDA
Mr. Goss. Thank you very much, Mr. Chairman.
I, too, am very grateful that you have convened this
hearing on this subject, and I am also very grateful to my
colleague, Mr. Hamilton, for whom I have huge respect, as he
knows. I have had the pleasure of working with him on what used
to be the Foreign Affairs Committee, which is now the HIRC
committee. I have served with him a number of times and
circumstances, and I think that we are both here on the same
issue.
In addition to congratulating you for focusing in on this
subject, I want to make sure that we, who live in a system of
checks and balances, are doing our job of watching the
watchdogs, because I think that is what this really is about.
As chairman of the House Permanent Select Committee on
Intelligence, I rely very heavily on the IG not just at CIA,
but at State, Justice, Defense, Energy and elsewhere, where
there are intelligence matters.
The reason obviously is that much of intelligence goes on
behind the curtain and we have to be able to assure the
American people that there are no excesses or improprieties
happening there. We regard the IG's as allies in that effort.
Any time there is a possibility that we are going to pass a
regulation or take an action here that might impede their
ability to do the job to the greatest degree appropriate, I
think it is very important that we look at that. And that is
what we are doing today.
I think we should look at it across the board, not just at
one agency, and I know that Mr. Hamilton has come forward with
a series of particulars on three cases. I am familiar with one
of those cases quite well, but not as familiar with the other
two cases. And I would ask that you would accept my full
prepared statement which deals with those cases, which I will
not go into now in the interest of time.
I would also ask that you accept for the committee's
consideration the written correspondence which accompanies
that, which, in fact, is the same as Mr. Hamilton referred to,
conversations and letters that went back and forth over that.
Mr. Horn. Without objection, they will all be put in the
record at this point.
[The information referred to follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Horn. As you know, your full statements are
automatically submitted in the record.
Mr. Goss. I understand.
The question of creating new rights also comes up here. You
can interpret what was going on in a number of ways as you get
into facts. I think that what we are looking for here is a
consistent, predictable understanding between the IG and the
people that the IG has oversight over, and I think that that
can be worked out.
I have not read the handbook or the brochure, and I don't
know how far it goes. My view is that Mr. Hamilton is right
that if you are going to be confronted by the prosecutor, you
probably should have some kind of clue that that is going to
happen. On the other hand, I wouldn't want that to happen in
such a way that it would frustrate the ability of the IG to
conduct an investigation, because if you go out and tell
everybody that they are under suspicion of doing something
wrong, it could foreclose serious, serious opportunities to
catch wrongdoers. And I am familiar with enough cases that have
gone on in intelligence and surrounding areas that I would be
concerned about that.
So that is the balancing act that I think we are both
asking you to find today: What is the proper dimension of this
broad investigative authority? And when you determine what it
is, I hope it will apply to all IG's or at least all IG's that
come across matters on my radar scope.
That basically is the essence of what I wanted to say, Mr.
Horn. Thank you.
[The prepared statement of Hon. Porter J. Goss follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Horn. Well, let's try to look at some of the pieces. We
will take 10 minutes for each Member. We have three other
Members with us. We are glad to see some of the vigorous people
on the committee here this morning.
Mr. Davis of Illinois. Mr. Chairman, before you begin, I
know that I am going to have to----
Mr. Horn. Insert the opening statements?
Mr. Davis of Illinois. Yes, I would like to.
Mr. Horn. We will insert them after mine as read.
Mr. Davis of Illinois. All right. I know that I will have
to leave.
Mr. Horn. All right. Without objection. Sure.
In terms of your opinion here, should investigators to the
Offices of Inspector General be held to the same procedural
standards as other Federal law enforcement investigators? Is
there any difference here we can point out that investigators
in an Office of Inspector General has that other investigators
do not have, whether you take some of the agency services or
the FBI, U.S. attorneys?
Mr. Hamilton. Well, Mr. Chairman, I don't pretend to be any
kind of expert on that, but I don't think it is clear that the
Office of the Inspector General, at the State Department or any
other department, is the equivalent of the Federal law
enforcement officers or of the FBI. And under any circumstances
it doesn't seem to me that an agency can take liberties with
due process.
I understand that investigations are very important, and I
want to emphasize I do not want to cut down on investigative
capabilities, but I don't think it is correct to say that an
Office of the Inspector General is equivalent to a Federal law
enforcement agency. Now, maybe they would like to be, but I
don't think they are.
Mr. Horn. Is there any reason that other Inspectors General
should not have the same rules apply to them that
Representative Hamilton is seeking to apply to the Department
of State? Should it be all or nothing?
Mr. Goss. My view is it is very important that it be across
the board. Because there is inevitably collaboration between
agencies, an unevenness will create some working difficulties,
if not perhaps frustrate the pursuit of justice in some of
these cases. So I think it is extremely important that what you
are doing here today looks at it generically.
Mr. Hamilton. Mr. Chairman, I certainly would agree with
that. I want to emphasize the point that I think is obvious to
everybody, and that is the amendment that I offered was offered
in the context of a State Department authorization bill, and I
have no experience with the Inspector General offices in other
departments. But you would want uniformity. I think Mr. Goss is
exactly right about that.
Mr. Horn. Mr. Hamilton, in his testimony, mentioned that
the rules in the Department of State were that you do not leak
investigations to the press. Yet a member of the Inspector
General staff did just that. What kind of punishment? Firing on
the spot?
Mr. Goss. Let me put it this way: If I had my opportunity
to correct one thing in this town and exact a penalty for it,
it would be to stop the leakage that goes on. I am very
sensitive to it in the responsibilities that I have. I know Mr.
Hamilton is very responsive to this problem as well, because we
have suffered the damage and it has hurt the U.S. interest.
Irresponsible release of information, in fact, has caused the
death of some American citizens in the employ of the U.S.
Government serving their country.
It is a very serious matter. It is a daily occurrence in
this city. People apparently trade on those relationships with
the press. I don't know whether the leakage is worse in the
executive branch or on the Hill. I am told it is worse in the
executive branch. And I think that may be true.
I think that there should be a very clear understanding
that when you are out of bounds on privileged information,
whether it is classified or in executive session or personnel
matters that should not be released, tax information, any type
of matter which is privileged. If that is leaked out and we
catch the person, I would say yes, that would be a job to
eliminating circumstance. I feel that strongly about it.
Mr. Horn. Any comment on that, Mr. Hamilton?
Mr. Hamilton. Again, my focus on this is a very narrow one,
and in the particular case that I have in mind here, the State
Department IG's office confirmed to State that the individual
who was then a senior advisor on U.S. policy, that that
individual was under investigation, and that her office had
forwarded the matter to the Justice Department, even though her
own office had not completed its own investigation.
The Justice Department prosecutor, who had taken over the
case, disclosed to a major newspaper that a criminal referral
was sent over and I am investigating that, I am quoting him now
precisely, and then when that prosecutor was questioned by the
individual's attorney as to why he would make such a statement
to the press, he responded by saying, ``you live by the leak,
you die by the leak.''
Now, this is grossly inappropriate behavior by the
Inspector General or by the prosecutor. But I am not interested
in prosecuting these people or penalizing them. I am interested
in the future. And I think we need to write into the law basic
protections for people under investigation.
Mr. Horn. Since we have no caution light, I see in this
hearing room, we will make it 11 minutes to a side. My last
question is to Mr. Goss.
If you walked into a room where the Inspector General has
people from the U.S. attorney or the FBI or whatever, shouldn't
you be notified who is in that room and warned about possible
criminal action?
Mr. Goss. I think that that would be very reasonable and
very fair. The question of how much responsibility lies on the
individual and what the individual is told that actually would
motivate the individual to get into that room seems to me is
part of that process, but I don't believe in ambushes. I think
that is a very bad idea.
There are investigations, that is one thing, that may be
done quietly or surreptitiously, but ambushing, certainly not,
I would not agree that that is a good practice.
I would like to add one point and a further thought with
regard to the leaks.
Part of the problem in dealing with leaks in this town is
when you are in good faith doing your job and then somebody
else leaks information and the press comes to you to say, what
do you have to say about this, we have got information that
your committee is doing this, et cetera, you know how difficult
it is to protect your committee or your activity that you are
doing.
The right answer is, I can neither confirm nor deny that,
but the tendency as human beings is, boy, you are so far wrong
and that is outrageous somebody has leaked that, and I am
afraid there is a little bit of distinction in human nature.
When you are talking about leaks you have to look at the whole
ripple across the pond.
Mr. Horn. Thank you. I now yield to the ranking minority
member, Mrs. Maloney of New York, 11 minutes.
Mrs. Maloney. Thank you very much, Mr. Chairman.
First of all may my opening statement be put in the record?
Mr. Horn. Without objection, and anybody else's can come
in, all without objection.
[The prepared statement of Hon. Carolyn B. Maloney
follows:]
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Mrs. Maloney. Mr. Hamilton, I understand it is not your
intent to stop the Inspectors General from carrying out
investigative activities such as reviewing records,
interviewing witnesses, and conferring with the prosecutor.
Nor, I understand, is it your intention to stop undercover
investigations. Do I understand the position correctly?
Mr. Hamilton. You do understand it correctly. I have
nothing in the amendment that I had that goes to the question
of the power of investigation of the Inspector General. It
simply goes to the question of the rights of the person who is
under investigation.
Mrs. Maloney. Why do you think it is important for the
State IG to provide notice to an individual of his or her right
when they are going to be interviewed as the likely subject or
target of a criminal investigation, especially since the FBI
and Justice Department may not provide such notice?
Mr. Hamilton. To me, it is just a simple matter of
fairness. Look, if you walk into a room without being notified
that you are under investigation, and you are confronted with a
prosecutor from the Department of Justice, it would scare you
to death, most people. And I just think that is grossly unfair,
Mrs. Maloney. If there is a criminal investigation going
forward, a person has every right to know that so that he or
she can come into that room with an attorney, prepared to
respond or not respond as he, the person under investigation
and the attorney, see fit.
Mrs. Maloney. I would like to ask, really, Congressman Goss
the same question that I asked Mr. Hamilton. Do you disagree
with him on this point?
Mr. Goss. No, I don't disagree at all. It is a question of
fair play. There are a couple of different answers.
Mrs. Maloney. But only providing notice before going into
the room, do you agree notice should be provided to an
individual of his or her rights when they are going to be
interviewed as a likely subject of a target of an
investigation?
Mr. Goss. The answer is yes. I think that the individual
should know what is going on. The question is, what his or her
rights is is a very difficult issue here. We are talking about
creating some new rights. Criminals do not have rights unless
they are in custody or in a certain part of a pathway of due
process has taken place. For instance, before we go through
that gateway, and the question of whether you are going so far
as to frustrate an investigation, an inquiry as it were, or
whether or not you are providing due process, is one of the
things that you are going to be examining.
Right now, if you have your whits about you and you walk
into a room and you see a bunch of people and an inquiry, let's
say you got into the room because you got a telephone call that
said, please come to that room--it depends on who made the
telephone call or you got a notice or however you got there--
you know you are doing something. You may not have enough
information about what it is. Well, you have the right to walk
out. You can turn around and walk out and say, I don't like
this. Who are these people? You have that right. Those rights
are there, and I think it is fine to make those rights known to
the individuals if they get put in this kind of a position.
Another thing that happens, and this is true in one of
these cases and I don't want to refer to specifics because I
think you are dealing in a generic manner, but one of the
things that happens is some of these cases are very celebrated.
They are much discussed in the public. They are in the
newspaper. There is no secret here that there is something
going on, and for somebody to walk into a room who has been the
subject of much newspaper discussion or a case that has been
discussed in the newspaper and suddenly say, gee, I can't
believe the sky is falling, when the papers have been screaming
for days, it seems to me that is a little disingenuous as
opposed to somebody who is just ambushed outright, which I
would be terribly opposed to. So it is hard to answer your
question specifically.
Mrs. Maloney. I would like to ask Mr. Hamilton, do you
agree with Mr. Goss' statement in his testimony that, one, our
procedures for our IG's should be consistent, predictable,
clearly understandable, and applied across the board? Would you
agree with that statement?
Mr. Hamilton. Yes.
Mrs. Maloney. Then, Mr. Goss, what is confusing about this
is that when you talk, you seem to agree. You seem to think
that there shouldn't be an ambush, that people should have
notice, if it is truly, in fact, a criminal investigation.
As one who worked in city and State government, in fact
wrote the IG law for the city of New York, we were always
taught in Government, elected or not, to cooperate with IG's;
they were the watchdogs on Government.
Mr. Goss. Absolutely.
Mrs. Maloney. It was not unusual for IG's to call any
employee in the city or State and ask for information about a
particular problem. And it would not be unusual for a person to
think that they were cooperating with making Government work
better and not a target themselves.
If there is a problem--IG's often say there is a problem
with the Parking Violations Bureau; do you know anything about
it? I mean, I agree that you should provide notice, and you say
you should provide notice.
Mr. Goss. Absolutely.
Mrs. Maloney. And I agree with you completely that it
should be consistent, predictable, and understandable, and I
don't see how it can be consistent, predictable, and
understandable unless you have clear guidance to employees
that, No. 1, you are supposed to cooperate with IG's, they are
trying to make our Government work better; No. 2, if you are
the subject of a criminal investigation, you will be so
notified. I mean, I think that you have to let people know what
is going on, and you agree with that.
Mr. Goss. Yes, I do.
Mrs. Maloney. So I don't quite see where you two disagree.
You probably said you need notice and he is saying you need
notice.
Mr. Goss. It is really a question of how the process is
carried out and what the circumstances of each case are, which
is why this is going to be difficult to do.
I think that if you are going to summon somebody in----
Mrs. Maloney. But may I ask one question then. When you
said you have to know each case is different.
Mr. Goss. Uh-huh.
Mrs. Maloney. But if you are going to change the rules for
each case----
Mr. Goss. No, we aren't going to change the rules.
Mrs. Maloney. It won't be consistent, predictable, and
understandable, as you said.
Mr. Goss. I am not talking about changing the rules. I am
talking about having consistency in the rules. I am very
definitely talking about applying the same rules to different
circumstances fairly, and the point is you have different
circumstances.
We are talking here about investigation, not prosecution,
and that is the line that you are looking at. When you get into
the prosecutorial area, then you are dealing with one set of
circumstances. You start getting into Miranda and you have got
custody and you have got rights and all kinds of different
things.
When you are going around doing an investigation, who stole
the light bulb, who is putting light bulbs in their purse and
walking out of here at night it is a very different thing. And
I think the ground rule I would give on that is that you cannot
ambush somebody. They need to know, obviously.
Now, I don't want to go so far as to say in order to stop
the ambush, let's add additional rights for employees of the
Federal Government to protect them from the IG, rights that
criminals do not have in criminal proceedings in terms of
notice and warning. That is the difference.
Mrs. Maloney. Would you respond to this statement, Mr.
Hamilton? Earlier, Mr. Goss said we share the same goal but it
is a balancing act. Is there some balance that we could work
out that would address the concerns that you have so eloquently
put forward?
And I must add that I am very sorry you are retiring from
Congress. It is a loss, I think, to this body.
Mr. Hamilton. Well, the balance that has to be addressed is
on the one hand, and Mr. Goss emphasized this, the power of the
Inspector General to investigate, and that is a very important
power. I don't want to undermine that power. I know the
importance of it, and I think the Inspectors General have to be
able to carry out their responsibilities. They have very, very
serious responsibilities. But on the other hand, you have to
carry out those responsibilities with due regard for the rights
and the privileges of an individual who may be the target of
the investigation. So that is the balance that has to be
struck.
Now, let me say that when we drafted the amendment in the
committee, the committee adopted it. It was defeated on the
floor. I recognize that this is a kind of a first cut at
drafting language here. I don't pretend for a moment that we
have the exact, correct language there, but we do convey, I
think, the basic thought that we want to get across. And it is
that balance that you now have the responsibility of trying to
strike in legislative language.
At the end of the day here, I suspect our Inspectors
General are going to testify that they will emphasize not doing
anything that will undercut their powers of investigation, and
I don't want to do that.
I am just impressed with the fact of a person coming into a
room and having a Federal prosecutor in that room, and that
prosecutor is not there for fun and games. That prosecutor is
there to do his or her job. His or her job is to see whether or
not any criminal activity has taken place, and every statement
that is made in that room is going to be noted by that
prosecutor. Every word is going to be analyzed and weighed to
see if a crime has been committed, and a person coming into
that situation has every right to be put on alert that the
games are over; that this is a serious business; that you are
under investigation and anything you say can be held against
you.
Mrs. Maloney. Mr. Goss, my time is up, but would you agree
with his final statement that there should be notice if there
is a Federal prosecutor in the room?
Mr. Goss. Yes, I would, absolutely.
Mrs. Maloney. OK, thank you.
Mr. Goss. I think that is appropriate.
Mr. Horn. Thank you, gentlelady. I now yield to the
gentleman from New Hampshire, Mr. Sununu.
Mr. Sununu. Thank you, Mr. Chairman.
I would like to continue the discussion a little bit about
notice, and there does seem to be quite a bit of agreement
between the two of you. I am looking at a--I think it is a
State Department pamphlet on the OIG process. And I assume this
is provided to all State Department employees. And I just
wanted to talk about the issue of employee rights,
notification, and better understand how this may be different
than what you may be proposing, Congressman Hamilton.
It says, when interviewed, the State Department employee
has the right to be advised whether you are the subject of a
criminal investigation, whether you are being interviewed
simply as a witness, informed of the nature of the inquiry,
told whether this could lead to criminal or civil action,
advised of your Federal constitutional rights, et cetera,
allowed to furnish a voluntary statement. And I hope they will
provide you with a copy of it.
It is pretty straightforward, and I would assume it is
provided as a part of the employee's orientation. That does
seem like a pretty clear notice, at least of the provision in
your proposed amendment that would give employees the
information detailing their right to counsel, right to the
policies, and the priorities of the OIG's office.
My question is: How is what you had proposed with regard to
information different than this notice of rights that seems to
be or at least should be provided as a matter of course to
State Department employees currently?
Mr. Hamilton. I have not examined that manual carefully,
but there is a big difference in--look, this manual is given to
a State Department employee, presumably, when they become a
State Department employee. My impression is that it is not made
available to them on a regular basis repeatedly over and over
again. And I understand that they themselves are dissatisfied
with it and are now in the process of redrafting it, and I
commend them for that.
The sentence you read to me sounds fine. But, of course, it
is one thing to put it in a manual; it is another thing to
implement it. And in the cases that I am aware of, I don't
think it was implemented.
Now, they may say, well, this was available when he became
a Foreign Service officer or whatever, but that might be years
prior to an investigation by the OIG. The problem I have is not
so much the language, certainly not the language you cited, but
how it is carried out and how it is implemented, I think.
Mr. Sununu. Did your amendment call for a certain period of
timeliness or certain period of presentation to the employees?
Mr. Hamilton. Let's see. I think we said that the Inspector
General will make all best efforts to provide the employee with
notice of a full range of his or her rights, including the
right to retain counsel and the right to remain silent, as well
as the identification of those attending the interview.
I think you probably raise a good point. The timeliness of
that information might very well be a part of any such
amendment. It is one thing to be told of it when you became a
Foreign Service officer 15 years ago. It is another thing to be
told of these rights just before you walk into that room. And
what is important, seems to me, is that you be told those
rights just before you walk into that room.
Mr. Sununu. Well, I would certainly agree that
implementation is an enormous part of the success of the
process. It is easy enough to come up with good language.
My personal opinion would be that best effort doesn't
necessarily provide the driving force, that we would want to
make sure that this is being provided to State Department
employees in a timely manner.
Mr. Hamilton. Mr. Sununu----
Mr. Sununu. And I hope what you say is correct and I hope
they are updating it.
Mr. Hamilton. I think you are right about the phrase ``best
efforts.'' That was actually an accommodation I made to the
Inspector General at their request in the committee in order to
soften it a little bit. But I am not entirely satisfied with
that language, either.
Mr. Sununu. Mr. Goss, any comment about the language or is
there any familiarity that you have with the OIG process, the
kind of information that is at least currently provided to
State Department employees?
Mr. Goss. Most of what I have filed away in my mind is
either from personal experience or from talking to colleagues
or former colleagues when I worked in the executive branch of
Government. I am not familiar with this piece of paper, and I
don't want to characterize that I am.
But I do know that when I was inducted into the Federal
Government certain things stand very stark in my mind today.
One is, I go to jail if I violate the National Security Act.
Those kinds of things were made abundantly clear to me, that I
had an extra responsibility--I had the extraordinary privilege
of knowing the Nation's secrets. I had the extraordinary
responsibility of protecting them.
And this is an area there that is a little specialized to
what is going on here, as a general background. If we are
worried about the disappearing light bulbs and the parking
places and that type of in-house administrative minor
malfeasance and those kinds of things, which the IG also does,
that is one set of affairs. But if we are talking about the
national security of the people, who are well aware that they
are dealing with important matters, it seems to me that they
have a different level of cognizance required of what it is
they are about. That is why I think it is going to be very hard
to make a generalized statement.
When you are conducting an investigation of what point in
the investigation do you go from we think we have got enough to
go forward to we are not sure we have enough to go forward,
where does that line come in the investigation? When does the
investigation get to the point where you turn it over to a
prosecutor? I don't know all of those little details or all of
the provisions that are set out under the various agencies,
each one.
I can tell you my experience with each agency is that the
IG's are doing a good job. Yes, there are complaints. The IG's
are very unpopular, just like serving on the Ethics Committee
in the House, sometimes it is very unpopular. It isn't fun. But
they have a job to do.
And I have heard a few complaints, and I think that Mr.
Hamilton is on to something in this area of letting people
fairly know, and the problem I think you all have is letting
people fairly know what is going on without frustrating an
investigation. When does fairly know become tipping off
somebody who is getting away with something so they are going
to be able to cover their tracks? That is really the problem I
have.
Mr. Sununu. Could I ask you both to comment on--I guess
building on that, your point that this can be a pretty strong
system--comment on what does work about the system. What are
the stronger aspects of this system and maybe the aspects that
we ought to be most conscious about encouraging and supporting?
Mr. Goss. Well, I will take a shot right off the bat and
tell you that I am very satisfied that these folks in the IG
offices are very conscientious allies in going after wrongdoing
that is brought to their attention. I think there are many,
many pluses in what they accomplish.
I can think of some very, very high profile matters in the
intelligence community where we have relied on the IG's to make
reports to us, and we have looked at those reports very
carefully, and we have generally been quite satisfied with the
very thoughtful work they have done without any prejudice for
or against their own agency. It seems to me to be very
evenhanded.
I think it is a check and balance process that was wisely
put in, that does work. I have worked under it in part. I have
seen the results of it in part. And I think it is appropriate
to have these hearings to make sure there are never excesses.
Always you have to keep doing that to make sure that the power
doesn't get too great, and I think that these pauses to look at
that are very appropriate.
But I would say there are many more pluses than there are
minuses in the system, and I will tell you that I think we
would be very much diminished in our oversight capability on
the Hill without the working cooperation of the IG's in the
executive agencies.
Mr. Hamilton. Mr. Sununu, I am focusing on a very narrow
problem, and the problem is what I consider to be insensitivity
to the rights of employees at the Department of State. That is
my universe here. I agree with Mr. Goss' comments, the
Inspectors General's offices play a very important role in our
Government, and so far as I know they do a good job. I think I
have had occasion to rely on them on a number of occasions.
I am not critical of the operations of Inspectors General,
or their function. I think it is terribly important.
I am simply saying that in the cases I know about there was
an insensitivity to the rights of individuals in the Department
of State, and I moved to try to correct that.
I don't know what happens in the Department of Commerce or
the Department of Transportation or anything else. I am not
familiar with that.
Mr. Sununu. I appreciate that.
One final question with regard to those rights and with
some relation to the leaking that was talked about earlier,
which is probably one of the grossest examples of a violation
of those rights, there is the political appointee structure,
where 28 of these IG's are political appointees, does that tend
to strengthen an individual's ability to or willingness to
stand firmly in support of those individual rights; does it
intend to prevent leaking; does it intend to give the IG a
little bit more independence in pursuing some of the issues of
wrongdoing, or do you find the same degree of independence
whether they are a political appointee or not?
Mr. Hamilton. The cases with which I am familiar involve
both political appointees and civil service, Foreign Service
officers. I am not aware of any difference.
Mr. Goss. I would agree with that. I don't pay any
attention to whether they are political appointees or not. I
pay attention to whether they have done a good job. Frankly, I
couldn't tell you who is a political appointee and who isn't.
It works that well.
Mr. Sununu. Good. Thank you.
Mr. Horn. I thank the gentleman.
Let me ask a few questions that relate to pamphlets I have
in front of me, from the Office of Inspector General, U.S.
Department of State. And we will pursue with the Inspector
General as to the circumstance these are given out. I suspect,
as was suggested here, that these are probably 1 of 50 leaflets
you are given when you are a new employee of the Department of
State. A new employee is probably worried more about the health
plan at that point, than they are about the Office of Inspector
General's investigative process.
Would you gentlemen agree that not only should it be given
when the new employee comes on board, but also prior to coming
into the room if they are being asked to speak to a particular
subject? They might know it before they come in. How do you
feel, Mr. Goss?
Mr. Goss. It depends on who is in the room. Again, this
goes right back to these same guidelines. Certainly, if there
are a bunch of prosecutors and, you know, you have got people
in the room other than just sitting down with the IG's person
having a one-on-one with the employee trying to find something
out or get a clue. I think there is a difference here between
legitimate fact-finding and the ambush. And I would say, yes, I
would think it is appropriate. If it escalates to the point
that there are going to be some people in the room and these
are the people who are there, and we are notifying you of this,
and we advise you to read this pamphlet, it seems to me that
there are procedures there. They don't necessarily go to
rights. They go to procedures.
And I imagine every agency has got a somewhat different
administrative code and they have somewhat different
procedures. And I think it is very important that the employee
know. If there is a degree of seriousness that is being
attached to the matter, I think the employee has a right to
know it. My concern is that it not be done in a way that would
frustrate an investigation of, you know, who is stealing the
light bulbs or whatever it is. You don't want to tip them off.
So it is that fine line you are looking for.
Mr. Horn. Well, in other words, you wouldn't tell them the
nature of the investigation in advance. You would tell them
there is an investigation and provide some basic due process
considerations?
Mr. Goss. Sure. If you will read, and I am sure you have,
but if you look at my statement, it very clearly goes into the
question of what rights are already there and what is custodial
and what is noncustodial, whether we are dealing with criminal,
when Miranda comes in, all of those kinds of things and the
remedies that are already in the law. I think every employee
needs to be reminded of those things at any time.
But to tell you the truth, if you were to say, would you
come up to room 10 this afternoon at 2 and, by the way, read
this for your rights, I think I would start to worry a little
bit.
Now, the question is: Does that mean that before you get to
that point the IG should be going and saying, look, we think
there is a problem here or not? And I think that is a question
that Mrs. Maloney asked me. Can you have consistent rules and
so forth in the regulations? The answer is yes. How you apply
those rules case by case is where I think you are getting into
difficulties here, and this piece of paper, which I think is
the same thing you are looking at there, is sort of part of
that process of how you apply it fairly. And I don't know all
the words in this and I don't know whether it works fairly.
That is something I am sure that you are going to make a
judgment on.
Mr. Horn. Mr. Hamilton.
Mr. Hamilton. The amendment that I put forward in the
committee is confined to the circumstance of a person who an
employee who is a likely subject or target of a criminal
investigation. That is the case I am aiming at here. That seems
to me to be a serious problem.
So if a person is a target or a subject of a criminal
investigation, I think they should have a full range of their
rights available to them. And in my way of thinking that means
they ought to know what they are getting into before they walk
into that room. They ought to be notified of it.
Mr. Goss. Mr. Chairman, may I----
Mr. Hamilton. And who is going to be there.
Mr. Goss. Excuse me. I am not disagreeing with Mr. Hamilton
on that point. Again, I think that is a where-are-you-in-the-
case question.
But the point that I have to make there that is so very
important, and I can think of some big cases, and I think you
can, too, if you just think back of headlines in the past
couple of years, where if that happens and if we are not
coordinated and we are dealing across the board of several
agencies, I think you can foresee a situation where you might
have Justice, State, DOD, or some of the other agencies' IG's
involved in a case that goes over jurisdictional lines because
of activities involved, let's say, things overseas. For
instance, where we are not always sure whether it is law
enforcement or intelligence or State Department or what. I can
foresee the need to have coordination between all of the
interested IG's, especially in matters involving national
security; something like leaking information on a defense
system to a foreign diplomat and having the equipment delivered
in a way that violates U.S. laws would probably get four or
five different criminal aspects, activities to this with
overlapping jurisdictions, and if you changed the rules for one
IG and that one IG has to do something that messes up the
investigation for those other agencies, you have created a
problem.
We have that problem right now in the separation of powers,
where it is usually resolved between the Hill and downtown when
we have to have an investigation of one of our colleagues. It
is a very difficult problem. You can imagine how that is
compounded when you are dealing with many agencies. That is why
it is so important that you be consistent across the board and
that everybody understands what the rules are.
Mr. Horn. On this employee pamphlet, when one enters any
Federal organization or immediately before they are asked to go
into the room, should there be a signed statement on file by
the employee that I have read it? Or is it just worthless?
Mr. Goss. I suppose it is nice to have, but I don't think
it works very well.
Mr. Horn. We are going to save some trees this morning; is
that it?
Mr. Goss. I have signed an awful lot of pieces of paper in
my life, and I bet you have too, and I don't think I could
recall them all.
Mr. Horn. Well, just to know that at least they were given
it so they don't go in and say nobody ever told me.
Mr. Goss. I have signed a lot of papers that I have
forgotten about it, and if I saw them again I might forget that
I had seen them, too. It depends on what you are trying to
protect there. I don't think that is solving your problem.
Mr. Horn. You mean you don't recollect?
Mr. Goss. I have no recollection.
Mr. Horn. Great. The disease is spreading to the
legislative branch.
OK. Any other comments of wisdom from you two very wise
gentlemen?
Mr. Goss. I just thank you for what you are doing.
Mr. Hamilton. Thank you very much, Mr. Chairman.
Mr. Horn. All right. Thank you for coming. I appreciate it.
Mr. Horn. Our next panel and our last panel has five
Inspectors General, Jacquelyn Williams-Bridgers of State;
Eleanor Hill of Defense; Michael Bromwich of Justice; Patrick
McFarland, Office of Personnel Management; and Mr. Robert
Bryant, the Assistant Director of the Federal Bureau of
Investigation with the Criminal Investigative Division and
chair of the PCIE Integrity Committee.
I think most of you know that this committee has a
tradition here of not swearing Members of Congress, because
once they tell us something that is wrong we just never talk to
them anymore. But outside witnesses, are asked to take the
oath. So if you will stand and raise your right hand. We will
add minister the usual oath.
[Witnesses sworn.]
Mr. Horn. All five witnesses have affirmed, the clerk will
note.
Why don't we begin with the Honorable Jacquelyn Williams-
Bridgers, Inspector General of the Department of State.
STATEMENTS OF JACQUELYN WILLIAMS-BRIDGERS, INSPECTOR GENERAL,
DEPARTMENT OF STATE; ELEANOR HILL, INSPECTOR GENERAL,
DEPARTMENT OF DEFENSE, CHAIR, PCIE LEGISLATION COMMITTEE;
MICHAEL BROMWICH, INSPECTOR GENERAL, DEPARTMENT OF JUSTICE;
PATRICK E. McFARLAND, INSPECTOR GENERAL, OFFICE OF PERSONNEL
MANAGEMENT, CHAIR, PCIE INVESTIGATIONS COMMITTEE; ROBERT M.
BRYANT, ASSISTANT DIRECTOR, FEDERAL BUREAU OF INVESTIGATIONS,
CRIMINAL INVESTIGATIVE DIVISION, CHAIR, PCIE INTEGRITY
COMMITTEE
Ms. Williams-Bridgers. Mr. Chairman, members of the
subcommittee, thank you very much for the opportunity to
discuss with you OIG investigative practices. This hearing is
particularly timely, given the recent debate in the House about
the due process rights of subjects of criminal investigations
in my office. It is imperative, as the distinguished panel
members just mentioned, that all of us involved in the pursuit
of law enforcement balance our mandates to conduct independent
and objective criminal investigations with the need to
scrupulously protect the due process rights of the American
citizens.
Congress created the Office of Inspector General to prevent
and detect fraud, waste, and mismanagement through the conduct
of audits, inspections, and investigations. These
responsibilities require a proactive engagement as well as a
reactive engagement in the conduct of our business. A proactive
engagement is particularly important in the investigations
area, to assure that employees are aware and mindful of the OIG
role and responsibility and their rights and obligations when
interfacing with OIG.
My office devotes significant attention to the discussion
of the OIG investigative process. In numerous department
training courses, including Ambassadorial training programs, as
well as every Foreign Service and civil service introductory
course.
OIG also authors and publishes the Department's Guidebook
for Ethical Conduct. In the conduct of criminal investigations,
any investigation that we conduct operates under the same
guidelines and our investigators exercise the very same
authorities as all other Federal law enforcement entities, such
as the FBI, DEA, and INS.
Just 2 years ago, the Department of Justice selected our
office as one of seven OIG's to be extended full law
enforcement authority under a Memorandum of Understanding with
the Justice Department. This selection was based on our
unblemished record of exercising full law enforcement authority
pursuant to special deputation requests. Under this MOU, our 35
criminal investigators are authorized to effect arrests, to
execute search warrants, and to utilize other sensitive law
enforcement techniques which may be required in an
investigation.
When conducting----
Mr. Horn. Could we have that document at this point in the
record?
Ms. Williams-Bridgers. Absolutely. I will submit it for the
record.
Mr. Horn. Without objection, it will be included. Thank
you.
[The information referred to follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Williams-Bridgers. When conducting investigations, the
law requires that IG's report expeditiously to the Attorney
General when we have reasonable grounds to believe there has
been a violation of Federal criminal law. In keeping with this
mandate, our office coordinates early with DOJ on all criminal
investigations. Justice then assumes a supervisory role in the
conduct of investigations.
Nearly 100 percent of our cases at the start are criminal
investigations. Assistant U.S. attorneys, therefore, provide
guidance because they are most familiar with the varying and
unique prosecutive thresholds in their districts. Once a
criminal investigation is either prosecuted or declined for
prosecution, there will often be an administrative phase to the
investigation. This administrative phase may require further
investigation to gather necessary evidence for referral to the
Department of State, for example, for disciplinary action, or
to the Department of Justice for civil remedy.
Now, allow me briefly to comment on the issue of due
process, which has been the focus of much of the discussion
this morning.
Due process is defined by the Constitution and is
constantly interpreted by the courts. The recent House debate
considered an amendment to law that would provide special
privileges to a very narrow spectrum of American citizens:
Employees of the Department of State, USIA and ACDA privileges
that included notification of certain rights that do not extend
to any other American citizen.
Mr. Chairman, I want to assure you that my office provides
the full range of warnings and assurances to individuals
subject to investigation in accordance with Federal case law
and DOJ guidelines. What this means is that during the
custodial interviews, meaning when we are about to effect an
arrest of the subject of an investigation, we advise the
subject of their right to remain silent and their right to
retain counsel. During noncustodial employee interviews,
certain warnings are administered depending on the
circumstances existing at that time.
Circumstances that might dictate which warning is given
varied but could depend on factors as to whether or not the
case has been declined for criminal prosecution by DOJ and upon
the guidance provided us by the Federal prosecutor. The
legislation discussed in the House debate would also have
required identification of all individuals attending an OIG
interview.
We generally provide advanced notice to subjects of an
investigation when scheduling interviews if such notice would
not compromise the integrity of the investigation. An advanced
notice requirement, as suggested in the former amendment, would
preclude the possibility of State OIG engaging in any type of
undercover investigation. Further, an individual who is
provided advanced notice of an interview or who is told at an
early stage of an investigation that FBI or DEA, for example,
would participate may use such information to determine either
our strategy or possible identities of informants or other
witnesses against them. This is a serious concern as more of
our passport and visa process--visa investigations cross the
line into narcotics violations or more serious criminal
violations of law.
Finally, such advanced notice may also foster the
opportunities for the subjects to destroy incriminating
evidence, fabricate evidence, or attempt to improperly
influence the testimony of cooperating witnesses.
Other law enforcement entities not constrained with the
requirements, as suggested in the former amendment, might
simply choose not to become involved with State OIG criminal
investigations. This would be unfortunate since between 30 and
40 percent of our criminal investigations are conducted jointly
with other law enforcement entities.
Last, OIG is committed to and goes to great lengths to
protect the privacy of individuals who are subjects or
witnesses in connection with our investigations. Indeed, the
integrity of our investigative process requires that we not
disclose the details of pending investigations. Therefore, our
policy is not to comment publicly about open investigations.
Any comment made by OIG regarding pending criminal matters
is closely coordinated with and approved by the Department of
Justice. In the case referred to by the earlier panel, I must
reiterate, Mr. Chairman, there was no unauthorized release of
information to the public by my office.
In conclusion, I am committed to protecting the Secretary
of State's ability to pursue the foreign policy objectives free
of impediments of fraud, waste, and abuse, as the Congress
intended, and as the American taxpayer deserves.
I thank you, again, Mr. Chairman, for holding this hearing.
I would be glad to entertain any questions that you or members
of the subcommittee might have at any point.
Mr. Horn. Well, thank you very much. We are going to wait
until after the testimony of everybody on the panel before we
open it to questions.
[The prepared statement of Ms. Williams-Bridgers follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Horn. The Honorable Eleanor Hill is the Inspector
General of the Department of Defense, and chair of the
Legislation Committee of the PCIE. Ms. Hill.
Ms. Hill. Thank you, Mr. Chairman. Good morning.
Let me, first of all, thank you for the opportunity to
testify here today and also to commend you for the
subcommittee's attention to issues which really directly affect
not only the Inspectors General but the entire Federal law
enforcement community.
I have a written statement, which I would like to submit
for the record, and in the interest of time, I would just
briefly like to emphasize a few points.
Mr. Horn. The whole statement shall automatically go in
just after I introduced you, without objection.
Ms. Hill. Thank you.
As you know, the Congress vested the Inspectors General
with broad authority to not only audit and investigate, but
also to advise their departments on how best to prevent and
control fraud and abuse in the future. Our investigative role
fully complements and enhances our ability to work for
constructive change in Government.
The Federal law enforcement community, of which the IG's
are a part, today faces perhaps a more diverse and more
challenging array of criminal activity and criminal threats
than ever before. The public interest in identifying and
combating those threats is unquestioned. Law enforcement's task
is to effectively investigate that criminal activity while
carefully and continually balancing the public's interest
against the need to recognize and protect the rights of the
individual.
My own experience tells me that while that is clearly a
difficult task, it is not impossible. It requires
professionalism, competence, a sense of fairness, and
unwaivering respect for the rule of law. All of those are
qualities which we strive for at the DOD IG.
I want to take a few minutes to talk about the Defense
Criminal Investigative Service, which I go into in great length
in the statement, commonly known as DCIS, which is the criminal
investigative arm of the DOD IG. One of the things that
Congressman Hamilton raised this morning that concerned me was
his statement that the IG's are really not members of the
Federal law enforcement community. I would certainly take issue
with that: at the DOD IG, while we have many auditors, and a
separate section on administrative investigations, we have
DCIS, which I think is recognized throughout the Federal law
enforcement community as a member of that community. It has a
proven track record in Federal law enforcement. I should add
DCIS works closely and jointly on many cases with the FBI, the
Postal Inspection Service, the Customs Service, and many other
members of the Federal law enforcement community, in addition
to the other Inspectors General. So we certainly would differ
on that point, I think, with Mr. Hamilton.
DCIS is currently staffed with over 350 criminal
investigators, and I stress they are only criminal
investigators. There are 1,811 Federal criminal law enforcement
officers. They have 50 field offices throughout the United
States. We also have one office overseas in Germany.
DCIS has compiled an impressive track record of
professionalism and competence in criminal investigations,
particularly in procurement fraud, which is its main area of
emphasis. Since 1981, it has conducted investigations resulting
in 4,000 criminal indictments and $3.8 billion in recoveries to
the Government. DCIS currently has more than 1,700 ongoing
investigations. Again I stress this is not the entire IG's
office, this is just our criminal investigations section.
DCIS has prioritized its work in critical areas,
particularly product substitution; contract accounting fraud;
subcontractor kickbacks; health care fraud, which is a huge
area at the Defense Department; property disposal; and
environmental crime, to name but a few.
The ability of DCIS to conduct professional and competent
investigations is directly related to its training program,
which is comparable to training programs at all major Federal
law enforcement agencies. As outlined in the statement, this
includes three required programs of instruction at the Federal
Law Enforcement Training Center, as well as additional
specialized and advanced courses in areas of particular
interest to DCIS.
Regarding law enforcement authority, which was mentioned by
Ms. Bridgers this morning, while DCIS currently lacks statutory
law enforcement authority to arrest civilians, it has been
granted that authority under a special blanket deputation from
the Department of Justice since 1991. That deputation predated
and is separate from the 1995 deputation agreement between the
Department of Justice and several other IG's, which Ms.
Bridgers referred to a moment ago.
DCIS has traditionally worked closely with both the Justice
Department and the FBI, encouraged by a long-standing
Memorandum of Understanding between Justice and the Defense
Department which covers the investigation and prosecution of
criminal matters over which both departments have jurisdiction.
Since deputized in 1991, DCIS agents have made 500 civilian
arrests and served 800 search warrants. The fact that the
Justice Department has annually approved the deputation since
1991 attests to DCIS's need for this authority as well as its
ability to exercise that authority properly.
As a result, this year both the Justice Department and the
FBI have endorsed DOD's request for statutory law enforcement
authority for DCIS. That authority is now contained in both the
House and Senate versions of this year's defense authorization
bill, as reported by the authorizing committees to the floor.
We believe the legislation is necessary and appropriate and we
are hopeful that it will be enacted in the final authorization
bill.
My statement sets forth in detail DCIS policies on
interviews and rights advisement, all of which are emphasized
to our agents in course training as well as in written policy
manuals. The policies are intended to comply with all
applicable statutory and case law requirements. I note that we
are probably unique among the statutory IG's in that we
routinely interview not only civilians, but also military
members, and, therefore, we comply in their case with the
Uniform Code of Military Justice.
On the question of interviews, and we go into it in great
length in our statement, I do want to emphasize to the
committee that DCIS, when they interview a suspect in a
criminal case, and again we are talking about criminal cases,
clearly identifies themselves at the beginning of the interview
as a member of DCIS. In and of itself this tells the individual
it is a criminal investigation because the name of the service
is the Defense Criminal Investigative Service. So there is no
question if you are interviewed by DCIS that it is potentially
a criminal case and we feel that that is good notice. We think
that's well-known in the Department and they are advised of
their rights, as Ms. Bridgers pointed out, in keeping with
statutory requirements.
And I think, of course, our concern with the Hamilton
amendment--although I have great respect for Congressman
Hamilton, I know his amendment is well intended--I think we
feel that it would, in fact, create special rights that do not
currently exist, not only for other people that may be
interviewed by the IG. In DCIS's case we not only interview
employees, we interview civilians, for example, defense
contractors. So you would be creating a special class of rights
not only for people interviewed by DOD but only part of the
people interviewed by DOD.
Although this hearing is focused on criminal
investigations, I should point out that the DOD IG, unlike some
other IG offices, does have a separate component which is
responsible for administrative noncriminal inquiries. That
office operates separately from DCIS and has its own core of
investigators. It is charged with conducting investigations and
overseeing investigations by the military departments in the
area of whistle-blower reprisal. It also conducts or oversees
investigations of noncriminal misconduct against senior
officials, meaning political appointees as well as military
officers of grade 7 and above. In 1996, that office
investigated or oversighted 500 such administrative cases,
including 145 that we conducted in-house at the DOD IG.
Despite the Department's downsizing, that caseload is
increasing. We anticipate a record 700 inquiries will be opened
in 1997.
Finally, I note that while we have the statutory authority
to do so, given the current resources, the DOD IG cannot
realistically conduct or directly oversee every investigation
that concerns the Department of Defense. I want to point this
out only to show that when we talk about investigations at the
Department of Defense, we are talking about a huge universe of
which we are a small part, just in terms of numbers.
There are approximately today 800,000 civilian employees at
DOD. There are 1.5 million active duty military members, and
there are another 1.5 million ready Guard and Reserve, all of
whom can send complaints, ask for investigations, or be the
subjects of investigations.
In addition to the DOD IG, there are roughly 8,000
investigators, inspectors, and auditors just in the military
departments and another 4,500 auditors in the Defense Contract
Audit Agency. So if you are going to create certain
investigative rights for people who are interviewed by the DOD
IG at the Defense Department, you would be creating another
controversy because you would be giving people special rights
in those DOD investigations and not in others.
In closing, I want to reiterate that we do recognize and
appreciate the critically important role that investigations
must play in our society. We also understand that those who
investigate exercise considerable power and that with that
power, and clearly because of it, they also bear a heavy
responsibility.
We believe our record reflects the importance we place on
competence, integrity, and fairness in investigations. I can
assure you that we will make every effort to continue to meet
those standards in the future. Thank you.
Mr. Horn. Thank you.
[The prepared statement of Ms. Hill follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Horn. Our next witness is the Honorable Michael
Bromwich, Inspector General of the Department of Justice. Mr.
Bromwich.
Mr. Bromwich. Thank you very much, Mr. Chairman, for
inviting me to testify at this important hearing.
I will try to address some of the issues that have already
come up in the hearing, mindful of your statement that our
prepared statements will be introduced for the record.
I think that predictably this has become already a more
broad-ranging discussion of the investigative practices and
procedures of the entire Inspector General community rather
than just focusing on the amendment that was originally
introduced to address alleged State Department improprieties
and I think that's all to the good. I think that, and I
believe, as Congressman Hamilton pointed out, the Inspector
General Act has now been in effect for 20 years. My
organization was added in the 1988 amendments. So we have been
functioning for about half that period. But I think it is
entirely appropriate that this subcommittee and other
committees of Congress take a look at our investigative
practices and procedures, because I think the question of who
is overseeing the overseers is a very important one. And I
think that my colleagues join me in encouraging and welcoming
the congressional oversight.
I also hope it is the beginning of a continuing discussion
on the work that we do, because as I think you have already
heard from Inspectors General Williams-Bridgers and Hill, we do
some very important work and sometimes I think we have not done
an adequate job of educating the Congress or the public about
all the work that we do. We don't do primarily light bulb and
parking spaces investigations. The bulk of our work is on very
serious matters.
You have heard Inspector General Hill describe some of the
very serious procurement and other kinds of defense fraud
matters that her office investigates. The general run of my
investigations division caseload, Mr. Chairman, is smuggling
contraband into Federal correctional facilities, drug smuggling
across the border, and widespread immigration document fraud
affecting the security of our Nation's boundaries and the
integrity of our immigration system.
So, in fact, I think you will find unanimity on this panel
that, in fact, we all consider our investigators to be Federal
law enforcement agents. They are trained to be that. They act
as though they are that and indeed they are that.
What we try to do in structuring our investigative
practices and procedures is to model ourselves as closely as
possible according to what the established law enforcement
agencies do. Most of the procedures that are in our
investigative manual have been adapted from what the Federal
Bureau of Investigation does, from what the Drug Enforcement
Administration does, and so forth. We do that because we think
that they have spent a lot of time thinking about what is both
good investigative practice and what is fair to the witnesses
and the subjects that are interviewed in investigations.
Although we are obviously prepared to consider changes that
might be necessary, we think that's a good and important
starting point.
I think we are fortunate this morning to have Mr. Bryant
from the FBI here so that to the extent you have any questions
about the policies, procedures, and practices we follow, I
think he can help us in identifying the reasons why those
procedures are necessary in order to conduct good, powerful,
and credible criminal investigations.
I think it is at all times an important job that we have to
balance the important investigative equities that we have--the
prerogatives that we have--to try to make sure that waste,
fraud, and abuse are identified, and to a significant extent
deterred. But we must at all times be mindful of protecting the
rights of our agencies' employees, and we, at the Justice
Department, certainly seek to do that and think we do a good
job of doing that.
I fully agree with Congressman Hamilton, who I admire at
least as much as Inspector General Hill does, that it is a
matter of credibility; that we need to conduct investigations
in ways that are fair and are perceived to be fair in order for
our investigative results to be credible and in order for our
agencies to have the respect within our respective departments
that we need in order to do our jobs effectively.
A couple of other thoughts before I close, Mr. Chairman. It
was stressed, I believe, by Mr. Goss that in addressing the
issues of fairness and notice to people who are participating
in interviews and who are the people who are being interviewed,
it is important to take a look at what kinds of notice could,
in fact, tip people off in advance to the nature or the kind of
investigation. You don't want to tip people off in advance to
enable them to shred documents, coach other witnesses, and so
forth. So in many cases the reasons for not disclosing in
advance to a witness the subject of the interview is precisely
to address those concerns about preserving the integrity of the
investigation. That being said, we do have a practice, in
virtually every case, that as the interview commences, in
addition to providing any warnings that the witness is entitled
to, depending on whether it is a custodial or noncustodial
situation, we do attempt to describe exactly what the scope of
the interview is; the subjects that are going to be discussed
during the interview, and we underline and emphasize the
voluntariness of the interview. Obviously, if the person is
under arrest, it is a custodial situation, that goes by the
boards. But if it is not----
Mr. Horn. Just for the record, would you mind defining
``custodial'' because most of the people who read this hearing
transcript or are sitting back in the audience may not know.
Mr. Bromwich. Custodial is somebody who, in fact, is under
arrest, has already been placed under arrest or is, in fact,
not free to leave, so even if they have not yet formally been
placed under arrest, they will not be permitted to leave that
room without being arrested. That is a custodial situation and
that is what I mean when I talk about custodial circumstances.
Mr. Horn. And how often really do you run into that
situation?
Mr. Bromwich. Not that often. I would be guessing if I gave
you a percentage of our interviews that are custodial or quasi
custodial.
Mr. Horn. Probably 5 percent?
Mr. Bromwich. It is probably more than that because we do
try to interview people after we have arrested them. Those
would all be custodial interviews and we arrest a number of
people.
But I think that's really not the prime focus of this
hearing, as I understand it. It really is dealing with agency
employees who are in something other than a custodial
situation, either they are simply witnesses who are being asked
for information or they are the subject or target of a criminal
or administrative investigation but they are not in custody.
Nor is there any immediate intention to take them into custody.
As to those people, Mr. Chairman, we stress at the
beginning of the interview, and the witness signs a form that
says so, that they are free to leave at any time.
Mr. Horn. And that is all your interviews, you do that?
Mr. Bromwich. Yes, except those that are custodial and they
already know that they have been taken into custody.
Mr. Horn. All right.
Mr. Bromwich. So they are aware that they are free to
leave, and through that warning they know that, in fact, this
is a voluntary interview.
Mr. Chairman, that concludes my opening remarks. I welcome
any questions that you or any other members of the subcommittee
may have after Mr. McFarland and Mr. Bryant complete their
opening statements.
Mr. Horn. Thank you very much.
[The prepared statement of Mr. Bromwich follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Horn. Our next witness is the Honorable Patrick
McFarland, Inspector General, Office of Personnel Management.
Mr. McFarland. Mr. Chairman, thank you for inviting me to
testify before your subcommittee on the investigative practices
of members of the President's Council on Integrity and
Efficiency. As you know, I am appearing in my capacity as
chairman of the PCIE's Investigations Committee. I have
submitted a prepared statement for the record which addresses
the specific points you raise.
Mr. Horn. Why don't you tell us what PCIE stands for? I
hate Government gibberish.
Mr. McFarland. I am sorry. It is the President's Council on
Integrity and Efficiency.
Mr. Horn. Thank you.
Mr. McFarland. I have submitted a prepared statement for
the record which addresses the specific points you raised. In
my brief remarks, I would like to highlight some of the
controls currently in place to assure professional conduct by
criminal investigators in Offices of Inspectors General. Before
I do so, I would like to talk for a moment about the overall
mission and vision of the IG community.
Prior to passage of the Inspector General Act of 1978, as
amended, in many cases investigations were not conducted by the
agencies in a coordinated and efficient manner. The act not
only gave agencies independent law enforcement authority but
also provided a statutory framework for coordination.
IG offices are no different than other law enforcement
organizations in the powers possessed and, as we should be, we
are very concerned about how the power is used. We are fully
conscious of the broad range of powers that we possess. We also
realize that, if unchecked, individual reputations and careers
could be seriously compromised. In fact, the Inspectors General
vision statement addresses this concern.
A few years ago, the PCIE adopted reinvention principles in
that statement requiring IG's to maximize the positive impact
and ensure the independence and objectivity of our
investigations.
The IG community is proud of its involvement in developing
and implementing the vision statement. Along those lines, Mr.
Chairman, if IG's are not vigilant in protecting the rights of
those individuals under investigation, IG's will never attain
their ultimate objective of having a positive impact on agency
programs and operations.
Now that I have talked broadly about the IG mission, I
would like to specifically address concerns you have raised
regarding internal and external controls of IG investigations.
The authority to investigate allegations concerning
misconduct or criminal activity in the programs administered by
their agency is one of the most significant responsibilities of
Inspectors General. Under the IG Act, all criminal
investigators have the responsibility to act in a fair,
ethical, and objective manner to substantiate or, just as
importantly, disprove allegations of misconduct or criminal
activity.
At the heart of the IG's authority to conduct
investigations is the need to assure that controls are in place
at every level to protect the rights of the individuals under
investigation and to assure that the investigators are acting
in a manner beyond reproach.
In looking at the wide range of organizations that are
members of the PCIE and the Executive Council on Integrity and
Efficiency, I am impressed by the number of innovative
approaches they have taken and are continuing to develop to
maintain the integrity of their investigations.
Internal controls within each IG office will vary widely,
depending on the size and geographic reach of the agency, as
well as the size and organization of its IG office. Most IG
offices have investigation manuals which establish the
procedural basis for conducting every step of an investigation.
The manuals are modeled on Justice Department guidelines and
incorporate PCIE Quality Standards for Investigations.
One of the most dramatic developments providing both
enhanced law enforcement authority to IG criminal investigators
and at the same time increasing external controls on
investigations is the Memorandum of Understanding between
respective IG offices, the Department of Justice, and the
Federal Bureau of Investigation, authorizing blanket deputation
of special agents. It imposes significant controls on deputized
agents.
Under the MOU, IG's are required to report to the
Department of Justice detailing the investigative and
prosecutive activities of agents who receive special
deputation. The MOU mandates coordination between the IG, DOJ,
FBI, and other Federal law enforcement agencies, as well as
consultations with prosecutors on all criminal investigations.
Certain investigations involving sensitive techniques such as
electronic surveillance, undercover operations, sensitive
targets, and consensual monitoring are required to be conducted
jointly with the FBI or with another Federal law enforcement
agency that has jurisdiction over the offense. Any
jurisdictional disagreements are referred to the appropriate
U.S. attorney for resolution.
In addition to internal agency procedures and guidelines
established by the Attorney General, all IG's adhere to the
PCIE Quality Standards for Investigations, which provide PCIE
guidelines. These general and qualitative standards were
promulgated in 1985. They provide the basic standards of
conduct and represent a consensus from organizations affiliated
with the PCIE.
On May 30, 1996, a working group was formed to revise the
PCIE Quality Standards for Investigations. This group reviewed
the relevance, in accordance with contemporary standards and
compliance of these standards with rules, laws, and
regulations. The training profile received the most substantial
revisions. Changes in the experience level of IG entry level
investigators, as well as a new emphasis on law enforcement
skills, necessitated this change. The revised standards will
soon be disseminated to the PCIE and the ECIE members for final
comment.
In the revisions to the investigative standards, we
recognize that one of the most effective controls to protect
individual rights and assure high quality law enforcement is to
provide agents with training opportunities. The PCIE
Investigations Committee works closely with law enforcement
training authorities to ensure the most professional and
relevant training available is provided to both new
investigators and to experienced individuals. A full
description of our training facilities and the changes under
consideration and the investigative standards is included in my
formal statement.
Thank you, Mr. Chairman.
Mr. Horn. We thank you for that helpful statement.
[The prepared statement of Mr. McFarland follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Horn. Mr. Robert M. Bryant, Assistant Director, Federal
Bureau of Investigation. Welcome.
Mr. Bryant. Thank you.
Mr. Chairman, I appear before you today in my capacity as
chairman of the Integrity Committee of the President's Council
on Integrity and Efficiency. My testimony will cover the
function and activities of the Integrity Committee and provide
some insight into the process by which allegations against
Inspectors General are referred, reviewed, and investigated.
To gain an understanding of the function of the Integrity
Committee, I wish to emphasize that the mandate of the
Integrity Committee covers only Inspectors General and certain
members of their staffs regarding noncriminal allegations of
wrongdoing. The Integrity Committee covers senior offices of
Inspector General staff members in instances where it would be
inappropriate or might appear to be less than objective if the
Inspector General conducted the investigation.
The Integrity Committee does not generally conduct
inquiries into investigative practices of the Inspector
General. The Integrity Committee does not function as an office
of professional responsibility.
Upon receipt of an allegation against an Inspector General
received by the Integrity Committee at FBI headquarters, the
allegations are received from several sources to include
Inspectors General themselves, agency heads, and private
citizens. The FBI has chaired this committee since 1990.
Upon receipt of an allegation, the working group of the
Integrity Committee acknowledges receipt of the allegation to
the complainant. A copy of the complaint is forwarded to the
Public Integrity Section of the Department of Justice for a
determination whether the allegation is criminal or
administrative in nature. Should the Public Integrity Section
determine that the allegation is, in fact, a criminal violation
of the law, then it is referred to the appropriate Federal law
enforcement agency for a criminal investigation.
The Integrity Committee receives the results of a criminal
investigation that's been referred and they may pursue
noncriminal allegations related to the case not addressed
during the criminal investigation.
The membership of the Integrity Committee currently
consists of the Special Counsel of the Office of Special
Counsel, the Director of the Office of Government Ethics, two
Inspectors General from the President's Council on Integrity
and Efficiency, and one Inspector General from the Executive
Council on Integrity and Efficiency. Committee members serve
annually. Advising the committee is a lawyer from the
Department of Justice's Public Integrity Section.
The Integrity Committee meets quarterly to review
allegations. During these meetings, the Integrity Committee
determines the manner in which to handle a complaint. Should a
complaint fall outside the purview of the committee, the case
is closed and the complainant is notified in writing of the
action taken. If, however, the Integrity Committee finds it
appropriate to refer the allegation elsewhere, the allegations
are referred to the most suitable investigative entity.
For example, if an allegation is made against an individual
within the Office of the Inspector General below the level of
Deputy Inspector General, it would be fitting to refer the
allegation to the Inspector General personally. An allegation
related to prohibited personnel practices would be referred to
the Office of Special Counsel, and an allegation regarding
equal opportunity matters would be referred to their equal
opportunity office.
If an allegation is credible and falls under the Integrity
Committee's purview, I, as chairman, will initiate an
investigation to obtain facts related to the allegation. Since
the committee does not maintain an investigative staff, I can
convene an investigative group headed by an independent
Inspector General. The staff may be made up of the
investigators from the Office of the Independent Inspector
General's office or others from the Inspector General community
at large.
Presidential Executive Order 12993 gives the FBI the
authority to conduct investigations under the direction of the
chairman of the Integrity Committee. As chairman, I am
authorized to obtain investigative resources outlined above and
may augment those resources with investigative personnel of the
FBI. Reimbursement for the investigations is conducted as a
responsibility for the agency employing the subject of the
allegation. Upon completion of the investigation, a report is
issued to the Integrity Committee, and where it is reviewed,
and based on the findings in the investigation, an appropriate
recommendation is forwarded to the chairman of the PCIE with
notification to the original complainant.
The Integrity Committee has handled 162 complaints since
1990. In view of the signing of the Executive Order 12993, it
is expected that there will be some increase in the number of
referrals to the committee as evidenced by the receipt of 23
referrals since last quarter's meeting, which was April 30,
1997. Currently, we have 37 matters pending review.
Thank you very much.
Mr. Horn. We thank you.
[The prepared statement of Mr. Bryant follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Horn. We will now begin with the questioning. Mr.
Davis, the gentleman from Virginia, 11 minutes.
Mr. Davis of Virginia. Thank you.
Vice President Gore, when he was a Member of the House, was
one of six Representatives who voted against the IG Act. I
don't know why he did but it seems likely that it was an
adoptive issue and at least to some extent the concept of the
skepticism for the IG seems to have continued.
The report of the National Performance Review, led by the
Vice President, says that, in quotes, at virtually every agency
he visited, the Vice President has heard Federal employees
complain that the IG's basic approach inhibits innovation and
risk-taking, heavy handed enforcement; the presence of the IG's
watchfulness compels employees to follow every rule, document
every decision, and fill out every form and has had a negative
effect in some agencies.
Do you believe that is fair criticism by the Vice
President? I will start over here at State and move forward.
Ms. Williams-Bridgers. There are many aspects of the work
of the Office of Inspector General. By law, we are required to
undertake audits which are not very intrusive. Agencies often
complain that they are burdensome on their staff for having to
collect and gather information to respond to the specific
objectives of our review.
In our office, the inspection process is probably the most
consultative function in the office. I frequently receive
compliments, accolades, requests for our inspectors to come to
Embassies to assist the Embassies as they are establishing new
procedures, to assist them in establishing or reinforcing the
internal controls of their process; I rarely, but sometimes
receive compliments about the conduct of the investigative
process. It is the most abrasive function conducted by the
Office of Inspector General. It is generally not pleasant when
an individual is subjected to an investigation.
I think that there is a wide range of functions and there
is certainly a great deal of response and reaction to the
various functions that the OIG's perform. But I think that it
is unfair to suggest that the OIG's as a whole do not advance
the mission that they were charged with by the Congress, to
prevent and detect, to educate as well as to adequately inform
both the Congress and the heads of our agencies. So I think
that that comment has to be taken in balance and viewed with
the perspective of the various functions that we perform and
the various tools that are made available to us by law and by
regulation to execute those functions.
Mr. Davis of Virginia. I think the Vice President probably,
and I have heard him talk about it, and I share the concern
that Government has so many of these regulations as opposed to
being customer driven or outcome driven, that you are kind of
countermanding the ideas that we are trying to get people to
focus on the customer and please them regardless of whether the
rules and regulations sometimes get in the way. I think that is
where the conflict or I suppose somebody has to enforce the
procedures and maybe it is common sense aspect of it. I don't
know what he is asking about, but I wanted to get your reaction
to that. Ms. Hill.
Ms. Hill. I would just point out, when I talk to people
about what we do in the IG I like to use the term ``by
statute.'' We are sort of schizophrenic, in two respects, and I
think both of those contribute to this question of whether we
are going overboard and inhibiting change. The IG's, on the one
hand, must report to their department. On the other hand, they
report to the Congress. So in that respect, they keep both the
agency advised and the Congress advised.
The second part is that we are in DOD, the senior advisor
to the Secretary on waste, fraud, and abuse. So we are supposed
to work with the Department to help them correct those
problems. On the other hand, we are obviously the ones who have
broad investigative authority, broad audit authority. No one
likes to be audited. No one likes to be investigated. As Jackie
said, that can be an abrasive process, particularly
investigations.
So we wear two hats. On the one hand, we are supposed to
work with them and move the Department forward in a
constructive manner. On the other hand, we also are persons, or
the organization that has to go out when there is misconduct,
especially individuals, these can be very sensitive, very
controversial cases. We have to go out and investigate that.
I think since the National Performance Review came out, I
think there has been a growing recognition in the community,
the IG community, that there needs to be some balance; that we
need to not--you can't go both ways, either way--completely to
one side and forget the other part of our job.
At DOD, I would say that while we have a very active
investigative and audit section, criminal administrative
investigations and audit, we have also made a very concerted
effort to work with the agency. Particularly at Defense there
is a lot of acquisition reform going on and downsizing and all
kinds of reengineering. For instance, we do a lot of audits. A
significant portion of them we do at the request of management
in an effort to help them point out what their problems are,
move them in a good direction.
We also have been very actively participating in many of
what they call ``process action teams'' at Defense, which are
really management teams that get together to try to solve
problems, reform the system; regulations, et cetera, those
kinds of things. We work as advisors to those teams and give
them the benefit of our experience. So we try not to be just in
the situation of always coming up and saying, we got you, you
did it wrong. We also try to work with them ahead of time and
help them prevent problems down the road. So I think that's
what they were getting at with the Vice President's comments
and certainly people have made those criticisms. It is really
the challenge we face is balancing those very different aspects
of our job.
Mr. Davis of Virginia. OK. Thank you.
Mr. Bromwich. I think there is something to those comments
that were made by the National Performance Review about
Inspectors General, but I think we need to be careful not to
overstate it. I think that the three of us, Inspectors General
Williams-Bridgers and Hill and myself, all came in after the
National Performance Review was published. So we came in
mindful of some of the criticisms that were contained in that
report.
I think that what the report highlighted was a perception
of arrogance and high-handedness that many people in agencies
felt was exhibited by Inspectors General in some of their work,
particularly on the audit and inspection side, but I think also
to some extent on the investigations side. For example, I know
what my agency now does, and I believe many others do as well,
is to do customer surveys, to try to get feedback from people
on whom we conduct audits and inspections, and to find out how
we do and how we can do better.
Now, we don't expect to win any popularity contests when we
accuse people of wasting millions of dollars as we sometimes
do. Nevertheless, the structure and nature of our jobs and the
fact that we will inevitably be unpopular with some people
shouldn't be an excuse for not modifying our practices and
changing the way we conduct some of our work in order to be
fairer and in order to do our jobs better. So I think there was
some truth to some of the things that were said in the National
Performance Review about Inspectors General, but I think that
in my agency and in others we are compensating for that. We are
trying to make changes without at the same time defanging
ourselves and really eliminating the important role that we
play in making sure that we go after waste, fraud, and abuse
and all their ramifications.
Something was said in the hearing before you arrived--
Inspectors General are like the Ethics Committees in the
Congress. We are inevitably going to be unpopular in much of
what we do, and I think all of us at this table, with the
exception of Mr. Bryant, are resolved not to win popularity
ourselves and to try to do our jobs as best we can,
understanding that we will get criticism for what we do and
that, as I say, we shouldn't use that as an excuse not to
change and improve the way we conduct our business.
Mr. Davis of Virginia. Thank you.
Mr. McFarland. About 7 years ago, when I was interviewing
for my job, I was asked by the director, why do you want to be
an IG? And I explained the reasons. And her comment at that
time was, simply, well, you will always be invited to the
parties. You just won't be the special guest. And I pretty much
took that to heart because that's exactly the way it is. And I
don't have a particular problem with that.
We did, I think, as a community of people, I think we took
to heart the comments made at the town hall meetings to the
Vice President. Some of us, I for sure, was always skeptical of
the concern because I knew that in my shop I didn't operate the
way it was being depicted in the town hall meetings. Nor would
I ever operate that way. So in general, I think the effort of
the IG community was to get together, see what we could do to
make ourselves more proactive and more helpful to Government.
We did just that. We created what is called the PCIE vision
statement and it simply on one side identifies the mandated
law, the 1978 law that put us into effect, and on the other
side talks about the reinvention principles. Each of us try to
abide by that, as has just been discussed, and many of us have
added new features to our office.
I have an evaluation and an inspection group that is--I
would refer to them as a proactive group. We go out and we
solicit some work and we try to jump in the middle of something
that might be a problem if we don't get in the middle of it.
We have team efforts going with the Chief Financial Officer
so that everything we say is not under criticism but, yet we go
in the midst of it trying to help. And we don't have a problem
in my office of helping and then being concerned about
exercising our independence because we truly believe we can do
both.
But I think one of the important things that we have to
measure on a daily basis is that we don't get too proactive; we
don't want to be seen as in bed with management, ever. So we
have to work very closely and guard our independence but yet at
the same time be flexible enough to be reasonable and proactive
and yet step back and be independent the next day if we have
to.
Mr. Davis of Virginia. Thank you.
Mr. Horn. Mr. Bryant.
Mr. Bryant. I would have very little to add to what has
already been said but just the fact that the mission of the
Inspectors General is to prevent waste, fraud, and abuse and
that's a hard job. And they are extremely valuable allies to
the FBI in a lot of criminal investigations, as has been
related earlier, but it is a very hard job and I think they
acquitted themselves very well in most cases.
Mr. Davis of Virginia. Mr. Chairman, my time is up.
Mr. Horn. I will be glad to extend it to 15 minutes to both
of you if you want to take three more.
Mr. Davis of Virginia. Let me try one more. The Government
Auditing Standards or the Yellow Book that is produced by the
GAO establishes a fairly detailed accounting quality standards
for auditors. Comparably detailed standards don't exist for
investigators.
Why is it that either the audits have mandated procedures
but we haven't been able to develop mandated procedures for
investigations? Do you think the IG community could operate
under one set of investigative standards that are prescribed
mainly toward investigative procedures or is that just really
not likely? Is there any reaction there?
Ms. Williams-Bridgers. There are standards for conduct of
criminal investigations. The PCIE promulgates a red, white, and
blue pamphlet that I have seen some members of the panel have.
Each OIG office, has a manual that goes into great detail and
length about the conduct of criminal investigations, interview
techniques, the rights of individuals, the warnings and
assurances that our investigators should adhere to. Also, all
criminal investigators in all of our offices are all GS 1811's,
as they are captured in the general standards job series, all
trained at the same Federal Law Enforcement Training Center.
They are required to undergo 8 weeks of basic training followed
by an additional 2\1/2\ to 3 weeks of specialized training for
criminal investigators that are employed in the Office of
Inspector General.
In addition to that, there is a continuing legal education
program that all criminal investigators are required to attend.
I believe the standard is once every 5 years. In my office, we
require one every 4 years.
Mr. Davis of Virginia. I appreciate that. I know what you
are talking about. I guess the difference is as you look at
them is the Yellow Book standards are very detailed. These are
much more general. It may be the nature of what you are trying
to do, but I would like to at least get on the record, do you
think we ought to get more detail or do you think you need more
flexibility as this allows each investigator? These are pretty
flexible.
Ms. Williams-Bridgers. If I might add.
Mr. Davis of Virginia. Sure.
Ms. Williams-Bridgers. I think there is always room for
improvement on the standards. I am not sure when the last time
those standards were updated. Perhaps some of my colleagues
could better speak to that, but I think that no matter how
detailed we try to prescribe in writing the standards for
conduct of investigations, we must also allow flexibility for
investigators to accommodate the certain circumstances that may
exist at the time during pursuit of any particular case.
Also, Mr. Davis, having spent myself 17 years at the
General Accounting Office, I am quite familiar with the Yellow
Book standards. Although on the face of it they appear to be
quite detailed, as an auditor we used to say you could drive a
Mack truck through those standards. They allow much flexibility
on the part of auditors and increasingly you will see in the
audit community exceptions or qualifiers written in the front
of audit reports that we take some exception to compliance with
the Yellow Book on these particular cases. We call those
program evaluations. We call them program analyses, which are
increasingly taking into account the various disciplines, the
much broader disciplines that have brought some benefit to
evaluating how well Government programs are working.
Ms. Hill. I would just echo what Jackie said about having--
we do have written manuals and PCIE has investigative
standards, but I would point out that--when you think about it,
it is true, Audit has a Yellow Book. What Audit does not have
is what I think are the preeminent standards for Federal law
enforcement: the Supreme Court and case law, which is very
specific and it is constantly changing, I might add. Any good
criminal investigator, any good prosecutor, has to be very
aware of what the rules are on how they investigate, what they
can and cannot do in terms of searches, in terms of interviews,
confessions, et cetera. All of that is outlined in great detail
in the case law and the legal decisions, and certainly the
Justice Department.
The other thing that people tend to forget is that in the
criminal area when we investigate criminal cases, and our
agents are criminal investigators, they work very closely and
in close coordination with the Department of Justice's career
prosecutors. Those career prosecutors both Mike and I at one
point in our careers were career prosecutors for Justice, and I
am sure he would echo what I am telling you are familiar,
through the Justice Department and through keeping up with the
law and the cases, as to what the standards are in conducting
criminal investigations. So there is a big difference between
audit and criminal investigations in that sense.
Mr. Bromwich. I agree, Mr. Davis, that the quality
standards you have before you are general, but I agree with
Inspectors General Williams-Bridgers and Hill that an attempt
to codify it or make it tighter than it currently is would be a
misguided enterprise and a waste of time. I think that criminal
investigators do have the structure of their working lives
described by the Supreme Court and by the Department of
Justice, and I think that is adequate.
Mr. Davis of Virginia. OK.
Mr. McFarland. I think, too, Mr. Davis, that what has
already been mentioned is pretty much the thrust of where we
are coming from in the criminal investigation world, and that
is that we have an inordinate--I don't mean inordinate in the
sense that it is not reasoned--but we have an inordinate number
of oversight reviews done of the IG community, such as this
particular committee, and I think we all, without question,
applaud exactly what is being done here. But we do have the
responsibility of presenting a professional case to the U.S.
attorney's office, and subject to any criticism that would be
what most of us would consider devastating to our operations.
So, you know, in looking at the Quality Standards for
Investigations, that's one of the primary tasks of the
Investigation Committee, which I chair, and we are in the
process of finalizing the review on that. And it will be out
shortly. It is this particular book.
Mr. Davis of Virginia. Right.
Mr. McFarland. So I think, in summing up, what we have to
strive for in the PCIE community, and especially in the
Investigations Committee, is that we have to keep looking for
ways of building our continuity and building the reputation
that we want to achieve. We have to work hard at that. And I
think that's something that everybody is given to do.
Mr. Davis of Virginia. Thank you.
Mr. Bryant. I have nothing.
Mr. Horn. The gentlewoman from New York for 17, 18 minutes,
whatever. As the saying goes, now and then.
Mrs. Maloney. Mr. McFarland, earlier Mr. Hamilton made the
point rather forcefully that much of the work is dedicated to
noncriminal matters, over 80 I believe he said, at the State
Department. And therefore the IG may not, therefore, be viewed
as primarily a law enforcement official. Given those facts, do
you believe that some special procedures may be appropriate for
IG's when they are interviewing witnesses who are subjects or
possible targets in criminal investigations?
Mr. McFarland. No, I do not. No, I do not believe that
there should be any difference. The particular pamphlet that
the IG for the State Department has put out I think is an
exceptionally good pamphlet and something that I personally am
going to institute in my office, something similar to it, and I
also suggest that the PCIE consider taking it and running with
it and building on it and making it something that maybe we can
use overall in the community.
But I think to infer that somebody walking into a room,
where there is a prosecutor and criminal investigators, without
being given prior warning, I simply don't buy that at all for
this reason: In many instances, especially in high profile
cases, United States attorneys accompany criminal investigators
and police officers on the streets when they are about to make
an arrest or confront a situation. And they go along primarily
to make sure that because it is such a high profile case or
such a complex case, that the people that are going to be
arrested or questioned are given every opportunity to have due
process. I can't imagine a situation of walking into a room
where there is a prosecutor and criminal investigators to be
any more suited to due process than that, because when you walk
in and there is a criminal prosecutor, I think you better
believe for sure that person is going to be advised of every
right possible. And the priority of the situation is going to
be adhered to.
Mrs. Maloney. Yet in the cases that Mr. Hamilton referred
to that caused him to draft his legislation, he said that was
not the case. But were any of these cases ever referred to the
PCIE committee for action? Are you aware of the cases that
brought Mr. Hamilton to write the legislation?
Mr. McFarland. Well----
Mrs. Maloney. I guess, Mr. Bryant, right, you are with the
PCIE's Integrity Committee. Were they referred to you?
Mr. Bryant. I don't think these cases were referred to the
Integrity Committee.
Mrs. Maloney. Well, Mr. Bryant, just last week my daughter
and I toured the FBI, and it was really a great experience for
her. She said of her whole trip to Washington that was her
favorite experience, going to the FBI, and you truly have the
reputation of being the most effective investigators and law
enforcement officers in our country. And that is quite an
achievement because you do a good job on so many levels.
Are there really any differences between the FBI's
procedures and standards and the investigative procedures and
standards used by the IG? Are there differences in how you do
your jobs?
Mr. Bryant. Well, I can't speak for all the Inspectors
General, but I think they are generally similar.
Mrs. Maloney. Very similar?
Mr. Bryant. I think in a criminal investigation, if I might
lay out what we do, if we have a criminal investigation, say on
a bank robber, and this is just a typical criminal case and we
have about 75,000 of them, not bank robberies but criminal
cases, basically we are trying to obtain facts. We have an
incident that occurred. Something triggered this. We are trying
to obtain facts as to what happened. A lot of times we
interview witnesses around the scene. We interview people to
try to find out what happened. If the investigation focuses on
one person, and we think X might have done this criminal act, a
lot of times we don't have very much information and we may
interview this person just to try to generally find out where
this person was. If I go into an interview with X, though, and
I have the intention to arrest him, I am going to advise him of
his Miranda rights because that is basically, as Mr. Bromwich
pointed out, a custodial type interview. Outside of that, we
are trying to gather enough facts to develop probable cause to
take to the prosecutor, and I would just add those are the
general standards that we work with.
Mrs. Maloney. Do you believe that possibly it would be a
good idea to just accept the procedures and standards of the
FBI and have them then apply to the IG's since really the FBI
has more experience and is the preeminent investigator and law
enforcement agency of the Government?
Mr. Bryant. I think the standards are pretty similar
anyway.
Mrs. Maloney. But I mean, if you just went ahead and did
it, it would be clear.
I guess what I would like to ask, because I am really sort
of confused about the testimony from Mr. Goss and Mr. Hamilton,
both of whom I respect tremendously, and I respect very much
their point-of-view, both of their points-of-view, and both of
them appeared to want to accomplish the same thing. Both of
them said that it should go across Government. Both of them
said that it should be clear, that procedures should be clear,
that it should be consistent; that individuals should be aware
of what is going on. They also made it very clear that they did
not want to in any way impede the ability of any of our
investigators in any area of Government in their investigative
authority.
So I would just really like to go down the line and just
ask Mr. Bryant, I think all of you were in here when they
testified, I would like to ask you, No. 1, do you support the
Hamilton legislation? Yes or no? If you were to accomplish what
Mr. Goss and Mr. Hamilton wanted to accomplish, what would you
do? No. 3, do you think we should refer this to this Integrity
Committee that already exists in Government to come forward
with some guidelines that might help us? And both of them seem
to want to accomplish the same thing but were approaching it in
different areas, and I just would like wisdom of the
opportunity that you have in your jobs, if you could share that
with us.
Starting with Mr. Bryant and then just right down the line,
if you would like to comment, fine. If you would like to pass,
fine. Whatever.
Mr. Bryant. OK. First of all, on the amendment that I saw,
there was language in there that--like formal interview. I am
not sure what a formal interview is. There was other language
in there that needed to be looked at. I think even Congressman
Hamilton's suggestions that some of it was in the work in
progress stage. But as the legislation stands now, I personally
would not support it because I think it would inhibit
investigations. What about situations where we are working
undercover? What about situations where there is a consensual
monitoring where you are trying to obtain some type of
evidence? And those are issues that are legally recognized by
the Supreme Court and they are used in a lot of cases that we
have and certainly these ladies and gentlemen. And that's the
first question.
I think what they are trying to accomplish is to make sure
that employees that are under the purview of an investigation
have some knowledge of the investigation and what type of
investigation. I would think you would find in the vast
majority of the investigations conducted by the IG or by the
FBI that basically the people are identified as to who is there
and what the purpose of the interview is. And that excludes
certainly the undercover scenario.
I guess the third issue, as far as the Integrity Committee,
basically we are set up to look at allegations of noncriminal
misconduct and it is a little bit outside the scope of what we
do. I mean, we look at if there are allegations against some of
the IG's.
Mrs. Maloney. But then what do you suggest that we do? I
mean, obviously a problem exists when people are trying to
write laws or guidelines when they don't do the job. You are
the investigators. You do the job. So you have got to tell us
how you protect individual rights while at the same time
protecting the integrity of investigations. So possibly if you
would individually or jointly want to suggest some language to
the chairman of whatever, I don't know. How would you followup?
I could see us spending a lot of time drafting a law that we
would have another idea in 6 months from now that you would
have a lot of problems with.
Mr. Horn. If I might comment on Mrs. Maloney's point where
I think we are both in agreement here, I was going to wait
until last, am waiting until last. Basically, we would like
your advice and help on this, and we won't generate any
legislation out of the subcommittee, I would say, until maybe
even after the August recess so we are talking September,
October. But I can assure you I do intend to put in
legislation, and I would ask Mrs. Maloney to be the coauthor of
that. Because I think some things here need to be patched up.
So I am delighted she says going right down the line issue
by issue because that is what I intend to do eventually. And I
would think we would both welcome the advice of Mrs. Hill's
committee. I have your letter here that you wrote Mr. Goss
after he took action on the floor. And I talked to both Lee
Hamilton and Porter Goss before I voted on that and I said,
``Frankly, we need to air this issue out. I am going to vote
against it, not particularly because I don't think Mr. Hamilton
is right--because I think he has some excellent points
personally--but simply because I did not want one agency to
have that provision going through the House. But maybe you
ought to begin with all agencies.''
So with that interruption, I will go back to my colleague
here.
Mr. McFarland. Your first question, my answer is no, I do
not agree with the legislation, very much for what Mr. Bryant
gave as his reason. I think there seems to be, in Mr.
Hamilton's viewpoint, at least, no differentiation between the
employees of the State Department and Government in general,
and the general population.
I can't imagine legislation that is going to give
Government workers a particular right that the citizens of the
country do not have, and yet I think that is where this
particular legislation is headed.
In consideration of what a typical police officer may go
through during any daily activity, he or she may find
themselves going into a building, talking with somebody about a
crime, and there is no intention whatsoever prior to that to
notify these people or this person what you are doing. And I
don't see much difference between that and what Congressman
Hamilton is concerned about, somebody walking into a room where
there is an IG and a prosecutor.
I personally, if I was going to be charged with a crime or
under suspicion, personally, I would rather walk into a room
where there was a prosecutor and a criminal investigator
together, because I know for sure I am going to have every
advantage that the judicial system will provide under those
conditions.
Now, I think there is also a gray area in the discussion of
an interview. When we talk about an interview, an interview is
something pretty simple. When we talk in terms of police
interrogation, I think we are in another area. And to me, an
interview situation, if you walk in, it is just common courtesy
to advise who you are, show the credential of who you are
representing, and explain to the person what is going on. If
you are into an interrogation situation, some of these things
may not apply because the criminal investigator certainly has
the right to be clever and cunning if he or she needs to be,
and every right does not have to be given at any given time.
So, anyway, to get to your other point, how this can be
accomplished, I think rather than send it to the Integrity
Committee, I think probably the best avenue would be the
Investigations Committee that I happen to chair right now. And
maybe that is part of the answer that we can supply to you, is
that I would be happy to look at, from the Investigations
Committee standpoint, what can we do to try to resolve the
concerns that this committee is dealing with today.
Mrs. Maloney. Thank you.
Mr. Bromwich. Mrs. Maloney, I can't speak to the accuracy
of the figures you cited, 80 percent noncriminal, 20 percent
criminal. My statistics are the flip side of that, 80 percent
criminal, 20 public administrative, roughly. So what you would
be doing to the extent that you created new rights, you would
be creating them for people who are the subjects of criminal
investigations. And I, too, would be very concerned as Mr.
McFarland is, that you would be creating a new set of rights
for a limited class of citizens, not just, as we are hearing,
the State Department employees but all Government employees.
I think in a time of great cynicism about the operations of
Government, to create new and special rights for Government
employees and Government employees alone, I don't think that
would help the reputation of any of us for that to happen.
And in response to your specific questions, first, I oppose
the Hamilton amendment, as I said in a letter that I submitted
with Inspectors General Hale and DeGeorge.
Second question: How do we accomplish what we want to
accomplish? I think it is very important that we do a better
job of explaining to you what our procedures are, what our
practices are, both in criminal and administrative contexts.
For example, in an administrative interview, where somebody is
not under arrest, we make it clear to someone after advising
them of their rights, they cannot be fired for invoking their
fifth amendment privilege against self-incrimination. So the
element of compulsion that Congressman Hamilton and, to some
extent, Congressman Goss were concerned about is vitiated to a
substantial degree because people understand because we tell
them the voluntariness of the interview; they are there on a
voluntary basis. If they decide not to answer any questions,
the interview is over and then we look to another day and do
whatever we need to do.
So I think we need to do a better job of letting you know
what we do, the procedures that we follow. I think our
procedures, at least in my agency, differ not at all from the
procedures of the FBI relating to criminal matters. The FBI,
because they are a criminal law enforcement agency, does not do
the administrative matters that we do, and therefore we have a
whole separate panoply of procedures that apply to
administrative cases that they just don't have because they
don't work those cases. But in a criminal case or in cases that
could be criminal at the beginning of the investigation, I
don't think there is any difference between the procedures that
they follow and the procedures that we follow.
Mrs. Maloney. But the point that Mr. Hamilton made is, how
voluntary is it? It is one thing to get a phone call to go down
to the FBI and testify. It is another thing to get it from a
city prosecutor. But it is another thing to get a phone call
from what is viewed by most employees as their boss, which is
the IG within their department and whom you are taught to
cooperate with. You are taught to cooperate and work with the
IG and help them in any way, and that is part of the code of
Government. The IG is there to find fraud and abuse, but also
to stop problems, to make things work better, to let people
know they are making a mistake, that that is not the way you do
things, you are supposed to do them this way, or whatever.
I think the point he was saying was, how voluntary in his
testimony? Is it when you get a phone call within your agency
to, in effect, you know, respond to questioning from a boss?
And so he was making that distinction.
Mr. Bromwich. Well, we are not really a boss, we are
independent; we're statutorily independent from management.
Mrs. Maloney. But you are part of the agency, and you are
part of making Government work better.
Mr. Bromwich. There is no doubt about that.
Mrs. Maloney. And you are seen as a superior.
What are IG's, second ranking to the Secretary themselves?
Mr. Bromwich. Some of us would like to think so, but I
don't know exactly where we fit in.
Mrs. Maloney. I think you are, and I think the testimony of
IG's is really important for Congress. They are independent,
they are analytical, and they are--IG testimony is just as
important, I would say, as a Secretary's testimony before
Congress, maybe more so.
So the point he was making is, how free are you?
Obviously, if the FBI calls you, you can say, ``Wait a
minute; I've got a problem.'' If the FBI says, ``I want to talk
to you,'' you have to think twice about it. But the IG, I don't
think most of the employees would think twice about the IG
calling them in.
Mr. Bromwich. I think if you canvassed employees, you would
find that their reactions are different. If they are aware of
the function that we play and if they get a call to come to the
investigator's office for an interview, they are likely to be
asked about their conduct or the conduct of somebody else.
Mrs. Maloney. Do you have many people invoking fifth
amendment rights before IG's?
Mr. Bromwich. Yes, we have lots of people who decline to
participate in an interview or at some point in the interview
decline to participate further.
Mrs. Maloney. Can you force an employee to testify?
Mr. Bromwich. Yes, we can, but then the information they
furnish to you during that portion of the interview or that
interview for which they have been compelled cannot be used in
any criminal prosecution against them. They do have their
rights, and we are careful to advise them of those rights.
Ms. Hill. I would say no, I do not support the Hamilton
amendment. As to how to accomplish what he is getting at, I
think the real crux of his concern was this idea or impression
that somehow people are called into criminal investigative
interviews and don't understand the importance of the fact that
there is a criminal investigation going on. And you suggested,
certainly people know when the FBI calls them. They think the
FBI conducts criminal investigations and therefore they should
know the importance of their interview.
I would suggest to you, first of all, that at least at
DOD--and I mentioned this previously--I don't think we have
that problem, because our criminal investigators in the IG's
office are a separate entity under the name the Defense
Criminal Investigative Service. Any time they interview a
suspect, they first identify themselves. I have a badge with
the DCIS credentials which clearly states, ``The Defense
Criminal Investigative Service.'' And most people, if not all
in the Defense Department, know who they are before they get
that notice. When they see the name, they have to understand.
But certainly you would expect them to understand that it is a
criminal investigation.
So I don't think that there is that same issue or concern,
at least with our operation, that the Congressman has.
To the broader issue of where he wants to go with the
amendment, I think, frankly, you are getting into a very
dangerous area. I don't think you can treat criminal
investigations in a vacuum, just the IG community.
There was much talk when Mr. Hamilton testified about due
process and making sure people have due process in criminal
investigations. ``Due process'' is a constitutional term. The
Supreme Court and the Federal courts have defined and set forth
very clearly what due process requires in criminal
investigations, and they have made no distinctions between due
process for IG criminal investigations and due process for FBI
criminal investigations.
So if you are talking about creating new due process
rights, outside what the Constitution requires, you are talking
about giving additional rights to people who are investigated
by IG's, employees in the case of the Hamilton amendment.
At DOD, for instance, we investigate people who are not
employees. We investigate DOD contractors. Under the Hamilton
amendment, employees would have more rights than contractors,
and certainly the employees would have far more rights than the
rest of the American public in similar criminal investigations.
We do joint investigations with the FBI and other law
enforcement agencies. You would end up with situations where
certain interviews would have to recognize certain rights,
others would not, in the same investigation.
So, my own personal opinion is, I think our procedures we
need to address more to the committee and maybe educate people
as to what they are, because I think they are sufficient. They
certainly comply with the law and with the Supreme Court's idea
of due process. If you go beyond that and start creating new
due process rights in criminal investigations, I think you
cannot do it only for the IG. You would have to go to the
entire Federal law enforcement community, including the Justice
Department, to get their input on how to do that.
Mrs. Maloney. Thank you.
Ms. Williams-Bridgers. Mrs. Maloney, I think your opening
comments were very telling. This is a very confusing area. I,
too, as I am sure many of my colleagues at this table, would
agree with most of what Mr. Goss and Mr. Hamilton said on the
first panel. We want fairness in the conduct of our
investigations, we want objectivity, we want consistency
throughout the OIG community, and we want to be able to
continue to adhere to the larger Federal law enforcement
investigative standards.
Where I depart in company from Mr. Hamilton is the specific
provisions of his amendment that we provide advance notice and
advance identification of any of those law enforcement entities
accompanying us on an interview, for reasons that Mr. Bryant
articulates and others on the panel articulated, because in
certain circumstances, not all and perhaps not even the
majority, but in certain circumstances we do not want to, in
any way, compromise the integrity of the investigation. We do
not want documents destroyed. We do not want witnesses and
potential testimony influenced.
Mrs. Maloney, I have seen cases that we have conducted
where, in the course of our fact-finding, e-mails have been
mysteriously lost, documents have been erased, witness
testimony amazingly word-for-word verbatim, and we have to
believe that had it not been for the tools that were available
to us when those tools can be fully exercised and are exercised
properly, that we can maintain the integrity of the information
prior to witnesses having an opportunity to destroy or alter
that information.
As Ms. Hill mentioned, it is quite clear to us that most
employees, perhaps not all--and that is a point I want to get
back to later--but most employees know the difference between
an OIG investigator and an OIG auditor and inspector.
Ms. Hill mentioned the credentials. This is the badge that
our investigators carry. It looks just like that of any local
policeman or any FBI agent that approaches you. It is quite
clear when someone shows this badge from our office--and only
investigators carry this badge--that we are there for a
particular reason.
When we approach the subject of an investigation in an
interview, we inform them they are the subject of an
investigation--if our investigation has progressed to that
point where we have sufficient evidence to make that
conclusion, that they are the subject of the investigation,
that they have certain rights: the right to remain silent; that
we give them certain assurances, just as Mr. Bromwich
mentioned. We have them sign a form that spells out in writing
all of those rights and assurances.
I must also mention that Mr. Bromwich's counsel and my
counsel teach the IG's a course on administration of rights. So
if I might, with the chairman's permission, submit with my
testimony copies of those rights and warnings statements so
that you can see that they are all the same, we adhere to the
same standards.
Mr. Horn. Without objection, they will be inserted in the
record at this point. That is one of the more interesting
questions to see what they do across agencies, so the staff
will be following up in July and August.
[The information referred to follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Williams-Bridgers. Thank you very much.
And one last point: What are the possible outcomes of this
hearing? I think this conversation is one of the most
productive outcomes, because clearly there is a
misunderstanding about what the roles, the functions, and the
full authorities invested in the Offices of Inspector General.
Also, Mr. Hamilton's point is very good about the need for
regular and frequent communication with employees about what
their rights are. It is just, at what particular point in time
do you advise the person of those rights? And there we want to
remain in concert, in compliance with Federal case law.
Mrs. Maloney. Thank you very much.
Mr. Horn. If I might add, no one is asking you to go beyond
Federal case law at this point, though Congress does have a
right to grant rights, even if the Supreme Court doesn't, which
I think we would all agree under the Constitution.
I am going to go through a series of questions here that
are not in any particular logical order, because I have been
scrawling them as I have listened to the witnesses.
I guess the first question I want to ask Ms. Williams-
Bridgers is, obviously Mr. Hamilton has taken certain items
from a State Department investigation, and that is the basis
for his testimony. And I know you have commented in your
written statement, but I would like to hear it orally and look
at me in the eye: Is he wrong on some of these on what he is
stating, and, if so, what are they?
Ms. Williams-Bridgers. As I heard Mr. Hamilton repeat his
understanding of the case, some of the information is mixed.
The cases have been mixed. Information related to the course of
investigation of at least two cases have been mixed.
As I read his statement very quickly before coming to this
table, the third case, I am not familiar with what he cites in
his written statement. In one of those cases that he mentions a
Presidential appointee that was involved.
The Clinton passport investigation, that was not a criminal
investigation involving that individual. So discussion of what
happened to that individual does not even fall within the
purview of much of the discussion this morning about being
subjects of criminal investigations and what are your rights.
Mr. Horn. What about the question of somebody on the
Inspector General's staff leaking information to the media?
Ms. Williams-Bridgers. Again, that was not an unauthorized
disclosure. We did have a pending investigation. It had been
referred to the Department of Justice.
When calls came in from the press--well, actually before
the calls came in from the press, anticipating that there would
be much public interest in that particular case, we consulted
with the prosecuting attorney on that case and asked him, what
is your guidance? What shall we do? That prosecuting attorney
specifically advised us: Say that you have referred this matter
to the Department of Justice. Refer all questions to my office.
Mr. Horn. In other words, you are saying your people didn't
mention the person by name, they just said on this case----
Ms. Williams-Bridgers. When the press called, they asked:
Do you have a case on this individual? And we said all
questions regarding that particular case should be referred to
the Department of Justice.
Mr. Horn. And you gave them someone in Justice to whom they
should call?
Ms. Williams-Bridgers. Yes.
Mr. Horn. And it is the belief of the members and the staff
in the Department of State that the leak came from the
Department of Justice?
Ms. Williams-Bridgers. I am not going to characterize it as
a leak, but I do believe, from my read of recounts in the
press, that the Department of Justice did have a conversation
with members of the press.
Mr. Horn. If one of your staff did do something like that,
what would be the punishment?
Ms. Williams-Bridgers. If a member of my staff provided
information to any member of the public without prior
authorization, I would take swift action against that
individual. It is my policy to not comment on ongoing
investigations unless I have been specifically advised to do
otherwise by the Department of Justice, and only by the
Department of Justice.
Mr. Horn. What does ``swift action'' mean to you? Are you
going to fire them on the spot, and can you?
Ms. Williams-Bridgers. Well, it is certainly within my
purview to take administrative action, which includes removal
from the office, for any misconduct of employees in my agency.
But in that case, what I would probably do is refer it to the
PCIE, the Integrity Committee, or another Office of Inspector
General's Office of Investigations for investigative followup.
Mr. Horn. Well, what I would like from all of you--and Mrs.
Maloney pursued a lot of it--is the basic information you think
employees should get in a timely way, and the degree to which
they should be notified who is present, and the opportunity to
consult counsel, at what point in the process should that
occur.
And, obviously, no one is talking about an undercover
investigation. I mean, let's face it, you have got an
undercover investigation; fine; keep going. That is not the
context in which Mr. Hamilton's case, right or wrong, is. It is
going into a room of investigators who are not undercover. But
if you don't know completely who is in the room in the way some
people might say, well, the good-cop-bad-cop routine, some try
to get them just to tell everything, and they do not realize
that that can be used against them.
And let's face it, we have had problems with the Naval
Investigative Service over the years. Poor training of people.
They have hit the headlines numerous times for violating
people's rights. And there are a lot of other agencies in this
town that try to get away with certain things, and I think that
is why the Congress is here to hear these complaints and that
is why you are there as responsible executives to clean house
if there are problems like that.
And one of these bad apples--and I have seen one or two
since I have been here--on your staffs, that were absolute
self-publicity freaks, if I have ever seen any--and I have seen
a lot in the State of California. Their testimony before
congressional committees was designed to make a headline. It
wasn't designed to lay out the fairness of the case one way or
the other.
So I had my fill of that in 1993, and I don't think the
person is with us anymore, thank God. But it bothered me,
because I have seen the same mentality in the State audit folks
in California. I happened to get along with them, and I learned
a lot from them, because I always had a private interview with
them to say, OK, tell me some other experiences in other
places. I wanted to be aware of those things.
You said that on criminal investigations at the State
Department, 80 percent is not criminal, it is really more
administrative investigations program? Is it audit?
Ms. Williams-Bridgers. That was not my figure. I believe
someone else offered that.
In the area of investigations, almost 100 percent of our
investigations at initiation are criminal. Then when that case
is referred to the Department of Justice, if the Department of
Justice declined, it usually moves into an administrative
phase.
Perhaps that figure comes from a look at the total
resources, the total operating budget, for State Department
OIG. We employ about 35 criminal investigators out of a staff
of 300. So about 10 percent of the staff, a few more dollars
are attached to our investigations. Because of the nature of
our work, we travel worldwide, and that is expensive. But I am
not sure where that 80 percent figure came from.
Mr. Horn. We will leave it with a look at Mr. Hamilton's
comments on the floor and just file for the record anything you
feel that is not accurate.
[The information referred to follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Williams-Bridgers. Sure.
Mr. Horn. The next question I have concerns these nice
little brochures. This is from the Department of State's Office
of Inspector General Investigative Process. And I asked the
question--and maybe it has already happened--with Federal
agencies, is there one basic set of content that your
committees, both the investigative committee and the
legislation committee, could put together that should be
utilized by all Federal agencies, with the allowance that if
something is so unique to a particular agency, they would add
whatever they feel is related to that uniqueness?
Can't we agree on some language across the Federal
Government as to how you inform employees of what their rights
are, how the process works? That isn't just a rights question,
it is also to assuage worry about what the process is? And you
can't assume everybody knows that. You are all lawyers or
advanced degrees and all of that, and I understand that, but
the average citizen doesn't understand that, and I am
interested in what the average citizen knows, not what every
lawyer in town knows.
You chair the legislation committee?
Ms. Hill. That's right. I would say--certainly the IG
investigative standards which Mr. McFarland referred to, they
are very general, but they supposedly cover across the board
for the IG community. They talk in terms of what standards we
want to fulfill in investigations and in all of our work, in
investigations, per se.
Mr. Horn. Is that an issuance of the Office of Personnel
Management or the committee that you chair on investigations?
Mr. McFarland. No; this is the result of the PCIE putting
it out in 1985.
Mr. Horn. This is the 1-year update?
Mr. McFarland. Yes, we are updating this now.
Mr. Horn. This was put out when?
Mr. McFarland. 1985.
Mr. Horn. Twelve years. And you are in the process of
changing it?
Mr. McFarland. Yes, that's right.
Mr. Horn. It seems like a lot has happened in 12 years with
the Supreme Court decisions.
Mr. McFarland. Court decisions, yes, Mr. Chairman. But
really, this book doesn't get into that field of court
decisions and case law as much as it tries to cover the general
and the qualitative standards that are necessary for criminal
investigations.
Mr. Horn. Yes, now this is really more for the investigator
than it is for the average employee.
Mr. McFarland. Yes, strictly.
Ms. Hill. It sets forth some general standards that we go
by. If you get to something more specific, such as the pamphlet
I believe the State Department has, which I have not read, but
I assume it gets more to their particular procedures and
policies and the way they are set up, I think it is difficult
to be effective unless you would go agency by agency. The
IG's--there are 28 statutory IG's, and the offices are very,
very different. We have broad general authorities, but how they
are set up, which parts do investigations, which ones don't. In
our case at Defense, you have the added issue of the military,
and they have certain rights that civilians don't have.
So I think it would be more helpful to the employee to have
something designed or targeted to their own agency. Certainly
at Defense, we do not have such a pamphlet. When I saw the
State Department pamphlet or was told about it, I didn't have
any particular objection to doing that; I think it is probably
a good idea. I don't know that everyone is going to read that
and remember what they read.
The problem that we have at Defense in doing that is just
simply the logistical one. We would have to hand out almost 4
million pamphlets, and to make sure that everybody got one
would be very difficult. If you didn't get it to certain people
or missed it, you would be accused of not giving it to them. I
am not saying it is impossible, but it would be a significant
undertaking for us.
Mr. Horn. Well, I guess I am not too sympathetic with that
because of all the paper that the Defense Department gives to
employees. You could add the one that is important to
constitutional rights.
Ms. Hill. I would agree with that.
Mr. Horn. The pamphlet to which I am referring is titled
Quality Standards for Investigations. The publication source is
the President's Council on Integrity and Efficiency and says
copies may be obtained from the U.S. Department of Labor,
Office of Inspector General.
Now, that was not the GPO? Was this one of the Defense
prints and not using the Government Printing Office?
Mr. McFarland. The situation at that time was that one of
the Inspectors General raised his hand and he got the job of
printing it.
Mr. Horn. And paying the postage.
Mr. McFarland. I believe so.
Mr. Horn. Any other comments on this discussion?
Mr. McFarland. If I may add, Mr. Chairman, with your
permission, I would be inclined to, and most happy to pursue
through the Investigations Committee, some possible answers to
your concerns. I am not sure at this point exactly what we
would do, but we have a committee with a lot of years of
experience, and that is what primarily we are all about, is
looking at things like this, and we would be happy to do our
best. I cannot make a guarantee, but I can guarantee that we
will do it.
Mr. Horn. Why don't you initiate it and keep it simple.
Don't write for the Department of Justice solicitor general as
a case going to court, but put it in simple English.
In other words, it is fine with me to have you all initiate
this. We reserve the right to, obviously, change it. But I
would like to have your thoughts based on your knowledge of the
law, what employees in general need to know about the Office of
Inspector General on certain types of investigations, and what
they ought to be informed when they come in. I can't criticize
this pamphlet for the Department of State.
The question is, to what point do you remind people, after,
let's say, they have had it in employee orientation, and I
think we can, given the several million employees of this
Government--I think we can afford to do that--10 cents a head
or whatever it would be with GPO.
Placed in the record at this point, without objection, the
Office Inspector General Investigative Process prepared by the
U.S. Department of State. Sherman M. Funk was the Inspector
General. And it has a date on it March 1992, Department of
State publication 9938. Hopefully, there were not 9937 items in
their brochure when they joined the Department.
Ms. Williams-Bridgers. Mr. Horn, may I ask that the most
recent copy of our pamphlet be included in the record? We have
one.
Mr. Horn. Certainly, without objection. We are delighted to
do that.
[The brochures referred to follow:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Horn. So staff will check, and you could help us. Do
each of the agencies with the statutory IG's have a pamphlet?
And if so, what is it? And we would likely gather that.
We would like to have more feedback if your committees can
do that, on the audit versus nonaudit type of situation. I
realize there are different things you get into. Obviously, the
criminal area is the one that we certainly put a lot of concern
on. And, again, I would say I would think OPM would be issuing
some guidance in this area on behalf of Federal personnel, and
you are sort of wearing two hats there, Mr. McFarland.
Mr. McFarland. OPM certainly will issue any guidance
regarding personnel issues, but as far as this type of
brochure, I think the genesis of it certainly has to be us, and
we will do that.
Mr. Horn. And obviously the question is, when? Joining the
organization is one. I would think most people would agree that
employees ought to know about what your office does when they
join the organization. Then second, prior to entering the room
where somebody is called in to participate in an investigation,
an inquiry or whatever, at that point in the time, in your
judgment, should be known and, if known, under what
circumstances or it should be not known under certain
circumstances? And I am going to leave it to those two
committees to give us the answer by the end of August.
We got into leaking information to foreign diplomats in one
case, but I will not get into that.
Let's see. If a witness comes into one of your inquiries,
shall we say, they may be investigations, and they happen to
bring their microcassette recorder with them, would you let
them tape that inquiry?
Do you want to start down the line with State Department?
Ms. Williams-Bridgers. It is not our general practice to
allow people to tape record conversations unless our
investigators are also tape recording conversations.
Mr. Horn. I would hope you would tape record an inquiry.
You don't? You just take notes?
Ms. Williams-Bridgers. No. We generally take
contemporaneous notes and then rewrite the notes and type them
up for records of the interview. That is the standard practice.
Mr. Horn. Does the person who was interviewed ever see
those notes?
Ms. Williams-Bridgers. Yes, if we are taking a formal
deposition, they review and then sign each page.
Mr. Horn. In other words, they can correct it if they feel
it was in error?
Ms. Williams-Bridgers. That's correct; in a formal
deposition.
Mr. Horn. You don't have a stenotypist in the room?
Ms. Williams-Bridgers. No, we do not. Generally we do not.
We may use an interpreter, because we are dealing quite often
in U.S. Embassies, and if we have a language problem there is
an interpreter, and then we take contemporaneous notes through
an interpreter.
Mr. Horn. Do you all work the same way as State?
Ms. Hill. We are a little bit different, because we have
two shops. One is criminal, DCIS; the other is DI, Departmental
Inquiries. DCIS follows the same practice, to my knowledge, as
most other Federal law enforcement agencies in criminal cases.
They do not tape record interviews. They take notes and have
agents' reports of investigation.
Obviously, that is part of the criminal justice system
which, if you work in a Federal criminal justice system, the
place for sworn testimony is the Federal grand jury, and at
that point the witness would be under oath and sworn testimony
for the record. I don't think the FBI----
Mr. Horn. There would be a stenotype transcript of that?
Ms. Hill. The grand jury? Right. Short of the Federal grand
jury, in criminal investigations we do not tape record
witnesses or take stenographic transcripts. But, again, I would
say that is the practice throughout the Federal law enforcement
community, and I think it is a practice that the Justice
Department would prefer and has approved in criminal
investigations.
On the administrative side, Departmental Inquiries does
tape recorded interviews of witnesses, and they are entitled to
a copy of the transcript.
Mr. Horn. Mr. Bromwich.
Mr. Bromwich. Justice is also the same as identified by the
two Inspectors General. We generally do not tape-record
interviews. We have agents present to take notes and write up
memoranda of interviews. On occasion, we do tape-record the
interview. On other rare occasions in very important matters,
generally administrative or management matters, we will
actually have a court reporter present and have a transcript
prepared. But that is the exception, not the rule. The rule is
not to have the session tape-recorded or transcribed.
Mr. Horn. Even if the individual says, ``By the way, I want
a record of what I have told you''?
Mr. Bromwich. That is correct. We would not permit them to
record the interview.
Mr. Horn. You would not permit them? Do you think that is
fair under the Constitution?
Mr. Bromwich. I think it is fair under the Constitution. I
believe it has been found to be fair under the Constitution.
The witness will then not have the ability to take the tape and
play it for other prospective witnesses in the investigation
and thereby tip them off as to precisely the questions that are
likely to be asked of that subsequent witness or the answers
that this specific witness gave.
We cannot stop the witness from orally telling a
prospective witness down the road what he believes he told the
interviewers, but we like to try to stop a verbatim version of
what that witness told us by not permitting tape recorders in
the room.
Mr. Horn. You didn't really answer the question. Do you
permit the witness--if they came in with a microcassette
recorder, could they tape record?
Ms. Hill. Our policy would be no, that we would not. In the
criminal area, particularly the concerns that Mr. Bromwich just
mentioned and the prosecutor's concerns would be that they
don't want a verbatim transcript of the interview. That is why
we don't tape-record them. We take notes, and on the
administrative side we don't allow them to tape it, because we
have a tape recorder there. There is a tape done, and they get
a copy of the transcript.
Mr. Horn. Who gets the copy of the transcript?
Ms. Hill. The witness.
Mr. Horn. The witness does get it?
Ms. Hill. Right.
Mr. Horn. They certify, certainly.
Ms. Hill. They read it and can verify that it was accurate.
Mr. Horn. Mr. McFarland.
Mr. McFarland. Our practice is the same as Mr. Bromwich. We
do not permit tape recorders to be used.
Mr. Horn. Has that been a problem for you?
Mr. McFarland. No, to date it has not been a problem.
Mr. Horn. And usually the witness doesn't have time, I
would think, to scratch down too many notes; right?
Mr. McFarland. Well, probably not in most circumstances.
They wouldn't be taking many notes. But, you know, the
interview that is written up is for their signature, and that
is their chance to correct something.
Mr. Horn. And let me consult here a minute on this
question. I am going to get to that. But I take it it is clear
you would not permit the witness coming in to use their own
microcassette. Mr. Bromwich has stated one of the reasons why
they might not.
Here is what I am saying. I have a letter--Office of
Personnel Management employee letter from Mary Lou Lindholm,
the Assistant Director for Personnel. Subject: Notice of right
of employees in exclusive bargaining units to request union
representation. January 27, 1992. It is required by the
agreement between the AFGE Local 32 and the OPM Central Office,
OPM Central Office bargaining unit employees are to be advised
of their right to union representation every year, during the
month of January every year. Specifically, article 2, section
6, of the negotiated agreement states, quote: An employee has
the right, upon request, of union representation at any time he
or she is being examined by one or more agency representatives
in connection with an investigation when the employee
reasonably believes the investigation may result in
disciplinary action against him or her. Each year during
January, the agency shall send to each employee a memorandum
quoting this section of the contract, unquote. Signed, Mary Lou
Lindholm, Assistant Director of Personnel.
Is this policy, Mr. McFarland, still pursued in the Office
of Personnel Management?
Mr. McFarland. Well, it is pursued, Mr. Chairman, but my
office abides by the district court decision as opposed to the
Third Circuit Court decision that says that the union
representative is permitted. We do not permit the union
representative.
Mr. Horn. Two things. One, every January you remind them of
their rights that they have union representation in the
meeting.
Mr. McFarland. OPM does; we don't.
Mr. Horn. OPM does?
Mr. McFarland. Yes, sir.
Mr. Horn. I thought you represented OPM in that sense?
Mr. McFarland. Not in that sense.
Mr. Horn. But you are an employee of OPM?
Mr. McFarland. Yes, I am.
Mr. Horn. Do you know if this 1992 agreement still stands?
Mr. McFarland. Well, I don't think it still stands, no.
Mr. Horn. So presumably you have negotiated it out. Let's
get you and the staff to get us the answer as to what is the
current practice of OPM on this particular 1992 language.
Mr. McFarland. All right.
[The information referred to follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Horn. Go ahead on when you permit union representatives
in the meetings.
Mr. McFarland. No, I would not, and we do not.
Mr. Horn. Mr. Bromwich.
Mr. Bromwich. Same answer.
Mr. Horn. Ms. Hill.
Ms. Hill. I would say in both our criminal investigations
manual and in our administrative investigation manual, we do
recognize the right of an employee, if they request it, to have
a union rep present during the meeting. So we do allow them to
do that.
Ms. Williams-Bridgers. Our practice is the same as Ms.
Hill's. We do allow, if requested, a union representative to
attend during the interview.
Mr. Horn. So it is two to two with this randomly selected
panel.
OK. Now let's see what remains here.
Mr. Bromwich. Mr. Bryant has offered to break the tie, Mr.
Horn.
Mr. Horn. Well, I have one closing question, not on this
subject. When I have all of this talent before me, I tend to
take advantage of it.
Well, Mr. McFarland, let me get back to you. At one point
you said you cannot imagine Government workers being given a
right that the average citizen does not have. And I really
would like you to sort of tell me your thinking on, what rights
has this dialog elicited that the average citizen doesn't have?
Mr. McFarland. Well, I think it kind of goes to the heart,
Mr. Chairman, of some of the things that were said today about
the pamphlets that are given to employees when they start
Government, the EEO briefings that they may get, the ethics
briefings that they may get, the warnings that they may get, as
opposed to the average citizen, who may well have taken a
civics course and that may be the extent of the knowledge that
they have regarding their rights.
Mr. Horn. Do you regard it as unreasonable that we give an
employee a pamphlet that tells about the role of the Inspector
General and what their rights are?
Mr. McFarland. No, I don't see that as unreasonable at all.
Mr. Horn. OK. I know that the OPM memo was sent by the IG
yesterday, I guess, dated 6/23/97, time of 13:49. And that just
goes with that document in the record.
Now, having exhausted some of that, we always reserve the
right to ask you questions later, and you can submit in
writing, and you are still under oath in our rules.
Let me move to a law in which Mrs. Maloney and I have a
great interest, and often the Inspector General functions to
save money through improving program management.
In the Debt Collection Improvement Act, which I authored,
and Mrs. Maloney is a cosponsor, and came out of the Chief
Financial Officers Group of the executive branch, Congress
authorized what some people call gain sharing for the agency.
But what it is, the agencies can keep a percent of what they
collect to improve the technologies with which they are enabled
to more efficiently and effectively collect debts owed to
people of the United States in a particular agency.
What do you think about agencies receiving part of the
money from such a collection program to improve the technology?
And has this funded and can it be used, in your judgment, to
fund some of the Inspector General work which improves credit
and debt management programs? It is now 1 year old, that act.
Have IG's benefited in any way under the act?
Ms. Hill. I am not familiar with whether the IG's have
directly benefited. I have not looked at the exact wording of
it and whether or not we would be able to get any financial
benefit from it.
I can tell you in principle that I think the Federal
Government needs every incentive it can get to improve debt
collection. I mean, when I was a prosecutor, I saw problems in
debt collection. When I worked in the Senate on the Student
Loan Program, I saw horrendous problems in debt collection. And
at the Department of Defense we have problems in debt
collection.
So anything we can do to encourage agencies to get their
efforts going stronger I would endorse, and certainly if there
is a way, we will explore whether, under the act, the IG could
take part in that, because we do look at issues like that,
collection. We would certainly do that.
Mr. Horn. Good.
Mr. Bromwich. I am also not familiar with the provisions of
the debt collection statute, but I agree with Eleanor Hill that
Government needs every instance to collect the debts that it is
owed, and there is no greater challenge facing agencies than
upgrading their communications and computer systems. I don't
know if we would be entitled to get a share, but our system
technology needs upgrading, and this is certainly something
that needs to be looked into.
Mr. Horn. Any other comments? One last one for Ms. Hill.
You mentioned the service IG's. What is the relationship
between what the IG's do historically with the military
branches versus your office?
Ms. Hill. Right. Their role is a little different than
ours. Honestly, they predate us.
Mr. Horn. 200 years.
Ms. Hill. Von Steuben, I believe.
They have a large inspection function in addition to their
investigative function. In addition, they are also a place
where the service member can go for help on any number of
problems, some of which may just be logistical and advice and
that sort of thing. We work closely with them.
I meet with the service IG's regularly, and our biggest
interaction with them is probably in the area of senior
official and whistleblower investigations, administrative
inquiries, because, as I outlined in my statement, even though
we have broad authority on administrative inquiries in the
Department, we don't have the resources to do all of those
whistleblower cases or all the senior official cases or all of
the investigative cases that pertain to the military. And what
we do, by necessity, is, we delegate out many of those cases to
the service IG's, and then we try to maintain oversight of what
they do.
So we work closely with them in trying to get the cases
moving, make sure they are done right. Sometimes we send them
back to them if we don't think they are done properly. I can
tell you that--and this is nothing adverse to the service IG's,
they are very strained on resources, and it is one of our
biggest concerns, my concern as well as their own concern, are
time limits. There are tremendous numbers of whistleblower
cases that they handle, and they don't have the resources to
adequately handle them, and we are constantly meeting to try to
come up with ways to improve the process and improve their
process to get out credible, quality investigations on a more
timely basis.
Mr. Horn. Would anybody else like to comment or any similar
relationship within their own Department's historically? I have
forgotten, frankly, about the Coast Guard, which would be in
transportation unless in times of war, and some of the other
things.
Well, let me just thank you all for spending this morning
here to help clarify a lot of matters that Members have been
talking to us about since that issue came up on the floor. We
will look forward to your reaching out to your fellow IG's and
getting back to us by the end of August some suggestions as to
what would be appropriate in this area. I think there is a
problem here. Now, the question is, we don't want a solution
that is worse not that problem. So we welcome your advice on
it.
And then I would to thank the staff that helped prepare
this hearing: The staff director and chief counsel for the
majority, Russell George, sitting on the back wall taking in
all that surrounds us; and Mark Uncapher, the counsel for this
particular hearing on my left. John Hynes, professional staff
member, is not here. Andrea Miller is here, the clerk; Mark
Stephenson for the minority, the once majority. Sorry, Mark.
Hope springs eternal; right? Very helpful. He writes excellent
questions. Jean Gosa, clerk for the minority, is here with us;
and our two reporters, because we knew that all of you, the way
you would talk very long this morning, so there was a relief
team, Mindi Colchico, court reporter; and Joe Strickland, court
reporter. We thank you all.
And with that, this hearing--two interns? Jeff Cobb and
Darren Carlson. Thank you, interns.
They work for nothing. Is that a violation of some employee
rule of OPM?
Mr. McFarland. Probably.
Mr. Horn. Or it will be.
The meeting is adjourned.
[Whereupon, at 12:32 p.m., the subcommittee was adjourned.]
[Additional information submitted for the hearing record
follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]