Congressional Record: February 28, 2002 (Senate) Page S1352-S1366 STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS By Mr. LEAHY (for himself and Mr. Grassley): S. 1974. A bill to make needed reforms in the Federal Bureau of Investigation, and for other purposes; to the committee on the Judiciary. Mr. LEAHY. Madam President, I rise today, joined by my good friend Senator Grassley, to introduce the FBI Reform Act of 2002. This bill stems from the lessons learned during a series of Judiciary Committee hearings on oversight of the FBI that I chaired beginning last June. Even more recently, the important changes which are being made under the FBI's new leadership after the September 11 attacks and the new powers granted the FBI by the USA PATRIOT Act have resulted in FBI reform becoming an pressing matter of national importance. Since the attacks of September 11, 2001, and the anthrax attacks last fall, we have relied on the FBI to detect and prevent acts of catastrophic terrorism that endanger the lives of the American people and the institutions of our country. The men and women of the FBI are performing this task with great professionalism at home and abroad. I think that we have all felt safer as a result of the full mobilization of the FBI's dedicated Special Agents, its expert support personnel, and its exceptional technical capabilities. We owe the men and women of the FBI our thanks. For decades the FBI has been an outstanding law enforcement agency and a vital member of the United States intelligence community. As our hearings and recent events have shown, however, there is room for improvement at [[Page S1353]] the FBI. We must face the mistakes of the past, and make the changes needed to ensure that they are not repeated. In meeting the international terrorist challenge, the Congress has an opportunity and obligation to strengthen the institutional fibre of the FBI based on lessons learned from recent problems the Bureau has experienced. This view is not mine alone. When Director Bob Mueller testified at his confirmation hearings last July, he forthrightly acknowledged "that the Bureau's remarkable legacy of service and accomplishment has been tarnished by some serious and highly publicized problems in recent years. Waco, Ruby Ridge, the FBI lab, Wen Ho Lee, Robert Hanssen, and the McVeigh documents--these familiar names and events remind us all that the FBI is far from perfect and that the next director faces significant management and administrative challenges." Since then, the Judiciary Committee has forged a constructive partnership with Director Mueller to get the FBI back on track. Congress sometimes has followed a hands-off approach about the FBI. But with the FBI's new increased powers, with our increased reliance on them to stop terrorism, and with the increased funding requested in the President's budget will come increased scrutiny. Until the Bureau's problems are resolved and new challenges overcome, we have to take a hands-on approach. Indeed our hearings and other oversight activities have highlighted tangible steps the Congress should take in an FBI reform bill as part of this hands-on approach. Last year's hearings demonstrated the need to improve FBI internal accountability, extend whistleblower protection, end the double-standard for discipline of senior FBI executives, enhance the FBI's internal security program to protect against espionage as occurred in the Hanssen case, and modernize the FBI's information technology systems. Since last year's oversight hearings, the committee has explored additional management issues that are reflected in the FBI Reform Act. Senator Grassley called attention to concerns about the practices of the FBI and other Federal criminal investigative agencies in reporting and using statistics on their investigations. In addition, FBI officials responsible for protecting its facilities informed us of difficulties in retaining the most qualified people on the FBI's own police force to protect some of our nation's most important and, unfortunately, most targeted facilities. When Director Mueller announced the first stage of his FBI reorganization last December, he stressed the importance of taking a comprehensive look at the FBI's missions for the future, and Deputy Attorney General Thompson's office has told us that the Attorney General's management review of the FBI is considering this matter. Director Mueller has stated that the second phase of FBI reorganization will be part of a "comprehensive plan to address not only the new challenges of terrorism, but to modernize and streamline the Bureau's more traditional functions. . . ." Thus, through our hearings, our other oversight efforts, and the statements and efforts of the new management team at the FBI, an initial list of challenges facing the FBI has been developed. The provisions in the FBI Reform Act address each of these challenges. Titles I, II, and VII of the FBI Reform Act strengthen the system for uncovering and reviewing FBI misconduct and imposing appropriate discipline, so that there is appropriate accountability. Title I creates statutory jurisdiction for the DOJ Inspector General over allegations of misconduct in the FBI. It brings the statutory authorities of the Justice Department's Inspector General into line with the administrative regulations adopted by the Attorney General on July 11, 2001, ensuring that there will be no return to a system in which the FBI enjoyed unique exemption for scrutiny by an independent Inspector General. Title II strengthens whistleblower protection for FBI employees and protects them from retaliation for reporting wrongdoing. Title VII eliminates statutory disparities in disciplinary penalties for Senior Executive Service and non-SES personnel. The committee received testimony in our oversight hearings showing that, too often, the independence that is part of the FBI's culture crossed the line into arrogance. Senator Danforth expressed concern to the committee about entrenched executives at the FBI who had created a closed and insular culture resistant to disclosure of mistakes and to reforms. His concern was echoed in testimony the committee heard from experienced FBI Special Agents, including a unit chief in the FBI's own Office of Professional Responsibility, who told us of a "club" mentality among some Bureau executives who viewed any criticism or change as a threat to their careers. If there was one message from these witnesses, it was that FBI executives needed to be more willing to admit their mistakes. Too often their response was to shield the Bureau from embarrassment by sacrificing accountability and needed reform. For example, Senator Danforth testified that the FBI helped fan the flames of conspiracy theories at Waco by covering up evidence that it used pyrotechnic rounds, even though they had nothing to do with starting the fire. The FBI culture demanded covering up rather than admitting a mistake. Of course, as the FBI painfully discovered, the price for circling the wagons in this way can be the loss of public confidence. The Justice Department Inspector General is in a position to conduct an independent investigation that enables the Attorney General and the FBI Director to hold FBI personnel accountable and learn the necessary lessons from mistakes. When Director Mueller was asked at his confirmation hearing about a separate FBI Inspector General, he replied, "If I were the Attorney General I might have some concern about a separate Inspector General feeding the perception that the FBI was a separate institution accountable only to itself. And I'm not certain in my own mind whether or not what the accountability you seek cannot be discharged by an Inspector General with appropriate personnel in the Department of Justice, as opposed to establishing another Inspector General in the FBI." Attorney General Ashcroft decided to follow this route, and Title I of the FBI Reform Act codifies his action. The committee also heard disturbing testimony about retaliation against FBI Agents who are tasked to investigate their colleagues or who discuss issues with the Congress, either directly or through cooperation with the General Accounting Office, which assists in congressional oversight. Therefore, Title II is important to ensure that the Federal whistleblower protection laws protect FBI personnel to the greatest extent possible. Senator Grassley deserves great credit for stressing the need for this provision and developing the language in the bill. The bill extends whistleblower protections to employees who report wrongdoing to their supervisors or to Congress, and ensures that whistleblowers will enjoy basic procedural protections, including the normal procedures and judicial review provided under the Administrative Procedure Act, if they are subjected to retaliation. It also ensures that those who report wrongdoing to the Office of the Special Counsel have access to the normal Merit System Protection Board rights if retaliated against. Title VII addresses the issue of a double standard for discipline of senior executives. Internal investigations must lead to fair and just discipline. A troubling internal FBI study that was released at the committee's July hearing documented a double standard at work, with senior FBI executives receiving a slap on the wrist for the same kind of conduct that would result in serious discipline for lower level employees. At his confirmation hearing, Director Mueller said it is "very important that there be no double standards in accountability. I know there have been allegations that senior FBI officials are sometimes treated more leniently than more junior employees. Any such double standard would be fundamentally unfair and enormously destructive to employee morale." Title VII embodies that principle by eliminating the disparity in authorized punishments between Senior Executive Service members and other Federal employees. The Hanssen espionage case was a tremendous shock to the nation and to the FBI. A trusted and experienced FBI Supervisory Special Agent was found [[Page S1354]] to have sold many of the nation's most sensitive national security secrets to the Soviet Union and to Russia. Just as the Ames case forced the CIA to revamp its security program after 1994, the Hanssen case requires major changes in FBI security. Former FBI and CIA Director William Webster chairs a commission that is completing its review of lessons learned from the Hanssen case for the Attorney General and the FBI Director. It is my hope that Judge Webster will testify before the Judiciary Committee when his report is complete to present his unclassified findings and recommendations. The FBI Reform Act includes provisions that are based on the Judiciary Committee's initial oversight hearings and we remain open to incorporating the considered recommendations and reforms for which the Webster Commission may call. Title III of the FBI Reform Act would establish a Career Security Program in the FBI and Title IV would establish an FBI Counterintelligence Polygraph Program for screening personnel in exceptionally sensitive positions with specific safeguards. In addition, as a result of concerns about terrorist attacks against FBI targets, Title V would authorize an FBI police force as part of comprehensive security enhancements. The FBI Career Security Program would bring the FBI into line with other U.S. intelligence agencies that have strong career security professional cadres whose skills and leadership are dedicated to the protection of agency information, personnel, and facilities. The challenges of espionage, information technology vulnerability, and the FBI's high profile as a target of terrorist attack require that the FBI match or exceed the best security programs in the intelligence and national security community. This can only be achieved by a fundamental change that reverses the tendency, found too often in civilian agencies, to treat security as a secondary mission and security assignments as obstacles to career advancement. Before the Hanssen case, an FBI Special Agent experienced as a criminal investigator might be assigned for a few years to a security position and then move on without building continuity of security expertise. Turnover in FBI security work was high, the top rank was Headquarters Section Chief. Director Mueller has changed direction by creating a Assistant Director position to head a new Security Division and supporting the principle of a Security Career Program. I support this change. Title II of the FBI Reform Act provides the statutory mandate and tools to achieve this goal based on the experience of the Defense Department in reforming its acquisition career program. The key requirements are leadership and accountability in a Security Director, creation of security career program boards, designation of security positions, identification of security career paths requiring appropriate training and experience, and development of education programs for security professionals. To help ensure that security professionals gain stature comparable to Special Agents, the program would limit the preference for Special Agents in considering persons for security positions. FBI security managers would complete a security management course accredited by the Joint Security Training Consortium recently formed by the Intelligence Community and the Department of Defense. The FBI Counterintelligence Polygraph Program that would be established under Title III of the Act also addresses the security issue. Title III recognizes the security value of polygraph screening, but provides specific safeguards for those who may be subject to adverse action based on polygraph exams. Screening procedures must address the problems of "false positive" responses, limit adverse actions taken solely by reason of physiological reactions in an examination, ensure quality assurance and control, and allow subjects to have prompt access to unclassified reports on examinations that relate to adverse actions against them. Title III is based upon the simple conviction that increased security and protection of employee rights can and must coexist at the FBI. Title IV of the Act provides long overdue statutory authorization for a permanent FBI Police force, to protect critical FBI facilities. It would provide the men and women who currently guard the highest risk targets with the same pay and benefits as members of the Uniformed Division of the United States Secret Service. Today the FBI police force operating under delegated authority from the General Services Administration has been unable to retain skilled personnel at a rate commensurate with the threat and the need for experienced leadership. The FBI Reform Act would bring the FBI police force generally into line not only with the Uniformed Division of the Secret Service, but also with the Capitol Police and the Supreme Court police. It is intended to be consistent with the current Memorandum of Agreement between the FBI and the Metropolitan Police Force of the District of Columbia with respect to FBI buildings and grounds covered in Washington, D.C.. The Attorney General has directed Deputy Attorney General Thompson to lead a management review of the FBI, while Director Mueller has already begun reorganizing the Bureau. Congress must participate in reviewing the FBI's structure and identifying its future priorities. The FBI is being called on today to protect the national security from terrorist and intelligence threats mounted from abroad. FBI investigations now extend overseas far more often because of our government's decision to use law enforcement as an instrument of national security along with diplomacy, military deployments, and intelligence operations. At the same time, it must continue with other uniquely Federal areas of enforcement. Title VI requires a set of reports that would enable Congress to engage the Executive branch in a constructive dialogue building a more effective FBI for the future. To help Congress participate in charting the FBI's course, Title VI directs the Attorney General to submit a comprehensive report on the legal authorities for FBI programs and activities. In the late 1970s the Judiciary Committee considered enactment of a legislative charter for the FBI that would spell out its authorities and responsibilities. That proposal was set aside in 1980 despite determined efforts by then- Judiciary Committee Chairman Kennedy, Judge Webster and Attorney General Civiletti to reach agreement. The time is ripe to revive consideration of this effort. In addition to a comprehensive charter, Congress should consider whether the FBI should continue to have responsibility for the broad range of investigations that it is currently expected to conduct. I believe we have gone too far in federalizing criminal law enforcement and that more responsibilities which are not uniquely federal can be transferred back to the states. In addition, even within the Federal law enforcement family, numerous agencies perform redundant functions. The Attorney General's report would recommend whether the FBI should continue to have all its current investigative responsibilities, whether existing legal authority for any FBI program or activity should be modified or repealed, and whether the FBI must or should have express statutory authority for new or existing programs or activities. Title VI also recognizes that the task of modernizing FBI's information technology and management is as important as setting the FBI's future missions. Judiciary Committee oversight hearings have documented, and Director Mueller has acknowledged, that the FBI must overcome years of neglect in this regard. Congress is providing the funds, especially in the FY 2002 Counterterrorim Supplemental for technology assistance. We must ensure, however, that the FBI can and does use these funds effectively. There is concern that the FBI may need greater flexibility than is allowed under current law to procure new technologies. Congress also needs to see detailed plans as to how the FBI plans to update its information technology systems. Unfortunately, the Department of Justice and the FBI have not provided quarterly status reports on the principal FBI computer upgrade program, known as TRILOGY, as requested in the Appropriations act for FY 2001. Title VI directs the Attorney General to address these concerns in a comprehensive report on FBI information management and technology. [[Page S1355]] Finally, Title VI requires the Comptroller General to investigate and complete a report on how statistics are reported and used by Federal law enforcement agencies, including the FBI. Senator Grassley has focused attention on the question whether the FBI and other agencies may be double-counting criminal investigations and arrests in the reporting of accomplishments. We also need to ascertain whether the FBI and other agencies properly use the statistics which they compile in making management decisions. It is important to get the facts and recommendations that put the FBI into the context of the full spectrum of Federal law enforcement agencies. Title VI ensures that the GAO can complete this important task by requiring agencies to comply with its requests for the information that is necessary to assist in preparing this report. The legislation which Senator Grassley and I introduce today is just one part of a bipartisan, hands-on approach to FBI reform. The committee plans additional oversight hearings to consider the Justice Department Inspector General's report on the belated production of documents in the Oklahoma City bombing case and the report of Judge Webster's Commission on the security lessons of the Robert Hanssen espionage case. The committee also intends to hear from Director Mueller and Deputy Attorney General Thompson on their response to these reports and on their actions and goals in reorganizing the FBI and charting its management course for the future. At the same time, we are focusing oversight attention on key aspects of FBI and law enforcement performance in connection with the September 11 terrorist attacks and the lessons learned for developing an effective counterterrorism and homeland security program. As contemplated by the sunset provisions in the USA PATRIOT Act, we must monitor the implementation of new surveillance and investigative powers provided to strengthen counterterrorism efforts and, in some provisions, law enforcement and counterintelligence generally. The FBI Reform Act is designed to strengthen the FBI as an institution that has a unique role as both a law enforcement agency and a member of the intelligence community. As the Judiciary Committee continues its oversight work and more is learned about recent FBI performance, additional legislation may prove necessary. Especially important will be the lessons from the attacks of September 11, 2001, the anthrax attacks, and implementation of the USA PATRIOT Act and other counterterrorism measures. Strengthening the FBI cannot be accomplished overnight, but today, with the introduction of FBI Reform Act, we take an important step into the future. For all of these reasons, I am pleased to introduce this legislation with Senator Grassley. I ask unanimous consent that the text of the bill be printed in the Record along with the sectional analysis. There being no objection, the material was ordered to be printed in the Record, as follows: S. 1974 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the "Federal Bureau of Investigation Reform Act of 2002". TITLE I--IMPROVING FBI OVERSIGHT SEC. 101. AUTHORITY OF THE DEPARTMENT OF JUSTICE INSPECTOR GENERAL. Section 8E of the Inspector General Act of 1978 (5 U.S.C. App.) is amended-- (1) in subsection (b), by striking paragraphs (2) and (3) and inserting the following: "(2) except as specified in subsection (a) and paragraph (3), may investigate allegations of criminal wrongdoing or administrative misconduct by an employee of the Department of Justice, or may, in the discretion of the Inspector General, refer such allegations to the Office of Professional Responsibility or the internal affairs office of the appropriate component of the Department of Justice; and "(3) shall refer to the Counsel, Office of Professional Responsibility of the Department of Justice, allegations of misconduct involving Department attorneys, investigators, or law enforcement personnel, where the allegations relate to the exercise of the authority of an attorney to investigate, litigate, or provide legal advice, except that no such referral shall be made if the attorney is employed in the Office of Professional Responsibility."; and (2) by adding at the end the following: "(d) The Attorney General shall ensure by regulation that any component of the Department of Justice receiving a nonfrivolous allegation of criminal wrongdoing or administrative misconduct by an employee of the Department of Justice shall report that information to the Inspector General.". SEC. 102. REVIEW OF THE DEPARTMENT OF JUSTICE. (a) Appointment of Oversight Official Within the Office of Inspector General.-- (1) In general.--The Inspector General of the Department of Justice shall direct that 1 official from the office of the Inspector General be responsible for supervising and coordinating independent oversight of programs and operations of the Federal Bureau of Investigation until September 30, 2003. (2) Continuation of oversight.--The Inspector General may continue individual oversight in accordance with paragraph (1) after September 30, 2003, at the discretion of the Inspector General. (b) Inspector General Oversight Plan for the Federal Bureau of Investigation.--Not later than 30 days after the date of the enactment of this Act, the Inspector General of the Department of Justice shall submit to the Chairman and ranking member of the Committees on the Judiciary of the Senate and the House of Representatives, a plan for oversight of the Federal Bureau of Investigation, which plan may include-- (1) an audit of the financial systems, information technology systems, and computer security systems of the Federal Bureau of Investigation; (2) an audit and evaluation of programs and processes of the Federal Bureau of Investigation to identify systemic weaknesses or implementation failures and to recommend corrective action; (3) a review of the activities of internal affairs offices of the Federal Bureau of Investigation, including the Inspections Division and the Office of Professional Responsibility; (4) an investigation of allegations of serious misconduct by personnel of the Federal Bureau of Investigation; (5) a review of matters relating to any other program or operation of the Federal Bureau of Investigation that the Inspector General determines requires review; and (6) an identification of resources needed by the Inspector General to implement a plan for oversight of the Federal Bureau of Investigation. (c) Report on Inspector General for Federal Bureau of Investigation.--Not later than 90 days after the date of enactment of this Act, the Attorney General shall submit a report and recommendation to the Chairman and ranking member of the Committees on the Judiciary of the Senate and the House of Representatives concerning whether there should be established, within the Department of Justice, a separate office of the Inspector General for the Federal Bureau of Investigation that shall be responsible for supervising independent oversight of programs and operations of the Federal Bureau of Investigation. TITLE II--WHISTLEBLOWER PROTECTION SEC. 201. INCREASING PROTECTIONS FOR FBI WHISTLEBLOWERS. Section 2303 of title 5, United States Code, is amended to read as follows: "Sec. 2303. Prohibited personnel practices in the Federal Bureau of Investigation "(a) Definition.--In this section, the term `personnel action' means any action described in clauses (i) through (x) of section 2302(a)(2)(A). "(b) Prohibited Practices.--Any employee of the Federal Bureau of Investigation who has the authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to any employee of the Bureau or because of-- "(1) any disclosure of information by the employee to the Attorney General (or an employee designated by the Attorney General for such purpose), a supervisor of the employee, the Inspector General for the Department of Justice, or a Member of Congress that the employee reasonably believes evidences-- "(A) a violation of any law, rule, or regulation; or "(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or "(2) any disclosure of information by the employee to the Special Counsel of information that the employee reasonably believes evidences-- "(A) a violation of any law, rule, or regulation; or "(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs. "(c) Individual Right of Action.--Chapter 12 of this title shall apply to an employee of the Federal Bureau of Investigation who claims that a personnel action has been taken under this section against the employee as a reprisal for any disclosure of information described in subsection (b)(2). "(d) Regulations.--The Attorney General shall prescribe regulations to ensure that a personnel action under this section shall not [[Page S1356]] be taken against an employee of the Federal Bureau of Investigation as a reprisal for any disclosure of information described in subsection (b)(1), and shall provide for the enforcement of such regulations in a manner consistent with applicable provisions of sections 1214 and 1221, and in accordance with the procedures set forth in sections 554 through 557 and 701 through 706.". TITLE III--FBI SECURITY CAREER PROGRAM SEC. 301. SECURITY MANAGEMENT POLICIES. The Attorney General shall establish policies and procedures for the effective management (including accession, education, training, and career development) of persons serving in security positions in the Federal Bureau of Investigation. SEC. 302. DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION. (a) In General.--Subject to the authority, direction, and control of the Attorney General, the Director of the Federal Bureau of Investigation (referred to in this title as the "Director") shall carry out all powers, functions, and duties of the Attorney General with respect to the security workforce in the Federal Bureau of Investigation. (b) Policy Implementation.--The Director shall ensure that the policies of the Attorney General established in accordance with this Act are implemented throughout the Federal Bureau of Investigation. SEC. 303. DIRECTOR OF SECURITY. The Director shall appoint a Director of Security, or such other title as the Director may determine, to assist the Director in the performance of the duties of the Director under this Act. SEC. 304. SECURITY CAREER PROGRAM BOARDS. (a) Establishment.--The Director acting through the Director of Security shall establish a security career program board to advise the Director in managing the hiring, training, education, and career development of personnel in the security workforce of the Federal Bureau of Investigation. (b) Composition of Board.--The security career program board shall include-- (1) the Director of Security (or a representative of the Director of Security); (2) the senior officials, as designated by the Director, with responsibility for personnel management; (3) the senior officials, as designated by the Director, with responsibility for information management; (4) the senior officials, as designated by the Director, with responsibility for training and career development in the various security disciplines; and (5) such other senior officials for the intelligence community as the Director may designate. (c) Chairperson.--The Director of Security (or a representative of the Director of Security) shall be the chairperson of the board. (d) Subordinate Boards.--The Director of Security may establish a subordinate board structure to which functions of the security career program board may be delegated. SEC. 305. DESIGNATION OF SECURITY POSITIONS. (a) Designation.--The Director shall designate, by regulation, those positions in the Federal Bureau of Investigation that are security positions for purposes of this Act. (b) Required Positions.--In designating security positions under subsection (a), the Director shall include, at a minimum, all security-related positions in the areas of-- (1) personnel security and access control; (2) information systems security and information assurance; (3) physical security and technical surveillance countermeasures; (4) operational, program, and industrial security; and (5) information security and classification management. SEC. 306. CAREER DEVELOPMENT. (a) Career Paths.--The Director shall ensure that appropriate career paths for personnel who wish to pursue careers in security are identified in terms of the education, training, experience, and assignments necessary for career progression to the most senior security positions and shall make available published information on those career paths. (b) Limitation on Preference for Special Agents.-- (1) In general.--Except as provided in the policy established under paragraph (2), the Attorney General shall ensure that no requirement or preference for a Special Agent of the Federal Bureau of Investigation (referred to in this title as a "Special Agent") is used in the consideration of persons for security positions. (2) Policy.--The Attorney General shall establish a policy that permits a particular security position to be specified as available only to Special Agents, if a determination is made, under criteria specified in the policy, that a Special Agent-- (A) is required for that position by law; (B) is essential for performance of the duties of the position; or (C) is necessary for another compelling reason. (3) Report.--Not later than December 15 of each year, the Director shall submit to the Attorney General a report that lists-- (A) each security position that is restricted to Special Agents under the policy established under paragraph (2); and (B) the recommendation of the Director as to whether each restricted security position should remain restricted. (c) Opportunities To Qualify.--The Attorney General shall ensure that all personnel, including Special Agents, are provided the opportunity to acquire the education, training, and experience necessary to qualify for senior security positions. (d) Best Qualified.--The Attorney General shall ensure that the policies established under this Act are designed to provide for the selection of the best qualified individual for a position, consistent with other applicable law. (e) Assignments Policy.--The Attorney General shall establish a policy for assigning Special Agents to security positions that provides for a balance between-- (1) the need for personnel to serve in career enhancing positions; and (2) the need for requiring service in each such position for sufficient time to provide the stability necessary to carry out effectively the duties of the position and to allow for the establishment of responsibility and accountability for actions taken in the position. (f) Length of Assignment.--In implementing the policy established under subsection (b)(2), the Director shall provide, as appropriate, for longer lengths of assignments to security positions than assignments to other positions. (g) Performance Appraisals.--The Director shall provide an opportunity for review and inclusion of any comments on any appraisal of the performance of a person serving in a security position by a person serving in a security position in the same security career field. (h) Balanced Workforce Policy.--In the development of security workforce policies under this Act with respect to any employees or applicants for employment, the Attorney General shall, consistent with the merit system principles set out in paragraphs (1) and (2) of section 2301(b) of title 5, take into consideration the need to maintain a balanced workforce in which women and members of racial and ethnic minority groups are appropriately represented in Government service. SEC. 307. GENERAL EDUCATION, TRAINING, AND EXPERIENCE REQUIREMENTS. (a) In General.--The Director shall establish education, training, and experience requirements for each security position, based on the level of complexity of duties carried out in the position. (b) Qualification Requirements.--Before being assigned to a position as a program manager or deputy program manager of a significant security program, a person-- (1) must have completed a security program management course that is accredited by the Intelligence Community- Department of Defense Joint Security Training Consortium or is determined to be comparable by the Director; and (2) must have not less than 6 years experience in security, of which not less than 2 years were performed in a similar program office or organization. SEC. 308. EDUCATION AND TRAINING PROGRAMS. (a) In General.--The Director, in consultation with the Director of Central Intelligence and the Secretary of Defense, shall establish and implement education and training programs for persons serving in security positions in the Federal Bureau of Investigation. (b) Other Programs.--The Director shall ensure that programs established under subsection (a) are established and implemented, to the maximum extent practicable, uniformly with the programs of the Intelligence Community and the Department of Defense. SEC. 309. OFFICE OF PERSONNEL MANAGEMENT APPROVAL. (a) In General.--The Attorney General shall submit any requirement that is established under section 307 to the Director of the Office of Personnel Management for approval. (b) Final Approval.--If the Director does not disapprove the requirements established under section 307 within 30 days after the date on which the Director receives the requirement, the requirement is deemed to be approved by the Director of the Office of Personnel Management. TITLE IV--FBI COUNTERINTELLIGENCE POLYGRAPH PROGRAM SEC. 401. DEFINITIONS. In this title: (1) Polygraph Program.--The term "polygraph program" means the counterintelligence screening polygraph program established under section 402. (2) Polygraph Review.--The term "Polygraph Review" means the review of the scientific validity of the polygraph for counterintelligence screening purposes conducted by the Committee to Review the Scientific Evidence on the Polygraph of the National Academy of Sciences. SEC. 402. ESTABLISHMENT OF PROGRAM. Not later than 6 months after publication of the results of the Polygraph Review, the Attorney General, in consultation with the Director of the Federal Bureau of Investigation and the Director of Security of the Federal Bureau of Investigation, shall establish a counterintelligence screening polygraph program for the Federal Bureau of Investigation that consists of periodic polygraph examinations of employees, or contractor employees of the Federal Bureau of Investigation who are in positions specified by the Director of the Federal Bureau of Investigation as exceptionally sensitive in order to minimize the potential for unauthorized release or disclosure of exceptionally sensitive information.
[[Page S1357]] SEC. 403. REGULATIONS. (a) In General.--The Attorney General shall prescribe regulations for the polygraph program in accordance with subchapter II of chapter 5 of title 5, United States Code (commonly referred to as the Administrative Procedures Act). (b) Considerations.--In prescribing regulations under subsection (a), the Attorney General shall-- (1) take into account the results of the Polygraph Review; and (2) include procedures for-- (A) identifying and addressing false positive results of polygraph examinations; (B) ensuring that adverse personnel actions are not taken against an individual solely by reason of the physiological reaction of the individual to a question in a polygraph examination, unless-- (i) reasonable efforts are first made independently to determine through alternative means, the veracity of the response of the individual to the question; and (ii) the Director of the Federal Bureau of Investigation determines personally that the personnel action is justified; (C) ensuring quality assurance and quality control in accordance with any guidance provided by the Department of Defense Polygraph Institute and the Director of Central Intelligence; and (D) allowing any employee or contractor who is the subject of a counterintelligence screening polygraph examination under the polygraph program, upon written request, to have prompt access to any unclassified reports regarding an examination that relates to any adverse personnel action taken with respect to the individual. SEC. 404. REPORT ON FURTHER ENHANCEMENT OF FBI PERSONNEL SECURITY PROGRAM. (a) In General.--Not later than 9 months after the date of enactment of this Act, the Director of the Federal Bureau of Investigation shall submit to Congress a report setting forth recommendations for any legislative action that the Director considers appropriate in order to enhance the personnel security program of the Federal Bureau of Investigation. (b) Polygraph Review Results.--Any recommendation under subsection (a) regarding the use of polygraphs shall take into account the results of the Polygraph Review. TITLE V--FBI POLICE SEC. 501. DEFINITIONS. In this title: (1) Director.--The term "Director" means the Director of the Federal Bureau of Investigation. (2) FBI buildings and grounds.-- (A) In general.--The term "FBI buildings and grounds" means-- (i) the whole or any part of any building or structure which is occupied under a lease or otherwise by the Federal Bureau of Investigation and is subject to supervision and control by the Federal Bureau of Investigation; (ii) the land upon which there is situated any building or structure which is occupied wholly by the Federal Bureau of Investigation; and (iii) any enclosed passageway connecting 2 or more buildings or structures occupied in whole or in part by the Federal Bureau of Investigation. (B) Inclusion.--The term "FBI buildings and grounds" includes adjacent streets and sidewalks not to exceed 500 feet from such property. (3) FBI police.--The term "FBI police" means the permanent police force established under section 502. SEC. 502. ESTABLISHMENT OF FBI POLICE; DUTIES. (a) In General.--Subject to the supervision of the Attorney General, the Director may establish a permanent police force, to be known as the FBI police. (b) Duties.--The FBI police shall perform such duties as the Director may prescribe in connection with the protection of persons and property within FBI buildings and grounds. (c) Uniformed Representative.--The Director, or designated representative duly authorized by the Attorney General, may appoint uniformed representatives of the Federal Bureau of Investigation as FBI police for duty in connection with the policing of all FBI buildings and grounds. (d) Authority.-- (1) In general.--In accordance with regulations prescribed by the Director and approved by the Attorney General, the FBI police may-- (A) police the FBI buildings and grounds for the purpose of protecting persons and property; (B) in the performance of duties necessary for carrying out subparagraph (A), make arrests and otherwise enforce the laws of the United States, including the laws of the District of Columbia; (C) carry firearms as may be required for the performance of duties; (D) prevent breaches of the peace and suppress affrays and unlawful assemblies; and (E) hold the same powers as sheriffs and constables when policing FBI buildings and grounds. (2) Exception.--The authority and policing powers of FBI police under this subsection shall not include the service of civil process. (e) Pay and Benefits.-- (1) In general.--The rates of basic pay, salary schedule, pay provisions, and benefits for members of the FBI police shall be equivalent to the rates of basic pay, salary schedule, pay provisions, and benefits applicable to members of the United States Secret Service Uniformed Division. (2) Application.--Pay and benefits for the FBI police under paragraph (1)-- (A) shall be established by regulation; (B) shall apply with respect to pay periods beginning after January 1, 2003; and (C) shall not result in any decrease in the rates of pay or benefits of any individual. SEC. 503. AUTHORITY OF METROPOLITAN POLICE FORCE. This title does not affect the authority of the Metropolitan Police Force of the District of Columbia with respect to FBI buildings and grounds. TITLE VI--REPORTS SEC. 601. REPORT ON LEGAL AUTHORITY FOR FBI PROGRAMS AND ACTIVITIES. (a) In General.--Not later than December 31, 2002, the Attorney General shall submit to Congress a report describing the statutory and other legal authority for all programs and activities of the Federal Bureau of Investigation. (b) Contents.--The report submitted under subsection (a) shall describe-- (1) the titles within the United States Code and the statutes for which the Federal Bureau of Investigation exercises investigative responsibility; (2) each program or activity of the Federal Bureau of Investigation that has express statutory authority and the statute which provides that authority; and (3) each program or activity of the Federal Bureau of Investigation that does not have express statutory authority, and the source of the legal authority for that program or activity. (c) Recommendations.--The report submitted under subsection (a) shall recommend whether-- (1) the Federal Bureau of Investigation should continue to have investigative responsibility for each statute for which the Federal Bureau of Investigation currently has investigative responsibility; (2) the legal authority for any program or activity of the Federal Bureau of Investigation should be modified or repealed; (3) the Federal Bureau of Investigation should have express statutory authority for any program or activity of the Federal Bureau of Investigation for which the Federal Bureau of Investigation does not currently have express statutory authority; and (4) the Federal Bureau of Investigation should-- (A) have authority for any new program or activity; and (B) express statutory authority with respect to any new programs or activities. SEC. 602. REPORT ON FBI INFORMATION MANAGEMENT AND TECHNOLOGY. (a) In General.--Not later than December 31, 2002, the Attorney General shall submit to Congress a report on the information management and technology programs of the Federal Bureau of Investigation including recommendations for any legislation that may be necessary to enhance the effectiveness of those programs. (b) Contents of Report.--The report submitted under subsection (a) shall provide-- (1) an analysis and evaluation of whether authority for waiver of any provision of procurement law (including any regulation implementing such a law) is necessary to expeditiously and cost-effectively acquire information technology to meet the unique need of the Federal Bureau of Investigation to improve its investigative operations in order to respond better to national law enforcement, intelligence, and counterintelligence requirements; (2) the results of the studies and audits conducted by the Strategic Management Council and the Inspector General of the Department of Justice to evaluate the information management and technology programs of the Federal Bureau of Investigation, including systems, policies, procedures, practices, and operations; and (3) a plan for improving the information management and technology programs of the Federal Bureau of Investigation. (c) Results.--The results provided under subsection (b)(2) shall include an evaluation of-- (1) information technology procedures and practices regarding procurement, training, and systems maintenance; (2) record keeping policies, procedures, and practices of the Federal Bureau of Investigation, focusing particularly on how information is inputted, stored, managed, utilized, and shared within the Federal Bureau of Investigation; (3) how information in a given database is related or compared to, or integrated with, information in other technology databases within the Federal Bureau of Investigation; (4) the effectiveness of the existing information technology infrastructure of the Federal Bureau of Investigation in supporting and accomplishing the overall mission of the Federal Bureau of Investigation; (5) the management of information technology projects of the Federal Bureau of Investigation, focusing on how the Federal Bureau of Investigation-- (A) selects its information technology projects; (B) ensures that projects under development deliver benefits; and (C) ensures that completed projects deliver the expected results; and [[Page S1358]] (6) the security and access control techniques for classified and sensitive but unclassified information systems in the Federal Bureau of Investigation. (d) Contents of Plan.--The plan provided under subsection (b)(3) shall ensure that-- (1) appropriate key technology management positions in the Federal Bureau of Investigation are filled by personnel with experience in the commercial sector; (2) access to the most sensitive information is audited in such a manner that suspicious activity is subject to near contemporaneous security review; (3) critical information systems employ a public key infrastructure to validate both users and recipients of messages or records; (4) security features are tested by the National Security Agency to meet national information systems security standards; (5) all employees in the Federal Bureau of Investigation receive annual instruction in records and information management policies and procedures relevant to their positions; (6) a reserve is established for research and development to guide strategic information management and technology investment decisions; (7) unnecessary administrative requirements for software purchases under $2,000,000 are eliminated; (8) full consideration is given to contacting with an expert technology partner to provide technical support for the information technology procurement for the Federal Bureau of Investigation; (9) procedures are instituted to procure products and services through contracts of other agencies, as necessary; and (10) a systems integration and test center, with the participation of field personnel, tests each series of information systems upgrades or application changes before their operational deployment to confirm that they meet proper requirements. SEC. 603. GAO REPORT ON CRIME STATISTICS REPORTING. (a) In General.--Not later than 9 months after the date of enactment of this Act, the Comptroller General of the United States shall submit to the Committees on the Judiciary of the Senate and the House of Representatives a report on the issue of how statistics are reported and used by Federal law enforcement agencies. (b) Contents.--The report submitted under subsection (a) shall-- (1) identify the current regulations, procedures, internal policies, or other conditions that allow the investigation or arrest of an individual to be claimed or reported by more than 1 Federal or State agency charged with law enforcement responsibility; (2) identify and examine the conditions that allow the investigation or arrest of an individual to be claimed or reported by the Offices of Inspectors General and any other Federal agency charged with law enforcement responsibility; (3) examine the statistics reported by Federal law enforcement agencies, and document those instances in which more than 1 agency, bureau, or office claimed or reported the same investigation or arrest during the years 1998 through 2001; (4) examine the issue of Federal agencies simultaneously claiming arrest credit for in-custody situations that have already occurred pursuant to a State or local agency arrest situation during the years 1998 through 2001; (5) examine the issue of how such statistics are used for administrative and management purposes; (6) set forth a comprehensive definition of the terms "investigation" and "arrest" as those terms apply to Federal agencies charged with law enforcement responsibilities; and (7) include recommendations, that when implemented, would eliminate unwarranted and duplicative reporting of investigation and arrest statistics by all Federal agencies charged with law enforcement responsibilities. (c) Federal Agency Compliance.--Federal law enforcement agencies shall comply with requests made by the General Accounting Office for information that is necessary to assist in preparing the report required by this section. TITLE VII--MISCELLANEOUS PROVISIONS SEC. 701. ALLOWING DISCIPLINARY SUSPENSIONS OF MEMBERS OF THE SENIOR EXECUTIVE SERVICE FOR 14 DAYS OR LESS. Section 7542 of title 5, United States Code, is amended by striking "for more than 14 days". ____ S. 1974--Section-by-Section Analysis title i Title I of this bill provides for improved Department of Justice and Congressional oversight of the FBI by ensuring that the Department of Justice Office of the Inspector General, "OIG", is authorized to investigate allegations of misconduct at the FBI and requiring a report to the Judiciary Committees on how the OIG carries out this new authority. This title is consistent with provisions in the DOJ Authorization Act, S. 1319/H.R. 2215, which have passed the Senate by unanimous consent. Section 101. Authority of Department of Justice Inspector General This section would amend Section 8E of the Inspector General Act of 1978 (5 U.S.C. App.) to provide explicit statutory authority for the OIG to investigate all allegations of criminal or administrative misconduct by DOJ employees, including FBI personnel. The OIG is also authorized to refer certain matters to the FBI Office of Professional Responsibility or to the internal affairs office of the appropriate component of the Department. The Attorney General is directed to promulgate regulations implementing this OIG authority. For many years, the FBI was excluded from OIG jurisdiction and the FBI's own internal Office of Professional Responsibility had sole authority to investigate FBI personnel misconduct, unless the Attorney General made an exception. The FBI's exclusive domain to investigate its own misconduct was unique in the Department and created the appearance of a conflict of interest. On July 11, 2001, Attorney General Ashcroft issued a new rule expanding the OIG's jurisdiction over the FBI. This section is consistent with, and codifies, the Attorney General's new rule. Section 102. Review of the Department of Justice To ensure that the OIG has the necessary structure and resources to effectively assume its new jurisdiction over the FBI and that the Congress is fully informed of such needs, this subsection requires the Inspector General to: 1. appoint an official to help supervise and coordinate oversight operations and programs of the FBI during the transition period; 2. conduct a comprehensive study of the FBI and report back to the Judiciary Committees with a plan for auditing and evaluating various parts of FBI, including information technology, and for effective continued OIG oversight; and 3. report back to the Judiciary Committee on whether an Inspector General for the FBI should be established. title ii This title of the bill amends Title 5, U.S.C. Sec. 2303, to enhance the whistle blower protection provided to FBI employees and protect them from retaliation. Section 201. Providing whistle blower protection for FBI employees Section 2303 of title 5, United States Code, is amended to expand the types of disclosures that trigger whistle blower protections by protecting disclosures, which the employee "reasonably believes" evidences misconduct, to the OIG, the Congress, a supervisor of the employee, or the Special Counsel (an office of the Merit Systems Protection Board, "MSPB", provided for by 5 U.S.C. Sec. 1214). The amendment would also ensure that the procedural protections of the Administrative Procedure Act, including but not limited to 5 U.S.C. sections 554-57 and 701-706, would be followed in cases where a complaint of retaliation was made by an FBI employee. These procedural protections include, among other things, an impartial decision maker and decision based on the "record" of any proceedings without ex parte contacts and judicial review as provided. Current laws and regulations which allow for the protection of classified material would also be available for such proceedings in appropriate situations. The amendment, in new subsection (c), provides an individual right of action as provided under Chapter 12 of Title 5 before the MSPB. The amendment, in new subsection (d), requires the Attorney General to prescribe regulations to ensure that the title is enforced at the FBI. title iii Title III requires the FBI to establish a career security program to enhance the internal security of the FBI and ensure that appropriate management tools and resources are devoted to that task. Security professional career development requirements would be modeled generally on the statutory Department of Defense Acquisition Career Program. Sections 301-305. Establishing and defining career security program Section 301 requires the Attorney General to establish policies and procedures for career management of FBI security personnel. Section 302 authorizes the Attorney General to delegate to the FBI Director the Attorney General's duties with respect to the FBI security workforce. Section 303 directs the FBI Director to appoint a Security Director, who, under Section 304, would chair a security career program board to advise in managing hiring, training, education, and career development. Section 305 directs the FBI Director to designate certain positions as security positions, with responsibility for personnel security and access control, information systems security, information assurance, physical security, technical surveillance countermeasures, operational, program and industrial security, and information security and classification management. Sections 306-309. Career development and training Section 306 requires that career paths to senior positions would be published. FBI Special Agents would not have preference for a security position, and no positions would be restricted to Special Agents unless the Attorney General makes a special determination. All FBI personnel would have the opportunity to acquire the education, training and experience needed for senior security positions. The Attorney General would ensure that policies are designed to select the best qualified individuals, consistent with other applicable law. Consideration would also be given to the need for a balanced workforce. Section 307 would direct that education, training, and experience requirements would be established for each position. Before assignment as manager or deputy manager of a [[Page S1359]] significant security program, a person would have to complete a security program management course accredited by the Joint DoD-Intelligence Security Training Consortium or determined to be comparable by the Director, and have 6 years security experience including 2 years in a similar program. Section 308 directs the Director, in consultation with the DCI and Secretary of Defense, to establish education and training programs for FBI security personnel that are, to the maximum extent practical, uniform with Intelligence and DoD programs. Section 309 sets forth the process for approval of requirements set forth under section 307. title iv This title would require the Attorney General to establish an FBI Counterintelligence Polygraph Program for personnel in exceptionally sensitive positions that reflects the results of a pending National Academy of Sciences review of the validity of the polygraph, within 6 months after publication of that review. The regulations would be prescribed in accordance with the Administrative Procedures Act. A similar requirement for the Department of Energy was passed in the latest Defense Authorization Act. Sections 401-404. Definitions, establishment of program, regulations, report Section 402 requires the establishment of a counterintelligence screening polygraph program consisting of periodic polygraph examinations of employees and contractors with access to sensitive compartmented information, special access program information, on restricted data. This program shall be established within 6 months of the publication of the results of the report of the Committee to Review the Scientific Evidence on the Polygraph of the National Academy of Sciences. Section 403 directs that the program have procedures that address "false positive" results and ensure quality assurance and control in accordance with guidance from the DoD Polygraph Institute and the DCI. No adverse personnel action could be taken solely by reason of physiological reactions on an exam without further investigation and personal decision by the Director. Employees could have prompt access to unclassified reports on their exams that relate to adverse personnel action. Section 404 requires a report within 9 months of the enactment of the Act on any further legislative action appropriate in the personnel security area. title v This title provides statutory authorization for an already existing FBI police force that protects FBI buildings and adjacent streets. Currently, the FBI police suffers from a high rate of turnover due to lower pay and fewer benefits than the Uniformed Division of Secret Service or Capitol and Supreme Court police. This title would close the disparity. Sections 501-503. Definitions; establishment; authority of metropolitan police Section 501 defines the terms "Director," "FBI buildings and grounds," and "FBI police" as used in the title. Section 502 authorizes the FBI Director to establish the FBI police, subject to the Attorney General's supervision, to protect persons and property within FBI buildings and grounds, including adjacent streets and sidewalks within 500 feet. FBI buildings and grounds would include any building occupied by the FBI and subject to FBI supervision and control, the land on which such building is situated, and enclosed passageways connecting such buildings. FBI police would be uniformed representatives of the FBI with authority to make arrests and otherwise enforce federal and D.C. laws, carry firearms, prevent breaches of the peace, suppress unlawful affrays and unlawful assemblies, and hold the same powers as sheriffs and constables. FBI police would not have authority to serve civil process. Pay and benefits would be equivalent to pay and benefits for the Secret Service Uniformed Division. Section 503 provides that the authority of the Washington, D.C. Metropolitan Police would not be affected by this title. title vi This title requires two separate reports by the Attorney General and one by the General Accounting Office. Section 601. FBI authority and mission Section 601 requires the Attorney General to submit a report to Congress on the legal authority for FBI programs and activities, identifying those that have express statutory authority and those that do not. The FBI does not have a statutory charter. One was proposed in 1979 but never enacted. Many FBI functions including its national intelligence and counterintelligence activities are authorized by Executive order rather than by statute. This section also requires the Attorney General to recommend the criminal statutes for which the FBI should have investigative responsibility, whether the authority for any FBI program or activity should be modified or repealed, whether the FBI should have express statutory authority for any program or activity for which it does not currently have such authority, and whether the FBI should have authority for any new program or activity. Section 602. FBI information management Section 602 requires the Attorney General to submit a report on FBI information management and technology, including whether the authority is needed to waive normal procurement regulations. The report would provide the results of pending Justice Management Council studies and Inspector General audits and submitting a 10-point plan for improving FBI information management and technology to ensure that 1. appropriate FBI technology management positions are filled by personnel with commercial sector experience, 2. access to the most sensitive information is audited so that suspicious activity is subject to near contemporaneous review, 3. critical information systems employ a public key infrastructure, 4. security features are tested by the National Security Agency, 5. FBI employees receive annual instruction in records and information management, 6. a research and development reserve is established, 7. undue requirements for less costly software purchases are eliminated, 8. contracting with an expert technology partner is considered, 9. procedures are instituted to procure through contracts of other agencies as necessary, and 10. system upgrades are tested before operational deployment. Section 603. GAO report on crime statistics reporting Section 603 requires the General Accounting Office to report on how crime statistics are reported and used by Federal law enforcement agencies. Specifically, the report would identify policies that allow a case to be claimed or reported by more than one law enforcement agency, the conditions that allow such reporting to occur, the number of such cases reported during a 4-year period, similar multiple claims of credit for arrests, the use of such statistics for administrative and management purposes, and relevant definitions. The report would include recommendations for how to eliminate unwarranted and duplicative reporting. Federal law enforcement agencies would be required to comply with GAO requests for information necessary to prepare the report. title vii This title would address the issue of the "double standard" in the FBI, to prevent lower level employees from being more harshly disciplined than senior FBI officials. Section 7542 of title 5, United States Code, would be amended to allow disciplinary suspensions of SES members for 14 days or less, as is the case for other federal personnel. Current law provides only for suspension "for more than 14 days." Section 702. Allowing disciplinary suspensions of members of the senior executive service for 14 days or less This section would lift the minimum of 14 days suspension that applies in the FBI's SES disciplinary cases and thereby provide additional options for discipline in SES cases and encourage equality of treatment. The current inflexibility of disciplinary options applicable to SES officials was cited at a Senate Judiciary Committee oversight hearing in July, 2001, as one underlying reason for the "double standard" in FBI discipline. In effect, those deciding the discipline of SES employees are often left with the choice of an overly harsh penalty or no penalty at all--so they decide not to impose any meaningful disciplinary action. Mr. GRASSLEY. Madam President, I am pleased to introduce with Senator Leahy a bill to reform the FBI. For almost a decade I have been engaged in FBI oversight and during that time I have seen numerous scandals and coverups. While Director Mueller is working to address these problems, Congress also has a role to play in the overhaul of the FBI. The FBI reform bill is designed to address the accountability problems that have plagued the FBI for years. The bill expands the Department of Justice Inspector General's jurisdiction, protects FBI whistleblowers, creates an FBI Security Career program and a Counterintelligence Polygraph program, enhances the FBI police force, and mandates various reports by the Attorney General. I have advocated some of these measures, particularly those dealing with protecting whistleblowers and expanding the jurisdiction of the DOJ Inspector General's Office to include the FBI. Let me provide some more detail about the most important provisions in the bill. In the past the FBI's own internal Office of Professional Responsibility was tasked with the sole authority to investigate the misconduct of FBI personnel. Clearly this constitutes a conflict of interest. In fact, no other area of the Department of Justice maintains this type of accountability system. Last summer, Attorney General Ashcroft issued an order which changed that situation by expanding the jurisdiction of the Department of Justice Office of Inspector General to encompass both the FBI and the DEA. Specifically, the order gave the DOJ Inspector General primary jurisdiction over allegations of misconduct against employees of the FBI and DEA. Previously, the Inspector General could not initiate an investigation within the FBI or the DEA, without receiving permission from the Deputy Attorney General. I commended Attorney General Ashcroft's order because I had been saying for many years that the FBI should not be allowed to police [[Page S1360]] itself. I was encouraged that the establishment of a free and independent oversight entity would have a beneficial impact on the FBI's management culture. The bill codifies the Attorney General's order making it a permanent fixture in the plan to reform the FBI. Specifically, the bill provides statutory authority for the DOJ Office of Inspector General to investigate all allegations of criminal and administrative misconduct by DOJ employees, including those in the FBI and the DEA. However, it does not abolish the FBI's Office of Professional Responsibility, OPR, but rather gives the DOJ Inspector General discretion to refer certain investigations to the FBI OPR. Because the FBI OPR is particularly good at investigating certain types of low level offenses, it is good that the Inspector General will have this discretion. The bill also contains much needed protections for FBI whistleblowers. As many of you know, I believe that good government requires that the brave men and women who blow the whistle on wrongdoing be protected. I have been an active champion of the rights of federal whistleblowers since 1983. This is because of my strong belief that disclosures of wrongdoing by whistleblowers are an integral part of our system of checks and balances. Whistleblowers ensure that waste, fraud, and abuse are brought to light. Whistleblowers play a critical role in ensuring that public health and safety problems are exposed. I truly believe that reform at the FBI will only occur when FBI employees feel free to blow the whistle on wrongdoing. Since the FBI was excluded from the Whistleblower Protection Act I have been concerned about the retaliation that is often perpetrated against whistleblowers at the FBI, such as Dr. Fred Whitehurst, who speak out about abuses and problems with the system. So, the bill gives FBI whistleblowers the same rights and protections that other Federal employees currently possess. When FBI employees are retaliated against for blowing the whistle, they can avail themselves of all the protections afforded them by the Whistleblower Protection Act. Since the FBI has made the fight against terrorism its top priority, many would be FBI whistleblowers may blow the whistle on wrongdoing that involves national security issues. Because of the need to keep that information secure, the bill directs the Attorney General to formulate regulations to provide specific protections for these employees consistent with the relevant portions of the WPA and the Administrative Procedures Act. Our FBI reform bill addresses several other issues that contribute to the FBI's culture of arrogance. I have believed for a long time that one of the biggest contributors to this culture is the cumbersome and unwieldy jurisdiction of the FBI. The Bureau currently investigates over 300 different federal offenses, which are divided between violent crime, white collar crime, organized crime, drugs, national security, and civil rights. Contained within these areas are numerous instances of concurrent or overlapping jurisdiction with other Federal law enforcement agencies. Despite having what many would describe as an already overburdened array of jurisdiction, the FBI has established a campaign of jurisdictional encroachment. This "Pacman" philosophy of the Bureau's past has only served to feed the culture of arrogance. I pointed this problem out to the DOJ and was pleased to hear of the Attorney General and the FBI Director's intention to put a stop to that "Pacman" mentality and limit the FBI's investigatory scope. But, this will be a complex issue. Just as Congress has been complicit in the FBI's expansion, we will need to be involved in the divestiture. The Department of Justice's Strategic Plan states that the FBI will focus on building and maintaining its utmost capacity to detect, deter, counter, and prevent terrorist activity. The plan also encourages the FBI to promote and, when available, use new legislation and authorities to conduct investigations of terrorist incidents. It is ironic that in light of this, the FBI continues to view many violations that it has traditionally investigated as being of strategic importance. Why are environmental crimes, health care fraud, bank robbery, telemarketing and financial institution fraud, computer intrusions, intellectual property crimes, and credit card fraud still viewed by the FBI as of strategic importance? I understand that terrorism investigations could potentially involve any one, or a number, of the above violations, but there are many other Federal regulatory and investigative agencies that have established historic expertise in these same program areas. In its reorganization, the FBI needs to scale back on some of its law enforcement activities which are duplicated by other Federal and state agencies. The Bureau needs to completely jettison some of these areas, but in other areas the Bureau could simply take a secondary role, allowing another agency to take the lead. It is my hope that by scaling back on certain FBI investigative activities, the FBI will send a positive signal in dealing with its counterparts in state, local, and federal government. To assist in cutting back on the FBI's jurisdiction, the bill directs the Attorney General to report to Congress on the legal authority for FBI programs and activities, identifying those that have express statutory authority and those that don't. The bill also requires the Attorney General to recommend what criminal statutes he believes the FBI should have investigative responsibility for. This report will help Congress, as we continue to address the FBI's culture of arrogance. Another issue that contributes to the FBI's culture of arrogance is the collection, use, and reporting of crime statistics. It is often the case in Federal law enforcement that several agencies will claim credit for a single arrest. This double and triple counting of arrests leads to an inflation of statistics that often misrepresents the actual work load of the various agencies. This is a problem because these statistics are used by federal law enforcement agencies, including the FBI, to justify increases in their funding. To get a handle on the exact nature and extent of this problem, our bill directs the GAO to conduct a review of how crime and investigation statistics are reported and used by Federal law enforcement agencies. This report will assist us in future legislation on this issue. There are many more reforms contained in our FBI reform bill, but there is just one more that I want to focus on today. This reform is a change in the way employees of the Senior Executive Service are punished. Last summer, four exceptional and courageous FBI agents alerted the Judiciary Committee to the fact that there exists a gross inequality in the way Senior Executive Service (SES) employees of the FBI and rank and file agents are disciplined. SES employees are given a slap on the wrist for their infractions, while the rank and file agents are often punished to the letter of the law. This issue was further exposed by a GAO report on the investigation of the Larry Potts Retirement Dinner scandal. That report reemphasized what had been reveled in the FBI Law Enforcement Ethics Unit's position paper, "FBI SES Accountability, a Higher Standard or a Double Standard." These two reports document the existence of a double standard. I was glad to see that former Director Freeh abolished the SES Review Board, but I'm not sure it was a sufficient change for a culture that has historically treated SES employees with kid gloves. So our FBI Reform bill attempts to address this problem by providing some flexibility in how SES employees can be punished. The Senate Judiciary Committee has heard repeatedly that this inflexibility is one of the main causes for the inequality in punishment at the FBI. Currently, the minimum suspension that SES employees can receive is 14 days, to the Bureau's management is often left with the choice of an overly harsh penalty or no penalty at all--so often they decide not to impose any meaningful disciplinary action. Specifically, our bill would lift the 14-day minimum suspension for SES disciplinary cases to provide for additional options in disciplining senior executive employees. Hopefully, this change will help to remedy this double standard. [[Page S1361]] In conclusion, I urge my colleagues to support this bill to foster reform in the FBI. The Bureau is crucial in the war on terrorism. Let's fix the problems we have helped to create, so that the FBI can again be he best at what it does. ______