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Statement of Glenn A. Fine, Inspector General, U.S. Department of Justice, before the Senate Committee on the Judiciary concerning “Oversight of the Federal Bureau of Investigation”

Testimony of

Glenn A. Fine Inspector General U.S. Department of Justice

before the

Senate Committee on the Judiciary

June 20, 2001

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

I appreciate the opportunity to appear before the Committee this afternoon to discuss the work of the Office of the Inspector General (OIG) in the Department of Justice (Department) and, in particular, our oversight work in the Federal Bureau of Investigation (FBI).

I have worked in the OIG in a variety of capacities since 1995. I first served as the OIG's Special Investigative Counsel. In 1996, I was appointed by Inspector General Michael Bromwich to be the director of the OIG unit primarily responsible for conducting special investigations, several of which involved important FBI programs. In May 2000, I was nominated to be Inspector General for the Department. In August 2000, I was named Acting Inspector General and in December 2000 the Senate confirmed me as Inspector General. Prior to my work at the OIG, I served as an Assistant U.S. Attorney in the District of Columbia and as an attorney in private practice.

  1. Overview of the Office of the Inspector General

    The OIG was established by the Inspector General Act (IG Act) Amendments of 1988, a decade after Inspectors General were created for many other federal Executive Branch agencies. The OIG began operating on April 14, 1989. The OIG is an independent entity within the Department that by statute reports to both the Attorney General and Congress on issues that affect the Department's personnel or mission. It is charged with detecting and deterring waste, fraud, abuse, and misconduct among Department employees and its programs, and also promoting integrity, economy, efficiency, and effectiveness in its operations.

    The OIG carries out this mission with a staff composed of investigators, auditors, inspectors, attorneys, and support staff. The OIG's workforce has been reduced from its peak of approximately 460 employees in 1998 to its current level of approximately 360 employees. The 140 members of our Investigations Division are assigned to one of 10 field offices or 7 smaller area offices across the country. The 140 members of our Audit Division serve in one of 7 field offices. In addition, an Evaluation and Inspections Division composed of approximately 20 program evaluators is located in Washington, D.C. We also have a separate unit in Washington, D.C. that combines the skills of attorneys, special agents, and program analysts. This unit, the Office of Oversight and Review, is comprised of approximately 12 employees, including 6 investigative attorneys. It is responsible for conducting many of the OIG's most sensitive and high-profile special investigations.

  2. Jurisdiction

    The IG Act and an Attorney General Order (AG Order) provide the OIG with jurisdiction to conduct or oversee misconduct investigations in most components of the Department, including the Immigration and Naturalization Service (INS), the U.S. Marshals Service (USMS), and the Federal Bureau of Prisons (BOP). When Congress created an Inspector General in the Department in 1988, it agreed to a compromise that merged several of the Department's then-existing audit and internal investigation units into the OIG.

    The compromise permitted the FBI and the Drug Enforcement Administration (DEA) to retain their separate Offices of Professional Responsibility (OPR) with authority to investigate misconduct matters involving their own employees. In addition, the Department's OPR (DOJ OPR) continued to exist outside of the OIG. (5 U.S.C. app. 3 §§ 8D(a)(3), 8D(h) and 9(a)(1)(I)) However, Congress gave the Attorney General the authority to readjust the jurisdiction of the OIG. (See § 9(a)(2) of the IG Act)

    In deference to the request of the Attorney General, the Senate recedes to the House with respect to not transferring the Department's Office of Professional Responsibility (OPR) into the OIG. In the future the Attorney General may determine that OPR and the other audit, internal investigation, and inspection units remaining outside the OIG should be consolidated in the OIG. Pursuant to section 9(a)(2) of the Inspector General Act, the Attorney General is authorized to effect the transfer of resources and functions necessary to achieve this consolidation.

    Inspector General Act, H.R. Rep. No. 1020, 100th Cong., 2d Sess. 24 (1988)

    Over the years, the question of the relative authority of the OIG, DOJ OPR, FBI OPR, and DEA OPR has been an issue within the Department. The ambiguity has resulted in two AG Orders addressing the jurisdiction of these offices, including the one currently in effect, AG Order 1931-94. While this Order clarified the respective authority of each office to investigate misconduct and generally resolved the jurisdictional issues between the OIG and DOJ OPR, it permitted the FBI and the DEA to retain primary oversight authority over misconduct allegations involving their employees.

    Under this Order, the OIG may undertake investigations in the FBI and the DEA only when the Attorney General or Deputy Attorney General specifically authorizes us to do so in a particular case. AG Order 1931-94 divides oversight responsibilities in the Department as follows:

    • The OIG has authority to investigate all allegations of employee misconduct in the Department and its components except when jurisdiction is specifically conferred on one of the other alternative entities: DOJ OPR, FBI OPR, or DEA OPR. The OIG can request authority from the Deputy Attorney General to take responsibility for an investigation from any of the OPRs.
    • DOJ OPR has authority to investigate allegations of misconduct involving DOJ attorneys (or investigators working under the direction of DOJ attorneys) acting in their capacity to litigate, investigate, or provide legal advice. For example, allegations that a federal prosecutor willfully failed to turn over exculpatory evidence to defense counsel would be investigated by DOJ OPR. On the other hand, if the prosecutor was alleged to have embezzled Department funds, this complaint would be investigated by the OIG.
    • FBI OPR has authority to investigate allegations of misconduct by FBI employees.
    • DEA OPR has authority to investigate allegations of misconduct by DEA employees.

    Under an agreement reached in 1996, the OIG receives limited case information on a monthly basis from FBI OPR and DEA OPR that identifies new allegations against their employees as well as the disposition of previously reported allegations.

  3. Examples of OIG Oversight of FBI Programs

    The following special reviews illustrate some of the OIG's investigations in the FBI within the past several years:

    • ALDRICH AMES: In April 1997, the OIG issued a lengthy classified report on our extensive review of the FBI's performance in uncovering the espionage activities of former Central Intelligence Agency (CIA) Directorate of Operations officer Aldrich Ames. We also issued a shorter, unclassified summary entitled "A Review of the FBI's Performance in Uncovering the Espionage Activities of Aldrich Hazen Ames." The review found that throughout nearly the entire 9-year period of Ames' espionage, the FBI devoted inadequate attention to determining the cause of the sudden, unprecedented, and catastrophic losses suffered by both the FBI and the CIA in their Soviet intelligence programs. The OIG is building on its extensive knowledge and the expansive collection of documents analyzed during this investigation to assist in our current review of the FBI's efforts to detect alleged FBI spy Robert Philip Hanssen. I will speak more about this ongoing investigation later in my testimony.
    • FBI LABORATORY: The OIG investigated a series of allegations, including allegations that improper practices distorted forensic conclusions from the FBI Laboratory. The OIG assembled an investigative team composed of attorneys, special agents, inspectors, and five internationally renowned scientists with experience in the operation of forensic laboratories. In April 1997, the OIG issued a 517-page report entitled "The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases." The report found deficient practices in several cases handled by the Laboratory, such as scientifically flawed testimony, testimony beyond examiners' expertise, improper preparation of Laboratory reports, insufficient documentation of test results, and an inadequate record management system in the Laboratory. Although our investigation exonerated most of the examiners whose actions we reviewed, we found serious deficiencies by several examiners. We recommended transferring specific examiners from the Laboratory and relieving others of supervisory duties. One year after issuing this report, the OIG conducted a follow-up review and found that the FBI had made significant progress toward implementing our recommendations, including moving toward accreditation for its Laboratory.
    • HANDLING OF INTELLIGENCE INFORMATION: In July 1999, the OIG completed a 576-page classified report detailing the results of an investigation into allegations that classified intelligence information pertaining to the Department's Campaign Finance Task Force investigation was not appropriately disseminated within the FBI and the Department. This report, entitled "The Handling of FBI Intelligence Information Related to the Justice Department's Campaign Finance Investigation," found that the Department's handling of classified information was hampered by a range of problems, including poor judgment by certain personnel, misapplication of Departmental policy, Departmental policy disputes, and problems in the use and maintenance of the FBI's computer database systems.
    • DEATH OF KENNETH TRENTADUE: In August 1995, Kenneth Trentadue, a federal inmate who was being held temporarily in the BOP's Federal Transfer Center in Oklahoma City, was found dead in his cell. Controversy developed concerning whether he had committed suicide or was murdered. After the Department's Civil Rights Division concluded that there was insufficient evidence to prosecute anyone for Trentadue's death, the OIG began a separate review to determine whether BOP or FBI employees had engaged in misconduct in the events surrounding his death. The OIG's 206-page report entitled "A Review of the Justice Department's Handling of the Death of Kenneth Michael Trentadue at the Bureau of Prisons' Federal Transfer Center in Oklahoma City" was completed in November 1999. Our investigation concluded that Trentadue's death was a suicide, but we found that the FBI and BOP response to his death was deficient in several ways. Of particular relevance to this hearing, we found significant deficiencies in the FBI's investigation of this case, particularly its mishandling and misplacing of several important pieces of evidence and its failure to document the case adequately.
    • LOST TRUST: The OIG investigated allegations of misconduct by the South Carolina U.S. Attorney's Office and the South Carolina FBI in a series of prosecutions known as the "Lost Trust" cases. A U.S. District Judge had dismissed many charges in the Lost Trust cases, alleging errors in the conduct of the undercover investigation, failures by the government to meet its discovery obligations, and possible perjured testimony by government witnesses. The OIG did not find prosecutorial misconduct, but we were critical of the government's management of its discovery obligations. The OIG criticized the FBI's failure to attend to its discovery responsibilities, provide effective supervision to a new special agent, seek guidance from the U.S. Attorney's Office, or apply the resources necessary to support the investigation and trial.

    In addition to these special reviews, in 1998 the OIG was given responsibility (along with DOJ OPR) to investigate allegations raised by FBI employees who claim they have been retaliated against by FBI management for making protected "whistleblower" disclosures.

  4. Ongoing Special Reviews in the FBI

    The OIG is currently involved in two sensitive matters related to oversight of FBI programs and operations. Given the truncated jurisdictional authorities with respect to OIG oversight in the FBI, in each of these cases the Attorney General authorized the OIG to conduct the review pursuant to the procedure outlined in AG Order 1931-94.

    1. Hanssen Matter

      Shortly after the FBI Director announced the arrest of FBI employee Robert Philip Hanssen on espionage charges, the Senate Select Committee on Intelligence and the Attorney General asked the OIG to examine the Department's performance in preventing, detecting, and investigating Hanssen's alleged espionage activities.

      The OIG has assembled a 10-person team of attorneys, special agents, program analysts, and support staff, several of whom worked on the OIG's Ames review. Helping lead the team is the former chief of the Appellate Division in the U.S. Attorney's Office in the Southern District of New York who led our Ames review. Two experienced federal prosecutors, one from the District of Vermont and the other from the Southern District of New York, are working for the OIG for the duration of this effort. In addition, the lead program analyst from the OIG's Ames investigation is serving in this same capacity for the Hanssen matter. Three OIG special agents with extensive experience in complex investigations are assigned full-time to the team.

      After discussions with the FBI's National Security Division, the CIA, and the prosecutors handling the Hanssen prosecution, we have been granted access to most of the sensitive information and classified documents we have requested. As I mentioned previously, our objective in this review is to thoroughly examine the Department's performance in preventing and detecting Hanssen's alleged espionage activities. Because the criminal investigation of Hanssen's activities is of paramount importance, the OIG has met several times with the prosecutors in that case to ensure that our activities do not interfere with their work. In addition, we have met twice with Judge Webster and his team to ensure that we avoid any unnecessary duplication with their ongoing review of FBI security practices.

      Our review of the Hanssen matter will build upon our already substantial base of knowledge about the FBI's performance in uncovering espionage during the period of Ames' activities - a time period that overlapped, in part, with when Hanssen allegedly was supplying sensitive classified information to the Soviets.

    2. Belated Production of Documents in the Oklahoma City Bombing Case

      On May 9, 2001, the Department notified the defense attorneys for Timothy McVeigh and Terry Nichols that hundreds of FBI documents that should have been produced as part of the discovery process during their trials had in fact not been produced. On May 11, 2001, the Attorney General asked the OIG to investigate the circumstances surrounding the FBI's belated production of these documents.

      Upon receiving the Attorney General's request, we immediately assembled an investigative team of OIG employees, consisting of five attorneys, two special agents, two auditors, a paralegal, and support personnel. The team is led by an experienced former federal prosecutor who is the head of the OIG unit that conducts special investigations. As of this date, the team has requested and reviewed numerous FBI documents, and conducted more than 70 interviews of personnel from FBI Headquarters, Main Justice, Oklahoma City, and six FBI Field Offices. The OIG has also interviewed former FBI and Department officials and employees, as well as several of the prosecutors involved in the Oklahoma City bombing (OKBOMB) case.

      The OIG's investigation predominantly focuses on the following questions:

      • How were the documents discovered in the FBI?
      • Why were the documents not discovered and disclosed before the McVeigh and Nichols trials?
      • Did the FBI act appropriately and timely upon learning that documents may not have been disclosed to the defense before the McVeigh and Nichols trials?
      • Does this case reveal systemic problems with the FBI's handling and production of discoverable documents?

      The OIG is not reviewing the belatedly produced documents to determine whether any of the information constitutes exculpatory material in the McVeigh or Nichols trials or could have affected the outcome of those proceedings. Further, the OIG is not investigating whether additional discoverable material related to OKBOMB exists in FBI Field Offices. Those issues were assigned to Department prosecutors and FBI personnel. Rather, the OIG is investigating why the documents were produced late, the reasons for the delay, and any systemic problems that this matter reveals about the FBI's handling of discoverable documents.

      We have done a considerable amount of work and have advanced the investigation significantly. However, we intend to conduct many more interviews, including interviews of personnel from additional field offices. Although we do not intend to interview FBI personnel at all 56 FBI Field Offices, we intend to fully investigate a sample of FBI offices to determine what happened with the documents in those offices. We also intend to survey other FBI offices to obtain additional information. Where warranted, we will conduct follow-up interviews in those offices about the cause of the belated production of documents.

      We plan to issue a detailed report of our investigation as expeditiously as possible.

  5. Concluding Observations

    A well-funded OIG is an investment in fighting corruption, misconduct, waste, fraud, and abuse. Yet, while the OIG's investigative jurisdiction has expanded significantly since our creation in 1988, the resources provided to us have not kept pace with either this expansion of responsibility or the Department's explosive growth. Although the Department has grown during the past eight years from approximately 98,000 employees to approximately 130,000 employees (a 30 percent increase), the OIG's staffing has diminished. We have lost more than 15 percent of our staff during these same eight years.

    In fact, due to budget constraints the OIG has lost 100 employees within the past two years. If the OIG had merely kept pace with the Department's growth during the past eight years, we would have approximately 550 employees. Instead, our budget can support approximately 360 employees.

    Resource limitations aside, the OIG has a proven track record of conducting high quality, independent, and tough but fair oversight of Department programs and operations. When we have been given authorization to conduct investigations of FBI programs, we have produced comprehensive reports that identified serious systemic weaknesses and provided constructive recommendations for improvement.

    I would be pleased to answer any questions.