Michael R. Bromwich Inspector General, U.S. Department of Justice
Commission on the Advancement of Federal Law Enforcement
November 12, 1998
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Chairman Webster and Commissioners:
I appreciate the opportunity to appear before the Commission to discuss the Office of the Inspector General and our key role in ensuring public accountability and integrity in Department of Justice programs and personnel. I come to this discussion from the unique position of managing an organization that: 1) has federal law enforcement responsibilities; and 2) investigates wrongdoing by Department employees, including those with law enforcement responsibilities.
This dual perspective is instructive as I review the Commission's mandate as outlined in Sec. 806 of your enabling legislation. From my perspective, one of this nation's top priorities as we approach the next century must be to increase public confidence in federal law enforcement. I have learned during my four years as Inspector General that central to building such public confidence is the need to ensure that law enforcement and government employees are held accountable for their actions. To this end, the federal government must commit itself to maintaining well-trained and well-financed independent organizations to investigate allegations of waste, corruption, misconduct, and law enforcement abuses.
- OFFICE OF THE INSPECTOR GENERAL
The Office of the Inspector General (OIG) in the Department of Justice (Department) was established by the Inspector General Act Amendments of 1988, a decade after Inspectors General were created for many other federal Executive Branch agencies. The OIG, which opened its doors on April 14, 1989, is charged with detecting and deterring waste, fraud, abuse, and misconduct among the 110,000 employees of the Department and its multitudes of programs. In addition, the OIG provides leadership and assists Department managers in promoting integrity, economy, efficiency, and effectiveness in its financial affairs and its contractual and grant relationships with others.
We carry out our multi-faceted mission with a current work force of approximately 450 investigators, auditors, inspectors, attorneys, and support staff. The investigators are assigned to one of 17 offices across the country, while the auditors serve in one of 7 field offices. In addition, our Inspections Division, Special Investigations and Review Unit, and Management and Planning Division are located in Washington, D.C. An organizational chart and maps listing the locations of our Audit and Investigations Divisions field offices are appended to my testimony.
Under the Inspector General Act, my office is an independent entity within the Department. By statute, I report to both the Attorney General and Congress on issues that affect the Department's personnel or mission. This independence is crucial to our ability to aggressively pursue misconduct, fraud, waste, and abuse.
The Inspector General Act Amendments of 1988 and various Attorney General Orders provide us 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 Bureau of Prisons (BOP). When the OIG was created, the Federal Bureau of Investigation (FBI) and Drug Enforcement Administration (DEA) retained their separate Offices of Professional Responsibility (OPR) with authority to investigate misconduct matters involving their own employees. The continued existence of FBI OPR and DEA OPR was ratified by Attorney General Order 1931-94, signed by Attorney General Reno in November 1994, which clarified the relationship among the OIG, the FBI and DEA OPRs, and the Department's own OPR.1
My office receives limited case information from DEA OPR and FBI OPR, but I must obtain the approval of the Deputy Attorney General in order to investigate a matter involving FBI or DEA employees. In contrast, the OIG's audit and inspections oversight responsibilities are not limited in the same manner as investigative authority. Consequently, we may audit or inspect programs in the FBI, DEA, or elsewhere in the Department as we deem appropriate.
- IMPORTANCE OF INDEPENDENT OVERSIGHT
A well-funded OIG is an investment against corruption, misconduct, waste, fraud, and abuse - an investment that has proven cost effective across government for the past 20 years and, certainly, within the Department for the last 9 years. When Congress established Inspectors General, it created a tri-partite system that involved the OIG, the agency, and congressional committees. I believe this system of checks and balances has worked well to provide meaningful oversight of Executive Branch activities.
American history is replete with examples of corruption in government (of which corruption of law enforcement personnel is a particularly debilitating subset) along with initiatives to reduce or eliminate such corruption. Perhaps more than any other city, New York City has been a laboratory of such self-examinations and anti-corruption initiatives in its Police Department, beginning in 1895 with the Lexow Commission, continuing with the Knapp Commission in 1972, and most recently through the work of the Mollen Commission in 1994.
In its final report, the Mollen Commission spoke about the benefits of independent oversight:
Indeed, law enforcement officials unanimously told us that the [New York Police] Department's heightened commitment and vigilance began only after the creation of this independent oversight Commission. Only a truly independent body, working with the Department but beyond its control, can sustain this commitment - and make the fear of failed corruption controls more powerful than the fear of corruption's disclosure. 2
Public confidence is critical as we look toward the challenges facing the law enforcement community in the 21st century. The OIG is in a unique position - given its independence, experience, and integrity - to provide the high level of public accountability needed in a law enforcement oversight body. To be effective, an oversight entity must be vigorous and independent. The OIG is independent by statute and by its actions, as evidenced by the scope of our audits, inspections, and investigations. To be effective, an oversight body must be experienced. Because our investigative jurisdiction focuses on misconduct by Department employees or civilians who attempt to improperly influence Department employees, we have significant experience with bribery and corruption cases in particular. To be effective, an oversight organization must have integrity. The OIG has shown this over the years through the quality of its work products and special investigations.
A few examples of the OIG's accomplishments will help illustrate the value of such independent oversight:
· A 30-month investigation into allegations of fraud in the INS's citizenship testing program resulted in the indictment of 20 individuals and the discovery of significant systemic problems in the INS testing process.
· On October 5, 1998, six former corrections aides previously assigned to a BOP contract halfway house facility in Miami, Florida were arrested on charges of conspiracy, aiding and abetting, and bribery. A 9-month investigation uncovered a widespread corruption scheme in which several corrections aides demanded and received cash bribes from inmates to allow them to leave the halfway house after hours and overnight without proper authorization. Corrections aides took cash bribes to alter and falsify inmates' urine samples and inmates' sign-in and sign-out records.
· In the Eastern District of New York, a 19-month investigation resulted in the arrest of 11 current or former BOP correctional officers, 4 inmates, and 8 civilians. The investigation determined that the correctional officers accepted bribes in exchange for smuggling drugs, food, and other contraband into prison. Bribes also were accepted in exchange for moving organized crime inmates within a facility so that they could conduct "mob business," allowing organized crime inmates to receive unauthorized visits, providing access to BOP computer systems, and switching urine samples in order to defeat random drug tests.
In addition to our expertise in making criminal cases, the OIG assists the Department in many other ways. For example, the OIG is proactive in its efforts to deter misconduct by supplementing the ethics training provided by the Department with integrity awareness briefings. These briefings, often given in the Border Patrol sector squad room or in INS district offices, are more than refresher courses on standard ethics regulations. They are practical discussions of the temptations and consequences associated with various job-related integrity and conduct issues, and they are tangible reminders that there is an OIG presence nearby, with agents who are prepared to respond to misconduct.
The OIG is well equipped to pursue a matter either criminally or administratively. Many of our investigations begin with allegations of criminal activity but, as is the case for any law enforcement agency, do not result in criminal prosecutions, either because the proof is not sufficient to obtain a criminal conviction or the prosecutor makes a discretionary decision not to bring criminal charges. When this occurs, the OIG is able to continue the investigation and treat it as a matter for potential administrative discipline. We believe that our ability to handle matters criminally or administratively helps provide the maximum deterrence of misconduct and helps ensure that the decision not to prosecute a matter criminally does not mean that misconduct will go unpunished. The OIG's ability to handle an allegation against a Department employee from cradle to grave, whether the case remains criminal or becomes an administrative matter, is an important strength of OIG oversight.
We have applied all of these unique OIG characteristics in our "special investigations." These complex, sensitive investigations go beyond a search for criminal wrongdoing that can be prosecuted. We also look for administrative misconduct and program inefficiencies for which we often make systemic recommendations for improvement. Two well-known examples of our special investigations are our Miami INS report and the FBI Laboratory investigation.
· In July 1995, Congress requested that the OIG investigate allegations that a delegation of the Congressional Task Force on Immigration Reform was deceived about conditions at the INS Krome Service Processing Center and the Miami International Airport during a June 10, 1995, fact-finding tour. After an extensive investigation, the OIG concluded that senior INS managers had taken actions that concealed from the visiting delegation the true conditions at Krome and the Miami Airport. These managers ordered the removal of the aliens to create a false impression that Krome was not seriously overcrowded and assigned additional inspectors during the visit to make it appear that the airport was well-staffed and that INS was able to process passengers without delay. In addition, INS employees were instructed by senior managers to give false information about detention area procedures if asked by the delegation. The evidence showed that senior managers in the Miami District of INS and INS's Eastern Regional Office either ordered the deception or knowingly failed to stop it. Furthermore, senior managers intentionally failed to cooperate with the OIG investigation and, in some instances, obstructed it. The OIG recommended that 13 INS employees be disciplined for their participation in the deception or for their conduct during the investigation.
· In April 1997, the OIG released the results of its 18-month investigation into allegations of wrongdoing and improper practices within the FBI Laboratory. The allegations against the laboratory implicated fundamental aspects of federal law enforcement: the reliability of procedures used by the Laboratory to analyze evidence, the integrity of the persons engaging in that analysis, and the objectivity of the testimony given in cases by Laboratory examiners. While our investigation did not substantiate the vast majority of allegations concerning Laboratory examiners, we found deficient practices in several cases handled by the Laboratory and serious deficiencies by several examiners. Our report recommended numerous changes within the laboratory, which the FBI agreed to implement. In June 1998, we issued a "one-year-later" follow-up review to assess the FBI's progress in implementing the OIG's recommendations. In general, we found that the FBI had done a sound and responsible job of implementing the recommendations. However, because of the ongoing nature of many of the recommendations, we believe that periodic internal and external reviews should be conducted to ensure that the policies, procedures, and protocols adopted by the FBI are followed in practice.
- ISSUES OF CONCERN
I have discussed the substantial benefits that this OIG brings to the Department of Justice. However, there are three issues that hamper our ability to provide the most optimum level of oversight: resources, jurisdiction, and law enforcement authority.
The OIG's investigative jurisdiction has expanded significantly since our creation in 1989, but the resources provided to us have not kept pace with either this growth in jurisdiction or the Department's explosive growth. Experience has shown that a rapid and dramatic increase in resources provides a breeding ground for increased waste, fraud, and abuse. Congress, having made the decision to substantially increase funding for many Department programs, should authorize a concomitant increase in the OIG's budget so that it can be assured that the additional funds it has made available to the Department are being used appropriately and effectively. To date, this has not occurred. We believe the failure to provide this OIG with the resources necessary to fulfill our mission sends the wrong message to the Department, the public, and us.
This funding shortfall comes at a time when the jurisdiction of the OIG has expanded beyond its traditional duties to include, among other things:
- increasing number of high profile and expensive special investigations (e.g., FBI Labs, CIA-Crack Cocaine, Gatekeeper, Aldrich Ames, Good O' Boy Roundup);
- investigation of Department attorneys (other than in the exercise of their prosecutorial duties);
- increased emphasis on Southwest Border corruption and civil rights issues, including participation in numerous inter-agency and federal-state task forces; and
- jurisdiction over FBI whistleblower allegations as well as whistleblower complaints filed by FBI employees that involve classified intelligence information.
In addition, the Department has experienced tremendous growth during the past six years, moving from an annual appropriation of $11.2 billion and 83,000 employees in FY 1993 to almost $21 billion and 110,000 employees in FY 1999. Excluding those assigned to the DEA and the FBI, more than 80,000 employees fall under the investigative jurisdiction of the OIG. The INS and BOP - the two Department components that command the bulk of our attention - have grown by more than 13,000 employees and 6,000 employees, respectively, during the past six years. In contrast, the OIG has not grown during this same period. If the OIG had merely kept pace with the Department's growth, we would be in line to receive an appropriation of $59.9 million rather than the $34.6 million request that was contained in the President's FY 1999 budget.
This lack of resources has forced the OIG to become increasingly selective about the investigations that we conduct. In fiscal year 1998, we opened investigations based on approximately 10 percent of all misconduct allegations received. Unfortunately, this percentage has declined over the past several years as our workload demands increase and our manpower has remained static. During the most recent 6-month reporting period, the OIG received a record 4,088 allegations of misconduct; however, we were able to open only 356 new cases.
Because of this growing pressure to become more selective, the criteria that we currently apply in evaluating allegations is now more restrictive than we have used in the past and more restrictive than I think is healthy for the Department.3 Given our inability to obtain additional funding during a time when the Department as a whole has experienced tremendous growth, however, I have no choice but to limit the number of investigations we open. Consequently, we refer the majority of the allegations we receive to the components' internal affairs offices, which have been more successful than the OIG in increasing staff size and funding. This relative shift of resources from the OIG to the internal affairs components is, in my judgment, an unhealthy development that is contrary to the rationale for creating OIGs and detracts from the independence - both real and perceived - of the Department's internal affairs capability. Lack of adequate resources is perhaps the single greatest threat to the continued effectiveness of the OIG.
I have previously stated in other forums that I believe the OIG's investigative jurisdiction should include jurisdiction over the FBI and DEA. I raise this issue not to suggest that FBI OPR or DEA OPR should be abolished and the OIG should assume its responsibilities. In fact, I believe the internal OPRs can and should continue to play a significant role in the life of the FBI and DEA. Indeed, in every component in which we have broader investigatory authority - e.g., INS, BOP, and USMS - we work closely with an internal affairs office in each agency that retains investigative authority over many matters. I would envision no different result with the FBI and DEA.
One FBI matter that we did investigate concerned allegations of wrongdoing in the FBI Laboratory. The findings and conclusions in our FBI Laboratory report gained acceptance in the Congress and among the American people, I am convinced, not only because it was investigated thoroughly and carefully, but because the review came from outside the FBI. Indeed, our investigation was launched after the FBI had made unsuccessful efforts of various kinds to investigate some of the same claims that lay at the heart of our investigation. I also think that rejection of many of the most incendiary allegations was far more credible coming from the OIG than it would have been coming from the FBI. In short, I think the Department, Congress, and the public were well served in that investigation because the OIG conducted it.
To my knowledge, no other Inspector General in the federal government is required to obtain the kind of approval the Department's OIG must obtain before launching an investigation into allegations of misconduct within their agency. This is because such a requirement is fundamentally incompatible with the idea that OIGs should have broad authority to conduct misconduct investigations. The limitation in our jurisdiction is the product of a decade-long opposition to the creation of a DOJ OIG during the 1980s and reflects the compromise necessary to have gained the creation of the DOJ OIG. This history explains the anomaly; it does not justify, much less warrant, its continuation.
- Statutory Law Enforcement Authority
Our investigators are deputized every two years as Special Deputy U.S. Marshals. Through this process they receive a grant of law enforcement authority to make arrests, carry firearms, and execute search warrants. It is imperative for OIG special agents to exercise such authorities in order to fulfill their responsibilities under the Inspector General Act.
Over the years, we have been fortunate to hire investigators with extensive law enforcement experience, including agents who formerly worked with the Secret Service, the FBI, the DEA, other Inspectors General, or state and local police departments. All our special agents are graduates of the Federal Law Enforcement Training Center in Glynco, Georgia, or an equivalent federal law enforcement training academy; six are attorneys, one has a Ph.D., and another is a candidate for an advanced doctoral degree.
Because of the cooperation and professionalism of the USMS, the process of redeputation has worked well enough as a logistical matter. However, I do not believe this is a satisfactory long-term solution to the continuing need for OIG special agents to have law enforcement authority. It is inappropriate for our investigators to receive deputation from employees of an agency that we are responsible for investigating. In a recent case, a defense attorney attempted to use this very issue to attack the OIG's independence.
I understand that some Commission members may be concerned about the number of agencies with law enforcement authority. From my perspective, there is no magic number as to what constitutes "too many" federal law enforcement agencies. I think the jurisdiction and performance of each organization must be closely examined on its individual merits. The challenge is to strengthen coordination and communication among agencies with overlapping or shared jurisdictions to ensure that scarce law enforcement resources are used effectively and efficiently. Furthermore, law enforcement agencies with limited jurisdictions can develop an expertise in certain areas that aids the larger federal law enforcement effort. For example, although the OIG shares jurisdiction with the FBI over INS fraud matters, historically the OIG has investigated these criminal cases because of our understanding of the immigration system and INS's culture.
The DOJ OIG has a unique set of responsibilities that justifies our continued need for such authority:
- DOJ OIG has responsibility for investigating misconduct involving employees of several of the principal federal law enforcement agencies. Our special agents routinely use the full range of their law enforcement authorities (e.g., arrests; execution of search warrants; issuance and service of subpoenas; service of legal writs, summons, and complaints; and requests for consensual monitoring);
- our special agents conduct dangerous undercover operations in cooperation with the FBI, the DEA, and the INS that involve drug and alien smuggling, fraud, bribery, civil rights violations, and other serious offenses. Subjects of the investigation or their associates - whether Department law enforcement personnel or civilians - are often armed and dangerous; and
- given the types of cases that we handle and the components that we investigate, our special agents will always need law enforcement authority. Reflecting the permanency of our law enforcement mission, the OIG is a member of the Department's Office of Investigative Agency Policies (OIAP) along with the Department's other law enforcement components. The OIAP develops coordinated policies for law enforcement activities, including the use of deadly and non-deadly force, training, and certification issues.
I am hopeful that legislation will be passed in the 106th Congress to provide permanent law enforcement authority for our investigators. While the Commission is charged with reviewing the expansion of law enforcement authority, I hope it will distinguish this concern from the vital need to solidify this existing enforcement power and support our request.
I would be pleased to answer any questions.
1 The DOJ OPR has jurisdiction to investigate misconduct allegations involving Department attorneys acting in their capacity to litigate, investigate, or provide legal advice. For example, allegations that a federal prosecutor willfully failed to turn over to defense counsel exculpatory evidence would be investigated by OPR. On the other hand, if a prosecutor was alleged to have embezzled Department funds, this complaint would be investigated by the OIG.
- Likely to be accepted (if proven) as a criminal matter by a U.S. Attorney or other prosecutor (four out of five of our cases fall in this category);
- Likely to result (if proven) in agency administrative or disciplinary action against an employee at the grade of GS-15 or above; or
- Of special public interest or the subject of significant Department concern.