The Federal Witness Security Program
Criminal Division (redacted version)

Report No. 02-05
January 2002
Office of the Inspector General

CRIMINAL DIVISION RESPONSE TO THE DRAFT REPORT

U.S. Department of Justice Criminal Division

MEMORANDUM

TO:	Glenn Fine Inspector General
FROM:	Michael Chertoff Assistant Attorney General
SUBJECT:	Witness Security Program Audit (2001)

This is in response to your request for our comments on the recommendations in the Working Draft Report issued by your office (OIG) in connection with its recent review of Federal Witness Security Program operations in the Criminal Division's Office of Enforcement Operations (OEO). We appreciate the efforts of your staff to audit the Program, particularly the efforts of Ferris Polk and Cylinda Keel, as the continued success of the Program depends on a thorough and honest assessment of the Program's virtues and its shortcomings. The Program is vital to prosecutors everywhere, and, as the final oversight responsibility for the Program rests in the Criminal Division, it is extremely important that we have a complete picture of its workings in order to evaluate how effectively, efficiently, and securely we are providing Program services today, and also to assist us in improving our delivery of such services in the future.

As you know, the Program has three main components: (1) OEO, which has been delegated by the Attorney General the authority to review Program applications submitted by the United States Attorneys' Offices and investigative agencies, and to authorize (or decline authorizing) individuals into the Program, as well as to oversee all Program operations; (2) the Federal Bureau of Prisons (BOP), which is charged with protecting Program witnesses who are incarcerated; and (3) the U.S. Marshals Service (USMS) which is charged with the day-to-day administration of the relocation aspect of the Program. The audit conducted by the OIG only examined those Program functions handled in OEO. However, without an audit of the Program operations carried out by BOP and USMS, the Criminal Division is left without a complete picture of where problems exist and where change is needed. I understand that OEO Associate Director Stephen J. T'Kach, the Director of the Program in the Criminal Division, has been in contact with Guy K. Zimmerman, Assistant Inspector General for Audit, and has requested the completion of the full Program audit. I encourage you at your earliest opportunity to complete the Program audit in BOP and the USMS. I look forward to seeing those results in the near future.

As for the instant OIG audit, I am delighted to see that your office found that "OEO admitted witnesses into the Program in accordance with the Witness Security Reform Act of 1984 (the Act), and took appropriate action in terminating witnesses from the Program who substantially breached Program guidelines." These findings are particularly satisfying because they show that, despite the ongoing, cumulative nature of the Program, and a decline in the staff of OEO's unit that handles Program functions, that office has taken great strides in ensuring that all Program operations are in conformance with the Act, Department regulations, Division policies, and Program practices developed in the 30+ years that the Program has existed.

The one Program area that the report viewed as a problem was the lack of quality indictment and conviction (I&C) data associated with protected-witness testimony and the methods used to collect and count this data. While the report noted that OEO "had made some improvement[s] in overcoming a long history of problems" with identifying and reporting I&C data, all of the report's recommendations addressed this issue. Specifically, the report recommended that the Criminal Division: (1) establish new procedures to accurately compile the results of protected-witness testimony; (2) develop procedures to ensure that protected-witness data transferred to OEO's information system is accurate and; (3) send periodic follow-up letters to sponsoring Assistant United States Attorneys to ensure that results of protected-witness testimony are received by OEO in a timely manner. Although we are willing to adopt each of these recommendations, we would first like to suggest a different approach to the question of Witness Security Program performance measures because we believe that I&C data is the wrong focus for measuring the success of the Program--and the performance of the Program components.

The Attorney General has charged OEO with reviewing Program applications, and, once a witness is admitted into the Program, ensuring that the witness is protected before, during, and after trial. The latter part of OEO's mission is conducted through its oversight responsibilities with regard to the Program functions relegated to BOP and the USMS. [OEO does not actually transport or protect witnesses, but oversees BOP and the USMS to ensure that these agencies carry out their duties in compliance with OEO directions. Thus, the completion of the OIG audit regarding the Program functions of these agencies is critical.] Given the limited nature of OEO's Program-related mission, the relevant focus for any rating of OEO's Program-related performance is relatively simple: Are Program applications processed in a timely and accurate fashion in compliance with the Act--and relevant Department and Division guidelines--and are witnesses being kept alive, produced for trial and other purposes in a safe and secure manner, and similarly returned to their relocation area or prison. That IS actually the fairest standard by which to evaluate the success of the Program, and thus the true measure for judging the performance of all Program components, including OEO.

Overall, since no witness has ever been injured or killed while following Program rules, the record seems to speak for itself. Nevertheless, Program administrators have long assumed that I&C data from cases involving federally protected witnesses was the best way to measure the success of the Program. Since that standard of review was first put forward, organizations such as yours and the Senate Judiciary Committee have sought to "grade" us on this data, and have judged us on our ability to obtain that data. Historically, as the report points out, obtaining such information has not been easy, no matter how hard we have tried to pry it loose from the prosecutors. In our view, however, what is more important than our inability to obtain I&C data in an accurate and timely fashion, is the fact that there appears to be no meaningful correlation between the I&C data and what we do, i.e., protect witnesses. Whether a witness sitting before a jury happens to be a Program participant seems to have no bearing on the outcome of a trial.

A previous study of I&C data revealed that in 89 percent of cases where Program witnesses testified, convictions were obtained. The Department recently released some unrelated drug statistics that indicated that in 90 percent of federal drug cases prosecutors obtained convictions. Given that these conviction rates are virtually identical, the 89-percent witness-protection figure tells us only that we are probably not being hoodwinked by witnesses who are just trying to get Program services. Beyond that, it provides little evidence of whether the Witness Security Program is successful, as many factors outside the control of Program components play a significant role in the outcome of a witness's Program-related testimony. Any presumed connection between a witness's status in the Program and a conviction is suspect at best. The real answer as to how to quantify the success of the Program--if one finds it necessary to go beyond the obvious measure of keeping witnesses alive and producing them for trial--may be to ask how many more cases the government brings today as a result of having the ability to put witnesses in the Program as opposed to the pre-Program days when trials did not occur because of dead or intimidated witnesses. To obtain this kind of data, however, the Executive Office for United States Attorneys (EOUSA) must be involved in a more meaningful way.

The Witness Security Program, like electronic surveillance, witness immunity, and other investigative and prosecutorial tools, is best judged not by those who provide the service, but rather by those who utilize the service, the federal prosecutors. Some standard measure of performance that provides an objective view must be implemented in the field to let us know here at the headquarters how all components of the Program are performing their various functions. To assist in fashioning appropriate performance measures, Mr. T'Kach, has already requested assistance from the Division's Office of Administration. With their assistance, we believe we can develop meaningful Government Performance and Results Act (GPRA) standards for evaluating the workings of the Program. Then, we will work with the EOUSA to begin the process of evaluating the Program in a manner that truly measures its effectiveness from where it counts most--the field. The end result maybe that Program administrators analyze a number of different factors, weighted appropriately, to reach a fair rating. We also look forward to working with your office to produce non-I&C GPRA-acceptable performance measures for this rating process.

Thank you again for your continuing assistance in your review of the Program, and we look forward to your completion of the review of the Program for BOP and the USMS at your earliest convenience. By this memorandum, I am requesting that my comments be made part of the official record.

cc:	Maureen H. Killion Director Office of Enforcement Operations Stephen J. T'Kach Associate Director Office of Enforcement Operations Sandra Bright Executive Officer Criminal Division Kathy Hawk-Sawyer Director Federal Bureau of Prisons Louie T. McKinney Acting Director United States Marshals Service