Semiannual Report to Congress

April 1, 2008-September 30, 2008
Office of the Inspector General

Multicomponent Audits, Reviews, and Investigations

While many of the OIG’s audits, reviews, and investigations are specific to a particular component of the Department, other work spans more than one component and, in some instances, extends to Department contractors and grant recipients. The following describes OIG audits, reviews, and investigations that involve more than one Department component.

Reports Issued

The Department’s Removal of Nine U.S. Attorneys in 2006

The OIG and Department’s Office of Professional Responsibility (OPR) jointly investigated the Department’s removal of nine U.S. Attorneys in 2006. U.S. Attorneys are appointed by the President and confirmed by the Senate and, like other presidential appointees, can be removed by the President as long as the reason for the removal is not illegal or improper. Historically, U.S. Attorneys generally have not been removed except in cases of misconduct or when there was a change in administrations. Prior to the events described in this report, the Department had never removed a group of U.S. Attorneys at one time because of alleged performance issues.

On December 7, 2006, seven U.S. Attorneys were told to resign from their positions: David Iglesias, Daniel Bogden, Paul Charlton, John McKay, Carol Lam, Margaret Chiara, and Kevin Ryan. In addition, U.S. Attorneys Todd Graves and Bud Cummins were told to resign earlier in 2006.

Our investigation concluded that the process that Department officials used to identify the U.S. Attorneys for removal was fundamentally flawed. In particular, we found that former Attorney General Alberto Gonzales and former Deputy Attorney General Paul McNulty failed to adequately supervise or oversee the removal process. Instead, Kyle Sampson, Attorney General Gonzales’s chief of staff, designed and implemented the process with virtually no oversight. We found no evidence that Gonzales, McNulty, Sampson, or anyone else in the Department carefully evaluated the basis for each U.S. Attorney’s removal or attempted to ensure that there were no improper political reasons for the removals. Moreover, after the removals became public, the statements provided by Gonzales, McNulty, Sampson, and other Department officials about the reasons for the removals were inconsistent, misleading, or inaccurate in many respects.

The most serious allegations that arose in the aftermath of the removals were that several of the U.S. Attorneys were forced to resign based on improper political considerations. Our investigation found substantial evidence that partisan political considerations played a part in the removal of several of the U.S. Attorneys. The most troubling example was the removal of Iglesias, the U.S. Attorney for New Mexico, after the White House and the Department received complaints from New Mexico politicians and party activists about his handling of voter fraud and public corruption cases.

With regard to several other removed U.S. Attorneys, we found that Department officials made misleading statements to Congress and the public by asserting that their removals were based on concerns about their performance. In fact, Sampson acknowledged that he considered whether particular U.S. Attorneys identified for removal had political support. Sampson stated that a U.S. Attorney was considered for removal not if he was considered “mediocre,” but if he was perceived as both mediocre and lacking political support.

We believe our investigation uncovered most of the facts relating to the reasons for most of the U.S. Attorneys’ removals. However, there were gaps in the investigation because of the refusal of certain key witnesses to be interviewed, including former White House officials Karl Rove, Harriet Miers, and William Kelley; former Department White House Liaison Monica Goodling; and Senator Pete Domenici and his chief of staff Steve Bell. In addition, the White House declined to provide internal documents related to the removals of the U.S. Attorneys.

Our report recommended that a counsel specially appointed by current Attorney General Michael Mukasey assess the facts that we uncovered, conduct further investigation, and ultimately determine whether the evidence demonstrates that any criminal offense was committed with regard to the removal of any U.S. Attorney or with regard to the testimony of any witness relating to the U.S. Attorneys’ removals.

In response to the report, Attorney General Mukasey selected a career prosecutor to conduct further investigation into the removal of the U.S. Attorneys.

Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General

The OIG and OPR investigated allegations of politicized hiring at the Department by Monica Goodling and other staff in the Office of the Attorney General. The joint investigation found that Goodling, Kyle Sampson, and other staff improperly considered political or ideological affiliations in screening candidates for certain career positions at the Department, in violation of federal law and Department policy. In addition, the investigation found that Goodling and two other Department employees provided inaccurate information in response to inquiries about Department hiring practices.

We examined allegations that Goodling, who held several positions at the Department, including White House Liaison in the Office of the Attorney General, inappropriately considered political or ideological affiliations in the selection and hiring of certain Assistant U.S. Attorneys (AUSA) and career attorneys in the Department. We also investigated whether Goodling and her predecessors as White House Liaison considered political or ideological affiliations when selecting candidates for details of career attorneys to Department offices. In addition, we investigated allegations that Goodling, Sampson, and others inappropriately considered political or ideological affiliations in selecting immigration judges, which are career positions, and whether Goodling discriminated against a career Department attorney, who had applied for several temporary details, on the basis of her rumored sexual orientation.

Our investigation substantiated many of the allegations against Goodling, Sampson, and others. We found that they violated federal law and Department policy when they used political affiliation to select candidates for career attorney positions, and that Goodling and Sampson committed misconduct by doing so.

We also determined that Goodling used political or ideological affiliations to select or reject career attorney candidates for temporary details to Department offices, which sometimes resulted in high-quality candidates for important details being rejected in favor of less-qualified candidates. For example, Goodling rejected an experienced career terrorism prosecutor for a detail to the Executive Office for U.S. Attorneys (EOUSA) to work on counterterrorism issues because the candidate’s wife was active in the local Democratic Party. Instead, EOUSA had to select a more junior attorney who lacked any experience in counterterrorism issues and who EOUSA officials believed was not qualified for the position.

The most systematic use of improper political or ideological affiliations in screening candidates for career positions occurred in the selection of immigration judges, who work in the Department’s Executive Office for Immigration Review (EOIR). In the fall of 2003 and the spring of 2004, Sampson created and implemented a new process for selecting immigration judges that ensured that all candidates for these positions were selected by staff in the Office of the Attorney General rather than by EOIR officials, which had been the usual practice up until that time. Sampson said he implemented the new process because he believed that immigration judges were not subject to civil service laws based on advice he received from an EOIR official and from the Department’s Office of Legal Counsel. However, we did not find evidence to support Sampson’s statements about receiving such advice.

We determined that, under the process implemented by Sampson and followed by Goodling, the principal sources for immigration judge candidates were the White House Offices of Political Affairs and Presidential Personnel. We found that Goodling screened candidates for immigration judge positions by using a variety of techniques for determining their political or ideological affiliations, including researching the candidates’ political contributions and voter registration records and using an Internet search string containing political and ideological terms. This selection process caused significant delays in appointing immigration judges at a time when the immigration courts were experiencing an increased workload and a high vacancy rate.

We also determined that Goodling committed misconduct by providing inaccurate information to a Civil Division attorney who was defending a lawsuit brought by an unsuccessful immigration judge candidate. Goodling told the attorney that she did not take political factors into consideration in connection with immigration judge hiring, which was inaccurate.

In 2007, in response to allegations about Goodling’s inappropriate consideration of political affiliations on requests by interim U.S. Attorneys to hire AUSAs, Attorney General Gonzales directed that such waiver requests be reviewed by career employees rather than by political appointees in Department offices. In addition, EOUSA recently ended the practice of reviewing the résumés of such candidates and instead assesses those requests based solely on the budgetary status of the USAO and the status of the U.S. Attorney’s nomination. With regard to immigration judges, as a result of the civil litigation over the unsuccessful candidacy of an immigration judge applicant, in April 2007 Gonzales approved a new process to fill immigration judge positions that returned the responsibility for evaluating immigration judge candidates to career officials in EOIR. According to EOIR officials, the process is working more effectively now, and political considerations are not being used in the selection of candidates.

We concluded that these changes will address many of the problems that we found in our investigation. However, we recommended additional changes for the Department to help ensure that political or ideological affiliations are not inappropriately used to evaluate candidates for career positions in the future.

Politicized Hiring in the Department’s Honors Program and Summer Law Intern Program

The OIG and OPR jointly investigated allegations of politicized hiring in the Department’s Honors Program and Summer Law Intern Program from 2002 to 2006. The Honors Program is a highly competitive hiring program for entry-level Department attorneys. The Summer Law Intern Program (SLIP) is a highly competitive program for paid summer internships for law students in the Department.

Prior to 2002, career employees within each component decided which applicants to interview and select for both the Honors Program and SLIP. However, under a new system implemented by the Attorney General in 2002, a Screening Committee generally comprised of politically appointed employees from the Department’s leadership offices had to approve Honors Program and SLIP candidates for interviews by the components.

Both Department policy and federal law prohibit discrimination in hiring for career positions on the basis of political affiliations and require the Department to use merit-based hiring practices that identify qualified applicants through fair and open competition. Despite these mandates, we found that the Screening Committees in 2002 and 2006 improperly deselected candidates for interviews based on political and ideological affiliations. We determined that candidates with Democratic Party and liberal affiliations apparent on their applications were deselected at a significantly higher rate than applicants with Republican Party, conservative, or neutral affiliations. This pattern continued when we compared a subset of academically highly qualified candidates.

Regarding the 2006 Screening Committee, we again found that a significantly higher percentage of the deselected Honors Program and SLIP candidates had liberal affiliations as compared to candidates with conservative affiliations. This pattern also was apparent when we compared applicants – including those who were highly qualified academically – with Democratic Party affiliations versus Republican Party affiliations for both Honors Program and SLIP candidates.

We concluded that two of the three members of the 2006 Screening Committee took political or ideological affiliations into account in deselecting candidates, in violation of Department policy and federal law, and thereby committed misconduct. One member wrote disparaging statements about candidates’ liberal and Democratic Party affiliations on the applications she reviewed and then voted to deselect candidates on that basis. Another committee member, who was a career AUSA on detail to the Office of the Deputy Attorney General, did not use improper considerations in his review of candidates for the Honors Program and SLIP. This member appropriately raised concerns that political or ideological affiliations were being used to the third Committee member, who was the head of the Committee. However, we determined that the head of the Screening Committee not only failed to take appropriate action when he was apprised of these issues, but also wrongly deselected candidates based on impermissible considerations.

With regard to the processes Department components used from 2002 through 2006 for proposing candidates to the Screening Committee, we generally found that the processes were largely controlled by career employees and were merit based. We did not find evidence that components employed inappropriate criteria such as political or ideological affiliations to select candidates to be interviewed for the Honors Program or SLIP. However, we received allegations that inappropriate considerations were used in selecting Honors and SLIP candidates in the Civil Rights Division. The OIG and OPR are jointly investigating various allegations involving the Civil Rights Division, and we will provide our findings in a separate report when that investigation is concluded.

In April 2007, the Department changed the process for selecting Honors Program and SLIP candidates by removing the screening conducted by political officials on the Screening Committee and by providing written guidance on the criteria that should be applied. While these changes were appropriate and will address many of the problems that we found in our investigation, we recommended additional changes to ensure that political or ideological affiliations are not inappropriately used to evaluate candidates for the Honors Program and SLIP.

Audit of the Department’s Legislative and Public Affairs Expenses

The OIG issued a congressionally mandated audit examining legislative and public affairs expenses throughout the Department. The audit covered FY 2007 legislative and public affairs expenses and staffing among all 40 components and the 94 USAOs.

Our audit found that 25 Department components and 58 USAOs performed significant legislative and public affairs functions in FY 2007. These components and USAOs reported estimated combined legislative and public affairs expenses totaling $49.35 million and 476 employees performing these functions during the year. The FBI, ATF, DEA, and USAOs accounted for $34.5 million or 69.9 percent of the total Department legislative and public affairs expenses.

During FY 2007, the Department was funded by a series of continuing resolutions that carried forward FY 2006 restrictions on the number of Office of Legislative Affairs (OLA) and Office of Public Affairs (PAO) staffing. The legislation also stated that within the staffing ceilings provided OLA and PAO may utilize detailed career employees on a non-reimbursable basis. Our review of FY 2007 OLA and PAO staffing levels indicated that OLA complied with its permanent positions ceiling, while PAO complied with its permanent positions and full-time equivalent work years (FTE) ceilings. However, we found that OLA exceeded its 21 FTE ceiling by 2.8 FTE work years through its use of detailed career employees.

The Department stated that it applied standard federal budgeting practices in determining FTEs for OLA and PAO and did not include non-reimbursable detailed staff in its FTE calculations. Given this methodology, the Department believed that OLA and PAO were within the staffing ceilings mandated by appropriations law, and it disagreed with the OIG’s conclusion that OLA exceeded its FTE ceiling. However, we believe that the plain language of the appropriations proviso prevented the Justice Management Division (JMD) from applying standard budgeting practices in this case.

Civil Rights and Civil Liberties Complaints

Section 1001 of the USA Patriot Act directs the OIG to receive and review complaints of civil rights and civil liberties abuses by Department employees, to publicize how people can contact the OIG to file a complaint, and to submit a semiannual report to Congress discussing our implementation of these responsibilities. On August 6, 2008, the OIG issued a report summarizing its Section 1001 activities for the period January 1, 2008, to June 30, 2008.

In addition to describing the number of complaints we received under this section and the status of investigations conducted by the OIG and Department components, the report summarized the findings of several OIG reviews and audits that relate to the OIG’s civil rights and civil liberties oversight responsibilities. For example, we described our audit of the Department’s watchlist nomination process, as well as our examination of the FBI’s involvement in and observations of detainee interrogations in Guantanamo Bay, Afghanistan, and Iraq.

The Section 1001 report also described several ongoing OIG reviews and audits examining civil rights/civil liberties-related issues that are expected to be completed in the coming months: review of the Department’s involvement with the NSA’s Terrorist Surveillance Program, follow-up audit on the FBI’s watchlist nomination process, audit of the FBI’s Terrorist Threat and Suspicious Incident Tracking System, and investigation of the FBI’s use of exigent letters.

Federal Information Security Management Act Audits

The Federal Information Security Management Act (FISMA) requires the Inspector General for each agency to perform an annual independent evaluation of the agency’s information security programs and practices. The evaluation includes testing the effectiveness of information security policies, procedures, and practices of a representative subset of agency systems. To oversee the implementation of policies and practices relating to information security, the Office on Management and Budget (OMB) has issued guidance to agencies for their FISMA requirements.

For FY 2007, the OIG’s Audit Division audited the security programs of three major components and a subset of individual systems. The components reviewed were the FBI, USMS, and JMD. In addition, four individual systems were reviewed. Three of the systems, JMD’s Civil Applicant System, USMS’s Warrant Information Network, and FBI’s Combined DNA Index System, are sensitive but unclassified. The remaining system is classified. In these audits, we provided more than 20 recommendations for improving the implementation of the Department’s information security program and practices for its sensitive but unclassified, classified, and national security systems.

For FY 2008, the OIG audited the security programs of four major components: the FBI, ATF, DEA, and JMD. Within these components, we selected for review two classified systems within the FBI and three sensitive but unclassified systems: ATF’s Arson and Explosives Incident System, DEA’s Validation Integrity and Penetration Response System, and JMD’s Automated Configuration and Engineering System. The OIG plans to issue separate reports evaluating each of these systems.

Based on our FISMA reviews, we also responded to the OMB questionnaire by providing updated information on the overall effectiveness of the Department’s information technology (IT) security program. Our review found that the Department ensured that systems within the FBI, ATF, DEA, and JMD were all certified and accredited. However, for the FBI systems we reviewed, the security controls had not been tested within the past year. Also, the contingency plans for three ATF systems had not been tested in accordance with the Department’s policy. With respect to IT security awareness training, we found that ATF did not fully ensure that all of its employees were trained as required by Department policy.

As part of the FISMA review, on August 1, 2008, we submitted a response to the Office of the Director of National Intelligence with respect to the FBI’s compliance with FISMA requirements for national security systems.


Ongoing Work

Review of the Department’s Involvement with the Terrorist Surveillance Program

The OIG is reviewing the Department’s involvement with the intelligence program generally referred to as the NSA terrorist surveillance program. We are examining the Department’s controls over and use of information related to the program and the Department’s compliance with legal requirements governing the program.

Coordination of FBI and ATF Explosives Activities

The OIG is examining how the FBI and ATF coordinate their explosives investigation activities. We are assessing possible duplication in laboratory, database, and training resources, and assessing the level of cooperation between ATF and FBI headquarters and field office components, as well as with and within the Joint Terrorism Task Forces.

Combating Gangs and Gang Violence

The OIG is reviewing the intelligence and coordination activities of the National Gang Intelligence Center and the National Gang Targeting, Enforcement, and Coordination Center. Our review is examining how these two organizations contribute to the Department’s anti-gang initiatives.

Assessment of the Department’s Major IT Vulnerabilities

This audit is assessing the Department’s major IT vulnerabilities and actions taken to mitigate them.

Sex Offender Registration

The OIG is reviewing the Department’s efforts to implement the Sex Offender Registration and Notification Act (Title I of the Adam Walsh Child Safety and Protection Act of 2006). We are reviewing how the Department is identifying, investigating, arresting, and prosecuting fugitive sex offenders who failed to register or update their registrations. We also are determining the status of the Department’s efforts to create and maintain national sex offender registries and provide guidance and assistance to states regarding the maintenance of their sex offender registries.

Staff Sexual Abuse of Federal Inmates

The OIG is reviewing the Department’s efforts to prevent sexual abuse of federal inmates and detainees by BOP and USMS staff. We are examining the Department’s policies and procedures for addressing sexual abuse issues, investigating allegations of abuse, and prosecuting substantiated cases.

Protection of the Federal Judiciary and Federal Prosecutors

The OIG is examining the role of the USMS district offices in the protection of federal judges and prosecutors. We also are examining the role that EOUSA plays in the protection of federal prosecutors.

Deployment, Use, and Policies Governing Less-Lethal Weapons

The OIG is reviewing the Department’s use of and policies governing less-lethal weapons. We are examining which types of less-lethal weapons the Department’s law enforcement components use and under what circumstances they use them.

Litigation Case Management System

The OIG is examining the development of the Department’s Litigation Case Management System to assess whether the project is meeting schedule, cost, technical, and performance requirements; the system design will meet current and long-term enterprise requirements; and the Department is following its Information Technology Investment Management process in developing and implementing this system.

Federal Employees’ Compensation Act

The OIG is auditing the Department’s administration and oversight of its Federal Employees’ Compensation Act program. We are assessing whether controls are in place to effectively administer the program, reduce opportunities for claimant fraud, and return employees to work when appropriate.


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