Glenn A. Fine
U.S. Department of Justice
Senate Committee on the Judiciary
"Oversight of the Federal Bureau of Investigation: Lessons Learned from the OIG's Report on the Belated Production of Documents in the Oklahoma City Bombing Case"
March 21, 2002
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Mr. Chairman, Senator Hatch, and Members of the Committee on the Judiciary:
I appreciate the opportunity to appear before the Committee this morning to discuss the Office of the Inspector General's (OIG) report on the belated production of documents in the Oklahoma City bombing case. The disclosure of these documents just one week before the scheduled execution of Timothy McVeigh raised questions as to whether the Federal Bureau of Investigation (FBI) had intentionally failed to disclose documents to the defense before trial, and why the failure to produce documents occurred. Because of the importance of these issues, the OIG expended significant resources to investigate the circumstances surrounding the belated disclosures. We detail our findings in a 192-page report, which we issued on March 19. In my testimony today, I will summarize the findings of our investigation and discuss the systemic recommendations we made to help address the problems we found.
In sum, our investigation found that widespread failures by the FBI led to the belated disclosure of more than 1000 documents in the Oklahoma City Bombing case (OKBOMB). We traced the failures to a variety of causes, including individual mistakes by FBI employees, the FBI's cumbersome and complex document-handling procedures, agents' failures to follow FBI policies and directives, inconsistent interpretation of policies and procedures, agents' lack of understanding of the unusual discovery agreement in this case, and the tremendous volume of material being processed within a short period of time. The failures were widespread and not confined to either the FBI field offices or the OKBOMB Task Force; both share responsibility.
We did not find that any FBI employees intentionally withheld from the defense any documents they knew to be discoverable.
We are most critical of the way certain senior FBI managers responded when they became aware of the potential problem in January 2001. We found that they did not aggressively manage the document review process or set deadlines for the process to be completed. Most troubling, they waited until one week before the scheduled execution of McVeigh to notify FBI Headquarters or the prosecutors about the problem.
Our report also is critical of the way that FBI Headquarters handled the problem even after it was disclosed. We found that the instructions issued by FBI Headquarters to the field were confusing and contradictory. In addition, we found that many field offices failed to provide information and documents in a timely or accurate manner in response to requests in 2001.
This case highlights the significant weaknesses in the FBI's computer systems. They are antiquated, inefficient, and badly in need of improvement. Although we do not believe the failures in this case were caused by the computer systems, these systems cannot handle or retrieve documents in a useful, comprehensive, or efficient way, and they do not provide FBI employees with the type of support they need and deserve.
Before I provide more details about our investigation and findings, I want to first recognize the OIG employees who worked on this review. The OIG team consisted of five attorneys, two Special Agents, two auditors, a paralegal, and other support personnel. The director of the OIG office that conducts special investigations, a former federal prosecutor, led the team.
The team conducted approximately 200 interviews of current and former FBI and Department of Justice officials and visited 13 FBI field offices to conduct interviews, view the physical premises, and review office processes for handling documents. These 13 offices accounted for more than 50 percent of the more than 1,000 belated documents. The OIG also surveyed the 43 other FBI field offices for explanations about how they handled Oklahoma City bombing documents and why they failed to provide the materials to the Task Force.
In general, the OIG investigation sought to address the following questions:
I will address each of these issues in turn.
The Discovery of Belated Documents
Immediately following the bombing of the Murrah Federal Building, the FBI and the Department of Justice established a Task Force to investigate the crime. An FBI Inspector in Charge and a Department of Justice prosecutor led the Task Force, which at its peak consisted of over 200 investigators, prosecutors, and support personnel. The Task Force initially was located in Oklahoma City but later moved to Denver, Colorado, when the defendants' trials were moved. In addition to the personnel assigned to the Task Force, thousands of other investigators from the FBI's 56 field offices, its foreign offices, and other law enforcement agencies also participated in the OKBOMB investigation.
The belated documents at issue consisted primarily of FD-302s and inserts, forms used by the FBI to record investigative activity such as witness interviews. After FBI agents in the field offices memorialized their investigative activity on the appropriate form, the documents were supposed to be sent to the Task Force. Task Force personnel organized the evidentiary material, entered a brief description of the material into databases, and filed the hard copies into sub-files.
In every federal criminal trial, the defendants are entitled to have access to some, but not all, of the prosecution's files. After the OKBOMB defendants were indicted, however, the government decided to go beyond the discovery rules routinely used in federal criminal trials and agreed to provide the defense with all FBI FD-302s and inserts. The agreement was not formalized in writing, but we found no dispute about this obligation.
As the OKBOMB investigation progressed in 1995 and 1996, the Task Force realized that it was not receiving all of the documents generated in FBI field offices. On many occasions, the Task Force sent sternly worded instructions to the field offices that all OKBOMB-related materials were to be sent to the Task Force and directed the field offices to search their offices for OKBOMB materials. At the same time, however, some field offices complained to the Task Force that they were receiving multiple requests from the Task Force for documents that the field offices had sent previously.
In 1997, the OKBOMB defendants were tried in separate trials in Denver, after the trial judge moved the cases from Oklahoma City. Following the trials, the evidence was packed, transferred back to Oklahoma City, and stored in a large warehouse.
In early 2000, personnel in the FBI's Oklahoma City Field Office became concerned that the heating and cooling capacity of the warehouse was insufficient to maintain the OKBOMB evidence, and they sought the advice of the FBI's archivist. The archivist agreed that the warehouse was not suitable for long-term storage, and he also agreed to assist in the document preservation process.
In December 2000, the archivist sent an electronic communication to the FBI's 56 field offices authorizing them to destroy copies of OKBOMB documents that met specific guidelines the archivist provided. The field offices were to send a list of the remaining OKBOMB materials to the Oklahoma City Field Office.
In late January 2001, two field offices sent their OKBOMB files, rather than a list, to Oklahoma City. When two conscientious Oklahoma City Field Office analysts who had worked on OKBOMB examined the files, they immediately became concerned because they found what they believed to be original documents. Field offices should not have possessed any original OKBOMB documents, and they knew that the presence of originals in the field office could mean that the documents had not been sent to the Task Force or disclosed to the defense.
The analysts promptly disclosed the potential problem to William Teater, their supervisor in Oklahoma City, and to two senior FBI managers - Danny Defenbaugh, the Inspector in Charge of the OKBOMB investigation who became the Special Agent in Charge (SAC) of the FBI's Dallas, Texas, Field Office; and OKBOMB Supervisory Special Agent Mark White, who became a Supervisory Special Agent in the Dallas Field Office.
On January 30, 2001, the Oklahoma City analysts sent a communication to all FBI field offices instructing them not to destroy OKBOMB documents but rather to send all OKBOMB materials to Oklahoma City. As the material arrived, the analysts and a few additional Oklahoma City personnel compared every document against Task Force databases that listed the documents that had been disclosed to the defense to determine whether these new documents had been disclosed previously.
In March 2001, the analysts showed Defenbaugh and White a box of problem documents that they had not been able to find in the databases that listed which documents had been disclosed to the defense. By the end of April 2001, the analysts had finished their examination of all the documents sent by the field offices and concluded that more than 700 documents had never been disclosed to the defense. Concerned about McVeigh's approaching execution date - originally scheduled for May 16, 2001 - the analysts mailed the documents to Dallas so Defenbaugh and White could determine how to handle the issue.
On May 7, 2001, Defenbaugh notified FBI Headquarters about the problem for the first time. The following day he notified Sean Connelly, an OKBOMB prosecutor, that documents that had not been turned over in discovery had been found in FBI files. This was the first that Connelly or any prosecutor was informed about the problem. On May 8, 2001, Connelly notified the defense about the discovery of the documents, and the next day he turned over 715 documents to the defendants' attorneys.
After this initial disclosure, the FBI continued searching for and finding additional documents in its field offices. These documents also were reviewed against the OKBOMB discovery databases, and by the end of May more than 300 additional documents were released to the defense. In total, 1,033 documents (consisting of more than 4000 pages) were provided to the defense.
Causes of the Belated Production of Documents
Because of the passage of time, the number of documents involved, and the inability of individuals to recollect exactly how they handled one document out of the many they created or gathered, it was impossible for us to ascertain with clarity the path of each belated document or why each such document failed to be turned over to the defense. Nonetheless, we were able to determine a number of factors that contributed to the belated disclosure of documents:
We found that the Task Force also shares responsibility for documents not being disclosed to the defense. Documents that were sent to the Task Force were lost or placed in the wrong file drawer. For example, in our search we found some of the belated documents in the Task Force misfiled in subfiles that were not used to compile discovery. The problems in the Task Force's handling of documents were attributable to a variety of causes. The process used to move paper around the Task Force was cumbersome and the opportunities for documents to be misplaced were numerous. In addition, the Task Force did not have a routine policy of checking to ensure that items a field office said were being sent actually arrived at the Task Force.
The FBI did not have an effective automated quality control system to help the Task Force track documents when they were generated. Although the FBI assigns a serial number to every document it creates, in 1995 each field office assigned its own set of serial numbers to documents in its files, resulting in duplicate serial numbers. In order to generate a unique number for each document, the OKBOMB Task Force reserialized each document sent by the field office with an OKBOMB serial number. But Task Force supervisors did not recognize the deficiencies in their document processing system, and they gave little consideration to whether any measures should be taken to plug the gaps.
We carefully examined the allegation that the government intentionally withheld documents it knew to be discoverable from the defense. We questioned FBI employees and former employees, analyzed circumstantial evidence, and investigated evidence the defense alleged showed that the government intentionally withheld exculpatory evidence. We concluded, for the following reasons, that the evidence did not support a finding that government personnel withheld evidence it knew to be discoverable from the defense:
As part of this inquiry, we also investigated eight belated documents that McVeigh's attorneys asserted were particularly significant and evidence of the government's intentional misconduct. We interviewed the agents who drafted the documents, their supervisors, and in some cases the administrative personnel who processed the documents. As a result of this review, we did not find evidence showing intentional misconduct. Rather, as with the other belated documents, the evidence indicated inadvertent breakdowns in the document handling process due to human error.
Analysis of the FBI's Actions in 2001
We also examined the actions of FBI officials after the belated documents issue arose in 2001. We considered whether FBI personnel acted appropriately upon learning that discoverable items may not have been timely disclosed to the defense.
When the two analysts in Oklahoma City discovered the potential problem with belated documents as part of the routine archiving process, they immediately notified FBI managers about the problem. We concluded that the managers who were informed of the problem - particularly Defenbaugh and White - did not adequately manage the review process of the OKBOMB documents. The analysts kept White and, through him, Defenbaugh informed that they were unable to find evidence establishing that many of the documents they were examining had been disclosed before the defendants' trials. Both White and Defenbaugh traveled to Oklahoma City in March 2001 and examined some of the documents that had been set aside as "problems." Yet, even then Defenbaugh and White did not determine how the files were going to be retrieved from the field or in what time frame. They did not set any timetable for completing the review and did not actively supervise the project or ensure that Oklahoma City managers were supervising it.
Most important, they did not notify the OKBOMB prosecutor, the FBI's General Counsel, or anyone else in FBI Headquarters about the potential problem. Their explanations for this failure varied, ranging from it was not their responsibility to do so, to not wanting to raise the problem until the review was completed, to being concerned about a possible premature leak about the problem. We do not believe their inaction was justified. We concluded that the failure by Defenbaugh and White to take timely action to resolve, or report, the problem of the belated documents was a significant neglect of their duties, and we recommend that the FBI consider discipline for these failures.
We also criticize two other FBI managers, the supervisor of the two analysts and the SAC of the Oklahoma City Field Office, both of whom were informed about the review project, for not ensuring that the review process was completed expeditiously and the appropriate officials in FBI headquarters notified.
By contrast, we believe that the two analysts should be commended for their recognition and reporting of the problem.
FBI Actions After Learning About the Belated Documents
We also concluded that FBI officials at Headquarters failed to effectively address the document problems after they were notified in May 2001. Early statements about the cause of the problem incorrectly placed blame on the FBI's computer system and FBI field offices, when the fault lay with both the field offices and the Task Force. Communication with the field offices was deficient and led to some field office SACs learning of the problem from the media. In addition, Headquarters officials gave instructions to the field without a complete understanding of the nature of the problem. Their instructions were confusing, contradictory, and incomplete, which resulted in field offices having to complete multiple and duplicative time-consuming searches.
In addition, we saw many inadequate, untimely, and inaccurate responses from the field offices to the directives in 2001. Although these failures did not cause the belated documents problem, they raise serious questions regarding the FBI's attention to detail, managerial accountability, and the reliability of information sent by field offices to Headquarters and to other field offices.
For example, we found that some field offices reported in January 2001 that they had no OKBOMB documents only to later send boxes of documents to Oklahoma City in May 2001. In addition, some field offices appeared to have "lost" the FBI archivist's December 2000 request for OKBOMB documents and never took any action on it even though the request was sent electronically. In addition, although the January and March 2001 requests from Oklahoma City for OKBOMB documents were marked as requiring "immediate" action, in many instances the field offices took weeks or months to respond.
Destruction of Documents
As described earlier, through an electronic communication dated December 20, 2000, the FBI archivist authorized FBI field offices to destroy copies of OKBOMB documents that remained in their files if the field office followed guidelines set out in the communication. Our investigation found that 2 field offices had destroyed documents before the archival process had begun, and 13 field offices destroyed some portion of their OKBOMB files following the archivist's authorization. Of the 13 field offices, only one reported following the archivist's instructions.
We attempted to determine whether these field offices had destroyed any FD-302s or inserts - in other words, the type of documents that were covered by the discovery agreement. Nine field offices either acknowledged destroying such documents or could not rule out the possibility that they had been destroyed.
These nine offices insisted, however, that they destroyed only copies of materials that had been sent to the OKBOMB Task Force. While probably true with regard to most of the destroyed documents, it is impossible to verify that all the destroyed documents previously had been sent to the Task Force. Furthermore, even if the documents had been sent to the Task Force, the information might not have been disclosed to the defense. Without the actual documents to compare with the FBI databases, it is impossible to determine with certainty whether all the destroyed documents had been disclosed to the defense.
Although our investigation revealed numerous problems with the FBI's handling of the documents in this case, we also believe the failings need to be placed in context. The OKBOMB Task Force and the FBI field offices were dealing with what, at that time, was the largest criminal investigation ever undertaken by a United States law enforcement agency. The FBI processed millions of documents and items of physical evidence, conducted thousands of interviews, and managed an investigation that involved thousands of investigators and support personnel from the FBI and other agencies. The belated documents problem should not diminish their efforts.
Rather, the problems encountered in this case shine light on several of the FBI's long-standing problems: antiquated and inefficient computer systems; inattention to information management; and inadequate quality control systems. And although the belated documents issue was presented as a discovery problem, the FBI's troubled information management systems are likely to have a continuing negative impact on its ability to properly investigate crimes. At the end of our report, we set forth recommendations to help address these systemic weaknesses.
Most of our recommendations relate to FBI computer systems and document management. The FBI initiated an automation system in 1995 that could address, in large part, the problem that we saw in OKBOMB - the inability of case investigators to know what documents have been created by other FBI investigators. The FBI's document management system - the Automated Case Support (ACS) system - utilizes "universal serialization" for document management. In any given case, all documents pertinent to a specific investigation are given serial numbers that follow sequentially regardless of the field office that created the document. Accordingly, case investigators can easily tell if they are missing the paper copy of a particular document because there will be a gap in the sequence.
We found, however, that ACS is so difficult to use that many agents and supervisors have abandoned the effort. As a result, the FBI has both a paper and an electronic information management system in place, neither of which is both reliable and effective. The FBI is now in the process of developing upgraded information technology systems as part of a project it calls Trilogy. We did not investigate Trilogy as part of this review and therefore cannot state whether ultimately it will solve the FBI's substantial information management problems. But the success of any system depends on the FBI's full commitment to its use. All FBI employees must be fully trained on the system, and the efficient use of automation must become part of the basic job requirements for all employees, not only administrative support personnel but also agents and managers.
Following are some of the specific recommendations we make:
1. Commitment to Automation and Focus on Information Management
Most of the senior managers to whom we spoke acknowledged that they had no understanding of ACS, did not use it, and relied on their secretaries to obtain for them information off of the computer. They complained that the system was too difficult to use. Indeed, about the only consistent information we received during our investigation was the universal dislike for ACS by supervisors, agents, and support personnel. On the other hand, personnel in the FBI's Information Resources Division believed that some of the complaints about ACS were the result of field managers' and FBI Headquarters' lack of commitment to automation - in other words, the system seemed cumbersome because employees refused to familiarize themselves with it.
In the past, the FBI has tolerated the development of duplicative systems: one paper and one automated. The FBI is simply too big and the cases are too large to continue to rely on paper as the chief information management tool. And because the FBI has tolerated the continued reliance on paper, the FBI's automation systems have suffered. Inefficiencies have been created, such as when field offices wait for the "electronic communication" to arrive through the mail before acting on it. In addition, when some employees are not utilizing the automated system properly, the data in the system becomes unreliable because it is not complete.
Any new automated system will meet the same fate as ACS unless FBI managers commit to using it and enforce its use throughout the FBI. We believe that the FBI must commit to relying on automation as the primary means for accessing, retaining, and transferring information.
The FBI also needs to foster and maintain an attitude throughout the agency that information management is an important part of the FBI's function, and commit to addressing deficiencies in a concerted manner. On several occasions the OIG has issued reports indicating that the FBI had significant problems in the way it handled documents and information, yet not enough was done to address the deficiencies raised.
For example, in a July 1999 report that the OIG issued on the Justice Department's Campaign Finance Task Force, we carefully tracked ten critical pieces of intelligence information and how they were handled by the FBI and the Department. We found that key information from the critical documents at issue either had not been entered into ACS in a manner that could be searched or had not been entered into ACS at all. We also found that many of the FBI personnel we interviewed were not well versed in the use of the FBI's database system and had erroneous beliefs about the way it operated. We recommended that the FBI amend its practices and regulations so that more information was entered into ACS and its computer databases. We also recommended supplementary training for FBI agents on ACS, which we called "crucial to the integrity and utility of the ACS system." Yet, despite agreeing to create a "working group with representatives from affected divisions/offices to revise procedures" and to develop a program to provide agents with additional training on ACS, the FBI did not implement these actions.
In another OIG report completed in February 2001, the Lost Trust report, we described significant failures by FBI agents who failed to turn over evidence to prosecutors during a series of cases that began in 1989 into corruption in the South Carolina General Assembly. In those cases, the FBI failed to disclose to prosecutors important FD-302s and failed to disclose others in a timely fashion. We concluded that the documents were not intentionally withheld, but that the FBI's failure to produce these documents was the result of inadequate recordkeeping and inadequate organization of the files, which was exemplified by the fact that FBI agents and prosecutors had to depend upon the records of the defense counsel's paralegal to determine whether and when a document had been produced in discovery. We described how the FBI's case files were in substantial disarray and how the FD-302s were not even filed in the official file. We concluded that the FBI agent on the case was overwhelmed with the amount of work and that FBI managers provided insufficient support to ensure that the files were properly organized.
These reports illustrated significant deficiencies in the attention the FBI has given to handling documents appropriately or correcting deficiencies. The reports also show that even in cases involving many fewer documents, the FBI had difficulty tracking and processing its documents effectively.
Unless the FBI as an institution ensures that sufficient and long-term emphasis is placed on managing the information that it collects, problems will continue to exist. The problems may not be as publicly exposed as they were in OKBOMB, but they will continue to bedevil individual agents and prosecutors. We also would note that although the problem has been framed in this case in terms of the defense not obtaining access to certain material, some of the information also did not get to the prosecutors. The failure to manage information properly has important implications for the FBI's ability to share information, both with prosecutors and other law enforcement agencies. When information must flow through cases, agents, and even agencies, the FBI must have in place a reliable, trustworthy, and useful information management system. This is even more important because of the need for sharing information in the wake of September 11.
2. User Friendly and Reliable Document Management Systems
We found that relatively simple tasks in ACS require multiple steps and, frustratingly, the system "crashes" or "freezes" regularly. Many times when we interviewed administrative employees at FBI field offices and asked them to demonstrate ACS, the system stopped working.
While ACS allows full-text retrieval, it is very time-consuming and therefore not an effective case management tool. The FBI's case management system must have the ability to conduct quick searches. In addition, the FBI needs to combine its various databases. For example, in the OKBOMB case the FBI used ACS to catalog documents, Rapid Start to track leads, and ZyIndex for full-text retrieval. Using separate systems to manage particular cases presents a series of problems, including the difficulty of training FBI personnel on how to effectively use the multiple systems. Further, increasing the number of database systems increases the chances that information will not be found, since not every FBI employee will think to check every system.
In one of several criticisms about the FBI's lack of current technology, FBI officials noted that employees of the FBI - an agency that needs to gather information - only had access to the Internet through a limited number of machines and could only e-mail other FBI employees.
As the FBI develops its next generation of information-management systems, we urge it to consult extensively with its agents, supervisors, and administrative personnel so that the people who actually use the system will have a say in how a system can be designed to meet their needs.
3. Simplification of Recordkeeping
The FBI's current document management system requires paper documents to move through multiple procedural steps and multiple physical locations. We recommend that the FBI work toward simplifying and automating its document management system. For example, FBI supervisors should be able to review electronic versions of documents rather than having paper sent from agents to secretaries to rotors and then to supervisors.
In addition, the FBI should reduce the mind-boggling variety of forms currently in use. For example, although we were told the difference between FD-302s and inserts, in practice they both appear to contain substantive information. In fact, in OKBOMB the inserts were disclosed to defense attorneys because prosecutors could make no useful distinction between the information on the inserts and the information on FD-302s.
The FBI has many procedures governing document and evidence processing, including such minutiae as prescribing when pencil or specific colored ink should be used for certain tasks. Despite these detailed procedures, we found considerable variation among the field offices. The FBI should simplify its forms and procedures, but ensure that they are being followed.
The FBI's training on its automated systems is inadequate. We found that new agents received 10 hours of training on ACS. Two in-service classes are also offered: a 2-day class that most agents eventually take and a 3-day class usually taken by support personnel. We were told that 10 hours was insufficient to teach new agents how to effectively use ACS. During our review, the FBI Information Resources Training Unit, which is responsible for new agent and in-service computer training, also told us they believed that they had not received clear guidance as to what ACS skills agents need to perform their jobs effectively. Therefore, the training unit believed that it was not necessarily teaching the minimum set of skills agents needed.
In addition, new agents are not required to demonstrate minimum competence in ACS to graduate from the FBI's training academy. However, agents-in-training are required to demonstrate core skills in firearms, knowledge of legal issues, and investigative techniques. We believe the FBI should consider adding computer usage as one of the core skill requirements needed to graduate from the training academy.
The FBI should consider requiring mandatory refresher training on its automated systems and document handling for all employees, especially managers and supervisors. The FBI requires employees to regularly requalify on their firearms proficiency. We believe similar attention should be paid to training on automation and information management.
5. Post-Case Reviews
As part of our investigation, we interviewed prosecutors and senior investigators who participated in other major FBI cases, and we found no formal process in place for learning from these prior experiences. We recommend that the FBI and the Department of Justice initiate a post-case review process and develop case management protocols for large investigations like OKBOMB. Substantial time and effort can be saved if the case investigators and prosecutors do not have to reinvent administrative and substantive solutions to problems and issues that commonly arise during major cases.
The significance of the belated documents and the OIG investigation of the circumstances surrounding them is much broader than the impact of the problem on the OKBOMB case. We found a wide variety of flaws in the FBI's information systems and document handling that the FBI has known about for some time, either because the OIG has discussed them in other reports or because the FBI has found them through their own reviews.
However, until recently, the FBI has made insufficient efforts to correct the deficiencies. The FBI's information technology systems and procedures for handling documents was - and still is - inordinately cumbersome and badly in need of repair. The FBI's computer system cannot handle or retrieve documents in an efficient, useful, or comprehensive way. FBI employees need, and deserve, better computer systems and support.
As the tragic attacks of September 11 revealed, the FBI continues to be faced with cases of the scale and dimensions of OKBOMB, and the lessons learned from OKBOMB continue to be important. To adequately fulfill its responsibilities in major cases, as well as in smaller ones, the FBI must significantly improve its document handling and information technology. This requires a sustained commitment of resources and effort, but we believe the FBI must make this commitment if it is to avoid the serious problems that occurred in the OKBOMB case.
I would be pleased to answer any questions.