Glenn A. Fine
U.S. Department of Justice
Senate Committee on the Judiciary
"Counterterrorism and National Security Issues in the Department of Justice"
June 6, 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 to discuss the work of the Office of the Inspector General (OIG) relating to counterterrorism and national security issues in the Department of Justice (Department).
This morning, I plan to highlight several ongoing and recently completed OIG reviews in the Immigration and Naturalization Service (INS), the Federal Bureau of Investigation (FBI), and other Department components that relate to counterterrorism. In addition, I will describe a review we have initiated that will examine the FBI's handling of information and intelligence prior to the September 11 terrorist attacks, including a document known as the "Phoenix EC," and issues raised in a May 21, 2002, letter to Director Mueller from FBI Special Agent Coleen Rowley. Finally, I will address the importance of creating a culture in the FBI that encourages employees to report problems or misconduct in their agencies, and I will discuss the OIG's role in investigating complaints of whistleblower retaliation.
Since the September 11 terrorist attacks, the OIG has shifted many of its oversight resources to match the Department's priority on counterterrorism issues. We are expending significant resources examining programs and operations that relate to the Department's ability to detect and deter terrorism in the United States.
At the outset of my remarks, let me express my respect for the many employees in Department components like the FBI and the INS who serve on the front lines in our nation's counterterrorism efforts. While the OIG has found significant deficiencies in INS and FBI systems and operations over the years, this should in no way diminish the important contributions that thousands of employees at these agencies make on a daily basis. I offer my comments and concerns today in the same vein that we present findings from our audits, inspections, and special reviews - with the intent to help improve the Department's ability to better accomplish its critical mission.
Less than three weeks ago, the OIG released a 188-page report that examined why the INS mailed forms notifying a Florida flight school that two September 11 terrorists had received approval to change their immigration status from "visitors" to "students" six months after the terrorists attacks. The mailing of these forms raised questions about the INS's handling of change of status applications for Mohamed Atta and Marwan Alshehhi and their three admissions into the United States in 2000 - 2001. The incident also raised serious concerns about the INS's monitoring and tracking of foreign students in the United States.
The OIG found that the INS's adjudication of Atta's and Alshehhi's change of status applications and its notification to the flight school were untimely and significantly flawed. First, the INS took more than 10 months to adjudicate the two men's applications. As a result, Atta's and Alshehhi's applications were not adjudicated until July and August 2001, respectively, well after they had finished their flight training course at the Florida flight school. Second, the INS adjudicator who approved their applications did so without adequate information, including the fact that Atta and Alshehhi had left the country two times after filing their applications, which meant they had abandoned their request for a change of status. And third, even after the INS took 10 months to approve the applications, the notification forms were not sent to the Florida flight school for an additional seven months because the INS failed to adequately supervise a contractor who processed the documents.
Atta's and Alshehhi's cases highlight important weaknesses in the INS's handling of foreign students. Historically, the INS devoted insufficient attention to foreign students, and its current, paper-based tracking system is inefficient, inaccurate, and unreliable. SEVIS, the new Internet-based system the INS is developing, has the potential to dramatically improve the INS's monitoring of foreign students. But we found that it will not solve all the problems in the INS's monitoring system.
Unless the INS devotes sufficient resources and effort to implement and use SEVIS effectively, many problems will continue to exist. Among other things, the INS must ensure that it fully reviews the schools certified to enroll foreign students (currently more than 70,000), make certain that accurate and timely information is entered into SEVIS, provide and enforce clear guidance for INS officers and schools about their responsibilities and the procedures related to foreign students, require that school officials and INS employees are trained properly on these requirements and procedures, and ensure that information in SEVIS about schools and students is used effectively by the INS to detect and deter abuse.
Our report offers 24 recommendations to help address the problems that Atta's and Alshehhi's cases highlighted and that our review of the INS foreign student program revealed. We believe these recommendations will improve the usefulness of SEVIS and help address the serious deficiencies we found in our review. While many of these recommended changes will require additional resources, we believe these efforts are necessary for the INS to improve its handling and monitoring of foreign students.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 directed the INS to develop an automated entry and exit control system that would collect a record for every alien departing the United States and automatically match these departure records with the record of the alien's arrival. This automated system was envisioned to replace the manual system of collecting I-94 cards and to enable the INS, through on-line searching procedures, to identify lawfully admitted nonimmigrants who remain in the United Sates beyond the period authorized.
In response to this requirement, the INS introduced a pilot system in 1997 to automate the processing of air passenger I-94 forms. This automated I-94 system captured arrival and departure data electronically and uploaded non-U.S. citizen data to an INS database.
In August 2001, the OIG issued an audit of the design and implementation of the automated I-94 system and found that the INS had not properly managed the project. Despite having spent $31.2 million on the system from fiscal year (FY) 1996 to FY 2000, the INS: (1) did not have clear evidence that the system meets its intended goals; (2) had won the cooperation of only two airlines; (3) was operating the system at only a few airports; and (4) was in the process of modifying the system. INS officials estimated that an additional $57 million would be needed for FY 2001 - FY 2005 to complete the system. These projections include development, equipment, and operation and maintenance costs.
As a result of our concerns, we made a series of recommendations to help ensure that the INS rigorously analyzes the costs, benefits, risks, and performance measures of the automated I-94 system before proceeding with further expenditures. Subsequent to our audit and the September 11 attacks, the INS decided that resources should be devoted to developing the entry-exit system required by the USA Patriot Act rather than continuing to spend money revamping the automated I-94 system. Consequently, the INS officially terminated the automated I-94 project on February 18, 2002.
In the six months following the September 11 attacks, the OIG initiated and completed a series of follow-up reviews that examined the INS's efforts to address national security deficiencies identified in previous OIG inspections. The OIG examined the INS's progress in securing the northern border, linking INS and FBI automated fingerprint identification systems, improving the Visa Waiver Program, addressing security concerns regarding the Transit Without Visa Program (TWOV), and tracking nonimmigrant overstays. In each of these follow-up reviews, the OIG found that many of the security concerns we identified in our original reports continued to exist.
In a report issued in March 1998, the OIG examined how two individuals, Gazi Ibrahim Abu Mezer and Lafi Khalil, entered and remained in the United States before their July 1997 apprehension in Brooklyn for allegedly planning to bomb the New York City subway system. Mezer was subsequently convicted and sentenced to life imprisonment. Khalil was acquitted of charges stemming from the bombing plot but found guilty of immigration violations.
In our report, we described how both men were able to enter the United States and remain here. Khalil, who had a Jordanian passport, applied to the U.S. Consular Office in Jerusalem for a visa to travel through the United States en route to Ecuador. The consular official gave him a 29-day, C-1 transit visa after a three-minute interview. When Khalil arrived in New York on December 7, 1996, an immigration inspector mistakenly granted him a B-2 tourist visa valid for six months. He overstayed that visa and was arrested in Brooklyn, along with Mezer, in July 1997.
Mezer, who claimed Jordanian nationality, received a visa from the Canadian Embassy in Israel to study in Canada. Shortly after arriving in Canada in September 1993, he applied for convention status, which is similar to political asylum in the United States, based on his claimed fear of persecution in Israel. Mezer later admitted that he had traveled to Canada with the intent to reach the United States.
In 1996, Mezer was detained by the Border Patrol twice while attempting to cross the border illegally into Washington State. Each time the Border Patrol allowed him to voluntarily return to Canada. In January 1997, the Border Patrol apprehended Mezer in Washington a third time and initiated formal deportation proceedings. Mezer then filed an application for political asylum in the United States and was later released on a $5,000 bond. In his asylum application, Mezer claimed that Israeli authorities had persecuted him because they wrongly believed he was a member of Hamas. The immigration court requested comments from the State Department about Mezer's asylum application, and the State Department returned the application with a sticker indicating that it did not have specific information on Mezer. Mezer's attorney later withdrew the asylum application, stating that Mezer had returned to Canada. Mezer was arrested shortly thereafter in Brooklyn for plotting to bomb the subway system.
During our review, we did not find any information that Mezer was a known terrorist. However, we found that his case revealed serious systemic problems. Mezer entered and remained in Canada despite two criminal convictions there, which highlighted the ease of entry into Canada and the difficulty of controlling illegal immigration from Canada into the United States. We also noted the inadequacy of Border Patrol resources to address illegal immigration along the northern border. In addition, Mezer's case reflected confusion between U.S. government agencies as to which agency would conduct a check for information on whether an asylum applicant was a terrorist. We recommended that the INS and the State Department coordinate more closely on accessing and sharing information that would suggest a detained alien or asylum applicant may be a terrorist.
The Department's Office of Justice Programs (OJP) awards grants for specialized training and equipment to fire and emergency service departments to enhance their ability to respond to domestic acts of terrorism. In our audit of this program, we found that grant funds had not been awarded quickly, and that grantees were slow to spend available monies. We found that as of January 15, 2002, more than half of the total funds appropriated for equipment under the grant program from FY 1998 through FY 2001 - $141 million out of $243 million - still had not been awarded. About $65 million in grant funds awarded was still unspent. We also found that nearly $1 million in equipment purchased with grants was not available for use because grantees did not properly distribute the equipment, could not locate it, or had not been trained adequately on how to operate it.
The Department's counterterrorism and law enforcement responsibilities require timely access to automated information and effective systems for sharing that information. OIG reviews in the FBI have identified mission-critical computer systems that were not adequately planned; experienced long delays in implementation; or failed to share information with other FBI systems. In addition, OIG reviews have disclosed serious problems in computer security that could lead to the compromise of sensitive systems and data.
The OIG has initiated a wide range of reviews in the FBI that examine information technology (IT), counterterrorism, and national security issues.
I testified before this Committee in March of this year about the OIG report on the belated production of documents in the Oklahoma City bombing case (OKBOMB). The disclosure of documents one week before the scheduled execution of Timothy McVeigh raised questions as to whether the FBI had intentionally failed to disclose documents to the defense before trial, and why the failure to produce documents occurred.
Our investigation found that widespread failures by the FBI led to the belated disclosure of more than 1,000 documents in the OKBOMB case. 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; we found that both share responsibility. Importantly, though, we did not find that any FBI employees intentionally withheld from the defense any documents they knew to be discoverable.
This review highlighted the significant weaknesses in the FBI's computer systems which we found to be 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.
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 and analyze information throughout the FBI. At the end of our report, we set forth recommendations to help address these systemic weaknesses, most of which relate to FBI computer systems and document management.
Following up on several of the findings in our OKBOMB report, the OIG is currently reviewing the FBI's management of its IT investments. This audit will examine whether the FBI is adequately managing the acquisition of its IT systems.
To conduct this audit, the OIG is assessing both the FBI's current IT investment management practices and its new IT investment and management strategy. We are interviewing personnel within the FBI's Information Resources Division, the Criminal Justice Information Services Division, the Laboratory Division, the Inspections Division, the Finance Division, and the Strategic Planning Office. In addition, we are conducting a case study of Trilogy, the FBI's comprehensive initiative to upgrade the agency's IT systems.
Another ongoing OIG review in the FBI examines the counterterrorism funding provided to the FBI since FY 1995. In addition to identifying total dollar amounts of funding dedicated to counterterrorism, we plan to examine how the FBI has spent its counterterrorism resources since FY 1995, including the extent to which resources have been reallocated since September 11, 2001. As part of this review, we are also evaluating the process by which the FBI determines its counterterrorism resource requirements and manages it counterterrorism resources.
Specifically, this review will examine:
This ongoing OIG review is examining the FBI's allocation of resources to investigate the varied crimes under its jurisdiction. Our objectives are to determine the types and number of cases the FBI investigates; assess performance measures for FBI casework; and determine if the mix of cases investigated by the FBI comports with FBI priorities. This review will evaluate trends in various types of cases worked by the FBI over the past six years and evaluate any disparities among different geographic regions and FBI field offices. In addition, in a second and separate part of this review, we plan to obtain opinions from other federal, state, and local law enforcement agencies about FBI support on joint cases and their reliance on FBI resources.
The OIG recently initiated a review to examine the costs of maintaining the FBI's overseas presence at 44 legal attache offices. As part of our review, we will examine the FBI's process for determining where new legal attaché offices should be established and the FBI's coordination with other agencies during this decision-making process. In addition, we plan to examine the types of activities performed by the legal attaché offices. Finally, we plan to assess the FBI's coordination with U.S. and foreign law enforcement agencies and identify any duplication of effort with law enforcement agencies and legal attaché offices from other U.S. government agencies.
Several findings from a July 1999 OIG report, The Handling of FBI Intelligence Information Related to the Justice Department's Campaign Finance Investigation, are particularly relevant in light of the FBI's counterterrorism mission.
The FBI must be able to rapidly identify, analyze, and disseminate pertinent intelligence of law enforcement information in its possession. In this 1999 review, the OIG examined why classified intelligence information pertaining to the Department's Campaign Finance Task Force investigation was not appropriately disseminated within the FBI and the Department and subsequently to congressional oversight committees. The OIG found that a series of problems, including the National Security Division's failure to disseminate information in a consistent manner, ultimately contributed to this failure.
The review also found deficiencies in the FBI's use and maintenance of its computer database systems. A key feature of the FBI's Automated Case Support (ACS) system - the FBI's primary case management database that contains leads and other FBI documents - is a user's ability to retrieve information regarding particular individuals, including whether they have been the subjects of other investigations. However, we found that FBI agents often did not enter important information into the database and that agents often did not conduct appropriate searches for information using the database. The end result was that the FBI could not be confident that a search for information in the ACS databases would, in fact, provide all pertinent information in the FBI's possession. We found that the FBI's information management problems were caused by a variety of factors, including inappropriate policies and insufficient training, and we made recommendations to address these issues. However, two years later we found that many of these same shortcomings had not been corrected and contributed to the shortcomings identified during our review of the FBI's belated production of documents in the OKBOMB case.
Last week the OIG initiated an investigation that will examine aspects of the FBI's handling of information and intelligence prior to the September 11 terrorist attacks. The investigation will focus on, among other things, how the FBI handled an electronic communication written by its Phoenix Division in July 2001 regarding Islamic extremists attending civil aviation schools in Arizona ("the Phoenix EC") and issues raised in the May 21, 2002, letter to the FBI Director from Special Agent Coleen Rowley, the Minneapolis Chief Division Counsel.
The OIG had conducted a preliminary inquiry in the fall of 2001 into the handling of the Phoenix EC at FBI Headquarters. We decided to refer that matter to the Senate and House Intelligence Committees September 11 Joint Inquiry (Joint Inquiry), the congressional committee established to review the intelligence and law enforcement information related to the September 11 attacks. Our decision to refer the matter to the Joint Inquiry was based on our belief that the Phoenix EC needed to be analyzed in the context of other information available to the FBI and other intelligence agencies at the time. However, in light of recent events and several requests for the OIG to conduct a review of how intelligence information was handled at the FBI prior to September 11, including a specific request from Director Mueller, we have agreed to undertake a full investigation of the Phoenix EC, the important issues raised by Special Agent Rowley's letter, and the FBI's handling of other intelligence information prior to the September 11 attacks. Director Mueller also has asked the OIG to provide any recommendations, based on our review, as to how the FBI can best handle its counterterrorism responsibilities.
We are presently assembling a team composed of OIG attorneys, investigators, and other staff to conduct this investigation. To the extent possible, we will coordinate our investigation with the Joint Inquiry's investigation.
One of the most important changes the FBI can make as it looks to the future is to foster a culture in which employees are able to identify deficiencies in programs or operations and bring their concerns to management without fear of retaliation. The OIG supports strong protections for FBI whistleblowers as a way to improve agency operations. FBI whistleblowers have been the impetus for significant change in the FBI, such as improvements made in the FBI Laboratory.
A great deal of confusion continues to exist about the protections afforded FBI employees and the procedures employees must follow to activate these protections. In this statement, I will provide a brief overview of the whistleblower rules that apply to FBI employees and the OIG's role in this process.
Most federal employees who believe they have been subjected to reprisal for making a protected disclosure under the Whistleblower Protection Act of 1989 may request an investigation by the Office of Special Counsel or, in appropriate circumstances, pursue an individual right of action before the Merit Systems Protection Board. See sections 1214 and 1221 of title 5 of the United States Code. However, FBI employees are exempted from the Whistleblower Protection Act. Instead, they are covered by a policy developed by the Department pursuant to a delegation of authority from the President to the Attorney General in April 1997 to provide protections for FBI whistleblowers "in a manner consistent with applicable provisions of sections 1214 and 1221 of [title 5]."
The Department has therefore established procedures under which FBI employees may make protected disclosures and processes by which allegations of reprisal against such FBI employees will be investigated. Under these regulations, FBI employees must bring their complaint to one of several specified individuals or organizations for the complaint to be considered a "protected disclosure." Presently, these individuals include the Attorney General, Deputy Attorney General, FBI Director, FBI Deputy Director, OIG, the Department's Office of Professional Responsibility (DOJ OPR), or the highest ranking official in any FBI field office.
Second, the FBI employee making the disclosure must reasonably believe that the disclosure evidences a violation of any law, rule or regulation or mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to the public health or safety.
Once a protected disclosure has been made to one of the specified entities, the regulations prohibit any FBI or Department employee from taking, directing others to take, recommending, or approving any personnel action with respect to the disclosing employee as a reprisal for the protected disclosure. If the employee believes that he or she has been the subject of a personnel action as a reprisal for making a protected disclosure, the employee may report the alleged reprisal to either the OIG or DOJ OPR. As is the case with non-FBI employees, to sustain a case of reprisal for a protected disclosure FBI employees ultimately must show that the protected disclosure was a contributing factor in the personnel action about which they complain.
The OIG and DOJ OPR share the responsibility for investigating allegations of whistleblower retaliation against FBI employees. If no finding of retaliation is made, FBI whistleblowers may still present their claim to the Director of the Office of Attorney Recruitment and Management at the Department (Director). If the OIG or DOJ OPR finds retaliation, the report is transmitted to the Director who has the authority to order remediation unless the FBI can show by clear and convincing evidence that retaliation did not occur. A decision by the Director may be appealed to the Deputy Attorney General.
The OIG has handled various allegations of reprisal raised by FBI whistleblowers. Moreover, in a matter initially raised to the OIG by an FBI whistleblower, we are nearing completion of our review of whether the FBI imposes a "double standard" in its discipline process - specifically, whether the FBI disciplines its senior managers less harshly than other employees.
This concludes my prepared statement. I would be pleased to answer any questions.