Department of Defense Appropriations Act, 2016--Motion to Proceed

Floor Speech

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Mr. GRASSLEY. Before I speak on the main subject for which I came to the floor, I want to compliment the Senator from Texas for both of the points he has made about the renaming of the street by the Chinese Embassy and also for what he has done in regard to Kate's Law today.

Maybe something good has come out of his presentation on the floor, even though he wasn't able to proceed, in that if there is a real desire in the Judiciary Committee, which I chair, for a bipartisan approach to getting mandatory sentences for criminal felons who have been deported and have come back into the country, so that we don't have 121 people murdered in the future, as we have had in the last 5 years--because of mandatory sentencing under Kate's Law--I would be glad to pursue that.

The reason this bill didn't go through the committee in the first place is that we felt there would be every effort to stop it from getting out of committee.

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Before I go to my full prepared remarks, I want to tell my colleagues why we ought to pass the legislation I am going to refer to. I will summarize by saying that the 1978 inspectors general law says that an inspector general is entitled to all material he needs in each agency to do the work that he has to do.

Well, about 3 months ago, probably at the behest of the FBI, a single person in the Justice Department, in the Office of Legal Counsel, issued an opinion that said ``all'' doesn't mean all. So that means an inspector general has to go through a lot of redtape in order to get the material he or she needs to do their job.

I don't need to tell my colleagues how important inspectors general are. They are important because they help us do our congressional job of oversight to ferret out waste, fraud, and mismanagement.

Americans have a right to know when our government is misbehaving or wasting taxpayer dollars. To ensure accountability and transparency in government, Congress created inspectors general, sometimes referred to as IGs, as their eyes and ears within the executive branch.

Those independent watchdogs are uniquely positioned to help Congress and the public fight waste, fraud, and abuse in government. But IGs cannot do their job without timely and without independent access to all agency records. That is why ``all'' means all.

Agencies cannot be trusted to restrict the flow of potentially embarrassing documents to the IGs who oversee them.

Watchdogs need access to those documents to do their job. They are mandated by law to keep Congress fully informed about waste, fraud, and abuse problems. If the agencies can keep IGs in the dark, then this Congress will be kept in the dark as well. If given the chance, agencies will almost always choose to hide their problems from scrutiny. In other words, the public's business that ought to be public sometimes does not become public and there is less accountability.

Getting back to the 1978 act, when Congress passed this act, we very explicitly said that IGs should have access to all agency records. Let's get back to what happened. What happened was one person in the Department of Justice said that ``all'' doesn't mean all. Does it make sense to have one person out of the entire bureaucracies of the United States make a ruling that when Congress says ``all'' means all, all of a sudden ``all'' doesn't mean all?

If inspectors general deem a document necessary to do their job, then the agency should turn it over immediately. Inspectors General are designed to be very independent but also to be a part of the agency. They are inside so they can see when the laws aren't being followed, when the money isn't being spent according to law. They are there to help agency leadership identify and correct waste, fraud, and abuse. I would hope every agency head appreciates a person whose main responsibility is to help see that the law is followed.

Fights between an agency and its own inspector general over access to documents are a waste of time and a waste of taxpayers' money. The law of 1978 requires that inspectors general have access to all agency records precisely to avoid these costly and time-consuming disputes. However, since 2010 a handful of agencies--led by the FBI, the law enforcement agency of the U.S. Government--has refused to comply with this legal obligation that ``all'' means all. Agencies started to withhold documents and argued that IGs are not entitled to ``all records'' even though that is exactly what the law says.

In other words, it is pretty simple: ``All'' means all. But on this island of DC, surrounded by reality, maybe common sense doesn't prevail and maybe ``all'' doesn't mean all. The law was written to ensure that agencies cannot pick and choose when to cooperate with the IGs and when to withhold records. Unfortunately, that is precisely what several agencies started doing after this single person in the Department of Justice made this ruling.

The Justice Department claimed that the inspector general could not access certain records until Department leadership gave them permission. Requiring prior approval from any agency leadership for access to agency information undermines the inspector general's responsibilities and, most often, his independence. That is bad enough, but it also causes wasteful delays. It effectively thwarts inspector general oversight. This is exactly the very opposite of the way the law is supposed to work.

After this access problem came to light, Congress took action. The 2015 Department of Justice Appropriations Act declares that ``no funds provided in this Act shall be used to deny the Inspector General of the Department of Justice timely access to all records, documents, and other materials. ..... ''

The new law also directed the inspector general to report to Congress within 5 days whenever there was failure to comply with that statutory requirement. In other words, these people take an oath to uphold the laws. The law says ``all'' means all, and somehow they can ignore it.

In February alone, the Justice Department's inspector general notified Congress on three separate occasions in which the FBI failed to provide access to records requested for oversight investigations. IGs for the Environmental Protection Agency, for the Department of Commerce, and for the Peace Corps have experienced similar stonewalling. Then, in July, the Justice Department's Office of Legal Counsel released a memo arguing that we did not really mean all records when we put those words in the law of the United States of America. That is the one person I am talking about. The Office of Legal Counsel released this memo that says ``all'' doesn't mean all even though the law says ``all'' means all. So let me be clear. We meant what we said in the IG Act: All records really means, pretty simply, all records.

In early August, I chaired a hearing on this opinion and the devastating impact it is already having on the work of inspectors general across government. Multiple witnesses described how the opinion handcuffed inspectors general and brought their important work to a standstill. In fact, the Internal Revenue Service had already cited the misguided Office of Legal Counsel opinion in order to justify stiff-arming its IG access to all records.

Even the Justice Department's witness disagreed--get this--we had a Justice Department official testify, and that witness disagreed with the results of the Office of Legal Counsel opinion and directly told us that we ought to support and initiate legislative action to solve the problem.

Now, here is a high-level person, above the Office of Legal Counsel, saying we ought to pass a bill to correct what that agency says had had an impact that wasn't surmised would happen--that we ought to pass a bill when they could just withdraw the Office of Legal Counsel ruling.

As a result of that testimony, following that hearing, 11 of my colleagues and I sent a bipartisan, bicameral letter to the Department of Justice and to the inspector general community of the various agencies. In that letter, the chair and ranking member of the committees of jurisdiction in both the House and Senate asked for specific legislative language to reaffirm that ``all'' means all for all inspectors general, every one of them.

It took the Justice Department 3 months to respond to that letter for the very same thing they had testified about--that we ought to pass a law to do it, and we asked them for their help. The language it provided, however, fails to address the negative effects the Office of Legal Counsel's opinion is already having on the ability of IGs to access their agency records all across government. However, the inspector general community throughout our bureaucracy responded to our letter within 2 weeks and provided language that is actually responsive to our request.

In September, a bipartisan group of Senators and I incorporated the core of this language in S. 579, called the Inspector General Empowerment Act of 2015--a bill we shouldn't even have to pass, if Justice would just withdraw this Office of Legal Counsel opinion that causes this problem in the first place.

Specifically, I was joined in this effort on this bill by 11 other Members, including Senators McCaskill, Carper, Baldwin, and Mikulski. Senator Mikulski serves as vice chair of both the Appropriations Committee and the subcommittee which has jurisdiction over appropriations for the Justice Department. She and Chairman Shelby were the authors of the appropriations rider I recently spoke about.

In July, 1 week after the Office of Legal Counsel issued its awful legal opinion, Senators Mikulski and Shelby sent a letter to the Justice Department correcting the Office of Legal Counsel's misreading of that appropriations rider, also known as section 218. I will read a few excerpts from that letter from the two highest people on the Appropriations Committee, who are in a pretty good position to tell these bureaucrats where to go and particularly where to go when the law is very clear and the Appropriations Committee is very clear that some opinion by the Office of Legal Counsel isn't even justified. Quote:

We write to inform you that Office of Legal Counsel's interpretation of Section 218--and the subsequent conclusion of our Committee's intention--is wrong.

Surmising that multiple interpretations of section 218 created uncertainty, Office of Legal Counsel chose one of the three rationales that most suited its own decision to withhold information from the Office of Inspector General.

This conclusion was not consistent with the Committee's intention at all. Rather, the Committee had only one goal in drafting section 218. ..... to improve OIG access to Department documents and information.

We expect the Department and all of its agencies to fully comply with section 218, and to provide the Office of Inspector General with full and immediate access to all records, documents, and other material in accordance with section 6(a) of the Inspector General Act. End Quote.

So there we have the appropriators saying what our bill is trying to do, saying that it is wrong for one person in the Office of Legal Counsel to overturn 30 years of law that we have had in the inspector general's office.

I applaud my colleagues on this very important Appropriations Committee for standing up for inspectors general, and I applaud my colleagues who have joined me in sponsoring the legislation entitled The Inspector General Empowerment Act of 2015.

I especially thank Senators Johnson and McCaskill for working with me on this legislation from the very beginning and for their work in getting this bill through their committee. Apparently the plain language of the IG Act and the 2015 appropriations rider was somehow not clear enough for the Office of Legal Counsel to understand, so the Inspector General Empowerment Act includes further clarification that Congress intended IGs to access all agency records--and these next words are very important--notwithstanding any other provision of law unless other laws specifically state that the IGs are not to receive such access.

This ``notwithstanding any other provision of law'' language is what the OLC opinion indicates would be necessary before OLC would believe that Congress really means to ensure access to all records. But overturning an OLC opinion that was roundly criticized by both sides of the aisle is just the beginning. In addition, the legislation also bolsters IG independence by preventing agency heads from placing them on arbitrary and indefinite administrative leave.

The bill would also promote greater transparency by requiring IGs to post more of their reports online. The bill would increase accountability by equipping IGs with tools to require testimony from contractors, grantees, and other employees who have retired from the Government, often while under investigation by an IG.

In September, we attempted to pass this bill via unanimous consent. It has been more than a month since the leadership asked whether any Senator would object. Not one Senator has put a statement in the Record or come to the floor to object publicly. At the August Judiciary Committee hearing, there was a clear consensus that Congress needed to act legislatively and needed to overturn the Office of Legal Counsel opinion as quickly as possible.

Senator Cornyn noted that the Office of Legal Counsel opinion is ``ignoring the mandate of Congress'' and undermining the oversight authority that Congress has under the Constitution.

Senator Leahy said that this access problem is ``blocking what was once a free flow of information'' and called for a permanent legislative solution.

Senator Tillis stated that the need to fix this access problem was ``a blinding flash of the obvious'' and that ``we all seem to be in violent agreement that we need to correct this.''

However, some have raised concerns about guaranteeing IG access to certain national security information. I wish to explain why this bill should not be held up for that reason.

First, this bill is cosponsored by a bipartisan group of Senators, including Democrats and Republicans on the Intelligence Committee. These people know something about the protection of national security. These Senators are Senator Mikulski, Senator Lankford, and Senator Collins.

Second, the inspector general of the intelligence community supports the bill.

Third, the bill would not affect intelligence agencies under title 50, such as the CIA and the Office of the Director of National Intelligence.

Fourth, the Executive orders restricting and controlling classified information are issued under the President's constitutional authority. This bill does not in any way attempt to limit that constitutional authority at all. It clarifies that no law can prevent an IG from obtaining documents from the agency it oversees unless the statute explicitly states that IG access should be restricted. No one thinks this statute could supersede the President's constitutional authority.

Fifth, there is already a provision in the law that allows the Secretary of Defense and the Director of National Intelligence to halt an inspector general review to protect vital national security interests.

Nothing in the bill would change that already existing carve-out for the intelligence community. All IGs should have the same level of access to records that their agencies have, and all IGs are subject to the same restrictions and penalties for disclosure of classified information. No inspector general's office has ever violated those restrictions. They have an unblemished record of protecting national security information.

If there are changes that can be made to the bill so that it can pass by unanimous consent, I am ready to consider those. However, any changes or carve-outs for the intelligence community should not impact other IGs. The point of the bill is to overturn the Office of Legal Counsel opinion and restore complete, timely, and independent access for IGs to agency records. That goal must be preserved.

We all lose when inspectors general are delayed or prevented in doing their work. Every day that goes by without a fix is another day that watchdogs across the Government can be stonewalled. I urge my colleagues to support this bill.

Finally, I ask unanimous consent to have printed in the Record letters that I mentioned earlier and a letter I received from the inspector general community today showing why the Department of Justice's proposed language is insufficient to solve the problem at hand. I also ask unanimous consent to have printed in the Record an op-ed that was recently published in the Washington Post in support of this bill.

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