Statements on Introduced Bills and Joint Resolutions - S 1440

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. GRASSLEY (for himself and Mr. LEAHY):

    S. 1440. A bill to reform the Federal Bureau of Investigation; to the Committee on the Judiciary.

    Mr. GRASSLEY. Mr. President, I am proud to be reintroducing the FBI Reform Act of 2003 with Senator PATRICK LEAHY. This reform bill is designed to address the accountability problems that have plagued the FBI for years. For almost a decade, I have been engaged in FBI oversight, and during that time, I have seen numerous scandals and coverups. I am pleased to see that Director Mueller is committed to changing the culture of the FBI. He is making good strides toward overcoming past bad policies and procedures at the Bureau. However, Congress also has a role to play in this overhaul of the FBI.

    A little over a year ago, a bill similar to this one was approved unanimously by the Judiciary Committee. Since then, a number of the provisions of that bill were enacted in separate legislation. However, some of the most important provisions of that bill—provisions protecting whistleblowers, creating a Security Career Program and Counterintelligence Polygraph Program, and ending the double standard for discipline of senior FBI executives—have yet to be taken up by the full Senate. These provisions are needed to maintain America's confidence in the FBI.

    When I was growing up, I was surrounded by a generation that believed the FBI could do no wrong. Yet today at a time when we rely on the FBI to protect us from acts of catastrophic terrorism that endanger the lives of the American people, a time when the need for confidence in the FBI is at its greatest, Americans' trust and confidence in the FBI has been shaken. Do not get me wrong, the majority of FBI agents and especially those who are posted all over the heartland of this country, are honorable, hard working Federal servants who are doing a great job of protecting us from harm. However, there are a few bad apples that must be dealt with because their actions give the Bureau a black eye. The spy cases of Robert Hanssen and Chinese espionage in Los Angeles have highlighted internal security problems. Retaliation against agents like John Roberts, Frank Perry, and Patrick Kiernan, who did their duty investigating internal wrongdoing and spoke the truth to Congress, highlight continuing cultural hostility to criticism. This bill goes a long way to address these systemic problems and shore up trust and confidence in the FBI in the wake of these concerns.

    While Congress sometimes follows a hands-off approach to the FBI, the Judiciary Committees hearings and other oversight activities over the last 2 or 3 years have highlighted the actions that Congress needs to take to do its part in reforming the Bureau. The hearings that spurred this legislation demonstrated the need to extend adequate whistleblower protections to the FBI, enhance the Bureau's internal security program, end the double-standard for discipline, and modernize the FBI's information technology systems. These and additional management issues the committee has explored are reflected in this bill. As the Patriot Act has increased the FBI's powers, as the American people have increased their reliance on the FBI to stop terrorism, and as we continue to increase the FBI's funding, it is time for Congress to take action with a more hands-on approach. Let me provide some more detail about the most important provisions of the FBI reform bill.

    First, title I of the bill contains much needed protections for FBI whistleblowers. As my colleagues know, I have long held that good government requires that the brave men and women who blow the whistle on wrongdoing be protected. It is my strong belief that disclosures of wrongdoing by whistleblowers are an integral part of our system of checks and balances. However, although whistleblowers play a critical role in ensuring that waste, fraud, and abuse are brought to light and that public health and safety problems are exposed, the same whistleblower protection laws that apply to almost all other Federal employees do not currently apply to the FBI. In fact, it is a violation for FBI agents to report problems to Congress. That restriction leaves patriotic, loyal FBI employees with little recourse. This bill will fix that problem.

    I truly believe that reform at the FBI will only occur when FBI employees feel free to blow the whistle on wrongdoing. Without adequate whistleblower protections, I am concerned that agents, such as Coleen Rowley and others, who speak out about abuses and problems at the FBI will be subject to retaliation. Thus, this bill finally gives FBI whistleblowers the same rights and protections that other Federal employees currently possess. When this bill is passed, FBI employees who are retaliated against for blowing the whistle will be able to avail themselves of all the protections afforded by the Whistleblower Protection Act.

    In order to enhance internal security at the FBI, title II of the bill requires the FBI to establish a career security program and ensure that appropriate management tools and resources are devoted to that task. Modeled after the Department of Defense Acquisition Career Program, security professional career development requirements would bring the FBI into line with the other Federal agencies that handle top secret intelligence. This bill establishes and defines the Career Security Program and sets out the framework for career development and training in internal security. With the development of a Career Security Program, the FBI can meet the challenges of espionage, information technology vulnerability, and the threat of direct terrorist attack.

    This bill requires the Attorney General to establish policies and procedures for career management of FBI security personnel. It directs the Director of the FBI to appoint a Director of Security who would chair a security career program board that would advise in the management of hiring, training, education, and career development. The bill also requires the FBI Director to designate certain positions as security positions. The bill requires that career paths to senior positions be published, and it ensures that all FBI personnel would have the opportunity to acquire the education, training and experience needed for senior security positions. Moreover, in order to ensure that security professionals gain the stature that special agents enjoy, the bill provides that special agents would not have preference for security positions and security positions could not be restricted to special agents unless the Attorney General makes a special determination.

    Furthermore, the bill would direct that education, training, and experience requirements be established for each position and that before assignment as a manager or a deputy manager of a significant security program, a person would have to complete an accredited security program management course and have at least 6 years security experience, including 2 years in a similar program.

    In addition to the Security Career Program, the bill will also enhance security through the creation of an FBI counterintelligence polygraph program. The program would consist of the periodic screening of employees and contractors who have access to sensitive information or restricted data. While the program recognizes the value of polygraph screening, it also provides safeguards for those subject to polygraph examination. The bill directs that the program have procedures to address false positives, ensure quality control, requires that no adverse personnel action could be taken solely by reason of physiological reaction on an exam without further investigation, and provides that employees would have prompt access to unclassified reports of their exams that relate to adverse personnel action. Thus, title III provides increased security while at the same time protecting employee rights.

    Title IV requires the Attorney General to report on the legal authority for the FBI's programs and activities. This report will help the FBI focus on its most important duty—preventing terrorism—by cutting back on the FBI's jurisdiction, which has become cumbersome and unwieldy. Currently, the FBI investigates over 300 different Federal offenses, which are divided between violent crime, white collar crime, organized crime, drugs, national security, and civil rights. In many of these areas, there are instances of concurrent or overlapping jurisdiction with other Federal law enforcement agencies who specialize in investigating these crimes.

    The FBI needs to scale back on the broad range of investigations which are duplicated by other Federal and State agencies. The Bureau needs to completely jettison some of these areas and in other areas, the Bureau could simply take a secondary role, allowing another agency to take the lead. In order to assist the FBI in scaling back its jurisdiction, this bill directs the Attorney General to report to Congress on the legal authority for FBI programs and activities, identifying those that have express statutory authority and those that do not. The bill also requires the Attorney General to recommend what criminal statutes for which he believes the FBI should have investigative responsibility.

    Additionally, there exists a gross inequality in the way Senior Executive Service, SES, employees of the FBI and rank and file agents are disciplined. SES employees are often given a slap on the wrist for an infraction, whereas the rank and file agents are often punished to the letter of the law. Title V of the bill attempts to address this double standard. The bill attempts to address the double standard by providing some flexibility in how SES employees can be punished. The Senate Judiciary Committee has heard repeatedly that this inflexibility is one of the main causes for the inequality in punishment at the FBI. Under the current system, the minimum suspension that an SES employee can receive is 14 days. This means that the FBI's management is often left with the choice of either an overly harsh penalty or no penalty at all. Often they decide not to impose any meaningful disciplinary action.

    In order to attempt to remedy this problem our bill lifts the 14-day minimum suspension for SES disciplinary cases to provide for additional options in disciplining senior executive employees. Hopefully, this change will help to remedy this double standard. In addition, our bill would require the Office of Inspector General to submit to the Judiciary Committees of both houses, for 5 years, annual reports by the FBI Office of Professional Responsibility on its investigations, recommendations, and their disposition including an analysis of whether any double standard is being employed.

    Finally, title VI of the bill attempts to provide further enhancement to security at the Department of Justice as a whole. This title would implement recommendations of the Webster Commission for enhancing security at the DOJ. It requires the Attorney General to submit a report to Congress on the manner by which the Department plans to improve protection of security information at the DOJ. Moreover, this title authorizes funds to meet the demands for increased security at the DOJ. Also, the bill would authorize funds for the DOJ Office of Intelligence Policy and Review to help meet the increased demands to combat terrorism, process applications to the Foreign Intelligence Surveillance Court, participate effectively in counterespionage investigations, provide policy analysis and oversight on national security matters, and enhance computer and telecommunications security.

    Mr. President, I say to my fellow colleagues, it is time we acted on the reforms in this bill. It has been almost a year since this bill passed unanimously out of committee. Let's act to reform the FBI and help maintain America's trust and confidence in the Bureau.

    I ask unanimous consent that the text of the bill be printed in the RECORD.