Morning Session of a Hearing of the Senate Judiciary Committee - Oversight of the U.S. Department of Justice
Statement
SEN. CHARLES GRASSLEY (R-IA): Thank you, Mr. Chairman.
I want to start by asking you for unanimous consent that my opening statement be made a part of the record along with documents that I'm going to discuss with my questions.
SEN. LEAHY: Without objection it will be part of the record.
SEN. GRASSLEY: Thank you.
General Mukasey, you -- during your confirmation hearing, you assured me that you would assist my congressional oversight efforts with the department. I appreciate your cooperation, and you know I'll hold you to your word.
I'd like you to -- I'd like you to know that prior to this hearing the department provided responses to requests dating back to March 2007. Now, unfortunately, we received these responses on Friday and have had just four days to digest nearly 250 pages of answers. Buried in the responses from the FBI was response to question 64 through 83 that said, quote, "Answers will be provided separately," unquote, and of course they were not provided separately.
For you I'm troubled that -- when I get responses stating one thing, but then you do another.
When can I expect this response, from the FBI, that I've been waiting for since March 2007? And can I expect these answers before a full year have passed?
ATTY GEN. MUKASEY: I will admit to you that I don't know precisely what questions, is it, 64 through 83 are. But I will talk to the director about what they are, and about why the delay, and about when we can foresee getting answers to them. And I'm sorry for the last-minute part.
SEN. GRASSLEY: Now a question on whistleblowers.
ATTY GEN. MUKASEY: Beg your pardon.
SEN. GRASSLEY: Another question: At your confirmation hearing, you testified about whistleblowers at the FBI and said, quote, "People ought to be encouraged to come forward and they should be protected," end quote.
The FBI and the Justice Department have not always had a culture that supported whistleblowers. Instead the culture usually worked to prevent whistleblowing through intimidation and retaliation. One of the most difficult issues in whistleblowing is that of national security whistleblowers. These individuals have security clearances that prevent the disclosure of our nation's closest-held secrets.
I understand that a security clearance is a privilege and not a right. However individuals, with security clearances, who witness wrongdoings, often face a catch-22. They can either report the wrongdoing to supervisors, who may retaliate against them, or they can sit silent and let the wrongdoing continue. And of course, either situation is unacceptable.
As a solution, the Senate unanimously passed S. 274, the Federal Employee Protection Act 2007. This bill attempts to strike balance. It allows individuals, who know of wrongdoing in classified matters, to come forward and report that wrongdoing to Congress. But it only allows disclosure to specific persons cleared to hear classified information. This bipartisan legislation would ensure that national security information remains secret, while allowing Congress to conduct oversight required under the Constitution.
On January the 22nd, 2008, you, along with director of National Intelligence, Director McConnell, Secretary Gates and Secretary Chertoff signed a letter objecting to S. 274 -- right here. I'm concerned by statements in this letter, which claim that secure reporting mechanisms for whistleblowers are somehow unconstitutional or jeopardize national security. While I agree that this information needs to be secure, Congress must be able to conduct oversight of the executive branch on matters involving national security. Further, I find it difficult to reconcile this letter with statements made at your confirmation hearings.
Now, I'm not for blanket privilege, allowing whistleblowers to release classified information at will. That would be impractical, wouldn't be safe for our country.
However, we need a secure mechanism to allow whistleblowers to make protected disclosures to Congress.
Why doesn't Congress have a right to classified information, when reporting that information is necessary to report wrongdoing? And why isn't it enough to require that whistleblowers report classified information to those with the necessary security clearance?
ATTY GEN. MUKASEY: The issue is, in part but not entirely, security clearance. The process that you've described cuts off the supervisory chain and cuts off even the president from the chain of reporting. That raises separation of powers issues and creates a situation where somebody is essentially encouraged to bypass supervisors, not to take it up the line, not to take it as far as he can but simply to go to a member of Congress, who may have security clearance, but to cut off proper supervision that may remedy the problem.
I recognize that problems occasionally exist. But I and the signatories to that letter -- the DNI, I believe, the director of the FBI and the secretary of Homeland Security -- believe that that's not the way to do it.
SEN. GRASSLEY: Well, isn't it funny that a law that passed Congress unanimously, that surely had input from the administrative branch of government, now is not exactly the way to do it. So we wait another five years to get proper congressional oversight. You know, it just doesn't seem like the real thing.
It just seems like every roadblock's being put in the way of Congress doing its job. And can't you trust people that have security clearance, whether it's Joe Blow or whether it's Mary Smith or whether it's Paul Jones? It seems to me, if they've got security clearance, they've got security clearance, and that's the protection you need.
ATTY GEN. MUKASEY: I don't think it's a question of trust. I think it's a question of maintaining the executive's right to supervise its employees, up to and including the president, and where in that chain you permit somebody to go to somebody else. And I agree that it's a difficult issue. I agree that it's a sensitive issue. It was simply our view that that was not the way to do it.
SEN. GRASSLEY: Then I think you have a problem.
And I'll stop, Mr. Chairman, here.
But it seems to me that you have a problem reconciling what you say about the chain of command that wants to hide wrongdoing in the first place. And if you're talking about going all the way up to the president, in between the president and the janitor, you've got plenty of people that don't want Congress to know if something's wrong, because they don't want egg on their face.
ATTY GEN. MUKASEY: I don't think it's a matter of wanting to hide wrongdoing, and we are certainly willing to work with committees and with senators and we have and we will in the future. And I'm not saying that this is a drawing of the line in the sand. This is this particular bill and it's something we're willing to work with you on, have worked with you on and will continue to work with you on.
SEN. GRASSLEY: Thank you.
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