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S. HRG. 106–1049

REPORT OF THE COMMISSION ON THE

ADVANCEMENT OF FEDERAL LAW ENFORCEMENT

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT

OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

FEBRUARY 3, 2000

Serial No. J–106–63

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

BOB SMITH, New Hampshire

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

ROBERT G. TORRICELLI, New Jersey

CHARLES E. SCHUMER, New York

MANUS COONEY, Chief Counsel and Staff Director

BRUCE A. COHEN, Minority Chief Counsel

SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT

STROM THURMOND, South Carolina, Chairman

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

CHARLES E. SCHUMER, New York

JOSEPH R. BIDEN, JR., Delaware

ROBERT G. TORRICELLI, New Jersey

PATRICK J. LEAHY, Vermont

GARRY MALPHRUS, Chief Counsel

GLEN SHOR, Legislative Assistant

(III)

C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Page

Thurmond, Hon. Strom, U.S. Senator from the State of South Carolina ........... 1

Schumer, Hon. Charles E., U.S. Senator from the State of New York ............... 3

Sessions, Hon. Jeff, U.S. Senator form the State of Alabama ............................. 5

CHRONOLOGICAL LIST OF WITNESSES

Panel consisting of Hon. William H. Webster, Former Director, Federal Bureau of Investigation, and Chairman, Commission on the Advancement

of Federal Law Enforcement; Donald C. Dahlin, Professor, Department

of Political Science, University of South Dakota, and Member, Commission

on the Advancement of Federal Law Enforcement; Robert M. Stewart,

Chief, State Law Enforcement Division, State of South Carolina, and Member, Commission of the Advancement of Federal Law Enforcement; Gilbert

G. Gallegos, National President, Fraternal Order of Police, and Member,

Commission on the Advancement of Federal Law Enforcement; and Robert

E. Sanders, Former Assistant Director of Criminal Investigations, Bureau

of Alcohol, Tobacco and Firearms, and Member, Commission on the Advancement of Federal Law Enforcement ............................................................ 7

ALPHABETICAL LIST AND MATERIAL SUBMITTED

Dahlin, Donald C.:

Prepared Statement ......................................................................................... 10

Gallegos, Gilbert G.:

Prepared Statement ......................................................................................... 15

Sanders, Robert E.:

Prepared Statement ......................................................................................... 16

Stewart, Robert M.:

Prepared Statement ......................................................................................... 12

Webster, William H.:

Prepared Statement ......................................................................................... 7

APPENDIX

QUESTIONS AND ANSWERS

Responses of the Commission to Questions from Senator Leahy ........................ 39

ADDITIONAL SUBMISSIONS FOR THE RECORD

Hatch, Hon. Orrin, U.S. Senator from the State of Utah, prepared statement . 35

Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont, prepared

statement .............................................................................................................. 35

Commission on the Advancement of Federal Law Enforcement, article ............ 49

President’s Council on Integrity and Efficiency, letter and attachments ........... 62

(1)

REPORT OF THE COMMISSION ON THE ADVANCEMENT OF FEDERAL LAW ENFORCEMENT

THURSDAY, FEBRUARY 3, 2000

U.S. SENATE,

SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The subcommittee met, pursuant to notice, at 2:07 p.m., in room

SD–226, Dirksen Senate Office Building, Hon. Strom Thurmond

(chairman of the subcommittee) presiding.

Also present: Senators Sessions and Schumer.

OPENING STATEMENT OF HON. STROM THURMOND, A U.S.

SENATOR FROM THE STATE OF SOUTH CAROLINA

Senator THURMOND. The subcommittee will come to order.

I am pleased to hold this hearing today regarding the report of

the Commission for the Advancement of Federal Law Enforcement.

The Commission was created as part of the Antiterrorism and

Effective Death Penalty Act to take a hard look at Federal law enforcement and see how it could be improved at the dawn of the new

century. The Commission was given a broad mandate to review all

aspects of law enforcement, from interagency duplication and coordination to the threat of terrorism.

Generally, the Congress reacts to crime on an ad hoc basis, responding to the crisis of the moment. We created this Commission

to stand back and take a broad perspective and a comprehensive

examination.

We appointed a fine, respected group of Commissioners to undertake this daunting task. Some have experience in Federal law enforcement agencies, including the FBI and ATF. Others have experience fighting crime on the State and local level.

Their hard work for the past 2 years has resulted in a 220-page

report entitled ‘‘Law Enforcement in a New Century and a Changing World.’’ We are here today to discuss their findings and recommendations. Some are bold and thought-provoking, while others

are just common sense. The Congress and the Administration

should carefully examine these recommendations.

The Report challenges Federal law enforcement to better prepare

for the increasing threat of terrorism and computer-related crime.

At the same time, we must make certain that all financial and

white collar crime is a top priority for the New Century. After all,

money is the motive for most crime. We must make certain that

2

any effort to increase the Attorney General’s authority does not reduce the importance of other law enforcement missions.

Also, the Report found that Federal law enforcement differs considerably in its recruitment, training, and even policies. Further,

some of the more far-reaching suggestions, such as merging the

DEA and ATF enforcement into the FBI, have been made before,

and concerns were raised at that time. I have some personal reservations about this approach, but will certainly keep an open

mind.

The Report also has reached some encouraging results, including

that Federal officers are dedicated professionals and that the

American public is not fundamentally distrustful of law enforcement.

I have always believed that the American people have the right

to expect that the Federal Government’s resources are used in the

most efficient way possible in fighting crime. We should make

every effort to limit duplication and turf battles, and promote open

lines of communication and a cooperative spirit. Moreover, we

should also expect Federal law enforcement to cooperate with State

and local law enforcement. There is more than enough crime to go

around.

At the same time, we must recognize that we expect more from

Federal law enforcement than ever before. Its size, jurisdiction, and

responsibilities continue to grow. Some growth is justified, such as

the expanded role of the FBI to fight counterterrorism. Some is less

justified, such as the federalization of many, many crimes. Indeed,

when we have reviewed Federal prosecutions in this Administration under various criminal laws, we have seen that many of these

Federal crimes are simply not prosecuted on the Federal level.

I appreciate the Commissioners taking the time to be with us

today to discuss their report and I look forward to their testimony.

Our first witness today is the Honorable William H. Webster, the

Chairman of the Commission. Judge Webster served as U.S. Attorney in the Eastern District of Missouri before becoming a Federal

judge for the Eastern District of Missouri and the U.S. Court of Appeals for the Eighth Circuit. Judge Webster resigned from the

bench to become Director of the Federal Bureau of Investigation,

and later became Director of the Central Intelligence Agency.

Judge Webster received a bachelor’s degree from Amherst College

and a juris doctor degree from Washington University Law School.

In 1991, he was awarded the Presidential Medal of Freedom.

Our second witness is Robert M. Stewart, Chief of the South

Carolina Law Enforcement Division. He started his law enforcement career at age 17 as a cadet with the Cheraw Police Department. He joined SLED in 1975, was promoted to Deputy Director

in 1987, and became Chief of SLED in 1988. Chief Stewart has a

bachelor’s degree and a master’s degree in public administration

from the University of South Carolina and is a graduate of the FBI

National Academy. We are especially pleased to have him with us.

His lovely wife, Nicoletta, is in the audience and we welcome her.

Our third witness is Professor Donald C. Dahlin, Vice President

for Academic Affairs at the University of South Dakota. Professor

Dahlin received his bachelor’s degree from Carroll College, in Wisconsin, and his Ph.D. from Claremont Graduate School in CaliVerDate 11-MAY-2000 07:19 Sep 08, 2001 Jkt 072524 PO 00000 Frm 00006 Fmt 6633 Sfmt 6602 E:\HR\OC\B524.XXX pfrm03 PsN: B524
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fornia. He has written extensively on criminal justice and police

science.

Our fourth witness is Gilbert Gallegos, National President of the

Fraternal Order of Police, which is the largest law enforcement

labor organization in the United States. Mr. Gallegos has a degree

in criminology from the University of Albuquerque and is a graduate of the FBI National Academy. Prior to becoming FOP National President, he served for 25 years in the Albuquerque Police

Department, retiring with the rank of Deputy Chief of Police.

Our final witness is Robert E. Sanders, an attorney and retired

agent with the Bureau of Alcohol, Tobacco and Firearms. While

with the ATF, Mr. Sanders served as Special Agent in Charge of

Chicago Regional Investigations and as Assistant Director for

Criminal Investigations. Mr. Sanders is a graduate of the University of Miami and holds a juris doctor from the Northern Illinois

School of Law.

I ask that the witnesses please limit your opening statements to

no more than 5 minutes, and we will start with Judge Webster and

proceed down the line.

I will now turn to our ranking member, Senator Schumer, for his

opening remarks.

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR

FROM THE STATE OF NEW YORK

Senator SCHUMER. Thank you, Mr. Chairman, and I very much

appreciate your leadership on this committee and your holding this

important hearing. I also want to thank the Commission for its

hard work and its report, and thank you, Commissioners, for being

here today to help let us know of your work.

I have had an opportunity to quickly read through the report,

and I also saw some coverage of the report in the newspapers.

Some of the recommendations, for example, to combine ATF with

DEA and have both report to DOJ, are not necessarily new. Some

are very new, and all deserve careful consideration, coming from

such careful study and such a distinguished group.

I would like to just make a few points about this report and its

recommendations. First, over the past 7 years the murder rate in

America is down, the burglary rate is down, the auto theft rate is

down, the number of rapes are down, the number of violent assaults are down, gun crime is down, and the juvenile crime rate is

down. And, may I add, the rates are not just down; they are thankfully precipitously down. Crime has plummeted in every region of

the country; it has plummeted in every State in the country, and

crime is down in every large city in the country.

So my first point is that these crime trends do not indicate a

need, in my judgment, for major restructuring of law enforcement.

I am not saying that we should rest on our laurels or that there

is no room for improvement, but I do believe that the plummeting

crime rate indicates that structurally law enforcement is doing

quite well.

My second point is about the ATF. I think the ATF is the most

maligned Federal law enforcement operation in the country. They

are in the cross-hairs of the NRA and in the cross-hairs of some

of the most extreme people in America. If you want to point a finVerDate 11-MAY-2000 07:19 Sep 08, 2001 Jkt 072524 PO 00000 Frm 00007 Fmt 6633 Sfmt 6602 E:\HR\OC\B524.XXX pfrm03 PsN: B524
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ger about why we are not able to reduce gun violence further, I

would not point the finger at the ATF. I would point to some of the

rules that this Congress and ones before it put in that tie the

hands of the ATF; for instance, the law that we wrote that made

it nearly impossible for the ATF to crack down on illegal gun-runners or on illicit federally-licensed gun dealers. And we make it

even extremely difficult to trace a gun once it is recovered in a

crime. Those aren’t the rules of the ATF. Those are rules that were

passed in this or previous Congresses.

Example: the ATF is allowed only one unannounced visit to a

federally-licensed firearms dealer each year. So conducting a sting

operation on a gun dealer whom we may believe is violating the

law and intentionally supplying guns to criminals is out of the

question. Can you imagine if we did the same with other law enforcement agencies, that the FBI or a local police department could

only do one unauthorized visit to a potential crime site a year? We

would be scratching our heads in amazement, and yet the law says

that about the ATF and FFL’s.

How about this: the penalty for illegally selling guns on the black

market is mild in comparison to selling drugs, so law enforcement

has little incentive to go after gun-runners. Because the penalty is

so mild, they are back doing it again.

And because of the McClure-Volkmer Act of 1986, gun traces rely

on technology that was literally developed in the 19th century,

namely telephone and paper records. That is why half of the gun

trace attempts come up empty, can’t use computers. Can you imagine another portion of America or law enforcement saying you can’t

use—we would put in a law saying you can’t use computers? Yet,

we do it here. The number of ATF agents has basically remained

static since 1980. So even if our laws were more reasonable, the

number of field agents to keep an eye on 104,000 licensed gun dealers alone is insufficient.

So in the place, I guess, where I am reserving most of my fire,

I think the restructuring of ATF is a little bit misplaced, at least

as long as these laws are on the books. And I would say once again,

Mr. Chairman, that we could make even a bigger dent in gun crime

if we simply allowed the ATF to conduct stings, allocate more field

agents, and make gun-running a more serious crime with stiffer

penalties. I don’t see how anyone could oppose this.

And I am not talking about licensing or closing the gun show

loophole or banning Internet gun sales. These are measures that I

support, but these are for the political debate in the Congress. I am

sure there will be quite a bit of disagreement on some of those

measures. I am talking about measures that give law enforcement

a reasonable chance at stopping illegal gun trafficking in a way

that would have no impact on anyone who by law has the right to

own or buy a gun.

Finally, I want to commend the Commission for its strong focus

on the problem of cyber terrorism and cyber crime. Cyberspace

really is a new frontier of criminal activity and therefore of fighting

crime. Unfortunately, I am starting to sense some legislative stasis

on this issue in Congress. We are talking a lot about the program

and studying its magnitude and potential repercussions, but for the

moment at least we are not doing what we should do legislatively.

5

There are things we can do. For one thing, our criminal procedure laws are not well adapted to deal with computer crime. We

can tweak those laws to facilitate the apprehension and prosecution of computer terrorists. I think such legislation would clearly

be bipartisan and I hope it is something we can get done this year.

Once again, Mr. Chairman, I want to thank you for your leadership and for having this hearing. I thank the commissioners for

their hard work and for being here for the report. I will be submitting my questions to the panel so they can answer later in writing.

Thank you, Mr. Chairman.

Senator THURMOND. Thank you, Senator Schumer.

The able Senator from Alabama, Senator Sessions, do you have

an opening statement?

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM

THE STATE OF ALABAMA

Senator SESSIONS. Well, thank you, Mr. Chairman. I was a little

behind the curve on this report and I saw that there is mention or

thought of merging the BATF and the FBI. And I remember when

I was U.S. attorney and I thought it might be a good idea to merge

the DEA and the ATF, and I wrote then Associate Attorney General Rudy Giuliani and suggested that.

I was later talking with somebody in the Department of Justice

and he said, you can’t do that, that will never work. I said why?

He said because it is DOJ, Department of Justice, and Treasury,

two different Cabinet agencies; you will never merge them. He said

you can’t even merge DEA and FBI.

Well, I don’t know if that is true or not, but that is the mentality

of this town that we don’t take agencies from one Cabinet department to another. And it does suggest to me that maybe we can

overcome that. Maybe there is a time for us to consider improving

the efficiencies in law enforcement.

In Mobile, AL, Mr. Chairman, there is an ATF office, there is an

FBI office, there is a DEA office, a U.S. Customs office, an Immigration office, and a Border Patrol office. All of them have the same

copy machines, supervisors, bureaucrats, and different paperwork

reporting systems that one won’t merge with the other.

So to say that we can’t make some progress in improving the productivity of Federal law enforcement, I think, is an error. We need

to be careful about it. A lot of people think our freedoms are better

protected with a bunch of inefficient agencies rather than one big

good one, but I am not inclined to believe that we can’t improve

that.

With regard to the ATF, Mr. Chairman—and I’m sorry Senator

Schumer has left—I really believe there has been a big-time change

in policy. A lot of that policy is unhealthy, a belief that somehow

if you target legitimate gun dealers that that is somehow going to

stop crime. We had hearings in this very committee not long ago

regarding Project Exile in Richmond, which is very similar to the

project that I ran as a Federal prosecutor in Mobile, AL, for several

years, in which you target criminals who are using guns.

Under the tough Federal guidelines, they are sentenced under

the Speedy Trial Act, as Judge Webster knows, within 70 days. If

they are already out on bail on another crime, they are denied bail

6

and tried promptly within 70 days, and they have mandatory sentences, if they are caught, and removed from the community. And

Richmond found that they had a 40-percent reduction in the murder rate in the city by implementing that policy.

What has happened with ATF is that they are going off chasing

these mythical big gun dealers that are putting all the guns out on

the streets. And we all know, I think, in law enforcement they

come from any number of sources that get on the streets. There is

not one mythical supply of guns. And they said, we are not working

those little cases. Attorney General Reno said we want to work the

big gun cases.

Well, Richmond proved that if you prosecute those criminals who

are using guns steadfastly and the word is out on the street, violence goes down. And there are people not alive today who have

been murdered because this administration has refused to prosecute the laws that this Congress has given them. And I have

raised it with them each of the 3 years I have been here. I have

raised this very issue.

We have charts showing a 40-percent decline in prosecution of

gun cases since the Clinton administration took office, and it is

dramatic and it has cost lives in America, while we define somebody who cares about ending violence by whether or not they want

to pass some more laws on innocent, law-abiding citizens who believe they have a second amendment right to bear arms. I believe

they do, too.

So I think there is some room to question the policy that ATF

is using, and some real basis to question the policy of the Department of Justice. Properly carried out, with the resources they have,

I believe we could do much more right this minute in fighting gun

violence. And I spent 15 years as a Federal prosecutor. I prosecuted

personally probably 100 gun cases, and so I think I have some experience in what we are talking about.

Mr. Chairman, thank you for your leadership. Thank you for

your leadership in developing the Federal Criminal Code that we

have today, which is, in my opinion, probably superior to any State

criminal code that is in existence. And you were the leader in making that happen and I am glad that you are having this hearing.

Senator THURMOND. Thank you very much.

Now, before calling on Judge Webster, I just want to compliment

him for the various positions in which he has served, and served

so efficiently and capably and dedicatedly. We appreciate you. Now,

we will hear from you.

7

PANEL CONSISTING OF HON. WILLIAM H. WEBSTER, FORMER

DIRECTOR, FEDERAL BUREAU OF INVESTIGATION, AND

CHAIRMAN, COMMISSION ON THE ADVANCEMENT OF FEDERAL LAW ENFORCEMENT; DONALD C. DAHLIN, PROFESSOR,

DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF

SOUTH DAKOTA, AND MEMBER, COMMISSION ON THE ADVANCEMENT OF FEDERAL LAW ENFORCEMENT; ROBERT M.

STEWART, CHIEF, STATE LAW ENFORCEMENT DIVISION,

STATE OF SOUTH CAROLINA, AND MEMBER, COMMISSION

ON THE ADVANCEMENT OF FEDERAL LAW ENFORCEMENT;

GILBERT G. GALLEGOS, NATIONAL PRESIDENT, FRATERNAL

ORDER OF POLICE, AND MEMBER, COMMISSION ON THE ADVANCEMENT OF FEDERAL LAW ENFORCEMENT; AND ROBERT E. SANDERS, FORMER ASSISTANT DIRECTOR OF CRIMINAL INVESTIGATIONS, BUREAU OF ALCOHOL, TOBACCO AND

FIREARMS, AND MEMBER, COMMISSION ON THE ADVANCEMENT OF FEDERAL LAW ENFORCEMENT

STATEMENT OF WILLIAM H. WEBSTER

Mr. WEBSTER. Thank you very much, Mr. Chairman, not only for

those remarks, but for the privilege of being here with the other

members of the Commission to report to you and to entertain your

questions on any aspect of the report.

I have a brief oral statement to make, and I will not be able, nor

do I think you would want me to cover all of the points in this extensive report. But with your permission, I would like to enter the

full report in the record. With your permission, I would enter the

full report in the record so that I can address my remarks to some

key points. Is that acceptable?

Senator THURMOND. Yes.

[The report referred to is retained in committee files.]

Mr. WEBSTER. Mr. Chairman, you have introduced the other distinguished members of the panel. I would just like to say at the

beginning what an extraordinary privilege and pleasure it has been

for me to work with them. They bring a wide range of law enforcement experience to bear on these problems, and we ended up with

a report with more unanimity and consensus than most of the

things that I have been privileged to work on in the past. They are

here to answer your questions, as well.

We are reporting on our work under Section 806 of the

Antiterrorism and Effective Death Penalty Act of 1996. It has been

a 2-year project. A good many things have happened particularly

in the terrorism arena that I could talk about, but will not in the

interest of time. They are all reflected in the report.

Just over the Christmas holidays and the New Year, we saw a

number of incidents that would give the American people substantial concern. And, of course, their concern was heightened by the

fear of what might happen under the Y2K situation, not only the

unintended consequences of not being prepared for Y2K, which we

were, thank goodness, but also the possibility of intended consequences by terrorists and others hiding behind the general concern about Y2K. And we were able to get by that successfully, as

I believe we will get by most of the events in the future.

8

But they are out there. The risks and probabilities of our experiencing terrorist events of major proportions continue to grow. We

know, of course, all of those high-visibility situations. Some we

have dealt with with extreme success, others not so successful. But

I think the one in Oklahoma is probably the best example I can

think of, of firm, effective, prompt law enforcement and law enforcement cooperation which resulted in the apprehension of those

responsible and their ultimate conviction.

We have made a number of suggestions. You gave us a very

broad mandate, some 10 specific areas in which to study. And we,

as I said, worked hard for 2 years trying to come up with our

views, answers to questions, and suggestions for the Congress and

the executive branch on how to look at the future and deal with

it, at the same time maintaining, as the chairman pointed out, our

capabilities in law enforcement to deal with the problems of white

collar crime and other problems that are not new to this century

but may find new methods of expression, such as cyber crime, for

example, and intrusions into electronic computers, money transfers, and so forth.

We have made some suggestions that Members here today have

made reference to, particularly the suggestions for ATF and DEA

being incorporated as law enforcement functions in the FBI, and

regulatory functions being retained in their respective departments.

I would like to say to the Members that these suggestions have

indeed been made before, but I think there is an increased urgency

that they be considered in the light of how the existing Federal law

enforcement framework is going to cope with the vastly increased

problems of global crime, terrorism, cyber terrorism, and cyber

warfare. It calls for a look at the structure of our system and to

see what kinds of logical improvements could be made.

It is not an effort to aggrandize one agency over another, but to

bring their respective talents together so that there would be less

redundancy, less overlap, less confusion, and more effective results.

These we commend to your consideration for whatever action you

might take on these and other recommendations that we have

made with respect to structure.

We have also been concerned, of course, about the new kinds of

crime, and we discuss those in the report. And we go on record as

expressing our concern about federalism of crime, federalizing of

crime. We understand that when Congress sees something that is

wrong in the country and wants to do something about it, particularly with respect to criminalization, declaring that certain acts are

criminal, they haven’t many opportunities or alternatives except to

make something a Federal crime.

In many cases, we believe that State and local law enforcement

is far better equipped, and that too much federalization dilutes

rather than increases the effectiveness of Federal law enforcement.

We talk about that more extensively in this report. Those are the

key issues. Now, if I could just work backwards as quickly as I can

to some of those, let me summarize our findings. We find they are

troubling, but the recommendations, we think, are positive.

We find that global crime, cyber crime, and terrorism are becoming serious threats. We have serious concerns about the readiness

9

of the Federal Government to protect Americans and the national

security unless steps are taken promptly.

Much of the current structure of Federal law enforcement is

based on problems of the past, not crime challenges of the future.

We had a period of Prohibition, we had an agency, we still have

an agency to deal with Prohibition. That is not necessarily the best

way to approach the problem.

Third, coordination of and cooperation among Federal, State and

local law enforcement agencies are not all that we wish they could

be or believe that they can be. As we point out in our report, Mr.

Chairman, we conclude that Federal law enforcement agencies are

among the finest in the world, and that most Americans share that

view. We do point out the vulnerabilities of our system which grew

like topsy in no particular order and has today a system of authorities and overlapping responsibilities that make us more vulnerable

at a time when we have other serious crises that occur.

I experienced that when I reviewed the actions of the various authorities during the riots in Los Angeles. I have seen that in a

number of other cases where the public has not been satisfied with

Federal performance, and it usually has something to do with overlapping and competitive efforts.

So what do we recommend? We recommend that based on these

conclusions, you consider a five-part action agenda which we submit. We believe that it is important for Congress and the President

to, one—and I am giving you five now—one, make it clear that the

Attorney General has broad coordinating authority for Federal law

enforcement and minimizing overlap and duplication.

The President and Congress should improve the administration

of Federal law enforcement and its effectiveness by making that

clear. There is and has been for 30 years on the books an executive

order at the time of President Johnson giving the Attorney General

that authority. Subsequently, Congress limited the authority of the

Attorney General and others to restructure without its approval,

and there were good reasons for that.

Now, our conclusion here is that the groundwork has been laid.

We would like to have the Congress and executive branch implement the executive order that has been ignored for most of 30

years, make the Attorney General, like the Director of Central Intelligence, the director of central law enforcement so that the Attorney General can make sure that these problems of coordination and

redundancy are effectively dealt with.

Second, provide the intelligence and information needed to combat terrorism. The law enforcement and intelligence communities

need to review their procedures and policies to ensure that the

President, the Congress, and the National Security Council have

adequate resources to coordinate activities and to pursue the information that Federal and State law enforcement agencies vitally

need to combat the threat of terrorism both here and abroad.

This is the third one: make global crime a national law enforcement priority. The President and Congress should expand the attack on global crime, on narcotics trafficking and cyber crime with

new determination and energy.

Fourth, reverse the trend toward federalization. Congress and

the President should support a new federalization prevention act to

10

minimize Federal intrusion into State and local enforcement and

reverse the recent trend toward federalizing crime. I have just discussed the reasons for that and its impact upon Federal crime as

the number of laws on the books goes from a dozen or so at the

time our country was founded to several thousand now, for which

a relatively small, disorganized Federal law enforcement system is

required to deal.

And, finally, the fifth point: Focus on professionalism, integrity,

and accountability. We believe that there are vast differences in

professionalism and accountability especially among the Federal

agencies, different standards for such things as use of deadly force,

for example. There ought to be one Federal standard for the use

of deadly force. And so we recommend that the President and Congress should require that Federal law enforcement agencies establish new standards for professionalism, integrity, and public accountability that are standard across the board.

Mr. Chairman, the Nation critically requires a Federal law enforcement establishment that is ready to meet the crime problems

of the future as well as those that are well underway today. Our

Commission soon goes out of business. As individuals, we stand

ready to help the Congress in any way that we can. We are prepared to testify at hearings and assist others in appropriate ways.

It is an honor to appear before you this afternoon, and I am sure

that my other colleagues may have additional comments to make

and we will respond individually or collectively to your questions

as they come.

Thank you.

Senator THURMOND. Judge, thank you very much for your fine

suggestions.

I think we might as well start and go down the line. Professor

Dahlin.

STATEMENT OF DONALD C. DAHLIN

Mr. DAHLIN. Thank you, Mr. Chairman. I am very honored to

have had the opportunity to serve on this Commission, and honored to have the opportunity to testify today before this subcommittee.

When our Commission came together a little over 2 years ago

now, I must say that I had some question in my mind as to whether or not we as commissioners would agree on anything, given the

diversity of the appointing authorities and given, as well, the diversity of our experience. Thus, I think it is worth highlighting the

fact that, in the end, we ended up agreeing on everything.

And I think that that unanimity is the result, first of all, of the

excellent work of our Chair, Judge Webster, of the fact that my fellow commissioners have been as hard a working group as I have

ever been associated with. But also I think it is the product of taking seriously the charges that you gave us, particularly trying to

focus on what are going to be the law enforcement challenges in

the 21st century.

And as Judge Webster has indicated, we see—I don’t think there

is any great surprise in this view—that internationalization,

globalization, cyber crime, cyber terrorism, terrorism in general,

are going to loom much larger in the Federal law enforcement

11

scheme than they have in the past. And I think it is that vision

every bit as much as our analysis of how Federal law enforcement

has operated that has driven our conclusions and our recommendations.

Thus, when we recommend trying to make some changes in the

organizational structure of Federal law enforcement, that is being

done, I think, not so much because it is a criticism of the existing

performance of Federal law enforcement agencies, but rather it is

the product of seeing that Federal law enforcement will face new

coordination challenges in the future.

In the past, it has been difficult enough to coordinate with other

Federal law enforcement agencies and State and local law enforcement agencies. Now, in the future, there will be the need to coordinate more with the Department of Defense, the Department of

State, with foreign nations, with the intelligence community. These

will be enormous challenges for Federal law enforcement, and I

think it will be very difficult for Federal law enforcement to meet

those challenges given its current organizational structure. So that

is, in part, I think, at least for me, why those recommendations are

so important.

I would also hope, and I am sure this will be the case, that beyond focusing on the recommendations with respect to ATF and

DEA that the committee members and Congress Members and the

executive branch will focus as well on the other recommendations,

as Judge Webster has indicated, our recommendations with respect

to the Attorney General. We also make a recommendation about

creating a permanent interagency group to help the Attorney General do a better job of coordinating Federal law enforcement. And

I think almost no matter what happens, I would hope that recommendation would get implemented.

We also make a recommendation that suggests looking in an

even more fundamental manner at reorganization than simply taking the ATF and DEA to look at the possibility of creating five law

enforcement agencies, in effect, in these major functional areas.

And we did not have the time to develop a specific proposal in that

area, but as we talked about the subject and the needs of Federal

law enforcement, we certainly came to the conclusion that this was

an issue worthy of further examination. We hope that your committee and other Members of Congress will look at that, as will

members of the executive branch.

I think our recommendations about federalism in large part also

track this major view of the needs of Federal law enforcement. If

we continue to spread Federal law enforcement efforts in fighting

important crimes, but crimes that are essential State and local in

nature, we make it again far less likely that Federal law enforcement will have the time and the resources that we think are going

to be needed to fight the new types of crime in this new century.

And, lastly, in the area of professionalism and integrity and accountability, again it seems to me those tie in with this basic view

as well that given all that is going to need to be done, the important work that Federal law enforcement has before it, it becomes

all the more important that we ensure that the officers have the

training they need, the policies are clear, and that they are accountable for the work that they do.

12

So we hope that, again, even as some of the more controversial

issues get focused on that those other issues will not—you will not

lose sight of them because I think that they are also extremely important, and I trust somewhat less controversial.

In conclusion, Mr. Chairman, I would simply note that I would

hope that all of us, as we continue to move toward the objective

that I think we all share of helping to ensure the finest Federal

law enforcement effort that we can, that we will focus our efforts

by looking at the issues that are going to be before Federal law enforcement in this century and not fight the battles of yesterday’s

wars and yesterday’s problems.

Thank you, Mr. Chairman.

Senator THURMOND. South Carolina is proud of the good work

that Chief Stewart is doing.

Chief Stewart.

STATEMENT OF ROBERT M. STEWART

Mr. STEWART. Thank you, Senator. We are surely facing challenging times in the United States, and much change has affected

law enforcement over recent years. Federal, State and local law enforcement surely play an important role in our society, and without

professional, competent, coordinated law enforcement at all levels,

this country would probably not even exist. But we must look to

the future.

I am speaking to you from front-line experience as Chief of the

State Law Enforcement Division, SLED, which you created as governor in 1947 yourself. And prior to that, I served 7 years in the

U.S. attorney’s office with SLED coordinating State-Federal investigations. We deal with the Federal agencies everyday, and they

are very good agencies and we make a lot of progress working together. However, we can do better.

I have concerns with the duplication of effort and mission of

some of the Federal agencies. If you look to our military, our military is coordinated and defends our Nation from foreign enemies

and basically has five branches. However, the Federal agencies in

this day and time need better coordination and resources to adequately address the problems of the future.

I would say that there is a growing threat to our country; there

has always been from foreign governments. There is an increasing

growing threat to our Nation from transnational criminal organizations and terrorists and cyber crime, and Federal law enforcement

is the only one that can deal with these problems. Therefore, it is

going to be more and more important in the future that they are

adequately organized and have the resources to handle that.

Specifically, in the area of drugs, there are many times when the

FBI and the DEA are working on very similar cases, have similar

jurisdiction. There is much overlapping there. The extreme would

be is we have SLED agents working with most all the Federal

agencies. We even had a drug deal one time. We had undercover

agents working with two Federal agencies, and it turned out one

was in a reverse role and the other was not. And we had people

on both sides of it and the Federal agencies did not know what was

taking place. Fortunately, since we had State agencies on both

13

sides, before there was a tragedy it was averted because we recognized what was going on there.

In the area of bombs and guns, between the FBI and the ATF— and we work closely with both agencies; they are both fine organizations. But recently during the church fires, especially in the

South, we were very active in those cases and solved some 70 percent of them in our State, which is like 5 or 6 times the national

average. But it is certainly difficult to have to deal with two Federal agencies working on the same case. One is looking at the civil

rights aspect, another is looking at the bombing, explosives aspect,

and there is no need for there to be that type of coordination problem.

And you hear all the arguments about how this won’t work and

that won’t work. And we haven’t recommended a lot of restructuring. We have recommended some that we think would greatly

help the situation. But, you know, on a much smaller level, in

South Carolina in 1994 this same thing was undertaken and several agencies were merged into SLED. And we were told you can’t

do this and you can’t do that; you can’t take an alcohol commission

agent and make them a SLED agent. It just won’t work. There are

classification problems, there are qualification problems.

Well, we did it, and over 2 years the ones that couldn’t make it

had to either sink or swim and it worked out. And now when a

sheriff or chief of police needs criminal investigative assistance

from the State of South Carolina, whether it is from DNA in the

laboratory, to a gambling operation, to whatever, they call one

place and they only have to deal with one agency and it makes it

a lot simpler.

We are not recommending that on the Federal level, a national

police force. But in the area of the two suggestions we have made,

we do think it would be a much more productive way to do business. Some of the ways things happen now are just no way to run

a railroad, and we think that it breeds disorganization and a competition for limited resources that could best be used if there was

one focused effort in that regard.

Also, street crime assistance is very important and very helpful,

but I would also say we have got to be sure that the Federal assets

aren’t stretched so thinly that they can’t adequately address the

true national problems that we have mentioned here today and

that will become more and more problems in the future.

In the area of accreditation, there are two accreditations available in law enforcement today. The one for laboratories is by the

American Society of Crime Laboratory Directors, or ASCLD, and

the other is from the Commission for Accreditation of Law Enforcement Agencies, CALEA.

Now, a number of the Federal agencies are now beginning to

come about and be involved in the laboratory accreditation. The

FBI lab in the last year or so has become ASCLD-accredited. I

think the DEA lab is already accredited. That is just an absolute

must in this day and time to assure the public and the people that

the labs are being run correctly and the proper safety procedures

are built in there.

About half of the crime labs in the Nation are accredited, and

surely all the Federal crime labs should be accredited. There has

14

been some reluctance on Federal agencies’ part to get involved in

accreditation. They think it doesn’t apply to them, and I think that

is a misconception.

As far as agency-wide accreditation, that was begun by a Federal

grant from a congressional program. Jim Cotter, with the FBI, was

the first director of that commission, and it does a whole lot to

standardize policy and procedure and see to it that agencies live up

to the mandate they have and are run properly. It also fosters better relationships with local and State law enforcement, and I think

it is something that really the Federal agencies ought to look at.

I am happy to say that now the U.S. Marshals Service, with Ms.

Reno’s blessings, have applied for CALEA national accreditation.

And your own U.S. Capitol Police here have applied for national accreditation as well, and I would hope that all Federal agencies

would be involved in that program.

Finally, I am concerned with the lack of resources and some of

the administrative controls over some of your smaller Federal law

enforcement agencies. We mentioned like there are five military

branches, basically. Well, we found over 140 Federal law enforcement agencies, which is somewhat mind-boggling.

But, for example, you have several law enforcement agencies—

not several, a number, that are housed in agencies that have nothing to do with law enforcement. For instance, you have the Park

Police. I think they are in the Department of the Interior. Well,

when we took testimony, the Park Police was like 20-percent

understaffed. Can you imagine that? They don’t have the equipment and the resources they need.

I mean, you have some crisis at one of these monuments here in

Washington, DC, and the Park Police are 20-percent understaffed.

I hope we don’t have to have a crisis for some of the issues in our

report to be addressed, but surely it needs to be looked at. And

there are many times when it takes a crisis for something to happen, and we surely hope that everyone will look at this report and

give it some serious thought.

The agencies involved, even the ones we are talking about restructuring, are fine agencies and we have confidence in them. I

work with them everyday, but there are better ways to do business

and we are going to have to do business in a better way in this

century to keep this country the way that it needs to be.

If I have one fear about this whole program that we have put 2

years of our lives into, it would be that nothing comes of it and

then there is some big crisis 3 or 4 or 5 years from now and we

pull this copy down off the shelf of this report and dust it off and

start looking at it. I hope everybody will really look at it. This is

important to the security of the United States and of all of our people.

I want to thank you, Senator Thurmond, for allowing me to be

a part of this program, and hope to work with you in the future

in improving law enforcement.

Senator THURMOND. Thank you very much.

Mr. Gallegos.

15

STATEMENT OF GILBERT G. GALLEGOS

Mr. GALLEGOS. Thank you, Mr. Chairman, and I want to echo

the sentiments of my other commissioners and my colleagues on

this very important study of Federal law enforcement.

Congress really gave us a challenge through the 10 provisions in

the Act on how to come up with ideas that would make Federal law

enforcement a little bit more responsive not only to the American

people, but also to other law enforcement agencies, especially the

State and local.

I guess the challenge is really what do you expect of Federal law

enforcement. If we expect to do the same things, or expect them to

do the same things that they have done for the last 50 years, then

you can do like the Chief says and put this report up on the shelf

and put it away and 50 years later open it up again.

But if we really expect Federal law enforcement to have all the

tools that they need—and they are all fine, fine agencies, from ATF

to FBI to the Capitol Police to the Government Printing Police to

the Park Police. They are all fine agencies, but quite frankly what

we found in our review of these agencies is they don’t have the resources. When the Capitol Police can’t talk over the radio with the

Park Police, when the Park Police can’t talk over the radio with the

park rangers and they are all in the same area, it is shocking.

And like the Chief said, if there is a tragic event, as happened

here in the U.S. Capitol, and the agencies can’t even communicate,

how do we expect them to do their job? And I think we found that

time and time again, and I think it is unfortunate that we ran out

of time, to be honest with you. We had 2 years and the time was

not there to look at the smaller agencies, those agencies that are

out there day in and day out that are totally unprotected, that

don’t have the resources.

We had testimony of some small agencies like in Interior and

others where they don’t even have a budget that is appropriated by

Congress. They are just lumped in together with everybody else,

and maybe they are fortunate to be able to draw some money

down. That is why we spoke about that in our report. Especially

in the equipment area, as the Chief said, the Park Police are 20-

percent understaffed.

But we find that in a lot of the smaller agencies where they don’t

have the resources, not only the tools, the technology, but they

don’t have the people resources to be able to do the job. So I think

that this report has to be taken in the context that we can do more,

and we can do more if we coordinate our efforts a little bit better.

Another area that I would like to address is the area of terrorism

and the counter-drug initiatives around the country by Federal officers and by State and local. We had testimony that there seemed

to be a disconnect in the area of dealing with criminal intelligence

where one agency doesn’t coordinate their intelligence efforts with

the other agency. They all may be working drugs or they all may

be working one case, but using the tools, the technology that we

have today, we should be able to do a better job with that.

But we should also be able to do a job in delivering that information to the State and local agencies across this country who really

have the bulk of the responsibility for enforcement of the laws of

this country. In the criminal intelligence field, again, it makes it

16

difficult, and we had testimony about the fact that State and locals

don’t seem to be able to glean the same intelligence information as

Federal agencies.

In the area of terrorism, we have the same situation. You ask

yourself who is the first public safety officer that responds to a terrorism act, and every one that we have had in this country, every

major one that I know of, it is either a State or local police officer

or it is a firefighter or an ambulance driver or search and rescue

or something.

Yet, we have been unable to give them the tools and the information from the Federal level to the State and local level so that they

can be able to better respond to the terrorist acts that really hurt

all of us. So I think it is important that we really come up with

some ideas, and we are proposing in this report how to do a better

job with that.

In the area of public accountability, we did a national survey,

and the results are in the report, of really what the feelings of the

American public were about Federal officers and the job that they

were doing. For the most part, the American people support the

Federal officers just like they support the State and locals, and we

were gratified to hear that. But there are some areas of concern,

and one of them was in accountability and how a citizen of this

country could challenge an issue or take a complaint to Federal

agencies. There was almost a disconnect there. They didn’t feel

that they knew how to do that.

The Attorney General and her staff, as previous Attorneys General, have been going around the country saying how State and

local agencies have got to be more accountable through the complaint process on State and local officers. Well, we in this report

issued the same challenge to Federal officers. If the Department of

Justice can insist that State and locals be more responsive, we feel

that Federal officers should also be responsive.

But in regard to the complaint process and investigation of officers when there are complaints, legitimate or illegitimate, we also

have to keep in mind that Federal officers also have the rights of

everybody else and that they have due process rights, which we

feel is proper and should continue or should be made clear that

Federal officers should be treated fairly at all times and be given

all the due courtesies that we would give to anybody else.

So what we thought in this report is we wanted to issue a report

that was thought-provoking, that would challenge and would make

the issues known the way we see them. And as Senator Sessions

said, there are a lot of ‘‘can’ts’’ out there. If there is a will to make

Federal law enforcement better, I think that this report is a start

to make it a little bit better for an already fine group of Federal

officers across this country.

Thank you, Mr. Chairman.

Senator THURMOND. Thank you, Mr. Gallegos.

Mr. Sanders.

STATEMENT OF ROBERT E. SANDERS

Mr. SANDERS. Thank you, Mr. Chairman, for the opportunity to

appear today before this subcommittee.

17

Congress, in addition to giving us challenges, gave us the rare

opportunity to be totally objective. We had the ability to focus on

the area of inquiry and to find what is, and we did that, and then

to make recommendations on what should be, without regard for

what might be popular, what could be politically correct, what

might be the term of the day, the short-term fix.

We looked at jurisdictions, we looked at missions, and we looked

at the policies of the major law enforcement agencies. We looked

at the interrelationships with other Federal agencies and the relationships with State and local police departments. We tried to iron

out what jurisdictions would be essential and which would be nonessential to face the challenges of the 21st century.

In BATF, we found a small agency with disparate missions which

are competing for dominance. One part of ATF is responsible for

the administration of the taxes, for collecting taxes and regulating

the alcohol, beer, wine, and tobacco industries. The other part of

ATF and the part that we focused on is the responsibility to enforce

the Nation’s firearms and explosives laws. I had the honor and

privilege to be the chief of ATF’s law enforcement component during my career in Federal law enforcement, and some of my experiences are reflected in the report.

Looking at the structure of ATF, the first issue is will the responsibility for tax collection and regulation of industries producing

luxury items play any role in law enforcement in the 21st century.

The answer is a resounding no. It did in the 1920’s and the 1930’s

when we had Prohibition and we had a Federal crime to manufacture or transport or possess distilled spirits, and even beer.

In the 1940’s and 1950’s, we had a lesser problem which was

largely regionalized in the southeast region with non-tax-paid distilled spirits, moonshine whisky in the southeastern part of the

country, which was having a corrosive effect on State and local governments and law enforcement in general. But these were wars

that were fought in the century past and which are over. Our mandate was to make recommendations to prepare for the battles

which will be coming up in the 21st century.

The second issue with ATF is do the competing missions within

the same agency have an adverse effect on law enforcement, and

the answer is yes. The Commission analyzed the study underlying

ATF’s creation as a bureau, as a separate bureau, where it was

taken from IRS and made a separate bureau in 1972. We looked

at major studies of firearms law enforcement and its effectiveness,

including congressional hearings in 1986 on the Firearm Owners

Protection Act. These were major studies.

The consistent finding in all those studies was that the collection

of taxes and the regulation of the industries are incompatible with

the basic mission of firearms and explosives enforcement, and these

duties should be transferred to the IRS, where they originally were,

or somewhere else in Treasury. Vice President Al Gore performed

a similar study, Reinventing Government, and came to the same

conclusions. So the recommendations of the Commission merely

buttress the findings of earlier studies, and we come back to the

question of can we do something that hasn’t been done before.

A few words about the agency cultures, the cultures in one agency between the two forces, regulation and enforcement. It is axioVerDate 11-MAY-2000 07:19 Sep 08, 2001 Jkt 072524 PO 00000 Frm 00021 Fmt 6633 Sfmt 6602 E:\HR\OC\B524.XXX pfrm03 PsN: B524
18

matic that criminals and crime cannot be regulated; they are not

susceptible to regulation. Only the law-abiding will comply with

the law and all the regulations that we care to write.

This is a Nation that was founded on the principle of the rule

of law. The law enforcement philosophy is simply that the cause of

crime is the criminal, and the arrest and incarceration of criminals

will, one, deter and, two, prevent crime. And the deterrence and

prevention of crime is what it is all about, a better quality of life

for the American people. There is one tiny speck of society, the

criminal element, which must be the focus of all the efforts of the

agency.

On the other hand, the guiding philosophy of the regulator is

that violent criminals can be restricted in their access to firearms

by limiting the accessibility of firearms to the public. Within ATF,

the competing philosophies, it is never all or nothing; it is somewhere in the middle, and it is time that we meet at the level of

the criminal and focus all the attention on the criminal.

One anecdotal incident before I leave. During my career in Federal law enforcement, there was another agency in Treasury that,

as Senator Schumer said, was much maligned, and that was the

Federal Bureau of Narcotics. Over a long period of time, the Federal Bureau of Narcotics became the Bureau of Narcotics and Dangerous Drugs, in some obscure department that I don’t even remember, and ultimately came to the Department of Justice.

And there can be no question about the effect of being in the Department of Justice and associated with the FBI has had on DEA,

as we know it today. The ability to investigate complex investigations, the management changes that were effected, cannot be disputed. We don’t hear any calls for the DEA to be transferred back

to Treasury.

That concludes my remarks and I will be happy to answer any

questions.

Senator THURMOND. I have some questions here and I will proceed with those now.

Do any of you have any further suggestions?

[No response.]

Senator THURMOND. Judge Webster, there was considerable debate when the Commission was created about whether it would

conduct investigations of specific Federal cases. However, it appears that you decided against this approach and the Commission

appears to view Federal law enforcement in a positive light. Is this

correct?

Mr. WEBSTER. That is correct, Mr. Chairman.

Senator THURMOND. Judge Webster, most agree that there must

be some separation of law enforcement authority to serve as a

check and balance on power and ensure that the Federal Government does not develop one national police force. Would combining

ATF and DEA into the FBI bring America too close to a national

police force?

Mr. WEBSTER. Mr. Chairman, the answer is no, and if I may give

my reasons, every member of this Commission unanimously endorsed that particular recommendation. Every member of this

Commission is emphatically opposed to a national police force.

19

There are some 11,000 special agents in the FBI. That is approximately one-third the size of the police force of New York City,

and they must operate around the globe. If there were to be an

amalgamation of the resources and the talent in ATF and DEA,

that would only represent an additional 4,000-plus from DEA and

some 1,800 from ATF. It would not materially increase the FBI to

the extent that anyone could arguably say that that group, with,

say, 17,000 or 18,000 people in it, with some 85,000 Federal law

enforcement officers, now became a national police force.

Furthermore, I think the history, the training, and the close association with the Department of Justice, with direct reporting to

the Attorney General, over the years has made those in the FBI

extremely conscious of their responsibilities under the rule of law.

I cannot imagine that strengthening law enforcement in this area

by putting these three fine organizations together would threaten

a Federal police force or would damage our concept of what the

rule requires of those in Federal office.

Now, that is a suggestion that we have made. It has been made

before. We felt obliged because of our unanimous agreement to give

it to this committee and to the Congress as our considered opinion.

I can recall 20 years ago when Attorney General William French

Smith came into office and determined to bring the FBI into drugs.

Those in the FBI had been thinking about it a long time, and I was

there as Director. We were unanimously of the view that drugs had

gotten too threatening, we had seen too much of it in organized

crime, and that we had a role to play. We wanted to play it.

The thought at that time, and the order of the Attorney General

was to have the DEA report through the Director of the FBI to the

Attorney General, thus bringing us that much closer. I was not in

favor 20 years ago of a merger of the two organizations. I believed

that it made sense in the longer term, but I believed that culturally, structurally, it was premature to do that. And it was my

view, let’s make them more alike, get them a chance to work together—this was the FBI’s first foray into official drug enforcement—and let’s see if over time they won’t reach a point where

they could come together successfully.

We moved the DEA into Quantico so that it could receive the

same kind of training that the FBI special agents did. We took a

series of steps to improve the level of coordination and cooperation.

But coordination is a reed that law enforcement has to lean on, and

sometimes it becomes a lean reed.

I was down at Quantico not long ago when one of the special

agents who was very helpful to me retired and I had a chance to

talk to some of the drug enforcement agents down there as well.

A great deal has happened in 20 years, and as we confront the

challenges of the future, particularly with the international aspects

of narcotics and global terrorism and narcoterrorism, it seems to

me that those organizations could work together better in the same

house, utilizing the same laboratories, utilizing the same indices

and all the other combined skills that would make them more productive.

I can’t give you the level of experience I have with DEA when

I talk about ATF, but I can say when I was a U.S. attorney in

1960, I had tremendous admiration for the men and women in the

20

Bureau of Narcotics who were struggling against enormous odds

with very few resources, many of them in life-threatening situations. I can’t tell you how many agents I saw walking around with

bullet wounds and bandages, and when they were finally merged

into—some of the process that took them from Treasury on into the

Department, good things happened.

Now, with ATF, there is, to me, a curious situation here. Agents

are asked to, on the one hand, deal with problems of alcohol, on

another problems of guns, and on another problems of tobacco.

There are criminal laws that need to be enforced. I am not sure

why that particular mix makes sense in a world in which structure

is going to become increasingly important. It does make sense, it

seems to me, to leave those regulatory functions where they are,

in Treasury for ATF, and in the Department of Justice for DEA,

and put those law enforcement capabilities with the FBI and the

DEA.

Mr. Chairman, I realize I have given you too long an answer, but

I wanted you to get a sense of why we think not only does it make

sense, but that we are ready to approach this now. We have extraordinarily talented people. Structurally, today, it does not make

sense to us. We think that a consolidation can be and should be

seriously approached.

Senator THURMOND. Judge Webster, your report calls for a greater focus on narcotics trafficking, which is the primary mission of

the DEA. However, the report also calls for the DEA to be made

a division of the FBI. Would making the DEA part of the FBI,

which has a wide variety of missions, give the impression that the

Government is putting less emphasis on the war on drugs?

Mr. WEBSTER. I certainly hope not, Mr. Chairman. I can’t imagine that a structure that brought the FBI and the DEA together

would be anything less than one in which the narcotics efforts

would be one of the major divisions of the FBI, with its chief reporting directly to the Director of the FBI and able to bring to bear

resources that are not ordinarily available to DEA without considerable effort and coordination. So I would think they would be very

much in the picture. The fact that the FBI was totally committed

to that exercise because it had the full responsibility, with DEA, I

think would only argue for a stronger perception of the anti-drug

effort in this country.

Senator THURMOND. The next question is for you and Chief Stewart. The report notes overlaps between the FBI and DEA regarding

drug cases, and recommends that DEA become part of the FBI.

However, wouldn’t it be more efficient to take the drug mission of

the FBI and the accompanying resources and transfer that mission

to the DEA?

Mr. STEWART. Well, clearly it would eliminate the duplication of

effort problem if you were to do that. However, I don’t know that

the same amount of resources would be devoted to the drug problem as would be if the two agencies were together. You have different components of agencies; for instance, something as minor as

polygraphs, intelligence-gathering, support units for major operations, major raids, all of this type thing.

If someone were to suggest, for example, that an agency such as

SLED on a State level were to take its narcotics unit and turn it

21

into another separate State agency, I think we would be laughed

out of the State. Or if a major city police department was going to

take its narcotics unit and turn it into a whole separate agency in

the city, I think it might not make any sense to do it on that level.

I don’t know why it makes any sense to do it on a Federal level.

I think, if anything, there would be more resources available.

With the FBI’s involvement in tracking organized crime and

transnational drug organizations, there would surely be a duplication of effort there. Now, to take drugs totally away from the FBI

would eliminate that, but I think you would have a better focus

and a more total concept of drug enforcement to have it within one

shot.

Mr. WEBSTER. Mr. Chairman, I agree with everything that Chief

Stewart has said, so I won’t try to repeat it. I would simply again

refer to the fact for the Chair that perhaps an even more important

recommendation, a broader recommendation on structure is to

make the Attorney General responsible for law enforcement in this

country.

I believe that the Attorney General’s relationship to the FBI over

the years puts it in a better position to receive these resources

rather than to begin to break up their own resources otherwise directed to different kinds of organized crime and different kinds of

terrorism simply to preserve the identity of an agency that could

be very much alive and well inside the FBI.

Senator THURMOND. Mr. Sanders, concerns have been raised in

recent years about the decline in gun prosecutions and in gun case

referrals to the Department of Justice from ATF. Do you believe

that putting ATF enforcement into the FBI would make it more

likely that gun prosecutions will increase?

Mr. SANDERS. The statistics that I have read in public documents, Mr. Chairman, indicate that the production has greatly decreased, the number of prosecutions of firearms cases. I think the

first stage is to separate the regulatory part of ATF from the enforcement side so that there is a clear law enforcement mission and

it is not eroded by the regulatory impact.

Following that, you would have a stand-alone agency within

Treasury which would be responsible for only the enforcement of

the firearms and explosives laws. There is no regulation which goes

with the firearms and explosives laws. There is a small licensing

component, but no regulation, no fines, no suspension. It is all pure

law enforcement. So I think that wherever that organization is,

whether it remain in Treasury or be removed to the FBI, would be

a concentrated law enforcement agency which would increase production.

Senator THURMOND. Senator Sessions, take charge. I will be back

in just a minute.

Senator SESSIONS. Thank you, Senator Thurmond.

Well, I think that was not a bad question, Mr. Sanders, and the

question is if we merge ATF into the FBI, routine run-of-the-mill,

bread-and-butter gun cases that, in my view, actually reduce violent crime—are they going to go up or down?

Mr. SANDERS. The essence of the statute, Senator Sessions, is the

simple one-gun cases against bad people. That is how the statute

should be enforced.

22

Senator SESSIONS. That is what the thing was all about.

Mr. SANDERS. Yes, sir.

Senator SESSIONS. And it works, in my view.

Mr. SANDERS. It does work.

Senator SESSIONS. Some of my best friends are ATF agents. I

don’t go fishing unless I go with an ATF agent.

They have great relations with local law enforcement as a rule,

don’t they, Mr. Gallegos?

Mr. GALLEGOS. That is correct, sir.

Senator SESSIONS. Judge Webster, you have seen this system

from a couple of different angles, and first let me tell you how

much I appreciate your once again taking a lead in law enforcement. You have on several occasions stepped up to the plate at critical times in this country’s history and provided leadership and integrity and guidance that has been very valuable.

As I look over your recommendations, I can’t dismiss any of those

recommendations. I think they are worthwhile, and any of us who

care about making this system better needs to be dealing with

those very issues. And I am sort of playing around right now, asking a few questions about it.

Mr. WEBSTER. Thank you, sir.

Senator SESSIONS. But I think you have really clarified our

thinking and got us focused on some things that are long overdue

in being done. It strikes me that we do have too many agencies and

there is too much competition among those agencies. Did you have

occasion to look at the two gun-tracing programs that the FBI and

the ATF both developed simultaneously and, in your opinion, is

that an example of unwise competition and wasting of taxpayers’ money?

Mr. WEBSTER. Well, it is potentially exactly that kind of example.

I don’t pretend expertise on it, but anytime two organizations are

going after the same result, you have a number of questions on

how transferable, how usable will it be in other agencies, or is it

just designed to fit the machinery inside one agency.

There are arguments that we used to make in the intelligence

world about competitive analysis, but it is a different thing when

you are trying to produce something that will serve all of law enforcement and you have two people going off in potentially different

ways and different approaches. And the rest of law enforcement,

State and local, have to wait and guess which one they can properly plug into.

Senator SESSIONS. Mr. Sanders, would you comment on that?

Mr. SANDERS. Yes, Senator. Both systems were well-intentioned

and their purpose was to assist State and local law enforcement.

We heard testimony from the labs, from the State and local labs

that not only was it not providing the assistance, but they were

forced to duplicate their efforts and service both systems because

they didn’t know which system would end up on top.

Senator SESSIONS. And the FBI and DEA were both—— Mr. SANDERS. FBI and ATF.

Senator SESSIONS [continuing]. ATF—were like salesmen trying

to sell their systems, arguing why theirs was better than the other?

Mr. SANDERS. If you were to describe it, you would just say it

can’t happen here; that can’t happen.

23

Mr. WEBSTER. I would put in another plug for enhancing the authority of the Attorney General. The Attorney General could step

in in a situation like that.

Senator SESSIONS. Well, Judge Webster, now you raised a question. How long is the tenure of the FBI Director now?

Mr. WEBSTER. Not more than 10 years.

Senator SESSIONS. Not more than 10 years. They are senatorially

confirmed, and for a lot of reasons people want—and you served in

that office—an independent FBI Director. The Attorney General

basically serves at the pleasure of the President, and the FBI is

jealous of their prerogatives.

How could we move to giving the Attorney General more

coordinative power, realistically? How can we make that a reality?

I think that ought to be done.

Mr. WEBSTER. Well, it is a combination of an executive order supplemented by congressional concurrence, as I understand the current law that restricts any restructuring and requires congressional

concurrence. The lead could come either from the Congress or from

the executive branch if they were sympathetic to the recommendations.

I was looking for the list of recommendations that we made with

respect to the Attorney General. Here it is; I have it on pages 108– 109. The answer to your question is just what I think I said, although not as artfully: Strengthen Executive Order 11396 which is

already on the books, updating it through presidential or congressional action, if necessary, to reflect new global and national realities, and reissue it to ensure the Attorney General becomes the

focal point of the Federal Government.

Senator SESSIONS. So let me interrupt you now. Here, we have

gone through a process, and I was troubled by it and not too certain we did the right thing. We have eliminated the independent

counsel.

Mr. WEBSTER. Yes.

Senator SESSIONS. So that leaves all Federal law enforcement

under the control of the Attorney General. Would you agree? Well,

no.

Mr. WEBSTER. No. That is the problem.

Senator SESSIONS. I guess you have got Secret Service and ATF

and other departments.

Mr. WEBSTER. That is right, different departments.

Senator SESSIONS. But the prosecutorial authority is under the

Attorney General, the ultimate prosecutorial authority.

Mr. WEBSTER. Yes, that is right.

Senator SESSIONS. I am troubled by the fact that the Attorney

General is the personal appointee of the President, serves at the

pleasure of the President, and may be called upon to investigate

matters that would be embarrassing to, or even criminally implicate the President or high executive officials.

We have no independent counsel now, and so would you agree

that we need not, at least under those circumstances, undermine

the independence of the FBI? That at least is one agency with some

additional independence in this process.

Mr. WEBSTER. I certainly agree with you, Senator. I don’t believe

that our suggestion was intended, nor do any of the 15-or-so speVerDate 11-MAY-2000 07:19 Sep 08, 2001 Jkt 072524 PO 00000 Frm 00027 Fmt 6633 Sfmt 6602 E:\HR\OC\B524.XXX pfrm03 PsN: B524
24

cific recommendations that are contained on page 109 of the report

lead us in that direction. The FBI has often been criticized for not

acting responsive enough. In point of fact, the FBI reports through

the Attorney General and not otherwise, and it has jealously

guarded its independence from the White House in terms of taking

specific tasking on criminal cases, or not taking specific tasking.

It does have to pass muster with the Department of Justice and

the Attorney General. I don’t know of any alternative to that, but

the role that is defined here is not dissimilar from that of the Director of the Central Intelligence as to all of the other intelligence

agencies in the community. It is more than a den chief role, but

it does not destroy their independence. It talks about things as developing and implementing objectives and guidance for law enforcement, and formulating and implementing policies and procedures

regarding law enforcement.

It does not anywhere in here suggest that she should arbitrarily

decide to foreclose an investigation that is otherwise authorized

under existing guidelines of the Attorney General himself or herself. I am reminded of a previous Attorney General some years

back who was greatly loved and independent to the extent that he

said, the President is entitled to my best opinion; the President can

fire me, but he may not change my opinion. And I think that people felt that that is the way it would be.

We had a different Attorney General who resigned on matters of

principle. And as long as we have principled Attorneys General

who are reminded either by Senators or others of that responsibility, I don’t fear for the Republic. I fear for the Republic if our

Federal law enforcement system goes off in all directions and no

one, including the Attorney General, has the authority to pull it together and make it go and work in harness.

Senator SESSIONS. Well, you have an opportunity to fix responsibility with somebody, and it is a rather bizarre circumstance we

have today. And I listed a lot of agencies, big agencies; one is the

U.S. Marshals Service. That is a growing agency and, in my view,

has less to do than it did 10 years ago in some ways and is probably bigger and higher-paid.

The taxpayers are entitled to the finest production that we can

get for them. There is no doubt in my mind that as years go by,

certain agents become more productive and certain agents become

less productive. We need to figure a way to get more resources to

those who produce and a way to get rid of some of those who don’t

produce. I have seen that as just blatantly clear.

The idea that if you took the law enforcement from ATF—I won’t

go into that proposal. Let me ask you this. I have thought there

is sort of a harmonious cultural relationship between the Secret

Service and the FBI. They were trying to give the Secret Service

more financial responsibility, more money laundering responsibility. The Secret Service protective duties could easily be a special

responsibility of agents within the FBI, and all agents could be

available to assist on big days when something special is happening.

Have you given any thought to a consolidation of the Secret Service?

25

Mr. WEBSTER. We did give thought to it, and within the time

frame that we had we couldn’t debate out all the issues. But there

was really no support from within the Commission for consolidating those. They have mostly separate functions and they have

worked well together in the past. In the white collar crime area,

particularly bank-related crimes, the Secret Service has the expertise and has performed well, and that keeps them busy when the

protective issues are not on the front burner. So there is a kind of

good working back and forth in those two skill areas. That has

never really been a problem between the two agencies, but where

you do have, as you do with DEA and FBI, concurrent, not staggered but concurrent responsibility, it is ripe for unnecessary trouble.

Senator SESSIONS. Is there any concurrent Secret Service and

FBI jurisdiction over financial matters?

Mr. SANDERS. There is some, Senator, but they don’t seem to be

running into each other and conflicting.

Senator SESSIONS. Well, they don’t, but they are doing basically

the same thing. They are working with banks and credit card companies and people who are defrauding all over the country and

things like that. I am not sure that they really wouldn’t perform

better as one unit.

Mr. Gallegos.

Mr. GALLEGOS. Mr. Chairman, Senator Sessions, one of the areas

that we did discuss, and Chief Stewart alluded to it, was in the laboratories. What we found was a tremendous amount of duplication

of effort, or capabilities, I would say—not effort, but capabilities

within the labs. The Secret Service has a document lab, the Immigration people have a lab, the FBI has a lab. They are all fine labs,

but they all do document work.

Senator SESSIONS. We always wanted the Postal fingerprint guy,

though.

Mr. GALLEGOS. And the Postal people. Everybody has a lab, and

that could be an area where there could be more joint effort there

rather than having a lot of separate bureaucracies and separate efforts by the various agencies.

Senator SESSIONS. That is a good suggestion.

Mr. GALLEGOS. But in regard to either joining or duplication of

effort, we did talk about those specific issues.

Senator SESSIONS. I would just ask you one thing. Do you believe

that backups over work in labs on drugs and other laboratory matters in State and local police departments are adversely affecting

law enforcement? That could be an appropriate role for the Federal

Government to help support State and local laboratories.

Mr. GALLEGOS. Mr. Chairman, Senator Sessions, I think there

could be more effort—and I am not saying that they don’t; the DEA

has a lab and the FBI has a lab.

Senator SESSIONS. I am talking about like your State drug cases.

In Alabama, I see a report that our laboratories’ drug analysis is

backed way up, therefore delaying the commencement of drug prosecutions. If the Federal Government wanted to help State and local

law enforcement, based on your experience, would that be a way

to help them?

26

Mr. GALLEGOS. I think it would be an excellent way to help. The

other thing, though, when we heard testimony from the State labs

was really the evolving capabilities and expertise in the State labs.

In some respects, the States don’t need the Federal agencies anymore. In other respects, they do.

Senator SESSIONS. I understand that.

Mr. GALLEGOS. So I think there has to be kind of a tradeoff of

effort and coordination of effort.

Mr. STEWART. I think you are familiar with the National Forensic Act that a number of State directors have come to you and Senator Thurmond, as well, about and is now under consideration

here. I can tell you there is not a greater service that the Congress

could provide to State and local law enforcement than to help our

forensic science laboratories. We are desperate for help.

Senator SESSIONS. Now, that is a big statement you just made,

and my instinct tells me the very same thing. When you have to

wait 90 days before you can commence a cocaine case because the

State lab is so overworked they can’t get the report back, then that

has really fouled up your legal system. Sometimes, it is a lot longer

than 90 days.

Is that what we are referring to?

Mr. STEWART. Absolutely, and not only drugs, but in other areas

as well. Drugs is one of the primary problems we have right now,

drugs, toxicology, and some other areas. It is really a serious problem, and I don’t think there is a greater thing that Congress could

do.

You have got to understand 95 percent of all the forensic science

work done in this country is done in a State or local crime lab. It

is not done in a Federal lab. They are putting 100,000 new police

officers on the streets of the United States. The evidence they seize

that goes to a laboratory is going to State and local laboratories.

So the Federal Government is putting all these new officers on the

street, but the State labs are not getting the assistance that we

need to keep up with that new volume, or the old volume as far

as that goes.

Mr. DAHLIN. I wanted to return to your earlier question on the

Secret Service. We did have a proposal by one of the people who

testified saying we ought to create a Cabinet-level department of

law enforcement, bring it all together. And we rejected that because we have a concern that the Members have that we do not

want a national police force.

But I would invite your attention and members of the committee

and others to the recommendation that is on pages 110 and 111,

where we are suggesting that in the longer term it may make sense

to create a unit that would be responsible principally for financial

and regulatory enforcement that would bring together folks from

the Secret Service and the Customs Service and IRS enforcement

to really concentrate our efforts in that area. And so in not recommending bringing the Secret Service into the FBI, we are not suggesting that we are perfect in that area. We would like to offer this

other option for your consideration as well.

Senator SESSIONS. Mr. Chairman, thank you.

Senator THURMOND. Chief Stewart, the report recommends that

Federal agencies be required to regularly undergo accreditation by

27

outside agencies. Based on your experience with accreditation on

the State level, do you think accreditation is important for Federal

law enforcement?

Mr. STEWART. Yes, sir, I do, and you are talking about a number

of issues here. You are talking about the integrity of law enforcement, you are talking about professionalism, you are talking about

standardization and uniform policies and procedures that every law

enforcement agency, no matter whether it is Federal, State or

local—no matter what the level, they should live up to these standards.

There is a lot of time and effort that has been expended to come

up with these standards. As I said, it was created by a Federal

grant from Congress. A lot of time and effort has been put into creating this. There is a commission that is made up of law enforcement officials and academics from different levels that meets and

comes up with these standards. And then an inspection team comes

out and inspects the organization to see to it that all these standards are met.

I can’t think of anything the Federal agencies could do to encourage public confidence and relationships with State and local law

enforcement, improve those relationships, than the national accreditation program. As I have said, a number of Federal agencies are

now in the lab accreditation program with ASCLD, and the Marshals Service and the U.S. Capitol Police are now involved in aspiring to obtain this accreditation from CALEA. I don’t see a downside.

Some Federal agencies say, well, it doesn’t apply to us. Well,

SLED is a criminal investigative agency with a criminal justice information center, computerized, and a forensic science laboratory

which is accredited. But we don’t do street patrol or many normal

police functions. Yet, we are nationally accredited. We have the two

accreditations that are possible for us to attain. So it can apply to

criminal investigative agencies, and does.

Most of the Southeast State criminal investigative agencies—

Florida, South Carolina, Georgia, North Carolina, Tennessee—are

all nationally accredited, the State criminal investigative agencies.

It is one thing, if nothing else, that the Southeast is clearly a leader in and we are proud of that and hope that the Federal agencies

will become more involved.

Senator THURMOND. Judge Webster, one of your conclusions is

that the Attorney General should have broad authority to coordinate law enforcement matters. If the Attorney General’s role becomes greater, are you concerned that non-DOJ agencies might be

at a disadvantage in terms of resource allocations and jurisdictional conflicts?

Mr. WEBSTER. I am not concerned, Mr. Chairman, but I can’t say

that there isn’t some possibility of that. However, the kinds of authorities that we outline on page 108 and 109, and indeed part of

110 of our report are not the kinds of things that are designed to

make the other agencies less important or less effective. Quite the

reverse.

My experience as Director of Central Intelligence, under which I

had some of these kinds of authorities to deal with the other members of the intelligence community, such as DIA, NSA, INR at the

28

State Department, the military intelligence services and others,

made it more likely that the community as a whole would be aware

of and supportive of the role of these other agencies. They were not

subsumed at all, and it would be my hope and expectation that

that would be the same result with these recommendations.

Senator THURMOND. Judge Webster, in the report’s discussion regarding law enforcement priorities for the new century, you note

terrorism and narcotics trafficking. Do you think that white collar

crime, such as money laundering, is an increasing problem that deserves top attention in the new century?

Mr. WEBSTER. I absolutely do. Some of those problems, as we see

them, for the future involve the globalization of crime, most of

which involves, as I think the chairman pointed out earlier, money.

Crime is always about money, except for a few crimes of passion

that we are not involved in jurisdictionally.

As Russian mafia groups form alliances with American La Cosa

Nostra and Sicilian mafia and other places around the world, as we

have already seen, we have enormous schemes, high-stake financial

things, all in the rubric of white collar crime. Some of it moves into

the terrorism field by definition, but most of it has to do with stealing, and increasingly stealing by means of electronics, the computer, and so forth. So I don’t think white collar crime is going to

go away. It is very much a part of the 21st century and needs to

be addressed with some of the suggestions we have made here.

Senator THURMOND. Chief Stewart, your report has many meaningful findings. For example, it explains that practically every Federal agency of any size has its own separate police force. There appears to be no good reason for 150-or-so separate police forces. How

do you believe they could be consolidated?

Mr. STEWART. Unfortunately, we didn’t have the time to go into

a study of that in great detail other than to identify the problem.

We do note, though, that there are several law enforcement agencies in small areas even right here on Capitol Hill maybe even employed by Congress that could possibly be somewhat easily merged,

and at this point may not even be able to talk to each other on the

radio, we are told.

However, we were hoping that the board that we suggest be put

together from amongst the law enforcement agencies in the Federal

Government working with the Attorney General would put great

study into that. I know within the Department of the Interior and

the Department of Agriculture there are a number of small agencies that at least within their own agencies could be combined.

But one of the biggest things that Gil Gallegos spoke to earlier

is attention is not given to these law enforcement agencies. They

don’t have the manpower, they don’t have the equipment to do the

jobs that they are expected to do. Here again, it is something I

think national accreditation might play a large role in. If the agencies were submitted to the process of national accreditation, you

could find out where the shortcomings were and see what actions

could be taken. But, clearly, the law enforcement agencies within

a Cabinet agency, the uniformed ones, could be better coordinated

and possibly some mergers in there where it is appropriate, and we

would hope that that would be done.

29

Senator THURMOND. Judge Webster, one of the report’s creative

recommendations regards the federalization of crime as a serious

problem. Your report suggests that a law enforcement impact statement be written to accompany legislation that would create new

Federal crimes, similar to budget impact statements. Please explain how a law enforcement impact statement might discourage

the Congress from creating new Federal crimes.

Mr. WEBSTER. I would be happy to try. This suggestion in one

form or another has been made in successive years by such people

as the late Chief Justice Warren Burger, who was concerned that

every time Congress, in its desire to be helpful to meet a problem,

passed a law making particular conduct a Federal crime even

though it was already a crime in all of the States of the Union. It

added to the burden of the whole justice system. It requires more

investigators, it requires more prosecutors, it makes a larger caseload for the trial courts and the courts of appeals.

The hope, just as it was with the environmental impact statement, was that when someone came forward with the idea—I am

being facetious now—that anyone who uses a handgun with his left

hand has somehow committed a Federal crime using any kind of

pretext to invoke Federal jurisdiction, they may be creating a series

of problems for the justice system.

Accordingly, the advocates of that type of legislation really ought

to be required to take a look at what that is going to cost in human

available personnel, cost in judicial resources, prosecutorial resources, and then let the Congress, with that information, make a

judgment whether it is worth the candle to pass duplicate legislation of what is already on the books at the State and local level.

Senator THURMOND. Judge Webster, regarding the federalization

of crime, you also recommend that new Federal crimes have a 5-

year sunset provision. Please explain why you think this is important.

Mr. WEBSTER. It is part of our view that measures have to be

taken to curtail the expansion of the Federal arm into the criminal

justice system, and that things go on the books and they stay there

forever. There were about 12, I am told, maybe less, on the books

when our Constitution was adopted. There are over 3,000 laws that

criminalize conduct under Federal jurisdiction today.

So if a new one is proposed, we think it would be healthy to have

a sunset provision so that the Congress would have to take another

look. Maybe we have the wrong number of years, but we suggested

5 so that the Congress, in order to save that legislation down the

road, would have to decide it was a good thing. Otherwise, it would

automatically expire if Congress didn’t think enough of it to renew

it.

Senator THURMOND. Senator Sessions.

Senator SESSIONS. When I was U.S. attorney, I wanted a U.S. attorney’s impact statement. I think we even passed a resolution of

the U.S. attorneys that that be done.

With regard to the firearms, the real impact of Federal firearms

prosecutions is on the prison system, and it does not, in my view,

require large amounts of increases in prosecutors or ATF agents.

If I ran both those agencies, you could have a 50-percent increase

30

in prosecutions without any increase in personnel within 6 months.

It is just a question of where you set your priorities.

But if you do a lot of the gun cases which traditionally were

street-type crime cases that this Congress and this President have

made a high priority—if you do that, you do put some people in jail

and you do have to build some Federal jail space. That is an impact

statement that really needs to be considered in the process.

Gil, you mentioned the people who will first respond to a terrorist act, your colleagues and sheriffs’ deputies and fire departments. Do you believe it is a fit role for the Federal Government

to help train those people on how to react to the various threats

that they may face?

Mr. GALLEGOS. Absolutely, Mr. Chairman, Senator Sessions. In

our report, we also recommend that the Attorney General establish

an interagency training board that would look at various training

requirements. One of the requirements that we are recommending

is that there will also be State and local training experts that

would have the ability to provide input, and the reason is so that

they would be able to better mesh the idea of law enforcement

training and how that carries on to the States and the cities on

how to better respond to terrorism or some other crime. So we felt

that it was important enough that there should be a consolidated

effort to do that, and through training and through this board they

could really get to the meat of what is needed out in the field.

Senator SESSIONS. Mr. Chairman, I would just mention that Fort

McClellan, which was the Army’s chemical weapons school in Alabama, is now beginning a program to train first responders. They

have a waiting list of applicants and they have utilized their faculty from previous times and their chemical training facilities and

all to do that. And it has been very well received, but we have put

very little money in that in terms of how we are spending on

counterterrorism. It is chicken feed, really, and I was disappointed

this year that there wasn’t an increase.

I think it will have to go up in the future because the true fact

is that it is our police and fire people who are going to be there

first and if they don’t recognize anthrax or some poison gas, they

are going to die and citizens are going to die. We can help them

be prepared for that, I believe.

Judge Webster, on federalism, that is a very legitimate issue. I

am sure all of you have discussed that and you have wrestled with

it. I think it is appropriate, perhaps unwise on occasion, for the

Federal Government to recognize certain areas that represent

threats to the peace and dignity of the Nation and to emphasize

it. We did it with drugs. We made a major step; we made concurrent jurisdiction with drugs, and we have done it with firearms. Arguments could be made that both of those are Federal Government

coopting cases that should be State cases.

My general view is if we have good ATF agents and good prosecutors who have time to prosecute gun cases, they ought to be

prosecuting them as they can in helping fight this problem in partnership with the State and local police. The way we did it in Mobile and the way they did it in Richmond was that the chief of police and the U.S. attorney and the ATF actually have a little

memorandum of understanding on how they are going to work the

31

cases. And they work together, utilizing the capabilities of the Federal courts for certain type cases and State courts for others, and

achieve some real results.

But we are prosecuting cases. Federal judges told me, and I

know they have told you, Judge Webster, this is a gun case that

ought to be tried in State court. But unless we change the laws,

I am inclined to think we ought to enforce them and use the resources we have got for that.

Mr. WEBSTER. Our big problem was not so much with the laws

that are on the books. It was just simply randomly enacting new

laws because the Federal Government just sort of wanted to get in,

wanted to be helpful. Those determinations that you describe are

conscious judgments that they represented a threat to our national

security and our national well-being, and that is certainly consistent with the Lincoln Doctrine which we quote in here that the

function of the Federal Government is to do for the people and the

States what they can’t do as well for themselves, or cannot do at

all. When they run up to a road block where they need help, nothing in our report should be considered as opposing that.

The Nunn-Lugar-Domenici bill is directed at precisely the kind

of training that you were talking about for first-on-scene people for

weapons of mass destruction, and we really badly need that now,

not after the bomb goes off.

Senator SESSIONS. And we have made some progress in that, I

believe, philosophically, in that the Department of Defense is giving that up to the Department of Justice because they are troubled

by military training and being deeply involved in domestic response

efforts of the cities and counties. I think that is probably more

healthy.

Professor Dahlin, do you have anything to add to this discussion?

It might be good to have a professorial view.

Mr. DAHLIN. You give a professor a chance and, of course, I have

something to add. I guess I would make two or three points. First

of all, back to the concern about national police and all of that, I

think that the greatest danger to a national police force is a national criminal code. So if we keep adding and federalizing more

and more common street crimes, someday we may wake up and

look and say, look what we have done.

Second, I think that the recommendations for an impact statement and for a 5-year review are designed to help Congress do just

what you are suggesting. You make a considered judgment that indeed this is a national issue. The impact statement allows that

judgment to be ratified before the law is passed, and the 5-year review allows it to be tested against reality afterwards.

Finally, I am very concerned, and I think my fellow commissioners are as well, that what often has been happening is Congress passed a law, but it doesn’t really add enough personnel even

to the law enforcement agency, much less at the prosecutorial level

or the judicial level or the correctional level. So you have a law

that says an agency is supposed to enforce the law and the reality

is they are not, and it seems to me that is a recipe for public cynicism. Of course, every time you pass a law where there is a jurisdiction with a State and local agency, you have now multiplied the

number of coordination issues we have got to deal with.

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So I think that absolutely, as Judge Webster said, there will be

occasions when it is appropriate in our increasingly interconnected

world for Federal law enforcement to get into areas that traditionally perhaps it has not. But that ought to be a much more deliberative, contemplative decision than I think it is at the present time.

Senator SESSIONS. Thank you, Mr. Chairman.

Senator THURMOND. Mr. Gallegos, your report recommends that

the law enforcement and intelligence communities review their procedures and policies to ensure that they have adequate resources

to coordinate activities. There seems to be no all-encompassing national intelligence architecture in the areas of terrorism and

counter-drug intelligence-gathering.

Do you have any recommendations concerning streamlining the

intelligence coordination among agencies?

Mr. GALLEGOS. Yes, sir, Mr. Chairman. One of the concerns that

we had was the connectivity questions that come up with computerized intelligence. We know that the different agencies—Department of Justice, FBI, DEA, the Secret Service—everybody has their

own component of criminal intelligence data.

What has been the real obstacle to consolidating that data is that

the agencies either reluctantly have connected some of it or have

just said they are not going to connect it. And we feel that that has

to be a focus so that they are all dealing with the same information

the same way. What has been found is that the agencies don’t have

the capabilities or perhaps the will to exchange that intelligence information.

We also have the creation of the various intelligence centers,

from the EPIC Center in El Paso, which to this day is very reluctant to give up anything, any kind of information, especially to

State and locals——

Senator SESSIONS. They might collect it, but they are not too

quick to give it out.

Mr. GALLEGOS. Absolutely. They take your information, but it is

hard to get your own information out of it. I know that from personal experience.

But the key is to get these different intelligence centers to talk

to each other and to exchange the information and to be able to disseminate that information as appropriate. That is the key, not to

have blanket dissemination, but to be able to disseminate the information based on the need to those particular agencies, whether

they be Federal or State and local.

That is part of the policy development that has to be undertaken

to ensure that it is easier to disseminate the information and that

all the road blocks are not there. So when you have an agency that

needs the intelligence, they can get it and they can use it appropriately.

Senator THURMOND. Judge Webster, your report makes recommendations to greatly change the roles of the inspector general.

You recommend that the offices of inspector general lose their investigative powers, with investigations apparently remaining within the agency. According to the results of your public opinion survey, 78 percent of Americans favor outside monitors of agencies authorized to report any abuses of power.

33

Is your recommendation regarding the inspectors general consistent with public opinion?

Mr. WEBSTER. Mr. Chairman, I am not sure that it is consistent

with public opinion, and I am not sure to what extent the public

has an actual awareness of what the inspector general does and

how that works out with the other agency responsibilities that

have internal policing.

Our concern was that the inspectors general over the years—and

we have had some very good ones in time—tend to focus more and

more of their time on internal policing, that is law enforcement investigation, rather than their principal focus to see whether the

agency or the department is doing its job well and whether or not

it is using efficient management procedures and whether people

are carrying out their work for the people of this country in an aggressive and informed way.

I confess a personal bias that I have always thought from the

days when the inspectors general were first created that I wish

they had been called auditors general because that is a role that

the public generally thinks they are doing. They are monitoring

how money is spent and how effective and efficient the performance

is, and that is a very important outside role and I think it should

not be diminished.

But inside the Department of Justice, we have had at any given

time an inspector general, a head of the Office of Professional Responsibility, and a head of the Office of Public Integrity. This is

bound to create internal tensions and confusion. And we thought

that as long as we were giving you our best suggestions for the future that we really ought to examine what an independent inspector general contributes that is not already being done in the Department.

Senator THURMOND. Now, this question is for all of the panelists,

all of you. The report makes numerous recommendations in various

areas. I ask you this: What do each of you think is the one recommendation of your report that is most critical for the Congress

to address immediately, and why?

We will start right here.

Mr. DAHLIN. Well, if you force me to take one, I guess I would

take the strengthening of the executive order and giving the Attorney General greater authority because I think that would be at

least a beginning step in helping to pull together law enforcement

in a way that seems critical to me if Federal law enforcement is

to be prepared to work with the problems that are going to be there

in the 21st century.

Mr. STEWART. I would say eliminate the duplication of effort, duplication of responsibility, which causes disorganization and waste

of resources.

Mr. WEBSTER. It is impossible for me to separate those five suggestions. There are many, many suggestions, dozens of suggestions.

There are five basic principles that we submitted to you and they

are integral; they can’t really be separated.

If we look into the future of law enforcement in this century and

where it is going to take us, we must have a strong, central, accountable source of leadership, such as Professor Dahlin emphasized. We must have the intelligence and the information needed

34

to combat terrorism. We must make global crime a national priority, and we must, in order to maintain our effectiveness, reduce

the trend toward federalization. Finally, we must have a focus on

professionalism, integrity, and accountability.

Now, it is up to the Congress how many of the specific suggestions we have made in our more lengthy report it wishes to push

forward, but I think all five of those principles of concern need in

some way to be addressed.

Mr. GALLEGOS. Mr. Chairman, I would echo the sentiments of

Professor Dahlin. I think Executive Order 11396 creating the responsibility for the Attorney General is the biggest step to really

consolidating the efforts and the coordination of Federal law enforcement.

While I agree with the chairman that the other principles have

to be taken into consideration, I think this would be a tremendous

step to really reducing the duplication of effort and really consolidating law enforcement as it should be.

Mr. SANDERS. Mr. Chairman, I think we are all saying basically

the same thing that the package of recommendations are intertwined and irretrievably connected, and I would select all of them.

Senator THURMOND. Senator Sessions, do you have anything else

you want to take up?

Senator SESSIONS. Well, I was intrigued by the inspector general

recommendation. That is consistent with the long-term suspicion or

feeling I have had that you really need—the best investigations I

have had, Judge Webster, within an agency came from the FBI.

There is pressure on inspectors general to not embarrass the agency, to get people to resign perhaps and just go away. I hate to say

that, but there is not the intensity of interest of actually having a

case go to trial and have that deterrence and justice that comes

from a public official who has been mismanaging or stealing. So if

we could separate those roles of auditing from criminal prosecutions, I think we might be better off, and I share that.

Again, Mr. Chairman, I think this report is very valuable. We

simply have to consider how we can better produce law enforcement in America at less cost and a better product, to avoid duplication, counter-productivity, sometimes actual hostility between agencies, sometimes unbridled competition, such as over the gun-tracing

thing. Those things could be done better if we had stronger leadership.

It ultimately will come down to having an Attorney General and

high officials who have a passion for producing excellence. If you

give the power to the Attorney General and the Attorney General

is not interested or doesn’t even have a Criminal Division chief for

18 months and is not interested in that and focused it, then you

are not going to get the productivity we need. Perhaps that is

something we need to look at in confirmations in the future, is will

this person try to honor the taxpayers’ money and produce efficient

and effective law enforcement agencies for America.

Mr. Chairman, thank you for holding this. I have enjoyed it a lot.

I respect this panel. I have known most of them for previous years.

The report is of great value, and I think it is up to us now to wrestle with it and see if we can’t improve law enforcement in America.

35

Senator THURMOND. Were you the attorney general in Alabama

or a prosecuting attorney?

Senator SESSIONS. I was U.S. attorney for 12 years and attorney

general for 2.

Senator THURMOND. That experience has been very valuable to

you.

Senator SESSIONS. Thank you, sir.

Senator THURMOND. Now, before closing, I would like to place

into the record a statement by Senator Hatch, and also a statement

by Senator Leahy.

[The prepared statements of Senators Hatch and Leahy follow:]

PREPARED STATEMENT OF SENATOR ORRIN HATCH

Let me welcome the members of the Commission on the Advancement of Law Enforcement to our hearing this afternoon. I helped established the Commission in

1996 as part of the Hatch-Dole Anti-terrorism and Effective Death Penalty Act. I

felt then that it was important to have an experienced panel of experts, from different law enforcement perspectives—federal, state and local—to examine our federal law enforcement structure in light of the changing environment of the 21st century. I feel even more strongly about that now, and I look forward to reviewing your

report in greater detail and working with you as we explore ways to improve the

federal government’s role in protecting our citizens.

I am eager to explore your recommendations for improving coordination and cooperation with state and local law enforcement agencies. In addition, it has become

increasingly clear to me that cyber-crime and cyber-terrorism, both foreign and domestic, pose the most significant new challenge to law enforcement. I strongly agree

that the tools and techniques that carried this nation through the 20th century will

not suffice in the 21st. To that end, the Committee will closely examine these issues

in the coming months to make sure law enforcement is not outflanked by criminal

activity carried out through our new information technologies.

The Commission’s report also makes a number of recommendations for consolidation, some of which have been suggested before, such as the recommendation to

combine the law enforcement functions of the ATF and DEA into the Federal Bureau of Investigation. I have long been open to the idea of consolidating ATF’s en- forcement functions within the Justice Department.

In particular, I am eager to do what I can to improve the Clinton Administration’s dismal record of enforcing our firearms laws. In 1994, Congress passed the Brady

law which required background checks for gun purchases. In December 1998, the

National Instant Check System became operational. As of 1999, more than 250,000

persons who cannot legally purchase a gun have been prohibited from purchasing

a gun because of these background checks.

Even though it is a federal felony to lie on a background check application for a

gun purchase, the Clinton Administration rarely prosecutes these cases. Of the more

than 250,000 persons who have been prohibited from buying a gun since 1994, there

have reportedly been less than 200 referrals for prosecution. Just last month, the

Denver Rocky Mountain News revealed that Colorado residents who lie on Brady

background check applications are rarely prosecuted. I hope that the Justice Department will begin to prosecute Brady violations and will increase gun prosecutions

generally.

While the Administration continually tries to politicize the issue of crime, I believe we must put public safety ahead of politics. The American people deserve no

less. I thank the distinguished Commissioners and their staff for all the hard work

that has gone into this report. I and the Committee look forward to working on

these issues.

PREPARED STATEMENT OF SENATOR PATRICK J. LEAHY

The Report of the Commission on the Advancement of Federal Law Enforcement

released earlier this week fulfills a congressional mandate issued as part of the

Antiterrorism and Effective Death Penalty Act of 1996. It has taken longer than the

original two years anticipated in that mandate to reach this stage, but the observations and recommendations of the distinguished members of the Commission are no

less timely. I want to thank each of the Commission members for their distinguished public service both in the past and in connection with this report.

36

No nation is safe enough that it can afford sit back and believe it is adequately

prepared to handle all possible threats to the public’s safety. The United States

should continually be updating its law enforcement resources and reevaluating the

organization and goals of our Federal law enforcement efforts. While we may not

all agree about specific recommendations, the report is an important contribution

to making those ongoing efforts. I would like to comment briefly on three of the report’s recommendations.

First, the report recommends that enforcement of our firearms and explosives

laws currently handled by the Bureau of Alcohol, Tobacco and Firearms and the enforcement responsibilities of the Drug Enforcement Administration be transferred to

the Federal Bureau of Investigation. In previous Judiciary Committee hearings on

the incidents at the Branch Davidian compound in Waco, Texas, I have raised real

concerns about the continuation of the Bureau of Alcohol, Tobacco and Firearms.

While I do not believe in change for the sake of change, I will keep an open mind

to the suggestions of the Commission on reorganizing our Federal law enforcement

agencies. Concentrating federal law enforcement powers not only under the Attorney General but also under Directors of the Federal Bureau of Investigation, who

serve unique ten-year terms and may not be appointed or accountable to a serving

President, may strike some as putting too much power in the hands of one person.

Furthermore, the Commission was created by Congress out of concern over the

quality of federal law enforcement agencies in the aftermath of the tragedies at

Ruby Ridge, Idaho, in 1992 and Waco, Texas, in 1993. The conduct and role of the

FBI in both those incidents has been rightly and strongly criticized in independent

and congressional investigations. As the ongoing investigations by Special Counsel

John Danforth and by Senator Specter suggest, the final chapter on the Waco incident has not yet been written. While the FBI has made important organizational

changes since those two incidents, we should move cautiously before concentrating

additional power in that single law enforcement agency.

Second, I agree with the Commission’s recommendation that we must focus additional effort on computer-related crimes. On July 1, 1999, I introduced S. 1314, the

Computer Crime Enforcement Act, along with Senators DeWine and Robb. Our legislation would authorize a Department of Justice grant program to help States prevent and prosecute computer crime. Grants under the bill may be used to provide

education, training, and enforcement programs for State and law enforcement officers and prosecutors in the rapidly growing field of computer criminal justice.

Computer crime is quickly emerging as one of today’s top challenges for state and

local law enforcement officials. All 50 states have now enacted tough computer

crime control laws. These state laws establish a firm groundwork for electronic commerce, an increasingly important sector of the nation’s economy. Unfortunately, too

many state and local law enforcement agencies are struggling to afford the high cost

of enforcing their state computer crime statutes. Our legislation, the Computer

Crime Enforcement Act, would help address the worsening threats we face from

computer crime.

Technology has ushered in a new age filled with unlimited potential for good. But

the Internet age has also ushered in new challenges for federal, state and local law

enforcement officials. Congress and the Administration need to work together to

meet these new challenges while preserving the benefits of our new era. The Computer Crime Enforcement Act is a common sense solution that puts the responsibility of computer crime law enforcement back in the hands of the States. They are

the ones who should be prosecuting these crimes.

Finally, I agree with the Commission’s recommendation that the Congress should

restrain its impulse to federalize more local crime laws. I spoke on the floor of the

Senate on March 2, 1999, about this issue after the release a year ago this month

of the comprehensive report of the American Bar Association’s Task Force on Federalization of Criminal Law, chaired by former Attorney General Edwin Meese. We

should think carefully before federalizing crimes traditionally handled by the State

and local enforcement authorities. Each time we federalize a crime, we are essentially telling our State legislatures, our State law enforcement officials, and our

State prosecutors that they are insignificant.

Every Congress in which I have served—I have served here since 1975—has focused significant attention on crime legislation. No matter which party controls the

White House or either House of Congress, the opportunity to make our mark on the

criminal law has been irresistible. In fact, more than a quarter of all the Federal

criminal provisions enacted since the Civil War have been enacted since 1980 and

more than 40 percent of those laws have been created since 1970.

In fact, at this point the total number is too high to count. The best that the

Meese Task Force could do was estimate the number of Federal crimes to be over

37

3,300. Even that does not count the nearly 10,000 Federal regulations authorized

by Congress that carry some sort of sanction.

Federalizing criminal activity already covered by State criminal laws that are adequately enforced by State and local law enforcement authorities raises three significant concerns, even if the Federal enforcement authority is not exercised.

First, dormant Federal criminal laws may be reviewed at the whim of a Federal

prosecutor. Even the appearance—let alone the actual practice—of selectively bringing Federal prosecutions against certain individuals whose conduct also violates

State laws, and the imposition of disparate Federal and State sentences for essentially the same underlying criminal conduct, offends our notions of fundamental

fairness and undermines respect for the entire criminal justice system.

Second, every new Federal crime results in an expansion of Federal law enforcement jurisdiction and further concentration of policing power in the Federal government. Americans naturally distrust such concentrations of power. That is the policy

underlying our posse comitatus law prohibiting the military from participating in

general law enforcement activities. According to the Meese Task Force, the ranks

of Federal law enforcement personnel grew a staggering 96 percent from 1982 to

1993 compared to a growth rate of less than half that for State personnel. The Task

Force correctly noted in its report that: ‘‘Enactment of each new federal crime

bestows new federal investigative power on federal agencies, broadening their power

to intrude into individual lives. Expansion of federal jurisdiction also creates the opportunity for greater collection and maintenance of data at the federal level in an

era when various databases are computerized and linked.’’

Finally, and most significantly, Federal prosecutors are simply not as accountable

as a local prosecutor is to the people of a particular town, county or State. I was

privileged to serve as a State’s Attorney in Vermont for eight years and went before

the people of Chittenden County for election four times. They had the opportunity

at every election to let me know what they thought of the job I was doing.

By contrast, Federal prosecutors are appointed by the President and confirmed by

the Senate, only two Members of which represent the people who actually reside

within the jurisdiction of any particular U.S. Attorney. Federalizing otherwise local

crimes not only establishes a national standard for particular conduct but also allows enforcement by a Federal prosecutor, who is not directly accountable to the

people against whom the law is being enforced. The Meese Task Force warned that

the ‘‘diminution of local autonomy inherent in the imposition of national standards,

without regard to local community values and without regard to any noticeable benefits, requires cautious legislative assessment.’’

I thank the members of the Commission for coming to testify before the Committee today. Their hard work and dedication to making law enforcement efforts in

the United States as organized and prepared as possible are commendable and constructive. I look forward to discussing these important issues with them.

Senator THURMOND. Now, we will keep the record open for about

one week for follow-up questions or for additional materials to be

placed in the record.

Senator Sessions, do you have anything else?

Senator SESSIONS. No, sir.

Senator THURMOND. Now, I want to thank all of you witnesses

for attending and giving the fine testimony you did. Your presence

here and your testimony is most valuable not only to help us but

for the common good. We thank you again for your presence and

your good work, and wish you well.

We now stand adjourned.

[Whereupon, at 4:16 p.m., the subcommittee was adjourned.]

(39)

A P P E N D I X

QUESTIONS AND ANSWERS

RESPONSES OF THE COMMISSION TO QUESTIONS FROM SENATOR LEAHY

Question 1A. Computer crime is quickly emerging as one of today’s top challenges

for State and local law enforcement officials. All 50 States have now enacted tough

computer crime control laws. Unfortunately, too many State and local law enforcement agencies are struggling to afford the high cost of equipment and training to

enforce these statutes. How does the Commission recommend that Congress address

this problem and enhance law enforcement’s ability to enforce State computer crime

laws?

Question 1B. While the Commission has refrained from opining about pending legislative proposals, in light of the Commission’s recommendation against further federalizing crime, please explain whether the approach of S. 1314, the Computer

Crime Enforcement Act, which would create a grant program for State and local law

enforcement agencies to enhance their technology and training to combat computer

crime, respects the appropriate role of State and local law enforcement?

Answer. The Commission strongly agrees that computer crime is rapidly emerging

as one of the top challenges for State and local law enforcement. Indeed, the Commission raises the specter of cybercrime in its opening sentence in the Introduction

to the report (page 15).

We note on the same page that ‘‘Cybercrime can assault any county’s physical and

information infrastructure.’’ In sections on cyberterrorism (page 69) and on international cybercrime (page 75), we analyze the implications of the very serious subject.

In question 1A, you ask how Congress might address this problem and enhance

the ability of States to enforce their computer-crime laws. We suggest:

• A Federal program of grants, technical, and training to States to help them develop and expand their capability and capacity to enforce computer-crime laws;

• Federal research and development to find way to cope with this kind of highly

complicated criminal activity; and

• Use of Federal ability to coordinate law enforcement activities across several

States, which may be necessary to assist States in preventing, investigation,

and prosecuting computer crime.

These kinds of activities are entirely proper for the Federal Government provide

strong support to States while limiting Federal intrusion, and place responsibility

and accountability at the appropriate level of government.

In question 1B, you ask for the Commission’s views on the approach of S. 1314,

the Computer Crime Enforcement Act, which would create a grant program for

State and local law enforcement agencies to enhance their technology and training

to combat computer crime. Does this approach respect the appropriate role of State

and local law enforcement?

The Commission’s answer is yes, this approach does respect the role of State and

local law enforcement. As we state in our answer to Question 1A, a grant program

as envisioned in S. 1413 is consistent with concepts of Federalism that the Commission believes should guide Congress in enacting legislation affecting State and local

law enforcement.

Question 2. The Child Custody Protection Act, S. 661/H.R. 1218, would establish

a new Federal criminal prohibition against transporting a minor across State lines

for the purpose of avoiding a law where the minor resides respecting parental involvement in the minor’s decision to obtain an abortion. A consequences of this law

40

would be that Federal investigative and prosecutorial resources would be employed

to enforce State parental involvement laws, including in States without such laws

but where a minor may travel to obtain an abortion. Is this proposal consistent with

the principles against the federalization of crime that the Commission articulated

in its report?

Answer. As a general rule, the Commission believes that if a State has the power

to prosecute a crime in that State, it should do so.

In cases where both a Federal and State interest can be established, the Commission proposes a thorough study of the implications of making the crime a Federal

crime. Under the Commission’s proposed Federalization Prevention Act, Congress

and the Executive Branch would be required to provide a Law Enforcement Impact

Statement in addition to the current budget impact statement. Obviously, in the example you provide, important issues to be addressed in the impact statement would

be the extent to which such a law would use Federal investigative and prosecutorial

resources and the effect of such usage both on State and local law enforcement and

on the ability of Federal law enforcement to focus on cybercrime, cyberterrorism,

and other emerging Federal law enforcement issues. That analysis of the impact of

the legislation under consideration would provide Congress with information at the

beginning of the legislative process. Over the 5 years following enactment, Congress

would be able to consider the value of the criminal statute, and the statute would

expire after 5 years under a sunset provision unless Congress extends it.

Question 3. As the Commission’s report points out, the Federal Government exercises concurrent jurisdiction over many crimes traditionally handled by State and

local law enforcement. In a number of cases in which concurrent jurisdiction exists,

the Federal Government has sought or is seeking the death penalty in States that

do not permit the imposition of such penalty, despite Department of Justice guidelines that in cases of concurrent jurisdiction, ‘‘a Federal indictment for an offense

subject to the death penalty will be obtained only when the Federal interest in the

prosecution is more substantial than the interests of the State of local authorities.’’

In order to minimize Federal forum-shopping and respect more fully the views of

State residents and voters on the issue of the death penalty, would the Commission

support a proposal requiring the Attorney General or her designee to certify, before

a Federal death penalty may be sought, that (1) the State does not have jurisdiction

or refuses to assume jurisdiction over the defendant; (2) the State has requested

that the Federal Government assume jurisdiction; or (3) the offense charged clearly

invokes specific Federal interests, including crimes of genocide; terrorism; use of

chemical weapons or weapons of mass destruction; destruction of aircraft, trains, or

other instrumentalities or facilities of interstate commerce; hostage taking; torture;

espionage; treason; the killing of certain high public officials; or murder by a Federal prisoner?

Answer. This question raises issues involving concurrent Federal and State jurisdiction, specifically cases where the Federal Government seeks a death penalty in

States that do not permit imposition of the death penalty. You cite Department of

Justice guidelines to the effect that ‘‘a Federal indictment for an offense subject to

the death penalty will be obtained only when the Federal interest in the prosecution

is more substantial than the interests of the State or local authorities.’’ You ask if

the Commission would support a proposal that requires the Attorney General or her

designee to certify, before a Federal death penalty may be sought, that (1) the State

does not have jurisdiction or refuses to assume jurisdiction over the defendant; (2)

the State has requested that the Federal Government assume jurisdiction; or (3) the

offense charged clearly involves specific Federal interests, including crimes of genocide; terrorism; use of chemical weapons or weapons of mass destruction; destruction

of aircraft, trains, or other instrumentalities or facilities of interstate commerce;

hostage taking; torture; espionage; treason; the killing of certain high public officials; or murder by a Federal prisoner.

The Commission’s answer is yes, we would support such an approach. What this

question proposes is consistent with our views about keeping lines of jurisdiction

and authority clear between Federal and State law enforcement. This approach ensures that cases with serious Federal implications can be prosecuted in Federal

courts, while those more weighted toward State interests are prosecuted in State

courts. An example of how this might work can be seen in the current Federal prosecution for murder in the Starbuck’s robbery in Washington, DC; the Attorney General has approved a prosecution that seeks the death penalty, even though the

death penalty is not permitted under District of Columbia criminal law.

We also note that the issues raised in this question are appropriate matters to

be considered in the Law Enforcement Impact Statement that we mention above.

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1Task Force on Federalization of Criminal Law (1998), The Federalization of Criminal Law:

Defending Liberty, Pursuing Justice, Washington, DC: American Bar Association.

RESPONSES OF THE COMMISSION TO QUESTIONS FROM SENATOR BIDEN

Question 1. There has been a great deal of debate about forcing the U.S. Attorneys

to prosecute gun cases with a Federal nexus. Is this an example of the strain on

the system that is of concern to the Commission?

Answer. Indeed, there has been a great deal of debate on the ability or inability

of U.S. Attorneys to prosecute Federal gun cases in all their manifestations. For example, on October 21, 1999, Deputy Attorney General Eric Holder said prosecution

by U.S. Attorneys of all 400,000 people who filed false statements [on gun purchases] would ‘‘overwhelm the system.’’ In other instances, low rates of prosecution

have already been identified by the Executive Office of the United States Attorney:

• Prosecutions under the Brady Act (background checks);

• Prosecutions for the transfer of a handgun or ammunition to a juvenile;

• Possession of a handgun by a juvenile;

• Prosecutions of possession or discharge of a firearm in a school zone; and

• Prosecutions for possession of firearms by a juvenile at school.

The Commission is concerned about these types of strains on the Federal system.

It is for this reason the Commission proposed the Federalization Prevention Act.

Under that Act, proposed legislation would be examined, before passage, to determine its impact on the Federal system—and reexamined after 5 years to ascertain

whether it is working as expected.

Question 2. You indicate in your report that ‘‘although technically Constitutional,

there are public perception problems related to double jeopardy.’’ I know that the

Department of Justice has a policy on this—it’s called the Petite Policy (the Petite

Policy is the process by which Justice decides which cases to prosecute even though

the States already have done so). And, I also know that they prosecute cases after

a State has already done so only in rare cases and only with high-level Justice Department approval. Do you know of any specific examples of cases where someone

was charged and brought to trial in both State and Federal courts that caused the

type of public perception problem that you are alleging?

Answer. The quoted phrase does not appear in the Commission Report’s narrative

on double jeopardy (see page 92). The Commission Report says, ‘‘Equally troubling

is the possibility that federalization threatens the concept of ‘double jeopardy’ in a

very real, but not unconstitutional manner.’’

The Commission relied on the content of the ABA’s 1998 1 study and analysis of

the double jeopardy issue on the following point: a behavior may violate both State

and Federal law. Under the concept of dual sovereignty (the State and the Federal

Government), the Supreme Court has said that the same offense can also be viewed

as a different offense for Constitutional purposes. But as the Senator notes, the DOJ

Manual is guided by the Petite policy in these instances, and instances of this type

of prosecution are extremely low, perhaps several dozen a year and only when there

is a compelling Federal interest support dual or successive Federal prosecution.

The Commission Report does not allege a ‘‘public perception problem.’’ The Commission’s public opinion survey did not ask a specific question on double jeopardy.

The Commission relied on its collective experience when it noted that the ‘‘widespread application [of double jeopardy] could strike many Americans as unfair.’’

The Commission’s intent was to draw attention to potential consequences of a

widespread applicability of double jeopardy cases that may go beyond Petite guidelines. For example:

• The distinction, or appearance of dual punishment, between an excessive financial

penalty payment and criminal prosecution;

• Cases where the same offense can violate separate State and Federal laws (for

instance, the Rodney King cases—State assault charges on the arresting officers

versus Federal charges that police officers violated King’s constitutionally protected right to be free from the use of unreasonable force during arrest);

• Cases like that of Terry Nichols (Oklahoma bombing), who is claiming that a

State trial for first degree murder (160 counts) would constitute double jeopardy

because he has already been convicted in Federal court of eight counts of involuntary manslaughter in the deaths of eight Federal agents; and

• A State court judge (Idaho) dismissed a State murder charge against Kevin Harris

(Ruby Ridge incident) after his acquittal in Federal court of murdering a Federal agent. The judge invoked the State’s double jeopardy law, saying he could

not be tried again after his acquittal.

42

Double jeopardy issues have the potential to strike the American public as unfair,

depending on one’s perspective on sensitive issues: being deprived of assets and

being subjected to criminal punishment, race relations/civil rights, acts of terrorism

and the demands for justice, etc. If double jeopardy issues might be seen as unfair,

it is clear also that even for the legal profession, there is confusion. As then-Justice

Rehnquist once said, ‘‘* * * the decisional law in the [double jeopardy] area is a

veritable Sargasso Sea which could not fail to challenge the most intrepid judicial

navigator.’’ Albernaz v. United States, 450 U.S. 333 (1981).

Question 3. You indicate in your report that Title 18 of the Federal Criminal Code

is ‘‘unwieldy.’’ Can you cite any examples of statutes that need to be modified or

eliminated? Can you name me five Federal crimes that should not be Federal crimes

and why?

Answer. At this juncture, there are more than 3,000 Federal crimes on the books.

Few crimes, no matter, how local in nature, are beyond the reach of Federal criminal jurisdiction, and the number of crimes deemed ‘‘Federal’’ continues to increase.

The 1994 Crime Bill alone created two dozen new Federal crimes, including: driveby

shootings; possession of handguns near a school; possession of a handgun by a juvenile; embezzlement from an insurance company; theft of a major artwork; and murder of a State official assisting a Federal law enforcement agency. Although many

of these crimes are a threat to public safety, they are already outlawed by the

States and need not be included in the Federal Criminal Code.

As a result of the trend toward federalization, the Federal Government often becomes involved in cases that are better handled by local law enforcement personnel.

Carjacking is another example of a crime that should never have been federalized.

The Federal carjacking law was enacted in response to an atrocity that occurred in

the State of Maryland. The law was unnecessary because most States already had

carjacking laws and a crime designation to cover the offense. Other statues that fall

into this category relate to school violence, disrupting rodeos, sale of drugs in school

zones, and the transfer of guns in school zones.

The Supreme Court took a stand on the last offense in United States v. Lopez

when it declared the Gun Free School Zones Act of 1990 unconstitutional. The Act

made it a Federal offense for any person to possess a firearm at any place that the

individual knows is a school zone. In Lopez, a State indictment was dismissed so

that Federal charges could be brought, even though the State (like nearly all States)

had laws that prohibit guns in or near schools.

Our views on this subject were reinforced not only by the 1998 ABA study but

also by the testimony of the expert witnesses who appeared before the Commission.

Question 4. In your report you call for an external review of Federal law enforcement. Do you have concern that this is just going to add another layer of bureaucracy to a system that you are criticizing for being too bureaucratic?

Answer. No. External review will not create a new bureaucracy review and accreditation are handled by the Commission on Accreditation of Law Enforcement

Agencies, Inc. (CALEA), which already exists and was, in fact, created under a

grant from the U.S. Department of Justice. Moreover, as the Commission reported

(page 103), accreditation is a voluntary process of self-study and peer-review based

on some 436 law enforcement standards developed by law enforcement professionals

around agency missions and mandates. Since CALEA began in 1979, some 500 law

enforcement agencies in the United States have been accredited through the program. The U.S. Marshals Service has already earned accreditation from CALEA and

the Capitol Police are currently in the process of obtaining such accreditation.

In addition, Federal crime laboratories are joining the American Society of Crime

Laboratory Directors (ASCLAD), an organization of more than 400 directors of local,

Federal, and international forensic laboratories. ASCLAD’s primary interest is in

achieving quality in the delivery of forensic science services by improving the quality of management practices in forensic laboratories. The FBI and, it is believed,

DEA are already members. We believe that every Federal criminal forensics laboratory should be accredited based on scientific standards currently in place in professional laboratories around the country. Compliance will help build public and judicial confidence in laboratory findings, much like those found in State and local government.

The Commission heard testimony on the value of external review and accreditation from several respected law enforcement professionals, including Jami St. Clair,

President of ASCLAD, and Sylvester Daughtry, Jr., Chairman of CALEA.

The Commission, in its report, recommends the creation of the Federal Law Enforcement Officer Training Board and the Interagency Coordination Board. If created, these boards will facilitate the coordination of policy development, operations,

and methods for evaluating the efficiency of agencies. regarding the issue of overVerDate 11-MAY-2000 07:19 Sep 08, 2001 Jkt 072524 PO 00000 Frm 00046 Fmt 6602 Sfmt 6621 E:\HR\OC\B524.XXX pfrm03 PsN: B524
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sight of citizens complaints, this is the responsibility of the Attorney General. The

Congress must fulfill its oversight duties with respect to Federal agencies by ensuring that the Attorney General investigates and reports on citizen complaints.

Question 5. You recommend that Executive Order 11396 (giving the Attorney General broad authority over all criminal matters) be updated to reflect new national

and global realities. You also suggest that it be reissued so that the Attorney General becomes the focal point of Federal law enforcement. But, the Executive Order

is quite clear regarding the Attorney General’s authority. What can she do immediately to see that the order is carried out and that the problem of too many conductors leading too many orchestras is addressed? What can be done to help facilitate

this process?

Answer. Executive Order No. 11396 was signed by President Lyndon Johnson

more than 30 years ago and has lain dormant since. As noted in our report, if the

directive had been carried out, the Commission believes that many of the coordination problems that trouble Federal law enforcement today would have been put to

rest.

Because the Executive Order has lain dormant for so long, however, the Commission believes that attempting to implement it at this late date in the life of the current Administration would not be effective. In fact, given how long the Executive

Order has been ignored, we believe its purposes can be realized only by reissuing

and strengthening it to reflect the new global and international realities. As noted

in our report, the revised executive Order should incorporate coordinating authority

for the Attorney General that is as broad as the authority the Director of Central

Intelligence has with regard to intelligence matters under Executive Order No.

12333. Specifically, the revised Executive Order No. 11396 should provide the Attorney General with explicit authority to:

• Act as the primary advisor to the President on law enforcement matters; • Develop and implement objectives and guidance for the law enforcement community; • Promote and ensure the development and maintenance of services of common concern to Federal law enforcement agencies; • Formulate and implement policies and procedures regarding law enforcement; • Ensure that the law enforcement community establishes common security and access standards for managing and handling data and intelligence; • Ensure that programs are developed to protect information, sources, informants,

methods, and analytical procedures; • Establish appropriate staffs, committees, and other advisory groups to assist in

the execution of the responsibilities of the Attorney General; • Monitor agency performance and, as necessary, conduct program and performance

audits; • Provide for policies to ensure uniform procedures for responding to citizens’ allegations of misconduct on the part of Federal law enforcement agencies or officers;

• Reduce unnecessary overlap or duplication among agency programs and missions;

and

• Submit an annual report to Congress about accountability, citizens’ complaints,

and their resolution.

In addition, as noted in our report, an Attorney General strengthened in the full

exercise of the powers contemplated in the revised Executive Order No. 11396 will

require advice and guidance on any number of matters. That is why the Commission

also recommends the establishment of a permanent, independent, Interagency Advisory Board on Federal Law Enforcement. Such a board will make the Attorney General’s increased authority more palatable to other Federal law enforcement agencies.

It will also improve the quality of the decisions that the Attorney General makes

in carrying out this increased authority.

Question 6. You have suggested that the FBI become the sole criminal activity

and national security agency. You have also suggested that significant portions of

the Bureau of Alcohol, Tobacco and Firearms be merged into the FBI and that the

Inspector General’s Offices be consolidated. Do you suggest other mergers that are

not contained in your report? What do you see as the most significant hurdles to

these mergers? What will the mergers really mean off paper—will there by layoffs

of law enforcement officers? How would Congress oversight jurisdiction change?

Answer. This multi-part question goes to the heart of the consequences of proposing mergers, consolidations, and elimination of Federal law enforcement agencies.

This question raises issues that are the proper concern of the Commission’s proposed permanent Interagency Advisory Board on Federal Law Enforcement and how

44

it might operate. This 19-member board, made up of representatives of the 14 major

law enforcement agencies examined in our report and five additional representatives

from other Federal law enforcement agencies, would provide the Attorney General

with advice in two areas: the needs of small agencies; and the growth and role of

the function of the Inspector General. A principal focus of Interagency Advisory

Board work would be to assess the effects of mergers, consolidations, and elimination of Federal law enforcement agencies. (Page 111.) The matter of Congressional

oversight jurisdiction is, of course, an entirely different matter and one for Congress

itself to consider.

Before we address the questions, we wish to clarify and correct what appear to

be two misapprehensions: First, at no time has the Commission advocated that the

Federal Bureau of Investigation become the ‘‘sole criminal activity and national security agency.’’ On the contrary, the Commission greatly respects the missions, jurisdictions, capabilities, and personnel of the many Federal criminal justice and national security agencies that contribute so effectively to the safety and security of

our citizens and our Nation. We do believe that greater effectiveness and efficiency

can be affected through restructuring the Federal law enforcement community along

the more functional lines that we suggest in our Recommendation I (page 108), but

we do not recommend that the FBI become the sole criminal justice agency. Likewise, we believe that far more effective use can be made in Federal, State, and local

law enforcement of intelligence gathered by the Nation’s intelligence agencies. This

use is particularly important in light of the spread of global crime, cybercrime, and

terrorism. We do not recommend that the FBI become the sole national security

agency.

Second, at no time does the Commission recommend that Offices of Inspectors

General be ‘‘consolidated.’’ We believe that the current structure of the OIGs should

be examined with an eye toward restructing, and that such a review might turn up

cases in which some offices could be merged. Congress might request that the Interagency Advisory Board undertake such a review and provide Congress with its recommendations.

The Commission will now address this multi-part question in order:

Question 6A. Does the Commission suggest other mergers that are not contained

in its report?

Answer. No. Although the Commission does not recommend merges not contained

in its report, we do recommend that Congress and the President look toward a longterm restructuring that would rationalize and realign Federal law enforcement and

security agencies in the Executive Branch into five broad functional areas (pages

110–111):

• Criminal Activity and National Security;

• Protective and Border Security;

• Financial and Regulatory Enforcement;

• Corrections Enforcement; and

• Resource Enforcement.

This realignment would doubtless involve mergers of agencies. For example, the

Commission suggests an incorporation of the functions of the Bureau of Land Management and the Fish and Wildlife Service (now in the Department of the Interior)

with existing law enforcement functions from the Department of Agriculture. (Page

111.) Currently, three separate law enforcement agencies report to Congress—Capitol Police, Government Printing Office Police, and the Library of Congress Police.

In fact, if these three were consolidated, there would only be one chief of police, one

set of hiring and training standards and policies, integrated communications systems, and reduction of bureaucracy.

Question 6B. What does the Commission see as the most significant hurdles to

these mergers?

Answer. The hurdles to mergers of Federal law enforcement agencies are parochialism and protection of bureaucratic turf. The problems of overlapping jurisdictions, duplication of effort, and multiplicity of the same functions have been well

studied by other groups before us, including Vice President Al Gore’s Performance

Review (please see our answer to Questions 8 and 11, below). In fact, every independent review that we could find arrived at the same conclusions that we did about

consolidating agencies. These other groups have understood, as we do, that existing

agencies, and their Congressional oversight committees, are reluctant to give up

their territory or their power.

We also recognize the difficulty that Congress faces in addressing the different

agency authorizations. Congress looks at Federal law enforcement agencies department by department in the various authorization bills. Committee consideration of

45

this legislation is also based on agency, not function. We address this dimension in

Question 6D.

Question 6C. What will these mergers really mean off paper—will there be layoffs

of law enforcement offices?

Answer. No. The Commission believes that there is plenty of criminal justice work

to do, and that Federal law enforcement personnel levels should not be reduced. We

do recommend some shifts in personnel and reviews of existing structures to obtain

‘‘more bang for the buck’’ in Federal law enforcement. But we have not suggested

and do not now suggest any layoffs. The Commission heard testimony that actually

more officers are needed, especially by the agencies that perform patrol and other

uniform services.

Question 6D. How would Congressional oversight jurisdiction change?

Answer. In some cases, Congressional oversight jurisdiction would change significantly. Committees and Subcommittees charged with oversight of Federal law enforcement agencies that were merged have to reallocate oversight responsibilities.

Examples are the transfer of law enforcement functions of the Bureau of Alcohol,

Tobacco, and Firearms from the Department of the Treasury to the FBI, and the

merger of the Drug Enforcement Administration into the FBI.

The effect on Congressional oversight should not be minimized. It could be difficult to accomplish. Just a few years ago, however, Congress itself reorganized its

Committees with new functions, new oversight jurisdictions, and even new nomenclature—all along more functional and less traditional lines. The same could be done

here.

Question 7. We do have an agency that is supposed to streamline and coordinate

drug policy—and that agency is the Office of National Drug Control Policy. I fought

for 10 years to get that office funded. Have you consulted them regarding streamlining and who is best equipped to take on these tasks?

Answer. In Appendix H. Acknowledgments of its final report, the Commission

states: ‘‘Unfortunately, a few persons, including some heads of Federal law enforcement agencies, declined the Commission’s invitation to testify, thus depriving the

Commission—as well as Congress and the American public—of valuable and useful

information for this report.’’ Although the Commission invited the head of the Office

of National Drug Control Policy or his representative to appear before it numerous

times, all of its invitations were repeatedly, and adamantly, declined.

Question 8. Why not just take the FBI’s drug crime jurisdiction away? Is there

really a significant difference between putting the DEA under the FBI—or having

both under the general umbrella of Justice?

Answer. Your question poses the alternative to the Commission’s recommendations that drug crime jurisdiction be moved from the Drug Enforcement Administration to the Federal Bureau of Investigation. Why not just remove drug crime jurisdiction from the FBI and place it in DEA—or at least place both ‘‘under the general

umbrella of Justice’’?

Removal of drug crime law enforcement responsibilities, such as they exist, from

the FBI to DEA would make no sense. A large number of operational and administrative activities that support law enforcement prevention, identification, investigation, and other efforts within the FBI would have to be duplicated within DEA. The

transfer of drug crime jurisdiction from the FBI to DEA would make matters far

worse than they are now—all operational activities and support services are now

duplicated within DEA for the single purpose of drug law enforcement. (Report

pages 110–115.)

Quite to the contrary, one reason for moving DEA functions to the FBI is to provide DEA’s drug law enforcement activities with the whole range of support capability that the FBI brings to the table. The advent of cybercrime and transnational

crime necessitates a closer working relationship between agencies. A consolidated

FBI, DEA, and ATF will absolutely facilitate the dismantling of criminal operations

and terrorist cells because more effective investigations are best handled and coordinated within one agency.

Please note that, to ensure that drug enforcement activities continue to have high

visibility and access to law enforcement officials at the highest levels, the Commission believes that this newly transformed function should be headed by a senior official who reports directly to the Director of the FBI. (Footnote 111.)

Other thoughtful observers have arrived at the same recommendation that the

Commission makes. In the early 1980s, when William French Smith was Attorney

General, Rudolph W. Guliani, then Associate Attorney General, oversaw a study

that recommended the merger of the DEA into the FBI. In 1993, moreover, Vice

President Al Gore made the same recommendation in this report, ‘‘Red Tape to Results.’’ (Page 115 and footnotes 112 and 117.)

46

The Commission believes that removal of drug law enforcement responsibilities— accompanied by budget, statutory authority, and personnel—from DEA to the FBI,

in a new separate division, would reduce unnecessary overlap and duplication

among agency activities. The other way around, the merger would increase overlap

and duplication.

Finally, you ask about the difference between moving DEA under the FBI or leaving both ‘‘under the general umbrella of Justice.’’ The Commission believes that the

differences are very great. First, by leaving both agencies under the general umbrella of Justice, duplication and redundancy would continue and likely grow; DEA

will need to build out more capability that it now lacks and that already exists in

the FBI. Second, sharing of intelligence, planning for coordinated activities, and

operational cooperation in and control of field operations would continue to be accomplished through the Attorney General’s office, because both the Director of the

FBI and the Administrator of DEA report to the Attorney General. The Commission

believes that this sharing, coordination, and cooperation will be accomplished more

effectively through a senior official (namely, the Director of the FBI) who is more

accessible, closer to the field, and more conversant on a daily basis with activities

in both the FBI and the newly reconstituted DEA.

The Commission quoted, with approval, the assessment given in the Gore report

cited above:

* * * a drug case may involve violations of financial, firearms, immigration and customs laws, as well as drug statutes. Unfortunately, too many

cooks spoil the broth. Agencies squabble over turf, fail to cooperate, or delay

matters while attempting to agree on common policies. (Page 114)

The Commission recommendation is aimed at reducing the number of cooks.

Incidentally, the Commission believes that the drug criminal law enforcement

should, under any plan for reorganization, remain within the Justice Department.

Congress may place other Federal programs aimed at reducing the illegal drug problem in the United States in other Federal agencies, especially the Department of

Health and Human Services. Those programs may relate to health and social aspects of the problem, but programs relating to criminal law enforcement should remain solidly within the Department of Justice. Indeed, in a message to Congress

in 1968, President Lyndon Johnson recognized to his dissatisfaction that drug enforcement activities were split at that time between the Department of the Treasury

and the Department of Health, Education, and Welfare, based on the type of drug

violation involved (whether marijuana or LSD). He proposed consolidating drug enforcement within the Justice Department, where it very properly resides today.

Question 9. Your report suggests that we ‘‘ensure that the legitimate needs of law

enforcement agencies to override encryption systems are balanced by judicial supervision to protect the privacy and civil liberties of civilians.’’ Of all the different proposals that have been put forth over the past few years, is there one plan that you

believe should be adopted?

Answer. By one count, the Electronic Privacy Information Center listed more than

50 bills in Congress under the rubric of tracking privacy, speech, and cyber-liberties

as of September 1999. The Commission could not evaluate these legislative proposals and is not in a position to knowledgeably recommend one over another. It

leaves that to the professionals in this area. The Commission does, however, believe

that whatever proposal is finally passed must meet the legitimate needs of law enforcement while protecting the privacy and civil liberties of private citizens. To these

ends, we suggest the following general guidelines for such legislation:

• Balance resources between prosecution and protection;

• Educate people on how to protect their systems;

• Promote development of capabilities of State consumer protection agencies;

• Encourage industry to improve its own security;

• Encourage the Federal Government to protect its own systems;

• Encourage industry to develop a clearinghouse of reliable information, consumer

software, firewalls, and other technology to protect systems;

• Train State and local prosecutors to prosecute cyber violators, but coordinate with

the FBI, not the Department of Commerce, on source detection nationally and

internationally;

• Relegate the Federal/FBI role to cases involving national security and substantial

national economic interests;

• Enact Federal legislation with stiff penalties for unauthorized selling of personal

information;

• Promote policies that are not intrusive on personal systems by government; and

• Avoid a knee-jerk barrage of compartmentalized legislation. Instead, get serious

and develop a coherent plan.

47

In addition, the Commission wants to stress the importance of providing additional funds for research and technology to deal with terrorist threats. To take but

one example: encryption of information by criminals presents serious threats to public safety. Encryption may be used by terrorists (or by drug lords) to communicate

their plans in secret, or to maintain records in a form that frustrates search warrants and wiretap orders. The Government and the private sector must proceed together with energetic efforts to protect the legitimate needs of citizens and businesses for electronic communication and electronic commerce, while preserving Government’s legitimate need to gain access to data and information as part of legally

authorized search procedures.

In similar fashion, electronic commerce, ‘‘smart’’ cards, and Internet trading are

fast becoming established as standard practice for financial and telecommunications

services. Shifting from paper money to its electronic equivalents present serious new

international challenges for law enforcement at all levels. Additional research focusing on the vulnerability of these emerging technologies to terrorism and international crime needs to be undertaken.

Finally, the Commission notes that the Information Age brings with it new

threats to national security and to a wide variety of critical public and private services. As recent analyses from the Center for Strategic and International Studies

(CSIS) point out, the real possibility for an ‘‘electronic Waterloo’’ exists if public officials do not pay sufficient attention to threats to the Nation’s information security.

The Commission endorses the CSIS report and calls for the development of national

security policies that respond effectively to the emerging threat of cyberterrorism

and cybercrime. At the same time, the Commission is aware of recent criticisms that

policies governing cybersecurity at times appear to be pursued without explicit consideration of potential threats to privacy and civil liberties. Law enforcement officials must understand that the techniques, procedures, and technologies at issue

here are so powerful that Federal agencies must be alert to public anxieties about

the potential for abuse, no matter how remote that potential may be.

Question 10. You suggest that a 5-year sunset provision be adopted so that all

crimes defined as Federal expire after 5 years. What public policy would this facilitate? How would you draw the line and make a distinction between what crimes

should have a sunset provision?

Answer. This provision would facilitate several public policies. First, it would support the Constitutional principle of Federalism itself by helping to ensure a reasoned division of responsibility between the Federal Government and State governments. Second, this provision would help promote respect for the rule of law by

helping to limit Federal law enforcement efforts to those areas that clearly can be

seen to be matters requiring the energies of Federal law enforcement agencies.

Under this provision, we are more likely to have vigorous Federal enforcement of

the laws that can withstand this scrutiny, whereas under our current system Federal laws are passed but often not enforced to any great degree. Such ‘‘hollow laws’’

breed disrespect for the rule of law. Third, for the reasons just noted, this provision

will advance the public policy of effectiveness in enforcement. Fourth, a more rational division of labor between Federal and State law enforcement efforts will be more

efficient as well. Finally, by limiting Federal law enforcement’s involvement in areas

better left to State and local law enforcement, Federal law enforcement will be freed

to pursue the very serious national and transitional criminal activity that pose an

increasing risk to the safety and security of our citizens.

As to how to draw the line to determine what crimes should have a sunset provision, the Commission believes that enacting a new Federalization Prevention Act

that requires the Congress and the Executive Branch to provide a Law Enforcement

Impact Statement—in addition to the existing budget impact statement—is one important way to get to this issue. Additionally, the sunset provision of this new act

would ensure that newly enacted statues meet their intended purposes and that:

• The statutes do not cause adverse financial or other burdens to State, local or

even Federal law enforcement agencies and personnel;

• The statutes are in fact necessary and not simply promulgated to address a

crime that is in the public mind but is already addressed at the State level;

and/or

• The statutes do not deal with a crime that is no longer an issue.

Question 11. You have suggested that there are too many Federal police forces,

and cite as an example the fact that Congress and the Supreme Court have different

forces even though they are across the street from each other. What should be done

to address this problem?

48

Answer. This question raises the issue of the proliferation of Federal police forces.

The Commission does not take a simplistic view of this matter; we do not think that

there are simply too many Federal police forces.

Rather, the Commission recommends a review of the number of Federal police

forces with an eye to consolidating agencies where appropriate. One opportunity for

consolidation might involve those forces that operate directly under Congress, namely the U.S. Capital Police, the Library of Congress Police, and the Government

Printing Office Police. These agencies might be merged into one agency, with a goal

of eliminating duplication, achieving savings in resources, reducing the number of

separate bureaucracies, and increasing operational efficiency.

The Commission thinks that this kind of merger offers an ideal example of how

its proposed permanent Interagency Advisory Board on Federal Law Enforcement

might operate. This 19-member board, made up of representatives of the 14 major

law enforcement agencies examined in our report and five additional representatives

from other Federal law enforcement agencies, would provide the Attorney General

with advice in two areas. One of those areas would involve the need for many small

Federal police agencies, including those on Capitol Hill. (Page 111.)

The Commission noted, as your question correctly states, that Congress and the

United States Supreme Court have different police forces even though they are located across the street from each other. The Commission hastens to point out that

it did not mean to imply a merger between these police forces; to do so might raise

Constitutional issues of separation of powers.

As to the merger of Federal police agencies that report to Congress or of those

within the Executive Branch, concerns about separation of powers do not arise. The

Commission recommends a review by the Interagency Advisory Board to eliminate

duplication, to set common standards for police, and to achieve more efficiency.

Many States and municipal jurisdictions have undertaken this effort, and have done

a good job.

49

ADDITIONAL SUBMISSIONS FOR THE RECORD

COMMISSION ON THE ADVANCEMENT OF FEDERAL LAW ENFORCEMENT; NATION FACES

CHALLENGING CRIMES IN THE NEW CENTURY, COMMISSION WARNS

Washington.—Global crime, cybercrime, and terrorism in new and increasingly

dangerous forms will threaten the safety of Americans and the national security of

the United States early in the next century, a Congressional Commission warned

today. In the past two months alone:

• Terrorists who highjacked a civilian airliner were not apprehended and may commit other terrorist acts in the future. • An individual crossed our northern border with what were described as powerful

bomb-making materials. U.S. and Canadian authorities are investigating a link

to others with possible terrorist connections. • Much concern was expressed about terrorism and computer crime at the millennium. Fortunately, no serious incidents took place. • The President continues initiatives to fight cyber-terrorism and to improve law

enforcement capabilities of the Bureau of Alcohol, Tobacco, and Firearms. • Virginia Governor Gilmore’s Commission, established by the Congress, reportedly

will conclude that the Nation is vulnerable to terrorists armed with weapons

of mass destruction.

Data gathered by the Commission on the Advancement of Federal Law Enforcement raises serious concerns about the readiness of the Federal Government to meet

its responsibilities to protect Americans and the Nation, the Commission said in a

report delivered to Congress today.

‘‘The Nation must move now, on an urgent basis, to prepare to detect these criminal activities at the source, to counter them in all appropriate ways, and to protect

Americans to every possible extent,’’ the Commission said.

Congress directed the Commission to explore such concerns as the coordination

of Federal law enforcement agencies and cooperation between Federal agencies and

their State and local counterparts. Global criminal cartels, cybercrime (computerbased crime), and terrorism challenge law enforcement agencies in this country at

all levels of government, the Commission found. The Commission identified many

areas in need of improvement in coordination and cooperation.

Under Commission recommendations, a revamped Federal law enforcement structure would make the Attorney General responsible for coordinating all major Federal law enforcement policies and practices, giving her sweeping authority to focus

the Nation’s law enforcement resources on critical problems. Federal law enforcement is not sufficiently marshaled or focused on key issues, the Commission found.

Law Enforcement functions of the Bureau of Alcohol, Tobacco, and Firearms, now

part of the Department of the Treasury, would be moved to the Federal Bureau of

Investigation. The entire anti-drug effort of the Drug Enforcement Administration

would become a separate division of the FBI under the reorganization. Both the FBI

and DEA are now part of the Department of Justice.

‘‘Much of today’s current structure is based on problems of the past, such as Prohibition,’’ said Commission Chairman William H. Webster, a former Federal judge,

Director of the FBI, and Director of Central Intelligence. ‘‘The Nation critically requires a Federal law enforcement establishment that is ready to meet the crime

problems of the future.’’

Those problems, the Commission said, are increasingly likely to involve global

criminal enterprises, including terrorism, narcotics trafficking, and cybercrime,

among others. At the same time, the Commission said that Congress should resist

the tendency to ‘‘federalize’’ more and more crimes. Most crime in the United States

is local in nature, the Commission noted, and State local governments provide most

law enforcement. Because its resources are limited, rather than focus on local

crimes, Federal law enforcement should focus on crimes that are national and international in nature and that are otherwise designated as its responsibility under

Federal law. It should, however, continue to provide technical and scientific support,

including access to criminal justice databases, to State and local law enforcement

agencies.

‘‘The Nation needs and deserves a Federal crime-fighting force that knows its

proper role,’’ said Webster, ‘‘operates in a highly coordinated way, shares information, is better trained, and makes much better use of high technology than is the

case today.’’

Congress established the Commission in the Antiterrorism and Effective Death

Penalty Act of 1996. With submission of its report, the Commission completed its

50

work and expires at the end of February. Hearings on the report are expected in

both the House and Senate.

Copies of the Commission report can be purchased from the Government Printing

Office, Superintendent of Documents, by calling 202–512–1800 and asking for ‘‘Law

Enforcement in a New Century and a Changing World’’ (Order No. 020–000–00276–

0).

The report also can be downloaded from the University of Arkansas, Criminal

Justice Institute National Center for Rural Law Enforcement website at

www.ncrle.net.

For further information, please contact:

Honorable William H. Webster

Milbank, Tweed, Hadley & McCloy

Washington, DC

202/835–7550

Chief Robert M. Stewart

State Law Enforcement Division, State of South Carolina

Columbia, SC

803/737–9000

Professor Donald C. Dahlin

Department of Political Science, University of South Dakota

Vermillion, SD

605/677–6497

Gilbert G. Gallegos

National President, Fraternal Order of Police

Albuquerque, NM

505/344–3159

Robert E. Sanders

Punta Gorda, FL

941/575–2114.

FACT SHEET—COMMISSION ON THE ADVANCEMENT OF FEDERAL LAW ENFORCEMENT

For the first time in recent history, a Congressional Commission set out to study

the integration of widely disparate and often conflicting issues to strengthen the law

enforcement fabric of the Federal Government while protecting democracy and the

rights and liberties of individual citizens.

The Commission on the Advancement of Federal Law Enforcement saw its role

as one of calling the Nation’s attention to the broadcast concerns in national and

international law enforcement and urging it and its Federal law enforcement establishment to break down the barriers of institutional thinking and find new ways to

approach the challenges of crime in the new century.

In creating the Commission, Congress issued a broad mandate of issues for study.

From the outset, the Commission determined that conducting an in-depth study of

Federal law enforcement, with all of its complexities, was impossible within the

mandated reporting period. Thus, it decided to synthesize the main issues that will

distinguish law enforcement in the next century from law enforcement today.

Global crime, cybercrime, and terrorism pose the new, emerging security threats

to the Nation and challenge the Federal law enforcement community. The report of

the Commission on the Advancement of Federal Law Enforcement is a call for an

open mind, for a rethinking of current law enforcement approaches, for a willingness to move forward so that Federal law enforcement can safeguard the Nation’s

citizens and protect the Nation’s security in the years to come.

COMMISSION MANDATE

Section 806 of Public Law 104–132 (Antiterrorism and Effective Death Penalty

Act of 1996) provided for the establishment of a five-member Commission on the Advancement of Federal Law Enforcement and mandated that the Commission report

its findings to Congress and the general public within 2 years.

The Commission charter directed it to examine 10 factors related to Federal law

enforcement:

• Federal law enforcement priorities for the 21st century, including capabilities to

investigate and deter terrorism;

• The manner in which significant Federal criminal law enforcement activities have

been conceived, planned, coordinated, and executed;

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• Standards and procedures of Federal law enforcement, including their uniformity

and compatibility;

• The investigation and handling of specific Federal criminal law enforcement cases,

selected at the Commission’s direction;

• The need for the current number of Federal law enforcement agencies and units;

• The location and efficacy of the office with direct responsibilities for interagency

coordination—aside from the President of the United States;

• The degree of assistance, training, education, and other human resource management assets devoted to enhancing professionalism;

• The existence and efficiency of independent accountability procedures;

• Coordination among law enforcement agencies with regard to international crime;

and

• Coordination of Federal law enforcement activities with those of State and local

enforcement agencies.

An additional charge in Section 806 authorized the Commission to examine any

other matters it considered appropriate.

The Commission wrestled with this complex and sweeping mandate througout its

tenure, ever mindful that its deliberations were taking place in the shadow of the

five recent major events that involved law enforcement—the bombings of American

embassies in Kenya and Tanzania; the bombing of the World Trade Center in New

York; the destruction of the Alfred P. Murrah Federal Office Building in Oklahoma

City; the deadly inferno that ended the confrontation with Branch Davidians in

Waco, Texas; and the tragic standoff at Ruby Ridge, Idaho. The specifics of the Commission’s charge, and the larger issues in which they are embedded—issues of personal safety and security, freedom from unreasonable search and seizure and protection against domestic and foreign terrorism—affect every man, woman, and child in

the United States.

Over its 2-year tenure, it met more than 20 times and took verbal and sometimes

written testimony from some 70 witnesses, including two members of President

Clinton’s Cabinet and numerous presidential appointees. Its work was also informed

through several other sources of data. For example, at the direction of the Commissioners, staff—with assistance from the survey research firm, QS&A Research—conducted a nationwide public opinion survey. In addition, more than 140 leaders of

Federal agencies with responsibilities in some facet of law enforcement were asked

to respond to a 31-question survey prepared and administered by Commission staff.

From the 37 completed survey responses received, staff prepared a detailed analysis

of data from the 14 agencies considered to be the primary Federal law enforcement

entities.

In the main, the Commission’s interest focused on agencies that employ ‘‘1811 series’’ employees—and other personnel with the authority to investigate, carry firearms, and make arrests.

In addition, Commission staff conducted an extensive review of the literature on

law enforcement, Federal law enforcement, and the administration of justice. Finally, the Commission contracted for papers on specific issues—such as terrorism,

transnational crime, narcotics trafficking, and the nature and origins of Federal law

enforcement in the United States—from the academic community. This combination

of surveys, literature review, and academic papers represents one of the most extensive examinations of Federal law enforcement in recent history.

BACKGROUND

The connection of the work of the Commission on the Advancement of Federal

Law Enforcement to the well-being of the American people is direct and simple.

The initial concept for the Commission was developed following the disasters at

the Branch Davidian Compound and Ruby Ridge—events that raised serious questions about the quality of Federal law enforcement.

The interests that motivated policy makers to launch the Commission’s study varied, sometimes quite dramatically. Some policymakers wondered about the Federal

Government’s capacity to protect American citizens from foreign terrorists acting on

U.S. shores. Others were concerned that policy on essential aspects of law enforcement, such as the use of deadly force, was either unclear or ignored, a situation

fraught will peril for citizens and officers alike. Still others worried that too many

Federal law enforcement entities had been created, making coordination among

them, and with State and local law enforcement agencies, difficult, if not impossible.

Almost certainly, just as many people were intent on using the two tragic incidents

listed above, to criticize Federal law enforcement as were committed to examining

any mistakes made to determine how to prevent similar tragedies in the future.

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All in all, the range of views that accompanied the initial conceptions of the Commission was disparate. Some were perceived—fairly or unfairly—as charged with

ideological overtones from all sides of the political spectrum. As a consequence,

when Section 806 was finally enacted, initial plans for the Commission’s budget and

term of office were cut back. Months passed before an appropriation for the Commission’s work was enacted and almost 2 years went by before the full, five-member

complement of Commissioners was appointed.

In the years that intervened between the initial conception of the Commission and

its authorization, funding, and creation, the United States passed a lethal watershed, witnessing one of the most brutal terrorist acts ever carried out on American

soil—the destruction of the Alfred P. Murrah Federal Office Building in Oklahoma

City. In April 1995, two Americans, Timothy McVeigh and Terry Nichols conspired

to detonate a powerful and sophisticated homemade bomb hidden in a truck parked

outside the building. Their bomb killed 168 people, including children in a daycare

center.

Rapid police communication led to the holding of McVeigh, who had been apprehended immediately after the bombing on an unrelated traffic offense. Effective law

enforcement agency coordination led to a powerful prosecution that resulted in the

conviction of the two primary culprits. During the course of that investigation, however, the climate under which the Commission’s mandate was framed changed dramatically.

Federal agencies, fairly or unfairly, derided for poor performance at Ruby Ridge

and Waco, were perceived to have performed with praiseworthy professionalism in

Oklahoma City. Within minutes of the explosion, the building and the surrounding

crime scene were secured. Within hours, a sketch of a suspect (drawn with sufficient

accuracy to alert the local police officers who had arrested McVeigh) was in the

hands of police forces around the county. Within a day, a vehicle identification number attached to a bit of a truck axle discovered a block from the explosion, led investigators to a local truck rental agency. And, within a week, a fairly complete picture

of the recent comings and goings of McVeigh and Nichols was available—a picture

tying McVeigh irrevocably to the barbarous act and to his jail cell. The Federal law

enforcement system, illuminated in the glare of intense international publicity, had

carried out is functions responsibly, professionally, credibly, and well.

The success of investigators and other law enforcement personnel in apprehending

and developing evidence against McVeigh and Nichols transformed public perceptions of Federal law enforcement and the perceived role for the Commission. Instead

of serving as a vehicle for criticizing Federal law enforcement agencies, the Commission was now encouraged to examine strengths and weaknesses. The Commission’s

mandate, broad as it was, laid out the possibility of an investigation that recognizes

that perfect performance, however much desired, is also well nigh impossible. The

specifics of the Commission’s charge and the larger issues in which they are embedded—issues of personal safety, freedom from unreasonable search and seizure, and

protection against the threat of domestic and foreign terrorism—are compelling as

law enforcement enters a new century and changing world.

CENTRAL CONCLUSIONS

Because of the complexity of its charge, this Commission does not want its central

conclusions obscured by the amount of detail in the document that follows. Based

on a study that involved approximately 70 witnesses, a comprehensive literature review, and a review of papers and surveys commissioned for its use, the Commission

wishes to state its conclusions as directly and simply as possible. It believes that:

• Federal law enforcement agencies are among the finest in the world and that

most Americans share that view.

• Of necessity, the Federal law enforcement apparatus is large and complex. Different agencies have different missions and quite distinct areas of jurisdiction.

Better coordination is necessary and desirable, and some consolidation is required.

• The capacity for oversight and coordination is weak and needs improvement. As

a policy matter, it is difficult to know who is in charge of what. With issues

of citizen safety and national security at stake, effective cooperation, greater

clarity of roles and responsibilities, and agreement on uniform standards should

not be left to chance.

• Law enforcement officers will confront vastly more sophisticated and complex

crimes in the 21st century than ever before. The Federal law enforcement community must prepare for this new reality.

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RECOMMENDATIONS

Based on these conclusions, the Commission presents a five-part action agenda.

Its recommendations emphasize the need for the President and Congress to:

I. Make it clear that the Attorney General has broad coordinating authority for

Federal law enforcement and for minimizing overlap and duplication.—The Commission recommends that the President and Congress improve the administration of

Federal law enforcement, and its effectiveness, by making it clear that the Attorney

General has broad authority for oversight and coordination and by minimizing overlap and duplication of agency functions.

II. Provide the intelligence and information needed to combat terrorism.—The

Commission recommends that the law enforcement and intelligence communities review their procedures and policies to ensure that the President, Congress, and the

National Security Council have adequate resources to coordinate activities and to

pursue the information that Federal, State, and local law enforcement agencies need

to combat terrorism.

III. Make global crime a national law enforcement priority.—The Commission recommends that the President and Congress expand the attack on global crime, narcotics trafficking, and cyber-crime with new determination and energy.

IV. Reverse the trend toward federalization.—The Commission recommends that

Congress and the President support a new ‘‘Federalization Prevention Act’’ to minimize Federal intrusion into State and local law enforcement and reverse the recent

trend toward ‘‘federalizing crime.’’

V. Focus on professionalism, integrity, and accountability.—The Commission recommends that the President and Congress require that Federal law enforcement

agencies establish new standards for professionalism, integrity, and public accountability.

TOWARD A NEW CENTURY AND A CHANGING WORLD

This Commission believes that the Nation will face grave law enforcement challenges in the years ahead. Its five-part action agenda is designed to address those

challenges. Members of the Commission believe that the public understands the

need for these actions and will support policymakers as they work to put them in

place. The Commission urges the Congress and the President to move forward with

its agenda.

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PRESIDENT’S COUNCIL ON INTEGRITY AND EFFICIENCY,

EXECUTIVE COUNCIL ON INTEGRITY AND EFFICIENCY

March 2, 2000.

Hon. STROM THURMOND, Chairman,

Subcommittee on Criminal Justice Oversight, Committee on the Judiciary, U.S. Senate, Washington, DC.

DEAR CHAIRMAN THURMOND: Enclosed is the response from the President’s Council on Integrity and Efficiency (PCIE) and the Executive Council on Integrity and

Efficiency (ECIE) to the Commission on the Advancement of Federal Law Enforcement report, ‘‘Law Enforcement in a New Century and a Changing World,’’ presented at your hearing on February 3, 2000. We request that this response in its

entirety be included in the record for this hearing as our official response to the

Commission’s report.

The 1978 Inspector General Act and amendments established that the detection

and prevention of fraud, waste, abuse, and wrongdoing in the Federal Government

would be one of the highest priorities of the Offices of Inspector General. The Inspector General community has lived up to this responsibility. Over the last nine

years, the community has achieved more than 122,000 successful criminal prosecutions and obtained over $13 billion in investigative recoveries. Our successful record

in handling varied and complex criminal and civil cases and working with other law

enforcement agencies speaks for itself.

As discussed in the enclosed response, the Commission’s report contained inaccuracies, unsupported statements, and conclusions that lack empirical data and factual findings. We are further troubled that the Commission did not provide an opportunity for the Inspector General community to present substantive information

concerning our operations.

Thank you for allowing the community to provide our views on the Commission

report. We welcome the opportunity to further discuss our response or address other

issues related to the Inspector General community.

Sincerely,

GASTON L. GIANNI, Jr.,

Vice Chair, PCIE.

BARRY R. SNYDER,

Vice Chair, ECIE.

Enclosure.

RESPONSE TO THE FINAL REPORT OF THE COMMISSION ON THE ADVANCEMENT OF FEDERAL LAW ENFORCEMENT—‘‘LAW ENFORCEMENT

IN A NEW CENTURY AND A CHANGING WORLD’’

EXECUTIVE SUMMARY

The President’s Council on Integrity and Efficiency (PCIE) and the Executive

Council on Integrity and Efficiency (ECIE) categorically disagree with the recommendations of the Commission on the Advancement of Federal Law Enforcement

(Commission), as they apply to the inspector general community. The Commission’s

observations, which are flawed and unsupported, suggest that law enforcement authority be removed from the Offices of Inspector General (OIGs) and assigned to

other federal law enforcement agencies, such as the FBI and Customs Service. The

Commission cites no objective evidence to support its sweeping recommendations

with regard to the OIGs. Further, we are concerned that the members of the Commission were not sufficiently informed as to how OIGs actually operate, since the

IG community was not consulted about the Commission’s proposals or given the opportunity to provide the Commission with substantive information concerning our

operations.

In fact, an accurate and objective review of the record would reveal the following:

• OIG law enforcement operations have been highly successful in producing tangible

results, directly addressing the problems of fraud, abuse, waste, and wrongdoing in federal programs. During fiscal years 1991 through 1999, the PCIE and

ECIE member agencies achieved more than 122,000 successful criminal prosecutions and obtained over $13 billion in investigative recoveries. In addition,

federal agencies took more than 19,000 personnel actions based on PCIE and

ECIE investigations during the same period.

• The Commission’s recommendations directly conflict with rationale of the Inspector General Act of 1978 and its amendments. This legislation specifically assigned investigate authority to the OIGs because investigations of fraud, waste,

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and abuse conducted by ‘‘traditional’’ law enforcement agencies were not effectively coordinated and did not contribute to improved program management at

the agency level. • For over 20 years, the OIG law enforcement community, through the PCIE and

ECIE, has collectively undertaken aggressive measures to foster high professional levels of training, work quality and work standards. As a result, the

PCIE and ECIE members have developed a highly skilled and diverse workforce

of approximately 2,900 criminal investigators involved in criminal and related

civil cases nationwide. • The OIGs are well established within the law enforcement community. The IGs

are as accountable to the Department of Justice for their investigative efforts

as every other federal law enforcement entity. The Department has extended

blanket deputation to all PCIE-member OIGs, and supports legislation to grant

statutory law enforcement authority for those offices. Both proposed statutory

and existing law enforcement authorities are exercised and monitored under

procedures developed by the Department of Justice. • As Congress specifically recognized and assured when it passed the Inspector

General Act of 1978, no conflict of roles exists among or between the audit, evaluation, and criminal investigations components of the OIGs. The Commission’s supposition that such a conflict exists or could arise is unsupported and incorrect. Placing investigators together with auditors, analysts, and attorneys in the

overall OIG organization has generated a highly effective, synergistic environment which has substantially improved their effectiveness in dealing with white

collar crime, and which would be destroyed if law enforcement authority were

to be removed from the OIGs. • The Commission’s recommendations to remove law enforcement authority from

OIGs would not be practical to implement, or if implemented would be detrimental to effective management of federal programs. Among the problems likely

to arise would be severely limited information flow to agency heads and the

Congress on law enforcement issues, diminished coordination of investigative

activities within and across agency lines, and a drastic loss of expertise about

agency programs among law enforcement personnel.

INTRODUCTION

This white paper provides the responses of the President’s Council on Integrity

and Efficiency (PCIE) and the Executive Council and Integrity and Efficiency

(ECIE) to the final report of the Commission on the Advancement of Federal Law

Enforcement (Commission).

The members of the PCIE and ECIE appreciate being afforded the opportunity to

place their views on the record. For the purposes of this paper, we are limiting our

remarks strictly to the Commission’s comments and observations pertaining to the

offices of inspector general (OIGs or IGs). As will be apparent, we differ pointedly

with the Commission’s conclusions about the role and organizational placement of

the OIGs within the federal law enforcement community.

The Commission’s report contains a number of sweeping recommendations that

would alter not only the fundamental conceptual underpinnings of the inspector

general community, but also the way in which law enforcement services are made

available to most federal agencies. However, it appears that the Commission

reached its conclusions without objective evidence or empirical support for their

opinions. While our disagreement with the Commission’s report extends to essentially every aspect of their views about the inspectors general, we are focusing this

paper on the five issues listed below, which we believe represent the principal

thrust of the Commission’s commentary:

1. The Commission favors an ultimate configuration of the federal law enforcement structure under which IG law enforcement authority would be assigned to other agencies (presumably the FBI), leaving the IGs to function as

‘‘Auditors General.’’

2. The proposed Interagency Advisory Board on Federal Law Enforcement

which the Commission recommends to be established in the executive branch,

should be ‘‘directed to examine the growth and role of the function of the Inspector General * * * throughout the Federal Government and to consider the

wisdom and feasibility of consolidating these offices.’’

3. The Commission’s report questions the ability of OIGs to maintain appropriate professional standards, training, and quality in its law enforcement activities.

4. The Commission believes that the proliferation of so many independent law

enforcement entities makes it difficult to achieve the level of coordination by the

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Department of Justice contemplated under EO 11396 (February 1968). The

Commission’s report makes repeated references to the IGs as the principal

source of such proliferation and, on page 47, offers the observation that, ‘‘to

bring a more realistic frame of reference to the discussion’’ the number of federal agencies with law enforcement authority could be readily reduced by 40

percent if the OIGs were to be consolidated into a single entity.

5. The Commission perceives there to be inherent conflicts between the program review/evaluation role of the IGs and their law enforcement role.

This white paper will clearly show that the foregoing conclusions and observations

are neither accurate nor justified by reference to the way in which the IG community implements its law enforcement authorities.

THE INSPECTOR GENERAL LEGISLATION SHAPES THE ROLE AND

ORGANIZATION OF THE OIGS

The changes in IG authorities contemplated by the Commission are in direct conflict with the rationale behind Inspector General Act of 1978 (Act), its amendments,

and the case law construing the legislation. While recommending, in effect, that

twenty years of law and practice based on the IG Act should be reversed, the Commission made essentially no reference to the legislative underpinnings of the IG

community. However, the role and organization of the OIGs are entirely derivative

of the IG Act, and it is simply not possible to understand the IG concept without

reference to the legislation. Therefore, as our starting point for setting the record

straight we will explain the purposes of the Act and the shortcomings in the structure of federal law enforcement that it was designed to correct.

The implicit language and legislative history of the Act make it clear that the

Congress was addressing many of the concerns raised by the Commission’s report,

particularly with respect to coordination of law enforcement activities between the

Department of Justice and other executive agencies. By creating inspectors general

in each agency with independent investigative capabilities. Congress expected to remove conflicts of roles among and between agency components responsible for investigations of agency programs. By establishing investigative offices with expert

knowledge of the programs and organizational structure of their respective agencies,

Congress recognized that management’s needs would be more effectively served

than by drawing law enforcement services from another agency. This organizational

structure would also realize the synergistic effects of having audit and investigative

personnel working in concert on problems of fraud and abuse in agency programs.

Congress repeatedly and explicitly stated its intent that the inspectors general be

investigative officials. Each PCIE IG must, by law, appoint an Assistant Inspector

General for Investigations, ‘‘who shall have the responsibility for supervising investigative activities relating to [his/her agency’s] programs and operations [IG Act, 5

U.S.C. App. at section 3(d)(2)]. Further, Congress directed that it is the ‘‘duty and

responsibility’’ of each Inspector General to ‘‘conduct * * * audits and investigations

relating to the programs and operations’’ of their parent agency (emphasis added).

The role of the inspectors general as criminal investigators has also been clearly

and repeatedly recognized by federal courts. See, for example, U.S. v. Educational

Development Network Corp., 884 F.2d 737, 740–744 (3rd Cir. 1989) (recognizing an

Inspector General’s authority to issue a subpoena in a criminal investigation); U.S.

v. Aero Mayflower Transit Co., Inc., 831 F.2d 1142, 1145 (D.C. Cir. 1987) (recognizing both civil and criminal investigative authorities of the Inspectors General

with coextensive subpoena powers); U.S. v. Medic House, Inc., 736 F.Supp. 1531,

1537 (W.D. Mo. 1989) (enforcing a subpoena in a Medicare criminal fraud case, noting that the IG has ‘‘express authority’’ to conduct such cases).

EXCERPTS FROM THE LEGISLATIVE HISTORY OF THE INSPECTOR GENERAL ACT

A review of the legislative history of the Inspector General Act of 1978 indicates

that Congress considered many of the same issues of coordination and cooperation

raised by the Commission, and designed the Act to alleviate them. In reporting the

Act to the House, the Government Operations Committee acknowledged that Justice

Department officials had testified that: ‘‘with some exceptions, working relationship

with other Federal departments and agencies on fraud matters (were) far from optimum. [They] also told the subcommittee that coordination would be easier if all

agencies had a single high-level official devoting full time to overall direction of both

audit and investigative activities.’’ (House Report No. 95–584, pages 5–6, 1978)

On this same issue, the corresponding Senate Report No. 95–1071 states, at page

7, that the existence of an inspector general with both audit and investigative authority ‘‘strengthens cooperation between the agency and the Department of Justice

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in investigating and prosecuting fraud cases. The Department [of Justice] testified

emphatically that those agencies that have been the most effective co-partners * * *

have been those with viable offices of Inspector General.’’ As Deputy Assistant Attorney General Keeney testified, ‘‘The combining of audit and investigation functions under an Inspector General in the respective departments and agencies virtually ensures that the performance of the agencies will improve.’’ During floor consideration in the Senate on September 22, 1978, of H.R. 8588, The

Inspector General Act of 1978, Senator Eagleton discussed the rationale for calling

the office ‘‘Inspector General’’ as opposed to the Senate-proposed ‘‘Inspector and

Auditor General.’’ Senator Eagleton stated: ‘‘It has an established, well-understand

meaning. It conveys rather a multiplicity of functions, including audit, investigations, inspection review of legislation and the formulation and coordination of all

policies to promote efficiency and economy in Government and prevent and detect

fraud, abuse and waste. The change of name signals no reduction in my determination and the committee’s that the audit function play an essential role in the work

of the new Inspectors General. One hundred investigators operating on their own

can accomplish comparatively little when dealing with multibillion-dollar programs.

One hundred investigators operating in connection with several hundred authors

can become a vital force to combat fraud, abuse, and waste in agency operations and

programs, and to promote economy and efficiency generally.’’ (Congressional Record,

September 22, 1978, page S30954)

On the question of possible conflicts between audit and investigative roles, the

Senate Report indicated that: ‘‘the legislation gives * * * no conflicting policy responsibilities * * * sole responsibility is to coordinate auditing and investigating efforts and other policy initiatives designed to promote economy, efficiency and effectiveness of the programs of the establishment.’’

On the Senate floor, Senator Eagleton further discussed the statutory provision

for separate offices for audit and investigations: ‘‘The second amendment restores

a provision which the committee deleted from the House version of H.R. 8588. The

House-passed bill provided that each Office of Inspector General would have an Assistant Inspector General for Audit and an Assistant Inspector General for Investigation. The committee believed that while most Inspectors General would organize

their offices with separate assistants in charge of audit and investigation, such a

requirement should not be statutorily mandated. Both the House and Senate committees, however, agreed that the offices would operate more effectively if the separation between audit and investigation was statutorily delineated and I have no reluctance to adopt the House approach.’’ (Congressional Record, September 22, 1978,

S30954)

Further, Representative Fountain stated that enactment of this legislation would:

‘‘help to coordinate, within each agency and throughout the Government, the work

of numerous audit and investigative units which are now disorganized and without

effective leadership.’’ (Congressional Record September 27, 1978, H32033)

As will be shown in the remainder of this paper, stripping the IGs of investigative

authority would return agencies to the situation, which existed before passage of the

IG Act. Although the Commission does not address these facts, the record clearly

demonstrates that, in the pre-IG period, law enforcement efforts within agencies

often operated at cross-purposes and the means of addressing fraud, waste, abuse,

and wrongdoing were uncoordinated either within and across agency lines. These

unsatisfactory situations—precisely those which the Commission wishes to avoid—

were resolved by the IG Act, but could recur if the history of the Act and the accomplishments of the IG community under the IG legislation are ignored.

ACHIEVEMENTS OF THE INSPECTOR GENERAL LAW ENFORCEMENT COMMUNITY

The IG Act of 1978 was passed by nearly unanimous votes in both houses of Congress, despite the fact that the (Carter) Administration opposed the measure, and

nearly every agency called to testify about it recommended that IGs not be provided

statutory authorities. Now, over twenty years later, offices of inspector general with

full statutory powers are in place in essential every federal agency. They are mainstays of the effort to address criminal activity in federal programs. Congress has

maintained continuous oversight of the IGs, and on several occasions, with strong

support of several Administrations, has expanded both the number of IG offices and

their authorities. Although the Commission chooses to view this as a ‘‘startling’’ proliferation of small law enforcement agencies, we would suggest that it is more accurately depicted as demonstrating how the success of the IG concept has justified its

being expanded and strengthened.

Further, the IG law enforcement entities have compiled an outstanding record of

tangible accomplishments. While success cannot be measured solely by outputs, the

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numbers below unambiguously indicate that (1) IG law enforcement entities are producing substantial results in their present organizational configuration and, (2) the

issues they address—fraud, abuse, and wrongdoing in federal programs—represent

significant and serious problems that warrant focused and specialized law enforcement attention.

SELECTED INVESTIGATIVE OUTPUTS, PCIE AND ECIE MEMBER ORGANIZATIONS FY 1991–FY 1999

Output Measure Results

Investigative Recoveries ............................................................................................................. $13,025,606,341

Successful Prosecutions ............................................................................................................. 122,774

Personnel Actions ....................................................................................................................... 19,359

Notes: (1) Source of date is PCIE/ECIE Progress Reports to the President, FY 1991–1999. (2) Numbers have been edited wherever possible

to remove duplicative or overlapping reports resulting from joint activities. (3) Includes results reported by the Chief Postal Inspector as a

member of the ECIE, 1991–1996, and by the Office of Inspector General, U.S. Postal Service, 1997–1999. (4) Reporting period 1991–1999

was selected to reflect uniform reporting standards which came into use in 1991.

In contrast, the Commission report adduced no evidence—either statistical or anecdotal—to suggest that the IGs have not been effective, or that law enforcement

within federal agencies would improve if authorities were to be stripped from the

IGs and placed in the FBI or other agencies. The Commission’s authoritive iteration

of its position regarding IG law enforcement authorities appears as the following unsupported statement of opinion, on page 116 of its final report: ‘‘The Commission

believes that to the extent Inspectors General are involved in law enforcement operations the cooperation of existing law enforcement officials from agencies such as

Customs and the FBI to work with OIG officials is a better route than creating separate law enforcement entities within OIGs.’’

INTERNATIONAL COORDINATION AND LAW ENFORCEMENT QUALITY

IN THE IG COMMUNITY

The Commission report makes repeated and generalized observations to the effect

that ‘‘small’’ law enforcement agencies (a category in which the Commission clearly

includes the (IGs) find it difficult to maintain adequate standards of training, quality control, and professionalism. The underlying assumption of these comments appears to be that quality and professionalism are directly proportional to the size of

a law enforcement agency.

We find the Commission’s analysis to be oversimplified and its assumptions erroneous as applied to the IG community. Virtually since their inception under the

1978 IG Act, the IG law enforcement entities have worked closely with each other

and with other agencies to assure the quality of their work and the professionalism

of their personnel. As the results of these efforts, law enforcement with the OIGs

has evolved into a community of over 2,900 well-trained criminal investigators

whose primary thrust involves federal criminal or related civil cases, often worked

in conjunction with the ‘‘traditional’’ agencies such as the FBI, U.S. Secret Service,

ATF, DEA, and Customs, as well as state and local law enforcement bodies. Many

of the OIG cases involve specialized areas of investigation where the other agencies

defer to the expert knowledge of the IG special agents. Rather than discounting

‘‘small’’ law enforcement agencies out of hand as being doomed to professional inferiority, we would suggest that the IG community’s collective activities represent a

standard on which other agencies can model their own efforts to assure that they

observe the highest levels of training, quality, and professionalism.

Within the IG community, the PCIE and ECIE have taken the lead in ensuring

professional quality criminal investigations. These efforts have been coordinated

through the PCIE/ECIE Investigations Committee, which is comprised of IGs from

representative agencies who have been active in various aspects of law enforcement

and the Director, Office of Government Ethics. The chair of the committee has traditionally been an Inspector General with diverse federal law enforcement experience.

The Investigations Committee has produced several documents that have provided

guidance to the community on professional law enforcement standards. Arguably,

the most important is the revised ‘‘Quality Standards for Investigations.’’ This publication includes individual investigator standards for qualifications, independence,

and due professional care. It also establishes cases management standards in planning, execution, reporting and information management. The standards recommend

each criminal investigator have professional training adequate to conduct criminal

investigations at the federal level and that special agents also be involved in profesVerDate 11-MAY-2000 07:19 Sep 08, 2001 Jkt 072524 PO 00000 Frm 00070 Fmt 6602 Sfmt 6621 E:\HR\OC\B524.XXX pfrm03 PsN: B524
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sional development programs providing increased knowledge levels as the investigators advance through their career.

Two other publications of particular note developed through the Investigations

Committee are a ‘‘best practices’’ document and a government-wide publication entitled ’’OIG Investigations and You.’’ In 1998, a working group of Assistant Inspectors

General for Investigations (AIGIs) developed model guidance for all OIGs in operational practices within law enforcement agencies. These included training standards, types, use and care of weapons, use of deadly force, investigative practices,

civil liberties, and record keeping. The working group suggested minimum training

standards that required every criminal investigator complete training from the Federal Law Enforcement Training Center (FLETC), the FBI Academy, or other comparable basic training program. ‘‘OIG Investigations and You’’ was prepared by the

Investigations Committee as an electronic document that could be distributed to the

entire federal workforce. This pamphlet explains the rights and responsibilities of

federal employees when they are involved in an OIG investigation.

Another critical role of the Investigations Committee is oversight of the Inspector

General Criminal Investigator Academy (IGCIA) located in Glynco, Georgia. Serving

as the board of directors for the IGCIA, the committee has worked closely with

FLETC officials and the community to develop a professional training program for

IG special agents that meets recommended standards for federal investigators. In

the past year, the IGCIA was dramatically increased in size to better meet the

training needs of the OIG community. The IGCIA provides criminal investigator

training for IG special agents as the designated follow-up to the FLETC Criminal

Investigator Basic program. The IGCIA also conducts follow-up training in areas of

investigations deemed critical to meet DOJ and community standards. Advanced

training is also provided to meet special training needs as individuals continue

through their career.

Closely related to this effort, the IG community has actively participated in the

operations of FLETC, including representation on the FLETC Board of Directors,

curriculum development committees, and other development programs. Special

agents from the PCIE and ECIE agencies participate in classes at FLETC, and occasionally, on an as-needed basis, at the FBI Academy and other accredited training

facilities.

Though the Investigations Committee remains the central focal point for investigative issues, there are other activities within the community that have influenced

the development of community-wide professional law enforcement operations. These

include the coordination of joint OIG investigations, establishment of quality assurance programs in every OIG, participation in multi-agency task forces, and legal coordination.

Every OIG has established quality assurance safeguards within its investigative

program. These address the need for maintaining the highest quality of professional

operations. Most of these reviews are based upon the standards established in

‘‘Quality Standards for Investigations.’’

COORDINATION BY THE DEPARTMENT OF JUSTICE

The Commission’s assertions that proliferation of OIGs and other ‘‘small’’ law enforcement agencies undermines the overall direction of federal law enforcement efforts and makes coordination by the Department of Justice (DOJ) difficult are not

reflected in actual practice. The IGs are as accountable for their actions as any other

law enforcement agency, and, because of the semiannual requirements, must provide a public record of their principal activities on a regular and continuing basis.

Every IG has a continuing relationship with congressional oversight committees

and, because of their audit role, with the General Accounting Office (GAO). Every

IG holds membership on either the PCIE or ECIE, which are chaired by the Office

of Management and Budget and exist precisely for the purposes of assuring that the

IGs efforts are appropriately coordinated within the Executive Branch and that important government-wide problems are addressed.

On a case-by-case basis, Assistant United States Attorneys direct most federal law

enforcement efforts by making prosecutorial decisions in their respective districts

concerning issuance of indictments, empanelling grand juries, use of grand jury subpoenas, and the approval of surveillance, undercover operations and other investigative techniques. IG criminal investigators are subject to all of the Department of

Justice standards, guidelines, and control associated with these activities. Through

this process, DOJ and the United States Attorney’s Offices provide oversight as well

as guidance to the OIGs. With few exceptions, the United States Attorneys have embraced and commended the investigative services they have received from the OIGs,

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recognizing both the investigative abilities of OIG agents and the expertise that

these agents possess with respect to specific agency programs.

In addition, the Department of Justice has supported OIG inclusion in special

task force operations, which are being used more frequently. These task forces cover

the range of federal investigations in areas such as welfare and Medicare fraud,

health care fraud, organized crime, drug trafficking, border and immigration integrity, multi-objective projects such as Operation Safe Homes and Operation Talon,

and other high profile criminal investigative initiatives involving the programs of

every federal agency. Not only are special agents from OIGs included in these task

forces, they are considered full partners, often taking lead roles in critical aspects

of an investigation. These partnerships in most cases include, among other, the FBI,

Secret Service, DEA, ATF and/or Customs.

While the IG Act of 1978 did not explicitly provide a full range of criminal law

enforcement authorities, because of the proven success and professionalism of the

IG law enforcement community, such authorities have become available progressively as the OIGs have evolved. For many years, the only method by which full

law enforcement authority was extended to most OIG investigators was for the DOJ

to authorize deputation to each individual on a case-by-case basis. However, at this

time, blanket deputation for IG special agents is provided through memoranda of

understanding (MOU) between DOJ and the respective OIGs. As a further step,

DOJ now supports legislation to grant statutory law enforcement authority (to include uniform qualification and related standards) for all OIGs in the PCIE.

Deputation agreements mandate uniform standards for completing basic and continuing special agent training, including regular criminal and civil legal updates,

and for conducting criminal investigations. It also requires coordination and procedural adherence to DOJ standards. The present blanket authorities through the

MOUs also require reporting and DOJ oversight of IG investigative operations. The

net result is observance of professional standards throughout the IG community

that meet all the requirements of the DOJ.

Further, the inspectors general have MOUs with the FBI and other federal law

enforcement agencies to ensure coordination. This has resulted in a working relationship that ensures that all aspects of federal law enforcement work closely together. It also means that overlapping or conflicting investigations are less apt to

happen. Some of these agreements have been in place since the establishment of the

first IGs in 1978.

Clearly, the existence of law enforcement components within individual OIGs has

strengthened rather than undermined federal law enforcement efforts. Even if ‘‘traditional law enforcement’’ moves in the direction envisioned by the Commission, to

combat globalized crime, more sophisticated narcotics trafficking, and terrorism, the

need to address crime in government programs will continue to exist. Although the

Commission does not appear to make the connection, we note the finding in their

own survey of attitudes toward crime (discussed on page 30 of the Commission’s

final report) that ‘‘white collar fraud,’’ which is the principal focus of IG law enforcement, elicits a high level of public concern, equivalent to carjacking and organized

crime. Thus, instead of conflicting or overlapping, the continued presence of strong

IG law enforcement authorities remains essential to ensuring that the priorities of

Congress and the American public are implemented.

WORKING TOGETHER—SYNERGY WITHOUT CONFLICT

As quoted above from the IG Act’s legislative history, in fashioning the IG legislation, Congress very intentionally did not choose to isolate the law enforcement personnel who would be investigating agency programs within an organization devoted

solely to criminal law enforcement. As anticipated, the investigative role of the IGs

has been greatly improved by the close working relationships among the investigators, auditors, attorneys, and evaluators who comprise IG staffs. Indeed, skilled

analysis by auditors of complex financial transactions involved in white collar fraud

schemes has become a cornerstone of efficient investigation and prosecution of those

crimes. Implementing the Commission’s recommendation to remove law enforcement

authority from the IGs would sever this collaboration by removing the investigators,

with their specialized experience and expertise, from the agencies in which they are

located. There is no historical, anecdotal, or statistical evidence of which we are

aware, or which is offered by the Commission, to support the upheaval their recommendation would cause.

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REMOVING LAW ENFORCEMENT AUTHORITY WOULD DISRUPT IMPORTANT

CONTRIBUTIONS TO MANAGEMENT OF AGENCY PROGRAMS

The foregoing sections of this white paper demonstrate that the IG offices, as

presently constituted, have met and exceeded all of the expectations which Congress

associated with the IG Act. Further, the IGs have been operationally effective, and

have implemented and observed very high standards of quality, training, and professionalism. In the absence of any information or analysis by the Commission to buttress its viewpoint, these factors alone provide convincing support for maintaining

IG law enforcement authorities.

There is, however, yet another serious shortcoming of the Commission’s report. Although the Commission purported to address only law enforcement concerns, in fact

it undertook to make recommendations about the structure, function, and role of

parts of nearly every federal agency. And those parts—the OIGs—themselves have

the authority to affect essentially every program in their respective agencies. Therefore, an assessment of the Commission’s report cannot focus simply on law enforcement in isolation, but must consider the potential impact of its comments and recommendations on the full range of management challenges facing federal agencies.

By this standard, we conclude that actual implementation of the Commission’s

recommendations about the IG community would either generate results contrary

to their expressed purpose or would create management problems more serious than

the law enforcement problems the Commission discusses. Specifically, if law enforcement authority were to be removed from the OIGs in keeping with the Commission’s

recommendations, we believe the following three management problems would

quickly ensue. Ironically, Congress recognized in 1978 that the absence of law enforcement at the agency level generated precisely these problems, and they addressed all of them in the IG Act.

A. INFORMATION FLOW TO CONGRESS AND THE AGENCY HEADS WOULD BE REDUCED

The Inspector General Act establishes an information flow that is unique among

federal law enforcement agencies. The IGs ultimately report their findings to and

through the agency head. At the same time, the mechanism of the IG semiannual

reports assures that information on the IGs most significant results, accomplishments, and problems is provided to Congress. The ‘‘seven-day letter’’ provision, although seldom used, provides an independent ‘‘fast track’’ channel for the IG to

bring exceptionally serious problems to Congress’ attention on an urgent basis.

All of these provisions were in direct response to (1) the obvious void of information flow among the traditional law enforcement agencies, federal agencies whose

programs or personnel were being investigated, and Congress, and (2) the limitations of the case-by-case approach taken by the traditional law enforcement agencies

as a means of developing useful information for the program management or legislative perspective. The IG Act requirement that the agency head forward the IG report to Congress, with his comments, assures both that agency management considers and addresses the IGs’ reports and that Congress receives the benefit of management input, as well as the IGs, on significant problems.

The current reporting system fills the essential needs of both agency management

and Congress for continuing and reliable information about problems that warrant

their attention and action. However, adopting the Commission’s recommendations

for removing law enforcement authority from the IGs would re-create the former information void. Outside law enforcement agencies would have no responsibility to

report to agency heads or Congress, and the connection between investigative results and program operations—the essence of the IG Act reporting system—would

be lost.

B. THE IGS’ POSITIVE CONTRIBUTION TO EFFECTIVE PROGRAM MANAGEMENT

WOULD BE DISMISSED

From the inception of the statutory inspectors general, both Congress and the

agencies have understood them to be more than simply audit and law enforcement

organizations superimposed on existing agency structures. In fact, the premise of

the IG concept is that it would improve the management of federal programs by

identifying and rooting out fraud, abuse, waste, inefficiency, and wrongdoing. To

consider IGs strictly as law enforcement entities is to ignore their larger, underlying

purpose.

Placement of the IGs, and their associated law enforcement authorities, within

the agency, gives the agency head more control of his programs than if the law enforcement personnel serving the agency were from another agency. On page 58 of

its final report, the Commission states that: ‘‘[T]he independence of OIGs as manVerDate 11-MAY-2000 07:19 Sep 08, 2001 Jkt 072524 PO 00000 Frm 00073 Fmt 6602 Sfmt 6621 E:\HR\OC\B524.XXX pfrm03 PsN: B524
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dated by Congress from program operations and from management within a department can become a future problem area without coordination and oversight of IG

action.’’

But in fact, this statement is not only unsupported by any objective information

in the Commission’s report, it is inherently illogical as support for removing law enforcement authority from IGs and placing it in another law enforcement agency. As

the IG Act unambiguously recognized, an agency is far better able to coordinate, and

benefit from, law enforcement activities undertaken by its IG than it would the activities of the FBI if law enforcement authority were removed from the IG and

placed with the FBI.

The proximity and visibility of OIG agents within an agency bestows several tangible advantages for the integrity of the agency’s programs. First, an official with

concerns about fraud in his programs will be far more likely to contact an OIG

agent in the office next door than to call a ‘‘centralized law enforcement entity.’’ Further, the presence of an OIG with law enforcement capabilities generates a deterrent effect. Many OIGs conduct fraud awareness and outreach programs. In fact,

such proactive efforts are mandated in the IG Act, which speaks of the ‘‘preventing’’

as well as ‘‘detecting’’ fraud, waste, abuse, and mismanagement. The effectiveness

and feasibility of outreach activities are tied directly to their applicability to specific

situations found in the agency. A centralized law enforcement agency would likely

find it difficult to mount efforts which are relevant across the board.

The Commission’s quotation of a National Performance Review comment, which

is taken out of context, to the effect that some agency personnel consider IG personnel to be high-handed, is utterly misleading. It was not a conclusion of that report, but a statement by an anonymous government official. Any law enforcement

organization may be considered threatening or coercive by persons who are subject

to its authority; in fact, federal employees may be compelled to provide information

to IGs and all other federal law enforcement agencies, to the extent that such disclosures do not violate their constitutional rights. The fact that some nameless persons

may hold a certain opinion of IG staff does not support the point that it is inappropriate for law enforcement authority to reside in the IGs.

C. LAW ENFORCEMENT EFFORTS WOULD SUFFER FROM THE LOSS OF SPECIALIZED

KNOWLEDGE OF AGENCY PROGRAMS

We strongly disagree with the Commission’s premise that the IG community is

outside the ‘‘mainstream’’ of federal law enforcement. In fact, over 20 years of expertise in addressing criminal violations particular to the agencies they serve has actually placed the IG criminal investigative components in a better position to service

the law enforcement needs of their agencies than a ‘‘generalist’’ law enforcement entity. To suggest, as the Commission seems to do, that a general federal law enforcement agent could be conversant in the intricacies of Medicare fraud, oil and gas royalty fraud, and passport and visa fraud is simply not reasonable. Further, OIG special agents not only have expertise germane to their own agency, but also on the

way common frauds are prepetrated in the agency context. For example, while OIGs

in all agencies may investigate procurement fraud, procuring services to construct

an embassy overseas is vastly different from procuring a cleanup of a wetland endangered by an oil spill. Simply knowing the Federal Acquisition Regulations is not

enough—to be truly effective, one needs to know how it is applied within the specific

agency.

Many of the trends noted the Commission report itself as to the increasing sophistication and organization of criminal behavior mean that the need has increased for

federal law enforcement personnel to ‘‘specialize’’ and become truly expert about

what they are doing. Congress has recognized this by heightening the responsibilities of various IGs to fight fraud. One among many examples is the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which established the

Health Care Fraud and Abuse Control Program, administered jointly by the Attorney General and the Department of Health and Human Services (HHS), acting

through the HHS Inspector General [see 42 U.S.C. 1230a–7c(a)(1)]. The HHS IG receives mandatory funding from the Medicare trust funds to support intensified efforts against fraud and abuse in the Medicare/Medicaid programs. Using its new authority and resources, in three years since passage of HIPAA, the HHS IG has

achieved a 139 percent increase in criminal convictions in health care cases, a 111

percent increase in health care administrative sanctions, and a 51 percent increase

in fines, penalties, restitution, and multiple damages in health care investigations

over the combined total amount for the prior 10 years.

In this regard, government program needs warrant the same highly directed and

expert attention as the problems of terrorism, international narcotics trafficking,

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and global crime identified by the Commission’s report. Further, much as ‘‘specialized’’ law enforcement personnel may not be aware how to address terrorism, efforts

to combat fraud in government programs will not be well-served by a ‘‘generalist’’

law enforcement entity that needs to learn the intricacies of the victimized program

before it can develop an investigative plan to deal with the criminal. Although the

Commission may hold the opinion that it is ‘‘better’’ to provide law enforcement

services from large ‘‘generalist’’ agencies than from smaller ‘‘specialist’’ entities, it

offers no evidence to indicate the need for one excludes or replaces the need for the

other.

PRESIDENT’S COUNCIL ON

INTEGRITY AND EFFICIENCY,

February 4, 2000.

Hon. STROM THURMOND, Chairman,

Subcommittee on Criminal Oversight, Committee on the Judiciary, U.S. Senate,

Washington, DC.

DEAR MR. CHAIRMAN: As Chairman of the Investigations Committee of the President’s Council on Integrity and Efficiency, I want to register my strong opposition

to the conclusion reached by the Commission on the Advancement of Federal Law

Enforcement concerning the investigative authority of Inspectors General. On page

116 of its report, ‘‘Law Enforcement in a New Century and a Changing World,’’ the

Commission recommends: ‘‘* * * the function of the Office of the Inspector General

should be to act as an Auditor General, not as a law enforcement entity.’’

We do not duplicate other law enforcement agencies. We coordinate and work

closely with the Attorney General and the U.S. Attorneys to enhance their ability

to investigate and prosecute fraud in our respective agency programs.

The hallmark of our existence is independence from political pressure and objectivity in finding fact. We are a justifiably proud community of office of inspectors

general because of our accomplishments. Our law enforcement agents are traditionally and extensively training in all aspects of criminal law enforcement. They are

professional in every sense of the word and possess the integrity and accountability

necessary to ensure productive law enforcement.

I request to have this letter placed in the record of the Committee Hearing of February 3, 2000 on this report and the opportunity to meet with you to discuss the

specifics of why the report is erroneous with respect to these matters. Please feel

free to call me at (202) 606–1200.

Sincerely,

JOSEPH R. WILLIAMS,

(For Patrick E. McFarland,

Chair, Investigations Committee).

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