99–010

107TH CONGRESS REPORT

2d Session " ! SENATE 107–148

THE FEDERAL BUREAU OF INVESTIGATION REFORM ACT

OF 2002

MAY 10 (legislative day MAY 9), 2002.—Ordered to be printed

Mr. LEAHY, from the Committee on the Judiciary,

submitted the following

R E P O R T

[To accompany S. 1974]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to which was referred the bill

(S. 1974) to make needed reforms in the Federal Bureau of Investigation, and for other purposes, having considered the same, reports favorably thereon, with an amendment, and recommends that

the bill, as amended, do pass.

CONTENTS

Page

I. Purpose and summary ................................................................................... 1

II. Legislative history ......................................................................................... 3

III. Vote of the Committee ................................................................................... 4

IV. The need for legislation ................................................................................. 4

V. Discussion and section-by-section analysis .................................................. 7

VI. Congressional Budget Office cost estimate .................................................. 23

VII. Regulatory impact statement ........................................................................ 25

VIII. Changes in existing law ................................................................................ 26

I. PURPOSE AND SUMMARY

The purpose of S. 1974, the Federal Bureau of Investigation Reform Act of 2002, is to make needed reforms to strengthen effective

oversight, enhance security, and improve management of the Federal Bureau of Investigation (‘‘FBI’’ or ‘‘Bureau’’). Specific provisions would strengthen oversight by the Inspector General of the

Department of Justice, increase protections for FBI whistleblowers,

improve security for FBI and related Justice Department information and facilities, provide reports needed by the Congress, and

eliminate disparities in discipline between Senior Executive Service

officials and other personnel.

2

The legislation is based on a series of bipartisan FBI oversight

hearings that began in the summer of 2001. These hearings included testimony on Senator Danforth’s Waco inquiry, the Webster

Commission report on security in the FBI, and Justice Department

Inspector General’s report on the FBI’s belated disclosure of documents in the Oklahoma City bombing case, as well as testimony

from rank-and-file FBI agents, the Department of Justice’s current

and former Inspectors General, and the FBI’s senior administrative, security and computer infrastructure managers. These hearings revealed institutional problems at the FBI that require congressional action.

The hearings highlighted (1) a double standard in disciplinary

actions for senior FBI management causing morale problems within the Bureau; (2) record and information management problems

and communications breakdowns between field offices and Headquarters that contributed to the belated production of documents in

the Oklahoma City bombing case; (3) a dire need to modernize FBI

computer systems, despite significant budget increases granted to

the FBI over the last five years; (4) a culture that not only discourages FBI employees from reporting problems or wrongdoing, but

permits retribution against the relatively few FBI employees who

do ‘‘blow the whistle’’ on misconduct; (5) lax FBI security and personnel procedures that allowed FBI supervisor Robert Hanssen to

sell critical secrets to the Russians undetected for years, without

ever getting a polygraph; and (6) no fewer than 15 different areas

of security at the FBI that need fixing.

The FBI Reform Act targets three goals: to improve accountability and oversight of the FBI, to enhance security both inside

and outside of the FBI, and to prepare the FBI for the missions it

faces in the 21st Century.

The bill improves accountability through three reforms:

(1) codifying the Justice Department Inspector General’s authority to investigate all allegations of misconduct at the FBI— not just those referred by the FBI’s Office of Professional Responsibility;

(2) strengthening whistleblower protections for FBI employees who report misconduct; and

(3) ending the ‘‘double standard’’ in the FBI, where senior

management officials are not disciplined as harshly as line

agents for the same types of misconduct.

The bill improves security both inside and outside the FBI

through four reforms:

(1) creating a Career Security Program in the FBI, to ensure

that the FBI has a trained professional cadre of people who

can protect against future Hanssen cases;

(2) establishing a polygraph program to increase security at

the same time as protecting employee rights;

(3) improving the statutory authority for the FBI police, so

that the most qualified people can be retained to protect some

of the most sensitive terrorist targets in our nation; and

(4) strengthening Justice Department security to protect sensitive FBI information shared with Justice, including Foreign

Intelligence Surveillance Act information.

The bill helps prepare the FBI for 21st Century national security

and public safety challenges in three ways:

3

(1) requiring a report on the statutory authorities and core

mission of the FBI to help guide the FBI in better focusing its

activities;

(2) requiring a specific 10-point plan to modernize the FBI’s

information technology systems to improve information flow

and proper sharing; and

(3) requiring a General Accounting Office (‘‘GAO’’) report on

the compilation and use of duplicative case statistics by the

FBI and other federal law enforcement agencies.

II. LEGISLATIVE HISTORY

The ‘‘Federal Bureau of Investigation Reform Act of 2002,’’ S.

1974, was introduced by Chairman Patrick Leahy and Senator

Charles Grassley on February 28, 2002. The bill was a product of

Judiciary Committee hearings held beginning in June 2001, on FBI

oversight, management, information technology and security, as

well as the confirmation hearing for the new Director of the FBI,

Robert S. Mueller III. After the bill’s introduction, additional hearings related to S. 1974 were held in March and April 2002, to consider the need for FBI information technology and management reforms in light of the report of the Justice Department Inspector

General on the belated disclosure of FBI documents in the Oklahoma City bombing case and to address the need for FBI security

reforms as identified in the report of the Webster Commission,

which was charged with reviewing FBI security in the wake of the

Robert Hanssen espionage case.

Provisions of title I of S. 1974 to strengthen the authority of the

Justice Department Inspector General to provide oversight and review of FBI and Drug Enforcement Administration matters were

also contained in the ‘‘21st Century Department of Justice Appropriations Authorization Act,’’ S. 1319/H.R. 2215, which was introduced by Chairman Patrick Leahy and Senator Orrin Hatch, reported by the Judiciary Committee and passed by the Senate by

unanimous consent on December 20, 2001.

On April 25, 2002, the Senate Judiciary Committee favorably

and unanimously reported S. 1974, by voice vote, with an amendment in the nature of a substitute offered by Chairman Leahy and

cosponsored by Senator Grassley. The substitute amendment modified S. 1974, as introduced, in the following ways:

(1) Section 101, p. 3, lines 1–19, was added to clarify the Office

of Inspector General’s authority over heads of Justice Department

components;

(2) Section 302(b), p. 10, lines 8–9, was added to clarify that FBI

security personnel management policies are to be implemented at

both the headquarters and field office levels;

(3) Section 702, pp. 31–32, was added to require the Office of Inspector General to submit to the Judiciary Committees, for five

years, annual reports prepared by the FBI’s Office of Professional

Responsibility, including an analysis of any double standard in FBI

discipline;

(4) Title VIII, pp. 32–34, was added, based on concerns of the

Webster Commission, to enhance security at the Justice Department where sensitive FBI information is shared, including secure

communications for processing of FISA matters.

4

1Pub. L. No. 107–56 (2001). 2Office of Special Counsel; Report to the Deputy Attorney General Concerning the Waco Matter (2000). 3 ‘‘Lee Family ‘Shocked’ by FBI Tactics,’’ Albuquerque Journal, January 9, 2000. Dan Eggen, ‘‘FBI Won’t Apologize to Cleared CIA Officer,’’ Washington Post, August 13, 2001. Ronald

Kessler, ‘‘Time to Fire FBI Director,’’ Washington Post, March 2, 2001. Laurie Cohen and David

Cloud, ‘‘Counterintelligence: How Federal Agents Bungled the Spy Case Against Wen Ho Lee,’’ Wall Street Journal, December 8, 2000. Eric Lichtblau, ‘‘Tough Criticism Pelts the FBI,’’ Los

Angeles Times, January 21, 2001. See Senator Patrick Leahy Statement, 2000 Cong. Rec.

S1226–1228 (daily ed. Mar. 7, 2000).

III. VOTE OF THE COMMITTEE

The Senate Committee on the Judiciary, with a quorum present

met on April 25, 2002 to consider the ‘‘Federal Bureau of Investigation Reform Act of 2002.’’ The Committee considered S. 1974 and

approved the bill, by unanimous voice vote, with an amendment in

the nature of a substitute, and ordered the bill to be reported favorably to the Senate, with a recommendation that the bill do pass.

IV. THE NEED FOR LEGISLATION

The need for the FBI Reform Act is predicated on an appreciation of both the FBI’s importance to the nation and the serious concerns about FBI performance that have arisen in recent years. The

FBI is responsible for the investigation of federal crimes, the conduct of intelligence and counterintelligence activities, and the provision of services to the United States law enforcement community,

including at the Federal, State and local levels. With more than

25,000 personnel and a budget of over $4 billion, the FBI is essential to combating serious and complex criminal activity, protecting

the national security against terrorism and espionage, and serving

all federal, state, and local law enforcement agencies with training,

laboratory and fingerprint examinations, and centralized crime information. After the terrorist attacks of September 11, 2001, and

the subsequent anthrax attacks in the fall of 2001, the nation

turned to the FBI for expanded investigation, intelligence collection, analysis and information sharing to detect terrorists and frustrate any potential plans for additional attacks. The new anti-terrorism law, the USA PATRIOT Act,1 enacted on October 26, 2001

after passing overwhelmingly in the Congress, gave the FBI wider

investigative and intelligence-information gathering powers. In an

emergency counterterrorism supplemental appropriation for FY

2002, the Congress added $745 million to the FBI’s budget for investigative and intelligence capabilities, information technology,

and security. An additional increase of $225 million is requested for

FY 2003.

The FBI’s critical and growing responsibilities make it all the

more necessary to confront the serious weaknesses in the Bureau’s

management and operations that have come to light in recent

years. In the 1990s the tragic violent confrontations at Ruby Ridge

and Waco, and subsequent flawed internal investigations, led to

further inquiries, including an independent investigation of Waco

events by former Senator John Danforth, that exposed failures of

FBI officials to be candid in admitting errors.2 Highly publicized investigative mistakes in the Atlanta Olympics bombing case and the

Wen Ho Lee espionage investigation raised questions about the

competence and judgment of FBI officials.3

5

4Statement of Judge William H. Webster, former FBI Director, U.S. Senate Committee on the

Judiciary Hearing, ‘‘Reforming the FBI in the 21st Century: Lessons of the Hanssen Espionage

Case,’’ April 9, 2002, p. 21. 5Statement of Bob Dies, FBI Chief Technology Officer, U.S. Senate Committee on the Judiciary Hearing, ‘‘Reforming the FBI in the 21st Century: Lessons of the Oklahoma City Bombing

Case,’’ March 21, 2002, p. 65. 6Statement of Robert S. Mueller III, U.S. Attorney in Northern District of California, U.S.

Senate Committee on the Judiciary, ‘‘Nominations Hearing,’’ July 30, 2001, p. 25.

This bill stems from the lessons learned during a series of Committee hearings on oversight of the FBI from June 2001, through

April 2002, including hearings on the Webster Commission review

of FBI security in the wake of the Hanssen espionage case4 and the

Justice Department Inspector General’s report on the belated FBI

disclosure of documents in the Oklahoma City bombing case.5 The

important changes which are being made under the FBI’s new

leadership after the September 11 attacks and the new powers

granted to the FBI under the USA PATRIOT Act have rendered

FBI reform a pressing matter of national importance.

Since the attacks of September 11, 2001, and the anthrax attacks

last fall, the FBI has had the responsibility to detect and prevent

acts of catastrophic terrorism that endanger the lives of the American people and the institutions of our country. The men and

women of the FBI are performing this task with great professionalism at home and abroad. All Americans felt safer as a result

of the full mobilization of the FBI’s dedicated Special Agents, its

expert support personnel, and its exceptional technical capabilities.

For decades the FBI has been an outstanding law enforcement

agency and a vital member of the United States intelligence community. As the hearings and recent events have shown, however,

there is room for improvement at the FBI. Only needed reform can

ensure that the mistakes of the past are not repeated. In meeting

the international terrorist challenge, the Congress has both an opportunity and obligation to strengthen the institutional fibre of the

FBI based on lessons learned from recent problems the Bureau has

experienced.

This view is not the Committee’s alone. When Director Robert S.

Mueller testified at his confirmation hearings last July, he forthrightly acknowledged ‘‘that the Bureau’s remarkable legacy of service and accomplishment has been tarnished by some serious and

highly publicized problems in recent years. Waco, Ruby Ridge, the

FBI lab, Wen Ho Lee, Robert Hanssen and the McVeigh documents—these familiar names and events remind us all that the

FBI is far from perfect and that the next director faces significant

management and administrative challenges.’’6 Since then, the Judiciary Committee has forged a constructive partnership with Director Mueller to get the FBI back on track.

The Congress sometimes has followed a hands-off approach towards the FBI. The FBI’s new increased powers, the nation’s increased reliance on the Bureau to stop terrorism, and the President’s budget request for increased funding for the Bureau, will require increased scrutiny and oversight. Until reforms underway at

the Bureau demonstrate that problems are resolved and new challenges overcome, Congress will have to take a hands-on approach.

Indeed, Committee hearings and other oversight activities have

highlighted tangible steps the Congress should take in an FBI Reform bill as part of this hands-on approach. Hearings in 2001 demVerDate 11-MAY-2000 04:41 May 14, 2002 Jkt 099010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\SR148.XXX pfrm01 PsN: SR148
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7 Julie Mason, ‘‘FBI Alters Course After 9/11 Attacks,’’ Houston Chronicle, December 23, 2001. 8 Briefing by Associate Deputy Attorney General Christopher Wray to Committee Staff on January 22, 2002. 9Statement of Robert S. Mueller III, Director of the Federal Bureau of Investigation, U.S.

House Committee on Appropriations Subcommittee for the Department of Commerce, Justice,

and State, the Judiciary, and Related Agencies Hearing, ‘‘Fiscal 2003 Appropriations,’’ March

6, 2002, p. 25. 10Office of Inspector General; An Investigation of the Belated Production of Documents in the

Oklahoma City Bombing Case (2002).

onstrated the need to improve FBI internal accountability, extend

whistleblower protection, end the double-standard for discipline of

senior FBI executives, enhance the FBI’s internal security program

to protect against espionage as occurred in the Hanssen case, and

modernize the FBI’s information technology systems. After the initial oversight hearings, the Committee explored additional management issues that are reflected in the FBI Reform Act. Senator

Grassley called attention to the practices of the FBI and other federal criminal investigative agencies in over-reporting and misusing

statistics on their investigations. In addition, FBI officials responsible for protecting its facilities informed the Committee of difficulties in retaining the most qualified people on the FBI’s own police

force to protect some of our nation’s most important and, unfortunately, most targeted facilities.

When Director Mueller announced the first stage of his FBI reorganization in December 2001, he stressed the importance of taking

a comprehensive look at the FBI’s missions for the future.7 Deputy

Attorney General Thompson’s office informed the Committee that

the Attorney General’s management review of the FBI was considering this matter.8 Director Mueller has stated that the second

phase of FBI reorganization will be part of a ‘‘comprehensive plan

to address not only the new challenges of terrorism, but to modernize and streamline the Bureau’s more traditional functions. ...’’ 9 Thus, through hearings, other oversight efforts, and the

statements and efforts of the new management team at the FBI,

an initial list of challenges facing the FBI was developed to serve

as the basis for S. 1974, as introduced.

Following introduction in February, the need for this legislation

was confirmed strongly at the Committee’s hearings in March and

April on the Webster Commission review of FBI security and the

Justice Department Inspector General’s report on belated FBI document production in the Oklahoma City case.10 Based on testimony

at these hearings and other information, revisions were made in

the bill as introduced, and Senators Leahy and Grassley proposed

a substitute for adoption by the Committee.

S. 1974 enjoys bipartisan support, especially among those who

have worked with and appeared before the Committee as experts

on the FBI’s past, the present FBI, and the future of the FBI. The

following people, among others, have expressed support for provisions set forth in S. 1974: Department of Justice Inspector General

(‘‘IG’’) Glenn A. Fine; former IG Michael Bromwich; Judge William

H. Webster; who headed the Commission charged with reviewing

the FBI’s security programs (‘‘Webster Commission’’); FBI Chief

Technology Officer Bob Dies; and FBI Assistant Director for Security Kenneth Senser. The legislation was benefitted enormously

from the contributions of many other witnesses and experts who

shared their insights with the Committee. The Committee is grateful for the testimony and comments of FBI career professional reVerDate 11-MAY-2000 04:41 May 14, 2002 Jkt 099010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\SR148.XXX pfrm01 PsN: SR148
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sponsibility agents, including Supervisory Special Agent Patrick J.

Kiernan and John E. Roberts, Chief of the Internal Investigative

Unit at the FBI’s Office of Professional Responsibility, and former

FBI Foreign Counterintelligence Supervisor John Werner. Former

Senator John C. Danforth, former Commissioner of the U.S. Customs Service Ray Kelly, FBI Executive Assistant Director for Administration Robert Chiradio, FBI Assistant Director for Records

Management Bill Hooten, and General Accounting Office Managing

Director Norman J. Rabkin also provided valuable testimony. The

bill is also supported by the National Whistleblower Center and

other similar public interest groups that aim to protect both the

public interest and the rights of those who report government

waste, fraud, and abuse.

V. DISCUSSION AND SECTION-BY-SECTION ANALYSIS

A. DISCUSSION

The provisions in the FBI Reform Act address three challenges,

increasing both the oversight and accountability at the FBI, improving the security of the FBI, and preparing the FBI for the 21st

century. Each of the bill’s provisions should be understood and interpreted in that context, as further discussed below.

1. Oversight and accountability

Titles I, II, and VII of the FBI Reform Act would strengthen the

system for uncovering and reviewing FBI misconduct and imposing

appropriate discipline, so that there is appropriate accountability.

It is also important to create institutional safeguards to ensure

proper oversight of the FBI’s activities. This will lead to increased

public confidence in the FBI as it does its important work.

Title I would create statutory jurisdiction for the DOJ Inspector

General over allegations of misconduct in the FBI. It would bring

the statutory authorities of the Justice Department’s Inspector

General into line with the administrative regulations adopted by

the Attorney General on July 11, 2001, ensuring that there will be

no return to a system in which the FBI enjoyed unique exemption

for scrutiny by an independent Inspector General. It would also

clarify that agency heads within the Department of Justice may be

disciplined by the Attorney General, a proposition which has been

assumed to exist for years, and which the Committee seeks to reinforce. At the same time, Title I requires reports to Congress regarding such disciplinary recommendations, ensuring a proper oversight role in these important decisions.

Title II would strengthen whistleblower protection for FBI employees and protect them from retaliation for reporting wrongdoing.

Title VII would eliminate statutory disparities in disciplinary penalties for Senior Executive Service and non-SES personnel and require that the FBI’s Office of Professional Responsibility complete

annual reports on its activities, and that such reports be submitted

to the Judiciary Committees through the Inspector General.

The Committee received testimony at its oversight hearings

showing that, too often, the independence that is part of the FBI’s

culture crossed the line into arrogance. Senator Danforth expressed

concern to the Committee about entrenched executives at the FBI

who had created a closed and insular culture resistant to disclosure

8

11Statement of John Danforth, United States Senator, U.S. Senate Committee on the Judiciary Hearing, ‘‘Oversight: Restoring Confidence in the FBI,’’ June 20, 2001. 12 U.S. Senate Committee on the Judiciary Hearing, ‘‘Reforming FBI Management: The Views

From Inside and Out,’’ July 18, 2001. 13Statement of John Danforth, United States Senator, U.S. Senate Committee on the Judiciary Hearing, ‘‘Oversight: Restoring Confidence in the FBI,’’ June 20, 2001, p. 36. 14Statement of Robert S. Mueller III, U.S. Attorney in the Northern District of California,

U.S. Senate Committee on the Judiciary Hearing, ‘‘Nominations Hearing,’’ July 31, 2001, p. 65. 15Statement of Glenn Fine, Inspector General, U.S. Senate Committee on the Judiciary Hearing, ‘‘Reforming the FBI in the 21st Century: Lessons of the Oklahoma City Bombing Case,’’

March 21, 2002, p. 65.

of mistakes and to reforms.11 His concern was echoed in testimony

the Committee heard from experienced FBI Special Agents, including a unit chief in the FBI’s own Office of Professional Responsibility, who told us of a ‘‘club’’ mentality among some Bureau executives who viewed any criticism or change as a threat to their careers.12

If there was one message from these witnesses, it was that FBI

executives needed to be more willing to admit their mistakes. Too

often their response was to shield the Bureau from embarrassment

by sacrificing accountability and needed reform. For example, Senator Danforth testified that the FBI helped fan the flames of conspiracy theories at Waco by covering up evidence that it used pyrotechnic rounds, even though they had nothing to do with starting

the fire.13 The FBI culture demanded covering up rather than admitting a mistake. Of course, as the FBI painfully discovered, the

price for circling the wagons in this way can be the loss of public

confidence.

The Justice Department Inspector General is in a position to conduct an independent investigation that enables the Attorney General and the FBI Director to hold FBI personnel accountable and

learn the necessary lessons from mistakes. When Director Mueller

was asked at his confirmation hearing about a separate FBI Inspector General, he replied, ‘‘If I were the Attorney General I might

have some concern about a separate Inspector General feeding the

perception that the FBI was a separate institution accountable only

to itself. And I’m not certain in my own mind whether or not what

the accountability you seek cannot be discharged by an Inspector

General with appropriate personnel in the Department of Justice,

as opposed to establishing another Inspector General in the FBI.’’ 14

Attorney General Ashcroft decided to follow this route, and Title I

of the FBI Reform Act would codify his action, while allowing a future report assessing the necessity of future actions to implement

the IG’s new investigative jurisdiction.

At the Committee hearing on lessons of the Oklahoma City

bombing case, Justice Department Inspector General Glenn A. Fine

stated that this provision ‘‘should be in the law so that people will

know it will continue, and that another attorney general . . . whatever he or she decides and knows . . . that it is the law that the

inspector general has full authority throughout the Department of

Justice.’’ 15 He further stated,’’[o]n July 11, 2001, Attorney General

Ashcroft issued an order that amended 28 CFR Parts 27 and 29 to

provide the OIG with jurisdiction to investigate allegations of misconduct by FBI and DEA employees. However, legislation embodying the OIG’s new jurisdictional authorities would ensure the permanency of this order. . . . A system that depends on permission

from the Attorney General or the Deputy Attorney General for the

9

16 Answers of Glenn Fine, Inspector General, to written questions of Chairman Patrick Leahy,

U.S. Senate Committee on the Judiciary Hearing, ‘‘Reforming the FBI in the 21st Century: Lessons of the Oklahoma City Bombing Case,’’ June 20, 2001. 17Statement of Michael Bromwich, former Inspector General, U.S. Senate Committee on the

Judiciary Hearing, ‘‘Oversight: Restoring Confidence in the FBI,’’ June 20, 2001, p. 96. 18 U.S. Senate Committee on the Judiciary Hearing, ‘‘Reforming FBI Management: The Views

From Inside and Out,’’ July 18, 2001. 19Statement of Judge William Webster, Former FBI Director, U.S. Senate Committee on the

Judiciary Hearing, ‘‘Reforming the FBI in the 21st Century: Lessons of the Hanssen Espionage

Case,’’ April 9, 2002, p. 28.

OIG to investigate specific matters within the FBI suffers from a

variety of problems. . . . [A]n ad hoc system does little to ensure

that the OIG receives timely and thorough information from the

FBI on allegations of misconduct so that we can decide whether to

request authority to investigate the issue.’’ 16

Michael R. Bromwich, Department of Justice Inspector General

in 1994–1999, concurred, stating, ‘‘I think that all criminal matters

and all administrative misconduct allegations at a certain level of

employee or above should . . . go first to the Inspector General’s

office, and it ought to be up to that office to refer things back to

the FBI. . . . That is exactly the sort of system that has existed

with respect to the internal affairs arms in other Justice Department components that have law enforcement functions—the Marshals Service, the Immigration Service, the Bureau of Prisons, and

so forth.’’ 17

Title II is designed to increase the current protections for whistleblowers within the FBI. The Committee heard disturbing testimony about retaliation against FBI Agents who are tasked to investigate their colleagues or who discuss issues with the Congress,

either directly or through cooperation with the General Accounting

Office, which assists in Congressional oversight.18 Therefore, Title

II is important to ensure that the federal whistleblower protection

laws protect FBI personnel to the greatest extent possible. Senator

Grassley stressed the need for this provision and developing the

language in the bill. The bill would extend whistleblower protections to employees who report wrongdoing to those who have supervisory authority over them in the chain of command or to Congress,

and ensure that whistle blowers are provided with basic procedural

protections, including the normal procedures and judicial review

provided under the Administrative Procedure Act, if they are subjected to retaliation. It also would ensure that those who report

wrongdoing to the Office of the Special Counsel have access to the

normal Merit System Protection Board rights if retaliated against.

Strong whistleblower protections also serve as a potent weapon in

protecting the security of the FBI. When asked about the need for

better whistleblower protection to help enhance the FBI’s security,

Judge Webster testified, ‘‘I think the whistleblower protection as

you provided for will be very useful in answering that problem.’’ 19

The Committee heard highly probative testimony from current

and retired FBI agents on this issue. John E. Roberts, Chief, Internal Investigative Unit, in the FBI Office of Professional Responsibility, FBI, testified, ‘‘To say that there is adequate protection in

the FBI for Whistleblowers, is a position I cannot take. I can say

that, based on my experience in the Ruby Ridge investigation and

the Retirement Party investigation, investigations which I conducted, there are subtle and not so subtle acts of retaliation taken

by senior executives in the FBI for disclosing misconduct on the

10

20Statement of John E. Roberts, FBI’s Office of Professional Responsibility, Chief of Internal

Investigative Unit, U.S. Senate Committee on the Judiciary Hearing, ‘‘Reforming FBI Management: The Views From Inside and Out,’’ July 18, 2001, p. 115. 21Statement of Glenn A. Fine, Inspector General, U.S. Senate Committee on the Judiciary

Hearing, ‘‘Oversight: Restoring Confidence in the FBI,’’ June 20, 2001, p. 46. 22Law Enforcement Ethics Unit at the FBI Academy; FBI Senior Executive Service Accountability: A Higher Standard or a Double Standard (1999). 23 Answers of Patrick Kiernan, Supervisory Special Agent in the FBI Law Enforcement Ethics

Unit, to written questions of Chairman Patrick Leahy, U.S. Senate Committee on the Judiciary

Hearing, ‘‘Reforming FBI Management: The Views From Inside and Out,’’ July 18, 2001.

part of senior executives.’’ 20 Inspector General Glenn A. Fine concurred, stating, ‘‘Even with this [current] mechanism, we believe

that some FBI employees still believe that they will face retaliation

and their careers will be harmed if they report misconduct.... The Committee should consider whether the persons to whom FBI

employees can raise whistleblower complaints—under current regulations the OIG, DOJ OPR, FBI OPR, the Attorney General, the

Deputy Attorney General, the FBI Director, the FBI Deputy Director, or the highest ranking official in an FBI Field Office—is too

limited. . . . [T]he Whistleblower Protection Act that covers most

other federal employees (but not those in the FBI) provides a more

expansive universe of people to whom employees can raise whistleblower complaints.’’ 21 Title II provides for such expansion.

Title VII improves oversight and accountability in the FBI by addressing the issue of a double standard for discipline of senior executives. Internal investigations must lead to fair and just discipline. A troubling internal FBI study that was released at the

Committee’s July hearing documented a double standard at work,

with senior FBI executives receiving a slap on the wrist for the

same kind of conduct that would result in serious discipline for

lower level employees.22 At his confirmation hearing, Director

Mueller said it is ‘‘very important that there be no double standards in accountability. There have been allegations that senior FBI

officials are sometimes treated more leniently than more junior employees. Any such double standard would be fundamentally unfair

and enormously destructive to employee morale.’’ 23

Title VII would embody that principle by eliminating the disparity in authorized punishments between Senior Executive Service members and other federal employees and requiring, for the

first five years, that the annual report (already prepared) of the

FBI’s Office of Professional Responsibility address the doublestandard issue.

In response to written questions, Patrick J. Kiernan, Supervisory

Special Agent in the FBI Law Enforcement Ethics Unit, stated,

‘‘The federal statute (5 U.S.C. Sec. 7542) limiting SES employees’

discipline to letters of censure, removal, or suspensions for more

than 14 days definitely is a contributing factor to the ‘double standard’ in punishment. By excluding suspensions of 3, 5, 7, 10, or 14

days, the statute effectively ties the hands of the Adjudication Unit

of the FBI. Suspensions of this lesser period of time are much more

common than those over 14 days. However, the Adjudication Unit

is precluded from using them against SES personnel. Therefore,

when an infraction occurs that would normally fall within a suspension of 14 days or less, the Adjudication Unit either has to

round-up or round-down. The rounding process seems to usually

favor a member of the SES and results in a simple letter of censure. . . . This is not just a problem for the FBI, but for many fedVerDate 11-MAY-2000 04:41 May 14, 2002 Jkt 099010 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\SR148.XXX pfrm01 PsN: SR148
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24 Answers of Patrick Kiernan, Supervisory Special Agent in the FBI Law Enforcement Ethics 

Unit, to written questions of Chairman Patrick Leahy, U.S. Senate Committee on the Judiciary 

Hearing, ‘‘Reforming FBI Management: The Views From Inside and Out,’’ July 18, 2001. 25Statement of Judge William Webster, Former FBI Director, U.S. Senate Committee on the 

Judiciary Hearing, ‘‘Reforming the FBI in the 21st Century: Lessons of the Hanssen Espionage 

Case,’’ April 9, 2002, p. 21. 

eral agencies. The Office of Personnel Management advised that 

numerous federal agencies had complained to them over the course 

of the last several years that this statute took away the agency’s 

flexibility in assessing discipline (SES report, p. 3).’’ 24 Title VII 

would provide the needed flexibility. 

Title VII is also intended to improve oversight of FBI discipline. 

It requires that, for the next five years, the FBI’s Office of Professional Responsibility complete an annual report of its activities and 

submit that report to the Judiciary Committees through the Department of Justice Office of Inspector General. Included in that report, in addition to basic information about its cases, will be an 

analysis of whether there is any ‘‘double standard’’ being applied 

to discipline of the FBI’s higher ranking officials and an analysis 

of whether the Director, or others tasked with deciding the discipline to be imposed on FBI personnel, are following the recommendations being made by the career internal affairs officers 

who work at the Office of Professional Responsibility. 

2. Security measures 

The provisions of S. 1974 also address serious concerns regarding 

the security of the FBI and the important information which it possesses. The Hanssen espionage case was a tremendous shock to the 

nation and to the FBI. A trusted and experienced FBI Supervisory 

Special Agent was found to have sold many of the nation’s most 

sensitive national security secrets to the Soviet Union and to Russia. Just as the Ames case forced the CIA to revamp its security 

program after 1994, the Hanssen case requires major changes in 

FBI security. Former FBI and CIA Director William Webster 

chaired a commission that reviewed lessons learned from the 

Hanssen case for the Attorney General and the FBI Director, and 

he presented his unclassified findings and recommendations to the 

Senate Judiciary Committee on April 9, 2002. He testified that the 

security provisions of the FBI Reform Act ‘‘offer promise for greater 

security and greater attention to security and greater understanding and training of security within the FBI.’’ 25 Many of the 

original provisions of the FBI Reform Act that were based on the 

oversight activities of the Committee, were echoed in the recommendations of the Webster Commission, and still more of those 

recommendations were incorporated in the substitute amendment 

adopted by the Committee. FBI security is the primary aim of Titles III, IV, V, and VIII of S. 1974. 

Title III of the FBI Reform Act would establish a Career Security 

Program in the FBI and Title IV would establish an FBI Counterintelligence Polygraph Program for screening employees and contractors in exceptionally sensitive positions with specific safeguards, both of which were recommended by the Webster Commission. In addition, as a result of concerns about terrorist attacks 

against FBI targets and a lack of internal security also documented 

in the Webster Commission’s report, Title V would authorize an 

FBI police force as part of comprehensive security enhancements. 

12

26Statement of Judge William Webster, Former FBI Director, U.S. Senate Committee on the 

Judiciary Hearing, ‘‘Reforming the FBI in the 21st Century: Lessons of the Hanssen Espionage 

Case,’’ April 9, 2002, p. 21. 27 It is the Committee’s strong desire that the Webster Commission’s recommendation that 

such position be one which reports directly to the Director, be heeded. 

Based on specific Webster Commission recommendations, Title VIII 

has been added to provide to enhance the security of the Department of Justice and the handling of Foreign Intelligence Surveillance Act (FISA) information. Judge Webster testified about S. 

1974, stating, ‘‘Mr. Chairman, I believe that all of those suggestions which are incorporated in your bill offer promise for greater 

security and greater attention to security and greater understanding and training of security within the FBI.’’ 26

The FBI Career Security Program in Title III would bring the 

FBI into line with other U.S. intelligence agencies that have strong 

career security professional cadres whose skills and leadership are 

dedicated to the protection of agency information, personnel, and 

facilities. The challenges of espionage, information technology vulnerability, and the FBI’s high profile as a target of terrorist attack 

require that the FBI match or exceed the best security programs 

in the intelligence and national security community. This can only 

be achieved by a fundamental change that reverses the tendency, 

found too often in civilian agencies, to treat security as a secondary 

mission and security assignments as obstacles to career advancement. Before the Hanssen case, an FBI Special Agent experienced 

as a criminal investigator might be assigned for a few years to a 

security position and then move on without building continuity of 

security expertise. Turnover in FBI security work was high, and 

the top rank was Headquarters Section Chief. 

Director Mueller has begun to change direction by creating an 

Assistant Director position to head a new Security Division and by 

supporting the principle of a Security Career Program.27 Title III 

of the FBI Reform Act would provide the statutory mandate and 

tools to achieve this goal based on the experience of the Defense 

Department in reforming its acquisition career program. The key 

requirements are leadership and accountability in a Security Director, creation of security career program boards, designation of security positions, identification of security career paths requiring appropriate training and experience, and development of education 

programs for security professionals. To help ensure that security 

professionals gain stature comparable to Special Agents, the program would limit the preference for Special Agents in considering 

persons for security positions. FBI security managers would complete a security management course accredited by the Joint Security Training Consortium recently formed by the Intelligence Community and the Department of Defense. If such a course is not 

available, the FBI Director could substitute a comparable course. 

In response to written questions, Kenneth H. Senser, Assistant 

Director in charge of the FBI Security Division, stated, ‘‘Currently, 

FBI Security Officers are not selected based on a specific set of required knowledge, skills, or abilities related to security. Security 

Officers experience a large turnover rate, receive little formal training and often have other collateral duties outside of the security 

field requiring them to split their attention between several program areas. The security field is not seen as career enhancing for 

13

28 Answers of Kenneth Senser, Assistant Director in charge of FBI’s Security Division, to written questions of Chairman Patrick Leahy, U.S. Senate Committee on the Judiciary Hearing, 

‘‘Reforming FBI Management: The Views From Inside and Out,’’ July 18, 2001. 29 United States Department of Justice, Commission for the Review of FBI Security Programs; 

A Review of FBI Security Programs, p. 93 (2002). 

Special Agents and they are usually not held in high esteem within 

the organization. Security Officers chosen from a professional support track are not always taken seriously because they are not Special Agents. Both of these factors result in a lack of credibility and 

a recurring cycle where highly capable employees are not assigned 

to the security function because it is views as a waste of their talents. . . . Legislative standards could be helpful.’’ 28

The FBI Counterintelligence Polygraph Program that would be 

established under Title IV of the Act also addresses the security 

issue. Title IV recognizes the security value of polygraph screening, 

but provides specific safeguards for those who may be subject to adverse action based on polygraph exams. Screening procedures must 

address the problem of ‘‘false positive’’ responses, limit adverse actions taken solely by reason of physiological reactions in an examination, ensure quality assurance and control, and allow subjects to 

have prompt access to unclassified reports on examinations that relate to adverse actions against them. Title IV is based upon the 

simple conviction that increased security and protection of employee rights can and must coexist at the FBI. 

Title V of the Act would provide long overdue statutory authorization for a permanent FBI Police force, to protect critical FBI facilities. It would provide the men and women who currently guard 

the highest risk targets with the same pay and benefits as members of the Uniformed Division of the United States Secret Service. 

Today the FBI police force operates under delegated authority from 

the General Services Administration and apparently has been unable to retain skilled personnel at a rate commensurate with the 

threat and the need for experienced leadership. The FBI Reform 

Act would bring the FBI police force generally into line not only 

with the Uniformed Division of the Secret Service, but also with 

the Capitol Police and the Supreme Court police. It is intended to 

be implemented in a manner consistent with the current Memorandum of Agreement between the FBI and the Metropolitan Police 

Force of the District of Columbia with respect to the delineation of 

areas surrounding FBI buildings and grounds covered in Washington, D.C., and the act is not intended to diminish the authority 

of any other law enforcement agency. 

Title VIII responds to the Webster Commission’s statement that 

the Security and Emergency Planning Staff of the Justice Department ‘‘seems to suffer from many of the structural weaknesses that 

led us to recommend creation of an Office of Security in the Bureau, weaknesses such as inadequate resources and insufficient 

stature within the Department’s structure.’’ 29 The Commission also 

discussed the Department’s Office of Intelligence Policy and Review 

(‘‘OIPR’’), which handles Foreign Intelligence Surveillance Act 

(‘‘FISA’’) matters, and specifically noted that ‘‘the absence of secure 

computer links between the FBI and OIPR requires that classified 

FISA documents be carried by hand between DOJ and Headquarters, creating risks to the physical security of the docuVerDate May 13 2002 02:34 May 14, 2002 Jkt 079557 PO 00000 Frm 00013 Fmt 6659 Sfmt 6602 E:\HR\OC\SR148.XXX pfrm17 PsN: SR148
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30 United States Department of Justice, Commission for the Review of FBI Security Programs; 

A Review of FBI Security Programs, p. 83 (2002). 31Section 1.14 of Executive Order 12333 (1981) states: ‘‘Under the supervision of the Attorney 

General and pursuant to such regulations as the Attorney General may establish, the Director 

of the FBI shall: 

(a) Within the United States conduct counterintelligence and coordinate counterintelligence 

activities of other agencies within the Intelligence Community. When a counterintelligence activity of the FBI involves military or civilian personnel of the Department of Defense, the FBI shall 

coordinate with the Department of Defense; 

(b) Conduct counterintelligence activities outside the United States in coordination with the 

CIA as required by procedures agreed upon by the Director of Central Intelligence and the Attorney General; 

(c) Conduct within the United States, when requested by Officials of the Intelligence Community designated by the President, activities undertaken to collect foreign intelligence or support 

foreign intelligence collection requirements of other agencies within the Intelligence Community, 

or, when requested by the Director of the National Security Agency, to support the communications security activities of the United States Government; 

(d) Produce and disseminate foreign intelligence and counterintelligence; and 

(e) Carry out or contract for research, development, and procurement of technical systems and 

devices relating to the functions authorized above.’’ The National Security Act of 1947, as amended, defines the ‘‘intelligence community’’ in 50 

U.S.C. 401a(4) to include ‘‘the intelligence elements of . . . the Federal Bureau of Investigation’’ and implies in 50 U.S.C. 401a(5) that the FBI conducts counterintelligence activities, but does 

not provide express statutory authority for FBI intelligence activities. By contrast, such express 

authority is provided for the CIA and the intelligence elements of the Department of Defense. 

ments.’’ 30 Title VIII would require a report from the Attorney General on plans to enhance Justice Department security and would 

authorize additional funds for the security staff and OIPR. 

The OIPR authorization is consistent with an amendment for additional funding offered by Chairman Leahy to S. 2089, the ‘‘Counterintelligence Reform Act,’’ and accepted by the Senate Judiciary 

Committee when that legislation was reported by the Judiciary 

Committee in 2000 and included, in modified form, in the Intelligence Authorization Act for FY 2001. 

3. Preparing the FBI for the 21st century 

The Attorney General has directed Deputy Attorney General 

Thompson to lead a management review of the FBI, while Director 

Mueller has already begun reorganizing the Bureau. Congress 

must participate in reviewing the FBI’s structure and identifying 

its future priorities. The FBI is being called on today to protect the 

national security from terrorist and intelligence threats mounted 

from abroad. FBI investigations now extend overseas far more 

often because of our government’s decision to use law enforcement 

as an instrument of national security along with diplomacy, military deployments, and intelligence operations. At the same time, 

the FBI must continue to handle other uniquely federal areas of 

criminal enforcement, such as complex economic crime, complex 

criminal enterprises, civil rights, environmental, and antitrust enforcement. Title VI would require a set of reports to enable the 

Congress to engage the Executive branch in a constructive dialogue 

on building a more effective FBI for the future. 

To help chart the FBI’s course, Title VI would direct the Attorney 

General to submit a comprehensive report on the legal authorities 

for FBI programs and activities. The FBI does not have express 

statutory authority for its intelligence and counterintelligence activities, but relies primarily on an Executive order for its basic 

legal authority to conduct these extensive and costly programs that 

are vital for protecting the United States against international terrorism.31 In the late 1970s, the Judiciary Committee considered enactment of a legislative charter for the FBI that would spell out its 

15

32Statement of Bob Dies, FBI Chief Technology Officer, U.S. Senate Committee on the Judiciary Hearing, ‘‘Reforming the FBI in the 21st Century: Lessons of the Oklahoma City Bombing 

Case,’’ March 21, 2002, p. 65. 

authorities and responsibilities. That proposal was set aside in 

1980 despite determined efforts by then-Judiciary Committee 

Chairman Kennedy, FBI Director Webster, and Attorney General 

Civiletti to reach agreement. The time may be ripe to revive consideration of this effort. 

The FBI is evaluating whether and how to continue to have responsibility for the broad range of investigations that it is currently 

expected to conduct. The extent to which criminal law enforcement 

has been over-federalized and responsibilities, which are not 

uniquely federal, should be handled primarily by the states is a 

matter that requires Congressional input. In addition, even among 

federal law enforcement agencies, federal law enforcement personnel perform redundant and overlapping functions and missions. 

The bill would direct the Attorney General to recommend whether 

the FBI should continue to have all its current investigative responsibilities, whether existing legal authority for any FBI program or activity should be modified or repealed, and whether the 

FBI must or should have express statutory authority for new or existing programs or activities. 

Title VI recognizes that the task of modernizing FBI’s information technology and management is as important as setting the 

FBI’s future missions. This need was clearly demonstrated by the 

Webster Commission report and the report of the Justice Department Inspector General on the belated production of FBI documents in the Oklahoma City bombing case, as presented to the 

Committee at a hearing on March 21, 2002. Judiciary Committee 

oversight hearings have documented, and Director Mueller has acknowledged, that the FBI must overcome years of neglect in this 

regard. Congress is providing the funds requested for information 

technology improvements, especially in the FY 2002 

Counterterrorism Supplemental. The Congress must ensure, however, that the FBI can and does use these funds effectively. 

There is concern that the FBI may need greater flexibility than 

is allowed under current law to procure new information technologies. Title VI directs the Attorney General to address these 

concerns in a comprehensive report on a ten-point plan for FBI information management and technology. Bob Dies, FBI Chief Technology Officer, testified about S. 1974, ‘‘The part of it that relates 

to information management, frankly, I thought you had both creative and constructive ideas in there, and I would hope you’re successful in getting these enacted.’’ 32

Finally, Title VI would require the Comptroller General to investigate and complete a report on how statistics are reported and 

used by Federal law enforcement agencies, including the FBI. Senator Grassley has focused attention on the question whether the 

FBI and other agencies may be double-counting criminal investigations and arrests in the reporting of accomplishments. There is also 

a need to ascertain whether the FBI and other agencies properly 

use the statistics which they compile in making management decisions, including decisions to prioritize certain programs and the 

evaluation either of a program or an employee’s performance. It is 

important to get the facts and recommendations that put the FBI 

16

into the context of the full spectrum of Federal law enforcement 

agencies. Title VI would ensure that the GAO can complete this 

important task by requiring agencies to comply with its requests 

for the information that is necessary to assist in preparing this report. 

4. Continuing oversight responsibilities

The FBI Reform Act of 2002 is just one part of the Judiciary 

Committee’s bipartisan, hands-on approach to FBI reform. Committee oversight hearings considered other significant issues arising from the Justice Department Inspector General’s report on the 

belated production of documents in the Oklahoma City bombing 

case and the report of Judge Webster’s Commission on the security 

lessons of the Robert Hanssen espionage case. The Committee also 

will also monitor the actions and goals of Director Mueller and 

Deputy Attorney General Thompson in reorganizing the FBI and 

charting its management course for the future. 

At the same time, the Committee is focusing oversight attention 

on key aspects of FBI and law enforcement performance in connection with the September 11 terrorist attacks and the lessons 

learned for developing an effective counterterrorism and homeland 

security program. As contemplated by the sunset provisions in the 

USA PATRIOT Act, the Committee must monitor the implementation of new surveillance and investigative powers provided to 

strengthen counterterrorism efforts and, in some provisions, law 

enforcement and counterintelligence generally. 

The FBI Reform Act is designed to strengthen the FBI as an institution that has a unique role as both a law enforcement agency 

and a member of the intelligence community. As the Judiciary 

Committee continues its oversight work and more is learned about 

recent FBI performance, additional legislation may prove necessary. Especially important will be the lessons from the attacks of 

September 11, 2001, the anthrax attacks, and implementation of 

the USA PATRIOT Act and other counterterrorism measures. 

Strengthening the FBI cannot be accomplished overnight, but enactment of the FBI Reform Act of 2002 will take an important step 

into the future. 

B. SECTION-BY-SECTION ANALYSIS OF S. 1974

Section 1. Short title 

This section provides a short title: the ‘‘Federal Bureau of Investigation Reform Act of 2002.’’

Title I. Improving FBI Oversight. Title I provides for improved 

Department of Justice (‘‘DOJ’’) and Congressional oversight of the 

FBI by ensuring that the DOJ Office of the Inspector General 

(‘‘OIG’’) is authorized by statute to investigate allegations of misconduct at the FBI and requiring a report to the Judiciary Committees on how the OIG carries out this new authority. 

Section 101. Authority of Department of Justice Inspector General 

This section would amend Section 8E of the Inspector General 

Act of 1978 (5 U.S.C. App.) to provide explicit statutory authority 

for the OIG to investigate all allegations of criminal or administrative misconduct by DOJ employees, including FBI personnel. The 

17

OIG is also authorized to refer certain matters to the FBI Office 

of Professional Responsibility or to the internal affairs office of the 

appropriate component of the Department. The Attorney General is 

directed to promulgate regulations implementing this OIG authority. 

For many years, the FBI was excluded from OIG jurisdiction and 

the FBI’s own internal Office of Professional Responsibility had 

sole authority to investigate FBI personnel misconduct, unless the 

Attorney General made an exception. The exclusive domains of the 

FBI and the Drug Enforcement Administration to investigate their 

own misconduct were unique in the Department and created the 

appearance of a conflict of interest. On July 11, 2001, Attorney 

General Ashcroft issued a new rule expanding the OIG’s jurisdiction over the FBI and DEA. This section is consistent with, and 

codifies, the Attorney General’s new rule. This section clarifies and 

buttresses the long accepted proposition that the Attorney General 

has the authority to discipline agency heads within the Department of Justice and ensures appropriate Congressional oversight 

regarding such decisions. 

Section 102. Review of the Department of Justice 

To ensure that the OIG has the necessary structure and resources to effectively assume its new jurisdiction over the FBI and 

that the Congress is fully informed of such needs, this subsection 

requires the Inspector General to: (1) appoint an official to help supervise and coordinate oversight operations and programs of the 

FBI during the transition period; and (2) conduct a comprehensive 

study of the FBI and report back to the Judiciary Committees with 

a plan for auditing and evaluating various parts of FBI (including 

information technology) and for effective continued OIG oversight. 

The Attorney General is required to report back to the Judiciary 

Committee on whether an Inspector General for the FBI should be 

established. This section requires that the Attorney General similarly report on what actions are being taken, or need to be taken, 

in order to ensure proper investigation and discipline of FBI employees, whether uniform standards for investigating Department 

of Justice misconduct are being established, and whether recommended disciplinary guidelines should be established for Department of Justice employees who engage in misconduct. 

Title II. Whistleblower Protection. This title amends Title 5, 

U.S.C. §2303, to enhance the whistle blower protection provided to 

FBI employees and protect them from retaliation. 

Section 201. Providing whistle blower protection for FBI employees 

Section 201 would amend Section 2303 of title 5, United States 

Code, to expand the types of disclosures that trigger whistle blower 

protections by protecting disclosures, which the employee ‘‘reasonably believes’’ evidence misconduct, to the OIG, the Congress, a 

person with supervisory authority over the employee, or the Special 

Counsel (an office associated with enforcement before the Merit 

Systems Protection Board (‘‘MSPB’’) provided for by 5 U.S.C. 

§1214). The employees’ ‘‘reasonable belief’’ is intended to be interpreted using a normal, objective standard which courts apply in a 

wide variety of cases both inside and outside the governmental context, and is specifically not intended to adopt the standard set forth 

18

in LaChance v. White, 174 F.3d 1378 (Fed. Cir. 1999). The amendment would also ensure that the procedural protections of the Administrative Procedure Act, including but not limited to, 5 U.S.C. 

sections 554–57 and 701–706, would be followed in cases where a 

complaint of retaliation was made by an FBI employee. These procedural protections include, among other things, an impartial decision maker and decision based on the ‘‘record’’ of any proceedings 

without ex parte contacts, and judicial review as provided. Current 

laws and regulations which allow for the protection of classified 

material would also be available for such proceedings in appropriate situations and upon proper showings. The amendment, in 

new subsection (c), provides an individual right of action as provided under Chapter 12 of Title 5 before the MSPB. The amendment, in new subsection (d), requires the Attorney General to prescribe regulations to ensure that the title is properly enforced at 

the FBI. 

Title III. FBI Security Career Program. Title III would require 

the FBI to establish a career security program to enhance the internal security of the FBI and ensure that appropriate management tools and resources are devoted to that task. Security professional career development requirements are modeled generally on 

the statutory Department of Defense Acquisition Career Program. 

Section 301. Security management policies 

Section 301 would require the Attorney General to establish policies and procedures for career management of FBI security personnel. 

Section 302. Director of the Federal Bureau of Investigation 

Section 302 would authorize the Attorney General to delegate to 

the FBI Director the Attorney General’s duties with respect to the 

FBI security workforce and sets forth that the security career program will cover both headquarters and the FBI field offices. 

Section 303. Director of security 

Section 303 would direct the FBI Director to appoint a Security 

Director. It is the Committee’s intention that this official have unfettered, direct access to the Director of the FBI. The Security Director may have such other title as the FBI Director may determine. However, the Security Director not be an official with extensive non-security responsibilities that would dilute his or her focus 

on security matters. 

Section 304. Security career program boards 

Section 304 would provide for the establishment of a security career program board to advise in managing hiring, training, education, and career development. 

Section 305. Designation of security positions 

Section 305 would direct the FBI Director to designate certain 

positions as security positions, with responsibility for personnel security and access control, information systems security, information 

assurance, physical security, technical surveillance countermeasures, operational, program and industrial security, and information security and classification management. 

19

Sections 306. Career development 

Section 306 would require that career paths to senior positions 

be published. FBI Special Agents would not have preference for a 

security position, and no positions would be restricted to Special 

Agents unless the Attorney General makes a special determination. 

All FBI personnel would have the opportunity to acquire the education, training and experience needed for senior security positions. 

The Attorney General would ensure that policies are designed to 

select the best qualified individuals, consistent with other applicable law. Consideration would also be given to the need for a balanced workforce. 

Section 307. General education, training, and experience requirements 

Section 307 would direct that education, training, and experience 

requirements would be established for each position. Before assignment as manager or deputy manager of a significant security program, a person would have to complete a security program management course accredited by the Joint Department of Defense-Intelligence Security Training Consortium or determined to be comparable by the Director, and have 6 years security experience including 2 years in a similar program. 

Section 308. Education and training programs 

Section 308 would direct the Director, in consultation with the 

Director of Central Intelligence and Secretary of Defense, to establish education and training programs for FBI security personnel 

that are, to the maximum extent practical, uniform with Intelligence and Department of Defense programs. 

Section 309. Office of Personnel Management approval 

Section 309 would set forth the process for approval of requirements set forth under section 307. 

Title IV. FBI counterintelligence polygraph program. This title 

would require the Attorney General to establish an FBI Counterintelligence Polygraph Program for personnel in exceptionally sensitive positions that reflects consideration of the results of a pending National Academy of Sciences review of the validity of the polygraph within 6 months after publication of that review. The regulations would be prescribed in accordance with the Administrative 

Procedures Act. A similar requirement for the Department of Energy was passed in the latest Defense Authorization Act. 

Section 401. Definitions 

Section 401 would define the term ‘‘polygraph program’’ to mean 

the counterintelligence screening polygraph program established 

under section 402. The term ‘‘Polygraph Review’’ would be defined 

to mean the review of the scientific validity of the polygraph for 

counterintelligence screening purposes conducted by the Committee 

to Review the Scientific Evidence on the Polygraph of the National 

Academy of Sciences. 

Section 402. Establishment of program 

Section 402 would require the establishment of a counterintelligence screening polygraph program consisting of periodic polyVerDate May 13 2002 02:34 May 14, 2002 Jkt 079557 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 E:\HR\OC\SR148.XXX pfrm17 PsN: SR148
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graph examinations of employees and contractors in positions, as 

specified by the Director, as exceptionally sensitive. This program 

shall be established within 6 months of the publication of the results of the report of the Committee to Review the Scientific Evidence on the Polygraph of the National Academy of Sciences. 

Section 403. Regulations 

Section 403 would direct that the program have procedures that 

address ‘‘false positive’’ results and ensure quality assurance and 

control in accordance with guidance from the Department of Defense Polygraph Institute and the DCI. No adverse personnel action could be taken solely by reason of physiological reaction on an 

exam without further investigation and personal decision by the 

Director. Employees could have prompt access to unclassified reports of their exams that relate to adverse personnel action. It is 

intended that the FBI develop program to use the polygraph as a 

tool to enhance its security, but not that the polygraph be used as 

a substitute for independent judgment and investigation, which are 

the hallmarks of a strong security program. 

Section 404. Report on further enhancement of FBI personnel security program 

Section 404 would require a report within 9 months of the enactment of the Act on any further legislative action appropriate in the 

personnel security area. 

Title V. FBI police. This title would provide statutory authorization for an already existing FBI police force that protects FBI 

buildings and adjacent streets. This police force is important to protect the FBI both from terrorist attack as well as ensuring that 

sensitive information cannot be easily smuggled out of the FBI. 

Currently, the FBI police suffer from a high rate of turnover due 

to lower pay and fewer benefits than the Uniformed Division of Secret Service or Capitol and Supreme Court police. This title would 

close this disparity.

Section 501. Definitions 

Section 501 would define the terms ‘‘Director,’’ ‘‘FBI buildings 

and grounds,’’ and ‘‘FBI police’’ as used in the title. 

Section 502. Establishment of FBI police; duties 

Section 502 would authorize the FBI Director to establish the 

FBI police, subject to the Attorney General’s supervision, to protect 

persons and property within FBI buildings and grounds, including 

adjacent streets and sidewalks within 500 feet. FBI buildings and 

grounds would include any building occupied by the FBI and subject to FBI supervision and control, the land on which such building is situated, and enclosed passageways connecting such buildings. FBI police would be uniformed representatives of the FBI 

with authority to make arrests and otherwise enforce federal and 

D.C. laws, carry firearms, prevent breaches of the peace, suppress 

unlawful affrays and unlawful assemblies, and hold the same powers as sheriffs and constables. FBI police would not have authority 

to serve civil process. Pay and benefits would be equivalent to pay 

and benefits for the Secret Service Uniformed Division. 

21

Section 503. Authority of metropolitan police force 

Section 503 would provide that the authority of the Washington, 

D.C. Metropolitan Police (‘‘MPD’’) would not be affected by this 

title. The Committee intends that the terms of the current Memorandum of Understanding between the FBI and the MPD, including the geographic bounds of FBI police jurisdiction, would not be 

altered by this section. This section is intended to enhance the ability of the FBI to retain qualified employees and to protect its facilities, it is not intended to diminish the police powers or authority 

of the MPD or of any other federal, state or local law enforcement 

agency. 

Title VI. Reports. This title would require two separate reports 

by the Attorney General and one by the General Accounting Office. 

Section 601. Report on legal authority for FBI programs and activities 

Section 601 would require the Attorney General to submit a report to Congress on the legal authority for FBI programs and activities, identifying those that have express statutory authority and 

those that do not. The FBI does not have a statutory charter. One 

was proposed in 1979 but never enacted. Many FBI functions including its national intelligence and counterintelligence activities 

are authorized by Executive order rather than by statute, which 

means they could be revoked by future Executive order unless legislation is enacted. This section also requires the Attorney General 

to recommend the criminal statutes for which the FBI should have 

investigative responsibility, whether the authority for any FBI program or activity should be modified or repealed, whether the FBI 

should have express statutory authority for any program or activity 

for which it does not currently have such authority, and whether 

the FBI should have authority for any new program or activity. 

The Committee intends that the FBI evaluate which of its current 

programs are key to its future mission, and which are not. For 

those programs which it needs additional authority, the Committee 

requires its recommendations. For those programs upon which the 

FBI believes it should not longer focus, the Committee intends that 

the FBI recommend appropriate ‘‘exit strategies’’ so that law enforcement can be shifted to other local, state, and federal agencies. 

Section 602. Report on FBI information management and technology 

Section 602 would require the Attorney General to submit a report on FBI information management and technology, including 

whether additional authority is needed to waive normal procurement regulations in order for the FBI to effectively perform its 

functions. The report would provide the results of pending Justice 

Management Council studies and Inspector General audits and 

would require submission of a 10-point plan for improving FBI information management and technology to ensure that: (1) appropriate FBI technology management positions are filled by personnel 

with commercial sector experience; (2) access to the most sensitive 

information is audited so that suspicious activity is subject to near 

contemporaneous review; (3) critical information systems employ a 

public key infrastructure; (4) security features are tested by the 

National Security Agency; (5) FBI employees receive annual inVerDate May 13 2002 02:34 May 14, 2002 Jkt 079557 PO 00000 Frm 00021 Fmt 6659 Sfmt 6602 E:\HR\OC\SR148.XXX pfrm17 PsN: SR148
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struction in records and information management; (6) a research 

and development reserve is established; (7) undue requirements for 

less costly software purchases are eliminated; (8) contracting with 

an expert technology partner is considered; (9) procedures are instituted to procure through contracts of other agencies as necessary; 

and (10) system upgrades are tested before operational deployment. 

Section 603. GAO report on crime statistics reporting 

Section 603 would require the General Accounting Office to investigate and report on how crime statistics are counted, reported, 

and used by Federal law enforcement agencies. Specifically, the report would identify policies that allow credit for a single case to be 

claimed or reported by more than one law enforcement agency, the 

conditions that allow such reporting to occur, the number of such 

cases reported during a 4-year period, similar multiple claims of 

credit for arrests, the use or misuse of such statistics for administrative and management purposes, and relevant definitions. The 

report would include recommendations for how to eliminate unwarranted and duplicative reporting and whether such statistics are 

being improperly used for management and administrative purposes, including whether enforcement priorities or career advancement are overly dependent on the generation of such statistics. 

Federal law enforcement agencies would be required to comply 

with GAO requests for information necessary to prepare the report. 

Title VII. Ending the Double Standard. This title would address 

the issue of the ‘‘double standard’’ in the FBI, to prevent lower 

level employees from being more harshly disciplined than senior 

FBI officials for the same misconduct. Indeed, it is the Committee’s 

intention that higher level employees be held to a more rigorous 

standard of good conduct. Section 7542 of title 5, United States 

Code, would be amended to allow disciplinary suspensions of SES 

members for 14 days or less, as is the case for other federal personnel. Current law provides only for suspension ‘‘for more than 14 

days.’’ The substitute amendment adopted by the Committee adds 

section 702 to require submission of certain reports to be completed 

by the FBI Office of Professional Responsibility. 

Section 701. Allowing disciplinary suspensions of members of the 

senior executive service for 14 days or less 

This section would lift the minimum of 14 days suspension that 

applies in the FBI’s SES disciplinary cases and thereby provide additional options for discipline in SES cases and encourage equality 

of treatment. The current inflexibility of disciplinary options applicable to SES officials was cited at a Senate Judiciary Committee 

oversight hearing in July, 2001, as one underlying reason for the 

‘‘double standard’’ in FBI discipline. In effect, those deciding the 

discipline of SES employees are often left with the choice of an 

overly harsh penalty or no penalty at all—so they decide not to impose any meaningful disciplinary action. This provision would remove that rationale for not imposing meaningful discipline on high 

level employees. 

23

Section 702. Submitting office of professional responsibility reports 

to congressional committees 

This section would require the OIG to submit to the Judiciary 

Committees, for five years, annual reports to be prepared by the 

FBI Office of Professional Responsibility summarizing its investigations, recommendations, and their disposition, and also would require that such annual reports include an analysis of whether any 

double standard is being employed for FBI disciplinary action. It is 

intended that both the Inspector General and the Committee monitor closely for the next five years the progress being made on the 

imposition of discipline at the FBI. 

Title VIII. Enhancing Security at the Department of Justice. The 

substitute amendment adopted by the Committee adds this title to 

implement recommendations of the Webster Commission for enhancing security at the Department of Justice, which handles sensitive FBI and national security information, and for secure communication of information shared between the FBI and the DOJ 

Office of Intelligence Policy and Review regarding Foreign Intelligence Surveillance Act matters. 

Section 801. Report on the protection of security and information at 

the Department of Justice 

This section would require the Attorney General to submit a report to Congress on the manner in which the DOJ Security and 

Emergency Planning Staff, Office of Intelligence Policy and Review, 

and DOJ Chief Information Officer plan to improve the protection 

of security and information at DOJ, including a plan to establish 

secure communications between the FBI and OIPR for processing 

information related to the Foreign Intelligence Surveillance Act. 

Section 802. Authorization for increased resources to protect security 

and information 

This section would authorize funds for the DOJ Security and 

Emergency Planning Staff to meet the increased demands to provide personnel, physical, information, technical, and litigation security for the DOJ, to prepare for terrorist threats and other emergencies, and to review security compliance by DOJ components. 

Amounts authorized would be $13 million for FY 03, $17 million 

for FY 04, and $22 million for FY 05. 

Section 803. Authorization for increased resources to fulfill national 

security mission of the Department of Justice 

This section would authorize funds for the DOJ Office of Intelligence Policy and Review to help meet the increased personnel demands to combat terrorism, process applications to the Foreign Intelligence Surveillance Court, participate effectively in counterespionage investigations, provide policy analysis and oversight on 

national security matters, and enhance computer and telecommunications security. Amounts authorized would be $7 million for FY 

03, $7.5 million for FY 04, and $8 million for FY 05. 

VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with paragraph 11(a) of rule XXVI of the standing 

Rules of the Senate, the Committee sets forth, with respect to the 

24

bill, S. 1974, the following estimate and comparison prepared by 

the Director of the Congressional Budget Office under section 403 

of the Congressional Budget Act of 1974:

MAY 6, 2002. 

Hon. PATRICK J. LEAHY, Chairman, Committee on the Judiciary, 

United States Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 1974, the Federal Bureau 

of Investigation Reform Act of 2002. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mark Grabowicz. 

Sincerely, 

DAN L. CRIPPEN. Enclosure.

S. 1974—Federal Bureau of Investigation Reform Act of 2002

Summary: S. 1974 would direct the Attorney General and the Director of the Federal Bureau of Investigation (FBI) to implement 

certain management reforms and take other measures to improve 

oversight and security at the FBI. The bill would upgrade the pay 

and benefits of the FBI police force to equal the compensation 

package of the United States Secret Service Uniformed Division, 

beginning January 1, 2003. S. 1974 also would require the General 

Accounting Office and the Department of Justice (DOJ) to prepare 

several reports, mostly relating to security and management issues. 

Finally, the bill would authorize the appropriation of: A total of $52 million over the 2003–2005 period for DOJ’s 

Security and Emergency Planning Staff to improve security in 

the agency’s physical plant and computer systems and to prepare for terrorist threats and other emergencies; and A total of $23 million over the 2003–2005 period for DOJ’s 

Office of Intelligence Policy and Review to combat terrorism 

and espionage, analyze national security policy, and improve 

its security. 

Assuming appropriation of the necessary amounts, CBO esti- mates that implementing S. 1974 would cost $90 million over the 

2003–2007 period. This legislation would not affect direct spending 

or receipts, so pay-as-you-go procedures would not apply. S. 1974 

contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) and would 

not affect the budgets of state, local, or tribal governments. 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 1974 is shown in the following table. The costs 

of this legislation fall within budget function 750 (administration 

of justice).

By fiscal year, in millions of dollars—

2003 2004 2005 2006 2007

CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Upgraded pay and benefits for FBI police: 

Estimated authorization level .......................................... 2 3 3 3 3

Estimated outlays ............................................................ 2 3 3 3 3

Security and emergency planning staff: 

Authorization level ............................................................ 13 17 22 0 0

25

By fiscal year, in millions of dollars—

2003 2004 2005 2006 2007

Estimated outlays ............................................................ 10 16 21 4 0

Office of intelligence policy and review: 

Authorization level ............................................................ 7 8 8 0 0

Estimated outlays ............................................................ 6 7 8 2 0

Reports and management reforms: 

Estimated authorization level .......................................... 1 (1) (1) (1) (1) 

Estimated outlays ............................................................ 1 (1) (1) (1) (1) 

Total changes: 

Estimated authorization level ................................. 23 28 33 3 3

Estimated outlays ............................................................ 19 26 32 9 3

1 Less than $500,000. 

Basis of estimate: For this estimate, CBO assumes that the authorized amounts will be appropriated by the beginning of each fiscal year and that outlays will follow the historical spending rates 

for these activities. 

Based on information from the FBI, CBO estimates that implementing the provisions of S. 1974 relating to pay and benefits for 

about 200 members of the FBI police force would cost about $2 million in fiscal year 2003 and about $3 million in each year thereafter. 

CBO estimates that the reports and management reforms required by the bill would cost about $1 million in fiscal year 2003 

and less than $500,000 in each year thereafter, subject to the availability of appropriations.

Pay-as-you-go considerations: None. 

Intergovernmental and private-sector impact: S. 1974 contains no 

intergovernmental or private-sector mandates as defined in UMRA 

and would not affect the budgets of state, local, or tribal governments. 

Estimate prepared by: Federal costs: Mark Grabowicz; Impact on 

state, local, and tribal governments: Angela Seitz; Impact on the 

private sector: Paige Piper/Bach. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

VII. REGULATORY IMPACT STATEMENT

In compliance with paragraph 11(b)(1), rule XXVI of the Standing Rules of the Senate, the Committee, after due consideration, 

concludes that S. 1974 will not have significant regulatory impact.

26

VIII. CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by S. 1974, as 

reported, are shown as follows (existing law proposed to be omitted 

is enclosed in black brackets, new matter is printed in italic, and 

existing law in which no change is proposed is shown in roman): 

UNITED STATES CODE 

* * * * * * *

TITLE 5—GOVERNMENT ORGANIZATION 

AND EMPLOYEES 

* * * * * * *

PART III—EMPLOYEES 

Subpart A—General Provisions

Chapter Section 

21. Definitions ........................................................................................................ 2101

23. Merit system principles ................................................................................... 2301

* * * * * * *

ø§ 2303. Prohibited personnel practices in the Federal Bureau of Investigation 

ø(a) Any employee of the Federal Bureau of Investigation who 

has authority to take, direct others to take, recommend, or approve 

any personnel action, shall not, with respect to such authority, take 

or fail to take a personnel action with respect to any employee of 

the Bureau as a reprisal for a disclosure of information by the employee to the Attorney General (or an employee designated by the 

Attorney General for such purpose) which the employee or applicant reasonably believes evidences—

ø(1) a violation of any law, rule, or regulation, or 

ø(2) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or 

safety. 

øFor the purpose of this subsection, ‘‘personnel action’’ means any 

action described in clauses (i) through (x) of section 2302(a)(2)(A) 

of this title with respect to an employee in, or applicant for, a position in the Bureau (other than a position of a confidential, policydetermining, policymaking, or policy-advocating character). 

ø(b) The Attorney General shall prescribe regulations to ensure 

that such a personnel action shall not be taken against an employee of the Bureau as a reprisal for any disclosure of information 

described in subsection (a) of this section. 

ø(c) The President shall provide for the enforcement of this section in a manner consistent with applicable provisions of sections 

1214 and 1221 of this title.¿

27

§ 2303. Prohibited personnel practices in the Federal Bureau 

of Investigation 

(a) DEFINITION.—In this section, the term ‘‘personnel action’’

means any action described in clauses (i) through (x) of section 

2302(a)(2)(A). 

(b) PROHIBITED PRACTICES.—Any employee of the Federal Bureau 

of Investigation who has the authority to take, direct others to take, 

recommend, or approve any personnel action, shall not, with respect 

to such authority, take or fail to take a personnel action with respect 

to any employee of the Bureau or because of—

(1) any disclosure of information by the employee to the Attorney General (or an employee designated by the Attorney General 

for such purpose), a supervisor of the employee, the Inspector 

General for the Department of Justice, or a Member of Congress 

that the employee reasonably believes evidences—

(A) a violation of any law, rule, or regulation; or 

(B) mismanagement, a gross waste of funds, an abuse of 

authority, or a substantial and specific danger to public 

health or safety; or 

(2) any disclosure of information by the employee to the Special Counsel of information that the employee reasonably believes evidences—

(A) a violation of any law, rule, or regulation; or 

(B) mismanagement, a gross waste of funds, an abuse of 

authority, or a substantial and specific danger to public 

health or safety, 

if such disclosure is not specifically prohibited by law and if 

such information is not specifically required by Executive order 

to be kept secret in the interest of national defense or the conduct of foreign affairs. 

(c) INDIVIDUAL RIGHT OF ACTION.—Chapter 12 of this title shall 

apply to an employee of the Federal Bureau of Investigation who 

claims that a personnel action has been taken under this section 

against the employee as a reprisal for any disclosure of information 

described in subsection (b)(2). 

(d) REGULATIONS.—The Attorney General shall prescribe regulations to ensure that a personnel action under this section shall not 

be taken against an employee of the Federal Bureau of Investigation 

as a reprisal for any disclosure of information described in subsection (b)(1), and shall provide for the enforcement of such regulations in a manner consistent with applicable provisions of sections 

1214 and 1221, and in accordance with the procedures set forth in 

sections 554 through 557 and 701 through 706. 

* * * * * * *

SUBPART F—LABOR-MANAGEMENT AND 

EMPLOYEE RELATIONS 

CHAPTER 71—LABOR-MANAGEMENT RELATIONS 

Subchapter I—General Provisions 

* * * * * * *

28

CHAPTER 75—ADVERSE ACTIONS 

* * * * * * *

Subchapter V—Senior Executive Service 

7541. Definitions. 

7542. Actions covered.

* * * * * * *

§ 7542. Actions covered 

This subchapter applies to a removal from the civil service or 

suspension øfor more than 14 days¿, but does not apply to an action initiated under section 1215 of this title, to a suspension or removal under section 7532 of this title, or to a removal under section 3592 or 3595 of this title. 

* * * * * * *

TITLE 5—GOVERNMENT ORGANIZATION 

AND EMPLOYEES 

APPENDIXES

Appendix Page 

1. Reorganization Plans ......................................................................................... 3

2. Federal Advisory Committee Act ...................................................................... 531

3. Inspector General Act of 1978 .......................................................................... 573

* * * * * * *

APPENDIX 3.—INSPECTOR GENERAL ACT OF 1978

Sec. 

1. Short title. 

* * * * * * *

8E. Special provisions concerning the Department of Justice.

§ 8E. Special provisions concerning the Department of Justice 

(a)(1) Notwithstanding the last two sentences of section 3(a), the 

Inspector General shall be under the authority, direction, and control of the Attorney General with respect to audits or investigations, or the issuance of subpenas, which require access to sensitive 

information concerning—

* * * * * * *

(b) In carrying out the duties and responsibilities specified in this 

Act, the Inspector General of the Department of Justice— (1) may initiate, conduct and supervise such audits and investigations in the Department of Justice as the Inspector General considers appropriate; 

ø(2) shall give particular regard to the activities of the Counsel, Office of Professional Responsibility of the Department and 

the audit, internal investigative, and inspection units outside 

the Office of Inspector General with a view toward avoiding 

duplication and insuring effective coordination and cooperation; 

and 

29

ø(3) shall refer to the Counsel, Office of Professional Responsibility of the Department for investigation, information or allegations relating to the conduct of an officer or employee of 

the Department of Justice employed in an attorney, criminal 

investigative, or law enforcement position that is or may be a 

violation of law, regulation, or order of the Department or any 

other applicable standard of conduct, except that no such referral shall be made if the officer or employee is employed in the 

Office of Professional Responsibility of the Department.¿

(2) except as specified in subsection (a) and paragraph (3), 

may investigate allegations of criminal wrongdoing or administrative misconduct by an employee of the Department of Justice, 

or may, in the discretion of the Inspector General, refer such allegations to the Office of Professional Responsibility or the internal affairs office of the appropriate component of the Department of Justice; 

(3) shall refer to the Counsel, Office of Professional Responsibility of the Department of Justice, allegations of misconduct 

involving Department attorneys, investigators, or law enforcement personnel, where the allegations relate to the exercise of 

the authority of an attorney to investigate, litigate, or provide 

legal advice, except that no such referral shall be made if the 

attorney is employed in the Office of Professional Responsibility;

(4) may investigate allegations of criminal wrongdoing or administrative misconduct, including a failure to properly discipline employees, by a person who is the head of any agency 

or component of the Department of Justice; and 

(5) shall forward the results of any investigation conducted 

under paragraph (4), along with any appropriate recommendation for disciplinary action, to the Attorney General, who is authorized to take appropriate disciplinary action.

(c) Any report required to be transmitted by the Attorney General to the appropriate committees or subcommittees of the Congress under section 5(d) shall also be transmitted, within the 

seven-day period specified under such section, to the Committees 

on the Judiciary and Governmental Affairs of the Senate and the 

Committees on the Judiciary and Governmental Operations of the 

House of Representatives.

(d) If the Attorney General does not follow any recommendation 

of the Inspector General made under subsection (b)(5), the Attorney 

General shall submit a report to the chairperson and ranking member of the Committees on the Judiciary of the Senate and the House 

of Representatives that sets forth the recommendation of the Inspector General and the reasons of the Attorney General for not following that recommendation. 

(e) The Attorney General shall ensure by regulation that any component of the Department of Justice receiving a nonfrivolous allegation of criminal wrongdoing or administrative misconduct by an 

employee of the Department of Justice shall report that information 

to the Inspector General. 

* * * * * * *

Æ