[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
EMPOWERING AGENCY OVERSIGHT: VIEWS FORM THE INSPECTORS GENERAL
COMMUNITY
=======================================================================
HEARING
before the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JANUARY 15, 2014
__________
Serial No. 113-81
__________
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee MATTHEW A. CARTWRIGHT,
TREY GOWDY, South Carolina Pennsylvania
BLAKE FARENTHOLD, Texas TAMMY DUCKWORTH, Illinois
DOC HASTINGS, Washington ROBIN L. KELLY, Illinois
CYNTHIA M. LUMMIS, Wyoming DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia PETER WELCH, Vermont
THOMAS MASSIE, Kentucky TONY CARDENAS, California
DOUG COLLINS, Georgia STEVEN A. HORSFORD, Nevada
MARK MEADOWS, North Carolina MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan Vacancy
RON DeSANTIS, Florida
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Stephen Castor, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
C O N T E N T S
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Page
Hearing held on January 15, 2014................................. 1
WITNESSES
The Hon. Peggy E. Gustafson, Inspector General, Small Business
Administration, Chair, Cigie Legislative Committee
Oral Statement............................................... 5
Written Statement............................................ 8
The Hon. Michael E. Horowitz, Inspector General, U.S. Department
of Justice, Member, Cigie Legislative Committee
Oral Statement............................................... 13
Written Statement............................................ 15
Ms. Kathy A. Buller, Inspector General, Peace Corps, Member,
Cigie Legislative Committee
Oral Statement............................................... 19
Written Statement............................................ 21
EMPOWERING AGENCY OVERSIGHT: VIEWS FROM THE INSPECTORS GENERAL
COMMUNITY
----------
Wednesday, January 15, 2014,
House of Representatives,
Committee on Oversight and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 9:33 a.m., in Room
2154, Rayburn House Office Building, Hon. Darrell E. Issa
[chairman of the committee] presiding.
Present: Representatives Issa, Mica, Turner, Duncan,
Jordan, Chaffetz, Walberg, Lankford, Amash, Gosar, DesJarlais,
Gowdy, Woodall, Meadows, Bentivolio, DeSantis, Cummings,
Maloney, Tierney, Lynch, Cooper, Connolly, Speier, Duckworth,
Davis, Horsford, Lujan Grisham, and Kelly.
Staff Present: Molly Boyl, Majority Deputy General Counsel
and Parliamentarian; Lawrence J. Brady, Majority Staff
Director; David Brewer, Majority Senior Counsel; Ashley H.
Callen, Majority Deputy Chief Counsel for Investigations;
Sharon Casey, Majority Senior Assistant Clerk; John Cuaderes,
Majority Deputy Staff Director; Jessica L. Donlon, Majority
Senior Counsel; Adam P. Fromm, Majority Director of Member
Services and Committee Operations; Linda Good, Majority Chief
Clerk; Tyler Grimm, Majority Senior Professional Staff Member;
Christopher Hixon, Majority Chief Counsel for Oversight;
Caroline Ingram, Majority Professional Staff Member; Mark D.
Marin, Majority Deputy Staff Director for Oversight; Ashok M.
Pinto, Majority Deputy Chief Counsel, Investigations; Laura L.
Rush, Majority Deputy Chief Clerk; Jonathan J. Skladany,
Majority General Counsel; Peter Warren, Majority Legislative
Policy Director; Jedd Bellman, Minority Counsel; Beverly
Britton Fraser, Minority Counsel; Aryele Bradford, Minority
Press Secretary; Jennifer Hoffman, Minority Communications
Director; Elisa LaNier, Minority Director of Operations;
Lucinda Lessley, Minority Policy Director; Juan McCullum,
Minority Clerk; Dave Rapallo, Minority Staff Director; and Mark
Stephenson, Minority Director of Legislation.
Chairman Issa. Good morning. The committee will now come to
order.
The Oversight Committee's mission statement simply is that
we exist to secure two fundamental principles: first, Americans
have a right to know that the money Washington takes from them
is well spent and, second, Americans deserve an efficient,
effective Government that works for them. Our duty on the
Oversight and Government Reform Committee is to protect these
rights. Our solemn responsibility is to hold Government
accountable to taxpayers, because taxpayers have a right to
know what they get from their Government. Our job is to work
tirelessly in partnership with citizen watchdogs to deliver the
facts to the American people and bring genuine reform to the
Federal bureaucracy.
We are holding this hearing today to learn from leaders in
the inspector generals community about the challenges they face
and to learn the way that Congress can use legislation to
support their work.
In our mission statement we talk about citizen watchdogs.
It is a short mission statement, but it leaves out the 12,000
or so men and women of the inspectors general core, if you
will. No greater source of sunlight on the Federal bureaucracy
exists than those men and women who toil under the existing
laws in which they must be independent, but they get their
budget from the very people they must inspect.
They must be independent, but they often are not appointed
and confirmed, but acting. They must be independent, but they
cannot look beyond the agency they represent. They must be
independent and effective, but they can only interview people
who will voluntarily come before them or who are current
employees of that agency.
These are some of the areas that Government Oversight wants
to look at real reform in.
IGs play such a key role in improving Government efficiency
and providing sunlight that this hearing is not just an
opportunity for the committee to hear directly from men and
women on the front lines, but in fact a real opportunity to
begin shaping a legislative change that will build on the
original IG Act.
IGs have proven to be one of Congress's best investments.
In the last fiscal year, the IG community used their $2.7
billion budget to identify potential savings to taxpayers,
totaling $46.3 billion. That means for every dollar in the IGs'
budget, they have identified approximately $17 in savings. That
would be more than enough to justify a green eye shade
accountant.
But IGs are more than green eye shade accountants. They are
in fact a criminal investigation team within every agency.
Often what they find cannot be quantified in dollars, but more
often is quantified in the trust of the American people.
This committee, on a bipartisan basis, almost always says,
in every hearing, waste, fraud, and abuse. People understand
waste. They kind of understand fraud. They often miss that the
abuse is an abuse of power; it is an abuse of the discretion
that people are given behind the scenes. IGs are often looking
at exactly that, abuse of Federal employees, abuse of the
public, and the like. And this is not in dollars.
So today we are going to hear from three widely and highly
respected IGs who have spent years examining programs at the
Small Business Administration, the Justice Department, and the
Peace Corps. I might note that these IGs do not oversee the
largest budgets, but they oversee important agencies that are
well understood by the public as having to have the trust of
the American people. All these IGs have served on the
legislative committees for the Council of Inspectors General on
Integrity and Efficiency, an agency that today serves more as a
coordination and not as a leadership committee.
It is my goal, and I have shared this with members on both
sides of the aisle, that CIGIE should in fact become a much
more central and much more respected organization by the
Executive Branch, one that we would hope the President would
look to as a key place to ask questions about transparency and
integrity in his or her administration.
On behalf of CIGIE and their representative agencies, our
witnesses today will share their ideas and suggestions on how
to improve the Inspector General Act, and I hope Congress can
provide the IGs and their staffs with new tools for rooting out
waste, fraud, and, once again, abuse.
One example, as part of this committee's jurisdiction and
initiatives, is the bipartisan Data Act. The Data Act is not
just about efficiency; it is about transparency and it is about
providing tools throughout government that would allow
inspectors general to find the kinds of waste and the kinds of
cross-cabinet programs that often are overlooked. Many of them
we have seen is the result of the Recovery and Accountability
Transparency Board, often called the RAT Board, which tracks
money not in one agency, but throughout all of the monies
disbursed under the stimulus bill.
I often note that I did not vote, and was not given the
opportunity to vote, for the stimulus in a positive way. But
one of my predecessors ensured that the RAT Board, the IGs, and
Government itself had monies in order to be accountable; and
one of the great successes of the stimulus, or the Recovery
Act, if you will, was in fact the Rock Center.
My ranking member and I continue to support the fact that
that is not just a pilot experiment that showed promise once,
but in reality something that any agency would say should
exist. The only question is will it be a single cross-agency
watchdog or will there be, once again, duplications of dozens
or hundreds of these centers. Certainly, when we look at how to
make it work best for CIGIE, how to make it work best for
congressional accountability, and, in the long run, how to make
it work best for the Office of Management and Budget, I hope
that the tool will be in fact a central tool bought into by the
President and by future administrations.
Congress can do more, though. During the 113th Congress,
the committee has investigated several instances in which
agency leadership undermined the effectiveness of the inspector
general. This is not to say that the Obama Administration did
it, because they simply happened to be those in charge today.
In several cases agencies restricted the IGs' access to
documents and witnesses. Yes, it is this current
administration, but this is something that has to be changed
not because of a particular cabinet officer, a particular
officer, but because it is a growing trend that we need to
reverse. If we are to have good oversight, we need our allies
in the inspector general's office to be there for us.
I want to again thank the inspectors general for being here
today. Thank you for agreeing to help us in the reform that we
seek today. I look forward to a robust dialogue and I look
forward to hearing the ranking member's opening statement, and
I yield to the gentleman.
Mr. Cummings. Thank you, Mr. Chairman, for calling this
very important bipartisan hearing today.
Our 72 inspectors general are critical to ensuring that
Federal agencies and programs are providing the very best
possible value to the American taxpayer. Our committee, this
Congress, and our Nation depend on the audits and
investigations IGs conduct to ensure that funds are spent
effectively and efficiently, to identify issues requiring
additional oversight, and to craft legislation to strengthen
the operations of our Government.
It is critical that inspectors general and their
professional staffs have the statutory authorities they need to
cast critical eyes over agencies and their programs. It is our
committee's responsibility to review existing authorities, as
we are doing today, to determine whether they enable the IGs to
do the jobs we have entrusted them to do.
In 2008, our committee passed the Inspector General Reform
Act, authored by Congressman Jim Cooper, to ensure that
inspectors general are appointed solely on the basis of their
professional qualifications without regard to party
affiliation. The legislation also eliminated bonuses for
inspectors general and adjusted compensation accordingly. That
legislation also required the President's annual budget
submission to identify the budget request for each inspector
general office as a separate line item and it created in
statute the Council of Inspectors General on Integrity and
Efficiency. The Act was signed into law by President Bush in
October of 2008.
Today we will hear testimony from inspectors general at the
Department of Justice, the Peace Corps, and the Small Business
Administration. Each presents thoughtful recommendations to
strengthen the authorities available to IGs' Government-wide
efforts. Each also addresses unique issues encountered in their
interactions with the agencies they oversee.
I strongly support several recommendations we will hear
today. In fact, H.R. 2146, the Digital Accountability and
Transparency Act, which Chairman Issa authored and I
cosponsored, passed the House in the last Congress and included
provisions to exempt IGs from the Paperwork Reduction Act and
the Computer Matching and Privacy Act. These are the kinds of
bipartisan steps we should be taking to strengthen our IGs.
I have concerns, however, with some proposals that they
have raised. In particular, I do not support granting our
inspectors general unfettered power to subpoena individuals to
compel them to provide testimony. This would give the IGs power
that even the FBI does not have, and the use of that authority
could, in some instances, impede criminal investigations and
raise significant civil liberty concerns. To me, the single
most important thing we can do is to support the IGs. To
support them is to provide them with the resources necessary to
carry out the authority they have.
I am deeply concerned about the impact of the budget cuts
on all of our inspectors general. I am sure we will hear
something about that this morning. The Small Business
Administration's inspector general, for example, has a double
digit vacancy rate and an ongoing hiring freeze. The Department
of Justice's inspector general testified before the Senate last
year that budget shortfalls had caused him to eliminate
approximately 40 positions from his staff.
I look forward to hearing from our witnesses on ways to
improve the IGs' authorities, as well as the impact that
ongoing resource constraints have on their ability to conduct
thorough investigations. I am also interested in knowing how
they prioritize, under these circumstances, who they
investigate and how they investigate.
I look forward to working with the chairman and all of our
committee members to support the critical work of our IGs and,
Mr. Chairman, with that I yield back.
Chairman Issa. I thank the gentleman.
All members will have seven days to submit opening
statements for the record.
We now welcome our distinguished panel of witnesses: the
Honorable Peggy Gustafson is Inspector General for the Small
Business Administration and Chair of the CIGIE Legislative
Committee; a returning, often returning guest, the Honorable
Michael Horowitz, is Inspector General for the Department of
Justice and a member of the CIGIE Legislative Committee; and
last, and definitely not least, Ms. Kathy Buller is the
Inspector General for the Peace Corps and a member of CIGIE's
Legislative Committee.
This is a little bit like what you would do on the other
side. We, pursuant to the committee, would ask that you all
rise and take the oath.
Do you solemnly swear or affirm that the testimony you will
give here today will be the truth, the whole truth, and nothing
but the truth?
[Witnesses respond in the affirmative.]
Chairman Issa. Please be seated.
Let the record reflect that witnesses all answered in the
affirmative.
My script always says in order to allow time, make sure you
stay within five minutes. You are all pros; you are all good at
it. Your entire opening statements are placed in the record.
Try to stay close to the five minutes, because I know we have a
lot of questions and we would like to have an active dialogue.
But nobody is going to do a big bell if you run a little over.
Ms. Gustafson.
WITNESS STATEMENTS
STATEMENT OF THE HONORABLE PEGGY E. GUSTAFSON
Ms. Gustafson. Thank you and good morning, Chairman Issa,
Ranking Member Cummings, and the members of the committee. On
behalf of the chair of the Council of Inspectors General on
Integrity and Efficiency, CIGIE, I am honored to represent the
federal inspector general community this morning and discuss
opportunities to strengthen agency oversight through the
community of inspectors general. As noted, I currently serve as
the chair of the Legislation Committee of CIGIE.
Let me begin by thanking this committee on behalf of the
entire IG community for your continuing support of our mission
and your interest in our work. The support of this committee
has been longstanding and bipartisan, and we are truly grateful
for all of your support through the years.
CIGIE serves a leadership role and is the core of the IG
community. Together, the work of the IG community has resulted
in significant improvements to the economy and efficiency of
programs Government-wide, with potential savings totaling
approximately $46.3 billion in fiscal year 2012. With our
aggregate budget being approximately $2.7 billion, as noted by
the chairman, these potential savings represent about a $17
return on every dollar invested in offices of inspector
general.
Notwithstanding these results, offices of inspector general
do face certain challenges. Our principal challenges pertain to
independence concerns and to timely access to information. In
recent years, CIGIE has been advocating for additional tools to
alleviate these challenges and enhance our ability to do our
jobs for the taxpayers.
The following are among the IG community's legislative
proposals that we have been supportive of and sought through
the years: relief from the Computer Matching and Privacy
Protection Act, relief from the Paperwork Reduction Act, a
limited FOIA exemption to protect sensitive information
security data, and some technical amendments to the IG Reform
Act of 2008.
CIGIE feels very strongly that offices of inspector general
should be exempted from the Computer Matching and Privacy
Protection Act and the Paperwork Reduction Act. These
exemptions would enhance the independence of IGs and remove
lengthy processes that are more aligned with the role of
Government interactions with the public, rather than the
oversight of the Government entity by the Office of Inspector
General.
Since the Supreme Court's 2011 decision in Milner v.
Department of Navy, IGs across the Federal Government have
raised serious concerns about information related to Federal
agencies' information security that may be unprotected from
disclosure under FOIA. Although other FOIA exemptions apply to
classified information on documents compiled for law
enforcement purposes, right now no single exemption currently
covers the extremely important category of documents that
analyze, audit, and discuss in detail the information security
vulnerabilities of the Federal Government, so we are proposing
a very narrow exception to covering this information.
Finally, we do propose some technical amendments to the
Act, Representative Cooper's bill of 2008, just some very
specific technical amendments. As IG, I am grateful that IGs
across the Government has a voice through CIGIE and have access
to training and other resources that did not exist prior to the
IG Reform Act. Through the Reform Act, IGs have an
unprecedented degree of transparency in our annual budget
requests, which help gratefully in assuring our independence.
That said, the IG community has been hit especially hard by
uncertainty in the budget process and cuts to operating
budgets. In general, all of an IG's budget is personnel, salary
and expenses. So when you are under sequestration, when you are
under a straight line that causes the type of personnel issues,
as noted in your opening statements, where many of us have a
hiring freeze and, as noted, Representative Cummings, I, right
now, have a 17 percent vacancy rate in my office just to stay
under the limits that I have been operating under in the last
few years.
Even with these strains on our resources, the IG community
has identified and addressed a number of issues that transcend
individual agencies. CIGIE has reports on cybersecurity,
suspension and debarment, the use of new media, hotline
operations, and error; and all of these cross-cutting projects
are always available on CIGIE's website.
Again, CIGIE's training and professional development
mission has been addressed through our training institute, and
in fiscal year 2012 alone this institute has delivered 55
training courses to 1677 students among the IG community,
representing a 17 percent increase in students from the
previous year.
This concludes my verbal statement. Thank you again so much
for inviting me to talk about the issues in the IG community,
and I look forward to your questions.
[Prepared statement of Ms. Gustafson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Issa. Thank you.
Mr. Horowitz.
STATEMENT OF THE HONORABLE MICHAEL E. HOROWITZ
Mr. Horowitz. Thank you, Chairman Issa, Congressman
Cummings, members of the committee. Thank you for inviting me
to testify at today's very important hearing.
The need for strong and effective independent oversight has
never been more important, and while the Inspector General Act
provides IGs with many of the tools that we need, I would like
to highlight for you today two areas where my office's
oversight abilities could be strengthened.
To conduct effective oversight, an OIG must have complete
and timely access to all records in the agency's possession
that the OIG deems relevant to its review. This is the
important principle codified in Section 6(a) of the Inspector
General Act. Restricting or delaying an OIG's access to
documents may lead to incomplete, inaccurate, or significantly
delayed findings or recommendations, which in turn may prevent
the agency from correcting serious problems and doing so in a
timely manner.
Most of our audits and reviews are conducted with full and
timely cooperation from the Department's components. However,
there have been occasions when our office has had issues arise
due to the Department's view that our access was limited by
other laws. For example, as this committee is aware, in the
course of our Operation Fast and Furious review, issues arose
regarding our access to grand jury and wiretap information that
was directly relevant to that review. Similar issues arose
during our ongoing review of the Department's use of material
witness warrants.
Ultimately, in each instance, the attorney general or the
deputy attorney general provided us with the permission to
receive the materials because they concluded that the
assistance was of assistance to them, and the attorney general
and the deputy attorney general have made it clear that they
will continue to provide us with that necessary authorization
in future reviews. However, requiring an inspector general to
obtain permission in order to receive critical documents in an
agency's possession impair's an IG's independence and conflicts
with the core principles of the IG Act. Simply stated, the IG
Act provides, and effective independent oversight requires,
that an IG be given prompt access to all relevant documents
within the possession of the agency it is overseeing.
Let me briefly turn to an issue that is unique to my
office. Unlike inspector generals throughout the IG community
and throughout the Federal Government, our office doesn't have
authority to investigate all allegations of misconduct within
the agency we oversee. While we have jurisdiction to review
alleged misconduct by non-lawyers in the Department, under
Section 8E of the IG Act, we do not have the same jurisdiction
over alleged misconduct by Department attorneys when they act
in their capacity as lawyers. In such instances, the IG Act
grants exclusive investigative authority to the Department's
Office of Professional Responsibility. As a result, these
allegations, including those that may be made against the
Department's most senior lawyers, are handled differently than
misconduct allegations against law enforcement agents and other
Department personnel.
This jurisdictional limitation is a vestige of the fact
that OPR preexisted the creation by Congress of our office in
1988. Since that time, the Department has taken the position
that OPR has specialized expertise that should result in its
handling of professional misconduct allegations. Whatever merit
such an argument may have had in 1988, it is shortly long-
outdated.
A similar assertion was made years ago by those who tried
to forestall my office's oversight of alleged misconduct by FBI
agents. That argument was rejected. And as we have demonstrated
through our many investigations over the years, we have the
means and the expertise to handle the most sophisticated legal
and factual issues. Moreover, inspectors general across the
Federal Government have the authority that I am talking about,
to handle misconduct allegations against lawyers acting as such
within their agencies, and they have demonstrated that they are
fully capable of dealing with such matters.
Additionally, the OIG statutory and operational
independence ensures that our investigations occur through a
transparent and publicly accountable process. Unlike the head
of OPR, the inspector general is a Senate-confirmed appointee
who can only be removed by the President after notification to
Congress, and the inspector general has reporting obligations
both to the attorney general and to the Congress. Enabling my
office to exercise jurisdiction in attorney misconduct cases,
just as we do in matters involving non-attorneys, would enhance
the public's confidence in the outcomes of these important
investigations and provide our office with the same authority
as other inspectors general. This has been a bipartisan issue
over the years and I hope the committee would take a close look
at that.
Thank you again for my have being invited today. I am
looking forward to any questions that you may have.
[Prepared statement of Mr. Horowitz follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Issa. Thank you for your many good points.
Ms. Buller?
STATEMENT OF KATHY A. BULLER
Ms. Buller. Chairman Issa, Ranking Member Cummings,
distinguished members of the committee, thank you for inviting
me today and allowing me to summarize my prepared statements on
the Peace Corps' refusal to give OIG information required by
the Kate Puzey Volunteer Protection Act of 2011.
This year marks the 25th anniversary of the creation of
Peace Corps inspector general. My office is small, it is 26. I
have evaluators, auditors, investigators, legal counsel, and
support staff. The mission of my office is to provide oversight
to Peace Corps' program, which consists of 7200 volunteers
located in 65 countries around the world.
Given the nature of Peace Corps' program, if the agency is
not efficient and effective, the result can be tragic for both
volunteers and their families. For example, in our 2010 review
of the death of a volunteer in Morocco, we found significant
findings that both provided closure for the victim's family and
led to an overall revamp of the agency's volunteer medical care
program.
An effective IG must have prompt access to all relevant
documents within the possession of the agency it oversees. This
access is explicitly stated in Section 6 of the IG Act. We have
encountered some access issues in the past that have been
resolved through discussions with agency senior management.
Unfortunately, we have currently reached an impasse with the
agency concerning OIG's right to access information found in
certain reports made by volunteers who are victims of sexual
assault. The agency's policy to deny OIG access is based on the
agency general counsel's interpretation of the Kate Puzey Act.
Congress enacted the Kate Puzey Act following reports that
volunteer victims of sexual assaults were being ignored, blamed
for their assaults, and that their cases were being mismanaged.
The Kate Puzey Act mandates extensive changes to the way Peace
Corps responds to victims of sexual assault. This includes the
creation of a restricted reporting mechanism allowing volunteer
victims of sexual assault to confidentially disclose the
details of their assault to specified individuals, receive
services without the dissemination of their PII, and without
automatically triggering an official investigation.
The Kate Puzey Act mandates that the OIG oversee the
agency's implementation of the changes required by the Kate
Puzey Act as well as sexual assault mismanagement allegations.
We are required to conduct a case review of a significant
number of sexual assault cases, including specific incidents.
We are also required to evaluate whether the agency response
was effective and implemented in accordance with law and its
policies.
The general counsel's legal position is that restricted
reporting provisions in the Kate Puzey Act override any
obligation that Peace Corps may have under the IG Act to
provide OIG with agency records. This is despite the fact that
the law provides for exceptions for disclosure of restricted
reported information, including one that would permit
disclosure if required by a Federal or State statute.
Let me emphasize that restricted reports are not a narrow
subset of allegations. All reports are restricted, regardless
of to whom they are made, unless a volunteer changes his or her
report to unrestricted. Further, agency policy unnecessarily
expands the Kate Puzey Act definition of PII to include any
details of a sexual assault incident. As implemented, the
policy has created a blackout of information concerning
restricted reports from the OIG.
It defies common sense to imagine that Congress intended to
increase OIG's oversight duties over the Peace Corps' response
to sexual assaults, while simultaneously curtailing its ability
to access the information it needs to fulfill those duties.
OIG's longstanding experience protecting confidentiality about
victims and information about victims makes the agency's denial
of OIG access even more indefensible.
As Congress considers laws protecting the privacy and
confidentiality of individuals with regard to information held
by Federal agencies, it should consider any impact on the
ability of OIGs to perform the type of oversight that Congress
expects and the American people expect. I would recommend that
the committee make clear through legislation that OIG access to
all agency documents and information is required under the IG
Act, regardless of provisions contained in other laws unless
specifically stated otherwise. Hearings like this send an
important message to Federal agencies that OIG oversight and
unfettered access to agency information is essential.
Thank you again for inviting me to testify before you
today, and I stand ready to answer any questions you may have.
[Prepared statement of Ms. Buller follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Issa. Thank you.
Thank you, one and all. I have a few brief questions,
followed up by thousands of additional ones before we make law.
But, Ms. Buller, I will take you, sort of go back in this
order. To your knowledge, within the 72 IGs, in most, if not
all, other cases, is sexual assault access for IGs handled
differently? In other words, from what you know from your
participation in CIGIE, are you different than other agencies
on how you are handled?
Ms. Buller. We are somewhat different because of the
legislation that was passed. In addition, my agency----
Chairman Issa. But, theoretically, the legislation should
give you more access, not less.
Ms. Buller. Exactly. As far as the IG Act is concerned, we
are the same as all other IGs.
Chairman Issa. Okay. And with the other two IGs, your
agencies, if I understand correctly, have less trouble
investigating misconduct, including sexual assault, or the
same?
Mr. Horowitz. Well, interesting that you should ask that,
and having seen IG Buller's statement, in misconduct reviews we
would normally get that information, but we have an ongoing
review growing out of the Cartagena matter, where we are
looking at more systemic issues, not an investigation; and we
had questions arise about access to PII and access to this
information, which ironically, to the extent they existed, was
sitting in our investigators' files because they get it in
misconduct cases.
So this is a problem we have faced as well.
Chairman Issa. Well, let me summarize the question.
Currently, CIGIE does not have the authority to either come to
Congress or to the Administration and reconcile differences of
interpretation of access, is that correct?
Ms. Gustafson. That is correct. As you noted, Chairman
Issa, it is more a coordination role, it is a very small----
Chairman Issa. Right. They help you know what is possible,
but they don't have the ability to de-conflict various
interpretations of various bosses.
Ms. Gustafson. No, they do not.
Chairman Issa. And, one and all, is that something that
would make your job--because some of you will spend an entire
career in one agency, but often you are going to move from
agency to agency, and the level of transparency, the level of
access changes, is that correct? And that shouldn't be,
obviously.
Mr. Horowitz. That shouldn't be. And I would just say, Mr.
Chairman, that I think what IG Buller said is the fix here is
the fix that should happen, which is Congress simply restates
what it meant, I think, in Section 6(a) of the IG Act, which is
notwithstanding an express provision that says an IG shouldn't
get something, the presumption is if the document is in the
agency's file, we have access to it, period.
Chairman Issa. Now, Mr. Horowitz, you gave me something
that I wanted to bring up. This committee looked at the
misconduct, the unethical behavior of the general counsel of
the Security Exchange Commission not that long ago, ultimately
leading to his resignation for essentially self-dealing in the
Madoff case, if you recall. If that had been your agency, as I
understand it, you would have had to go to that very person, or
the head of the agency who handpicked that person, in order to
essentially get authority. Isn't that inherently cumbersome if
in some cases you must investigate the very top of the agency?
Mr. Horowitz. That is correct and, indeed, there would be a
serious question as to whether we even had jurisdiction
pursuant to the IG Act to do that. It might go to the head of
OPR, appointed by the attorney general, to do that review. We
might not have any jurisdiction to do that work, even with
permission.
Chairman Isa. So clearly as Congress considers changes to
both how CIGIE's authority is elevated, which I have made clear
I intend to do, but also in the question of where you have to
go individually, either somebody else has to be charged with
investigating the top people in each of your agencies or you
have to be able to investigate, coordinating perhaps with FBI
or other agencies, you have to be able to investigate without
going to the target, isn't that correct?
Mr. Horowitz. That is correct.
Chairman Issa. You can't do that right now.
Mr. Horowitz. Right.
Chairman Issa. Ms. Buller, if I got the numbers correct,
your staff is about one-third of one percent of the people, not
the total staff, but just the volunteers alone, that you
oversee spread over, did you say, 62 countries?
Ms. Buller. Sixty-five.
Chairman Issa. Sixty-five. So currently you have one of the
smallest staffs with one of the greatest disbursement, if you
will, of people in far-flung places that may be, as we know,
sadly, we have had Peace Corps volunteers raped, we have had
Peace Corps volunteers kidnapped, we have had all these things
that all fall under your requirement to see whether or not the
care and custody questions were resolved. How do you do it with
just 26 people?
Ms. Buller. We target things very strategically. Since I
arrived there, we have taken more of a systematic approach to
dealing with the issues that we find. When we would go and do
post audits and evaluations and we would find the same issues
over and over and over again, it had to be a problem in
headquarters, it wasn't just the post.
Chairman Issa. Well, I have more questions, but no more
time, so I go to the ranking member, Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman.
Mr. Connolly. Mr. Cummings, could I just interrupt and ask
Ms. Buller if you are going to answer questions, would you mind
putting--thank you.
Thank you, Mr. Chairman.
Mr. Cummings. Mr. Horowitz, I just want to just go back for
a moment to some of your concerns with regard to the
investigation of higher-up attorneys. I assume that you are
talking about the appearance of it, in other words, that you
are not able to do in your office and the Office of
Professional Responsibility--is that the name of it?
Mr. Horowitz. Correct.
Mr. Cummings.--would have to do it. Are you talking about
the way it appears? Are you complaining about cases that you
have seen that you felt like you didn't have the authority to
investigate or that something went awry that somebody was not
properly investigated that you thought should have been?
Because I think we have to be kind of careful here, because
what happens a lot of times is that a picture is painted of our
Federal employees, particularly people in this instance who are
sworn to uphold the law, and they come in and they are very
independent no matter what the situation is and they do their
job. But appearance is one thing; an actual problem is another.
So would you comment?
Mr. Horowitz. Yes. And to be clear, I am not talking about
any specific outcome or finding of an OPR report; I am talking
about two things. One is the intent of the IG Act. And I refer
back to a 1994 GAO report to then Chairman Brooks in the
Judiciary Committee which laid this out as well, which is it
creates an organizational structure lacking the full measure of
centralized control, independence, and accountability of
Congress that was envisioned by the IG Act, number one. Number
two, in some examples of not where I am suggesting anything
improper was done, but where this issue has arisen, for
example, was in connection with the U.S. attorney firings that
occurred several years ago.
Mr. Cummings. Let me ask you does your office review the
conduct of lawyers acting as lawyers at the FBI or any other
component of the DOJ?
Mr. Horowitz. We would not have jurisdiction to do that if
they are acting as a lawyer.
Mr. Cummings. All right.
Mr. Horowitz. If they were stealing money or doing
something outside their legal authority, we would, but if they
were making legal decisions, we do not have authority.
Mr. Cummings. Now, you also wrote inspectors general across
the Federal Government have the authority to handle misconduct
allegations against the lawyers acting as such within their
agencies. Which IGs review the conduct of lawyers acting as
lawyers?
Mr. Horowitz. My understanding is every other IG has that
authority to do that. That is my understanding pursuant to the
IG Act. We are the only ones with the carve-out in Section 8E,
because that is specific to my office.
Mr. Cummings. Now, Ms. Gustafson, you represent the Council
of Inspectors General on Integrity and Efficiency, is that
right?
Ms. Gustafson. Yes, I am the chair of their Legislation
Committee, sir.
Mr. Cummings. How long have you held that position?
Ms. Gustafson. I think I have been chair for three years
now.
Mr. Cummings. Are you term limited?
[Laughter.]
Ms. Gustafson. I haven't looked at the----
Chairman Issa. I would take that personally.
[Laughter.]
Ms. Gustafson. I hope you are not unhappy with anything I
have done.
Mr. Cummings. No, no, no, no, no. It just came to my mind,
that's all.
Chairman Issa. He is always thinking about my term, to be
honest.
[Laughter.]
Mr. Cummings. I just wanted to ask you a question about one
legislative proposal, which is to give inspectors general
authority to compel testimony by subpoena. Testimonial subpoena
authority is a very powerful investigative tool, would you
agree?
Ms. Gustafson. I would agree that that is a powerful tool.
I would note that that is not on our list of legislative
proposals. I want to be clear that the Council IGs right now is
not advocating as a council that authority. We have in the
past. That is not on our list, quite frankly.
Mr. Cummings. And might I ask why it is not on your list?
It is something that has always been raised.
Ms. Gustafson. Right.
Mr. Cummings. So I am just curious, if you don't mind.
Ms. Gustafson. Well, the short answer is there is, I think,
a general acknowledgment that there is a problem among our
access, which is to say there are times when we cannot make
people talk to us, as noted. If you are a former Federal
employee, there is nothing we can do to ``make you talk to
us.'' There is not a consensus right now among IGs about what
tool we should have in order to try to fill that gap. It is
kind of like herding cats anyway, but there is not enough of a
consensus that we, as an organization, are right now advocating
for it because there is a difference among some of us on what
the tool should be, and that is why we are not advocating.
Mr. Cummings. So there are some IGs, based upon what you
just said, who are not anxious to have that kind of authority?
Ms. Gustafson. Apparently there are some IGs who are not
anxious to have that authority, that is right. When we
discussed it as a group, there were some IGs who were not
convinced that that was the authority that was needed, and we
try to always act as a group and with a consensus, and we just
felt like we didn't have a consensus.
Mr. Cummings. Now, I know you have to walk a very thin line
here, I got that; you are the president. So can you just tell
us, it seems like it would be logical that they would want the
authority. You follow what I am saying? So I am trying to
figure out what are the arguments of saying, well, maybe we
don't want it. I mean, that is kind of unusual.
And then I will end with that, Mr. Chairman. I am just
curious.
Ms. Gustafson. It is unusual, and, honestly, because
personally I support it, but as the chair of the Legislation
Committee, I am not speaking on behalf----
Mr. Cummings. I understand.
Ms. Gustafson. I think the objections that were raised were
similar, Mr. Cummings, to the objections that you noted, which
is not every law enforcement agency has this; the FBI doesn't
have this, things of that nature, that it is a powerful
authority and some people felt unsure on whether it was the
tool to need. But again I do want to emphasize that I think it
is an issue that I am very glad is being discussed, because
right now I think it has become a very real issue. There are
IGs who have had problems doing either audits or investigations
when people have refused to speak to them. Now, what that tool
is, we are happy to work with this committee and figure out
what it is, but I do hope it is a problem that we can solve.
Mr. Cummings. Thank you very much, Mr. Chairman.
Chairman Issa. Thank you. Mr. Cummings, I think if we had
asked any of these witnesses if they are frustrated when
somebody chooses, perhaps after they have done something very
egregious, to retire and then no longer be willing to fall
under the IGs, how frustrating that is when it may not rise to
an FBI investigation and yet they have slipped away from it. So
I agree with all of them that we have to find a solution that
they are comfortable with in addition to the problem we
understand exists.
Mr. Cummings. Mr. Chairman, let me say this. I think it is
important that the IGs have the authority they need to do their
job, no doubt about it. I think the question is how do we bring
a balance to all of that. And certainly just as they have
differing opinions, and it may be good, by the way, for us to
have access to some of--you know, maybe some of your members,
and this is up to the chairman, can submit so we can hear both
sides of it that would help us to come to some kind of
reasonable solution to the problem, because obviously there are
differing opinions.
Chairman Issa. I agree, and I am certainly willing to take
72 briefs.
I would ask the indulgence of all the members for a moment
that are not on judiciary for something that Mr. Horowitz said
that I know you didn't mean to cut him off, but IG Horowitz
alluded to the situation in the Harriet Miers case when
obviously you were investigating and Chairman Conyers was also
going forward. If there is anything you didn't say on that that
you think would be illustrative of that situation, I think it
is important, because that led to precedent setting from a
standpoint of this and other committees and a recognition of an
unusual situation. I lived, you lived, many of the older
members here lived through the U.S. attorney dismissal and the
inability to get good answers, both here in Congress and the
IG. So if you have anything, I would love to hear it.
Mr. Horowitz. I was just going to point out in terms of two
concrete examples where this has played out. One was the U.S.
attorney firings, where the initial decision in the Department
by the attorney general was to assign it to OPR, even though
these were high level presidential appointees. We appealed to
the attorney general; the decision was made to have it be done
jointly with OPR.
The second example I had just wanted to mention was the
Brandon Mayfield incident involving the lawyer in Oregon who
was imprisoned after mismatched fingerprints after the bombing
in Spain. That resulted in an investigation, two separate
investigations. We investigated the FBI issue; OPR investigated
the attorney misconduct allegations. You have our report; our
report is public. OPR's report is not public, to this day. And
that is an example, I think, of the institutional issue that I
think has played out.
I am not suggesting anybody's conduct in conducting those
was improper; I am just pointing out the structural issue.
Chairman Issa. Thank you.
Mr. Mica.
Mr. Mica. Thank you.
You all have different amounts of time being either
inspectors general or being in the investigation and oversight
business. What is your experience, Ms. Gustafson?
Ms. Gustafson. I am a lawyer, like so many people. I was an
assistant prosecutor many years ago. I spent eight years as a
general counsel to the State auditor.
Mr. Mica. But on the Federal level?
Ms. Gustafson. On the Federal level I was confirmed in
October of 2009, and that has been my experience.
Mr. Mica. But before that you did not have Federal?
Ms. Gustafson. No.
Mr. Mica. Mr. Horowitz?
Mr. Horowitz. I was confirmed as IG about 20 months ago.
From 1991 to 2003 I was seven years in the U.S. Attorney's
Office of the Southern District of New York, helped run their
public corruption unit.
Mr. Mica. So you have done Federal. Okay.
Ms. Buller?
Ms. Buller. I have been in the IG community since 1986. I
started as an attorney and then was deputy legal counsel.
Mr. Mica. So you have been around a long time.
Ms. Buller. Yes, I have.
[Laughter.]
Chairman Issa. You know, this is the kind of probing that
we often get criticized for, John.
Mr. Mica. I was actually looking for Mr. Duncan, because I
was going to say I have been on the committee, this is my
twenty-second year, and Mr. Duncan, who sits over here,
although he looks older and more distinguished than me, I am
senior to him. My point being that for 22 years on this
committee I have been through all the investigations; Waco, I
think we did Whitewater and we did Travelgate. I mean, the list
goes on and on. You see all the chairmen up here listed. Almost
all of them but one, I think, I served under.
My point here is that never in my experience have I seen
such difficulty in getting information from an Administration.
We impeached President Clinton, we went through all kinds of
very difficult investigations, quite frankly, but this
Administration has sort of fine-tuned the art of slow-rolling
us.
Have you had similar difficulties, Mr. Horowitz? You have
only been on for a short time, a little bit longer Ms.
Gustafson and Ms. Buller. We will go that order.
Mr. Horowitz. To be clear, the issue I raised is not
necessarily specific to this attorney general, this deputy
attorney general; it is an issue that my predecessors have had
to deal with in terms of getting components----
Mr. Mica. But it is difficult. You don't have that long-
term----
Mr. Horowitz. I don't have the long-term.
Mr. Mica. Okay.
Ms. Gustafson?
Ms. Gustafson. This is the only Administration I have
served under. I will tell you that in the auditor's office we
were slow-rolled all the time, and in the IG's office we get
slow-rolled as well. I mean, I do think it is something that
must be common to anybody who is an overseer. But whether there
is a trend, I can't say.
Mr. Mica. We have the same role except from a legislative
standpoint, investigations and oversight.
Ms. Gustafson. Exactly.
Mr. Mica. Ms. Buller?
Ms. Buller. I would say it has been something that I have
experienced pretty much all my career, at least as far as
having to go back and explain time and time again why it is we
had access to information. I think at Peace Corps it is a
little different and it is more exacerbated because Peace Corps
has five-year term limits, so we have people coming in all the
time who have no Federal experience.
Mr. Mica. Well, again, I can only relay my experience from
the dais here, but it has been very difficult. Now we are
dealing with an attorney general that you serve with, Mr.
Horowitz, who we held in contempt over trying to get documents
from Fast and Furious, which I think we had every right to get
all of those documents. Were there restrictions or limitations
on your ability to access documents during your investigation
into Fast and Furious?
Mr. Horowitz. I came onboard in the middle of the
investigation, but my predecessor did have issues with regard
to getting grand jury and Title 3 materials until the attorney
general and deputy attorney general intervened and wrote us a
letter permitting us to get that. But it took, my understanding
is, many months, and I understand that we briefed the committee
staff about the problems that we were having when they were
occurring.
Mr. Mica. I heard you say something, too. You said that you
also report back to the attorney general on these cases. So if
there is an instance with attorneys within the Department of
Justice and general counsel's office, or as high as it gets,
including the attorney general, where does the line stop? Is he
taken out of the mix if, for example, he is a target?
Mr. Horowitz. Just to give you an example, when I came
onboard and as we were--we meet monthly with the deputy
attorney general, separately monthly with the attorney general.
Other than informing them of timing about our Fast and Furious
review, we did not, I did not, we did not give them updates on
what we were learning as we were doing it. As I think the
chairman is aware, the first they saw it was when our draft
report went for comment.
Mr. Mica. Well, my time has expired, but I am very
supportive of giving you the tools you need to get your
investigations and oversight completed.
Thank you. I yield back, Mr. Chairman.
Chairman Issa. Just to make sure the record is clear, in
Fast and Furious you didn't have authority for the many other
joint agencies that were involved in Fast and Furious, ones
that were outside of Justice.
Mr. Horowitz. Correct. So the issues that arose in DHS
through ICE and others that are in our report, we would not
have had authority to get those.
Chairman Issa. This is another part of the reform that we
were talking about.
Mr. Lynch.
Mr. Lynch. Thank you, Mr. Chairman. I want to thank the
ranking member, as well, for holding this hearing and I want to
thank our witnesses for your good work.
Mr. Horowitz, I know that the inspector general's office
within the Department of Justice has been at the forefront of
investigating the FBI's use of confidential informants. This
committee, under Chairman Waxman, under Chairman Davis, and
under Chairman Burton, were intimately involved, extensively
involved with the, I would call it the partnership between the
Boston office of the FBI and organized crime that resulted in
up to 19 homicides in Boston. We had a number of FBI agents
that were charged with taking gifts from organized crime. One
eventually went to jail and is still there.
And I want to say that I think that your report back in
2005 was instrumental in getting those guidelines updated;
however, I have read one of your most recent reports that
indicated, and I will quote from your report: ``We found
significant problems in the FBI's compliance with the guideline
provisions regarding the use of confidential informants. These
violations occurred mainly in suitability reviews,'' whether an
informant is suitable as a confidential informant because of
violent activities and drug use, things like that. And I
quoting again, it says, ``In total, we found one or more
guideline compliance errors in 87 percent of the informant
files that we examined.'' So this continues to be a problem.
I have asked several times to have hearings on this issue.
We have more problems in Boston. We have an individual named
Mark Rossetti who has been charged with--he is in a State
prosecution currently, but he has been operating a far-flung
criminal enterprise while under the protection of the FBI. We
have a situation down in New York with a similar crime family
operation operating under the protection of the FBI. I have a
case down in Atlanta where one of the FBI informants was
instrumental in the murder of a young man, a young rapper down
there, and there are accusations that that FBI informant
actually obstructed the prosecution of the confidential
informant once that his involvement was discovered.
So we have a huge problem. When you talk about waste,
fraud, and abuse, this is a walking advertisement. A lot of
these confidential informants, and there are thousands of them,
thousands of confidential informants being operated by the
Department of Justice Bureau of FBI. They committed about 6,000
crimes last year. They are required to report the number of
crimes, but no details. And this whole system has just run
amuck and it is criminal on our part to allow it to continue,
and I want to know from you what else we can do to get at this.
They have been slow-walking us. Senator Grassley and myself
have been involved with the FBI, trying to get information, but
I think you are our best hope at getting to the bottom of this.
It is a disgrace that innocent U.S. citizens should be murdered
by criminal actors who are operating under the protection of
the FBI. That is a goddamned disgrace.
I have written three letters to the current chairman to see
if we can get a hearing on this, but I got nothing. We seem to
have a lot of time for other things that are political in
nature, but we don't have time to go after this, and I am
fairly disgusted with the lack of response of Congress on this
issue. I am wondering if you can suggest to us ways that, since
we are not going to do anything, since we are going to sit on
our hands while this goes on and focus on other political
stuff, while we are sitting on our hands doing nothing, is
there anything we can do to help you actually do some good work
on this issue?
Mr. Horowitz. Well, first of all, we are going to continue
to do the oversight we are doing. As you have indicated, we
have issued numerous follow-up reports, because the last thing
we want to do is issue a report and then leave it be. So we are
going to continue to do that, and I think your continued
support and members' continued support, both to us and to alert
the FBI and the leadership of the Department on the importance
of these issues, the importance of follow-up is critical, as I
have learned. And I am more than happy to meet with you,
congressman, to talk about the issue further, because it is
something that is core to what we do.
Mr. Lynch. Thank you very much. I appreciate you being
here. And to all of you, I appreciate your good work. Thank
you.
I yield back.
Mr. Jordan. [Presiding.] I thank the gentleman. I too
appreciate each of you for being here today and your service.
Mr. Horowitz, I actually did look at your bio; I didn't
look at each of your bios, but I looked at yours. Impressive
record and career, and we appreciate all that.
Now, you worked at the Justice Department for 12 years, is
that correct?
Mr. Horowitz. That is correct.
Mr. Jordan. So you worked for Bush, Clinton, Bush.
Mr. Horowitz. Correct.
Mr. Jordan. Okay. And that entire time was in the Criminal
Division?
Mr. Horowitz. Southern District of New York and then
Criminal Division.
Mr. Jordan. Okay. And you actually headed up the Criminal
Division at main Justice at one point.
Mr. Horowitz. I was the chief of staff.
Mr. Jordan. Chief of staff. All right. So in that 12 years
experience in the Criminal Division, you guys dealt with
investigations dealing with the tax law.
Mr. Horowitz. Correct.
Mr. Jordan. Probably a fair amount of time, right?
Mr. Horowitz. Certainly we did.
Mr. Jordan. And in that 12 year experience at the Justice
Department, do you ever recall the Civil Rights Division
investigating tax law matters?
Mr. Horowitz. I don't recall that during my----
Mr. Jordan. You don't recall that ever happening in the 12
years you spent at the Justice Department for three different
administrations?
Mr. Horowitz. I don't recall learning of that.
Mr. Jordan. Okay. Now, I assume, Mr. Horowitz, that you are
abreast of certain stories in the press that deal with the
Justice Department. You stay abreast and you read those things.
Mr. Horowitz. I read clips.
Mr. Jordan. Okay. Are you familiar with the name Barbara
Bosserman?
Mr. Horowitz. From the press.
Mr. Jordan. From the press, right? And Barbara Bosserman is
in fact a lawyer in the Justice Department?
Mr. Horowitz. Based on what I have read in the press.
Mr. Jordan. And based on what you have read in the press,
she is in the Civil Rights Division?
Mr. Horowitz. That is correct.
Mr. Jordan. And based also on what you have read in the
press, although we checked this out, she is a contributor to
the Obama campaign to the tune of $6,750, both the Obama
campaign and the Democrat National Committee?
Mr. Horowitz. I only know what I have read in the press.
Mr. Jordan. Have you also read in the press that she and
Mr. Tom Perez, who was acting director at the time of the Civil
Rights Division, visited the White House for a bill signing
with the President?
Mr. Horowitz. I have no idea about that.
Mr. Jordan. You have not seen that one in the press? But
all the other stuff you read in the press.
Mr. Horowitz. I don't remember seeing that.
Mr. Jordan. Okay. And you are also familiar with the fact
that she is heading up, according to the press again, she is
heading up the investigation into the IRS scandal?
Mr. Horowitz. That is what I have read about her
involvement.
Mr. Jordan. Got it. Mr. Horowitz, there are a few lawyers
in the Justice Department?
Mr. Horowitz. Yes.
Mr. Jordan. Can you hazard a guess how many lawyers in the
Justice Department around the Country and here at main Justice?
Mr. Horowitz. At least 10,000.
Mr. Jordan. Ten thousand lawyers. Okay.
Mr. Horowitz. I don't know the number precisely.
Mr. Jordan. Ten thousand lawyers, and the one who is
selected just happens to be a major contributor to the Obama
campaign, also happens to be in the Civil Rights Division, not
the Criminal Division, where most of the time tax matters are
handled. Do you find that a little unusual?
Mr. Horowitz. You know, not knowing anything about the
case, congressman, other than what I have read in the press, I
cannot give an opinion on that.
Mr. Jordan. Okay, let me just read something to you. Again,
just to get your reaction. This is from the Code of Federal
Regulations for Department of Justice Employees. It says an
employee's participation in a criminal investigation should not
create an appearance of a conflict of interest likely to affect
the public perception of the integrity of the investigation or
prosecution. Are you familiar with that statement, Mr.
Horowitz?
Mr. Horowitz. I am.
Mr. Jordan. I assume very familiar with it. And again,
based on your experience at Justice in that 12-year time frame,
does it appear that maybe there could be a perception that Ms.
Bosserman may have a conflict of interest?
Mr. Horowitz. Without knowing the facts more specifically,
other than through the press, I think I would defer to answer.
Mr. Jordan. Let me ask it this way. Do you think maybe a
typical American who understands this fact pattern could reach
that conclusion? Not saying what you would reach, but do you
think Americans could reach that conclusion?
Mr. Horowitz. I guess I would ask to defer on that. I think
we try to speak to what we have done and worked on.
Mr. Jordan. I understand. And I appreciate that. Again, you
have a stellar, impressive, nonpartisan record, calling balls
and strikes and doing exceptional work.
I would just say for the committee we need to remember what
took place in this whole ordeal. Last Spring Lois Lerner goes
to a Bar Association speech and, with a planted question,
breaks the story of the scandal at the IRS three days before
the inspector general is going to issue his report. So they
jumped ahead of the inspector general's report, which should
concern all of you. It certainly concerned us.
A few days later the attorney general says we are going to
get to the bottom of this, launches a criminal investigation.
Four weeks into that investigation we had the opportunity to
have then Director Muller in front of the Judiciary Committee
and I happened to ask him three simple questions: Who is the
lead agent? How many agents have been assigned to the case? And
have you interviewed any of the victims? And four weeks into a
criminal investigation the FBI director said, I don't know, I
don't know, I don't know. Not exactly inspiring confidence that
they are getting to the bottom of this. And then we asked the
FBI to brief us. They have refused to do that. And now we
learn, now we learn the person heading up the case is not from
the Criminal Division, where they should deal with tax matters
and where Mr. Horowitz spent 12 years and dealt with lots of
tax matters, but instead the most political division in
Justice, the Civil Rights Divisions. And just to add a little
more to the story, she is a maxed out contributor to the Obama
campaign.
So what I am asking, I guess for unanimous consent of the
committee, is to enter this document into the record and
actually present it to Mr. Horowitz.
Mr. Connolly. Mr. Chairman?
Mr. Jordan. Yes.
Mr. Connolly. Reserving my right to object, and I will not,
I would ask equally that we enter into the record at this point
my letter to Russell George, the IG you are referring to,
demanding explanations for inconsistencies in his testimony
before this committee.
Mr. Jordan. Without objection on Mr. Connolly's, so done.
Mr. Connolly. I thank the chair.
Mr. Jordan. And without objection we will enter this into
the record.
Mr. Jordan. But, Mr. Horowitz, just to finish, because my
time has expired, this is a letter from the chairman and I
requesting that you do an investigation into the circumstances
surrounding Ms. Bosserman's selection as the person heading up
the IRS investigation at the Department of Justice.
Mr. Cummings. Mr. Chairman?
Mr. Jordan. Recognize the ranking member.
Mr. Cummings. Just very briefly on the submittal. It is my
understanding that there is law which basically says that the
party affiliation of these attorneys, there are certain things
that cannot be done. Is that right? Are you familiar with that?
Mr. Horowitz. I am generally familiar, but I would not
venture, frankly, to give an opinion.
Mr. Cummings. I just want to make sure that when it comes
to, Mr. Chairman, party affiliation, that we are careful that
we are not stepping on the toes of people who are honorable
people, but then their reputation gets damaged because they may
have made a contribution here or there. I don't even know your
affiliation. I am not going to ask you because it is not any of
my business, but I am sure you probably made a contribution
here and there yourself. So I just want us to be careful,
because behind these statements, Mr. Chairman, are human beings
who have families, and I am concerned about, when all the dust
settles here, are they still standing.
Mr. Jordan. I would just point out to the ranking member I
am not questioning Ms. Bosserman's honor, but I do think the
American people may question her loyalty. When you give $6,750
to the very individual who heads the Administration and you are
investigating cases where that Administration targeted people
with differing political views, that is a real concern,
especially--and I would ask unanimous consent to enter into the
record, again, the Code of Federal Regulations for Department
of Justice Employees, which reads, and I will read it again
just so everyone has this clear: an employee's participation in
a criminal investigation--that is exactly what this is--should
not create an appearance of a conflict--I don't know how you
can create a bigger appearance of a conflict than the fact you
maxed out contributions to the Administration you are supposed
to be investigating--of interest likely to affect the public
perception of the integrity of the investigation or
prosecution. And let's remember there were 9,999 other lawyers
that they could have maybe picked, but, no, we get Ms.
Bosserman.
Mr. Cummings. So we want to go and we want to go through
the financial records?
Mr. Jordan. No.
Mr. Cummings. No, no, no, you listen to me.
Mr. Jordan. Wait a second.
Mr. Cummings. No, no, no. We want to go through the
financial records.
Mr. Jordan. No we don't.
Mr. Cummings. Apparently so.
Mr. Jordan. No we don't.
Mr. Cummings. We want to go through the financial records
of every attorney who works and who has made contribution.
Mr. Jordan. I am asking Mr. Horowitz to find out for this
committee, and more importantly for the American people, how is
it that Ms. Bosserman gets picked out of 10,000 lawyers. And
let's remember he just----
Mr. Cooper. Point of order, Mr. Chairman.
Mr. Jordan. Hang on one second and I will get right to you.
He just testified that in 12 years in the Justice
Department in the Criminal Division they dealt with all kinds
of tax law issues and, to his recollection, not one time in
that 12 years did the Civil Rights Division deal with tax law
issues. But that is not what we have here.
Mr. Cooper. Point of order, Mr. Chairman.
Mr. Jordan. The gentleman is recognized.
Mr. Cooper. I believe the gentleman's time has expired and
there are others of us on both sides of the aisle who would
like their time.
Mr. Jordan. And you will be given your full time and some
extra, frankly, if Mr. Issa agrees to that. But I was
responding to the ranking member's comments, who had over five
minutes as well, as I might add.
Mr. Connolly. Mr. Chairman, would you yield for a question?
Mr. Jordan. Mr. Cooper? Who had the question?
Mr. Connolly is recognized and then Mr. Cooper is
recognized.
Mr. Connolly. Mr. Chairman, I hear your concern about the
fact that somebody writes a check for a partisan political
candidate or party that that could create the appearance of a
conflict. I assume the chairman then shares my concern that
that could equally apply to an IG, such as Mr. George, who
wrote political checks to a political party, yours. I assume
you share my concern that that--I mean, what is good for the
goose is good for the gander--that that would be equally of
concern, in this case to an IG.
Mr. Jordan. The gentleman from Tennessee is recognized.
Mr. Cooper. Mr. Chairman, the title of this hearing is
Empowering Agency Oversight: Views from the Inspectors General
Community. And I know this is the ADHD Congress, but it is very
important that we try to stick to the topic and let's hear
about empowering the IG community, ideally from the IGs. A
number of us have questions, like I am struck by the testimony
of Mr. Horowitz. It seems like your office in DOJ and OPR have
overlapping responsibilities, and I wonder whether they are in
fact redundant and maybe we need to consider merging OPR with
your office, or maybe there is some sensible arrangement there.
And I know that DOJ is a unique situation.
My particular interest is in IGs overall, all 73. And as
the author of the 2008 legislation, for my colleagues who were
not here then, I need to remind you how difficult it was to
pass that bill. It took many years. Why? Because the
administration of George W. Bush had a veto threat out on the
legislation, in particular the Office of Management and Budget,
because somehow they viewed empowered IGs, professionalized
IGs, as a threat. It was always beyond me.
When we finally got the issue to the floor, over 400 of our
colleagues voted in favor of this legislation, overcoming the
veto threat that we had received from OMB. So it is important
that we work through these issues on a bipartisan basis for the
good of the American taxpayer, and I think we all want
watchdogs inside these agencies and we want watchdogs with
teeth, whether the agency employee is being investigated as a
lawyer or not, or whether they are overseas or not, regardless
of the circumstances.
I am particularly interested in testimonial subpoena power
so that there is not a level of fraud that is unintentionally
condoned just because it doesn't rise to the level of FBI
scrutiny, but these folks kind of get the street talk, they
know they can get away with it just because they can't be
caught.
So if you could help me look at the OPR-DOJ IG issue and
then this testimonial subpoena power, I think that would help
actually address the topic of this hearing.
Mr. Horowitz. Thank you, congressman, and thank you because
I know you were one of the cosponsors in a bill that would have
addressed the very issue we are talking about. It was a
bipartisan group in both the House and the Senate that
supported it, and it is a very important issue to us because it
does create the potential, just as you indicated, and the
Brandon Mayfield case is the best example of that that I can
publicly speak to, which is that was a case where an attorney
in Oregon was improperly detained by the FBI due to false
fingerprints. The issue was what happened on the FBI side and
what happened at the Department.
As a result, there were two investigations. We did the
investigation into the FBI agent alleged misconduct; the
Department did the review of the attorney alleged misconduct.
The result was our report, as I said, is public, it is
available; the other report is not. The system has worked well
with regard to our oversight of FBI, DEA, ATF, all the other
components because it is simple: we have a right of first
refusal. Cases come to us. If they involve senior level
managers, significant misconduct or criminal violations or
pervasive mismanagement, we take it; if not, it goes back
because it is relatively routine. That avoids the duplication
entirely. So this is an important issue.
With regard to testimonial subpoenas, there have been many
instances in just my 20 months where we have seen this problem
where employees resign, retire just before they are going to be
interviewed by us. One I was told that occurred before I got
here involved a politicized hiring review that we did back in
the mid-2000 period. The night before the interview, one of the
key witnesses resigned and we were unable to interview that
employee.
Now, I appreciate completely the concern about unfettered
subpoena power. I don't believe for a minute that should be the
case. There should be appropriate restrictions. We should make
sure individuals' due process rights are covered; they should
be notified of their right to counsel. There should be an
advanced notice to the Department to protect criminal cases.
There are all sorts of protections that I think absolutely need
to be built into the process. But there are many instances we
could cite where our ability to do full, complete reviews that
you would want us to do have been stymied.
Mr. Cooper. I thank the gentleman. My time has expired.
I thank the chair.
Mr. Jordan. I thank the gentleman.
The gentleman from Utah is recognized.
Mr. Chaffetz. I thank the chairman.
To all of you, appreciate what you do and how you do it.
The IG community is so important to us.
Mr. Horowitz, I have had the good opportunity to visit with
you on several occasions, and your presence and expertise in
your team gives me great comfort that we are getting to the
bottom of a lot of these things, and I wish you God speed in
everything you are doing.
I want to talk for a moment about the Bureau of Alcohol,
Tobacco, Firearms, and Explosives, the ATF. We have had
numerous issues with the ATF as a nation in the past. There is
a case, it is known as Operation Fearless. This was conducted
in Milwaukee, Wisconsin and it was rife with all sorts of
problems. We had a theft of an assault rifle, two handguns from
the primary undercover agent's government vehicle, the burglary
of the undercover's storefront, recruitment by ATF agents of an
alleged brain-damaged man to coordinate the gun deals. The ATF
there was paying teenagers, paying teenagers to put a rather
large size tattoo of a squid smoking a joint on their body to
try to give some credibility to this storefront, that it was
involved in nefarious activities.
There are a whole host of problems that I have with that,
in the direction they were going. I guess what is even more
troubling is that the committee became aware of some of these
problems, was addressed in a letter from Chairman Issa and some
other members, Senator Grassley, Chairman Issa, Chairman
Goodlap from the Judiciary Committee. They did, months later,
provide a response, but then in the briefing the ATF informs
the Congress that this was an isolated incident.
Then, on December 7th, 2013, some exceptional reporting by
the Milwaukee Journal Sentinel highlighted that they were doing
similar types of operations in Portland, Oregon; Wichita,
Kansas; Albuquerque, New Mexico; Atlanta, Georgia; Pensacola,
Florida.
Are you aware of this case and are you actively involved
and engaged in reviewing it?
Mr. Horowitz. I am aware of the case. I was aware initially
of Operation Fearless that you indicated, and then the
subsequent reporting about the broader concerns on storefront
operations. We have initiated, in our follow-up review of the
Fast and Furious report, a look at how the controls that
supposedly have been put in place, how effective they were as
to Fast and Furious issues, and also how effective they have
been for storefront operations like this.
When the additional information was developed about further
storefront operations beyond Milwaukee, what we have indicated
to the committee, to the chair and ranking member, and to our
other oversight committees is we are looking at those issues,
because there are so many, as you have indicated, to try and
understand where we should be focusing our attention and our
review. We have, obviously, limited resources and we want to
have the greatest impact, but we are aware and we are looking
at the issue.
Mr. Chaffetz. And for each of those cities as well?
Mr. Horowitz. For the other operations, trying to get our
arms around what is out there. We have asked for briefings. We
have received briefings from ATF so that we can be better
informed before actually launching the review. But we will be
informing the committee and our other oversight committees of
the steps we are going to take in light of this.
Mr. Chaffetz. Thank you, and I look forward to getting
those briefings and understanding them.
To my colleagues here on the dais, I think one of the
concerns here, it is an ongoing trend. In Operation Fast and
Furious, we were told numerous times that there were no guns
they were running, there were no guns that were released. They
provided that in writing; they provided that verbally. And then
here we have the ATF again telling us this is an isolated case,
this hadn't happened. The consequence of this, how we get to
the bottom of it, I don't know exactly how to do that. I don't
know if somebody has suggestions.
But is this a trend that you see? Do you have any
suggestions on how we deal with that?
Mr. Horowitz. Certainly the oversight that is being done
both in the House and the Senate is important. Our work and our
putting forward the reports that we put forward, and digging
and looking for the evidence of that hopefully will be helpful
to the Congress's oversight.
Mr. Chaffetz. Now, your office made a number of
recommendations in the wake of fast and furious. Where is ATF
in the implementation of those recommendations?
Mr. Horowitz. We launched our review in late October, early
November, right after the shutdown, of the one-year review and
looked back to do that. We are in the process of doing that. I
am hoping in the next several months we will have a report for
the committee and the public about our assessment of those
controls.
Mr. Chaffetz. Thank you. I yield back at zero seconds, I
want noted for the record. Thank you, chairman.
Chairman Issa. [Presiding.] I see a plus one. Close.
Mr. Connolly.
Mr. Connolly. Thank you, Mr. Chairman.
Mr. Horowitz, to pick up on our colleague, Mr. Jordan's
questioning, he was concerned about Ms. Bosserman's political
history, correct?
Mr. Horowitz. That was the question.
Mr. Connolly. Did I understand you to share his concern?
Mr. Horowitz. I know nothing about the facts involving the
matter other than what I have read in the newspapers, so I am
not opining on this issue.
Mr. Connolly. All right. As an IG in general, would it
concern you that the FBI might employ the services of somebody
who has a particular expressed political predilection in the
form of a campaign contribution?
Mr. Horowitz. I think the hypothetical question for us is
dangerous to get into, and I will, think, respectfully defer.
Mr. Connolly. Well, let me move beyond the hypothetical.
First of all, for the record, there is a letter dated October
31 to the chairman, Mr. Issa, from Steven Kelly pointing out
that there are 11 special agents assigned to this particular
case, not one; and Ms. Bosserman is one of 11. Is that a fact?
Mr. Horowitz. I have no idea.
Mr. Connolly. Are you familiar with this letter from Mr.
Kelly?
Mr. Horowitz. I am not.
Mr. Connolly. Well, presumably, since it is an official
letter on Justice Department, it is not subject to dispute; he
did in fact write it.
Mr. Horowitz. I am not disputing it, I am just tell you I
haven't read the letter.
Mr. Connolly. All right.
Chairman Issa. So the gentleman would say that if the
Justice Department says something, it must be true?
Mr. Connolly. I will hold that in abeyance, Mr. Chairman,
but I would ask, without objection, Mr. Chairman, that that
letter be entered.
Chairman Issa. Without objection, so ordered.
Mr. Connolly. I thank the chair.
Mr. Connolly. Secondly, Mr. Horowitz, also beyond the
hypothetical, let me read to you a statement from the
Department of Justice spokesperson with respect to Ms.
Bosserman, this very issue: ``It is contrary to Department
policy and a prohibited personnel practice under Federal law to
consider the political affiliation of career employees or other
non-merit factors in making personnel decisions.'' That is a
statement from the spokesperson of your Department. Do you in
any way challenge that statement?
Mr. Horowitz. I have no information to challenge that
statement.
Mr. Connolly. You don't have any information about what the
law requires?
Mr. Horowitz. Generally, I would accept that as a
proposition.
Mr. Connolly. Right. It is actually against the law to ask
somebody their political affiliation when you are meting out
assignments in your Department, is that not a matter of record?
Mr. Horowitz. We would not do that.
Mr. Connolly. Right. So if we actually did what Mr. Jordan
seemed to be suggesting, it would actually be a violation of
law by superiors in the Department of Justice.
Mr. Horowitz. My understanding of the law generally would
prohibit asking the question.
Mr. Connolly. I thank you, Mr. Horowitz.
Mr. Jordan. Would the gentleman yield?
Mr. Connolly. Yes, Mr. Jordan, I would yield.
Mr. Jordan. The way I read this, I think the way it is
understood, employee's participation in criminal investigation
should not create an appearance of conflict. It is the lawyer's
obligation to make that known. We just happened to find it out.
They didn't tell us; we found out from other witnesses----
Mr. Connolly. Well, reclaiming my time.
Mr. Jordan. That is why it is appropriate----
Mr. Connolly. Reclaiming my time, Mr. Chairman.
I respect my friend's point of view and, therefore, I know
he can relate to the consternation many of us on this side of
the aisle felt when we learned about the political
contributions of Mr. Russell George and wondered whether that
might color his testimony before----
Mr. Jordan. Would the gentleman yield again?
Mr. Connolly. No. I am running out of time; otherwise, I
would be glad to.
Mr. Jordan. It is a good point.
Mr. Connolly. But it just seems to me if we are going to
make an issue out of someone's political giving, then let's
make an issue out of someone's political giving and address it
in legislation. But it seems to me, and Mr. Horowitz has just
testified under oath that it is his also concurring opinion
that it would be a violation of law to do what you suggested,
or seemed to be suggesting the Department of Justice ought to
have done.
Ms. Gustafson, how does an IG investigation get before
CIGIE? If someone says I think Harry Houdini has done something
wrong or violated ethics, or whatever it might be, how does it
get before CIGIE?
Ms. Gustafson. And in this instance Harry Houdini is an IG?
Is that what we are talking about?
Mr. Connolly. Or Harriet Houdini. Either one.
Ms. Gustafson. Well, the reason I asked that----
Chairman Issa. Is this a disappearing question?
[Laughter.]
Mr. Connolly. Well, I am trying to understand your process,
because there is a case from the archives that is still pending
before and it is taking an awful long time.
Ms. Gustafson. So the IG Reform Act of 2008 statutorily
created the Integrity Committee, which is a standing committee
of CIGIE which does investigate allegations against an
inspector general. So the way that those allegations would be
conveyed to the Integrity Committee there are several ways;
they have their own email, they have an address. If it comes
through other matters, which is to say if it somehow reaches
the chair of CIGIE, who is Phyllis Fong, she is the IG of
Agriculture, she would convey those to the Integrity Committee,
that is a standing committee that then undertakes their process
for investigating----
Mr. Connolly. Excuse me for interrupting one second.
Mr. Chairman, Mr. Jordan, when he was in the chair,
promised us a little bit more time. Would the chair indulge me
with another 20 or 30 seconds?
Chairman Issa. Well, you are 24 and you are on a roll. Just
keep going.
Mr. Connolly. All right. I just had one quick followup, and
I won't abuse it.
Chairman Issa. Of course.
Mr. Connolly. I thank the chair.
Sorry, Ms. Gustafson.
Ms. Gustafson. So the Integrity Committee is a standing
committee; there is a representative from the FBI, there are
four IGs on that committee, Office of Special Council is on
there. They determine whether the allegations warrant an
investigation.
Mr. Connolly. But, because I am running out of time and I
do not wish to abuse the indulgence of both chairs, can an
outside party come to you and say I think Harriet or Harry
Houdini has----
Ms. Gustafson. Oh, absolutely. Anybody can come with
allegations.
Mr. Connolly. Okay. Good to know. Thank you.
Chairman Issa. Everybody has standing.
Mr. Connolly. Thank you, Mr. Chairman.
Chairman Issa. If I could beg the indulgence of the
gentleman just because of something that Mr. Horowitz said. In
the case of an attorney who may have a perceived conflict or an
integrity question, although Mr. Connolly asked you the
question, my understanding is in your earlier testimony that
clearly this is where it doesn't go to you; the question of the
gentlelady, Ms. Boswell, it is not going to come to you, it is
going to go to the Officer of Professional Responsibility.
Mr. Horowitz. That issue arises and would actually trigger
the concern Congressman Cooper raised about the potential that
we would both think we might have jurisdiction and create
overlapping issues. It does demonstrate that problem.
Mr. Jordan. Mr. Chairman?
Chairman Issa. Briefly.
Mr. Jordan. My understanding, based on Mr. Horowitz's
opening statement, it is in a lawyer's capacity as a lawyer,
their conduct in the courtroom, their conduct as a lawyer, that
goes to OPR. Anything else, whether they get the case, how they
are assigned the case, professional misconduct, not recusing
themselves like they should, that is all under the inspector
general. It is just their advice as a lawyer, that is where OPR
comes in, is that correct?
Chairman Issa. I know we just sent a letter, and I am well
aware. I just wanted to make sure that Mr. Horowitz had the
situation that I think is going to occur, which is in the
question of public integrity related to whether or not she
should have disclosed and/or recused herself, I strongly
suspect this will be a test for Mr. Cummings and myself of how
it is handled, because it is a valid question that has been
raised. There are two possibilities for who will look at it and
how it will be interpreted. And as we look forward to proposed
reform, I, quite frankly, with Mr. Connolly, Mr. Cooper, and
Mr. Jordan, I am looking forward to see how the investigation,
the decision, the process is, because we are here considering a
significant legislative action that would clarify any areas of
ambiguity, and you brought one up.
So I wasn't predicting that there was an authority; just
the opposite. I think this is a good test case.
Okay, we now go to the gentleman from South Carolina, Mr.
Gowdy, a man who knows about public integrity and what a lawyer
should or shouldn't do.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Horowitz, you did a wonderful job with Fast and
Furious. You told us that you would be fair and evenhanded, and
you were. I want to talk about one thing that bothers you, one
thing that bothers me, and then one thing that you are too
smart to answer, but I want to talk about anyway.
What bothers me is when agencies come in here and there is
an allegation of criminal conduct and they have to wait until
the inspector general investigates it before they can stop the
criminal conduct, because my understanding was that you
actually don't investigate and prosecute criminal conduct. I
don't think you have access to a grand jury, do you?
Mr. Horowitz. We investigate, but we can't make the
prosecution.
Mr. Gowdy. Can you indict?
Mr. Horowitz. We cannot.
Mr. Gowdy. Can you prosecute?
Mr. Horowitz. We cannot.
Mr. Gowdy. Can you recommend sentences?
Mr. Horowitz. No.
Mr. Gowdy. If someone at the Department of Justice were
watching an employee raid the vending machine, should they stop
it, call the police, or call you?
Mr. Horowitz. Probably all three.
Mr. Gowdy. Yes. They should stop it. I mean, they don't
need to wait for you to tell them to stop a criminal act, which
is why I am so frustrated with the IRS. The notion that all
they have to do is just refer it to the inspector general and
they have no duty at all to investigate on their own, no duty
to stop the conduct, just turn it over to the inspector general
and that kind of tolls their moral statute of limitations.
I want to talk about what bothers you. You are a really,
really good lawyer. I can't afford your hourly rate, but I am
going to ask you anyway to put your hat on as a lawyer. What is
the argument on the other side for not allowing you to do what
OPR does?
Mr. Horowitz. The argument traditionally has been OPR has
the expertise to deal with ethics issues, understands some of
the more difficult issues within the Bar rules and the various
State Bar rules. There are 50 State Bars, differing rules, and
that expertise shouldn't be usurped.
Mr. Gowdy. All right. Your background, you were in the
Southern District, you were in main Justice. I assume, to be
the inspector general for the Department of Justice, you have
to have a pretty similar background; you have to be an
attorney, I would think, don't you?
Mr. Horowitz. Traditionally, that has been the case.
Certainly the last three IGs have been lawyers.
Mr. Gowdy. Do you think that is why they were reluctant to
give the jurisdiction for OPR to the inspector general, because
you may have a non-lawyer as the inspector general or you may
have someone that doesn't have a background in criminal
prosecution?
Mr. Horowitz. I think that was one of the concerns at the
outset, back in the late 1980s.
Mr. Gowdy. All right. I picked up from my friend from
Virginia and my good friend from Ohio that you are probably,
wisely, not going to weigh in, but I do want to ask you just
some questions, not about this in particular. I want you to
tell the committee what a strike for cause is. You are back in
a courtroom in the Southern District, and what is a strike for
cause?
Mr. Horowitz. As you are doing voir dire, which is jury
selection, each of the parties, prosecutor/defendant in a
criminal case, plaintiff/defendant in a civil case, has the
right to strike for cause jurors. The judge ultimately decides
whether to accept that, but the strike for cause is that that
individual can't fairly judge the case for some particular
reason either unique to the individual or to the case.
Mr. Gowdy. And do you also have other kinds of strikes that
you can use when you are drawing a jury?
Mr. Horowitz. You have, then, peremptory challenges, where
you don't need to explain a cause for the strike, but----
Mr. Gowdy. You just can't violate the law and it----
Mr. Horowitz. You can't do it for----
Mr. Gowdy. But you get to decide whether or not that
particular juror could be fair.
Mr. Horowitz. Right.
Mr. Gowdy. And in reality, I suppose my mom could be fair
in judging my conduct. She could be, but there is no way in the
world you would ever seat her on a jury.
Mr. Horowitz. I probably would not.
Mr. Gowdy. No, you would not. And I wouldn't seat your mom
on a jury. She could be fair. I don't know Ms. Bosserman. I
never met her. The fact that you donate money to a candidate
does not de facto mean you cannot be fair. But I can't help but
think, in an investigation this politically charged, you can't
find someone at the Department of Justice that doesn't have
this background. You and I both work with people that would
never donate money to any candidate; they are just apolitical.
They are career prosecutors, they are not wanting to be the
U.S. attorney, they are not wanting to be a Federal judge, so
they are not going to donate money to Senators; they are just
career prosecutors. For the life of me, I just don't understand
why you wouldn't pick someone so we don't have this
conversation.
You spent a large portion of your career being concerned
about the result. But you also spend an equal amount of your
career being concerned about the process. I don't know whether
Ms. Bosserman could be fair or not. I would just say this: it
was an unforced error on the process side.
And I don't understand why they did it, Mr. Chairman.
Chairman Issa. I thank the gentleman. I might note for the
record that no one ever found me guilty more often than my
mother.
[Laughter.]
Chairman Issa. We now go to the gentlelady from Illinois,
Ms. Kelly.
Ms. Kelly. Thank you, Mr. Chair, and welcome to the
witnesses.
Ms. Gustafson and Mr. Horowitz, I have a few questions
about budget cuts on your IG operations. You both, whether
today in testimony or in prior hearings, talked about hiring
freezes and your staffing levels, so I wanted to know are your
staffing levels still below the levels they were prior to the
budget cuts.
Ms. Gustafson. My staffing levels, you know, haven't
changed. As every agency is, I was waiting with baited breath
to see, and still am until it is enacted, what my budget will
be for this year, so I have had a hiring freeze now for a
couple years and I remain 17 percent below. And that tends to
be, just given attrition, it is almost all in Audit; my audit
staff is drastically low right now.
Mr. Horowitz. And we are still far below where we were when
I was sworn in in April 2012. I am very hopeful, after seeing
the proposed legislation, that we will get that budget and be
able to move forward, because that will help considerably.
Ms. Kelly. And, Ms. Gustafson, if the hiring freeze remains
in place and you cannot fill your vacancies, what impact will
that have on your ability to oversee the Small Business
Administration?
Ms. Gustafson. Well, there is no question, again, my
vacancies are in Audit, that the amount of audit work that we
can do, both in the 7(a) and the business lending programs,
which is a $750 billion portfolio, and then 23 percent of all
Government contracts are small business contracts; and our
oversight of that is going to be slower. I mean, we simply are
going to be having less oversight until I can come back up to
speed.
Ms. Kelly. And have there been cuts in your travel budget
or any other of your budgets? And what have the consequences
been of these cuts?
Ms. Gustafson. I have been lucky in that I have not had to
restrict travel of my investigators. Most of my travel budget
comes from my criminal investigators. I only have about 40 of
them to cover the entire Country. I will tell you that I know
that there are some IGs that have restricted travel of criminal
investigators, where, if the allegation is in Omaha, they
haven't had the money to go to Omaha to look for those crimes.
I have not had to do that because I am down so many people,
unfortunately.
Ms. Kelly. So it does impede the ability to investigate,
without having enough resources.
Ms. Gustafson. Right.
Ms. Kelly. Even though you both seem helpful, but if there
are flat budgets going forward would prevent further
reductions, but also prevent your office from growing back to
their precut levels, what would the consequences of this type
of funding be on your audit programs in the coming years?
Ms. Gustafson. Well, I would remain at some of the lowest
levels that I have been at in some time, again, because, even
stagnant, some of my auditors, they will, as they mature, as
they get more experience, they have gone up in grade, so in
order to absorb and be able to not have to do furloughs, we
have had to keep those vacancies, and that would have to stay.
Ms. Kelly. And for any of you, what were the consequences
of the Government shutdown on your offices?
Ms. Gustafson. We stopped working for 16 days, my audit
staff and my investigative staff, unless they had criminal
cases going on or grand jury appearances, things that, on a
case-by-case basis, absolutely needed to be done, were time
sensitive. They were home. The taxpayers weren't getting
anything. They were home.
Mr. Horowitz. The same here. Other than our investigators,
who were at work, our audit staff was completely at home and
all of our audits, as a result, were shut down during that
period.
Ms. Kelly. Thank you.
Ms. Buller. It was the same at the Peace Corps OIG; only
the investigators worked. And we had congressionally mandated
work that was due in November that we couldn't do, that we were
hoping to get done.
Ms. Kelly. Thank you, and I yield back.
Mr. Cummings. Would the gentlelady yield?
Ms. Kelly. Yes, I will.
Mr. Cummings. Thank you very much.
Let me ask you this. Yesterday I was at an event at Social
Security in my district. We have probably a large number of
Social Security folks because we are headquarters. And we were
dedicating a building and I had a chance to talk to some of the
employees afterwards, and one of the things they were telling
me is over the last three years they lost 11,000 employees. But
they talked about the morale, and you can't put a dollar sign
on that, but they were talking about how they were now having
to do a lot more work with a lot less people, and that they
felt that they were not being efficient. So I am just wondering
how does it affect morale and what kind of slippery slope are
we going down here? And you may not agree with that, but go
ahead.
Ms. Gustafson. No, I think that there has been a
tremendously negative impact on morale in my office in the last
several years for various factors. You know, the pay freezes,
as other costs have gone up, I think when we were going through
sequestration, things like that, and people were using terms of
essential and non-essential, I think there is nothing more
morale-reducing than somehow being told or walking around
thinking, well, why am I non-essential. I think that it has
been very tough, quite frankly, to be a Federal employee. It
has certainly been a tough atmosphere for a lot of people, but
I think that morale in my office has suffered; they wondered if
they had to be furloughed. I mean, they have been living under
a cloud, I think, for a long time and it has been difficult.
But I do want to say this, because I think it is only fair.
I am every day just thrilled and really pleased by the
dedication of the public servants. I think they still love
their job, which is great, and they are very dedicated; and I
think it would be wrong for me to not note that.
Mr. Horowitz. I have been on 20 months, and in that 20
months there have been the threats of furloughs, pay freezes,
the shutdown, etcetera, so it has impacted morale. We have had
to restrict travel and training. Employees who want to advance
can't get trained. But I will say something else that they very
much appreciate is the support of this committee, the other
oversight committees, because they care so much about the work
they do. And I can't tell you how important it is when they
know some of their work is being considered by the committees,
by Congress. The document issues I have talked about, I am
guessing IG Buller would say the same thing, there is nothing
more morale debilitating than folks who want to do their job
and have to spend six months ultimately getting it, but going
through everything they go through, having to elevate it to me,
so I have to elevate it to the attorney general or a component
head. That is another part, I think, of the morale issue.
But what has happened the last 20 months, I agree with you
completely, Congressman Cummings, it has been a significant
morale issue.
Ms. Buller. If I could just weigh in on the last part of
what Mr. Horowitz said. What we have experienced with our
access issue with general counsel's office has really been very
deflating as far as morale goes. What appears to us is that we
are being somewhat singled out to be denied access to
information that we are entitled to, and it makes my staff feel
that they aren't being considered as professionals.
Chairman Issa. Thank you. I think that is good information
for us to know for both causes morale.
Ms. Kelly, I would note for the record that in the omnibus
this committee was instrumental in ensuring that there is now
anti-shutdown provision for the District of Columbia, and I
have a meeting with the ranking member tomorrow and one of the
topics is modernizing the very act of what happens if we go to
a period without funding Government-wide. And since this
committee has Government-wide jurisdiction, it will be a topic
for legislation by this committee. So I look forward to working
with the gentlelady on that.
With that, we go to the gentleman from Arizona, Mr. Gosar.
Mr. Gosar. Thank you, Mr. Chairman.
Thank you for all that you do. We certainly appreciate it.
Being from the private sector, I also see kind of looking at
this analogy of a car getting stuck in the mud. You have to
look at all the principles; the ground, the water, the tire,
the surface, all those types of aspects. And it is the conduct
and the bureaucrats' mind-set that bothers me, because there is
not consequences, unlike private sector. I was a dentist, so I
do a procedure, I am responsible for that procedure for so long
of a period of time. But it seems to be, here in this nightmare
on the Hill, that there is no consequences. So I would be very
interested from you as how do we look at accountability for
time served, you know, having access during that time served,
whether it is just in one agency or another, but having
jurisdiction within that.
Would redefining that application help us, Ms. Gustafson?
Ms. Gustafson. I think that in order for there to be
consequences and accountability, I think the key thing for us
as inspectors general is that we always have a good dialogue
with Congress and that we are always able, as Mr. Horowitz just
noted, to come up here and talk about our work because, quite
frankly, I think one of the frustrations, though an
understandable one for us, is we can't make anybody do anything
because we do not have a programmatic function.
What I have found in my four years here is the quickest or
the easiest way, and it is not easy to make them do something,
is make sure that Congress knows what is really concerning you
because they fear and listen to Congress a lot more than they
may listen to us, but I think they fear Congress more, and I
think that that is one of the things that is key. Like I said,
I think it is natural that, given our role, we are not supposed
to run things, I think it is a source of frustration, but I
think that is why it is so important and why we have that dual
reporting responsibility both to the agency and to Congress, so
that we can kind of have that partnership.
Mr. Gosar. And I understand, but I think that if there is
more of a caveat that there is a responsibility or there is a
resultant application that is very similar to private sector, I
think you are going to have a lot more application, people
saying, listen, I can't stray because there are consequences
for my behavior. And I think that benefits us all the way
across the board because it is not just the application of you
and Congress, but also what are the damages should I stray
outside those lines.
Would you agree, Mr. Horowitz?
Mr. Horowitz. I agree and I think the issue that I have
highlighted that is unique to my office on accountability
relates to our ability to oversee potential misconduct by
attorneys in the course of their work. Again, that was
something that was found by the GAO back to Chairman Brooks and
Judiciary Committee back in 1994, that a key part of
accountability is transparency, of understanding that there was
an independent oversight of the decision, and that the facts
were paid out in a fair, thorough way by an independent
overseer in those appropriate cases where we should be doing
that work.
Mr. Gosar. You bring in another aspect. When we have
complicated cases in the medical world, we have like a case
manager, and it seems to me that we could have somebody that is
overseeing both investigations and coordinating it. It seems
like that would streamline the process. Does that make sense to
you?
Mr. Horowitz. And, frankly, that is, in some respects, what
we have now in place with FBI, DEA, ATF, Marshal Service. They
still have their own internal affairs bureaus. It simply comes
to us in the first instance so that for what isn't routine,
what is significant misconduct, what involves high level
misconduct we can do. We only have 400-plus employees. I can't
do every case. The FBI has far more employees, as do the
others. It is having that ability for us to look first, pick
the cases and take those cases where the public, the Congress
would expect independent oversight.
Mr. Gosar. You are just highlighting. You are just on a
roll here. You just tied back into where I was going and
talking about whistleblowers, because I think very, very
important aspect is protections of whistleblowers coming
forward in those regards, so I wanted to ask you a number of
questions in regards.
So are you aware of any instances in which a DOJ employee
was alleged that his or her security clearances were revoked or
denied in retaliation for a protected disclosure?
Mr. Horowitz. I am actually. We have one recent allegation
we received about that issue. I am not sure, given only 20
months on the job, I am not sure if there have been any others
preceding me.
Mr. Gosar. And your office does have the authority to
investigate these types of claims?
Mr. Horowitz. If it is an FBI employee or a former FBI
employee, we have jurisdiction over FBI employees and
whistleblowers in terms of retaliation. So other department
employees we do not have jurisdiction over; that would go to
the Office of----
Mr. Gosar. So in reviewing cases like that, from the
limited time that you have been in, has any whistleblower ever
had that reprisal and had their privileges revoked?
Mr. Horowitz. We have received that allegation, but we have
not concluded that that was the case in that instance that I am
aware of. We have, in two other instances, not dealing with
those facts, but in two instances recently issued reports where
we found retaliation unrelated to the clearance issue
concerning that whistleblower.
Mr. Gosar. And if those allegations were to be true, what
would your office be prepared to do?
Mr. Horowitz. So what we do is we issue a report to the
department's office of oversight that then has to handle them,
as well as send it to the component for their follow up on our
report and findings, much like we did in Fast and Furious,
where we sent the report to ATF and the Department and said
here are the problems, here are our recommendations, now tell
us what you are doing.
Mr. Gosar. From your insight, stellar all the way through
law, do you think that there is more applications to
protections of whistleblowers that need to be enumerated by
Congress?
Mr. Horowitz. Let me think a little further about that,
given I am only 20 months on the job. I know that is coming up
now on two years, but I would want a little more time to think
about whether there are issues that I haven't seen yet that
some of the folks on my staff who do these cases routinely
would suggest.
Mr. Gosar. I would like that. And my previous question in
regards to consequences for actions from employees within the
agencies, making sure that--I mean, we have seen it over and
over again. When I go back home, everybody says, well, Congress
and the agencies are held to a whole different standard than we
in the private sector; you get away with murder is what they
will say, versus what we do in the private sector, and I do
agree with them to that aspect. So I would love all of your
aspects and protections for whistleblowers, and then also
consequences for the actions of employees. So thank you very
much.
Chairman Issa. Would the gentleman yield? Just one quick
question.
You mentioned FBI retirees. You ordinarily do not have the
ability to deal with retirees. What is different about that?
Mr. Horowitz. Correct. I am sorry. If an FBI retiree
reported that while they were at work they were retaliated
against, we would----
Chairman Issa. You would protect them, but you couldn't
call a fellow retiree who, let's say----
Mr. Horowitz. Correct. Correct.
Chairman Issa. Let me just briefly, if Ms. Speier will give
me 30 seconds. If we gave you at least the ability that DOD
has, which is a uniformed individual can be recalled from
retirement in order to continue an investigation, if we gave
you a similar authority Government-wide, that retiring did not
allow somebody to evade an IG investigation for the conduct or
activities during their tenure, if we gave you that limited
change in the IG Act so that the entire workforce would be
available to you if they left through retirement--I am not even
saying left without a retirement, but left through retirement--
would that be helpful in many of your investigations of senior
staff?
Mr. Horowitz. It would. And it doesn't necessarily even
need to be senior staff, frankly. I have seen it across the
board in 20 months in several investigations where that would
be helpful.
Chairman Issa. Thank you.
Ms. Speier. Mr. Chairman, thank you.
To each of you, thank you for your service to the taxpayers
of this Country.
Ms. Buller, you referenced that the sexual assault
complaints that are filed are restrictive.
Ms. Buller. Yes.
Ms. Speier. And I think it is very important for us to
appreciate that even in the Department of Defense you can file
an unrestricted report or a restricted report. When you file a
restricted report, the assailant is never investigated, and it
is like allowing a sexual predator to continue to prey on other
victims. That is something we can fix, is it not?
Ms. Buller. If you choose to do so with legislation. The
problem that we have with the Kate Pusey Act, it is
legislatively mandated. That is not exactly what we are talking
about or what I am advocating or what my problem is. We do
understand that victims of sexual assault are very traumatized
and that they----
Ms. Speier. I understand your perspective. I want the
committee to appreciate that right now only restricted reports
are allowed within the Peace Corps, which prevents any kind of
action being taken against the predator. Is that correct?
Ms. Buller. It is not that that is only what is allowed;
that is the default. Instead of having a system where a
volunteer who is a victim of sexual assault comes in and says I
am going to make a report and have that be unrestricted, it
automatically goes to restricted.
Ms. Speier. All right. Let me ask you, Ms. Gustafson, the
Alaska Native Corporation and the preferences in the 8(a)
program have been extensively looked at for abuse and
mismanagement. Do you have all the authority you need and have
all the recommendations you have given over the years been
implemented?
Ms. Gustafson. As you note, ANGs are 8(a)s, and we do have
the authority that I believe we need to oversee the 8(a)
program and to oversee any participants. I would like to get
back with you. We have done extensive work in the 8(a) area. I
know that there have been some regulatory changes that SBA has
made. What I would like to do is I can get back with you with a
list of where the recommendations are, because, like every IG,
we track our recommendations and whether they have been
implemented and agreed with, so I would be happy to get back
with you on any open and pending recommendations.
Ms. Speier. All right. Also, the goals for women-owned
small businesses are pitiful in terms of the various agencies
actually meeting those goals. Do you have any recommendations--
And you can do this by letter, if you want--as to how we can
somehow meet those goals, as opposed to just having them mean
nothing?
Ms. Gustafson. I would be happy to get back with you. As
you know, the women-owned small businesses is a newer program
and the goals are newer, so I would be happy for us to take
that back and maybe get back with you on maybe some comparisons
and see if there are tools that the other programs have that
might be useful.
Ms. Speier. All right. The CRS is working on a report right
now on the independence and effectiveness of the inspector
general's agencies, and they are particularly focused on this
peer review system. As I understand it, the peer review is one
that is self-review and it is peer review of each other, of IGs
of similar size, and there is some concern that there maybe a
cozy relationship that is created and you scratch my back and I
scratch yours, or I won't challenge or criticize you and you
won't criticize me. Charles Edwards, the acting deputy DHS IG
until he resigned in December, was accused of misusing agency
money for personal travel, including having his staff drive him
around and his wife for personal errands and scheduling site
visits in Florida so he could attend his PhD classes, helping
his wife get a job as a supervisory auditor within his office,
and retaliating against an employee that attempted to call
attention to his misconduct, and offering bonuses to employees
that helped him with his PhD.
An anonymous whistleblower also focused on the former IG
for the Library of Congress, who alleged to have verified his
own time sheets and claimed credit hours to accrue more than
800 hours in annual leave that he would be compensated for upon
his retirement on January 3rd. He engaged in nepotism to hire
family friends for positions in the office and used taxpayer
money for accounting degrees of family friends instead of
hiring qualified personnel. House administration minority staff
told our office in December that these allegations are factors
that contributed to his retirement.
So how do we make sure that the IGs are on the straight and
narrow?
Ms. Gustafson. Just to clarify, I think we are talking
about two different things. Peer reviews are done in IG offices
much like in audit offices, which is where, every three years,
an IG will peer review the other to see if standards are being
met, auditing standards. We also go through peer reviews of
investigator divisions.
You are talking about allegations of misconduct by an
inspector general, so I want to focus on that, which is the
duty of the Integrity Committee of CIGIE that are charged with
investigating those allegations. As I noted before, that
committee existed before the IG Reform Act of 2008, but was
codified in the IG Reform Act of 2008. And as you noted, under
that process, should the allegations warrant investigation by a
determination of the committee, another inspector general's
office would undertake that investigation. So some of the
things you mentioned, like Mr. Edwards, he would be
investigated by another IG that would have the resources and
the time to investigate him.
I will tell you again that this is the way it has been
done, and there is often a question who watches the watchdogs.
I think that, quite frankly, we are very proud of the work of
the Integrity Committee. I think that, in general, I think it
has found to do good work. If CRS is looking at it, I think
that is happy. We are happy to work with the committee. There
are sometimes concerns about the Integrity Committee, and we
are certainly happy, as a member of the Executive Council, we
often have that dialogue.
But I think the best answer is that is kind of the best we
have come up with. Now, obviously, if there is a specific
allegation, sometimes special counsel will investigate an IG,
but as far as investigations of misconduct, I believe that in
general IGs are best positioned to do those investigations
because those are the type of investigations that we do, we
investigate professional misconduct. So it is a system that was
set up by Congress. I think it is a system that we are
supportive of, but we are always happy to discuss it if there
are----
Chairman Issa. Thank you.
Ms. Speier, I might note that in the IG reform bill that is
being worked on now, two of the areas that I think address this
concern we are codifying further the seven day rule and when
Congress gets notified, particularly this committee. We are
also including the very question of integrity as a required
report. Any allegation of an integrity violation by a principal
IG has to be reported to this committee as soon as known; not
on a disclosure basis, but on a confidential basis because
essentially this committee oversees IGs, and if there is a
question of any of the 72, it is critical that this committee
be aware of it. But we would look forward to your input in
these other areas you discussed.
Ms. Speier. Thank you. Yield back.
Chairman Issa. Thank you.
The gentleman from Tennessee, Mr. Duncan.
Mr. Duncan. Well, thank you, Mr. Chairman. First of all, I
want to say I really appreciate the work of the inspectors
general overall. They are especially helpful to this committee
and, in fact, I introduced a bill several years ago to create
an inspector general for the Tennessee Valley Authority, and
that was passed and I am glad we have that in effect. I know
the inspectors general sometimes are not the most popular
people in their departments, but I appreciate the work that is
done and I especially appreciate the recent work we have had
done by the inspector general for Iraq, who has been in front
of us recently several times.
But, Mr. Horowitz, I am interested in this. About 20 years
ago Forbes Magazine had a cover article and it says, Time to
Slim Down. Since 1980, the Justice Department has nearly
doubled in size, to 98,000, and quadrupled in budget to $11
billion. And now the budget of the Justice Department is 250
percent higher than it was then, an average increase of 12
percent a year. And the point of that article was that there
were so many lawyers at the Department of Justice and they were
falling all over themselves trying to come up with cases to
prosecute, and Forbes said many business people were being
prosecuted for violating laws that they didn't even know were
in existence.
I know that everybody has violated probably several Federal
laws unknowingly, and an innocent mistake is not supposed to be
criminal, but a zealous prosecutor can make even an innocent
mistake seem criminal. And I am remember the celebrated case of
Ray Donovan, who was in President Reagan's cabinet. After he
was acquitted, he said, where do I go to get back my
reputation.
The power of prosecution is a dangerous and powerful power,
so I am concerned about this. Then I remember Senator Stevens
and the misconduct that came out later by some of those
prosecutors. So I am a little concerned or confused about what
your power is in that regard to do something if some prosecutor
has abused his discretion.
I was a criminal court judge for seven and a half years
before I came to Congress, trying the felony criminal cases.
Most criminal court judges, almost all are former prosecutors.
I happened to be one of the unusual ones who came from having
done criminal defense work. But it seems to me at times that
the Justice Department is almost out of control, and if you see
that, what can you do about it?
Mr. Horowitz. The way the jurisdiction currently works,
congressman, if there is an allegation about a prosecutor's
exercise of their prosecutorial authority, that goes to the
Office of Professional Responsibility. So the OPR handled the
Stevens matter and the referral there, and handled the New
Orleans matter recently involving the blogging that made the
press. I have been asked whether I would have the authority to
look at that. That was referred to the Office of Professional
Responsibility because it involved conduct by the prosecutor in
the course of their prosecuting the case. I have been an AUSA,
I was, for 10 years, before coming back to the Department of
Defense lawyer, so I fully appreciate the concerns you express
about the power prosecutors have and the need to make sure that
that is carefully overseen.
Mr. Duncan. Did I hear you say a few minutes ago or an hour
ago or so that you are the only inspector general that is
limited in that respect?
Mr. Horowitz. That is my understanding, that the IG Act,
only that provision, which is in 8E, which is specific to my
office, my understanding is the other IGs do not have that
limitation.
Mr. Duncan. Do you think that that restriction should be
eliminated or limited in some way?
Mr. Horowitz. I do. There has been bipartisan efforts to do
that over the years----
Mr. Duncan. But the Justice Department has been able to
stop that from happening?
Mr. Horowitz. It has not gone through in the past. And
Congressman Cooper actually was one of the individuals in 2008
who pushed that issue, as we talked about earlier.
Mr. Duncan. All right. Thank you very much.
Chairman Issa. Thank you.
We now go to the gentlelady, Ms. Grisham, I believe by
agreement. Mr. Davis, is that correct? That is what I was told.
Ms. Grisham.
Mr. Davis. Thank you very much, Mr. Chairman, and I
certainly thank the gentlelady.
I want to thank the panelists for their endurance and being
here the whole period of time.
Ms. Gustafson, you mentioned in your testimony that the
CIGIE would like Congress to add an exemption to the Freedom of
Information Act to protect work papers and other information
developed by inspectors general in evaluating the security of
agency information systems. Agencies previously used Exemption
2 of the Freedom of Information Act to protect this
information. However, under the Supreme Court's decision in
Milner v. Department of the Navy, agencies' broad use of
Exemption 2 has been limited. CIGIE has proposed exemption from
FOIA of Information that ``could reasonably be expected to lead
to or result in unauthorized access, use disclosure,
disruption, modification, or destruction of an agency's
information system or the information that system controls,
processes, stores, or transmits.''
You characterize this proposal as a narrow exemption. I am
not so sure how narrow this is and I would like, however, to
hear more from you exactly what type of information you believe
should be protected that is not already protected under FOIA.
Could you explain in more detail what kind of information you
are concerned about protecting from public disclosure and why
disclosure of this information would be of some concern?
Ms. Gustafson. Yes, Representative Davis. What the IG
community is most concerned about are the FISMA audits and
other audits and evaluations and reviews we do of information
technology, information security systems of our agencies. This
is something that is mandated, of course, by Congress,
understandably so, that we go and make sure that the IT systems
are as secure as they can possibly be.
Traditionally, as you know, all our reports are public
under law, which makes sense. We work for the taxpayers, so our
reports are publicly posted. What had been done previous to the
Milner decision was were there anything in those reports that
could reasonably be used by somebody with much more IT
knowledge than I to perhaps use a vulnerability to perhaps
inflict some damage on an IT system, that would be redacted
under the High 2 exemption, which under Milner, which was a
pretty sweeping decision, a lot of those exemptions went away
because I believe the Supreme Court said that was being
interpreted too broadly.
So we, as a community, are seeking to achieve a balance
between the public's right, of course, to know our work and we
want our public to know the work, and our ability to withhold
information that could be used to basically exploit our
systems. This is something we are working with. We have a
subgroup of the Information Technology Committees and the
Legislation Committee. We work very closely with the committees
in Congress that are working on this IT legislation. We
appreciate very much that our input is being used.
And I will let you know, sir, that we do also work with
those non-governmental organizations that are very sincere and
very strong in supporting openness in Government, and we have
worked with those and we will continue to work with those
organizations; POGO, the Sunshine Foundation, things like that.
We are trying to achieve this balance and we are hoping that we
can reach a balance where this information can be protected and
yet our reports remain open and we are not withholding
unnecessarily information from the people.
Mr. Davis. Well, as the public becomes more information
savvy and there is pursuit of more transparency, how are those
discussions going in terms of working with these entities and
at the same time being certain or as certain as you can be that
you are protecting the integrity of the systems?
Ms. Gustafson. Well, again, these are very robust
discussions that we are having where we are trying to always
answer the question of is this information that literally could
be utilized, could be a roadmap for somebody to exploit a
vulnerability in a system. It is not that we want all of our
work to be protected such that the taxpayer doesn't realize
perhaps SBA has an issue with FISMA. We think that there are
certain things the public needs and should know about whether
we are protecting our information technology systems. We simply
don't want to be giving the bad guys information they can use
against us, and that is really what we are trying to do.
Mr. Davis. Thank you very much.
Mr. Chairman, I yield back.
Chairman Issa. I thank the gentleman and I share with the
gentleman and the IG the concern for that.
We now go to the gentleman from Michigan, Mr. Walberg.
Mr. Walberg. Thank you, Mr. Chairman, and thanks to the
panel. Before joining this committee, I must admit I did not
have the respect or appreciation for what IGs and your staff
do, and communicate our appreciation for the very important
service you provide to this committee and other committees.
Mr. Horowitz, let me ask you, knowing the fact that
probably the singularly most important function, ultimately, in
your service and your agency's service is to issue a report,
what is the thumbnail process for the OIG in issuing reports?
Mr. Horowitz. Well, the first thing we do, obviously, is
hopefully gather all the documents we need and the evidence we
need to assess the facts and the issues. We then internally
write up our report, whether it is an audit or a review, such
as Fast and Furious. We send drafts, we talk internally, we
finalize our report. In some instances, for audits, we will
report back our mid-audit findings to the component, in part so
they can take corrective action sooner, rather than later, but,
for example, in Fast and Furious we did our draft report and we
then sent it for official comment to the Department. We would
do the same if it was a component; we would send an audit for
comment. The component would give us, in some instances, again,
in the audit setting we will sit down informally with the
component to get their feedback, our auditors, their auditors,
etcetera. We may or may not make changes to our working draft
at that point, but we will make those decisions, no one else
will, it will be an IG decision.
Mr. Walberg. Does that include the timing of your release,
it is completely up to you?
Mr. Horowitz. Correct. In our office--certainly I won't
speak for all the IGs, but certainly in our office our practice
is we make the decisions on when to release it and how to
release it.
Mr. Walberg. What is the appropriate relationship between
the inspector general's office and the DOJ in this case?
Mr. Horowitz. Well, on that issue, we would, and have
traditionally, provided the Department one day in advance the
report that we are issuing publicly, and then we will, on our
own, through our mechanism, release it publicly. But it is not
given to the Department for them to release until we have
actually released it; we are the ones who control the release.
Mr. Walberg. So you consult with them regularly before
release, at least that is the normal process. You would consult
with the Office of Legal Counsel?
Mr. Horowitz. We would not consult with the Office of Legal
Counsel, necessarily. What we would do is we would interact
with. Consult I am not sure is necessarily what we would do,
but we would certainly interact with the component we are
overseeing, whether that is ATF, the FBI, a U.S. attorney's
office, in an audit in particular, about what we are finding if
there is a problem so they can take corrective action as we are
finishing our report and reporting on the problems we found.
Mr. Walberg. And it is possible, then, for them, in working
with you, to alter the language of the report, the content of
the report?
Mr. Horowitz. The component or the Department can certainly
give us their comments about what we have written and what we
are intending to say. We will certainly consider that, but we
will be making those decisions; there will not be joint
editing, writing, anything like that. That is a core function
of our independence is we are the deciding officials as to what
goes in that report.
Mr. Walberg. Okay. Okay. You referenced Fast and Furious.
You gave a report and set down some recommendations in that
report. In your opinion, has the Department made progress in
implementing the language of that report, the expressed
concerns of that report?
Mr. Horowitz. The Department has reported to us that they
have, and we have now initiated, and we alerted the committee
that we were initiating, a month or two or so ago, the one-year
follow-up of our report so that we can report to you and the
public how the Department and ATF has done.
Mr. Walberg. Thus far, are you satisfied with the
Department's efforts in responding to that report?
Mr. Horowitz. Congressman, until we finish our reviews, we
make no judgments. We want facts. We will sit down with my
staff and we will come up with our views after hearing from
everybody. We want to make sure we have all the evidence.
Mr. Walberg. Have they responded appropriately? I guess I
would say that. Their efforts in response, has it been
appropriate in time?
Mr. Horowitz. So far we have gotten the materials we have
asked for, but we are in the beginning stages, the first
several weeks of that review, so we are hopeful that that will
continue.
Mr. Walberg. Thank you.
Chairman Issa. Thank you.
Ms. Grisham?
Ms. Lujan Grisham. Thank you, Mr. Chairman.
I want to join my colleagues in expressing my appreciation
for the roles of inspectors general across Government. In fact,
in my district and in my State of New Mexico, both fortunately
and unfortunately, we have had experiences with the Department
of Justice protecting individuals from Government abuses and
practices, and currently have an ongoing investigation with the
largest city in my district, the Albuquerque Police Department.
So recognizing that we have that independence, that we can make
those complaints and reports, and that you recognize the value
and the importance of that work. In fact, it really is life or
death in many of the programs and services that we are
providing when it is dealing with law enforcement or medical
services provided by a Government agency or entity. So I want
to thank you for that independent and crucial and critical
work.
I want to follow up on something that my colleague, Mr.
Davis, was talking about in striking the balance between being
transparent and meeting our requests under FOIA, but also
making sure that we don't enhance a bad actor's ability to
either continue on that path or to prevent us from finding
additional information.
Has there ever been a circumstance where publicly disclosed
IT vulnerabilities helped hackers further compromise an
agency's IT systems since the 2011 Supreme Court case? To the
best of your knowledge, does anybody have any information that
that has occurred or was likely to occur or the threat was
there?
Ms. Gustafson. To the best of my knowledge, I am not aware
of any. I will tell you that I think that the nature of the
public reports have changed, which is to say I think that what
is being publicly released has changed because we can no longer
black out things that we would have exposed a security
vulnerability. So the work is still being done; I think the
nature of the product has changed and that there is just a real
concern that should there be a legal challenge or something,
again, there is a fear of work papers and things like that
under FOIA. We really think FOIA needs to be strengthened to
protect those papers. It has been fairly recent; it hasn't
happened yet, but I know that there is a very serious concern,
especially among the IT auditors. We have a very robust IT
committee and, again, people who know this IT stuff much better
than I, and I know that they have changed, again, the nature of
the public reports while they do the work.
Ms. Lujan Grisham. Anyone else have any comments?
It is really a very delicate balance because part of
providing--sometimes the folks who are responsible--I will go
back to the Department of Justice issues--have no idea that
they have the kind of problems that the Department of Justice
is able to identify and find, and when you see those public
reports with patterns and practices that can identify for you a
much better path to provide the best possible service and care.
I appreciate having those be public and I think it is important
for the public to know what the risks are for many of these
kinds of services and issues, but you certainly don't want to
promote.
But I do worry that sometimes we identify concerns that
have not factual validity. There are so many things that go
wrong despite our best efforts that I think sometimes we have a
tendency not to be proactive and to retreat, and I want to be
very careful. And I appreciate that your response to Mr. Davis
and the committee is that you are mindful, you are concerned,
you want to do everything that you can to be as transparent as
you can for a variety of reasons, not the least of which is to
make sure that we know what is going on and we are clear about
the problems that you are finding and identifying, and then
this body can do something about that if it requires
legislative action or there is something we can do to be
proactive. But when you are concerned, we don't want you to
retreat from those actions.
Is there a group that is working on a kind of a best
practices? Is there a way to get additional information back to
the committee so that we have a sense about what we can do to
aid you in making those final decisions?
Ms. Gustafson. Again, we both have an IT Committee of CIGIE
itself, much like the Legislation Committee and, again, there
is also even a subgroup, it is the IT Committee, the Audit
Committee, and the Legislation Committee. We have both of those
groups up and running and we have had dialogue, so we are happy
to continue the dialogue and have some new dialogue; there is
definitely groups that we can have talk.
Mr. Horowitz. I certainly appreciate your concern because
we see the issue, as you indicated, when we are doing oversight
of the Department and its components, we frequently get the
first markings back on classification, on law enforcement
sensitive, on other issues, which is, in our view, over-
classified or over-marked because the first reaction of those
involved, and their motives are not improper, but it is concern
over protecting information; and we are always sensitive about
that and we need to be particularly sensitive when we are
asking the committee to do something like this.
Ms. Lujan Grisham. If I might, because I am out of time,
Mr. Chairman, I would really appreciate if, as you identify
where you are headed and what some of those ideas are, to
provide that information back to the committee. Also, I just
experienced in New Mexico the executive audited behavioral
health entities that are receiving Medicaid, found that 100
percent of them were engaged in fraudulent activity in terms of
their billing and service practices. All contracts were
canceled. The reports then are redacted, go to the attorney
general; attorney general can't provide that information.
And as that battle about is it really 100 percent, is there
continuity of care, all the things that you have to figure out,
you know, we are peeling away layers that identify that we
don't have all facts, similar to the things that this committee
often finds, we don't have all the facts, that the stuff that
was redacted was redacted not to protect information to further
the investigation or prevent other problems, but rather that it
wasn't clear what the issues were, so it minimizes your ability
to make such a broad decision.
So I am particularly concerned and appreciate that follow-
up and response.
Thank you for your indulgence, Mr. Chairman.
Chairman Issa. Absolutely. And I share with the gentlelady
the various unclassified classifications, the sensitive, but
unclassified and redacted. My favorite is the one that they
never actually say, which is redacted for embarrassment, which
often is the case on some of them,
In closing, I am just going to share something that
occurred to me as you were talking, Ms. Gustafson. The fact is
that as we look through the Mitre documents and others related
to the Healthcare.gov and we discovered that there were
vulnerabilities, actual vulnerabilities on launch date, they
were not mitigated on launch date and some of them were not
mitigated and some may still not be mitigated, mitigating
meaning fixed, we have that concern that the actual flaws
should not be ever made public until they are fully mitigated.
One of the great questions, of course, is can they continue
to not make public what they mitigated after they have
mitigated it. And I think that is an area of concern where, if
in fact IGs clearly do un-redact, if you will, at the point
that something has been assured to have been fully mitigated,
it literally creates the roadmap for the hacker in which the
road you have been assured has been blocked, if it has not been
blocked, then let's be honest, the hacker is almost a service
in that situation in that if somebody says it has been blocked,
then they ought to be willing to say this was a problem and we
fixed it, to the extent that there are not other similar
problems known but not yet mitigated.
Having said all of that, you have an absolute need to know
that so that in fact you can have the oversight for whether or
not the mitigation occurs, whether or not they can then be made
publicly available, and we will look to work with the IG
community to ensure that FOIA continues to be as open and
transparent as possible, but does not create access to hackers
as a result of disclosure. And I think that, of all the things
that we could end on, the recognition that that is an area in
which the court has challenged our intent in a way in which I
believe FOIA could be opened up slightly in order to clarify
that.
I want to thank all of you. You heard a lot of things we
intend to do, particularly I think when it comes to how we
would provide a pathway to testimonial subpoena, cross-agency
access, and access to people who have left the Federal
workforce, all of those issues are issues that Mr. Cummings and
I will pick up tomorrow, but they will not be completely
resolved tomorrow, so we will look not only forward to your
input, but those 72 briefs that I mentioned.
And I am actually welcoming that because if people have a
private resistance, but in fact it is a resistance from being
accused of having asked for a power and thus look bad, then
they need not brief. And if they have a real concern and they
want to express it, we want to hear that concern so that when
we orchestrate a fix, that it is consistent with any real
concerns, rather than simply the concern that I don't want to
be the one that asked for more authority, which I think at
least in some cases is probably the case.
So again I want to thank you for your patience. And from
all of us on the dais, this committee is adjourned.
[Whereupon, at 11:56 a.m., the committee was adjourned.]