[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
DOCUMENT PRODUCTION STATUS UPDATE
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HEARING
BEFORE THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
JANUARY 7, 2016
__________
Serial No. 114-92
__________
Printed for the use of the Committee on Oversight and Government Reform
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Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
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U.S. GOVERNMENT PUBLISHING OFFICE
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
JASON CHAFFETZ, Utah, 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
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
TIM WALBERG, Michigan Columbia
JUSTIN AMASH, Michigan WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee JIM COOPER, Tennessee
TREY GOWDY, South Carolina GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida TED LIEU, California
MICK MULVANEY, South Carolina BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina MARK DeSAULNIER, California
ROD BLUM, Iowa BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama
Jennifer Hemingway, Staff Director
David Rapallo, Minority Staff Director
Jonathan Skladany, Senior Counsel
Tristan Leavitt, Senior Counsel
Sharon Casey, Deputy Chief Clerk
C O N T E N T S
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Page
Hearing held on January 7, 2016.................................. 1
WITNESSES
Ms. Julia Frifield, Assistant Secretary, Bureau of Legislative
Affairs, U.S. Department of State
Oral Statement............................................... 5
Written Statement............................................ 8
Mr. Peter Kadzik, Assistant Attorney General for Legislative
Affairs, U.S. Department of Justice
Oral Statement............................................... 12
Written Statement............................................ 14
Ms. Tia Johnson, Assistant Secretary, Office of Legislative
Affairs, U.S. Department of Homeland Security
Oral Statement............................................... 17
Written Statement............................................ 19
Ms. Tamara Fucile, Associate Director for Legislative Affairs,
Office of Management and Budget
Oral Statement............................................... 21
Written Statement............................................ 23
Mr. Jason Levine, Director, Office of Congressional, Legislative,
and Intergovernmental Affairs, U.S. Office of Personnel
Management
Oral Statement............................................... 25
Written Statement............................................ 27
APPENDIX
2014-08-28 Rep Gosar to DOJ DHS USAO re Operation Streamline..... 82
2014-08-19 Sheriff Wilmont Yuma County to Rep Gosar re Operation
Streamline..................................................... 84
2014-10-10 Mr. Kadzik DOJ to Rep Gosar re Operation Streamline... 88
RESPONSE from Ms. Frifield DOS to Questions for the Record 2-12-
16............................................................. 90
RESPONSE from Mr. Kadzik DOJ to Questions for the Record 4-5-16.. 92
RESPONSE from Mr. Kadzik DOJ to Questions for the Record 5-24-16. 96
RESPONSE from Ms. Johnson DHS to Questions for the Record 4-15-16 100
RESPONSE from Ms. Fucile OMB to Questions for the Record 4-5-16.. 106
RESPONSE from Mr. Levine OPM to Questions for the Record 2-12-16. 108
RESPONSE from Mr. Levine OPM to Questions for the Record 6-20-16. 112
DOCUMENT PRODUCTION STATUS UPDATE
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Thursday, January 7, 2016
House of Representatives,
Committee on Oversight and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 10:01 a.m., in Room
2154, Rayburn House Office Building, Hon. Jason Chaffetz
[chairman of the committee] presiding.
Present: Representatives Chaffetz, Mica, Turner, Jordan,
Walberg, Amash, Gosar, DesJarlais, Gowdy, Lummis, Massie,
Meadows, DeSantis, Mulvaney, Buck, Walker, Blum, Hice, Russell,
Carter, Grothman, Hurd, Palmer, Cummings, Maloney, Norton,
Clay, Lynch, Connolly, Cartwright, Kelly, Lawrence, Lieu,
Watson Coleman, DeSaulnier, Welch, and Lujan Grisham.
Chairman Chaffetz. The Committee on Oversight and
Government Reform will come to order. Without objection, the
chair is authorized to declare a recess at any time.
Thank you all for being here. The congressional oversight
and investigative work does not need to be an adversarial
activity. We expect, require, and need cooperation. For this to
happen, it takes effort, communication, and good faith.
Mr. Cummings and I have worked together quite well. We have
taken each other's views and ideas into consideration. We don't
always agree, but we try as best we can to not be disagreeable.
Our cooperative approach to oversight has yielded results. The
committee has come a long way in a year.
Last month, we adopted a 195-plus page joint investigative
report on the Secret Service, and together we have written
roughly 200 joint letters asking for documents, information,
and testimony. Generally, when we send a letter, it is not a
thank-you note or a Christmas card. Generally, a letter from
the Oversight Committee is a little bit more--a little tougher
than that. The fact that we have more than 200 of these joint
letters I think speaks a lot to the approach that we are trying
to take.
But we also need cooperation from the agencies themselves.
It might be helpful at this point to clarify our expectations
so witnesses understand what we mean by cooperation. You know,
we are different in the United States of America. We are open
and transparent. We are self-critical. That is why back in 1816
or so, the Congress actually formed this committee. It was
under a different name and it has grown and expanded and
contracted and gone through a variety of different names along
the way. But the function of oversight has been here since the
foundation of our nation. And a long, long time ago, people
felt it wise to look at every expenditure made by the Federal
Government.
So when the committee sends a request, we expect an honest
effort to identify and collect the records that are responsive.
We expect communication. We expect to be kept informed and to
be straight with us. And we will expect that you will work with
us in a good faith, which basically means when you make a
commitment, do what you say you are going to do.
Republicans and Democrats share the goal of more efficient
and effective government that serves the people. We have to
ensure that every tax dollar is spent responsibly. And we do
that by conducting oversight of the executive branch and
examining government programs and policies that affect every
American.
Mr. Cummings and I and our predecessors here at the
committee didn't invent the concept of this oversight of the
executive branch. It comes from the Constitution. It comes from
the right of accessing and it comes from the need to be
responsive as we represent the people of the United States of
America.
Today, we are going to hear from a group of senior
legislative liaisons from five different agencies, all of which
have particularly troublesome track records when it comes to
cooperating with the committee's requests for information. I am
somewhat sympathetic to the idea that they get bombarded not
just by us but from so many different committees not only in
the House but in the Senate as well. It is a large task,
particularly with agencies that you represent that are so
massive and so big, spending literally billions upon billions
of dollars of taxpayer dollars.
The Department of Homeland Security has been invited to
discuss our requests related to the Secret Service and the TSA.
TSA has consistently failed to meet our production requests and
has ignored basic fundamental requests such as appearing at
hearings. On April 17 of last year, we invited the
administrator to testify at a hearing scheduled for a month
later. The day before the hearing, the administrator backed out
and cited a scheduling problem. Yet, we had a month's notice.
We invited the Justice Department to address position on
withholding the memos that guided its investigative personnel
when dealing with GPS tracking devices. We also hope to get an
update on our request about the complete Lois Lerner files.
An official with the State Department is here to address
persistent troubles we have had in securing documents for our
embassy construction investigation that will be entering its
third year. When State does produce materials, it is almost
always in a halfhearted way with a smattering of documents for
one or two discrete requests and usually none for most. And
that is very problematic.
There is a story out today about providing inaccurate
information as it relates to Hillary Clinton and her emails. We
are going to ask you some questions about that.
The Office of Management and Budget is here to address its
response to a subpoena I sent for materials from its OIRA
component, the Office of Information and Regulatory Affairs,
related to the Waters of the United States rulemaking. OIRA is
an office created by Congress, and its job is to review draft
and proposed regulations. To create the appearance that it is
cooperating with the committee, OMB reflectively offered a
number of pages of documents it has produced.
To my fellow Members, here is a flashing signal that maybe
there is a problem. When they want to talk about the number of
documents they have produced, I am not interested in that. I am
interested in the percentage of documents that you produced. It
is a little trick to say, oh, we have provided 100,000 of this
or 50,000 of that. Tell me what percentage of the documents we
get, because if we want 100 percent of the truth, we are going
to need 100 percent of the documents. And until we get them, it
makes us think that you are hiding something.
The Office of Personnel Management has been invited to
discuss its effort to produce materials responsive to the data
breach investigations. OPM has unduly burdened the committee
investigators by applying unnecessary and unexplainable
redactions. Basic publicly available information has been
repeatedly redacted by OPM. In some cases, our investigators
have found answers more readily by reviewing the FedBizOpps Web
site. The extraordinary lengths OPM has gone to keep basic
information from the committee leaves us with the conclusion
that perhaps they are having a lot to hide. If something is
embarrassing, that is not a reason to keep it from the
Congress.
A successful working relationship between the congressional
committee and the executive branch agencies require effort,
communication, and good faith on both sides. We need
transparency. We need to work together. You have a lot of good
staff and a lot of good people. We are not here to disparage
any one person's reputation, but we are here to get answers.
And we need to make sure that we get those documents so that we
can do our job serving the American people, and we need your
help in doing so.
Chairman Chaffetz. With that, I would now like to recognize
the ranking member Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman.
I strongly support the authority of this committee to
obtain necessary documents as part of our investigations.
Documents are a critical tool to investigate waste, fraud, or
abuse; eliminate unnecessary duplication; improve the
effectiveness and efficiency of government; and determine
whether Congress needs to change our laws to improve the lives
of the American people.
Of course, we rely on other sources of information such as
hearing testimony, witness interviews, and informal briefings
and meetings. But documents are unique. They give us the
ability to understand what happened on the ground over a
certain period of time without having to rely on hazy memories
or the self-serving recollections of those being investigated.
I support the committee's authority because I have been in
the chairman's seat. I know firsthand how oversight can be
stifled by slow-walking documents or withholding information to
which Congress is entitled. I remember very well the fights we
had with the Bush administration over their refusal to provide
documents we needed, and I remember how those actions impaired
our ability to do our work. So I support the chairman in his
efforts.
Unfortunately, I have also seen how investigations can be
used as a form of political attack rather than a search for the
facts and a search for the truth. I have seen how massive,
repeated, and overbroad document requests have been used as a
partisan weapon. I have seen how they can grind down agencies,
force them to divert personnel, and waste millions of taxpayer
dollars in the process.
For today's hearing, I believe it is important to recognize
the difference between these two purposes. We need to recognize
not only the significant demands that have been placed on these
agencies but also what they have provided to date, which is
substantial.
For example, the State Department has just experienced one
of if not the most demanding years in its history in terms of
congressional inquiries. The State Department is currently
reporting to nine different committees, including the Benghazi
Select Committee. And it has been inundated with requests
unlike any previous year on record. In 2015 the Oversight
Committee alone launched nine investigations relating to the
State Department. In response, the Department provided more
than 21 gigabytes of information.
Just as part of our investigation of embassy construction,
the State Department produced more than 160,000 pages of
documents. Of course, the committee wants additional documents.
In fact, I have signed on to some of those document requests
myself. But it is inaccurate to suggest that the State
Department has intentionally withheld the documents we need.
With that said, the State Department is notorious for its
extremely poor records management systems, and this problem
dates back several administrations. As I said earlier, I have
been incredibly frustrated in the past with the State
Department's inability to run the most basic document searches
and produce documents in a timely manner. In my opinion, a
solution to this problem is not to shame the heads of the
Legislative Affairs offices. Many of these officials worked in
Congress previously. They fully understand our needs and our
rights to the information, and they are among some of our most
effective advocates within agencies.
Instead, if we really want to address this problem, we can
take two key steps. First, Congress can conduct sustained and
detailed reviews of agency information management processes,
including document preservation, collection, and production. We
can support long-term efforts to upgrade and improve their
systems so they take less agency time to implement and provide
Congress what it needs more quickly. I am talking about
efficiency and effectiveness. This work would pay dividends to
Congress, the press, and the American public.
The second thing Congress can do is to take a closer look
at itself, put a mirror up to our faces. We can end the
politically motivated requests that are designed to generate
headlines rather than improve effectiveness and efficiency. We
can eliminate duplicate requests from multiple committees and
streamline our oversight efforts. We can ask for only what we
really need rather than everything under the sun. And we can
work with agencies to understand the legitimate interests in
protecting certain classes of information while pursuing
accommodations to give us what we need to do our jobs. That is
the balance that we should seek. That is the balance that we
should work towards.
And so in closing, Mr. Chairman, I hope we can explore some
of these issues here today, and I look forward to the testimony
of our witnesses. And with that, I yield back.
Chairman Chaffetz. I thank the gentleman.
I will hold the record open for 5 legislative days for any
members who would like to submit a written statement.
I will now recognize our panel of witnesses.
I am pleased to welcome Hon. Julia Frifield, Assistant
Secretary of the Bureau of Legislative Affairs at the United
States Department of State; Hon. Peter Kadzik, Assistant
Attorney General for Legislative Affairs at the Department of
Justice; Hon. Tia Johnson, Assistant Secretary of the Office of
Legislative Affairs at the United States Department of Homeland
Security; Ms. Tamara Fucile--did I pronounce that right?
Ms. Fucile. Close enough.
Chairman Chaffetz. Close enough--Associate Director for
Legislative Affairs at the Office of Management and Budget; and
Mr. Jason Levine, Director of Office of Congressional,
Legislative, and Intergovernmental Affairs at the United States
Office of Personnel Management.
Welcome, you all, and thank you for being here.
Pursuant to committee rules, all witnesses are to be sworn
before they testify. If you will please rise and raise your
right hand. Thank you.
[Witnesses sworn.]
Chairman Chaffetz. Thank you. You may be seated. And let
the record reflect that all of the witnesses answered in the
affirmative.
You know the drill here. We are trying to keep you to 5
minutes. We will give you a little bit of latitude, but please
try to keep your comments to 5 minutes if you can, and then we
will obviously insert your entire written statement into the
record.
We will now recognize Ms. Frifield for 5 minutes.
WITNESS STATEMENTS
STATEMENT OF JULIA FRIFIELD
Ms. Frifield. Thank you. Mr. Chairman, Ranking Member
Cummings, and members of the committee, I appreciate this
opportunity to testify on the State Department's response to
congressional requests for documents. The State Department is
committed to working with Congress on congressional
investigations.
Secretary Kerry spent nearly 30 years in Congress. He
believes strongly in the importance of congressional oversight
and led investigations when he was in the Senate. Since he
arrived at the State Department, his clear instruction has been
for the entire department to be responsive to congressional
investigations and requests. I share his commitment. Before
joining the Department, I spent my entire career as a Capitol
Hill staffer. I have great respect for the congressional role
in conducting oversight.
Today's hearing focuses on requests for documents, which I
will address at length. However, it's also important that--to
underscore our commitment to working with Congress is not
limited to requests for documents. In 2015, the State
Department's Legislative Affairs office provided over 2,500
briefings for the Hill on foreign policy issues. We worked with
Consular Affairs to respond to over 5,000 constituent cases for
Members of Congress, everything from lost passports to missing
constituents overseas to helping with visas for constituents'
family members. We arranged over 500 congressional Member and
staff delegation trips abroad, and we've appeared at 168
congressional hearings. We've also responded to 1,700
congressional letters.
With crises occurring around the world and Congress
intently focused on foreign policy, we're working hard to meet
all of our responsibilities, and we recognize that cooperating
with congressional investigations is one of them. Yet frankly,
we at the State Department have struggled to keep pace with the
increasing demands of congressional document requests, which
have expanded in number, scope, and complexity. We're now
responding to dozens of investigations by nine different
committees, involving hundreds of specific requests for
hundreds of thousands of pages of documents. This is
approximately twice as many as we had last year.
While some of these investigations are relatively focused,
others are broad and complex, involving many different bureaus
within the Department, as well as other agencies. But let me be
clear. We know it is our responsibility to answer these
requests, and we are working to improve both the way we respond
to make it more useful for Congress and the pace of our
response.
Historically, when responding to congressional requests,
we've followed a process similar to responding to FOIA
requests, relying primarily on the same department
infrastructure and technology. As both FOIA and congressional
requests increased, we found that both types of requests were
competing for the same resources. To compensate, at times we've
pulled together ad hoc teams from functional and regional
bureaus to respond to congressional requests, i.e., pulling
people from the work of diplomacy to respond to Congress.
Clearly, this system was not sustainable. We realized we needed
to institutionalize the way we process documents to speed up
the pace of delivery. We knew we had to upgrade our technology.
This past year, we've been transforming the way we respond
to congressional requests. I worked with my colleagues at State
to create a Congressional Document Production branch, which
involved additional personnel and acquiring new software to
facilitate document reviews and productions. We are grateful
that Congress enabled us to shift funding to establish this new
entity to provide additional personnel and new technology. As a
result, we've been able to process more quickly requests from
this committee, from the Select Committee on Benghazi, and from
multiple other committees. While not every committee may be
completely satisfied, I can state with confidence that our new
unit is enabling us to respond to more committees
simultaneously than ever before.
Because the Congressional Document Production branch is
only a few months old, its impact may not be fully apparent
yet. Going forward, this Committee should see the results of
these enhanced resources as we work on your requests.
Additionally, we've made tangible improvements to the way
we produce documents to Congress. We heard from congressional
staff, including yours, who had concerns that we'd been
providing documents in a way that was not as user-friendly as
they'd like. We used to provide documents to Congress on paper,
without coding, that enabled you to find and organize them. We
would literally hand over boxes of documents.
After meeting with your staff and the staff of other
committees who told us how hard it was to use documents in this
format, we completely changed the way we give you documents. We
now provide these documents electronically with easily
searchable Bates numbers. We can also now provide documents
organized by date or custodian, and the ability to review email
documents is vastly expanded. The Department's move to
electronic document processing has dramatically improved our
ability to review and provide documents quickly and in volume,
and it makes it easier for you to review them.
With respect to this committee, I'd like to summarize where
we are and where we hope to go in the future. Currently, we're
working on nine investigations for your committee. To date,
we've provided over 160,000 pages to the committee for its
investigation for embassy construction and have participated in
four hearings in 2015 and many meetings and briefings, though I
do note I did hear what the chairman said about using numbers,
and I understand what he is coming from on there.
We've been collecting documents for the five requests that
you outlined in your December 18 letter, and we're committed to
producing thousands of pages of documents to your committee,
along with providing requested briefings on the matters
described in the letter.
In closing, while we've implemented significant
improvements to respond to congressional investigations, we are
striving to do better. The obstacle to responding is not one of
our--of commitment. Fundamentally, it's a question of balancing
resources in response to multiple large-scale congressional
requests from a number of different committees. We're trying to
find innovative ways to respond better and faster.
I look forward to working with you and your staff to ensure
that the State Department and the Congress work together to
provide the transparency that should be the hallmark of our
government.
[Prepared statement of Ms. Frifield follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you.
Mr. Kadzik, you are now recognized for 5 minutes.
STATEMENT OF PETER J. KADZIK
Mr. Kadzik. Good morning, Chairman Chaffetz, Ranking Member
Cummings, and distinguished members of the committee.
Chairman Chaffetz. Peter, if you could ----
Mr. Kadzik. Is that better?
Chairman Chaffetz. Thank you.
Mr. Kadzik. Okay. I appreciate the opportunity to appear
before you today to discuss our continuing efforts to respond
to the committee's information requests, including those
requests specifically relating to the Department's policies on
geolocation and other surveillance technology in the wake of
the Supreme Court's 2012 decision in United States v. Jones.
I want to begin by assuring the committee that we value the
important role of congressional oversight, and, as the attorney
general and deputy attorney general have stated repeatedly, the
Department is committed to accommodating the committee's
information needs, consistent with our law enforcement,
national security, and prosecutorial responsibilities. The
Department appreciates that oversight is a critical
underpinning of the legislative process.
Consistent with the value we place on congressional
oversight, since the beginning of the 114th Congress, the
Department has testified in close to 60 congressional hearings
and provided extensive information in more than 1,800 letters
responding to inquiries from committees and Members. In every
instance, we strived to provide Congress with as much
information as possible without compromising our law
enforcement and national security efforts or our prosecutorial
responsibilities.
In addition to these law enforcement and national security
sensitivities, the Department also has an obligation to protect
certain executive branch institutional interests, including the
confidentiality of attorney-client communications, attorney
work product, and internal deliberations. We are, nonetheless,
committed to working in good faith to accommodate the
committee's legitimate oversight interests, and we hope that
the committee will likewise continue to engage in good faith
with the Department in a manner that recognizes the important
law enforcement and confidentiality interests presented in some
cases.
In particular, we trust the committee recognizes the
paramount importance of ensuring the Department's investigative
and prosecutorial decisions are made without regard to
political considerations or even the perception of political
influence or pressure. Such political influence--and, indeed,
the mere public perception of such influence--could undermine
significantly our law enforcement efforts and, in criminal
matters, shake public and judicial confidence in the integrity
and independence of the criminal justice process.
We recognize that it is difficult when the interests and
prerogatives of the legislative and executive branches come
into potential conflict. That is why the Constitution envisions
that the branches will engage in a process of accommodation to
avoid such conflicts. This longstanding and well-accepted
approach has been employed by administrations of both parties
for decades, and it has been supported by top department
officials, both Democrats and Republicans alike.
Consistent with this approach, the Department has made
efforts and will continue to make efforts to respond to the
committee's information requests regarding our policies on
geolocation and other surveillance technology. As the committee
is aware, these specific information requests implicate
significant confidentiality interests as the particular
memoranda you have requested include sensitive, law
enforcement-related, confidential work product prepared in
anticipation of litigation.
Specifically, these memoranda include internal
deliberations of department prosecutors about the legal,
investigative, and strategic issues we face in our law
enforcement efforts in light of the Jones decision. Our
disclosure of this internal work product would chill the candid
assessments and analyses that are essential to sound decision-
making in law enforcement matters and prosecutions.
In addition, disclosure could jeopardize ongoing and future
investigations and prosecutions by prematurely revealing the
government's investigative and litigation strategies. Such
disclosure would afford criminal targets an opportunity to
preempt those tools, evade law enforcement detection, and
obtain knowledge of how our agents operate, undermining our
Federal law enforcement efforts in a wide variety of cases. We
know that the committee understands and appreciates these very
real risks.
The Department has already undertaken efforts to work in
good faith to accommodate the committee's interests in this
matter. We were pleased to brief committee staff last September
on the forms of legal process the Department uses for obtaining
geolocation information. We hope that our briefing on these
matters was helpful to the committee. And as we have offered
previously, we would be happy to provide additional briefings
and answer any remaining questions in our ongoing effort to
accommodate the committee's information requests.
In conclusion, I emphasize again that the Department
recognizes the importance of congressional oversight. At the
same time, congressional oversight that implicates ongoing law
enforcement efforts and investigative techniques, sensitive
attorney work product, and internal deliberations presents
unique confidentiality challenges and concerns.
Despite these challenges, we remain optimistic that, by
working together cooperatively, we will be able to satisfy the
committee's oversight interests in this matter, while also
safeguarding the independence, integrity, and effectiveness of
the Department's vital law enforcement efforts and
prosecutorial responsibilities. The Department stands ready to
continue this effort and to accommodate your information needs,
and we hope that you will work with us towards that goal.
Thank you again for the opportunity to testify, and I'd be
happy to answer questions.
[Prepared statement of Mr. Kadzik follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you.
Ms. Johnson, we look forward to hearing your testimony. As
you know, committee rules require that you submit your
testimony 24 hours prior. That was highlighted in the
invitation. And perhaps as you give your opening statement, you
can explain to this committee why you failed to provide this
committee with your testimony prior to you giving it right now.
Ms. Johnson. Thank you.
Chairman Chaffetz. You are now recognized for 5 minutes.
STATEMENT OF TIA JOHNSON
Ms. Johnson. Thank you, Mr. Chairman.
Ranking Member Cummings, distinguished members of the
committee, I appreciate the opportunity to discuss the
considerable efforts, time, resources, and money that DHS
devotes to complying with oversight requests by Congress.
During his confirmation hearing, Secretary Johnson pledged
transparency and candor with Congress and committed to respond
to congressional inquiries in a timely fashion. Since his
arrival in December 2013, the Department's responsiveness to
oversight requests has greatly improved. Indeed, last year, the
Department examined its responses to congressional inquiries
and found that it had cut its response time in half.
We therefore appreciated Chairman Chaffetz's statement when
you recognized that the production and response to Congress
have become much better and thank the Secretary for that. We
are determined to continue to improve on that record.
Prior to coming to DHS, I served as an officer in the U.S.
Army for almost 30 years. As a senior colonel, I was assigned
to the Office of the Assistant Secretary of Defense for
Legislative Affairs. At that time, we were still involved in
combat operations in Iraq and Afghanistan. These two
operations, as well as the detainee mission, generated a
significant amount of congressional oversight. I was involved
in that oversight process, which at the time I thought was
considerable. However, upon my arrival at DHS, I was surprised
to learn of the depth, breadth, and quantity of congressional
oversight that this department faces.
In 2004, the 9/11 Commission strongly recommended that
Congress reform the congressional oversight structure of DHS.
As one expert witness told the Commission, the number of
congressional bodies that exercise oversight over DHS is
perhaps the single largest obstacle impeding the Department's
successful development. With jurisdiction over both oversight
and government reform, your committee is uniquely positioned to
help foster efforts to implement this crucial 9/11 Commission
recommendation.
In the 12 years since the Commission issued that
recommendation, the oversight structure of the Department has
grown only more complex and extensive. At last count, the
Department answered to 92 congressional committees and
subcommittees, 27 other caucuses, commissions, and groups. As
the 9/11 Commission chairman, former Governor Tom Kean, has
said, ``Think of having 100 bosses. Think of reporting to 100
people. It makes no sense. You could not do your job under
those circumstances.''
But despite these challenges, we are doing our job. During
calendar year 2015, DHS received approximately 700 oversight
letters and countless more oversight requests. Of those, 70
letters came from members of this committee. We have responded
to oversight inquiries on a broad array of topics ranging from
the Secret Service's protective mission to DHS's assistance to
victims of the cyber breaches. By our estimate, in 2015 DHS
devoted more than 100,000 hours to responding to congressional
oversight.
Today's hearing is to address the Department's response to
oversight requests and demands regarding the United States
Secret Service. During calendar year 2015, DHS and the Secret
Service received 12 letters, over 100 requests for information,
testimony, or documents, and one subpoena from this committee.
By our count, we have completed addressing over 90 of those
requests.
Secret Service has provided 13 briefings to committee
staff. Eight employees of the Secret Service participated in
day-long transcribed interviews conducted by the committee
staff, and Secret Service leadership has testified at two
committee hearings. And at the chairman's request, we
facilitated a visit to the Secret Service headquarters for
members of the committee. In total, the Department has produced
over 10,000 pages of documents in response to the committee's
requests, in addition to thousands of pages of classified
documents.
These efforts have supplemented our hard work to respond to
inquiries about the operation of Secret Service from the
independent Protective Mission Panel, various investigations by
the Office of Inspector General, and the oversight inquiries of
10 other congressional committees and subcommittees.
Secretary Johnson has made responsiveness to Congress a
priority. As his assistant secretary for legislative affairs, I
am determined to continue to improve on our past record of
oversight response.
And, Mr. Chairman, Ranking Member Cummings, I apologize
that our statement was not forwarded. That was an oversight.
But I would be pleased to answer any questions from you and the
members of the committee. Thank you.
[Prepared Statement of Ms. M. Tia Johnson]
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Chairman Chaffetz. Thank you.
Ms. Fucile, you are now recognized for 5 minutes.
STATEMENT OF TAMARA FUCILE
Ms. Fucile. Thank you.
Chairman Chaffetz, Ranking Member Cummings, and members of
the Committee, I appreciate the opportunity to testify before
you today.
The Office of Management and Budget, or OMB, is committed
to working with Congress and with this committee. OMB believes
strongly in the importance of congressional oversight and the
value that Congress provides in ensuring that OMB and the
administration are working in the most effective and efficient
way possible on behalf of the American people. OMB regularly
receives requests for information, briefings, documents, and we
strive to provide transparent responses to these congressional
inquiries in a timely manner.
In addition to producing documents to Congress and to the
committee, OMB works with congressional offices every day to
provide information and analysis and to help respond to
contingencies and unforeseen circumstances. Given OMB's broad
jurisdiction, we coordinate and respond to requests from over a
dozen House and Senate full committees, despite being a small
agency of only 100--of only approximately 550 employees.
In addition, given OMB's extensive role in working with
Congress to reach agreement on the Bipartisan Budget Act of
2015 enacted in November, and on the Consolidated
Appropriations Act for fiscal year 2016 enacted just a few
weeks ago, we received and responded to nearly 1,650 budget
requests from Members of Congress over this last year, with
more than 600 of those requests coming in the last few months.
OMB's mission is to execute the President's budget,
management, regulatory, and legislative agenda and ensure that
the Federal Government works at its best on behalf of those it
serves. OMB works with and across Federal agencies to improve
management and create a government that is more effective,
efficient, and supports continued economic growth.
OMB's Office of Information and Regulatory Affairs, or
OIRA, is responsible for coordination and review of all
significant Federal regulations by executive agencies. OIRA
ensures that regulations are based on sound analysis and serve
the purpose of the statutes that authorize them and the
interests of the public. OIRA also seeks to ensure, to the
extent permitted by law, that the benefits of the rule justify
its costs. OIRA works under long-established principles that
have been implemented across several administrations of both
parties.
The committee has asked me to testify today about document
requests relating to the review of the proposed Clean Water
Rule, which was conducted by OIRA between September 17, 2013,
and March 24, 2014. Since this committee's initial request and
subsequent subpoena, OMB has acted in good faith to address the
committee's interest in the rule and to accommodate the
committee's requests.
In response to this committee, we have provided five sets
of responsive documents for the period in which the proposed
Clean Water Rule was under review at OIRA. We have made these
productions to the committee without any redactions, with the
exception of email addresses and personal phone numbers.
OMB continues to review records that are potentially
responsive to the committee's requests, and OMB remains
committed to working with your staff to discuss how we can best
produce materials of greatest interest to the committee.
Thank you again for the opportunity to testify, and I look
forward to answering any questions you might have.
[Prepared statement of Ms. Fucile follows:]
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Chairman Chaffetz. Thank you.
Mr. Levine, you are now recognized for 5 minutes.
STATEMENT OF JASON LEVINE
Mr. Levine. Levine, Mr. Chairman. Levine.
Chairman Chaffetz. Levine, sorry.
Mr. Levine. That's okay.
Chairman Chaffetz, Ranking Member Cummings, and members of
the committee, I'm pleased to be here this morning to testify
on behalf of the Office of Personnel Management and Acting
Director Cobert regarding the committee's requests for
information and documents related to the cybersecurity
incidents at OPM.
Over the course of the past year, in the face of
extraordinary circumstances, OPM has worked to address the
cybersecurity incidents; to provide information and services to
those impacted; and to respond to numerous congressional
inquiries regarding the incidents through hearings, classified
and unclassified briefings, document productions, letters, and
town halls. During this time, OPM employees have worked hard to
improve upon the services that OPM provides every day to the
entire Federal workforce from resume to retirement. Since I
arrived in August, I can tell you that it has been my distinct
privilege every day to serve with these individuals.
OPM is a small agency with an important mission: to
recruit, retain, and honor a world-class workforce to serve the
American people. To preserve and build upon that mission, OPM's
leadership has made its highest priority responding to the
recent cybersecurity incidents and bolstering OPM's IT
infrastructure and security capabilities. OPM is committed to
working with Congress, as well as our interagency partners,
including DHS, DOD, and the FBI, among others, to continue to
strengthen our cybersecurity posture in order to protect the
Federal Government and the people we serve.
It is critical to OPM that all of our stakeholders,
particularly those directly impacted by these incidents,
receive information in a timely, transparent, and accurate
manner. OPM undertook two separate notification processes
regarding the comprehensive identity theft protection and
monitoring services that are being provided. OPM is conducting
outreach about these services on our Web site and by
communicating directly with stakeholders.
Further, to provide Congress with necessary information, my
office has provided multiple sets of fact sheets and FAQs
regarding the cybersecurity incidents and related services. OPM
established a phone hotline exclusively for congressional
offices to contact us with questions on behalf of your
constituents. OPM has also attended town halls and conducted
phone briefings with Members and congressional staffers on the
issue.
Simultaneously, OPM has made every effort to work in good
faith to respond to multiple congressional oversight requests,
including document productions. Since June 2015, OPM has
received and provided responses to every question in six
separate document production requests resulting in 19 separate
document productions, including tens of thousands of documents
and internal reports; testified at four public congressional
hearings; made hundreds of calls to Members and congressional
staffers relating to the cybersecurity incidents; received over
170 letters from Members of Congress relating to the
cybersecurity incidents; made senior officials available for
interviews; conducted 13 classified and unclassified briefings;
and expended thousands of staff hours in an effort to be
responsive.
OPM has worked as quickly as its infrastructure and
resources allow. To be responsive to congressional requests,
OPM has taken numerous steps to increase its previously limited
capacity to respond to congressional inquiries of a large
volume and sensitive nature. This includes hiring additional
staff, bringing on detailees from other agencies, and obtaining
document management tools that allowed the agency to respond
more promptly and efficiently to Congress. As capacity was
increased, OPM worked with committee staff to prioritize the
requests and provide responses on a rolling basis in order to
accommodate the committee's schedule and oversight interests.
As a result of the extreme and ongoing sensitivities of
information related to OPM's IT networks, servers, and systems,
redactions of sensitive system information were made so as not
to provide a roadmap of vulnerabilities for potential
adversaries and malicious actors. These redactions are
consistent with those employed by other Federal agencies, and
were based on security recommendations from OPM IT security
professionals and in consultation with interagency cyber
experts. Additional redactions were also made for reasons of
longstanding executive branch confidentiality interests.
In the interest of accommodating the committee's oversight
interests, a significant number of sensitive documents were
also made available for in camera review in un-redacted form in
OPM's liaison office here in the Rayburn House Office building
in order to provide ease of access for committee members and
staff. OPM looks forward to continuing to work with the
committee and to respond to its requests for information in as
a complete and timely manner as possible
Thank you for the opportunity to testify today, and I look
forward to your questions.
[Prepared statement of Mr. Levine follows:]
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Chairman Chaffetz. Thank you.
I want to follow up directly on that point that you just
talked about. When we had our hearing about the data breach,
Donna Seymour, the chief information officer, when we asked
about the stolen materials, this is what she said: ``Some were
outdated security documents about our systems and some manuals
about our system.'' She went on to testify that the adversaries
``did not get specific configuration diagrams of our entire
environment'' adding that ``are commercially available
documents about platforms.'' Homeland Security went on to
testify ``did not include proprietary information or specific
information around the architecture of the OPM environment.''
So we are mystified as to what is true. Is it as Ms.
Seymour testified, or is it what you are telling us now, that
they did get very sensitive documents? We are not able to have
these documents. They were stolen. We know the adversaries have
them, but you won't allow Congress to look at them and have
them in our possession. You are offering an in camera review,
still with redactions. Why do we have to negotiate this with
you? Why aren't you sharing this information with us?
Mr. Levine. Thank you for the question, Mr. Chairman. So
there were, as I recall, five separate requests from the
committee on the specific topic to which you're referring.
The--all of the documents that Ms. Seymour was testifying about
were produced as part of our production. I don't have the exact
date, but the response--I believe that was to the August 18 but
might have been the July 24 letter. All of the information, all
of the documents that were exfiltrated during that incident
have been produced. You are right; they were produced
originally in camera because of the categories of information
that I described previously, system-sensitive information such
as ----
Chairman Chaffetz. But she testified that they were
outdated documents, they did not give specific configuration
diagrams, they were commercially available.
Mr. Levine. So to be ----
Chairman Chaffetz. Is that true or not true?
Mr. Levine. To be clear, Mr. Chairman, when we looked at
the--all of the separate requests that have been made, which
include information both about that incident and other
incidents, our IT professionals recommended that we treat all
of the following categories of information the same way, things
such as IP addresses, system-sensitive architecture, system
capabilities and tools as things to be treated carefully. We
treated them carefully inside OPM ----
Chairman Chaffetz. But she testified that this was all
commercially available and outdated information, so she is
leading Congress to believe no problem here. I know they came
in, I know they breached the system, I know they stole this,
but it is all commercially available, outdated information. Is
she accurate or not accurate?
Mr. Levine. Well, again, Mr. Chairman, what we've tried to
do is make available to you and your staff all of that
information ----
Chairman Chaffetz. You have not given--why aren't you
giving us this information, same stuff that was already hacked?
We know that the adversary has it but you won't let us see it.
Mr. Levine. With all due respect, Mr. Chairman, you do have
it. You have all of the ----
Chairman Chaffetz. Do we have it all unredacted? We do not.
Mr. Levine. You have all of the IT information unredacted.
The only thing that remains redacted with respect to that
production is a list of what we would consider unresponsive
names. It is just a list of every username on the system with
the last four of their Socials. But we are happy to--that said,
we are happy to make that information--continue to make that
information available if your staff lets us know. We're happy
to come back and work with you on that set of responses.
Chairman Chaffetz. So let me pull this out. We go in camera
to look at it, this is what it looks like.
Mr. Levine. That's the list I'm referring to. That is a--
simply a list ----
Chairman Chaffetz. Why are you redacting--I mean, we can go
page after page after page here ----
Mr. Levine. Sure.
Chairman Chaffetz.--why all these redactions?
Mr. Levine. Sure.
Chairman Chaffetz. I don't know what is under this.
Mr. Levine. And that's fair. What we've explained to your
staff is what that is is simply a list of every username on the
system.
Chairman Chaffetz. We are just supposed to say okay, you
are fine? We just ----
Mr. Levine. And we're happy--what we--we have a shared
goal.
Chairman Chaffetz. Don't tell us you are happy to do it
because, as a Member of Congress with very high security
clearances, you won't let us look at these materials.
Mr. Levine. To be fair, Mr. Chairman, we thought that was
nonresponsive. It wasn't a matter of not being secure. It was
nonresponsive.
Chairman Chaffetz. What do you mean nonresponsive? What
does that mean?
Mr. Levine. So the--internally ----
Chairman Chaffetz. We are asking to see this information,
and this is what you give us ----
Mr. Levine. We're ----
Chairman Chaffetz.--in camera. You won't even give this--
you know, you--then we finally have to negotiate with you over
months to get to this point where I can even hold it up.
Mr. Levine. Mr. Chairman, I'll go back and we'll work with
you. I think what we have tried to do ----
Chairman Chaffetz. Here is the concern. Ms. Seymour came
and testified to us and told us essentially there wasn't a
problem because it is outdated, publicly available information.
And you aren't even--in camera you still redact it. So don't
tell me that you are responsive and that you are happy. We are
not happy.
Mr. Levine. I appreciate that, Mr. Chairman. That
information is certainly not publicly available. Those are the
usernames on the systems. That is the last four Social Security
numbers.
Chairman Chaffetz. And that is what the adversaries got.
That is what we are concerned about.
Mr. Levine. Sure.
Chairman Chaffetz. Right?
Mr. Levine. I'm not going to comment on what your ----
Chairman Chaffetz. Yes, because the answer is yes ----
Mr. Levine.--what your ----
Chairman Chaffetz.--and that is what we need is candor. The
answer is yes. I mean, that is totally, dramatically, and
completely different than what Ms. Seymour testified. She tried
to get us to go away by telling us it is all publicly available
and it is outdated anyway. That was a lie. She misled Congress.
She is going to pay that price.
I now recognize Ms. Norton for 5 minutes.
Ms. Norton. Just to clarify, are the names of these
employees publicly available?
Mr. Levine. Well, as--to the extent that they are Federal
employees, I suppose that all Federal employees in one form or
another, names are available, but it would not necessarily be
----
Ms. Norton. The ones whose matters were breached are the
ones I am talking about. You know, I can go on and find out if
I am--I don't know, if I am a creditor or ----
Mr. Levine. Sure.
Ms. Norton. Can I find your name?
Mr. Levine. Sure. So to be clear, we are actually talking
about two separate--unfortunately, two separate incidents. The
incidence the chairman is referring to was of the systems
internally. The system I believe you're referring to would be
the later personnel records and background investigation
breaches. That information is not publicly available. What I
think we're referring to is, yes, every current Federal
employee at any--at a given moment, there are ----
Ms. Norton. Of course.
Mr. Levine.--forms ----
Ms. Norton.I just want ----to make sure that privacy
rights--it is enough--the names are not publicly available.
Mr. Levine. Sure. And to be clear, I think the list we were
just talking about was from 2014. But you're right; I mean,
those are separate things.
Ms. Norton. Look, Congress of course is self-centered about
what legislative business is. For you or perhaps Ms. Fucile--
and I don't know which of you should get this question, but the
most important legislative business you have done in recent
months is the production of a bipartisan budget. As I
understand it, your office played perhaps the central role of
all the agencies in there.
I know that every Member of Congress--I was one of four
leaders of the transportation bill. We were constantly talking
to your legislative people about legislation. I know that you
facilitated--and I appreciate what you did for the District of
Columbia. I can't imagine that there isn't a Member of Congress
that wasn't on the phone telling you what their constituents
did. I understand you responded to 1,650 budget requests and
that 600 of them came in those last few months. Would you
describe your substantive role in that legislative important
bill, perhaps the most important bill, the only bill that the
Congress of the United States has to put out every single year?
Ms. Fucile. Yes, Congresswoman. Thank you so much for that
question. We--OMB serves a wide mission, but certainly one of
our central functions is making sure that the government is
funded, and so our primary focus over the last couple months,
which has really been an agency-wide effort, has been ensuring
the bipartisan budget agreement, as well as the Consolidated
Appropriations Act, got through. That was a massive effort that
involved coordination with Republicans, Democrats, House,
Senate committees, individual offices, and we're really proud
of the work that we did there.
Ms. Norton. Well, first of all, I want to congratulate you
for that work. Thank you for the work you did on really
rescuing the Congress from the last several Congresses'
reputation as a do-nothing Congress. Maybe it was busy
answering legislative inquiries, but the most important inquiry
from our constituents was, of course, the annual budget, and I
appreciate that.
Director Levine, this breach of course was, if you were to
name them, perhaps the primary business of this committee this
year, and of course you were called to the carpet, your agency
was called to the carpet for it. Now, the legislative business
that you would have been, I suppose, most taken to task for
would have been how you responded to our constituents. It comes
under the hubris, I guess, of constituent services falling out
of legislative business.
I wish you would describe, pursuant to what this committee
wanted you to do, how you responded, what services were
affected, the notion of, I understand, a hotline for our
congressional offices to contact on behalf of their
constituents and other services that in fact responded to
Congress's concern about the OPM breach.
Mr. Levine. Sure. And I see my time is about to expire but
----
Chairman Chaffetz. Please ----
Mr. Levine. Okay. Sure.
Chairman Chaffetz.--complete the answer and ----
Mr. Levine. Thank you very much for the question. The--what
we've tried to do is twofold. While working to provide services
to all those who were impacted by the two separate incidents,
the--what we call the personnel records and the background
investigations incidents, we went out and provided credit
monitoring and identity theft protection services for all those
who had Social Security numbers and other similar information
exfiltrated in those breaches.
And so what our effort has been is to provide to all
Members of Congress a mechanism for having information when
your constituents call, whether they be current Federal
employees, whether they be retired Federal employees, or just
anyone whose information might have been swept up in that set
who received letters, who wanted to know whether they received
a letter. So what we did is we put together a hotline for
offices to give out to their caseworkers, and we sent out
information to all the district offices to make sure they had
that information. We produced one-page fact sheets that we
updated periodically, frequently asked questions. We've updated
our Web site.
It's been our effort--although please get in touch with our
office to the extent we can better provide information on those
efforts. Where issues have come up, we've gone back to the
vendors, whether it be about wait times, whether it be about
how the service was provided, the language that they use, we
want to make sure that people get the services that they need.
That is the highest priority of Acting Director Cobert and our
office.
Chairman Chaffetz. I thank the gentlewoman.
I will now recognize the gentleman from Florida, Mr. Mica,
for 5 minutes.
Mr. Mica. Thank you, Mr. Chairman.
Good morning, Ms. Johnson. I guess you are assistant
secretary of legislative affairs for Homeland Security
Department, is that correct?
Ms. Johnson. Yes, sir, I am.
Mr. Mica. A simple yes or no question, is DHS still
considering airport and aviation security a top priority?
Ms. Johnson. Yes, we do.
Mr. Mica. Okay. And in regard to TSA, do you have adequate
personnel? I think we just approved 50,795 people for TSA. Is
that about right?
Ms. Johnson. Congressman, I'd have to look at those
numbers. I don't ----
Mr. Mica. Okay. Well, that would be one you should be aware
of as legislative affairs director. We just passed the budget.
So we will just say 51,000 people, which I think we have a cap
of about 46,000 screeners. I think that is about right.
Last time we checked, we had over 4,000 TSA employees in
Washington, D.C. area within, say, 10 miles of this hearing
earning on average $103,000. I point this out because, somehow,
when we send requests for information about airport security,
that there is an unresponsiveness, and it appears that you have
adequate personnel, 4,000 making over $103,000 on average
within just almost earshot of where we are.
Let me just give you some examples. Almost a year ago,
March 16, the committee sent a letter to DHS on airport
credentialing. We got almost no response. This went on. In
April we followed up; in May we followed up. April 17 the
committee invited the then-acting Administrator Caraway to
testify on the 15th of May. We can't get documents, and then to
get someone to testify--on the evening of the 14th, DHS
informed the committee that Caraway was traveling and wouldn't
be available the night before the hearing. So it seems like we
have got a little bit of a problem here with getting responses.
In May the committee asked for additional documents trying
to be produced, same subject, no later than June 5. They failed
on that. Then, in June, June 4, we sent a bipartisan letter to
DHS on airport vulnerabilities. Our report showed that TSA
screeners failed to detect a high percentage of prohibited
items. You missed production of any information on that.
On July 2, another bipartisan letter from the committee
about failures, information on internal covert testing. You
failed on that. It goes on and on.
As late as--and I have requests here from--here is November
23. We know there are vulnerabilities. We have had people
coming up with false credentials and information. We have been
trying since last March to get responses and information, and
you failed to produce this. This is the latest. When can I
expect a response from this letter? We are sending it to Jeh
Johnson. He is still working there, isn't he?
Ms. Johnson. Yes, Secretary Johnson is the ----
Mr. Mica. I saw him in the hall yesterday here. Maybe that
is why he couldn't respond. Is there a problem--again, we have
some 4,000 people. We can't get responses to this. We have seen
the system has dangers and pitfalls, and all we are trying to
do is a simple oversight responsibility.
Maybe our latest request--staff, could you bring this down
to her and could you let us know, the Secretary, when we can
get a response on this latest request? We still have things
pending from last March. Again, you see our frustration. We are
trying to do our job. We expect you to do your job. When do you
think we could get a response on that?
Ms. Johnson. Thank you, Congressman. With regards to the
November 23 request, production on that one is imminent. I
believe that that should be out within--you know, within a
fairly short period of time. And the last one, I think you're
referring to the January 4 request. We just got that and
we've--using our usual tasking mechanism, it's been tasked out
to TSA, and they are beginning searches for that.
Mr. Mica. Thank you, Mr. Chairman.
Chairman Chaffetz. Thank you.
I now recognize the gentleman from Massachusetts, Mr.
Lynch, for 5 minutes.
Mr. Lynch. Thank you, Mr. Chairman.
At the outset, I want to say that I share much of the
frustration that is bipartisan up here in terms of trying to
get information from your agencies. You need to do better. You
really do.
We had a hearing couple weeks ago before the break
regarding visa overstays, the visa waiver program, and we have
been waiting a long time from DHS to get a list of how many
people--20 million people a year come into this country under
the visa waiver program. We need to know how many people
overstay their visas. We need that information. I am sure you
could give it to us for the Obama administration and the Bush
administration so we are not getting political, but we need
that information. That is plain and simple.
There seems to be an unneeded adversarial relationship
between us and the agencies, and it has been the same way in
previous administrations as well. But it is our constitutional
mandate to conduct oversight, and we need to have this
information.
I do want to say, though, that sometimes we on the side of
the dais are responsible for promoting that adversarial
relationship, and I want to point out one example that I think
highlights that. And that is, as the chairman has mentioned, we
are going to talk a little bit about Hillary Clinton's emails
today, and I just want to point out that this committee, we
conducted nine separate investigations.
We got direct evidence that Secretary Colin Powell got
frustrated with his government email and discarded it and went
out and acquired his own private email, his own private server,
and went to work and used a private server during the bulk of
his service, which was--and he is a great American, no question
about it.
But we have this situation where Secretary Clinton has been
pummeled with subpoenas and hearings and 11-hour hearings, and
yet we have Secretary Powell who testified before the United
Nations Security Council that Iraq had weapons of mass
destruction, but we don't want it. We don't want to ask
anything about him and his emails. We give him a complete pass.
And that is problematic. That makes us look tremendously biased
when, okay, I understand, we have to look at Secretary
Clinton's information and investigate that because four brave
Americans died.
And yet Secretary Powell did the same thing, bought his own
private server, says so in his book. We have direct stipulated
evidence that he did this. He gives testimony that Iraq had
weapons of mass destruction and 4,000 Americans die, and we
don't want to know anything about that. That is, you know, move
along, nothing to see here. And that sets up this adversarial
relationship here. That is why some people think that this is
political, some of this stuff is political. And the evidence
would certainly lead us to believe that.
You know, the Select Committee, we call it a Select
Committee because the way the members are chosen, not based on
how the evidence is chosen and looked at. And I think, you
know, up on this side of the aisle, you know, we do have--you
know, 80 percent of what we are doing here is, you know, is
just straight up. We are trying to do the right thing for the
people we represent. But every once in a while on an issue we
go sideways, and it becomes a political hunt and we depart
from, I think, our constitutional mandate to get at the truth
and instead, you know, go after what is politically expedient.
So I just want to say, you know, Ms. Johnson, we need to
have that information on the visa overstays. We really do. I
mean, we are not looking to embarrass anybody. I bet that
information is embarrassing, but it is only embarrassing
because we have received repeated assurances that everything is
okay. And that is a continual pattern with the agencies.
Everything is fine. Secret Service, everything is fine. We
found out it wasn't fine.
You know, this visa waiver program, we are told that we
have a robust system. Then, we find out that there are dozens
and dozens of people on the terrorist watch list that are
actually working in secure areas of our airports and have been
vetted and cleared by DHS, TSA.
So we are after the truth here most of the time, but I do
want to highlight that aspect of this, that we have to be
fairer in conducting oversight as well. I yield back.
Chairman Chaffetz. I now recognize the gentleman from Ohio,
Mr. Turner, for 5 minutes.
Mr. Turner. Thank you, Mr. Chairman.
Mr. Levine, I serve on the Intelligence Committee, as well
as the Oversight Committee, and as a result of that, I have
been following the role of CyTech in both discovering or
confirming the OPM breach. The chairman has undertaken
leadership for this committee to review this issue and
oversight, and enjoining the chairman's lead on that, on
September 9, the two of us wrote requesting documents and
information pertaining to the OPM breach and the device that
was supplied or furnished to OPM by CyTech.
In your response on October 28, 2015, you stated that the
CyTech device was ``sanitized'' in accordance with best
practices, National Institute of Standards and Technology
guidance and OPM policy. This binder is a list of what would
have been sanitized by file numbers. It is not the list of
files but file names or titles. There are 15 to 16 file titles
per page to show you the extent, the enormous aspect of what
must have been sanitized.
Additionally, in response to the committee's preservation
order, you wrote on September 1, 2015, that ``OPM has been and
continues to work to preserve agency records in a manner
consistent with applicable law, regulations, policies, and
national archives and records administration guidance.'' So I
want to contrast those two in my questions.
So, first off, how far back are you saving records, and do
these efforts cover the breaches that occurred in 2014, as well
as those that occurred in 2015?
Mr. Levine. Thank you for the question. So, as I understand
it, we are preserving records not just associated of course
with the breach but with all government records in accordance
with NARA and other appropriate government recordkeeping
authorities. As you can imagine, we also have litigation that
is ongoing, and so we also have litigation present at this time
----
Mr. Turner. But with respect to this breach, the standard
is higher, correct? I mean, you are preserving a wider breadth
of records and putting a greater effort on their preservation?
Mr. Levine. Yes, I think that's fair to say.
Mr. Turner. So what specific steps are you taking to
preserve those records, and argue, for example, preserving
backup tapes?
Mr. Levine. I would need to get back with you on that.
Mr. Turner. Well, the CyTech device was returned to the
company on August 20, and did OPM preserve records by making a
copy of the information that was on the device before returning
it to CyTech?
Mr. Levine. I would also need to get back to you on that. I
did want to--though to your question about the way the device
was returned, it is my understanding--and I'm not an IT cyber
expert, but it is my understanding that it is standard practice
when returning this sort of device in these sort of
circumstances to treat it the way it was treated, which is to
essentially wipe it before it's returned in case there would be
information that is sensitive in a system way. But I will ----
Mr. Turner. Okay.
Mr. Levine. I'll have to get back to you on the backup ----
Mr. Turner. Excellent. And I think that you probably
clearly understand that my question is not necessarily the
status of the device but the status of information that was on
the device that is supposed to be turned over to the committee.
And we clearly requested that information. This, again, is a
list of the file names of what would have been deleted, 15 to
16 file titles per page, so it is an enormous amount of
information that would have been on that.
And obviously, since we are all very concerned about the
cyber attack, certainly any information that is contained on
the CyTech device would just--even for forensics to be able to
understand what had occurred would be important to be
preserved. And this committee has requested a copy of this
information. So the two aspects of this, one, my expectation
would be that OPM has it, and my second expectation would be
that you are going to turn it over to this committee.
Mr. Levine. And certainly to the extent that we have it,
then we need to have a conversation. If I could ask the 15 to
16 types of file names that you're referring to is ----
Mr. Turner. Names per page on all of these pages.
Mr. Levine. But as that--I'm--and I'm sorry. Is that
information that we provided or is that information that the
company ----
Mr. Turner. This is information that the committee has. I
believe it was provided by CyTech.
Mr. Levine. Okay. All right. Well, I--we'll have to circle
back with you. My understanding was that there was--well, you
know what, I don't want to misspeak. We will have to get back
to you exactly with respect to how it was--with respect to the
device. I ----
Mr. Turner. And just to ----
Mr. Levine.--we've answered the question as to ----
Mr. Turner. Great. And just to make certain that we are
absolutely clear, the expectation would be that the
preservation order and your processes as a result of the cyber
attack would have required that you preserve this information.
And so we are looking forward to an affirmative response from
you.
Thank you. I yield back.
Chairman Chaffetz. Well, before the gentleman yields back,
if you will yield to me for a moment?
Mr. Turner. Absolutely. I yield to the chairman.
Chairman Chaffetz. Well, Mr. Turner and I sent you a
letter. What percentage of the requests have you given back to
us? That is, we made a request. I thought I heard you say you
have given us a full response. What percentage of the ----
Mr. Levine. So I don't know that we could--I could put it
in terms of a percentage. I know that we have made every effort
to provide it--responses to every question that has been asked,
and we have worked with your staff, who has been
extraordinarily accommodating in helping us prioritize. Where
they've had follow-up questions, we certainly work to do that.
Chairman Chaffetz. Okay. So my follow-up question with Mr.
Turner here is you say full. To me, full is 100 percent. Is
full 70 percent in your mind?
Mr. Levine. To be fair, Mr. Chairman, I did not use the
word full. What we've tried to do is provide a response to
every question that's been asked. And to the extent that there
are ----
Chairman Chaffetz. All the documents that we have
requested, emails, we have been asking for months. When will we
get 100 percent of those requests?
Mr. Levine. We believe we've answered every question that's
been asked. If there are questions that we've provided answers
to that the staff or of course the Members feel that we need to
provide more information about that is not fully ----
Chairman Chaffetz. Well, I don't know when you are done.
This is the problem with all of you. You wrote in your
testimony ``received and provided responses to every question
in six separate document production requests.''
Mr. Levine. That's correct. We believe we have provided --
--
Chairman Chaffetz. I know you have given us an answer, but
I need to know if it is complete.
Mr. Levine. Okay. So--I'm sorry. With respect to the--and
keep in mind that those six also incorporate other committees.
With respect to the five requests from this committee,
we've provided--we look at four of those as closed. One of
them, the request with respect to the differences between the
contracts for the credit monitoring and ID theft between the
first contract and the second contract, while we have provided
answers to each of those questions, we do expect another set of
documents coming I would say this month if not, you know, not
in the next couple of weeks that remain in the interagency
process.
But with respect to this question, the--I hear your
question, Mr. Congressman. We'll get back to you on whether
there's something that remains outstanding in terms of the
backup files.
Chairman Chaffetz. You better start explaining to us why
CyTech is providing us documents that you aren't providing to
us, that you wrote, that you engaged in. And there is no excuse
for withholding that information from Congress. You have it. It
is in your systems, and we know it because we are looking at
hardcopies and we are checking to see if you give it to us as
well. And you are not. That is why you are going to be back
before this committee. OPM, we are going to bring them up here
and we are going to get to the truth of this. It is one of the
biggest data breaches in the history of this country, and we
need 100 percent response.
Mr. Cummings. Will the gentleman yield for just a second?
Chairman Chaffetz. Sure.
Mr. Cummings. Let's see if we can get past, down to the
nitty-gritty here. The chairman just mentioned documents that
we don't have, the CyTech. Why don't we have them and can you
tell us when we will get them?
Mr. Levine. Sure.
Mr. Cummings. I mean, it seems like we are going in a
circle and, you know, I don't know, maybe you all are going to
be here a long time but, you know, I can't be here forever
going in circles. And I think it is unfair to the committee.
And so can you give us some definitive answers?
Mr. Levine. So to--thank you very much for the question. To
the best of my understanding, we have provided the information
we have associated with that tool. To the extent we have not,
we need--you know, we need to go back and make sure that we are
being responsive. But ----
Mr. Cummings. And how soon will you do that?
Mr. Turner. And to follow on with the ranking member, and
if you don't have it, you need to explain why because you are
absolutely under responsibility to have preserved it. And if
you haven't preserved it, that is another issue that this
committee is going to have to pursue.
Mr. Cummings. Thank you, Mr. Chairman.
Chairman Chaffetz. Thank you.
I now recognize Mr. Connolly of Virginia for 5 minutes.
Mr. Connolly. Thank you, Mr. Chairman.
I find myself in an interesting position in this hearing
because, having worked for the legislative branch for 10 years
in the Senate and now being a member of the legislative branch
as an elected Member of the House, I certainly have always felt
that it is a key responsibility of the executive branch to be
responsive to legislative information requests.
On the other hand, our Constitution I think builds in
dialectic in which, you know, we want information and the
executive branch doesn't want us to have it. It is kind of a
natural order of things. And so there is a built-in tension and
there are mechanisms for us to address that dialectic. But it
does rely at the end of the day on common sense, on good faith,
on determination, as well as statutory enablers.
Legitimate requirements for information must be enforced on
a bipartisan basis. Fishing expeditions, blatantly partisan
efforts to seek information to embarrass, to humiliate, to
undermine will not get bipartisan support and don't deserve it
and can understandably cause even more friction in the
executive branch in trying to be responsive.
Ms. Fucile, in May of last year the chairman, along with
Mr. Meadows, sent a request to OMB for documents relating to a
review of the Clean Water rule. You are familiar with that?
Ms. Fucile. Yes, I am.
Mr. Connolly. That request was then followed by a subpoena
in July for similar documents. Is that correct?
Ms. Fucile. Yes. Yes, it is.
Mr. Connolly. And the time period the subpoena requested
documents ranged from June of 2006 to July of 2015, a 9-year
time period, is that correct?
Ms. Fucile. Correct.
Mr. Connolly. Okay. So you are being asked to search and
produce documents over a 9-year period. Can you briefly explain
to us what is involved in being asked to search and produce
documents covering a 9-year period? Because sometimes in this
conversation we act as if they are all just sitting on piles
waiting to be delivered up here and you are just withholding
them. But that is not really how it works, is it?
Ms. Fucile. No. Thank you for the question.
Mr. Connolly. And if you can just pull that a little closer
to you, thank you so much.
Ms. Fucile. Is that better?
Mr. Connolly. Yes, great.
Ms. Fucile. Yes, the request for information that we
received was quite broad covering a 9-year span. And as such,
we began our search process. That involved identifying the
subject--the various custodians of all the information, and
then once the documents are gathered, then having a review
performed by various subject matter experts, followed by review
of other agencies to ensure that equities received proper
review. It's quite an intense sort of process, particularly for
such a broad range of documents. We--you know, we continue to
work on processing that request.
Mr. Connolly. And have you been responsive to that
subpoena?
Ms. Fucile. Our production response rate I think could
certainly be improved. We have not produced as quickly as I
think that we should have. As such, we have taken steps
recently to improve our production response rate, and I expect
that that will continue moving forward.
Mr. Connolly. Yes, I also--you know, I can sympathize with
the chairman saying, well, it ought not to be an issue of the
volume, that is to say how many pages you have delivered. It is
the percentage of the request. And that sounds reasonable. And
in many cases I would probably agree with the chairman that
that is a better standard in terms of determining
responsiveness.
But on the other hand, it can also be a self-serving
standard--not that it would be here, of course--when we don't
like the response and when in fact we are on a fishing
expedition that could be tens and tens of millions of
documents. And then that standard can be used against you, I
think, unfairly where you are trying to be responsive but you
are not anytime soon going to give me 100 million pages of
something and you are doing the very best you can to be
responsive to the nature of the request.
So I think we need to tread a little bit carefully when we
decide to throw a flag down and say you are unresponsive, while
at the same time trying to seek bipartisan consensus to ensure
accountability in the executive branch, and that we fulfill our
role, our constitutional role of oversight of that branch.
With that, I yield back.
Chairman Chaffetz. I thank the gentleman.
I will now recognize the gentleman from Ohio, Mr. Jordan,
for 5 minutes.
Mr. Jordan. Thank you, Mr. Chairman.
Mr. Kadzik, last fall, October 23, you sent a letter to the
chairman and the ranking member saying that there were no
prosecutions in--there were going to be no prosecutions in the
IRS targeting case. When was the decision made not to
prosecute?
Mr. Kadzik. Well, I think that it was shortly before we
sent the letter.
Mr. Jordan. Shortly before the 23rd?
Mr. Kadzik. That's correct.
Mr. Jordan. A week before, 2 weeks before, do you know?
Mr. Kadzik. I can't ----
Mr. Jordan. A month before?
Mr. Kadzik. I can't put a precise date on it.
Mr. Jordan. In your letter to the chairman you said over
100 witnesses were interviewed. Was John Koskinen interviewed?
Mr. Kadzik. I don't know.
Mr. Jordan. You don't know?
Mr. Kadzik. I don't know.
Mr. Jordan. Were those interviews transcribed?
Mr. Kadzik. I don't know.
Mr. Jordan. In your letter you said ``substantial evidence
of mismanagement took place.'' Your investigation uncovered
substantial evidence of mismanagement by who?
Mr. Kadzik. By employees of the IRS.
Mr. Jordan. Specifically?
Mr. Kadzik. I can't give you specific names.
Mr. Jordan. Mr. Kadzik, you wrote this letter, right, 8-
page letter? You ----
Mr. Kadzik. That's correct.
Mr. Jordan. Okay.
Mr. Kadzik. And we scheduled a briefing for next week in
order to provide you and other Members with additional
information, and we will have people involved in the
investigation ----
Mr. Jordan. Well, we appreciate that, but we also sent you
a letter on December 1, the chairman and I, and we requested in
that letter all documents that pertain to the investigation,
and we have yet to receive a single document. Why is that?
Mr. Kadzik. Well, we also received your letter yesterday
requesting the file.
Mr. Jordan. That is a follow-up letter. We sent the first
letter over a month ago.
Mr. Kadzik. I understand, but producing an entire
investigation or prosecution file presents particular issues
with respect to our law enforcement sensitivities,
prosecutorial ----
Mr. Jordan. Now, we have heard that for 3-1/2 years.
Mr. Kadzik.--responsibilities ----
Mr. Jordan. We have heard that for 3-1/2 years. I have had
two different FBI directors. I have had Mr. Holder, Assistant
Attorney General Mr. Cole give me that exact same answer for 3-
1/2 years. And their answer added one other word: ongoing
investigation. And now the investigation is over and it has
been at least by October 23, according to what you just
testified and according to the 8-page letter you sent us on
October 23. And now you are telling us you can't get us any
documents and you are just giving us the same--is there some
national security interest that prevents you from giving us
those documents?
Mr. Kadzik. No, but there are ----
Mr. Jordan. Is there some presidential privilege that
prevents you from giving us those documents?
Mr. Kadzik. No, but there are law enforcement sensitivities
and prosecutorial responsibilities concerning the
confidentiality of witnesses, people cooperating with the
investigation, the candid assessments of the attorneys and
agents ----
Mr. Jordan. But you can give us something and you haven't
given us anything. That is the point.
Mr. Kadzik. Well, we've engaged in the accommodation
process, which includes the briefing which we scheduled for
next week.
Mr. Jordan. In that briefing are you going to be able to
give me a little more information to give me--in your letter,
you say there is a substantial evidence of poor judgment. Can
you tell me who exercised poor judgment at the IRS when they
were systematically targeting Americans' most cherished and
fundamental right, their free speech rights under the First
Amendment being violated for 5 years in some cases of certain
groups and certain individuals? Can you tell me who at the IRS
was exercising that poor judgment?
Mr. Kadzik. As I said, we've scheduled briefing for next
week, and we'll be able to provide you with ----
Mr. Jordan. Well, this is going to be a heck of a briefing,
isn't it?
Did you tell the White House before the October 23 letter
came to the chairman saying no one was going to be prosecuted?
Mr. Kadzik. No.
Mr. Jordan. Did you tell Ms. Lerner, her or her counsel,
that there wasn't going to be prosecutions before the letter
came to Chairman Chaffetz?
Mr. Kadzik. No.
Mr. Jordan. Did you tell Mr. Shulman that there was not
going to be a prosecution before the letter came to Mr.
Chaffetz?
Mr. Kadzik. I've never talked to Mr. Shulman.
Mr. Jordan. No, I am not saying you personally. I am saying
did the Justice Department notify these individuals before you
told this committee that no one was going to be prosecuted when
Americans' most cherished First Amendment free-speech rights
were targeted for a 5-year time frame in some cases?
Mr. Kadzik. Not that I'm aware of.
Mr. Jordan. Not that you are aware of, okay. And you don't
know if the interviews were transcribed?
Mr. Kadzik. I do not.
Mr. Jordan. And you don't know if John Koskinen was
interviewed?
Mr. Kadzik. I do not.
Mr. Jordan. Do you think he should have been interviewed as
the guy who was presiding over the Internal Revenue Service
with a preservation order from the Justice Department, your
agency, in place and he is the IRS Commissioner when 422 backup
tapes are destroyed containing potentially 24,000 emails? Do
you think it would be maybe a good thing to do in an
investigation to interview Mr. Koskinen?
Mr. Kadzik. I can tell you that the career attorneys and
the investigators and prosecutors that were involved in the
investigation did a complete and thorough investigation.
Mr. Jordan. Were any of the victims, the people who were
targeted, were they notified before the letter came to
Congress? Did you talk to any of them and say that no one was
going to be prosecuted?
Mr. Kadzik. Not that I'm aware of.
Mr. Jordan. Do you know Catherine Engelbrecht? Are you
familiar with that name?
Mr. Kadzik. I'm familiar with that name.
Mr. Jordan. The lady who started the organization True the
Vote, the lady who was audited both personally and her business
by the IRS, was visited by the EPA, the ATF, the FBI, and OSHA,
all while she was simply trying to clean up voter registration
rolls, systematically targeted. The full weight of the Federal
Government came down on her. Do you know if she was contacted
before you decided not to prosecute anyone?
Mr. Kadzik. I don't know.
Mr. Jordan. Mr. Chairman ----
Mr. Kadzik. I know that individuals were interviewed in the
context of the investigation, but I understand your question --
--
Mr. Jordan. One last question ----
Mr. Kadzik.--was anyone prosecuted but ----
Mr. Jordan. But one last question.
Mr. Kadzik. Sure.
Mr. Jordan. So you are going to talk to us in a few weeks
with a briefing?
Mr. Kadzik. Next week.
Mr. Jordan. When do you think we are going to get the
documents?
Mr. Kadzik. I think that as part of the accommodation
process, we'll talk about that next week. And as I said, those
documents present particular ----
Mr. Jordan. Do you plan on giving us the documents or are
you going to come talk to us and say you are still not going to
get them to us and we need to talk more? Are you actively now
trying to get those documents and get them to us?
Mr. Kadzik. We're actively preparing for the briefing next
week and determining what information ----
Mr. Jordan. That wasn't my question. Are you actively
getting the documents to us?
Mr. Kadzik. Are we actively getting the documents--we're
reviewing the documents to see what the law enforcement
sensitivities and other issues that are presented by those
documents in any investigative or prosecutorial file.
Mr. Jordan. Thank you, Mr. Chairman.
Chairman Chaffetz. Please be prepared to answer all of
those questions at the briefing next week. You have had years
you have looked at it, months to prepare given our letter. We
expect a full and complete briefing.
I will now recognize the gentleman from California, Mr.
Lieu, for 5 minutes.
Mr. Lieu. Thank you, Mr. Chair.
Let me, first of all, thank the panel for their public
service.
I do share the chair's and ranking member's frustrations
with the withholding of information by the executive branch to
Congress. One panel member, I believe, mentioned the difficulty
of having 100 bosses. I just want to note that you only have
one boss. That is the American people. And one of the ways the
Framers designed our government is for the American people to
express their will through 435 elected Members of Congress and
100 elected Senators. And it is the duty of the executive
branch to respond in a timely manner to Members of Congress,
whether it is 100 members or 535.
And let me explain the importance of this. I will go
through one area, which is privacy. The U.S. Supreme Court has
said it is illegal for law enforcement without a warrant to put
a GPS device on a person's car and track them through
geolocation. This committee has sent two letters to the
Department of Justice asking for your policies on geolocation.
You have failed to provide them, and I want to know why that
is. Why don't you just provide your policy on geolocation
because we want to know if you are violating the law?
Mr. Kadzik. Well, Congressman, first of all, the request is
not for policies. The request was for two particular memoranda
which consist of attorney work product, which was advice
provided to our prosecutors that included investigative and
litigation strategies. With respect to policies, to the extent
that policies exist, for example, in the cell-site simulator
context, we have provided that policy to the Congress.
Mr. Lieu. Well, let me just read the first sentence of your
letter dated October 30, 2015. ``This is in response to your
letter to the attorney general dated October 26, 2015,
regarding your interest in Department of Justice policies on
geolocation and other surveillance technology.''
So since you have brought up cell-site simulators, we had a
hearing in October, and your Department of Justice witness
testified about StingRays, which can monitor cell phones, track
their locations, and we want to know and I want to know, well,
could these StingRays also get substantive conversations?
Department of Justice witness, I believe, sort of danced
around that and sort of said I don't know, which I find
troubling. So either that witness was withholding information
from this committee or had a shocking level of ignorance about
a device that the Department of Justice was using. But she did
commit to providing the answer to that question to which we
have not gotten yet, even though we asked both publicly, as
well as in writing. But I did find out about a week after the
hearing through the press that, yes, in fact these StingRays
can be configured to monitor conversations.
So that is why it is so important we get documents because
I partly don't trust the witnesses that I have heard sometimes
before this hearing, and I just want to look at these documents
to know is the Department violating the law. It is not a hard
request. If you don't want this memorandum put out publicly,
you don't have to. You can give it to us in a confidential,
private setting.
But I think it is important that we get these documents,
and I think the American people have a right to know is the
Department of Justice violating the law when it comes to
privacy. And we need to have these documents and know what your
policies are. How are you using StingRays? How are you using
geolocation? How are you using these GPS devices?
And so I am going to ask you once again to provide these
documents. And I know in your letter to this committee you
don't cite a case, so unless you can provide some sort of case
that says you can't provide these documents, I would like you
to provide those documents. And with that, I yield back.
Chairman Chaffetz. Before the gentleman yields back, if he
would yield to me for a moment on this.
Ranking Member Cummings and I sent the Department of
Justice a request. I just don't understand when the Department
of Justice sends out, as was revealed by the general counsel
for the FBI, guidance to the field specifically on the use of
GPS and guidance on what the Jones--that being the Supreme
Court case--what Jones means for other types of geolocation
techniques, why is it that Members of Congress with security
clearances--I happen to sit on the Judiciary Committee, I am on
the Crimes Subcommittee--why is it that I cannot actually see
what you are sending out far and wide? I mean, you are sending
this out to all of your prosecutors, you are sending it out
to--when you send this out far and wide, why can't Elijah
Cummings and I go look at it?
Mr. Kadzik. Well, first of all, Mr. Chairman, I would say
that we are not sending it out far and wide. It is attorney
work product. It goes to those prosecutors that need that
information when they litigate cases and they approve or
disapprove particular investigative techniques. And we have
provided briefings with respect to this ----
Chairman Chaffetz. No, no, no, no, no, no.
Mr. Kadzik.--and we've also provided ----
Chairman Chaffetz. A briefing is not good enough. A
briefing is not good enough. This is the FOIA request that is
put out, 100 percent redacted. This is what the pages look
like, okay? We have got concerns post-Jones that the Federal
Government is potentially spying on Americans, what sort of
techniques they are using. We represent the people. We have a
security clearance. You send us blank pages like this to the
public, and so we are asking in an in camera review situation
to be able to read this ourselves. You are willing to give it
to all the Federal prosecutors, okay? You are willing to share
this widely within the Department, but you won't allow Members
of Congress to look at it? Why?
Mr. Kadzik. Mr. Chairman, as I indicated, we've provided
briefings, we've provide pleadings where we've publicly
disclosed our legal analysis. We'd be happy to provide
additional pleadings and additional briefings, but there are
law enforcement sensitivities. And again, it is attorney work
product information. And we're happy to continue with the
accommodation process.
Chairman Chaffetz. This is guidance. You are giving
guidance. You have sent this out on the techniques that are
currently being deployed.
Mr. Kadzik. I ----
Chairman Chaffetz. We don't know if you are violating the
law, not violating the law, if other laws need to be written.
Justice Alito even refer to that in his opinion saying the
legislative body need to be involved and engaged here. The
American people trust us but you don't trust us.
Mr. Kadzik. It is not that we don't trust you, Mr.
Chairman, but again, it's attorney work product, privileged
information that's designed to provide ----
Chairman Chaffetz. Privileged from the American people, and
that is what I have got a problem with.
Mr. Cummings. Will the gentleman yield?
Chairman Chaffetz. Yes.
Mr. Cummings. Again, let's try to get down to the bottom
here. Is it one of your concerns that there are ongoing
investigations, sir?
Mr. Kadzik. Yes, Mr. Cummings, there are ongoing
investigations. These do discuss investigative techniques and
the legal arguments that we would make in support of those
techniques. And they discuss also the potential legal arguments
that would be made by defendants. And we're concerned that if
these techniques are disclosed that, you know, criminal
elements can use that information in order to avoid detection
in law enforcement efforts.
Mr. Cummings. So the bottom line is that you don't trust
us?
Mr. Kadzik. No, it's not that we don't trust you.
Mr. Cummings. I mean, in other words, you know, if we are
saying that we would like to see this information in confidence
and make commitments that we are not going to disclose, then
what would be the reason--I mean, going to what you just said?
In other words, that seems to take away your reason for not
providing it.
Mr. Kadzik. We've ----
Mr. Cummings. Am I missing something?
Mr. Kadzik. We've engaged in discussions along that route,
and we'd be happy to continue those discussions as an
accommodation to the committee.
Chairman Chaffetz. That is not an accommodation. I want to
actually read it. You gave it to all the Federal prosecutors;
you gave it to the criminal chiefs and the appellate chiefs.
Why do you assume that if Elijah Cummings or any Member of
Congress with a security clearance, having signed an oath,
taken an oath, we signed documents saying we won't reveal this,
why do you assume that because we read it in camera that it is
going to suddenly get out in the public?
Mr. Kadzik. Well, Mr. Chairman, it is not also--not only a
question of disclosure; it is a question of waiver of
privilege. And so, you know, the fact that we provide it to a
third-party could potentially be an argument that we have
waived the privilege and it would be discoverable by other
individuals, defendants in criminal cases. And what we're
trying to do is to protect our law enforcement
responsibilities.
Mr. Cummings. Just one other question if the gentleman will
yield. There is a piece missing here. There is nobody up here
on either side that wants to do anything to interfere with a
criminal investigation. In other words, we want to make sure
that you are able to do your job, but you have got to
understand, we are trying to do our job, too. And it seems like
we ought to be able to reach some type of balance here. And if
there is case law supporting what you just said, do we have
that? Have you provided that?
Mr. Kadzik. I don't know if we have provided it, Mr.
Cummings, but again, we'd be glad to continue these
discussions, and I agree that there's a way in which we can
reach an accommodation to provide ----
Mr. Cummings. Well, let's try to do that ----
Mr. Kadzik. I--we will certainly ----
Mr. Cummings.--as soon as possible.
Mr. Kadzik. Yes, sir.
Chairman Chaffetz. We haven't gotten there yet and it has
been years. I would cite the FTC v. Owens-Corning Fiberglass.
When a congressional committee compels production of a
privileged communication through proper subpoena, it does not
prevent assertion in privilege. It is well documented. You are
hiding this from the American people. Who is the client? Who is
the client that you are trying to protect?
Mr. Kadzik. We're trying to protect the American people but
----
Chairman Chaffetz. And we represent the American people.
Mr. Kadzik. And so do we, but providing this memorandum for
broad public disclosure doesn't protect ----
Chairman Chaffetz. I am not talking about public
disclosure. As Members of Congress, we should be able to see
what you are doing and how you are doing it.
Mr. Kadzik. And as I said, we are trying to accommodate the
information requests. We are happy to continue the discussion.
Chairman Chaffetz. No, you are not because we just want to
read the documents that you are giving to the prosecutors and
the criminal chiefs. And you are saying no, and it should scare
every American.
I appreciate the committee's indulgence. We have gone on a
long time with this. I believe I now recognize Mr. Walberg for
5 minutes.
Mr. Walberg. Well, Mr. Chairman, this is a perfect example
of how we have gone away--and, Mr. Kadzik, with all due
respect, you do not represent the American people. You do not
represent the American people. We are the only ones elected to
represent the American people. Now, remember that.
Now, I am sitting here today thinking I am hearing an old
Hogan's Heroes rerun with Sergeant Schultz saying ``I know
nothing.'' I also understand that you people have been put in
very difficult situations representing people who do have the
answers but put you in the place to try to give just enough to
satisfy us. And you have staff behind you to make sure that you
don't go too far in giving that answer. And that is
frustrating.
Now, I also understand that you don't have the benefit that
we do. There is only one person in our district that people
come to and expect to have an answer from, and we are held
accountable, Members of Congress. We are elected by those
people. And the further you get outside of this Beltway--and
that is a challenge that you have; I understand that--but
having relatives that live at different levels outside of this
Beltway, the further you get away, the more frustration there
is that the people have lost control from both sides of the
perspective.
And so when we who directly represent the people, who have
been elected to represent the people in given districts,
especially here in the House, are put upon by our people to ask
questions and to get understanding for them, you have got to
understand why it is frustrating to have documents that we have
been told we will receive piecemealed out.
And so, Ms. Fucile, I go to you. Representing the State
that has Waters of the U.S. surrounding us on three sides, very
important to Michigan, I have a very great interest in the
rules-making process. Back on March 3, 2015, in a hearing
before this committee, members asked Administrator Shelanski
for documents relating to OIRA's review of the Waters of the
U.S.rulemaking. After the hearing, committee staff followed up
with your staff on numerous occasions about this request but
received no response.
How did you instruct your legislative affairs staff to
respond to the committee after the March 3 hearing? Did you
instruct them not to initiate a search until a formal letter
was received from the committee? Did anyone tell you not to
initiate a search? What are your answers?
Ms. Fucile. No. Absolutely, after receiving the request, we
began the search. It's a large search and it's taking time. And
I appreciate that we should have, could have increased the
speed of that production, and we are working on that. But when
we got that request, we started to produce documents. We
produced documents over the last several months. We will
continue to.
Mr. Walberg. In your first production to this committee on
June 4, OMB provided 893 pages of documents, 893 pages, 846 of
which were publicly available online. Were you aware of that?
Ms. Fucile. The document request that we received was quite
broad, and the documents that we produced were responsive to
that. The--several of those documents--or much of that
documents were publicly available online.
Mr. Walberg. Well, in light of that ----
Ms. Fucile. Since then--since then, we have produced email
communications between senior OIRA officials ----
Mr. Walberg. Is it normal practice to have staff that are
under a heavy load, I understand that, to produce for a
committee documents that are readily available already?
Ms. Fucile. That was--we--as we read the request, the
request was quite broad. We believed that the documents that we
provided were part of that request.
Mr. Walberg. That is not helpful. I mean, we could do that.
We have plenty of other pages just going over to what EPA has
provided for us already. They provided 21,000 pages of
responsive documents, 21,000 pages. In the last 10 months OMB
has provided this committee with 3,260 pages, 21,000 versus
3,260. That is concerning.
Ms. Fucile. The role of EPA with respect to promulgating
this rule is considerably different than the role that OIRA and
OMB play. The number of documents that we would produce for any
rule would be expected to be considerably smaller than that of
the agency ----
Mr. Walberg. Eighty percent were online already, and we are
capable of seeing those. We weren't asking for those.
Ms. Fucile. I disagree with the characterization that 80
percent of what we have produced for this committee were
available online. The first production included materials that
were available online. The subsequent productions and the vast
majority ----
Mr. Walberg. Less than 100 pages ----
Ms. Fucile. The vast majority ----
Mr. Walberg.--were not online.
Ms. Fucile. The vast majority of the documents we have
produced for this committee have not been documents that were
available online.
Mr. Walberg. I yield back.
Chairman Chaffetz. I will now recognize the gentlewoman
from New Jersey, Mrs. Watson Coleman, for 5 minutes.
Mrs. Watson Coleman. Thank you, Mr. Chairman, and thank you
to each of you who are here today to answer our questions.
This has been a very difficult discourse, and I as a new
Member am somewhere between are we putting too much on our
departments trying to get information from so many different
committees and subcommittees? Is that an onerous burden that
you are not staffed or configured to respond to in a timely
manner and in a way that meets our needs and our requests? Are
you trying to not give us the information that we want in a
manner that is usable for Congress as Congress goes about doing
its work?
And so if it is the former, then we need to address that
and you need to be communicating clearly with us about the
impact of the requests and how we can better work together. If
it is the latter, then you are just going to be dragged into
this committee and subcommittees until the end of time because
it is disrespectful not to address Congress's right to have
information. And so we need to figure out exactly which one of
these things it is.
In the Department of Human Services there was a request
regarding some findings with regard to Secret Service, Ms.
Johnson, and there were a number of issues which were already
addressed, but my understanding is that there is one more issue
that is outstanding. I am not quite sure what it is. Are you
aware of it? It is one of 16 issues that have been identified
and have been responded to in some way, shape, or form.
Ms. Johnson. Yes, thank you, Congresswoman. Yes, we--with
regards to the Secret Service request, we are dealing with two
different documents. One was the February 18, 2015, letter, and
that contains 16 requests. And we were complying with that
request. As a matter of fact, the good news story was the
process worked as it should. It was--their--the requests were
very broad, and so we went back to the committee and asked the
committee to prioritize so that we could prioritize, which, in
fact, the committee did. You prioritized four lines or four
categories of information, which we were producing. And in the
course of that production, then, ultimately, the July 9
subpoena came forward. It also had 18 requests, most of which
were overlapping with the February 18 letter but it broadened
the aperture.
And so as a result of that, we have been producing on both
of those documents, and we continue to produce. Even last
night, we produced documents responsive to the February 18
request on a--for requests numbers 4 and number 11. And so,
yes, it's a rolling production and we have been producing since
February.
Mrs. Watson Coleman. So if there is an outstanding request,
do you have any idea, any estimate of the time that it would
take to have that request answered, responded to ----
Ms. Johnson. Congresswoman, we are routinely ----
Mrs. Watson Coleman.--or is it just a series of things that
----
Ms. Johnson. Right, we're continuing to comply. On the
February 18 letter there were 16 requests, 12 of them are
closed, four remain open, and as I said ----
Mrs. Watson Coleman. Okay.
Ms. Johnson.--we produced last night for two more. So that
means there's two that remain open on that one.
Mrs. Watson Coleman. On that request.
Ms. Johnson. On the July 9 subpoena there were 18 requests,
13 requests are closed, 5 remain open, and we continue to
produce on those. So I can't give you a definite timeline ----
Mrs. Watson Coleman. Okay.
Ms. Johnson.--but we have been producing, we continue to
produce, and we will continue until such time as we can close
these two out.
Mrs. Watson Coleman. So the Department of Justice issue is
a little bit different because there is a question as to--from
the Department's perspective versus our committee's perspective
what information we are entitled to and in what form, to what
degree. But for the rest of the departments, are we in
agreement that there are outstanding requests that have not
been responded to in a way that this committee deems
appropriate?
I will start with you, Ms. Frifield. That is a yes or no.
Ms. Frifield. We do have outstanding requests with the
committee, but we are working to meet those requests.
Mrs. Watson Coleman. Ms. Fucile is it?
Ms. Fucile. Yes. My answer would be the same.
Mrs. Watson Coleman. And, Mr. Levine, yours is a little
different also. Sometimes I think you are talking about apples
and we are talking about oranges.
Mr. Levine. There ----
Mrs. Watson Coleman. But we need reconciliation in what we
are looking for.
Mr. Levine. There remains one request for which we are
intending to produce some documents, and then we're going to
circle back on what the ----
Mrs. Watson Coleman. Thank you. So I simply wanted to, you
know, echo our desire to be able to work together to have the
information we need to represent the people that sent us here
to represent their interests, and we are just as equally
engaged and yoked in making sure that our Americans are safe
and secure and have the benefit of all the services, and that
seems to me what we are trying to accomplish as the Oversight
Committee.
Thank you, Mr. Chairman.
Chairman Chaffetz. Thank you. I would hope it would be
reasonable that you could tell us which ones you think are
closed and which ones you think are still open because what I
hear from staff is if we make a dozen requests and you say
eight are closed, four are open, we don't know which ones are
still open. And I hope that is reasonable to ask. If you think
you have accomplished number seven, tell us. We are done. You
don't have anything else coming for number seven. Is that fair?
Does anybody want to actually say that and be recorded as
saying yes? Let's go down the line and ask if that is a
reasonable request.
Ms. Frifield. Yes, we can go over and give you the status
of each of your requests. We're very happy to do that.
Chairman Chaffetz. Thank you.
Ms. Johnson. Yes, generally, when we ----
Chairman Chaffetz. Wait. Mr. Kadzik ----
Ms. Johnson. Oh.
Chairman Chaffetz.--you have been around. You are smart.
That is good lawyering, I get it, but we are asking a direct
question here. Is that reasonable?
Mr. Kadzik. Well, I think that we've told the committee --
--
Chairman Chaffetz. No, I am asking you will you tell us on
the outstanding requests and moving forward, when you have
completed a request, will you tell us that?
Mr. Kadzik. I think we have and we will continue to do so.
Chairman Chaffetz. Ms. Johnson?
Ms. Johnson. Thank you, Chairman. Yes, when we produce, we
tell you what we're producing against. So the production last
night ----
Chairman Chaffetz. We just want to know if it is completed.
When it is completed, tell us it is complete.
Ms. Johnson. Yes, and we will say we're producing--these
are the documents responsive to February 18 request number 4.
These were all the documents we found so ----
Chairman Chaffetz. Okay.
Ms. Fucile. Our one--our one outstanding request remains
open, yes.
Chairman Chaffetz. But will you tell us in the future when
you have completed the request, and will you tell us if it is
still outstanding?
Ms. Fucile. Yes. As I just said, it is still outstanding.
Chairman Chaffetz. Okay.
Mr. Levine. Yes, we will. I mean, I think, as we've
discussed with your staff, it's--we can indicate when it's
closed. You can always--might be able to find something else,
as you and Mr. Turner raised earlier, but yes, we believe we
will let you know when things are closed.
Chairman Chaffetz. Because often, these letters come with
two or three or five requests, and we just need to know which
ones are closed within the body letter. Thank you. Appreciate
that.
Mr. Gosar of Arizona is now recognized for 5 minutes.
Mr. Gosar. Thank you, Mr. Chairman.
Assistant AG Kadzik and Assistant Secretary Johnson, in
August of 2014 I wrote to the attorney general and the
Secretary of Homeland Security, the head of your respective
agencies, expressing serious concerns about reported
alterations made to prosecutorial guidelines for operations
streamlined and requesting information about this decision from
your respective agencies.
Nine days earlier, I received a letter from one of my local
county sheriffs expressly significantly finding concerns that
Operation Streamline was being terminated and that the U.S.
Attorney's Office will no longer be prosecuting first-time
undocumented illegal immigrants under the program. In the
letter, Sheriff Wilmot stated, ``This new guidance is of great
concern because it undermines the mission of local law
enforcement agencies throughout Yuma County for 100 percent
prosecution of those entering the United States illegally in
order to curb reentries.'' Sheriff Wilmot also stated in his
letter, ``During an interview of a defendant from a recent
smuggling case, the subject told investigators that since he
had been in jail, they and their other partners are moving to
other areas due to our hard stance on smuggling and the fact
that if you are caught in Yuma, you will go to jail.''
The Federal Government's failure to address our immigration
crisis is forcing cities in my district such as Yuma to step up
to prevent the massive flow of illegal aliens entering the
country. In 2005, a combination of fencing, new infrastructure,
no tolerance zones, and increased manpower drove down the
number of apprehensions in the Yuma region by nearly 95 percent
from 119,000 in 2006 to just over 6,000 in 2013.
Despite this remarkable success, you all defied all logic
and common sense by unilaterally crippling law enforcement and
terminating Operation Streamline, as well as other worthwhile
border enforcement programs. On October 10, the OJ replied to
my letter from August 28 about Operation Streamline being
terminated. While I appreciate the relatively prompt response
within the 2-month time frame, frankly, I am shocked it even
took that long considering it essentially resembled a simple
copy, cut, and paste with such generic and blatantly evasive
language that in no real terms could be considered an actual
response.
Rather than answering my question or providing any
reasoning as to why Operation Streamline had been terminated,
the Department of Justice responded with a weak letter--I will
hold up this letter here--that stated, ``It is the Department's
longstanding practice not to provide specific information
regarding criminal law enforcement policies of the United
States Attorney's Office.'' That is just simply outrageous.
Now, I will humbly tell you I don't think I am really
anybody special. I am just a dentist impersonating a
politician. I don't expect any special treatment from anybody,
but I was elected in accordance to the Constitution of the
United States to serve as representative of the people of the
Fourth Congressional District of Arizona, which carries
important duties and obligations, including government
oversight. Mr. Chairman, before I ask some questions, I would
like to have these three letters entered into the record.
Chairman Chaffetz. Without objection, so ordered.
Mr. Gosar. So with that, Mr. Kadzik and Ms. Johnson, since
you are both here, I will ask you all one more time. Which one
of your agencies made the call to terminate Operation
Streamline and why the secrecy? Mr. Kadzik first.
Mr. Kadzik. Congressman, within the last 2 months, we
conducted a briefing with respect to the status of immigration
enforcement in the Yuma district. I apologize if your staff was
not invited to that briefing, but I would be happy to have that
briefing provided to members of your staff to give you the
current status of immigration enforcement, but ----
Mr. Gosar. I am not specifically asking you that, sir. I
asked you a specific question. Who--is it your agency? Who in
your agency or Ms. Johnson's agency decided to terminate
Operation Streamline, point, simple, one way or another?
Mr. Kadzik. I can't tell you that it's been terminated and
so ----
Mr. Gosar. Well, it absolutely has.
Mr. Kadzik. Well, I would say that, as the letter
indicates, the local United States attorneys implement
prosecution policies.
Mr. Gosar. You know, those come from the DOJ directly. I am
sorry, sir. Those are directives came from--so I am asking you
this question. If you don't know the answer, simply state the
answer, that you don't know. But ----
Mr. Kadzik. I can't say I don't know because I don't
believe that it was terminated. And ----
Mr. Gosar. It has been terminated. Whether--you don't know
the answer. Mr. Johnson, how about you?
Ms. Johnson. Congressman, I have to defer to Department of
Justice. Operation Streamline is not a Department of Homeland
Security operation, and so it--I'm not--I don't have competence
----
Mr. Gosar. Okay.
Ms. Johnson.--to speak to that.
Mr. Gosar. So let's go back to you, Mr. Kadzik. Is the
standard practice of the Department of Justice to disregard
requests for information from individual Members of the United
States Congress?
Mr. Kadzik. No, it is not.
Mr. Gosar. Ms. Johnson, does the Department of Homeland
Security similarly shrug off information requests of individual
Members of Congress who are performing their oversight duties?
Ms. Johnson. No. No, Congressman. We do not shrug off
requests that we receive. As a matter of fact, we try to
produce the documents that are being requested.
Mr. Gosar. Does it make a difference if it is more than
one, maybe 30 or 40 Members writing a letter? Does it get
quicker attention if it has got 30 or 40?
Ms. Johnson. No, Congressman. That's not the way we
prioritize. But we do have to prioritize. When you're subject
to the jurisdiction of 92 committees and subcommittees, you
have to prioritize where you're going to put your efforts at
any given time. So--and--so we prioritize the requests, we task
them out to the appropriate components to search for the
documents.
Mr. Gosar. Well, as a doctor, it seems to me your problem
has been misdiagnosed. If you can't keep up with Congress--and
I understand that Congress isn't your ordinary third-party--if
you can't keep up with the document requests, maybe you should
reevaluate your conduct. Quit reinterpreting, abusing, and
remaking the laws. Follow the law. I yield back.
Chairman Chaffetz. I thank the gentleman. I will now
recognize the gentleman from California, Mr. DeSaulnier, for 5
minutes.
Mr. DeSaulnier. Thank you, Mr. Chairman, and thank the
ranking member. And forgive me for being naive, but given that
I haven't been a Member for that long, it does seem that both
the committee and the Departments--there should be less pull
and tug in gray areas. It strikes me that public documents are
public documents. We all work for the public. The sooner you
have the infrastructure to respond to them, we can get those
documents or be told why we can't I think does us all well,
knowing that there is some political latitude in there that we
have to deal with.
My question is specifically to the AG just because, like
the last Member, I had a specific letter that I sent to the
Department of Justice and the attorney general that I don't
expect you to be aware of, but I would like to just have it on
the record. So it was vis-a-vis the ability to enforce the
Clean Air Act versus potentially or at least go through the due
diligence when it comes to Volkswagen.
So I have read interpretations that said there is a gap in
the law in the Clean Air Act where there is only civil
enforcement. The letter that we sent, miraculously, we got a
response this morning, so I will give that to karma, not the
coincidence of the hearing.
If you could go back and let our office know because what I
was asking is is there a possibility because it seems to me
that is the only motivating factor having spent a long time in
California on enforcement of the California Clean Air Act when
it comes to regulated entities, in this instance, a car
company. Are there only civil procedures that you can pursue
and you are pursuing? My question in the letter would be can
you pursue criminal acts or does that require a statutory fix
in the Clean Air Act?
And given that is a specific request but it also
illustrates just to me the difficulty of responding. So if
there is a technical reason why you don't want to respond, it
would be helpful for me to understand how you can communicate
that to me.
So with that, Mr. Chairman--I give you the opportunity to
respond, Mr. Kadzik.
Mr. Kadzik. Congressman, I would be happy to get back to
you on that. As you know, we did file a civil suit just this
past Monday against Volkswagen. I'm not familiar with what
criminal authorities we may have, but I'd be happy to respond
to your letter on that.
Mr. DeSaulnier. I appreciate that. I yield back.
Mr. Cummings. Would the gentleman yield?
Mr. DeSaulnier. Yes, to the ranking member, I'm happy to
yield.
Mr. Cummings. Thank you very much. Mr. Kadzik, how long
have you been in your position?
Mr. Kadzik. Almost 3 years, Mr. Cummings.
Mr. Cummings. Okay. And what did you do before that?
Mr. Kadzik. I was in private practice of law.
Mr. Cummings. I see. Now, I was trying to figure--I keep
going back to what Mr. Lynch said about why we have what
appears to be an adversarial situation. And it is not a new
thing, as he said. I mean, this goes back for years. And it
does appear to be that. I don't care how you look at this. You
have got to--and maybe some of the other--the only reason I ask
you how long you had been there, I thought you had been there
longer than that. But I am wondering, when you all view this,
do you all see it as adversarial?
Mr. Kadzik. Mr. Cummings, we don't, and in fact, I think
that we've had a good working relationship with this committee
during the past year or more, and we look forward to continuing
to cooperate with you and the chairman to try and get you as
much information as we can, consistent with our law enforcement
responsibilities and our confidentiality interests of the
executive branch.
So I don't view it as adversarial, I don't want it to be
adversarial, and, you know, we--you know, as the chairman
indicated in his opening remarks, I know that you expect and
require cooperation, and we hope to provide it.
Mr. Cummings. Ms. Frifield?
Ms. Frifield. I don't think it should be adversarial. I
worked on Capitol Hill for over 20 years, and so I've seen it
from both sides. And I generally believe it could work best if
we have a collegial relationship where we can sit down and go
over priorities and sequencing. I mean, we have all talked
about the difficulty with resources, and that is our problem.
We have to grapple with that, and we have to come to a
solution. But I think it would be less frustration on your part
if we could just sit down and say these are the priorities, so
rather than talking about all documents or everything saying we
need these--we need all contracts or we need things from this
date. And we start there and then we keep--we can build on that
later if we continually, you know, talk to the staffs.
And I feel like I've had good relationships with your
staffs. They have my direct line and I have theirs. They can
call me at any time. I can call them. I think that's the way it
works best, not having a sort of confrontational kind of
relationship.
Mr. Cummings. And so trying to narrow the information that
is needed as opposed to having just a blanket kind of request
would help, I think?
Ms. Frifield. Yes, sir. Because, for example, one that--the
chairman asked for the notifications on various embassy
construction projects. That was a very clear direction from the
chairman. We were able to respond to that in a few weeks, and
it was done. And then if you--you know, if anyone wants more or
different or discuss it or a briefing, we can go on from there.
But it's just--I feel like that is the constructive way to work
with this committee given, you know, the fact that we are
balancing many, many requests, many more than we frankly can
deal with in a very constructive way.
And we will get better. We are getting better, but I think
it would be less frustration on your part if we could sit down
and go over what's the plan, these are the steps now, and we'll
take the steps in the future.
Mr. Cummings. Thank you.
Chairman Chaffetz. I now recognize the gentlewoman from New
York, Ms. Maloney.
Mrs. Maloney. Thank you, Mr. Chairman.
Chairman Chaffetz. I am sorry. My apologies. We were
actually toggling and--my bad.
I will now recognize the gentlewoman from Wyoming, Mrs.
Lummis, for 5 minutes.
Mrs. Lummis. Thank you, Mr. Chairman.
My questions are for Ms. Fucile. I want to visit with you
about the Waters of the U.S. rule and when you gave your 5-
minute testimony, you called it something new, Clean Water
rule. That was a new moniker that was given to that rule over
the Christmas holiday by the administration in full knowledge
of the fact that that was always called the Waters of the U.S.
rule and the fact that it has always been so thoroughly
rejected by the people of this country caused this rebranding
of the rule under a new name.
Now, one of the reasons that you are here today is because
even though your agency is probably truly exhausted from the
work you had to do on the omnibus--and I get it; you are a
small agency and that was an enormous piece of legislation--but
the administration wouldn't even speak to Congress about the
omnibus until we first agreed to strip from that bill all of
the riders that had to do with policy, including our decision
to not fund the Waters of the U.S. rule. And so the reason that
this is such an important issue today is the position the
administration took on that rule.
Now, this rule is easily one of the top-10 worst rules that
has been adopted during the course of this administration's
term, in fact, so bad that a Federal district court blocked the
rule in 13 States, calling it an ``exceptionally expansive
interpretation of Federal jurisdiction'' that would irreparably
diminish the States' power over their waters. It is so serious
that the Sixth Circuit Court of Appeals expanded the stay to
cover the whole nation.
This rule has the whole nation up in arms, which is why we
want more information about it. Now, on March 3 and May 12 we
asked for information from you about this rule. And as of June
4, no documents were produced. The May 12 letter signed by the
chairman and the gentleman to my right, Mr. Meadows, no
documents were produced. So the committee subpoenaed these
documents. It requested all documents and communications
referring or relating to the rule by July 28, 2015.
Now, a few documents were produced, many of which were just
a printed copy of the rule. October 28, a letter was signed by
the chairman, Mr. Chaffetz, Mr. Meadows to my right, Mr.
Jordan, who was here earlier, and myself, and there has been no
response. That is the reason you are here today.
We are frustrated that when a rule that is this expansive
and this provocative of States' rights is promulgated and the
administration won't even talk to us, to Congress, and the
bipartisan opposition and bicameral opposition to this rule,
and having all those States sue to have it stayed, but we can't
get the information we are requesting about how this rule came
about from the get-go.
So now my question, Ms. Fucile, has OMB searched the
inboxes of all OIRA staff who worked on this rulemaking?
Ms. Fucile. As part of our search process, we are in the
process of going through all of the documents related to the
review of the Clean Waters of the U.S. rule, the Waters of the
U.S. rule, and we are in the process of that. As the request
came in, it was for a 9-year period from June of 2006 to July
of 2014, I believe, and so we are going through that. You
mentioned ----
Mrs. Lummis. How many custodians have you identified?
Ms. Fucile. I don't have that information. I'd have to take
that back.
Mrs. Lummis. And I would like to request how many have you
identified to date? That is a request for information again.
Have you asked all OIRA staff to produce copies of
documents related to the Waters of the U.S. rulemaking?
Ms. Fucile. The search process has gone through identified
custodians. I do not know exactly who those are. That's just--
I--that's just not part of what I do. I can find that out.
Mrs. Lummis. And so I am requesting that, too, because we
want to know whether the OIRA staff has documents related to
the WOTUS rulemaking. We want to know if they have produced all
potentially responsive documents for review.
Ms. Fucile. As I said before, we are--this is an
outstanding requests. We are continuing. We certainly have not
produced all documents, and we are committed to continuing ----
Mrs. Lummis. Well, pursuant to those four early requests, I
renew those requests, Mr. Chairman, and yield back.
Chairman Chaffetz. Are you committed to providing all of
those documents?
Ms. Fucile. We are committed to providing the committee the
information that it needs. We are ----
Chairman Chaffetz. Well, we determine what we need, so the
question is, are you going to provide all the documents?
Ms. Fucile. We're--we certainly ----
Chairman Chaffetz. Why isn't that a simple yes. You can't
say yes to that?
Ms. Fucile. We're committed to getting the committee the
information it requested. We certainly are committed to going
through all of those documents. There is a process that is a
longstanding practice between this administration, other
administrations to make sure that the documents are relevant,
to make sure that the documents adhere to privacy concerns. All
the information we've given you so far has been complete
without redactions. We're committed to continuing this process.
Chairman Chaffetz. I want to know if you're committed to
giving us all the documents, yes or no?
Ms. Fucile. We are committed to getting you the information
that you need and producing documents and continuing to produce
documents and to working with you on that.
Chairman Chaffetz. Why can't you just say yes or no? Are
you going to give us all the documents we asked for, yes or no?
Ms. Fucile. Part of the problem is I personally don't know
what the universe of all the documents is. I--we are committed
to getting you the documents.
Chairman Chaffetz. When?
Ms. Fucile. We are--have increased our production and
response rate. I expect that will continue ----
Chairman Chaffetz. Well, you had enough information that
you actually produced a rule, so why can't you provide those
underlying documents to Congress?
Ms. Fucile. The--as the Congresswoman pointed out, this
rule is under litigation. That increases the amount of work
that needs to go done--be done in terms of producing documents.
We are committed. We--I expect that we will be able to continue
to produce documents, that we will be able to produce documents
this month--or next month by--in short order, you know, and
we're committed to work with your staff on that.
Chairman Chaffetz. When is it reasonable to give us the--
what date? I am looking for a date.
Ms. Fucile. I can't give you a date certain because the
breadth of the subpoena is so broad, but I can commit that
within the next month we will produce more documents.
Chairman Chaffetz. Wow. This is what we are up against.
All right. I will now recognize the gentlewoman from New
York, Ms. Maloney, for 5 minutes.
Mrs. Maloney. I would like to thank the chairman and the
ranking member and all of the panelists today. And I believe we
can all agree in a bipartisan way that Congress has the right
and it is essential that Congress have access to all of the
information that it needs to conduct its business and to
provide proper oversight. I think we can all agree to that.
But today's hearing seems to be focused on production
delays by a few agencies for a handful of documents, although
these same agencies have produced large numbers of information
to this committee. So I would like to suggest that rather than
suggesting that executive agencies generally do not comply with
congressional oversight request, the facts, the facts show the
exact opposite.
And Assistant Secretary Frifield, in your testimony, you
said that in 2015 the State Department provided more than 2,500
briefings and responded to more than 1,700 letters and appeared
at 168 hearings. That is a staggering amount of response. It is
almost amazing. Are these numbers correct?
Ms. Frifield. Yes, Congresswoman, they are correct.
Mrs. Maloney. Okay. And you also said that the State
Department is responding to dozens of investigations, again, by
a staggering nine different committees. Now, is that correct?
Ms. Frifield. Yes, it is.
Mrs. Maloney. And then you said that this is twice as many
as it was in 2014, and is that correct?
Ms. Frifield. Yes.
Mrs. Maloney. So according to our records, our committee
held about 90 hearings last year, and of those, witnesses from
the executive agencies were testifying and playing a crucial
role in 65 of them.
So my question to you is do you have time to do anything
else after responding to all of these congressional responses
and requests and investigations and hearings and letters? It is
a staggering amount of work.
Ms. Frifield. It is, and I thank you for acknowledging
that. We--I mean, we take a lot of pride in what we do, and we
feel it's very important. And as Congressman Cummings says, we
are in many ways the advocate for you on the Hill. We work with
our agencies to make sure that people on the Hill get what they
need. Most of us come from a Hill background. We know what you
need. We understand the pressures and the demands that are
under for Members of Congress, and our job is to make sure they
get what they need.
And certainly, with the State Department with the crises
around the world, we know that Congress is intimately involved
in many, many aspects of those, and our job is to make sure
that you have the information you need to make decisions, very
important decisions on everything going on in the ----
Mrs. Maloney. So in your job do you do anything else but
respond to congressional requests?
Ms. Frifield. That is most of my job.
Mrs. Maloney. That is most of--you would say, is that 90
percent of your job or 80 or 20 or 30?
Ms. Frifield. It is my--it is my entire job pretty much.
Mrs. Maloney. It is your entire job?
Ms. Frifield. Yes.
Mrs. Maloney. It is 100 percent of your job ----
Ms. Frifield. Yes.
Mrs. Maloney.--is to respond to congressional requests?
Okay. All right.
And in fact more than 45 witnesses who testified before the
committee last year came from the five departments that are
represented here today. And, Ms. Frifield, were you aware of
that, that that is happening, that you are here all the time? I
guess you do.
Now, Assistant Attorney General Kadzik, this committee
received more than 200 letter responses from executive agencies
in 2015. For example, in 2015 the committee sent about 16
letters to the Department of Justice and received 28 responses.
Does that sound about right to you?
Mr. Kadzik. Yes, it does, Congresswoman.
Mrs. Maloney. Again, it is a staggering amount of work.
And, Assistant Secretary Johnson, the Department of
Homeland Security and its component agencies provided
information on topics ranging from immigration and visas to
border and transportation security. And during our
investigation of the Secret Service, we received 17 briefings,
eight transcribed interviews, Director Clancy's testimony
twice, and more than 15,000 pages of documents and four in
camera interviews. Does that sound about right?
Ms. Johnson. Yes, Congresswoman.
Mrs. Maloney. Yes. And, Assistant Director Fucile, my
understanding is that the Office of Management and Budget, on
behalf of OIRA, has produced more than 9,000 pages of documents
in response to the committee--in response to this particular--
more than this committee but in response to committees'
requests and has repeatedly asked this committee for further
guidance. Does that sound about right to you?
Ms. Fucile. That sounds about right.
Mrs. Maloney. Okay. And OMB is continuing to produce
responsive documents. Is that correct?
Ms. Fucile. Correct.
Mrs. Maloney. So today's hearing also highlights four
requests the committee has made to the Office of Personnel
Management and, Director Levine, OPM has produced responsive
documents to each of these requests and is continuing to do
that. Is that correct, too?
Mr. Levine. To the extent there are outstanding requests,
yes, that's correct. Thank you.
Mrs. Maloney. Well, I want to congratulate you on
responding to a staggering amount of requests. And I know it is
difficult to get it done as quickly and as responsively as you
have, so I want to thank you for your public service.
I yield back.
Chairman Chaffetz. Thank you.
I will now recognize the gentleman from North Carolina, Mr.
Meadows, for 5 minutes.
Mr. Meadows. Thank you, Mr. Chairman. I want to follow up
on what you had been talking about and actually Mrs. Lummis as
well. Ms. Fucile, your characterization with my good friend Mr.
Connolly troubles me because you have indicated that because of
the wide breadth of the request that has caused you to not be
able to fulfill what initially started out as a very simple
request. And so what you are indicating today is that you have
gotten no guidance from this committee on any priorities. Is
that your testimony?
Ms. Fucile. No, that's not what I--I stated I didn't say we
didn't have any guidance. I--I ----
Mr. Meadows. Well, you said it was so wide from 2009 on.
Ms. Fucile. It is a very wide ----
Mr. Meadows. All right. So you have gotten ----
Ms. Fucile.--request.
Mr. Meadows.--guidance. Would you say that you have ----
Ms. Fucile. And I would say that in one instance when we
got guidance, we were able to respond very successfully. You
asked us for some ----
Mr. Meadows. Well ----
Ms. Fucile.--information about the administrator's personal
email. We responded with that information.
Mr. Meadows. Well, let me ----
Ms. Fucile. And that kind of ----
Mr. Meadows. Let me go ----
Ms. Fucile.--give-and-take ----
Mr. Meadows. Okay. But let me ----
Ms. Fucile.--is very helpful.
Mr. Meadows. Let me go. I have got 5 minutes. Because I
wasn't going to bring us up, but this is the entire response
that we have gotten from OMB with regards to two letters and a
subpoena. Now, the problem that I have with it is all of this
is either the proposed rule or what could be found online. And
in 10 months this is all that we have gotten from you. And I
went through and most of this is it duplicates. Is this the
best you can do?
Ms. Fucile. To your question about duplicates, a lot of the
communication between senior OIRA officials has to do with
comments on iterations of the rule. As such ----
Mr. Meadows. But this is an email chain ----
Ms. Fucile.--all of those communications ----
Mr. Meadows. This is an email chain ----
Ms. Fucile.--we include the iterations of the rule.
Mr. Meadows. No, this is an email chain--I will let you
review it. Let me just tell you what offends me is that we send
you a simple request, and then what you give us is things that
we can get our own staff to look up. And so here is my question
to you, as a follow up on what the chairman said, what have
you, through your process, decided not to give this committee?
Ms. Fucile. We have decided not--we have not decided not to
give this committee anything ----
Mr. Meadows. So in 10 months ----
Ms. Fucile.--we have looked at ----
Mr. Meadows.--you have decided to give us everything that
you have looked at? Is that your testimony?
Ms. Fucile. The documents that we have reviewed we have
turned over. The other ones remain in process. We are
continuing--I said earlier that we're going to provide more
documents this coming month ----
Mr. Meadows. All right. So what reason would there be ----
Ms. Fucile. We have not redacted anything ----
Mr. Meadows. I am asking--wait, that is not true. You have
redacted a lot.
Ms. Fucile. Phone numbers and emails is what has ----
Mr. Meadows. Well ----
Ms. Fucile.--been redacted ----
Mr. Meadows. Okay. Okay.
Ms. Fucile.--only.
Mr. Meadows. I have read all of the emails, and so what I
am suggesting to you at this particular point is what theory
would you invoke to not give this committee the documents that
regarded this rulemaking?
Ms. Fucile. We have not said that we're not giving you
documents. I specifically said ----
Mr. Meadows. So you are going to give us all the documents?
Ms. Fucile.--we said that. We have given every document
that ----
Mr. Meadows. So you are going to give us all the documents?
Ms. Fucile. We are continuing to move forward on that
production, and we're--we ----
Mr. Meadows. It is a simple question.
Ms. Fucile.--we have provided the documents ----
Mr. Meadows. Are you going to give us ----
Ms. Fucile.--we're going to continue to provide documents.
Mr. Meadows. Are you going to give us all the documents?
Ms. Fucile. And the more direction we have in terms of what
is most helpful, the more responsive our responses will be.
Mr. Meadows. Are going to give us all the documents?
Ms. Fucile. We're going to continue to provide the
committee with the information they request.
Mr. Meadows. So the answer is no? There are two questions
here. Either you are going to give us all the documents, or I
ask--the other side of that is what would be the rationale to
not give this committee documents? Is it a national security
threat on the WOTUS rule? Yes or no?
Ms. Fucile. I don't want to speak to documents I haven't
seen that I don't know about.
Mr. Meadows. Okay. Let me suggest ----
Ms. Fucile. There are ----
Mr. Meadows.--that there is no reason not to give this
committee all the documents. There is no reason. And unless you
can testify that ----
Ms. Fucile. Because we're under litigation for this rule,
there are lots of equities to be concerned about. There's
also--we need to make sure that there's nothing that's in
documents that doesn't ----
Mr. Meadows. Okay. Can we count on ----
Ms. Fucile.--affect other agencies' ----
Mr. Meadows. Can we count on ----
Ms. Fucile.--equities ----
Mr. Meadows.--all responsive documents? Every 3 weeks can
we get responsive documents on a regular basis? You have got
four custodians. Two haven't given us anything. And so can we
count on that on a 3-week basis, every 3 weeks getting
something from you? Is that reasonable?
Ms. Fucile. I don't feel comfortable saying every 3 weeks.
Mr. Meadows. Well, you don't feel comfortable. Let me just
tell you, I am tenacious. I am not going to give up on this,
and so you just need to tell your staff I am not going to give
up on it.
Ms. Johnson, I am going to finish with you. You said simple
requests are things that you can get done very quickly. We
talked about visa overstays. There is an internal document that
DHS has that has a number of visa overstay potentials, that
that document could be produced within 24 hours. Are you
willing to produce that document to this committee?
Ms. Johnson. Congressman, the Senate--the Secretary is
keenly aware of this committee's and other committees' desire
for the visa overstay report, and I know that he has put
specific attention to getting a report completed.
Mr. Meadows. I don't want a report. I want those documents.
They are just, you know, a few pages. So can you produce those
documents, give to this committee in short order within a week,
or is there a national security concern that you would have to
be concerned about?
Ms. Johnson. Congressman, I don't--I honestly don't know
what documents they are. I don't think we have an outstanding
request ----
Mr. Meadows. But we have had sworn testimony where ----
Ms. Johnson.--for that ----
Mr. Meadows.--both people have acknowledged that there are
internal documents that has a number of visa overstays on it.
It is an internal DHS document that you could produce within a
week. Are you willing to produce that?
Ms. Johnson. Congressman, I'm not prepared to say that. If
we have a request for that document, what I know is outstanding
is ----
Mr. Meadows. Well, you do have ----
Ms. Johnson.--the visa ----
Mr. Meadows.--you already have a request.
Ms. Johnson.--overstay report.
Mr. Meadows. Well, you ----
Ms. Johnson. And the visa overstay report is--we admit is
overdue ----
Mr. Meadows. Okay. Okay.
Ms. Johnson.--and the Secretary is committed to getting
that out.
Mr. Meadows. All right. With the chairman's indulgence, I
am going to make that official request that I would like within
7 days those internal documents, which should be only a few
pages, submitted to this committee with the number of overstays
unless--are you saying there is a national security concern?
Ms. Johnson. Congressman, I'm not sure--I've never seen the
document, so I don't know what ----
Mr. Meadows. I yield back.
Ms. Johnson.--concerns there may be.
Chairman Chaffetz. Before the gentleman yields back, if you
will be okay to yield to Mr. Cummings.
Mr. Cummings. Ms. Fucile, I have been sitting here watching
you try to answer these questions, and you can't--it seems as
if there is something blocking you from being able to give a
definitive answer. And I am just trying to figure out, are you
the appropriate person that we should be asking? It seems like
there is something--I don't know whether you feel like you have
got to report to a higher authority, whether there are hoops
that you have to go through, but in fairness to the committee--
and I am always about effectiveness and efficiency. I mean, is
there somebody else we need to be asking those questions to? Do
you follow me?
Ms. Fucile. I understand your question. My ----
Mr. Cummings. Because you have struggled ----
Ms. Fucile. My hesitancy is more about making a commitment
to something in the abstract while I am under oath that I just
don't know about, and that makes me really nervous. And that's
my hesitancy.
I'm here today to work with you. We're not trying to
withhold anything. We haven't withheld anything. Our production
hasn't been fast enough and it can and it should be better. But
I'm not saying we're not going to produce all the documents
because I'm purposely trying to hide something. I just don't
want to get myself in trouble by promising something about--and
then later on there's some issue that I at this moment know
nothing about, and I just don't want to do that.
Mr. Cummings. Well, you know what, that makes sense. That
makes a lot of sense because I can tell you that if you make a
commitment and then you don't keep the commitment, you will
catch out. So, I mean, that makes sense. But I was just ----
Ms. Fucile. Thank you.
Mr. Cummings.--wondering.
Chairman Chaffetz. Before the gentleman yields back, the
concern here is Mr. Meadows first made his request in March of
last year. And the reason you are here is we still don't have
this information. That is why you have Mrs. Lummis, Mr.
Meadows, this whole committee frustrated. Do you understand
that?
Ms. Fucile. I certainly understand that. I appreciate that.
I admit completely that our production has not been fast
enough, and we will continue--we will do better.
Chairman Chaffetz. Just turn on the photocopier.
Ms. Fucile. It--we can't--it doesn't work that way. The
search process doesn't work that way. It ----
Chairman Chaffetz. You have these materials enough so to
make a rule but you don't have the--somebody comes to the
conclusion, they have looked at all the information, now they
are going to make a rule. We want to see that information. I
have got to ask ----
Ms. Fucile. And I have committed that we will work to get
you that. I am here to help. I want to be helpful.
Chairman Chaffetz. What about results? You are a very nice
person. I am just--we are not seeing the results of it.
Now, I have got to ask you one other thing in follow-up
with Mr. Meadows. You have cited a couple of times that there
are different stakeholders, and that is causing some delay. You
have mentioned litigation, ongoing litigation. What in the
world does that have to do with Congress's right to review
documents?
Ms. Fucile. With any document research, different
equities--different equities are given the opportunity to
review to make sure that there isn't sensitive matter that we
are not aware of that is sensitive before it's turned over.
That's our standard practice.
Chairman Chaffetz. So what is it that you believe Congress
shouldn't look at?
Ms. Fucile. We haven't said that anything shouldn't be
turned over.
Chairman Chaffetz. I can't think of anything ----
Ms. Fucile. We haven't ----
Chairman Chaffetz.--that OMB is ----
Ms. Fucile. We haven't said no to turning anything over.
Chairman Chaffetz. Then why not give us everything?
Ms. Fucile. We're working on that. It's an incredibly broad
subpoena, 9 years.
Chairman Chaffetz. And you give us handfuls of documents,
and you--just photocopy ----
Ms. Fucile. But the time that ----
Chairman Chaffetz.--and give it to us.
Ms. Fucile.--we were most successful in providing documents
to you was when we had a conversation with your staff about
what you wanted, and you asked for emails from the
administrator. We've been asking for meetings with your staff,
and until yesterday, they weren't available to meet with us.
Chairman Chaffetz. Okay, that is not true. That is ----
Ms. Fucile. It is true.
Chairman Chaffetz.--absolutely not true.
Ms. Fucile. It is true.
Chairman Chaffetz. You are infuriating. As nice and sweet
as you want to portray yourself, this is infuriating. This
request came in March, and here we are, turning the new year. I
am going to ask you one more time and then we will go to Mr.
Cartwright--I appreciate the committee's indulgence--articulate
for me what you believe Congress should not see.
Ms. Fucile. We have not said that you can't see anything.
There has been no document that we haven't given you that we've
looked at.
Chairman Chaffetz. There is no--well, then why not give it
to us? You haven't given--have you given us all the documents
since March's request?
Ms. Fucile. I have said that the--I have said that the
document request is still outstanding. I have said that I will
work with you to get them more and to get faster. I cannot do
more than that.
Chairman Chaffetz. Yes, you can. You actually can and you
are not.
We are now going to recognize Mr. Cartwright from
Pennsylvania for a generous 5 minutes.
Mr. Cartwright. Thank you, Mr. Chairman.
Mr. Levine, I have some questions for you. You are the
director of the Office of Congressional Legislative and
Intergovernmental Affairs of OPM, is that correct?
Mr. Levine. Yes, sir, Mr. Congressman.
Mr. Cartwright. Well, thank you for being here today. And
for the record, I think you are nice and sweet, too.
Mr. Levine. I appreciate that. So does my family.
Mr. Cartwright. I am particularly interested in OPM because
we had this data breach, and we had a couple of significant
breaches that impacted really millions and millions of current
and former Federal employees. This committee has been
investigating the cause of those breaches on a bipartisan basis
with the goal of ensuring really that OPM has the necessary
tools to prevent this kind of thing from happening again.
As part of the investigation, this committee sent four
requests for documents and information. Now, as of today, I
understand that OPM has produced documents responsive to each
of the committee's four letter requests. Am I correct on that?
Mr. Levine. Yes, sir.
Mr. Cartwright. And as part of your job, is that what you
spend a majority of your time doing as well?
Mr. Levine. Yes. I would say the overwhelming majority of
the time that I've spent at OPM has been in the area of
responding to the cyber incidents both with respect to the
congressional requests that you're referring to from this
committee and others, as well as providing information to
Members, particularly in the caseworkers in the constituent
office--in the district offices to have information about the
services that we've provided to respond to the breaches, so --
--
Mr. Cartwright. All right. So one of ----
Mr. Levine.--both areas.
Mr. Cartwright. One of the things that we did was, in
addition to asking OPM directly for documents, we have also
asked contractors of OPM, including KeyPoint, for documents.
You are aware that, are you?
Mr. Levine. Yes.
Mr. Cartwright. Well, we had the KeyPoint CEO in here for a
hearing not too long ago, a gentleman who pretty much admitted
that KeyPoint was responsible, a KeyPoint employee was
responsible for one of the data breaches. And we were
questioning him about why it was taking them 5 months to
respond to our document request. Just to make it clear, is that
part of your document request response to produce KeyPoint
documents, or is that theirs separately?
Mr. Levine. I don't believe it is, but to the extent it is,
I'll circle back. But I don't believe it is.
Mr. Cartwright. Okay.
Mr. Levine. But I don't think so.
Mr. Cartwright. No, I didn't think so either. So I guess
that begs the question then, are you aware of why either the
CEO of KeyPoint or anybody from KeyPoint has not been called to
testify before this committee today, having taken in excess of
5 months to respond to the ranking member's letter asking for
documents? Are you aware why we didn't get a request from this
committee to the KeyPoint management to explain themselves?
Mr. Levine. I am not aware of why that has not happened.
Mr. Cartwright. I am not either, and I am concerned about
that. We haul before this committee the people who have
responded to the document requests, and my understanding that
KeyPoint has still not responded 100 percent to all the
document requests. Are you aware of any reason why KeyPoint
should not have responded 100 percent to our document requests?
Mr. Levine. I am not aware of any reason.
Mr. Cartwright. All right. Well, what about OPM for its
part? How many documents has OPM produced to this committee?
Mr. Levine. To this committee I want to say in the
thousands, probably in the--probably over 5,000. I think what
we've tried to do, to the chairman's earlier request, is focus
on the ones that were the most--that were responsive as--to
provide that information as opposed to just documents.
Mr. Cartwright. Well, Director Levine, has OPM ever taken
the position at any point that it will no longer respond to
this committee's requests?
Mr. Levine. Absolutely not.
Mr. Cartwright. And throughout the course of identifying,
gathering, and producing documents, can you tell us what
challenges OPM has faced that would account for any delays in
producing documents to the committee?
Mr. Levine. Yes, absolutely. I think it's fair to say that
OPM is a small agency that in the past had not been challenged
with this level of a document production and simply did not
have the infrastructure in place, whether it be staffing level,
on expertise level, on a technical document management level to
quickly, efficiently, accurately produce documents in this way.
And in addition, the--you know, the overriding priority of
the agency since the breaches, particularly Acting Director
Cobert and my office has been on being responsive to Congress,
again, both with respect to the document requests, as well as
information about the other services.
So, I mean, I think it's been a combination, the delays,
and there have been delays, and we would like to get things out
as quickly as we can, and we're working to do that and I think
we've been moderately successful. But the delays, I think, go
to just the breadth--or the volume and the lack of preparedness
for that volume once it hit.
Mr. Cartwright. Well, I thank you for your testimony today.
I thank you for your efforts in complying with these requests.
And thank you for working with us to make sure these kinds of
data breaches don't happen again.
And I yield back, Mr. Chairman.
Chairman Chaffetz. I thank the gentleman.
I will now recognize the gentleman from North Carolina, Mr.
Walker, for 5 minutes.
Mr. Walker. Thank you, Mr. Chairman.
Mr. Kadzik, on December 21 the Department of Justice sent a
letter to State and local law enforcement with absolutely no
warning in deferring the payment sharing of the Asset
Forfeiture Program. In fact, Mr. Chairman, I would like to
submit this letter into record.
Chairman Chaffetz. All right. Without objection, so
ordered.
Mr. Walker. Thank you, Mr. Chairman.
This program may need reform, yet our local county sheriffs
and other law enforcement depend on these seized funds. To pull
the rug out from under these local law enforcements with
absolutely no warning or no consideration, I believe, is
preposterous. In fact, let me read from the letter. It says,
``Effective immediately, the Department will defer all
equitable sharing payments to our State, local, and tribal
partners and transfer any items for official use.'' Why would
the Department of Justice, with no warning, on December 21 say
this program is either stalled, concluded, in fact, it doesn't
really say to what degree? Can you explain this?
Mr. Kadzik. I'm not intimately familiar with that program,
Congressman, but my understanding is that the funds that were
part of that program were reallocated by Congress and the
budget, so there was no money there to distribute.
Mr. Walker. According to this, this says this is a decision
by the Department of Justice. I want to come back to that. But
I want to also, speaking of sheriffs, talk about what happened
on November 17, 2015. Following Attorney General Loretta
Lynch's appearance in the House Judiciary Committee, Mr.
Chaffetz submitted a number of questions for the record to the
Department. These questions concerned reports from multiple
sheriffs of North Carolina, predominately, a sheriff in our
district, from Alamance County, concerning how the Department
of Justice has terminated or refused to renew grants to local
police departments based on allegations of racial
discrimination. These questions seek to learn how often and
under what circumstances these grants denials have been made.
Did you receive these questions for the record?
Mr. Kadzik. I believe we did.
Mr. Walker. And what has been the submitted response?
Mr. Kadzik. My understanding is that those responses are
being prepared now and will be submitted promptly.
Mr. Walker. And when you say submitted promptly, what is
the time frame that you believe that ----
Mr. Kadzik. I can't ----
Mr. Walker.--would conclude?
Mr. Kadzik. I can't give you a specific time frame, but I'd
be happy to go back and check on the status and respond to you.
Mr. Walker. Who receives these responses? Who vets them?
Mr. Kadzik. Who vets them?
Mr. Walker. Yes.
Mr. Kadzik. The various components within the Department
that have responsibility for the areas that are the subject of
the questions.
Mr. Walker. Okay. I want to sort of cut through the
vagueness there or the ambiguity and ask this: Assuming we
would like to follow up on the answers that you are saying
promptly that you will provide for us, is there a mechanism in
place for us to submit such follow-up questions? And can you
share with me what and how that works?
Mr. Kadzik. You can send correspondence to the attorney
general or to me.
Mr. Walker. Okay. Do you think Congress should submit more
QFRs? Would that provide a helpful mechanism for the Department
to answer our questions?
Mr. Kadzik. Well, no. If we had outstanding QFRs, we'll
respond to the ones that are there.
Mr. Walker. Let me ask ----
Mr. Kadzik. Asking the same question again doesn't make it
any easier to respond to it.
Mr. Walker. Well, then let me ask a general question then.
In your opinion do you consider it part of your mission to be
helpful to Members of Congress in providing these responses?
Mr. Kadzik. Absolutely.
Mr. Walker. Okay. So I want to conclude with this question.
When you say prompt, can you give me a timeline? Is there a
time frame, 2 weeks, 4 weeks, 2 months? I would like to know--
listen, this sheriff--this has been ongoing for 7 years. And
even recently, okay, the Department of Justice--the court came
together, they made a decision, no wrongdoing here, he thought
he was getting his grant. The Friday before that he was
supposed to get the grant, the Department of Justice appealed
this decision. So please tell me when you say promptly, what
does that look like for us?
Mr. Kadzik. Well, I'm not--I don't recall the volume of
QFRs that we received. I'll go back and look at those and I'll
try and provide you with a timeline as to when we can respond.
Mr. Walker. You would try to provide me with a timeline on
when you could respond. That is what frustrates us, the
ambiguity, maybe here, possibility--can we set maybe end of
January, 1st of February? Is there a specific timeline that
you--according to me that is prompt? You said the word prompt.
What is a prompt response that I can let this sheriff, who has
gone through 7 years of hell trying to get past this and get
his grants where he can make not offensive weapons but
defensive weapons for his deputies, for his officers that he
can protect the community of Alamance County? What is a prompt
response for that?
Mr. Kadzik. Well, not being familiar with the particular
question that was asked or the circumstances of why the grant
was denied or terminated, I can't tell you precisely what
prompt would be. As I said, I'll be happy to go back to inquire
as to the status of it and then give you a timeline.
Mr. Walker. So maybe it was best not to use the word
prompt, just maybe you would get an answer back to me at some
point.
Mr. Kadzik. Well, I ----
Mr. Walker. Thank you, Mr. Chairman. I yield back.
Chairman Chaffetz. I now recognize the ranking member, Mr.
Cummings, for 5 minutes.
Mr. Cummings. Mr. Kadzik, I would hope that you would make
it a priority with regard to Mr. Walker's request.
You know, one of the things that happens in Congress,
sadly, is that in order for us to get answers, we have to wait
until people like you all get before us, and it shouldn't be
that way. We should be able to get the answers. And all we are
trying to do is represent our constituents.
And all of us have been in a position of Mr. Walker, and it
is very frustrating. When he goes back to his district, he has
got people that say, well, you know, I just saw you on C-SPAN
and you had the folks before you. Well, what did they tell you?
And did they say when we are going to get an answer? I
guarantee you, by the time he gets back to his office, he is
going to have somebody calling. That sheriff is going to call,
and somebody is going to say thank you--first, they are going
to say thank you for raising it, but then they are going to
say, well, did you have a conversation afterwards, and when is
he going to get us the answer? So I would ask you to make that
a priority, okay, to look into it.
Mr. Kadzik. We will, sir.
Mr. Cummings. Thank you.
Assistant Secretary Frifield, the State Department faces
huge challenges with its document management systems, and you
have heard my complaints. And that has been decades old and
affected previous administrations. Would you agree?
Ms. Frifield. Yes, sir.
Mr. Cummings. And we appreciate very much the State
Department has produced more than 160,000 pages of documents to
this committee last year. However, there is no denying that
some responses have taken longer than we or you would like. You
have your own significant professional experience on Capitol
Hill, is that right?
Ms. Frifield. Yes, sir.
Mr. Cummings. So you are familiar with the information
demands that the Congress has, is that right?
Ms. Frifield. Yes.
Mr. Cummings. I think you worked with Senator Mikulski?
Ms. Frifield. Yes.
Mr. Cummings. You can get no better boss, that is for sure.
Her standards are extremely high, would you agree?
Ms. Frifield. Absolutely.
Mr. Cummings. Do you agree that the State Department's
internal document management systems are not ideal?
Ms. Frifield. Yes, we do.
Mr. Cummings. And in your position as the head of the
legislative affairs at the State Department, do you have the
ability to talk to Secretary Kerry about the challenges that
you face?
Ms. Frifield. Yes.
Mr. Cummings. And have you ever done that?
Ms. Frifield. Yes, sir.
Mr. Cummings. Have you ever proposed changes to the current
systems, and if so, what was that response?
Ms. Frifield. Yes, we've created a whole new system for
responding to congressional requests that is separate from the
FOIA system. We've gotten full support from the State
Department, from the Secretary to do that. It's only recently
up and running so we are still working out some of the kinks,
but I'm hoping that this will transform the way we are able to
respond to Congress and enable us to do it in a quicker way and
also in a more convenient way so it's computerized and easily
searchable and just more of this century than the way we used
to do it.
Mr. Cummings. Now, did you propose creating a Congressional
Document Production branch?
Ms. Frifield. Yes, sir.
Mr. Cummings. And can you tell us more about why you wanted
this new unit and what your vision is?
Ms. Frifield. It enables us to computerize and make a more
technologically savvy system of collecting documents. We used
to have to compete for resources with the FOIA producers.
They--we had the same office, the same people doing it. Now, we
have a separate entity which is able to help us process just
documents for Congress.
Mr. Cummings. So how does that help you produce documents?
Ms. Frifield. It helps us because it's the--it's a sort of
first major step in the process of collecting documents is to
actually physically collect them, collate them, number them,
and get them ready for review. So that makes the whole early
part of the process much easier. It's not the entire process.
But if I could also say, sir, that the Secretary,
recognizing larger issues we have with some of our information
management, he asked the OIG to do reports on how we actually
do our FOIA system, our records managements, and other things
of that nature. He also appointed a transparency coordinator, a
former ambassador, who's actually helping us implement the
changes across the board. So we're hoping that we're able to
implement changes that make it better in our FOIA system,
better in our congressional production system.
Mr. Cummings. Now, you stated in your testimony that you
have made document productions to this committee and others
more accessible and user-friendly. Can you briefly explain the
technology and the process changes you've made?
Ms. Frifield. For--yes, sir. For many years we would
provide them on paper in boxes that were unnumbered, so staff
and Members had to dig through to find what they're looking
for. Now, they're on disk. They have Bates stamps. It's a much
more professional way of providing documents.
Mr. Cummings. Would you agree there is still a lot more
work to be done?
Ms. Frifield. Absolutely.
Mr. Cummings. You know, I just think that if--you know, I
just want to be effective and efficient, you know? I tell my
staff there are two words that control everything we do:
effective and efficient. We have a limited amount of time to do
the jobs that we have to do. I just want to get them done. And
I would say that to all of you all. I mean if there are
deficiencies in your operation, please try to address them, and
if there are things that we can do--by the way, are there
things that we can do? This is my last question, Mr. Chairman.
Are there things that you would like to see us do other than
the things I have already talked about, being kind of--and you
talked, Ms. Frifield, about limiting scope. Are there things
that we can do to help you do your job so that we can do our
job? Anybody? Speak now or forever hold your peace, Mr. Levine.
Mr. Levine. Well, thank you for the question, Mr. Cummings.
I think, as you've specifically noted, the ability to work with
your staff and the chairman's staff and the committee's staff
on prioritizing the information that could be most helpful for
you and them and--is the most helpful step that you can provide
us as we work through the requests. And we appreciate when they
have done that, and I hope we can continue that dialogue.
Mr. Cummings. Anybody else? Ms. Johnson?
Ms. Johnson. Yes, Congressman Cummings. It's the exact same
thing. The most successful thing we did with the Secret Service
request was coming back to the committee, asking you to
prioritize the 18 categories. You identified four. We
immediately started to search and to produce on those four. And
so, yes, the constant dialogue between our offices and your
staffs is extremely important. A collaborative spirit is
important. And whatever we can do to try to narrow and focus
the request allows us to do the searches, to do the reviews,
and to produce documents much faster.
Ms. Fucile. I would echo the comments of my colleagues that
the narrowing and the limiting and the prioritizing really do
help us in our productions.
Mr. Cummings. All right.
Mr. Kadzik. As I said in my opening statement, Mr.
Cummings, and in response to your previous question, I believe
that we've had a cooperative and not an adversarial
relationship with the committee. We look forward to continuing
that dialogue with both you and the chairman and staff. And
that will make us more effective and more efficient.
Mr. Cummings. Thank you.
Chairman Chaffetz. Thank you. I now recognize the gentleman
from Alabama, Mr. Palmer, for 5 minutes.
Mr. Palmer. Thank you, Mr. Chairman.
Mr. Levine, on June 19 of last year, Senator Mark Warner's
office--it may have been 2013; I think it was 2013--no, 2014--
his office sent a letter to OPM questioning the nature of the
agency's credit monitoring contract with Winvale/CSID. It
appears from our records that his office received a reply 4
days later on June 23. However, when this committee sent a
letter requesting information on the contract, the committee
didn't receive a response until a month later, which,
incidentally, was 17 days overdue.
Now, what I want to know is what accounted for the extended
time it took to respond to this committee versus the quick
turnaround for Senator Warner's office? I mean do we need to
ask a Senator to send a request for documents so that we can
get a timely response for documents?
Mr. Levine. Thank you for the question, Congressman. I
would note that was prior to my arrival at OPM, but I'm aware
of what you're inquiring about. So with respect to Senator
Warner's letter, if I'm understanding correctly, two major
differences. One, it was not a request for documents. I think
it was a request for information, and we went and did brief
out--we ----
Mr. Palmer. So we are parsing words?
Mr. Levine. No, absolutely not. The--what--the large
distinction being Mr.--Senator Warner asked for some
information, we provided information to his staff in an oral
fashion, similar to as we've done with committee staff here.
Mr. Palmer. Well, let me ask you this. Do you prioritize
certain requests? Do you give a higher priority to requests
from certain individuals, elected officials or agencies than
you do others? And let me just tell you, I have sat here now an
hour and a half, two hours listening to this, Mr. Meadows from
North Carolina in his discussion about the lack of response
from the Office of Management and Budget, and, you know, I have
to question whether or not you guys respect the constitutional
authority that is invested in this committee.
I mean, our responsibility is oversight. We owe that to the
American people. And I have heard example after example today
of how your agencies continue to impede this committee's
ability to carry out our oversight responsibilities.
You know, and there is a pattern here, Mr. Chairman. Before
I was a Member of Congress, before I was in this committee,
there was a letter signed by 47 inspectors general. I believe
that is 47 out of 72, is that correct, Mr. Chairman?
Chairman Chaffetz. [Nonverbal response.]
Mr. Palmer. And their letter--and I believe this is
unprecedented, that the OIG's office felt like they had to send
a letter to this committee because Federal agencies were
impeding investigations by withholding documents. It seems to
me that that is what is continuing to happen right now.
You know, if this were a Department of Justice--Mr. Kadzik,
if the Department of Justice sent out a request for documents
in an effort to do due diligence and investigating any issue, I
doubt seriously that the Department of Justice would look very
kindly upon the kind of delays that this committee has
experienced. I daresay they might even issue a warrant. It
would probably rise to the level of obstruction of justice.
But what we have had to deal with here is delay after
delay, and to delay is to obstruct in my opinion. It seems to
me that you are running out the clock. There have been numerous
requests. Our chairman has requested time and time again for
dates certain for the production of documents. But it seems to
me that you think--and it appears to me you have been very well
coached in how to respond to these requests. It just appears to
me, Mr. Chairman, that they have no intention of producing the
documents. That is frustrating and it is a violation of the
public trust.
I yield back.
Chairman Chaffetz. I thank the gentleman.
I now recognize the gentleman from Florida, Mr. DeSantis,
for 5 minutes.
Mr. DeSantis. Thank you, Mr. Chairman.
Mr. Kadzik, the chairman and myself sent a letter to the
Justice Department in December requesting the case file for the
prosecution of Dinesh D'Souza. We asked for it by the end of
the month. We have not received it, which is obviously not a
surprise, given what people have said during this hearing. But
I just wanted to ask you, will the Department produce the case
file?
Mr. Kadzik. We'll--we're willing to come and brief on the
issue. Presenting prosecution files presents particular law
enforcement sensitivities. I know that the issue that you and
the chairman are interested in is whether or not there was
selective prosecution. That ----
Mr. DeSantis. Among others. I mean, there are a number of
issues that we would like to review and conduct oversight about
how the case was handled. And, you know, we want to get prompt
responses. We don't want this to turn into the IRS or some of
the other investigations that have just been stonewalled to
death.
So the case is over. There is no ongoing investigation. The
sentence, I think, has even been served, and clearly, we have a
public interest in conducting oversight over how the Department
is doing its job. I mean we fund your agency, and I think that
we are entitled to the file. So we don't want a briefing; we
want the file. So are you going to produce the file?
Mr. Kadzik. I'll be happy to take that back. And we--again,
we'd be happy to brief, but as I indicated, the--particularly
the law enforcement and prosecutorial sensitivities ----
Mr. DeSantis. Such as?
Mr. Kadzik.--of providing a case file. Well, we--there's
the names of witnesses, there's individuals who cooperated with
the investigation ----
Mr. DeSantis. Aren't those ----
Mr. Kadzik.--might not be publicly disclosed. There's the
internal deliberations of the prosecutors that are deliberative
and subject to the confidential ----
Mr. DeSantis. So basically, if a prosecutor did have
illicit motivation, we are not entitled to that. So the public
is never going to be able to know whether someone had ill
intent when they were providing cases. Is that what you are
saying?
Mr. Kadzik. No, that's not what I'm saying. And in fact,
that issue ----
Mr. DeSantis. Then how would we ----
Mr. Kadzik.--was raised ----
Mr. DeSantis.--discover the truth?
Mr. Kadzik. As--if I could finish--as--that issue was
raised before the court, and the court said that the defense
did not provide any evidence of selective prosecution.
Mr. DeSantis. Because the defense also did not have access
to what we are trying to seek access to. I mean, you know, it
was, I understand, in the middle of a case how you would say
that there is attorney work product because we have an
adversarial system. You start getting into strategy and then
that is just not the way our system functions. But that ship
sailed. I mean, the case is over, in the books, prosecute,
felony, served a sentence. So that whole argument really is
gone at this point. The interest is done.
Is it your view that that--you talk about law enforcement
sensitivities. Does that trump a subpoena from the Congress
because if we don't get the case file, obviously, through the
request, then we may issue a subpoena from the committee?
Mr. Kadzik. As I said, we would like to find a way to
accommodate the committee and provide it with the information
that it needs. I think the first step in that process would be
a briefing so that you can ask questions and receive
information, and then we can see what other further
accommodations may be necessary.
Mr. DeSantis. When can you let us know what the
Department's position on the file is? I am not even asking when
you can produce it, although I assume the Department of Justice
still employs interns who could easily make the copies. When
are you going to let us know? You said you are going to take it
back and talk to people, so when are you going to be able to
respond to the committee one way or another?
Mr. Kadzik. I think we can respond to that within the next
2 to 3 weeks.
Mr. DeSantis. Okay. Well, I mean I don't think it should
take 3 weeks. I mean, I think we would like to have an answer,
you know, towards the third week of this month. And if we don't
get that, then we are going to continue to press the issue
because I look around, I hear the stories and, you know, at the
end of the day it is not Members of Congress who are ultimately
being stonewalled on a lot of this stuff. It is the American
people because our constituents ask us about things. We have
constituents who were targeted by the IRS. Some of us who have
constituents who were in other situations, and they come and
they see a government that is just totally unresponsive and a
government that is very difficult to get answers from. And I
don't think that is really the way the system was designed.
So we will await that response, and obviously, we will be
in contact one way or another after that.
I yield back the balance of my time.
Chairman Chaffetz. I thank the gentleman.
Following up on that, Mr. Kadzik, I do appreciate your
personal responsiveness and would expect the highest standard
of responsiveness given your expertise and your approach to
this.
My question is in following up to Mr. DeSantis, if the
inspector general was to come in and look at that case file,
what would they not be entitled to look at in your opinion?
Mr. Kadzik. I'm no expert on the Inspector General Act, but
my understanding is that in the present state of the law the
only possible information that would potentially be excluded
would be grand jury information protected by Rule 6(3), Title
III wiretap information. And there's the FCRA, which I believe
is the Fair Credit Reporting Act protection that protects
certain information.
Chairman Chaffetz. And for members of this committee, I
think that is something we need to look at more broadly where
the inspector general is allowed access but we, we are the
Oversight Committee. We are charged by the Constitution to
provide that oversight, and we should be able to have access to
at least the same amount of information.
So I have a series of specific things I need to go through,
and then we will work to wrap this up.
Ms. Fucile, we had put in a request in October for
transcribed interviews. You have still not responded to that.
Why--I mean we are in January. Tell me why I shouldn't issue a
subpoena.
Ms. Fucile. The request for transcribed interviews has been
taken back. My understanding is that not all of those folks
still work at OIRA.
Chairman Chaffetz. Well, we put in a request; we want a
response. If the response is well, they don't work here, go
find them somewhere else, I can go find them somewhere else.
But I think it is more complicated. And there are people that
work there that we do want to have transcribed interviews.
We are trying to avoid doing subpoenas. I have done about a
dozen or so. But you leave us with no choice, and I hope you
understand that. I hope you take that back
Ms. Fucile. We'll take that back.
Chairman Chaffetz. I am going to try to get this one more
time. Within the week, within a week from now can you respond
to us on that?
Ms. Fucile. We'll follow up with your staff within the
week.
Chairman Chaffetz. Thank you.
Ms. Johnson, let me ask you about this, and let me give a
little background in prelude to my question. There were a
series of problems and challenges at the Secret Service, enough
so that Secretary Johnson put together a Protective Mission
Panel. Four people from the outside came in and looked and
Secret Service and Homeland Security gave them the information,
and they produced a very important and significant document. I
was very impressed with their conclusions and the depth of
their work in such a short amount of time. In fact, to me I
thought, well, that is what we aspire to do.
Now, my understanding is you provided them, Homeland
Security, you being Homeland Security provided that panel
pretty much anything and everything that they wanted in order
to get the information for the Secretary. So here we are in
Congress trying to have the same type of responsiveness, and
one of the things that we asked for in February of 2015 was--
and this is I think a--I thought this was the easiest of all
the requests. It said, ``All documents and communications were
produced to the recent Protective Mission Panel, which operated
from October 22, 2014, to December 15, 2014.''
I mean that is photocopying. There was a set of materials
that was put together. It was given to the Protective Mission
Panel. We wanted to see that same thing. And yet we didn't get
anything, nothing--you gave us nothing until we got to I think
it was June when I had to issue a subpoena. Now, why is that?
Why wouldn't you provide those to Congress? Why did I have to
issue a subpoena?
Ms. Johnson. Chairman, I ----
Chairman Chaffetz. Microphone, microphone ----
Ms. Johnson.--that ----
Chairman Chaffetz.--microphone, please.
Ms. Johnson. Chairman, that predates me coming in as
assistant secretary. I am not sure what was the result of--why
there was a delay. I know that--I'm looking at my chart. I know
that the majority of documents have been produced or have been
made available in camera. I'm not sure about the timeline.
Chairman Chaffetz. But why not produce all of them? You
produced all of them to the panel. They are not Members of
Congress. Why are you holding stuff back from us?
Ms. Johnson. Chairman, I really can't answer that question
because I don't know what's been produced to the panel. All of
that occurred before I became the assistant secretary. I do
know ----
Chairman Chaffetz. Will you get that answer for me? I think
it is a reasonable request. You want the panel to come up with
the most comprehensive, the best possible recommendation for
the President of the United States, the best possible
recommendation for the Secretary of Homeland Security, so you
gave them a set of documents. You gave them the documents
that--we want to see those same documents because I want to
make sure that we are performing at that same level, that we
are provided that type of information.
You want funding from the American people, there is
possible legislation, there are all sorts of things. And so you
only give us a percentage of it, and there is such--you are
hiding stuff. You are holding back from us and it is not
reasonable.
Ms. Johnson. Chairman, I will take that back because, as I
said, it's my understanding that the majority of documents have
been produced, and we are currently still producing them so--
but I will take that back.
Chairman Chaffetz. And I think you are absolutely accurate
on that, and I appreciate that, and I take you at your word and
look forward to seeing it, but the frustration is this has been
going on since February of last year. We are talking a year and
we still don't have them. It has been a year. And we issued a
subpoena. It is not like we are not serious about that. And I
did this jointly with the Democrats. This is a bipartisan
request and you still haven't fulfilled it.
I have made my point. Let me move on.
November 23 to Secretary Johnson, John Mica and I--he is
the chairman of the Subcommittee on Transportation--sent you a
request on airport identification. There are five requests. I
haven't gotten a single document from you on this. Why not?
Ms. Johnson. Chairman, that's the one that I mentioned
earlier that production is likely on that. TSA will be
producing those documents fairly shortly.
Chairman Chaffetz. Okay. Let's go to the State Department
if I could, please. We are trying to wrap this up. We had four
Members of Congress--myself, Elijah Cummings, Steve Lynch, Ron
DeSantis--bipartisan request on October 16 for a bipartisan
danger pay. It was not a long request, barely a page-and-a-
half, two requests. I don't have a single document from you.
Ms. Frifield. We've provided a--oh, sorry. Sorry. We've
provided a briefing and we are preparing the documents and hope
to have some delivered to you in the very near future.
Chairman Chaffetz. I have a series of other things but my
last bit of frustration with the State Department, we noticed
this hearing, and then suddenly, the whole dam sort of breaks
open. It hasn't fully gotten there yet, but we got 1,700 pages
on our Jakarta request, we got 2,300 pages on congressional
cost certifications, you said you closed out a letter that was
nearly 2 months old, last night after hours you gave us 3,958
documents related to Maputo, Harare, and Saudi facilities.
Some of these requests are old. I mean, they are really
old. And mysteriously, we get them the night before this
hearing, which leads me to believe I guess we have got to do
this on a weekly or semi, you know, bimonthly basis because it
is really hard for us to understand. And I would rather not
even hold this hearing. I don't want to have to hold it again.
But can you understand that just from a human standpoint?
Ms. Frifield. I absolutely do and we noted it ourselves and
we were discussing it. But in your letter you very clearly
articulated what were your priorities, and we had been focusing
on Jakarta thinking get Jakarta--as much done with Jakarta
first and then turn to the others. But when we see that you
have five that you want us to do at the same time, we
immediately started working on all of those.
Chairman Chaffetz. But it was August. The Maputo and Harare
discussion was in August, and then we get it the night before
the hearing. And the Art in Embassies October 7, we didn't get
any documents. When will you get those?
Ms. Frifield. Art in Embassies, I--we've given you a few
documents, but we're--and a briefing, but we'll continue--we're
continuing to gather and produce those.
Chairman Chaffetz. I guess we got some last night. I
haven't had a chance to look and review those.
But, listen, I need to get to the Floor. We have some
things happening there. I appreciate the Member participation.
Please know there are a lot of good people that are working
within your organizations. We appreciate the good work that
they do. So much happens the right way, but it is these
headaches that we have got to figure out. And so we appreciate
your participation today.
This committee stands adjourned.
[Whereupon, at 1:04 p.m., the committee was adjourned.]
APPENDIX
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Material Submitted for the Hearing Record
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