[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS FOR
2016
_______________________________________________________________________
HEARINGS
BEFORE A
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
________
SUBCOMMITTEE ON COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES
JOHN ABNEY CULBERSON, Texas, Chairman
ROBERT B. ADERHOLT, Alabama CHAKA FATTAH, Pennsylvania
JOHN R. CARTER, Texas MICHAEL M. HONDA, California
JAIME HERRERA BEUTLER, Washington JOSE E. SERRANO, New York
MARTHA ROBY, Alabama DEREK KILMER, Washington
DAVID W. JOLLY, Florida
STEVEN M. PALAZZO, Mississippi
NOTE: Under Committee Rules, Mr. Rogers, as Chairman of the Full
Committee, and Mrs. Lowey, as Ranking Minority Member of the Full
Committee, are authorized to sit as Members of all Subcommittees.
John Martens, Jeff Ashford, Leslie Albright,
Colin Samples, and Taylor Kelly
Subcommittee Staff
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PART 6
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Inspectors General (DOJ, Commerce, and NASA).............. 59
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Printed for the use of the Committee on Appropriations
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U.S. GOVERNMENT PUBLISHING OFFICE
96-083 WASHINGTON : 2015
COMMITTEE ON APPROPRIATIONS
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HAROLD ROGERS, Kentucky, Chairman
RODNEY P. FRELINGHUYSEN, New Jersey NITA M. LOWEY, New York
ROBERT B. ADERHOLT, Alabama MARCY KAPTUR, Ohio
KAY GRANGER, Texas PETER J. VISCLOSKY, Indiana
MICHAEL K. SIMPSON, Idaho JOSE E. SERRANO, New York
JOHN ABNEY CULBERSON, Texas ROSA L. DeLAURO, Connecticut
ANDER CRENSHAW, Florida DAVID E. PRICE, North Carolina
JOHN R. CARTER, Texas LUCILLE ROYBAL-ALLARD, California
KEN CALVERT, California SAM FARR, California
TOM COLE, Oklahoma CHAKA FATTAH, Pennsylvania
MARIO DIAZ-BALART, Florida SANFORD D. BISHOP, Jr., Georgia
CHARLES W. DENT, Pennsylvania BARBARA LEE, California
TOM GRAVES, Georgia MICHAEL M. HONDA, California
KEVIN YODER, Kansas BETTY McCOLLUM, Minnesota
STEVE WOMACK, Arkansas STEVE ISRAEL, New York
JEFF FORTENBERRY, Nebraska TIM RYAN, Ohio
THOMAS J. ROONEY, Florida C. A. DUTCH RUPPERSBERGER, Maryland
CHARLES J. FLEISCHMANN, Tennessee DEBBIE WASSERMAN SCHULTZ, Florida
JAIME HERRERA BEUTLER, Washington HENRY CUELLAR, Texas
DAVID P. JOYCE, Ohio CHELLIE PINGREE, Maine
DAVID G. VALADAO, California MIKE QUIGLEY, Illinois
ANDY HARRIS, Maryland DEREK KILMER, Washington
MARTHA ROBY, Alabama
MARK E. AMODEI, Nevada
CHRIS STEWART, Utah
E. SCOTT RIGELL, Virginia
DAVID W. JOLLY, Florida
DAVID YOUNG, Iowa
EVAN H. JENKINS, West Virginia
STEVEN M. PALAZZO, Mississippi
William E. Smith, Clerk and Staff Director
(ii)
COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS FOR
2016
________
Wednesday, March 25, 2015.
FEDERAL BUREAU OF INVESTIGATION
WITNESS
HON. JAMES B. COMEY, DIRECTOR, FEDERAL BUREAU OF INVESTIGATION
Mr. Culberson. The Commerce, Justice, Science
Appropriations Subcommittee will come to order. It is a
privilege to have with us today the Director of the FBI, Jim
Comey. We are delighted to have you today with us, sir.
I want to also before we start, though, take a moment to
recognize our newest member Mr. Palazzo from Mississippi. We
are delighted to have you with us, Steve. I know we miss Alan a
great deal. But we are delighted to have you, and very pleased
to have with us the Chairman of the full committee. Thank you,
Mr. Rogers, good to have you with us. And Mr. Fattah, we are
going to go ahead and crank it up.
This is particularly appropriate today to have you with us,
Mr. Chairman, because the 9/11 Commission has issued its
findings this morning and we will talk a little bit about that
today. But we are privileged to have you with us here in front
of our subcommittee to present your 2016 budget request. It is
a very important, complex and critical mission that the FBI has
to perform. We have on this subcommittee over the years helped
the FBI fulfill its mission. You are the lead agency in
domestic anti-terrorism, counter intelligence, national
security efforts, so a vital law enforcement effort.
And as you mentioned the other day, once criminals got hold
of automobiles and could cross state lines and someone could
hold up a bank in three different states on the same day it
suddenly made the role of the FBI in fighting crime very, very
important to the Congress in the 1920s and thirties. And your
role has only grown over the years, and particularly in the
light of the 9/11 attacks, the growing danger of cyber crime,
the ongoing cyber warfare that is taking place invisibly
against the United States and private industry. Your role in
fighting human trafficking and financial fraud is just vitally,
vitally important. And we have a responsibility to help make
sure that you are able to do your job but also be sure that our
constituents' hard earned tax dollars are wisely spent.
So we want to be sure in the budget request that you submit
today on behalf of the FBI and the President that the
subcommittee wants to be certain that we have scrubbed your
budget and done everything we can to make certain that again
our constituents' hard earned tax dollars are wisely and
prudently spent. Particularly in light of the tremendous budget
pressures we face in this very difficult budget year.
The report that was issued this morning by the 9/11
Commission, we are pleased to see the progress that the FBI has
made in transforming itself, in light of the continuing
challenges posed by terrorism and other global threats. I want
to particularly thank the members of that Commission, Ed Meese,
former Attorney General; Tim Roemer, former Congressman; and
Bruce Hoffman with Georgetown University for their superb work.
This Commission was put together at the instigation of my
predecessor, Frank Wolf, and it is comforting to see the
progress that the FBI has made in transforming itself in light
of the 9/11 attacks.
We will be working through some tough questions in today's
hearing, Mr. Director. And we want to make sure that the
investments that we make in the FBI have a real impact in
enhancing national security and reducing crime. We deeply
appreciate your service to the nation and I would like to
recognize Mr. Fattah for any comments that he would like to
make.
Mr. Fattah. Let me thank the chairman, and thank the
Director for being with us today. You said recently that we
have, in every single state the Bureau has active
investigations around terrorism. And obviously it is a major
concern given the activities taking place in all parts of the
world. And part of the big discussion in the 9/11 Commission
was whether or not, how we kind of recalibrated ourselves to
deal with these challenges. Because heretofore it was about
catching people after they had done something wrong. And in the
case of terrorism it is really a much different approach, where
you are trying to prevent something catastrophic from happening
by people who in many instances have no desire to get away. So
it is a much different, you know, circumstance.
So it will be interesting as we, you know, talk about, you
know, cyber crime, which is a big deal, and you know, a lot of
these other issues. Obviously this is something that from a
national government perspective the decision of the Commission
was that we should not have kind of a terrorism only entity,
that the FBI was quite capable of dealing with this challenge.
And the Bureau has proven to be. But you have also faced
criticism from some of the processes that you have had to
utilize, which in some cases you know the question of whether
or not people who are espousing ideas but taking no action, you
know, where the line falls.
So I will be interested in your comments. Obviously, your
budget and the appropriations, the committee, as it has in the
past, will do everything necessary to make sure that you have
the support needed to protect the country. Because you are
really not trying to protect the FBI, you are trying to have
the FBI protect the nation. And so we have a responsibility to
find the resources. But I will be looking forward to your
comments on the subjects that I have raised. Thank you, Mr.
Chairman.
Mr. Culberson. Thank you. I am privileged to recognize the
chairman of the full committee, Mr. Rogers from Kentucky.
Mr. Rogers. Thank you, Mr. Chairman. Mr. Director, welcome,
and to your staff. I was looking at your resume, your work
record as a prosecutor. I did that for 11 years myself on the
state level, state district level, so I commend you for your
education and your experience in that regard.
Pardon my raspy throat, I have caught it.
The chairman rightly said that the FBI has a critical
mission in protecting the homeland. And frankly the charge of,
to the FBI, has changed absolutely dramatically over the last
decade or so. When I first came to Congress in 1981, you know,
we were focused on catching armed robbers and all of that. But
now it is such a sophisticated and complicated new charge that
you have, dealing with counterterrorism, hostile foreign
intelligence agencies, espionage, domestic and foreign cyber
threats. Cyber is a new word, now it is a new challenge. And
then of course the traditional catching of crooks and thieves
and dangerous criminals here at home, particularly drug related
and especially prescription pill attacks that CDC says is a
national epidemic.
So you have a hefty load. And we are going to try to give
you what we can afford to help you fight all of these charges.
And it will not be enough. But there is a limit on what we can
appropriate. We are confronting an extremely difficult
budgetary climate here. In fact we are debating today on the
floor the budget, which is severe and strict. It stays within
the sequestered levels. So we are not dealing with a lot of new
money, hardly any.
It is extremely important for you and others like your
agency, which relies so heavily on intelligence information, to
leverage and maximize the partnerships forged at the local,
state, and even international level to ensure that every penny
the taxpayer spends is targeted, efficient, and effective. In
fact last week I visited with the Interpol headquarters over in
France, had my second visit with them. And in the last several
years that agency has grown.
When I was there the first time ten or 15 years ago, the
difficulty I saw at that time, that our agencies over here were
not participating in Interpol as they should. Now they are. And
it is imperative that we continue that work with Interpol, as I
am sure you will agree.
You have been taking strides in recent years to streamline
and optimize your intelligence components. But I think we can
all agree that much work is still to be done there. Last year
you requested and we granted permission to restructure the
FBI's intelligence program to more seamlessly integrate
intelligence and operations. And I hope you can provide us with
an update on those efforts in a minute. Particularly as we all
begin to assess the report evaluating the FBI's implementation
of the 9/11 Commission recommendations.
Finally I want you to provide the committee with some
information about how the Bureau is working to combat the
threat of homegrown domestic extremism. ISIS has demonstrated
very sophisticated recruiting techniques through the internet
and social media. And by some accounts as many as 20,000
fighters have traveled from 90 different countries to fight in
Syria, including some 150 I understand from the U.S. that we
know about.
It is imperative that we work to prevent the radicalization
and recruitment of American citizens who could later return to
the U.S. and cause us harm. And I know the FBI has an important
role to play in that regard. We would like to hear about it.
So Mr. Director, thank you for your work and your career,
and we thank you for your dedication to your country, and your
service to your country, and all that you command. Thank you,
Mr. Chairman.
[The information follows:)
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Mr. Culberson. Thank you, Mr. Chairman. Director Comey, I
really appreciate, as the chairman said, your service to the
country. Thank you for being here today. And we will of course
submit your written testimony in its entirety as a part of the
record, without objection. And welcome your testimony today,
sir. And to the extent you can summarize it, we would be
grateful. And again, we look forward to hearing from you, sir.
Thank you.
Mr. Comey. Thank you, Mr. Chairman, Mr. Fattah, Chairman
Rogers, members of the committee. I will be very brief. I want
to start by thanking you for your support of the FBI over many
years.
The FBI's budget request for 2016 is about maintaining the
capabilities you have given us, which is mostly people. The
magic of the FBI is its folks. Over sixty percent of our budget
goes to agents, analysts, scientists and surveillance
specialists. And my goal for 2016 is to be a good steward of
the taxpayers' money, because I know the kind of times we face,
and sustain that capability.
We have asked for two small enhancements, one that relates
to cyber and the other that relates to our effort to integrate
our systems better with the rest of the Intelligence Community.
Each of those is about a $10 million request. But we are about
sustaining what you have already given us. And you have
supported the FBI in ways that we are extremely grateful for.
The threats that we face and are responsible for protecting
this great country from are well known to this Committee and
you have alluded to them in your remarks. Counterterrorism
remains our top priority. The counterterrorism threat has
changed dramatically since I was Deputy Attorney General in the
Bush Administration. They have actually changed in the 18
months I have been on this job.
The shift has been the growth of the group that calls
itself the Islamic State from a safe haven in Syria and
portions of Iraq. They are issuing a siren song to troubled
souls to travel to the so-called caliphate to fight in an
apocalyptic battle, as they have styled it. Or if you cannot
travel, kill someone where you are. And that siren song
increasingly goes out in English. It increasingly goes out on
social media, and reaches into our country where it is consumed
by people who are very hard for us to see because they are in
their basement. They are in some space that we do not have
visibility into consuming poison, and either deciding whether
they want to travel or whether they want to harm somebody here
at home.
Increasingly the focus of this threat is on people in
uniform. This week we saw ISIL calling for harm to be brought
to over 100 members of our military services. And so the threat
we face is global. It moves at the speed of light. And it is
increasingly difficult for us to see because it goes through
the complex spider web of social media.
We spend all day every day worrying about this and working
on it. To answer Mr. Fattah's question, yes we focus an awful
lot on trying to find those needles in our 50-state haystack
who might be radicalizing and responding to this poison, and
either planning to travel or planning to do harm here at home.
We have investigations focusing on these people we call
homegrown violent extremists in all 50 states. Until about a
month ago, it was 49 states--no Alaska. That has changed. We
have got all 50. And that is no cause for celebration. But we
are working with our partners in state and local law
enforcement and in the rest of the Intelligence Community to
find these people and disrupt them.
Counterintelligence has been mentioned. A lot of folks tend
to think the spy game is a thing of the fifties, sixties, or
seventies. It is alive and well. That threat comes at us
through human beings and through the internet. Nation state
actors are trying to steal what matters to this country and we
are about trying to prevent that.
And then you mentioned our criminal responsibilities. We
are responsible for protecting children in this country,
protecting people from fraudsters, protecting people from the
ravages of drug abuse and drug dealing, and violent crime. And
I have got folks all over this country, in 56 field offices,
and in nearly 400 total offices, doing that work every single
day.
And a word about cyber. Every single one of the threats I
mentioned increasingly comes at us through the internet. Mr.
Chairman, you mentioned the modern FBI in a way was born with
the great vector change of the 20th Century. The automobile and
asphalt made it necessary to a breathtakingly fast criminal
element, 50 miles an hour, 60 miles an hour. We now face a
vector change that dwarfs that. Because Dillinger could not do
1,000 robberies in the same day in all 50 states from halfway
around the world. That is the threat we face through the
internet. It moves at the speed of light. Everybody is next-
door neighbors to everybody else on the internet.
So we are working very hard to make sure that my criminal
investigators, my counterintelligence investigators, my
counterterrorism operators, and all of our international
operations are growing our ability to be good in cyberspace.
Because to protect kids, to fight fraud, to fight everything we
are responsible for, we have to operate there. So that is about
people, training, technology, and smart deployment.
I will mention one thing that most folks do not know much
about. I had a chance to visit our facility down in Alabama.
Most people do not realize the FBI trains all the nation's bomb
techs and we do that down at the Redstone Arsenal in Alabama.
And we also spend time there building the world's greatest
library of improvised explosive devices. Another thing the
American people do not realize their hard earned tax dollars
have bought, and it is worth the money. We now have the ability
when a device is detonated or found anywhere in the world, to
compare the forensics of the tool marks, the hairs, the finger
prints to thousands of samples we have collected in the
operation called TEDAC, which is also centered in Alabama. Work
that is kind of hidden from the taxpayers, not intentionally,
it just doesn't get a lot of headlines, but makes a big
difference.
And then I will close, with what Chairman Rogers
mentioned--state and local partners. They are essential to
everything we do. I have been to all 56 field offices and I
have met with sheriffs and chiefs in all 56 to build those
relationships. And I do something else, which I think every
member of a family, like the law enforcement family, should do.
When an officer is killed in the line of duty, I call that
sheriff or that chief to express our condolences and offer
help. I make way too many calls.
I have had three officers killed in this country, two
yesterday, another one earlier this week. Totally different
circumstances; Navajo Indian Reservation; Fond du Lac,
Wisconsin; and San Jose, California. Except united by the fact
that they were all murdered by thugs and they are people who
certainly did not deserve that and leave behind families. I
mention this because it leaves me today with a heavy heart. And
we are having important conversations in this country,
especially about race and policing which I am a huge fan of
having. But I am keen to make sure that when we have
conversations about law enforcement, we understand what is at
stake and the sacrifices made by the men and women in law
enforcement, and the kind of people who sign up to do this sort
of work. And especially today with the loss of so much life
just in the last 24 hours, it is on my mind. So I thought I
would mention it.
But I will close with thanking you for your support. The 9/
11 Review Commission, as we told the world today, released 129
pages of their report. We declassified as much as we possibly
could. And their message is, you have done great. It is not
good enough. And that is exactly my message to the FBI. I said
that is what it means to be world class. To know you are good,
and never, never be satisfied with it.
So we have made a lot of progress in transforming our
intelligence capabilities. We still need to go farther. And the
American people deserve us to be even better than we are today.
And my pledge is, I have eight and a half years to go, and I
will work everyday to make us better. So thank you for your
time.
Mr. Culberson. Thank you, Director Comey. I think it is
especially appropriate you remind us all to keep your officers
in our prayers. And our hearts go out to the families of those
three agents who lost their lives. And that is something that
all of us I know keep in the forefront of our mind, the
sacrifice, the risk that all of you take in protecting us and
the country from these incredibly complex and varied threats.
It is also apparent in this new era, the scale of the
problem is so huge that you really do have to rely obviously on
state and local authorities. It is a team effort. And the
genius of America is, the founders envisioned a system where
protecting lives and property, police powers, is vested
originally in the states, and in the good hearts and common
sense of individual Americans. So there is also a vital role I
think for individual Americans to play in helping defend the
country. It is really the most important role quite frankly
since one thing our enemies will never be able to defeat is the
good hearts, the good common sense of individual Americans
defending their families, their homes, their neighborhoods,
their communities. The work that our local police and sheriffs
and state police officers do is just indispensable and that
partnership with you is vital and I appreciate very much you
mentioning it to us today.
And the evolving threat that we face was important
motivation of course behind Chairman Wolf's amendment to create
the 9/11 Commission, which released its unclassified report
today. As I mentioned, former Attorney General Ed Meese,
Congressman Tim Roemer, and Bruce Hoffman were authors of the
report and I appreciate you mentioning it in your opening
testimony.
INTELLIGENCE ANALYSTS
One of the key recommendations they made that I know you
have already begun to do and wanted to ask you to elaborate on
a little more is the vitally important role that intelligence
analysts play in the new world the FBI now confronts. And could
you talk a little bit more about the work that you are doing to
implement the recommendation of the 9/11 Commission to
professionalize the intelligence analyst position within the
FBI?
Mr. Comey. Yes, thank you Mr. Chairman. The FBI did not
have an intelligence career service as recently as 13 years
ago. And so we have made great progress, but transforming an
organization and creating an entirely new element to the
organization, I believe, is a generational project. And Bob
Mueller spent a decade on it.
I announced as soon as I started, I was going to spend my
decade pushing on that same change. Because it is about
attracting great talent, training them and equipping them
right, but it is also about having the rest of the organization
accept them and learn to work well together with them. And we
are doing that extremely well in some places, other places not
so much. And so what I am doing is a bunch of different things;
but I am training our leaders on what effective integration
between operations and intelligence looks like.
I am making it a personal priority so that I review monthly
a series of projects to drive that forward. I grade our leaders
on it and I am working very hard to make sure that people
understand that this is something the FBI has always done. We
have always been in the intelligence business. This is about
making us better. It should not be a threat to anyone. It is
about making this great organization better.
So it is one of my three personal priorities at the FBI, to
make sure that I drive that integration between intelligence
analysts and our operators, particularly our special agents,
and make it good everywhere in the United States.
Mr. Culberson. And in particular in making the analyst
positions, moving them into senior management level. Making
sure they are integrated as far as possible, into your career
service and in senior management positions?
Mr. Comey. Yes, sir. One of the things I did again with the
support of this committee when I started is create a separate
Intelligence Branch. So the leader of the Intelligence Branch
was much closer to me, I could see that person and drive it. I
appointed a very talented Special Agent to that role. But I
said I love him as a person, do not like him as a concept.
Because that role should be someone who came up through the
intelligence career service. And I have got talent coming up
towards that but I will not know that we have made material
progress until the Intelligence Branch is led by an
intelligence career service professional.
FIVE-YEAR STRATEGIC PLAN
Mr. Culberson. Talk to us if you could also sir about the
panel's recommendation that the FBI adopt a five-year plan like
the Defense Department, a strategic plan, and your work to
implement that recommendation? And do you agree with the
concept?
Mr. Comey. Yes, that is one I told the Commissioners I need
to give more thought to. I do not want to create plans just for
the sake of creating five-year plans. I have been at a lot of
institutions where people spend a lot of time writing them and
then they sit on a shelf. We have got all kinds of plans in the
Bureau. What I promised to do is go back and figure out whether
there is a missing overarching strategic plan that ought to be
written covering a five-year period. And so I told them I would
get back to them on that. I do not know yet whether that makes
sense for me.
INFORMATION SHARING
Mr. Culberson. The Commission also wanted to be sure that
we recognized and point out to the public that your information
sharing with state and local police departments and law
enforcement authorities is a good news story. Talk to us a
little bit more about that.
Mr. Comey. Yes, that is a very good news story. We have, I
think, broken down a lot of the barriers, both technological
and regulatory policy between us and state and local law
enforcement we share information with. Most of all, the culture
has changed. We now lean forward and push things out as a
matter of reflex, which is so great to hear.
I ask about it everywhere I go in the United States, all 50
states. I say how are we doing to the sheriffs and the chiefs,
and the answer is you are doing extremely well. We have seen a
dramatic change. And it is the right thing to do but there is
also a very practical reason, we need these folks.
Our joint terrorism task forces are made up predominantly
of state and local law enforcement that contribute their talent
to us. So I do think that is a good news story. But as I have
said to folks, look, I have a great marriage but I believe I
can always find a way to be a better spouse. We have a great
relationship with state and local law enforcement. I want to
continue to try and improve that if we can.
Mr. Culberson. Yes, I am confident that the first time we
are going to spot someone who has come here to do us harm from
overseas, a terrorist, it is going to be an average American,
using their good judgment and their instincts to spot something
peculiar and/or a local police officer or a local sheriff
having spotted something that just their instincts as a good
law enforcement officer tells them is out of place and wrong.
So it is a good story. And frankly the entire 9/11 Commission
recommendations, it is very encouraging to see that the sum of
what they have sent the Congress in the unclassified version
and the classified version is a good news story for the FBI,
that you have done a good job in responding to 9/11. And we
appreciate that very much, sir. Let me recognize Mr. Fattah.
Mr. Fattah. Thank you. When I became ranking on this
subcommittee one of my first visits was out to the Center for
Missing and Exploited Children, which is one of the places
where you do joint operations looking for children. And the
Innocence Lost Project, which the committee has supported, you
have now been able to rescue some 4,350 children. But as you
know there are thousands and thousands of children who are
missing, many of whom are being exploited in all kinds of
terrible circumstances. So as, you as the Director, you have to
prioritize, you know, where are you going to place you said
your greatest resource are your people, your agents, right? You
have got, you know, I have also been out to the Joint Terrorism
Screening Center. There is very important work going on there.
You have to make these decisions about whether somebody is
tracking down a child who has been exploited, whether somebody
is looking after, you know, chasing down a terrorist, and so
on. Could you just share with us as you are working through
these issues how you have prioritized this under your
leadership?
PRIORITIZING EFFORTS
Mr. Comey. Yes, thank you Mr. Fattah. The work involving
kids, by the way, is some of the most important and meaningful
that we do. As the father of five I have gone out and visited
NCMEC. I have gone and met with all of my folks who do this
work and told them there is nothing with deeper moral content
than that work. And I tell them that I want you to take care of
yourselves, because I worry that it eats my people up.
But the way we approach it generally is--this is kind of a
homely metaphor and I was not a football player but I am a
football fan and I view the FBI like a safety in football. We
have certain assigned coverages, right? Counterterrorism,
counterintelligence, non-negotiable, every game, every
opponent, that is our responsibility. But beyond that, what I
want to do is look to the primary line of defense and say
``where do you need us in this game?'' Do you need us in the
flats? Do you need us over the middle? Should we play run
support? Should we play deep? That is going to be different in
every game against every opponent.
And so the way the metaphor works is, I have told my
Special Agents in Charge, in the cities in which you operate,
figure out where we can make a tackle. Right? I do not want to
jump on piles where people have already been tackled. I do not
want to be speared in the back. But figure out where we are
needed, right? Because we are a big agency but we are small
compared to state and local law enforcement. So figure out
where they need us to make a tackle.
And that is institutionalized in a process we call Threat
Review and Prioritization. It is a very disciplined and very,
very complicated process where we figure out what threats to
the United States we are needed to make a tackle on. And in
Philadelphia where are we needed, in Phoenix where are we
needed, and in Birmingham where are we needed? And then we come
up with an annual list.
Mr. Fattah. Well you mentioned, you know, that the taxpayer
may not know about the explosive bomb detection training you do
in Alabama. I do not think most Americans have any idea that
thousands of children go missing every week in our country. And
some of them end up in circumstances in which they are
exploited for years, you know, on the internet and in other
ways. And so, you know, if you have got, and you mentioned the
officer who was shot this week and killed in Wisconsin by a
suspect in a bank robbery. One of the things you do is you
chase bank robbers, right? So somebody, and it was a special
agent in charge, says, you know, we are going to go after bank
robbers, or we are going to go after this little girl who is
being exploited. And you know, and making very tough decisions
with limited resources. And I am just trying to understand,
because we have to make decisions about what we are funding,
you know, how are you making these decisions? And none of them
are, you know, I mean, none of them--I guess you would want to
do it all but you have got to decide.
Mr. Comey. Well, the way in which we make a decision is sit
down and talk to people like NCMEC; talk to social services
agencies; talk to law enforcement and say, ``Okay, I am the
Special Agent in Charge in Philadelphia. Who is doing what to
address that problem here?'' Given that, I would rank my
priorities,'' and align my resources against it according to
where it fits on the priority level.
We do the same thing at the national level. In Washington,
we sit there and say, What are the bad things that could happen
in the United States that the FBI might be able to help with?
Not to be depressing, but there are 304 bad things. Then we
say, Okay, given who else is helping with those bad things and
the harm that flows from those bad things, how would we rank
them? And then we do that and come up with a national threat
ranking of all the threats we could face; it is imperfect, but
it is a way in which we try to balance it.
Mr. Fattah. Right.
Mr. Comey. We do the work you are talking about in every
field office.
Mr. Fattah. And the chairman mentioned--the chairman of the
full committee mentioned Interpol. You know, Ron Noble, who is
a friend of mine, runs the Interpol and he has been doing a
terrific job. The Europeans have something magical going on
because they can make arrests and prosecutions throughout these
28 countries with no extradition and none of these other
issues. They kind of have a seamless system that we cannot do
state to state, I mean, in America, which is interesting, that
I have been able to jump over language and sovereignty issues
and nationalities to work law enforcement in a much more
seamless way. It is something that we can learn, I think, as we
go forward.
Thank you very much, and thank you, Chairman.
Mr. Culberson. Thank you, Mr. Fattah.
Chairman Rogers.
FBI TRANSFORMATION
Mr. Rogers. The biggest change that I have seen in my
experience, as far as the FBI is concerned, over the years has
been the graduation from investigating already-committed crimes
and preparing evidence for prosecution and then there is
today's world where you are working more in preventing, trying
to prevent events, including crime, before it takes place;
counterterrorism, trying to prevent terrorism; trying to keep
spies away; the constant barrage of cyberthreats, foreign and
domestic; prevention, rather than prosecution, although it may
eventually may be prosecution. That is a significant change,
and it has taken an effort on the part of the FBI leadership
over these last few years to try to get it through the agency's
head about this new world in which we live and the mission of
the FBI, more in prevention, actually, than prosecution.
Do you agree with that?
Mr. Comey. Very much. The transformation that is happening
in the FBI is one from a place where we were criticized with
some justification for working our in-box. A call came in, we
responded to it, and we investigated it. Now we step back and
have lots of thoughtful people say, ``So what are the bad
things that are going on here that might happen and how do we
find out more about them so we can address it before it
happens?'' And that is the intelligence transformation.
I am the director of the FBI and I say this with pride: I
think we are the best in the world at finding stuff out. What
we are getting much better at is being thoughtful about what
stuff we need to find out, who else needs to find out the stuff
that we found out, and what might we not know; what stuff are
we missing, and being much more thoughtful about that. That is
taking the intelligence talent and connecting it to the great
talent resident in my Special Agents.
RECRUITING OF FOREIGN FIGHTERS
Mr. Rogers. Well, and the current world war, frankly, the
war of terrorism and violence is a worldwide event, so we are
in a world war. And we are up against a very sophisticated,
capable enemy. The recruiting of foreign fighters into Syria
and Iraq, we have not found a way yet, in my opinion, to
effectively stop or even slow it down. And it is more than a
law enforcement and it is more than an FBI mission, but it
certainly is an FBI mission.
But just last week we learned about a 47-year-old Air Force
veteran who tried to join ISIS, and before his apprehension,
Tairod Pugh worked for a number of American firms overseas,
including a U.S. Defense firm, in Iraq for whom Pugh performed
avionics on U.S. Army aircraft. We have had several stories
like that, that have appeared. Is there a magic bullet to try
to get at that kind of a problem that the FBI can do?
Mr. Comey. Yeah, there is not a magic bullet. To us, it is
about a full-court press, making sure that we have sources
where we need them to be; that we have both the know-how and
the technical capability to play in the online space where they
are meeting and recruiting and radicalizing; and that we are
closely connected to state, local partners--I agree with the
chairman, they are far more likely to hear about a guy thinking
about leaving the community and going to Syria--and that we are
connected with our intelligence partners and our foreign
partners who are tripwires for us.
What happened with that guy is the Egyptians spotted him
when he was sent back from Turkey, alerted us, and then we were
able to lay hands on him.
PRESCRIPTION DRUGS/HEROIN
Mr. Rogers. We switch completely to the prescription drug
problem which has been devastating in my part of the state and
the country, particularly Oxycontin, but now that we are
beginning to make a dent in the pill mills, closing them down
in Florida and Georgia and other places and finally getting FDA
to change the formulation of drugs like Oxycontin to make them
non-abused, a lot of the country shifting to heroin, and the
drug cartels in Mexico, I am hearing, are now getting into the
pill business because of the enormous profits there.
What can you tell us about that?
Mr. Comey. I think you have identified something that does
not get the attention that it deserves. DEA, obviously, has the
lead here, but we do a lot to support them, so I know a fair
bit about this. We see the Mexican traffickers increasingly
shifting to heroin, white heroin--it used to be that brown
heroin was coming out of Mexico--white heroin is highly pure,
and is being pushed into the United States to gain market
share. So what is happening is, as you said, Mr. Chairman, it
is supplanting pill abuse because it is cheaper, easier to get,
and it is extraordinarily deadly. The people using it--sounds
like an odd thing to say--do not know how to use heroin, do not
realize it is 93, 97 percent pure, and so kids and adults and
people of all walks of life are dying all over this country.
And as I travel the country, I see it sweeping south and west.
When I became the FBI director 18 months ago, I heard about
it a lot in the Northeast and the North Central; now I am
hearing about it everywhere I go. For economic reasons, it is
cheap and the traffickers are pushing it in. So we are spending
a lot of time to work, again, with DEA and our local partners,
to disrupt the traffickers to impose costs on them so we can
shorten the supply and then drive the price up so we do not
have the--I think there were 6,000 deaths from heroin overdoses
or more in the United States last year--so we can push those
numbers of tragedies down.
Mr. Rogers. Well, still, more people are dying from
prescription pill abuse than from car wrecks. So even though a
part of the country is switching to heroin, the pills are still
a problem in a big part of the country.
Mr. Chairman, I have abused my time.
Mr. Culberson. Not at all. Not at all.
CYBER THREATS
Mr. Rogers. Quickly, and finally, cyberthreats, where are
we?
Mr. Comey. Cyber is a feature of every threat that the FBI
is responsible for. I describe it as an evil-layer cake. At the
top level we have nation-state actors who are looking to break
into our corporate systems and our government systems to steal
all kinds of information for their commission advantage or for
their intelligence advantage. Then we have organized criminal
groups, very sophisticated hackers looking to steal Americans'
information for criminal purposes. Then we have all manners of
thugs and criminals and pedophiles down below, and the reason
is obvious: Our lives are there. My kids play on the Internet.
It is where we bank. It is where health care is. It is where
our critical infrastructure is. So those who would do harm to
children or money or credit card information or our banks or
our critical infrastructure, that is where they come.
So, there is not a single cyberthreat; it is a feature of
everything that the FBI is responsible for. The bad guys have
shrunk the world, right, because Belarus is next door to
Birmingham on the Internet, and so we are working very hard to
shrink it back. I can forward-deploy my cyber experts to make
the globe smaller so we can impose some costs. Because right
now, everybody thinks it is a freebie to steal Americans'
information. We have to impose costs on these people, so even
though they are in their pajamas halfway around the world, they
are afraid to break into an American's life and steal what
matters to us.
Mr. Rogers. Do we have absolute evidence, absolute proof
that these attacks, many of these attacks are from states?
Mr. Comey. Yes.
Mr. Rogers. Countries?
Mr. Comey. Yes.
Mr. Rogers. Governments?
Mr. Comey. Yes.
Mr. Rogers. Military?
Mr. Comey. Military intelligence.
Mr. Rogers. Russia?
Mr. Comey. Russia is a significant player in cyber
intrusions, as is China, obviously, two huge operators in that
world.
Mr. Rogers. We have proof that Russia and China and other
Governments are attacking our country's cyber information
databases?
Mr. Comey. Yes.
Mr. Rogers. What are we doing about it?
Mr. Comey. Well, a lot of different things, only some of
which I can talk about here. One of the things that we are
trying to do is name it and shame it. We did it last year by
indicting five members of the People's Liberation Army and
publicizing them on posters indicating they were stealing
information from American companies, stealing our innovation.
And people say, well, indicting them is not going to do any
good, you will never catch them, and I always say, we have more
flaws at the FBI because we are humans. We are dogged and never
say never. People like to travel, like to have their children
educated in the United States or Europe. Never say never. We
are trying to impose costs, and part of the costs, though, is
the naming, the calling it out. The Chinese are stealing our
innovation, our ideas, our creativity, our jobs.
Mr. Rogers. In fact it was this subcommittee, Frank was the
chairman many years ago, who first brought attention to foreign
governments hacking into his files and he sort of led the way,
but, boy, it has come a long way, and I am not satisfied at all
that we are doing what we need to do to try to stop it or
counteract it.
Thank you, Mr. Director.
Mr. Comey. Thank you, Mr. Chairman.
Mr. Culberson. Mr. Chairman, I think it is a top priority
for us on this subcommittee, of keen interest to all of us in
the Congress, but of particular interest to me in the work that
you have done. I have had a chance to come out and hear some of
the work in a classified setting; it is very impressive.
What advice could you--before we move on to Mr. Honda--very
quickly, just, if you could, tell the American public out there
listening just some good basic rules to protect themselves,
good hygiene practices against cyber attack on their own
computers or smart phones at home.
Mr. Comey. Folks should exercise the prudence wandering
around the electronic neighborhood that they would wandering
around any other neighborhood. I have tried to train my
children on this, when they cross a parking lot at night in a
shopping mall, they are alert. They are thinking about where
they are going. They are walking a certain way. They lock their
car. People should behave the same way on the Internet. It is
actually a bigger neighborhood, a bigger parking lot.
Mr. Culberson. And more dangerous.
Mr. Comey. And in some ways, more dangerous.
And so what I tell folks is very simple: An email is a
knock on your front door. Opening the attachment to an email is
opening your front door. You would never open your front door
without looking through your peephole and seeing what is there,
but all the time folks get an email, they open the attachment
and their whole life can be stolen in that moment.
And also know where your children are. You know where your
children go to play, right? At least I do. Folks need to know
what their kids are doing on the Internet; where are they
going; who are they interacting with? It is the kind of
parenting and common sense that we seem to exercise in all
aspects of our life, except when we are sitting at a keyboard,
which makes no sense at all because we just made the entire
world our neighbors when you are behind that keyboard.
Mr. Culberson. And I heard your wonderful analyst tell us
at a hearing in a classified setting we had, Mr. Chairman, with
some of your cyber folks, that 80 percent of protecting
yourself against a cyber attack is good hygiene, like washing
your hands after a meal or some of the basic things that you
have just mentioned to us. Thank you, Director.
Mr. Honda.
Mr. Honda. Thank you, Mr. Chairman.
And, Director Comey, thank you for coming in today to
testify before the subcommittee.
As you know, a key tool in combatting crime is the use of
Combined DNA Index System, better known as CODIS, and CODIS
blends forensic science with computer technology to accurately
identify suspects and assist in a successful prosecution of
criminals.
Last year's budget hearing, I brought up the nationwide
backlog of untested sexual assault kits, which was around
500,000. Shortly after that hearing, Alameda County District
Attorney, Nancy O'Malley, and your office began discussions
about the backlog that occurs prior to the upload of CODIS. And
I am pleased that the FBI laboratory staff have met with the DA
several times regarding a pilot project that may facilitate the
CODIS upload of DNA profiles linked to suspects of accused
sexual assault crimes.
And having said that, I just want to add, also, my thanks
to the past chairman, Frank Wolf, who really carried us and
helped us see it entirely through.
The fiscal year 2015 CJS appropriation bill included $41
million for just the first point of the backlog in police
evidence rooms, and I am hopeful that will continue to program
in fiscal year 2016, and I am aware that this is outside your
purview, but I wanted you to know that we are committed to this
issue. Alameda County in my district has been out in front on
this issue and I encourage you and your staff to continue to
work with them on the pilot project that will focus on another
point of the backlog, that is the technical review by
government labs of a private lab's work upload to CODIS.
I would like to now turn to how the second point of the
backlog can be addressed. Namely, the implementation of rapid
DNA instruments in the police booking stations. And I am a firm
believer that having an arrestee sample tested quickly by a
rapid DNA instrument while that arrestee is still in the
booking environment, that will reduce the burden on government
labs, and I am hoping that you will be able to continue,
because I raised this issue last year, as well.
And I know that the FBI is supportive of rapid DNA
technology, but since last year's budget hearing, tell me about
what problems has been made to amend the law, protocols and
policies to allow the use of rapid DNA instruments in police
booking stations and once the relevant requirements have been
amended, what is your approximate timeline, assuming it has
been amended, for implementing the rapid DNA instruments in law
enforcement agencies booking stations?
COMBINED DNA INDEX SYSTEM--CODIS
Mr. Comey. Thank you, Mr. Honda, and thank you for your
continued focus on the rape kit backlog. There are rapists out
there who will victimize more women and the key to stopping
them sits on the shelves in a whole lot of police departments,
and so I appreciate your focus on that, and I promise that we
will remain focused on it, as well.
With respect to rapid DNA, you are right, we are big fans
of the idea of the capability being in booking rooms, that a
sample can be taken when someone is arrested and uploaded to
CODIS immediately. I have talked to my DNA experts. They have
continued to work with the companies--it is a private-company
enterprise, as you know, making these devices--to give them
guidance on what will be needed to make it able to connect to
our database in a way that preserves the sterling reputation of
our database.
My folks tell me there are all kinds of challenges around
making sure we have the right software and the right hardware
to connect the devices, but good progress is being made. They
think we are probably two to three years away, though, from
being at a place where this is a common feature, even in our
biggest cities. I understand that it does require legislative
authorization. I do not know exactly sitting here today where
that sits inside the Executive Branch. I think perhaps with the
Office of Management and Budget being looked at for privacy
reasons, but both are marching along at the same time, the
technical fix and the legislative fix; that is my understanding
today.
Mr. Honda. Okay. Because we have to understand that there
are 500,000 kits that have been used, 500,000 cases that are
being left without the great evidence that DNA will provide, so
victims and arrestees are at bay in order to get their justice,
and I think the quicker we move and be able to implement this,
then we can reduce these backlogs and have people really enjoy
the benefits of our technology, but also our rapid response to
justice.
Mr. Chairman, if I may just indulge with one quick
question? I just wanted to thank you very much for adding to
the FBI training manual, which will include the guidance, just
as law enforcement identifying and reporting hate crimes
directed at Sikhs, Arabs and Hindus, and I think that is going
to be able to produce a great deal of information. I do have a
concern, though, about the comment that you had made last month
on race policing. You said that it is ridiculous that I cannot
tell you how many people were shot by the police last week,
last month, last year. It may be taken out of context, but that
was the quote. So, as I understand it, currently, police
departments can on a voluntary basis, report incidents to the
data that the FBI keeps on justifiable homicide. This, however,
is problematic, according to one Justice Department
statistician who was quoted in a news article said that the
FBI's justifiable homicide and estimates from arrested-related
deaths both have significant limitations in terms of coverage
and reliability that are primarily due to agency participation
in regard to this issue.
Could you discuss what the situation is currently with
voluntarily reporting and what approaches we could take to get
better data on--since it is a very high level problem of public
notice.
JUSTIFIABLE HOMICIDE REPORTING
Mr. Comey. I agree very much, and it was not out of
context. I think it is ridiculous that I cannot tell you with
any confidence how many people were shot by the police in any
period of time--yesterday, last week, last year--because we do
not have uniform reporting that is universal. We have 17,000
police departments in the United States and they are not all
reporting to us violent encounters with suspects, so I do not
have any confidence in my data.
And what I meant was I think it is ridiculous that I can
tell you how many books were sold on Amazon and how many people
went to the hospital with the flu last week, but we do not have
data. So every conversation about police encounters with
citizens is, by definition, uninformed in this country, and
that is a crazy place to be.
It is a voluntary system and it requires the support of
local and state law enforcement, and so I am working with the
sheriffs and the chiefs who all agree with me, to give us this
data. What do you need for us to be able to help you give the
data? We are going to be talking to Congress I think more down
the road about are there incentives that Congress could offer
to have folks give us the data, but we are not in a good place
now, and it is one of the things I am trying to do, after the
speech I gave, to try and improve the records.
Mr. Honda. Perhaps through our good chairman, we might be
able to look at this and see if we can be of assistance to help
the FBI to acquire this information because voluntary reporting
of police shootings, it just does not seem to be acceptable,
essentially in today's environment and the kinds of things that
we know what is going on and what is not going on in our
country right now.
Mr. Culberson. We will explore that and also the level of
violence police officers encounter every day in their difficult
and dangerous work on our behalf.
Let me recognize the State of Mississippi and our newest
member, Mr. Palazzo.
Mr. Palazzo. Thank you, Mr. Chairman.
And before I get into questions, I would briefly like to
express my gratitude and appreciation to the Appropriations
Committee and the Members of Congress for allowing me to serve
in the seat of our friend and colleague Alan Nunnelee held. I
know everyone who knew him was heartbroken of his passing, and
although I do not believe his shoes can be filled, I hope to
serve this Committee with the best interests of the United
States in mind, just as our good friend Alan did for four
years.
With that said, Director Comey, I appreciate your being
here and I appreciate the sacrifices that your people and the
magic in your agency, as you so eloquently said, provides for
our security and protection here at home, and I am sorry for
your loss, too, as well as the three FBI agents. We, too, have
lost a U.S. Marshal, Josie Wells, in the past month, and he was
from south Mississippi, and it was in the line of duty and he
left a wife and unborn child to carry on his legacy. So we know
what you all sacrifice day in and day out and some of the best
people in the world serve in our law enforcement. I would like
to follow up real quick on something that Chairman Rogers
mentioned; he brought up China, and China is something from
Armed Services and Homeland Security, my former committees, as
always, have piqued my curiosity. They seem to be aggressively
building up their military and their space capabilities. And it
sounded--and I do not want to put words in your mouth--that we
know China, the government of China is involved in cyber
attacks on the American Government and American enterprise. And
so knowing that, and just indicting five individuals to kind of
expose them and shame them I do not think really works with
China, since it has the consent of their government.
So with that, how do we counter these cyber--what would you
recommend to us on how we counter these cyber threats, both
internally and externally? And I guess you can focus on China
or an unnamed country, if you do not want to pound on them; I
would just like to hear your thoughts.
CYBER INTRUSIONS
Mr. Comey. Thank you. And I should have said--I may have
misspoken--the three lives that were lost were police officers;
one state trooper and two police officers. I agree, it does not
make any difference, it is still great people lost in the line
of duty.
With respect to China or any nation/state actor that is
engaged in cyber intrusion activity in the United States, the
question about what can be done more broadly about them is one
that is both beyond the ken of the FBI and one that even if it
was the FBI's, we would not discuss it in an open forum. But
what we are trying to do is make sure--our responsibility is to
investigate cyber intrusions to the United States to make sure
that our government has a full understanding of who is doing
what so we can figure out, as a country, what to do about it.
One of the things that we have been involved in is bringing
criminal charges against some of those actors as part of a
toolbox approach to try and change behavior with the Chinese.
There are a lot of other things that are beyond the FBI, that I
know have gone on, diplomatic, for example, and it is part of a
lot of international forums, our government, I know, is working
to trying to adopt some norms to try to get the Chinese to go
along with them. But it is my function or the FBI's, to
understand what they are doing, develop the facts, and then
show our government, here is what we see.
Mr. Palazzo. And I understand the cyberthreat is real and I
think Congress and the American people are recognizing that it
is real and it is a clear and present danger. I hope that we
are doing everything that we can, as Members of Congress, to
provide your agency, as well as others with the resources to
counter this threat, because it is not just illegally
downloading music, but it is a huge fear that if they engage in
some form of cyber attack, that it could, you know, cripple our
critical infrastructure and the last thing I would want to see
is the lights go out and your ATM does not work, your
navigation on your car and your phone, I think it would cause a
huge amount of panic in our country. You also mentioned
something about the siren song of the radical Islamists and
these people you mentioned, we really do not see them, they are
not obvious to us in the large extent because they are in their
basements consuming this form of poison. Can you, for lack of a
better word, profile, what this person would be, and is there a
certain, you know, something about their demographics that make
them vulnerable to this poison? Because I agree with you that
it is a poison and we do not need our young--we do not need
anybody in America consuming it.
FOREIGN FIGHTER RECRUITMENT
Mr. Comey. In a way, I wish I could. That is one of the
challenges of this threat. When we talk about travelers, the
people that we know, who have gone to Syria to hook up with
ISIL, the ages range from 18 to 62. They are from any part of
the country, any background. They are or were raised in the
Islamic faith or are converts--but they may have all different
kinds of backgrounds, be in all different places in the United
States, consume this, and develop this view that this is how
they will find meaning in life. So the one common
characteristic they have, which unfortunately is not a great
marker for me finding them, is they are people who are troubled
souls seeking meaning in life. But there is not a poverty
marker, right? Some of them have jobs. They just have a
misguided sense that they need to participate in the
Apocalyptic battle. Some of them are kind of losers who have
had trouble with jobs or petty crimes. But there is not a
particular pattern. We have studied it pretty closely, very
closely, and searched for the pattern, but so far I cannot
offer you one.
Mr. Palazzo. Thank you, Director.
I yield back. Thank you, Mr. Chairman.
Mr. Culberson. Following up very briefly on Mr. Palazzo's
point about China. A back door, a Trojan horse, can be created
into a computer system either with a piece of software that you
might be able to detect, or it can be hardwired into a computer
device, a computer chip, or a piece of telecommunications
equipment as a piece of hardware, and it is invisible, and you
cannot see it.
And the problem is so bad with the Chinese in general, and
Huawei in particular, and these Chinese owned companies, that
the Australian government actually just prohibited the purchase
of any Huawei telecommunications equipment by any governmental
entity in Australia.
Let me recognize at this time, Mr. Aderholt, and the State
of Alabama.
Mr. Aderholt. Thank you. Mr. Chairman, it is good to be
here today and for this hearing. Thank you for mentioning what
we do down in Alabama. We appreciate the way to mention
Huntsville and also Birmingham.
I met with the folks, some of the folks, from the
Birmingham facility just recently and one of things that we
talked about, and they had mentioned to me was that the new
iPhone, the new iPhone 6s, have an encryption in it that you
cannot get into the--they are encrypted and there is no back
door key.
And just wanted to know what--and, of course, this is
different from their predecessors, the other phones you were
able to get into--what is your--or what is the FBI's position
on Apple and Google's decision both to encrypt these smart
phones?
SMARTPHONE ENCRYPTION
Mr. Comey. We have a huge problem for law enforcement--
state, local, and federal--and in national security work. We
have court process, where judges issue search warrants or
interception orders, and we are unable to execute on those
orders because the device is locked or the communications are
encrypted. And so we are drifting to a place where a whole lot
of people are going to look at us with tears in their eyes and
say, what do you mean you cannot? My daughter is missing, you
have her phone, what do you mean you cannot tell me who she was
texting with before she disappeared.
You know, I keep saying to folks, this is a democracy, we
should never drift; maybe that is where we want to go, but I
think we need to have a conversation in this country about
where we are going. I do not want back doors, right? I want,
with court process, the ability to gather evidence after I have
shown probable cause to believe on that device there is
evidence of a crime. The Fourth Amendment is clearly in play,
and I follow it, and I get authority. We need to discuss if we
are going to go to a place where we cannot get access.
So it is a huge feature. Sheriffs and chiefs raise it with
me everywhere in the country and say, these are important in
domestic violence cases, child exploitation cases, car wrecks,
and I do not know exactly what the answer is, but it is
something we have to talk about.
Mr. Aderholt. So, you know, you mention about the mother
shows you the phone and say you cannot get into it, what
programs had it affected and can you just let us know the
damage that it has done to the FBI?
Mr. Comey. Yeah, we have encountered it in drug cases, all
of our work we have encountered it. I am not in a position
where I can sort of offer a percentage or a number, but it is a
feature now, an obstacle, in a huge percentage of our criminal
investigations and it will only become worse. You know, I have
heard tech executives say, privacy should be the paramount
virtue.
When I hear that I close my eyes and say, try to imagine
what that world looks like, where pedophiles cannot been seen,
kidnappers cannot be seen, drug dealers cannot be seen. So I do
not have a number I can express it as, but I hear it, as you
have heard it from the folks in Birmingham, I hear it all over
the country. We are drifting to a place and not talking about
it.
Mr. Aderholt. Do you need additional resources to work on
this, or what can we, as this committee, do or as Congress do
to try to help you with this?
Mr. Comey. I think one of the things that the
Administration is working on right now is, what would a
legislative response look like that would allow us, again, not
in a sneaky way but with court process, to be able to get
access to the evidence. And it is complicated because it
involves both communications carriers and device makers. I
think ultimately it is going to require some sort of
legislative fix that if you want to do business in this
country, we are about the rule of law, but we do not want to
create spaces that are beyond the reach of the law in the
United States, right.
There is no safe deposit box that cannot be opened with
authority, there is no car trunk that cannot be opened with
authority. We are getting to a place where there are these huge
spaces that are beyond the reach of court authority and I think
it is going to take a legislative fix.
Mr. Aderholt. So if I understand you, it is really not a
matter of resources, it is really just a legislative fix
overall that really that this needs to be dealt with.
Mr. Comey. I think that is right. I think we, as a
democracy, need to figure out so what are the trade offs
associated with the privacy interests, and what are the public
safety interests, and how do we reconcile them? It is really,
really hard, but it is not splitting the atom. I mean, we do
hard stuff and I just think it is a conversation that we have
to have.
Mr. Aderholt. Okay. Thank you. Thank you, Mr. Chairman.
Mr. Culberson. Chairman Aderholt asked a great question.
Also, I would love for you to talk to us, very briefly, about
that court case before the Supreme Court recently where the
phone was seized in a part of a routine police arrest, and the
police picked up the phone, and looked at it, and the guy said,
``You can't look at it.'' Talk to us a little bit about that
case and what, if anything, we could do, for example, cannot
Apple see what is on here under a court order? Could you not
get it from Apple?
Mr. Comey. No, the iPhone 6 is designed so that Apple is
unable to unlock it. So it becomes the safe deposit box with no
second key. The bank cannot get into it, a judge cannot order
access to it, so it is very, very----
Mr. Aderholt. Let me add there, if I understand it was
Apple voluntarily made this decision to fix it so the user is
able to lock it and they are not able to unlock it.
Mr. Comey. That is correct. And Apple--I am not trying to
pick on the folks at Apple or Google--their view is they are
responding to competitive pressures. People want to have a zone
of privacy, and so do I, but to have a zone of privacy that is
outside the reach of the law is very concerning.
But, Mr. Chairman, with respect to the court case, the
FBI--our practice has always been to get search warrants for
devices. That makes good sense to me, especially given that I
do not have a phone with me, but all of our lives are there. It
is no longer just a phone, it is a suitcase that is carrying
your kids pictures, and your documents, and so it was good
sense to me in the Supreme Court's reasoning that this is
different than it used to be.
And so it should have Fourth Amendment implications, and
that is the way we treat it. If I want to look at your phone,
without your consent, I will go to a judge, make a showing of
probable cause, get a court order, and, if I can get the phone
open, then look at it. The challenge is on our side is our
inability to access it even with a court order.
Mr. Aderholt. Great question. If I could follow up one more
question. Has there been any, that you heard of, there is a
rumor that Apple has made an agreement with China about this as
a pre-condition to selling their phones there.
Mr. Comey. Yeah, I do not know anything about that.
Mr. Culberson. Thank you. Judge Carter has dealt with this
quite a bit as a District Court judge and----
Mr. Fattah. Mr. Chairman.
Mr. Culberson [continuing]. I'd like to turn to our
colleague from Texas, Chairman Carter.
Mr. Fattah. Mister Chairman, You know, there is a way
forward, right? So if life or liberty is in jeopardy and my
daughter is missing, I want you to get into the phone. If it is
a battle that doesn't involve life or liberty, I am interested
in what the fathers have to say about right to privacy and the
protections of people's personal papers and so on.
So you can find our way forward and I think that the
Director is correct that there may need to be a legislative
activity that kind of, because the people we represent have
some interest in privacy, and which is why these companies are
trying to produce a product that gives them that privacy, but
we also need to protect public safety. So if there is a
terrorist who has got a bomb, and you need to track where they
are via their a cell phone, we want them to be able to do it.
So, you know, we have to find the wisdom of Solomon which
is why it is good that the Judge is up next.
Mr. Carter. You will never get away from me that way. I am
Chairman of Homeland Security appropriations and serve on the
defense and the defense subcommittees, so we have all the
national defense issues with cyber and now serve on this
wonderful committee, and so cyber is just pounding me from
every direction. So every time I hear someone say that it pops
into my head. Because I don't know anything about this stuff.
If they can do that to your cellphone, why can't they do it
to every computer in the country and nobody can get into it?
Voice. Logical----
Mr. Carter. If that is the case then there is a solution to
that to the invaders from around the world that are trying to
get in here. You know, if that gets to be the scope, the law,
and even the law cannot penetrate it, then are we not creating
an instrument that is the perfect tool for lawlessness?
This is a very interesting conundrum that is developing in
the law. If they, at their own will at Microsoft should put
something on a computer, or at Apple can put something in that
computer, which is what it is, to where nobody but that owner
can open it, then why can't they put it in the big giant
supercomputers, that nobody but that owner can open it?
And everything gets locked away secretly. And that sounds
like a solution to this great cyber attack problem we have got.
But in turn it allows those who would do harm, to have a great
tool to do harm where a law enforcement cannot reach it. This
is a problem that has got to be solved.
And if you are following the Bill of Rights, you have every
right to be able to go before a judge, present your probable
cause, and (indiscernible) get into that machine. And I do not
think there is a right of privacy issue at all that prevents
you following the law to do it.
And so if that is what they have created, they have created
a monster that will harm law enforcement, national security,
and anything else in this country, and this really needs to be
addressed. And I would not have even talked about that, but
that upsets the heck out of me, because I do not think that is
right. Thank you.
Mr. Culberson. Judge, if I could ask you about--and
Director Comey, you can pitch in--if you had a case in front of
you where you had evidence that there was evidence of a crime
in a safe that was locked and only the owner had the
combination to the safe, how would you handle that?
Mr. Carter. I think I would probably--if anybody had an
affidavit of probable cause, and if I found that they got
probable cause, I would issue--give them the right to make the
search. And if they made it search proof, then--and you cannot,
even the guy that created the monster cannot get in there, that
is bad policy.
Mr. Comey. There is no safe like that in the world.
Mr. Culberson. Yeah, you can crack the safe, right? You
just get a court order, you go crack the safe.
Mr. Carter. Sir, but if you cannot crack the safe--
Mr. Culberson. Right.
Mr. Carter [continuing]. Which is what they have created
here, that is a real crisis.
Mr. Culberson. The analogy seems valid, doesn't it? It is
like a safe that is locked up they are holding evidence of a
crime.
Mr. Carter. On our issues of privacy, those issues of
privacy are protected by the Bill of Rights.
Mr. Culberson. Yeah, it is a great question.
Mr. Honda. Mr. Chairman?
Mr. Fattah. I knew we would find wisdom from the Judge.
Mr. Honda. The question I would ask them, and distinction I
would ask through the Chair, to the Administrator is this. Then
you get a court order, the court order would be a court order
for hardline, you can get a court order for tapping the line.
Under FISA we can now get a court order to tap into information
that is used with a digital phone.
Accessing information on a digital phone that has what we
might want to call our intelligence also, accessing that would
be like accessing a person under oath giving any information
they may have inside of them. And so we may have to look at the
kind of legislation that equates that with, you know, our
intelligence and transacts as our own privacy. So there would
be a sanction if we lie under oath. And if we have a choice now
of opening up our own phone, and even the company cannot do
that, they were--you know, I would just try to make a
distinction between----
Mr. Carter. I am yielding my time, go ahead and talk, he is
a nice guy.
Mr. Honda. Thank you, Judge. I am trying to make a
distinction between the kinds of laws that we write or we
author. In one set of technology, when we are looking at
artificial intelligence, and we are looking at another kind of
technology, where we can make safe our own information,
accessing that is going to have to have another kind of--
another level of thought like we had to do with accessing and
tapping into technology.
A safe is, you know, a safe is still the old technology, I
think----
Mr. Culberson. I think the (indiscernible) is legal issue
in a situation that is based----
Mr. Honda. If you have access to a phone that the
individual who bought it can open up, then you can--you could
have certain kinds of force of law that would require them to
be able to testify.
Mr. Culberson. It is an interesting question, I do not mean
to--forgive us, Judge, we----
Mr. Honda. I just wanted to raise that. Thank you, Judge.
Mr. Culberson. It is a really interesting conversation that
Chairman Aderholt started here and I am glad to get the Judge's
wisdom on this.
Mr. Carter. I have another question I wanted to ask you
last time we were here, you said one of things you were
concerned about is am I going to be able to get the--in the
workforce the quantity of people that I need in this cyber war
that we are facing.
How are you doing in being able to recruit the intelligent
workforce that it takes to go off in this spatial area of
national security and crime? How effective have you been since
our last conversation? It is one of the things you expressed
the last time we were here and I wanted to give you a chance to
say how effective you have been and what can we do to make you
more effective?
RECRUITING CYBER PERSONNEL
Mr. Comey. Thanks, Judge. Pretty good, but it is too early
for me to give you a high confidence read. I have just been
climbing out of my gap--my hole from sequestration, so we have
been hiring lots and lots of people. So far so good, and they
are staying. Because once you get to do public service it
becomes addictive even if other companies are throwing a lot of
dough at you.
So my cyber division attrition rates are very low. Folks
are getting in and realizing it is fun to do good for a living.
But it is early, I do not want to sound over-confident. We
should talk again in a year when I have a full two years of
data on my side.
Mr. Carter. Well, I mean this is not an issue you got, but
what else you can in what it is you do. And one of the
questions that has come up for us to discuss is what other
opportunities to contract with these people who are--have these
(indiscernible) that all they do is this kind of work and maybe
is that something that Government can do effectively and safely
protecting government's interests and sub-contract some of the
work to the great computer wizards of our world? That is
something we need to be thinking about.
And now, we're looking now, at Homeland Security, is
whether or not that is a safe, appropriate thing to do, to sub-
contract. So that is something you might think about. Because
there is a lot of--I was in a room full of these smart people
yesterday morning for breakfast, and they--I understood about
every fifth word. Thank you.
Mr. Culberson. Thank you, Judge. It is complicated so it is
an incredibly complex universe of computer out there.
Now I recognize the State of Washington, Ms. Herrera
Beutler.
Ms. Herrera Beutler. Thank you. And I have three pieces
here, and I am going to make them as brief as possible, I
appreciate your time.
I am going to start with--I am going to start on a
different track and kind of come back to cyber, because, you
know, why not mix it up? Actually, this does have a relation.
In your submitted testimony you mentioned the Internet
facilitated sexual exploitation of children as an evolving
threat that your agency is faced with. And as you know, there
are thousands of children every year, through sites like
backpage.com and other Internet sites, that are sold.
Backpage and other sites have acknowledged the existence of
prostitution and sexual exploitation, and of minors on their
sites and these sites are accomplices of basically promoting
prostitution and exploitation of minors. I want to know where
the FBI--has the FBI prosecuted any of these companies for
knowingly permitting the exploitation of girls and young women
on their sites?
EXPLOITATION OF CHILDREN ON THE INTERNET
Mr. Comey. It is a great question and a really important
question because you are right, we are seeing an explosion of
the abuse of kids through the Internet and the selling of kids
through the Internet.
The answer is yes. We have prosecuted the people behind an
outfit, I think, called Redbook, that was in California. We
locked up the proprietor of it, running it, one of these
backpage.com outfits, and that shut down the site. We may have
taken civil action to shut down the site. So, yes, we have.
Ms. Herrera Beutler. Follow up, since the online
facilitated sexual exploitation of children is an evolving and
prioritized threat, help me understand your allocation to that
area of investigations. And how does the Internet Crimes
Against Children Program fund fit into that?
Mr. Comey. Yeah, we have task forces that focus on this, I
am going to forget the number, but it is more than my number of
field offices, so we have two in some places. We do this in
every field office, we do an operation that I hope you have
heard of called Operation Cross Country, where we work with
State and local partners. It connects to this cyber stuff
because a lot of the ways in which we find the people looking
to exploit kids is through those advertisements, where we try
to take down, in a swoop, a bunch of these people, rescue the
kids, and lock up--I hate the word pimp, because it almost
sounds like some sort of '70s comedy thing, these are slavers--
we lock up the slavers, and to try and send a powerful message.
So I do not know the second part, I will have to get back
to you on the second part of your question, where the funds--
the Internet Crimes Against Children fund fits in, but I am
sure I can find out quickly.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Herrera Beutler. And I am glad you mentioned that piece
on Operation Cross Country because I think the demand side, you
know, a lot of the work we have been trying to do, even at a
State level, is changing the perception. So first of all, we
have been much more successful here federally. These are
victims.
We are talking about young children who have been brought
into this slavery, this form of slavery, trafficked and
exploited, and what we have--now we are turning our eyes to how
do we beat the demand? How are these people prosecuted?
There is nothing more frustrating than knowing a 17 or 16
year old girl who has been prostituted is the one that faces
the criminal penalty and a John walks free. It makes me--it is
infuriating to me. So you are focused on the demand side, both
these portals that these criminals are using, and I agree pimp
has almost been romanticized in some areas, which is pathetic,
but these Johns, these slavers, need to be the focus.
And, too, I think you said name and shame, that is another
area and a place. I mean, some of the people who are buying
these children are people that, at times, are amongst us.
Switching, and this is an area where we are going to
continue to focus, so we may continue and follow up with your
staff and your team.
Cyber, this is my last question. Premera Blue Cross in
Washington State had a real serious cyber attack last May, but
the company did not discover the breach until January of this
year. And then upon the advice of the FBI, and a cyber security
firm, the company waited until March 17th to provide
notification of the attack.
According to the information we have received to date,
about 11 million customers nationwide and about 6 million in
Washington State, including my constituents, may have been
compromised. So I guess I want to hear why would the FBI
recommend they wait to make that information public when we are
talking about names, addresses, telephone numbers, Social
Security numbers, and in some cases medical history, banking
data, so on and so forth?
Mr. Comey. Yeah, thank you for that. I do not know the
facts enough to know whether it was January to March at our
request, but we do sometimes ask companies to hold off for a
little while so we do not alert the bad guys. Because as soon
as it becomes public, whoever was doing it goes to ground.
Ms. Herrera Beutler. I would assume that is a 24 hour or a
2 day--I mean, the way we--from some of our previous briefings
that we have had with cyber security division, that is not a
two month window, because if it is we are not doing something
right.
Mr. Comey. Yeah, I do not--the two month window seems odd
to me, but it is more than a 24 hour period because often it is
a search for the ground zero computer, to see if we can find
where the digital dust is from and where the bad guys entered.
And in a huge company, sometimes that takes more than just a 24
hour period. But two months I do not fully understand, so I
will get smarter about that.
Ms. Herrera Beutler. I have another follow-up on that
because that greatly concerns me.
Mr. Comey. Yep.
Ms. Herrera Beutler. Thank you. I yield back.
Mr. Culberson. Thank you very much. Mrs. Roby, you are
now----
Ms. Roby. Thank you for being here today. And sitting here
listening to these discussions all over the place.
I have an almost 10 year old and a 6 year old. And the
thought of one of my children going missing, and you are not
able to do anything about it because of what we already
discussed, is terrifying. But I can say this, thank you for the
work that you do for our country, and I just appreciate the
challenges that you have.
I am new to the subcommittee, so I too am not an expert in
cyber security by any stretch and it is like going to school
everyday to learn more about what you do and the challenges
that you face.
I was in Huntsville, I know you touched on, with Mr.
Aderholt, about Birmingham and I know you mentioned Huntsville
when I was not here. But it was great to be at the new TEDAC
facility and, of course, by delivering furniture. I mean, it
was not completed, there is no bodies there yet, they needed
some of the equipment. But it is fascinating, it was
fascinating for me to learn about what they are doing. This is
the terrorist's explosive device in (indiscernible), and I also
had the chance to stop by the hazardous devices school while I
was there, which was great as well, where they train local law
enforcement.
So I guess what I wanted to talk to you about was sort of
the things that they mentioned as challenge was personnel
recruitment because just nationally it is difficult to find
individuals that have the expertise to be able to do this type
of analysis on IEDs and so I just wanted to talk about your
budget requests, and where you see any shortfalls in personnel
for this new facility, and, you know, how we can make this
vital center a reality.
TERRORIST EXPLOSIVE DEVICE ANALYTICAL CENTER--TEDAC
Mr. Comey. Thank you so much for that. And I too visited
there within the last eight weeks, I forget when I was there,
and they were just--I could smell the fresh paint and----
Ms. Roby. Right. Right.
Mr. Comey [continuing]. It is very exciting, because it
will make a big difference. It will save lives. That place will
literally save lives.
The answer is I think we are doing okay in terms of
recruiting and hiring back. We were down many, many, many
vacancy slots in the FBI as a result of sequestration. We hired
about 2,400 people last year. I am trying to hire 3,000 this
year. And then my budget request this year is just simply about
being able to sustain that, to hire those folks then be able to
keep them on the job.
I do not think I am going to have a problem staffing TEDAC.
I am going to transfer people, and I actually went down and met
with our staff at Quantico and said, ``Wait 'til you visit
Huntsville.'' You'll think, ``I do not want to be sent to
Huntsville, wait 'til I try and get you out of Huntsville in
about two years.''
So I do not think we are going to have a problem, I think
the committee has supported us well enough, and--it sounds like
a corny thing to say--I am lucky enough that the FBI has,
justifiably, a very strong identity in American life. So people
want to work for the FBI and they want to do the kind of work
we are doing in Huntsville. Folks are banging down the door.
I advertise for Special Agents, and I get 20,000
applications in two weeks. And so I think we are going to be
okay there.
HAZARDOUS DEVICES SCHOOL--HDS
Ms. Roby. And that is great to hear. Talking about the
hazardous devices school, I forget what they call it, but the
staging areas----
Mr. Comey. The villages.
Ms. Roby. The villages, yeah, yeah, yeah.
Mr. Comey. We blow stuff up in the village.
Ms. Roby. Right. And we are willing to expand that. Can you
just--I mean it is an expensive, expensive school to operate
because of what you are doing, but--and the equipment that they
use. So if you can just talk about that a little bit.
Mr. Comey. There is such a demand for that. Again, that is,
as you said, where we, the FBI, train all State and local bomb
techs in the United States. There are thousands of bomb
technicians in the United States, they are all certified, and
they have been trained at the Hazardous Devices School.
To be trained effectively, though, you need to work on
buildings that have a real feel to them, that is what the
villages are. There is a church, there is a little supermarket,
things like that you can practice in.
Ms. Roby. They also put the church next to the liquor
store.
Mr. Comey. Is it? They just showed me the church, they did
not show me the liquor store.
Ms. Roby. Well, they tried to say it was like Alabama, I
was not going to accept that, so. Okay.
Mr. Comey. But thanks to the support of this Committee and
on the Senate side, Senator Shelby's Committee, we have gotten
the funding, I forget the number, but to build a number of
additional villages, which will really help us. How many
additional villages?
Voice. Six.
Mr. Comey. Six additional villages. And people should not
think that is a whole new town, it is just a little cluster of
buildings. That will enable us to meet the demand.
The military, as it is downsizing, is shrinking its
commitment to the Hazardous Devices School, and so we are using
again the support we have gotten from Congress to try to make
sure that we staff up to make sure that we have a net, that we
stay the same. And I think we are going to be okay there was
the verdict I got when I was there.
Ms. Roby. Okay, great. Well, again, thank you for the
important work that you do, and everybody that is with you on
your team, we appreciate your commitment to our country and our
safety. Thank you.
Mr. Culberson. Thank you, Mrs. Roby. I wanted, if I could,
to follow up on one of the questions that Chairman Rogers
brought up about foreign fighters. Director Comey, at--we have
seen estimates there are as many as 20,000 traveled from 90
different countries to fight in Syria, and we have heard
reports there is about 150 Americans that have traveled to
Syria and Iraq to fight with ISIS or other terrorist groups.
And could you talk to the committee--and I recognize this
is an unclassified setting--about your ability to be able to
identify and keep track of these folks and the Americans that
may be traveling over there. And what can this subcommittee do
to help you deal with that threat?
FOREIGN FIGHTERS
Mr. Comey. Yeah, thank you, Mr. Chairman. It is a big piece
of our work and it is enormously challenging.
The number of 150 is the approximate number of Americans
who have traveled to Syria in connection with the conflict.
Some have gone for humanitarian reasons, some have gone to
associate with ISIS, some have gone to associate with the Nusra
front or other groups.
So one of our challenges is even with those we identified,
try to understand, so what are they doing there? Because not
everybody who has gone there went there to be a terrorist, but
we treat them all like they are, and we cover them like a
blanket when they come back 'til we understand it.
Our challenge is trying to make sure that with our partners
in the Intelligence Community, and our foreign partners, we
have the tripwires in place to spot Americans who might be, not
just going towards that area of the world, but heading towards
Syria. This is hard because there are thousands and thousands
of Americans every day that fly towards, the Mediterranean
Turkey for all manner of good reasons. So we need the help of
our partners in the Intelligence Community and our foreign
partners to spot those who might transit Turkey. The Turks have
been a big help to us there, and that relationship has gotten
increasingly better.
And then here at home, our challenge, to come back to State
and local law enforcement is, I am not highly confident that
150 is 150 of 175, I am only missing 25, or 150 of 300, I just
do not know because, again, it is so difficult in a wonderful
free country like ours to know who might be traveling with that
purpose.
So that is where it comes into the research we do online to
spot them and our relationship with state and local law
enforcement.
Mr. Culberson. Well, also, we have the benefit of having
Judge Carter, Chairman of Homeland Security, with us, talk to
us about in particular, Judge Carter, how is TSA and Homeland
Security doing? How are they working with you and making sure
they identify and flag these folks?
Mr. Comey. Yeah, we have got a great partner in----
Mr. Culberson. What recommendations would you make to the
Chairman about anything Homeland needs to be doing?
DEPARTMENT OF HOMELAND SECURITY
Mr. Comey. I think we are in a good place, Judge, with
respect to CBP. They are our key partner here. They are on our
Joint Terrorism Task Forces. They are on our National Joint
Terrorism Task Force. Because we all recognize that they have
the eyes at the border, outbound and inbound, and so we are
lashed up with them very, very closely.
One of the lessons of the Boston Marathon bombing was, we
needed to make sure that we were even more effective in working
with them. The TSA has a great relationship, but the key
partner on this traveler bit, it turns out to be CBP. And I do
not have a recommendation for improvement on that right now.
Mr. Culberson. Well, but, my understanding, Judge, is
that--and Director--that the United States does not have the
ability to track visas. If they overstay their visa, we are not
doing a good job, Judge--and correct me if I'm wrong--on
tracking these guys once they are in the country. We do not
know exactly when they----
Mr. Carter. We do not have an exit policy right now. So if
they overstay a visa, they can know they are overstaying, but
they do not know if they have left or not. So that is a real
problem.
Mr. Culberson. That is why I was asking the question,
Director.
Mr. Carter. But that is not really where he is coming from.
Working together, I think there is a good working relationship
between the agencies and the FBI and others. Our guys are doing
a pretty decent job on the law enforcement side of it. The
(indiscernible)--yeah, we need an exit policy, but it is going
to cost--you can start counting in billions of dollars when we
start doing it. And that is one of the problems we have got in
this particular environment we are living in right now.
Mr. Culberson. But you can spot them when they leave the
country if you flag their visa. If you got a reason to track
somebody, you think they might be a problem, they leave the
country or enter the country, Homeland Security is able to
share that information?
Mr. Carter. Well, we do not have an exit policy right now.
We do not know.
Mr. Comey. But if we have an interest in someone, we share
that with CBP----
Mr. Carter. Yeah, then we are tracking----
Mr. Comey [continuing]. Systems----
Mr. Carter [continuing]. Individuals.
Mr. Comey. And a flag goes up.
Mr. Carter. Yeah.
Mr. Culberson. That is what I am wondering.
Mr. Comey. Yeah. That is working pretty well.
Mr. Carter. Now, then if we are tracking individuals, we do
that every day.
Mr. Culberson. Sure. Yeah.
Mr. Carter. But just an average Joe that flies over the,
you know, a plane for a vacation, if he stays----
Mr. Culberson. Right. Or overstays.
Mr. Carter [continuing]. We don't know when he is going to
leave. He could have left. He did not--we do not necessarily
know----
Mr. Comey. Yeah.
Mr. Carter [continuing]. Whether he left or did not leave.
Mr. Comey. Yeah.
Mr. Culberson. We have--I know, also, the Patriot Act
coming up for renewal here at the end of May, will expire. And
I wanted to--because our constituents are rightly, as Mr.
Fattah said, all of us have an interest in protecting the
privacy of law-abiding Americans, as I know you do as well. And
remembering Benjamin Franklin's admonition that those who would
trade a little liberty for a little safety will soon wind up
with neither. And that is an important lesson for us all to
remember.
Could you talk to us about, and also the Americans watching
today, the protections that The Patriot Act builds into the
privacy, of making sure that the privacy of law-abiding
Americans is protected, and the thresholds that you have got to
cross in order to get a court order or access to people's phone
records or their conversations and that suitcase that we all
have with us.
PATRIOT ACT
Mr. Comey. Yep, thank you, Mr. Chairman. I----
Mr. Culberson. And how important The Patriot Act is to you.
Mr. Comey. Well, I tell a lot of folks when I talk about
this in public, Americans should be skeptical of government
power. The country was built by people who were. I tell my
British friends it is because of you people that we built it
the way we built it, to set interest against interest. Because
you cannot trust people in power. And so I tell folks, ``Look,
I am a nice person. I am an honest person. You should not trust
me.''
Mr. Culberson. Texans can relate to that, so----
Mr. Comey. Yeah. You should want to know how is the design
of the founders alive in my life? And so The Patriot Act is a
great example. If we want to get someone's business records
using our authority under Section 215, we have to go to a
federal judge and get that authority. And then we have to make
a regular report to Congress about how we are using Section
215, and we discuss it in oversight hearings repeatedly.
So the Executive Branch, the Judicial Branch, and the
Legislative are working together, and then my work on 215 and
all of our Patriot Act authorities is audited by an Inspector
General on a regular basis, who reports to Congress. So that is
great. I mean, that is burdensome, but that is the way it
should be. And so there are judges. There is oversight in every
piece of the work we do.
The reason that the Patriot Act authorities matter so much,
especially the two that I will mention. Section 215 is the
authority that allows us in our national security
investigations to go to judges and get authority to get
documents or tangible things or records. If that expires and we
lose that authority, we will have a gap in our ability to
respond to spies and terrorists that I cannot fill with grand
jury subpoenas or some other manner or process. That is very,
very worrisome. That is a part of The Patriot Act we do not
talk about very much.
And the second I will mention is roving wiretaps. In
criminal cases, if a drug dealer is swapping phones as they
frequently do, a judge can issue an order that allows us to
follow the person, so we do not lose him when he switches
phones. The Patriot Act gave us that authority when we are
fighting spies and terrorists. I think people would want us to
have the same authority in spy and terrorism cases that we have
in criminal cases. But, again, it involves the authority of a
judge, where we have to make a showing to the judge or probable
cause, written affidavits; it is all overseen by the courts.
So I think those are sensible things. The challenge is it
just took me two minutes to explain it, and often people just
sort of nod and say, ``It is terrible what The Patriot Act has
done.'' I hope folks do not do that.
Mr. Culberson. And also important for people to remember,
too, that Mr. Snowden is no hero.
Mr. Comey. Yeah.
Mr. Culberson. Can you talk a little bit about in an open
setting why people should not think that what he did, and of
him, as a hero?
SNOWDEN
Mr. Comey. Now, I do not want to say too much, because I
hope Mr. Snowden will realize that the greatest country in the
world has the fullest and freest criminal justice system in the
world. And he will avail himself for the rights and
opportunities of being able to defend himself in our criminal
justice system, and he will leave Russia and come back here. I
want him to get a fair trial, so I do not want to dump on him
too much.
I guess what I would say is, those who want to describe
someone like that as a hero, need to take the corpus of his
work and hug the whole thing.
Mr. Culberson. I remember he carried out, what, how many
laptops?
Mr. Comey. A lot of records. And so you need to take a look
at the entire damage to our ability to track terrorists, to
track spies, all of the work--the whole corpus of work has to
be looked at together.
Mr. Culberson. Exactly. Thank you for the extra time,
Members. Mr. Fattah.
Mr. Fattah. Thank you, Mr. Chairman. So your budget is
inside of a Bill. You know, the Bill has got a number on it.
But the DOJ portion thereof, you know, you're seeking $8
billion dollars. We have another part of this budget that has
been growing exponentially. It has moved from $1 billion to $7
billion. It is the federal prison budget.
And it is a big concern, because the federal prison system
is gobbling up this budget that this Committee has discretion
over. And there is a sense that the country incarcerates people
that do not need to be incarcerated. In fact, we incarcerate
more people than any other country in the world.
And so we set up a commission that has got two former
members leading it--J.C. Watts out of Oklahoma and Alan
Mollohan out of West Virginia. We put some experts on it,
including the head of corrections from the State of
Pennsylvania, which I think was a very wise choice. And they
are looking at what it is that we might be doing about
something that we kind of call Justice Reinvestment. You know,
what can we do to move away from things that are not working,
this over-emphasis on incarceration and to move in some other
direction. And there is some states--Texas has been at the very
forefront actually--looking at some very aggressive activities
particularly in terms of their juvenile system and not
incarcerating so many young people.
So I would be very interested in your view about who the
country, you know, that somebody said here, I can't remember
who, you know, ``People who have done something we don't like,
we shouldn't put in jail. The people we fear and can do us
harm, you should put in jail.'' And I would be interested, as
the lead law enforcement official in the country, what your
view is about this problem and what we should do about it?
INCARCERATION
Mr. Comey. Yeah, thank you, Mr. Fattah. It is something I
spent a lot of my life thinking about. And I am still not sure
I am expert enough to be useful to you, but here is my take on
it. I think we can always be smarter about how we incarcerate,
how we use the coercive aspects of the criminal justice system.
I also think we can be a whole lot better at preparing people
to re-enter society. That is something I think we as a country
have done a very poor job of.
But I also want to make sure that if I am involved in an
effort like that, that I am thoughtful about what connection,
if any, there is between the incarceration rate and the fact
that we have historical low levels of crime. I would not want
to do anything--and I am not saying people are--but we do not
want to do anything where we say 20 years from now, ``Gees, we
really got that one wrong,'' because we had achieved a level of
reduction that was unprecedented. So I would want to be
thoughtful about that. A lot of people smarter than I should
think about that.
And the second thing is I want to be data driven. I would
want to know who are the people who are in jail in federal
prison and why are they there and what are the risks associated
with them? Because the reason I say that is, oftentimes I hear
people talk about the low-level, non-violent drug offenders in
federal prison. I have never put anyone there by that
description. And I cannot find a whole lot of federal
prosecutors who say, ``Yeah, I prosecuted a low-level, non-
violent drug offender.'' And so there may be a lot of folks
like that, but I would want to make sure that the data is
scrubbed.
But other than that, I am agnostic. I am not a ideological
person. I want to be effective.
Mr. Fattah. Well, this is almost an equal part of our
budget to what your request is now. And at one point, it was,
you know, at $1 billion. The number of inmates actually has, as
the crime rate nationwide, the number of inmates have been
going down, and the crime rate is going down. A lot of that
actually is happening at the state level, though, not
necessarily where we are.
And but, let me move onto a different subject, but the
Committee would be interested in your thoughts as we go through
this process and as the recommendations from the Colson Group
comes back. I am sure the Chairman would be interested in your
thoughts.
So Sandy Hook took place a little while ago, but it was a
tragedy. And they are, you know, every year not just the loss
of a police officer, there are literally, I mean, thousands and
thousands of Americans just being shot and killed. And the
access to firearms, which the Supreme Court has said, you know,
people have a constitutional right to, and that is the law of
our land.
As a law enforcement official, how do you, and we, Todd
Jones is now leaving as the head of the, you know, one of your
sister agencies. What is your thought about what we should be
doing, or thinking about, as a nationwide, vis-a-vis, the
question of firearms?
FIREARMS
Mr. Comey. Another big, hard question. Probably all aspects
of that are beyond my expertise and my authority, except for
one piece. I spent a lot of my life as a prosecutor trying to
make sure that criminals were deathly afraid of getting caught
with a gun. And that if a criminal is caught, obviously,
committing a crime with a gun or just possessing it, there is
severe, severe consequences.
I have long believed that most homicides are happenstance
homicides. What would otherwise be a fist fight or a rock
fight, becomes a shootout because the gun is an article of
clothing. It is there in the waistband. The felon has it there
or the drug dealer has it there. And that if we can make the
criminal--criminals are very good at rational calculation--fear
that as an article of clothing, then we will have more fist
fights, more rock fights, maybe more stabbings. We will have
fewer shootings.
So in Richmond, Virginia, we did an effort to really try
and drive into the criminal mind that you should think more
about your gun than about your socks and your shoes when you
get dressed to go out and deal drugs or hang on the street
corner. And I think that is very, very effective.
And so I am a big supporter--not a big part of the FBI's
work--of maniacal enforcement of felon-in-possession, drug-
dealer-in-possession crimes like that. Because there is no
excuse for a criminal to have one. None.
Mr. Fattah. And one last question, Mr. Chairman. There have
been a lot of debate here on the Hill about prosecution of
people that you have locked up as terrorists in Article 3
courts. As best as I can tell, there have been no incidents.
There have been no issues. These prosecutions have proceeded
during the normal course and justice has been served. Is that
your sense of this? Is there some--I mean, because we have this
debate. The Administration wants to close Guantanamo and get
out of the business of incarcerating people without a trial
and, you know, just incarcerating without having any due
process, because they think it is a problem for our country
internationally. Is there any concern you have about the
ability of our court systems to handle these cases?
Mr. Culberson. But distinguishing--I know as Mr. Fattah
would--between foreign nationals captured on a battlefield
overseas versus an American citizen.
Mr. Comey. Well, as I understand your question, it is just
about the effectiveness of the criminal justice system in my
experience.
Mr. Fattah. Yeah, I am not trying to get you in the middle
of this.
Mr. Comey. (Indiscernible)----
Mr. Fattah. I am just trying to make sure that you----
Mr. Comey. Part of a harder conversation.
Mr. Fattah. Whether or not there should be any concern from
our standpoint as a country that our court system is capable.
Mr. Comey. No, none.
Mr. Fattah. Of prosecuting?
Mr. Comey. None. Now, that doesn't mean that----
Mr. Fattah. (Indiscernible).
Mr. Comey [continuing]. That doesn't mean that ends the
policy conversation, which is one the FBI should not be
involved in, but yeah, in my experience, our courts are very,
very good at offering people a fair trial and then
incapacitating them for the rest of their lives in a safe way.
Mr. Fattah. Thank you. Thank you.
Mr. Culberson. Expertly done. I want to be sure to
recognize Mr. Palazzo.
Mr. Palazzo. I am good, Mr. Chairman. Thank you.
Mr. Culberson. Mr. Honda.
2016 SUPER BOWL THREATS
Mr. Honda. Thank you, Mr. Chairman, and let me just say I
appreciate your flexibility and the Judge's flexibility, too. I
just have a real quick question. In 2016, my area will be
hosting the Superbowl. And in the past three, four years
probably, we have been tracking the Superbowl activities in
terms of human trafficking. And in that light, you have the
arena of trans-national organized crime, which addresses
trafficking of women and children internationally. You also
have a discussion around the Child Sex Tourism Initiative and
addressing child--instead of saying prostitution, I just say
child sex slavery, because prostitution has another connotation
in my mind.
Is there staff that we can collaborate with and speak with
to anticipate the 2016? We are already working on cyber systems
with our local entities in terms of light rail, high-speed rail
and those kinds of activities, in airports. It would be great
if we can work with some of your staff to check and double
check on the kinds of things that we are doing and to see if
there is anything else that we can do and collaborate
(indiscernible).
Mr. Comey. Yeah, and I am sure that we can, Mr. Honda. This
is something we have a lot of expertise----
Mr. Honda. Yes.
Mr. Comey [continuing]. Practice in, all aspects of the
threats around a Superbowl, but we can equip you with that. We
do a lot of work around Superbowl events. In fact, I would tell
people come to the Superbowl for all kinds of good reasons. If
you are coming to try and pick up kids or engage in
prostitution involving children, we will be there, and we will
be looking to lock you up. So we will get you what you need on
that.
Mr. Honda. And we like to look at public education and
engaging the other agencies to be aware and trained on visual
kinds of surveillance, too, so we greatly appreciate it. Thank
you, Mr. Chairman.
Mr. Comey. Sure.
Mr. Culberson. Judge Carter.
Mr. Carter. Thank you, Mr. Chairman. Now, let us have a
little judge/prosecutor discussion here.
Mr. Comey. I am too rusty.
Mr. Carter. We (indiscernible)--I am not a law professor.
This is the kind of thing we are going to have to be thinking
about. We're telling our industry. Okay? The cyber attacks are
real. They are coming. Home Depot got attacked. Sony got
attacked. We just heard about Blue Cross getting attacked. You
got to build your fort, where part of our plan for cyber
security is to tell industry, ``Build a fort. Protect yourself.
Be prepared. We are helping you, assisting you, but be
prepared.''
Now, whether this attack is a criminal act or an act of war
is an interesting debate to have. I would ask everybody in the
cyber field, what is your opinion of when a cyber attack
escalates above a criminal activity and becomes an act of war?
Most people say it is a policy decision. I understand that is a
good cop-out. But just a discussion, it is an interesting
discussion.
But then there is even a more interesting thing, because
what you are going to have ultimately is almost we are going
back to the Middle Ages. We are building a bunch of little
forts around our industry. Some of these forts are going to be
very powerful. I would bet the fort around Microsoft is going
to be extremely powerful. The fort around Apple is going to be
extremely powerful.
Not only powerful in defending themselves from an attack
outside, but they'll actually have the ability to counter-
attack. And when they counter-attack, they could start an
international incident. They could start we don't know what--
and that is a question we have to ponder, because quite
honestly, we are as a government permitting them to build that
fort. And that fort is nothing more than build your own castle
and protect your castle.
Now, there is so little to be always able to be in the
defensive posture. But those with the offensive capability may
go offensive. And for the criminal justice system, we may have
to decide, has that person gone too far, just like the security
guard that protects--uses his gun in the protection of the bank
or so forth? Some of it is going to be self-defense, maybe some
of it is not. We have to make that determination. We may have
to make that determination in the cyber world sometime in the
future if a private entity protecting its own property decides
to counter-attack in a cyber attack, which we sort of have the
ability to do.
And which we would preserve to do as a government, though,
they would have to preserve some of these big monster tech
industries that have the ability to counter-attack. How is that
going to affect us in the criminal--the world of criminal
justice? Or have you ever thought about that?
Mr. Comey. Oh, I thought about it. From the private sector,
where I was before coming back to this great job, and on the
government side. The answer is we, as a country, cannot allow
it. Right? It is against the law. And it, in my view, should
remain against the law. It is great to build a fort, but if you
start throwing rocks off the parapet or throwing barrels of oil
down, it can have knock-on effects that are very, very hard to
predict. It could drag us into a place we do not want to be.
So it is unlawful for a private entity to hack back, and it
makes good sense to me. But I also agree that there is a crying
need from a lot of private enterprise for our government, then,
to fill that space. And that is a harder policy question. But
we cannot have each of these castles start throwing stuff out
into the square. That public space is a place where the
government ought to be operating.
Mr. Carter. And I would agree with you, but if you look at
the Dark Ages, that is exactly what happened. The folks could
not control the individual castles. Any of them, they could not
control the individual castles. It caused all kinds of social
turmoil in the Middle Ages. And, arguably, we could be going to
cyber Middle Ages with everybody defending their own. Because
the government is (indiscernible) right now--we are taking care
of the government and in some instances, we are taking care of
our body politic of commerce.
But the individual, actually with the ownership, it is
going to protect their own. And I think that on the horizon we
got real issues, because the government has got to come in and
say, ``How far can this person go to protect their own?''
Mr. Comey. Right.
Mr. Carter. And they are developing an ability for us that
is--I am making this up, because I do not know anything about
cyber--that the minute you hack into me, it fries everything--
every computer you--attached to you all over the world. If
somebody can just--comes up with that, that is going to be a
very large offensive tool that somebody could use.
It is a question that the government has got to start
thinking about, because this is a big deal. And at some point
that is an act of war. Then, the government has to go to defend
the individual's property. If they bombed Microsoft or bombed
in Dallas, I think we would be--if they fly an airplane,
dropped a bomb, we call it an act of war. The question is, when
we get the point where it is an act of war by basically
destroying my business? That is a tough question.
Mr. Comey. Yes, it is.
Mr. Carter. And we in the criminal justice system have to
think about it, and our professors back in law school have to
think about it, and we have to come up with a solution.
Mr. Comey. Yeah. Why is a criminal justice analog right in
the Old West? If the marshal does not provide safety for the
folks living in those communities, in those towns, well, then
they are going to defend themselves to protect their families
from the bad guys. So the government has to fill that public
space and defend the citizens (indiscernible).
Mr. Carter. I think you are probably right.
Mr. Comey. Yeah.
Mr. Carter. And that is a huge task. Thank you.
Mr. Culberson. And a great question and a good analogy, if
the government is unable to defend that public space and
provide protection if the marshal cannot be there for the
little homestead outside of town, out in the Indian country,
how--we have got all of us the right to self-defense to what
extent does an individual or business have the right of self-
defense, for example, in the cyber world? [No response.]
There is no clear answer, I guess.
Mr. Comey. Hard question.
Mr. Culberson. It is really an interesting question.
Mr. Carter. Yes, but it is a question that I think we are
literally creating those castles today. There is no doubt about
that. (Indiscernible).
Mr. Culberson. Sure.
Mr. Carter. (Indiscernible).
Mr. Culberson. And to follow up a little bit on the analogy
earlier, the conversation about the Apple 6, in the case of a
safe where you ordered--you have got a court order to go in and
get the contents of a safe that you have probable cause to
believe contains evidence of a crime, if the safe is
uncrackable and either the owner cannot, or will not, open it,
as a general rule, does the company that built the safe have
the ability to open the safe? Is there any requirement with a
physical safe, that they be--the company that built the safe--
open it? Do you have the ability to open it? Is there any legal
requirement? How did that work, Judge and Director, in your
experience?
Mr. Comey. I do not know of a legal requirement. We could,
with a court order, almost always get information from the
manufacturer, or we just blow the door off.
Mr. Culberson. But the manufacturer could tell you.
Mr. Carter. I have got to go. I want to thank you for----
Mr. Comey. Thank you.
Mr. Carter [continuing]. What you do, and we are very proud
of the FBI and all the good work you do. Thank you.
Mr. Culberson. Thank you, Judge. That is absolutely true,
and I will not keep you too much longer, but you could either
blow the safe or in your experience, the manufacturer always
had the ability to open it----
Mr. Comey. Yeah.
Mr. Culberson [continuing]. In some way, shape, or form.
Mr. Comey. But I'm hesitating, I do not know whether I have
ever seen a circumstance where we use lawful process to compel
a manufacturer to give us assistance. I just do not know
enough.
Mr. Culberson. Just drill it or blow it.
Mr. Comey. Yeah.
Mr. Culberson. Yeah. Okay. Because that is another problem
we are going to have to--again, protecting people's individual
privacy, but recognizing if you have got evidence of a crime
locked up in that suitcase, how in the world do you get at it?
INSPECTOR GENERAL--INFORMATION SHARING
Let me ask about, before we wrap up, and I will follow up
with other questions for the record, the importance of
information sharing with the Inspector General. It is a
question that is ongoing with every agency under our
jurisdiction. The Inspector Generals have a vital role
notifying us of that they do audits and if the Inspector
General is ever denied access to information, they have to
notify the Committee, and we have gotten several notices from
the Inspector General.
I know we have mentioned this to you and your folks before
about the FBI's failure to comply with the access-to-
information requirement, and I know that the FBI has a
disagreement on what the law requires. And Mr. Fattah and I
have both written a letter to the Attorney General asking the
Office of Legal Counsel to help resolve a particular matter--I
do not think involving a whistleblower's--to resolve this
matter as quickly as possible.
I would just like to ask, sir, what steps are you taking to
ensure the Inspector General gets the information they need in
a timely manner and what, if any, conflict of interest, may
there be in the agency being investigated by the Inspector
General being in a position to decide what information the
Inspector General needs? Particularly, since the Inspector
General has, as you did, as a prosecutor, the ability to review
things in a confidential manner and in camera, so to speak, as
a judge would, since the Inspector General has criminal
investigative authority and can maintain the confidentiality of
that information, should not the IG be the one?
Are you be able to work with them in a confidential,
behind-closed-door manner to decide what information they need?
What are you doing to help them get what they need in this
case, for example, in particular?
Mr. Comey. No, no. Thank you. It is an important issue. I
love my IG, as he knows. The only thing I clearly love more is
the rule of law. And so I am in a situation where the FBI,
Office of General Counsel, has given us legal advice over
several General Counsels about what The Wiretap Act and The
Grand Jury Secrecy Act provides with respect to our ability to
give information to the Inspector General. And so we just have
to solve that problem, which should be fairly easy. As you
know, the Office of Legal Counsel is looking at the question. I
think the new Deputy Attorney General is moving towards
resolving this question. I just need someone at a high level in
the Department of Justice to say, ``It is okay. You do not have
to go to a judge before you can turn over wiretap information
or grand jury information to the IG.'' And problem solved. But
I have no interest in obstructing the IG.
Mr. Culberson. I know that.
Mr. Comey. But I also do not want to be--us just willy-
nilly turning over stuff that might be protected under the
statutes and then have someone say, ``Well, how did you do
that? You were told by your General Counsel that the law
required this.'' So I just need clarity there. And the other
thing I am doing in the meantime is just trying to speed up our
business processes.
Mr. Culberson. Yes, sir.
Mr. Comey. So that we just do whatever we think we have to
do (indiscernible) law, but much more quickly.
Mr. Culberson. What I am particularly interested in is
getting it done in a timely fashion. What are you doing to help
expedite the process so the Inspector General can get the
information that they need to do their job?
Mr. Comey. Yeah. I think that is literally a question of
building better business process to quickly review and copy and
produce and search for information. I will not go into all the
boring details, but I have an internal consultant shop that are
geniuses at business process. I have put them to work on that
saying, ``Figure out how to do this faster.'' It is like making
cars. Just figure out how we can do that much more effectively.
I think he will see dramatic improvement there. That is not
going to solve this legal question, but I think I can solve the
business process. Then, if I can get the leadership, the
Department of Justice, to solve the legal question, then it
might not all be love, I suppose, with the IG, but it will be
in a much better place.
Mr. Culberson. Mr. Honda. [No response.]
I also on behalf of the Subcommittee and the people of
Texas that I am proud to represent, I want to express our deep
gratitude to you and for your service and to the men and women
of the FBI for all that you do to help keep us safe while
protecting our privacy and our very precious constitutional
rights. And as law-abiding Americans, we are your best back up.
There is no better back up for a law enforcement officer than a
American using their own common sense, their own good judgment,
and their good hearts.
And by the way, you mentioned earlier about the criminals
with guns, I doubt you have ever had a problem with a concealed
carry permit holder who is licensed with a background check
using their good judgment. I am not aware of any problems with
the Texans that are licensed. Could you comment on that as a
law enforcement officer and a prosecutor?
Mr. Comey. Yeah. I have not had situations where there has
been problems with that.
Mr. Culberson. With a concealed carry permit holder?
Mr. Comey. Not that I can remember.
Mr. Culberson. That is a law enforcement officer's best
back up, particularly if he is a Texan. Thank you very much,
sir, for your service to the country, and we will submit any
further questions for the record, and the hearing is adjourned.
Thank you.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Wednesday, February 25, 2015.
DEPARTMENT OF JUSTICE
WITNESS
MICHAEL E. HOROWITZ, INSPECTOR GENERAL
Mr. Culberson. Good morning, Members. The Appropriations
Subcommittee on Commerce, Justice, Science, and Related
Agencies will come to order.
I am delighted to start out our hearing schedule this year
with the inspectors general for the Department of Justice,
Department of Commerce, and for NASA. Great way for us, I
think, to set the framework for the year to get an
understanding of some of the management challenges that each of
these agencies face.
We particularly rely on your expertise and good work to
help us identify where we can make the best use of our
taxpayers' hard-earned money, make sure it is spent more wisely
and efficiently to eliminate fraud, waste, and abuse, but also
to be sure the agencies are accomplishing the purposes that the
Congress has created them for.
It is a real privilege for me to be here to serve as
chairman of this wonderful subcommittee and to succeed Frank
Wolf who has really been a hero of mine since I got here. I
really feel very sincerely that I am following Frank in the
same position as Thomas Jefferson when he followed Benjamin
Franklin and said no one can replace Dr. Franklin. I can only
succeed him.
And that is certainly true. We are going to miss Frank a
lot. He taught us all a great deal. It is a privilege to serve
here with each one of you and especially you, Chaka. We have
had a good time together in this subcommittee. We do great
things and I am looking forward to a great year serving with
you, my friend.
Mr. Fattah. I am looking forward to it also and I am
committed to make sure that as has been the case in the past
that we end up with a bipartisan product that we can----
Mr. Culberson. Yeah.
Mr. Fattah. Proudly take to the full committee. All right?
Mr. Culberson. Yes. It is an important bill and feathers
right in with the work you do, Chairman Carter, on Homeland.
Looking forward to working with you.
We have a number of new Members of the committee. I am
delighted to note that Washington State is so well represented,
Mr. Kilmer, between you and Ms. Herrera Beutler.
You have what part of the state?
Mr. Kilmer. I represent Tacoma and the Olympic Peninsula of
Washington State.
Mr. Culberson. The United States' only rain forest, I
think, right?
Mr. Kilmer. That is right, yeah.
Mr. Culberson. You are on that----
Mr. Kilmer. You bet.
Mr. Culberson [continuing]. Beautiful part of the country.
Mr. Kilmer. We say in Washington we do not tan. We rest.
Mr. Culberson. Unlike England.
Mr. Kilmer. Yeah.
Mr. Culberson. Delighted to have you here.
Mr. Jenkins, delighted to have you here.
Mr. Jenkins. Thank you, Mr. Chairman.
Mr. Culberson. West Virginia to be well represented. We got
Martha Roby as a new Member of the subcommittee from Alabama,
Mr. Jolly from Florida. And, of course, we have got Mr.
Aderholt returning as a returning Member, of course, Mr. Honda
and Mr. Serrano.
And we will be following the five-minute rule for questions
roughly. I am not going to be exact about it, but we are going
to try to keep things moving, make sure everybody gets the
opportunity to ask questions.
I will recognize Members in order of seniority based on who
is present at the beginning of the hearing and as Members come
in, folks who come in a little bit later will go after those
who came earlier.
And I know that as Mr. Fattah said, we will work hard
together to make sure this is a bill that we, I hope, can all
support in the end and will help, as I said earlier, ensure
that our taxpayers' hard-earned dollars are well spent which is
why I wanted to start with our inspector generals.
We have already got the national debt approaching $18
trillion and it is a continuing source of concern that with the
President's budget request, for example, asking for tremendous
increases in spending in every year in government, but he
proposes to pay for it with tax increases. And that is
certainly not going to happen.
We have a responsibility in the Appropriations Committee to
be sure that the precious resources that we allocate are
targeted and well spent.
So we really appreciate the work that you all do and we
will hear first from Mr. Horowitz who is the inspector general
for the Department of Justice and has been since 2012. We will
next hear from Todd Zinser, the inspector general for the
Department of Commerce where he has served since 2007 and then
finally Paul Martin, the inspector general for NASA who has
been working in that capacity since 2009.
Of course, we want to hear about your own budget requests,
but if I could ask each one of you to zero in on, and we have
received your prepared testimony which we will enter into the
record without objection, but certainly welcome your
summarization of that testimony, but particularly interested
in, if you could, have us focus on recommendations to make the
agencies more efficient and where we can achieve savings.
So deeply appreciate you being here, your service to the
country, and, Mr. Horowitz, you are recognized. Oh, excuse me.
Yeah. I apologize.
Chaka, if I could, I want to recognize you, sir, for any
opening statement you would like to make.
Mr. Fattah. No. I think you covered it and I think we will
proceed with the hearing.
Mr. Culberson. Very good.
Mr. Fattah. For each of us to say the same thing because I
agree with what you said. All right?
Mr. Culberson. Thank you very much. I appreciate it. We are
ready to roll.
Mr. Horowitz, thank you very much for being here today,
sir, and we look forward to your testimony.
Mr. Horowitz. Thank you, Mr. Chairman.
Thank you, Congressman Fattah and Members of the
subcommittee, and thank you for inviting me to testify today
and thank you for your strong bipartisan support for my office.
In these tight budget times, making sure that department
programs are operating effectively and efficiently is critical
and I am proud of the outstanding value that the OIG at the
Justice Department continues to deliver to the taxpayers.
In fiscal year 2014, the OIG identified over $23 million in
questioned costs and nearly $1.3 million in taxpayer funds that
could be put to better use by the department.
And our criminal, civil, and administrative investigations
resulted in the imposition or identification of almost $7
million in fines, restitutions, recoveries, and other monetary
results.
These savings, however, do not take into account some of
the most significant reviews that we have done which cannot be
translated into quantifiable dollar figures but which address
fundamental issues that the Justice Department touches
involving national security, civil liberties, safety and
security of federal prisons, effectiveness of department
programs, and the conduct of department employees.
Our ongoing work includes reviews of the department's asset
seizure activities, ATF's oversight of its storefront
operations, the FBI's use of bulk telephony metadata obtained
under Section 215 of the Patriot Act, the department's use of
drones, the impact of the BOP's aging prison population, the
department's use of pretrial diversion programs, and the BOP's
management of its private contract facilities.
Our fiscal year 2016 budget seeks funding at a level of
$93.7 million which includes a requested increase of $2.9
million to expand our oversight of contracting by the
department.
Contract spending at the department has grown substantially
over the years and is now approximately $7 billion, about 25
percent of the department's budget. The requested program
increase will allow our office to support an additional ten
FTEs in our audit division and five FTEs in our investigations
division, thereby enhancing our ability to audit more complex
and higher risk contracts.
In the past, much of the OIG's external audit work has
focused on grants which at the time far exceeded contract
spending. While grant spending remains substantial, about $2.3
billion last year, the amount spent on contracts, as I
mentioned, is now far greater.
Given these figures, it is critical for our office to
develop the same kind of deep expertise and experience in
contract management that we have in the grant fraud area.
Over the past five fiscal years, we have issued over 200
grant-related audit reports containing over 1,000
recommendations and over $100 million in dollar-related
findings.
In addition over the last five years, we have opened over a
hundred grant-related investigations resulting in 19
convictions and over $5.8 million in fines, restitutions, and
recoveries.
While I could change the focus of these auditors and agents
from grant work to contract work, given the continuing grant
management risks we are finding, our commitment to grant
oversight needs to remain at its current level.
This is the first program enhancement request that I have
made since becoming inspector general and as someone whose
primary responsibility is to be a strong steward of the
public's money, I recognize the significance of the request and
make it only after undertaking careful planning and evaluation
of our needs.
I do so because adding these positions in our field offices
around the country would allow us to address potential
procurement waste, fraud, and abuse, and I am confident it will
produce stronger returns for the taxpayers.
Let me mention the top challenges that we have identified
recently as we are required to do each year at the Department
of Justice for the coming fiscal year.
We have identified seven major challenges in our recent
report. First the department needs to address the persistent
crisis in the federal prison system; second, safeguarding
national security consistent with civil rights and civil
liberties; third, enhancing cyber security in an era of ever-
increasing threats; four, effectively implementing performance-
based management; five, upholding the highest standards of
integrity and public service; six, ensuring effective and
efficient oversight of law enforcement programs; and, seven,
protecting taxpayer funds from mismanagement and misuse.
I have outlined those in greater details in my testimony
and I look forward to speaking about them today at the hearing.
Let me conclude by briefly addressing the continuing
challenges we face in getting access to information in the
department's possession. Unfortunately, I sound like a broken
record on this issue, but it is a matter that is not resolved
yet and it is an issue of utmost importance to us.
And the IG Act Congress passed could not be clearer.
Inspectors general are entitled to complete, timely, and
unfiltered access to all documents and records within an
agency's possession. Delaying access imperils an IG's
independence, impairs our ability to provide effective and
independent oversight that saves taxpayers money and improves
the government's operation and erodes the morale of the
dedicated professionals that make up our staff.
My office knows these problems all too well. In particular,
the FBI continues to take the position it first raised in 2010
that the IG Act does not entitle the OIG to certain records in
its possession.
In May 2014, the department's leadership asked the Office
of Legal Counsel to issue an opinion to try and resolve the
objections raised by the FBI. Nine months later, we are still
waiting for that opinion.
I cannot emphasize enough how important it is that the OLC
issue its opinion promptly because the existing procedures at
the department assume the correctness of the FBI's legal
position which thereby undermines our independence and impairs
the timeliness of our reviews. The status quo simply cannot
continue indefinitely.
We appreciate the strong bipartisan support from the
subcommittee and the Congress, in particular the inclusion by
the subcommittee of Section 218 in last year's Appropriations
Act to try and resolve these issues.
While the law only recently went into effect, it has had a
positive effect with several department components. However,
the FBI is repeatedly failing to comply with Section 218
because it continues to maintain that the IG Act does not
authorize OIG access to certain records in the FBI's
possession.
As a result, the FBI is continuing its costly, wasteful,
and time-consuming process of reviewing documents that are
responsive to our requests in order to determine whether they
need to withhold them from us only to then go to the attorney
general or the deputy attorney general for permission to give
them to us.
On February 3rd, February 19, and again this morning, we
have reported to Congress as provided in Section 218 about
failures by the FBI to provide us with documents in a timely
fashion with regard to several ongoing reviews.
As I said, it is time to resolve the legal dispute. The
FBI's failure to comply with a bipartisan appropriations law
coupled with the department's seeming lack of urgency in
issuing an OLC opinion that would resolve this dispute is
seriously impacting our ability to conduct oversight. Every day
this continues, taxpayer funds are being needlessly wasted. I
looked forward to continuing to work with the subcommittee to
try and resolve this matter promptly.
Thank you again for your critical support for our work
which has enabled us to conduct the kind of aggressive and
thorough oversight that is expected of us and to root out
waste, fraud, abuse, and mismanagement. I look forward to
answering your questions today.
Mr. Culberson. Mr. Horowitz, thank you.
And I wanted to first start with the FBI's refusal to
provide you information. It applies to all the inspector
generals. And for each one of us on Appropriations on the other
subcommittees, this is highly relevant because it is not just
the FBI. It is an ongoing problem with the inspector general
across the spectrum of the Federal Government.
And every inspector general is essentially a--you have the
ability to do criminal investigations as well.
Mr. Horowitz. Correct.
Mr. Culberson. So you are used to handling sensitive
information----
Mr. Horowitz. We have the most----
Mr. Culberson [continuing]. In your jurisdiction.
Mr. Horowitz. And with overseeing the FBI, we have done
Patriot Act reviews, FISA reviews. We have Post 9/11. We have
the Hanssen matter, the spy matter. We have got some of the
most sensitive material available and we have been given that
prior to 2010 with no issues.
Mr. Culberson. You are essentially like a U.S. attorney's
office in that you have got obviously top-secret clearance. You
are used to handling sensitive information and----
Mr. Horowitz. Right.
Mr. Culberson [continuing]. Protecting it from being
disclosed.
Mr. Horowitz. Correct.
Mr. Culberson. When Judge Carter served as a district court
judge, you reviewed, Judge, all the time, complicated material.
So the FBI's objection here is that the information cannot
be released to you because they believe they have an obligation
to withhold it--they are citing a number of different rules.
For example, the rule of civil procedure regarding grand
jury materials, that is something you saw, Judge, I would
imagine, as a part of your function.
There was not any problem with either Judge Carter
releasing that or with you or any of the other inspector
generals. That is standard operating procedure; is it not?
Mr. Horowitz. And it is standard operating procedure. We
have raised the question and said if you have any concerns with
how we have handled it, tell us. That is not the issue. We have
never been----
Mr. Culberson. Never had any issue?
Mr. Horowitz. Never had a breach.
Mr. Culberson. Never had a breach?
Mr. Horowitz. Yeah.
Mr. Culberson. The Wire Tap Act, again, standard operating
procedure, no big deal. The Bank Secrecy Act, the FBI says we
cannot give you the information because of the Bank Secrecy Act
and the Fair Credit Reporting Act.
Mr. Horowitz. Right.
Mr. Culberson. Statutes that have been in the book for a
while.
Mr. Horowitz. Right.
Mr. Culberson. And the inspector general statutes were
probably enacted after these were enacted by Congress.
Mr. Horowitz. Yeah. It is interesting. So my issue, the
statutes that they are citing were enacted before the IG Act.
So the IG Act came and said you get everything. That came
afterwards. The Peace Corps IG is having the same problem.
Their general counsel is claiming a law passed by Congress two
years ago did not override the IG Act. So we are getting on
statutes that happened before the IG Act.
Mr. Culberson. Yeah.
Mr. Horowitz. She is getting it on issues that happened
after the IG Act was passed.
Mr. Culberson. I do not mean to keep picking on Judge
Carter, my good friend from Texas, but I believe, Judge, the
standard rule of statutory interpretation is that the later
enacted law supersedes the earlier one.
Mr. Carter. That is right.
Mr. Culberson. That is just, again, standard operating
procedure. We will certainly help you with this. And I hope
each Member of the subcommittee will take this to heart in all
our work on our other subcommittees, Mr. Fattah, because this
is an ongoing problem across----
Mr. Fattah. I think compliance with 218 is important and I
would be glad to join in with the chairman in however you would
like to communicate.
Mr. Culberson. Right.
Mr. Fattah. Through either the Office of Legal Counsel,
their opinion, if they would like to see it move forward or----
Mr. Horowitz. Exactly.
Mr. Fattah. However we can move to a resolution.
Mr. Culberson. Thank you very much. We will certainly do
that.
Mr. Horowitz. And I have made clear at this point, I will
take any opinion from the Office of Legal Counsel because,
frankly, even if a bad opinion, I am confident Congress will
quickly fix the statute.
But what we are all operating under right now is a belief
in the IG community and from every Member of Congress I have
spoken to and testified before that the IG Act should apply. So
we need that decision to fix the statute if that is what the
department thinks. And obviously a good decision that applies
to the law as we think it is would resolve it as well.
Mr. Culberson. And, Mr. Horowitz, if you could, to the
extent you can do so in this setting, describe to us the type
of information that the FBI is refusing to provide to you.
Mr. Horowitz. It is precisely what you indicated, Mr.
Chairman. We have got grand jury information prior to 2010, we
were given similar information.
In fact, there are two federal district court opinions from
two judges in the western district of Oklahoma from 1998 and
1999 on the Justice Department's motion that found we were
entitled to access grand jury information.
So I am, frankly, not sure why anyone at OLC would overrule
two Article 3 federal judges who have decided that issue
already.
Fair Credit Reporting Act, we are looking at the national
security letter reviews by the FBI. At the start of our review
before 2010, we got the information. After 2010, all of a
sudden, we could not get the information.
Mr. Fattah. Mr. Chairman, I just want to make sure we can
clarify the record. I thought what I heard you say was that
what we were experiencing was that there was a refusal to
provide and then a kind of a filtering process and then the AG
or the deputy would then have to go through these documents and
then provide them and that the issue for you was that at the
end of the day, they are getting the documents and it has just
created a process that has wasted money.
Mr. Culberson. And time.
Mr. Fattah. And time.
Mr. Horowitz. Right.
Mr. Fattah. In getting the documents. And I just want to be
clear that that is what you said.
Mr. Horowitz. That is exactly right. It is a clear waste of
money to have to review these documents, ultimately go to the
AG or deputy to give them to us. I will add, though, it does,
and the AG has been supportive, the DAG has been supportive,
but it then relies on us to get their approval. And clearly
that is inconsistent with the--no matter how good their
intentions are, it is inconsistent with the IG Act.
Mr. Fattah. Right. It threatens your independence, right.
Mr. Horowitz. Correct.
Mr. Culberson. So what is amazing about 2010?
Mr. Horowitz. It is the question everybody asks. And there
is nothing that happens from a legal standpoint, policy
standpoint, handling of documents standpoint.
Frankly, the only thing that has happened is we issued a
number of very hard-hitting reports in the mid 2005s about how
folks were handling national security-related issues. And there
is nothing else that happens in 2010.
And, frankly, at the Peace Corps, I think the inspector
general there who I have testified with several times on these
issues, she would tell you the same thing. There is nothing
magical about it. It is pretty clear that these are decisions
that just from our standpoint I will say do not have a basis.
Mr. Culberson. I will come back with some other follow-up.
I want to make sure the other Members get a chance to ask some
questions. So I will recognize my good friend, Mr. Fattah, at
this point.
Mr. Fattah. Thank you.
First of all, I want to congratulate you in becoming chair
of the Inspector General's Council. And, you know, as a
freshman Member of Congress, I think working with former
Congressman Chris Shays, I was one of the sponsors of the
Inspector Generals Act. I think that it has worked well.
I have told you this in private. I will tell you again that
I think it has worked well and it is important that we focus on
the major issues and the major spending in these departments
versus kind of cherry picking, you know, at minor issues around
coffee and doughnuts at conferences, I mean, so we kind of
focus on the big ticket items.
But I want to thank you for the cooperation in resolving
some of the issues related to the national youth mentoring
grant. There was, you know, some bureaucratic back and forth
that caused some very significant hardships for some of our
premier youth servicing entities in the country.
And through your good work, you know, I think we kind of
moved the ball down the field. So I want to thank you for that.
And I do not know why you want to do this job, but I am glad
you are doing it and good to see you.
Mr. Horowitz. I have my doubts sometimes.
Mr. Fattah. Thank you very much, Mr. Chairman.
Mr. Culberson. Thank you, Mr. Fattah.
Judge Carter.
Mr. Carter. Thank you, Mr. Chairman.
First I will comment on what you were talking about there.
You know, first off, I can tell you at least in state court,
the district attorney does not have grand jury testimony
available to the defense. They ask for it every time. They do
not get it very often. So that is kind of a sacred cow for
them. I think it probably is a sacred cow for the FBI, too.
That is part of it. I know that is. And some of these other
things that concern evidence that they might be using at trial
is a very sacred cow, too. This is an adversarial position that
these folks are in. I am not defending them, but I think there
has got to be something to that effect on some of this.
Back to my question because this is the world I live in
right now. Last year, DOJ asked for 24 additional immigration
judge teams. This year, they've asked for 55 immigration judge
teams.
Has there been any progress in identifying how effective
these immigration judge teams are? With the continuing request
for additional immigration judge teams, has there been a
corresponding increase in removal letters considering that 42
percent of all defendants sentenced in federal courts are non-
U.S. nationals?
I am concerned about the continual release of non-U.S.
nationals throughout the country by immigration judge teams and
the subsequent crimes they commit. Do you track any of that
data and are you looking into it?
Mr. Horowitz. Those are all very significant questions,
Judge. We did a review two years ago, shortly after I arrived,
on the Executive Office of Immigration Review and their data
and their success rates in complying with their own time lines
and found serious issues with how they were counting cases, how
they were measuring success and had several recommendations on
how to improve that.
And let me go back and look at where we currently stand two
years later on that data and report back to you because it was
a significant concern to us. A critical question is, are the
performance metrics there that warrant additional positions
like that. And that is something we have been focusing more and
more on.
With regard to tracking data and getting data, that has,
frankly, been one of our biggest challenges as we look at our
prison-related work which is the lack of data available at the
department. We have essentially started doing that ourselves as
we undertake our reviews because there is not those
measurements there.
So, for example, when we looked at the compassionate
release programs, we did a sampling to try and figure out what
recidivism rates were. When we are doing some of our current
work on reentry and other programs, we are essentially doing
our own work on those studies because that data is not there.
So let me follow-up and see if there is such tracking data,
but my guess is the answer is probably unlikely given what we
are seeing in some other areas. But I will get back to you on
that.
Mr. Carter. Well, it goes to another question I have on
recidivism rates.
Mr. Horowitz. Right.
Mr. Carter. The prison people tell us they are not doing
any studies on recidivism rates. Recidivism is part of why we
have----
Mr. Horowitz. Right.
Mr. Carter [continuing]. Prisons and why we have punishment
systems and why we have alternatives to it, incarceration and
all the other things we come up with.
How effective is it in preventing crime and preventing the
individual from coming back----
Mr. Horowitz. Right.
Mr. Carter [continuing]. Into the system?
Mr. Horowitz. Right.
Mr. Carter. If we are not confident in that data, maybe the
Congress needs to act to have somebody collect it.
Mr. Horowitz. Yeah. Yeah. It is a significant issue for us
as we do this. We do not have enough people to constantly do
large-scale studies. So what we are doing is taking selected
samples to try and at least get some measurement.
But as far as we are aware, the last study done at a
federal level was a 1994 study. And obviously a lot has
happened since then.
Mr. Carter. Yeah.
Mr. Horowitz. And we are trying to look at, for example,
halfway houses, reentry programs, work-related programs in
prisons all in the hope of trying to decide and evaluate, and
contract prisons as well, who has got the best programs in
place, what are the best practices out there, where can we make
recommendations.
If you have got, and the Bureau of Prisons does, three
different companies providing contract prison facilities, who
has got the best programs, which are showing up as the best
handling of inmates, who has the best healthcare?
We have seen the riots recently this past week in one of
the prisons in Texas. Two other prisons had issues. Who is
doing the best with managing the population, education
programs. You can go on and on, and it seems to us which
wardens are managing their facilities in the best ways. There
are various metrics that we are trying to get and look at that,
frankly, do not exist as we are doing some of these reviews in
the prison area to try and figure out where spending can be
reduced, where efficiencies can be found, and who is managing
in the most effective way possible.
Mr. Carter. And this really concerns me because, you know,
even at our attorney general level in a little old, small
county relative to the big Federal Government, we have those
kind of studies in our----
Mr. Horowitz. Right.
Mr. Carter [continuing]. Probation departments recidivism
studies to look at special alternatives to incarceration
programs and halfway houses can be a headache that you cannot
believe them because just two or three really bad events come
out of a halfway house situation where somebody gets killed--I
tried a capital murder case where two guys from a halfway house
murdered a UT student. And let me tell you the community rises
up in arms at that point in time. So it is important to get
this data.
Mr. Horowitz. Yeah.
Mr. Carter. Thank you, John. I went over my time.
Mr. Culberson. Thank you, Judge.
Mr. Kilmer.
Mr. Kilmer. Thank you, Mr. Chair.
And thanks for being here.
I wanted to dive into the Government Performance and
Results Act and the requirements that it has established for
agencies. I am a firm believer that we should be focused on
outcomes rather than just inputs.
And I started looking through the priority goals and
performance information for fiscal year 2014 and 2015 that
accompanied the department's budget request. And it seemed to
me a lot of the goals were, particularly those associated with
violent crime, financial and healthcare fraud, and vulnerable
people concentrate a lot more on actions rather than on
outcomes and on results.
So just as an example, on the vulnerable people section,
the department said that it was going to, and I'm quoting,
``open investigations concerning noncompliant ex-offenders at
four percent over average in fiscal years 2012 and 2013, sexual
exploitation of children, three percent over average for fiscal
years 2011, 2012, and 2013,'' and so on.
So I want to get a better understanding. How does opening
investigations represent results-oriented management? And, you
know, so what do the folks we represent get out of opening more
cases and should the focus not be on outcomes of those cases?
And if that is the goal, what ought we do?
Mr. Horowitz. Right. I could not agree with you more,
Congressman. And that is why this year for the first time we
have as one of our top management challenges the performance-
based reporting by the department. This is an issue, frankly. I
said I was a federal prosecutor in New York for seven and a
half years. You got a pat on the back for the number of cases
you did and what jail sentence people got and how many for the
agents. It was how many people were arrested.
But there were no measurements on have you reduced crime in
the community, have you addressed the gang problem, have you
focused on the corruption issues, whatever they were. And that
is what led us to look at this year as one of the top
challenges because when a police chief goes before the
microphone and talks about crime, they talk about how they have
reduced it, not how many people they have arrested.
Mr. Kilmer. Yeah.
Mr. Horowitz. And that is the same in program after
program. And I think the department has to focus more in a lot
of different areas on outcomes rather than just on actions. The
prison area is one of them.
And what we are trying to do as we look at these issues,
and obviously with 170 or so auditors in a 100,000 person
department, there is only so many reviews and audits we can do
at a time, but what we are trying to do is make sure that our
auditors are focused on precisely those questions so that when
we are issuing reports, we are highlighting and making
recommendations about the performance-based measures that need
to be thought of.
We are doing that. I have talked about that on the grant
side. We saw that as an example. We did a report a year or two
ago on grants issued to two local police departments. It turned
out that, in fact, the departments had used the grant money as
required under the grant. They bought the drones. It turned out
they had just never gotten the FAA approval and they were
sitting in a warehouse.
So the check the box approach was ``gave you grant money,
did you buy a drone? Yes, we bought a drone.'' But the next
question was not did they use it, did it work, does it inform
our judgment on future grants.
Mr. Kilmer. Uh-huh.
Mr. Horowitz. None of those. So those are the kinds of
questions our folks are now thinking about and focused on. And
I think, frankly, as you are looking at programs, I think these
are the kinds of questions that need to be asked because it
will reinforce and certainly support the kind of questions we
are asking as well.
Mr. Kilmer. Thank you.
I think that is valuable feedback and I think we would have
a strong appetite for working with you to drive that.
Let me ask one other thing if time permits. So in 2013, the
Congress reauthorized the Violence Against Women Act. And one
of the key provisions of that was giving tribes the authority
to exercise jurisdiction over domestic violence criminals
regardless of their Indian and un-Indian status. And that
provision goes into effect on March the 7th.
Has your office looked into how the department has worked
with tribal authorities to prepare for that, for implementing
that new authority, and is funding needed or anything else
needed to see that move?
Mr. Horowitz. We actually have not. I am certainly happy to
follow-up and see what we can learn about it. It is a very
important issue. The Indian country issues, grant-related
issues with Indian country are very significant.
It is something that as the new chair of the Council of
IGs, I am actually working with several other IGs to try and
think about a cross-cutting initiative on Indian country
issues.
We have at the Department of Justice money that goes to
Indian country. Interior, Education, HHS, Education, HUD, I can
go on and on, Labor, and we have all come together and to meet
to try and talk about how we can advance some of these issues.
And I will follow-up on this one as well.
Mr. Kilmer. Great. Thank you.
Thank you, Mr. Chair.
Mr. Culberson. Thank you.
Also, Mr. Horowitz, I have a keen interest in Judge
Carter's question, so please copy me on that, would you?
Mr. Horowitz. Yes. Absolutely.
Mr. Culberson. And find out about the number of removals
the judges are actually ordering. Are they following the law?
Are they doing their job? And then also, the recidivism is an
incredibly important point.
And I think, Judge, I heard you say you discovered 42
percent of all defendants sentenced since----
Mr. Carter. It is in his testimony.
Mr. Culberson. Forty-two percent sentenced in federal court
are non-U.S. citizens, an incredible number.
Mr. Horowitz. Yeah.
Mr. Culberson. An incredible number.
Mr. Fattah. And it has grown.
Mr. Horowitz. It's growing.
Mr. Fattah. Significantly from where it was two years ago.
If I could, Mr. Chairman, very quickly I want to compliment
Judge Carter and his great work that he did on the Fort Hood
banner and made some progress there and the Purple Heart.
Mr. Carter. Thank you.
Mr. Fattah. And the amendment to the national
authorization. And along this general point that the judge is
making, the committee has done some work here on Justice
Reinvestment. I am not dealing with the immigration side of
this, but the broad issue of Justice Reinvestment.
And now we have two former members leading a task force,
Congressman Watts and Congressman Mollohan----
Mr. Horowitz. Uh-huh.
Mr. Fattah. With a group of nationally recognized experts
looking at this question of, you know, how we could deal with
what you say is the number one, number one of the seven issues
is our prison population at the federal level. And it is a
problem in our states, too. So, you know, we are very
interested.
And, two, do your offices have information that is helpful
to use, data that is helpful, you know, as we go forward? I am
looking at Rand Paul on a major piece of legislation, the
REDEEM Act, in this regard.
So there is some broad consensus between Republicans and
Democrats that we need to do something different than what we
are doing because we presently incarcerate more people than any
other country in the world on a per capita basis.
And the federal budget went from $1 billion now to what, $7
billion on the federal prison population. You know, it is
taking up a bigger and bigger slice of the DOJ budget.
So thank you, Mr. Chairman.
Mr. Horowitz. And be happy to work with the group on those
issues because it is a staggering dollar figure for the
department. A quarter of the department's budget goes to
prisons, $1.1 billion to healthcare on inmates. Three to four
percent of the department's budget goes to support inmate
healthcare.
Mr. Culberson. And which I see from your testimony----
Mr. Horowitz. Yeah.
Mr. Culberson [continuing]. Is getting only more expensive
as the population ages in the prisons.
Mr. Horowitz. Yeah.
Mr. Culberson. Thank you. Thank you very much.
Let me recognize Mrs. Roby. Oh, excuse me. Mr. Jenkins.
Forgive me.
Mr. Jenkins. Thank you, Mr. Chairman.
Good morning.
Mr. Horowitz. Good morning.
Mr. Jenkins. Let's continue down that road of healthcare
and the prison overcrowding. Actually, I served on our justice
reinvestment effort in the West Virginia legislature and we
have made the concept meaning, of course, that you are going to
take the savings that you would have spent as you do things to
reduce some of the cost, some of the incarceration numbers, and
reinvest those so you are not necessarily putting a lot of new
dollars, although oftentimes it does require a little jumpstart
investment on the front end before you see that reduced prison
population.
You know, I have read your testimony and I am curious.
Again, you have identified a top priority of the concern of the
pending crisis, as you label it, and you talk about
overcrowding and you although acknowledge that we actually saw
a dip in the federal prison population the last fiscal year.
And it is expected actually to continue to drop at least for
the next few years.
And you point out the issue of despite a reduced prison
population, costs continue. And you identify, as you just have,
healthcare as being one of the drivers of that.
Let's talk about why healthcare. And the only thing I saw
from your testimony here that you mention is an aging prison
population, older people, higher healthcare costs, but dig in a
little bit more for me other than just saying, well, we have
got an older population.
I understand. I have a healthcare background, but what are
the factors driving the healthcare delivery system in our
prison system? The healthcare benefits and services that our
prison population are entitled to, are these being delivered in
the most efficient way?
And I shudder to think that our prison population is
getting equivalent to a gold or a bronze or a high-level plan
that a normal non-incarcerated citizen might not have access
to.
What have you all done looking into the healthcare delivery
system and what the cost drivers are other than just we have
got an older population?
Mr. Horowitz. We have done some research on the drug side
and the increasing cost, for example, the hepatitis issues and
how the costs have increased for those kinds of medications,
but we are actually right now in the middle of looking at some
of these issues both in the contract prison area and in the BOP
space on, and working actually with HHS OIG----
Mr. Jenkins. Is there a robust effort to look at the
contract services and the healthcare? I assume this is almost
like a bundled payment structure versus the non-contract
provider of prison services and look at who is getting the
appropriate outcomes, but who is also providing the services in
a cost-effective manner.
Mr. Horowitz. Yes. And that is what we are trying to do in
looking at these issues. In some respects, the delivery of
healthcare in the BOP is very decentralized. In other places
like at Butner and Springfield, which are medical facilities,
it is much more centralized within the prisons.
I think from our standpoint, one of the things we are
trying to look at is the issues of the management on a broader
level is more centralized versus the decentralized. There are
arguments obviously each way depending upon the locale, some
prisons in very remote locations.
But there are some very fundamental questions. For example,
the contract prisons, the companies that run the contract
prisons often have their own healthcare companies that are
providing that service. And we are trying to get behind that.
And, frankly, that is one of the reasons for the request on
the auditors that I made is those are very complex arrangements
that we are trying to get in the middle of.
Mr. Jenkins. Is there a clear description of the types of
services that a federal inmate must be provided? What I have
heard you just describe is the complexities of the
decentralization and the multifaceted approach to all these,
but is there really a core set of what services or are we
wrestling even with what a federal prison inmate in West
Virginia is entitled to compared to in another facility?
Mr. Horowitz. I think there are those issues.
Mr. Jenkins. That is my sense.
Mr. Horowitz. And then you have the overlay with the
contract prisons and how those are being managed. That has been
reported as the reason for some of the riots at some of the
private contract prisons is healthcare delivery or the lack
thereof.
So we are trying to get in the middle of that and
understand it better. And that is where I will put a plug in
for HHS OIG which has been very helpful to us in understanding
how they are looking at the Medicare, Medicaid systems and how
do those compare and what prices are being paid through
Medicare, Medicaid versus what prices are being paid in the
prisons.
Mr. Jenkins. Let me have one additional question, Mr.
Chairman, time permitted.
The other is, you know, again, having been through Justice
Reinvestment, a Reverend Watts in Charleston, West Virginia
once said, you know, we need to start focusing on people we are
really scared of, not people we are just really mad at. That
was a pretty profound statement with regard to our prison
population challenges.
But the President has in his base budget proposed a cut to
drug courts, cutting federal funding to drug courts. I know in
our state, drug courts have proven very effective. And there is
an initiative under the DOJ relating to the smart crime
initiative.
Have you done an audit of or have any involvement in this
research of the smart crime initiative, which I understand is
ongoing, which is supposed to identify whether or not some of
these initiatives are working, and I understand you do not have
the results yet, but we are still seeing a President's budget
that says we think drug courts apparently are not effective and
we are going to cut their funding?
Mr. Horowitz. We have not yet initiated on the smart on
crime initiative. Our plan was to do that later this year. It
will be about two years that it will have been implemented so
that we get some solid data actually analyzed. So we have not
yet initiated it. I can get back to you, though, on what we do
have on drug courts because I could not agree with you more.
One of the things we are trying to do actually is look at
what the states have done because, frankly, in the prison
reform area, the states are way ahead of the federal
government. We have looked at the largest states, Texas,
Florida, California, Georgia, and New York, the fifth state,
and see what they have done. And be happy to talk with you and
your staff about what the West Virginia model was.
But we are trying to take a look at that and see what
learning we can get at the state level, but also as we look at
reentry, pretrial diversion, drug courts, all of these
alternatives to incarceration.
And on the Sentencing Commission when I was there back in
2003 to 2009 period, we did a hearing and a review on
alternatives to incarceration and drug courts seemed to be
working very well.
Mr. Jenkins. Uh-huh.
Mr. Horowitz. So I am quite familiar with it and that is
why I want to look at some of these models.
Mr. Jenkins. Do you think we should be cutting back on drug
courts?
Mr. Horowitz. It surprises me that we would try and do that
as we look at all of these alternatives to incarceration.
Mr. Jenkins. Thank you.
Thank you, Mr. Chairman.
Mr. Culberson. The President's budget is, of course, just a
recommendation.
Mr. Horowitz. Yes.
Mr. Culberson. Great questions.
I recognize Mrs. Roby.
Mrs. Roby. Good morning.
Mr. Horowitz. Good morning.
Mrs. Roby. Thank you, Mr. Chairman.
Some of us just left a look on VA hearing about--you know,
regarding military families, and as I heard through their
testimony and see this amount of wasteful spending, $23 million
does not fix our problems, but I think it is flat-out wrong
that we are trying to use our military as a means to an end and
we have all those budgetary issues.
But when I look at this and I see the amount of wasteful
spending that you have identified, those dollars add up and
they add up throughout our federal government.
Mr. Culberson. And that is just what they are auditing.
Mrs. Roby. Right.
Mr. Horowitz. Right.
Mrs. Roby. So is the American people and our military
families, when we just left this hearing, you know, they are
looking at us saying, you know, you are trying to figure things
out on our backs, all the while compromising letting this. And
this is the kind of stuff that is in the budget that we are
finding. But we need to deal with this, and so I fully
appreciate--but I want to find out more about that $23
million--as I look through your testimony--the questioned cost.
If you could do into a little bit more detail about where those
dollars are formed and what do you anticipate to find
throughout the rest of this fiscal year?
Mr. Horowitz. Well, a fair amount of those findings come in
grant areas where the oversight has been lax or not
sufficiently rigorous to make sure that funds were not
commingled. Asset forfeiture issues that have arisen, we have
looked pretty aggressively at asset forfeiture questions, and
whether the monies were being used properly and appropriately.
We have looked at various Department programs. We did a review
of the ATF's use of its undercover training funds, for example,
on the law enforcement side and found how those monies were
being commingled and used in a way that was not consistent with
the intent of the program or at least being able to account for
it in a way that was consistent with the intent of the program.
And we are moving forward progressively this year in our
review of grants. We are also doing, and have initiated several
contract-related audits. One of the contract-related audits
that we are close to releasing and issuing which involves the
second-largest contract at the Justice Department is the Reeves
County correctional facility that is managed by a private
company in Texas--it is a $500 million-plus contract--and we
are going to be issuing a report in the next couple of weeks on
what our contract auditors have found in that regard, and we
have others that we are undertaking as well.
So we are trying to cover where the risk--where the
greatest risks are which tend to be in the grant area and,
frankly, the contract area.
Mrs. Roby. That was going to be my follow-up question with
you. If you could recommend to this committee where you think
the greatest scrutiny needs to take place, and then following
up with your previous answer as well, you know, if we could
have a more detailed list of where you intend to--or where you
found that $23 million and then where you are looking.
Mr. Horowitz. Absolutely.
Mrs. Roby. But could you tell us where you think the most
scrutiny should be applied?
Mr. Horowitz. We have found over the years when the grant
numbers were as high as they were, that those were where the
greatest risks were, the highest risks were in terms of
dollars. We, obviously, have a number of significant risks in
areas we have done in non-monetary reviews, but focusing just
on the dollar-related issues, and we think there are
significant issues, as contracts are now a quarter of the
Department's budgets, with those contracts and putting
aggressive scrutiny on them to make sure that they are
performing as required under the contract, as required by the
federal acquisition rules, and a number of those contracts were
in the prison area; therefore, by the contract prisons, they
are for health care and that is what we are trying to do more
work on and that is why we have asked for the enhancement.
But we have also tried to partner with HHS OIG to make sure
that we are able to do that kind of work.
Mrs. Roby. Okay. Thank you.
Mr. Chairman, I yield back.
Mr. Culberson. As in each of your testimonies, I would be
interested in what have you identified as best practices. This
is just systemic. It just seems like in every federal agency--I
got here in 2001. I came out of the state legislature in Texas.
It is not as bad in state government, but it certainly seems to
be just throughout the federal government, as Mrs. Roby was
just saying that the waste and the fraud and the abuse is just
maddening.
And if you could, as part of your testimony, for NASA, the
Department of Commerce, and for DOJ, if you have found examples
of programs that, on an ongoing basis, have done a good job of
flushing out fraud, waste, and abuse, please let us know. I
think about, Medicaid, if you identify Medicaid fraud and are
able to bring it to the attention of the government, you can
actually institute a qui tam lawsuit, I think it is called----
Mr. Horowitz. Right.
Mr. Culberson. [continuing]. And recover five to ten
percent of any fraud that you undercover.
Mr. Horowitz. Right.
Mr. Culberson. I think that would be great motivation for
federal employees. Why not give them five percent of anything
they can find. Is there anything like that in existing law that
they can flush out and save the taxpayers a hundred million
dollars. It would not be a bad thing to take home a $5 million
payday. I think that would root out a lot of waste.
Mr. Horowitz. Mr. Chair, I agree. [Laughter]
Mr. Culberson. It probably would not apply to congressmen--
it would not apply to us, but federal employees.
Yes?
Mr. Fattah. In your new role as chair of the IG counsel,
one of the big agencies that have all been challenged is the
Department of Defense; they have never even been able to
comply, even audited, so, you know, I mean at all.
Mr. Horowitz. Yeah.
Mr. Fattah. And I think the new goal is to be audit-ready
by the time we get to 2025.
Mr. Horowitz. Right.
Mr. Fattah. Which to have an agency that cannot be audited
is a concern. I know the IG counsel in the past had made very
strong statements about that, but since it takes up such a
large amount of the budget and it is so important to our
national defense, it would seem to me that those of us who are
interested in efficiency and effectiveness would be as focused
on that in terms of pushing for the help now.
Mr. Horowitz. Absolutely. Yeah.
Mr. Culberson. I do want to point out that if there is any
Marine Corps or Navy veterans in the room, that the--I
understand that the Marine Corps, and now the Navy, are the
first branches of the military to adopt generally accepted
accounting procedures. So the Marine Corps and Navy can now be
audited by an outside private accounting firm; is that your
understanding as well?
Mr. Horowitz. Right. That is my understanding.
Mr. Culberson. Yeah, it is a good thing.
Mr. Jolly.
Mr. Jolly. Thank you, Mr. Chairman. I apologize for being
late; I was with Mrs. Roby at the MilCon hearing as well. I
apologize.
And so if the question has already been covered feel free
to share with me, but I was hoping, you know, the foundation of
any IG is the independence of your office. And I followed the
issue with the IG Act and the FBI's interpretation of 6(a) and
how that has developed over the past year or two.
Can you talk about kind of where things currently stand,
and I guess the concern--and I think you raise it in your
testimony, rightfully so--that finally the process now
instituted by the Department requires the Department's approval
for your request or admonition of your request to the FBI to
actually achieve it, which undermines, then, the independence
of an authority of your office. Can you talk about where that
is right now, some of your specific concerns and remedies that
would actually really effectuate, you know, the change you need
or just enforcement of the current law.
Mr. Horowitz. Yeah, absolutely.
So where things currently stand is the FBI continues to
maintain. It does not believe we have the right to access our
own documents in its possession, citing several categories in
particular, as a legal reason. The AG and the Deputy AG have
put in place a process where the FBI reviews the documents that
we have asked for, does not produce them all right to us--they
have to go through and review. That delays and wastes money. I
mean there are costs associated with that.
Mr. Jolly. Reviewing it on what standard? I mean, what----
Mr. Horowitz. Whether there is any grand jury, wiretap,
Fair Credit Reporting Act information, Bank Secrecy Act, and
several other categories.
Mr. Jolly. Are they adopting the FBI's position,
essentially, when they are reviewing that?
Mr. Horowitz. That is essentially what is going on.
Mr. Jolly. And the Department that you are in charge of
serving as the IG for is actually taking the FBI--clearly, I
mean, taking the FBI's interpretation of this, right?
Mr. Horowitz. The status quo is the FBI's policy right now.
Mr. Jolly. Okay.
Mr. Horowitz. So not changing anything means we are living
under the FBI's legal interpretation, which is, it has to do
this review. We are being treated like a civil litigant at some
level; it is what they do for their civil discovery.
Mr. Jolly. Right. Right.
Mr. Horowitz. So we are part of the Department, but we are
a civil litigant.
Mr. Jolly. Right.
Mr. Horowitz. So they are reviewing the documents to decide
what not to give us because of their legal reasons.
Mr. Jolly. Uh-huh.
Mr. Horowitz. They, then, need to share it with the Deputy
and the AG, who have committed to giving us everything. So we
are spending money to withhold records that the AG said we
should get.
Mr. Jolly. Right. Right.
Mr. Horowitz. That is where the process currently stands,
and for which we have never mishandled records ever. I am a
former prosecutor, I understand the concern about these. We do
not generally ask for records in the middle of the criminal
cases, so we do not interfere. That has never been the reason
they have raised. And the Department's proposed resolution--
this is how the Department wanted to proceed, that was we did
not object----
Mr. Jolly. Uh-huh.
Mr. Horowitz. [continuing]. Was to send it to the Office of
Legal Counsel last May. We were told at one point it would be
done by October. I maybe should have asked which October, but
we are now in February and this is not that complicated.
Mr. Jolly. What is the impact of some of your
investigations?
Mr. Horowitz. I will just give you an example. We had one
that took almost a year of delay because of these issues. We
have the two whistleblower matters that I reported on that we
asked for in September and October. FBI whistleblowers, just to
get a sense of it, we have authority over FBI whistleblower
retaliation allegations. In my mind--put aside any legal
issue--the FBI should not be looking at those records, period;
there is a conflict. They should be handing them to us, what we
need.
Mr. Jolly. Uh-huh.
Mr. Horowitz. Instead, they are reviewing them to decide
what to withhold from us so they can go to the AG and say,
``Should we give it to them''?
Mr. Jolly. Right.
Mr. Horowitz. That has gone on for months on a
whistleblower retaliation matter.
Mr. Jolly. The IG Act is clear.
Mr. Horowitz. I do not think that you could have made it
much clearer.
Mr. Jolly. So the question, I mean it is a bit intriguing,
what is the legislative fix or is there one? Is it just----
Mr. Horowitz. I thought Section 218 would work.
Mr. Jolly. Right.
Mr. Horowitz. I thought Section 218 would work.
Mr. Jolly. Well, I mean it is a real question. Is there
anything on the authorizing side in the statute that you would
say needs tweaking or is it really just enforcement from the
subcommittee?
Mr. Horowitz. The problem that we have had on our side, on
the IG's side, and in talking with members, frankly, is we do
not know really what needs fixing.
Mr. Jolly. Right.
Mr. Horowitz. Which is where, I had mentioned earlier, any
opinion at this point would be good, because then, at least,
members of congress have a roadmap. We have a roadmap of how to
fix it.
Mr. Jolly. Right.
Mr. Horowitz. We could reinforce--you could take what is in
Section 218----
Mr. Jolly. Right.
Mr. Horowitz [continuing]. And make it absolutely clear----
Mr. Jolly. Sure. Right.
Mr. Horowitz [continuing]. In the actual statute, but you
would be writing against some unknown legal opinion lurking out
there----
Mr. Jolly. Got it.
Mr. Horowitz [continuing]. From the Department.
The easier way to do this--and this would resolve it. I
mean we are at a standstill now where the FBI's process is the
process. There is no resolution. I have another potential
Section 218 letter to come up, depending on what I learn from
the FBI, and these are going to continue because they are not
changing their process.
Mr. Jolly. So the Office of Legal Counsel needs
encouragement to issue their opinion----
Mr. Horowitz. Right.
Mr. Jolly [continuing]. And the FBI needs encouragement to
actually comply with Section 6(a) of the IGL Act.
Mr. Horowitz. Right. And I have talked with Director Comey
and what he, I think, would say is, We just need the----
Mr. Jolly. Yeah.
Mr. Horowitz [continuing]. Then to tell us we can do--we
can give it to you, because in our view, we do not think we can
right now, as the lawyers tell me.
Mr. Jolly. All right. Thank you. I appreciate it very much.
Thank you, Mr. Chairman.
Mr. Culberson. Thank you.
And the Office of Legal Counsel is simply an advisory
opinion; that is not binding on anybody?
Mr. Horowitz. That is correct. The AG and the Deputy have
to decide what--how they want to handle that opinion.
Mr. Carter. Can I chime in for a second?
Mr. Culberson. Yes, please.
Mr. Carter. There is no resolution designed related to any
of this; it is all--I mean you said that you are treated as a
civil litigant?
Mr. Horowitz. Yes.
Mr. Carter. But in the dispute of the civil litigant, there
is always the judge.
Mr. Horowitz. Right. That is right.
And do you know what is interesting?
Mr. Carter. Yes?
Mr. Horowitz. For the GAO, they can go to a judge.
We do not have any such authority.
Mr. Carter. Well, I mean at some point in time there has
got to be a resolution to this thing, and if we need to write a
resolution to the law, then we need to write a resolution to
the law.
Mr. Horowitz. Right.
Mr. Carter. It is insane that you are supposed to oversee
the activities of people--in fact, you are supposed to police
them up.
Mr. Horowitz. Yes.
Mr. Carter. And the people you are policing up can say, We
are not going to give you the evidence.
Mr. Horowitz. Yes.
Mr. Carter. I am sorry, that flies in the face of
felonious.
Mr. Horowitz. And I would just add, there is no rationale
that I can think of that would explain why Congress created our
office in 1988, why it authorized us in 2003, and the Attorney
General Ashcroft authorized us a year earlier to oversee the
FBI, the DEA and all the law enforcement components at the
Justice Department, yet you all thought we should not see the
evidence that they gather for the cases you want us to oversee.
Mr. Carter. Right.
Mr. Horowitz. If I cannot look at grand jury information at
the FBI, wiretap information, I am not sure why you would want
me to look at the FBI, right?
Mr. Carter. That is a fixable problem, but it needs to be
fixed.
Mr. Horowitz. Yeah.
Mr. Culberson. And, fundamentally, and I have come to view
our role as appropriators as, obviously, we have to allocate
precious, hard-earned taxpayer resources, but really to be the
enforcers. Fundamentally, we are the enforcers. The law is only
as effective as it is enforced, and that is ultimately up to
us.
I think you are exactly right, Mr. Jolly, that we will help
motivate these folks and to do the right thing and follow the
law.
Mr. Horowitz. And just to give an example of what----
Mr. Culberson. We can only appropriate our hard-earned
taxpayers' dollars for lawful purposes, right?
Mr. Horowitz. And just to give an example of how it has had
a positive effect, we had three open requests with DEA when the
law went into effect in mid-December. By New Year's Eve we had
all three of those records. So there was notice taken.
Mr. Culberson. Yeah. We will be sure to help with that.
And, also, if they are producing documents--if the agency--
you identified documents that you needed to pursue your
investigation of the whistleblower case, for example, and the
agency has the ability to go over those documents, I bet they
are pounding on some employees that are identified in there
that might be peripherally involved, I suspect, and that is a
real problem.
Mr. Horowitz. And, frankly, our biggest crisis in IG is we
do not know what we do not know. We are sitting here waiting
for records, yet they are being reviewed and in whistleblower
retaliation cases, there are all sorts of appearance issues,
let alone what is actually happening, so----
Mr. Culberson. We will be sure to help in any way we can.
I have a number of other questions that I am going to
submit for the record because I want to make sure that we are
able to hear from the Department of Commerce and NASA. You have
so many important responsibilities. I would like to meet with
you separately----
Mr. Horowitz. Absolutely.
Mr. Culberson [continuing]. And certainly welcome any of
the members who would want to join me in that, because you have
covered a lot of really important topics in your audits, in
your reports, and in your testimony today, and we deeply
appreciate your service. And we will do everything we can on
this subcommittee to help make sure that the law is enforced in
a timely and appropriate fashion.
Mr. Horowitz. I appreciate that.
Mr. Carter. Mr. Chairman, if I may?
Mr. Culberson. Yes, Mr. Carter.
Mr. Carter. I would like to suggest that the staff of the
subcommittee have a conversation with the judiciary committee
on the issues that we have been talking about here, a dispute
resolution solution. This is very important.
I tried a--case. I spent almost two weeks resolving, yes,
you can have that, and no, you cannot have that. I know that
somebody has got to do it.
Mr. Culberson. Yeah, you got to----
Mr. Carter. You cannot just stand up there and look at each
other and say, No, yes, you know?
Mr. Jolly. Well, what scares me right now is that the
person who says whether or not you can have it, is actually the
office that they are supposed to be----
Mr. Culberson. Exactly.
Mr. Carter. It did not make sense.
Mr. Horowitz. Yeah. Yeah.
Mr. Carter. So I would suggest that we all get at the staff
level some good communications going with the judiciary
committee.
Mr. Culberson. Absolutely. And we will, I assure you that
the staff and this subcommittee will all work together to make
sure that there is ongoing and aggressive encouragement.
Mr. Horowitz. All right. I appreciate it.
And I look forward to meeting with you and the staff going
forward on any issues that you think would be helpful with, I
look forward to it. I appreciate all of your support.
Mr. Culberson. Any other questions?
Thank you very much for your service to the country. I look
forward to meeting with you privately and with other members of
the committee.
Mr. Horowitz. Thank you very much. Thank you, Mr. Chairman.
Mr. Culberson. Thank you very much, Mr. Horowitz.
At this time we are going to recognize Todd Zinser,
inspector general for the Department of Commerce.
And, Mr. Kilmer, I understand you will substituting for Mr.
Fattah right out of the gate.
Mr. Zinser, we sincerely appreciate your service to the
country. I enjoyed our visit in my office. I am looking forward
to doing that with Mr. Martin as well and with Mr. Horowitz.
And I will, of course, enter your statement--your testimony
in its entirety into the record, if there is no objection, and,
of course, would encourage your summarization of that hitting
on the high points. And, again, I did not see it in here, but
as I mentioned earlier, I would be very grateful to hear from
you and from Mr. Martin if you found some examples of best
practices. Are there existing, either programs or policies, in
the Department of Commerce, for example, that have demonstrated
a pretty good ability on an ongoing basis to undercover fraud,
waste, abuse, duplication, that sort of thing. I would be
interested in that. But we welcome your testimony, and thank
you for your service to the country.
Wednesday, February 25, 2015.
UNITED STATES DEPARTMENT OF COMMERCE
WITNESS
TODD J. ZINSER, INSPECTOR GENERAL
Mr. Zinser. Thank you, Chairman, Ranking Member Fattah,
Members of the Subcommittee. We appreciate the opportunity to
testify today as you consider the fiscal year 2016
appropriation for the Department of Commerce.
As the Subcommittee is well aware, the Department of
Commerce is very diverse and all of its bureaus do important
work for the taxpayer. My testimony today will briefly
summarize eight challenges and concerns that we have identified
throughout our work.
NOAA SATELLITES
First is NOAA's environmental satellite programs. The Joint
Polar Satellite System, or JPSS, and the Geostationary
Operational Environmental Satellite-R Series, or GOES-R, each
has a current life cycle cost of about $11 billion. Our work is
indicating the potential for a gap in polar satellite coverage
of 10 to 16 months in fiscal year 2017, and the GOES-R program
is at risk of not having a backup satellite in orbit this
fiscal year and extending into 2016, and, again, with GOES-S in
2017 and 2018. NOAA must focus on maintaining the current
baseline of the cost, schedule, and performance of these
acquisitions to avoid further delays--and also on its plans to
mitigate any coverage gaps.
CYBERSECURITY CONCERNS
Second, serious cybersecurity concerns persist at the
Department. The Department must address, for example, security
weaknesses in its incident detection and response capabilities,
as well as persistent security deficiencies that make the
Department vulnerable to cyber attacks. NOAA IT systems that
support its satellite programs are a particular concern,
including a recent hacking in the fall of 2014 that affected
some of those systems.
2020 DECENNIAL CENSUS
Third, the Census Bureau must design and implement a cost-
effective and accurate 2020 decennial. Even if the Census
Bureau is able to maintain the cost-per-housing unit it
achieved for the 2010 decennial, which averaged $94 per housing
unit, the estimated cost of the 2020 decennial would be nearly
$18 billion, or around $5 billion more than 2010. The Census
Bureau and the Department must make significant 2020 design
changes to achieve an accurate census while substantially
containing those costs.
COST-SAVING FINANCIAL CONTROLS
Fourth, the Department must strengthen controls over its
finances, contracts, and grants. And this is an area where I
think there are potential for cost-savings, Mr. Chairman.
During the period of 2012 to 2014, the Department obligated
over $7.6 billion in contracts and over $3.6 billion in grants,
which represented nearly one-third of the Department's overall
budget during that period. These included hundreds of millions
of dollars in sole-source contracts, other high-risk contracts,
and sensitive acquisitions. Our audits indicate that the
Department must improve its awarding and monitoring of
contracts and grants.
ISSUES AT USPTOC
Fifth, the U.S. Patent and Trademark Office must
reducepatent backlogs in pendency, address quality issues, and
strengthen workforce management. For fiscal year 2016, USPTO is
requesting authority to spend fee collections of $3.2 billion. USPTO
faces challenges with reducing wait times for issuing determinations on
new patent applications, appeals and other filings, as well as with
responding to stakeholder concerns related to patent quality. As
indicated in investigations last year, USPTO will also face significant
challenges managing the time and attendance of its examiners in its
telework programs.
FIRSTNET CHALLENGES
Number six, FirstNet's implementation of a nationwide
public safety broadband network. FirstNet has been authorized
to spend $7 billion in mandatory funding to accomplish its
mission. However, FirstNet's startup has posed many challenges.
In December 2014, for example, we reported on ethics- and
procurement-related issues. The Department has acknowledged our
findings, concurred with our recommendations and undertaken
corrective actions.
DEPARTMENTAL ACCOUNTABILITY
Number seven, the Department must continue to foster a
culture of accountability. In fiscal year 2014, OIG
investigated and audited several high-profile matters directly
resulting from a lack of compliance with laws, rules,
regulations, and ethics guidelines, and which reflected serious
mismanagement. This is an area that requires continued emphasis
by OIG and Departmental management.
CHALLENGES TO OIG INDEPENDENCE AND ACCESS
Finally, Mr. Chairman, the Department must ensure that
Office of Inspector General independence and access are more
strongly supported. In August 2014, I was one of 47 Inspectors
General, along with IG Horowitz and IG Martin, who signed a
letter to Congress concerning access and independence issue.
There are several current issues discussed in my written
testimony, including a two-year delay from the Department's
Office of General Counsel in processing audit policies to
ensure OIG's direct and full access to records during OIG
audits.
Mr. Chairman, this concludes my statement. I would be
pleased to answer any questions.
Mr. Culberson. Thank you very much, Mr. Zinser.
MANAGEMENT ACTIONS
What, if any, consequences are there for a Federal
employee, for example, a Department of Commerce--frankly, I am
sure it applies elsewhere as well--when they fail to comply
with laws, rules, regulations, and ethics guidelines?
Mr. Zinser. Well, sir, the penalties vary. We have seen
cases where the Department has not done anything. We had a case
last year, for example, where it took 18 months for the
Department to take any action on an investigative matter we had
referred to them.
Mr. Culberson. What action did they take?
Mr. Zinser. I think, at the end of the day, there was a
suspension in that case.
Mr. Culberson. A suspension?
Mr. Zinser. There are cases where there have been removals,
but it varies greatly. We are doing some work at PTO, for
example, where employees or examiners, for example, engage in a
misconduct called ``patent mortgaging,'' where they submit work
knowing that it is not sufficient or not completed and that is
a case of misconduct.
We found, and we are going to be issuing this audit in the
near future, that the penalties for that varied very widely,
so----
Mr. Culberson. Such as?
Mr. Zinser. Well, from no action to suspensions. I do not
think anybody has been removed for that misconduct.
Mr. Culberson. So the worst thing to do under Federal civil
service guidelines, is a suspension?
Mr. Zinser. I think that is the most common response.
Management can remove employees, but suspensions are more
common.
Mr. Culberson. I will never forget this Exhibit A when I
first got on a Military Construction VA Subcommittee--and Judge
Carter may remember this as a fellow Texan--there was a
cemetery director at the Houston VA cemetery in Houston who
closed the chapel, removed the Menorah and the Bible, padlocked
it, used it to store boxes, and turned off these--these guys
had landed at Normandy Beach, I mean these wonderful old
gentlemen who made it possible for us to be here--contributed
money to build a carillon to chime bells--she turned that off
and then forbid the families from praying over the grave of
their deceased loved one.
I cannot imagine it getting worse than that, and I was
Chairman of the Subcommittee and they would not fire her, would
not even suspend her. The only way that I was able to get her
removed is, I just frankly just had to get on the phone with
the Secretary of the VA. Of course the entire State of Texas
and all of Houston was in an uproar, understandably; it was
just an outrage. They still did not fire her. All they did was
move her to headquarters and put her in charge of proofreading
memos. Just unbelievable.
What recommendations have you--would you make--and I would
certainly welcome this from Mr. Martin, as well as Mr.
Horowitz--to changes in personnel policy so that you can
actually either penalize somebody? Obviously you also would
want to reward them for good behavior, you know, award bonuses
if you are doing a good job--but what recommendations would you
have for us to change the law to allow for these agencies to
actually ding people in the pocketbook and, frankly, remove
them if necessary? For example, the polar satellite, someone
who manages these incredibly expensive programs--if it is a
technical problem, I understand it, but if it is incompetence--
you see this over and over and over again--Mr. Martin has seen
it, I am confident, in some of the NASA satellite programs
where you have got these massive cost overruns. What
recommendations do you have for us about how we can hold people
accountable?
Frankly, as I am sure you know, Texas is an at-will State;
if you do not do your job, you are fired. What do you recommend
that we do at the federal level?
Mr. Zinser. Well, it is a very complicated issue based on
the number of different appeal avenues that employees have once
management seeks to scrutinize performance and scrutinize
misconduct. There are a number of avenues that employees take
to avoid being accountable. So I think one area would be to
take a performance action or a conduct action against an
employee. Performance actions are very, very time-consuming.
Management must be very detailed. They are very difficult----
Mr. Culberson. Under the Civil Service Rules?
Mr. Zinser. Under the current rules, and in many cases,
when the poor performance is very evident, managers still have
to go through a very tedious process to document and take
action.
Mr. Culberson. I would certainly welcome--I know all of us
would--your specific suggestions on how we could help change
the law because it is just an ongoing, absolutely maddening
problem.
Mr. Zinser. I would be happy to submit some
recommendations.
Mr. Culberson. If you cannot fire somebody for not letting
a family pray over the grave of a deceased veteran, you cannot
fire anybody. That just is absolutely incredible.
OIG ACCESS
I gather you have similar problems, as Mr. Horowitz, in
being denied access to information, and I want to ask if you
could talk to us a little bit about the challenges you have had
getting information for the Department of Commerce. Do you have
any information requests pending, and has the Secretary been
helpful in making various Commerce Bureaus work cooperatively
with your staff?
Mr. Zinser. Yes, sir.
Access and independence issues are really just part of the
landscape that IGs deal with, and some cases are more serious
than other cases. We had a very serious case back in November
2012 that this Subcommittee helped on where, two months after
we issued a critical report of the polar satellite program, we
were banned from attending their monthly program management
council meetings, which we had attended for a long time.
Mr. Culberson. No kidding?
Mr. Zinser. And this Subcommittee wrote a letter on our
behalf. That persisted from November 2012 until Secretary
Pritzker came in, in the summer of 2013, and finally reversed
that order. So that was a very serious issue.
We have issues on a smaller scale: for example, I just had
an auditor in one of the field offices for one of the bureaus,
and the management there insisted on escorting my auditors from
cubicle to cubicle if they had to interview employees. That is
just not acceptable.
So the issues vary. Currently, we have a request
outstanding. For example, we are trying to do a data analytics
project at the Census Bureau to look at the data that is
created when employees enter and depart the building using
their swipe badges. We have been denied access to that universe
of data and the Department is citing the Privacy Act to assert
that its systems of records notice does not permit the IG to
have those records for that purpose. So we have been waiting
for a year for the Department to change its systems of record
notice.
Mr. Culberson. Oh, please let us help you. We would be
delighted.
Mr. Zinser. I would be very grateful.
Mr. Culberson. As Mr. Jolly said earlier, we are the
enforcers.
Mr. Zinser. I would be very grateful. In that case, the
Census Bureau had 28 cases last year of time and attendance
abuse by employees and we are concerned that it is a bigger
problem than that.
FEDERAL GRANTS
Mr. Culberson. One other quick question. If you are a grant
recipient, State, local, or nonprofit, for example, and the
agency is not doing proper oversight and the grant money has
been misused in some way, what consequences, if any, are there
for a grant recipient, as a general rule for the Department of
Commerce?
Mr. Zinser. Well the grant environment at Commerce is
somewhat difficult to monitor because a lot of the grants are
smaller-dollar amounts relative to other departments. But there
are a lot of grants--as I mentioned in my testimony, over the
past three years, Commerce has spent $3.6 billion in grants.
The consequences should be that the grantee is required to
repay the money.
Mr. Culberson. Thank you. That is what I was looking for.
Mr. Zinser. That, too, is something that you really have to
stay on the agencies to get them to do that.
Mr. Culberson. Does current law require a grant recipient
who misuses the money or engages in fraud, waste or abuse, for
example, to disgorge the money and return it? Is that current
law or internal regulation guidelines for it?
Mr. Zinser. Well, there are certainly laws against
converting Federal funds for your own use. So we do have cases
where grantees or principals of grantees steal money and, if
they are caught, they get prosecuted.
Mr. Culberson. But if they are not using it for the purpose
for which the grant was intended, for example, they just buy
the drone, they do not get FAA approval or whatever, do they
have to disgorge it and return the money?
Mr. Zinser. The Department can go through a process
requiring them to return money under current regulation and
law.
Mr. Culberson. Okay.
Mr. Zinser. But the Department has to have the will to do
that.
Mr. Culberson. That is another one I would be interested in
pursuing.
All right. Let me, if I could, recognize Mr. Kilmer.
Mr. Kilmer. Thank you, Mr. Chairman.
CYBERSECURITY CONCERNS
And thanks for being here. I was struck by your written
testimony that the degree in which cybersecurity is a concern
and a problem. You know, I know that your office submitted a
lot of recommendations to NOAA following their cyber attack
against NOAA in 2014.
Do they have the capacity and the capability to actually
maintain an IT infrastructure to avoid future cyber attack?
Mr. Zinser. I believe they do. I just think it requires
much greater attention and vigilance than what they have
applied. And I think the other thing that we have run into,
especially in the NOAA IT area, is a resistance to our
oversight. If NOAA were more receptive to our oversight, and
worked more closely with us in resolving some of those issues,
it would be a lot better.
Mr. Kilmer. So what is the issue and what is the concern
they raise and why would not they adopt your recommendations?
Mr. Zinser. Well, I think it is a matter of applying the
resources to it, sir.
Mr. Kilmer. Okay.
Mr. Zinser. We made recommendations on one system back in
2010 and the answer was that we are going to replace that
system, so we do not want to put the resources into
strengthening the security of that system. That system has not
been replaced and it is 2015.
Mr. Kilmer. Got it.
Can you talk more about what else needs to be done to
improve--outside of NOAA--everything from incident detection
and response to cyber attack against the Department and the sub
agencies?
Mr. Zinser. I think one area where the Department is
improving is they are centralizing some of the oversight
requirements for IT security. They have two primary projects
that they have underway. One is called ESOC, which is to set up
a central facility to monitor the networks for suspicious
activity.
Mr. Kilmer. Uh-huh.
Mr. Zinser. And they are making progress on that. And the
other project is called ECMO, which is basically software
programs that each of the bureaus are required to implement to
guard against systems that are not properly patched or
configured. It is a continuous monitoring program that they are
instituting, and it costs each of the bureaus money to put that
in place, and they have made some progress on that.
CONTRACTS AND ACQUISITIONS
Mr. Kilmer. I want to also ask about the concerns around
acquisition policy. Your testimony mentioned concern about the
use of time and materials and labor hour-type contracts. You
know, I do not think it is Congress' role to dictate how
contracting officers specifically structure their contracts,
but I think it is important that we make sure that they are
educated about, and have the tools that they need to make good
business decisions. So with that said, what do you think is
driving the use of some of these more risky contracts and what
do you think we ought to do to make sure that the use of those
contracts is appropriate?
Mr. Zinser. Thank you.
The contracting choices that are made by contracting
officers are certainly the bailiwick of the contracting
officers. Regarding some of the issues we have found, though--
for example, on sole-source contracting--we have done audits
where the justification for sole-source just is not adequate.
And, of course, a contract that has been competed,
theoretically, is more cost-effective than a sole-source
contract. So sole-source contracts, by nature, are high-risk.
I think the other shocking thing from our perspective is
that, when we go in and look at contracting offices and
contracting files, there are files that are missing. And even
on files that are not missing, we find where some of the
supporting documents for some of the payouts just is not
present. So a lot of it is kind of simple hygiene in terms of
the contract offices.
Mr. Kilmer. So I guess just to put a fine point on it, is
there something that you recommend that we do to try to drive
better behavior in that regard?
Mr. Zinser. Well, I think that the people in charge of
those contracting offices are the folks that you have to look
to to really put in place the rigor and the discipline of their
contracting staff. And I think that the skill sets of the
employees would be particularly important to look at because
contracting staff is very competitive. The government is not
only competing with other government agencies; it is competing
for contracting talent in the private sector.
Mr. Kilmer. Yeah.
Mr. Zinser. So I think that there are steps being taken for
training and schools for contracting officers, and I think that
supporting those efforts would be good.
Mr. Kilmer. Thank you.
Thanks, Mr. Chair.
Mr. Culberson. Thank you, Mr. Kilmer.
And I recognize Mr. Jolly.
Mr. Jolly. Thank you, Mr. Chairman.
Thank you for being here, Mr. Zinser. I actually have a lot
of questioning I promise you, you did not see coming this
morning.
Mr. Zinser. Okay.
NOAA FISHERIES
Mr. Jolly. I am trying to figure out a way for local
fishermen in my district to have more days to catch red snapper
than the current nine days. I am telling you where I am trying
to get to and this is where you come in. In your testimony, you
talk about a continuing emphasis on compliance with the law. So
the issue, and I am hoping that you can educate me--and, Mr.
Chairman, this is a real priority for me on this Subcommittee--
so we have Magnuson-Stevens out there, it is up for
reauthorization. And one of the issues that--and this has an
enormous economic impact; it is not something to make light
of--between commercial, recreational, for-hire, what it means
for our economy, for the quality of life in our coastal
communities around the Gulf--and Ms. Herrara Beutler is going
to talk to you about salmon later.
But here's the issue, and this is really where I want you
to educate me. Currently under Magnuson, NOAA, NMFS, the
science centers are required to consider third-party
independent research when it comes to stock assessments. And I
have put together a 30 or 40-person council in my district of
all the different sectors. The one thing they keep saying is
that the agency will not consider third-party data. And so the
closures are based only on the internal data that they have and
they are saying ``no, thank you'' to a lot of the third-party
data.
My question for you is really in the compliance of the law
and how your office, on a macroissue like that, I mean we are
talking simple statutory language, how do we push--because we
have gone full circle with this--do we need to change the
language in Magnuson and, frankly, it comes back to no; we just
need the agencies to comply with what the existing statute
says.
Mr. Culberson. And enforce it through this subcommittee.
Mr. Jolly. And enforce it regarding third-party data.
Where does your office come into that in something as, you
know, cumbersome as simple compliance with a statute like that?
Mr. Zinser. Well, I think the simple answer on fish stocks
is, as you were suggesting, better science. They have to rely
on better science.
Mr. Jolly. The amount of data, science, that solves all of
this. So my question is how do we get the agency to consider
what they are required to consider under the law when it comes
to third-party data and science?
Mr. Zinser. Well, we could certainly do some work to find
the areas where they are not doing that. We did some work
probably four or five years ago where we did look to see
whether NOAA was using--the Magnuson-Stevens Act best-available
science----
Mr. Jolly. Right. That is right.
Mr. Zinser [continuing]. Then NOAA decides what that is.
Mr. Jolly. Right.
Mr. Zinser. So we were not able to say that NOAA was not
using best-available science because NOAA decides what the
best-available science is.
Mr. Jolly. Right.
Mr. Zinser. I do not know whether our office would have the
expertise to do it, but there are organizations out there, the
National Academy of Science for example----
Mr. Jolly. Sure.
Mr. Zinser [continuing]. Who could do a study or provide
some assistance on how we get beyond that issue of best-
available science.
Mr. Culberson. But you could certainly help identify
whether or not they are using third-party data, as required by
the statute----
Mr. Jolly. Yes. And then to evaluate their interpretation
of best-available science. It is kind of like the last panel,
if the agency is saying, ``Trust us'', we are using the best-
available science, it is hard for you to question that unless
we have an outside review of how they actually are coming to
that conclusion.
And, NOAA and NMFS, they are in my district; they are a
constituent entity in my district, so it is something I want to
work with them on, but it is a serious impediment to our
economy in the Gulf States and to the quality of life. And, if
you talk to folks on the water, they say we have more red
snapper than we have ever had before.
And then you get into this conundrum because then the
agency says, ``Right, see, it is working.''
Mr. Zinser. Yes.
Mr. Jolly. But at what point do you declare success and
begin to open it up.
Mr. Zinser. What I do not know is, for example, whether
NOAA uses peer review for fish stock--and I should know this,
but I do not--and, if it does, who sits on those peer reviews?
Mr. Jolly. That is the issue, and Mr. Chairman, we can talk
about this offline. I actually think there is a way to work
with the agency on this through a cooperative research
institute that still stays under the jurisdiction of NMFS, but
aligns them--and there is precedent for this within the
Department--a cooperative research institute where we know now
that third-party inspect researchers, peer-reviewed, have a
seat at the table and we know it has to be considered.
So I would like to work with you on that.
Mr. Culberson. I would be happy to help with that.
It is a big issue in Texas----
Mr. Jolly. I appreciate that.
Mr. Culberson. And the Governor's Office just spoke to me
about it last week.
Mr. Jolly. Thank you, Mr. Chairman.
Thank you very much.
Mr. Zinser. Thank you.
Mr. Culberson. Mr. Honda.
Mr. Honda. Thank you, Mr. Chairman.
And, good morning.
Mr. Zinser. Good morning.
USPTO MANAGEMENT ISSUES
Mr. Honda. Speaking in general, in your testimony, you
mentioned challenges that USTPO has and has been facing in
managing its telework programs and the Department and the USTPO
have undertaken a number of initiatives to address these
workforce management issues. So, very quickly, can you tell us
more about the steps that have been taken to address this
challenge and have you evaluated those changes, and if so, what
can you tell us about those differences?
Mr. Zinser. Yes, sir.
First, I think PTO is very focused on it since issues came
to light last summer. I know that they are not ignoring the
issue. It has brought in an outside party, the National Academy
of Public Administration, to do a study and that is still
ongoing.
We are having regular interactions with PTO management on
the steps that it is taking; I can tell you a couple of them,
for example. One is that it has allowed the supervisors to
access records that they were not really easily approved to
have before when they think an employee has not been answering
calls and has not been responding to emails. In the past, they
really were not able to use other computer records, for
example, to see whether the employee logged on that morning.
PTO has freed that up a little bit: the whole issue of holding
the examiners accountable really boils down to the supervisors'
interaction with their teams, and PTO is letting the supervisor
now do more data gathering when they think that they have got
an employee not reporting to work.
Another example is that PTO is allowing the supervisors to
look at their docket management more frequently. In the past,
they would not really look at the production of the employee on
a regular basis. So you ran into this phenomenon called end-
loading where, during a quarter, the patent examiner would have
a number of applications assigned to him or her and there would
be very little work done during the first part of the period,
but at the end of the period the supervisor would be flooded
with these applications. PTO is letting the supervisor now
monitor the workload more frequently through the period to make
sure that the employee or the examiner is working on a
consistent basis.
Mr. Honda. It sounds like it is an evaluation technique
that you have to go through a long period of time in order to
evaluate whether a supervisor or a examiner is doing their job
in a timely manner and it seems like patents and trademarks are
more kind of a time-oriented issue that needs to be dealt with.
I do not hear that that is the kind of evaluation that is being
placed upon this process to see if telework is the appropriate
way to go. Given the time that you described, it seems to me
that there needs to be more a refined approach to it, because
the patent applicants, they want to know as soon as possible,
or is that built into that evaluation? If you can give us
something offline on that and share that with us, I would be
very interested in it.
Mr. Zinser. I would be happy to do that.
Mr. Honda. Okay, because the USPTO is a very important
agency that is based upon time. And I understand using
technology would be helpful, but it seems to me that if you do
not monitor the time and efficiency and the efficacy of
returning information back to the patent holder becomes in
danger.
EEO COMPLAINT
Under the Equal Employment Opportunity, Inspector General,
two weeks ago your office was found to have engaged in
retaliation against an employee who filed an Equal Employment
Opportunity complaint. To address this violation, the office
has been ordered to compensate the employee for back pay and
several Commerce Office of the Inspector General supervisors,
including yourself, have been required to take EEO training.
In addition, you were ordered to post a letter in your
offices when the EEO investigation was completed on Friday,
February 13th. I have a copy of the letter here and the letter
describes the violation that occurred and reaffirms your
office's commitment to ensure that all Federal Equal Employment
Opportunity laws are followed and reaffirms your office will
not retaliate against employees who file EEO complaints.
However, it is my understanding that this public letter and
statement has yet to be posted by you or your office.
So the question, I guess, is have you posted the letter
ordered by the Department of Commerce Office of Civil Rights,
which found your office retaliated against a former employee,
has that been done?
Mr. Zinser. I do not think it is posted yet; we are in the
process of doing that. My understanding is that the employee
has an opportunity, a 30-day window, to appeal. So part of the
issue is to determine whether the employee is in that appeal
window, but we are in the process of posting that on both a
physical posting site and our internet site, sir.
Mr. Honda. Well, wait a minute. You said that the employee
has a right to appeal a judgment that was in that person's
favor?
Mr. Zinser. Well, yes, sir, that is the way the process
works. The Department----
Mr. Honda. Well, it seems to me an appeal would be on your
side rather than on--I am not an attorney, so you have to
correct me. Why would a plaintiff appeal a judgment for them?
Mr. Zinser. Yes, sir. Well, the judgment was called a final
agency decision, which means somebody in the Department issued
the judgment versus a judge. And in that case, for example, the
employee made 40 allegations. In one of them, the Departmental
official ruled in the employee's favor on one of them. So if
the employee felt, for example, that that judgment was
deficient, the employee can appeal to the Office of Federal
Operations at EEO. The IG's Office has no right to appeal any
of it and we are not interested in doing that. It is just a
logistical thing in terms of posting the letter.
Mr. Honda. This notice to employees that you were ordered
to post by yourself and your offices, this notice is posted
pursuant to a final agency decision of the U.S. Department of
Commerce Office of Civil Rights dated Friday, February 13th,
which found that a violation of Age Discrimination Employment
Act as amended has occurred at this facility, and it seems to
me that you were ordered to post this letter and you have not
done that yet.
Mr. Zinser. Yes, sir. We do have a period of time to do
that and we are in the process of doing it; it is a logistical
issue.
Mr. Honda. February 13th and this is February 26th.
Mr. Zinser. 25th.
Mr. Honda. How long does it take for you to determine
whether you should or should not follow the order of the Office
of Civil Rights to post something?
Mr. Zinser. Well, that order came down on a Friday; that
Monday was a holiday. On Tuesday, OPM shut down the DC-area
Federal government due to hazardous weather. On Wednesday, I
did ask my staff to post the letter and I will go back to see
whether or not it has been posted.
Mr. Honda. So you asked or you told them to? I mean, this
is an order.
Mr. Zinser. Well, okay, I told them to, but I brought my HR
director into my office, informed her of the decision, and
asked her to get it posted.
Mr. Honda. Did you give her a time definite?
Mr. Zinser. Well, I asked her to work with our Counsel's
office to get that accomplished, sir.
Mr. Honda. How about ASAP? I mean, it seems like an order
is an order. It did not tell you that you had any leeway.
Mr. Zinser. We did have conversations with the Office of
Civil Rights about that, sir, and, like I said, we are in the
process of posting it.
Mr. Honda. So----
Mr. Zinser. We will get it up.
Mr. Honda [continuing]. Can you tell us by when?
Mr. Zinser. We will get it up, if today is Wednesday, no
later than Friday.
Mr. Honda. Thank you, Mr. Chairman.
Mr. Culberson. Thank you, Mr. Honda. I recognize Ms.
Herrera Beutler.
NOAA FISHERIES
Ms. Herrera Beutler. Thank you, and thank you for being
here. In Southwest Washington, my district, it goes from the
Pacific coast, from the mouth of the Columbia up to the tip of
Willapa Bay, and the salmon hatcheries on the Columbia River,
which are Mitchell Act funded, support recreational and
commercial fishing. So it is kind of very two opposite ends of
the country, but we both have fish issues, surprisingly.
Different fish, mind you. These fisheries support thousands of
jobs in our region. And actually, I should add, up the
coastline it is an amazing resource that we love, protect and,
as we protect it, it also takes care of us in the form of
commercial activity, it provides for families. And despite the
importance of these hatcheries, I feel like we are having some
challenges that we cannot address that are threatening our
livelihood. I was really upset to see NOAA requested $3 million
less to the Salmon Management Activities account and those
reductions target Mitchell Act hatcheries. And even under this
spending level we know that the number of fish released is
decreasing as costs escalate.
We had certain answers on this information, but what I
would like to understand, despite the fact that as you take
away money and you allocate less resources and time to
something, they are maintaining in their budget document that
they are going to be able to meet their obligation for
operation and maintenance and their obligation to meet the
hatchery reform responsibilities, which I am not totally sure
how they are going to do that. Do you have any insight--and I
know this is really getting into the weeds--as to how they are
going to meet those obligations despite putting time and
attention into it?
Mr. Zinser. Congresswoman, I do not have insight into the
hatchery issues in Washington State, but it would be something
we would be very happy to look into. I know that NOAA has spent
a lot of resources on salmon, but I have not tracked its----
Ms. Herrera Beutler. It gets specific quickly.
Mr. Zinser. No, we would be happy to look at that.
Ms. Herrera Beutler. I would appreciate that. The second
concern I have relative to these hatcheries and those that are
in the Puget Sound is the issue associated with hatcheries not
having approved hatchery genetic management plans. And I know
that they are required under ESA, but absent the HGMPs these
hatcheries are vulnerable to third-party lawsuits and potential
legal action that could halt the hatchery releases. And this is
another--there are lots of salmon issues--this is another area
where I would like to make sure that the backlog is addressed
and that these get put forward and put through for approval,
because by not doing them it just jeopardizes our effort, the
time and the money that we are we putting into protecting these
wild and hatchery species. So that is another area where I
would welcome your help.
Mr. Zinser. I would be happy to contact your office and run
down these issues and make some inquiries.
Ms. Herrera Beutler. That would be great. Great, that is
it. When you talk about main issues, why you get on a Committee
like this, that is a big one for us. So, thank you.
Mr. Culberson. The President's budget is only a
recommendation, as I always remind the Agency.
Ms. Herrera Beutler. Yes, it is.
Mr. Culberson. It is----
Ms. Herrera Beutler. Yes, it is.
Mr. Culberson [continuing]. Just one of many things we take
into account, but we get to write the bill.
Ms. Herrera Beutler. Thank you.
Mr. Culberson. And I want to follow up, if I could, Mr.
Zinser on a couple of areas. I will submit the majority of my
questions for the record in the interest of time, but to follow
up on the census.
NOAA WEATHER DATA
By the way, I would like to ask though, because I am keenly
interested in getting good data, as Mr. Jolly was just talking
about--particularly when it comes to NOAA and weather data--I
am keenly interested in making sure we have got accurate
temperature data. I am fascinated to see a couple of articles
here. Recently some studies have been done showing that the
Goddard Institute that was tracking weather data while James
Hansen was there was averaging numbers, and filling in blank
spots. I would like to visit with your folks separately about
that, but if you could ask anyone if you have any audits or any
examination you have done of the NOAA weather data that they
have been collected for years and would really be interested to
know when they were just filling in blank spots with numbers
they made up, or are they actually using--you just want good
data, right? You want to make sure you are getting good,
objective, accurate data, particularly on something as
important as when they are going to try to impose a carbon tax
on us based on it, for example.
2020 DECENNIAL CENSUS
But I digress, let me get back to the census. I really want
to follow up with you on that and Mr. Martin, accurate weather
data, temperature data. As you mentioned in your opening
statement, the cost of the census in 2010 was about $13 billion
and you would think the cost the next time would go down. They
have learned lessons from the last time and re-engineered it to
hold the cost down below the 2010 census and currently the
Census Bureau's cost model is predicting a cost of $12.6
billion for the 2020 census. Do you believe that estimate is
accurate?
Mr. Zinser. I think the estimating is very complicated.
Census uses what is called a Monte Carlo process for
estimating, which takes in all kinds of different variables and
comes up with a range. The $18 billion estimate is at 80
percent of the Monte Carlo estimate. We have not gone in to
audit that estimate; we are in the process of looking at it,
though. It came up in the 2014 site test work that we are
doing.
Mr. Culberson. What additional steps would you recommend
for the Census to take to keep the cost of the 2020 census
below that of 2010?
Mr. Zinser. Well, I think Census has to work in a number of
areas; one is the address list. In 2010, it spent half a
billion dollars going out and visiting every housing unit,
putting in their GPS code and coming up with a master address
file. That was very expensive and we think that there is
technology they can use. Census is working very hard on this,
to reduce that cost to not do a 100 percent address canvassing
but more targeted address canvassing and use existing data from
various private sector organizations that actually produce that
kind of data.
I think the other thing that Census is doing is they are
preparing to use the Internet, but in connection with that it
has to get an advertising campaign or a social media campaign
to get people to respond to the census via the Internet. It is
testing that in the 2014 site test and probably more rigorously
in the 2015 site test down in Savannah. I think Census has to
use administrative records, if it can. I think it will be
easier to use administrative records on the address-list issue,
more complex on the enumeration, and Census is working on that
right now.
And I think, finally, The bureau is going to reduce the
number of local Census offices used in 2010 and will be able to
do that by the way it re-engineered or restructured their field
offices. It is going to be supervising enumerators from fewer
local field offices based on technology.
Mr. Culberson. What are your top three concerns about the
cost, schedule and implementation of the 2020 Census?
Mr. Zinser. Well, I think one of the biggest risks is the
IT systems that Census needs to put together to process all the
data. It has a very ambitious IT project to combine all the
various IT systems into one. In 2010, Census spent $1 billion
on a contract that actually scanned in all of the paper forms
received and then processed that data. That contract will not
be necessary if the Bureau is able to put this IT system in
place. Without that system in place, we are going to revert to
2010 and that would be very, very problematic.
Mr. Culberson. That is a serious one. I have always been a
big believer that our most important right is the right to be
left alone and I have a lot of constituents that really object,
as I do, to this very long survey form. That long survey form
the Census is using, was that a creation of statute or internal
regulations at the Census Department?
Mr. Zinser. I believe it is by statute, sir. And what the
Census Bureau did is, before 2010, use a long form and a short
form. The Bureau did away with the long form during the 2010
decennial and went to the American Community Survey instead.
And it is the American Community Survey that generates the most
complaints about intrusive questions and that is done
throughout the year. That is not an every-ten-year issue; that
is done on a consistent, ongoing basis.
Mr. Culberson. I will submit more about that in detail. It
is frankly offensive and intrusive. Our most precious right as
Americans is just to be left alone. It is aggravating.
I will submit a number of other questions for the record,
so that we do not delay this unnecessarily, but let me see if I
have got any followup. Yes?
Mr. Honda. If I may piggyback on your----
Mr. Culberson. Sure.
Mr. Honda [continuing]. Comment. Intrusive and offensive
questions in Census, it seems to me that the Census' job is to
find information on the population aside from the numbers.
Mr. Culberson. Right.
Mr. Honda. So we can figure out what kind of program could
we generate for their particular needs. I would be interested
in the list of intrusive and offensive questions that you are
talking about and the frequency of those, because one thing I
know that we have to do is to keep it private and make sure
that it is not available to the government as they used it on
Japanese-Americans in 1942. But in order to provide the best
data in order for people to generate their own programs, you
know, we may have to ask some questions that could be asked in
a socially, statistically and culturally sensitive appropriate
way. Those would be my counter questions and I would really be
interested in what that list of intrusive and offensive
questions is.
Mr. Zinser. Yes, sir. I do not know specifically what
citizens view as intrusive. What we do know is that our hotline
gets numerous calls from members of the public. The Census
Bureau set up a separate point of contact for us to refer those
individuals to. And so, when they come into our hotline, we do
not really interview them about, well, which questions are you
having problems with; it is more of a general complaint. We
refer those to the Census Bureau, and the Census Bureau I
believe has people who deal with those.
Mr. Honda. Just through the Chair, if I may. To rebut that,
though, the testimony you are giving right now could be
construed as something we need to fix and take care of rather
than look into deeper to make sure that we are protecting the
privacy versus getting information that is appropriate in the
census as we move forward in our development of this country.
Mr. Zinser. Yes, sir. I would have to confirm this, but I
do think that the Census Bureau has an effort underway to
revisit some of the questions with a number of advisory groups
that gives them feedback. And I can provide more information on
that, but I do believe that the Census Bureau makes an effort
to revisit the questions and the way to ask those questions.
Mr. Honda. Thank you, Mr. Chairman, because I think that
questioning properly is the way to find out information. One of
the things that many communities are looking for is
disaggregation of information, so that we know how to provide
the appropriate funds and programs for our communities. Thank
you.
Mr. Culberson. Well, right. All they need to know is, how
many people are in your house and what is your ancestry and
age, fundamentally, is really all they are really looking for.
And the questions, the long questionnaire form, I have seen
one, they have sent it to my constituents and it is
objectionable. And they also can fine you. I mean, they are
threatening our constituents with all kinds of penalties if you
do not comply with answering all these frankly intrusive
questions.
And I am also really concerned about the protection of the
privacy of the information. In Mr. Horowitz's analysis and the
testimony he gave us for the Department of Justice he points
out that there was an April, 2014 GAO report that analyzed just
a statistical sample of fiscal year 2012 cyber incidents across
24 federal agencies, including the Department of Justice. GAO
estimated that these federal agencies did not effectively or
consistently demonstrate any action taken in response to the
cyber attack in 65 percent of the cases. So I do not trust--and
this is a great publication and I highly recommend it to all
you guys. It is spooky. I object to the intrusive form of the
question and, frankly, once it is in a Federal computer, if
they are not even spotting 65 percent of the hacks----
Mr. Honda. Will the Chairman yield?
Mr. Culberson. Yes, sir.
Mr. Honda. I am not arguing about cyber security, I am
talking about when we want information and how many folks you
have in your family, how many families are living in the
household, languages that are spoken. I think languages are
very important.
Mr. Culberson. Just the basics, that is all they need.
Mr. Honda. But to disaggregate that, it takes a little bit
of time. And to not mention things that are important like
language and other kinds of ways that communities operate----
Mr. Culberson. Yes, the fundamentals are fine.
Mr. Honda. So I just did not want to make it cyber security
versus the information that our families can provide us. Thank
you.
Mr. Culberson. Privacy is a really important issue, I know
for your constituents as it is for me. Texans do not like the
government poking around their business. They are liable to get
an unpleasant surprise if they come poking around too much. I
had to put that in the record.
Mr. Jolly, any other questions, followup?
Mr. Jolly. No. I would like to get the Census Bureau to
count red snapper in the Gulf.
Mr. Honda. What language does red snapper speak? Would it
be croakers? They are croakers, right?
Mr. Jolly. They are croakers.
Mr. Culberson. As long as you get accurate data, that is
what matters. Mr. Kilmer, any followup?
Mr. Kilmer. No, thank you.
Mr. Culberson. I have a number of questions I will submit
for the record. We will meet with you again to follow up on all
this. And thank you very much for your testimony and your
service to the country, Mr. Zinser.
Mr. Zinser. Thank you.
Mr. Culberson. Thank you. We will next move to Paul Martin,
Inspector General for National Aeronautics and Space
Administration.
Mr. Martin, thank you for your service to the country. I
remember you from previous hearings and thank you for being
here today. I will of course enter your statement without
objection into the record in its entirety.
Mr. Culberson. We welcome your testimony today and look
forward to hearing from you, sir. Thank you.
Mr. Martin. Thank you, Mr. Chairman, and thank you for
saving the best for last.
Mr. Culberson. Of course. You know how I feel about the
space program.
Mr. Martin. Very much so. And thanks to Mr. Kilmer and Mr.
Jolly for sticking through this, I appreciate it.
Like many government agencies, NASA continues to grapple
with its IT security and IT governance, project management,
aging infrastructure, and contract and grant oversight issues.
But unlike other agencies, NASA sends people and stuff into
space. And so my remarks this morning will address a single
challenge: managing NASA's human space exploration programs.
Two recent examples illustrate the highs and lows
associated with NASA's unique mission: the successful test
flight of the Orion Multi-Purpose Crew Vehicle in December and
the failure of an Orbital Sciences rocket to the International
Space Station in October that destroyed all cargo aboard and
caused at least $15 million damage to the Wallops Flight
Facility.
Since the end of the Space Shuttle Program, the United
States has lacked a domestic capability to transport astronauts
to the Station. Consequently, the U.S. will pay Russia more
than $2 billion between 2012 and 2017 to transport 26 NASA and
international partner astronauts.
To address this lack of capacity, NASA established the
Commercial Crew Program, which is presently in its fourth and
final phase. In September, NASA awarded two sets of firm fixed-
price contracts, a $4.2 billion award to Boeing and $2.6
billion to SpaceX, for up to six flights each to the Station
beginning in late 2017. Two years ago, the OIG reviewed NASA's
management of Commercial Crew and identified several issues at
the time, including unstable funding, the need to provide
contractors with timely certification guidance, and
coordination issues with other Federal agencies. Given its
importance, we plan to open up a follow-on audit of the program
later this year.
Apart from the Station, development of the SLS, Orion, and
related launch infrastructure is critical to the success of
NASA's human exploration efforts beyond low Earth orbit. We
examined the Orion Program in 2012 and found that NASA is using
an incremental development approach under which it allocates
funding to the most critical systems necessary to achieve the
next development milestone rather than developing multiple
systems simultaneously, as is common in major spacecraft
programs. Prior OIG reviews have shown that delaying critical
development tasks increased the risk of future cost and
schedule problems. While NASA officials admit this incremental
development approach is not ideal, they contend it was the only
feasible option given their funding levels. Again, in light of
Orion's importance, we recently opened up a follow-up review to
examine the program's ongoing development.
Mr. Culberson. Do you agree that was their only option in
light of their funding constraints?
Mr. Martin. I am not a technical scientist. They were
pretty convincing, though, given the scope of the program and
the funding.
Mr. Culberson. Forgive me. Continue.
Mr. Martin. Sure. To support SLS and Orion, NASA is
modifying launch infrastructure at Kennedy, including the
crawler-transporter, the Mobile Launcher, the Vehicle Assembly
Building, and Pad 39B. In several weeks, we plan to issue an
audit assessing NASA's progress in this effort. In the
companion review we issued last year, we examined the
challenges NASA is facing in attracting commercial space flight
companies to Kennedy.
In addition, the OIG continues to monitor implementation of
the 27 recommendations made by the National Academy of Public
Administration in its January 2014 report. Actions taken by
NASA thus far include hiring additional counter-intelligence
officers, reviewing export control training materials, and
improving identity management and credentialing programs.
Finally, I wanted to recognize the NASA Deputy Inspector
General, Gail Robinson, sitting behind me, and Jim Morrison,
the head of our audit office, and the rest of the OIG team for
the significant work that they do. And I also want to thank and
wish outgoing Clerk Mike Ringler happy trails in his future
endeavors--we appreciated working with you.
Let me wrap with, Mr. Chairman, you asked about best
practices, let me just mention two very briefly. At the OIG-
level, we are developing a data analytics capability to get our
arms around the mountains of data, contracting data, and grant
data, that NASA has at its disposal but perhaps is not delving
into. We are going to use it to better target our audit and
investigative resources.
At the department-level best practices, NASA's record with
project management, as you well know, has been spotty at best.
And so we have an ongoing review now looking at one of the
tools they are using that NASA has touted as improving project
management. It is something called the Joint Confidence Level
tool, the JCL tool. We are about halfway through an audit,
drilling down on a project-by-project basis to see whether or
not it is frankly going to stand up to the claims that NASA has
made with respect to how useful it is in keeping projects on
cost and schedule.
And, with that, we will stop.
Mr. Culberson. And those projects are often managed by a
specific flight center depending on the type of mission and----
Mr. Martin. They often are, the very large projects are
pieced out to different Centers. There is an aspect that
perhaps Johnson would handle, an aspect that Kennedy would
handle or Marshall would handle.
Mr. Culberson. Have you seen a difference in the way
different flight centers handle? Are some more efficient than
others?
Mr. Martin. Haven't really seen a difference in the way
different Centers handle it, but we certainly have seen a
higher quality project management on a project by project
basis. And part of it is, we find, the experience of the
project manager; part of it is does he or she have the
flexibility to assemble their own team; and part of it,
frankly, is the complexity of the project itself.
Mr. Culberson. I noticed in the documentation that
accompanied your testimony that in the manned space program--
there was an analysis, you mentioned the program--on Page 4,
``The program's independent government cost estimates project
significantly higher costs when NASA purchases flights from
commercial companies rather than Russia.''
Could you talk to us a little bit about what we are paying
today for flights from the Russians? It varies up to I think
you said $70 million a flight, how and why will the cost will
go up once NASA begins to purchase flights from Commercial?
Mr. Martin. Right. There are a couple different things
going on here. I think the figure that you are referring to
there is when we looked at NASA's efforts to extend the life of
the International Space Station beyond 2020 into 2024, and NASA
projects that over the next 10 years they will spend between $3
and $4 billion.
We question some of the assumptions underlying that $3 to
$4 billion. Specifically, I think NASA is using the cost--the
average cost, I think is $74 million of a current seat on the
Soyuz--as a placeholder when considering transportation costs
to get astronauts up to the International Space Station.
We question that because we think that is, frankly, low-
balling the amount that it is going to take, that NASA is going
to spend on Commercial Crew capability.
Mr. Culberson. How much do you anticipate the average cost
will be for Commercial Crew?
Mr. Martin. You know, it is unclear. As I indicated in----
Mr. Culberson. How much is your charge in this average of
$74 million----
Mr. Martin. Right.
Mr. Culberson [continuing]. What do you anticipate? What
makes you think that that cost is going to go up?
Mr. Martin. Well, when I look at the size of the Commercial
Crew contracts that have been let, the $4.2 billion to Boeing
and the $2.6 billion to SpaceX. Again, I think there is at
least two things going on, probably many more. One, is having a
domestic capability for this technology. We have to have----
Mr. Culberson. Which is vitally important.
Mr. Martin. Which is vitally important, right. The fact on
a per seat basis, will it be more expensive in the short term?
It may very well be, we haven't done those calculations yet.
But I think the overarching goal is to have this robust
commercial capability.
Mr. Culberson. So the principle reason this independent
government cost estimate projected a significantly higher cost
was based on what they anticipate is going to be a larger cost
per flight using Commercial.
Mr. Martin. I believe that is correct, yes.
Mr. Culberson. You would anticipate then that the cost per
flight for Commercial is going to be significantly higher than
the Soyuz average of $74 million?
Mr. Martin. Well, again--and part of it depends on how many
astronauts NASA puts on each of its commercial flights--I
think--and correct me if I'm wrong, crew back here--I think
they are contracting for up to six astronauts, but the capacity
in International Space Station probably cannot handle that. So
it may be three, it may be four depending how many bodies you
put in that flight.
Mr. Culberson. Have you all prepared any estimates of what
we, the Congress, needs to appropriate to make sure that the
manned space program is back up and flying as fast as humanly
possible, and that it is adequately funded? Because I note that
is a recurring theme in the time that I've been on the
subcommittee. I am just devoted to the space program, and
scientific research, and space exploration, but it does seem to
have been chronically under funded.
Have you come up with an estimate of what you anticipate
would be necessary in order for NASA to stop doing, or be able
to do? For example, as you mentioned earlier a lot of these
complicated space flights are analyzing a number of systems
simultaneously, and NASA has begun to prioritize those, as you
said, and only work on a few of the most critical ones first in
an effort to save money. What do they need, do you think--have
you done that estimate?
Mr. Martin. We have not done that overall estimate. Again,
we have looked at discreet programs like Commercial Crew and I
will--I am sorry?
Mr. Culberson. Have you seen any estimates like that done
that I am not aware of?
Mr. Martin. I think NASA, big NASA we call them, they
probably have those estimates. But when we looked at Commercial
Crew, I bring the Committee's attention, I believe the funding
level for Commercial Crew has been increasing over the last
several years in the neighborhood of $800 million this year,
and I believe the President put a request in for $1.2 billion
in fiscal year 2016. So as far as Commercial Crew, they have
been asking for additional money. But my understanding of the
budget requests that they have been making for the SLS and
Orion Programs, they have been relatively flat over the last,
at least, 3 years.
Mr. Culberson. I have learned over the years--and you will
see this, Mr. Kilmer, I know from your experience from working
with Mr. Young--that Office of Management and Budget is
basically the source of these estimates and I do not find them
to be very accurate and reliable. I would rather get the
estimates directly from NASA, and one of the things that I will
be pursuing, and I would love to have the help of anybody and
everybody in this subcommittee to do so, is to have the
agencies submit their recommendations for what money they think
they need to accomplish their mission directly to Congress and
bypass OMB as does--does Legal Services count?
Voice. Legal Services counts.
Mr. Culberson. Directly to the Congress, because then we
are getting an accurate estimate from the professionals that
know what they need and not a bunch of bean counters over at
OMB filtering it, and low-balling them, and making it more
difficult for us. Again, it is a budget recommendation, but it
does make it more difficult for us when they come in at a low
number.
Mr. Martin. Sure.
Mr. Culberson. And our wonderful staff got to beat--we got
to beat our brains out trying to find the additional money that
you guys need. And NASA's a strategic, vital, absolutely vital
to the nation's security and prosperity for the future and it
just is maddening, I know, for all of us. I am sure there is
strong support in Washington State for the space program----
Mr. Martin. You bet.
Mr. Culberson [continuing]. Certainly I know Florida is
partial to it, and we sure love them in Texas. But let me ask a
couple of areas if I could, let me ask quickly about your
ability to get access to the information.
Mr. Martin. We have not had the same problems. I did sign
the letter, I was one of the 47 Inspectors General to show
solidarity, because this was said at length, you know,
independence is the coin of the realm. We have not had a
problem at NASA. Sometimes we get frustrated, it takes a tad
bit longer, but I am talking days, I am not talking weeks or
months, so nothing like Michael or Todd experienced.
Mr. Culberson. Okay. That is good news. That is good news.
Can you provide us with an example or two of recommendations
where--just two examples where NASA has implemented your
recommendations to save money or create efficiency?
Mr. Martin. Can I give you an example of where they
haven't?
Mr. Culberson. Yes.
Mr. Martin. Okay. Which is, I think, more important. Like
the other Inspectors General mentioned, we make a lot of
recommendations that would suggest revisions to policies that
may not show tangible dollar results at the time but hopefully
will increase oversight of grants, oversight of projects,
project management.
One review we did a couple years back looked at an
environmental cleanup effort that NASA was involved in outside
of--about 35 miles--outside of Los Angeles, it was called Santa
Susana.
Mr. Culberson. Yes, I saw that in here.
Mr. Martin. Yes. NASA entered into an agreement with the
State of California to clean up its portion of the Santa Susana
test facility, NASA did rocket tests----
Mr. Culberson. California would do it on behalf of NASA.
Mr. Martin. I am sorry?
Mr. Culberson. California would do it on behalf of NASA.
Mr. Martin. Well, no, NASA would pony up the money. It is
in the purview of the California Department of DTSC--it is
called the Department of Toxic Substance Control--but NASA
agreed to clean its soil and ground water down to what is
called a background level, which is essentially like tests had
never occurred on it. Pristine dirt, if you will, and ground
water.
When, in fact, we found that NASA entered into that
agreement and would, if they were held to make that so, NASA
would spend upwards of $200 million, far in excess of what was
needed for the eventual use of that facility, which was going
to be recreational.
So there are different levels. There is background level,
there is residential level, and there is recreational level.
The recreational level, as an example, would cost $25 million,
is the estimate.
Mr. Culberson. Is the recreational level, background level
under Federal law?
Mr. Martin. Those are under Federal law. That is my
understanding.
Mr. Culberson. This is cleaning it to California law?
Mr. Martin. This hasn't started yet, but, no, they have
agreed----
Mr. Culberson. Neither have signed.
Mr. Martin [continuing]. They have agreed, they have agreed
under----
Mr. Culberson. California standards.
Mr. Martin. Correct. Well, to the standards that were
negotiated I guess with the California----
Mr. Culberson. Okay.
Mr. Martin. And so we have encouraged in our audit to NASA
to crack back open that agreement and take a hard look at it
because it is just spending, from our perspective, an
inordinate amount of money to--and there is no doubt that the
soil and the groundwater need to be cleaned, but it is the
question of looking at the intended use of the property.
Mr. Culberson. True.
Mr. Martin. They are not going to be growing apples out
there.
Mr. Culberson. Thank you, I did not mean to take so long.
Mr. Kilmer.
Mr. Kilmer. Thank you, Mr. Chair. I spent the previous 2
years on the House Science, Space, and Technology Committee,
and there is a lot of interest in that committee not just in
space but around commercialization of research and the SBIR
program, and I read in the written testimony that there were a
couple of incidences of fraud related to NASA's SBIR program.
Just wanted to get a sense, is that a systemic problem or are
these a couple bad actors, or----
Mr. Martin. I believe it is a bushel of bad actors more
than just a couple of bad actors. I think it is a systemic
problem. I believe there are 11 agencies across the Federal
government that are required under legislation to provide SBIR
grants and enter into contracts for this work.
I do not want to diminish that there is some terrific work
that is done under the regime, the SBIR regime, but we have
seen across the Government--and we do a lot of interagency work
with the National Science Foundation and other folks who also
give SBIR--we see a number of deficiencies including
individuals who apply for an SBIR award to NASA but may put the
same proposal before DOD and NSF and are funded by multiple
agencies for the exact same research. Then the back end we have
also seen where the research that is provided is substandard.
And so we have seen a fair amount of fraud in the Program.
Mr. Kilmer. Is there, given that it is a systemic problem,
suggestions in terms of what the systemic response should be?
Whether it be legislative or other sort of direction to those
who issue the SBIR awards?
Mr. Martin. Sort of on the ground level, we are working
cooperatively with other Offices of Inspector General to share
techniques that we have to identify for fraud awareness, to
identify characteristics that more likely lead to fraudulent
use of this money.
I think, again, on an agency-wide level, or multi-agency
level, we need to define data sharing capabilities so that we
are able to identify when an individual, potential SBIR
grantee, is putting the same proposal in to multiple agencies,
been awarded by one, but again attempts to double or triple
dip.
Mr. Kilmer. That is (indiscernible) feedback. Given the
conversation around commercial activity, that is something that
we are actually seeing some involvement on in my neck of the
woods. Have you seen NASA developing any capabilities that
duplicate or compete with capabilities being developed within
the private sector?
Mr. Martin. Well, again, NASA, under charge from the
Congress and cooperation of the Administration, is working with
contractors to develop the SLS and the Orion. Then you have
Orbital and you have SpaceX and others that are developing
their own private, both if they handle cargo and they handle
crew. I am not sure--I mean there are rockets, there are
different types of rockets, they can do different things,
different purposes, carry, you know, commercial satellites--I
am not sure that there is a duplication in that sense.
Mr. Kilmer. Okay. I yield back. Thank you, Chairman.
Mr. Culberson. Mr. Jolly.
Mr. Jolly. Thank you. Mr. Chairman, I want to follow up a
little on questions from Mr. Kilmer and the new era where we
are relying now on more contractors, private launch, et cetera.
There is several folks who met with us on this notion of
equitable bidding requirements and whether or not the soft
cross of infrastructure support or other engineering services,
or launch support that might be provided by NASA are actually
calculated in the bid process for some of the private
contractors. Have you done any work in that area or is that a
solution in search of a problem?
Mr. Martin. Well, I do not know if it is a solution in
search of a problem. We have done some fairly extensive work
looking at NASA's infrastructure. In particular, we probably
spent the most time down at Kennedy. As I mentioned in my
opening statement, we looked at Kennedy's attempts. There is a
significant number of unused facilities, big, expensive
facilities like the airfield, like the VAB, like some of the
test stands that NASA no longer needs with the retirement of
the Space Shuttle Program.
And so we are encouraging, and this is the way NASA should
handle it, identifying what you know you will not need.
Recommission, sell, give out, you know, those, and then if
there are some things that you may need but you do not need
them right now, look to private entities or other Government
agencies to lease or to use so that they can supplement your
maintenance costs and things like that. And so we have looked
at those issues extensively at the Kennedy Space Center.
Mr. Jolly. Okay. And related to that, and it is really just
between the disposal of excess assets or the lease of those
assets ensuring it is a level playing field.
Mr. Martin. Right.
Mr. Jolly. As we are continuing to expand the use of
private contractors, ensuring that the agency is doing it in a
manner that is not choosing favorites is including, you know,
creating an equitable bidding environment, if you will, for the
contractors now that we are increasingly relying on.
Mr. Martin. And we have done work in that area, again,
particularly with some of the unused or under-used assets in
Kennedy, NASA's process for making potential bidders or folks
aware that there is an opportunity for them to lease. And
NASA's process has been evolving. We made a series of
recommendations to NASA to create that level playing field and
that awareness.
Mr. Jolly. Have they been adopting or implementing those
recommendations?
Mr. Martin. They have.
Mr. Jolly. Okay. Very good. Thank you very much.
Mr. Martin. Thank you, sir.
Mr. Jolly. Yield back, Mr. Chairman.
Mr. Culberson. Thank you, Mr. Jolly. Well, we have had
several people contact our office concerned that your OIG
office is over-classifying reports particularly about
Commercial Crew, and Orion, and SLS, and I wondered if you
could talk to me about any of those, and what process you go
through in deciding what to classify?
Mr. Martin. That issue is--I was telling the staff
beforehand--that is a puzzler because I have no idea what that
complaint might refer to. Now, we do not classify--I am not
even sure that I have classification authority--we do not
classify anything.
Mr. Culberson. Okay.
Mr. Martin. I mean, 99.5 percent of what my office does, we
release publically on the Internet. The 0.5 percent is if we
had done an IT review that identified specific----
Mr. Culberson. We are not aware of anything that you have--
any information in your office that you have classified unless
it dealt with somebody's personal information or a criminal
investigation. Other than that----
Mr. Martin. Absolutely not a clue.
Mr. Culberson. Good, good, good.
Mr. Martin. Right. I am trying to guess what that may refer
to. ASAP, the Aerospace Safety Advisory Panel, put out their
annual report at the end of last year. Where ASAP complained
that they were not given information from big NASA about the
Commercial Crew issues, they were sort of being frozen out by
saying that it was involved in a bid protest or some other
issues. But that, again, that was ASAP that was not OIG's
office.
Mr. Culberson. Let me also ask about the weather data, that
I mentioned earlier with Mr. Zinser. Have you ever analyzed the
data quality? Weather data collected by, for example, I know
Goddard was involved previously in data collection, analyzing
old records of temperature, for example. Have you ever analyzed
any----
Mr. Martin. Not in the 5 years that I have been Inspector
General.
Mr. Culberson. Okay.
Mr. Martin. Right.
Mr. Culberson. Something I would like to explore a little
more with you separately.
Mr. Martin. Sure.
Mr. Culberson. And we have a couple of highlights in here,
areas where I had some questions. You mentioned in your
September 2014 report that you found that ``the agency will not
be able to meet its goal of cataloging 90 percent of near-Earth
objects by 2020.'' Could you talk to me a little bit about that
and what problems you identified there, because it is a low
likelihood that it would happen but the effect would,
obviously, be catastrophic.
We saw the reentry of the large meteor over Russia last
February, because of the dash cams they all have. It came in
from the sun, nobody even knew it was there. And talk to us
about the problems with a near-Earth orbit program.
Mr. Martin. We did a specific audit that looked at NASA's
efforts to identify first and then potentially mitigate these
near-Earth objects. There is a congressionally cited sort of
deadline, I believe it was 2020 and I cannot come up with the
size of it.
Mr. Culberson. 2020?
Mr. Martin. Right. It is the big ones.
Mr. Culberson. About 140 meters in diameter.
Mr. Martin. Yes, definitely the big ones.
Mr. Culberson. Big around, yes.
Mr. Martin. The ones that you would yell, duck, and things
like that, yes.
Mr. Culberson. City killers.
Mr. Martin. Exactly. What we found, in essence, was one
individual at NASA who had, I do not want to say sole
responsibility, but he had sole responsibility for managing
this program and he was completely overworked, and the Program
itself was underfunded, and so we made a series of
recommendations to increase both the staffing and the ability
of this office, and therefore NASA----
Mr. Culberson. September report?
Mr. Martin. That was in our September report. Right.
Mr. Culberson. All right, sir, we will go through that and
do whatever we can to help. It is an important part of NASA's
function. And, frankly, to my mind, a little better use for the
asteroid retrieval is to develop the next generation of rocket
propulsion to demonstrate that they can actually move one of
these asteroids if it was headed our direction.
Also I am concerned that there is a gap, potentially,
coming up in the tracking and data relay satellite program.
What are some of the recurring patterns you see, what is
causing some of the problems in the management? Whether it be--
you heard the testimony about NOAA and the joint polar
satellite, there were too many chiefs overseeing it when it was
split between Defense, Commerce, and NASA, I think now it is
just Commerce and NASA handling it. What are some of the common
themes you see that cause some of these problems with, for
example, there are some techno problems with the James Webb
Space Telescope, for it to jump from--what is it 3 billion
originally estimate to now over 8?
Mr. Martin. 8.6 billion I believe.
Mr. Culberson. And climbing.
Mr. Martin. Right.
Mr. Culberson. I mean, it is a spectacular instrument and
vital that we get it up and flying, it was a top priority of
the Decadal Survey which we should always follow. But the cost
overruns and the delays, it just seems to be, systemic and
constant.
Mr. Martin. I appreciate you raising the SCAN Program,
which is the Space Communications and Navigation Program, that
you refer to with the TDR satellites. We are doing a series of
four audits, one of which we have released and that dealt with
the TDR satellites, and the problems there, again with many
things, it is the TDR satellites that are up there are beyond
their useful life, they're antiquated, and it is quite
expensive, I think in the neighborhood of $300, $350 million to
create another one and to launch it up. And so it is a
significant issue that NASA needs to have a certain
configuration, I forget if it is six or seven working at one
time, to have communication with the Station and other low
Earth orbiting satellites.
We are in the middle right now of winding up looking at the
Deep Space Network. And this is where NASA has at least three
installations--one in Goldstone, California; one in Madrid,
Spain; and one in Canberra, Australia--at which they have an
array of antenna. And the problem there is again antiquated
equipment and very expensive upkeep.
And so while NASA's doing some programmatic things to try
to save money, and we think they make sense, there has got to
be--there have been cuts to the budgets of those programs, and
they had a replacement cycle, an upgrade cycle and those
upgrades and replacements are slipping behind, and that is
obviously critical.
It makes no sense to spend billions and billions of dollars
to send, you know, robotic missions out well beyond low-Earth
orbit if you cannot communicate with them because you cannot
receive the wealth of information they are sending back. So it
is a very serious issue.
Mr. Culberson. Mr. Jolly.
Mr. Jolly. I am good.
Mr. Culberson. Any follow-up?
Mr. Jolly. No, thank you.
Mr. Culberson. What common themes or threads do you see in
each one of these large satellite programs or spacecraft
designs where they seem to have a problem in meeting their cost
estimates, they fall behind schedule, they go over budget. Are
there any common themes that you see looking across NASA?
Mr. Martin. It is inconsistent project management. And we
have seen that, in fact, we put a--it was kind of an unusual
audit for us. Usually when you go in and audit, there is a
discreet issue, you drill down, look for money issues, look for
fraud, waste, abuse, things like that. We did a piece about two
and a half years ago that looked at NASA's historic issues with
keeping its big projects on cost and on schedule, and I commend
that to the committee and to the public.
Several themes emerge from that, in particular, that there
is a mind set, certainly historically, at NASA that as long as
the project works at the end of the road--and that road may be
many years beyond at a much higher dollar than what was
promised--all sins will be forgiven leading up to that point.
Hubble Space Telescope did, in fact they call it the Hubble
Philosophy, it is not a term that I coined. That Hubble
produces extraordinary pictures, and we are very thankful to
have that. But at what cost?
If you look at the rather tortured development of the
Hubble Space Telescope, including post launch, it was well over
budget and well over time. But all those things are forgiven
because it produces beautiful pictures. And so it is the
discipline, I think, that NASA needs to insist in its project
management.
Mr. Culberson. I will go back and look at that report.
Mr. Martin. Sure.
Mr. Culberson. Let me also ask you about the concerns that
Chairman Wolf quite correctly had about Chinese nationals. The
Chinese Space Program is owned lock, stock, and barrel by the
People's Liberation Army, and we have prohibitions in our Bill
that I will make sure we continue, it is really important to
keep the Red Chinese out of our space program. In looking at
the requirements and the law, that NASA makes sure they do not
have any interaction with the Chinese Space Program. Talk to us
about NASA's compliance with those requirements that Chairman
Wolf quite correctly put in our Bill.
Mr. Martin. Right. I think NASA has complied, they have
identified and notified this subcommittee and the Congress when
they have had any kind of communication or any travel related
to China. I would cite two other issues, one I mentioned in the
testimony, NASA's follow-up on the 27 recommendations issued by
NAPA, they have taken the recommendations quite seriously and
so they are moving down the road there.
Another area that my office has done extensive work in is
in IT security. So you brought your point out, it is a concern
to have any foreign national, improperly at a NASA center.
Frankly I think the larger concern is the penetration of NASA's
IT network and IT security, by not only the Chinese but other
foreign and domestic hackers.
Mr. Culberson. You said there are over 1,200 Web
applications that are potentially vulnerable that--how is NASA
dealing with that?
Mr. Martin. Yes, it was shocking when we looked at this.
NASA maintains more than half of all the civilian non-military
Websites. I had no idea. One agency maintains over--in fact,
they had 1,500 when we began the audit, by the end of the audit
they had reduced to 1,200 and they are still working.
And what that does, as you can imagine, it just provides--
the target area is just so rich, it is so wide open. Part of
the reason NASA has so many is because of its statutory mandate
to share the results of its research. So they are speaking to
the public, they are speaking with researchers, they are
allowing ways for NASA employees into NASA systems. So
maintaining proper IT security is an incredibly important
issue, and our office has done a ton of work in that area.
Mr. Culberson. How is NASA dealing with it though? I mean
are you satisfied that they are making----
Mr. Martin. I am satisfied that they appreciate the gravity
of the situation. Am I satisfied that NASA is where they need
to be with IT security? Absolutely not. And partly what the
fundamental root of NASA's IT security problem is the broader
IT governance concerns.
NASA, up until I would say a year or two ago, fundamentally
they were run--the IT governance was decentralized, run center
by Center. NASA's CIO had control over only 11 percent of the
Agency's $1.5 billion IT spend each year. The agency CIO, 11
percent. The programs, the missions, controlled 63 percent, and
the Centers controlled the rest of that.
Now, you talk about the Appropriations Committee shaking
the, you know, the stick, that is the stick, you are writing
the checks at the end of the day. Well, if the CIO doesn't
control the checkbook at NASA, it is very difficult. He could
be as persuasive as possible, but he is not holding the
checkbook. So I still have concerns about, significant
concerns, about NASA's IT governance. Do they get it? Are they
heading in the right direction? Absolutely.
Mr. Culberson. Talking, if I could, a little bit about
keeping foreign nationals out of some of our flight centers. I
know that--I was searching for this and just found it--you are
referencing foreign nationals entering Ames's Flight Center,
potentially having access to ITAR restricted information. ``On
two occasions a senior Ames manager inappropriately shared
documents with unlicensed foreign nationals.'' I think I saw in
here that these foreign nationals are actually working with a
university in the area and because the university was doing
some research at Ames were given access.
Mr. Martin. I believe at the point these foreign nationals
were not, I think they were actually NASA employees at the
time. NASA goes through--and I think the government goes
through--before you bring a foreign national on they have to
pass varying levels of background checks.
Mr. Culberson. Even if they are with the university?
Mr. Martin. Yes. The requirement is, if the contract is
through the university they need to go through these background
checks.
Mr. Culberson. I would be very interested in your help and
your office----
Mr. Martin. Sure.
Mr. Culberson [continuing]. Making sure that those
standards are followed because I had heard that that is not
necessarily happening at Ames. I was just out there a few weeks
ago.
Mr. Martin. Okay. We can chat with you and your staff on
that.
Mr. Culberson. And I will go through some of these with
you, and I will submit others for the record and meet with you
separately and privately. I do not want to take too much of
your time. We are going to face tight budgets and I do, if I
could, really want to call on your help and the help of your
staff in helping us find savings that we can use to help make
sure that NASA gets the funding they need to do their job.
Mr. Martin. I look forward to the opportunity.
Mr. Culberson. And the freedom that they need and stability
so they can do their job.
Mr. Martin. Absolutely.
Mr. Culberson. Without the fear of having the rug jerked
out from underneath them.
Mr. Martin. Right.
Mr. Culberson. Deeply appreciate your service.
Mr. Martin. Thank you.
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Horowitz, M. E................................................... 59
Zinser, T. J..................................................... 83
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