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CONTENTS

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18

WITNESSES

OVERSIGHT OF INSPECTOR GENERAL

OPERATIONS AND NEEDS

WEDNESDAY, JULY 18, 1990

U.S. SENATE,
COMMITTEE ON GOVERNMENTAL AFFAIRS,

Washington, DC. The committee convened, pursuant to notice, at 9:37 a.m., in room SD-342, Dirksen Senate Office Building, Hon. John Glenn (chairman of the Committee) presiding.

Present: Senators Glenn, Roth, and Stevens.

OPENING STATEMENT OF CHAIRMAN GLENN Chairman GLENN. The hearing will be in order.

Before we start the hearing this morning, I wanted to recognize the service that Jim Carroll has given to the Committee over the last year, I believe it is; almost a year. Jim has been on loan to us from the U.S. Postal Service out of their inspection service over there and did work on some of the matters that we are looking into today, as well as a number of other items, and I wanted to thank him for his great work over the past year, and we are sorry he is going back from whence he came.

This is the second in our series of oversight hearings of the Inspector General offices. Our first hearing this past April focused on the controversy that has had implications for the entire Inspector General community, and that is the opinion by the Justice Department's Office of Legal Counsel in which the IG’s investigative authority was limited to cases where Federal employees or Federal funds are involved and nothing else. We heard from representatives of the Justice Department on their explanation for such an opinion, and we heard from the Inspectors General on the impact the opinion had on their offices.

I urged at our last hearing that all parties involved in this—the IGs, the Justice Department, OMB-get together and try and resolve the issue. Today I am pleased to report that progress has indeed been made toward resolving the problems created when this opinion was issued. Recently there have been a series of meetings between all the interested parties and an agreement has been reached in principle that clarifies the IGs' authority to investigate parties outside the Government and removes the cloud under which the IGs have had to operate since March 1989. I expect this agreement to allow the IGs to aggressively investigate fraud, waste, and abuse involving an agency's programs, and in particular, to respond to allegations from whistleblowers and other individuals that

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crimes and other misdeeds are occurring, and now, I hope, with strong support from legal counsel of the Justice Department.

In light of these actions, I have decided for at least the moment to forebear in pushing legislation I introduced shortly after our last hearing which would have clarified and restored what the Justice Department was changing simply by reinterpreting a successful 10year-old law that had worked and worked well. Let there be no mistake in how my remarks are interpreted today. I believe that the OLC opinion was wrong and should never have been written in the first place, but I am proceeding in good faith that all parties to this new and clarified agreement now intend to work cooperatively toward the mutual goal of substantially reducing fat, fraud, waste, abuse, and illegal activity involving Government programs. With that, it should not be necessary to proceed with legislation.

I sincerely hope that after this little difference of opinion-not little difference of opinion, but this major difference of opinionthat we are now all on the same team and welcoming support of other groups involved with the basic objective of making a better Government, and not of-well, whatever the objectives were of some of the things that happened in the past.

Today's hearing will highlight other matters identified by the IGs as of great importance to them in carrying out their duties. First we will explore whether there is a need for statutory law enforcement authority for the IGs. For example, should all of the IG criminal investigators be authorized by law to carry firearms and to request and execute search and arrest warrants? I frankly don't know the answer to that one yet. I have no preconceived ideas. I am willing to hear both sides on this, so I come to learn from this hearing. Or should these authorities only be given them through a process whereby qualified agents in the IG offices with deputized as Special Deputy United States Marshals when necessary?

Second, we will examine the IGs' suggestion that they need testimonial subpoena authority, a process by which testimony of individuals outside of Government can be compelled by means other than through the grand jury process.

In April of this year the findings and recommendations of the National Advisory Commission on Law Enforcement, NACLE, which was established by the Anti-Drug Abuse Act of 1988, were presented to the President and Congress. Contained in the report are the results of surveys conducted by the Commission, one of which was that some law enforcement agencies view their lack of full statutory law enforcement authority to make arrests and carry firearms as a major inequity. They said that in surveys of the offices of the Inspectors General, this was raised as a major issue affecting recruitment, retention and morale. One of the recommendations of the Commission was, and I quote, “Congress and the Executive Branch may wish to consider reviewing the issue of differences in grants of law enforcement authorities among agencies in the Federal law enforcement community."

I repeat that I have not made up my own mind at all on what I think should be done in this regard. I think we have different gradations or different classes of law enforcement. Some obviously need self-protection equipment; others may not have quite that same need for it.

One of the purposes of today's hearing is to learn more about what authorities the IG's have and don't have. That is the major objective today, and to determine if there is a pressing and compelling case for providing additional statutory tools to the IGs. Our hearing will not only focus on the arguments for and against legislation to expand such tools, it will also examine other alternatives to such expansion. For example, we will look at the Justice Department's deputation process and see how this is working. This is a process whereby IG offices can request to be deputized as Special Deputy U.S. Marshals in order to have the necessary authority to carry a firearm, execute search warrants, and make arrests where necessary.

In other words, is this process now working to provide the IGs with the tools they need to do their jobs? The message we are getting from the IGs is that it is often a confusing, cumbersome and oftentimes quite lengthy process. We have prepared a chart ? that illustrates this. As you can see, a request can be reviewed and approved in as little as 2 weeks to as long as 6 months. As a result, some IGs have chosen not to use the process at all, feeling it is too time consuming. The result is that investigations are delayed, evidence and even suspects are lost. We have even heard reports that requests for deputation are now receiving another layer of review within the Justice Department in light of the OLC opinion of March 9, 1989, to which I referred earlier. And finally, the Interior Department IG has reported that OLC recently issued another opinion which appears to break new ground, stating that while they are deputized, IG agents are employees of the Justice Department and not the agencies which actually pay their salaries. I don't know what the legalities of that were, but we wanted to find out about that also.

So I look forward to hearing from the Justice Department on how it intends to address these problems identified by the IG's and make the system more responsive to their needs. Senator Roth, do you have any comments before we start?

OPENING STATEMENT OF SENATOR ROTH Senator Roth. Yes, thank you, Mr. Chairman. This morning's hearing will address a number of questions regarding possible additions to the powers given to the IG's to have the authority to carry firearms, to execute search warrants, make arrests and issue testimonial subpoenas. I, like the Chairman, have an open mind on these questions. However, I do think that in answering these questions it is important to balance the need to make sure that IGs have the necessary tools to do their jobs with the need to make sure that the awesome powers of law enforcement are extended only when absolutely required. The major overall question is whether existing mechanisms allow for that proper balancing of concerns. If this is the case, then additional legislation is not needed. That I might add, is just such the case in another issue regarding the authority of the Inspector Generals, that dealing with the so-called Kmiec memo.

1 See chart on p. 138.

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