tv Key Capitol Hill Hearings CSPAN August 6, 2015 12:00am-2:01am EDT
but the absence of confidence. and there is not going to be confidence in the economy if the government doesn't start to perform and if they did can't get some control over the security situation. >> whatever happens in washington and this includes what the iranians have to say in terms of what is going on in this includes the nuclear sanctions. so we are months away from finding out what happens in this. and certainly it way too speculative in regards to what that could be around the region.
but there is a potential and we have participated in this way. and there are many online interest in these issues. so should there come a day when we can engage with them more transparently. and i think that the government has done some important things from their symbolic first few days in terms of reopening this investigation and trying to
continue this from that. including what others are taking in terms of procurement to try to constrain corruption. we talked about it quite openly and transparently. it's part of the speech in terms of what has to be done in afghanistan. certainly in terms of appointing a rod range of ministers and governors, this is something that there is a common interest in. so we continued to do everything that we can to work with this and others in terms of the importance of their investigation and demonstrating their accountability and we will continue to do so. >> i'm going to make just a quick note on that. and afghanistan is going from a fairly corrupt system to a
system that will be professional and transparent and non-corrupt. that is a long hard road to travel. and if the president moves too fast, he will break his politics and he will cause many groups to be disgruntled and to organize against him. so we must be patient and recognize that this kind of transition is difficult. he has to be on that road he has to be on that road, but we have to give him a little slack. if he moves too fast and breaks the politics and loses the government then we lose the possibility of moving to a professional transparent and non-craps system. and that is not good for anyone. and it is finally the question on reconciliation.
i wouldn't say that anyone is necessarily optimistic either but nor are they pessimistic. it is truly a matter of evaluating as much information as we can get especially with this potential opportunity. it is currently there right now which we want to be able to take advantage of should we be able to. so it's the continuing to try to build a continuing reconciliation process should that become available and the way to do that is to continue to work with the pakistanis, others in the region to track these initiatives as well and see what
might be achieved. but clearly the commitment is not only something that most are political left and right and congressional support in terms of safeguards but the remarkable gains that have been made but it's truly something because it talks about the right thing and we saw that from the president's inauguration address when he talked about the role of his wife and he talked about reconciliation for the first time. and in all the subsequent times when he talked about it as well and from his actions. the fact that he delivered on the commitment the fact that there is the first woman justice
of the supreme court that was nominated that was not confirmed but hopefully could take the opportunity to continue in this position. and cognizant of where we started this process. the fact that it is subject to poverty and lack of institutions and capacity, that every step is a calculation between what the policy goals are and the vision of how to get there and what is politically feasible as well. but i have no doubt that that commission shares continuing to safeguard the games and that includes cooperating with this entire government with regard specifically to reconciliation they say that it is important and we have said consistently since the beginning, we remember secretary clinton announcing this for any outcome of the
process, particularly the embracing of that as well. >> thank you, we are out of time. i would like to thank you all for coming. thank you to steve for taking 10 days to visit. [applause] and last but not least thank you to the ambassador for his public service and in his service for the special representative as well, trying to bring peace to afghanistan. as someone who has been working on the region for a long time i have been more hopeful now that we are inching in that direction and so we thank you for that as well.
in or posting to twitter or facebook page at 7:00 a.m. eastern on c-span. >> tomorrow the political breakfast with robert mcdonnell. he will speak with the politico chief white house correspondent on policy politics and news. then we have the remarks live at 8:00 a.m. eastern here on c-span2. also the senate foreign relations committee holds a hearing on a recent report looking at human trafficking. this report talks about the hidden things of workers can encounter when seeking a job. then another senate hearing on disaster protection and recovery over the last 10 years and recommendations for improvements. the senate small business committee holding that event starting live at 11:00 a.m.
eastern on c-span2. >> sunday night on "q&a." kevin or talks about the financial issue and his job overseeing the largest municipal bankruptcy in u.s. history. >> if detroit had taken that $1.5 billion filed in 2005 and 2006 when the stock market went down 6700 if it had invested in a dow jones index, the stock market is now trading at almost three times what it was. not only would they have tripled their money but they could have paid attention sinful and then gone back into the business of declaring the 13th check and in addition to the 12 year deal. so it could have fixed itself if they had any sober management going forward. ista
>> sunday night on "q&a." >> earlier today michael horvitz tes testified on oversight issues at the justice departmentdocume including recent denial of access to documents wanted by the ig's office. this is about two hours. i have [inaudible conversations] som >> before the two of us give oure opening statements i have been told that there are some peopleoffices. from the inspector general offices, i would like to have all of the people that are ig's are acting ig's please be ableor
to stand. i would like to thank you folks for doing the job that you do ofu veryuch making sure that the laws are faithfully executed. we spend money according to the laws.re thank you for your hard work for you are a very important part of government being responsible. so thank you for being here. the inspector general's act ofn the 1978 created this as independent objective units within the taxpay executive branch and since then the american taxpayers have relied oigner ig is to carry out three important tasks. that includes conducting audits and investigations of agency the programs and to promote the efficiency and effectiveness of heads programs and also to keep congress and agency heads informed about program operations, and the need for corrective actions. to help them achieve these
goals, we authorize inspectorre general'sco to access all recordsdepartment belonging to the respective agencies. two weeks ago the justice te department's office of legal counsel issued an opinion d claiming the word all does not actually mean all. today we are going to examine how this opinion is hindering the work of the justice department's inspector generalral and threaten all inspectors. this means what it says. that the department of justice is legally entitled to all of i the department records. if inspector general deems the agenc document relative to his job and to do his job the agency should turn it over immediately without hesitation or review. dar according to the department of2010. justice inspector general, the
department did exactly that prior to 2010. however in 2010 the federalun bureau of investigation suddenly changed that practice after the of ig uncovered some embarrassing claimed information about the fbi's misuse of letters. they claimed that they had the right to refuse to provide the ip information in over a dozen and con categories including information related to wiretaps, grand juries and consumer credit. they claim the attorneys would deputy review material first and then have the attorney general or deputy attorney general decide what could be released here and congress do not intend this to be a litigation style standoff inside a department. it is a waste of time and money for two divisions of the same government department to be fighting over access to the
department's own records. the department's current practices are exactly the opposite of what the long ins visions. under the law and inspector general must be independent because agencies cannot be trusted to investigatepermission themselves.e if they have to ask for permission from senior leadership, they would not be truly independent. it does not allow the attorney general or the fbi to prohibit an that the inspector general tomin completing an investigative agency but onlyce in certain limited circumstances. when that step is taken, it must be done in writing to the igo and the ig must forward that written notice to congress. the fbi would have us believe that this is what they would have us believe. an instead of written notice being to required, it it needs written
permission to comply with an desi investigation. this is simply not how the law was designed to work. the ig testified to congress multiple times about thesesentiall problems since taking office in 2012. congress took action to resolve the dispute essentially bolded andd underlined this of the act6-a that ensures access to records. no, not literally. declared no section 218 of this year's justice department departmentig act declared that no funds should be used to deny them inspect timely access to all records.was a section 218 also directed the inspector general's report within five days whenever there was a failure to comply witheceived this ironman. in february and march wei received for polls report that fbi the fbi refuse to comply. i wrote twice about these kevin
notices and have not received answers to most questions. is so mr. kevin perkins thehael assistant director is here to account for these matters and also here is michael horowitz,practif t the inspector general of the justice department and i would like to find out what the practice of the fbi was prior to this and whether that complies with the procedures that is thelaw. argued to be mandatory. because we have to realize that the fbi cannot be above the law. it has an obligation to comply not only with the inspector general but also with ees restrictions that the congress places on appropriations, time meaning that employees cannot legally be spending their times with holding and reviewing documents before providing them to the ig. been however, this is exactly what the ei has been doing. and now the are actuallys of endorsing it.
they needed 60 pages of tortured that logic support its claim that neither this or 218 means what was said. not surprisingly last thursday the appropriations committee generalhat sai authors wrote a joint letter to the deputy attorney general that said the following. that the interpretation ofong. section 218 and the subsequent conclusion of the committee's intentions is wrong.ns as anythi for them to determine the intentions as anything other than supporting their right to gain full access to timely and complete information is disconcerting. we expect the department and all of the agencies to fully comply218. with section 218 and to provide them with full and immediate access to all records and documents and other materials in accordance with section 6-a of
the ig act. but only a few pages of the olc chatty actually discusses the idea.e op most of the opinions analyzedisclosu just three legal provisions whose general limitations onride the disclosure allegedly overridel ces the laws of the inspector general access. those provisions relate to the title iii wiretap, grand jury and fair credit reporting. s it's unclear why so much ink was spilled on just these three provisions given that the fbi has cited nsiearly a dozenozen provisions with holding records and there are dozens if not hundreds of applicable
nondisclosure provisionsli throughout the u.s. that can also limit the inspector general o access under the tortured logicre statutes of the olc opinion. that opinion argues that nondisclosure statutes like th these trump the act unless congress makes it extra clear that they don't. by specifically mentioning those statutes by name in the act. mention think about that for a moment. according to the olc this would have to mention each and every nondisclosure statute by name insure acces before the doj would believecords. that congress really meant toimply ensure the access to allnon- records. and thatht is simply unworkable. c we do not even have a list of those that need to be listed.
but they are listing specific exemptions to hundreds of other nondisclosure statute and that is why we use the word all. to cover everything without having to list each potential ale to exception and so it really is that simple.nd m the members should be able to refused ask the legal consul about this and other questions with opinions. a unfortunately the department refuses to provide a witness from olc today. in response to the invitation of they say that the head coun mr. thompson, is out of the country today. listen but personal from the inspector general from across the country are here, as you can see to listen to this and to help usus. understand it. and i think all of you for joining us. in mr. thompson's absence and we were asked to provide an a
alternative witness from his office. but the department claimed that they do not have enough time to prepare for the testimony. after 14 months since working in dis may of 2014 the office was not ready to discuss it publicly. deputy agriculture and that is very astonishing. i also invite the deputy attorney general to testifyl's access about procedures that sheas announced to improve this access to records. appear when she was being confirmed if asked if she would appear before the congress. all of the people say yes, and i think now they ought to say maybe they will appear. the four days after the olc opinion, she updated these procedures tot ty comply with the opinion. but these new procedures added th further delay and uncertainty toe note a the situation. the committee notified her ofnd this the hearing with plenty of advanced notice and move thent said sh original datae this week. unfortunately the department said that she was unavailable to
testify. so an associate attorney attempted to answer questions. i also have dave smith, acting quesons. inspector general. because that department follows the a olc opinion and denied access to that inspector general. this is a sign of things to come in terms of the olc opinion that they will have four ids to document this across government. we have three witnesses on the second panel to the dust the implication of the opinion. this includes the project on government oversight, former joini government services administrator. i want to thank them for joining us today.le beforeah i call on senator leahy i want you to know that he and i
might have some differences of opinion on issues before the ihink congress. h but when it comes to him and i for working together on oversight ia think that we are hand and glove and particularly i think them for help when he was chairman of the committee to make amendments to the false claims act that needed to be made so congress can do the oversight and other issues as well. thank you, senator.overlooks >> thank you. sometimes the press overlookst the fact that many know theseicans ancrats d things. and we tend overlook the fact that republicans and democratsator actually work together on a number of things in this body as the senator might have in this they way.hen
>> while you're doing this we pass a will talk about this as i wrote. >> while he's doing that we will talk about a lot of stuff. [laughter] >> actually the senator and i trans have done things on transparency the and accountability for a long time and it's why we are doing things today. the past two weeks we have thought to protect the committee's jurisdiction overload is the cornerstone transparency with freedom of information act and that that will includes weakening the freedom of information act. and we have done a lot of and bipartisan efforts as well and i to have worked very closely on this
we are making sure that the open government laws are protected. we have taken this position weather we've had republican or democratic administration. we are an amazing country and itral to makes us a stronger and better country. the inspector general is central to the mission and we have talked about it all here today as we have worked long hours andol i have met some of you onoperate occasion and i applaud the work that you do. you have played a crucial role in ensuring that we operate effectively within the scope of the law. dent o this is more important than the department of justice and the department of justice policies.
and this includes heraf constitutional rights. to for any agency to be effective they have have access to audits information, documents, programigation. reviews and investigations. access to but what has been referred to is a long-standing dispute between the doj and inspector general who have access to other types of material and it was once a freefall of information.crecy and i understand the importance. had to and in several important reviews we had to fight for access for documents. and i think that this includest, americans phone records under
section 215 of the patriot actreview and this includes routine criminal investigations. the very first independent review of the program isdes conducted in secre t for decades for both democratic and republicann administrations. the inspector general needs complete and full access agency information to be complete. and i would like to thank attorney general you for working collaboratively. and thfice we finally have an opinion from the office of legal counselcl clarifying the position. new policies are only a the temporary solution. it could still withhold information from the
circumstances. and i think that m we need a more permanent solution. do including one that we need to do their job i will work craft ahis legislative solution and the two of us can hopefully work withe that. [inaudible] okay. [laughter] >> and as i mentioned this has now been put off to 2:00 o'clock? though, it has? >> yes. so i'm told.hole truth >> do you affirm that the no testimony that you are about to give is the whole truth and h nothing but the truth so helpk you. you god?
>> just. f >> thank you.justice. >> michael horowitz, the first witness and inspector general department of justice. deputy mr. kevin perkins will speak after him, associate deputyn. director terrill bureau of curlarte investigation. deputy we also have an associate deputy attorney general justice department and lastly mr. smith the acting inspector general department of commerce. >> thank you, mr. chairman, members of the committee.the prm of o >> thank you forur the access information and are strong bipartisan support. ..r the fbi questioned our legal authority to access all documents in its possession and we obtained grand jury wire tap information without legal objection and without the need tr for a legal
opinion. it would be hard to imagine how we can conduct oversight if we were prohibited from reviewing information like grand jury and wire tap information. the oig always handles information with great care and we fully and completely care with all statutes limiting the use and disclosure of such information. indeed, we have been provided with access to some of the u.s. governments most sensitive information to conduct oversight and there has not been a single occasion in 27 years where we accused of mishandling such a situation situation. however in 2010 this is
impacting our ability to conduct oversight. in may 2014 deputy attorney general kohl asked the office of legal for an opinion. the olc issued their opinion two weeks ago and concluded the following. first, the inspect general act does not entitle our office to access grand jury wire tap and credit information. second, our office can only obtain such records if disclosure exceptions permit inspect general access. and third, in every instance the
decision whether these disclosure exexceptionsceptionexceptions aply will be made by the department employees not the staff. there are circumstances where disclosure to the oig would not be permitted. the legal underpinning represents a serious threat to my independence and to all inspect general. a hallmark of the ig act that inspect general are entitled to independent access to all information in an agencies possession has been pierced. for the first time since the ig act was passed in 1978 the word all in section 6-a no longer means all and placing agency staff in the position of whether to grant an inspect general access to information turns the
principle of independent oversight enshirned in the inspect general act on its head. we are concerned agencies will produce in other categories subject to non-disclosure provisions. we understand hundreds of laws have been identified that contain similar restrictions in them. this potential uncertainty as to what information agency personal can provide could result in their becoming less forthcoming with oig because they could share information. it could deter whistle blowers from providing information to inspect general because of the carp the agency may later come the disclosure was improper and use that decision to retaliate
against the whistleblower. the only means to address the threat to inspect general independence is for congress to promptly pass legislation that affirms the independent authority of inspector general to access without delay all information and data in an agency's possession that an inspect general deems necessary to oversight function. the legislation should state what we in the inspect general community understand is no law restricting information apply do is inspect generals unless the law states. and unrestricted inspect general access extends to all records regardless of location or form. independent oversight by inspect generals make our government more effective and efficient.
inspectors general have saved taxpayers hundreds of billions since the inspect general act was passed in 1978. refusing, restricting or delaying an inspect general's independent access to records and information may lead to incomplete, inaccurate, and significantly delayed findings and recommendations which in turn may prevent the agency from promptly correcting serious problems and deprive congress of timely information regarding the agency's activities. it may impede or otherwise in hibit investigations and prosecutions related to agency programs and operations. on behalf of the counsel of inspectors general, 72 federal inspect generals, we look forward to working closely with this committee and congress on a legislative solution. i would be pleased to answer any questions the committee may
have. >> thank you for standing up for what the law requires. mr. kevin perkins. >> morning chairman grassley, and members of the committee, i am pleased to appear before you to discuss the fbi's efforts in insuring the inspect general has timely access to records to complete reviews, audits and investigations consistent with the law. the fbi takes seriously the responsibility to enable the inspect general of effective oversight and in all of our activities we have been transparent with the department inspect general, and congress concerning the challenges presented by conflicting statutory commands. i am not withstanding these chal challenge challenges and the fbi provided
136,000 e-mails to the inspect general in the last year. the documents were produced in response to 118 document requests submitted by the oig to the fbi which also contains 333 subparts. during this same time 20 new audits and 30 sessions at the fbi were initiated. to fufill with the requests the fbi dedicated almost a dozen individuals full time to these tasks. the fbi and oig worked to expedite access to materials consistent with the law. they took steps to make sure they receive documents in a timely manner. they moved the document collection and production function back to the inspection division. since that time the fbi is
consistently provided documents to the oig in advance of request of deadlines. they are working to complete the one remaining access of documents that was subject to prior notification under section 218 of the appropriation act. the ig received the requested e-mails and the majority of attachments contained there in with the final attachments slated to be delivered within the next week. the fbi has eliminated all backlog of documents going to the inspect general. we remain committed to work with oig and congress to make sure the inspect general has everything needed to fulfill the functions of the department. we work with the oig and members
of congress that will allow the members to comply with the law and provide the documents needed as quickly as possible. thank you for allowing me to appear this morning. i am happy to answer questions >> i appreciate all of the statisticic statisticic statistics you gave us but they don't equal a-l-l. >> mr. urlarte? >> i am pleased to discuss the commitment that the inspect general has access to all records to commit reviews. the department appreciates your critical oversight. as attorney general and inspect general have stated the department shares the belief that an effective, efficient and
independent inspect general is critical to a functioning department of justice. the inspect general should be able to obtain all of the information needed to maintain their oversight role. on one hand congress enacted the inspect general act that grants each inspect general a right to access all records of the agency within the jurisdition. and on the other hand we protected individual rights to privacy and due process. deputy attorney general then jim cole requested on three spick statutes that have restrictions on disclosure. first the federal wire tap act that restricts law enforcement
officers from disclosing interception. and attorneys from the government are restricted from disclosing grand jury information. and the fair credit act reports that protects consumer credit information and since that time the department has continued to work with the inspect general to insure access to the materials it needs and directed all components of the agency to provide the inspect general in a timely fashion all of the documents needed to follow through with their investigation. additionally these three categories constitute a small minority material thought by the inspect general.
deputy attorney general yates and the department have worked to find a solution and we continue to work with the inspect general with collaboration to expedite access to the records it needs. in april of 2015 deputy attorney general yates issued a ref random for the grand jury where it believes material is necessary to complete review consistent with controlling statutes. it noted the inspect general serves an important function in insuring the department of justice is run efficiently and effectively and that responding to the ig's request is of the highest priority. on july 23ered they published an
opinion and it prohibits the department to connect with many but not all of the inspect general's reviews. it concluded it doesn't override the limits on disclosure contained in the grand jury rules. the ig doesn't refer to the statutes or information they protect in the broad general language and doesn't contain clear statement that congress intended to override those statutes with carefully crafted limitations. on july 27 guidance with the opinion put providing wire tapping material directly to the inspect general and stated they may provide grand jury material to the inspect general consistent with the restrictions of the grand jury rules. and finally i want to reiterate we share the believe on
effective, efficient and independent inspect general is critical to a functioning department. the attorney general and the deputy attorney general are committed to working with the inspect general and members of congress on legislation that enables to the department to comply with the law on insuring the ig receives all of the document documents it needs. to that end we had a number of conversations about a legislative solution so they get the documents. we hope to have a edge legislative proposal to discuss with the committee in the future >> mr. david smith? >> chairman grassley ranking member leahy and members of this committee, i appreciate the opportunity to appear before you today regarding the recent opinion issued by the office of legal council and their impact on the offices of inspect
general to carry out our mission: in addition to the description mr. horowitz provided i want to provide you with specific examples of how the opinion impacted my office even before the opinion was released. this is not just a justice oig problem nor limited to law enforcement data. earlier this year we began an audit of the international trade administration enforcement and compliance business efforts. in april of 2015 the audit team determined the oig needed access to business proprietary information submitted to ita during proceedings and requested the data. both ita and the department of commerce, office of general council, raised concerns that providing the business
proprietary information would be a violation along with the federal trade secrets act could expose the department to criminal litigation and penalties. the department's office of general council reached out to the department of screesjustice legal council on this matter. olc said they were coming out with an opinion expected imminently that would provide a framework to advise on this subject. in light of the potential criminal penalties, the department's office of general council concluded it was advisable to wait until the opinion was released. the department of general council stated that while ita may be able to release data to our office for an investigation specific to a proceeding there is no exception in the tariff act applicable to a tariff auditing. trying to work with ita to
obtain access to this information we proposed they anonmize the data why removing company names. according to ita all of the requests requests data fields would not work. we said we would provide a statement saying we understand the importance of safeguarding this information from unauthorized disclosure. the office of general council stated that given the fact the olc opinion said it would release an opinion with a framework to use in resolving statutory conflicts with the act the department felt it was advisable to wait until the olc opinion was released. the office asserted the tariff act amendments that came into affect after 1978 did not reflect oig's authority to
access the nfrjz. after two months of trying to get access to the information, we had no choice but to terminate our audit because of the department's refusal to give the information. conflicting laws hampered oig's ability to complete the mission that is to provide efficiency and effectiveens and predentvent and detect fraud and abuse. as discussed above the tariff act and trade secrets act were sited as reasons for denying access to records. however, inspect general act authorizes access to all reports, documents, papers recommendations or other material available through their department. this access should pertain to
all government records. i join with the inspect general committee to urge the committee and congress to address these issues in light of the olc opinion and its impact on our ability to provide oversight of our departments and agencies. i will be pleased to take your questions. >> thank you all very much for your testimony. we will have seven minute rounds for questions. some of my purpose this morning is to find out whether or not ig's have mishandled sensitive information.
of the ig. >> senator i've also not aware but from a policy perspective the department fully believes eli ag should get everything he needs. >> mr. horowitz is a natural you were subject to the same restrictions of public release of sensitive information as everyone else in the department? direct as correct that is why we comply as vigorously as we do. >> so then what is the issue the inspector general has to protect sensitive information as well and has never violated restrictions restrictions, then what is wrong to provide the ig fall access to everything under the same conditions prior to 2010? >> to put into proper context, there was no policy change and 2010 from one
side to get there were process changes but to put it in context i would take it further back right around 2001 and with the oklahoma bombing record reviews one of the of first refusal in the previous inspector general significant document request and a link to review process that was charting new ground for the bureau and the point is that starting with that throughout the rest of the decade through 2009 it was an evolutionary process even beyond that to this day where we have pivoted to appoint rights inspector general will agree outside the current issues with the olc the process is the best has ever been and continues to improve but 2009 was part
of the overall evolutionary process that there were more and more investigations and more in your document request. questions where raised if we were complying with a lot. i know prior to 2010 with grand jury material that of that was turned over to the idea until we were assured if those handling the documents were on the list then they were turned over and it was a documented process throughout the decade but moving forward, the combination of the general counsel whether or not we rafting within the law as well as turning over documents as they went into the current day increasing
technology how we research documents vastly increase the number of records coming through the process so it is just a matter of volume at that point where in 2005 with a document request technology did not allow as thorough searches that we can conduct today so hundreds of thousands of documents the today could not have been produced back then because of technology restrictions as a combination of all of those brings us to where we are today. >> is sounds like a lot of red tape and waste of manpower does not accomplish anything that the people that are supposed to get the information don't get the information that they have not had been a documented wrongdoing on their part. >> i would complete the
agree we would like to streamline the process i do think the deputy attorney general gates has taken steps but we would like to go further because of a policy perspective reducing the inspector general should get all of their documents but it is a legal question with the interaction of the two schemes on the one hand the very general nature of the ig act with the stringent act of the fcra with intercepted communications a grand jury proceedings in information about individual american is that those are carefully thought through restrictions that congress thorough foreign grand jury proceedings the information was protected from disclosure because of those nations -- of the investigation because of the
individual comes florida as a witness or the target of a grand jury but never indicted so that process and procedure are there to protect the secrecy of their proceedings with the due process rights but that congress fought very hard about that before moving with that legislation. three understand the general access provision that we were grappling with the conflicting statutory concerns but we do think we can work with congress to get to legislation to address this issue that is why we started the process that we started. >> can you respond to what you just heard? >> mr. chairman as i indicated before 2010 we had multiple reviews where we
had tied '03 or grand jury information or credit and wiretap information and nobody went to the office of legal counsel for an opinion is read got them in a timely manner and promptly and we had access to very significant information to our review the hansens spy matter, then 11, president surveillance program, national security letter reviews and patriot act reviews i could go on and on the kind of work we have done it oversight we conducted without anybody objecting to access to that material based on any legal reasoning. it makes little sense what happened in 2010 to all of a sudden change that when congress change the laws now practices we just did the same oversight as the fourth
to 2010 and. >> in the order of arrival arrival, go ahead. before you go at 11th, we will shut down the hearing mr. attila's will take over i have a meeting. >> 84 being here today. before i ask questions we had a committee hearing last week with the irs said we had concerns again with a series of roadblocks from getting the right to information to either congress so we can perform our oversight duties to get information they need but
one question that i have to have your response to a comment mr. perkins made you think the process is now the best is has never ben? >> the process that the department of commerce they're still evaluating the olc opinion with a letter from the irs they're also looking to block information to their inspector general i am not sure there is say process per se at the department of commerce other than to believe what the olc opinion is that it is a general's permission and the specific acts that are out there do not state the ig has access trumps that i know he was referring to the
process have to feel about that? >> the process changes have occurred recently to move though lawyers out of the process, this is a good thing fewer lawyers is better. that has improved the process. having said that we didn't have this discussion before 2010 if the process was good or bad we just got the records we shouldn't have to have a discussion i should have to spend my time or the deputy director who stated their support to make these changes come i am sure they have much more important things to do this and figure out what process is the best justice the records we are entitled to. >> you mentioned a couple of times the position and debt
department is taking now with your interpretation of the of lot. we are lawmakers and can change the law so what should we do to get back to our process we thought was working relatively well prior to 2010? to the point to say as a result of your interpretation and you come out with the current policy memorandum so what do we need to change to the all meets all position is that something to the department would support? >> absolutely. we're very committed to working with congress on a legislative solution reduce think that is workable to address this issue. we do know what to be in the position to deal with these issues he should get everything he needs to erase
any questions absolutely so restarted a number of conversations with mr. horowitz between the leadership bill we hope to have things that we can discuss with the committee shortly. >> the department of justice appropriations act they attempted to address this by enacting section 218 what more do we need to consider? bin and we thought that was the fix but the of legal counsel decision decided it was not and that provision was ambiguous and from our standpoint, they thought they were clarifying not leaving the ambiguous provision out there. what we thought was of six turned out not to be because
of the way the olc interpreted that statute. >> then very quickly i am not an attorney the ratio was two-thirds not attorneys and tall senator grassley left but it seems this is a fairly straightforward item you know, your interpretation the you can reverse engineer that so why are we not discussing the specific proposed legislation that i hope we could pass to fix this problem? >> i do think senator, that legislation needs to save very expressly then it says all but no longer says all to get back to all we need
to have a language in that provision that says expressly and unequivocably that unless another law restricts access to the records all means all. that is the result of this opinion and what needs to be done. >> this may be one of the most important hearings we have had in a long long time. people forget the fact we have a constitutional obligation as congress to do investigations and oversight and what this olc opinion does undermines the oversight that congress has under the constitution.
i don't know why the attorney general lynch, the new attorney general cannot debt just change the underlying policy back to 2010 as it complies with the statue to out in the world somebody can come up with a legal opinion of 66 pages, 67 to say though loss since 1978 has pre-empted by a the carve out positions and all this not been all defies any common sense with any legal theory i am aware of it is the responsibility of a judge or a lawyer to reconcile and harmonize the law not to say we decided in 2010 we will preempt or trump the all means all
provision of 1978 i find that very disturbing but frankly that continues a trend that we have seen under their previous attorney-general the first i am aware that never was held in contempt of congress that failed to release information in the "fast & furious" investigation and mr. horowitz knows about but unfortunately the department of justice has become so politicized it is ignoring the mandate of congress wide we have to pass another law to say we meant it when we said all we really mean it this time. that is ridiculous for by which the attorney general would take a close look at this there has been an office of legal counsel opinions was strong in the
past that was erroneous and this one should be i hope she will take a look at it i have for lot of respect for attorney general when she does a way to change the way it has been operated and i wish her luck she has my support but also the fact the president continues the has failed to appoint an inspector general's in a timely fashion the department of veterans affairs have needed an inspector general over 582 days but the president has not made an appointment despite letters urging him to do so the role that each plays is critical to the functioning of our democracy and self-government capacity of any agency is in need of an inspector general it is a scandal-ridden veterans administration but of the department of interior has
staged one since 2011 it will be another 1,000 days before obama gets around to making an appointment that is three times longer than he has been in office and that is unacceptable. so what concerns me is the fact by one estimate nearly 40% of the opinions are not publicly disclose so how many others are that she used to reinterpreted longstanding law in the wake to restrict the access to be the watchdog intended the inspector general's to be? and co-chairman grassy will pursue them further. so the testimony states it
is to assist the issues implicated by the three statutes discussed but by all accounts prior nobody thought the issue was complicated battle. what happened in 2010 to make that no one believed before identified as an issue so complex? can do share in nihon -- in the insight what happened to change the existing law? >> i will stop there at the time but my understanding is the memos and decisions from the legal counsel at the fbi's followed several reviews and other hard hitting reviews because there was no other changes
in the law or a regulatory change it says the same thing today. credit information did not change either. >> base behalf on the reasoning am not sure congress is capable to pass anything more comprehensive than all. to anybody suggest what we would include to clarify that all does mean all? a notice people are chuckling. is laughable. it is laughable and completely unacceptable. unfortunately this is part of the politicalization we have found under the previous attorney-general that i think has been a
complete embarrassment. mr. chairman i yield back. >> they kill mr. chairman i had another meeting so i was late. id your joint testimony state department of justice has an unwavering commitment to ensure the office of inspector general has access to all records is your belief the department is currently a turning over documents in a timely fashion? >> senator, from the timely manner with a the testimony with process changes that allows for a greatly expedited review of
information to the inspector general, i believe we have worked our way through the vast majority of the backlog was to work very closely with the inspector general for the rest of the staff and his people with the process in place right now you will see a turnover of documents still somewhat hindered by the fact that we are bound to to follow the opinion as stated. so there are continuing discussions on the matter but they're not insurmountable and nothing that we cannot overcome. >> the deputy attorney general's very supportive of the steps to streamline this
process and taking steps herself with a july memorandum two's streamline the process even restricted and in the process tried to minimize the role of leadership so he can get what he needs the reply to take that one step further to work with congress to have the clear terms of legislation. >> do you agree with their assessment there has ben improvements? to make certain they the deputy director has taken steps over the last several months to improve the flow of information and and the use of our welcome but the problem is as mr. perkins indicated the olc opinion
all does not mean all in section six of an act so where does that stop? they have identified 10 other categories they have concerns so it just yesterday i am told with the review of the fbi use a review this committee is interested rehab record set of reactions of four other areas of legal concerns the weld process has improved we're still getting redacted information that has not been resolved some american of think there is an the other solution at this
point. >> with the fair credit reporting act information we have some of data of breaches from the private sector. >> we very much work with the agency that provides information if another component if there is a grand jury information me did a review as a surveillance program but probably the most sensitive review with the highest level of classified information with individuals
in the white house but to of this day we have protected disinformation carefully so we are always prepared and have always protected the information as needed. >> we also protect the information provided to west our network is separate of the department's number we have a stronger controls in place to prevent intrusion and also protect the evidence by locking up to make sure we follow all rubles and requirements we have an extra duty not to protect sensitive information but on whistle-blowers. >> instead of going off the issue of sensitivity and confidentiality as a former
prosecutor if we make those grand jury proceedings public witnesses may not testify or be forthcoming summit you have any concern that providing grand jury material could undermine the institution of the grand jury? iraq i think in the context of the inspector general's work we have found a way to get him that the information consistent with the rules six and ask if they follow the same restrictions that the prosecutors have to follow because i agree of the grand jury process that is why it is a difficult issue to grapple with from a policy perspective that we work with them to get this information consistent with that interest.
>> even when in the grand jury material is disclosed there may not disclose that further. social did the inspector general be allowed to roam disclose to the public? >> it should imply most people recognize the importance of the the information we regularly proceed pursuant to those restrictions if all of the information before we send out the report resend it to the department in this case is the fbi and they tell us if they think there are restrictions and what they are so hour and the good judgment is informed by what they believe. every have always complied with the law there is never an instance since we opened our doors in 1989 where in
any way violated the a grand jury by any other provision of law. >> thank you very much speculative the change of procedures outlined in the general yates memo how will that affect the timeliness of your investigation getting the documents? >> certainly my hope is the changeup procedures will make the production occur more promptly because our hope is to cut down on who refuse it and how long that brokers. the challenges come as a federal prosecutor to look at the olc opinion with grand jury information to allow the department lawyers
said prosecutors to produce material if they find it meets that standard. called that would be a difficult call for me to make whether that information would help the department as a whole further its criminal oversight. i could see circumstances are they are bumped up to higher levels to caused delay but at this point how does that work going forward? our hope and belief is the process will speed up but the issue is not are you getting it out but is it everything we need who was making the decisions and
what don't we know and why do we even need this process and why is it in place? and the enhanced process resulted as getting a production with reductions because there are other categories that fbi has legal questions about. >> you have anything to add. >> cry do. we are very concerned other offices may use this opinion to routinely delay request to get information. we would not want to see the department of commerce established a legal review protocol office to review every single request just in case there was a statute that did not specifically say the ig can have this we
feel that would definitely can do the work to slow down the information we are given >> in your opening comments he made comments to whistle-blowers how will that affect the ability for whistleblowers to report misconduct? >> this is a concern because all the longer means all employees throughout the federal government whether the justice department or other agencies before they come to as the information no way and that we have a right to access me now think twice should they come to us with that? how many objections does my a agency have for the to for a rigid commerce previously the peace corps or the epa had an issue.
that is a substantial concern. that is vice a lot of lawyers sitting around to rate -- right 10 pages but we're talking about employees who are not governor -- lawyers to identify waste fraud and abuse them want to come with us with information to fix it and the risk is a wonder what does that opinion mean for me and if i come to the inspector general for my agency and retaliated against? >> i would agree i would not necessarily call in retaliation because the agency could say he should have given the first place
because it says in the olc opinion so then there is no whistle blower protection for what we were not entitled to. >> dire understand the department has indicated they will work with us to solve the problem i believe the committee invited the department to meet with the staff friday after the opinion came out and for whatever reason the department. >> i can tell you the office of attorney general personally has been invested finding a solution to the problem.
the access issue is one of the issues she took up right when schaede got to the department as a topic of conversation with the earliest meetings with the inspector general purpose she has regular meetings with the inspector general since to identify the problem and began working with a solution i have been reading with mr. horowitz cent also about this issue i know she is dedicated and once to find a solution she agrees the infective inspector general is essential for her duty to run the department of justice. >> how would you describe the working relationship and time to completion? are you working well together? what more do we need to do? >> we have had a productive meetings.
as the council working with the legislative committee to work through a proposal the department has put together we anticipate we want to be back before the committee to have a legislative solution and ready to ago because every day that goes by inspectors general of our stock not getting access they have the surgeon teeeight if they can go to new there're inspectors general to resulted waste fraud and abuse spanning a i appreciate that. maybe i don't suffer a the tragedy of knowledge but if we all seem to be in five
director of the project of government oversight. oversight, professor paul white is a professor of public service at the robert wagner graduate school of public service at new york university. and mr. miller is the former inspector general for the general services administration and currently works as a managing her of having to be the solutions expert. >> founded in 1981, we are a independent watchdog to champion government reform. the chairman and others have said that the ig serves as the congress' eyes and ears within the executive branch. but in order to serve and by extension the american public and ig office must have unrestricted view of the agency oversees. i would argue that they hesitate to provide an id for review that
could be the most important for them to have. the very purpose of having an independent ig is undermined if the office has to seek the agency's permission in order to carry out the mission and agency debt restricts access and turn them in congress to oversee the executive branch and hold it accountable. the chairman and other leaders on both sides of the aisle have rightly condemned the opinions through the first panel. they cannot possibly be effective watchdogs that they are forced to negotiate with the target of their investigation for access to their records. a former deputy general counsel of the house of representatives said that the opinion treats the doj as though it were above the law. they can now use the midas touch
approach. we are particularly concerned about the exposure of agency malfeasance. the opinion could have a chilling effect on whistleblowers with other offices who would want to provide the ig with evidence of wrongdoing in sensitive operations but would understandably fear that communication with the ig would itself be a prosecutable offense. they followed it would also thwart their ability to investigate claims of retaliation, as was the case when the fbi delayed access to records in two recent investigations. in essence they handed control over to the subject of investigation to decide whether or not it wants to operate. as it turns out this is not the
first time that the olc has challenged the authority of federal watchdogs. prior to the passages, they have the proposed reporting requirement of the offices to congress as well as the agency head that would violate the separation. in another opinion they hope that the gao would be restricted by law from accessing intelligence information. as you have heard the effect of the latest opinion is already beyond them now to demonstrate that it is already having immediate and dangerous consequences for officers across the federal government will. >> i would like to take the opportunity to talk about requiring two include any misconduct to an internal
investigative unit. the office of professional responsibility or opr. based on data we found that opr documented hundreds of cases of restlessness or intentional misconduct by the doj attorneys over the past decade. however, opr does not really identify information in its record unlike the inspector general, meaning that we have no way of knowing if anyone was held accountable. it is hard enough for them when they have to fight with department leaders for access to agency records and even harder for them to hold the doj accountable when it's legally restricted from investigating an entire category of alleged wrongdoing by personnel. the attorney general further has the authority to prohibit the ig from carrying out investigations that would require access to information concerning sensitive operation. top officials at other agencies including the secretary of
defense, secretary of treasury the postal service board of governors and the secretary of homeland security, have similar powers under the law. although these provisions require the agency heads to affirmatively stopped and ig investigation rather than the higher them to ask permission this provision gives us pause. we only know of one instance invoked of this provision by the attorney general, but we believe that the congress should ask them how long this has been invoked by other agency heads. we have another of other recommendations in the written testimony and i will highlight only a few. obviously congress should clarify all that have been involved, they should also be given the explicit authority to investigate misconduct throughout the agency, including allegations of prosecutorial misconduct. the senator also addresses problems that people face
matching data and anything that is an important improvement and finally as was mentioned by the senator, congress should continue to put pressure on the white house and agency heads to fill the vacancies with independent unaggressive watchdogs, thank you for inviting me to testify today and we look forward to strengthening the independence and ensure that oversight is fair and effective. [inaudible] >> it is such a pleasure to testify before the committee and the chairman in particular who is from iowa and i am from south dakota. so i trust you will be gentle although we don't think it's this way. i have a couple of statements number one i am extremely
familiar with the legislative record of this act. dating back to 1976 that particular statute establishing this, which is now mentioned in the opinion. so i know this history. i am not a scholar but a legislative historian. and i will say that the olc opinion is wrong. it is absolutely wrong. when i teach my classes at nyu i tell my students that they have an a and i will give them that if they can hold it. you'd be surprised, perhaps perhaps not, but how many people seek to give it back. and i think that in this particular case they have given it back. they have worked hard to
construct the opinion. [inaudible] >> they work very hard. mike conclusion is that there are no conflicting statutes at hand. that the act is playing in intent, it contains provisions that require the ig is to pay attention and also use integrity with regard to any statutes that could require nondisclosure. and that the nondisclosure issue is not at all in conflict with access to information. there are plenty of disciplinary procedures in place for the
attorney general to stop an investigation if he or she should see the need to prevent disclosure by the ig. that to me raises the question of why the senate and house would have given the attorney general such extraordinary power to prohibit in the language of the 1988 special provisions to prohibit an investigation issue a subpoena by the ig if the ig didn't have that information by rights under the statute. why did they in 1990 urge them to exercise extreme caution if congress requests information and if they at that point in time do not believe that they would have such information. it makes no sense to me.
nevertheless we all know that this opinion is going to spread through the ig community and the department and agencies, like crop circles in my home state and cornfields, and it has. but i do not think it is a sophisticated and heavily negotiated act having drafted plenty of legislative reports when i was here as a staffer and congressional fellow, i urge you to please go lightly on the ironman biggerstaff has an advanced legislative report on that. the pivot point on this entire opinion at least for me is in the attorney general's statutory authority to supervise or direct control the inspectors general. that is where this comes from.
you may simply amend the statute to read that this particular authority does not include withholding. let me just conclude, and i mean we can talk in a question and answer about this that the key conclusion in this opinion is that section number six permits withholding. my ability here works. and that includes every last legislative report. i cannot find the world. the attorney general has the authority to prevent the disclosure of sensitive
information. that renders this opinion of little interest unnecessary unless it is taken up by other agencies and the department of justice and used to prepare propel complex negotiations that will complicate the violence that prohibits or encourages this to prevent rot and waste and abuse and this is an easy fix and i urge you with that you might soon or may currently attempt to answer.
next point not a legal scholar but i am a historian and i know this record better than my reading of the opinion. and it draws the wrong conclusion. first that i would give my students this as we move through this. >> thank you, professor. >> thank you so much. >> mr. miller? >> chairman, distinguished members of the committee thank you for testifying to be here and our long-standing interest in oversight in our support for the inspectors general. it is a pleasure to keep so many of my former colleagues here behind me. and so after serving in the
department of justice for about 15 years, i had the honor of serving as inspector general of the general services administration and i served until last year in 2014. and i consider myself fortunate to have served with so many principal and public servants and others who work in the community. i am concerned about the impact of the opinion and concerned about the policy and we heard something very curious a while ago. even the officials and at one point the representative of the deputy attorney general stated a different policy, that this
information should go to it. that not even the doj is supporting this opinion. and generally everyone and we need to have oversight of how they spend money or how they keep this most sensitive information and sewed to withhold what it has, we have devastating results not just for this but those that can make i.t. jobs much more difficult. the american people expect that the law enforcement department that obtains this information keep that information
confidential. but they also perceive as agencies to make sure that they are using that information in the proper way and not misusing our most private information. and so i think that that is the policy that has been stated in the previous time and the one that everyone agrees to even if we heard the representative of the deputy attorney general correctly, even he stated that. and so in order to have this review in this includes determining what information is needed. is the judgment of the ig conducting the investigation that matters and not the judgment of the agencies
investigated. and it makes them control the judgment of the ig. and that is backwards to deny them what is needed to reach a conclusion is misguided. and it just doesn't work, it is a disaster. and they must have all the information to make an conclusion and finding. and the result of the current procedure at the doj will stall the doj investigations while they meet for agency officials
on the ig access to this information. and the investigation that doesn't get information will stall. the ig's job is hard enough already and they already have problems getting information from agency officials. it is often raised to block the inquiries and many of those get worked out because they are simply unfounded and based upon privacy issues and personally identifiable information concerns or financial information concerns. ultimately they get the information but it slowed down. and in fact back in 2009 and 2008 we were having difficulty
getting unrestricted access to electronic databases of gsa. and the process was much similar to this in that what the agency wanted to do was shift the burden to the ig. to prove why we needed the information. the auditors were filling out on this and try to explain why we have a need to know. and what i found out about the delays i had a series of meetings with the administrator and we ultimately work it out. but it was a difficult issue that we had to work through. and there will be a legislative fix to clarify that all have
>> >> to figure out how to make those statutes speak to this issue. really impressive. by in terms of the al come come, you have to define what the pit is that the notion a agency or the attorney general could withhold is not dependent on other statutes with the non disclosure requirements because they already say they have to pay attention
to that. it stands on the notion engaged agency has to oversee control and direct the ig that is how i read the opinion therefore there is nothing in that provision that may be interpreted to give the attorney general or any agency authority to withhold the information under the full access section. slight thank you need to define all a little more perhaps. the olc opinion is on point with supreme court decisions than the broad nature of the word. i think it is crucial and fundamental and i don't agree they worked out very hard to say hello important this was but a gift of olc
some help. i strongly believe the memorandum should be withdrawn. it is not good for olc to assure an opinion that is so tangled it does not help their reputation with teacher memoranda but that is not something you can order. it is very simple i think. >> mr. miller? >> i would add i like the language suggested. the inspectors general on integrity and efficiency their letter reads the provision and would provide that no law or provision restricting access applies to the inspectors general unless that expressly states with such an unrestricted
access extends to all records available to the agency regardless of location or form''. >> end of prior panel testimony it seems to me we all have agreement and we need to fix even within the department. professor, you made a comment for is something i am concerned with we could work hard with these intensive negotiations but it doesn't seem that difficult this seems to overspending now we need to come up with a simple fix not a $100 saddle on a $10 horse. so i will not ask any more questions except to say those who are involved come to keep this simple and get it done quickly because we need to get them back to the point they can do their job
that they have done very well for many years. thank you, mr. chairman. >> i know the senator has questions for both panels. so up to one week we will take answers in writing. you all had a chance to read the olc opinion to rockier the testimony of the first panel so what is the weakest link of the opinion? director risk of what has been said a number of times they are ignoring the fact that congress meant all it
is similar as to have dealt with whistle-blower protections was it in a disclosure it is of willful disregard to congress' intent. >> it was in and the order of presentation with the deletion of the house provision dealing with a blanket exemption for the inspector general from the privacy act. olc reads this to say this is the blow that congress did not intend full access they deleted the statue with the eloquent language in 1978 to. the olc reached that to say that allows for withholding but in fact, it was a monday in efforts to clean up the
statute they said this provision it is unnecessary and an assault -- insulting it was worried about the objections in 1977 memorandum about the constitutionality of his concepts of the deletion is read as the statement that congress did not mean access to all and it is explained earlier in the legislative report for pages earlier as we were cleaning up certain features of this act. but if you reverse the order of this dramatic moment of great senate consideration to dump the provision to say all this not mean all i
found that the most disturbing your reordering legislative history and that absolutely is not acceptable >> before you answer my first question and think about the second because we're thinking about the language to make sure they really do get a access to their agencies you can answer both of those right now mr. miller. [laughter] thank you the weakest part is dealing with the appropriations language. that was clear and the discussion is probably the weakest part but to make it clear they do have language that various parts of the opinion on page 46 to talk about the not withstanding language on page 45 and 46
to talk about other statutes where it would not apply because it has language to say now was standing in the statutory with prohibition and then at the end it talks about a clear statement of a clear manifest and i think any fix would be clear manifest and that is on page 56 or 57 of the opinion. but the part of plum to say now was standing in the other a lot the problem is that there are so many laws
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