TITLE I. Improving FBI Oversight. Title I of this bill provides for improved Department of Justice and Congressional oversight of the FBI by ensuring that the Department of Justice Office of the Inspector General ("OIG") is authorized to investigate allegations of misconduct at the FBI and requiring a report to the Judiciary Committees on how the OIG carries out this new authority. This title is consistent with provisions in the DOJ Authorization Act, S. 1319/H.R. 2215, which have passed the Senate by unanimous consent.

This section would amend Section 8E of the Inspector General Act of 1978 (5 U.S.C. App.) to provide explicit statutory authority for the OIG to investigate all allegations of criminal or administrative misconduct by DOJ employees, including FBI personnel. The OIG is also authorized to refer certain matters to the FBI Office of Professional Responsibility or to the internal affairs office of the appropriate component of the Department. The Attorney General is directed to promulgate regulations implementing this OIG authority.

For many years, the FBI was excluded from OIG jurisdiction and the FBI's own internal Office of Professional Responsibility had sole authority to investigate FBI personnel misconduct, unless the Attorney General made an exception. The FBI's exclusive domain to investigate its own misconduct was unique in the Department and created the appearance of a conflict of interest. On July 11, 2001, Attorney General Ashcroft issued a new rule expanding the OIG's jurisdiction over the FBI.. This section is consistent with, and codifies, the Attorney General's new rule.

To ensure that the OIG has the necessary structure and resources to effectively assume its new jurisdiction over the FBI and that the Congress is fully informed of such needs, this subsection requires the Inspector General to: (1) appoint an official to help supervise and coordinate oversight operations and programs of the FBI during the transition period; (2) conduct a comprehensive study of the FBI and report back to the Judiciary Committees with a plan for auditing and evaluating various parts of FBI (including information technology) and for effective continued OIG oversight; and (3) report back to the Judiciary Committee on whether an Inspector General for the FBI should be established.

Title II. Whistleblower Protection. This title of the bill amends Title 5, U.S.C. § 2303, to enhance the whistleblower protection provided to FBI employees and protect them from retaliation.

Section 201. Providing Whistleblower Protection for FBI Employees.

Section 2303 of title 5, United States Code, is amended to expand the types of disclosures that trigger whistleblower protections by protecting disclosures, which the employee "reasonably believes" evidences misconduct, to the OIG, the Congress, a supervisor of the employee, or the Special Counsel (an office of the Merit Systems Protection Board ("MSPB") provided for by 5 U.S.C. § 1214). The amendment would also ensure that the procedural protections of the Administrative Procedure Act, including but not limited to 5 U.S.C. sections 554-57 and 701-706, would be followed in cases where a complaint of retaliation was made by an FBI employee. These procedural protections include, among other things, an impartial decision maker and decision based on the "record" of any proceedings without ex parte contacts and judicial review as provided. Current laws and regulations which allow for the protection of classified material would also be available for such proceedings in appropriate situations. The amendment, in new subsection (c), provides an individual right of action as provided under Chapter 12 of Title 5 before the MSPB. The amendment, in new subsection (d), requires the Attorney General to prescribe regulations to ensure that the title is enforced at the FBI.

TITLE III. FBI Security Career Program. Title III requires the FBI to establish a career security program to enhance the internal security of the FBI and ensure that appropriate management tools and resources are devoted to that task. Security professional career development requirements would be modeled generally on the statutory Department of Defense Acquisition Career Program.

Section 301 requires the Attorney General to establish policies and procedures for career management of FBI security personnel. Section 302 authorizes the Attorney General to delegate to the FBI Director the Attorney General's duties with respect to the FBI security workforce. Section 303 directs the FBI Director to appoint a Security Director, who, under Section 304, would chair a security career program board to advise in managing hiring, training, education, and career development. Section 305 directs the FBI Director to designate certain positions as security positions, with responsibility for personnel security and access control, information systems security, information assurance, physical security, technical surveillance countermeasures, operational, program and industrial security, and information security and classification management.

Section 306 requires that career paths to senior positions would be published. FBI Special Agents would not have preference for a security position, and no positions would be restricted to Special Agents unless the Attorney General makes a special determination. All FBI personnel would have the opportunity to acquire the education, training and experience needed for senior security positions. The Attorney General would ensure that policies are designed to select the best qualified individuals, consistent with other applicable law. Consideration would also be given to the need for a balanced workforce.

Section 307 would direct that education, training, and experience requirements would be established for each position. Before assignment as manager or deputy manager of a significant security program, a person would have to complete a security program management course accredited by the Joint DoD-Intelligence Security Training Consortium or determined to be comparable by the Director, and have 6 years security experience including 2 years in a similar program. Section 308 directs the Director, in consultation with the DCI and Secretary of Defense, to establish education and training programs for FBI security personnel that are, to the maximum extent practical, uniform with Intelligence and DoD programs. Section 309 sets forth the process for approval of requirements set forth under section 307.

TITLE IV. FBI Counterintelligence Polygraph Program. This title would require the Attorney General to establish an FBI Counterintelligence Polygraph Program for personnel in exceptionally sensitive positions that reflects the results of a pending National Academy of Sciences review of the validity of the polygraph, within 6 months after publication of that review. The regulations would be prescribed in accordance with the Administrative Procedures Act. A similar requirement for the Department of Energy was passed in the latest Defense Authorization Act.

Sections 401-404. Definitions, Establishment of Program, Regulations, Report

Section 402 requires the establishment of a counterintelligence screening polygraph program consisting of periodic polygraph examinations of employees and contractors with access to sensitive compartmented information, special access program information, or restricted data. This program shall be established within 6 months of the publication of the results of the report of the Committee to Review the Scientific Evidence on the Polygraph of the National Academy of Sciences. Section 403 directs that the program have procedures that address "false positive" results and ensure quality assurance and control in accordance with guidance from the DoD Polygraph Institute and the DCI. No adverse personnel action could be taken solely by reason of physiological reaction on an exam without further investigation and personal decision by the Director. Employees could have prompt access to unclassified reports of their exams that relate to adverse personnel action. Section 404 requires a report within 9 months of the enactment of the Act on any further legislative action appropriate in the personnel security area.

TITLE V. Enhancement and Formalization of the FBI's Police Force. This title provides statutory authorization for an already existing FBI police force that protects FBI buildings and adjacent streets. Currently, the FBI police suffers from a high rate of turnover due to lower pay and fewer benefits than the Uniformed Division of Secret Service or Capitol and Supreme Court police. This title would close this disparity.

Section 501 defines the terms "Director," "FBI buildings and grounds," and "FBI police" as used in the title. Section 502 authorizes the FBI Director to establish the FBI police, subject to the Attorney General's supervision, to protect persons and property within FBI buildings and grounds, including adjacent streets and sidewalks within 500 feet. FBI buildings and grounds would include any building occupied by the FBI and subject to FBI supervision and control, the land on which such building is situated, and enclosed passageways connecting such buildings. FBI police would be uniformed representatives of the FBI with authority to make arrests and otherwise enforce federal and D.C. laws, carry firearms, prevent breaches of the peace, suppress unlawful affrays and unlawful assemblies, and hold the same powers as sheriffs and constables. FBI police would not have authority to serve civil process. Pay and benefits would be equivalent to pay and benefits for the Secret Service Uniformed Division. Section 503 provides that the authority of the Washington, D.C. Metropolitan Police would not be affected by this title.

Title VI. Reports. This title requires two separate reports by the Attorney General and one by the General Accounting Office.

Section 601 requires the Attorney General to submit a report to Congress on the legal authority for FBI programs and activities, identifying those that have express statutory authority and those that do not. The FBI does not have a statutory charter. One was proposed in 1979 but never enacted. Many FBI functions including its national intelligence and counterintelligence activities are authorized by Executive order rather than by statute. This section also requires the Attorney General to recommend the criminal statutes for which the FBI should have investigative responsibility, whether the authority for any FBI program or activity should be modified or repealed, whether the FBI should have express statutory authority for any program or activity for which it does not currently have such authority, and whether the FBI should have authority for any new program or activity.

Section 602 requires the Attorney General to submit a report on FBI information management and technology, including whether the authority is needed to waive normal procurement regulations. The report would provide the results of pending Justice Management Council studies and Inspector General audits and submitting a 10-point plan for improving FBI information management and technology to ensure that (1) appropriate FBI technology management positions are filled by personnel with commercial sector experience, (2) access to the most sensitive information is audited so that suspicious activity is subject to near contemporaneous review, (3) critical information systems employ a public key infrastructure, (4) security features are tested by the National Security Agency, (5) FBI employees receive annual instruction in records and information management, (6) a research and development reserve is established, (7) undue requirements for less costly software purchases are eliminated, (8) contracting with an expert technology partner is considered, (9) procedures are instituted to procure through contracts of other agencies as necessary; (10) and system upgrades are tested before operational deployment.

Section 603 requires the General Accounting Office to report on how crime statistics are reported and used by Federal law enforcement agencies. Specifically, the report would identify policies that allow a case to be claimed or reported by more than one law enforcement agency, the conditions that allow such reporting to occur, the number of such cases reported during a 4-year period, similar multiple claims of credit for arrests, the use of such statistics for administrative and management purposes, and relevant definitions. The report would include recommendations for how to eliminate unwarranted and duplicative reporting. Federal law enforcement agencies would be required to comply with GAO requests for information necessary to prepare the report.

Title VII. Miscellaneous. This title would address the issue of the "double standard" in the FBI, to prevent lower level employees from being more harshly disciplined than senior FBI officials. Section 7542 of title 5, United States Code, would be amended to allow disciplinary suspensions of SES members for 14 days or less, as is the case for other federal personnel. Current law provides only for suspension "for more than 14 days."

This section would lift the minimum of 14 days suspension that applies in the FBI's SES disciplinary cases and thereby provide additional options for discipline in SES cases and encourage equality of treatment. The current inflexibility of disciplinary options applicable to SES officials was cited at a Senate Judiciary Committee oversight hearing in July, 2001, as one underlying reason for the "double standard" in FBI discipline. In effect, those deciding the discipline of SES employees are often left with the choice of an overly harsh penalty or no penalty at all - so they decide not to impose any meaningful disciplinary action.

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