For reference, below are: 1) fact sheet on the FBI Reform Act; 2) section-by-section analysis of the FBI Reform Act; 3) Leahy REAX to the FBI reorganization announced today (Wed.) by Director Mueller.

The bipartisan FBI Reform Act (Leahy-Grassley) was unanimously approved by the Judiciary Committee on April 25. Since then a Senate vote on the bill has been blocked by an anonymous Republican hold on the floor. The bill would reform the FBI in several ways and is one of the products of the Judiciary Committee's ongoing FBI oversight hearings, which Senator Leahy launched last July, soon after becoming the panel's chairman last summer. The hearings, which will resume again soon after the Memorial Day recess, are the first comprehensive oversight hearings on the FBI is two decades. Note, in current context, the fact that the FBI Reform Bill's whistleblower reforms would protect FBI agents such as Agent Coleen Rowley of Minneapolis, who is not covered by whistleblower protections in current law. Sens. Leahy, Grassley and Specter (in their letter last Friday) have asked Director Mueller to protect Rowley against reprisals, and he has said that he would. Leahy has also asked Attorney General Ashcroft to protect Rowley against reprisals. -

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

1)

FBI REFORM ACT OF 2002

FBI ACCOUNTABILITY --

Improves FBI Oversight by codifying authority of Department of Justice Office of the Inspector General ("OIG") to investigate all allegations of misconduct at the FBI and ensuring that the OIG has the resources to carry out its new responsibilities.

Expands Whistleblower Protection to protect from retaliation FBI employees who report misconduct.

Provides Remedy For Disciplinary Double Standard that has led to lower level employees being more harshly disciplined than senior FBI officials by expanding options for discipline of Senior Executive Service agents.

FBI SECURITY --

Establishes FBI Security Career Program to enhance internal security of the FBI with appropriate management tools and resources, as recommended by the Webster Commission.

Establishes FBI Counterintelligence Polygraph Program for periodic counter-intelligence polygraph examinations of employees and contractors with access to exceptionally sensitive information to detect and prevent espionage while protecting employees' rights.

Formalizes FBI's Police Force that protects the FBI building and adjacent streets and addresses personnel issues generating high rate of turnover.

Strengthens Justice Department Security to protect sensitive FBI information shared with Justice, including FISA information, as recommended by the Webster Commission.

PREPARING FOR THE 21st CENTURY --

Clarifies FBI's Criminal and Counterintelligence Authority by directing the Attorney General to identify those FBI programs and activities that have express statutory authority and those that do not, such as counterintelligence activities, with recommendations for modifying, transferring, repealing or enhancing authority for programs or activities.

10-Point Plan for Improving FBI Information Management and Technology by directing the Attorney General to report on need for waiver authority for procurement regulations and a plan for improving FBI information management and technology that is informed by the results of pending Justice Management Council studies and Inspector General audits.

Enhances Truth-In-Reporting with GAO Review of Crime Statistics by directing GAO to report on the use of crime statistics by the FBI and other law enforcement agencies.

# # # # #
 

2)

FBI REFORM ACT of 2002
SECTION-BY-SECTION ANALYSIS

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 ("DOJ") 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.

Section 101. Authority of Department of Justice Inspector General

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. The Committee substitute would make clear that the OIG may investigate alleged misconduct by DOJ component heads and require that the Attorney General report to the Judiciary Committees if he does not follow the OIG disciplinary recommendation in such a case.

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.

Section 102. Review of the Department of Justice

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. The Committee substitute would add a requirement to report on FBI administrative changes to implement the OIG authority, on different internal investigative methods used by DOJ components and steps to bring uniformity, and on whether recommended guidelines should be developed for the discipline of DOJ personnel for misconduct.

Section 103. Authorization of Appropriations

The floor substitute adds Section 103 to authorize additional funds for the OIG and the FBI Office of Professional Responsibility.

Subsection (a) would authorize $2,000,000 to be appropriated to the Department of Justice for fiscal year 2003 for three purposes: first, to increase the staffing level of the OIG by 25 full-time special agents to conduct an increased number of audits, inspections, and investigations of alleged misconduct by FBI employees; second, to fund additional audit coverage of the grant programs administered by the Office of Justice Programs of the Department of Justice; and third, to conduct special reviews of FBI efforts to implement recommendations made by the OIG in reports on alleged misconduct by the Bureau.

Subsection (b) would authorize $1,700,000 to be appropriated to the FBI for fiscal year 2003 to increase the staffing level of the FBI Office of Professional Responsibility by 10 full-time special agents and 4 full-time support employees.

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

Section 201. Providing Whistle blower Protection for FBI Employees.

Section 2303 of title 5, United States Code, is amended to expand the types of disclosures that trigger whistle blower 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.

Sections 301-305. Establishing and Defining Career Security 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. The Committee substitute makes clear that the policies are to be implemented at both the headquarters and field office levels. 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.

Sections 306-309. Career Development and Training

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.

Section 405. Webster Commission Implementation Report

The floor substitute adds Section 405 to implement a recommendation in the report of the Commission for Review of FBI Security Programs, dated March 31, 2002 ("Webster Commission"). Subsection (a) would require the FBI Director to submit to the appropriate Committees of Congress a plan for implementation of the Webster Commission recommendations, including the costs of such implementation. Subsection (b) would require the FBI Director to submit to the appropriate Committee annual reports on implementation of this plan for three years thereafter. Subsection (c) defines the appropriate Committees as the Senate and House Judiciary and Appropriations Committees, the Senate Select Committee on Intelligence, and the House Permanent Select Committee on Intelligence.

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.

Sections 501-503. Definitions; Establishment; Authority of Metropolitan Police

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. FBI Authority and Mission

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. FBI Information Management

Section 602, as revised by the floor substitute, would require the FBI Director, with appropriate commends from other components of the Department of Justice, to submit to the Congress a report on FBI information management and technology, including whether the authority is needed to waive normal procurement regulations. The bill, as reported, would have required that this report be submitted by the Attorney General. 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. GAO Report on Crime Statistics Reporting

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. Ending the Double Standard. 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." The Committee substitute adds section 702 to require certain reports by the FBI Office of Professional Responsibility.

Section 701. Allowing Disciplinary Suspensions of Members of the Senior Executive Service For 14 Days or Less

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.

Section 702. Submitting Office of Professional Responsibility Reports to Congressional Committees

This section would require the OIG to submit to the Judiciary Committees, for five years, annual reports by the FBI Office of Professional Responsibility on its investigations, recommendations, and their disposition, including an analysis of whether any double standard is being employed.

Title VIII. Enhancing Security at the Department of Justice. The Committee substitute adds this title which would implement recommendations of the Webster Commission for enhancing security at the Department of Justice, which handles sensitive FBI and national security information, and for secure communication of information shared between the FBI and the DOJ Office of Intelligence Policy and Review regarding Foreign Intelligence Surveillance Act matters.

Sec. 801. Report on the Protection of Security and Information at the Department of Justice.

This section would require the Attorney General to submit a report to Congress on the manner in which the DOJ Security and Emergency Planning Staff, Office of Intelligence Policy and Review, and DOJ Chief Information Officer plan to improve the protection of security and information at DOJ, including a plan to establish secure communications between the FBI and OIPR for processing information related to the Foreign Intelligence Surveillance Act. A provision comparable to sec. 803 was reported by the Judiciary Committee in 2000, and a modified version was enacted as part of the Intelligence Authorization Act for FY 01.

Sec. 802. Authorization for Increased Resources to Protect Security and Information.

This section would authorize funds for the DOJ Security and Emergency Planning Staff to meet the increased demands to provide personnel, physical, information, technical, and litigation security for the DOJ, to prepare for terrorist threats and other emergencies, and to review security compliance by DOJ components. Amounts authorized would be $13 million for FY 03, $17 million for FY 04, and $22 million for FY 05.

Sec. 803. Authorization for Increased Resources to Fulfill National Security Mission of the Department of Justice

This section would authorize funds for the DOJ Office of Intelligence Policy and Review to help meet the increased personnel demands to combat terrorism, process applications to the Foreign Intelligence Surveillance Court, participate effectively in counterespionage e=investigations, provide policy analysis and oversight on national security matters, and enhance computer and telecommunications security. Amounts authorized would be $7 million for FY 03, $7.5 million for FY 04, and $8 million for FY 05.

# # # # #
 

3)

Comment Of Sen. Patrick Leahy,
Chairman, Senate Judiciary Committee,
On FBI Restructuring
May 28, 2002

"I support what Director Mueller is trying to do. His goals are where they should be. Boosting the FBI's analytical capabilities is critically needed, and so is a shift of resources with a prime focus on counterterrorism. The Rowley and Phoenix memos are the latest warning signals about the institutional problems that Director Mueller and Attorney General Ashcroft need to overcome.

"The FBI cannot be all things to all people, and that means making some hard choices, and these should not and will not be the last of them. The FBI needs to become agile enough to respond to the changing needs of the country.

"I commend Director Mueller for consulting with Congress about these changes. Congressional oversight committees are partners in the effort to sharpen and refocus the FBI and the Justice Department, and we will continue to assess and prescribe the changes needed to make the bureau as effective in the war on terrorism as the nation needs it to be. We will continue to press to end the hold that is preventing a Senate vote on the bipartisan FBI Reform Act, which the Judiciary Committee unanimously approved last month."

# # # # #