The Department of Justice Inspector General slammed ongoing obstruction by the FBI that he says is making his job more difficult and hindering two whistleblower retaliation investigations.
“We continue to face challenges in getting timely access to information from Department components,” testified Michael Horowitz on Tuesday at a House Oversight Committee hearing.
Specifically, he said the FBI is withholding from his office documents related to grand jury records, electronic surveillance, and Fair Credit Reporting Act information. Horowitz said that his investigators have eventually received sought-after documents, but only after long delays, and only with the approval of the deputy Attorney General. The process, he said, “absolutely affects our independence.”
“It has had a significant impact on us. The biggest impact is on the staff,” Horowitz told lawmakers. “We get bogged down. We stop work. You lose valuable time and money and resources on our side with the FBI ramping up on their side.”
The problem is ongoing, he testified. Horowitz said his office has had outstanding requests to the FBI “for several months” concerning two whistleblower retaliation investigations. The delay, according to Horowitz, is so the FBI can determine what records the IG should have access to.
“That’s a problem in terms of a message to a whistleblower,” he said.
The adversarial posture that the FBI has taken toward its inspector general is a new one. Horowitz noted that prior to 2010, his office received all the records it asked for, including grand jury information and surveillance documents. Then, suddenly, the bureau stopped cooperating, and put in place the process that hinders the watchdog’s work today.
Ever since, Horowitz has informed Congress of the new obstructionism. He last testified on the matter in September 2014.
As to what motivated the new posture, Horowitz was clueless.
“I’m at a loss to understand why. The law didn’t change, the work we were doing didn’t change,” he said.
What is now different, he believes, is the FBI’s interpretation of the Inspector General Act. Passed in 1978, the law grants department IGs “access to all records, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable establishment which relate to programs and operations with respect to which that Inspector General has responsibilities under.” Although the law clearly grants the IG unfettered access to FBI records, the bureau claims that subsequent measures passed by Congress limit the act’s scope, allowing for the FBI to withhold several categories of records. Horowitz said that this office is waiting on a DOJ Office of Legal Counsel (OLC) opinion that was requested in May 2014 to resolve the matter once and for all. Until then, however, the inspector general’s office finds itself in a bind.
When asked by Delegate to the House, Rep. Eleanor Holmes-Norton (D-D.C.), if Congress should “clarify this issue once and for all” with legislation that reaffirms the Inspector General Act, and forbids the FBI from further delay tactics, Horowitz cautioned that such a maneuver could backfire.
He said the law, as is, is very clearly written. Attempts to alter or strengthen it could be interpreted by DOJ attorneys to confirm that the law as currently written is insufficient, which would provide legal justification for the exemptions used by the FBI.
If the bill isn’t passed promptly, it “would be cited as a reason not to give us access,” warned Horowitz.
The Inspector General of the Environmental Protection Agency who testified alongside Horowitz also lamented restricted access to records. In testimony, Arthur A. Elkins Jr. noted that the “EPA had asserted there was a category of activity defined as ‘intelligence’ to which the OIG may have access only subject to the EPA’s granting of permission.”
The agency’s assertion, Elkins testified, “impeded the OIG’s ability to investigate threats against EPA employees and facilities, conduct certain misconduct investigations and investigate computer intrusions.”
Rep. Stephen Lynch (D-Mass.) said such stonewalling borders on instigating a “constitutional crisis.”
“Oversight is really a constitutional responsibility of ours,” he said to the IG witnesses. “If we can’t get that information, we can’t do that part of our constitutional responsibility.”
Rep. Lynch also lamented a recent decision by the Department of Defense to withhold information from the Special Inspector General of Afghanistan Reconstruction (SIGAR).
Last week, The Sentinel noted that reports on US efforts to train the Afghan National Security Forces, which had been for six years made publicly available via SIGAR, were classified in January, as Afghans take a larger role in protecting the government in Kabul and public statements from the Obama administration about US troops’ combat orders conflict with a November article in The New York Times.
