Sen. Chuck Grassley minced no words in declaring that the federal government’s chief law enforcement agency must follow the law like everybody else.
“The FBI is not above the law,” the Iowa Republican said during a hearing of the Senate Judiciary Committee Wednesday on whether the crime busters can defy 72 inspectors-general by refusing to allow the watchdogs access to selected official documents.
“It is laughable,” Sen. John Cornyn, R-Texas, said of the FBI’s access restrictions. “It is laughable. And it really is completely unacceptable.”
Grassley, chairman of the Senate Judiciary Committee, Cornyn, a former Texas attorney general, and other members of the panel, are working on legislation to affirm that the Inspectors General Act of 1978, which says IGs have the right to access “all” federal records covers all federal records.
The legislation was requested by Department of Justice Inspector General Michael Horowitz and other IGs after the Department of Justice’s Office of Legal Counsel sided with the FBI’s practice since 2010 of filtering and delaying wiretap, grand jury and credit records sought by Horowitz’s investigators.
Horowitz is chairman of the Council on Integrity and Efficiency, which represents the IGs.
“I think we need a more permanent solution, one that ensures IGs have access to the records they need to do their job, and I will work closely with Sen. Grassley to craft a legislative solution,” said Sen. Patrick Leahy, the Vermont Democrat who is the committee’s ranking minority member.
Horowitz and other IGs told the panel that their access to important documents is becoming more difficult as other agencies join the FBI in resisting such requests.
“This is not just a Justice OIG problem” or only related to law enforcement data, said David Smith, the acting IG for the Department of Commerce. The legal counsel office’s opinion makes it harder for him to do his job, too.
Horowitz said his office had no problem accessing records before 2010. The resistance began after the DOJ IG issued what he called some particularly “hard-hitting” reports about DOJ employees. President Obama appointed Horowitz in 2012.
Kevin Perkins, FBI associate deputy director, did not explain why the FBI began questioning the IG’s authority, saying only that the “process change” was made after the IG consistently requested copious amounts of documents.
Perkins and Carlos Uriarte, associate deputy attorney general, were unable to recall any examples of IGs abusing sensitive documents or information.
The FBI and DOJ’s OLC argue that other laws related to privacy and national security trump the IG Act, a claim others disputed.
“The OLC opinion is wrong, absolutely wrong,” said New York University’s Paul White, a professor in the school’s Graduate School of Public Service.
“My conclusion is that there are no conflicting statutes at hand,” he added, saying the intent of the IG Act authors and the language itself makes it clear IGs are given authority to access every record required to complete their work.
White cautioned the committee, however, that Congress shouldn’t change a law that’s already clear.
“Go ahead and give OLC some help,” White said. “I strongly believe this memorandum should be withdrawn. It’s not good for OLC to issue an opinion that is so tangled. It doesn’t help their reputation in future memorandum.”
Committee members said they hope to have legislation drafted by the end of August.
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