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Michael Horowitz’ Monthly Complaint about FBI and DEA Stonewalling

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The House Oversight Committee is having a hearing on the problems law enforcement agencies have with sexual harassment and misconduct, as reported by DOJ’s Inspector General. DEA Administrator Michele Leonhart will be offering amusing testimony about how the DEA has given its Agents clear instructions that they’re really the best evah™ but they need to stop breaking the law.

But because I’m an IG nerd, I’m as interested in what has become a monthly event during DOJ Inspector General Michael Horowitz’ tenure, when he provides details of FBI and DEA’s latest stonewalling of oversight. Here’s today’s version:

Further, we cannot be completely confident that the FBI and the DEA provided us with all information relevant to this review. When the OIG finally received from the FBI and DEA the requested information without extensive redactions, we found that it still was incomplete. For example, we determined that the FBI removed a substantial number of cases from the result of their search and provided additional cases to the OIG only after we identified some discrepancies. These cases were within the scope of our review and should have been provided as requested. Likewise, the DEA also provided us additional cases only after we identified some discrepancies. In addition, after we completed our review and a draft of the report, we learned that the DEA used only a small fraction of the terms we had provided to search its database for the information needed for our review. Rather than delay our report further, we decided to proceed with releasing it given the significance of our findings.

We also determined that the DEA initially withheld from us relevant information regarding an open case involving overseas prostitution. During a round of initial interviews, only one interviewee provided us information on this case. We later learned that several interviewees were directly involved in the investigation and adjudication of this matter, and in follow-up interviews they each told us that they were given the impression by the DEA that they were not to talk to the OIG about this case while the case was still open. In order to ensure the thoroughness of our work, the OIG is entitled to receive all information in the agency’s possession regardless of the status of any particular case.

As I have testified on multiple occasions, in order to conduct effective oversight, an Inspector General must have timely and complete access to documents and materials needed for its audits, reviews, and investigations. This review starkly demonstrates the dangers inherent in allowing the Department and its components to decide on their own what documents they will share with the OIG, and even whether the Inspector General Act requires them to provide us with requested information. The delays experienced in this review impeded our work, delayed our ability to discover the significant issues we ultimately identified, wasted Department and OIG resources during the pendency of the dispute, and affected our confidence in the completeness of our review.

This was not an isolated incident. Rather, we have faced repeated instances over the past several years in which our timely access to records has been impeded, and we have highlighted these issues in our reports on very significant matters such as the Boston Marathon Bombing, the Department’s use of the Material Witness Statute, the FBI’s use of National Security Letters, and ATF’s Operation Fast and Furious.

The Congress recognized the significance of this impairment to the OIG’s independence and ability to conduct effect oversight, and included a provision in the Fiscal Year 2015 Appropriations Act — Section 218 — which prohibits the Justice Department from using appropriated funds to deny, prevent, or impede the OIG’s timely access to records, documents, and other materials in the Department’s possession, unless it is in accordance with an express limitation of Section 6(a) of the IG Act. Despite the Congress’s clear statement of intent, the Department and the FBI continue to proceed exactly as they did before Section 218 was adopted – spending appropriated funds to review records to determine if they should be withheld from the OIG. The effect is as if Section 218 was never adopted. The OIG has sent four letters to Congress to report that the FBI has failed to comply with Section 218 by refusing to provide the OIG, for reasons unrelated to any express limitation in Section 6(a) of the IG Act, with timely access to certain records.

We are approaching the one year anniversary of the Deputy Attorney General’s request in May 2014 to the Office of Legal Counsel for an opinion on these matters, yet that opinion remains outstanding and the OIG has been given no timeline for the issuance of the completed opinion. Although the OIG has been told on occasion over the past year that the opinion is a priority for the Department, the length of time that has now passed suggests otherwise. Instead, the status quo continues, with the FBI repeatedly ignoring the mandate of Section 218 and the Department failing to issue an opinion that would resolve the matter. The result is that the OIG continues to be prevented from getting complete and timely access to records in the Department’s possession. The American public deserves and expects an OIG that is able to conduct rigorous oversight of the Department’s activities. Unfortunately, our ability to conduct that oversight is being undercut every day that goes by without a resolution of this dispute.

At some point, Congress is going to have to decide whether it will use the power of the purse — as they have authorized by statute — to force DEA and FBI to meet the same standards of disclosure that mere citizens would be required if DEA and FBI were investigating them.

Until then, we should just assume FBI and DEA are breaking the law.

US Isn’t Collecting Only Electronic Data On You — Huge Biometric Database Under Construction, Too

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Edward Snowden’s revelations have shed much light on how secret government programs are collecting huge amounts of telephone, email and other electronic data generated by every US citizen even though, as Marcy has shown repeatedly, claims that collecting all of this data have enabled the capture of terrorists turn out to be significantly overblown. Sadly, it’s not just records of our communications that the government is collecting. The FBI is taking the lead in putting together what it calls Next Generation Identification. This program will expand the conventional FBI fingerprint database to include significant amounts of biological, or biometric data. From the FBI’s own description:

The future of identification systems is currently progressing beyond the dependency of a unimodal (e.g., fingerprint) biometric identifier towards multimodal biometrics (i.e., voice, iris, facial, etc.). The NGI Program will advance the integration strategies and indexing of additional biometric data that will provide the framework for a future multimodal system that will facilitate biometric fusion identification techniques. The framework will be expandable, scalable, and flexible to accommodate new technologies and biometric standards, and will be interoperable with existing systems. Once developed and implemented, the NGI initiatives and multimodal functionality will promote a high level of information sharing, support interoperability, and provide a foundation for using multiple biometrics for positive identification.

Wait. See that “etc.” in the “voice, iris, facial, etc”? Given the government’s behavior on electronic data, throwing in an “etc.” on biometric data is pretty unnerving. Impressive work is being done by the Electronic Privacy Information Center to shed light on just what the government is up to with Next Generation Identification. Here is their description of the program:

The Federal Bureau of Investigation is developing a biometric identification database program called “Next Generation Identification” (NGI). When completed, the NGI system will be the largest biometric database in the world. The vast majority of records contained in the NGI database will be of US citizens. The NGI biometric identifiers will include fingerprints, iris scans, DNA profiles, voice identification profiles, palm prints, and photographs. The system will include facial recognition capabilities to analyze collected images. Millions of individuals who are neither criminals nor suspects will be included in the database. Many of these individuals will be unaware that their images and other biometric identifiers are being captured. Drivers license photos and other biometric records collected by civil service agencies could be added to the system. The NGI system could be integrated with other surveillance technology, such as Trapwire, that would enable real-time image-matching of live feeds from CCTV surveillance cameras. The Department of Homeland Security has expended hundreds of millions of dollars to establish state and local surveillance systems, including CCTV cameras that record the routine activities of millions of individuals. There are an estimated 30 million surveillance cameras in the United States. The NGI system will be integrated with CCTV cameras operated by public agencies and private entities.

So just as the government has moved far beyond tapping communications only with a warrant to include the communications of innocent civilians, biometric identifiers of innocent civilians will be included in NGI alongside identifiers of known criminals. And what could possibly go wrong with our information being assembled in this way? Here’s how EPIC says the database will be built and maintained: Read more →

John Galt Is Everywhere and His Killing Spree Continues

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On Thursday, I wrote about the central role that absolute free market libertarianism, as personified by the fictional John Galt, played in the horrific explosion in West, Texas that took the lives of fourteen people, most of whom were volunteer firefighters fighting a fire at an unregulated fertilizer facility. We have now learned that the facility had a checkered history of ignoring regulations and had 1350 times more ammonium nitrate on hand than the amount that triggers a legal requirement to report the facility to Department of Homeland Security. Of course, the facility’s owner chose to ignore that regulation along with the many other regulations he chose to ignore. Sadly, some press accounts of the owner chose to focus more on his role as a church elder (Update: he was even at Bible study when the fire broke out!) than on how his choice to flout regulations and good sense led directly to this tragedy. Whatever the cause of the original fire that eventually triggered the explosion, the plant owner’s decision to maintain such a large and unreported amount of highly explosive ammonium nitrate so close to so many people played a huge role in how this tragedy played out.

Those deaths, and their roots in blatant disregard for government regulation in the belief that it harms business, are sadly just a small part of the larger picture of how free marketeers have corrupted the public marketplace of ideas to sow widespread death and destruction so that the “job creators” can go about their usual business of pocketing massive profits while refusing to make microscopic investments in small steps that would save many lives.

Remember the other, larger Massachusetts tragedy that killed at least 50 and injured 722? No?  It was discovered last fall that New England Compounding Center in Framingham, Massachusetts had been flaunting the rules on drug manufacturing and in their haste to reap maximum profits shipped out vials of steroids contaminated with fungus. Thousands of patients around the country were injected with contaminated material and deaths and injuries followed.

You would think that since this tragedy played out last fall, the government would have realized the error of letting companies call themselves compounders when they are in reality manufacturing drugs on a large scale. Drug manufacturers are subject rigid FDA standards while compounders are regulated as if they are simple neighborhood pharmacies where the druggist might mix single vials of drugs into a form a local doctor has requested for individualized treatment of a patient. But no, because of massive lobbying on the part of compounders, who have become a huge presence because of the vast sums of money they can earn by working the margins of regulation, lawmakers pocket the proceeds of the lobbying and proclaim themselves powerless to harm the job creators as they bring these products to market. It should be viewed as no surprise then, that a different compounder, this time in Florida, now is recalling all of its products because it has been found to have been shipping product that was contaminated with bacteria. It is not yet known if any patients have been harmed by products from this compounder, but at least today’s article on the recall was able to update the death toll from the Massachusetts compounder to 53.

The Boston Marathon bombing and the subsequent search for the perpetrators also was touched by John Galt. Technology has existed for nearly 20 years that can make individual production lots of explosives traceable. But when it came time to implement the technology, the NRA and other gun enthusiasts managed to limit the inclusion of taggants to plastic explosives and to specifically exempt black powder (otherwise known as gunpowder) from being required to be traceable. The Boston bombs used black powder. If investigators had been able to know within hours of the blast where and when the black powder was purchased, would they have been able to arrest the bombers sooner and without the subsequent death of one police officer and near death of another? The full shutdown of Boston on Friday would not have happened if the brothers had been arrested Wednesday or Thursday through tracing the black powder they purchased. But no, John Galt said that gunpowder manufacturers shouldn’t have to spend the extra pennies to tag production lots and the inclusion of taggants in gunpowder infringes the rights of gun owners in a de facto registration of their ammunition, so society has to suffer the consequences of this freedom.

Oh and all that gun freedom. It appears that we have five more gun freedom victims in Seattle today.

John Galt is a very busy guy, sowing death and destruction from one side of the country to the other. But since he continues to make good money, we have to give him his freedom and keep those markets wide open. Praise the lord of the free market and pass the untagged ammunition.

The Shut-Down Question

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While I think it’s a crucial question to debate going forward, at this point I am agnostic about whether the decision to shut down the entire city of Boston on Friday was the right one or not. Furthermore, thus far the question has been presented as an either/or choice: to shut down all of Boston, or none of it. It is possible the best decision would have been to shut down Watertown.

My biggest concern, however, is the possibility that the decision communicates to potential terrorists that they can shut down an entire city with 4 pressure cooker bombs and one dead cop.

All that said, I think as we discuss the question going forward, we need to be clear that the analysis probably needs to evaluate three steps in the process:

  • The decision to release the photos of the brothers on Thursday night
  • The actions surrounding the firefight in Watertown
  • The decision to shut down Boston

After all, the only thing that changed between Tuesday — when Boston remained open — and Friday — when it was shut down — is the murdered MIT officer and the hijacked Mercedes. The brothers were on the loose, presumed very dangerous, the entire time. Indeed, there might have been more reason to lock the city down immediately, to prevent their getaway. But the city did not shut down unti Friday, after they had been flushed out by release of the pictures. So to some degree, you need to start with the decision to release the pictures.

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