Law­mak­ers and in­spec­tors gen­eral

Fed­eral agen­cies re­quire over­sight and IGs per­form the task

The Washington Times Weekly - - Front Page - By Chuck Grass­ley Chuck Grass­ley, a Repub­li­can, is the se­nior sen­a­tor from Iowa and chair­man of the Se­nate Ju­di­ciary Com­mit­tee.

Amer­i­cans have a right to know when our gov­ern­ment is fail­ing to func­tion prop­erly or is step­ping out of line. Mem­bers of Congress, who rep­re­sent the Amer­i­can public, are col­lec­tively tasked with the im­por­tant re­spon­si­bil­ity of over­sight to en­sure the gov­ern­ment is ac­count­able to the peo­ple it serves.

This is a tall or­der. You don’t have to look far to see ex­am­ples of fed­eral agen­cies in need of over­sight, whether it’s the FBI pun­ish­ing staff for call­ing out mis­con­duct, the Depart­ment of Home­land Se­cu­rity giv­ing pref­er­en­tial treat­ment to well-con­nected EB-5 visa ap­pli­cants, or the State Depart­ment’s in­abil­ity to prop­erly keep track of its own email records.

To as­sist in over­sight, law­mak­ers rely on in­spec­tors gen­eral (IGs), the in­de­pen­dent agency watch­dogs who are uniquely po­si­tioned within the ex­ec­u­tive branch to re­port prob­lems to Congress. Congress passed laws ex­plic­itly al­low­ing IGs to have “timely ac­cess to all records” in or­der to fully and in­de­pen­dently re­view the agency’s work. This au­thor­ity was granted by the In­spec­tor Gen­eral Act of 1978 and reaf­firmed in sub­se­quent bi­par­ti­san gov­ern­ment fund­ing mea­sures.

How­ever, in the last five years, a hand­ful of agen­cies, led by the FBI Gen­eral Coun­sel’s of­fice, have taken is­sue with the def­i­ni­tion of the word “all,” and have re­fused to pro­vide timely ac­cess to records re­quested by the IG.

In Fe­bru­ary alone, the Jus­tice Depart­ment’s IG no­ti­fied Congress on three sep­a­rate oc­ca­sions in which the FBI failed to pro­vide ac­cess to records re­quested for over­sight in­ves­ti­ga­tions. IGs for the En­vi­ron­men­tal Pro­tec­tion Agency, Depart­ment of Com­merce and the Peace Corps have ex­pe­ri­enced sim­i­lar stonewalling.

In a July memo, the Jus­tice Depart­ment’s Of­fice of Le­gal Coun­sel sug­gested that IGs need the per­mis­sion from the agency to ob­tain doc­u­ments from that agency. The OLC claims that Congress didn’t re­ally mean IGs have ac­cess to all records, even though the statute specif­i­cally states “all records.”

The law was writ­ten this way to en­sure that agen­cies can’t pick and choose when to co­op­er­ate with IGs and when to with­hold in­con­ve­nient or po­ten­tially em­bar­rass­ing records. For these watch­dogs to truly pro­vide the in­de­pen­dent over­sight that the law in­tended, they need un­fet­tered ac­cess to agency doc­u­ments.

In Au­gust, I chaired a hear­ing where mem­bers of the IG com­mu­nity dis­cussed the chal­lenges that have stemmed from agen­cies’ un­will­ing­ness to com­ply with the let­ter of the law. At the hear­ing, Jus­tice Depart­ment In­spec­tor Gen­eral Michael Horowitz stated, “Re­fus­ing, re­strict­ing, or de­lay­ing an In­spec­tor Gen­eral’s in­de­pen­dent ac­cess to records and in­for­ma­tion may lead to in­com­plete, in­ac­cu­rate, or sig­nif­i­cantly de­layed find­ings and rec­om­men­da­tions, which in turn may pre­vent the agency from promptly cor­rect­ing se­ri­ous prob­lems and pur­su­ing re­cov­er­ies that ben­e­fit taxpayers, and de­prive Congress of timely in­for­ma­tion re­gard­ing the agency’s ac­tiv­i­ties.”

He fur­ther stated that the Of­fice of Le­gal Coun­sel’s memo may lead other agen­cies to block in­ves­ti­ga­tions of fraud waste or abuse by re­strict­ing ac­cess to records. Al­ready, the In­ter­nal Rev­enue Ser­vice has stiff-armed its IG based on this mis­guided in­ter­pre­ta­tion of the law.

I re­cently was joined by a bi­par­ti­san, bi­cam­eral group of law­mak­ers in call­ing on the ad­min­is­tra­tion to com­mit to par­tic­u­lar leg­isla­tive lan­guage en­sur­ing that IGs re­ceive un­re­stricted ac­cess to all agency doc­u­ments, as cur­rent law in­tends.

This week, a bi­par­ti­san group of sen­a­tors are press­ing to pass the In­spec­tor Gen­eral Em­pow­er­ment Act of 2015 that in­cludes fur­ther clar­i­fi­ca­tion as to what Congress in­tended when it comes to IGs’ ac­cess to agency records: “all” in­deed means all.

The leg­is­la­tion also bol­sters IG in­de­pen­dence by shield­ing them from ar­bi­trary and in­def­i­nite dis­ci­pline by agency heads. The bill would pro­mote greater trans­parency by re­quir­ing IGs to post their re­ports online and by equip­ping IGs with tools to sub­poena tes­ti­mony from con­trac­tors, grantees, and em­ploy­ees who have re­tired from the gov­ern­ment, of­ten while un­der in­ves­ti­ga­tion by the IG.

IGs are crit­i­cal to public con­fi­dence in the rule of law, but they can­not ef­fec­tively ful­fill this re­spon­si­bil­ity when a de­bate over se­man­tics is al­lowed to trump a com­mit­ment to trans­parency in our fed­eral agen­cies. It is that trans­parency that will lead to the ac­count­abil­ity we need to im­prove our gov­ern­ment.


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