The Obama Administration’s Defiance of Inspectors General—A Faulty Opinion from the Justice Department
The Obama Administration Starts to Limit IG Access
According to DOJ Inspector General Michael Horowitz, the IG community had no problem gaining access to all requested materials, including from the Federal Bureau of Investigation (FBI), until a 2010 IG probe of the FBI: “No law changed, no policy changed.… It was simply a decision by the General Counsel’s Office [of the FBI] in 2010 that they [now viewed] the law differently. And as a result, they weren’t going to give us [certain] information.”
[20]
Horowitz was perplexed by this move, since prior to 2010, the “DOJ never questioned our legal authority to access documents.”
[21] No attorney general even exercised the “national security” exemption, since Horowitz points out that his office was provided with very sensitive intelligence information when the IG investigated “the Robert Hanssen matter, the Aldrich Ames matter, the September 11 attacks, the post-September 11 surveillance program initiated by President Bush, and the FBI’s use of its authorities under the Patriot Act and the FISA Amendments Act.”
[22]
However, beginning in 2010 and 2011, lawyers inside the FBI, without objection by the Justice Department,
[23] “opined that the DOJ-OIG should not have access to certain categories of information, namely grand jury, wiretap, and credit information” pursuant to:
- Rule 6(e) of the Federal Rules of Criminal Procedure, which governs the secrecy of grand jury materials;
- The Federal Wiretap Act, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510-2522 (“Title III”); which provides the rules on intercepted wire communications; and
- Section 626 of the Fair Credit Reporting Act, 15 U.S.C. § 1681u (“FCRA”), which limits the authority of the FBI to disclose consumer information obtained pursuant to National Security Letters.
Since the Office of Legal Counsel issued its July 20 opinion limiting IG access under these three provisions, Horowitz testified that the FBI has identified at least 10 other categories of information it may not produce because of supposed restrictions in other federal laws, including “FISA information, Attorney-Client Information, Patient Medical Information, Bank Secrecy Act Information, Federal Juvenile Court Records, Information Subject to Non-Disclosure Agreements and Memoranda of Understanding, and Source Information.”
[24] Under the OLC Op., the only limit on DOJ officers’ ability to cherry-pick nondisclosure provisions from the numerous federal statutes in the U.S. Code in order to justify withholding information from the IGs is their creativity in interpreting those many statutes.
