TESTIMONY OF JOHN WERNER
BEFORE THE SENATE JUDICIARY COMMITTEE
July 18, 2001

I want to thank the committee for the invitation to testify.
Background
I am a self-employed general contractor in Cary, N.C. After more than 27 years of service, I retired from the FBI in 1999. During my Federal Bureau of Investigation (FBI) career, I investigated criminal matters in Washington, D.C., served as a Foreign Counterintelligence supervisor, worked in the Office of Professional Responsibility (OPR) as a supervisor, and supervised the Raleigh Resident Agency until my retirement. Additionally, I had extensive experience in internal affairs investigations beginning about 1985. This included my being the supervisor responsible for the investigation of alleged wrongdoing against then FBI Director William Sessions and his executive assistant. In another case, Special Agent (SA) John Roberts and I were ordered back from our respective field offices to investigate cover-up allegations in the Ruby Ridge matter. I was also involved in numerous other internal investigations of FBI management.
Management Issues, Ethical Standards
I realize we are here today to address FBI management reforms, discuss FBI problems and potential fixes for these problems. It is important not to forget the dedicated hard work performed by the more than 26,000 FBI employees, who successfully investigate thousands of cases each year. There are things broken in the FBI, primarily management-related, but the basics of how agents conduct their investigations are not broken.
The rank and file employees are hitting on all cylinders, albeit frustrated over the inefficiencies of management, broken or nonexistent information systems, and concerns over being held to higher standards of conduct than senior management.
Management problems begin with the FBI’s Senior Executive Service (SES) personnel. It would not be fair to suggest all members of the SES have been engaged in abuses of authority described herein, because the majority are sincere, dedicated law enforcement professionals who have made many sacrifices for the Bureau. My remarks are being addressed to that vocal minority of SES members, often referred to as the “Club” by street agents, who are motivated by self-preservation and self-interest at any cost. For the most part, these SES personnel are not motivated by the best interest of the FBI.
In his testimony before this committee, former Senator John Danforth suggested that an element of management misconduct, concerning the failure of disclosing wrongdoing, has its roots in the employees’ desire to “not embarrass the Bureau.” While there may be an element of this involved, I would suggest that protecting their self-interest is primary, and the excuse of “not embarrassing the Bureau” is a convenience to justify their misconduct. Hiding behind a wall of arrogance, senior managers hold the belief that they always know what is best for the Bureau. These SES members are intolerant of any suggestion that their way is wrong. They use intimidation and retaliation against anyone who would be so impertinent as to challenge their interests.
SES personnel have retaliated against agents who have been assigned investigations of SES misconduct. Special Agent Roberts, who is here today, has had his career seriously impaired because of his determined hard work on a number of high profile cases involving SES personnel. These retaliatory practices send a chilling message to any other agent who might be charged with similar investigations.
There are incidences where SES executives have taken action or avoided action, to protect their own from career perils. In the first investigation of Ruby Ridge, SES Inspectors sought to protect certain fellow peers from administrative discipline by conducting a sloppy and incomplete investigation. At the same time, they were most willing to hang lower tier employees “out to dry.” Another way the SES members protect themselves is by handling SES personnel misconduct adjudications differently from other cases. Until recently, the SES Board conducted SES adjudications. The discipline for SES infractions was typically somewhat less harsh to much less harsh than that given to non-SES employees charged with the same type of offense. This double-standard has debilitated rank and file employees’ morale and, as will be noted later, is one of the reasons quality agents are disinclined to enter the Career Development Program (CDP).
Management Structure Overhaul
There are many recognized root problems in the management structure of the FBI that senior management has neglected to seriously address. The SES staff resists changing a system that benefits them and ensures excessive headquarters control over all field operations. These problems have created disincentives that dissuade quality agents from participating in the CDP.
There are significant barriers that discourage agents from wanting to participate in career development. For example, to promote to the level of Assistant Director (AD), an agent must make a minium of six career moves, most requiring family relocations, and at least three tours must be conducted at FBIHQ. This gives headquarters senior management a stranglehold over these rising agents, requiring absolute allegiance to the SES staff. In addition, these frequent transfers do not give the Bureau ample time to judge the management ability of its managers.
Another FBIHQ issue concerns SES personnel prohibiting non-agent professional staff from assuming FBIHQ positions that historically have been filled by agents. Agents are expensive, scarce investigative resources who are better utilized in the field. Simply stated, there is an abundance of FBIHQ positions, currently filled by agents, which could be more efficiently and economically filled by support staff in a more consistent and permanent basis.
In 1998, Special Agent Carl Christiansen, then the Louisville Division Assistant Special Agent in Charge (ASAC), was tasked with conducting a survey of the Executive Development Selection Program (EDSP) to determine what impacts an agent’s decision to participate in management. The following is a sampling of the survey results:
- There are far more disincentives than incentives to participating in the CDP. There are too many transfers, inadequate financial incentives, etc.;
- FBIHQ assignments were viewed as very negative because headquarters work was viewed as clerical, devoid of supervisory responsibility, and did little to prepare an agent for future assignments;
- Agents expressed reluctance to become involved in a management system they believed to be hypocritical and lacking ethics.
SA Christiansen and his committee identified some of the underlying reasons for agents’ disinterest in the CDP. The FBI’s organizational structure, culture and approach to management are no longer suited to today’s world. They recommended that the Director needed to consider drastic changes to the structure and philosophy of management to allow the organization to adapt more readily to a quickly changing external environment. When SA Christiansen presented the survey recommendations to a group of 15 SES employees, the proposals were “scoffed” at. To date, only a few minor changes have been made to the CDP as a result of the survey.
Recently the outgoing President of the FBI Agents Association (FBIAA), SA John J. Sennett, stated in the “President’s Column” in the Spring 2001 FBIAA newsletter, “Along with better information automation, the FBI must re-tool. We must re-engineer our administrative and investigative practices. Keeping what is worth keeping, we also have to be aggressive in throwing away outdated and cumbersome administrative practices that drag down even the best and most energetic investigator.”
I fully agree with SA’s Christiansen and Sennett. A holistic overhaul of the entire system is needed. This should begin with a critical evaluation of the true needs of FBIHQ. For example, the multi-tiered, bloated headquarters structure is not necessary. The review might start with an eye toward expanding the management career track in the field to enable a street agent to rise to ASAC without a transfer to headquarters. New practices, along these lines, may begin to attract the FBI’s “best and brightest” into management. The “Blue Ribbon” commission proposed by Senate Bill 1074 intended to examine all aspects of FBI operations is a positive step toward revamping the current system.
I would encourage the commission to research the pros and cons of a separate pay system for federal law enforcement. The Office of Personnel Management researched this matter in 1993 at the direction of Congress and was the subject of a report, entitled “Report to Congress - A Plan to Establish a New Pay and Job Evaluation system for Federal Law Enforcement Officers.” The management survey, mentioned previously, found pay compression at the top was a disincentive to CPD participation. In addition, the survey showed that agents believe that anyone who volunteers to be a manager will become one, because they do not see a valid performance appraisal system that measures management attributes. An overhaul of the pay system would address pay compression and performance appraisal issues that are a great concern to the FBI, FBIAA, and other federal law enforcement agencies.
FBI Oversight
Due to recent FBI management failures there has been a call for increased oversight over the FBI’s own internal watch dog functions. The oversight options are the following:
1. Continue to operate the FBI’s OPR Division in its present form with the addition of an oversight function by the Senate Judiciary Committee or a similar body;
2. Expand the oversight of the Office of Inspector General, Department of Justice (OIG/DOJ) to assume the functions of the FBI’s OPR; and
3. Create an OIG in the FBI.
On June 20, 2001, Senate Bill 1065 was introduced calling for the creation of an Inspector General (IG) for the FBI. Last week, Attorney General John Ashcroft expanded the OIG/DOJ authority to investigate all internal matters for both the FBI and the Drug Enforcement Agency. As a practical matter, because of the Attorney General’s action only the last two options remain viable.
In considering these two approaches, I favor the FBI IG concept with a very important caveat: the FBI IG’s investigative staff should be comprised of FBI personnel. Based on my extensive FBI internal affairs experience, I strongly believe that only FBI agents can most effectively investigate their own. In the FBI’s OPR history, the office has never failed to conduct aggressive, hard-hitting investigations of misconduct, regardless of the subject’s position. For example, other agents and I conducted a thorough investigation of former Director Sessions, which resulted in his removal from office. The FBI’s OPR has proven its independence, and I am confident the office would be loyal to the mission of the IG. Additionally, using FBI personnel, who are already in place, is a more cost effective approach. This is especially significant when compared to increasing the 42 million dollar budget of the OIG/DOJ office for additional investigators, training, and staff to handle the increased work load.
The FBI IG approach also preserves an increased element of independence for the FBI over the OIG/DOJ concept, while still establishing appropriate oversight by Congress. Increased control by the OIG/DOJ could erode that independence in the future. I want to emphasize that it is absolutely necessary to protect the Bureau’s investigative independence so that its ability to investigate wrongdoing within the Federal Government is not impaired. An apolitical FBI is a must. Some of the worst sins committed by senior FBI management were those acts that created the impression that the FBI was politicized, such as the Filegate matter.
The problems with expanded control by the OIG/DOJ are considerable. If the FBI is no longer responsible for investigating internal wrongdoing, the FBI’s ability to maintain strong command over its operations and employees is weakened. The organization itself is undermined. The FBI, every law enforcement agency, should be forced to conduct its own internal affairs investigations in an honest and straightforward manner. Additionally, the OIG/DOJ personnel would always be considered outsiders who would never gain the FBI employees’ confidence and cooperation, which are necessary for successful internal affairs investigations. Non-FBI investigators would be hampered in their investigative efforts by not knowing the culture, mores, relationships, and subtle nuances of the FBI environment.
I am hopeful Attorney General Ashcroft will reconsider giving OIG/DOJ the authority to handle the FBI’s internal affairs and support an FBI IG.
I would be pleased to answer any questions.