By Spencer S. Hsu
Washington Post Staff Writer
Wednesday, July 28, 2010; 6:26 PM
The Justice Department's inspector general is investigating whether hundreds of FBI agents violated rules in taking a 2009 exam meant to ensure that they could follow aggressive investigative guidelines without intruding on Americans' privacy rights, FBI Director Robert S. Mueller III acknowledged Wednesday during testimony before Congress.
Inspector General Glenn A. Fine is looking into whether agents across the country improperly took the training test in groups, shared answers or completed it in unusually short periods. Mueller told the Senate Judiciary Committee he had a "general idea" how many agents are under scrutiny, but not an exact number.
"I'm not sure the IG knows how many either," Mueller said. "He has pointed out instances orally to me where there may be persons and a particular office where it was widespread. And it may be attributable to a lack of understanding and confusion about the procedures."
Investigations into alleged cheating on the test first surfaced publicly in the bureau's Washington Field Office, where it was linked to the retirement of one of the FBI's most senior managers. Joseph Persichini Jr. stepped down as head of the WFO in December after he came under scrutiny for allegedly completing the open-book exam in less than 20 minutes; some other test-takers required more than two hours.
The wider inspector general's investigation was first reported Wednesday by the Associated Press.
In a May letter to Fine, an organization representing FBI agents acknowledged that rules relating to the exam had been violated but blamed senior leaders for a "systemic failure . . . including uneven and unclear communication" to field offices about how to administer the test. Agents were unaware that they were required to take the exam alone, without discussion, for a formal grade, wrote Konrad Motyka, president of the FBI Agents Association.
The possibility that the tests were administered improperly appeared likely to revive questions about the FBI's ability to apply guidelines, enacted in 2008, that allow agents to gather intelligence and open cases on U.S. citizens, even without evidence that a target has ties to a terrorist organization.
Committee chairman Sen. Patrick J. Leahy (D-Vt.) said he was "amazed" at the alleged cheating and noted that, when Congress signed off on the more-aggressive guidelines, the FBI assured lawmakers the exams "would ensure that agents are fully trained in knowing the scope and the limitations of the FBI's authority."
Mueller sought to reassure the lawmakers, saying the FBI could legally conduct surveillance and counter-terrorism and espionage investigations within the United States. He testified that the FBI "does not target persons or groups based on race, ethnicity or religion" and that all FBI agents underwent more than 16 hours of training on the new guidelines.
"I am confident that the . . . testing and the continuous training we have has put our workplace and our people in a position to fully know and understand the opportunities, but also the limitations of what we can do," Mueller said, adding that the number of errors in agents' paperwork fell 80 percent after the training test.
The Domestic Investigations and Operations Guidelines, developed during the Bush administration and adopted by the Obama administration, allow FBI agents to open preliminary investigations based on allegations alone rather than the more rigorous requirement of a "reasonable suspicion." Agents are also allowed to consider race when opening investigations.
During the hearing, Mueller himself misstated the guidelines. Under questioning by Sen. Richard J. Durbin (D-Ill.), the FBI director said reasonable suspicion was required before the FBI could begin surveillance of a person or location. The guidelines permit surveillance for any authorized purpose, and the FBI provided the senator with a correction after the hearing.
Michael German, policy counsel for the American Civil Liberties Union, said civil liberties groups were concerned at the breadth of discretion given to FBI agents even before the testing issue arose.
"If the training and oversight themselves are inefficient or are ineffective, then obviously that's just one more example of how internal oversight is not enough," said German, who was an FBI agent for 16 years. "There has to be external oversight of the FBI."
The department's inspector general has accused the FBI of abusing its authority to gather intelligence without warrants in terrorism cases. The inspector general has also alleged that agents improperly collected phone records from more than 3,500 numbers between 2003 and 2006, and that in some instances they cited nonexistent emergencies or used misleading language in applications to a court that authorizes national security wiretaps, violating federal privacy law and policies.
A spokesman for Fine declined to comment.
In the May letter, Motyka urged Fine to focus on management failures, rather than agents, "so that FBI employees who, in good faith, tried to comply with the expectation that they learn the DIOG are not punished because of a failure to effectively communicate the rules."
Motyka alleged that most testing by the FBI's so-called Virtual Academy encourages agents to discuss issues raised by exams as part of the training process. The terrorism guidelines examination included "a poorly communicated provision requiring examinees to work alone and not collaborate with others," he wrote.
As a result, he wrote, the FBI's Columbia, S.C., division claimed it had received permission to print the test and use it as a study guide; the FBI's Corporate Policy Office said it did not authorize that action.
"There are similar stories for practically every office, demonstrating the pervasive confusion and miscommunication that existed," Motyka wrote, saying that the agency left it to FBI lawyers serving as chief and assistant division counsels to interpret the requirements.