AFEW years ago, the Justice Department’s Office of Inspector General was looking into how the department had handled people detained as material witnesses after the 9/11 attacks. There had been complaints that civil liberties were abused in some detentions. The inspector general made a request for documents from the FBI that included grand jury testimony by those detained — and hit a roadblock. In 2010, the FBI refused to turn over the documents.
The Justice Department inspector general, Michael E. Horowitz, has pointed to this refusal in appealing to Congress to rectify a larger problem: Not only at Justice but in other agencies, inspectors general are coming up against hurdles to their independent investigations created by the very departments they are supposed to keep an eye on. Inspectors general, created by a 1976 law to be independent watchdogs over government, are finding it increasingly difficult to carry out their vital mission.
The original law said that inspectors general must have access to “all records, reports, audits, reviews, documents, papers, recommendations or other material available” for their work. But the “all” in this language has been thrown into doubt by the FBI’s actions and by a subsequent opinion by the department’s Office of Legal Counsel, which suggested that, in certain conditions, the inspector general should not get “all.” According to Mr. Horowitz, every time he was blocked, he turned to the attorney general or deputy attorney general and asked for an override, which they provided. But the result has been significant delays in the investigations, including the probe into the use of the material witness statute and another looking at Operation Fast and Furious, the failed weapons sting operation. Mr. Horowitz has pointed out that such objections to the release of documents for investigations were not raised for many years after the creation of his office, only beginning in 2010.
The inspector general should not have to pester the attorney general for access that is already provided in the law. As Mr. Horowitz argued recently in these pages, such foot-dragging turns statutory language on its head, so that the words “all records” do not mean all. This is “fundamentally inconsistent with the independence that is necessary for effective and credible oversight,” he wrote. In August 2014, 47 inspectors general told Congress that such roadblocks to independent probes had cropped up elsewhere, too, including at the Environmental Protection Agency and the Peace Corps. They said withholding documents “risks leaving the agencies insulated from scrutiny and unacceptably vulnerable to mismanagement and misconduct.”
Legislation pending in both chambers of Congress would clarify this by making clear that all records mean all records — and that inspectors general remain an important mechanism of accountability and oversight. The legislation has bipartisan support and deserves to be passed.
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