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Justice Dept. watchdog says agency ruling undermines his job

by Lisa Rein     •     Washington Post

Michael Horowitz, inspector general with the Department of Justice, in his office in Washington in August 2014. ( Bill O’Leary/The Washington Post, file)

The Obama administration has ruled that inspectors general have to get permission from the agency they’re monitoring for access to wiretaps, grand jury and credit information, a decision that immediately was denounced by watchdogs and lawmakers.

The Justice Department’s inspector general said the 58-page ruling released Thursday by the agency’s Office of Legal Counsel will undermine his ability to do his job rooting out fraud and corruption.

“Without such access, our office’s ability to conduct its work will be significantly impaired, and it will be more difficult for us to detect and deter waste, fraud, and abuse, and to protect taxpayer dollars,” Inspector General Michael E. Horowitz said in a statement. Horowitz is chairman of the Council of the Inspectors General on Integrity and Efficiency, a watchdog over the watchdogs that also sets policy.

“Congress meant what it said when it authorized Inspectors General to independently access ‘all’ documents necessary to conduct effective oversight,” he said.

His disapproval was followed by a bipartisan condemnation from four congressional leaders whose committees have oversight over DOJ, citing numerous inquiries the agency has delayed or blocked by making it harder for investigators’ to get the records they need, particularly intercepted communications.

“The department’s refusal to provide records on a timely basis as required by law wastes months in bureaucratic roadblocks and frustrates the independent oversight Congress created inspectors general to provide,” Sens. Charles E. Grassley (R-Iowa) and Ron Johnson (R-Wis.) and Reps. Bob Goodlatte (R-Va.) and John Conyers Jr. (Mich.) said in a joint statement, accusing the legal counsel’s office of undermining the independence of federal watchdogs.

The rare internecine conflict dates to 2010, when the FBI started restricting the DOJ inspector general’s access to documents whose confidentiality is protected by law, including grand jury testimony and wiretaps. The IG’s review of the controversial Fast and Furious case, the failed sting operation that lost track of more than 1,000 government-issued guns, one of which was used to kill a U.S. Border Patrol agent, was delayed.

Other investigations have lagged, Horowitz testified before Congress last February, complaining that the FBI has failed to turn over key records in several whistleblower cases, citing other national security and privacy laws. The lawmakers said Thursday that the delayed cases include pending investigations into wrongdoing at the Drug Enforcement Administration.

The legal counsel, which acts as a kind of supreme court for the executive branch, finally ruled on the dispute on July 20.

DOJ spokeswoman Emily Pierce said in a statement that the opinion allows inspectors general access to sensitive law enforcement information “in connection with his responsibility to see the Department’s conduct of its criminal law enforcement programs and operations and its foreign counterintelligence investigations.”

She said the agency is trying to hand over these records faster than it had. “The Department has long held the position that the Inspector General should have access to all the information it needs to perform its essential oversight function.”

But the policy is likely to dampen the effectiveness of watchdogs across the government, officials said, since many inspectors general seek access to similar records as the Justice Department.

“Imagine if we had a DOJ [inspector general] during Watergate looking at the FBI’s conduct and the Attorney General had this opinion to deny or delay access to this kind of information,” said Brian Miller, the former inspector general at the General Services Administration who cracked open a spending scandal in Las Vegas. “Or the GSA administrator having the power to withhold certain information regarding the Las Vegas conference…The “Mother May I” legal opinion sets a bad precedent and will slow effective oversight.”

A year ago, 47 federal inspectors general wrote a letter to Congress complaining that the agencies they oversee had refused to release some documents they said were critical to their jobs as independent watchdogs.

Congress, when it approved the Justice Department’s budget last year, included a section intended to improve watchdogs’ access to sensitive records. But the legal counsel ruled that wiretap law and grand-jury secrecy rules preclude the release of information for investigations “that are only tangentially related to criminal law enforcement or foreign counterintelligence efforts,” such as “routine financial audits.”

Lisa Rein covers the federal workforce and issues that concern the management of government.