BETHESDA, Md. - With no public discussion or input from Congress, the Nuclear Regulatory Commission has quietly obtained armed federal police status for a small office of investigators whose big cases typically involve people sleeping on the job, falsifying documents or misplacing equipment."I didn't realize you needed guns and handcuffs to protect yourself against paper cuts," said Dave Lochbaum of the Union of Concerned Scientists, a longtime critic of the NRC's Office of Investigations.
The police status was granted after the office claimed it needed powers it never or rarely uses, and raised the specter of clandestine and dangerous missions in letters and memos to other federal agencies. While police powers may be of questionable value in performing NRC investigations, they support a job classification that pays non-managerial agents an average of $130,000 a year and as much as $145,000.
The Office of Investigations was formed in 1982 to investigate violations by licensees and contractors of the Nuclear Regulatory Commission, the five-member panel appointed by the president to oversee non-military applications of nuclear technology. When agents suspect criminal violations, they're supposed to notify the Justice Department, which then decides if a criminal investigation will be opened.
No 'statutory authority'
That's because the NRC has no "statutory authority" to investigate crimes, a power that Congress has specifically granted to other agencies. The agency has recognized it does not have that power and rejected advice in a 2005 "peer review" that it consider seeking it from Congress.
But in 2005 and again last year, all 30 agents in the NRC's Office of Investigations were deputized as U.S. marshals. Known as "blanket deputation" and valid until Nov. 30, 2009, the act gives the NRC agents the power to make arrests, serve search warrants, protect confidential informants, conduct electronic eavesdropping and carry firearms.
Office of Investigations Director Guy Caputo said his agents need police powers to do their NRC jobs and that their classification as criminal investigators has undergone "a long litany of scrutiny."
That scrutiny has largely been applied by James Foster, a retired NRC employee who has argued for years that OI agents are improperly classified as criminal investigators. He maintains that "99.99 percent of Nuclear Regulatory Commission Office of Investigations special agents' duties consist of non-custodial interviews with cooperative witnesses and document reviews."
Because the OI was not granted law enforcement authority by Congress, Foster maintains it was improper to place OI agents in the criminal investigator job category to begin with. That classification, obtained shortly after the office was formed, carries a 25 percent salary premium for being available to work long hours and full retirement benefits after 20 years of service for agents 50 or older.
Instead, he says, OI agents should be classified as general investigators whose work sometimes touches on criminal cases but who are ineligible for the extra salary and early retirement. His own "very conservative analysis" indicates that the government has needlessly spent more than $15 million on extra salary and benefits over the years.
Foster said the NRC got and preserved the criminal investigator status by providing "vague, erroneous or misleading and false information" to other agencies. He points to NRC statements that all of OI's cases are criminal investigations and that agents have "frequent and direct contact with suspected or convicted criminals." He believes deputy status could help pre-empt future questions about whether OI agents should be paid as criminal investigators.
But Caputo, the OI director, said the agents' status was supported by a 1999 review by the NRC's inspector general. Performed in response to Foster's allegations, the probe concluded there was "no indication of wrongdoing by NRC staff concerning the classification of OI investigators."
'Criminal aspect' to every case
And Caputo's chief deputy, James Fitzgerald, said that because any of the office's cases could eventually result in criminal charges if picked up by the Justice Department, "Every investigation we conduct has a civil and criminal aspect to it."
Caputo said he sought deputy status for his agents because it was recommended in a "peer review" done by another law enforcement agency. He would not name the agency nor provide the report.
The recommendation that the NRC seek blanket deputation for its agents, and Caputo's intent to do so, were mentioned on the sixth page of a nine-page document sent to the five-member NRC on June 1, 2005. The NRC provided a copy to MSNBC.com, but redacted most of it. The only other recommendation from the peer review that was not blacked out was that the NRC consider congressional action to "help establish the law enforcement identity of the NRC OI." NRC officials rejected that.
Because NRC commissioners did not question the recommendation, the agency's staff considered it approved. "In this case, there being no response, that's an affirmative," said NRC Public Affairs Director Eliot Brenner. Nor was there any public discussion.
On Oct. 14, 2005, the U.S. Marshals Service informed Caputo that his request for blanket deputation had been granted for a year. In November 2006, a three-year renewal was granted.
Before the blanket deputation, the Marshals Service had been fielding an increasing number of requests from Caputo for deputation of individual OI agents since 2001. Prior to that, OI had requested that only a single agent be deputized in the thousands of cases it had handled since 1982.
NRC spokesman Dave McIntyre said the change was due to "operational experience ... the general climate following 9/11 ... and increased requests from the Justice Department for NRC OI assistance in investigating cases we referred for potential criminal prosecution."
In letters and forms submitted to the marshals in pursuit of deputy status, Caputo listed a variety of tasks: "to make arrests or execute search warrants," "render witness protection," and "conduct electronic and/or normal surveillance related activities" and participate in "various joint terrorism task forces."
In an interview with MSNBC.com, Caputo acknowledged that OI had not made any arrests since its formation. He said his agents served two search warrants in 2006, when the office handled 266 cases. He declined to say whether OI agents had conducted electronic surveillance or provided witness protection. Nor would he discuss their work on "joint terrorism task forces."
'Nickel and dime questions'
"You have a lot of ... nickel and dime questions that we're not going to touch," said Brenner, who joined Caputo, Fitzgerald and two other NRC staff members in a conference call with MSNBC.com.
Caputo also would not say what kind of weapons his agents carry, although "they've got the latitude to carry them whenever they need to." He said agents are generally hired with many years of experience in other federal law enforcement agencies and they "use very, very good common sense and judgment in terms of when they need to carry their weapons."
In his 2005 bid for blanket deputation, Caputo said his agents "routinely interview witnesses and suspects in potentially dangerous circumstances ... late night/early morning, in remote locations and in hostile environments."
That characterization was dismissed as "just ridiculous" by Billie Garde, a lawyer who has worked extensively on cases involving the NRC.
"Nuclear power plants are in remote locations but I have been interviewing witnesses there for my entire career and I'm a grandmother," she said. "I don't need a gun."
Garde said she can't think of any instance in which OI agents would need to be deputized. "OI doesn't have anybody in the field unless they're doing an investigation. The fact is the OI guys are sitting at desks in regional offices. They're investigating complaints from whistleblowers about paperwork fraud."
'At most ... white collar crimes'
Lochbaum of the Union of Concerned Scientists, an engineer who worked at nuclear plants for 17 years before joining the watchdog group, has such a low opinion of OI that he sought unsuccessfully in 1998 to get it disbanded. He also can't think of any reasons the office would need deputy status. "At most, they're looking at white collar crimes," he said.
He finds it particularly galling that OI has used witness protection as a reason to seek deputy status. When he tried to get protection for a Tennessee whistleblower who was receiving threats, Lochbaum said, the NRC "said if they kill him or blow him up, something like that, then we can investigate that and see if that violated any of our regulations. But it's not our job to protect these guys."
The tasks listed in Caputo's letters to the Marshals Service also seem at odds with many of the "Significant Cases" listed in the office's recent annual reports: a guard failing to report his arrest for habitual traffic offenses; the operator of a research reactor modifying equipment without authorization; a doctor lying about a licensing matter; a power plant operator sleeping on the job.
In recent years, the office did participate in criminal investigations of a major problem at a nuclear power plant and massive fraud at a valve manufacturing company, both in Ohio. But the defendants, who were accused of lying to the government or conspiracy to commit fraud, were engineers and executives, not felons with violent backgrounds.
Overall, criminal prosecutions stemming from OI investigations are exceedingly rare. While the office notes that it refers dozens of cases every year to the Justice Department for "prosecutive determination," from 2000 to 2005 criminal probes were launched in just seven of 244 referrals.
Caputo acknowledged that his office does not follow a 1988 agreement with the Justice Department, particularly a provision that says NRC agents are only to "assist" law enforcement agencies in criminal investigations when asked to do so in a written request signed by "a United States attorney or deputy assistant attorney general, as appropriate."
Old document, but still cited
Caputo dismissed the memorandum of understanding as something that has been superseded by "customs and usage," yet the agreement is often cited in current NRC documents.
The Marshals Service would not disclose how often blanket deputation is approved for federal offices that don't have law enforcement authority nor name any other offices that have obtained it. After reviewing a list of questions about the deputations for two weeks, the service referred many of them back to the NRC and to the Deputy Attorney General's Office at the Justice Department. A Justice Department spokesman promised on two occasions to seek answers but did not follow up.
Jeffrey Merrifield, the only one of the five NRC commissioners to respond to requests for comment on the deputation, said commissioners knew that OI was seeking blanket deputation and agreed it was necessary "if for no other reason than to defend themselves." But Merrifield was under the mistaken impression that OI agents had some law enforcement authority without being deputized.
His comments echoed Caputo, who said, "You just never know what you're going to run up against ... the kinds of people you're going to be talking to."
Neither offered specific examples of dangerous situations that NRC agents have encountered.
Asked why the NRC didn't seek input from Congress, Merrifield, the only attorney currently serving on the panel, replied, "We felt this was in the ministerial authority of the commission."
Foster, a onetime gun-carrying federal air marshal, admits he has an ax to grind because he was forced out of his job as unqualified to be a criminal investigator when OI was created to replace the office where he worked. But he notes that he went on to work in other NRC jobs for 20 years and retired proud of his career with the agency, which he still believes accomplishes its overall mission well.
Now, he says, he continues to raise the issue "because it's the right thing to do. I firmly believe in it. I believe the agency's misspending money and this is causing the wrong focus for NRC investigations."
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