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Profile: Lowell Jensen
Lowell Jensen was a participant or observer in the following events:
A PROMIS oversight committee is formed at the Justice Department to supervise the implementation of the PROMIS software at US attorneys’ offices. The committee’s members are initially Associate Attorney General Rudolph Giuliani, Associate Deputy Attorney General Stanley E. Morris, Director of the Executive Office for US Attorneys William P. Tyson, and the Justice management division’s Assistant Attorney General for Administration Kevin D. Rooney. The associate attorney general is the chairman of the committee. The date on which the committee is established is unclear, but it will be mentioned in a memo dated August 13, 1981, so it must be at this date at the latest. Lowell Jensen will also be significantly involved in the committee, first as the associate attorney general for the criminal division until early 1983, and then as associate attorney general, meaning he also chairs the committee. The main official who reports to the committee is PROMIS project manager C. Madison “Brick” Brewer, although he will not be hired by the department until the start of the next year (see April 1982). [US Congress, 9/10/1992]
C. Madison “Brick” Brewer gets the job of supervising a contract with Inslaw for the installation of the PROMIS database and search application (see March 1982). [US Congress, 9/10/1992; Wired News, 3/1993] According to a report by the House Judiciary Committee, Brewer gets the job from William P. Tyson of the Justice Department’s Executive Office for US Attorneys (EOUSA). [US Congress, 9/10/1992] However, according to Wired magazine, Brewer is appointed by EOUSA Director Laurence McWhorter, who had told a previous candidate for the position that he was “out to get Inslaw” (see Spring 1981). [Wired News, 3/1993] Brewer had originally been hired by the EOUSA in January. [US Congress, 9/10/1992] He once worked for Inslaw, but was allowed to resign when its founder William Hamilton found his performance inadequate (see 1976). [Wired News, 3/1993] Brewer will soon demonstrate his hostility to Inslaw, and the company will ask that he be replaced (see April 14, 1982, April 19, 1982, and Mid-April 1982).
Importance of Job - As the project manager, Brewer is involved in all major contract and technical decisions, including forming the department’s position on Inslaw’s claim that it should be paid for privately-funded enhancements it makes to PROMIS. Brewer also reports on progress on the contract to the department’s PROMIS Oversight Committee (see August 13, 1981 or Before).
Comment by Assistant Attorney General - Assistant Attorney General Lowell Jensen will later comment: “I would think that the better path of wisdom is not to do that [i.e. hire an allegedly fired employee to direct the contract of his former employer] if that’s possible to do. I think that it’s better to have these kinds of issues undertaken by people who don’t have questions raised about them one way or the other whether they are biased in favor of or against the people they deal with.” However, this thinking apparently does not impact the department’s decision to hire Brewer.
House Judiciary Committee Investigation - In the light of these circumstances, the House Judiciary Committee will call the appointment a “curious choice,” partly because Brewer tells it: “I was not a computer person. We talked about my role viewed as being liaison, the person who would make things happen, a coordinator. It was not contemplated that I would, by osmosis or otherwise, learn computer science.” After interviewing Justice Department staff, the committee will find that it is “unable to determine how Mr. Brewer came to be considered for the position.” The committee will also point out: “The potential conflict of interest was an unsatisfactory situation irrespective of his admittedly negative feelings about his forced resignation from the company. Had Mr. Brewer taken actions which could have been construed to unduly favor Inslaw throughout the life of the contract, similar questions of potential conflict could just as easily have arisen either from within the department or from outside competitors of the company.”
Findings of Government Accountability Office and Permanent Subcommittee on Investigations - The Government Accountability Office and Congress’s Permanent Subcommittee on Investigations (PSI) will find that Brewer’s appointment as project manager creates an appearance of a conflict of interest that should have been avoided by the department. The PSI report will say, “The staff finds that the department exercised poor judgment in ignoring the potential for a conflict of interest in its hiring of the PROMIS project director [Brewer], and then, after receiving allegations of bias on his part, in failing to follow standard procedures to investigate them in a timely manner.”
Courts' Opinions - During the legal proceedings that stem from a dispute between Inslaw and the department, two courts will comment on the issue. George Bason, of the Bankruptcy Court for the District of Columbia, will say, “On the basis of the evidence taken as a whole, this court is convinced beyond any doubt that Brewer was consumed by hatred for and an intense desire for revenge against Mr. Hamilton and Inslaw, and acted throughout this matter in a thoroughly biased and unfairly prejudicial manner toward Inslaw.” William Bryant, of the District Court for the District of Columbia, will add, “The nature and circumstances of his separation from that employment are somewhat in dispute, but it is clear that Brewer was not happy in his job when he left it after being urged to do so by Hamilton.”
Brewer's Motivation - Inslaw attorney Harvey Sherzer will comment in court on one of the motivations apparently driving Brewer: “[H]e seemed to think there was something wrong with a contractor benefiting from a government contract.… The gist of what he seemed to be saying was that by performing this contract Inslaw and Mr. Hamilton, specifically, was making an effort to expand the company. And there seemed to be a negative inference toward Inslaw’s ability to use the base created by this contract to expand.” [US Congress, 9/10/1992]
Office of Professional Responsibility Conclusion - On the contrary, the Justice Department’s Office of Professional Responsibility will examine the matter and rule there is no conflict of interest. Brewer will later tell a federal court that everything he does regarding Inslaw is approved by Jensen. Jensen had previously supervised a product known as DALITE, which lost a major contract to Inslaw in the 1970s. [Wired News, 3/1993]
Entity Tags: Lowell Jensen, William Bryant, Office of Professional Responsibility, Laurence McWhorter, Permanent Subcommittee on Investigations, US District Court for the District of Columbia, House Judiciary Committee, Harvey Sherzer, Bankruptcy Court for the District of Columbia, C. Madison “Brick” Brewer, Inslaw, Inc., Executive Office for US Attorneys (DOJ), George Bason, Government Accountability Office, Frank Mallgrave, William P. Tyson
Timeline Tags: Inslaw and PROMIS
Deputy Attorney General Lowell Jensen and other members of the Justice Department’s PROMIS Oversight Committee approve the termination of part of a contract with Inslaw, Inc., for the installation of PROMIS software (see March 1982). The termination, pushed through despite a report that there was progress with Inslaw’s attorney on the resolution of contract problems, only concerns the part of the contract for the installation of PROMIS on word processing hardware in 74 small US attorneys’ offices. Inslaw will still be contracted to install the application in 20 other US attorneys’ offices. The termination is to be for default, as Inslaw has allegedly failed to perform this portion of the contract, although a different reason will later be given (see February 1984). [US Congress, 9/10/1992]
Justice Department procurement counsel William Snider issues a legal opinion stating that the department lacks legal justification to terminate part of a contract on the installation of PROMIS software for default. The department’s PROMIS Oversight Committee had decided on this course of action in December (see December 29, 1983), as it said that Inslaw, the company installing PROMIS, was not performing the contract properly. However, the committee decides to terminate the portion of the contract anyway, but for convenience—meaning Inslaw may receive some compensation—not default. PROMIS project manager C. Madison Brewer then notifies INSLAW owner William Hamilton that Deputy Attorney General Lowell Jensen has decided on partial termination. [US Congress, 9/10/1992]
Inslaw representatives Elliot Richardson and Donald Santarelli, a former administrator of the Law Enforcement Assistance Administration, meet with acting Deputy Attorney General Lowell Jensen to discuss a resolution of the Inslaw affair concerning the Justice Department’s alleged misappropriation of enhanced PROMIS software. Richardson and Santarelli ask for rapid talks to resolve disputes that have caused the department to withhold money from Inslaw and the company to go bankrupt, that the department consider a new proposal for work by Inslaw, and that Jensen appoint somebody to investigate Inslaw’s claims that some department officials, in particular C. Madison Brewer (see 1976 and April 1982), are biased against it. The business proposal is that Inslaw implement PROMIS in smaller US attorneys’ offices. This was originally covered by a contract between Inslaw and the department (see March 1982), but this part of the contract was terminated in 1984 (see December 29, 1983 and February 1984). [US Congress, 9/10/1992] The department rejects the proposal for additional work, but it is unclear whether the allegations against Brewer and others are investigated (see After March 13, 1985).
The Justice Department starts an internal review of the Inslaw affair, but the content of the review will be disputed. The review follows a meeting at which Inslaw representatives made three requests (see March 13, 1985): that the department negotiate on a resolution of the disputes between it and Inslaw; that it consider a new proposal made by Inslaw for additional work; and that it investigate allegations of misconduct against departmental personnel. The review is ordered by Deputy Attorney General Lowell Jensen and performed by Deputy Associate Attorney General Jay Stephens.
Jensen's Version - According to Jensen, the review is to look at the bias allegations. He will say he recalls discussing the results of Stephens’ review, adding that, based on Stephens’ assessment of the allegations, no review by the Office of Professional Responsibility is merited.
Stephens' Version - However, Stephens will tell the House Judiciary Committee under oath that he does not undertake a review of the misconduct allegations, but only looks at Inslaw’s business proposal. The committee will point out that this is in “direct contradiction” of Jensen’s version. While examining the proposal, Stephens receives several telephone calls from Inslaw attorneys Charles Work and Elliot Richardson. He feels they are lobbying the department very hard because they believe Inslaw has what the committee will call “some special relationship” with the department. According to a report by the committee, Work and Richardson attempt to convey that, “based on a longstanding relationship between the department and Inslaw, the department should look favorably on Inslaw’s new business proposal.”
Outcome of Review - However, Stephens reports to Jensen that the need for Inslaw’s business proposal is questionable and the department thinks the work can be done in-house. Jensen then writes to Richardson, saying that the department does not have an immediate need for the work, and will not act on the proposal.
Comment by House Committee - The committee will comment, “Because the department did not adequately investigate Inslaw’s allegations, the company was forced into expensive, time-consuming litigation as the only means by which the department’s misappropriation of Inslaw’s enhanced PROMIS could be exposed.” [US Congress, 9/10/1992]
The Office of Professional Responsibility (OPR), a Justice Department oversight component, receives a letter from Laurie A. Westly, chief counsel to Senator Paul Simon (D-IL), asking for its view of allegations made by the software company Inslaw against the Justice Department. The letter mentions claims of misconduct by department official Lowell Jensen. Westly also refers to litigation recently initiated by Inslaw (see June 9, 1986), specifically the claim that Jensen contributed to the bankruptcy of Inslaw and had a negative bias toward its software. She also asks whether Jensen has breached any ethical or legal responsibility as a department employee. [US Congress, 9/10/1992] It is unclear what action the OPR takes in response to this matter. However, it conducts a preliminary investigation into whether Jensen was biased against Inslaw this year, and this may be in response to this letter (see 1986). It will also begin a fuller investigation the next year (see October 14, 1987).
The Office of Professional Responsibility (OPR), an oversight unit at the Justice Department, conducts an initial review of bias allegations against departmental officials in the Inslaw affair. The exact timing of the review is uncertain, although it may come after a query about the case from Senator Paul Simon in June (see June 16, 1986). The review finds that there is no misconduct by Justice Department manager Lowell Jensen. According to statements made by acting OPR counsel Robert Lyon and assistant counsel David Bobzein to the House Judiciary Committee in 1990, the OPR does not perform a full review at this time because the allegations of bias are not an issue OPR would normally review. Therefore, it plans to rely on the findings of a bankruptcy court hearing the Inslaw case (see June 9, 1986). However, after the bankruptcy court finds in favour of Inslaw (see September 28, 1987), partly because it thinks the bias allegations are well founded, OPR begins a full investigation (see October 14, 1987) and concludes there was no bias (see March 31, 1989). [US Congress, 9/10/1992]
Former Deputy Attorney General Lowell Jensen says that Attorney General Ed Meese was informed about the Justice Department’s dealings with Inslaw. He makes the statement in a sworn deposition to the Office of Professional Responsibility, a Justice Department unit investigating the department’s alleged theft of the enhanced PROMIS case tracking software from Inslaw. Jensen says, “I have had conversations with the attorney general [Meese] about the whole Inslaw matter, as to what had taken place in the PROMIS development and what had taken place with the contract and what decisions had been made by the department with reference to that.” [US Congress, 9/10/1992] However, Meese will tell the House Judiciary Committee he has no recollection of any discussions about case tracking (see July 12, 1990).
Judge George Bason of the Bankruptcy Court for the District of Columbia issues an oral finding that the Justice Department “took, converted, and stole” the enhanced version of Inslaw’s PROMIS software by “trickery, fraud, and deceit.” The ruling is issued at the end of a trial that lasts over two weeks and involves sworn statements from over 40 witnesses and thousands of pages of documentary evidence. Bason finds that a key departmental official, project manager C. Madison Brewer, was biased against Inslaw (see April 1982, April 14, 1982, and April 19, 1982). In addition, Brewer’s boss Lowell Jensen (see December 29, 1983 and February 1984) is said to have “a previously developed negative attitude about PROMIS and Inslaw,” because he had been associated with the development of a rival case management system while he was a district attorney in California, and this affected his judgment throughout his oversight of the contract. Further, the department violated bankruptcy protection legislation that applied to Inslaw by using and exercising control over Inslaw’s property—the enhanced PROMIS software—without negotiating a license fee. This oral finding is confirmed in a written opinion issued on January 25, 1988. In the written finding, Bason adds, “[T]his court finds and concludes that the department never intended to meet its commitment and that once the department had received enhanced PROMIS pursuant to Modification 12 (see April 11, 1983), the department thereafter refused to bargain in good faith with Inslaw and instead engaged in an outrageous, deceitful, fraudulent game of ‘cat and mouse,’ demonstrating contempt for both the law and any principle of fair dealing.” [US Congress, 9/10/1992]
The software company Inslaw submits allegations about the Justice Department’s conduct in the dispute over the enhanced PROMIS application to the Public Integrity Section (PIS), a departmental oversight component. The allegations follow on from the findings of a bankruptcy court favourable to Inslaw (see September 28, 1987 and January 25, 1988). In the complaint, Inslaw charges the department with:
Procurement fraud. Inslaw claims that Attorney General Edwin Meese and former Deputy Attorney General Lowell Jensen schemed to ensure that enhancements made to the PROMIS software by Inslaw would be obtained for free by the department, which would then make them available to a businessman named Earl Brian;
Violation of automatic stay debtor protection provisions invoked by the bankruptcy court. Inslaw says that by using the enhancements it made to the software after the bankruptcy case was filed, the department violated federal bankruptcy law. The bankruptcy court found that the department committed such violation, an act that could constitute an obstruction of the bankruptcy proceedings; and
Attempts to change Inslaw’s Chapter 11 bankruptcy, for the company’s reorganization, into a Chapter 7 bankruptcy, for the company’s liquidation. Inslaw says that the department unsuccessfully attempted to have an official named Harry Jones detailed from the US Trustee’s office in New York to Washington to take over the Inslaw bankruptcy to get Inslaw liquidated. Inslaw also says unsuccessful pressure was exerted by departmental official Thomas Stanton on US Trustee William White to convert the bankruptcy case into a Chapter 7 liquidation.
The PIS says it will examine some of the allegations, but in the end it will not open a formal preliminary investigation (see February 29, 1988). [US Congress, 9/10/1992]
The Public Integrity Section (PIS), a Justice Department oversight component, decides not to open a preliminary investigation of the Inslaw affair over the department’s alleged misappropriation of PROMIS software (see February 1988). The decision is communicated in a memo drafted by William F. Weld, the assistant attorney general for the department’s criminal division, of which the PIS is a part. The PIS finds that at least some of the people Inslaw complains about, including Attorney General Edwin Meese, former Deputy Attorney General Lowell Jensen, and Deputy Attorney General Arnold Burns, are appropriate targets of an investigation and that Inslaw is generally a credible source for allegations. However, according to Weld, the information Inslaw provides is not specific enough to constitute grounds to begin a preliminary investigation of the need for an independent counsel. This is because the PIS regards the facts Inslaw presented as unsupported speculation that the officials were involved in a scheme to get the enhanced PROMIS software. Therefore, the review should be closed “due to lack of evidence of criminality.” The House Judiciary Committee will be critical of the PIS’s finding, calling its investigation “shallow and incomplete,” and saying the department appeared to be “more interested in constructing legal defenses for its managerial actions rather than investigating claims of wrongdoing which, if proved, could undermine or weaken its litigating posture.” [US Congress, 9/10/1992]
The Office of Professional Responsibility (OPR), an oversight unit at the Justice Department, issues a report on the Inslaw affair over the department’s alleged theft of enhanced PROMIS software. The report finds that allegations of bias made by Inslaw and seconded by a bankruptcy court (see September 28, 1987) against departmental officials are unsupported. Inslaw had questioned the performance of former Attorney General Edwin Meese, former Deputy Attorney General Lowell Jensen, former Deputy Attorney General Arnold Burns, and others. The OPR says that the court’s findings on misconduct by department officials are “clearly erroneous.” In addition, the report says: “There is no credible evidence that the department took or stole Inslaw’s enhanced PROMIS by trickery, fraud, and deceit. Additionally, we have found no credible evidence that there existed in the department a plot to move to convert Inslaw’s Chapter 11 bankruptcy to one under Chapter 7 of the bankruptcy code.” The House Judiciary Committee will be extremely critical of this investigation, commenting, “During its investigation OPR chose to ignore the court’s findings and conclusions that there was bias against Inslaw at the department.” In addition, the committee will say that the OPR looked at the bias allegations in isolation and “incredibly” did not examine the merits of the contract dispute, meaning its conclusions on the taking of PROMIS and the type of bankruptcy were “gratuitous,” especially as Burns had told it the department agreed Inslaw owned the enhancements it made to PROMIS (see August 11, 1982). The committee will also point out that the OPR’s deputy counsel, Richard M. Rogers, said he was recused from the investigation because of his association with Burns, although he was present when Meese provided a sworn statement. In this context, the committee will highlight problems found by the Government Accountability Office with OPR around this time (see February 7, 1992). [US Congress, 9/10/1992]
Former Attorney General Edwin Meese is interviewed by the House Judiciary Committee about the Inslaw affair. He says that he cannot recall any discussions with former Justice Department official Lowell Jensen about office automation or case tracking at the department. He adds that if there were such a discussion, it would have been casual conversation. [US Congress, 9/10/1992] However, Jensen previously said he discussed the “whole Inslaw matter” with Meese (see June 19, 1987).
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