When President George W. Bush nominated Robert S. Mueller III, currently US attorney for the Northern District of California, to be the next director of the FBI, the selection was widely praised. Former governor Bill Weld, who hired Mueller to work in the Boston US attorney’s office in 1982, told the New York Times, “There is no warm and fuzzy Bob Mueller at the office. He has only one gear, and that’s straight ahead.” The Boston Globe reported that Mueller’s colleagues “hailed [him] as ‘an excellent choice’ to take over the beleaguered FBI.” Indeed, it seems that anyone who has worked with Mueller confirms his well-deserved reputation as a strait-laced, hard-working, highly disciplined, by-the-book kind of guy.

But a closer look at Mueller’s record shows that the former Marine may not have what it takes to buck the institutional arrogance of the FBI, which has resulted in one fiasco after another (think Robert Hanssen, Ruby Ridge, Waco, and Wen Ho Lee — not to mention Bulger and Flemmi).

Take Mueller’s work prosecuting “a German spy who paid $15,800 for classified information from a Navy civilian employee who worked for the FBI as a double agent,” which the Globe cited as an example of his achievements. As defense counsel (along with my law-firm partners) for Alfred Zehe, the “spy” in question, I can assure you that Mueller’s performance in this case demonstrates anything but the professional distance required to turn the macho, self-promoting bureau into a legitimate law-enforcement agency that takes public liberty and safety seriously.

Zehe was an East German physics professor at Dresden University who periodically taught in Mexico. In exchange for the right to travel, he occasionally consulted for the East German government on national-security matters. His trouble with the FBI began in 1982, when a US naval intelligence operative was ordered by the FBI to go “trolling” for spies along Embassy Row in Washington, DC. The bait was a sheaf of outdated documents related to American submarine sonar-detection technology.

After the feds failed to interest a couple of Eastern European embassies in the useless 20-year-old documents, the East Germans took the bait. They purchased the documents and delivered them to Zehe in Mexico so that he could help the government understand them. The feds claimed, too, that Zehe then took the documents with him to East Berlin to return to his government. Zehe had simply responded to his government’s request to analyze and explain the documents (and, the US government claimed, to “carry” them from Mexico to Berlin) — as many American academic scientists have done over the years (though many American academics, not under pressure to cooperate in exchange for the right to travel, might have kept more distance from the spooks themselves).

The following year, Zehe came to Boston to attend a scientific conference of the American Vacuum Society (vacuum physics, that is, not housecleaning equipment), where he was arrested by the FBI and charged with espionage. The US attorney’s office and the Department of Justice launched a full-court press under Mueller’s able leadership. Zehe was touted as an important spy dangerous to American national security — as the Globe notes, the case was “highly publicized.” Incredibly, Mueller and his fellow prosecutors claimed that because we did not have security clearance, my law partners and I could not see the still-classified documents that our client was charged with “conspiring” to steal. I asked the feds how the FBI had determined that it was okay for the East German government to look at the obsolete and essentially useless documents, supplied to them by the FBI itself, while I was not deemed sufficiently trustworthy. I never got much of an answer, except when an agent of the FBI’s notorious Internal Security Division later confronted me somberly with these words: “Mr. Silverglate, there are only two sides to this struggle between the Soviet Bloc and the West, and we all have to choose.”

It’s important to remember that the documents in question did not contain national-security secrets — otherwise the FBI never would have used them as bait. Yet the FBI pursued the case as if the documents could have compromised US security if they had fallen into the wrong hands. The entire prosecution was a shameless charade. It would have been far more honest if Mueller and the FBI had charged Zehe with attempted espionage rather than pretending that he actually had stolen national-security secrets.

The Zehe case contained many of the elements that have come to trouble observers of the FBI over the years: the disturbing appeal to “national security” even in cases that obviously have no bearing on any legitimate national interests. The failure to recognize the damage done to civil liberties and other important national interests by mindless pursuit of foreign nationals for doing things routinely done by American citizens for their government. The perpetuation of the “national-security state” by over-classifying documents that there is no reason to keep secret, other than devotion to the cult of secrecy for its own sake. The squandering of precious resources chasing non-criminals. The use of entrapment to ensnare essentially harmless citizens and foreign nationals. (The entrapment of foreign scientists and academics also poses a serious risk of tit-for-tat retaliation by unfriendly foreign governments when Americans travel abroad.)

Issue Date: July 12 - 19, 2001