The G-men and the mobsters

What's remarkable isn't that James 'Whitey' Bulger was an FBI informant -- it's that we ever found out about it in the first place

by Harvey A. Silverglate

Why are we so surprised that the Boston office of the Federal Bureau of Investigation entered into a devil's pact with long-time organized-crime leaders James "Whitey" Bulger and Stephen "The Rifleman" Flemmi? The FBI has a long and storied history of making corrupt deals and abusing its power. The big story here isn't that the Boston FBI office partnered up with racketeers and serial murderers -- it's that the FBI has managed to spin the scandal to keep it from going national.

The press and the public seem to be buying the thesis put forth by the Department of Justice, which oversees the FBI, that the Boston bureau's scandalous deal with Bulger and Flemmi is attributable to a few rotten apples in an otherwise pristine barrel. Everyone also seems to have bought into the notion that this kind of corruption -- where Irish agents make common cause with Irish gangsters to get Italian mobsters -- is particular to ethnic Boston. I received a telephone call last month from a reporter for a major national newsmagazine who had just noticed the unfolding story as a result of the recent racketeering indictment of former Boston FBI honcho John Connolly Jr. The reporter asked me if I could explain why this drama could happen only in Boston. Does it have something to do with the culture of South Boston, he asked, where neighborhood and school chums continue their relationships even after some go into law enforcement and others go into crime?

I responded that the reporter, like so many others, had become a victim of the FBI's talent for suppressing the release of accurate information about its own activities while romancing (and hence controlling) reporters with occasional leaks about the Bureau's crime-fighting prowess and never-ending crusade against those who would put us all in danger. As a result, when scandal emerges, it rarely reflects on the Bureau's national reputation, as it should -- nor does it trigger anything resembling a real investigation.

In fact, the FBI has performed near-miraculous feats of damage control throughout its long, ugly, mostly sanitized, and largely suppressed history. Even when a story breaks nationally, the Bureau is able to control any resulting investigations enough to prevent large-scale reform of its culture. Hence, having a story go national is not, in itself, any guarantee of change. This becomes obvious when one studies the results, or lack of results, from disclosures of the infamous COINTELPRO operation of the '60s and '70s, when the Bureau illegally bugged and sabotaged members of the civil-rights and anti-war movements.

Consider, too, Ruby Ridge and Waco, where in the views of some (myself included) the Bureau was allowed, literally, to get away with murder. At Waco, the FBI managed even to manipulate Attorney General Janet Reno into giving the go-ahead signal for an ill-considered military-type assault on the Branch Davidian compound of David Kor-esh, resulting in the large-scale incineration of men, women, and children. The Bureau knew Reno would react strongly to its reports, whether true or not, of child sexual abuse by Koresh. The Bureau has for years manipulated Congress in precisely the same way -- agents learn the issues that trigger congressmen's fears and then work on those soft spots.

Nevertheless, the fact that the FBI cozied up with Bulger and Flemmi is remarkable -- and it should be national news. There's enough material for at least one book on the topic: Boston Globe reporter Dick Lehr and his old Spotlight Team boss Gerard O'Neill have one due out this spring -- Black Mass: The Irish Mob, the FBI, and a Devil's Deal (PublicAffairs) -- that might at long last turn the case into a national story. Meanwhile, former Boston Herald reporter and current Globe correspondent Ralph Ranalli is reportedly working on a book about the institutional implications of this and other FBI scandals.

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Questionable tactics As a defense attorney with 32 years' experience defending people both prosecuted and persecuted by the FBI and the DOJ, I can assure you that neither the FBI's deal with Bulger and Flemmi nor the tactics used by the Bureau to subvert the truth is anything new. * Consider the case of insurance salesman Louis Ostrer. Back in the early 1970s Ostrer was targeted for inclusion in the FBI's Top Echelon Criminal Informant Program -- the same program that more recently housed the likes of Bulger and Flemmi -- because he sold insurance to labor unions, including the union headed by suspected labor racketeer John "Johnny Dio" Dioguardi. FBI agents let Ostrer know that the Bureau would prosecute and convict him and his wife on a tax charge (which it eventually did) unless he agreed to be a witness against Dioguardi. They also threatened to go after his son (who had just graduated from law school), his sister, and his elderly father if he didn't cooperate. When Harvard professor Alan Dershowitz and I, along with a third lawyer representing Ostrer, met with the DOJ and FBI team pursuing the Dioguardi and Ostrer investigations, we were told that Ostrer could get out of the Bureau's sights only if he would agree to testify against Dioguardi, and they handed us a list of provisions of the criminal code that Dioguardi was suspected of having violated. When we said that Ostrer had assured us that he had no incriminating information against Dioguardi but had simply sold insurance to the union, the feds said that they knew the truth and would be willing to assist Ostrer in remembering what transpired during his conversations with Dioguardi. From this encounter emerged Dershowitz's now-famous formulation that the FBI teaches prospective witnesses not only how to sing, but also how to compose. Ominously, Ostrer's office in New York was sprayed with automatic gunfire one night before these negotiations took place. Only minutes after the attack, Ostrer received a phone call from the FBI, warning him that the mob was out to kill him but that the Bureau would protect him in exchange for his testimony. Ostrer refused the offer, and he remains alive and healthy to this day. He suspected then, and still does, that the Bureau arranged the drive-by and subsequent phone call to terrify him into cooperating. * In November 1983, the FBI arrested Alfred Zehe, an East German academic physicist attending a conference in Boston. The charge was espionage. Zehe had apparently examined a packet of documents that the East German embassy in Washington had purchased from a US Naval Intelligence undercover operative who'd worked his way down Embassy Row trying to peddle them. After several Communist-satellite embassies turned down the opportunity, the East Germans bit. The documents were spirited down to Mexico, where Zehe was teaching, and he evaluated them at his government's request. For this, Zehe was busted here and held hostage in a cynical Cold War game. I learned during my preparation to defend Zehe that the documents the FBI had selected for peddling were outdated sonar plans that were useless for military or intelligence purposes. Indeed, it was obvious that the plans were useless, since the FBI had chosen to allow them to fall into Communist hands! Nonetheless, during the course of trial preparation, the FBI insisted that Zehe had seriously compromised US military security. They even insisted that my law partners and I undergo security checks and sign a pledge to keep the "secrets" to ourselves before we could look at them. When I pointed out the hoax they were pulling simply to enhance the FBI's image as a national-security protector, one agent looked me square in the eye and said: "Mr. Silverglate, there are only two sides in this struggle, and either you are with us or against us." * Then there's the still-ongoing case of United States v. Jeffrey R. MacDonald, known as the "Green Beret" or Fatal Vision murder case (named after Joe McGinniss's seriously flawed bestseller). My law firm has been counsel to MacDonald for the past 10 years of his 30-year struggle against charges that he murdered his pregnant wife and two young children while stationed at Fort Bragg, North Carolina, in 1970. Convicted on a 1979 murder indictment, MacDonald continues to serve three life sentences while post-conviction efforts to prove his innocence continue unabated. After years of FBI and DOJ stonewalling of every effort to re-investigate the murders and examine the prosecution's tactics, we finally got access, through the Freedom of Information Act, to documents that raised a strong suspicion that FBI and DOJ personnel had covered up evidence of MacDonald's innocence. In one court proceeding, an FBI forensic agent submitted an affidavit in order to defeat our efforts to re-open the case -- an affidavit that we were later able to prove was false. Last year we were successful in prevailing upon a federal appellate court to allow DNA testing of crime-scene evidence -- a step that the FBI and DOJ fought vigorously. The judge asked both sides to suggest which lab should do the testing. We recommended the Armed Forces Institute of Pathology (AFIP), the world's premier DNA lab. We figured that the FBI and DOJ wouldn't have the chutzpah to oppose having a highly regarded government lab do the testing. After all, we're all interested in knowing whether an innocent man is spending his life in prison, aren't we? Wrong. The prosecutors suggested instead a small laboratory in North Carolina that the government had previously used. Perhaps such a lab could be counted on to be more "friendly" to the Bureau than the independent and incorruptible AFIP. The judge agreed to have the AFIP do the testing. Results are expected later this year. * Last, consider the long-time policy and practice, inculcated in FBI agents throughout the country, concerning interviews of witnesses and suspects. If the interviewee pulls out a tape recorder and insists on recording, the agents will promptly terminate the interview. Instead, the Bureau makes records by sending two agents to such interviews -- one to ask the questions and the other to take notes. Obviously, it long ago occurred to the FBI that if an agent simply takes handwritten notes, the words of the interviewee can be spun to suit the Bureau's needs. I have often asked federal agents and prosecutors what possible justification there could be for refusing to allow the tape-recording of an interview, and I've never received a reply. I don't expect one anytime soon. -- HAS

What should really surprise us about the Bulger/Flemmi story is that we know anything about it at all. There's nothing particular to Boston about the FBI's and the DOJ's making common cause with criminals and suppressing the truth. What is particular to Boston is an unusually courageous, tenacious, and outspoken judge, Mark L. Wolf, sitting on the United States District Court. Judge Wolf cut his teeth at Main Justice working as a special top assistant to Attorney General Edward H. Levi, whom President Gerald Ford appointed to try to straighten out the DOJ and the FBI after the Watergate scandal. When Bill Weld was appointed US attorney -- the top federal prosecutor in Massachusetts -- Wolf became his top deputy.

As the judge in the Bulger/Flemmi case, Wolf has resisted aggressive attempts by US Attorney Donald Stern to remove him from the case. It should be noted that Stern held a press conference last month in which he asserted that his crime-busting comrades in the FBI and the DOJ are intent on getting to the bottom of the scandal. "We have an effort under way to aggressively investigate any law-enforcement corruption arising out of the activities of the so-called Bulger Group," Stern assured the public and the news media. "We're going to follow the investigative leads wherever they end up, and if they end up going to other law-enforcement agencies [than the FBI], then we'll follow them there." Throughout the press conference, Stern adopted a deceptive let-it-all-hang-out demeanor.

But Stern failed to remind the members of the Boston press corps -- most of whom have notoriously short memories, it seems, or perhaps are afraid to bite the hand that feeds them -- that he and his assistants panicked at the start of the Wolf hearings once they realized that the judge, despite his history as a federal prosecutor, was dead serious about getting to the bottom of the Boston FBI office's relationship with Bulger and his gang. This began to dawn on the prosecutors when the defense lawyers requested access to FBI and DOJ documents touching on this relationship. Usually federal judges give unquestioning deference to the DOJ's claims that disclosing FBI documents will compromise the Bureau's urgent crime-fighting mission. As soon as Wolf demonstrated a determination to dig beneath the surface and to force the production of some theretofore secret documents, Stern's office kicked up a storm. The sides spent months battling over such "discovery" issues.

Nor did Stern mention his strenuous opposition to releasing the results of a DOJ internal investigation into the FBI's and the DOJ's handling of the Bulger-Flemmi/FBI relationship. Although such internal investigations by the DOJ's so-called Public Integrity Section and the notoriously toothless Office of Professional Responsibility have historically been notable for what they omit rather than what they include, Stern's office fought hard to keep any part of the report out of the hands of the defense lawyers.

Stern likewise failed to remind the amnesiac reporters that back in March 1998, prosecutors demanded that Wolf take himself off the case after Wolf disclosed that he'd just found, stored in the basement of his home, documents relating to some aspects of the investigation from when he served as Weld's deputy. The fact that Wolf apparently knew something about the case raised the possibility that his "impartiality might reasonably be questioned," according to a 40-page brief filed by Stern and his assistants, federal prosecutors Fred M. Wyshak Jr., Brian T. Kelly, and James D. Herbert. By that time, Wolf had invested three years in peeling layers off the onion. He was clearly getting too close for the government's comfort -- hence the effort to get Wolf off the case in the middle of the hearings as witnesses were testifying. Wolf stayed the course, however, and proceeded with the lengthy and sensational hearings that uncovered the unholy alliance between the G-men and the mobsters.

AS IT turns out, Stern was not the only federal official to attempt to protect the Bureau from disclosure. Wolf ordered his former boss, Weld, to testify at the hearings. Weld -- US attorney from 1981 until 1986, subsequently appointed head of the criminal division at Main Justice by Edwin Meese -- gave what was perhaps the most disturbing testimony, which became the subject of a one-day story in the Boston media and never made it prominently onto the national stage, where it belonged. Weld admitted that he had reason to be suspicious about the FBIand Bulger's Winter Hill Gang. He admitted that in 1984, when then-FBI local bureau chief James Greenleaf declined to join a drug investigation of Bulger and Flemmi, Weld "thought it was a little odd" but did not pursue the reasons. Weld admitted that "the posture of the FBI was denial" with respect to anything relating to Bulger and Flemmi. When asked on the witness stand why he didn't push more vigorously for answers from the FBI, given that he was the top federal prosecutor in Massachusetts, Weld admitted: "I expect they would have told me to go pound sand."

It was a breathtaking admission. Civilian officials at the highest ranks, sworn to protect the public by supervising the law-enforcement agents under their command, had not only failed but knowingly refused to do so. But Weld and Stern are not the only high DOJ officials who have demonstrated a preference for keeping the public, and in some instances themselves, in the dark as to the workings of the FBI. During the court hearings it was disclosed that in 1979 the Boston FBI office managed to talk Jeremiah T. O'Sullivan, then the head of the New England Organized Crime Strike Force, out of including Bulger and Flemmi in a groundbreaking race-fixing indictment brought against some members of the Winter Hill Gang, largely on the basis of testimony of Anthony "Fat Tony" Ciulla, who then had to go into the federal Witness Protection Program. Ciulla, it turns out, gave the feds seriously incriminating evidence against Bulger and Flemmi as well as against those who were indicted, but Bulger and Flemmi were protected by the Boston office and by O'Sullivan.

Globe reporter Lehr has subsequently interviewed Ciulla, who confirmed that O'Sullivan cooperated with Boston FBI agents in keeping the lid on the relationship between the FBI and Bulger and Flemmi -- and that the Organized Crime Strike Force worked with the Bureau to protect two of the most dangerous criminals in the area from being indicted.

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No one who knows the history of FBI wrongdoing and of the extensive, and successful, efforts to cover it up is betting that the DOJ's internal investigation is likely to uncover, much less make public, any evidence that would threaten to turn the scandal into a national story or result in any meaningful reform of the Bureau. Chances are good that a couple of sacrificial lambs, who have been designated to take the fall, will be the "rotten apples" whose prosecution is going to save what is in fact the rotten barrel.

The bureau has survived all of its scandals -- known and unknown, local and national -- through masterful damage control. It is likely to survive -- unscathed, unrepentant, and unreformed -- the current "local" scandal caused by the "rotten apples," unless perhaps the national news media and American public emulate that remarkable scene in the movie Network where media and citizens join in shouting from the rooftops, "I'm mad as hell and I'm not going to take it anymore."

But I'm not betting on it. After all, the FBI still has files gathered from its investigations of an untold number of congressmen, not to mention of the president himself. As Lyndon Johnson used to say about his reason for not firing J. Edgar Hoover as FBI director even when it was long-known that Hoover maintained unlawfully gathered surveillance files on scores of citizens: "I'd rather have Edgar inside the tent pissing out than outside the tent pissing in." It would take a very visible uprising by the media and the citizenry before the president, the attorney general, or Congress showed the kind of courage and determination recently displayed by a US District Court judge in Boston.

Harvey Silverglate writes about criminal law, students' rights, and civil liberties for the Phoenix and is a partner at the Boston law firm of Silverglate & Good. He can be reached at has@world.std.com.