THE FBI IS the luckiest agency ever.
In February of this year, the Bureau suffered the humiliating disclosure that Robert Hanssen, a senior agent in its vaunted and secretive counterintelligence unit, had been spying for the Soviets and Russians for more than 15 years, and that his perfidy had gone undiscovered despite a number of clues. Three months later, the agency drew criticism from all three branches of government when it disclosed at the 11th hour that it had failed to turn over thousands of pages of investigative reports to the legal team defending Oklahoma City bomber Timothy McVeigh, causing an embarrassed Attorney General John Ashcroft to postpone McVeigh’s execution for a month. And last month the Bureau admitted that an internal inventory had disclosed that hundreds of weapons and laptop computers, including at least one with classified data, could not be accounted for.
How can such high-visibility revelations of gross incompetence be deemed luck? Well, it’s simple. Just as the FBI was attracting unprecedented public, media, and congressional criticism and even suspicion, these scandals suddenly popularized the notion that the FBI’s problem is one of poor executive management. In fact, the real problem is the agency’s culture of hostility to constitutional rights, its lack of respect for civil liberties, and its devotion to enhancing its own unaccountable power. And the confirmation last week of Robert S. Mueller III as the new director — replacing the incompetent but Teflon-coated Louis Freeh — isn’t likely to change much.
Over the course of its existence, the Bureau has demonstrated the somber truth of a statement made, ironically, by then-director Freeh during testimony before the House Judiciary Subcommittee on Crime in June 1997. " We are potentially the most dangerous agency in the country, " he said, while trying to persuade legislators that he and his agency should be given even more power — an undertaking at which Freeh excelled and almost always succeeded.
Last week, Freeh passed to his successor an agency as dangerous today as it was during the nearly 50-year more-terror/less-error reign of the infamous founding director, J. Edgar Hoover. Yet despite the unprecedented amount of scorn and skepticism directed toward the Bureau, Mueller’s confirmation hearing was utterly uneventful. No senator seemed to have either the historical perspective or the will to ask any really tough questions. From the current spin, you would think that all the FBI really needed was a good manager, someone to do for it what Jack Welch did for General Electric; the Bureau came across as an agency more bungling than dangerous.
Nothing could be further from the truth. In seeking to promote its own peculiar notion of law and order, the Bureau is a ruthlessly efficient machine.
IF MUELLER’S confirmation hearing was a love-fest, the tone had already been set by June’s Senate Judiciary Committee hearing on " Oversight: Restoring Confidence in the FBI " (as if there had ever been a time when we had a basis for real confidence), which the committee’s chairman, Senator Patrick Leahy (D-Vermont), called to examine the agency’s embarrassments of recent years. Former Missouri senator John Danforth, who headed a 14-month, $17 million investigation into the FBI’s conduct of the Branch Davidian siege at Waco, Texas, solemnly assured the committee that he found no evidence of serious FBI wrongdoing, other than a " lack of openness and candor " meant " to avoid embarrassment " of individuals and of the Bureau itself. " A long-standing value of the FBI is not to embarrass the FBI, " he intoned. But, he assured the senators, " I am sure that systems for managing information can be improved. " Danforth’s testimony never even touched on the fundamental question of why the FBI got involved in a situation that could and should have been left to local law enforcement, and how and why the Bureau convinced then–attorney general Janet Reno that an assault on the community was essential in order to stop the alleged child sex abuse by leader David Koresh. (Reno’s obsession with child sex abuse was well known from her days as Dade County district attorney, and her law-enforcement advisers knew precisely how to push her buttons.)
Even more ludicrous was the testimony of Michael R. Bromwich, former inspector general of the Justice Department, who conducted a highly publicized investigation in 1995-’97 of the fabled FBI Crime Laboratory, long touted as the premier forensic crime lab in the world. Bromwich reminded the senators that he had " rejected some of the most far-reaching allegations that had been made, including allegations of perjury, obstruction of justice, and suppression of exculpatory evidence " leveled against the lab and its forensic experts and agents.
To those with experience in defending people accused of serious crimes on the basis of testimony from FBI lab personnel, the Bromwich report was a joke. (I am currently involved in defending one such client — Jeffrey R. MacDonald, convicted in the " Fatal Vision " murder case at Fort Bragg, North Carolina, in the 1970s. MacDonald remains in prison largely as a result of false testimony by a renegade agent in the same FBI lab whose activities were whitewashed by Bromwich. In fact, while Mueller was a higher-up at the Department of Justice in Washington, I met with him to try to get him to look into the FBI and DOJ frame-up of MacDonald, and Mueller, while cordial, made it clear that criticism of the agents and prosecutors in the case would be " a non-starter. " No investigation ensued.) Bromwich’s rejection of the " far-reaching allegations " is more a comment on the failure of the Bureau’s internal-policing system than on the essential honesty of its agents and experts. The failure of Bromwich’s " investigation " is clear when one recognizes that the person who suffered most from the affair was not one of the offending agents, but rather former FBI forensic expert Fred Whitehurst, the whistle blower without whom the lab’s scandalous obstruction of justice and other crimes would never have come to light. Whitehurst was suspended and then fired as a result of his telling the truth, although he got some measure of vindication when the Bureau later settled, with a substantial payment, his lawsuit for wrongful discharge.
Leahy, too, was tepid in his criticism of the Bureau, tipping his hat to an organization that " has long been considered the crown jewel of law-enforcement agencies " but " has lost some of its earlier luster. " The Bureau has lately appeared " unmanageable, unaccountable, and unreliable, " he said. Surely someone as sophisticated and well-intentioned as Senator Leahy cannot be blind to the real history of this " crown jewel, " or believe it has been laid low simply by recent poor management. Is Leahy suggesting that things were better in the days when the Bureau’s director exercised real managerial control — in the Hoover era?
