But even the FBI’s most vociferous critics seemed to accept that the agency’s failures have resulted from managerial incompetence. Few recalled, for example, the highly dubious indictment of Qubilah Shabazz, daughter of the late Nation of Islam leader Malcolm X, in a phony agency-concocted plot to kill Louis Farrakhan, the Black Muslim leader who some believe bears at least indirect responsibility for the murder of Shabazz’s father. Shabazz was contacted in May 1994 by Michael Fitzpatrick, a former Jewish Defense League member who’d previously been convicted of a bookstore bombing. Fitzpatrick not only had his own beef to work off, but also testified that he’d been paid $34,000 for making secret tapes of his discussions with Shabazz and expected an additional $11,000 for trial testimony against her. It was one of the classic entrapment-cum-frame-ups for which the Bureau has become famous — a demonstration of the damage done by the Bureau’s obsession with turning scumbag criminals into witnesses against often innocent citizens.
Shabazz was lucky — she had a good lawyer and, in the end, the FBI’s case fell apart. The agency offered her a sweet plea bargain to prevent further scrutiny of its conduct: Shabazz, who could have spent 90 years in prison had she been convicted of hiring a hit man, instead agreed to three months’ psychiatric counseling and two years’ probation. The Bureau’s shameful conduct was criticized from the right (James Bovard in the American Spectator) and the left (Clarence Page of the Chicago Tribune), but nothing much ever came of it. Yet the technique used was a shockingly common one for the Bureau, a result not of administrative failure but rather of a coarse disregard for citizens’ civil liberties and such niceties as truth.
People like Shabazz — troubled and down on her luck — have not been the Bureau’s only victims. Even the powerful are not immune. Most have forgotten the travails of E. Robert Wallach, a friend of former Reagan-era attorney general Edwin Meese III. Wallach was convicted in 1989 of white-collar crimes in the so-called Wedtech case. His conviction was reversed in 1991 by a federal appellate court, which decried the FBI’s cover-up of perjury by its main witness. (Closer to home, the Bureau’s Boston office in recent decades conducted a veritable reign of terror, including the conviction of innocent citizens, with the collaboration of the Whitey Bulger gang. The FBI’s apologists would pass this off as just a few " rotten apples in the barrel. " In fact, however, it’s the barrel that’s rotten.)
Many of Freeh’s touted successes simply offer more evidence of the Bureau’s rapacious grab for power. In the aftermath of every dramatic incident of domestic " terrorism, " Freeh and the FBI proved themselves adept at exploiting momentary public and congressional panic to get repressive legislation enacted. Consider the Orwellian-sounding Digital Telephony and Communications Privacy Improvement Act, passed in 1994 in the wake of the World Trade Center bombing. It requires manufacturers of telecommunications equipment to make their products wiretap-friendly by following FBI guidelines. In effect, the Bureau obtained the power not only to force private industry to help spy on unsuspecting customers (also known as American citizens), but also to impede technological progress in terms of both efficiency and privacy in the service of facilitating government eavesdropping. Likewise, Freeh and the FBI have vociferously opposed unfettered distribution of sophisticated encryption systems, on the theory that unless the Bureau is able to crack every code, communications might ensue that the FBI will not be able to monitor.
Similarly, in the aftermath of the 1995 Oklahoma City bombing, the Bureau forced additional " anti-terrorist " legislation through Congress that authorized " roving wiretaps, " which follow a target from phone to phone, thereby incidentally eavesdropping on the conversations of many more people. And, of course, there’s the infamous Anti-Terrorism and Effective Death Penalty Act of 1996. It decimated the writ of habeas corpus, a venerable legal device (dating back to the Magna Carta of 1215) for obtaining judicial review of unlawful imprisonment long after trial. As a result, convicts who could show substantial evidence of innocence are now being rushed to the death chamber — a convenient way to avoid, among other things, unsettling probes into the accuracy of FBI forensic-lab technicians and the veracity of informant witnesses-for-hire.
A GLIMMER of the real FBI came through the other day. Massachusetts congressman Barney Frank learned that a letter he’d written in 1989 about some immigration legislation he was sponsoring had landed in FBI files, stamped secret. The files also contained a report from a " highly knowledgeable source " that Frank’s legislation had been discussed at a public meeting in 1989 at the UN Plaza. Frank’s letter was discovered in FBI files as a result of a request filed by the Los Angeles Times some 15 years ago under the Freedom of Information Act and just recently answered. (Ironically, much of the Bureau’s spying on Americans in search of " disloyal " citizens such as Frank was headed by none other than indicted spy and confessed traitor Robert Hanssen. The notion that Hanssen was monitoring Frank’s loyalty to the country tells us more than we want to know about FBI culture!)
Robert Mueller, a former Boston US attorney, Justice Department official, and career prosecutor, is tough, intelligent, and incorruptible. This is his well-earned reputation, and since I know him and have defended the accused in cases he has prosecuted (see " The Real Bob Mueller, " TJI, July 19), I can corroborate it from personal experience. However, he lacks a fourth quality that is vital for the next FBI director — a deep skepticism of an institutional culture that fails to recognize the existence of values more worth defending than the Bureau’s notion of law and order. Some means are unacceptable, regardless of how important the Bureau believes the ends to be. There are bad guys (or those the FBI thinks are bad) to get, but there is also a Bill of Rights to protect and even nurture. Much has changed in the country since Hoover’s death, but too little fundamental change has taken place within the FBI. This sad truth is demonstrated daily when agents and executives who work out of the Bureau’s main headquarters in Washington enter and leave the J. Edgar Hoover Building.
Harvey A. Silverglate, a partner at the Boston law firm of Silverglate & Good, writes about criminal law, students’ rights, and civil liberties for the Phoenix. He is also the co-author of The Shadow University: The Betrayal of Liberty on America’s Campuses (HarperPerennial, 1999) and co-founder of the Foundation for Individual Rights in Education. He can be reached at has@world.std.com
Julian Jordan provided research assistance for this article.
