A Special Report by David Burnham
The Federal Bureau of Investigation is the
most powerful and secretive agency in the United States today. Despite
the bureau's influence over a broad terrain of American life, independent
examinations of the "B," as special agents refer to it, have been
rare. (In the sixties The Nation published a special issue on the bureau
by Fred Cook, which became The FBI Nobody Knows.) No Congressional committee
has mustered the political will and staff to carry out a comprehensive
review. With the bureau's political power greater than at any time in
its eighty-nine-year history, an examination of the questions of how well
it is performing its crime-fighting mission and safeguarding civil liberties
is overdue. Beyond the recent series of F.B.I. problemsthe tragedy
at Waco, the shootout at Ruby Ridge, the Atlanta Olympic Park bombing,
the flawed investigations by its scientific labare there broader
kinds of defects that demand attention? We asked David Burnham, a reporter
who has specialized in law-enforcement issues for thirty years, to review
the current state of the F.B.I. With research support from The Nation
Institute's Investigative Fund, Burnham availed himself of an entirely
new kind of informationinternal administrative data maintained by
the Justice Department, which tracks every instance an investigative agency
like the F.B.I. refers a matter for prosecution and the ultimate disposition
of these referrals. Data tapes containing this detailed information, from
the mid-seventies to fiscal year 1996, were obtained under the Freedom
of Information Act by the Transactional Records Access Clearinghouse (TRAC),
a research organization formed in 1989 by Burnham and Susan Long, a professor
at Syracuse University. They then verified and analyzed the data. The
F.B.I. did not respond to our request for comment on the findings of this
article. The Editors
The Nation. August 11, 1997
I. A Bureau Full of Troubles
the ugly blots of Waco and Ruby Ridge and the mess at the crime lab,
and despite attacks on it by libertarians on the left and right, the
Federal Bureau of Investigation is widely regarded as the world's pre-eminent
crime-fighting agency. Because of the impressive investigative skills
and dogged persistence of some F.B.I. agents, elements of this relatively
shiny reputation are deserved. Nevertheless, our analysis of data that
have been sitting unused in federal data bankssupported by interviews
and evidence drawn from operating manuals, court decisions and government
reportsproves conclusively that the F.B.I. today is a sloppy,
unresponsive, badly managed, uncooperative and out-of-touch agency that
is aggressively trying to expand its control over the American people.
Judging from the data, and
borne out in interviews with present and former law-enforcement people,
the F.B.I. prefers busting drug dealers and playing cops and bank robbers
to attacking the endemic problem of corporate and white-collar crime.
In 1996, Justice Department records show, F.B.I. investigations resulted
in 11,855 convictions in federal court45 for every million persons
in the United States. The largest identifiable chunk of the 1996 casesabout
a quarter of the totalinvolved 2,919 people found guilty on a
variety of drug charges. The next largest grouping, involving 1,898
persons, concerned fraud and embezzlement situations where banks, savings
and loan associations and credit unions were the victims, often through
the misuse of credit cards. Old-fashioned bank robberieswith 1,341
convictionsmade up the third-largest category of cases. Overall,
these numbers tell us that more than half of all F.B.I. convictions
involved drug dealers, credit card scams against financial institutions
and bank robbers.
By contrast, in 1996 F.B.I. investigations
resulted in two convictions for the criminal violation of the nation's
antitrust laws, one under the statute concerning health and safety crimes
against employees, seventeen under the law traditionally used for the
prosecution of brutal cops and prison guards and thirty-five for environmental
Apparently sensing a growing wave of public
concern, the Justice Department and the F.B.I. stepped up investigations
of medical fraud. With 148 convictions in 1996, the F.B.I. appears to
have delivered more than empty rhetoric. But the problem is now estimated
to cost U.S. consumers more than $100 billion a year. And it's not just
a pocketbook issue, it's a violent blood sport. Untold numbers of old,
ailing and bewildered people needlessly die or suffer serious bodily
What is true for the health care industry
also holds for many other kinds of corporate malfeasance: manufacturing
companies that allow their workers to suck cancer-causing substances
into their lungs, industries that poison the nation's drinking water,
pharmaceutical companies that illegally market dangerous or improperly
tested new products. Carefully documented studies by authorities like
Edwin Sutherland, Marshall Clinard, and Philip Landrigan and Dean Baker
show that the financial loss, physical pain and death that result from
the work of the nation's army of white-collar criminals considerably
exceed that of all the murderers, robbers, burglars and drug dealers
regularly featured on the 10 o'clock news.
Yet the F.B.I. continues to give heavy
emphasis to drug violations and the protection of the banksareas
that could be mostly left to state and local authoritiesand its
priorities have seldom been subject to outside audit. Instead, official
and unofficial judgments about the F.B.I. by the President, Congress,
the press and academia have long been based on the self-serving, undocumented
claims of the bureau. Since the glory days of J. Edgar Hoover, F.B.I.
directors have limited themselves to shouting about grave threats to
the United States from Communists, from politically active blacks
and students, from drug lords, from pornographers and, most recently,
from terrorists. As a result, far-reaching policy and budget decisions
about the F.B.I. are almost entirely based on information (including
the now discredited Uniform Crime Reports) that has been artfully edited
by one of the government's most high-powered public relations machines.
Another surprising conclusion from the
data is that for many years Justice Department prosecutors all over
the country have found much of the bureau's investigative work inadequate.
From 1992 to 1996, for example, federal prosecutors disposed, in one
way or another, of 226,186 F.B.I. referrals. Only 57,871 of themone-quarterresulted
in convictions; 67,710 of these referrals about one-third of all
they processedassistant U.S. attorneys ruled legally insufficient.
According to the department's data tapes, the prosecutors said they
had rejected 25,599 of the matters because they were supported by "weak
or insufficient evidence." Prosecutors declined an additional 28,680
on the grounds of lack of evidence that a federal offense had been committed
or that criminal intent was involved. For 10,243 more, there was "minimal
federal interest." Finally, 3,188 F.B.I. referrals were disposed
of because there was "no known suspect."
Let it be acknowledged that prosecutors
have broad discretion in choosing the cases they prosecute or ignore
and that sometimes they make political or otherwise dubious decisions.
Let it also be said that assistant U. S. attorneys sometimes reject
matters for defensible reasons. During the five-year period in question,
for example, 19,419 were declined on the grounds that they had been
referred to "other authorities" for prosecution; 13,294 because
of a lack of prosecutorial or investigative resources; and 3,063 at
the request of the Justice Department.
Nevertheless, during the past five years
federal prosecutors won convictions in 26 percent of all the F.B.I.
investigations they processed. (In 1996 the record was 28 percent.)
This scorecard looks even worse when compared with that racked up by
other agencies. In that same year, for example, 59 percent of Drug Enforcement
Administration matters ended with a conviction, 52 percent of those
from the Bureau of Alcohol, Tobacco and Firearms and 41 percent of those
from the Internal Revenue Service. This suggests that the F.B.I. is
forwarding a substantially higher proportion of questionable cases than
the other investigative units. For every conviction from 1992 to 1996,
the F.B.I. had slightly more than one matter declined on the basis of
insufficient evidence, no proof of criminal intent, etc. This compared
with about two convictions for every "weak evidence declination"
for the I.R.S., three for the B.A.T.F., six for the D.E.A. and seventeen
for the Immigration and Naturalization Service.
Part of the reason the bureau does so
poorly in comparison with other agencies could be that it sends federal
prosecutors more difficult or politically unpopular cases than the other
agencies. While drug dealers are "bad people" doing bad things,
many white-collar criminals are "good people" doing bad things.
Most of the D.E.A.'s clients have a considerably lower social position
than those of the F.B.I.'s.
Even when the F.B.I. and the D.E.A. are
going after the same targets, however, the bureau's record looks somewhat
worse than the D.E.A.'s. Between 1992 and 1996, in cases where the principal
charges were based on the government's two most frequently used drug
laws, the D.E.A. got the green light from the prosecutors 81 percent
of the time, compared with 75 percent for the F.B.I. The D.E.A.'s investigations
led to prison sentences 54 percent of the time, the F.B.I.'s 49 percent.
By another measurehow long it took attorneys to prosecute a matterthe
D.E.A. also did better. Its median was 198 days, the F.B.I.'s 264. Everything
else being equal, a high-quality investigation should require less time
to prosecute than a flawed one. In only one significant area did the
D.E.A. not look measurably better than the F.B.I.: The median prison
sentence of offenders investigated by these agencies was the samesixty
An essential element in the fair and
effective enforcement of the law is consistency. When Congress passes
a law mandating comprehensive national programs to discourage larcenous
bankers, environmental outlaws or drug dealers, carefully coordinated
national programs of enforcement are crucial. Equally important to achieving
success is public support, a goal that requires investigators and prosecutors
to live up to the constitutional ideal that the government always tries
to treat similarly situated citizens in similar ways.
There is considerable evidence that the
F.B.I. is delivering a widely varying level of service in different
parts of the country. Because 91 percent of all convictions result from
plea agreements between prosecutors and defense attorneys, and because
federal judges follow national guidelines 71 percent of the time when
imposing prison sentences, the wildly erratic pattern of sentences would
seem to indicate that F.B.I. agents in some districts are targeting
more serious crimes drawing longer sentences than agents in other districts.
Some district variation is of course
appropriate. After all, the crime problems in Baton Rouge or Louisville
may well be quite different from those in Los Angeles or Miami. But
limit your consideration to the 1996 sentences imposed on F.B.I. defendants
in a selected group of districts that include the nation's biggest cities.
In 1996 the median prison sentence imposed on all 11,855 people convicted
on the basis of F.B.I. referrals was twenty-four months. But in the
Maryland (Baltimore) district the median sentence was forty-eight months.
This compared with thirty-three months for F.B.I. defendants in California
Central (Los Angeles), twenty-seven months in Pennsylvania East (Philadelphia),
twenty-four months in Florida South (Miami), fourteen months in Massachusetts
(Boston) and thirteen months in New York South (Manhattan and several
counties to the north) and six months in California North (San Francisco).
How can it be that the median sentence
for people convicted on the basis of F.B.I. investigations in Maryland
is eight times that in California North? Part of the explanation, of
course, lies in the fact that F.B.I. agents in various parts of the
country pursue very different kinds of criminals. In 1996, the largest
single group of F.B.I. convictions in Maryland28 percentwere
for bank robbery. In California North, bank robbery convictions made
up only 19 percent of the F.B.I. total. Drugs was another area of considerable
contrast: 22 percent in Maryland and only 1 percent in California North.
On the other hand, with regard to F.B.I. convictions in which theft
or embezzlement by a bank officer was the lead charge, California North
was more active than Maryland. While such convictions made up 29 percent
of the total in the San Francisco area, they represented only 5 percent
But differences in the kinds of crimes
that various F.B.I. offices choose to investigate offer only a partial
explanation for the wide disparities in prison sentences. Another factor
seems to be the competence and diligence of F.B.I. agents and prosecutors
working in an individual district. The Justice Department data and interviews
with current and former law-enforcement officials indicate that investigators
and prosecutors in some areas are considerably less proficient in developing
solid evidence against important criminal suspects than those in other
areas. The evidence for this emerges from an analysis of the very different
median sentences that result from F.B.I. convictions for the same crimes
that have been brought in roughly similar districts. It is assumed that
in any big-city F.B.I. jurisdiction, the bureau has a surfeit of criminal
suspectsdrug dealers, bank robbers, fraudulent bankerswhom
it can investigate. It is further assumed that a well-run enforcement
agency would try to focus its investigations on the most serious criminalsthose
with the most previous convictions, those who appear to be dealing in
the largest quantities of drugs or the largest swindles, those who seem
to be engaged in numerous different criminal enterprises. Finally, it
is assumed that longer sentences do not reflect tougher judges. The
mandatory sentencing guidelines require federal judges to impose longer
sentences on those with criminal histories who deal in larger amounts
of drugs or embezzle larger amounts of money. Given these assumptions,
the considerable variations among districts in median sentences is surprising.
Again consider Maryland and California
North, in this case the median sentences imposed from 1992 to 1996 on
all convicted individuals where the lead charge against them involved
the ten statutes that were most frequently cited by the F.B.I. in the
two districts. The data show that when the sentences are compared by
lead charge, F.B.I. investigators and assistant U.S. attorneys in Maryland
obtained more prison time than their colleagues in California North
for nine out of ten of the categories. The comparatively poor record
of the investigators and prosecutors in California North in locking
up more serious criminals is striking and not easy to explain.
Are the agents in some F.B.I. districts
so caught up in bureau pressures to meet their quotas that they focus
on a less important class of criminals who end up with shorter sentences?
Are the Special Agents in Charge (SACs) in some F.B.I. districts failing
to lead their agents in pursuit of serious crimes? Have SACs in other
districts established sophisticated mentoring programs, in which experienced
agents are assigned to work with rookies, that result in higher-quality
investigations? How can the F.B.I. provide effective enforcement of
laws dealing with national programs like health care fraud if some of
its offices are not fully committed? In the face of all these regional
variations, is the constitutional goal of equal treatment under the
law a high-sounding fiction?
Testimony: Some Expert Witnesses
In interviews, current and former F.B.I.
agents, federal prosecutors, former Justice Department officials, criminal
lawyers and experienced investigators from such agencies as the I.R.S.
and D.E.A. confirm the statistical evidence showing that the bureau
is performing poorly.
Take the bureau's apparent lack of zeal
in pursuing corporate and white-collar crime. Investigators and prosecutors
all over the country contend that agents frequently are reluctant to
work on these kinds of cases. "There's a whole lot of agentsand
federal prosecutors toowho will not do serious paper cases because
it is a lot of work," said David McGee, a highly regarded federal
prosecutor who recently retired after twenty years as an assistant U.S.
attorney in northern Florida. "This resistance to paper cases is
a big deal, because if you don't do paper you leave out a broad spectrum
of criminal matters, often the most important crimes. All that too many
agents want to do these days is kick down doors." A federal prosecutor
in New England complained, "It really is a tough job in my district
to get an F.B.I. agent to read corporate documents."
A retired F.B.I. executive, considered
by many to be among the bureau's most effective leaders in the past
three decades, explained some of the pressures that distort bureau priorities.
"When I was a SAC the trucking industry and the banks drove me bats.
Every time they lost a package off a truck, they wanted to make it a
federal case. The bankers have done a real job on the F.B.I. The banking
associations lean on Washington. And at the local level, bank robberies
are pretty nice for the agent. Sometimes they're exciting, and rarely
do they require serious work. And don't forget what may be the most
important factor: A lot of agents want to please the bankers because
one of their favorite retirement jobs is being the chief of security
for a bank."
Henry Ruth, a former Justice Department
lawyer and the last special prosecutor in the Watergate investigation,
was less critical. Although Ruth was the co-author of a scathing Treasury
Department report on the F.B.I.'s actions in Waco, he praised the bureau
for its nonviolent resolution of the Montana Freemen standoff in 1996.
Ruth said that one reason the Justice Department statistics showed comparatively
few complex white-collar crime cases is that these require much more
investigative time than a bank robbery or a carjacking. As a lawyer
who has defended white-collar criminals, he was generally impressed
by the quality of F.B.I. investigations. "Given a choice, many agents
probably would have been much happier chasing drug dealers than most
of my clients. But you have to remember, a lot of white-collar crime
is really boring."
And some more complaints: A veteran F.B.I.
agent who is widely admired for his handling of complex government corruption
and organized crime cases says, "Many younger agents have become
obsessed with breaking down doors, with going after the bad guys like
they do on television." "The biggest sin of today's F.B.I. is that many
agents are just plain lazy," said a prosecutor from the South. "In
the broadest sense, the F.B.I. is the most political of all the investigative
agencies," said another recently retired federal investigator who
spent his last few years in government as a senior manager. "The
F.B.I. is the most arrogant and least cooperative agency in the United
States government today," said the senior Washington attorney responsible
for coordinating the work of a specialized enforcement agency.
A former Republican assistant attorney
general, who has also served as a U.S. attorney, summed up: "Unfortunately,
the ghost of Hoover still stalks the hallways. As in the past, the challenge
of trying to protect the F.B.I. against all kinds of criticism remains
the most important single task of successful F.B.I. officials. As in
the past, the F.B.I. often does not cooperate with other enforcement
agencies. As in the past, the F.B.I. mostly sets the Justice Department's
II. The Expanding Empire
Poorly managed, poorly
trained, poorly motivated, highly political and unresponsive, the F.B.I.
has nevertheless been amazingly successful in maintaining and expanding
its powers. At what cost to the taxpayer? To the liberties of the people?
The Hungry Ear
The single most important source of power
for the F.B.I. is its proficiency in collecting various kinds of information
about criminal suspects, about all the people who ever come into contact
with them and, quite recently, about every household in the United States.
Some of the F.B.I.'s information-collection efforts are regulated under
laws that require public accounting. Others are governed by laws that
have no public accounting mechanism. The third, and most sweeping, F.B.I.
information collection method is entirely unregulated. Here are the
knowable dimensions of this massive and sophisticated information drift
For many years, the F.B.I. has operated the Surreptitious Entry
Team, a squad of agents who specialize in breaking into houses, embassies,
offices and warehouses to secretly install tiny hidden cameras and other
recording devices. In 1993, according to a secret document sent by the
F.B.I. to the White House's Office of Management and Budget, the team
conducted 300 break-ins, six times as many as it did in 1985.
In 1968 law-enforcement agencies were authorized by Congress to use
evidence obtained with court-authorized surveillance devices to convict
people charged with a fairly narrow range of serious crimes. In the
twenty-nine years since then, Congress has steadily expanded the kinds
of situations in which the government may eavesdrop. In 1996, according
to a report by the Administrative Office of U.S. Courts, federal investigative
agencies obtained warrants to install 581 taps and bugs in connection
with criminal casesmore than twice the number they planted only
ten years before. During a recent year federal agents listened to some
1.3 million conversations, only 15 percent of which were said to include
incriminating material. The court report does not provide a breakdown
on how many of the 581 warrants obtained by federal agencies were requested
by the F.B.I., but because of the bureau's comparatively large size,
it is assumed to operate a substantial majority of all wiretaps and
Since 1979 a secret federal court has approved the surveillance of suspects
in national security investigations. Under this category of cases, the
government reportedly obtained 839 warrants for taps, bugs and break-ins
in 1996, 20 percent more than in 1995 and more than three times the
number reported in the first year of the program. Because each national
security warrant can authorize multiple surveillance actions, the reported
number of warrants substantially underestimates this category of taps,
bugs and break-ins. Since the F.B.I. has primary responsibility for
tracking spies and terrorists, it presumably conducts almost all of
these highly classified surveillance activities.
A third kind of F.B.I. surveillance uses equipment designed to record
all numbers dialed from a particular telephone and the numbers of the
telephones that are calling a person under surveillance. Between 1987
and 1993, the government reports that warrants for these "pen registers"
and "trap and trace" devices more than doubled, growing to
3,423 in 1993. Because a single warrant often involves a request to
place the devices on many lines, the actual usage is much higher.
Under current law, federal investigative agencies are allowed to subpoena
long-distance telephone records, credit card records, utility records
and other information about an individual held by third parties. Because
the agencies are not required to report publicly the frequency of such
subpoenas, the F.B.I. count is not available. However, a survey of several
telephone companies by former Representative Don Edwards of California
indicated that federal investigators scan millions of records of long-distance
calls every year. Such large-scale scanning is possible because the
companies usually provide the information in computerized format.
More than twenty years ago, several companies,
including Donnelly Marketing Inc. and R.L. Polk, began to collect all
the information they could about every U.S. household. Using publicly
available records maintained by telephone companies, motor vehicle departments,
voter registrars, county tax assessors and the Postal Service, the companies
developed amazingly complete data portraits of just under 100 million
households. The original purpose of these computerized lists was to
allow marketing companies and politicians to target people who might
be interested in their wares. Because some of the conclusions about
households are based on inference, the lists are not rigorously accurate.
Despite this drawback, and industry rules that its data should never
be used for law-enforcement purposes, the F.B.I., the D.E.A. and possibly
the I.R.S. have set up elaborate databases with such information that
are now instantly available to their agents.
The F.B.I. thus controls a vast array
of constantly updated personal information about you, even if you have
never been a criminal or talked to a criminal. How much money do you
make? What car do you drive? What are the names, ages and sex of your
children? Are you a registered Democrat or Republican? How much did
your house cost? What is the name and breed of your dog? The drift net
covers the whole nation.
The latest strike in the F.B.I.'s constant
drive to gain access to more and more information involves two programs.
Under one, the nation's telephone companies are required to install
a new generation of F.B.I.-approved equipment that will make it much
easier for the bureau to tap telephones and track individual suspects
as they move around the country. With comparatively little public discussion,
this far-reaching program was mandated by a law signed by President
Clinton in October 1994. Although the F.B.I. contends that the number
of its taps will not dramatically increase when the new equipment is
in place, it is hard to believe that this major boost in the capacity
to tap will not result in a substantial increase.
The F.B.I. campaign to force telephone companies
to install new "eavesdropping friendly" equipment is not limited
to the United States. In 1995, after a series of meetings between the
F.B.I. and representatives of a number of countries, the European Union
agreed to launch a global surveillance system to combat "serious
crime" and protect "national security." The proposed system
is based on standards set by the F.B.I.
A second technical development that almost
certainly is whetting the F.B.I.'s current appetite for wiretapping
is the expected decline in the cost of transcribing recorded conversations.
Wiretaps today cost the government a great deal of money because each
conversation must be reviewed by an F.B.I. employee for incriminating
evidence. This expense has served as an indirect brake on electronic
surveillance. With rapid advances in computerized voice recognition
systems able to search for key words, sentences and even broad subject
matters, however, some of this reviewing effort can probably be handled
by machines, so the cost of wiretapping will plummet.
The F.B.I.'s continuous effort to expand
its access to information involves yet another complex campaign, this
one to limit the spread of powerful, low- or no-cost computer programs
that allow users to protect their electronic messages from snooping.
The F.B.I., actively supported by the National Security Agency and the
White House, has been a leader in a broad government effort to limit
the sale of advanced encryption programs overseas and in the development
of specially coded programs to allow the bureau to read secret messages.
In Congressional testimony and speeches, F.B.I. Director Louis Freeh
has said he is considering asking Congress to pass a law prohibiting
the sale or use of encryption programs that do not include a "trap
door" for the government.
Another development that has worked to
expand the F.B.I.'s power and influence goes back to the period immediately
after Watergate, when the Carter Administration approved a revolutionary
change in F.B.I. investigative tactics. Until then, F.B.I. regulations
had prohibited agentsin their investigation of crimefrom
involving themselves in criminal activities. But with the early and
enthusiastic backing of Attorney General Griffin Bell and Assistant
Attorney General Philip Heymann, sting operations became part of the
F.B.I.'s investigative repertoire. In the view of William French Smith,
President Reagan's first attorney general, it was essential for the
federal government to "interject its agents into the midst of corrupt
transactions. It must feign the role of corrupt participant. It must
Annual reports to Congress, available
for a short time, disclosed the number of long-term F.B.I. stings. In
1991, for example, there were 171. But because that report did not include
the operations that were completed in less than three days or involved
national security, the official count substantially underestimated the
actual use of the tactic. If these additional categories are included,
the F.B.I. is now running several thousand stings a year. The tactic
has in many ways been highly successful. Operation Abscam, first publicly
revealed in 1980, resulted in the conviction of one senator, six representatives
and several state officials on charges of taking bribes from a con man
who pretended to represent Arab sheiks. But a number of F.B.I. undercover
operations have caused serious harm to innocent citizens who were the
accidental victims of the make-believe criminal organizations set up
by the bureau. An even bigger risk, associated with undercover operations
aimed at public corruption, is the destruction of the public's confidence
in government institutions. This concern was the central focus of a
1984 report by the House Judiciary Subcommittee on Civil and Constitutional
Rights after a four-year investigation of stings. "While investigations
of public corruption may be intended to restore the public's faith in
the integrity of the affected institutions," the subcommittee's report
said, "ill-conceived and poorly managed undercover operations are likely
to have precisely the opposite effect."
The subcommittee documented two egregiously
perverse F.B.I. stings. In one 1983 operation, with the full approval
of senior Justice Department lawyers, the F.B.I. created a political
problem in North Carolina that did not exist, initiated a petition ostensibly
designed to resolve the problem, obtained a referendum on that issue
and then influenced the outcome of the referendum. The F.B.I.'s Special
Agent in Charge told the Charlotte Observer that the bureau's extraordinarily
manipulative investigation was aimed at rooting out corruption that
had become "a way of life" in the state. In the vote-buying trial
that followed, however, the evidence gathered by the F.B.I. failed to
demonstrate that any voters had been paid or that anything other than
traditional political organizing had occurred.
The second misbegotten sting, started
in 1977 and completed in 1982, involved a heavily publicized investigation
of the Cleveland Municipal Court. It began flamboyantly when a team
of fifty F.B.I. agents and local police descended on the court at 9
A.M. on a busy weekday to seize three years' worth of court records.
To facilitate the seizure, agents and officers were stationed behind
the judges while their courts were in session. Shortly thereafter, the
F.B.I.'s SAC and the acting U.S. attorney ominously announced at a news
conference that "more than one judge" was implicated. In the
end, however, the costly and time-consuming investigation, appropriately
dubbed Operation Corkscrew, did not result in the indictment of a single
judge. The apparent reason was the F.B.I.'s misplaced trust in one low-level
court employee who turned out to be a liar and a thief.
Presumably to head off Congressional critics
of this powerful investigative technique, the F.B.I. and Justice Department
have adopted more elaborate internal review procedures. But sting operations
can still go very wrong.
This February, for example, a federal
district judge in South Carolina threw out the convictions of five former
legislators on vote-selling charges. Judge Falcon Hawkins wrote that
he had taken the unusual step of dismissing the indictments because
of the "outrageous" and "egregious" misconduct of both the F.B.I. and
the federal prosecutors. To obtain the convictions, the government had
lied to the court, withheld evidence that might have favored the defendants,
allowed false testimony from an F.B.I. agent and ignored its own regulations.
In addition, the judge said, there was evidence that the investigation
and prosecution were political hits that focused on Democrats while
ignoring a close ally of the Republican governor.
The failure of the South Carolina operation
is hardly unique. During the Reagan years, the F.B.I. worked with the
three Republican U.S. attorneys in Alabama in the systematic investigation
and prosecution of black Democratic activists and political leaders
in the state. In the end, almost all these efforts including an
elaborate undercover investigation of Birmingham Mayor Richard Arringtonwere
abandoned, resulted in acquittal or were thrown out on appeal.
Stanley Brand, a Democratic Party activist,
Washington lawyer and former counsel to the House of Representatives,
contends that a great deal is at stake in the F.B.I.'s growing appetite
for political investigations, especially against state legislatures.
Brand does not argue that corruption is unimportant. But in a letter
several years ago to the National Conference of State Legislatures,
he warned that the F.B.I.'s methodical probes of state governments in
Pennsylvania, California, Arizona and South Carolina could culminate
"in the federal government's attempt to put state legislatures into
Many of the F.B.I.'s targets were hardly
models of representative democracy. But giving the F.B.I. and the frequently
political Justice Department the authority to launch sweeping investigations
of an entire municipal court, a state legislature or a large group of
House and Senate members may have altered the basic relationship among
the three branches of government.
III. Civil Rights: Looking Away
In late 1992 a 15-year-old
girl being held in a juvenile jail in Jackson, Mississippi, told the
police she had been raped by one of her guards. The girl added that
three other young female prisoners had also been raped. Partly because
of an ongoing dispute between the city's police chief and the county's
district attorney, the local authorities did nothing.
A job for the F.B.I., one might think.
Under several Civil War-era statutes, the F.B.I. has long been the lead
agency in the investigation of charges that government officials have
used their powers to abuse the rights of any person, even someone in
prison. But for at least nine months after the young woman's allegations
came to the attention of Joseph Jackson, Special Agent in Charge of
F.B.I. enforcement activities in the state, he took no action. When
finally ordered by Washington to allow a bureau investigation to go
forward, Jackson retired.
The F.B.I.'s nine-month delay in investigating
the Mississippi prison guards was not an isolated event. In fact, the
reluctance of the F.B.I. to investigate local law-enforcement agencies
has been a matter of concern throughout its history. "There are SACs
all over the country who resist the investigation of police abuses in
their communities," said one senior Justice Department official
with extensive experience as an administrator in Washington and as a
prosecutor in a major northern district. "This problem is known to
everyone. The mindset of J. Edgar Hooverthat the F.B.I. should
wherever possible avoid offending local and state law enforcementis
a disturbing reality more than twenty years after his death."
A little-noticed report published every
year by the Justice Department, along with internal administrative data
obtained from the Executive Office of United States Attorneys under
the Freedom of Information Act and interviews with federal investigators
and prosecutors, confirms that the government has for many years treated
civil rights violations entirely differently from the way it treats
almost all other law-enforcement problems.
In 1996, according to a report by the
Justice Department's civil rights division, 11,721 people came to the
federal government with complaints that their civil rights had been
violated. A substantial majority of the complaints involved allegations
of physical abuse by law-enforcement officers. After preliminary screening,
the F.B.I. investigated 2,619 of the matters, most of which were then
referred to prosecutors. Criminal charges were brought in seventy-nine
cases. (According to the department data tapes, the two largest categories
of civil rights convictions included seventeen under the law reserved
for brutal law-enforcement officers and an additional forty-three under
a broad conspiracy law.) Justice Department records show that the 1996
patternin which the prosecutors filed charges in less than 1 percent
of all complaints and less than 4 percent of all referrals sent them
by the F.B.I.has pretty much repeated itself for the past twenty
As described by the civil rights division
report, more than three-quarters of civil rights complaints are screened
by special agents and then rejected for formal investigation. Given
the real limits of the law, the challenge of rounding up supporting
evidence and other factors, many of the decisions against a full inquiry
are valid. Nevertheless, a small but important number of the complaints
that should be subjected to a full investigation are purposely ignored.
Neither the Justice Department nor Congress has ever conducted a systematic
audit to determine the integrity of the F.B.I.'s initial screening process.
The exercise of discretion by individual
F.B.I. agents often produces widely disparate outcomes, as shown by
a comparison of civil rights matters referred by agents from 1992 to
1996 in Alabama's three judicial districts. In Montgomery, civil rights
referrals made up 23 percent of all bureau referrals, while in Mobile
and Birmingham they made up 7 and 9 percent. When looked at in relation
to population, the pattern is a bit different. Birmingham, with the
largest population, had 88 referrals per million people while Mobile
had 137 and Montgomery 168. A second factor
in the Justice Department's broad failure to deal with official misconduct
is the poor quality of agents frequently assigned to investigate the
cases that survive the initial review. "Unless it is a really high-profile
matter like the 1964 murder of the three civil rights workers in Mississippi,
the F.B.I. hands these cases to its youngest and least-experienced agents
and the tired old dogs," said a recently retired assistant U.S.
attorney from the South. "And the cases they manage to put together
often are insufficient." This view
was echoed by a senior supervisor with experience in several different
enforcement agencies. "A few years ago I became aware of a really
bad situation along the border with Mexico," he said. "A lot
of I.N.S. people in the field were beating the crap out of the illegals.
The I.N.S. was out of hand. The F.B.I. was the agency responsible for
investigating the situation. But the kids it sent out to conduct the
investigations had two very serious problems: They didn't know diddly
about asking the necessary questions, and even worse, they were unable
to ask them because most of them didn't speak Spanish. It was a bad
The last barrier to prosecution is the
federal attorney's decision on whether or not to act on the referral.
At this point many factors come into play: What are the chances of winning?
Have the investigators marshaled sufficient evidence? Does the case
have jury appeal? Will the prosecution be in the public interest? Will
it advance the prosecutor's career?
Justice Department data show that prosecutors
handle different kinds of matters in very different ways. In 1996, for
example, assistant U.S. attorneys went forward on about 78 percent of
the immigration matters referred to them, 40 percent of the official
corruption matters and 4 percent of the civil rights matters. Federal
prosecutors have sometimes argued that their decision to prosecute only
a tiny fraction of civil rights matters is guided by the philosophical
principle that the federal government should serve only as the court
of last resort, that it is important to encourage local governments
to deal with their own messes. They have no good answer, however, when
asked why these high-sounding principles of local responsibility are
followed so rigorously when it comes to prosecuting brutal cops but
largely ignored, comparatively speaking, when the target is corrupt
local and state officials.
IV. National Insecurity
Fears that America's national
security interests are threatened by spies, traitors or subversives
have led a long line of Presidents and Congress to gradually enlarge
the bureau's powers. In the past few years the perceived menace of international
and domestic terrorism has provided the rallying flag. As a result of
the Oklahoma City bombing, for example, Congress granted the F.B.I.
$133 million in additional funding to hire new agents and modernize
its facilities. F.B.I. Director Freeh told the Senate Appropriations
Committee in June that this extra funding would allow the F.B.I. to
double its "shoe leather" for the investigations of domestic
and international terrorist groups. And in his requests for additional
legal authority to conduct more electronic surveillances, Freeh always
cites the growing menace of terrorism.
Because of the secrecy that surrounds
efforts to defeat these threats, the Justice Department's enforcement
data provide only a tiny window onto the F.B.I.'s national security
activities. Nevertheless, the facts are disturbing: In an investigative
and posecutive area that must be the F.B.I.'s absolute top concern,
the bureau's record has been mediocre. Only 22 percent of F.B.I. internal
security and terrorism cases disposed of by federal prosecutors from
1992 to 1996forty of a total of 182resulted in a conviction.
In other words, more than three-quarters were declined by the prosecutors,
dismissed by the judges or ended with a not-guilty verdict. Among the
vast majority of cases that the Justice Department declined to prosecute,
65 percent were tossed out because the evidence was weak or they were
otherwise legally flawed.
The principal charges brought against
the forty convicted people involved a wide range of crimes. Eight of
those convicted had been charged with gathering defense information
or delivering it to a foreign government. In seven cases the lead violation
was the sale or receipt of stolen goods, in four it was counterfeiting
or forgery and in two it was money laundering. There was one conviction
under a law prohibiting the harboring or concealing of a person wanted
in a national security case, one against the importation of obscene
materials, one for the use of a fictitious name and one for the use
of a counterfeit access device. Curiously, the lead charge in two of
the forty convictions was malicious mischief. How is it possible that
in the highest-priority F.B.I. investigations, a substantial majority
result in a declination, dismissal or finding of not guilty?
How is it possible that two-thirds are
turned down because of weak evidence? Remember, some of the F.B.I.'s
worst abuses have occurred under the national security banner. If federal
prosecutors find so many flaws in the national security cases that the
F.B.I. hands over for prosecutionthus becoming subject to outside
reviewhow much confidence can be placed in the care and attention
that the F.B.I. devotes to all those national security investigations
that never become public?
V. Who's in Charge Here?
Because the F.B.I. operates
within the Justice Department, most people assume that the attorney
general supervises it. This is incorrect. From his appointment in 1924
to his death in 1972, J. Edgar Hoover was his own boss. With the passage
of a law in 1976 giving the director a ten-year term and establishing
that he can be removed only for cause, the F.B.I. director remains very
much his own master. The F.B.I.'s independence has been especially obvious
during the Clinton Administration, because Attorney General Janet Reno
beginning with Wacohas given the bureau pretty much anything
The extraordinary freedom of the F.B.I.
from meaningful supervision is not just an inside-the-Beltway reality.
As we have seen, F.B.I. district offices exercise considerable discretion
in deciding whether to investigate civil rights complaints and many
other matters as well. Frank Tuerkheimer, a former U.S. attorney who
is now a professor at the University of Wisconsin Law School, says,
"A big part of the F.B.I.'s power is passive. They usually don't fight
you, they just wait you out. They know you will be gone in a few years,
but they will not." In addition to this indirect exercise of power,
Tuerkheimer said, the F.B.I. sometimes simply refuses to work on certain
kinds of cases. A prosecutor in the New York area confirms the practice:
"The SAC just would not involve himself in a serious official corruption
matter in the district, and my boss the U.S. attorneywas
not prepared to make an issue out of it. To get around the problem,
I had to shop around for help, finally recruiting some I.R.S. agents."
SACs frequently are the de facto bosses
of all federal enforcement in their fiefdoms. "The theory is that
the U.S. attorney in New York or Chicago or wherever is the top dog
in the area when it comes to federal enforcement," said one senior investigator.
"But in many districts the SACs have more experience and political connections
in Washington than the U.S. attorney."
This dynamic, combined with the inability
of a long line of attorneys general to set and implement their enforcement
priorities, means that across the country a small, invisible and generally
conservative cadre of senior F.B.I. agents often have a stronger voice
in determining what crimes are prosecuted than the political appointees
who theoretically run the Justice Department or the members of Congress
who go on passing new laws.
VI. A Matter of Accountability
The F.B.I. is not performing
in a manner compatible with the principles or practices of representative
democracy. It is an improperly political, badly managed and ineffective
law-enforcement agency that is constantly seeking to grab more power.
Stating the problem, however, is much easier than outlining a feasible
remedy. On the one hand, to avoid the dangers of improper political
influence, the F.B.I. must be isolated from the direct control of elected
officials. On the other hand, to avoid the threat of a freewheeling
national police force that is allowed to set its own agenda, the F.B.I.
must be responsive to appropriate political review and direction.
One beginning point might be to compel
the attorney general actually to manage the Justice Department and its
investigative agencies in accordance with laws and executive orders
going back to shortly after the Civil War. But other laws and traditions
have given the U.S. attorneys considerable independence, making the
Justice Department a scattershot "adhocracy" rather than a tightly
run, top-down bureaucracy. This absence of centralized management extends
to the F.B.I. One reason is that the bureau for many years has had an
independent power base on Capitol Hill. A second is that many attorneys
general have been reluctant to challenge the F.B.I. because they are
fearful of the dark secrets it collects and has used to embarrass or
blackmail their administrations. Another reason is that senior F.B.I.
officials are often a lot more experienced than their putative bosses
in Justice, who seldom hold office for more than two or three years.
Finally, attorneys general have failed to manage because they lack a
sufficiently large and expert staff to advise them on the bureau's performance.
Unfortunately, shoring up the attorney
general's power might create a whole new set of problems. With a truly
coordinated team of federal investigators and prosecutors, an ambitious
and unprincipled A.G. like Reagan's Edwin Meese 3d or Nixon's John Mitchell
or Harding's Harry Daugherty or Wilson's A. Mitchell Palmer could threaten
the very essence of democratic government by throwing the full weight
of the Justice Department against an administration's political enemies.
Given the potential hazards of sweeping
reforms, some more focused changes seem desirable and doable. They are
all designed to pierce the deep secrecy in which the F.B.I. has long
operated and to provide for greater public accountability.
Congress should pass legislation requiring the
Justice Department's inspector general to publish an annual audit answering
the following questions: How many matters did the F.B.I. refer to prosecutors
for prosecution? How many involved criminal violations of drug laws,
bank laws, environmental laws? How many were prosecuted? How many resulted
in a conviction? How many agents are working in each district? How have
the F.B.I. enforcement activities changed over time? The annual report
should document instances when the F.B.I. refuses to cooperate with
other agencies in matters of mutual concern.
The law requiring the inspector general to publish an annual audit should
also contain a provision eliminating Attorney General Reno's unpublished
November 1994 order prohibiting the inspector general from investigating
misconduct in the F.B.I. and the D.E.A.
Congress should require all U.S. attorneys to publish annual reports
describing federal enforcement effortsincluding those by the F.B.I.in
their districts. These would provide the press, public interest groups,
the academic community and lawyes with precise, easy-to-understand information
about the current priorities and practices of the investigative agencies
and the prosecutors. U.S. attorneys who fail to provide such information
should be disciplined.
All F.B.I. surveillance activities should be tightly
controlled. Almost forty years ago Congress approved a law regulating
wiretapping that prohibited all such surveillance except by government
enforcement agents who had obtained a judicial warrant. In addition,
the law required the Administrative Office of the Courts to publish
an annual report giving limited details about every tap and bug aimed
at criminal suspects. Congress should establish similar mechanisms to
govern the bureau's essentially unregulated investigative use of new
technologies, long-distance telephone records and marketing data. It
should mandate the publication of reports that describe how, when and
where these new-age tools are being used.
Congress should establish a judicial-warrant and
public-reporting requirement for F.B.I. undercover operations, particularly
those aimed at members of Congress, state legislators and judges. Undercover
operations are clearly much more intrusive than electronic surveillance.
If agents must obtain a court order to tap a phone, it is hard to understand
why a judicial warrant should not be required when they deploy an undercover
operator in an office. While few requests for wiretaps are refused,
it seems likely that the warrant requirement and the publication of
a summary report by the courts have worked to minimize abuses.
A major reason for the F.B.I.'s overall
poor performance and its abuses of power is that it has evaded the harsh
light of public scrutiny to which some other agencies of the federal
government (like the I.R.S.) have been subjected. Buoyed in a sea of
uninformed apathy, it plies an erratic course. Congress, the press,
academics, lawyers and ordinary citizens must be informed and awakened.
Greater public awareness of the bureau's shortcomings is an essential
first step in building a political consensus for real reforms. Curiously
enough, in his testimony before the House Judiciary Subcommittee on
Crime on June 5, Louis Freeh summed up why rigorous oversight is so
important. "We are potentially the most dangerous agency in the country,"
said the Director of the F.B.I.
Note: The links in this article lead to data published
by the Transactional Records Access Clearinghouse. Because of space
limitations this article could present only the highlights of the data
amassed by TRAC. Those interested in more information should check out
TRAC's Web site on the F.B.I. at: http://www.trac.syr.edu/tracfbi/.
The site contains some 23,000 pages of materials, including maps, graphs
and text. There are detailed tables on a variety of enforcement indicators,
along with staffing patterns, salaries, etc. for each F.B.I. district.
. . .
David Burnham, Transactional Records Access Clearinghouse