FBI OPERATIONS: THE 1990S TO 2003
RANDY WEAVER AND RUBY RIDGE
LEONARD PELTIER AND PINE RIDGE
THE WORLD TRADE CENTER BOMBING
RICHARD JEWELL: ATLANTA OLYMPIC PARK BOMBING
DAVID KORESH AND THE BRANCH DAVIDIAN CULT
THE WEN HO LEE SAGA
THE LEGACY OF FBI DIRECTOR LOUIS FREEH
TIMOTHY McVEIGH AND THE OKLAHOMA CITY BOMBING
FBI AGENT ROBERT HANNSEN
THE WEBSTER COMMISSION – THE MOST SCATHING REPORT ON THE FBI
THE JAMES BECK SHOOT-OUT IN CALIFORNIA
THE SENATE INVESTIGATES THE FBI
MISSING COMPUTERS AND WEAPONS
BUMBLING THE TIMOTHY McVEIGH CASE
FBI WARNINGS OF A TERRORIST ATTACK
IN BED WITH THE MOB
The FBI suffered a series of embarrassing blunders in the late 1990s and early 2000s.
**Six years after the 1993 Branch Davidian siege in Waco, FBI officials disclosed that they had found an internal memo and other documents referring to the government's use of military-style canisters. The discovery forced the FBI to retract repeated denials that agents had used pyrotechnics at the cult compound.
**Congressional leaders and defense attorneys accused the agency in 1999 of failing to turn over internal memos suggesting that Los Alamos nuclear scientist Wen Ho Lee had not passed on missile technology to the Chinese, as had been alleged. Most charges against Lee were later dropped amid evidence of bungling and misleading testimony by the FBI.
**The FBI Crime Laboratory was under intense scrutiny. Defense attorneys complained that they were routinely denied access to evidence that might have shown that their imprisoned clients were victimized by sloppy lab work involving 3,000 cases.
**In the 1963 bombing of a Birmingham, Alabama church that killed four Black girls, a former Ku Klux Klan member was finally convicted in May 2001. One piece of evidence was a tape- recorded admissions that the FBI had made of the defendant. Alabama's former attorney general charged that the FBI had suppressed the critical evidence for decades while three suspects remained free. (Los Angeles Times, May 12, 2001) Senator Shelby, chair of the Intelligence Committee, said, "From what I've learned recently, the FBI had information which they never furnished first to our former attorney general, Bill Baxley, when he reopened the bombing case" in the 1970s, "and only recently furnished it to the U.S. attorney's office in Birmingham." (New York Times, May 16, 2001)
**FBI agent Frederick Whitehurst pressured the FBI to change its Crime Lab for allegedly mishandling evidence in several key cases, including the World Trade Center and Oklahoma City bombings.
**Robert Hannsen, who allegedly duped the government with spying for Russia for 16 years, was formally charged in February 2001. He may have received $1.4 million from the Russians since 1985.
** According to the 2002 Webster commission, the FBI failed to properly restrict about 500 sensitive cases, violated a presidential order requiring financial disclosures from employees, and missed repeated warning signals that could have led to the arrest of Hanssen years earlier.
**In July 2001, the FBI found that 449 firearms and 184 laptop computers, including one containing classified data, were either missing or stolen. Three other computers were suspected of containing classified information. Of the missing or stolen firearms, at least one was recovered from local law enforcement authorities after they determined that it had been used in a crime. The missing and stolen weapons consisted mainly of handguns but also included rifles, shotguns, and submachine guns. About 66 of the missing firearms were lost when agents retired and apparently failed to return their bureau-issued handguns. About 91 of the lost weapons were training firearms that had been altered so they could no longer be fired. Four weapons had been issued to agents who died or were fired. (New York Times, July 18, 2001)
**Federal agents apparently still did not learn from the attacks on Randy Weaver's family at Ruby Ridge in 1992 and the Waco fiasco of 1993. In August 2001, ATF agents went to the door of James Beck in Santa Clarita, California to serve him with a warrant. A shoot-out ensued and tear gas set the house on fire, killing Beck.
**The ATF began investigating James Beck of Los Angeles County in June 2000. They had reason to believe that he was impersonating a police officer. Rather than waiting for him to leave his house and make an arrest, federal agents and Beck engaged in a shoot-out, and his house was burned to the ground.
**The Justice Department’s inspector general concluded that FBI incompetence -- and not computer problems, as the bureau maintained -- caused the mishandling of documents that led to the delay in Timothy McVeigh’s execution.
** At least two names listed in a July 10, 2001 FBI memo from its Phoenix office to the agency’s headquarters warned that Bin Laden could have been using United States flight schools to train terrorists and suggested a nationwide canvass for Middle Eastern aviation students. Additionally, Minneapolis FBI agents, investigating terror suspect Zacarias Moussaoui, claimed they were severely hampered by their superiors. Coleen Rowley, general counsel of the Minneapolis office, wrote in a May 2002 letter to FBI Director Robert Mueller that evidence gathered in the Moussaoui case, combined with a July 10 FBI warning about possible terrorists taking flight training in Arizona, should have prompted stronger suspicions at FBI headquarters that an attack was being planned.
**On May 28, 2002, a jury convicted former FBI agent John J. Connolly Jr. of four counts of corruption. He was found guilty of racketeering, bribery, and alerting New England mobsters to impending indictments.
It all started when Randy Weaver, a self-proclaimed white-supremacist, was approached by an informant of the Bureau of Alcohol, Tobacco and Firearms (BATF) to sell him sawed-off shotguns. After refusing several times, Weaver apparently relented and sold two shotguns to the informant in October of 1989. The shotguns, according to the FBI, were a mere 1/4" short of the legal barrel length. Weaver contended that they were perfectly legal at the time he sold them to the informant.
Weaver was given bogus information on when to appear in court on the weapons charges. Rather than correcting the error, the federal officials declared him a fugitive. However, a federal judge ruled after the siege at Ruby Ridge that the weapons charges amounted to entrapment by the FBI. Weaver had been sent erroneous information on when to appear for his court date -- in what appeared to be a deliberate attempt by federal authorities to initiate the confrontation. It would have been a simple matter to correct the error and give Weaver another chance to appear.
On August 21, 1992, deputy marshals botched a surveillance attempt after entering the Weaver property. They were armed with night vision devices and fully automatic "assault" weapons. Their orders were to shoot the family dog as the dog would make it difficult to continue their surveillance. The family dog sensed the intruders and was shot by one of the marshals.
Weaver's 14 year old son, Samuel, fired back with his small rifle, while his father was shooting his shotgun into the air, screaming for his son to return to the cabin. As Samuel turned to run, he was shot in the back as well as with a 9 millimeter slug that ripped through his arm nearly severing it from his body. It was then that Harris returned fire apparently killing the United States marshal. The FBI was called to the scene the next day.
On August 22, Lon Horiuchi, an FBI sharpshooter shot Weaver's wife, Vicki, as she stood with an infant in her arms in the doorway of her cabin. Horiuchi contended that he had been aiming at an armed man, later identified as Harris, who was threatening a helicopter. Horiuchi invoked the Fifth Amendment against self-incrimination in court.
Randy Weaver had originally gone outside his cabin to a shed which held the body of his now dead son Sammy. As he was opening the shed, Horiuchi shot Weaver in the right shoulder. Vicki Weaver went to the door while holding her 10-month baby and was shot in the arm as she held the door open for Harris. Randy and his daughter hurried to take cover. The second shot shattered the window hitting Vicki in the throat. The bullet passed through her face and wounded Harris. In the exchange of gunfire, Weaver's friend Kevin Harris killed Deputy United States Marshal William Degan .
Subsequent testimony at the Weaver trial about the days that followed the shooting of Vicki and Samuel revealed more information. It was disclosed that the FBI taunted Weaver with a loud speaker which was pointed towards his cabin. Agents shouted sayings such as "Good morning Mrs. Weaver; we're having pancakes; what are you having for breakfast?"
The government tried Randy Weaver and Harris on conspiracy and murder charges. They were acquitted on all counts. Weaver was convicted of failing to appear for trial on an earlier weapons charge and served a prison term.
While admitting no wrongdoing, the United States government settled suits filed by the Randy Weaver family over the killing of Samuel and Vicki by FBI agents. The payment settled claims filed by Weaver and his two daughters. The original claims totaled $200 million. The Justice Department released a statement on the day they agreed to the settlement that said in part: "The settlement reflects the loss to the Weaver children of their mother and brother. By entering into a settlement, the United States hopes to take a substantial step toward healing the wounds the incident inflicted." Weaver received more than $3 million in compensation from the government as part of a settlement of civil claims.
Not unexpectantly, someone had to take the fall for the shoot-out. E. Michael Kahoe, chief of the FBI's and violent crimes and major offenders section, pleaded guilty in October 1996 of obstruction of justice. He destroyed an FBI critique on Ruby Ridge and faced a maximum of 10 years in prison and $250,000 fine.
FBI agent Larry Potts along with five others, including the sharpshooter, were suspended from the bureau during the investigation by the Justice Department. Potts was promoted in early 1997 to second in command of the FBI under Director Louis Freeh. Then he was placed on two years leave with full pay. The disciplined Potts received was nothing more than a censure or reprimand. In addition, Potts was expected to retire from the agency in 1998.
After a two year investigation, the DOJ concluded that there was insufficient evidence to prosecute Potts or Deputy Director Dan Coulson. Both were alleged to have conspired to destroy records concerning how the 1992 siege and shootout were conducted. Additionally, Freeh came under scrutiny, since he elevated Potts to the second highest position in the FBI after the shoot-out. In addition the DOJ did not file charges against FBI sharpshooter Lon Horiuchi, who wounded Weaver and killed his wife while she stood at the cabin's door.
However, events turned for the worse in August 1997 when Denise Woodbury, district attorney of Boundary county where the shoot-out occurred, filed murder charges against the two men on opposite sides: Harris who killed the federal marshal and Horiuchi. County officials stated that the charges were brought in part because the authorities uncovered new evidence -- possibly new forensic evidence about the deadly bullet -- about the 11-day siege. The charges were filed just hours before the statute of limitations was set to expire on some of the potential charges. Under Idaho law, if convicted, they could face the death penalty. In the murder of Degan, Woodbury stated that Harris did not act in self-defense. She said the marshal was shot after he was chased by Harris and by Samuel Weaver, and was 600 feet off Weaver's property when the bullet hit him.
County prosecutors also filed charges of involuntary manslaughter, a felony that carries a maximum penalty of 10 years in prison, against Horiuchi. FBI Director Louis Freeh issued a statement condemning the decision to prosecute Horiuchi and expressing his "total support and confidence" in the agent.
At this juncture, the DOJ reevaluated their initial assessment of their investigation into the murders. In October 1997, DOJ attorneys urged Attorney General Reno to declare that Horiuchi acted in a necessary and proper way when he killed Vicki Weaver. This "necessary and proper" action stems from an 1890 Supreme Court decision which ordered the state of California to release a federal marshal who was accused of killing a suspect. Thus, this would provide grounds to move the case out of the Idaho court and into federal court where Horiuchi would stand a better chance for acquittal.
In January 1998, Idaho Judge Quentin Hardin ordered Horiuchi to stand trial, but in May 1998, District Court Judge Edward Lodge through out the charge. He cited that Horiuchi reasonably acted within the scope of his actions were "necessary and proper." In June 2000, a federal appeals court ruled that Horiuchi was immune from state prosecution in Idaho. A three-member panel of the 9th United States Circuit Court of Appeals upheld the dismissal, ruling that Horiuchi was acting in his official duty as a federal law enforcement officer. This ended the drawn out saga which eventually exonerated the FBI sharpshooter.
Solicitor General Seth Waxman, the federal government's top litigator, urged a court of appeals to block Idaho's state prosecution of Horiuchi. Waxman told the 11- judge panel that if an Idaho jury would be allowed to decide whether the agent acted reasonably in firing the shot that killed the wife of Weaver, it would cast a "chill on discretionary judgments officers have to make, according to the San Francisco Chronicle (December 22, 2000). Waxman contended that Horiuchi "made a very difficult crisis decision. Our nation needs officers to make those decisions" without fear of state prosecution except in "the most extreme cases, and this is not one."
However, former United States Attorney General Ramsey Clark, representing the state of Idaho, said in the Chronicle that law enforcement would suffer if the public believed federal agents using deadly force were above the law. Clark said, "We can't say the feds can do no wrong. You don't know the facts if you don't go to trial."
However, a year later, the same circuit court ruled that Horiuchi could be tried for manslaughter in the slaying of Weaver's wife. It meant that FBI officials would be hauled into court to defend long-ago decisions in the standoff. Judge Alex Kozinski wrote in the 6-5 decision, "When federal officers violate the Constitution, either through malice or excessive zeal, they can be held accountable for violating the state's criminal laws." (New York Times, June 5, 2001)
The appeals court agreed with attorney Ramsey Clark, who argued six months earlier that immunity could not be granted until there was a trial to determine whether Horiuchi acted unlawfully. It rejected arguments that it did not matter whether Weaver's death was the result of excessive force. Kozinski said, "When federal law enforcement agents carry out their responsibilities, they can cause destruction of property, loss of freedom, and as in this case, loss of life -- all which might violate the state's criminal laws." (New York Times, June 5, 2001)
But just weeks later, Boundary County prosecutor Brett Benson said he would not try Horiuchi. Benson said, "The Ruby Ridge incident was a tragedy that deeply affected and divided many of the citizens of this county and country. It is our hope that this decision will begin the healing process that is so long overdue." (Los Angeles Times, June 15, 2001) This ended the six-year-long struggle in the courts.
THE COVER-UP. A Senate subcommittee investigation later found that the FBI's Walsh report in 1994 was tilted to justify the shooting of Vicki Weaver. A Justice Department task force had already rejected Walsh's report. The task force concluded that the shot that killed Vicki Weaver was illegal and that FBI officials at headquarters must have known about the controversial rules.
A second internal FBI review was then assigned to agent Charles Mathews III, a friend of another target, then-Deputy Assistant Director Danny Coulson, who was Potts' deputy in the crisis. Mathews blamed on-site commander Eugene Glenn for the controversial rules of engagement, and maintained that they were crafted without the knowledge of FBI headquarters. The FBI's Office of Professional Responsibility (OPR) was not assigned to the case until Glenn, who received the stiffest punishment in May 1995 that he had been made a scapegoat. He said that Potts approved the rules of engagement and that Coulson knew of them.
The OPR investigators finished their work in June 1999, forwarding the report to the Justice Department's Office of Professional Responsibility that recommended the disciplinary actions. A Justice Department management division task force agreed. Towards the end of the Clinton administration, the Justice Department called for disciplinary action against FBI Freeh and three other FBI veterans. But the recommendations were secretly rejected in the closing days of the Clinton administration. The DOJ's Office of Professional Responsibility and a task force of the Justice Management Division "recommended in 1999 that two senior FBI executives be suspended and that the FBI director and one other FBI agent be censured." Justice Department officials also urged that disciplinary actions Freeh took in January 1995 against three other unnamed agents involved in Ruby Ridge be rescinded, because the punishments were not warranted.
In January 2001, Stephen Colgate, an assistant attorney general, denied a recommendation to censure Freeh for condoning the shortcomings of the FBI investigations. Later, in the summer of 2001, Colgate said that he stood by his decision. He said assistant FBI Director Michael DeFeo also favored no action.
But FBI agents denounced Colgate's refusal to impose sanctions on top FBI officials as "outrageous" and "a whitewash." In July 2001, the agents told the Senate Judiciary Committee that they were especially dismayed because senior FBI officials had subjected them to threats and retaliation for conducting a thorough investigation. The lead agent, John Roberts, testified that his wife, an FBI support employee, was hounded from her job in the Boston division and his attempts to win a promotion have been rejected 14 times.
Former FBI agent John Werner, who also testified at the July 18 hearing, said that he and agent Roberts found that many officials at FBI headquarters were not interviewed and that "very serious allegations of misconduct" had not been thoroughly explored. He added, "Our contention is that there was an incomplete investigation to protect certain higher- ups in the bureau." (Los Angeles Times, August 13, 2001)
LEONARD PELTIER AND PINE RIDGE
Though some seek to isolate what happened as a single incident, what happened was part of a continuing policy of genocide. It began with the invasion of Lakota land, and continued through the murderous campaign of conquest and suppression of the traditional Lakota people, the theft of the Black Hills, the gold and uranium mining, and the contamination of the rivers and ground water. The only resistance was found from the traditional people. When the government's genocidal policies of forced boarding schools, outlawing traditional religion and forced poverty did not work they resorted to the creation of a death squad.
The United States government created a death squad to carry out its policy. Hundreds of traditional people and American Indian Movement (AIM) members were murdered, wounded, and imprisoned. Faced with this onslaught, the traditional Lakota people asked AIM for help. An AIM camp was set up in the 1970s.
In June 1975, two FBI agents, Jack Coler and Ron Williams, allegedly followed a pickup truck driven by Jimmy Eagle onto the Pine Ridge Reservation in South Dakota. Members of AIM heard gun shots fired into a home from unmarked cars. To protect those inside, several AIM members returned gunfire, not knowing that there were FBI agents on their property. The two FBI agents and Joe Stuntz, a Lakota, were shot to death. Within hours, 175 more FBI agents, SWAT teams, and ATF agents arrived and ransacked the home of a Lakota.
Ironically, at this time Dick Wilson, head of the Bureau of Indian Affairs and an FBI agent himself, was in the process of signing away 12.5 percent of the Black Hills area, containing vast amounts of uranium, gas, and oil, to the Department of the Interior. FBI agents found no suspects in the vicinity. The death of Joe Stuntz was never investigated. However, the FBI arrested four members of AIM and charged them with the murder of the two agents. They were Robert Robideau, Dino Butler, Jimmy Eagle, and Leonard Peltier. The first two were found not guilty, and Jimmy Eagle was able to prove that he was not on the Pine Ridge reservation on the day of the shootout.
Two months after the shootout, the FBI arrested Anna Mae Aquash for the alleged possession of weapons. She was accused of the two killings, and FBI agent David Price told her that he would "see her dead within a year." She denied that she knew anything about the deaths of the two agents. An FBI report of her interrogation revealed that she stated, "you can either shoot me or throw me in jail, as those are the two choices I am taking." She was released and two months later she was found dead. FBI agent David Price denied that he had interrogated her two months before. An autopsy report attributed her death to exposure. A week later, she was buried in an unmarked grave. Anna Mae's family requested another autopsy. This time it was revealed that she had been shot in the forehead. The bullet hole and powder burns on the back of her neck indicated an execution type murder.
Since Anna Mae did not cooperate with the FBI, the agency needed another eyewitness. Leonard Peltier then took the full force of the government's attack. In 1976, he was extradited from Canada through false affidavits. His trial was taken away from the original judge and given to a judge who had a long history of racism against native Americans. The FBI was able to obtain the testimony of Myrtle Poor Bear who claimed that she had been Peltier's girlfriend and that on two occasions he had confessed to her. However, she later stated that this was false and that she was forced to testify by the FBI, using threats to take her and her daughter's lives. Also, at Peltier's trial, FBI agent Fred Coward testified that he had recognized Peltier from one-half mile away through a 2x7 power rifle scope. Defense experts stated that it was impossible to identify anyone from that distance.
Peltier was convicted in a show trial that included 12 white jurors, fabricated evidence, and coerced witnesses. His defense was not allowed to present the true story of the government's crimes against the Lakota people; and that on the day of the shootout several Lakotas only defended themselves from a murderous attack. He was sent to prison for two life-terms. The government hoped that this would be the end of this affair. Several appeals were later filed only to be turned down.
Elmer "Geronimo" Pratt, considered a political prisoner by Amnesty International, was a former leader of the Black Panthers in Southern California. In July 1972 he was framed for the $18 robbery-murder of Caroline Olsen, a Santa Monica school teacher. He was also accused of critically wounding her husband. At the time of Olsen's murder, Pratt claimed that he was 400 hundred miles away at a Black Panthers meeting in Oakland, California. Nevertheless, Pratt was subsequently convicted three years later and was given a life sentence by Superior Court Judge Everett Dickey.
Santa Monica police made little headway in their investigation of the cold blooded assault on the Olsens. Then a month after Caroline Olsen's murder, Panthers in Los Angeles themselves were left reeling by violence. Their charismatic leader, Alprentice "Bunchy" Carter, and his close aide, John Huggins, were killed Jan. 17, 1969 in a shootout on the UCLA campus. Carter's death left a void, and Julius C. "Julio" Butler, a 35-year-old former Los Angeles County sheriff's deputy turned Panther, saw himself as Carter's logical successor. But party leaders in Oakland tapped Pratt, 20, a decorated Vietnam veteran, who had been a Panther for only about four months. A bitter rivalry developed between Pratt and Butler. Pratt and other Panthers accused Butler of being a police informant, while Butler accused them of threatening his life. In May 1969, Butler began talking to the FBI. In August he was expelled from the party, according to former Panthers and FBI documents, although he claimed that he quit. Five days later, he gave a letter to Los Angeles Police (LAPD) Sergeant DuWayne Rice, naming Pratt as Caroline Olsen's killer.
Butler had written on the outside of the sealed envelope that it should only be opened in the event of his death. He called it his "insurance letter," and prosecutors at Pratt's trial argued that Butler never intended for it to be made public, likening the envelope's contents to a deathbed declaration. Information disclosed after Pratt's conviction, however, revealed that Butler's insurance letter was anything but a secret. FBI agents approached Rice on the street immediately after Butler gave him the sealed envelope. They demanded that the sergeant turn it over and referred to it as "evidence."
Rice refused, but later recalled that he wondered how the agents knew the envelope contained a letter since it was sealed, and how could they have known it was evidence.
A year later, in October 1970, Butler gave Rice permission to give the letter to his LAPD superiors. Butler explained to Rice that the FBI was "jamming" him and that he had told agents about the letter.
Butler's letter said Pratt had told him of a mission he was about to undertake on the night the Olsens were shot. Butler's letter became the tool prosecutors needed in December 1970 to convince a grand jury to indict Pratt for Caroline Olsen's murder. The LAPD's Criminal Conspiracy Section had taken over the investigation from Santa Monica police. Pratt, who was being held on other charges, would be tried in June 1972.
Butler's letter also implicated a "Tyrone," and police arrested William Tyrone Hutchinson in 1970. In a sworn statement given in 1991 to investigators working on Pratt's behalf, Hutchinson said he told police in 1970 that two men, Larry Hatter and Herbert Swilley, had bragged at a Panther office about being present at the tennis court when the Olsens were attacked. Hutchinson said he had known Swilley and Hatter since childhood and knew them to be Butler's friends. Officers told him not to discuss what he heard Swilley and Hatter say, "if he knew what was good for him," Hutchinson said.
Explaining why he had not come forward with the information earlier, Hutchinson said he took the officers' comments "to be a threat on my life, and I still do."
Pratt's defenders maintain that LAPD investigators did not pursue evidence pointing to other suspects because their primary objective was to "neutralize" Pratt and cripple the Panthers. Investigators who interviewed Hutchinson labeled him "uncooperative." Friends of Swilley and Hatter described both as heroin addicts who committed robberies to pay for drugs. Swilley was also known as a particularly violent killer. He was shot to death in 1972 during an argument. Hatter was found dead in 1978 on the Pacific Tennis Court grounds in Santa Monica. He apparently fell while attempting to enter or leave a building during a burglary, smashing his skull on a fence.
By law, the prosecution was required to provide this information to the defense which would have been able to cross-examine and impeach Butler. At the trial, Butler swore that Pratt had confessed the murder to him. Pratt denied making any such confession. In addition, defense attorneys and the jury did not know that Butler had been providing information to the FBI for 30 months prior to Pratt's conviction. On the witness stand, Butler denied that he had ever been an informant, but FBI documents released in 1979 disclosed that he had more than 30 documented contacts with agents prior to Pratt's trial.
At a later date two former Los Angeles police officers gave sworn statements that Butler was their informant. Furthermore, investigators from the Los Angeles County District Attorney's office discovered Butler's name in their own file of confidential informants. Still, Butler insisted that he had never been an informant for any law enforcement agency. He claimed that he was merely a "liaison" between law enforcement and the Black Panthers. He testified that he helped mediate disputes between the Panthers and the police. Butler stated under oath that Pratt and two other Panthers, Roger "Blue" Lewis and John "Long John" Washington, had threatened his life three years before the murder occurred. Butler contended that he left the Panthers after this threat. However, FBI reports indicated that he was expelled from the movement.
The prosecution said a .45-caliber pistol that it identified as the murder weapon was recovered from a house in a police raid in early 1969 in which 17 Panther members, including Pratt and Butler, were rounded up. Pratt, who was not inside the house, was not armed when he was arrested. The police also could not match the gun to the bullets that had killed Olsen.
In addition, the husband of the murder victim identified someone other than Pratt as the murderer. Also, a retired FBI agent further bolstered Pratt's case by maintaining that the FBI knew that he was in Oakland at the time of the murder, since he had been under surveillance. The phone at the Black Panthers' headquarters, where Pratt was staying, was wire-tapped by the FBI. Pratt contended that on the day of the murder, he had made several telephone calls to Los Angeles, calls that should have been noted in FBI files. Yet, the FBI reported that no such logs of telephone taps have been found.
Wesley Swearingen, a retired bureau agent who worked in the FBI's office in this period, claimed that he had never heard of surveillance logs being misplaced. Since his retirement from the bureau, Swearingen has said in sworn statements to Pratt's attorneys that "Pratt was framed."
When these facts were made public several years after Pratt's conviction, three of the original jurors stated that, had they known these facts, they would have voted for acquittal. The worst case scenario would have been a hung jury.
In 1997 Jeanne Rook Hamilton, who sat on the Pratt jury, stated: "We tried to be hung two times, but the judge said to go back and deliberate some more. But if we had known about Butler's background, there's no way Pratt would have been convicted. I never really liked Butler. He always reminded me of a used car salesman. He was slick."
Questions about the denial of due process led to investigations by Congress. Also Amnesty International investigated the case in 1980. Pratt filed a request for a new trial, and nearly 20 years later he was granted a hearing on evidence which his lawyers stated pointed to his innocence. Finally in June 1997, Pratt's hearing took place in Orange county -- not in Los Angeles county -- because Los Angeles Superior Court Judge Richard Kalustian, the deputy district attorney who prosecuted Pratt, had been a witness at his trial. However, they could not specifically place Pratt in the Bay Area on December 18, the day of the crime. What turned out to be one of the most damaging pieces of evidence against Pratt was introduced by the defense. Olsen had described his assailants as clean shaven, but several other witnesses -- including Butler -- said they always had seen Pratt with facial hair.
Pratt's lawyers introduced a Polaroid photograph, supposedly taken around Christmas 1968, showing Pratt with a goatee, which they argued he could not have grown in the week after the murder. "We took the word of Pratt's brother, Chuck Pratt, about this picture," Johnnie Cochran, one of Pratt's attorneys at his original trial, has said. "We didn't consider it really important. We thought it was clear to everybody that Pratt had a goatee, that he was not clean shaven as Mr. Olsen said." However, that photo was more important than Pratt's defense team could have imagined. Prosecutors called a Polaroid representative who testified that the picture could not have been taken in December 1968, because the film used in the photo was not manufactured until May 1969. That testimony was devastating. One juror said it made him begin to question other parts of the defense case. Another said jurors argued during deliberations that if Pratt had lied about the photo, he could have lied about other events. The jury deliberated for 10 days before it returned its guilty verdict.
The case was moved to Orange County after the entire Los Angeles Superior Court bench was recused because one of its members, Judge Richard Kalustian, who as a deputy district attorney prosecuted Pratt, was to be called as a witness. Dickey publicly branded Butler, the prosecution's key witness, a liar and ruled that Los Angeles County prosecutors had suppressed evidence favorable to Pratt's defense. In overturning Pratt's conviction, Dickey ruled that despite Butler's denials, he had been an FBI informant for at least three years before the trial. Dickey also ruled that Butler had been an informant for the LAPD and for the very agency that prosecuted Pratt--the Los Angeles County district attorney's office. Two years before, Butler's name was found in a file of confidential informants kept in the district attorney's office.
A detective in that office gave Butler $200 to buy a gun several months before Pratt's trial, Dickey noted, even though Butler was a convicted felon who could not legally possess a firearm. Several law enforcement officers knew Butler carried the gun, even though doing so was a felony punishable by up to 15 years in prison, Dickey said. Pratt's defense lawyers, Dickey said, were not given information needed to show Butler's motive for naming Pratt as Caroline Olsen's killer -- "the desire to extricate himself from his own legal difficulties" and ingratiate himself with prosecutors and Los Angeles law enforcement agencies "on an ongoing basis for his own personal benefit." Had Pratt's lawyers known of Butler's activities, they could have devastated his credibility on cross-examination, the judge said.
They questioned the district attorney's pursuit of a 30-year-old case against a defendant who already had spent 27 years behind bars on evidence compromised by such serious questions. The district attorney's office declined to comment about his 30 year pursuit of Pratt. Garcetti's appeal also argued that Butler did not testify falsely, that Butler's contacts with law enforcement before Pratt's trial did not point to Pratt's innocence, and that Pratt's conviction was based on overwhelming evidence. During Pratt's hearing seeking to overturn his conviction, Dickey interrupted a prosecutor to say from the bench that the evidence--even with Butler's testimony--was not "overwhelming" to the jury. He noted that the panel deliberated longer than it took to hear testimony in the trial, and that it had twice reported itself deadlocked.
In February 1999, a California appellate court unanimously upheld the judge's decision overturning Pratt's 1972 murder conviction. The appellate court cited questions Butler could have been asked during the trial if Pratt's defense attorneys had known of his activities. Quoting the oral argument of Mark Rosenbaum, one of Pratt's appellate lawyers, the appellate justices said: "Mr. Butler ... What about the D.A.'s office, the same office that vouched for you, that said you were not an informant, that told (Johnnie Cochran), He was not an informant. ... Well, didn't that same office consider you a confidential informant by listing you on an informant card? Didn't they give you $200 to buy a gun? Didn't they let you carry a gun around?"
The tribunal said, "Cross-examination has been described as the greatest legal engine ever invented for the discovery of the truth. Absent information on which that cross-examination could be based, Pratt was not in a position to effectively use this right in an attempt to undermine Butler's credibility."
Los Angeles District Attorney Garcetti said that he would accept the appellate courts decision. "We will not proceed further with this case, either by rehearing, appeal or retrial."
In July 2000, the Los Angeles City Council approved spending $2.75 million to settle the city's portion of Pratt's false imprisonment suit. Some council members argued before the 8-6 vote that the payout was too low for the Pratt, while others complained that the settlement was excessive. The $2.75 million was the city's portion of a $4.5 million settlement approved by a federal judge three months earlier. The other portion was paid by the FBI.
THE WORLD TRADE CENTER BOMBING
THE WORLD TRADE CENTER BOMBING
After the World Trade Center bombing of February 26, 1993, the FBI concocted misleading scientific reports and pressured two leading scientists to perjure their testimony in order to support its prosecution of the men accused of the bombing.
A key witness at the trial was FBI forensics expert Frederic Whitehurst. Earlier in 1974, he received a bachelor's degree in chemistry from East Carolina University. He received a doctorate in chemistry from Duke University in 1980 and then worked for two years as a research associate in chemistry at Texas A & M University before joining the FBI in 1982. Whitehurst complained about some FBI scientists soon after he was assigned to the laboratory. He trained as an examiner under Terry Rudolph who, he claimed, was very sloppy in his work habits. Whitehurst maintained that Rudolph kept his work area dirty and that he was indifferent to problems of contamination. In May 1989, Whitehurst spoke of his concerns about Rudolph's work to persons outside the lab during the trial in United States v. Psinakis. In that case, Whitehurst reexamined evidence that Rudolph in 1982 had determined contained traces of the explosive PETN. While the trial was under way, Whitehurst approached a defense expert and told him that he thought the identification of PETN on the evidence might have resulted from contamination due to Rudolph' s work habits. Whitehurst did not tell the prosecutor or Rudolph about his misgivings before he spoke with the defense expert.
After returning to the laboratory from the Psinakis trial, Whitehurst advised his unit chief and the laboratory director of his actions, because he was concerned that he may have violated FBI policy. In August 1989, the FBI's Office of Professional Responsibility (FBI OPR) began an investigation of Whitehurst's actions in the Psinakis trial. John Hicks, the Laboratory Director, wrote to FBI OPR in November 1989, recommending that Whitehurst receive an oral reprimand. Hicks later repeated this recommendation in the fall of 1990. On October 26, 1990, Whitehurst was suspended for one week without pay and placed on six months probation.
In the spring and summer of 1993, Whitehurst became involved in the World Trade Center bombing, making allegations that the FBI laboratory improperly some of the evidence. He contended that "Lynn Lasswell improperly labeled certain peaks on the output from an Ion Mobility Spectrometer (IMS) as indicative of the explosive urea nitrate; that Lasswell incorrectly concluded that urea nitrate could be identified with the use of mass spectrometry in a report approved by his Unit Chief Roger Martz; and that another examiner had pressured Whitehurst to remove qualifying language from his conclusions in a report." (House Judiciary Subcommittee investigation of the FBI on May 13, 1997)
In July 1993, Whitehurst sent Hicks memoranda describing these complaints and also asserting that Lasswell and Martz were not qualified to examine explosives. Whitehurst's allegations first came to the attention of the OIG in the fall of 1993 during an OIG audit of the laboratory. OIG auditors interviewed Whitehurst in October and December 1993. He described his complaints about other laboratory personnel in the World Trade Center investigation and Rudolph. He later wrote two memoranda to OIG auditor Dan Strohl in December 1993 that primarily concerned the World Trade Center case. (House Judiciary Subcommittee investigation of the FBI on May 13, 1997)
The first trial related to the bombing of the World Trade Center began in September 1993. In February 1994, Whitehurst's attorney wrote to the FBI describing various allegations regarding the laboratory and stating that an investigation should be conducted by a special counsel. On August 14, 1995, Whitehurst was called by the defense to testify in the trial of Sheik Omar Abdel-Rahman, who was charged with various co-defendants in the murder of two individuals. In testifying, Whitehurst claimed that he had been pressured to bias his interpretation of evidence in the bombing and that initial reports about the presence of urea nitrate were incorrect. Sewage pipes in the World Trade Center broke during the explosion and deposited 80 gallons of sewage throughout the wreckage. The Bureau of Alcohol, Tobacco and Firearms (ATF) asked Whitehurst to analyze some of this sewage, thinking it was an explosive substance. (Page 16,333 of the transcripts of the World Trade Center trial)
Whitehurst concluded that there was no sound scientific basis for the government's public claim that a urea nitrate bomb had been the source of the explosion. When he refused to change his reports to support the urea nitrate bomb theory, the FBI used an unqualified lab technician to testify that the so-called urea nitrate found at the scene was consistent with a urea nitrate bomb. (Washington Post, September 14, 1995)
Whitehurst submitted two blind test samples to the laboratory technician. Whitehurst had prepared one sample by urinating into a laboratory flask. The other was a sample of commercial grade fertilizer prepared by FBI Agent Burmeister. The lab technician found that both samples tested positive for urea nitrate, the explosive component of the infamous fertilizer bomb. In other words, Whitehurst proved that the laboratory technician, like the ATF, could not tell a bomb from sewage.
The FBI suspended Whitehurst without pay but agreed to pay him $1.5 million in exchange for his resignation. The settlement included legal fees, and the income and benefits Whitehurst would have earned in a lifelong FBI career.
On September 12, 1995, defense attorneys subpoenaed Whitehurst to testify in People v. O.J. Simpson involving the murders of Nicole Brown Simpson and Ronald Goldman. After Whitehurst's comments on several talk shows and in Newsweek (September 25, 1995), the FBI issued a press release which noted Whitehurst's concerns about forensic protocols and procedures employed in the FBI laboratory. The release stated that the FBI had vigorously investigated his concerns and was continuing to do so. It also said that the agency had reviewed more than 250 cases involving prior work in the laboratory and had found no evidence tampering, evidence fabrication, or failure to report exculpatory evidence. (House Judiciary Subcommittee investigation of the FBI on May 13, 1997)
On September 16 and 17, 1995, defense attorneys and prosecutors in the Simpson case interviewed Whitehurst regarding Martz. Two months earlier, in July 1995, Martz had testified in the Simpson trial that he had examined certain blood samples and concluded that they did not contain blood that had been preserved with the compound EDTA. The Simpson defense team considered calling Whitehurst to testify that Martz had a habit or custom of biasing test results to support the prosecution. But on September 20, 1995, Superior Court Judge Lance Ito ruled that Whitehurst would not be allowed to testify. Judge Ito noted that Whitehurst had no direct knowledge concerning the EDTA testing in the Simpson case and that whether Martz was qualified to conduct explosives residue testing in other cases had no direct bearing on the EDTA testing. (House Judiciary Subcommittee investigation of the FBI on May 13, 1997)
On September 18, 1995, the Justice Department announced that the OIG was investigating allegations by Whitehurst and that the OIG would select a panel of forensic scientists to assist in the investigation. The OIG asked both the FBI and Whitehurst to suggest names of possible outside experts. Whitehurst and FBI laboratory director Milton Ahlerich said that they welcomed an outside review of his allegations. Inspector General Michael Bromwich recommended raising the qualifications for its lab examiners and improving standards for analytic procedures and handling of evidence. Bromwich also recommended that the lab seek accreditation by the American Society of Crime Laboratory Directors (ASCLD). According to CNN.com (September 22, 1998), the Justice Department investigation of the lab centered on three of its 23 departments, including the explosives unit, which handled evidence from such high- profile cases as the World Trade Center and Oklahoma City bombings.
The ASCLD finally did accredit the FBI's forensics lab. in 1997 in an attempt by the FBI to gain or regain credibility. The next year, the FBI responded hired engineer- scientist Donald Kerrin to revamp the crime lab.
The FBI suspended Whitehurst without pay but agreed to pay him $1.5 million in exchange for his resignation. The settlement included legal fees, and the income and benefits Whitehurst would have earned in a lifelong FBI career.
RICHARD JEWELL: ATLANTA OLYMPIC PARK BOMBING
RICHARD JEWELL: ATLANTA OLYMPIC PARK BOMBING
From the moment he was considered a suspect in the Centennial Olympic Park bombing, federal and state law enforcement agents tried to trick him into admitting a role or giving them enough evidence to arrest him. One of Jewell's attorneys stated, "Their deceit, in terms of their tactics, was deplorable."
On July 30, 1996 three days after the bombing, Jewell was called into FBI offices to help make a training film about finding suspicious packages. This was a ploy to get Jewell to incriminate himself. During the interview, one FBI agent reminded Jewell he was making a training film, but added, "I want to go through it just like it's a real official interview." The agent then asked Jewell to sign a form waiving his rights to an attorney.
When this happened, Jewell became suspicious. Jewell stated: "If this is not what y'all are saying it's for then ...my lawyer probably needs to be here." One of the FBI agents then replied, "Is there something that is bothering you? ... It is my understanding that you are a hero."
Jewell called Atlanta lawyer G. Watson Bryant for help. Although Bryant was not at his office, he saw a front-page headline in The Atlanta Journal-Constitution identifying Jewell as a focus of the investigation. Bryant called his office and was told there was a message from Jewell. Using a caller-identification function on his phone, Bryant returned Jewell's call and an FBI receptionist answered.
Bryant said he initially was told Jewell was not there. He then called back again and told them about his caller identification function. Soon, Jewell was on the phone and Bryant told him to get out of there. FBI spokesman, Jay Spadafore, declined to comment on the interview or on allegations of misconduct.
Jewell did not know it then, but agents had surreptitiously tape-recorded him the night before the session at FBI headquarters. FBI agent Tim Attaway, who had befriended Jewell at Centennial Olympic Park before the bombing, called Jewell to ask about the bomb because he was not inside the park that night. Jewell invited the agent to his mother's home for dinner. They swapped police war stories, and then Jewell told him all about the night of the bombing. Attaway, wearing a microphone, said he has read a transcript of the conversation. For most of the transcript, Jewell talking on and on and Attaway saying "Uh-huh" or, "Really!"
Most of the contents of Jewell's apartment were confiscated by the FBI. After several months, they were returned but only with the stipulation that Jewell would not inform the media which would presumably be there to film the procedure. The investigation was eventually dropped, and the FBI refused to apologize.
THE BRANCH DAVIDIANS. The Branch Davidian cult was an offshoot of the Seventh Day Adventist Church (SDA). Like the SDA, Branch Davidians believe in an imminent Second Coming. The credibility of the Seventh Day Adventists was damaged in 1843 when they incorrectly predicted an apocalypse.
In the 1930s, an Seventh Day Adventist, Victor Houteff, claimed that he was God's new prophet for the church. His claims were immediately rejected by the church, and he was forced to leave. Houteff formed the "Davidian Seventh Day Adventists," also known as "The Shepherd's Rod." Houteff died in 1955, and his widow Florence Houteff took over the leadership. She soon was confronted by Ben Roden who claimed that God had chosen him. Just as the Seventh Day Adventists incorrectly predicted an apocalypse at century earlier, she too was devastated when her claim to a Second Coming failed in 1959. The cult was sued by many of their own members who had bought land close to the supposed site of the Visitation.
Roden then formed the Branch Davidian Seventh-day Adventists, recruiting a large number of Davidian Seventh Day Adventists to his cause. He introduced the observance of various Hebrew feast days, including Passover, Pentecost, the Day of Atonement and the Feast of Tabernacles. In 1978 Roden died, and his widow Lois became president of the cult. She claimed to have been shown by God that the Holy Spirit was the feminine aspect of the trinity.
Branch Davidians believe God is guiding his Church into more and more truth. They constantly expect "New Light" to be shown by God to his or her people. The prophets are the means by which God reveals New Light, but this is always by drawing out the real meaning of texts from the Bible. Branch Davidians believe God has two revelations to humanity -- one in Jesus Christ and one at the end of time. This corresponds to the sacrifices prescribed in the Old Testament. The identity of the lamb at the end of time could be established as the one who is able to explain the Seven Seals of Revelation. Later David Koresh claimed that he was able to explain the Seven Seals, and therefore he claimed that he was the second Messiah.
DAVID KORESH. Vernon Howell was born in 1960. Later in 1990 Howell changed his name to David Koresh. Koresh was the illegitimate son of a 15-year old mother, and he was later abused by a stepfather. He grew up as a Seventh Day Adventist but was evicted from the church in 1979 at the age of 19. Two years later, Koresh joined the Branch Davidians, and in 1983 he claimed that he had his first vision from God. This created a schism between him and Lois's son.
In 1985, Koresh declared himself the "Sinful Messiah," and the next year he made a pilgrimage to Jerusalem. Upon his return, Koresh challenged Branch Davidian leader George Roden as to who had the greater divine power. In 1986 Koresh persuaded Roden to exhume the body of a Davidian to see whether he could bring him or her back to life. Koresh then had Roden arrested for "corpse abuse," and subsequently he was able to assume the leadership of the cult. Once Koresh seized control, he focused on recruiting new cult members from Great Britain. He also made recruitment trips to Australia and Israel in the early 1990s.
TRAGEDY AT WACO. After a 51 day standoff in 1993, a decision was made on February 28 to raid the Branch Davidians' compound in Waco, Texas. The Bureau of Alcohol, Tobacco and Firearms (BATF) led that initial raid. The compound caught fire, and 76 -- including 25 children --- of the cultist members were killed.
Federal officials initially said that most of the tear gas used in the assault was liquid sprayed from the barrels of tank-like vehicles. But at the time -- and in the following six years -- federal officials continued to deny that pyrotechnic tear gas cannisters were used in the raid.
During the seven week standoff, Koresh continued to say that he was waiting for a message from God. He maintained that he would surrender after he received God's message. The FBI claimed that Koresh said he was coming out after the Passover and he lied. The FBI asked him, "Are you coming out before or after the Passover?" Koresh replied, "After, obviously." The FBI interpreted this as a promise to come out immediately afterwards. That is not what Koresh had said.
The FBI had no understanding of the Bible or Koresh's references. They did not know Koresh believed he was living in the "Fifth Seal" and waiting to hear from God. The FBI did not understand any of his Bible quotes which he used to justify his refusal to surrender. Koresh repeatly asked to speak to people who understood the Bible, but this was denied by the FBI.
Eventually, two Biblical scholars were able to communicate with Koresh and they argued for him to write out his explanation in a book after he received his message from God. They showed his was consistent with the "Fifth Seal." After weeks of waiting, Koresh claimed that he finally had a message from God and that he would soon surrender to the federal authorities. Cult members estimated he would have finished he book in 10 days. The manuscript and computer disks of what he had written survived the fire. However, the FBI never tried to comprehend what Koresh was doing and days later agents stormed the compound.
THE 1993 DOJ REPORT ON WACO. After the tragedy at Waco, an investigation was conducted by the Attorney General's office. At first Reno was praised for taking the lead in the probe and for claiming ultimate responsibility for what had occurred. However, the DOJ's final report was seen by many as a whitewash. The investigation was led by Edward S. G. Dennis Jr., and DOJ officials failed to criticize any DOJ or FBI officials. Dennis said, "I find there is no place in the evaluation for blame and no place for fault. ... Mistakes were made." However, Dennis did not say who made them.
The report concluded that the Davidians had set the fire, based on three things:
**An arson report analyzing where the blaze began.
**Infrared pictures taken from an airplane when the fire started that showed intense spots of heat erupting in different spots in the compound at almost the same time.
**The testimony of some surviving Davidians.
However, critics said that the probe was superficial and uncritical. They claimed that the report contradicted major elements of the DOJ's own account of what had occurred. There was only one dissent from the 1993 Justice review. That was by Dr. Alan Stone, a professor at the Harvard law and medical schools who was one of the experts retained by the DOJ. He concluded that the FBI had helped drive cult members to mass suicide and then misled officials in the subsequent review.
On the other hand, others were quite critical of the actions carried out by federal agents at Waco. They said that the decision to attack the compound was unreasonable. Secretary of the Treasury Lloyd Bentsen ordered a more vigorous review which was prepared under the direction of three outisde officials: Edwin Guthman, a former Justice official in the Kennedy Administration; Henry Ruth Jr., a former Watergate prosecutor and another outside expert in involved in the Treasury review; and Willie Williams, the Los Angeles police chief. This probe resulted in a major shakeup at BATF which included the removal of Stephen Higgins as director and the suspension of five other senior and lower level officials.
REPORTS OF A COVER-UP -- SIX YEARS LATER. On August 25, 1999 -- six years later -- Attorney General Reno angrily announced that she had been misled by federal officials. Reno said that she had been given repeated assurances by the FBI that the weapons used in the final assault on the Branch Davidian sect did not include incendiary devices that could have ignited the deadly fire. The attorney general then announced that the FBI acknowledged that at least two pyrotechnic canisters had been used in the raid. The M651 tear gas canisters, which the FBI acknowledged using during the assault, burn for about 30 seconds in the process of releasing their tear gas.
Reno said that "prior to April the 19th (1993), I received assurances that the gas and its means of use were not pyrotechnic. Since then, I have consistently been told that no pyrotechnic devices were used." The attorney general insisted that there was no evidence indicating that law enforcement authorities fired their weapons at the Davidians during the final assault. Federal officials always maintained that federal agents never fired their guns, but a newly discovered videotape of the siege shot by the Texas Department of Public Safety contained footage that some experts maintained appears to show machine gun fire being directed at the compound from an FBI helicopter on the morning of April 19.
The attorney general immediately announced that 40 FBI agents, led by the agency's inspector, would conduct the new inquiry. FBI spokesman John Collingwood said that the agents were to report "within weeks" on all aspects of the use of military-type tear gas and why it took so long to be admitted publicly.
DEFENDING THE RAID. Some investigators involved in the first inquiry 1993 said that these new allegations did not change their hypothesis that Koresh and his followers set the fire. In August 1999, allegations were made that federal agents botched the raid.
Senior FBI official Danny Coulson was a deputy assistant FBI director during the Waco siege. In August 1999 he acknowledged that the agency used the pyrotechnic devices. Coulson said, "I only found out a week ago that these rounds were fired. This is the truth and this is what happened. It's important for the American people to know." Coulson contended that the pyrotechnic gas rounds were not responsible for starting the fire. He estimated that they were fired "no later than 8 a.m." Coulson pointed to news videos from the time, claiming that they showed that the tear gas grenades landed near a storm shelter and emitted smoke -- but they did not ignite any part of the main building.
Arson investigators involved in the DOJ's initial review said the new evidence would not alter their conclusions on the fire. Thomas Hitchings, a member of the arson team, said, "It was started by the people inside the compound at the time. The stuff that was used outside the structure itself had no bearing on what happened inside the wooden structure." Another independent arson expert who said that the canisters were fired too far away and too early to have caused the fire.
In addition, Jeffrey Jamar, the FBI special agent in charge at the siege, said: "The important thing that people have to understand is that we weren't trying to hide anything." Jamar said that he did not remember being asked about the incendiary devices and that he thought probably no one considered them important because they were fired hours before the fire.
WAS THE DELTA FORCE INVOLVED? The Washington Post obtained military records were showed that three members of the Army's Delta Force, an anti-terrorist unit, watched the tank and tear gas assault by the Hostage Rescue Team. The documents also recounted that high ranking Army officers met with Reno on April 14, 1993, primarily to discuss the use of tear gas to end the standoff. When Reno asked the officers for their analysis, they told her -- according to the documents -- that "some people would panic" and that "mothers may run off and leave their infants."
The Pentagon always maintained that all military personnel were lawfully deployed at Waco and acted only as observers or advisers. Any direct military involvement in the Waco siege would have required a presidential waiver since it was a civilian law operation. Officials said that such an order was not sought because it was not necessary given the military's limited role.
In congressional hearings, DOD officials acknowledged providing equipment and personnel to both the BATF -- which conducted the initial raid on Koresh's compound -- and the FBI's Hostage Rescue Team which carried out the final assault. The officers, whose names were deleted from the papers, told Reno that "this was not a military operation and could not be assessed as such." They said that a military operation would have focused on capturing or killing Koresh.
Other memos showed that the military also provided FBI agents training in the use of 40 millimeter grenade launchers, but they indicated that the FBI did not request the training. The memos also indicated that the Pentagon did not supply "incendiaries such as flame-throwers." However, the DOD did provide technological support which included experimental surveillance robots and a television satellite signal jammer. The FBI used a secret Air Force jamming device to shut off the Davidians' access to television. The jammer was provided to assist the FBI in its psychological warfare operation against the cult.
THE INVESTIGATIONS. At hearings in 1993 and in 1995, officials stressed that all forms of tear gas used against the sect were not incendiary. Reno testified in 1993 that she "wanted and received assurances that the gas and its means of use were not pyrotechnic."
The House Government Reform and Oversight subcommittee submitted its final report on the Waco hearings in 1995. Robert Charles, chief counsel for the committee, said that the new information would have changed how Congress probed the incident. He said, "It's just a shock to hear from one of the key players that this fact -- which was obviously material to what we were investigating -- was not volunteered, or was deliberately withheld."
In August 1999, several members of Congress indicated that they were not be satisfied with the conclusions drawn in the 1993 DOJ report. Colorado film-maker Michael McNulty showed portions of his upcoming film, "Waco: A New Revelation," to some members of Congress. After seeing the new footage, Congressman Bob Barr of Georgia asked House Government Reform Committee Chairman Dan Burton to open an investigation. Burton said, "This new information requires a thorough investigation of whether the Justice Department has misled the American people and the Congress about what happened at Waco."
One month before evidence emerged that pyrotechnic cannisters were used in the raid, Texas officials opened an inquiry into the Waco fire after a documentary film producer and plaintiffs' attorneys raised questions about projectiles discovered on the scene. Other evidence -- including videotapes and photographs -- also were discovered in storage in Austin. One photograph showed a military 40 millimeter munition and several "flash bang" grenades found in the compound. Another piece of evidence was a videotape shot by the Texas Department of Public Safety that some experts say appeared to show machine gun fire directed at the compound's occupants from an FBI helicopter the morning of April 19. However, the FBI refuted this assertion, contending that no federal agents ever fired on the cult. The video was obtained by McNulty who helped produce the documentary "Waco: The Rules of Engagement.".
"Waco: A New Revelation," another documentary of which McNulty was the key researcher, revealed that FBI agents opened fire on the Davidian compound during the siege. McNulty discovered a potentially incendiary tear gas canister among thousands of pounds of evidence held in storage lockers. That discovery led FBI and Justice Department officials to recant their original contention that only non-incendiary tear gas was used. In November McNulty showed evidence that federal agents' automatic gunfire pinned down cult members, cutting off their only route of escape, while the compound was inflamed..
"Waco: A New Revelation" included interviews with former FBI, CIA, and military personnel as well as surviving Branch Davidians. They claimed that federal agents planted a powerful explosives charge to blast into a steel-reinforced concrete bunker where Branch Davidian women and children died. Video footage shot later showed a gaping hole in the bunker's roof. Steel rods that reinforced the concrete were bent inward, which the film's analysts say was caused by a blast that would have devastated people inside..
The documentary film also suggested that the FBI used bugging devices and knew that the Davidians had discussed setting the place aflame. Bureau officials have long denied they had advance knowledge of the cult members' intent, saying the transmissions were too garbled to understand. McNulty also pointed out that three hours before the blaze began, federal agents fired from a helicopter at a cult member who walked outside the compound. This was corroborated by Edward Allard, a former Army night vision lab supervisor hired as an expert in the Davidian survivors' wrongful-death lawsuit against the government, who analyzed the night-vision videotapes of the assault. Allard said, "In our opinion, it's clearly machine-gun fire from the helicopter." He said that the infrared surveillance videotape shot by an FBI plane showed two people crawling out from under a tank and firing dozens of rounds of machine-gun fire at the compound. Allard explained that the tape showed federal forces firing into the compound as it burned. According to the videotape, shots were fired into the dining room area, and that is where 15 Davidians with gunshot wounds were found.
At a higher level, once again the schism between Reno and FBI Director Freeh became pronounced over an investigation. Freeh told the attorney general that a new probe into the 51 day siege should be carried out by the FBI -- not by the DOJ. In essence, Freeh was saying that the FBI should investigate itself. FBI spokesman Tron Brekke announced that 40 agents were assigned to conduct such an investigation and "everyone in the bureau feels that we are perfectly capable of doing a complete, impartial, and thorough investigation." But Reno decided upon an independent inquiry. She appointed former Republican Senator John Danforth of Missouri to head an independent inquiry.
In the mean time, the House Government Reform Committee issued subpoenas for documents that related to the use of pyrotechnic tear gas canisters. The committee subpoenaed evidence which the Texas Rangers had accumulated from the Davidian compound. Burton's committee also subpoenaed an assistant United States attorney who prosecuted criminal cases against surviving Branch Davidians.
A Hostage Rescue Team member was taped and heard requesting and being granted permission by a commander to fire potentially flammable military tear gas more than four hours before the Branch Davidian compound burst into flames. However, a member of the Hostage Rescue Team argued that these cartridges had no effect.
Carlos Ghigliotti, an expert witness who testified before the House Government Reform Committee, concluded that the FBI fired shots on the day of the siege of the Branch Davidian compound. This testimony refuted the official FBI report which insisted that agents did not fire ant rounds. Ghigiliotti reached his conclusion after viewing ground level videotapes taken from several angles as well as the overhead thermal tape taken by the Nightstalker surveillance plane. His views corroborated those of a retired DOD thermal imaging analyst who stated two years earlier in 1997 that the infrared surveillance footage taken by an FBI plane offered definitive proof that FBI agents unleashed a large amount of automatic weapon fire on the compound.
Edward Allard, a supervisor at the Army's night vision laboratory in Virginia, also refuted the FBI's contention that they did not fire into the compound. Allard said that the infrared footage reflects "the government pouring machine-gun fire into the building and the Davidians firing here and there." The FBI maintained that the bright bursts on the infrared tape represented solar flashes on shards of glass or other debris around the Branch Davidian compound. But Allard said, "It's impossible for the Waco (forward-looking infrared) to detect solar radiation because the equipment they used is simply no sensitive enough to detect it."
FBI documents subpoenaed by the House panel revealed that the agency's supervisors requested to reward members of the Hostage Rescue Team at Waco. The 13 page memo recommended that the entire Hostage Rescue Team be awarded the Shield of Bravery with individual commendations to the agents who left their armored tanks during the assault. Another document proposed "substantial cash incentive rewards" for "exceptional and exemplary individual efforts." But there was no evidence which suggested that the agency approved the request. Former Deputy Assistant Director Danny Coulson, who oversaw the Hostage Rescue Team, said that neither medals no bonuses were given to his agents at Waco.
The records also outlined the rules under which FBI agents could operate during their assault on the compound. This included the conditions where agents could use deadly force -- if they approached "friendly positions" and failed to respond to agents' commands. The documents also acknowledged that on seven occasions agents threw flash-bang devices at Davidians who were outside in order to force them back inside the compound.
In mid-October, Congressional Republicans indicated that they wanted to terminate the hearings. House Majority Leader Dick Armey said, "I don't know that we will see any compelling need (for hearings). He said that Danworth was a competent independent prosecutor and that he alone should proceed with the investigation. Mark Souder, a Republican on the House panel, said, "There's Waco fatigue. ... There's a feeling that the political risk may be higher than the political gain of pursuing this subject at this time."
According to a Dallas Morning News article, Army Colonel Rodney Rawlings said that he heard Koresh give the order to set the fires through bug transmissions on speakers in the FBI Waco command center's monitoring room. Rawlings said that he heard Koresh's order and then the sound of gunshots within five minutes after the FBI began its assault on the compound. "I heard it. Anyone who says you couldn't at the time is being less than truthful."
However, FBI officials said transmissions from eavesdropping devices inside the compound were too garbled to allow agents to hear discussions. FBI officials testified to congressional committees that it was after the assault that they learned that the Davidians were spreading fuel and preparing to set a fire. They said that had they heard that people in the compound were preparing a fire, they would have stopped the assault.
FBI MEMOS SURFACE. The Dallas Morning News (February 28, 2000) that during the weeks of the standoff, dissent surfaced within the FBI over whether to use tear gas to end the ordeal. A memo dated March 23, 1993, was obtained by the newspaper. Danny Coulson, then deputy assistant FBI director. He wrote that he feared bureau officials in Waco were lobbying to use tear gas against the Davidians because they were frustrated, tired, and under pressure from the agency's hostage rescue team commander, Richard Rogers.
Coulson wrote, "Bottom line, I suggest that it is not time to ask the AG (attorney general) or the president for permission to assault the compound with gas. Progress is still being made." Coulson wrote that negotiations were being hurt by an inconsistent tactical strategy, including repeated punishment of sect members just when they appeared to be cooperating. Coulson also wrote, "In Waco, a lot of pressure (to use tear gas) is coming from Rogers. We had similar problems in Idaho with him (Randy Weaver) and he argued and convinced the SACs (local FBI special agents in charge) that Weaver would not come out. That proved to be wrong. I believe he is a significant part of the problem here."
THE SIMULATION. The FBI conducted a simulation -- complete with aircraft equipped with infrared cameras, soldiers firing weapons, and tanks -- on March 19, 2000, and immediately afterwards lawyers for the government and the Branch Davidians both claimed vindication. Michael Caddell, the chief lawyer for the Davidians, said that the test at Texas' Fort Hood military base "clearly demonstrates that there was government gunfire on the back of Mount Carmel on April 19, 1993." According to the New York Times, he said the demonstration proved what their side alleged all along: that federal operatives fired on the remote side of the Davidians' retreat as it burned.
The government maintained that the tests proved the exact opposite. United States Attorney Mike Bradford said that the test results bolstered the government's longstanding insistence that no shots were fired that day. Bradford said, "We hope that this will put to rest the notion that the FBI was shooting that day."
A handful of survivors and over 120 relatives of the deceased cultists brought a $675 lawsuit against the federal government, claiming that its reckless tactics led to the tragedy. In mid-July a federal jury found that the government bore no blame for the fire. The jury rejected the Davidians' claims across the board, finding that federal agents were liable for neither the initial shootout that started the standoff nor its deadly conclusion. United States Attorney Michael Bradford said, "It's time to put this to rest and move on."
In July, John Danworth, the special counsel appointed by Reno, exonerated federal agents. Coming on the heals of the jury verdict that vindicated the government, Danworth said in the Washington Post (July 22, 2000), that there was no "massive cover-up" by the government, but he did conclude that several federal lawyers and an FBI agent did fail to reveal that four hours before the compound caught fire. Danworth blamed the tragedy on "the Branch Davidians and their leader, David Koresh. This is not a close call." Freeh issued a statement saying that the FBI was gratified at the finding that there were no "ill motives" on the part of agents on the scene.
Danworth said that he was continuing to investigate the government officials who failed to disclose the use of the tear gas canisters. But he stressed that his investigation determined that the canisters were not fired at the compound and did not cause the blaze.
The FBI first became suspicious of Lee in 1982 while at Los Alamos National Laboratory. Lee repeatedly transferred top-secret computer files from a classified system at the lab into an insecure system beginning in 1983. The year before, the FBI sent Lee on an undercover mission to Lawrence Livermore National Laboratory near San Francisco after an FBI wiretap in 1982 overheard Lee telephone a Livermore scientist "who was rumored to be facing disciplinary action for delivering a scientific paper in Taiwan." At the time, Lee was considering delivering a paper in Taiwan. Lee was investigated for allegedly passing classified information to China that helped Beijing explode a neutron bomb in 1981. The scientist later was fired from Livermore but was never charged.
The FBI was suspicious that Lee passed classified data to China about America's neutron bomb. In that case, Lee had telephoned a fellow Taiwanese-born scientist at the Livermore lab near San Francisco in late 1982 and was overheard on an FBI wiretap. According to an American intelligence official, Lee's comments were "suspicious" but not conclusive. Consequently, the FBI administered a polygraph test to Lee in January 1984 as part of an investigation code-named Tiger Trap. The test sought to determine if he had contact with foreign intelligence services or had inappropriately shared classified information. Lee failed the test. His answers indicated deception on seven questions dealing with his contact with foreign intelligence services and whether he had inappropriately shared classified information.
Lee was given a chance to explain his answers to the FBI. He was retested and passed. The FBI then put a "cleared" notice on the final page of the 18 page polygraph report. The DOJ turned out the FBI's requests to obtain a wire tap on Lee's phone or a search warrant for his home.
In 1988, Congressional sources said that CIA agents were approached by a Chinese scientist who offered to spy for the United States. The scientist handed over a one page document suggesting that China had data on a highly advanced warhead design called the W-88, a miniaturized warhead originally developed at Los Alamos. Although the document did contain some classified data, it was primarily drawn up from declassified information and contained nothing proving that the Chinese actually acquired the W-88. The agents concluded the scientist was in fact a spy for the Chinese and rejected his offer. The Chinese had good reason to want the CIA to believe it had the W-88.
Nothing transpired for seven years. Then in 1995, Notra Trulock III, the DOE's director of intelligence, concluded that China had acquired critical information on the W-88 from the United States. Trulock's conclusion differed with that of the CIA which had found no such evidence. The same year, Lee attempted to delete files from his computer shortly before he was fired for security violations on March 8. The FBI believed that Lee's computer contained "dozens of non-classified codes" containing several hundred thousand lines of computer code.
In 1995 the CIA obtained a 1988 Chinese military document which described the weight, dimensions, explosive yield, and other significant details of six American nuclear warheads and the ballistic missiles that carry them. In addition hand-drawn sketches of the reentry vehicles that house the warheads were obtained by the CIA. However, officials said that the documents did not contain sufficient information for the Chinese government to copy or construct American-style nuclear weapons. American intelligence officials maintained that a chart in the Chinese-language document provides accurate data on America's W-56, W-67, W-72, W-78, W-87, and W-88 nuclear warheads. The first three warheads date back to the 1960s or 1970s, and were no longer deployed by the United States. However, the W-87, which sits on the MX "Peacekeeper" missile, and the Trident submarines' W-88, have been America's most sophisticated nuclear weapons. The W-78 is on Minuteman III missiles and is also considered highly accurate. The W-87 carries 10 independently targeted warheads inside its reentry vehicle, or nose cone. The W-88 has up to eight, and the W-78 has three. Together, the weapons are considered the backbone of America's nuclear arsenal.
In 1996, the DOJ denied an FBI request to examine Lee's office computer and warned that evidence obtained without proper permission would be inadmissible in court.
Trulock was the first to investigate Lee in the summer of 1996. Robert Vrooman, the former head of counterintelligence at the Los Alamos laboratory, and Charles Washington, the former acting head of intelligence at the Energy Department, both said that Trulock had acted out of a racist view that Lee was more inclined to spy for China because of his ancestry.
The first media story broke on March 6, 1998 when the New York Times headlines read , "China Stole Nuclear Secrets for Bombs, U.S. Aides Say." The story read in part that China had made "a leap in the development of nuclear weapons: the miniaturization of its bombs ... accelerated by the theft of American nuclear secrets from Los Alamos National Laboratory in New Mexico."
Lee was fired two months ago after failing another FBI polygraph test that focused, in part, on whether he had passed classified data on nuclear warheads while attending scientific conferences in Beijing in 1986 and 1988. DOE Secretary Bill Richardson ordered that Lee be fired from Los Alamos for failing to report contacts with officials from "sensitive" countries. Lee had not disclosed meeting with a Chinese scientist on his previous trip to China. Richardson also noted that Lee earlier had provided deceptive answers on a polygraph test regarding his possible mishandling of computer files. After Lee's dismissal, his house, office, and computer were all searched.
The FBI launched another probe into allegations that nuclear secrets had been passed on to China. Code-named Kindred Spirit and involving dozens of federal agents, the FBI's investigation confirmed that Chinese espionage of American nuclear warhead design secrets began in the 1980s and may have involved the compromise of highly classified computer programs and data from hundreds of underground nuclear tests and simulations.
Three weeks after Lee was fired, the FBI determined that Lee had used a large magnetic tape drive to improperly transfer nearly 2,000 classified computer files, containing computer programs and data derived from hundreds of underground nuclear weapon tests and simulations, into an internal lab computer network that is considered vulnerable to outsiders. Lee was not among those in the lab who was supposed to know how to transfer the files. He tried to delete the files from his computer two days after he failed the polygraph test but before he was fired. DOE officials said that the files were accessed at least once after they were moved, but it remains unclear whether anyone other than Lee was involved. The transfers began in 1983 and ended in 1995, when new lab computer regulations prevented such file transfers.
THE FBI'S ATTEMPTS TO SET UP LEE. In mid-1998, the FBI attempted to catch Lee in a "false flag" operation. Chinese-speaking FBI agents called Lee and tried to lure him to a meeting by pretending to be Chinese spies. He refused to go after the bait.
Then on March 7, 1999, Lee was interrogated by FBI agents the day before he was fired from his job at Los Alamos. According to the Washington Post (January 8, 2000), agents deliberately misled Lee into believing that he had failed a DOE polygraph test, as they pressed him to confess to passing nuclear weapons secrets to China. The interrogation came at a critical juncture in the FBI's attempt to determine how China might have obtained secrets about the design of the W-88 warhead. Throughout the interrogation, FBI agents pressed Lee to admit that he had passed secrets to Chinese scientists at his Beijing hotel in 1988. The agents suggested that unless he confessed, he would be arrested and possibly executed. One agent asked Lee, "Do you know who the Rosenbergs are? The Rosenbergs are the only people that never cooperated with the federal government in an espionage case. You know what happened to them? They electrocuted them, Wen Ho."
Lee insisted throughout the tape-recorded session that he was telling the truth, unaware that polygraph examiners actually had given him an extremely high score for honesty. Lee told the FBI agents, "I don't know why I fail. But I do know I have not done anything. ... I never give any classified information to Chinese people. I'm an honest person and I'm telling you all the truth, and you don't believe it."
The attempt by the FBI to coerce a confession from Lee demonstrated that the FBI was employing devious tactics. The polygraph examiners concluded that Lee was telling the truth when he said he had never passed classified information to China. But two months later, FBI polygraph examiners concluded that Lee was being deceptive when he was asked the same question.
CONGRESSIONAL INVESTIGATIONS LEAD TO A DEAD END. The first congressional probe into alleged mishandling of classified documents began with the Cox committee in the House. In 1998, the Cox committee, headed by the California Republican congressman, dug up evidence which indicated that Lee was a "chief suspect" of passing on classified information on the neutron bomb to the Chinese government. The Cox report was made public on May 24, 1999. It did not contain any evidence that Lee had committed a crime. In fact, the committee never mentioned Lee's name. Although the Cox report castigated the Clinton administration for failing to detect the passing of nuclear secrets at Los Alamos, the breach of national security began in the Carter administration and continued for 12 years in the Reagan-Bush years. But the real breach quite possibly came from the American corporations -- Hughes Electronics and Loral Space and Communications -- which dealt clandestinely for nearly a decade with the Chinese government.
Although not charged with a crime by the Justice Department, Lee's attorneys attempted to thwart an indictment. They filed a brief with the DOJ, arguing that Lee "used considerable care" to protect the security of secret nuclear codes when he transferred data to an unclassified computer system. According to the brief, Lee took care to safeguard data in his unclassified computer system by adding an extra level of password authority. An outsider would have had to break three password codes and then correctly guess the file name to gain access to any file. Lee's lawyers argued, equivalent to "a triple-bolted safe." Lee's attorneys maintained that the transfers were made for "a good reason." They argued that Lee was a victim of political hysteria and "a scapegoat for the scandalous lack of security" at Los Alamos.
The brief said that one reason Lee used the unclassified system was because of an incident in 1994 when a lab computer conversion project inadvertently erased "lines of code (Lee had) spent years developing." His attorneys claimed that the classified computer system could crash and wipe out other work made the transfer seem "a reasonable precaution" to Lee.
Lee's lawyers also contended that no American civilian had ever been criminally prosecuted for mishandling classified information, especially in the absence of evidence that it resulted in loss of that material. They also maintained that any prosecution of Lee would be the result of "xenophobia and political agendas" since Lee was of Chinese origin and born in Taiwan.
Lee was never charged with espionage. Even the New York Times, which was one of the leading newspapers to publish stories on Lee's alleged connections with China, concluded that Cox's congressional report "went beyond the evidence" to support its claims that the Chinese made a weapons breakthrough based on stolen American secrets. The Times said that there was inconclusive evidence to implicate Lee and that "the federal investigation focused too soon" on him. The Times said that "the lost secrets" had been available to "hundreds and perhaps thousands of individuals scattered throughout the nation's arms complex." Those secrets were also well known to Russia, France, and Britain who had been spending several years building the miniaturized nuclear warheads which China, too, presumably was attempting to develop.
Even though Cox emphasized that he did not single out Lee in his committee's investigation. But the reason why Lee's name was not used in the hearings was because he was still being investigated by the FBI. Lee was at the center of the charges Cox was pursuing. In fact, Trulock, who headed the original investigation in 1996, testified that Lee was responsible for the leaks to the Chinese government. But Trulock was not a weapons design scientist, Yet Cox and his colleagues were convinced by Trulock that Lee was responsible for passing on classified documents to Beijing.
Vrooman, the former head of counterintelligence at Los Alamos, testified that Lee's case was "built on thin air." Vrooman stated that there was not a "a shred of evidence" that linked Lee to the Chinese. Vrooman pointed out that a detailed description of the miniaturized W-88 warhead had been distributed to 548 addresses throughout the government, the National Guard, and private defense firms.
While the Cox committee conducted its investigation, the Senate Governmental Affairs Committee initiated its probe into alleged security breaches. This committee identified numerous flaws in the FBI's investigation, including the decision to target Lee as the only suspect.
While still investigating Lee, the FBI launched a probe of the Sandia and Lockheed labs -- not at Los Alamos -- where the W-88 was created. Not only did Lee have nothing to do with the sketch of the warhead, but the Associated Press reported that the FBI had known this fact for over a year. The existence of this exculpatory evidence regarding Lee was revealed in a letter to the Senate in November by Assistant FBI Director Neil Gallagher who heads up national security cases for the FBI. Gallagher wrote that the Albuquerque FBI office in charge of the investigation filed reports in November and December 1998 and again in January 1999 that "question the accuracy of certain representations and conclusions" about the original evidence against Lee. The Associated Press also reported access to a document from the FBI dated January 22, 1999, stating that "the FBI office in Albuquerque continues to insist" that Lee had nothing to do with the China spying case. FBI Director Freeh was briefed by agents in Albuquerque March 1999 and again said that "it did not appear" that Lee had anything to do with the theft of the warhead design.
Clinton's Foreign Intelligence Advisory Board met and publicly raised questions about the FBI's investigation of Lee. In June the board concluded that technical information about the W-88 "had been widely available within the U.S. nuclear weapons community," including the DOD, Energy Department, and numerous private contractors, as early as 1983. But only one investigation was initiated by the FBI and DOJ.
As a result of the mismanaged investigation by federal authorities, the Senate voted in September to approve a defense funding bill which included a plan to create a an agency within the Energy Department to run the nation's nuclear weapons complex. The reorganization plan created the National Nuclear Security Administration which established a chain of command, one where accountability would not be questioned and one where the line of authority led directly to the top. In September 1999 Reno and Freeh announced that they would start from the beginning and launch a new probe by investigating more than 500 potential suspects at nuclear power sites across the country.
Lee's lawyers sent letters to the Justice Department shortly before he was indicted, specifically offering to let him take a polygraph test to answer questions about the tapes. The offer was ignored. But the Energy Department soon decided to play hardball. On August 12, 1999, after Vrooman had retired from Los Alamos, Richardson issued reprimands to Vrooman and two colleagues at the lab for allegedly failing to assist the FBI in its pursuit of Chinese espionage. Vrooman was barred from being a consultant for the department for five years. Another counterintelligence official at the lab, who also was disciplined, quit.
Angry at what he viewed as a cover-up, Vrooman went public. His complaints about racial profiling and what he called a complete lack of evidence against Lee were the first indications that the case was seriously amiss.
THE GAO INVESTIGATION. In January 1999, a senior FBI official misled Congress about the uinvestigation. FBI Assistant Director Neil Gallagher told a Senate committee in June 1999 that he had "full confidence" in the initial investigation by the Department of Energy. But in a report sent Thursday to Congress, the GAO said Gallagher "had ample opportunity to know and should have known" about an FBI memo expressing "serious concerns" about the investigation. (Los Angeles Times, June 29, 2001)
That document was sent from the FBI's Albuquerque field office to headquarters on January 22, 1999 -- more than a month before Lee was fired from Los Alamos. The GAO's Office of Special Investigations said it was unable to determine whether Gallagher, who headed the FBI's National Security Division, intentionally misled the committee. (Los Angeles Times, June 29, 2001)
The report said, "Mr. Gallagher told us that he did not lie or purposely mislead the Congress, but that he inadvertently gave incomplete testimony." GAO investigators determined that a copy of the January 22 memo was included in a briefing book prepared for Gallagher prior to his Congressional testimony. The GAO report said that Gallagher acknowledged failing "to read the briefing book in its entirety." GAO investigators also reviewed a February 22 memo from Gallagher to the Justice Department in which he forwarded various documents in the Lee case, including the January 22 Albuquerque memo. Gallagher said in his rebuttal that the February 22 memo was written and initialed on his behalf by a subordinate. (Los Angeles Times, June 29, 2001)
According to the GAO report, Gallagher told GAO investigators that he first learned of the January 22 memo after his Senate testimony during a conversation in late June or early July 1999 with the agent in charge of the FBI's Albuquerque office. In his rebuttal, Gallagher said it was worth noting that the special agent also told GAO investigators that "it was clear to him that I was unaware of the January 22, 1999, document that he was talking about." (Los Angeles Times, June 29, 2001)
A NEW INVESTIGATION OF LEE. The FBI was stalled, unable to prove that Lee had passed on classified documents to China. Lee was never found in possession of the secret sketch of the W-88 nuclear warhead. In fact he never had access to the sketch. The Justice Department conceded in December that Lee and the Los Alamos lab never had access to the flawed design drawing of the weapon. Unable to link Lee with passing secrets to Beijing, the agency began its investigation all over in September. Three months later Lee was arrested on 59 unrelated counts of mishandling secret nuclear weapons computer programs and data at Los Alamos. At Lee's arraignment hearing in a Albuquerque federal court, prosecutors alleged for the first time that Lee stole computerized nuclear weapons development, testing and design secrets "sufficient to build a functional thermonuclear weapon."
Four years after the FBI had begun its investigation, a federal grand jury in New Mexico indicted Lee. He was charged with 59 counts of illegally removing highly classified design, construction, and testing data. The indictment charged that Lee had violated the Atomic Energy Act and Foreign Espionage Act, assembling collections of 19 computer files that contained nuclear weapons secrets; transferring classified information into unclassified computer files at the Los Alamos laboratory and downloading other material onto portable tapes; and mishandling nuclear data. The indictment said that seven of the tapes that Lee had made, containing critical nuclear secrets, could not be found.
Lee was charged under two sections of the United States Code. First, Title 42, Section 2275: Receipt of Restricted Data. Whoever, with intent to injure the United States or with intent to secure an advantage to any foreign nation, acquires, or attempts or conspires to acquire any document, writing, sketch, photograph, plan, model, instrument, appliance, note, or information involving or incorporating restricted data shall, upon conviction thereof, be punished by imprisonment for life, or by imprisonment for any term of years or a fine of not more than $20,000 or both.
Second, Section 2276. Tampering, Altering, Concealing and Removing Restricted Data Whoever, with intent to injure the United States or with intent to secure an advantage to any foreign nation, removes, conceals, tampers with, alters, mutilates, or destroys any document, writing, sketch, photograph, plan, model, instrument, appliance, or note involving or incorporating restricted data and used by any individual or person in connection with the production of special nuclear material, or research or development relating to atomic energy, conducted by the United States, or financed in whole or in part by federal funds, or conducted with the aid of special nuclear material, shall be punished by imprisonment for life, or by imprisonment for any term of years or a fine of not more than $20,000 or both.
The FBI claimed that it obtained evidence in Lee's house during its April 10 search, indicating that Lee had attempted to mislead one of his colleagues, allowing him to use his insecure office computer to download classified documents. The FBI spokesman said that the agency uncovered a record maintained by Lee in Chinese. Lee convinced his co-worker as early as 1993 that he was working on a personal resume. Lee then placed the classified material pertaining to nuclear weapons on magnetic tapes during the middle of the night and on weekends. According to the FBI, Lee had to certify to the computer that he was transferring unclassified materials. Four years later in 1997, the FBI asserted that Lee downloaded "Tape N," containing the most current information on nuclear weapons, from a classified computer and that he placed the data on an unclassified computer.
Prosecutors at the arraignment said that Lee had taken all of the Los Alamos files which related to nuclear weapons development over the last 50 years. If convicted of the most serious offenses in the indictment, removing classified nuclear weapons data, Lee could face a life sentence in prison.
Prosecutors also claimed that Lee spent more than 40 hours moving the files on nights and weekends in 1993 and 1994 and repeatedly deceived his colleagues about his intentions. Robert Messemer, the FBI agent in charge of the case, testified that Lee effectively had declassified the equivalent of more than 400,000 printed pages of highly classified computer data. Messemer also testified that the FBI found a notebook on April 10 while searching his house. Written in Chinese, it listed all the classified and unclassified files that Lee had moved. The notebook also indicated that Lee had put the data on at least 15 high-density portable data tapes. Six were later located in Lee's office, and two others were determined to contain unclassified data. The FBI maintained that Lee transferred the files in order to protect the data in case the main Los Alamos computer crashed, as well as to make his work easier.
The Los Angeles Times (March 7, 2000) reported that when Lee was fired in March 1999, the FBI doubted that he was involved in espionage. While the Senate was considering legislation to prevent classified leaks in the future, GOP Senator Arlen Specter said that FBI investigators were "thrown off" course in early 1999 after they were informed by the DOE that Lee had passed a polygraph examination in December 1998. Specter maintained that subsequent FBI reviews showed that he failed the test. However, Mark Holscher, Lee's lawyer, disputed Specter's contention that Lee failed the DOE polygraph, saying three DOE polygraphers had given Lee high passing scores.
In January 2000, federal prosecutors convinced District Judge James A. Parker in New Mexico that Lee was such a clear threat to national security that he should be jailed without bail. Lee was confined to a small cell and was not allowed to see visitors. While Lee awaited his November trial eleven months down the road, defense lawyers argued that several discrepancies had occurred during Lee's incarceration over a period of one year. Attorneys maintained that crucial parts of the government evidence against Lee were false or misleading. They continued to maintain that he was unjustifiably denied bail. And they showed that he actually had passed a polygraph test.
But Trulock continued to insist that a Chinese spy had looted Los Alamos and that Lee was the only suspect. Trulock found powerful allies among Republican congressman who were urged to use the Lee case to criticize the Clinton administration for lax security in the face of wholesale nuclear theft. Trulock had little respect from his colleagues, according to the Los Angeles Times (September 13, 2000). One of them, Charles E. Washington, who worked for Trulock as acting director of counterintelligence, said in a sworn affidavit filed on Lee's behalf that Trulock "acts vindictively and opportunistically, that he improperly uses security issues to punish and discredit others and that he has racist views toward minority groups." In a telephone interview with the Los Angeles Times, Washington said that he once was forced to call outside police to the Energy Department headquarters "due to Mr. Trulock's abusive behavior" during an argument. "He spat on me," he added.
Trulock became the subject of an investigation of whether he disclosed secrets in an unpublished article about the investigation, according to the New York Times (September 11, 2000). He claimed that the FBI bungled the investigation. FBI spokesman Steven Berry had no comment. At that time, Trulock had developed a list of 70 people at Los Alamos who had visited China at some point. That initial list of suspects was then narrowed to 12. Trulock said that the list was given to the FBI which rejected the other 11 suspects, including Lee's wife, Sylvia, who also worked at the laboratory, and focused on Lee. The list of 70 included people with no access to classified or weapons information and whose trips to China had no relationship to their work at the laboratory. One woman, for instance, who had no access to secrets, went to China with a high school band. Another person with no access to secrets went to China to participate in joint meteorological experiments. But an Anglo scientist involved in hydrodynamics, Lee's specialty, was involved in classified weapons work and went to China for a professional visit. Yet he was not included on the list of 12.
According to the Los Angeles Times, the FBI said that it generated its list of suspects using a "matrix," a set of criteria it could compare with a long list of suspects. Trulock insisted that the matrix was fabricated several years later as a ploy to persuade the Justice Department to provide a warrant to tap Lee's phones. That effort failed in 1997. Trulock wrote a letter to Congressman Porter Goss, Republican of Florida, the chairman of the Select Committee on Intelligence, on July 24, 2000. He stated, "At no time was a matrix developed and the final DOE report to the FBI contains no mention of a matrix."
Vrooman said that he investigated Lee a number of times and became convinced that, while he may have been naïve, he was not a spy. Nevertheless, he complained that while Lee did meet some of the criteria investigators were looking for many others who also did were left off the list of 12 suspects. Vrooman said that 15 people who did nuclear weapons research and visited China had been omitted from the list.
As a result of the witch-hunt, several careers were ruined. Robert Messemer, the FBI's chief investigator in the Lee case and a specialist in Chinese counterintelligence, was the government's key witness against Lee -- but instead he turned into their weakest link. During a mid-August bail hearing for Lee, Messemer admitted from the stand that his previous testimony was wrong when he said repeatedly that Lee had lied and sought to hide his actions when he copied the weapon files and created the tapes. One of Lee's colleagues had told the FBI that Lee had asked for password access to his computer to download some files or data. Messemer interviewed the scientist, Kuok-Mee Ling, at least six times and reviewed transcripts of his other statements. Messemer nonetheless had testified falsely to two judges on three occasions that Lee had lied to Ling by saying that he wanted to download a resume. Messemer also acknowledged that, despite his testimony earlier in December and despite a prosecution document filed with the court in June, the FBI had no evidence to show that Lee had applied for jobs at six academic or nuclear institutes overseas. Prosecutors had argued that Lee might have created the tapes to enhance his job prospects. As a result, the government had no solid evidence against Lee.
LEE APPEALS. In Lee's first appeal for bail, he was rejected by a magistrate and then by Judge Parker. And an appeals court rubber-stamped the judge's decision. In the mean time, Lee's family and friends offered a $2 million property bond to obtain his release. They said that more than a dozen homes and businesses would be forfeited to the federal government if Lee jumped bail. Lee's supporters, largely in the Asian-American community, raised more than $400,000 for his defense, and most of his defense lawyers did their work on a pro bono basis or at a heavily discounted rate.
During his incarceration in 2000, Lee continued to drum up support from a growing number of scientific, academic, civil rights and Asian American groups. More than 1,400 scientists signed a petition, for example, protesting the treatment that Lee faced since while he was jailed. The petition was circulated by the New York Academy of Sciences, the Committee of Concerned Scientists, the American Association for the Advancement of Science, and the American Physical Society.
Lee made his third bid for bail in August when he appeared for a pretrial hearing before District Court Judge James Parker. The judge ruled that the government needed to find a way to describe in open court the nuclear secrets he was accused of copying. But Parker also said that Lee's defense team had to show that he knew that at least some of the information he downloaded from the classified computer system had already been published.
Lee's lawyers called on John Richter, a former senior weapons designer and intelligence official at Los Alamos, to testify. As reported in the Los Angeles Times (August 19, 2000), he told Parker that perhaps 99 percent of the information Lee allegedly copied already was available in open literature and that it would not be useful to a foreign country. Additionally, Richter flatly denied that the material "represents a complete nuclear design capability," as government witnesses previously had claimed. And, asked whether national security would be at risk if a hostile power obtained the data, Richter replied, "I don't think that it would have any deleterious effect at all."
Lee's lawyers submitted affidavits before the hearing from two other senior Los Alamos officials that raised similar questions. Harold Agnew, a former director of the lab, and Walter Goad, a Los Alamos weapons expert, both said that the downloaded information was publicly available in various forms and that the government's presentation in December 1999 was aimed at intimidating Judge Parker.
Lee's lawyers also pointed out that FBI lead investigator Robert Messemer, the prosecution's lead witness, conceded that he "inadvertently" misled Judge Parker during the December 1999 hearing. Parker repeatedly cited Messemer's testimony in his ruling denying Lee bail. Messemer testified at the time that Lee had lied to a colleague by asking for password access to his computer to download a resume. But Messemer conceded that the scientist, Kuok-Mee Ling, repeatedly told the FBI that Lee had asked to download data files, not a resume. Messemer apologized to Parker, "At no time did I intentionally provide false testimony. I made a simple, inadvertent error."
But Lee's lawyers argued that Messemer misrepresented facts two other times during his testimony. Although Messemer had said that Lee had not disclosed a meeting with Chinese scientists during a lab-approved visit to Beijing in 1986, Lee's lawyers produced a document showing that Lee had reported the meeting after his return to Los Alamos. Messemer said that he had not read the report before he testified. He also acknowledged that the FBI had not questioned Lee about the contacts at the time. Messemer also testified in December 1999 that the FBI had found letters during a search of Lee's home, indicating that he had applied for jobs at six overseas institutes. But prosecutors later asserted that Lee may have copied the weapons secrets in an attempt to enhance his job prospects. Messemer said told Parker that the FBI had no evidence that the letters were ever mailed and that none of the institutes contacted by the FBI had a record of receiving them.
Misleading information about Lee's polygraph results again resurfaced. Messemer told Parker that Lee passed a 1999 polygraph exam administered by the Wackenhut Corporation security company, according to the Associated Press. But after Lee was fired from Los Alamos in March 1999, Energy Secretary Bill Richardson said that Lee had failed a polygraph test. Under questioning by defense lawyer Mark Holscher, Messemer said he was aware that Lee had scored among the highest possible scores for credibility on the test when Lee denied passing secrets, denied contacting anyone for the purpose of espionage, and denied intending to harm the United States.
Messemer also testified that during an FBI interrogation on March 7, 1999, agents warned Lee that he might be given the death penalty for stealing nuclear secrets. They repeatedly compared his case to executed Soviet spies Julius and Ethel Rosenberg. Until that interview, Messemer said, Lee had voluntarily submitted to 20 meetings with FBI agents without a lawyer. He since declined to meet with the FBI.
LEE'S PLEA BARGAINAfter three days of the pretrial hearing, Parker ordered Lee's release on $1 million bail week. This ended a nine month incarceration in solitary confinement where Lee was barred from receiving visitors and telephone calls in his tiny cell. He was placed under house arrest at his home in White Rock, New Mexico where he prepared for his trial in November. In granting bail, Parker did not specifically address the merits of the charges against Lee. But he reached his decision even before reviewing all of the material supplied during a three day pretrial hearing. Quoted in the New York Times (August 25, 2000), Parker said, "Enough of the transcript of the most recent hearing has been prepared and reviewed by me to permit the announcement of a ruling at this time. I conclude that there now is a combination of conditions that will reasonably assure the appearance of Dr. Lee as required and the safety of the community and the nation."
The American Civil Liberties Union, Asian American groups, and other scientific organizations voiced complaints since Lee was jailed under unusually harsh conditions in December. Then on August 31, in an unprecedented move, the three most prestigious scientific academies in the United States publicly protested the government's incarceration of Lee. They released a statement, complaining that Lee appeared to be a victim of unjust treatment and that his case reflected poorly on the American justice system. The letter was sent by the presidents of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine to Attorney General Reno.
In their letter, the presidents of the academies did not claim that Lee was innocent. According to the New York Times (September 1, 2000), they argued that "inaccurate and detrimental testimony by government officials resulted in Dr. Lee needlessly spending eight months in prison under harsh and questionable conditions of confinement. ... We also urge that those responsible for any injustice that he has suffered be held accountable. Even more importantly, perhaps, we urge that safeguards be put in place to ensure that, in future, others do not suffer the same plight." The two-page letter was signed by Bruce Alberts, president of the National Academy of Sciences, William Wulf, president of the National Academy of Engineering, and Kenneth I. Shine, president of the Institute of Medicine.
Judge Parker ordered the scientist's release and issued a statement which said that he was no longer convinced that Lee had downloaded some of the country's most sensitive nuclear secrets. Quoted in the Los Angeles Times (September 5, 2000), Judge Parker wrote, "What the government described in December 1999 as the ‘crown jewels' of the United States nuclear weapons program no longer is so clearly deserving of that label."
Judge Parker was even more critical of the prosecution, saying that it "failed, at this time, to meet its burden." He said that he remained "seriously concerned" about some of Lee's actions, such as failing to tell Los Alamos officials that senior Chinese weapon scientists hoped to obtain classified information during a secret meeting in Lee's Beijing hotel room in 1988. However, the judge pointed to testimony from an FBI agent who acknowledged that several pieces of key testimony he gave during Lee's first bail hearing were incorrect. Judge Parker also said that the conditions he required for Lee's release would strictly limit his movements and would prevent him from passing on several of the computer tapes the government says were missing.
However, on September 1, a federal appeals court blocked Judge Parker's decision and issued an emergency to delay Lee's release on $1 million bail. The 10th Circuit Court of Appeals in Denver ordered the stay before the United States attorney filed a formal appeal to prevent Lee from going home.
But nine days later, the case against Lee came to an abrupt end when the government agreed to drop virtually its entire case against him. In return, Lee agreed to plead guilty to a single charge that he improperly downloaded classified material onto an unsecured computer. Lee pled guilty to one felony count, the 57th of the original 59 count indictment, in which he admitted to improperly gathering and retaining national security data. The other counts, which could have brought him a life sentence, were dropped. The sentence given Lee was time- served -- nine months.
The plea agreement was worked out after the government suffered a string of courtroom defeats; after an FBI agent recanted testimony in which he had said that Lee had engaged in deceptive behavior; and as the government faced a deadline to hand over thousands of pages of classified documents about why it singled out Lee after an investigation that went back to 1995.
Prosecutors said that they were satisfied by the plea bargain, presumably since it turned into a highly embarrassing case. They said that they were motivated to accept the agreement because they feared that Judge Parker would have forced the government to disclose in open court highly classified information about the country's nuclear weapons program. Officials claimed that the plea bargain negotiations began before the judge ordered Lee released on bail.
According to the New York Times (September 11, 2000), one government official said, "We got a felony conviction. He's admitted to what he said he didn't do. Finding out what happened to the tapes was a lot more important than putting a 60-year-old man in prison for the rest of his life." Lee's lawyers had always said that he had destroyed the seven missing tapes.
But Lee was unable to walk free immediately. A last minute dispute between the government and defense lawyers over the plea agreement delayed his release. Finally, he was released two days later.
Earlier, Lee had filed a civil suit against the government, charging that the Energy Department violated his rights to privacy by publicly releasing incriminating evidence against him in an early stage of the investigation, such as details about his employment and travel and the results of a polygraph test. With the criminal case against Lee over, the civil litigation against the federal government could proceed.
Judge Parker harshly criticized the Justice Department for its tactics in the case and apologized personally to Lee. But Reno expressed no regrets over the government's tactics even though Judge Parker said that Lee deserved an apology for harsh treatment that had "embarrassed this entire nation." The attorney general said in the New York Times (September 13, 2000), "I think Dr. Lee had the opportunity from the beginning to resolve this matter and he chose not to and I think he must look to himself." In a meeting with reporters, Reno said she wished that Lee had agreed earlier to provide investigators with information about seven missing computer tapes onto which he transferred nuclear secrets.
In a stinging rebuke of the DOJ and FBI, Clinton expressed his concerns about the government's actions in the case, according to the New York Times (September 15, 2000). In comments to reporters, Clinton said he had long questioned whether prosecutors had adequate grounds to keep Lee in jail for nine months awaiting trial. The president said, "I always had reservations about the claims that were being made denying him bail. So the whole thing was quite troubling to me and I think it's very difficult to reconcile the two positions that one day he's a terrible risk to the national security and the next day they're making a plea agreement for an offense far more modest than what had been alleged. I don't think you can justify in retrospect keeping a person in jail without bail when you're prepared to make that kind of agreement It just can't be justified, and so I, too, am quite troubled by it."
Justice Department officials castigated Judge Parker after he severely rebuked the government's handling of the case. James Robinson, head of the Justice Department's criminal division, said that the judge's criticism was misguided. According to the Washington Post (September 28, 2000), Norman Bay, the United States attorney for New Mexico, said that Judge Parker was unaware of plea negotiations in which Lee's lawyers had threatened to introduce American nuclear secrets in the courtroom, a tactic known as "graymail."
Bay told a Senate Judiciary Committee task force, "I've got great respect for Judge Parker, but don't know if he was aware of all of the discussions that had occurred between the parties. When we were sitting in the courtroom at sentencing, his comments came as a complete surprise to us. ... To be honest with you, I was very much blindsided by the judge's comments."
As part of the plea bargaining agreement in December, Lee told the FBI during 10 days of closed-door questioning under oath that he was a paid consultant in the late 1980s and early 1990s to a Taiwanese businessman. Lee testified that the businessman later helped arrange for him to spend four weeks at Taiwan's leading military research center, according to the San Francisco Chronicle (December 24 and 28, 2000). That same businessman also paid for Lee's air travel to Taiwan in December 1998, when Lee made a second, shorter visit to the military research center, the Chung Shan Institute of Science and Technology, the sources said.
Chung Shan allegedly was involved in past efforts by Taiwan to develop nuclear weapons. Lee told investigators that while at Chung Shan for four weeks in April and May 1998, he gave talks and "consulted on matters related to unclassified computer codes" for which he received "a modest fee of less than $5,000," according to the Chronicle. But he failed to report the payment from Chung Shan to officials at Los Alamos National Laboratory in 1998, as lab rules required, according to government sources.
THE INVESTIGATION OF THE JUSTICE DEPARTMENT. The final version of an Energy Department review concluded that Lee, who had visited China, was "the only individual identified during this inquiry who had the opportunity, motivation, and legitimate access" to pass the nuclear technology along to the Chinese.
The Bellows report, which was released by the Justice Department, found that one of the early and critical missteps in the Lee case came in 1995, after an Energy Department working group examined how the Chinese had gained sensitive W-88 nuclear warhead technology. While the working group identified a range of options, its findings were mischaracterized in follow-up reports and were never passed on to the FBI as it began examining possible suspects, the report said.
In August 2001, another investigation by the Justice Department concluded that it had "investigated the wrong crime" for nearly three years. Furthermore, the report said that the DOJ had been too aggressive on Lee as the prime suspect. Investigators ignored evidence that might have led them in other directions, mischaracterized their findings, and relied on scientific analysts with suspect credentials. The startling collection of blunders meant that investigators may never know how -- or even whether -- the Chinese government stole technology on the design of American nuclear warheads.
Even though it was the most critical report, it still rejected one of the central claims from Lee's supporters -- that he was unfairly branded a spy because he was Asian- American. Assistant United States Attorney Randy Bellows, who wrote the report last year at the request of then-Attorney. General Janet Reno, said that there was "no evidence of racial bias" in the investigation. He said that the plan to "identify" Chinese-Americans was never carried out. Moreover, the memo "was simply acknowledging the fact that (China) specifically targeted ethnic Chinese for espionage purposes," a viewpoint backed up by veteran counterintelligence agents.
The report suggested that investigators ignored a range of other possibilities, including that the Chinese developed the technology on their own or that defense contractors or Energy Department employees outside the Los Alamos lab were responsible for the breach. By mischaracterizing what it had found, the Energy Department "compromised and undermined the FBI's own investigative efforts. This is not to say that Wen Ho Lee did not warrant investigation. ... He did. Rather, it is to say that the mischaracterization of the (foundation of the Energy Department review) caused the FBI to ignore and exclude numerous other possible subjects and numerous other possible venues" for leaks. Investigators failed to search numerous laboratory vaults containing hundreds of thousands of pages of potentially useful documents, the report found. They relied on analysts whom they thought to be "scientific experts" but who in fact lacked fundamental knowledge about nuclear warheads. And they suffered a "terrible misunderstanding" during one interview that led them to erroneously exclude an entire lab, apparently Lawrence Livermore, from suspicion as a possible source of the technology breach.
Finally, the report said that the Energy Department investigators did not begin their initial probe looking to prove that Lee was a spy, but that suspicion became a "self- fulfilling prophecy. Given the review's) slap-dash quality, its flawed rationales, its complete mischaracterization of the predicate, and its queer mash of intense review of some pertinent records and complete ignorance of other venues of (security) compromise, once Wen Ho Lee was ‘tagged' with the patina of suspicion, the (review) was all but over. He would be ‘it.' " .. Had either the FBI or DOE done what it should have done, the FBI could have been investigating in the year 1996 what it is now investigating in the year 2000." (Los Angeles Times, August 14, 2001)
REVAMPING FBI PROCEDURES. As a result of the botched Lee case, the Justice Department revamped its procedures on national security investigations. In previous cases, the FBI was too slow to inform prosecutors about intelligence probes. Seeking to plug holes in existing policy, Deputy Attorney General Larry Thompson informed the FBI that he considered it "mandatory" for the bureau to notify criminal prosecutors when they found any evidence of criminal activity in national security investigations.
In addition, the General Accounting Office identified "serious problems" in the disclosure and coordination of such information, hindering the potential prosecution of spies, terrorists, and others who threatened national security. The findings reflected an on-going feud between FBI investigators and Justice Department lawyers over their priorities in national security cases. The primary mission of intelligence agents examining terrorist and espionage threats was to protect national security and avoiding disaster. But prosecutors wanted to ensure that there was enough usable evidence collected in the course of these investigations to convict the wrongdoers.
The report by the GAO cited poor coordination in two high-profile investigations: the FBI's investigation of the Lee case and its probe into allegations that the Chinese sought to buy influence in the 1996 presidential election by bankrolling illegal campaign contributions. While the GAO report did not discuss specific lapses in these two cases, it found that the FBI did not adequately keep prosecutors at the Justice Department informed about undercover operations, interviews, or even the existence of such national security cases. The report concluded that reforms instituted by Attorney General Reno in 1995 to improve coordination had actually made things worse.
The FBI, working with Justice Department lawyers outside the criminal division, had been reluctant to turn over intelligence information to prosecutors for fear that the courts would find such coordination to be improper under a 1978 law restricting the way foreign intelligence investigations can be conducted, the report concludes. The result, the GAO said, was an "overly cautious" reading of the law. (New York Times, August 16, 2001)
LEE WINS IN COURT. In June 2006, the federal government agreed to pay Lee $1.65 million for violation of his privacy rights. He received $895,000 from the government for legal fees and taxes related to his lawsuit accusing the Justice Department and Energy Department of violating his rights under the Privacy Act by leaking information that he was under investigation for suspected espionage. (Washington Post, June 2, 2006)
In addition, five news organizations -- the Post, the New York Times, the Los Angeles Times, the Associated Press and ABC News -- agreed to pay Lee a total of $750,000 as part of the settlement. (Washington Post, June 2, 2006)
As the twentieth century came to a close, the credibility of the FBI was at an all-time low since the days of J. Edgar Hoover. Louis Freeh was appointed the agency's director by Clinton in 1993. Freeh's tenure was highlighted by sparring with the White House and the Justice Department headed by Attorney General Janet Reno, as interior problems within the agency itself. Despite his dismal record with the bureau, Freeh refused to step down, presumably because he wanted the next president and not Clinton to appoint his successor.
Freeh was castigated for mishandling a number of investigations.
--The FBI botched the probe of Wen Ho Lee whom the FBI alleged had passed on nuclear warhead secrets, including that of the neutron bomb, to the Chinese government. Freeh insisted that the probe was proceeding at a rapid pace, and he criticized the Justice Department for failing to give his agency a wiretap. As it turned out, the FBI failed to disclose their own misgivings in the investigation. The bureau failed to investigate any other scientists with links to the Los Alamos laboratories. But apparently Freeh was never told by his deputies about these lapses. Lee was never prosecuted by the agency, and the investigation slowly disappeared.
--Freeh was also accused of cover-ups in the Ruby Ridge shoot-out when, after several days of surrounding his Idaho property, an FBI sharpshooter killed Randy Weaver's wife and his son. After an internal investigation, Freeh only mildly criticized his top agents who oversaw the assault on the Weavers. In fact three years later, Freeh promoted Larry Potts, one of his top deputies who was at Ruby Ridge, to be his assistant director. A subsequent investigation by the Justice Department indicated that Potts had been involved in a cover-up at Ruby Ridge. Potts was suspended and two years later he resigned.
--The FBI arrested Richard Jewell, the wrong suspect, in the Atlantic Olympic bombing. Much of his personal property was confiscated, and he was interrogated on several occasions until the FBI finally dropped the case against him.
--Freeh's agency was accused of hiding tapes which showed that used incendiary devices in the assault of the Branch Davidian compound in Waco. Freeh proposed to Reno that the FBI investigate itself. But that suggestion was immediately dropped. A senior DOJ official said that the FBI could never investigate itself when as many as 100 agents may have known about the incendiary devices and not reported anything to the Justice Department or Congress.
Criticism of Freeh reached a peak in the bumbling of the Timothy McVeigh case.
TIMOTHY McVEIGH AND THE OKLAHOMA CITY BOMBING
TIMOTHY McVEIGH AND THE OKLAHOMA CITY BOMBING
On May 10, 2001 -- just five days before Timothy McVeigh was to be executed -- it was revealed that the FBI had been engaged in more shoddy field work. Over 3,000 pages of documents in the McVeigh case had never been turned over to the defense attorneys as required under an agreement among the lawyers. Six years earlier, McVeigh was arrested in 1995 for the bombing of the federal building in Oklahoma City, killing 168 people. For over two years after his 1997 conviction, McVeigh pursued legal avenues to delay his execution.
Finally in December 2000, he decided to end the appeal of his death sentence and has asked a federal judge to have him executed within four months. McVeigh told Federal District Court Judge Richard Matsch, "I do not wish to pursue any further appeals in this case. This decision to forgo appeal is done against the advice of my lawyers." (Los Angeles Times, December 13, 2000) McVeigh asked Judge Matsch to set an execution date, or order the director of the federal Bureau of Prisons to do so, and asked that his execution take place within 120 days. He added that he did not waive his right "to petition for executive clemency." His execution date was set for May 16 in Terre Haute, Indiana, the only federal penitentiary designated to carry out death sentences.
Five days before he was to be administered a lethal drug, the Justice Department revealed that 3,135 pages of documents had never been turned over to prosecuting and defense attorneys for the 1997 trial. They were found by bureau archivists in Oklahoma City as they canvassed the FBI's field offices in a final search of records related to the deadly bombing in anticipation of McVeigh's execution. The documents had been accumulated by 46 of the FBI's 56 field offices across the country. The largest amount of overlooked material was in the Los Angeles Field Office, which missed 426 pages, and the Miami Field Office, which missed 226 pages. The Washington and Cincinnati field offices overlooked relatively small amounts, three pages each. Bill Carter, an FBI spokesman, said 10 field offices assured FBI headquarters that they already had turned over all their material. (New York Times, May 12, 2001) On four occasions, the FBI had ordered its field offices to turn over to prosecutors any material they gathered during the investigation of the Oklahoma City bombing. But it was only in response to a fifth directive, sent in December 2000, that the field offices discovered they had overlooked thousands of pages of documents, FBI officials said. (Washington Post, May 12, 2001)
An FBI official said in the Washington Post that material began to come into a central processing center in Oklahoma City in late January. The material was cross-checked against what was in the FBI's databases from the Oklahoma City investigation, and most of it proved to be duplicates of reports. But almost from the start, a small percentage of the material appeared to be new, the official said. At some point early in the process, Danny Defenbaugh, the FBI agent in charge of the Oklahoma City investigation, became involved in cross-checking the material. But according to the FBI official's statement in the Washington Post, Defenbaugh and others apparently decided to wait until they had completed the process before they informed FBI headquarters of the new material.
One official said that by the end of January, a team of bureau archivists in Oklahoma City had begun receiving reams of documents. They began checking to make sure the materials were only duplicates of documents sent in during the course of the investigation and already turned over to the defense. They were to check each document against a master computer list contained in 26 databases. By late February, they found themselves dealing with about a hundred boxes received from 43 FBI offices around the country and overseas. Initially, it seemed that the documents were indeed duplicates of those logged before and turned over to McVeigh's lawyers. But in March, they informed Defenbaugh that there were a number of documents that had not been previously listed. (New York Times, May 13, 2001)
At about this time, Justice Department officials were focused on McVeigh's execution -- the first since 1963. They were debated over how to organize a closed- circuit television viewing of the planned lethal injection at Terre Haute federal penitentiary. Justice Department officials claimed that Defenbaugh had not informed his superiors that there might have been a serious problem involving documents that were not disclosed to the defense.
While Defenbaugh did not inform his superiors of any potential problem, he instructed the archive team to examine the documents more closely and to get a sense of how much of a problem existed, according to the New York Times. They said Defenbaugh told them that he hoped the discrepancy might involve only a few tangential documents. But after examining the contents of the boxes, the archives team concluded that enough documents to fill about three boxes had never been logged into the system or given to defense lawyers.
Defenbaugh did not notify anyone in Washington of the problem until May 8. At that time, he informed Sean Connelly, a senior Justice Department official monitoring the McVeigh case. FBI Director John Freeh and Attorney General John Ashcroft learned of the development two days later. (New York Times, May 13, 2001)
The Justice Department immediately turned over the evidence to McVeigh's lawyers. The bulk of the missing documents consisted of reports summarizing FBI interviews of witnesses. They also included 238,000 photographs and the records of 28,000 interviews. But in an attempt to temper the botched field work, Justice Department and FBI officials insisted that none of those materials had any bearing on the convictions and sentencing of McVeigh -- and co-conspirator Terry Nichols who was convicted in a separate trial and sentenced to life in prison.
Another batch of undisclosed records in the Oklahoma City bombing were found in Baltimore on May 14. Subsequently, the FBI issued a worldwide directive ordering all bureau field offices and attaches to comb their files for any more documents on McVeigh. However, the Baltimore documents were discounted by government sources who said they had no relevance to McVeigh's guilt or innocence. (Los Angeles Times, May 15, 2001)
James Norman, lead agent for the investigation, said the FBI's switch- over to a new computer system -- underway at the time of the bombing -- may have caused the documents to become lost. Before that, field officers with reports to contribute to an investigation usually mailed hard copies to the office coordinating the probe. But in the McVeigh case, field officers began downloading their reports into what was supposed to be a centralized computer system, according to Norman. The computerization helped speed the enormous investigation, he said, but even at the time, some agents felt that it was poor timing to be making such a major transition. (New York Times, May 12, 2001)
Less than a year earlier, the FBI's inspector general issued a July 1999 report on the FBI's handling of intelligence information in connection with an investigation into 1996 campaign finance abuses. Inspector General Bromwich said, "The FBI's procedures for culling information from its teletypes and electronic communications and inputting it into its databases essentially make it impossible for the FBI to state with confidence that a database search has yielded all information in the FBI's files about a particular subject." It added that the problem was exacerbated by inadequate training of FBI personnel and by internal regulations that allowed agents to forgo entering "important investigative information" into the databases.
Then in April 2001, the leaders of a key House committee asked Freeh to provide information on the "deficiencies" in the FBI's information technology. Congressmen James Sensenbrenner Jr., the chairman, and John Conyers Jr., the ranking Democrat on the House Judiciary Committee, wrote Freeh: "The committee is concerned that the FBI has information technology systems that are slow, unreliable, and obsolete." (Washington Post, May 12, 2001)
Only a week before the FBI gaffe went public, Freeh announced that he would resign in June after 27 years of government service. President Bush said that Freeh never raised the subject of the McVeigh documents when he informed the president of his resignation. Both Bush and Attorney General Ashcroft appeared to be dismayed by the FBI's failure to hand over the documents. Each blamed the FBI for the lapse that threatened to erode confidence in the fairness of McVeigh's prosecution. Ashcroft said at his news conference, "It is now clear that the FBI failed to comply fully" with the government's agreement to hand over virtually all its evidence to defense lawyers for McVeigh and Nichols. Ashcroft immediately ordered the Justice Department's inspector general to conduct an investigation into why the bureau had failed to turn over the material.
Lawyers for Nichols immediately asked the Supreme Court to reconsider an appeal. "The newly discovered fact that the United States withheld concededly discoverable FBI materials casts Mr. Nichols' request ... in a much more favorable light," his lawyers wrote in court papers. (New York Times, May 14, 2001)
Lawmakers in both parties assailed the FBI for its shipshod handling of the case. Senator Richard Shelby, chairman of the Senate intelligence committee, said, "Any kind of failure at the FBI anything that happens at the FBI. that calls into question something they did or failed to do, leads to a lot of mistrust with the American people." Democratic Senator Richard Durbin, a member of the Judiciary panel, said he would propose creating a separate inspector general for the FBI, who would report to Congress. The FBI's internal affairs unit, the Office of Professional Responsibility, reviews complaints of misconduct but reports to the agency's director. Few senators appeared to accept Freeh's assurances that the documents "won't have any bearing on the case." (New York Times, May 16, 2001)
On May 16 -- the same day that McVeigh was to be executed -- Freeh publicly acknowledged that the FBI had committed a "serious error" in withholding documents, and he said that he took personal responsibility for the lapse. Quoted in the New York Times (May 17, 2001), Freeh told the judiciary panel of the House Appropriations Committee, "As director, I'm accountable and responsible for that failure, and I accept that responsibility. I also regret the pain that this has caused the victims and family members who lost their loved ones." Freeh added that he ordered the creation of a search committee to hire "a world-class records expert."
FBI AGENT ROBERT HANSSEN
FBI AGENT ROBERT HANSSEN
FBI agent counterintelligence officer Robert Hanssen was arrested in early 2001 and indicted in May on 21 counts of spying. It was alleged that he betrayed nine double agents, several top-secret communications programs, and American preparations to keep the government running in case of nuclear attack. The grand jury charged Hanssen with conspiracy to commit espionage, attempted espionage, and 19 specific acts of spying. The indictment also demanded that he turn over $1.43 million in alleged proceeds -- $600,000 in cash and diamonds and $800,000 in Russian bank accounts.
In 1986, Hanssen told Moscow that the United States was "exploiting" a technical weakness in Soviet satellites to intercept transmissions. Two years later, he helped the Soviets protected their communications by disclosing a limitation on what the National Security Agency could read. In 1989, he turned over a top-secret analysis of U.S. plans to "ensure the continuity of government in the event of a Soviet military attack." And he betrayed six Soviet citizens and agents who were secretly working for the United States, in addition to three KGB double agents mentioned in earlier filings. (New York Times, May 17, 2001)
In late May, it was revealed that FBI agent Earl Pitts, arrested in 1996 for spying for Moscow, had told investigators after his arrest that he knew of suspicious activity by Hanssen. Pitts pleaded guilty to espionage charges. During an interrogation in June 1997, Pitts told agents that he suspected Hanssen, since he had tried to gain unauthorized access to secret information in the computer of another counterintelligence official. Pitts acknowledged that he did not know Hanssen was a Russian spy. However, he said the computer incident suggested to him that Hanssen was "trying to collect information covertly." (Los Angeles Times, May 29, 2001)
However, the FBI concluded that Pitts was referring to a 1992 incident in which Hanssen broke into the computer of Ray Mislock, a senior FBI counterintelligence official. The FBI official said that the incident involved the computer network in the bureau's counterintelligence office, and led several people in the office to believe that Hanssen had broken into their computers. The FBI official said that at the time of the incident Hanssen went to Mislock and told him he had broken into his computer. Hanssen had earlier raised the issue of FBI computer security, and said that he was trying to prove that the network was not secure. He handed Mislock a document that Mislock had created on his own computer the day before. Mislock responded by shutting down the counterintelligence network until its security could be improved. Mislock and other FBI officials accepted Hanssen's explanation that he was concerned about the system's security, and no action was taken against Hanssen over the incident. (New York Times, May 28, 2001)
The FBI tried to downplay the allegations, saying that it already knew about the computer penetration which Pitts had mentioned. In addition, FBI spokesman John Collingwood said that Pitts never had said outright that Hanssen was a spy or offered any other evidence to support his suspicion. Collingwood claimed Pitts had said his Russian handlers never told him about any other spies within the bureau. Collingwood also said, "During his post-guilty-plea debriefing, Pitts did not identify anyone, either by name or position, as a spy. Pitts said his Soviet handlers had not identified anyone to him as a spy. Pitts did describe as ‘unusual' a computer hacking incident involving Hanssen. Pitts did not identify Hanssen as a spy. When asked if he was aware of anything or anyone beyond this hacking incident already known to the FBI, Pitts said ‘no.' " (New York Times, May 28, 2001)
In addition, FBI officials have said that two years before Hanssen's arrest, a senior investigator concluded in a still classified report that Moscow might have a mole in the bureau's ranks. In early 1999, FBI Director Freeh was briefed by an investigator, Thomas Kimmel, about those suspicions. But senior FBI counterintelligence officials contended Kimmel was wrong. Kimmel said he believed that there might be a spy in the bureau after he was placed in charge of conducting a damage assessment of the Pitts case. But Kimmel never raised suspicions about Hanssen. Pete O'Donnell, another former agent who worked with Kimmel on that review, said that he interviewed Pitts again in 1998 as part of the damage assessment, and that Pitts did not name Hanssen at that time. (New York Times, May 28, 2001)
THE WEBSTER COMMISSION – THE MOST SCATHING REPORT ON THE FBI
THE WEBSTER COMMISSION – THE MOST SCATHING REPORT ON THE FBI
After the Hanssen debacle, a special committee -- headed by former chief of both the CIA and FBI William Webster – was commissioned in early 2002 to investigate
In April 2002, the Webster commission concluded in its 117-page report that the FBI failed to properly restrict about 500 sensitive cases, violated a presidential order requiring financial disclosures from employees, and missed repeated warning signals that could have led to the arrest of Hanssen years earlier. The report was the most damaging episode of espionage in FBI history. (Los Angeles Times; New York Times, April 5, 2002)
According to the report, the 6,000 pages of documents and 26 computer diskettes that Hanssen sold the Russians in about 40 handoffs detailed “extraordinarily sensitive intelligence operations,” including the FBI’s technical penetration of a Soviet establishment, penetration of Soviet satellite transmissions, United States attempts to recruit Soviet intelligence officers, a limitation in the National Security Agency’s ability to read Soviet communications, budget projections and a detailed evaluation of United States double-agent operations. (Los Angeles Times; New York Times, April 5, 2002)
The review found that the FBI missed numerous telltale signals that could have led to Hanssen’s detection, including his inconsistent explanations of how he paid for an expensive home addition. The report found that the FBI’s case-file system, chock-full of sensitive information on ongoing investigations, can be easily accessed by unauthorized employees and fails to comply with the bureau's own requirements for restricting secret data. The report said, “Hanssen took advantage of this security failure to access approximately 500 case files that had not been appropriately restricted.” (Los Angeles Times; New York Times, April 5, 2002)
The report also concluded that the FBI has been routinely violating a presidential order that, in the wake of the Aldrich Ames spy scandal at the CIA in 1994, required federal employees with access to classified information to consent to disclosure of finances. “With the exception of certain senior personnel and members of the Senior Executive Service, the bureau does not require employees or contractors to complete a financial disclosure form,” and the basic information that was required is often of little real value. (Los Angeles Times; New York Times, April 5, 2002)
The commission recommended several dozen fundamental changes in the way the FBI maintains security, including the expanded use of polygraph tests for employees, the restriction of information on a “need to know” basis, and the restructuring of security operations. The recommendations ranged from the highly technical to the rudimentary. For example the report recommended that “classified information should be placed face-down when persons not authorized access are nearby.” (Los Angeles Times; New York Times, April 5, 2002)
THE JAMES BECK SHOOT-OUT IN CALIFORNIA
THE JAMES BECK SHOOT-OUT IN CALIFORNIA
Federal agents apparently did not learn from the attacks on Randy Weaver's family at Ruby Ridge in 1992 and the Waco fiasco of 1993. In all three cases, federal agents were armed with information that suspicious dwellers had illegal weapons that potentially violated federal gun laws. And in all three cases, people were killed.
The ATF began investigating James Beck of Los Angeles County in June 2000. They had reason to believe that he was impersonating a federal agent and that as a felon he was in possession of a firearm. ATF Special Agent Larry Webster obtained a search warrant for Beck's mother's house in West Los Angeles, where Beck was living at the time. They found no weapons or evidence that Beck was impersonating an agent during the search on June 21, 2000. But the next month, Webster got a telephone tip leading him to review Beck's credit card statements. He found Beck had visited a Pasadena gun store seven times between April 2, 1999, and February 5, 2000. (Los Angeles Times, September 8, 2001)
The affidavit did not mention any further investigation of Beck until May 4, when Webster spoke with another agent about the case. Webster that month also spoke with a credit card company employee, who said Beck had never reported as stolen the credit card used to buy the ammunition, according to the affidavit. (Los Angeles Times, September 8, 2001)
ATF agents obtained a warrant to arrest James Beck at his home in the quiet Los Angeles County suburban city of Santa Clarita. A team of at least eight ATF agents, along with two deputy United States marshals and two sheriff's deputies, arrived on the morning of August 31. Beck began shooting at them as they tried to serve the warrant. Deputy Jake Kuredjian was killed and in the process, and agents nearly burned down a neighborhood.
Donald Kincaid, ATF's Southern California regional director, said that the agency had reason to believe that Beck would be cooperative because he had acquiesced to a similar search a year earlier. That search did not result in Beck's arrest, and Kincaid did not say what, if anything, was found then. Rather than waiting for Beck to go out on his morning walk, ATF agents decided to do it alone with a Los Angeles County Sheriff's Department officer. (Los Angeles Times, September 8, 2001)
The ATF needed only to follow guidelines which were incorporated after its siege on the Branch Davidian cult nine years earlier. The agency decided that other means could be used to arrest suspects. Rather than waiting until Beck left his house to serve their warrant, ATF agents could have waited for him to leave his house. But instead they elected to go to his front door. When shots rang out, agents returned fire, thus jeopardizing the safety of nearby residents in the tightly packed housing tract. Beck and the authorities exchanged hundreds of rounds of gunfire -- shattering some windows and pocking the walls of nearby homes. Finally, the authorities fired tear gas canisters into the house, thus burning it to the ground. Federal agents could have approached Beck on the street where he was known to walk his dog each morning. Yet the ATF decided to approach his door, not knowing what would follow.
ATF agents learned more than a year before that Beck illegally purchased thousands of rounds of ammunition. They also were told by Beck's neighbors well before the shoot-out that he was stockpiling guns in his including at least two assault rifles, according to search warrant affidavits that were unsealed. Bernard Zapor, assistant special agent in charge of the ATF's Southern California division, said that he could not discuss why the bureau waited 14 months -- until after suspicious neighbors called authorities -- before conducting a search for illegal weapons. (Los Angeles Times, September 8, 2001)
One witness told ATF agents a month before the shoot-out that he saw four "assault type rifles" propped against a couch in Beck's living room. Beck allegedly said he seized them from "a crook" while working as a United States marshal. But Beck was never a federal law enforcement agent. He was an officer of the Arcadia Police Department from June 1987 until August 1988, and he never completed his probation. (Los Angeles Times, September 8, 2001)
Another witness told ATF agents that Beck showed off a law enforcement badge, boasted he always carried a .44-caliber handgun, and said he kept "over 200 guns in a safe in his garage," according to the affidavits. (Los Angeles Times, September 8, 2001)
And a third witness told ATF agents on the day before the confrontation that he had recently seen Beck bring two boxes of firearms into his house, including an AR-15 assault rifle, an AK-47 assault rifle, two semiautomatic pistols, and at least two other rifles, the affidavit said. (Los Angeles Times, September 8, 2001)
Furthermore, records indicated that an ATF agent investigating Beck in July 2000 for illegally possessing firearms reviewed credit card receipts and gun shop invoices, determining Beck had purchased $1,513.34 worth of ammunition and gun paraphernalia during seven visits to a gun shop in Pasadena. Among his purchases was a magazine for an AR-15 assault rifle. ATF authorities knew in July 2000 that Beck had bought 77 boxes of ammunition for at least five different caliber firearms, as well as rifle magazines. (Los Angeles Times, September 8, 2001)
After Beck's house burned, he was believed to have fired hundreds of rounds from assault weapons and high-powered rifles. When authorities searched his burned-out house, they said that they found at least three illegal assault weapons along with a bolt-action scoped rifle, several shotguns, and numerous handguns.
It was illegal for a felon in California to possess, buy, sell, or transfer a firearm, gun parts or ammunition. Beck was on parole at the time, following three convictions for burglary, receiving stolen property and possession of an assault weapon, according to records. After learning of the illegal purchases last year, federal agents did not attempt to serve a search warrant until eight days ago.
An FBI surveillance tool, known as Carnivore, was used to track suspected criminals online by sifting through data from an Internet service provider to find the senders and recipients of a suspect's e-mail. Carnivore was a modified version of a common network-maintenance program known as a "packet sniffer." Carnivore has the capability of offering the ability to quickly collect just the "to" and "from" information in e-mail messages -- and not online banking transactions. That gave the FBI the equivalent of the telephone world's "pen register" and "trap and trace" data -- the origin and destination of all calls related to the subject.
But Carnivore threatened alarming invasions of privacy. Although the FBI maintained that Carnivore does not violate privacy laws, its technology never proved to be bug-free. Law enforcers had the right to get a court order to monitor communications of suspected criminals. Under the laws governing such wiretaps, law enforcers could only record communications directly related to the subject of the court order. If the suspect was discussing any other subject or is having a privileged conversation with a lawyer or cleric, recording had to stop.
On July 24, 2000, FBI officials testified before a House committee and ardently defended their operation according to the Washington Post (July 25, 2000). FBI Assistant Director Donald M. Kerr told the House Judiciary Subcommittee, "Criminals use computers to send child pornography to each other using anonymous, encrypted communications. Hackers break into financial service companies' systems and steal customers' home addresses and credit-card numbers, criminals use the Internet's inexpensive and easy communications to commit large-scale fraud on victims all over the world, and terrorist bombers plan their strikes using the Internet."
The new system pieced together by the FBI sparked protest from members of Congress who called for its suspension as well as from privacy groups and Internet service providers worried that Carnivore will be used to track the e-mail of innocent people. Less than a week after FBI officials testified before the House subcommittee, Attorney General Reno said that she would not suspend the use of Carnivore but that she would closely monitor its use while conducting a thorough review of the powerful tool.
Six days later, a federal court ruling directed the Justice Department to quickly review a formal request from the Electronic Privacy Information Center for data about Carnivore and its potential uses. Reno acknowledged that the DOJ's review of the FBI's Carnivore system was moving too slowly and vowed to take immediate action to speed things up. Reno said that she would not allow the FBI alone to oversee the review. Instead, the attorney general said a panel of outside experts to review Carnivore would be chosen jointly by Justice Department and FBI officials. She asked the Justice Departments's management division to work with the FBI by selecting an "independent entity" to review Carnivore's source code and then report back to her. In the interim. Reno also said that she personally would resolve any disagreements between the FBI and Justice officials over who serve on the panel of outside experts. But she also said it is unlikely that all of those interested in the matter will be happy with the panel or her ultimate decision.
The government's civilian classification system did not exist until September 24, 1951 when President Truman issued the first executive order to create it. Truman's executive order was not a law. It did not apply to anyone other than government employees or contractors.
A study showed that Carnivore could retrieve all communications passing through an Internet provider, not just those connected to a criminal suspect, according to an FBI memorandum. The tests, conducted in April and May 2000, found that the program "could reliably capture and archive all unfiltered traffic to the internal hard drive" of an FBI computer, according to the memo. (Washington Post, November 18, 2001)
FBI officials said that the tests were conducted only to determine the breaking point of the software, and they reiterated their pledge to restrict snooping within legal limits. But several prominent privacy advocates said the tests show the FBI has been misleading the public about Carnivore's capabilities and raise new concerns about potential abuses by government agents. Wayne Madsen, senior fellow at the Electronic Privacy Information Center, said, "This has been a constantly moving goal post. They keep saying it only does one thing, and we keep finding out that it can do much more. ... You have to wonder why they're testing for something they say they're not going to do."
Marcus Thomas, head of the FBI cybertechnology section, said the tests were "good engineering practices" to measure how much data Carnivore could handle. "Certainly there are modes in which it could be operated that would be illegal, but there are checks and balances in place to make sure we don't do that," Thomas said. "I don't think we've ever meant to mislead people. ... There's no indication that we would actually operate it in unfiltered mode."
THE SENATE INVESTIGATES THE FBI
THE SENATE INVESTIGATES THE FBI
In a June 2001 review of the FBI, the Senate Judiciary Committee attacked the agency as a "fortress mentality" that tried to block outside probes. Committee Chairman Patrick Leahy said, "The image of the FBI in the minds of too many Americans is that this agency has become unmanageable, unaccountable and unreliable." Senator Charles Schumer commented, "The hard truth is that the FBI has made mistake after mistake after mistake." Former GOP Senator John Danforth, who had spent 14 months heading a federal investigation into the FBI's conduct in the Branch Davidian standoff, told the panel that even though the FBI was ultimately cleared of serious wrongdoing, many employees were evasive and uncooperative during his review. (Los Angeles Times, June 21, 2001)
Norman Rabkin, a director with the General Accounting Office, said that when his office did a review of how the federal government responds to terrorist incidents, it ran into so many roadblocks from the FBI that it decided to drop the agency from its review. He said, "The FBI is by far our most contentious." In addition, expert witnesses appearing before the Judiciary Committee said the FBI had been unwilling to own up to its mistakes because of a "culture of arrogance."(Los Angeles Times, June 21, 2001)
Only a year earlier, congressional committees had applauded the FBI and even had urged that it take over expanded responsibility for drugs and guns from other federal agencies. Attorney General John Ashcroft ordered a comprehensive review on "reforming and improving the FBI," while two senators proposed an unprecedented complete outside review of the agency aimed at accomplishing the same end.
During nearly three hours of testimony before the Senate Judiciary Committee, Republicans and Democrats alike criticized the 11,000-agent FBI for "a litany of embarrassing blunders." The criticism included the agency's handling two cases in 2001: the Robert Hanssen investigation and its failure to disclose 4,000 pages of materials in the Oklahoma City bombing investigation. The committee also focused on earlier FBI cases: the Branch Davidian standoff in Waco; agents' overly friendly relationship with mob informants in Boston; evidence of widespread ineptitude in the FBI lab; botched investigations into Los Alamos scientist Wen Ho Lee; and Richard Jewell in the Olympic bombing in Atlanta. (Los Angeles Times, June 21, 2001)
MISSING COMPUTERS AND WEAPONS
MISSING COMPUTERS AND WEAPONS
In yet another embarrassment to the FBI, an internal inventory in July 2001 found that 449 firearms and 184 laptop computers, including one containing classified data, were either missing or stolen. Agency officials said the laptop, that was known to have secret data, contained information from two closed cases, which were not identified. The officials said three other computers were suspected of containing classified information. Of the missing or stolen firearms, at least one was recovered from local law enforcement authorities after they determined that it had been used in a crime. The missing and stolen weapons consisted mainly of handguns but also included rifles, shotguns, and submachine guns. (New York Times, July 18, 2001)
FBI officials inventory focused on about 50,000 weapons dating to the 1970s. About 66 of the missing firearms were lost when agents retired and apparently failed to return their bureau-issued handguns. About 91 of the lost weapons were training firearms that had been altered so they could no longer be fired. Four weapons had been issued to agents who died or were fired. In addition, bureau officials said some weapons were lost in training operations with other law enforcement agencies. Some laptops were misplaced as they were passed among employees, and some older models may have been destroyed by agents who regarded them as having no value. (New York Times, July 18, 2001)
The bureau turned its inventory data over to the Justice Department's inspector general for further investigation. Officials at the DOJ said that the bureau routinely tracked lost weapons, but added that the inventory of firearms was the first time that a high-level effort had been undertaken to obtain a full accounting of missing equipment from all FBI offices. Attorney General John Ashcroft asked the Justice Department's inspector general to expand the review of inventory controls to agencies throughout the department. (New York Times, July 18, 2001)
Testifying before the Senate Judiciary Committee, Bob Dies, an assistant director at the FBI, and Kenneth Senser, deputy assistant director, said that the bureau did not have an adequate system for keeping track of its 13,000 laptop computers until recently. Furthermore, they testified that the antiquated technology and security systems had been largely neglected for the past decade. The two agency's officials said that some internal operations stymied effective management at the bureau. Dies said that the resistance within the bureau to change "really is a nightmare if you come in from the outside." (New York Times, July 18, 2001)
BUMBLING THE TIMOTHY McVEIGH CASE
BUMBLING THE TIMOTHY McVEIGH CASE
The Justice Department’s inspector general concluded that FBI incompetence- - and not computer problems, as the bureau maintained -- caused the mishandling of documents that led to the delay in Timothy McVeigh’s execution. As a result, Attorney General John Ashcroft postponed the execution until June 11. Ultimately, more than 4,000 pages of files were found that had never been turned over. (Los Angeles Times, March 19, 2002)
McVeigh was arrested, tried and convicted in the April 1995 bombing of the Alfred P. Murrah Federal Building. In 1997, he was sentenced to death. The government turned over volumes of investigative records to defense attorneys before the 1997 trials. But in late 2000 and early 2001, the FBI said, it discovered that more than 1,000 documents had been inadvertently withheld. In January 2001, McVeigh suddenly dropped all legal appeals and convinced a federal judge that he was ready to die. At that time, the federal Bureau of Prisons set his execution by lethal injection for May 16. But just six days before he was to die, the FBI revealed that it had found bureau files that had not been disclosed to the defense. (Los Angeles Times, March 19, 2002)
Ashcroft asserted that none of the records would have changed the outcomes of the 1997 trials, he postponed McVeigh’s scheduled execution for a month, until last June 11, to give defense lawyers time to review the documents. McVeigh had abandoned his appeals in 2000 and declared himself ready to die. But he decided to fight his execution after the revelations about the withheld documents.
In drawing its conclusion that information had been mishandled by the FBI, the inspector general recommended that two high-level FBI supervisors be disciplined and that the bureau -- which had been hit hard by internal problems -- improve its management control over the various field offices around the country. Ashcroft said, “Human error, compounded by antiquated and cumbersome information technology systems and procedures” contributed to the documents not being turned up until years after McVeigh’ trial. (New York Times, March 19, 2002)
Even officials at FBI headquarters took two days before alerting prosecutors and defense lawyers that, even as the execution date approached, new documents had been discovered. The investigation found no deliberate attempt to conceal the documents from the defense.
The inspector general determined that computers were not at fault. One source said, “It was an agent problem and not a computer problem. Agents made mistakes about what documents they had and what documents they had to cough up. Not everybody in the field even knew what to do.” (Los Angeles Times, March 19, 2002)
The investigation also found that the bureau did not act swiftly in turning over the material, even though FBI officials realized that McVeigh’s death was imminent. One official said, “Two supervisors learned in January of 2001 but sat on the news for five months. They failed to manage the review of the documents and failed to notify FBI headquarters or the Justice Department or defense attorneys what was going on. They never took responsibility or were held accountable. But two of them got promotions anyway.” Officials said the report added that FBI headquarters also took two extra days before alerting McVeigh’s defense lawyers, “because of a communications problems with the prosecution.” (Los Angeles Times, March 19, 2002)
On the third question, the inspector general did not find that the FBI hid documents from lawyers in the case out of concern that the material might help McVeigh. But the report faulted FBI headquarters for allowing field offices to become “individual fiefdoms” over the last half-dozen years and not exerting more control over those field offices.
The courts later ruled that the material was not relevant to McVeigh’s guilt or innocence, although United States District Judge Richard Matsch in Denver was angry over the FBI debacle.
Soon after the inspector general released its findings, the FBI announced major changes in the way it maintained confidential case files and pledged to teach agents a “new way of doing business.
But it appeared doubtful that any harsh disciplinary action would be taken against the two FBI supervisors. Two years earlier, the 9th Circuit Court of Appeals ruled that FBI sharpshooter Lon Horiuchi, who had killed the wife of Randy Weaver at Ruby Ridge in Idaho, was immune from state prosecution. The three-member panel concluded that Horiuchi was acting in his official duty as a federal law enforcement officer.
Even some legislators on Capitol Hill, who had overseen federal law enforcement, said the Oklahoma City case was just the latest in a string of FBI miscues, and that the bureau needed tot work harder to clean up its operation. GOP Senator Charles Grassley, a senior member of the Judiciary Committee, warned that “it’s time for the FBI to take the (inspector general’s) advice. That meant swift and sure action that holds accountable the people who are responsible.” (Los Angeles Times, March 19, 2002)
FBI WARNINGS OF A TERRORIST ATTACK
FBI WARNINGS OF A TERRORIST ATTACK
At least two names listed in a July 10, 2001 FBI memo about a Prescott, Arizona flight school were identified by the CIA as having links to Al Qaeda. The FBI memo was never acted upon or distributed to outside agencies prior to September 11th and was not provided to the CIA until May 2002. The memo, sent to FBI headquarters by a Phoenix FBI agent, warned that Bin Laden could have been using United States flight schools to train terrorists and suggested a nationwide canvass for Middle Eastern aviation students. (Washington Post and New York Times, May 18, 2002)
In addition, Minneapolis FBI agents, investigating terror suspect Zacarias Moussaoui, claimed they were severely hampered by their superiors. According to the Minneapolis office, agents charged that FBI headquarters refused to issue search warrants and that they admonished agents for seeking help from the CIA. (New York Times and Washington Post, May 23, 2002)
Coleen Rowley, general counsel of the Minneapolis office, wrote in a May 2002 letter to FBI Director Robert Mueller that evidence gathered in the Moussaoui case, combined with a July 10 FBI warning about possible terrorists taking flight training in Arizona, should have prompted stronger suspicions at FBI headquarters that an attack was being planned. (New York Times and Washington Post, May 23, 2002)
According to the Washington Post (May 23, 2002), Rowley said Minneapolis investigators had significant evidence of Moussaoui’s ties to terrorists, including corroboration from a foreign source that Moussaoui was dangerous. Rowley’s letter included the resistance that was faced by agent Dave Rapp and other investigators. Rowley wrote that FBI headquarter ruled that investigators did not have enough evidence to even ask a judge for warrants to search Moussaoui’s computer under routine criminal procedures or a special law aimed at terrorists, Rowley said in the letter. (Washington Post, May 23, 2002)
Rowley’s 13-page scathing letter read in part, “FBI agents in Minneapolis who were closest to the action, and in the best position to gauge the situation locally, did fully appreciate the terrorist risk/danger posed by Moussaoui and the possible co-conspirators even prior to September 11,” (Washington Post, May 25, 2002)
Rowley continued, “In all of their conversations and correspondence, headquarters personnel never disclosed to the Minneapolis agents that the Phoenix Division had only three weeks earlier warned of Al Qaeda operatives in flight schools seeking flight training for terrorist purposes.” Washington Post, May 25, 2002)
Rowley’s letter was in the antithesis of the opinion given by Mueller and other FBI officials who have insisted that the bureau did all it could to determine whether Moussaoui was part of a terrorist plot. As expected, FBI officials declined to comment on Rowley’s letter. (New York Times and Washington Post, May 23, 2002)
Mueller was questioned about the letter during an appearance before the Senate Intelligence Committee in May. One official said that Mueller “has not tried to diminish the mistakes that were made.” (New York Times and Washington Post, May 23, 2002)
Both Ashcroft and Mueller were told a few days after the September 11 attacks that the FBI had received a memorandum from agent Kenneth Williams at its Phoenix office the previous July, warning that Bin Laden’s followers could be training at American flight schools.
But senior Bush administration officials said neither Ashcroft nor Mueller briefed Bush and his national security staff until much later about the Phoenix memorandum. (New York Times, May 21, 2002)
Several FBI and Justice Department officials said that in the chaotic days after the attacks, discussions between Ashcroft and Mueller were expedited and that their recollection of events were somewhat blurred by the frenetic pace of activity. Some officials said they recalled high-level discussions about how the hijackers had attended American flight schools, but one Justice Department official did not recall a briefing about the memorandum. (New York Times, May 21, 2002)
IN BED WITH THE MAFIA
IN BED WITH THE MAFIA
On May 28, 2002, a jury convicted former FBI agent John J. Connolly Jr. of four counts of corruption. He was found guilty of racketeering, bribery, and alerting New England mobsters to impending indictments.
Before Connolly retired in 1990, he was to recruit mob informants as the FBI sought to topple the New England mafia. Prosecutors at his 2002 trial said he carried out his assignment too well, ignoring two decades of murder, extortion, and other crimes committed by notorious mobsters James “Whitey” Bulger, Stephen “the Rifleman” Flemmi, Francis “Cadillac Frank” Salemme, and others.
Connolly grew so close to his informants that he warned them in 1994 as federal indictments were about to be handed down against them. Connolly’s tip allowed Bulger to flee before authorities could arrest him. The one-time lord of Boston’s crime underworld, one of the FBI’s 10 most-wanted criminals, had remained a fugitive since 1994. (Los Angeles Times, May 29, 2002)
Testifying in exchange for a reduced sentence, John “the Animal” Martorano told jokes as he described killing more than 20 people as a hit man for Bulger’s Winter Hill gang -- which for years kept an iron grip on the loan-sharking and narcotics trades in Boston. A former Bulger lieutenant, Kevin Weeks, recalled delivering a $5,000 bribe to Connolly from Bulger. He said Bulger liked to brag that he had corrupted six FBI agents and more than 20 police officers in Boston. (Los Angeles Times, May 29, 2002)
Weeks testified that Bulger gave law enforcement officials envelopes full of cash. “He used to say that Christmas was for cops and kids.” Weeks also said Connolly came to the Winter Hill gang’s headquarters in a Boston liquor store on December 23, 1994, and told him to warn Bulger, Flemmi, and Salemme that arrests were imminent. (Los Angeles Times, May 29, 2002)
Connolly’s former FBI supervisor, John Morris, confirmed in court that a gift of $1,000 and a case of wine he’d received from Connolly actually was a bribe from Bulger. Morris was protected from prosecution by the statute of limitations.
Cautioning new agents against trying to “out-gangster a gangster,” Connolly said in the tape: “You can get friendly with them and you can like them, but you can never forget who you work for and that you’re an FBI agent.” (Los Angeles Times, May 29, 2002)