FBI: Famous But Illegal

I want you to imagine something for a minute. You may have to suspend your sense of disbelief as I proceed, but give it a try.

Imagine that the New York Police Department, the Chicago Police Department, the Los Angeles County Sheriff’s Office or any other large local law enforcement agencies was accused of the following activity. Imagine the reaction from the New York Times, LA Times, Chicago Tribune or USA Today if a local police agency was accused of a long-standing pattern of breaking rules on investigations and illegally using informants and undercover agents to spy on politicians, journalists or religious persons engaged in constitutionally protected activity. Let’s say that any one of these agencies was found to be involved in a consistent pattern of noncompliance, and that one of the biggest problems identified was one of the unauthorized use of investigative methods including physical surveillance that hasn’t been approved on people not accused of a crime in 28 cases in a one-year time frame. In addition to that, what if it was discovered that the higher-ups in one of those agencies deliberately allowed its officers to break the law to catch criminals and other illegal activity for confidential human sources? What if an audit discovered that the agency broke its own rules 747 times in 18 months on sensitive investigations including intercepts of communications? And after all of this, it was discovered that internal audits learned of these things and that corrective measures did not stop the rule breaking or law violations? What do you think the public’s reaction would be after reading of these discoveries in a lengthy series in the newspaper? Outrage you’d expect, correct?

At the least you would expect that if a local law enforcement agency did all these things, the U.S. Department of Justice would dispatch the FBI in for a criminal probe and civil rights violations, right? But what if I told you that all of the breaches of policy and the law were committed by the FBI itself? This is not a one-off, unintended mistake or behavior by one or two federal agents. In fact, according to a newspaper story that discovered all of what I detailed here, it is believed that this behavior is cultural in nature and the congressional Senate Judiciary Committee that oversees the FBI says this misconduct suggests that this involves a “pattern and practice” within the FBI and it goes all the way to the top.

So, what do we do? The Senate Judiciary Committee, in my view, lacks the ability to really drill down inside the secretive and walled-off institution that is the FBI. Whenever there is a Senate hearing involving the FBI, you get a lot of stonewalling and responses like, “I cannot answer that because it is confidential and would compromise ongoing investigations”. That answer makes Senate members back down. The fact is that it is oftentimes a lie used to get around disclosing what would be embarrassing information about agency behavior. Members of Congress and their staffs are ill-equipped to oversee an agency like the FBI.

That brings me to another issue. Our classification system in our federal intelligence community used to protect government secrets is in serious need of revamping. Too much that government is engaged in on investigations is classified as secret or top secret when there is no need to do so. There is very little supervision over it, and for the most part it is left to the discretion of the individual investigating agents. Also, the length of time that something needs to be kept from public disclosure needs be reviewed after a period of time, like every 90 days. Like I said, classifying something as secret or top secret is used to hide illegal and improper behavior from the public and congressional committees charged with oversight on behalf of the American people. My suggestion is that Congress needs a committee of retired former U.S. attorneys and federal judges that reviews classified information to determine if it should continue to be kept classified. These former practitioners understand the process of government secrets and are best suited to know when violations of the Constitution have taken place, and when these things are discovered, referrals to the USDOJ should be made for possible criminal or civil rights investigations and federal grand jury indictments.

This might seem to some as extreme and that something less such as retraining might resolve these issues. The problem is that that has already been done in many instances, and when follow-up audits occur it found that the retraining and corrections failed to change the behavior. I think firing someone or a criminal indictment would deter most of this behavior. Slaps on the wrist or retraining in repeated instances is not an effective deterrent.

Law enforcement agencies are granted an extreme amount of trust by the public. In most cases, it is blind trust that they are not abusing their authority. Cops have awesome authority. They can take a person’s freedom from them and ruin lives. In addition to that, the thought that our government is surveilling citizens engaged in lawful activity should be disturbing to everyone. The least we can expect is that they behave in ethical and honorable ways to maintain that blind trust. Integrity matters.

That there doesn’t seem to be much alarm by corporate media on this disclosure is alarming as well. They are supposed to be a watchdog of government activity and behavior. The media was given First Amendment protection by the Founders so they could be free of government interference. Not that long ago, a media entity would make a big deal of this because of their mistrust for government. Now we get shoulder shrugs at this abhorrent abuse of power. Man, have times changed.

The FBI has become an embattled agency. It recently settled a lawsuit against it by families in Parkland, Florida after the government admitted that the FBI did not follow up on tips about the Marjory Stoneman Douglas school shooter that could have prevented the massacre. It is also under scrutiny for its role in the Trump-Russia collusion conspiracy and for using counterterrorism resources to investigate parents who are speaking out against school board policies. And it recently botched a case involving the alleged plan to kidnap the Michigan governor that ended up with an acquittal. The jury concluded that the defendants were entrapped by the FBI.

The FBI needs an external review up, down and across the entire bureau by people who have no vested interest in squashing what they would find. I would start with the appointing of a commission by the Senate Judiciary Committee-an independent civilian-led agency of civil liberty experts and lawyers, to drill down into what is really going on inside the FBI. And by the way, where is the American Civil Liberties Union when you need them?

Sheriff David A. Clarke Jr. is former Sheriff of Milwaukee Co, Wisconsin, President of Americas Sheriff LLC, President of Rise Up Wisconsin INC, Board member of the Crime Research Center, author of the book Cop Under Fire: Beyond Hashtags of Race Crime and Politics for a Better America. To learn more visit www.americassheriff.com