Mimesis Law
24 July 2019

FBI G-Men: More Secret Agent than Special Agent

May 6, 2016 (Mimesis Law) — There’s an old joke about how you should treat lawyers like mushrooms; you feed them bullshit and keep them in the dark. Others who crafted jokes at the expense of lawyers were less crass about it, like William Shakespeare. Famously, in Henry VI, one of the characters scheming to become the King. And while the pretender is detailing his largesse, one of his henchmen helpfully suggests that they, first thing, kill all the lawyers. No doubt the audience laughed at the pretender’s dark, Elizabethan version of FDR’s Second Bill of Rights, which here included the death of all lawyers.

As Fault Lines managing editor, Scott Greenfield, details, the FBI, at a minimum, wants to treat lawyers like mushrooms:

As Brad Heath reveals at USA Today, the FBI didn’t trust prosecutors any more than judges. It would appear that they were a team unto themselves, and while they were happy to enjoy the good graces of zealous prosecutors and kindly judges, they were no more inclined to tell prosecutors the truth than judges. Hell, not even lesser agents were sufficiently trusted to be let in on the team secrets.

[A]n official warned agents in Minneapolis that the FBI’s Engineering Research Facility — where some of the bureau’s most sophisticated tech secrets are hatched — had “expressed concerns about Tech Agents revealing technical details to Case Agents and especially to AUSAs,” using the acronym for assistant U.S. attorneys. “There have been several instances of AUSAs becoming familiar with our technology, then resigning and becoming defense lawyers.” (Emphasis gleefully added.)

While revealing what was happening inside the onion might have worked for a little while, certainly some prosecutor would eventually turn to the dark side, become a defense lawyer, and spill the beans.  Then all the criminals would know, and the world would collapse into criminal chaos. They certainly weren’t about to let that happen, because they are the good guys, protecting us from evil.

No surprise that the FBI wouldn’t trust defense attorneys to keep their methods secret, but it might be surprising that the FBI would distrust judges and prosecutors. From the outside, the criminal justice system looks like a monolith. Particularly as a fresh arrestee is fed through the system, it can look like everyone is part of the same machine—even defense lawyers. Everyone is pushing around a lot of paper, speaking incomprehensible English, and everyone seems to know each other by first name, ask about their kids, and even talking about their vacations.

But the lawyers in the courtroom do not see it that way. Each of them is very important, carrying out the very important job with which they’ve been entrusted. Criminal defense attorneys are inclined to see everyone else as the enemy. These state employees may have various levels of culpability for their part in the machine, but they are all in cahoots, judges, prosecutors, cops, and even the court clerks. While the defense lawyer is busy fighting against the system, the client might be uncooperative and causing more impediments. And the defense lawyer rarely, if ever, gets praise from anyone other than fellow lawyers and the rare client.

Prosecutors are inclined to see their job as a cat wrangler. On the day of trial, you have to make sure all your moving pieces are working together harmoniously. Victims, experts, police officers and lay witnesses have to be prepared and brought to trial on the right day, in the right order, and saying the expected things. On top of all that, you have to make sure that jurors understand and the judge is at least following along.

The judge is often sitting up on the bench wondering why this matter couldn’t have been pleaded out. The defendant is probably a frequent flyer, and the judge is trying to remember the last sentence. The prosecutor talks too long and calls too many witnesses, and the defense lawyer’s cross examination was inexplicitly a complete repeat of the direct examination. Meanwhile, the trial is causing the judge’s calendar to back up and the piles of motions in need of denials just gets higher during trial.

And the jurors? They are doing their best to do the right thing. It’s like they were forced with the threat of jail to show up at some strange place, to be ordered around by strangers, and then be forced to learn something like computer programming in a couple days, by watching two adversaries working on the same project. Then they must judge whether they think the program is right or wrong and go back to their lives, confused by many of the things that just happened.

The FBI, while law enforcement, is acting in accordance with its own incentives too. And in the appropriate case, that may be losing the case the keep their secrets:

The solution will be found in the most severe sanction a judge can impose on the government, dismissal!  Yes, that’s the ticket. Just dismiss the case and that will create the appearance of a powerful and just legal system, one that won’t take any shit from the FBI.

And so the order dismissing the case against the defendant who committed the Crime Everyone Hates in the First Degree is issued, the defendant and his lawyer walk away happy, defense lawyers and media applaud the court’s assertion of hegemony over the guys with the guns, and we believe in the legal system for one more day.

Except the guy who committed the Crime Everyone Hates is free to commit it again on someone’s kid. The lies told to prosecutors, who repeat them to judges, continue to be told. Forget about the lies told to defendants and their lawyers, since no one cares about them anyway, due process being honored only in the breach.  And the government, by its most powerful sons, continues to do as it pleases despite the platitudes about this being a nation of laws, not men with guns.

Why does this happen? Because the alternative reveals that the system can only work one way, where the various branches of government don’t push each other too hard, to the point where a clash of power is unavoidable.  When that happens, the cracks are revealed for all to see, that the legal system works only when the guys with guns want it to work, and the stern-voiced jurists are only as powerful as the guys with guns allow them to be.

When it comes to the FBI protecting the secret eleven herbs and spices, people like victims, judges, prosecutors, and even other law enforcement agencies are simply potential obstacles to be overcome. Operational security demands that most people be kept at arm’s length. It’s a depressing observation. But it leaves the question unanswered as to why secret keeping is the paramount concern for the FBI.

Radley Balko is famous (or infamous, depending on your perspective) for arguing that local police agencies have deliberately militarized themselves, moving from Sheriff Andy to Dirty Harry. Balko argues that federal law and incentives have played a key role in this militarization. Besides congressional law-making, Balko cites to presidential actions, such the 1986 decision by Regan to designate drugs a national security risk. Busting a street corner dealer is national security now. Similar to local law enforcement agencies engaged in defending national security by taking down drug dealers, the FBI is sensitive to changes in focuses of national security efforts.

Today is the 41st anniversary of the Church Committee. In the years before the committee’s report, the FBI, CIA, and NSA were involved in a number of activities that blurred the line between criminal investigation, intelligence gathering, and war. For example, J. Edgar Hoover, the longtime director of the FBI, is notorious for keeping dossiers on many Americans, including President Kennedy and Martin Luther King, Jr. And then there were all those assassination attempts, overthrows, and who knows what else.

Not surprisingly, the Church Committee concluded the following:

But a major conclusion of this inquiry is that congressional oversight is necessary to assure that in the future our intelligence community functions effectively, within the framework of the Constitution.

The Committee is of the view that many of the unlawful actions taken by officials of the intelligence agencies were rationalized as their public duty. It was necessary for the Committee to understand how the pursuit of the public good could have the opposite effect.

As Justice Brandeis observed:

Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are benificent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

But then 9/11 happened and everything changed.

In particular, Hoover’s legacy left the FBI with a lot of baggage when it came to their dual missions of criminal investigation and domestic counter-espionage. And after the 9/11 attack, the FBI, as well as other federal agencies, blamed many of the reforms that sprung from the Church Committee for their failures. While this proved convenient, the 9/11 Commission did not agree. And the primary author of the USA Patriot Act now sees folly in the Act. But it didn’t matter by then or now because many of the reforms had been washed away in the panicked months following 9/11.

What all of this means is that post-9/11, the FBI pivoted away from being a law enforcement agency that sometimes did intelligence work, to one that saw itself as primarily doing intelligence-type work and sometimes law enforcement. In that light, the FBI as intelligence agency prizes secrecy. Under the law enforcement paradigm, eventually you have to publicly submit your evidence, subject your agents to examination, and have your evidence tested. Those sorts of things are entirely unacceptable in an intelligence context.

So the FBI will keep treating attorneys and the public like mushrooms until it pivots back to being a law enforcement agency foremost. Assuming that ever happens. And so long as Congress and the public want intelligence to be the FBI’s mission, enjoy being kept in the dark—consequences to criminal cases be damned.  Even if that means the bad guys receive a ‘Get of Jail Free’ card.

3 Comments on this post.

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  • Noel Erinjeri
    6 May 2016 at 10:18 am - Reply

    The FBI needs to be split into two agencies, one focusing on law enforcement and the other on intelligence. The law enforcement side would be a police agency, subject to all the requirements of procedural and substantive due process, and open to discovery, FOIA, and cross-examination. The intelligence agency could be more freewheeling, with the understanding that none of the evidence it gathered could be used in court.

    It’s not a perfect solution, but drawing a bright line between law enforcement and intelligence functions would be a good start.

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    7 June 2016 at 9:48 am - Reply

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