Commentary

Why Reward Failure?

Congress is now poised to renew the PATRIOT Act, which will dramatically expand the powers of the FBI. Have our lawmakers found the right “balance” between liberty and security? Had the FBI’s record of performance been outstanding, reasonable people could debate whether it is necessary to confer more power on this already powerful police agency. Alas, the FBI’s record cannot even be regarded as satisfactory.

This year began with the computer software imbroglio. In the 1990s, FBI agents rightly complained about their backward computer systems. Access to the Internet was slow and e-mail was virtually nonexistent. Then, after ignoring that problem for years, the bureau lurched in the other direction, spending $170 million on a computer upgrade. The bureau’s private contractor suffered in silence as FBI officials changed their contract 36 times, with repeated design changes. Finally, after telling Congress about the steady progress it was making, the bureau abruptly announced last February that the final product was so outdated that it was unusable. The problem of outdated software festers still.

In May, after the American Civil Liberties Union filed a lawsuit, FBI documents came to light that showed that the bureau dispatched its “terrorism” units to investigate anti-war protesters who were gearing up for the 2004 Democratic National Convention. The protesters claimed those subsequent “interviews” were an attempt to intimidate them. The FBI rejoined that every interview stemmed from specific “threat” information. To be sure, sometimes protesters commit acts of vandalism, but those crimes require the intervention of local cops, not the FBI’s terrorism unit. If Cindy Sheehan jumps the White House fence, the Secret Service can arrest her, but the FBI has never shown any connection between the anti-war protesters and al-Qaeda sleeper cells or Iraqi insurgents. Is the bureau confusing dissent with disloyalty, as it did in the 1960s?

In June, the inspector general was finally permitted to release his findings regarding the FBI’s inability to detect and disrupt the September 11, 2001 terrorist attacks. The inspector’s ultimate conclusion — that the attacks represented a “significant failure” by the FBI — surprised no one. But this report contained some awful details that had gone previously unreported. For one, the bureau missed at least five chances to detect the presence of two of the suicidal hijackers. When the bureau learned that the terrorist operatives had entered the United States, the case was assigned to “a single, inexperienced agent and without any particular priority.” Can any legal expert find a better example of “criminal negligence”?

In July, Inspector General Glenn Fine reported that the FBI had failed to translate more than 8,000 hours of audio wiretap recording related to counterterrorism investigations. If there is evidence of an impending attack in those recordings, no one can act on it. But it gets worse. When one FBI translator, Sibol Edmonds, stepped forward to report incompetence and possible corruption in the bureau’s translation division, she was discharged. Edmonds told 60 Minutes that her supervisor encouraged her to take lots of breaks so that piles of work would remain undone. In that way, this bureaucrat explained, the FBI could persuade the Congress to allocate more funds to their division. Edmonds tried to take this outrageous directive up the chain of command, but was told to pack up and get out.

In September, the inspector general reported that the FBI often violated its own rules for handling confidential informants. These informers are typically criminals who snitch on other criminals in return for prosecutorial immunity. Giving a criminal a get-out-of-jail-free card may be necessary at times, but it is a power that carries an awesome responsibility. After all, how many crime victims want to be told that their attacker will not be punished because of his “connections with the feds”? The FBI tells everyone that it can be trusted to handle these matters, but when the inspector general looked over the shoulders of FBI agents, he found that in nearly 9 out of every 10 cases, the bureau had flouted the rules, such as by letting its snitches run amok.

Last month, a Freedom of Information Act lawsuit revealed that the bureau is presently investigating hundreds of potential violations relating to its use of secret surveillance operations. Hundreds? Had this lawsuit not been filed, it is highly unlikely that the FBI would have ever brought these problems to the attention of Congress or the press.

The inspector general and other watchdog groups have exposed a disturbing pattern of problems at the FBI, but our policymakers remain aloof. The politicians will pretend to be shocked by more bureaucratic shenanigans, but they let it go on. Shame on them for their indifference to both our security and our liberty.

Timothy Lynch is director of the Cato Institute’s Project on Criminal Justice and a contributor and co-editor of the Cato Supreme Court Review.