FBI Surveillance of U.S. Advocacy Groups: Funny If It Weren't So Sad

It was the day after Thanksgiving -- Friday, Nov. 29, 2002 -- and things were slow at the FBI's Pittsburgh office. So slow, in fact, that an eager gumshoe, let's call him "Agent Dwight," seeking to score brownie points, asked his boss for an assignment. The supervisor, let's call him "Agent Michael," carelessly sent the probationary agent out to look for terrorism suspects at an anti-war protest in downtown Pittsburgh. The event had been organized by the Thomas Merton Center, a left-leaning political advocacy group.

But there were no such suspects, at least at that time, and evidently no legitimate justification whatsoever for domestic surveillance of a peaceful activity protected by the free speech clause of the First Amendment. Turns out the FBI supervisor (whom officials still refuse to identify) had sent the newbie agent (whom officials also still refuse to identify) out on a "make work" assignment. The FBI has spent the past eight years trying to cover up this embarrassing mistake, but a stark new Justice Department report indicates the Bureau has mostly succeeded, instead, in making a bad situation worse. Surely the FBI knows better than most that it's the coverup, and not the underlying crime, that usually gets the bad guys in the end.

If we didn't expect more from the Bureau, and if First Amendment rights weren't so held so dear in a time of terror, it would be easy to chuckle at the chronology of events listed in the 209-page report issued Monday by Glenn A. Fine, chief of Justice Department's Office of Inspector General (OIG). The report portrays a "careless" FBI more like the gang from "The Office" -- cutting corners, squabbling with one another, deceiving, doing anything to avoid taking responsibility for their foul-ups -- than the earnest gang from "The Untouchables." It reveals an FBI working to cover its own butt at the expense of genuine investigations; its agents concerned as much with providing what Fine called "incomplete and inconsistent accounts" of events than with owning up to their sloppy work.

Fine did exonerate the FBI for the most serious political and legal charge against it-- that its agents purposely spied on the Merton Center (and People for the Ethical Treatment of Animals and Greenpeace and The Catholic Worker and so on) because of their constitutionally protected views. And this is no small thing. It turns this story from an overtly political one -- Bush-era police harassing left-leaning groups on the eve of war -- into the more familiar one involving persistent government intransigence and deceit. But this is hardly cause for celebration or even relief. "We wrongly spied and then lied about it, but not for the reasons you thought" is neither a sound public policy nor a valid legal explanation.

Indeed, despite the exoneration, few people who read the report will come away with much respect for the inner workings of the Bureau in this instance. Instead, the report is brutal in its assessment of the FBI's conduct throughout the whole affair, from the moment Agent Dwight went on his fool's errand in downtown Pittsburgh to the moment, nearly four years later, when FBI Director Robert Mueller falsely told Congress that Dwight had done so looking for a specific individual as part of an ongoing terror probe. A spokesman for the Bureau on Monday said the FBI "regrets that inaccurate information was provided."

Perhaps unsurprisingly, Agent Dwight and Agent Michael now disagree over who suggested what to whom about tracking the anti-war rally back in 2002. Whatever the case, when Dwight got back from the rally, he evidently wrote up a listless memo which purported (inaccurately and unfairly) to link Pittsburgh's "anti-war activity" with a federal probe into international terrorism. According to the OIG report, this memo "did not contain any description of the FBI's purpose in attending the event. It did not state that the FBI was attempting to identify any terrorism suspects or that" Agent Dwight "had been unsuccessful in doing so." When later confronted by this memo, Agent Dwight conceded to investigators that it was "atrocious on many levels" and did not accurately reflect what had happened at the rally or why he had gone. Agent Dwight had dropped the ball. And Agent Michael, who never should have sent the underlying on a make-work assignment in the first place, didn't immediately clean up the mess, as a good boss should.

But here the story moves from misfeasance to malfeasance, from "The Office" perhaps to "All The President's Men." In February 2006, following a Freedom of Information Act request by the American Civil Liberties Union, another FBI agent, let's call him "Agent Andy," wrote a classic "CYA" memo about the Merton Center surveillance. Agent Andy's note, for posterity (and for the soon-to-be-publicly-released file) indicated that Agent Dwight had been told by Agent Michael to search for a terror investigation "subject" named Farooq Hussaini at the Pittsburgh rally. (Hussaini had been listed as the "contact person" for the Merton rally.) Although the memo was probably conceived, drafted and filed to protect Agent Dwight by justifying his surveillance, Agent Dwight nevertheless told the OIG that Agent Andy's memo was "utterly false" and "wholly, factually inaccurate." Agent Michael, too, told investigators that Agent Dwight was not sent to the rally to specifically search out Hussaini (or anyone else).

The inspector general's office concluded that Andy's memo had "falsely stated" material facts, but investigators could not identify which of the law enforcement agents were lying because the law enforcement "witnesses" said they could not remember the "underlying facts" of the scandal. In other words, eight years later, the OIG still can't determine through interviews with government witnesses whether Agent Andy was lying in his memo or if Agents Dwight and Michael were subsequently lying to investigators. The FBI, remember, is the Bureau that helped convict Martha Stewart of lying to federal agents in 2004 and will now buttress the government's perjury case against Roger Clemens.

There's more. In March 2006, as public pressure over unwarranted domestic surveillance was increasing, the FBI continued to try to cover up for Agents Dwight and Michael (and Andy) by sending out a press release about the Bureau's role in surveilling the Pittsburgh rally. The OIG concluded that the release "contained important information that was false" because it inaccurately stated that Agent Dwight had performed surveillance at the rally because of a pre-known link (Hussaini) to a terrorism probe. And finally, to their eternal discredit, the three agents then let their boss, FBI Director Robert Mueller, go before the Congress and perpetuate the lie they had generated about the rally.

The OIG exonerated Mueller of any suspicion that he intentionally lied to Congress. Instead, Fine and his investigative colleagues believe that the FBI chief was simply relying upon the bad information contained in the false press release that had been generated from the false Agent Andy memo that had sought to cover up for the inapt and inept Agent Dwight memo that followed Agent Michael's poor judgment. But the OIG did conclude that the FBI's Counterterrorism Division continued to stonewall Congress in 2006, even after Senate Judiciary Committee Chairman Pat Leahy (D-Vt.) requested an accounting of the incident. "Inaccurate and misleading" was the way the OIG characterized the FBI response to Leahy.

The OIG has invited the FBI to review its lengthy conclusions to determine whether Dwight or Michael or Andy or anyone else involved in this mess ought to be subjected to administrative review or criminal or civil sanctions. Given the rich history of official obfuscation here, and in light of the relative lack of attention the OIG report generated Monday, it's unlikely such an internal FBI probe will ever take place.

On television, Michael Scott and Dwight Schrute keep their jobs despite their misconduct, because the screenwriters let them do so. Given the findings of fact contained in the OIG's report, given the legal questions that still remain, it's anyone's guess why the real FBI agents responsible for this mess (and its clean-up) evidently have kept their jobs as well.