The secrets of the FBI

FBI and Witness Protection

The Federal Bureau of Investigation (FBI) is perceived by the public primarily as a law enforcement agency, though more and more the public is also noting the role of the FBI in fighting terrorism and in keeping track of foreign nationals in the United States. Still, the public may not immediately recognize the fact that the FBI is, above all, a bureaucracy, a federal agency that is responsible for a number of important law enforcement actions every day, that is part of the legal establishment and that makes recommendations as well as requests of the Congress concerning the passage of laws, that may also help in the prosecution of legal cases in the federal system, that is indeed part of the larger bureaucratic umbrella of the Justice Department, and so on. The events of 9-11 increased the visibility of the FBI in terrorist cases even as they demonstrated the existing problems with the communication between the FBI, the CIA, and other law enforcement agencies throughout the country. The FBI has long had a sterling reputation for its role in law enforcement and especially for its technical expertise, with law enforcement across the nation depending on the FBI laboratory in Washington for analyzing evidence, matching fingerprints, and similar tasks. At the same time, the FBI has taken a beating at times, such as because of revelations about the way J. Edgar Hoover ran the agency when he was its head, FBI involvement in COINTELPRO, the counter intelligence program often directed at American citizens only exercising their rights, and especially because of cases like that of Robert Hanssen, the longtime FBI agent who was accused of passing secrets to Moscow over a period of some fifteen years. On a more day-to-day basis, the FBI has much to say about the placement of witnesses in federal protection, and this program, seen as necessary for the prosecution of certain types of cases (notably mob cases), often requires making deals with very bad people in order to prosecute even worse people. Many people see this program as too lenient on thieves and murders and object when the beneficiary is someone like Sammy "The Bull" Gravano, rewarded for testifying against mob boss John Gotti. Gravano was implicated in numerous murders, and he was later convicted on drug offenses after he left the witness protection program. Such cases raise the question of how the FBI decides who is given immunity and protection and whether these decisions are being made properly or even should be made at all.

Witness Protection

Kessler (2002) describes the nature of the FBI and gives much of its history since its founding in 1908. The agency began as a small unit within the Justice Department. At the time, crime was seen as a local matter, with the FBI intended to investigate only certain federal crimes. Kessler writes, "Despite the limitations on its power, questions arose very quickly about the extent of the bureau's authority and its methods" (Kessler, 2002, p. 10). Such questions would persist, often asked with reference to different powers the FBI would assume over the years. New concerns meant new authority for the FBI and new types of crime for the FBI to be investigating, as when fear of Communism expanded the role of the FBI beginning after World War I and continuing throughout the twentieth century and beyond. The FBI became a much more important bureau after Hoover took it over, and he built the organization into a truly professional law enforcement arm while at times pursuing his own ends through political pressure and other means. For the most part, though, the reputation of the FBI was enhanced under his leadership as the agency became better known to the public and represented a major protective body for the country.

At the same time, Hoover had certain blind spots that allowed some problems to gain more power than they need have had. Organized crime was long a point of contention in America, with some believing there was no such thing while others were convinced that there was. J. Edgar Hoover denied the existence of organized crime and maintained this position until the 1960s, when he was forced to admit that organized crime does exist and had a stranglehold in some areas of the country. Organized crime is defined as differing from other types of crime over the goods and services provided and because of the relationship between the criminal enterprise and its customers:

Organized crime supplies goods or services wanted by a large number of people -- desperately needed cash, narcotics, prostitution, the chance to gamble. These are its principle sources of income. They are consensual crimes for the most part, desired by the consuming public. This fact distinguishes the main activities of organized crime from most other crime (Clark, 1970, p. 68).

The public creates the demand for the "products" of organized crime, which means that law enforcement must work against the strong desires of a significant sector of the public to a great extent. For Hoover, though, denying the existence of organized crime was a way to deny that the FBI had allowed such a body of criminals to develop and also a way of not having to take on another major fight that might not be won that easily. America is a natural culture for organized crime for several reasons. For one thing, Americans often try to prohibit things that people want, such as gambling, drugs, money at high rates of interest, prostitution, and liquor. At the same time, American society realizes that it lacks the means and the will to enforce these prohibitions fully. Criminal enterprises enter the gap to supply what the public, or a sector of the public, demands. Furthermore, Americans often have tolerated conditions leaving millions of people with no significant rights they can enforce, seen in the fact that the poor may be victims of crime, with no power to do anything about it, leaving many seeing crime as acceptable and even natural in the landscape. People made to think this way often do not bother to report crime and so become the natural prey of organized crime. Finally, the nation often makes it easy for organized crime to operate by neglecting law enforcement (Clark, 1970, pp. 69-70), which was certainly the case when Hoover was failing to acknowledge that organized crime even existed.

The Mafia arrived in the United States in the nineteenth century, entering as part of the culture of the immigrants from Sicily. This aspect of organized crime is clearly less significant today than it was in the past. Gang wars in the 1920s and 1930s exceeded anything seen before World War II. Millions of Italians immigrated to America, and many of these came to escape the Mafia only to find it transplanted along with the rest of the community. The Mafia was historically a family affair, but the family tradition has weakened in the Mafia today as the strict discipline and tight organization of the mob have dissipated. The federal government plays a strong role in the control of organized crime, for the incidence of interstate activity is high among the families, and also because this is truly a national problem and not merely a local one. Jurisdiction is only one reason for the involvement of the federal government, with the other major reason being that the presence of any significant organized crime in a region necessarily means local criminal justice has been corrupted in some degree:

The major role of federal enforcement against organized crime is as a liberator of local law enforcement. Federal agents can strike at organized crime that has paralyzed local police. Federal action can place local law enforcement in control again (Clark, 1970, p. 77).

Organized crime affects the lives of every American, though most people do not realize this fact. Organized crime operates secretly, for one thing, and so affects the public indirectly because of the higher prices people must pay for goods and services that are in some way controlled by organized crime. According to the President's 1967 Commission on Law Enforcement, were organized crime to pay taxes on the money it made, everyone else in the country could pay less in taxes. The way organized crime is organized would also be one reason why breaking its grip required the cooperation of some criminals. The mob long been divided into groups or "families," each with its own boss, with underlings to carry out the orders of the boss and to report directly to him. The boss in each case would stake out his own territory and be paid a portion of the profits from all the criminal activity under his control. Secrecy is the watchword, and so written records are not kept as much of the collection and distribution of cash is handled informally. The crime families generally operated in the large cities, such as New York, Chicago, Miami, and Los Angeles, and while the families all used similar organizations and methods, there did not seem to be a single ruling council overseeing all. Even thenm once in a while the heads of the more powerful families would meet to work out differences (Meltzer, 1990, pp. 40-41). Still, striking at the mob could not be effected easily by the use of normal investigative methods alone.

Indeed, the failure of the FBI to use even those methods in a concerted manner is noted by Kessler (2002), who reports that Hoover usually claimed that the FBI had no jurisdiction in such cases, which Kessler denies, citing laws on interstate transportation of stolen goods. During the Kennedy Administration, Hoover was forced to admit that organized crime existed and also put more pressure on the mafia as a result. Still, as Kessler (2002) notes, "the bureau still adopted a haphazard, piecemeal approach, charging Mafia figures if they submitted a false loan application to the government, for example. Having been allowed to grow, the Mafia was now difficult to eradicate" (Kessler, 2002, p. 104). Kessler contrasts the way the FBI addressed the issue with the way the Federal Bureau of Narcotics did. Under the leadership of Harry Anslinger, this agency recognized the existence of organized crime and convicted Mafia soldier Joseph Valachi in 1959. this success would also show the major approach to be taken to these matters thereafter as Valachi, believing he was to be killed by the Genovese crime family,

Agreed to cooperate and provide evidence, "first for the Bureau of Narcotics and then for the FBI" (Kessler, 2002, p. 105). Valachi was already in federal prison and so could be protected as well as possible in that setting. Others who could be persuaded to talk -- and now the FBI was seeking such informants and was actively attacking the Mafia -- needed a different form of protection.

The Witness Protection Program

The law creating and governing the Witness Protection Program is embodied in Section 3521 of the U.S. Code, which reads:

The Attorney General may provide for the relocation and other protection of a witness or a potential witness for the Federal Government or for a State government in an official proceeding concerning an organized criminal activity or other serious offense, if the Attorney General determines that an offense involving a crime of violence directed at the witness with respect to that proceeding, an offense set forth in chapter 73 of this title directed at the witness, or a State offense that is similar in nature to either such offense, is likely to be committed. The Attorney General may also provide for the relocation and other protection of the immediate family of, or a person otherwise closely associated with, such witness or potential witness if the family or person may also be endangered on account of the participation of the witness in the judicial proceeding (Part II-?Criminal Procedure, 1999).

The law also explains what the Attorney General can do to protect a witness: 1) provide suitable documents to enable the person to establish a new identity or otherwise protect the person; 2) provide housing for the person; 3) provide for the transportation of household furniture and other personal property to a new residence of the person; 4) provide to the person a payment to meet basic living expenses; 5) assist the person in obtaining employment; 6) provide other services necessary to assist the person in becoming self-sustaining; 7) disclose or refuse to disclose the identity or location of the person relocated or protected, or any other matter concerning the person or the program, after weighing the danger such a disclosure would pose to the person, the detriment it would cause to the general effectiveness of the program, and the benefit it would afford to the public or to the person seeking the disclosure; 8) protect the confidentiality of the identity and location of persons subject to registration requirements as convicted offenders under Federal or State law, including prescribing alternative procedures to those otherwise provided by Federal or State law for registration and tracking of such persons; and 9) exempt procurement for services, materials, and supplies, and the renovation and construction of safe sites within existing buildings, from other provisions of law as may be required to maintain the security of protective witnesses and the integrity of the Witness Security Program (Part II-?Criminal Procedure, 1999).

The facilitation of the Federal Witness Protection Program involves the oldest federal law enforcement agency, the United States Marshals Service, which operates from 427 office locations in all 94 Federal judicial districts nationwide, from Guam to Puerto Rico, and from Alaska to Florida. The Service is responsible several other tasks as well, but it specifically operates the Federal Witness Security program to ensue the safety of endangered government witnesses (United States Marshals Service, 2007). Because of the Anti-Drug Abuse Act of 1988, the Parole Commission also has ongoing responsibility over all state defendants who are accepted into the Witness Protection Program, for the program has been expanded beyond witnesses in federal cases. After a state defendant or witness is accepted into this program, the Parole Commission takes jurisdiction over the case (Hoffman, 1997, p. 56).

The Witness Security Program was first authorized in 1970 by the Organized Crime Control Act of 1970 (Public Law 91-452), later amended by the Comprehensive Crime Control Act of 1984. Under this law, the United States Marshals Service provides for the security, health, and safety of government witnesses and their immediate dependents whose lives are in danger because of their testimony against organized crime, drug traffickers, terrorists, and other major criminals. The reason for the program was to serve as a tool in the government's war against major criminal conspiracies and organized crime. Since the start of the program, an overall conviction rate of 89% has been obtained as a result of testimony by protected witnesses. The Attorney General decides that a witness qualifies for WITSEC protection, and he or she bases this decision on recommendations by U.S. Attorneys assigned to major federal cases throughout the nation. For a state court case, the determination is based on a request from a State Attorney General through the appropriate U.S. Attorney's office. The witness then receives a pre-admittance briefing by Marshals Service personnel and agrees to enter the program, and the next step would normally be the immediate removal of the witness and his/her immediate family members from the danger area, to be relocated to a secure area selected by the Marshals Service. The move also typically involves obtaining a court-ordered name change, and the Service provides new identities with authentic documentation for the witness and family. Certain types of assistance are also provided to the witness, including housing, medical care, job training, and employment. The witness may receive subsistence funding to cover basic living expenses, at least until the witness becomes self-sufficient in the relocation area. The Marshals Service handles 24?hour protection to all witnesses while they are in a "threat" environment and as they return to a danger area for pre-trial conferences, testimony at trials, or other court appearances. The program is operated from three levels: Marshals Service Headquarters; 10 regional offices; and Metro units, each with a highly trained Witness Security Inspector to provide assistance to witnesses and to serve as an adviser to the local Marshal on witness security matters. Less than ten percent of protected witnesses with criminal histories are arrested and charged with crimes after joining the program, a rate of recidivism among program participants that is less than half the rate of those released from the nation's prisons (U.S. Marshals Service-?Witness Security, 2007).

Still, the program has been criticized on various grounds over the years. One criticism is the charge that it has often been used to protect people who should not be given protection. One case often cited is tht of Carlos Lehder Rivas, once listed as America's public enemy No. 1, the man who turned Colombia cocaine trade into the Medellin Cartel, a more efficient and murderous operation than existed before. The cartel was responsible for 80% of the cocaine smuggled into the United States. After Lehder was finally captured in a Colombian jungle in 1987, he immediately sought a deal that would in time put him in the federal witness protection program. This was possible at the time because the Justice Department wanted Panamanian President Manuel Noriega, who may have been a minor player in the drug trade but who was a bigger political catch.

Lehder testified against Noriega in 1992 and had his sentence cut from life plus 135 years to 55 years. Lehder would later claim that he had an additional deal to reduce his sentence further and make him eligible for deportation and freedom:

The Lehder case illustrates how far the federal government's use of the witness protection program has moved from its original intent of protecting innocent victims or informants who testify against major crime figures. Lehder was rewarded for turning in someone who was in effect an underling in his operation. For his testimony, he got special treatment in prison, a drastically reduced sentence, and protection in this country for his family. and, only a small fraction of his $2.5 billion cocaine-built fortune was seized (Moushey, 1996, p. A1).

Some people in the program itself have also raised complaints, stating that the government has not lived up to its agreement in some way or that the program itself is no longer needed in an era when the formerly powerful mob is no longer powerful: "Omerta, the mob law of silence, is long dead. With so many informants, targeting just one is pointless" (McShane, 2000, p. A1). The criminality of people like Sammy Gravano even while in the program has also been a point of contention, raising the question of how much the program is protecting questionable witnesses and not the public. The public questions the way the FBI and others decide whom to protect when people hear about cases like that of Boston mob hit man Joseph Barboza, who was aided by the FBI in 1971 to get him off of death row in California so he would not recant in a 1965 Massachusetts case that sent four innocent men to prison. He was aided when two FBI agents testified on his behalf. This has been deemed a cover-up that lasted more than thirty years. Two of the men wrongly sentenced died while in prison, while the other two were released after serving more than thirty years. The cover-p was discovered when the files of the two FBI agents who participated "revealed Barboza lied to the jury when he accused the four men of playing roles in the murder of the amateur boxer who offended Mob bosses" (Lawrence 2001, para. 13). Evidence has also been offered to show that Barboza killed several people while in the Witness Protection Program. Barboza himself was killed by a hitman in 1976.

Other cases have suggested other sorts of wrongdoing involving the program. Mafia leader Vincent Ferrara was convicted for a murder in 1985 and recently petitioned the court to overturn his sentence because a key witness stated that the FBI had coerced him to name Ferrara. The witness was then put into the Witness Protection Program, and he has stated that he testified as he did because FBI agents threatened to put him in prison for life if he did not (Lawrence, 2003).

Analysis

The failures perceived in the Witness Protection Program are not simply FBI failures, though some of the problem leading to the creation of the program was more an FBI failure than anything else. The refusal of J. Edgar Hoover to acknowledge the existence of organized crime for as long as he did allowed the mob to grow and gain power. Had he put FBI resources to better use earlier, the power of organized crime might have been much reduced, making the Witness Protection Program less necessary. Kessler (2002) notes that there is much speculation about why Hoover took this approach. He says that one reason offered us that building Mafia cases might be too time-consuming and so might also corrupt FBI agents. The first idea fails to take into account that crime by the mob was so pervasive and so harmful that it should take priority, and the second idea is insulting to the professionalism of the agency. Kessler does agree that Hoover was obsessed with building arrest statistics to make the agency look invincible, but one failure here was that Hoover gave equal importance to all cases, as if a minor crime were as important as a major one. He was thus not allocating resources based on real need but on how to make the bureau look best to an uniformed public. As Kessler writes, "Hoover loved to present Congress with statistics showing how many cases had been closed by arrests and how much money had been recovered as a result" (Kessler, 2002, pp. 106-107).

Another reason offered was that Hoover did not pursue the Mafia because Mafia leaders were blackmailing him, notably about his predilection for cross-dressing and homosexual liaisons. Evidence for this behavior is unclear and unconfirmed, and the idea that Hoover was being blackmailed at all is highly speculative. Kessler also notes that Hoover shied away from political cases, and he says that Hoover might have done so in both cases to protect his job. If he went after politicians, they would not support him. Kessler also says the fact that some politicians were associated in varying degrees with mob figures might have made Hoover believe they would find a way to unseat him if he had attacked organized crime. Kessler writes,

As FBI director, Hoover had an obligation to go after both Mafia figures and corrupt politicians. Yet, until he was forced into investigating organized crime, those two targets were sacrosanct (Kessler, 2002, p. 118).

Other theorists offer their views of why the FBI under Hoover may have failed.

O'Hara (2005) mentions several categories of failure. One such failure is structural failure that "occurs when operations, procedures and processes that are functioning according to design lead to failure" (O'Hara, 2005, p.18). Another failure mentioned is oversight failure, which "occurs when operational supervision and oversight staff fail to detect and/or address organizational conditions that depart significantly from the norm" (O'Hara, 2005, p.19). A third failure O'Hara (2005) identifies is cultural deviation, which "occurs when elements of the organization increasingly operate according to their own standards, with little regard for the larger organization and its rules" (Phara, 2005, p. 19). These categories of failure could centralize the problems that persist and that will continue to plague the FBI. Some of these failures would therefore continue after the Hoover era, especially given that Hoover shaped the internal culture of the organization so that that culture is not dependent on him but persists out of inertia. This could be a major source of institutional problems for the bureau in the future and was clearly part of the problem with 9-11, when the FBI failed to communicate with other agencies and to share information that might have helped protect the country, as did other agencies in the government.