Hindsight from The New Gun Week September 20, 1999
Making the Case for Independent Oversight
by Joseph P. Tartaro
Executive Editor
Just to show how fast the Waco story is developing is evident in the two Waco stories appearing in earlier pages of this issue. In the Page 1 story about the judge's order regarding control of evidence, we report that Attorney General Janet Reno was moving forward with plans to appoint someone to head a new independent investigation of what really happened in 1993. And we mentioned the two names on a short list to head that probe.
In the hours since that was written, it appears that former Sen. John Danforth (R-MO) is about to be officially named to head up the investigation.
In the last issue of Gun Week, I devoted my Hindsight column to a review of some of the facts in the evolving Waco story. I mentioned that the Waco case was one of 10 that had prompted congressional action creating a blue-ribbon panel to investigate and make recommendations regarding federal law enforcement.
That commission was created largely because of the commitment and efforts of a broad-based coalition of organizations spanning the political spectrum from left to right.
'Heads Up' E-mail
As this issue was being prepared for the printer, I received a "Heads Up" e-mail from Greg Nojeim, legislative counsel for the Washington, DC, office of the American Civil Liberties Union (ACLU). Nojeim had been a major player in the coalition mentioned above.Nojeim's e-mail said: "The Commission on the Advancement of Federal Law Enforcement, which was created in part as a result of concern about law enforcement conduct in the Waco and Ruby Ridge cases, is due to issue its report by the end of September. The Commission was tasked in the 1996 anti-terrorism law, with, among other things, making recommendations to Congress to prevent federal law enforcement abuse. The commission is headed by William H. Webster.
"A broad coalition of civil rights, ethnic, 2nd Amendment and religious groups backed the creation of the Commission. By means of a sign-on letter on Jan. 10, 1994, we suggested a number of areas into which such a Commission should look. These included improper use of deadly force, use of para-military units without justification and use of military units and equipment, inadequate investigation of allegations of misconduct, and inappropriate use of forfeiture proceedings to obtain financing of law enforcement activity.
"At least three of the witnesses who testified before the Commission advocated the creation of an on-going, external, independent body to oversee federal law enforcement to ensure that it acts in compliance with the law and the Constitution. On Sunday, Sept. 5, the former Inspector General of the Department of Justice, Michael Bromwich, called for external oversight for the FBI in a Washington Post op-ed (below).
"In addition to backing the coalition's suggestions, ACLU also asked the Commission to focus special attention on the Immigration and Naturalization Service (INS), which has more armed agents with arrest powers than any other federal law enforcement agency, and which has a history of abuses, especially at the border. ACLU also asked the Commission to pay special attention to race-based profiling by elements of federal law enforcement."
Nojeim noted that he had not seen, nor had he heard of, an advance copy of the Commission's report, or any advance executive summary of that report. No one knows at this time whether the Commission will recommend future independent oversight of federal law enforcement agencies.
As might be expected, officials of police agencies usually oppose what is often called "civilian review," and Bromwich addresses many of those arguments in his op-end column in support of on-going independent oversight.
The Washington Post op-ed by Bromwich was titled "An Eye on the FBI," but it has a broader message.
"The controversy over whether FBI personnel used flammable projectiles in the 1993 siege at Waco has occupied headlines for the past two weeks. The issues are what actually happened and how the information that the projectiles were used was concealed, apparently even from the attorney general, for approximately six years," Bromwich began.
"It seems that the short-term crisis will be addressed through the appointment of an independent investigator with no Justice Department or FBI connections, who, one hopes, will be able to sift through the accumulated evidence, find out what happened and present findings and conclusions in a way that will generate public confidence. But this is not a long-term institutional solution. The long-term challenge is to construct a system of oversight that subjects the FBI to an appropriate level of scrutiny, given its enormous power and influence.
"The FBI enjoys a privileged status in the Justice Department's system of oversight. It has its own internal affairs office, which has primary jurisdiction over misconduct allegations involving FBI personnel. Along with the Drug Enforcement Administration, the FBI is treated differently from all other Justice Department law enforcement agencies and offices in having retained that kind of authority, even after the 1988 creation of the department's Office of the Inspector General (OIG).
"The OIG has unlimited authority to investigate criminal and administrative allegations of misconduct in all other law enforcement agencies and offices of the Justice Department; its authority over the FBI is more circumscribed. To conduct such investigations in the FBI, the OIG must obtain the permission of the deputy attorney general or the attorney general.
"This two-tiered system of oversight has no rational basis. It is explained only by history and by the enormous political power of the FBI. Legislative efforts to expand the OIG's oversight over the FBI have gone nowhere. That is because once the FBI weathers the controversies of the moment-in 1997, when the legislation was being considered, it was the OIG's FBI Lab report and its report on the FBI's performance in the Aldrich Ames affair-it is quickly restored to its institutional position of privilege.
"This is part of a broader debate over the merits of internal versus external oversight of law enforcement agencies. Among other places, it is now playing itself out in New York City, where the police department-with the support of the mayor-has resisted creating a credible and powerful oversight agency to deal with allegations of law enforcement misconduct even in the wake of the Louima and Diallo incidents. The arguments, whether made by the FBI or the NYPD, are the same.
"First, it is argued that external oversight bodies deprive agency management of the authority it needs to control the conduct of agency personnel, displacing management's responsibility to investigate and punish misconduct within its own agency.
"The answer is that as a matter of budgetary resources and institutional realities, the bulk of such misconduct investigations would continue to be-and should be-handled by the internal affairs offices, and discipline would be imposed by the agency itself, as would any necessary response to systemic recommendations generated by the investigation. But an executive branch oversight body such as the OIG should have the ability to investigate significant matters without obtaining permission to do so.
"Second, it is argued that external oversight bodies do not adequately understand the cultures of the agencies they oversee, and thus demoralize the employees of those agencies by investigating matters that may involve difficult discretionary judgments.
"The answer is that oversight bodies should be composed of agents and lawyers with substantial law enforcement experience who understand the culture without thinking that it excuses serious mistakes of judgment, much less misconduct.
"A third argument is that external oversight bodies lack sufficient skills to investigate the complicated issues raised by the actions of law enforcement personnel. This argument is both incorrect and a transparent effort to avoid meaningful oversight.
"Oversight over law enforcement agencies is one of the most difficult governmental challenges we face. Law enforcement agencies possess enormous power to deprive citizens of their liberty and their property.
"The credibility of the FBI is vital to ensuring that it continues to command the respect of the American people. In turn, that credibility requires institutional arrangements that provide assurance that its actions are subject to rigorous external oversight.
"This issue will remain long after the Waco matter has been adequately addressed. It never has been adequately dealt with by the Justice Department or by Congress. This would be a good time to do so."
The New Gun Week is published three times a month by the Second Amendment Foundation (SAF) on the 1st, 10th, and 20th. Hindsight is a commentary written by SAF President and Gun Week Executive Editor Joseph P. Tartaro. This commentary may be reprinted so long as credit is given to the author and the publication. For more information or to subscribe, write Gun Week, PO Box 488, Buffalo, NY 14209, or call 716-885-6408 Monday through Friday 9 a.m. to 5 p.m. EST, or inquire on Compuserve to John Krull, Production manager-JohnSAF@Compuserve.com or gunweeksaf@broadviewnet.netAlso, check out the New Gun Week at http://www.GunWeek.com