News (Media Awareness Project) - US: Failing To Police Their Own - Win At All Costs series |
| Title: | US: Failing To Police Their Own - Win At All Costs series |
| Published On: | 1998-12-13 |
| Source: | Pittsburgh Post-Gazette (PA) |
| Fetched On: | 2008-09-06 18:06:29 |
FAILING TO POLICE THEIR OWN
JusticeS Oversight Office Called Ineffective, Unresponsive
The story was as devastating as it was untrue.
Newspapers across the country, including the Post-Gazette, reported in 1990
that Roger Pilon, a former Justice Department official, had been
investigated and forced to resign for leaking -- through his wife -- top
secret information to the apartheid government of South Africa.
But at the time, the FBI already had cleared Pilon of the unfounded charge.
In fact, the Justice Department, in a letter sent in the fall of 1988
exonerating him and his wife of wrongdoing, had thanked Pilon for his
patience and cooperation.
It would be years before Pilon learned in court that the men who leaked
this erroneous information to newspapers -- leaks that violated federal
privacy laws -- included top attorneys at the Office of Professional
Responsibility, who were angry that the Justice Department hadnt heeded
their recommendation to fire him.
OPR is the very office that is supposed to ensure that federal lawyers
abide by the laws and ethical standards set by the federal government.
Pilon figured such blatant misconduct within the Justice Departments own
watchdog agency would be punished. He was wrong. He eventually sued the
Justice Department and in 1996 received a $250,000 settlement, but no one
was ever disciplined.
"In negotiations (with the Justice Department), we asked that disciplinary
action be taken," Pilon told Congress at a 1996 hearing on the ethical
responsibility of attorneys. "That was the first thing to go. The
department, it seems, would rather pay money -- the taxpayers money --
than discipline . . . its own."
His experience mirrors many of the incidents detailed by the Post-Gazettes
two-year investigation into misconduct by federal agents and prosecutors.
Even when misconduct is clear, federal officials are loath to acknowledge
it, punish it or ensure that it doesnt happen again.
U.S. Rep. John Murtha, D-Johnstown, whose Citizens Protection Act passed
the House last year before being partially dismantled in a conference
committee, last week described the Post-Gazette series as a diagram showing
what needs to be reformed.
He said he has received calls complaining about misconduct by federal law
enforcement officers from around the country since the series started three
weeks ago.
Murtha said he will press for legislation to address problems raised in the
series and will send a copy of the series to every member of Congress along
with a letter describing the investigation as "required reading."
Referring to the Justice Department, he said: "When you have the ability
and the vast resources to take away a persons liberty, you better play by
the rules."
Rogue Investigators
Created by the Justice Department in 1975, OPR investigates complaints
lodged against Justice Department attorneys "involving violation of any
standard imposed by law, applicable rules of professional conduct, or
Department policy."
It also oversees internal investigations by the FBI and DEA. The U.S.
Customs Department and Bureau of Alcohol, Tobacco and Firearms have their
own internal affairs sections.
OPR employs 19 attorneys -- its staff was doubled after 1995 Senate
hearings into disastrous confrontations by federal agents at Ruby Ridge,
Idaho, and Waco, Texas.
The Justice Department in a statement Friday said the following changes
have been made since Janet Reno was appointed attorney general in 1993: The
OPR now conducts investigations as soon as it learns of misconduct
accusations rather than waiting until after litigation ends; it completes
investigations even if an attorney resigns or retires; it publicly
discloses results of OPR probes "in certain cases"; and it files complaints
with state bar associations against lawyers who make "bad-faith complaints"
with OPR.
The Justice Department also said that the U.S. Drug Enforcement
Administration and FBI Offices of Professional Responsibilities have been
reorganized and expanded.
In Roger Pilons case, it looked as though the system had worked.
After a nine-month FBI investigation in 1988, he and his wife, who lost an
appointment at the Department of the Interior because of the probe, were
cleared of charges that theyd illegally leaked classified information to
the government of South Africa.
But OPR wasnt satisfied with the FBI probe and initiated its own
investigation, which concluded that Pilon should be asked to resign or be
fired. The Attorney Generals office then reviewed both investigations,
along with rebuttals by the Pilons attorney. Again, Pilon and his wife
were cleared. Afterward, they both resigned from their government posts to
take jobs in the private sector.
Later, Pilon would learn that OPR attorneys thought hed been cleared by
the Justice Department because then-Attorney General Dick Thornburgh was
miffed over an OPR investigation into two of his aides and wanted to
discredit the office.
In an annual report published in 1989, the OPR made this erroneous
statement: a high ranking Justice Department official had been forced to
resign because he may have disclosed classified information to a foreign
government. Newspapers quickly connected Pilon to the statement. The
Justice Department again exonerated the couple, made it clear that Pilon
had left for another job on his own volition, and this time paid Pilon and
his wife $25,000 to cover legal expenses.
This was followed by still more leaks discrediting Pilon. This time he
sued. The Justice Department fought the case for more than six years, and
finally lost. In 1996, the department agreed to pay him $250,000.
OPR never disputed the leaks in court proceedings -- it argued the
disclosures didnt violate the law. The U.S. Court of Appeals noted that
the leaks had been carried out by OPR Deputy Counsel Richard Rogers and
Peter Nowinski, who had worked on the Pilon case but left the Justice
Department before he leaked the materials to the press.
OPR General Counsel Michael Shaheen was also questioned in the case. He
denied in a deposition having done anything wrong. But the appeals court
noted in its ruling a later deposition given by former Deputy Attorney
General Donald B. Ayer, in which Ayer said Shaheen had tried to release
confidential information to him about Pilon after Ayer had resigned from
the department. Pilon said Shaheen was not questioned again after Ayer gave
his testimony.
Shaheen could not be reached for comment.
Michael Gordon, a Justice Department spokesman, said: "No sanctions were
imposed on any OPR official [in the Pilon case] because the Department
determined that the conduct of the officials was legal." The appeals court
judge disagreed.
Nowinski is now a federal magistrate in California and did not return a
telephone call seeking comment.
Rogers eventually served as interim head of the OPR before being replaced
last May. The Justice Department did not make him available for an interview.
Shaheen retired from the OPR last December. In June, he was appointed by
Independent Counsel Kenneth Starr to examine allegations that a key witness
in the Whitewater scandal -- David Hale -- had received cash from critics
of President Clinton.
Pilon in 1996 testified in support of Murthas Citizens Protection Act. He
said the mind set in the Department of Justice has not changed, and he
still has difficulty fathoming efforts to smear him.
"The only thing I can think of, and others have said it as well, is that
Shaheen is a guy used to winning, and this is a case that he has lost at
every turn," Pilon told the Post-Gazette.
Scrutinizing OPR
The effectiveness of OPR in its fight against misconduct is nearly
impossible to quantify.
The agency issues annual reports regarding its work, but no specific cases
are discussed.
The Post-Gazette talked to nearly 200 people who had filed complaints with
the OPR. Most of them said the agency simply wrote them a letter saying it
found no basis for their complaints. A few said OPR told them it was taking
action. None of the complainants ever learned what that action was.
The General Accounting Office in 1993 reported a troubling pattern in 59
cases the GAO had monitored as the result of a 1992 audit of OPR.
It found OPR sometimes closed cases before doing basic investigative work
like contacting other Justice Department agencies who were involved in the
probes that led to complaints.
"Although OPR is responsible for helping to ensure that Justice employees
uphold high ethical standards, OPR did not ask for or expect ... a response
from (other Justice Department entities) concerning its investigative
outcome," the GAO said.
Marvin Miller, who has served as chairman of the ethics caucus of the
National Association of Criminal Defense Attorneys, said the problem is a
simple one: "The government will not prosecute its own.
"Ive had cases where what they did was worse than what they claim the
defendants did, and they are completely exempt from prosecution. No matter
what kind of misconduct was committed, its OK."
Arnold I. Burns, who served as deputy attorney general for President
Reagan, said the problem may also be a matter of money.
OPR was staffed with capable people when he was in office, Burns said. "The
problem was they had too limited a budget, a zillion cases and few people
to run them, so it was not an effective check."
Murthas Concern
OPR is the focus of legislation U.S. Rep. Murtha wants to see passed next
year. He wants the watchdog agency to make public all of its findings, and
he wants Justice Department employees who engage in misconduct to face
specific penalties from OPR.
"If they do violate their obligations and the law, there will be
punishment," he said.
Murthas concerns about overzealous federal prosecutions is personal.
He watched as his colleague, Rep. Joseph McDade, R-Scranton, had his
political career almost destroyed by an eight-year federal investigation
into allegations of accepting kickbacks from contractors he helped get
government work.
In 1996, a jury acquitted McDade after deliberating only a few hours.
Murtha wondered how an average citizen could have have withstood such an
attack.
So he and McDade introduced the Citizens Protection Act in the House last
year to establish oversight and safeguards that would protect citizens
against unfair and illegal tactics by federal agents and prosecutors.
It was their belief, affirmed by defense attorneys and former federal
prosecutors interviewed for this series, that real reform will require
Congress to establish specific safeguards.
Their bills most important provision would have established an independent
oversight board to monitor federal prosecutors and require them to abide by
the legal ethics laws of the states in which they operate. It also provided
sanctions against prosecutors who knowingly committed misconduct.
Despite opposition from the Justice Department, the legislation was
approved on a broadly bipartisan vote, 345-82.
The House bill became part of the federal appropriations package that
Congress passed in October, and the Justice Department managed through
intense lobbying to have many of the provisions killed in the conference
committee that crafted the budget bill. The provision requiring federal
prosecutors to abide by the ethics laws in the states where they work
remained, but the appropriations bill delays its implementation for six
months.
Murtha said the Justice Department has increased its efforts to have even
the watered-down law repealed before it takes effect in mid-1999.
He said he plans to meet those efforts head-on.
"My fellow members didnt vote overwhelmingly for this because they liked
us," he said. "Each and every one of them know of abuses and understand
what people [whove suffered from those abuses] are saying."
He said he will work to get a bill passed in both the U.S. House and
Senate, "so there is no chance for it to be repealed."
Checked-by: Richard Lake
JusticeS Oversight Office Called Ineffective, Unresponsive
The story was as devastating as it was untrue.
Newspapers across the country, including the Post-Gazette, reported in 1990
that Roger Pilon, a former Justice Department official, had been
investigated and forced to resign for leaking -- through his wife -- top
secret information to the apartheid government of South Africa.
But at the time, the FBI already had cleared Pilon of the unfounded charge.
In fact, the Justice Department, in a letter sent in the fall of 1988
exonerating him and his wife of wrongdoing, had thanked Pilon for his
patience and cooperation.
It would be years before Pilon learned in court that the men who leaked
this erroneous information to newspapers -- leaks that violated federal
privacy laws -- included top attorneys at the Office of Professional
Responsibility, who were angry that the Justice Department hadnt heeded
their recommendation to fire him.
OPR is the very office that is supposed to ensure that federal lawyers
abide by the laws and ethical standards set by the federal government.
Pilon figured such blatant misconduct within the Justice Departments own
watchdog agency would be punished. He was wrong. He eventually sued the
Justice Department and in 1996 received a $250,000 settlement, but no one
was ever disciplined.
"In negotiations (with the Justice Department), we asked that disciplinary
action be taken," Pilon told Congress at a 1996 hearing on the ethical
responsibility of attorneys. "That was the first thing to go. The
department, it seems, would rather pay money -- the taxpayers money --
than discipline . . . its own."
His experience mirrors many of the incidents detailed by the Post-Gazettes
two-year investigation into misconduct by federal agents and prosecutors.
Even when misconduct is clear, federal officials are loath to acknowledge
it, punish it or ensure that it doesnt happen again.
U.S. Rep. John Murtha, D-Johnstown, whose Citizens Protection Act passed
the House last year before being partially dismantled in a conference
committee, last week described the Post-Gazette series as a diagram showing
what needs to be reformed.
He said he has received calls complaining about misconduct by federal law
enforcement officers from around the country since the series started three
weeks ago.
Murtha said he will press for legislation to address problems raised in the
series and will send a copy of the series to every member of Congress along
with a letter describing the investigation as "required reading."
Referring to the Justice Department, he said: "When you have the ability
and the vast resources to take away a persons liberty, you better play by
the rules."
Rogue Investigators
Created by the Justice Department in 1975, OPR investigates complaints
lodged against Justice Department attorneys "involving violation of any
standard imposed by law, applicable rules of professional conduct, or
Department policy."
It also oversees internal investigations by the FBI and DEA. The U.S.
Customs Department and Bureau of Alcohol, Tobacco and Firearms have their
own internal affairs sections.
OPR employs 19 attorneys -- its staff was doubled after 1995 Senate
hearings into disastrous confrontations by federal agents at Ruby Ridge,
Idaho, and Waco, Texas.
The Justice Department in a statement Friday said the following changes
have been made since Janet Reno was appointed attorney general in 1993: The
OPR now conducts investigations as soon as it learns of misconduct
accusations rather than waiting until after litigation ends; it completes
investigations even if an attorney resigns or retires; it publicly
discloses results of OPR probes "in certain cases"; and it files complaints
with state bar associations against lawyers who make "bad-faith complaints"
with OPR.
The Justice Department also said that the U.S. Drug Enforcement
Administration and FBI Offices of Professional Responsibilities have been
reorganized and expanded.
In Roger Pilons case, it looked as though the system had worked.
After a nine-month FBI investigation in 1988, he and his wife, who lost an
appointment at the Department of the Interior because of the probe, were
cleared of charges that theyd illegally leaked classified information to
the government of South Africa.
But OPR wasnt satisfied with the FBI probe and initiated its own
investigation, which concluded that Pilon should be asked to resign or be
fired. The Attorney Generals office then reviewed both investigations,
along with rebuttals by the Pilons attorney. Again, Pilon and his wife
were cleared. Afterward, they both resigned from their government posts to
take jobs in the private sector.
Later, Pilon would learn that OPR attorneys thought hed been cleared by
the Justice Department because then-Attorney General Dick Thornburgh was
miffed over an OPR investigation into two of his aides and wanted to
discredit the office.
In an annual report published in 1989, the OPR made this erroneous
statement: a high ranking Justice Department official had been forced to
resign because he may have disclosed classified information to a foreign
government. Newspapers quickly connected Pilon to the statement. The
Justice Department again exonerated the couple, made it clear that Pilon
had left for another job on his own volition, and this time paid Pilon and
his wife $25,000 to cover legal expenses.
This was followed by still more leaks discrediting Pilon. This time he
sued. The Justice Department fought the case for more than six years, and
finally lost. In 1996, the department agreed to pay him $250,000.
OPR never disputed the leaks in court proceedings -- it argued the
disclosures didnt violate the law. The U.S. Court of Appeals noted that
the leaks had been carried out by OPR Deputy Counsel Richard Rogers and
Peter Nowinski, who had worked on the Pilon case but left the Justice
Department before he leaked the materials to the press.
OPR General Counsel Michael Shaheen was also questioned in the case. He
denied in a deposition having done anything wrong. But the appeals court
noted in its ruling a later deposition given by former Deputy Attorney
General Donald B. Ayer, in which Ayer said Shaheen had tried to release
confidential information to him about Pilon after Ayer had resigned from
the department. Pilon said Shaheen was not questioned again after Ayer gave
his testimony.
Shaheen could not be reached for comment.
Michael Gordon, a Justice Department spokesman, said: "No sanctions were
imposed on any OPR official [in the Pilon case] because the Department
determined that the conduct of the officials was legal." The appeals court
judge disagreed.
Nowinski is now a federal magistrate in California and did not return a
telephone call seeking comment.
Rogers eventually served as interim head of the OPR before being replaced
last May. The Justice Department did not make him available for an interview.
Shaheen retired from the OPR last December. In June, he was appointed by
Independent Counsel Kenneth Starr to examine allegations that a key witness
in the Whitewater scandal -- David Hale -- had received cash from critics
of President Clinton.
Pilon in 1996 testified in support of Murthas Citizens Protection Act. He
said the mind set in the Department of Justice has not changed, and he
still has difficulty fathoming efforts to smear him.
"The only thing I can think of, and others have said it as well, is that
Shaheen is a guy used to winning, and this is a case that he has lost at
every turn," Pilon told the Post-Gazette.
Scrutinizing OPR
The effectiveness of OPR in its fight against misconduct is nearly
impossible to quantify.
The agency issues annual reports regarding its work, but no specific cases
are discussed.
The Post-Gazette talked to nearly 200 people who had filed complaints with
the OPR. Most of them said the agency simply wrote them a letter saying it
found no basis for their complaints. A few said OPR told them it was taking
action. None of the complainants ever learned what that action was.
The General Accounting Office in 1993 reported a troubling pattern in 59
cases the GAO had monitored as the result of a 1992 audit of OPR.
It found OPR sometimes closed cases before doing basic investigative work
like contacting other Justice Department agencies who were involved in the
probes that led to complaints.
"Although OPR is responsible for helping to ensure that Justice employees
uphold high ethical standards, OPR did not ask for or expect ... a response
from (other Justice Department entities) concerning its investigative
outcome," the GAO said.
Marvin Miller, who has served as chairman of the ethics caucus of the
National Association of Criminal Defense Attorneys, said the problem is a
simple one: "The government will not prosecute its own.
"Ive had cases where what they did was worse than what they claim the
defendants did, and they are completely exempt from prosecution. No matter
what kind of misconduct was committed, its OK."
Arnold I. Burns, who served as deputy attorney general for President
Reagan, said the problem may also be a matter of money.
OPR was staffed with capable people when he was in office, Burns said. "The
problem was they had too limited a budget, a zillion cases and few people
to run them, so it was not an effective check."
Murthas Concern
OPR is the focus of legislation U.S. Rep. Murtha wants to see passed next
year. He wants the watchdog agency to make public all of its findings, and
he wants Justice Department employees who engage in misconduct to face
specific penalties from OPR.
"If they do violate their obligations and the law, there will be
punishment," he said.
Murthas concerns about overzealous federal prosecutions is personal.
He watched as his colleague, Rep. Joseph McDade, R-Scranton, had his
political career almost destroyed by an eight-year federal investigation
into allegations of accepting kickbacks from contractors he helped get
government work.
In 1996, a jury acquitted McDade after deliberating only a few hours.
Murtha wondered how an average citizen could have have withstood such an
attack.
So he and McDade introduced the Citizens Protection Act in the House last
year to establish oversight and safeguards that would protect citizens
against unfair and illegal tactics by federal agents and prosecutors.
It was their belief, affirmed by defense attorneys and former federal
prosecutors interviewed for this series, that real reform will require
Congress to establish specific safeguards.
Their bills most important provision would have established an independent
oversight board to monitor federal prosecutors and require them to abide by
the legal ethics laws of the states in which they operate. It also provided
sanctions against prosecutors who knowingly committed misconduct.
Despite opposition from the Justice Department, the legislation was
approved on a broadly bipartisan vote, 345-82.
The House bill became part of the federal appropriations package that
Congress passed in October, and the Justice Department managed through
intense lobbying to have many of the provisions killed in the conference
committee that crafted the budget bill. The provision requiring federal
prosecutors to abide by the ethics laws in the states where they work
remained, but the appropriations bill delays its implementation for six
months.
Murtha said the Justice Department has increased its efforts to have even
the watered-down law repealed before it takes effect in mid-1999.
He said he plans to meet those efforts head-on.
"My fellow members didnt vote overwhelmingly for this because they liked
us," he said. "Each and every one of them know of abuses and understand
what people [whove suffered from those abuses] are saying."
He said he will work to get a bill passed in both the U.S. House and
Senate, "so there is no chance for it to be repealed."
Checked-by: Richard Lake
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