Federal Judge Cites Misrepresentations as "Deeply Disturbing"
Washington, DC (October 6, 1999) -- A federal judge has found instances where the Department of Justice engaged in "misconduct and bad faith" in an attempt to cover-up improprieties committed by the FBI. The cover-up consisted of repeated misrepresentations of key information in a Freedom of Information Act (FOIA) suit brought by the National Association of Criminal Defense Lawyers (NACDL), aimed at disclosing to the public new information about abuses at the FBI Lab.
In National Ass'n of Criminal Defense Lawyers, et al v. United States Dep't of Justice, NACDL sought information about improprieties at the FBI Lab cited in a report by the DOJ Inspector General. Specifically, NACDL sought disclosure of the names of two FBI employees struck from a DOJ e-mail. The two employees were identified with the possible misappropriation of government property and lying while testifying under oath.
U.S. District Court Judge Gladys Kessler, in her 13-page opinion, found that there was a compelling public interest mandating the disclosure of this information, especially "at a time when the credibility of the FBI as a law enforcement institution is being called into question more seriously that at any other time in its history."
Judge Kessler noted that "Despite this recognition, the government then proceeds to make serious, repeated misrepresentations in its briefs, as well as declarations submitted in support of these briefs, that are deeply disturbing." She added that the government's pleadings "distort the facts" and that, "Indeed the declarations strongly suggest that the FBI Office of Professional Responsibility (OPR) itself may well have engaged in misconduct and bad faith."
"This case establishes one of the reasons the FBI is out of control," said William B. Moffitt, president of NACDL. As Judge Kessler found, where improprieties of the FBI are concerned, instead of engaging in a ''truth first'' policy, the DOJ engages in a ''no truth'' or a ''truth last'' policy. As the abuses are mounting and public confidence in the agency is eroding, the Attorney General and the Director of the FBI fiddle away like Nero while Rome is burning."
In the face of the government's misrepresentations and distortions, Kessler ruled that DOJ's withholding of the employees' names was not justified and that, in fact, disclosure "is necessary to shed full light on the agency's performance of its duties...The Court finds that the public interest in examining the operations of the FBI and ensuring the integrity of the criminal justice system is paramount and far outweighs the private interest."
"Judge Kessler is to be commended for upholding the public trust," Moffitt said.
Dr. Frederic Whitehurst, the former FBI lab scientist who "blew the whistle" on misconduct in the FBI Lab, is a co-plaintiff in the NACDL FOIA lawsuit. David K. Colapinto, an attorney for Dr. Whitehurst, said of the decision: "Once again, the FBI OPR has been caught red-handed covering-up misconduct. Unfortunately, FBI OPR has a long and sordid history of harassing FBI whistle blowers, like Dr. Whitehurst, and burying the scandal," he added. "The Justice Department's misrepresentations to the Court about the FBI's misconduct screams out for Congress to abolish the FBI OPR and Inspector General and replace them with a truly independent authority to investigate FBI wrongdoing."
NACDL was represented in its suit by Daniel Alcorn of the Vienna, VA law firm of Fensterwald and Alcorn.
Just two weeks ago, NACDL drew attention to FBI abuses revealed in a recent Boston judicial proceeding and in response sent a letter to President Clinton calling on him personally to take corrective actions to rein in the agency and re-establish the rule of law. [Text of Letter]
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.