Policy

FBI to Congress: Murder, Wrongful Imprisonment May Be Necessary to Preserve Drug Investigations

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Last week, a federal judge excoriated the FBI for not only hiding exculpatory evidence that would have exonerated four innocent men who served more than thirty years in prison, but for rewarding those who did the hiding and covering up with bonuses and promotions. For this crime against American citizens, American taxpayers will now shell out more than $100 million. Thus far, none of the government agents actually responsible for this crime have been held accountable. Only rewarded.

Well, we're just getting started. On July 19th, the House Judiciary Committee held hearings on the use and abuse of confidential drug informants. The testimony Assistant Director of the FBI Directorate of Intelligence Wayne M. Murphy gave at that hearing is truly astonishing.

The transcript below was provided by the ACLU. It comes from the Q &A session after the witnesses provided their initial testimony. Murphy's being questioned by Rep. Dan Lundgren (R-Calif.) and Rep. William Delahunt (D-Mass.). The context: Lundgren and Delahunt have cited incidents in the past in which the FBI has covered up evidence that its confidential drug informants have committed violent crimes (including murder) in order to protect their identities, so that they could continue providing the bureau with information. They've cited other incidents, including the case above, in which the FBI has hidden exculpatory evidence, and allowed innocent people to go to prison. Lundgren and Delahunt want Murphy to assure them that the FBI has instituted policies to ensure that these sorts of incidents won't happen again--that murderers won't be protected and innocent people sent to prison in order to preserve drug investigations.

Remarkably, Murphy refuses to make such assurances. We pick up the transcript just after Lundgren has asked his initial question, and Murphy has obfuscated. Lundgren follows up:

Representative Lungren: If I could just ask my question once again very simply. That is: Is there a policy in the FBI to share information with local and state law enforcement officials when you, the FBI, have become aware that your confidential informants have engaged in serious violent felony activity, not all criminal activity, serious violent felony activity, in the jurisdiction of the local or the state authorities?"

Murphy: It is my understanding Congressman that there is not a specific documented policy, directly to answer your question sir.

Representative Lungren: Well I thank you for that because you may have given me the basis for enacting our legislation to require that. Do you think it should be?

Murphy: I think it's difficult to make a generalization that will fly in every circumstance. And in fact in some cases there are activities which are closely coordinated with a local law enforcement activity but have equities that affect other local law enforcement activities. We're being asked to respect and support the acts of one local law enforcement agency against another. And I want to say again, I don't mean in terms of confrontational but in terms of balancing the equities and the interests of a long term investigation. So I don't think it would be fair or accurate for me to try and characterize a general solution ….

Representative Lungren: All I can say is that if I were still a law enforcement officer in the state of California and you were to tell me that the FBI was reserving judgment about whether to tell me that you have CIs in my jurisdiction that are committing serious violent felonies, I would be more than offended.

I'll say. And let's keep something in mind, here. This would be a morally dubious policy even if were were talking about matters of, say, national security. But we aren't. We're talking about the FBI concealing evidence of murder and other violent crimes, and of knowingly allowing innocent people to go to prison in order to not disrupt drug investigations. In other words, all of this is necessary, the FBI is saying, to keep people from getting high. And when confronted by the United States Congress, the FBI can't even say outright that this is categorically a bad idea, nor can it promise that it will institute a policy preventing these things from happening in the future.

We get more of the same when Rep. Delahunt questions Murphy:

Representative Delahunt: The scandal occurred in the Boston office in the late '90s, about a decade ago. These issues have existed for decades now…. Is there a legal responsibility on the part of the FBI, in the case of murder, to report information to local or state law enforcement agencies?

Murphy: Congressman the Attorney General guidelines in their infinite…

Representative Delahunt: I'm not talking about the Attorney General guidelines. Do they have a legal responsibility, currently, to report evidence, both exculpatory, or evidence of a crime, when a homicide is being investigated?"

Murphy: If you will indulge me Congressman, I'd like the opportunity to answer that question offline because there are various circumstances under which that question might be answered differently that would include some of the aspects about how we manage sources, how we make decisions about the management of sources. And I would appreciate the opportunity to answer that question for the record offline.

Offline? If the FBI is "managing its sources" in a way that allows for innocent people to be murdered by its informants, or sent to prison for crimes they didn't commit, I'd humbly suggest that we the people—the ones who may be murdered or wrongfully imprisoned—ought to know about it.

To his credit, Rep. Delahunt doesn't back down.

Representative Delahunt: I'm not asking about qualities or guidelines or considerations. Does there exist today, in your opinion, a legal responsibility for the FBI to communicate, in a homicide investigation, either exculpatory information to the state and local authorities, or evidence that would indicate that an individual is responsible for murder? That's a 'yes' or 'no' question.

Murphy: I would prefer to answer that question offline if you wouldn't mind, thank you Congressman.

Delahunt: Well I do mind. And I don't see the reason why that answer has to be provided offline. That's a legal question.

Now, go back and read about the "House of Death" case.

Delahunt and Lundgren say they plan to introduce legislation that will force the FBI to both divulge exculpatory evidence and turn over evidence that its informants have committed violent crimes.

Good for them. Rather horrifying, though, that we'd need a law like that in the first place.