Can the FBI Be Trusted?

By David K. Shipler

            On a March weekend in 2004, senior fingerprint examiners were called urgently into work at the FBI crime lab in Quantico, Virginia. A print had come in from the Spanish National Police, found on a blue plastic bag of detonators discovered after ten bombs had blown up on trains in Madrid, killing 191 passengers and wounding more than 1,400. Under stress, the examiners hastily matched the print—erroneously—to Brandon Mayfield, an Oregon lawyer who had converted to Islam.

This case is worth recalling in light of the current uproar over Hillary Clinton’s emails, because it provides rare insight into the FBI’s capacity for circular reasoning and sloppy forensics—even downright intellectual dishonesty. Time and again over the years, Americans have seen that alongside the many fine FBI agents are lazy thinkers who filter evidence to suit their imagined theory of a crime, and who prejudge people based on religion and ethnicity.

The agency is less nefarious than under Director J. Edgar Hoover, when it launched covert operations against civil rights and antiwar activists, but it remains well below its mythical high standards. Given the rules-be-damned posture of its current director, James Comey, it needs to be watched closely.

Mayfield was arrested as a material witness, his reputation was shredded, his family was traumatized, and his law practice was severely damaged before he was cleared—not by the FBI but by the Spanish police, who kept insisting that the print was not a match at all. In the end, the FBI’s misdeeds cost taxpayers $2 million to settle Mayfield’s lawsuit.

He is one of a gallery of innocents who have been smeared by zealous or careless agents. They include whistleblowers, pretend terrorists, and bystanders fingered by law enforcement as violent suspects.

The problem with the Mayfield investigation began with the FBI lab but didn’t stop there. The lab had used junk science for decades, methods that later proved unreliable. Examiners erred in comparing hair samples, explosives’ properties, and bullets. It matched bullet fragments at crime scenes with suspects’ boxes of ammunition on the inaccurate theory that each batch was manufactured with lead containing unique proportions of antimony, arsenic, copper, bismuth, cadmium, tin, and silver. In fact, the same proportions could be found in ammunition produced fifteen months apart.

The lab seemed incapable of self-correction. When results were borderline, as in the ammunition content, the FBI relaxed criteria to increase the range of tolerable variation and produce phony matches. When the Justice Department’s inspector general found “significant instances of testimonial errors [aka perjury], substandard analytical work, and deficient practices,” examiners were not penalized and procedures were only marginally revised.

The lab’s protocols would have appalled any scientific researchers bound to conduct double-blind medical trials, for example. Technicians shouldn’t be told what case they’re working on, but fingerprint examiners in the high-profile Madrid bombing were told just that, creating “context bias” that heightened pressure to shape and reach a conclusion. Moreover, each examiner knew what the previous examiner had decided, rather than coming untainted to the task, and so was influenced by the earlier finding that the print was Mayfield’s. Two examinations raising doubts were belittled. Disagreement was considered deviant. A variation between the print on the bag and Mayfield’s, which should have defeated the match under the lab’s “one discrepancy rule,” was rationalized away.

FBI agents in the field then closed their minds around the scenario that Mayfield was involved, and they dismissed the most compelling contrary evidence. When they discovered that his and his wife’s passports had expired, and that there was no record that he’d left the U.S. since 1994, the investigators didn’t scratch their heads and rethink their assumptions. Instead, they fabricated a notion, which they inserted into a sworn affidavit, that Mayfield “may have traveled under a false or fictitious name, with false or fictitious documents.” No such documents were ever found, because they didn’t exist. He hadn’t gone anywhere, much less to Spain.

In the end, the head of the Portland FBI office, Robert Jordan, managed a strange combination of regret and pride. “We regret what happened to Mr. Mayfield,” he said, as if the lawyer had been merely swept up in some faceless whirlwind devoid of human error, but “we are proud of what we did here.” Given the same circumstances, he concluded, his agents would do the same thing all over again.

Politics in the broadest sense plays a role, that is, in the sharply focused concerns of the security establishment compared with the more varied interests of the larger community. Egged on by intelligence agencies, the FBI—especially during the Obama administration—has gone after national security whistleblowers with a vengeance.

It destroyed the professional life and personal finances of Thomas Drake, an official at the National Security Agency who proceeded through proper channels in both the Defense Department and Congress to call attention to the agency’s wasteful spending and constitutional violations. After his in-house efforts fell on deaf ears, he went to the Baltimore Sun.

FBI agents raided his home, terrified his family, and seized documents they claimed were classified but were not secret, in fact. They and the federal prosecutors threatened him with life in prison under the infamous 1917 Espionage Act, although he had not committed espionage. Their crusade drew a scathing rebuke from federal Judge Richard D. Bennett, who excoriated the government for “unconscionable” behavior in putting Drake through “four years of hell.” The statement from the bench was moral compensation, but Drake lost his career and his pension and now works at an Apple store.

The FBI has also used seedy informants facing criminal charges themselves to set up sting operations against wannabe terrorists. Some are potentially dangerous, and their arrests can be credited with preventing attacks. Others, however, seem so hapless that they need to be guided through the simplest tasks, such as buying a gun in a city crawling with guns. Their arrests are accompanied by the agency’s trumpeted self-congratulations at foiling attacks by people who, on close examination, probably wouldn’t know what end of a fuse to light. The FBI, while skating just legally shy of entrapment, provides them with the fake explosives, the vans and suicide vests, the cell phone triggers connected to nothing, and often the encouragement to pursue the schemes.

The FBI also smeared Richard Jewell, a security guard, whose name was given to scoop-hungry news media as a suspect in the bombing at the Atlanta Olympics. He was innocent; the actual bomber, Eric Rudolph, is now serving a life sentence. It’s one thing to issue evidence-based public alerts for allegedly dangerous suspects, and quite another to sneakily leak names based on scant hunches and haphazard rumors. After the Boston Marathon bombing, two innocent spectators were damaged by being named in the press as targets of a search by the FBI, which is sometimes as tight as a vault with investigative information, sometimes as leaky as a sieve.

Which brings us to Comey’s vague statement to Republican committee chairmen in Congress that investigators may or may not have found more emails that may or may not involve Clinton’s server, and which may or may not have significance. Donald Trump adores innuendo, and the FBI director has now given him some. Leaks to the press suggest that Comey did this because he feared that it would be leaked, and then he’d appear to be covering up something—having announced in July that the investigation into Clinton was closed.

As Comey was reportedly reminded before going public, Justice Department rules forbid talking about ongoing investigations, particularly where they might influence coming elections. One purpose is to depoliticize an agency with a sordid history.

But Comey marches to his own drummer, which can be admirable, as in his single known moment of integrity. As acting attorney general under George W. Bush, he rushed to Attorney General John Ashcroft’s hospital room to head off a Bush White House attempt at getting Ashcroft to sign off on a legally noncompliant surveillance order. Comey looked courageous and properly defiant.

When you lead an agency that has abused its power, though, stepping defiantly beyond the parameters of careful process makes you a risk to the rule of law, whose fairness and predictability are precious attributes of a free society.