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Out of control (cont.) Fixing the problem
Congressman John Murtha, D-Johnstown, says he watched as an out of control federal investigation nearly destroyed Joseph McDade, his colleague in the U.S. House of Representatives. A Philadelphia federal jury acquitted McDade, R-Scranton, in 1996 on charges that he accepted gifts from defense companies in exchange for helping them win lucrative contracts. During an eight-year investigation, McDade said prosecutors intimidated his friends, interrogated his relatives and staff and tried to damage his reputation through news leaks. Murtha wondered how an average citizen with average resources could survive a similar assault. "When I sat beside Joe McDade for eight years and watched him go through the excruciating pain, . . . it made me recognize the tremendous power a [federal] prosecutor has. I could see that if they did this to a Joe McDade, an ordinary citizen has no chance," said Murtha. Murtha and McDade decided to draft legislation called the Citizens Protection Act. Its 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. Many of the bill’s provisions touched on concerns raised by this investigation, which found that even when misconduct is clear, federal officials are loathe to acknowledge it or punish it or ensure that it doesn’t happen again. Murtha said the bill hit a nerve in the House of Representatives. More than 200 congressmen signed on as sponsors, many saying that constituents in their home districts had asked them to investigate complaints about federal law enforcement officers’ misconduct. "It seemed like everyone had a story to tell," he said. The House approved the legislation in August on a broadly bi-partisan vote, 345-to-82, despite the Justice Department’s intense opposition. "I’ve never seen an effort [to kill a bill] — a focused effort — like I’ve seen in this particular case, from the Deputy Attorney General right on down the line," Murtha said. The victory was short lived. The House bill became part of the federal appropriations package that Congress passed in October, and the Justice Department managed to have all but one provision killed in the conference committee that crafted the budget bill. That provision, requiring federal prosecutors to abide by the ethics laws in the states where they work, is important, but the appropriations bill delays its implementation by six months, giving the Justice Department time to try to eliminate it, Murtha said. That puzzles Burns, the deputy attorney general under Reagan. He recalls drafting a memorandum requiring that all federal prosecutors adhere to the local ethics rules, the very rule his former department is now trying to kill. "Look at it this way," he said. "[Pretend] there is a case, United States v. Burns. That means it’s the whole FBI against Burns — its investigators and forensic accountants and everything else the government has. It’s already one-sided.. . . Let’s have an even playing field." But the Justice Department doesn’t want a level playing field, the Post-Gazette found. Any push by Congress for substantive change in protecting the rights of citizens is always met with the Justice Department’s same dire warnings: Fiddling with the laws that empower federal law enforcement officers might hamstring efforts to fight drugs, child pornography and international terrorism. In 1995, for instance, the U.S. Senate conducted hearings to demand answers for the disastrous confrontations by federal agents at the Branch Davidian complex in 1993 in Waco, Texas, and at the home of anti-government rebel Randy Weaver in Ruby Ridge, Idaho. Officials with the FBI and Bureau of Alcohol, Tobacco and Firearms assured senators that changes in policies and procedures had been made to solve the problem, but some of the agents identified as ordering illegal actions eventually won promotions. Shortly after that hearing, Attorney General Janet Reno announced that, because of its large backlog of cases, she was doubling the size of the Office of Professional Responsibility, which is charged with ensuring that federal officers don’t abuse their authority. The most recent General Accounting Office report on the Office of Professional Responsibility, in 1995, found that it substantiated only 9 percent of the 411 complaints it investigated between 1980 and 1990. The Post-Gazette found that the office still investigates very few cases; the office also has failed to correct the problem mentioned in the GAO report: "[The Office of Professional Responsibility] operated too informally, failing to document key aspects of its investigations, such as decisions not to interview certain people or conclusions that charges were false." Last year, House Judiciary Chairman Henry Hyde, R-Illinois, introduced legislation that allowed victims wrongfully prosecuted by the federal government to recover attorney fees and other defense costs. Under Justice Department pressure, the bill was diluted — requiring that any such action be filed within 30 days of the completion of the federal action. Justice lobbying also eliminated the sanctions that individuals who commit abuses would have faced. Still, Murtha believes that the lopsided margin by which the House approved the Citizens Protection Act is a strong base on which to build. "We think it was a step in the right direction, and I guarantee you that I’m going to push it further." Others share Murtha’s cautious optimism. "I think that while our system of justice and the administration of justice and criminal justice is the best in the history of the world, it requires a lot of reform and change and improvement, and I think it’s wrong to say this is how it is and how it is going to be," said Burns.
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