Two Cheers for the FBI

One doesn’t have to agree with the partisan attacks on the Bureau to recognize that it is a worthy institution in need of reform.

April 3, 2018

The foreman of the federal jury that acquitted Noor Salman in Florida last Friday offered a blunt assessment of the work of the FBI during its long, intense interrogation of the Pulse nightclub shooter’s wife in June 2016. The feds simply should have videotaped or recorded the session, the juror said, to accurately memorialize the most important part of the terrorism and obstruction-of-justice case prosecutors brought against Salman.

Did Omar Mateen’s wife confess or otherwise incriminate herself? Or were her comments and affect during those long hours consistent with what one would expect from a victim of domestic violence? The issue had come up during Salman’s trial. When asked in open court why the FBI didn’t tape the interrogation of the wife of a suspected terrorist who had just slaughtered 49 people, an agent told jurors: “I honestly never thought about it. It never crossed my mind.”

It should have crossed that agent’s mind. It should have crossed the mind of every FBI agent involved in the investigation into the Orlando nightclub shooting, from the field agents who held Salman that day to their bosses in Washington, including James Comey, the FBI director at the time. In 2014, the FBI changed a long-held policy against recording interrogations. The feds could have recorded Salman that day as her husband lay dead on the floor of Pulse. They chose not to for reasons not yet disclosed.

What the feds did instead was to “summarize” the Salman’s interrogation and then use those “summaries” to portray her as her husband’s willing accomplice, a woman who lended “material support” to a terrorist by giving him a cover story. Problem is, as the foreman said later, “there were several significant inconsistencies with the written summaries of her statements.” This, folks, is how you manage to lose a federal terrorism case. You presume jurors are going to be less objective and critical than they turn out to be. You try to pretend a weak case is a strong one.

Whether you believe Salman is guilty or not -- I am highly skeptical of the framing of the government’s case -- her acquittal surely is an embarrassment for federal law enforcement. It comes amid new concerns about racial profiling of so-called “Black Identity Extremists” by the Bureau. It comes amid questions about the FBI’s continuing use of “junk science.” And it comes just as we are about to embark on what some wags are calling “Comey Month,” as the former FBI director launches his publicity tour to promote his already-best-selling book “A Higher Loyalty: Truth, Lies, and Leadership.” Get ready for more James Comey than you ever knew you wanted to see or hear.

The success and profile of the tour no doubt will poke an insecure and vindictive President Trump into resuming his Twitter attacks on Comey and the FBI, which means we are in for yet another intense round of partisan bickering over the Bureau and its role in American life. This is true regardless of whether special counsel Robert Mueller indicts anyone in the coming weeks. It is true regardless whether Attorney General Jeff Sessions keeps his job until Memorial Day.

Perhaps it is time for another reminder of the nuances at play here. The truth is that one can both support and defend the FBI as a vital institution and at the same time seek to hold its agents and leaders more accountable. It is possible both to honorably criticize the FBI for the practices and procedures it employs in any given case or cases and still believe that its independence from the White House is a crucial component to the rule of law. It is possible to be skeptical of the work of the FBI in cases like those of Salman and still be thankful there is an FBI, the way we have known it since the reforms of the Watergate era.

This cognitive dissonance is particularly hard to manage in the case of Comey. He is not the liberal bogeyman the president and his fellow travelers make him out to be. The allegations by Trump and company in this regard are absurd -- and an insult to people of color who still rightly see the FBI as a redoubt of white Republicans. But neither is Comey a white knight whose truth is marching on, as some Democrats would now have you believe. I have covered Comey since he was a U.S. Attorney in Virginia, in the immediate wake of the terror attacks on New York and the Pentagon, and he remains today what he was then: a patriotic American, a straight shooter, who from time to time is a little overbearing in his zeal.

But we all need to try. We need to defend the FBI against Donald Trump. And we also need to press the FBI to do better in all respects. The president wants you to think that the FBI has the fix in for him and his Republican cronies. That’s nonsense, of course, another dangerous diversion coming from the White House and congressional Republicans. We all should be more concerned instead about the FBI having the fix in for American citizens who find themselves charged with crimes based on FBI investigative work. There is plenty to fix in the FBI. And none of it has anything to do with any investigations into the Trump team’s ties to Russia.

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.