Americans live under a governmental regime that openly breaks its own laws. The government not only believes it can do whatever it can get away with politically, not only believes that it can torture its foreign foes and claim the torture is a state secret, not only can bribe and coerce witnesses into saying what the government wants to hear, but it also can authorize criminals to commit crimes.
Here is the backstory.
The inspector general of the Department of Justice recently reported on the excesses of federal law enforcement. The section of his report on the FBI is enough to cause any fair person to realize that the FBI needs radical reforms or even dissolution.
In the George W. Bush-caused-and-inspired war on terror, the CIA has come out as the gang that couldn’t read the Constitution. We have learned as recently as three weeks ago in an American military courtroom in Guantanamo Bay, Cuba, that CIA agents for years engaged in horrific torture of detainees from the Middle East, only to conclude that they either had been telling the truth before the torture or they genuinely knew nothing about the subject matter of their interrogation under torture.
When this was revealed, the prosecutors — who are both military and civilian — did not challenge any of it. Rather, they pointed out that FBI “clean teams” interrogated the tortured detainees after the CIA had finished with them and did so without torture. Thus, the prosecutors argued, it is the testimony of FBI agents, not that of the CIA torturers, that the government plans to use at trial.
The use of clean teams continued the government’s desired public perception of the FBI as the good guys and the CIA as the bad guys. Some CIA folks have appeared to relish their badness. President Donald Trump’s second CIA director, Gina Haspel, a lifer in the agency, was known as “Bloody Gina.” One can only imagine how that nickname came to her.
FBI agents have revealed that they have stopped torture when they could and not engaged in it when offered. Did they do this because they know torture is profoundly immoral and criminal or because they needed to be able to testify in court that they never abused prisoners? And, by the way, staying away from torture and revealing it furthers the clean reputation of the Bureau.
Well, it happened; and it was revealed last week at Guantanamo Bay. There, the government revealed that nine FBI agents became CIA agents in 2002 and 2003 so that they could engage in torture and not discredit the FBI by doing so.
One of the prosecutors intimated in court that the FBI-turned-CIA agents were better interrogators than the real CIA agents. Their testimony — what they will claim the tortured detainees “freely” told them — is “the most critical evidence” that the government plans to present.
Does it matter under federal law if the torturers are real CIA agents or temporary ones? Only to the government.
Torture is and has been a felony since the World War II era. It was outlawed universally by the Geneva Conventions, the U.N. Charter and the Convention Against Torture, all treaties the U.S. is a signatory.
Also revealed last week was the involvement of FBI agents in the misuse of informants in domestic law enforcement. We learned that from 2012 to 2018, the FBI paid $294 million to its informants and spent an average of $42 million a year on their expenses.
Even more troubling is the pattern of informant criminality. The inspector general revealed that from 2011 to 2013, FBI agents “authorized” their informants to commit 22,500 federal and state crimes, and none was prosecuted.
Authorized? There is simply no constitutional authority for law enforcement to authorize crimes. The president cannot authorize crimes. Congress cannot authorize crimes. The courts cannot authorize crimes. But the FBI does.
The feds recently charged 12 people for participating in a plot that the FBI created to kidnap the governor of Michigan. It paid 18 informants to entrap the 12 and foment the plot. No informants were charged. We know of two FBI informants in the Jan. 6 riots at the Capitol Building, who naturally will never be charged.
Today’s FBI can be as lawless as the folks it pursues. Not all agents fall for this. Many are truly clean men and women, but the crime statistics are staggering. There is no way FBI agents could authorize this level of crimes and pay criminals this much money without approval at the top.
Most informants are themselves, criminals. They work for the FBI in a devil’s bargain to get the charges against themselves dropped or reduced in return for tailored testimony or entrapping others.
Informants not only make money working for the FBI, they not only get their charges reduced, but they also get to return to their old ways and commit crimes in the bargain.
What happens when the government breaks its own laws?
It should be against the law to break the law. Unfortunately, it is not. A dirty little secret — known to politicians, public officeholders, lawyers and judges — is that the government and its collaborators break the law every day, with impunity.
When the FBI breaks the law, it becomes the law — a situation the Constitution was enacted to prevent. It establishes precedent that becomes part of government culture. Precedent forms the basis for future lawbreaking, and culture fosters an expectation of entitlement.
How does the FBI decide which laws to break and whose lawbreaking to excuse? What befalls the victims of these authorized crimes? Why do we tolerate this?
• Andrew P. Napolitano is a former professor of law and Judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.
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