What’s highly unusual in Wyshak’s presentation of the informant issue is that he’s not using an FBI agent, which is normally done when FBI records are introduced, but a guy named James Marra who is with the Department of Justice’s office of the inspector general (OIG). One wonders why this is being done. Is the FBI allowed to tell an assistant US attorney that it will not cooperate with him by producing its own records? Or is it Wyshak doesn’t trust the FBI? And if that is either of these circumstances, especially the latter case, what does that tell us about these people.
There’s also a little something mysterious about how Marra came about these records. His job as I understood it is to oversee the operations of the various departments in the Department of Justice (DOJ) to ensure they are operating on the up-and-up. He has been in that job since 2004. He testified that he gained access to these documents because he was investigating or more broadly working on a case involving FBI Agent John Connolly.
One would assume that a person from the OIG would be doing that to a person who is currently in the employ of the agency. But that couldn’t have been the reason here because in 2004 John Connolly was in prison. He had a trial in 2002 which I wrote about in my book Don’t Embarrass The Family.
I don’t quite understand why he’s going back and looking at Connolly sometime after 2004. All that was pending at that time was the Florida indictment but I can’t imagine the OIG of the DOJ being used to support a state prosecution. If that’s the case again one has to wonder what is going on.
All I can surmise is that if there were a legitimate reason for the OIG to be investigating something relating to John Connolly, and it was not being used for purposes other than what is intended that is as a tool for the prosecution, then it was investigating the actions of other FBI agents involved with Connolly. We know nothing came of that investigation since no charges were forthcoming. And dare we surmised that if none of the other FBI agents who worked with Connolly were found to have done nothing wrong, then perhaps Connolly’s wrong doing is being overstated.
There is a big picture here that we are trying to penetrate. It is far bigger than the trial of Whitey which anyone can learn about in the minute by minute inane updates posted by some. We’ve had a certain story told to us that has shown itself to consist of many falsehoods surrounding Whitey. It has many more aspects to it than the mere guilt or innocence of Whitey. Much of that we have tried to deal with and to penetrate over the time this blog has been written always challenging the think-like attitude of the media that has entangled itself in one version of events.
The presentation of James Marra of DOJ’s OIG is just another queer thing that is happening. How does one conduct the cross-examination of a person who presents as no more than a keeper of records. Marra had nothing to do with what’s in those records – he can be asked if he has personal knowledge that Whitey ever talked to Connolly about those issues and he’ll say no. He can also be asked if Connolly could have made up everything he reported or gotten it from other agents and attributed it to Whitey’ He’ll have to agree. He’ll be asked if Stevie Flemmi could have given that information to Connolly. He’ll answer he could have. He’ll be inquired of whether there is anything in all the files he examined to show that Whitey knew he was listed as an informant or that he knew Connolly was writing down any information and attributing it to him. He’ll be asked to point to any evidence that shows Whitey was an informant – and when he points to some interview he made with Sarhatt – he’ll be asked whether there is any indication Whitey knew that was done or approved it.
When Marra tries to defend the records by showing they were recorded by others than just Connolly he’ll be asked if he read Judge Wolf’s findings. Did he see Judge Wolf found there were many in the FBI office in Boston who were playing fast and loose with the rules? He’ll be asked if he didn’t see them whether he knows about them. He’ll be asked about why there are no photos or signatures of Whitey in the files.
He should be asked how many informants files he examined and how many were deficient in required information. If none, then Brennan raises his eyebrows and says “no other. Doesn’t that tell you something is wrong;” or if he answers some or several other files were missing information, then Brennan raises his eyebrows and says, “that’s a pretty deficient way to keep records, isn’t it?”
Brennan shouldn’t be long but he can have some fun kicking Marra around. As I’ve written before it’s a nonissue so nothing will come of it except to make Whitey feel better – and since there won’t be too many times for him to have that feeling then who can complain.
June 25, 2013
see link for full story
http://www.counterpunch.org/2013/06/25/obamas-informants/
A Network of Snitches
Obama’s Informants
by MELVIN A. GOODMAN
President Eisenhower’s Farewell Address more than 50 years ago is famous for its warning about the military-industrial complex, but he also warned that permanent war and a “permanent arms industry” would do great harm to American rights and liberties. Over the past decade, we have experienced a Bush administration that deputized the Pentagon to spy on law-abiding citizens, with military officers attending antiwar rallies and staff sergeants engaged in the National Security Agency’s warrantless eavesdropping. And now we have an Obama administration that has encouraged the creation of its own informant network among millions of federal employees and contractors to watch for “high-risk persons or behaviors” among co-workers.
The use of informant networks dates at least as far back as the Roman Empire. Delatores (informants) were recruited from all classes of society, including slaves, lawyers, and philosophers. Prior to the death of Joseph Stalin, the Soviet Union used pervasive informant networks in the Communist Party’s efforts to eradicate so-called “crimes” against state property.
Massive citizen informant networks were used throughout the Soviet Bloc in Eastern Europe to destroy perceived opposition to dictatorial rule, particularly in Czechoslovakia, Poland, and Hungary. The best example of an informant network in the communist world, of course, was in East Germany where the Ministry of State Security (or Stasi) controlled one informant for every 60 citizens. These informants were told that they were their country’s first line of defense against threats to national security.
The informant network of the Obama administration is similarly insidious, with federal employees required to keep close tabs on co-workers, and managers facing penalties, including criminal charges, for failing to report their suspicions. According to Marisa Taylor and Jonathan Landay, reporting in McClatchyDC.com on June 20, there are government documents that equate leaks with espionage. A Defense Department paper issued in 2012 exhorts its employees to “hammer this fact home…leaking is tantamount to aiding the enemies of the United States.”
The Obama administration’s initiative is called the Insider Threat Program and it is not restricted to the national security bureaucracy. The Department of Education has informed its employees that co-workers going through “certain life experiences,” such as divorce or “frustrations with co-workers,” could turn a trusted employee into “an insider threat.” According to Taylor and Landay, the Department of Agriculture and the National Oceanic and Atmospheric Administration have produced online tutorials titled “Treason 101” to teach employees to recognize the psychological profile of spies. They say that the Peace Corps is implementing such a program.
The Bush administration initiated similar programs to conduct surveillance against American citizens, not merely federal workers. Vice President Dick Cheney encouraged the Pentagon to create the Counter Intelligence Field Activity (CIFA) in 2003 to conduct surveillance against American citizens near U.S. military facilities, particularly against those Americans who attended antiwar meetings. In the summer of 2004, CIFA monitored a small protest in Houston, Texas against Halliburton, the giant military contractor once headed by Cheney. At the same time, Undersecretary of Defense Paul Wolfowitz created a fact-gathering operation called TALON (Threat and Local Observation Notice) to collect “raw information” about “suspicious incidents.” The unauthorized spying of CIFA and the computer collection on innocent people and organizations for TALON were illegal; both organizations were eventually shut down.
In addition to instituting the Insider Threat Program, the Obama administration has expanded the domestic reach of the intelligence community, perpetuated the culture of secrecy, and instituted a pervasive lack of transparency. Although President Obama has stated that American citizens are not the targets of the NSA’s sweeping electronic collection system, it is possible that Britain’s G.C.H.Q., London’s counterpart to NSA, is collecting intelligence on Americans and sharing the information with Washington. Under a program called Tempora, the British communications intelligence agency has an unequalled capacity to tap high-capacity fiber cables. Britain, moreover, has a weak oversight regime, and G.C.H.Q. has a unique and storied collaboration with NSA and CIA.
Our congressional intelligence committees have failed in their primary task–providing oversight over this pervasive and secret surveillance system. Oversight and accountability must be part of government, particularly the secret agencies within government, and congressional oversight is needed to correct the collective harm that has been done to the United States and its reputation at home and abroad because of the zealous actions of the past decade.
Vice President Cheney defended the Iraq War in 2003 on the basis of the infamous “one percent doctrine,” which justified the invasion on the grounds that if there was a one percent chance that something is a threat, it requires that the United States responds as if the threat was 100 percent certain. This logic has been applied in many ways to the problem of terrorism with the Department of Homeland Security and the 16 agencies of the intelligence community assuming that “Today’s terrorists can strike at any place, at any time, and with virtually any weapon.” As a result, the War on Terror has become a permanent fixture in our national security architecture, and an economic cornucopia for private contractors.
Last month, President Obama told a high-ranking military audience at the National Defense University that our torture and detention policies “ran counter to the rule of law;” that our use of drones will “define the type of nation that we leave to our children;” that even legal military tactics are not necessarily “wise or moral in every instance;” and that we must repeal the mandate of the Authorization to Use Military Force to fight terrorism. Referring to Guantanamo, he argued that holding “people who have been charged with no crime on a piece of land that is not part of our country” is not “who we are.” And that “leak investigations [that] may chill investigative journalism that holds government accountable” is not “who we are.”
If so, then massive surveillance programs at home and abroad as well as massive informant networks within the entire federal bureaucracy should also not be who we are. It is long past time for President Obama to address these issues with operational policies and not mere rhetoric. The audacity of hope requires that he do so.
Melvin A. Goodman, a senior fellow at the Center for International Policy. He is the author of the recently published National Insecurity: The Cost of American Militarism (City Lights Publishers)and the forthcoming “The Path to Dissent: The Story of a CIA Whistleblower” (City Lights Publisher). Goodman is a former CIA analyst and a professor of international relations at the National War College.
everyone SHOULD RE-READ THIS POST. BEWARE OF MASSIVE UNCHECKED FED SPPYING ON US ALL!! “Just because you’re paranoid, don’t think they’re not following you!!!” They are!!! And under these foolish (1% risk policies) every American who raises his voice against Federal abuse is placed on some “watch list.” A combat vet Marine, a lifelong licensed gun carrier, angrily wrote Janet Napolitano: “How dare you say combat vets with gun licenses be closely scrutinized? How dare you say person with strong pro-life views be scrutinized?” I bet he’s now on the FEDs watch list. Also in the interest of full disclosure, the only time a dear lifelong friend who was formerly with the Secret Service stopped by to say “Hello” at my job site, was within a month of me writing a letter of protest to the President. Watch out Americans. History can repeat itself here–is repeating itself—-and national socialism’s spy agencies have not historically been benign.
I guess they weren’t following the Marathon Bombers too closely Bill ? LOL
I’m not terribly impressed by this article. Don’t have the time to iron out all the details, but as a federal government employee myself, working in Washington, DC, I walk the halls of bureaucracy everyday and never once feel like I have to look over my shoulder. Yes, it’s only my experience in one agency, but one certainly gets a sense of the culture in DC when you live it everyday. I have plenty of criticisms I could offer of government culture, especially having once worked in the private sector, but fear of Big Brother is not one of them.
Also, I would point out that Melvin Goodman’s explanation of the one percent doctrine above is a misinterpretation of the doctrine. Here’s what Cheney said:
“If there’s a 1% chance that Pakistani scientists are helping al-Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response. It’s not about our analysis … It’s about our response.”
This was in November 2001, when we were still learning about the nature of the threat facing us, and when Cheney and Condi Rice were briefed by George Tenet and a staffer about reports that a Pakistani scientist was offering nuclear weapons technology to Al Qaeda associates. In subsequent years, such as in interrogations of Gitmo detainees, we would learn that Al Qaeda has indeed sought nuclear weapons technology. I can dig up the evidence if you wish.
And as Matt knows, don’t get me started on Guantanamo. I’ll only say it was one of our most successful intelligence operations in the GWOT. Read the CSRT and ARB documents on detainees at http://projects.nytimes.com/guantanamo.
Also, Ron Suskind who wrote the book One Percent Doctrine, argues in his book that Abu Zubaydah was an inconsequential member of the terrorist network, which is preposterous.
For someone not as experienced or educated in the legal system or FBI protocols as many commenting are, would you please indulge a simple question(s) from a citizen unrelated to the legal/government agencies?
When a person agrees to become an informant for a govt. agency, in this case, the FBI, is there some sort of tangible document stating this? Either a contract, a recorded agreement, videotape or anything that states this arrangement or is the arrangement declared by the law enforcement agent and accepted on “the honor system”?
If that is the case, my follow up question is “If Mr. Connolly, Mr. Morris and the others involved fabricated the entire informant file to cover up the fact that they were on the gang’s payroll and essentially members of the group, would the informant file look any different than what has been presented so far?”
As an observer and follower of the trial, I am having a difficult time recognizing the difference and wonder if it is conceivable that the defendant was not really an informant at all. If I am wondering it, I suspect the jury may share the same thoughts.
Because so much of the Bulger trial is based on FBI documents
I would be remiss if I did not mention the FBI Do Not File Files
and the FBI I Drives. Pulitzer Prize winner/retired Boston Globe reporter Ross Gelbspan pointed this out when he discovered FBI internal memos sent to him in his FBI FOIA request. Connecticut Senator Christopher Dodd had discovered he was listed in a FBI terrorist scrapbook along with his picture. Dodd requested any FBI files the FBI had on him. In the FBI internal memos FBI agents hand write on the margins that US Senator Dodd will not get the “do not file” files they have on him. Jamaica Plain Author Gelbspan details these documents in his book Break Ins Death Threats and the FBI. see http://jfk.hood.edu/Collection/Weisberg%20Subject%20Index%20Files/F%20Disk/Files%20Retrieval%20From/Item%2001.pdf
Recently Salt Lake City attorney Jesse Trentadue
had a similar experience. Trentadue had recently won a $1 million lawsuit against the FBI and during the discovery process of the trial obtained FBI documents showing Timothy McVeigh was working for the FBI just before the Oklahoma City bombing. see the full story here http://www.motherjones.com/politics/2011/07/trentadue-fbi-oklahoma-city-bombing-evidence
MS
Thanks for calling that to my attention – I wonder if the defense team knew about that. The FBI has a saying something like if it’s not in writing it doesn’t exist. This allows it to manufacture the universe as it wishes it to be and to take things it does not like and destroy them. I’ll definitely want to see those books. I read all about Jess Trentdude’s involvement and how his brother was killed by the FBI. The more the jury in Whitey’s case here’s about this make believe world contained in FBI files the closer Whitey comes to walking.
Another:
What type of tangible document is opened to show a person is an informant depends on the date it happened, that is during what period of years, and the practices in the local office. The FBI in Boston at one time had an index card that would be filled out and a file would be associated with it. The problem with the practice for many years is that for all anyone knew a person could be listed as an informant without the person knowing he was listed as such in the FBI files. I think this happened in 1971 to Whitey. It looked like Agent Condon approached him and had a conversation with him over general stuff. He went back and figured the conversation went well so he wrote up a file saying he had Whitey as an informant. He put in the file some information attributable to him but it could very well have been picked up on the street. In a month or so he was reporting that his informant was not giving him much information and then he closed him out. Nothing exists to show Whitey knew he had opened and closed him.
If the whole file was fabricate by Morris and Connolly then you would not know it. There is nothing in it that shows Whitey signed off on being an informant. Everything that says he is comes from the agents. Even the picture in the file dates back to the 1950s when Whitey became an informant in 1975. Brennan asked if they took his fingerprints on his informant card, or if they had a picture of him at the time he allegedly became on, or if there were a signaure anywhere where Bulger acknowledged his status and the answer is no. There is no proof that Whitey knew the FBI carried him as an informant.
Although I don’t know what the FBI regulations about informants are today, and even if I knew the regulations they are often ignored, it is likely you could be listed as an FBI informant if the practices are the same as were back in the 1960s and 1970s and 1980s. No one ever gets to see the FBI informant files outside the FBI. It is very conceivable Whitey could not have been an informant because there is nothing in the FBI files that show he knew he was being carried as an informant. To me it is hard believing he wasn’t because I’m so convinced by outside books and court hearings that he was – but if I knew nothing about him, like the jurors, I can see them believing he was not an informant because of any evidence of his knowledge of the fact.
Thank you for answering the question directly, I asked in other places and was not able to ascertain this fact in a succinct manner. You hit the heart of my questions with:
“To me it is hard believing he wasn’t because I’m so convinced by outside books and court hearings that he was – but if I knew nothing about him, like the jurors, I can see them believing he was not an informant because of any evidence of his knowledge of the fact.”
In my line or business, I work in Information Security and one of my roles is as a certified computer forensic analyst. On a few occasions, I have turned over evidence of federal crimes (the most unfortunate photographs you would hope never to see) that were discovered while investigating Intellectual property theft to the local FBI. For all I know, I could be listed as an informant. The governing bodies who certify Information Security professionals maintain a code of ethics that requires us to turn over evidence of crimes to the appropriate authorities. (not to mention, it is simply the right thing to do)
This was the fact that I was hoping would not be true but is becoming obvious that anyone could be an informant if someone chose to declare you as such without your knowledge. Not for my own personal concerns but I am trying to put the context of this trial in the “what would the jury think”.
Thank you again for the candid answer.
Another:
AUSA O’Sullivan who was head of the Federal Organized Crime Strike Force testified before a congressional committee that what was written in an FBI file about a meeting he had with the Boston SAC was totally untrue. He said they could make up anything the wanted and no one would know it other than other FBI agents. Another author, Navasky or somehting like that, wrote about a guy who got to see his 302 and did not recognize anything in there as having anything to do with what he said to the agent. It’s a terrible system where rumor and innuendo about people are kept with no one seeking to deterime whether is is correct or a person having the ability to change what is said against her even if she could find out what it is.
I made it to the trial today and it was fascinating. Thanks for your tips on getting in!
As I was reading this entry I thought – ‘What does it matter if Brennan pokes holes in Marra’s testimony? The DEA, State Police, Boston PD, Customs, etc can all produce their own investigations with similar conclusions.’
But then I realized that WB may have had those agents on his payrolls too. And it just hasn’t come out yet. And now, under that supposition, that evidence is tainted too. There’s no on left standing who can provide rock solid evidence.
He’s not on trial for being an informant. But if Brennan can poke enough holes in the FBI conduct and handling then their records, and testimony, are now in doubt. Has the prosecution proved its case beyond a doubt?
And if WB wasn’t an informant then it calls into doubt the motivation and testimony of the gangsters that turned on him.
Which makes me wonder why Carney admitted his clients crimes in his openin statement. Why not just attack the credibility of the government and leave it at that?
I apologize if I’m rambling or not carrying a thought. I need sleep.
Patty,
Generally speaking, trial lawyers avoid objections- it ruins their credibility with the jury. However, there are exceptions to the rule. First, in capital cases where you’re sunk, you need to make a record. Second, for a tactical advantage- I.e., wyshak’s talking objections let him argue to the jury. A possible tactical consideration for CB is FRE 806, which permits attacking credibility of hearsay declarants as if they were testifying at trial. Moreover, in a criminal case, attacking credibility is a constitutional right. What does this mean? Means CB have 700 pages to attack “authors” by extrinsic evidence. It’s probably the best shot they will have at going at the FBI.
Jim,
Excellent point about CB allowing in the hearsay file because it opens the door to the out of court declarant’s credibility. That is likely the rationale I couldn’t put my finger on. It explains why Brennan was able to start impeaching Morris before Morris took the stand.
Patty:
Jim’s comment also opened some other windows in my mind.
Jim:
I agree – I always tried not to object too much because I didn’t want the jury to think I was hiding anything from them. If, as you point out, I could do talking objections then I’d use those to try to prejudice the jury against the other side like Whyshak does when he asks the court to admonish Brennan – Brennan should have asked for an immediate side bar and asked for a mistrial — not that he’d get it but it may slow Wyshak down. You may be onto something about C&B using the 700 pages for an advantage. It has me thinking thoughts I’ve failed to consider before. Thanks.
Matt: You are getting better at connecting the dots.
You might want to visit Russ bakers’ site for the strong
evidence showing Boston Marathon bombing suspect that was killed is a FBI informant. Was Tamerlan Tsarnaev a Double Agent Recruited by the FBI?
By Peter Dale Scott on Jun 23, 2013 http://whowhatwhy.com/2013/06/23/was-tamerlan-tsarnaev-a-double-agent-recruited-by-the-fbi/
msfreeh:
I’ll take a gander over there in a bit. Thanks for sending me the site.
Dear Matt,
To supplement your musings here, I offer the following. First, it appears that Special Agent Marra is a senior official at the local U.S. Department of Justice (DOJ) Office of Inspector General (OIG) location in Boston. We learn this from this 2010 DOJ Press Release which pertains to the OIG’s statutory oversight role of targeted funds authorized by the American Recovery and Reinvestment Act of 2009 (ARRA). See DOJ OIG Investigations Division, February 12, 2010, http://www.mass.gov/eopss/docs/programs/stimulus-police-files/021210-waste-fraud-abuse-info-pd.pdf.
By summoning Marra to appear to testify at the James Bulger trial, the prosecution may aim to enhance the credibility of its case because the OIG is, by design, intended to serve as an independent and objective oversight mechanism. We learn that by reading the Inspector General Act of 1978, as amended, http://www.ignet.gov/pande/leg/igactasof1010.pdf. One major thrust of the defense is that the FBI was as corrupt as those in the criminal world it was dutybound to investigate and restrict. By bringing Marra in, we have a witness detached from that both in theory (via his IG role) and in fact, as you point out he only came in around 2004. I posit that this is an effort to add credibility to the prosecution’s case-in-chief.
As for your second point about how Marra would have come by these informant records as a threshold question, let us not forget that the DOJ OIG issued a lengthy report in September of 2005. This report, entitled, “The FBI’s Compliance with the Attorney General’s Guidelines,” presented extensive fact-finding concerning the past and then-present practices of the FBI’s use of informants, particularly in the Boston office.
Being in the OIG Investigative Divison (the other prong is Auditing), it is reasonable to infer that Marra would have had a role in that investigation and assisted in gathering records and information relevant for this report. While it was issued in September 2005, doubtless there was substantial preparation which went into it and which would have preceded its actual writing and release. For your convenience and that of all interested parties, that report is available here: http://www.justice.gov/oig/special/0509/final.pdf. Please note that beginning on page 68, this report discusses John Connolly specifically.
I hope this information is useful, as we seek to understand and process the implications of today’s testimony.
Respectfully,
Jay
Jay:
As usual thanks for the information and especially the reference to the OIG report. Marra’s testimony contradicts what you said in certain respects. He said he was brought in to this case to specifically investigate the relationship of John Connolly to the murder of Castucci and the trilogy murders, Wheeler, Halloran (Donohue) and Callahan. He worked in part under the direction of Wyshak and examined every of the entries in Connolly’s informant file that related to those murders for the purpose of connecting Flemmi’s cooperating statement with the files. He said he did not examine files that did not related to those murders. I think it more likely that Wyshak was having a hard time getting the cooperation of the FBI and had to turn to others in the DOJ to find out what was in those records. He doesn’t add much credibility because he has a lack of understanding about what methods were used or rules in effect at certain times.
Jay: fine post as usual.
Matt: rather than go back through Murderman’s book and Black Mass and other sources, I’m gonna be a bit lazy and ask you to remind me of the story behind the Castucci murder. That is, I seem to recall you argued that, instead of it being a simple case of Connolly passing on information that Castucci learned from Jack Mace that Joe McDonald and Jimmy Sims were staying in Mace’s apartment in Washington Square, the murder was really motivated by Winter Hill wanting to get out of a debt it owed to one of the mafia families in NYC and killing Castucci served that end. Is that so? If so, how did killing Castucci serve that end?
Jon:
Richie Castucci was murdered so that Winter Hill could rip off the Mafia and keep the money it owed it. The idea it was done because Castucci was an informant makes no sense.
Castucci was the bag guy who carried money back and forth between the NY Mafia and Winter Hill. At the time he was doing this, Joe McDonald and Jimmy Sims had an apartment in New York City where they were hiding out. That apartment was paid for by Winter Hill. Martorano said they paid $14,000 to Jack Mace a connected guy in NY City to get it for a year. Mace was an FBI informant as was Castucci. FBI agent Daly in Boston was getting reports on the where abouts of McDonald and Sims from Castucci but the FBI in NY should have already known their location.
Winter Hill owed over 250,000 and managed to pay it down to around 150,000. They told Castucci they had the 150,000 for him to bring to NY City. He went over to Somerville to pick it up and they murdered him. They then told the Mafia guys that Castucci was given the money by them as they had done in the past so in effect they paid what they owed. They said whoever killed Castucci took the money.
The NY Mafia sent some guys to collect and they met with Winter Hill an Martorano said they scared them away. Unlikely story, they probably explained why they didn’t owe the money since they had given it to Castucci. Poor Castucci’s wife who tetified had to go to Rhode Island to meet Raymond. He told her that her husand’s half interest in two night clubs had been taken by the Mafia to pay for his depth.
The killed because he was an informant was a recent invention when they were trying to hook Connolly for leaking information. A jury rejected it when it was presented to them in Boston. It made no sense because these guys had no loyaly to McDonald and Sims who were Howie Winter guys and they would have been just as happy to see them picked up so they didn’t have to cut them in to the profits.
Matt: as always, thanks for the information. Much appreciated.
Jon- citizen Somerville is a great book by bobby martini really gets into the family dynamic of Howie winter and his crew
Doubting: thanks for the book recommendation.
Doubting:
Thanks for the information. It sounds like something worth while.
Dear Matt,
Thank you for offering this additional context. If his role was to investigate the FBI, or one of its agents, then it would make sense that the FBI would not be called to present this evidence — it sounds like this goes back to the possibility of tainted evidence, or that John Connolly was suspected of being complicit in having a role in those murders. Or at least, the possibility of that was under consideration.
Under Rule 901 in the Federal Rules of Evidence (FRE), there is a requirement that “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Could that be the foundation for bringing Marra as a witness?
As the OIG is supposed to be independent and objective, I find it very troubling that Marra testified he was at any time “under the direction of Wyshak,” because the whole purpose of oversight is detachment. While working partnerships are common, those partnerships should not be at the behest of others within the agency. Importantly, the OIG “shall be considered a separate agency…” and those within the OIG are responsible to the person assigned to the role of Inspector General (IG) of the DOJ. See IG Act of 1978, as amended, 5 App. Sec. 6, http://www.law.cornell.edu/uscode/html/uscode05a/usc_sec_05a_01000006—-000-.html.
I also point out that by law, the OIG does have broad powers to access information, including agency records, which may be relevant for OIG investigations, and further: “Upon request of an Inspector General for information or assistance under subsection (a)(3), the head of any Federal agency involved shall, insofar as is practicable and not in contravention of any existing statutory restriction or regulation of the Federal agency from which the information is requested, furnish to such Inspector General, or to an authorized designee, such information or assistance.” Id.
In short, the OIG is not designed to be used as a tool to circumvent barriers to regular agency investigations, or to be used as a tool of any U.S. Attorney. Indeed, the sole individual with the authority to supervise the IG is the agency head (or second in command), in this case the Attorney General, as noted in this provision of law: “Each Inspector General shall report to and be under the general supervision of the head of the establishment involved or, to the extent such authority is delegated, the officer next in rank below such head, but shall not report to, or be subject to supervision by, any other officer of such establishment. Neither the head of the establishment nor the officer next in rank below such head shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpena during the course of any audit or investigation.” 5 App. Sec. 3, http://www.law.cornell.edu/uscode/html/uscode05a/usc_sec_05a_01000003—-000-.html. Now I note that there are some here who may hold a pessimistic view even of the OIG, but regardless of its manifestation, the vision and hope of the IG Act is sound and true as an accountability tool, even when its implementation falls short. Recall that this was one of the many reforms streamlined by the Carter administration, which also included the Civil Service Reform Act of 1978 (CSRA), Ethics in Government Act of 1978, and Foreign Corrupt Practices Act of 1977 (FCPA).
Considering these IG Act provisions, it is clear that as Wyshak is an officer of the U.S. Attorney’s office for the District of Massachusetts. Because of that, it appears that Marra’s claim that he was under the supervision of Wyshak may be a violation of the IG Act, as noted here. The alternative explanation is that he was somehow acting under the direct instruction of approval of the DOJ establishment head at tha time — in this case, the Attorney General serving at the time, John David Ashcroft. Yet even then, the whole point of the OIG is to investigate objectively to issue reports, not to be utilized as ancillary forces for direct agency functions.
In short, and given my own training and background in the IG concept, I opine based upon your disclosures here, that Marra’s initial involvement may have been improper given the jurisdictional issues here, and Wyshak’s lack of authority to supervise and direct Marra. To the extent that his ex post facto role today may have been simply as a custodian of records, that may very well be to meet the requirements of FRE 901, as noted, supra.
As always, thank you for these added insights.
Sincerely,
Jay
Jay:
The unusual thing is at the Connolly trial the FBI agents did testify. Marra was there to help the prosecutor prepare for his trial which i’ve indicated is not what the OIG is supposed to be doing. He testified he never before or since ever investigated an agent who had left the job and been incarcerated. This is a one time exception. Marra kept the IG and secon in command apprised of his doings. It is a clear breach of anything the OIG was set up to do. How can it be inspecting the DOJ if its agents are working for the prosecutors as they were doing in this case? It shows the cooperation and determination at the highest levels of Justice (Margolis?) to get Connolly.
It tells you how much politics is in DC and how the IG is just another get along guy. How could the OIG ever investigate something Wyshak did when it has partnered with him in this investigation. There was no need, and as I said earlier, it was never done before, for the OIG to be involved in investigating a guy who had been out of the job for almost 15 years and in prison. It was clear to me instinctively that something was wrong and you have shown through your research that the OIG’s office went beyond its jurisdiction. However, who can you complain to? The OIG?
Dear Matt,
Ultimately, the OIG is an accountability tool for the agency head, the President, and for the U.S. Congress. Because the Executive Branch side seems to be the source of the problem, then the place from whence the IG Act came would be the source; all Executive Branch Departments have an OIG, and executive agencies have a watered down version with less independence.
As noted by 5 App. Sec. 5, the statutory Semiannual Reports from each OIG are ultimately addressed to Congress: “Semiannual reports of each Inspector General shall be furnished to the head of the establishment involved not later than April 30 and October 31 of each year and shall be transmitted by such head to the appropriate committees or subcommittees of the Congress within thirty days after receipt of the report…”
Thus, to complain, the DOJ OIG would fall under the jurisdiction of the respective House and Senate Judiciary Committees. For those seeking to follow up, U.S. Representative Bob Goodlatte (R-VA) chairs the House Judiciary Committee, although there currently appears to be no representation from Massachusetts on the entire Committee at this time. Contact information is 2138 Rayburn House Office Building, Washington, DC 20515, phone: 202-225-3951, http://judiciary.house.gov/. On the Senate Judiciary Committee, the Chair is Patrick Leahy (D-VT) but there does not seem to be any Massachusetts representation there either. Contact information is United States Senate, Committee on the Judiciary, 224 Dirksen Senate Office Building, Washington, DC 20510, http://www.judiciary.senate.gov/contact.cfm.
Importantly, because of the Separation of Powers doctrine, Congress cannot intervene in courtroom trials. However, there could be an inquiry into whether or not it was improper for an IG investigator to be utilized for purposes of aiding a U.S. Attorney in a murder investigation, which appears to be beyond its jurisdiction — and whether this diverted resources away from OIG operations.
The larger question is, could that compromise the independence and objectivity of that office, and has this occurred at other times as well? For more information about the IG Concept, including an extensive historical background and narrative, I strongly recommend Paul Light’s _Monitoring Government: Inspectors General and the Search for Accountability_ available on Amazon.com, http://www.amazon.com/Monitoring-Government-Inspectors-General-Accountability/dp/0815752555.
I hope that this post at least provides a starting point for filing concerns or complaints about what the IG does, and what it doesn’t.
Sincerely,
Jay
Jay:
You may remember the Soviet Constitution with all the wonderful rights that were afforded the people. Those were words on paper but in reality they meant nothing. The OIG in the Justice Department is pretty much an empty suit when it comes to the FBI. In this case it asked the FBI for things and never had any abiity to check beyond what the FBI decided to give it. I’ve been noting for a while how there are no checks on the FBI, least of all Congress. The FBI operates according to its own rules that are not even followed in some of its own offices. Congress has held hearings on the FBI and when it makes negative findings it always apologizes for doing it and the FBI for the most part ignores them. The OIG investigator Marra in this case was still working with the prosecutors in investigating Martorano’s alleged involvement in criminal activities. Why if the OIG is independent is Marra working with the people he is supposed to be overseeing and why is he working in investigating and assisting (he said he was the lead agent in Connolly’s Florida case) prosecutors in state prosecutions. Things are out of kilter, I say. Complaining to elected officials who have done nothing in the past about this grwoing monster seems like a true waste of time unti there are enough people who can make the politician more afraid of not being re-elected than the FBI.
Dear Matt,
Allow me to add that complaints and concerns may also be directed to the Council of the Inspectors General on Integrity and Efficiency. This entity was formed as an oversight mechanism for the IG community and to establish and enforce standards relevant to the IG concept. The website is available at: http://www.ignet.gov/pande/integrity1.html. From the bottom of that page, the following information is presented:
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Complaints must be submitted in writing to the Integrity Committee at:
935 Pennsylvania Ave., NW, Room 3973, Washington, DC 20535-0001
Complaints may be submitted through the IC Complaint E-mail Tip Line at:
[email protected]
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Even if some may be pessimistic, others may be fortified by words attributed to Thomas Alva Edison: “Our greatest weakness lies in giving up. The most certain way to succeed is to try just one more time.” Is not justice itself an invention like the lightbulb, which is constantly remade?
Thank you for prompting a lot of thoughts from my quarter today. It has been a pleasure to converse with all of you.
Sincerely,
Jay
Matt,
As usual I assume a more nefarious intent on Wyshak’s part to use Marra the OIG Agent as the keeper of The File. First off, however, I don’t think the file should have been admissible through him. My recollection of the KOR foundation includes knowledge of the manner in which records were produced and maintained “in the normal course of business”. Marra denied any knowledge of the FBI’s requirements for producing, maintaining, and reviewing The File, now and during the period the records were made.. As such he could not aver they were kept “in the normal course of business.” Oddly, I believe this is the only evidence C&B agreed to without proper authentication. It should not have come in through the KOR exception.
Wyshak used Marra as the KOR not because the FBI refused, but because Marra was purposely ignorant of all the bad stuff and well versed on the good. A true FBI KOR would have been able to point out any problems with the file such as backfilling reports, breaking the chain of custody, deviations from policy and procedure etc.
Wyshak is not a well person.
P
Patty:
The way the questioning went along there is good reason to go along with your suggestion but Marra has been working with Wyshak for many years – apparently on loan from the OIG – that he’s just comfortable with him. If the FBI produced someone he’d have been someone with probably as little knowledge as Marra.