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Boston Globe
Bush policy could foil suits on FBI dealings
By Ralph Ranalli
Globe Staff, 12/25/2001
The families of those allegedly murdered by James ''Whitey'' Bulger and
other FBI informants could face a major roadblock in their efforts to sue
the government from the Bush administration's use of executive privilege to
shield sensitive Justice Department documents.
Two weeks ago, President Bush invoked the privilege, a move to block a
congressional committee from obtaining information about the FBI's informant
policy. The move came as the House Government Reform Committee continued to
investigate the Boston office's ties to Bulger - a fugitive now on the FBI's
10 Most Wanted list and suspected in at least 18 murders.
The president's move sparked a battle between Congress and the White House
over the scope of the president's privilege to protect executive branch
documents.
Both the lawmakers and lawyers for the victims' families want to know who
was responsible for the bureau's decision to maintain informant
relationships with known underworld killers and why dangerous criminals like
Bulger were left on the streets, to allegedly kill again.
''We would hope that the families who have suffered these grievous losses
wouldn't be barred from justice and their meaningful day in court,'' said
Frank Libby, an attorney representing the estate of Tulsa businessman Roger
Wheeler, who federal prosecutors charge was murdered by Bulger's gang in
1981.
In a Boston courtroom last week, a federal judge presiding over one family's
case warned government lawyers that they would have to justify withholding
any documents. The lawyers are expected to cite Bush's executive privilege
order.
The administration's refusal to cooperate has infuriated even some members
of Bush's own party.
''There is a veil of secrecy that seems to be descending around the Justice
Department and the White House. This is beyond the pale,'' said House
Government Reform Committee chairman Daniel Burton, an Indiana Republican.
Bush's move reversed the Clinton administration's policy of at least limited
cooperation with outside investigations of FBI misconduct. It blocks
Congressional scrutiny of the FBI's controversial Top Echelon Informant
Program, of which Bulger was a longtime member. The move also appears to
block congressional investigators from probing the bureau's refusal to
release exculpatory evidence in the cases of Joseph Salvati and Peter
Limone. The two Massachusetts men languished in prison for decades before
FBI officials admitted that they had withheld documents supporting their
claims of innocence.
Indeed, some legal experts warn that if Bush and Attorney General John
Ashcroft are successful in asserting executive privilege, that could upset
the balance of power among the executive, legislative, and judicial branches
of the federal government, allowing the Justice Department and the FBI to
operate with virtually no meaningful oversight. That scenario has some
members of Congress threatening to sue the White House.
The lawmakers say Congress's oversight role could be permanently diminished.
''This isn't simply about the alleged misconduct of FBI agents in the Boston
office; this has far-ranging implications in terms of the relationship
between the branches and the separation of powers ... that date back to the
beginnings of the republic,'' US Representative William Delahunt, a Quincy
Democrat, said last week.
Burton, an ardent Bush supporter, said last week that he was blindsided by
Bush's decision to cite executive privilege - a legal maneuver usually
reserved to protect the inner workings of the White House.
Two weeks ago during a telephone call to the White House, Burton said, he
pledged his support for giving Bush broad new ''fast track'' powers to
negotiate international trade agreements. Burton, a conservative Republican,
hadn't supported the fast track bill before, but he said he decided to
support Bush on the matter to show solidarity during the war on terrorism.
It also made him feel he could ask for a small favor in return. Would the
president, Burton asked, consider supporting his committee's inquiry into
the case of Salvati?
Burton explained that Salvati was a Boston man wrongly imprisoned for 30
years, thanks to the alleged misuse of organized crime informants by the
FBI, which Burton's committee was investigating. Bush seemed to be taking
notes, so Burton even spelled the name over the telephone:
''S-A-L-V-A-T-I.''
The president sent his answer a few days later. Eight Justice Department
lawyers arrived at a committee hearing with word that the administration
would withhold information on how FBI officials and Justice Department
prosecutors made decisions about whether to prosecute or protect informants.
In a signed order to Ashcroft, Bush wrote that making public ''confidential
recommendations to Department of Justice officials'' would chill the candid
exchange of ideas ''necessary to the effectiveness of the deliberative
process by which the department makes prosecutorial decisions.''
Burton was not pleased. ''In the 19 years I have been in Congress, I have
never seen it (executive privilege) used in this manner. I am a conservative
Republican, who has walked in lock step with this president, but this is
more important. If we set the precedent that the president can block
Congress from its oversight function, we would have a potential for
corruption that would be just huge,'' he said.
George Washington University Law School professor Mary Cheh, a specialist in
constitutional law, said she believes Bush is using the FBI case to set a
defining tone for his relationship with Congress.
''Congress should press him (Bush),'' she said. ''Even if he thinks some of
the information is sensitive, there are ways to handle it. I think it is
important for Congress not to lie down on this one.''
Even if Congress doesn't take the issue to the courts, other legal experts
say the administration and the Justice Department are likely to have a
showdown with the judiciary.
''The same issue you see in Washington is going to land here in court and
then all three branches are going to be wrestling with it,'' Libby said.
Numerous relatives of people allegedly killed by FBI informants have already
brought wrongful death claims totaling more than $1.3 billion against the
FBI and numerous individual agents. Many of those cases were brought based
on FBI documents already made public by another federal judge in Boston,
Mark L. Wolf, who in 1997 threatened to jail one of Attorney General Janet
Reno's top deputies for contempt if the documents weren't turned over.
Government lawyers in the case involving John McIntyre - a Quincy man who
disappeared in 1984 after telling authorities he worked for a
Bulger-connected drug- and weapons-smuggling ring - have cited an ongoing
criminal probe of FBI corruption, not executive privilege, for their
reluctance to turn over documents. But a lawyer for McIntyre's family said
another fight could develop over key documents in that case.
''If we seek documents in Washington on how they ran the (informant)
program, why did they keep them open as informants, then we could run into
executive privilege,'' attorney William Christie said.
Donald K. Stern, the former US attorney for Massachusetts who helped launch
the criminal probe and oversaw an overhaul of the Justice Department's
informant guidelines, said he hopes the Bush administration will find a
''practical way for ... any relevant documents to be made available and
public.''
''The law enforcement community is best served by having this history be
available for public review, no matter how painful it might be for any
particular agency, or anyone else,'' Stern said.
This story ran on page A1 of the Boston Globe on 12/25/2001.
© Copyright 2001 Globe Newspaper Company.
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