The controversy over whether FBI personnel used flammable projectiles in the 1993 siege at Waco has occupied headlines for the past two weeks. The issues are what actually happened and how the information that the projectiles were used was concealed, apparently even from the attorney general, for approximately six years.
It seems that the short-term crisis will be addressed through the appointment of an independent investigator with no Justice Department or FBI connections, who, one hopes, will be able to sift through the accumulated evidence, find out what happened and present findings and conclusions in a way that will generate public confidence. But this is not a long-term institutional solution. The long-term challenge is to construct a system of oversight that subjects the FBI to an appropriate level of scrutiny, given its enormous power and influence.
The FBI enjoys a privileged status in the Justice Department's system of oversight. It has its own internal affairs office, which has primary jurisdiction over misconduct allegations involving FBI personnel. Along with the Drug Enforcement Administration, the FBI is treated differently from all other Justice Department law enforcement agencies and offices in having retained that kind of authority, even after the 1988 creation of the department's Office of the Inspector General (OIG).
The OIG has unlimited authority to investigate criminal and administrative allegations of misconduct in all other law enforcement agencies and offices of the Justice Department; its authority over the FBI is more circumscribed. To conduct such investigations in the FBI, the OIG must obtain the permission of the deputy attorney general or the attorney general.
This two-tiered system of oversight has no rational basis. It is explained only by history and by the enormous political power of the FBI. Legislative efforts to expand the OIG's oversight over the FBI have gone nowhere. That is because once the FBI weathers the controversies of the moment -- in 1997, when the legislation was being considered, it was the OIG's FBI Lab report and its report on the FBI's performance in the Aldrich Ames affair -- it is quickly restored to its institutional position of privilege.
This is part of a broader debate over the merits of internal versus external oversight of law enforcement agencies. Among other places, it is now playing itself out in New York City, where the police department -- with the support of the mayor -- has resisted creating a credible and powerful oversight agency to deal with allegations of law enforcement misconduct even in the wake of the Louima and Diallo incidents. The arguments, whether made by the FBI or the NYPD, are the same.
First, it is argued that external oversight bodies deprive agency management of the authority it needs to control the conduct of agency personnel, displacing management's responsibility to investigate and punish misconduct within its own agency.
The answer is that as a matter of budgetary resources and institutional realities, the bulk of such misconduct investigations would continue to be -- and should be -- handled by the internal affairs offices, and discipline would be imposed by the agency itself, as would any necessary response to systemic recommendations generated by the investigation. But an executive branch oversight body such as the OIG should have the ability to investigate significant matters without obtaining permission to do so.
Second, it is argued that external oversight bodies do not adequately understand the cultures of the agencies they oversee, and thus demoralize the employees of those agencies by investigating matters that may involve difficult discretionary judgments.
The answer is that oversight bodies should be composed of agents and lawyers with substantial law enforcement experience who understand the culture without thinking that it excuses serious mistakes of judgment, much less misconduct.
A third argument is that external oversight bodies lack sufficient skills to investigate the complicated issues raised by the actions of law enforcement personnel. This argument is both incorrect and a transparent effort to avoid meaningful oversight.
Oversight over law enforcement agencies is one of the most difficult governmental challenges we face. Law enforcement agencies possess enormous power to deprive citizens of their liberty and their property.
The credibility of the FBI is vital to ensuring that it continues to command the respect of the American people. In turn, that credibility requires institutional arrangements that provide assurance that its actions are subject to rigorous external oversight.
This issue will remain long after the Waco matter has been adequately addressed. It never has been adequately dealt with by the Justice Department or by Congress. This would be a good time to do so.
The writer was inspector general of the Justice Department from 1994 until last month.