Waiting For Justice

It was a routine meeting, set up to discuss, among other subjects, the logistics of Tim McVeigh's execution. Acting Deputy Attorney General Robert Mueller was just about to go out the door of the office of White House Counsel Al Gonzales last Wednesday when he mentioned, almost as an aside, "There's a problem that has come up involving some documents that weren't turned over." Only a few hours earlier, Mueller had been told about the matter during a hallway conversation with a Justice Department press officer. He wasn't quite sure what it meant, and had not yet reported to Attorney General John Ashcroft; indeed, he would not tell his boss until the next day. Gonzales did not inform President George W. Bush or top White House aides. Instead, the next morning he flew home to Austin to see his successor sworn in on the Texas Supreme Court.

Gonzales is a newcomer to Washington's media circus. Mueller, a jut-jawed ex-Marine, is a hard-line prosecutor, not a politician, and is not known for his deep sensitivity to the accused criminals. Both men have--or had--higher ambitions. Mueller has been widely touted as a successor to Louis Freeh as FBI director, while Gonzales is on the shortlist for the next opening on the Supreme Court. Mueller would explain that he didn't have all the facts about the missing documents when he talked to Gonzales, and that he later apologized to Ashcroft for keeping the attorney general in the dark for a day. Gonzales told NEWSWEEK, "I was left with a clear impression that [Mueller] didn't believe this would be a problem--that it had absolutely nothing to do with the guilt or innocence of Timothy McVeigh." As for not telling the president, Gonzales noted that any decision about McVeigh's fate was Ashcroft's to make, not Bush's. "We're very sensitive to wasting the president's time," he said.

Not the best of calls, as it turned out. And so began the last chapter of the story of Timothy McVeigh, whose bombing of Oklahoma City is the worst act of domestic terrorism in American history. Remorseless, a stone-cold killer who described his 168 innocent victims, 19 of them children, as "collateral damage," McVeigh had seemed like a poster child for capital punishment. On the eve of the first federal execution in 38 years, the news of the missing papers fueled doubts about the criminal-justice system and renewed questions about how the death penalty is administered. At heart, though, the flap seems to have changed few minds about McVeigh's ultimate guilt. For many Americans, the case of Tim McVeigh is largely about one of the oldest of human conundrums: what makes seemingly ordinary people go wrong and commit unimaginably evil acts?

By last Friday afternoon, the talk-show chatter had abruptly switched from McVeigh's heinous deeds to the government's bungling. Ashcroft was announcing that McVeigh's execution had been delayed for a month, and McVeigh's lawyers were talking about appeals that could drag on indefinitely. The frustration was obvious on the stern visage of an embarrassed Ashcroft and in the contorted faces of those who had lost loved ones in the rubble of the Alfred P. Murrah Building on April 19, 1995. White House aides tried to cheer themselves up with gallows humor. At the 7:30 morning staff meeting on Friday, one of Bush's men shook his head over the FBI's blunder. "Better five days before the execution," he said, "than five days after."

Justice Department spokesmen insisted that the newly discovered documents were innocuous--that they cast no doubt on McVeigh's guilt and offered no proof of other conspirators. The delay in turning them over was, these officials say, a matter of sloppy record-keeping--not an attempted cover-up. Nonetheless, the fiasco put the spotlight on questions about the competence and honesty of the FBI, whose once sterling reputation has taken a beating in recent years.

Last week Ashcroft launched a formal investigation. The full story may take weeks to come out. But an initial reconstruction of the facts suggests that the FBI once more stumbled over its old-fashioned and insular ways. Incompetence and bad luck, not malice or intrigue, were probably to blame. Yet from seemingly harmless errors and petty evasions grow conspiracy theories about monster plots. If McVeigh's wish is for publicity and martyrdom, the FBI has inadvertently added fuel to the pyre.

Ironically, it was concern over conspiracy theories that ultimately led to the foul-up. Under the law, prosecutors must turn over only evidence that would tend to prove the defendant's innocence or cast doubt on a government witness. But in the high-profile McVeigh case, the Justice Department agreed to turn over all the evidence collected by the FBI, regardless of whether it proved anything. Government officials did not want to be accused of sitting on anything that might later cause critics to cry cover-up. Within hours of the blast in April 1995, FBI offices all over the world were ordered to begin investigating and looking for suspects. In agency jargon, each report filed by a gumshoe is called a "302." According to the FBI, within six months of the crime Director Freeh began badgering FBI field offices in the United States and abroad to send all 302s to the Oklahoma bombing investigation, code-named OKBOMB. During the course of the investigation and trial, the FBI wired four requests to its far-flung offices, seeking any and all evidence in the case. Last December, bureau headquarters in Washington sent out a fifth request. It was mostly bookkeeping, a plea to gather up every scrap of paper for agency archives on the case.

Millions of documents--302s, photos, tapes--poured in. They were matched against the 23,290 pieces of evidence, 238,000 photographs and records of 28,000 interviews already logged into the 26 different computer databases used by the FBI in OKBOMB. A little more than 3,000 pages were new--which meant that they had not been seen by either government prosecutors or McVeigh's defense lawyers. Bureau officials say they were changing over to a cumbersome new computer system when the case broke; because of human error and the sheer complexity of the system, they contend, not every piece of paper made it into the databases. Not until all the documents were examined did the FBI gumshoes working on OKBOMB realize the scope of the problem. Top officials at the FBI in Washington insist they were not informed until last Tuesday, when Danny Defenbaugh, the head of the FBI's Dallas field office and a former chief of the OKBOMB investigation, provided the bureau with several volumes of the missing documents.

Some Justice officials were immediately skeptical about the suggestion that the FBI headquarters found out about the problem only a few days before it exploded on the evening news. Telling NEWSWEEK that Justice had only "sketchy" information about what really went on in the FBI, one official wryly added, "Volumes of documents don't assemble themselves." An FBI official told NEWSWEEK that Defenbaugh was aware of the problem by April and asked to start reviewing the documents in Dallas. "We were not going to turn these over blindly. We're a law-enforcement agency. We needed to know what was in those documents," said the official. Most of the 3,000 pages are "totally irrelevant to the case," said this official. "There is nothing there that would be remotely exculpatory."

For all their criticism of the FBI, top officials at Justice also seemed surprisingly unperturbed about the missing documents, at least at first. Acting Deputy Attorney General Mueller was initially unaware of the department's agreement to turn over all documents to McVeigh's lawyers, and not just the exculpatory evidence required by law. The immediate issue to him was whether the new documents would offer McVeigh's lawyers a basis for appeal. Mueller is a courtroom warrior. He once left Justice, not to cash in as a white-collar defense lawyer for a fancy law firm but to try homicide cases in the D.C. courts. Mueller and his team weren't thinking about bad headlines. Observed an administration official: "They looked at it from the standpoint 'What does this do to the case?' We can survive that, it's no big deal."

Mueller cannot have expected the story of the missing documents to remain a secret, certainly not for long. On Tuesday night, Sean Connelly, a lawyer in the U.S. Attorney's Office in Denver who was handling the OKBOMB case, called one of McVeigh's lawyers, Rob Nigh Jr., and told him about the missing papers. Nigh then called a former McVeigh lawyer, Dick Burr, and said, "I just got a call from [Connelly] that he didn't want to make." The two lawyers initially surmised that the FBI had more likely been stupid than sinister. "The government is embarrassed by this," Burr said. "We weren't going to make it public," Burr told NEWSWEEK. "We were going to talk with Tim and talk with each other and figure out what to do. The Justice Department put it out. It certainly wasn't us."

Whatever the source, by Thursday afternoon CBS and ABC network reporters were on the story. The Justice Department and White House were still debating what to do when the news broke. Until that afternoon, Ashcroft had been blissfully unaware of the impending flap. The attorney general had been in a good mood. On Wednesday, his aides had celebrated his 59th birthday, surprising him with a cake and a party. That same Wednesday, Bush and Ashcroft announced their first slate of judicial nominations. The Bushies believed they had outfoxed the Democrats by sending up a mostly moderate group.

More politically aware than his deputies, Ashcroft had no illusions about the potential damage from the FBI's miscue in the McVeigh case. By Friday morning, it was clear to Ashcroft--as well as to President Bush, who had been finally told Thursday afternoon--that McVeigh's execution would have to be put on hold.

Bush's aides were furious at the bureau. "The FBI doesn't tell us s--t," fumed one administration official. "I mean, this is only the biggest case in the world." The damage to the FBI's reputation may be the most serious long-term consequence of last week's revelation. "This is one of the worst incidents that we've seen come out of the bureau in the last decade," said former Justice Department inspector general Michael Bromwich.

The FBI has an unfortunate history of hiding its flaws. "Never embarrass the bureau" was a dictum of the FBI's legendary director J. Edgar Hoover. In an age of greater media scrutiny, the cover-ups have looked worse than the crimes. In 1993, the bureau was held in contempt by a federal judge for withholding evidence about the mistaken shooting by a bureau sniper at Ruby Ridge, Idaho. After the 1993 siege of the Branch Davidian cult outside Waco, Texas, the FBI withheld evidence that it had used incendiary devices on the cult's compound. Attorney General Janet Reno was so distrustful of the FBI that she sent federal marshals to bureau headquarters to seize the evidence. In 1999, members of Congress were furious with the FBI for failing to turn over internal memos suggesting that nuclear scientist Wen Ho Lee had not passed on secrets to the Chinese, as had been alleged. The bureau has been warned about its computer problems: a July 1999 Justice Department inspector general's report lambasted the bureau for not circulating files about a possible Chinese attempt to influence U.S. elections to Congress. The IG found that agents didn't trust the security of the FBI's computers.

In scandal after scandal, Director Louis Freeh would dutifully take responsibility. Yet with his priestly aura, he would at the same time leave the impression that he had been let down or victimized by his subordinates. Congressional Republicans were always ready to forgive Freeh because he seemed so morally censorious of the Clinton White House. Freeh's own troops sometimes grumbled that he was inconsistent, at once peering over the shoulders of street agents on big cases that interested him, yet lax and sometimes uninformed as a manager. Freeh's aides say that he was not told about the missing OKBOMB documents until last Thursday. "It's incredible that something like this could happen," he told colleagues. Freeh was willing to appear with Attorney General Ashcroft at his press conference last Friday. But Justice officials, fearing that a reticent or uninformed Freeh would just worsen the PR problems, declined.

It is not clear whether tim McVeigh's fate will be affected by the FBI's mistake. McVeigh apparently learned the news while watching TV in his cell on Thursday. McVeigh's former lawyer Stephen Jones told NEWSWEEK, "For Tim, this embarrassment of the government represents the highlight of the proceedings." But after spending five hours with McVeigh on Friday, his current lawyer Rob Nigh told reporters that McVeigh had been "prepared to die" and now was "distressed" that he might have to say goodbye to his family all over again. McVeigh had given up his right to appeal. But he is reconsidering, according to Nigh.

Jones has always asserted that McVeigh was not working alone, that he was part of a larger conspiracy. Some witnesses claim to have seen a mysterious "John Doe Number Two" at the time of the bombing. Some of the investigation reports that turned up in the missing documents deal with reported sightings of John Doe Two. FBI officials say that none is credible: witnesses have reported seeing McVeigh with their brothers-in-law, or their neighbors.

The new documents are sure to provide fodder for conspiracy theories, no matter how farfetched. In most of these scenarios, McVeigh is not a hero but rather a government patsy--programmed to take a fall for a larger and more sinister plot. McVeigh may choose to die next month, or he may take his chances in the legal system. He is lucky, President Bush noted last week, to live in a country that protects the rights of everyone, even men whose brutal minds can only be understood as evil.

The Good, Bad and Ugly

The FBI's failure to turn over 3,000 pages of documents to McVeigh's lawyers is just the latest in a series of blunders that have marred the bureau's once legendary image. A roster of the highs and lows:

Ruby Ridge
An 11-day standoff in 1992 at the Idaho compound of white separatist Randall Weaver resulted in the death of Weaver's wife and son. The siege led to new rules regulating when FBI agents can fire guns and a $3.1 million federal payment to Weaver's family

Waco
A recent inquiry cleared the government of wrongdoing. But controversy still swirls over the FBI's 1993 tear-gas assault at the Branch Davidian compound that ended in the deaths of 80 members of the religious sect.

Frederic Whitehurst
The FBI agreed to revamp its procedures after former agent Whitehurst blew the whistle on the bureau's Crime Lab for allegedly mishandling evidence in several major cases, including the World Trade Center and Oklahoma City bombings

Richard Jewell
The former security guard was wrongly accused of being involved in the bombing at the 1996 Summer Olympics in Atlanta after FBI agents tricked him into waiving his constitutional rights during an interview

Wen Ho Lee
The former Los Alamos, N.M., scientist was initially suspected of passing nuclear secrets to China. The case ended in embarrassment last fall after defense lawyers showed the lead FBI agent had given faulty testimony.

Robert Hanssen
One of the FBI's own allegedly duped the government for 16 years before being charged in February with spying for Russia. Hanssen is believed to have received $1.4 million from the Russians since 1985. Plea negotiations are ongoing.