Friday, January 02, 2009

What Does the FBI Internal Complaint Tell Us?

Of course, no one can actually answer the title question. And that's ok. Some of my math teachers used to say, "The answer isn't as important as how you got there." I feel that way about this post.

Intro - My Approach


The best we can do is outline the facts (as they've been presented and we've experienced); the stories/theories we use to interpret the meaning of the facts we encounter; and imagination, to come up with possible answers.

Everyone does this all the time - they take their known facts, stories, and imagination and then declare "the Truth" often without even realizing how they've gotten to their 'truth.' I try not to declare universal truths (not always successfully) and rather give possible truths that may or may not be confirmed in the future. Like the math problems, the story of how I got to, in this case, tentative truths (some might call them hypotheses), is more important than the 'answers.'

That's why I won't give a summary, because that would focus on 'the answer' while the process to getting there is what's important . I know most people just want the soundbite these days, but without the context and logic that got to that soundbite, it really is nothing. Sorry, no shortcuts. But I have been playing with this for a few days to make this as concise as possible without holding this till it's moldy.

I will give you an outline:
  • Intro remarks - how I'm going to approach this

  • Facts/Experiences
    • List of facts and experiences relevant to this topic
    • What does the Complaint Document Say?

  • Application of Models (Stories and Theories)
    • Administrative Discretion
    • Human Behavior and Types
    • Organizational Culture - Women in the FBI
    • Whistle-Blowing
  • Possible Conclusions
(You're almost done with the Intro now)

The document in question here is a complaint filed by an FBI agent involved in the Alaska political corruption cases in which he alleges a number of violations of policy, rules, and procedures, and possibly a criminal violation.

I've posted the FBI Internal Complaint document in an earlier post. You can read it there or you can go to Scribd where I also posted it. I would note that in the previous post I used the language the Anchorage Daily News used: FBI Whistle-Blower Complaint Document. I'm now calling it an internal complaint document and I'll explain the reason for this when I discuss whistle-blowing.

Facts and Experience

So what 'facts' and 'experience' do I bring to this game of sussing out the meaning of the document?
  1. The document itself
  2. Information accumulated by attending and blogging the Anderson, Kott, and Kohring trials where I got to watch the prosecutors, defense attorneys, witnesses (including undercover informants), FBI agents discuss topics including the use and management of undercover informants.
  3. A few discussions with the FBI agent* in charge of the investigation. She talked to a class I taught and I bumped into her a couple of times by chance at events in Anchorage.
  4. Conversation with another FBI agent* involved in the investigation, again, a chance meeting at an event we were both at.
  5. Conversations, mostly brief, with three of the convicted politicians.
  6. A careful reading of Frank Prewitt's book on this subject Last Bridge To Nowhere.
  7. Discussions with other media folks who covered the trials and a few attorney friends.
  8. Part of my previous incarnation included doing grievance work, part of which was as a grievance representative for the faculty union.
*I would note that the FBI agents I spoke with were pretty good at talking in generalities about policy and hypotheticals and not revealing specifics about cases that hadn't already been revealed in court.


What does the Whistle-Blowers Complaint Document Say?

So much is redacted (blacked out) that one has to read between the redactions before one can read between the lines. Before I get to the first section of the Complaint, let me mention the key actors here.

1. The Complainant - refers to the person who wrote the complaint. This is an FBI Special Agent who worked on the Alaska corruption cases.
2. XXXXXXX is another FBI Special Agent who also worked on these cases.

The relationship between the two is not entirely clear. XXXXXX appears to be senior to the Complainant, but NOT the Complainant's supervisor. The Complainant says in one place he (I'm going to use 'he' when I refer to the Complainant) has:
  • "attempted to rectify them directly with XXXXX" [Unsuccessfully]
  • "My next step was to keep my supervisor aware..."
There is no guarantee that XXXXXX here is the same XXXXXX that is the target of the complaints, but I'm guessing it is. And so his supervisor would be someone else.

Now we can look at the document, which begins with the word: "Background"
  • Background:
    It begins, "I have been a Special Agent with the FBI since 2003" He (the odds are good that this is a male agent) seems to have been assigned to Alaska as his first position and "soon after arriving in xxxxxxxxxxxxxxx I was made xxxxxxxxxxx agent on a sensitive public corruption case, POLAR PEN XXXXXXXXXXXX. (The XXX indicates redacted parts.)
  • Summary of Complaints:

    • "I have witnessed or learned of serious violations of policy, rules, and procedures as well as possible criminal violations"
    • Attempts to rectify complaints by talking directly to XXXXX have been unsuccessful
    • Then kept supervisor aware of all problems
    • "I would also 'vent' with XXXXX agents that I trusted throughout the years."
    • "Advised my CDC (Chief division counsel) of some of these issues/problems."
  • Details of Complaints
    • Mishandled Sources (Redaction in original document is a black bar, I use XXXXX to indicate the black bar. I approximate the length of the bar, but I don't use a ruler.)
    • "XXXXX mishandled XXX sources"
    • "becoming too close to each of them." ('meet with sources in XXXhome')
    • "unnecessarily disclosed details about FBI investigations"
    • "unnecessarily provided information related to details about FBI investigations"
    • "unnecessarily provided information related to FBI techniques and internal workings"
    • "would accept things of value from sources."
    • "XXXXX documented very little in FBI files."

  • "Sources I am aware of mismanagement:"
    • Here there is a list of five blacked out names plus the name "Bill Allen"


  • The next five items on the list appear to be the five names that were blacked out above and details about specific problems with each of these sources. Some I can't figure out such as
    • "Source was previously in the XXXXXXXXXXXXXXXXX", or
    • "Source gave XXXXXXXXXXXXXXXX current job as a XXXXXXXXXXX at the XXXXXX."
Others we can get the gist of the issue
    • "XXXXX tried to have me reopen the source as my own source but I refused"
    • "XXXXX met with the sources at XXX home"
    • "XXXX had access to XXXXXX home, even when XXXX was not home"

Most of the allegations are about:
    • being too close to sources - having dinner with them, meeting them at home for dinner or lunch, getting a gift from a source, went golfing with a potential subject
    • giving information to sources that sources didn't need to know
    • "XXXXX provided XXXXX detailed information about my personal background, XXXXXXXXXXXXXXXXXXXXXXXX without my permission and knowing I would not have allowed XXXX to do so"
    • "XXXXXattempted to provide XXXXXX information about my personal background XXXXXXXXXXXXXXXXXXXwithout my permission. I had to kickXXX leg under the table to stopXXXfrom revealing personal information about me."

    • Then there is a section describing acts relating to Bill Allen. These include (the redaction makes it hard to summarize some of these - it's not clear what is being alleged - also the number of XXX's are approximately corresponding to the black, not exact) :
      • "Most recently, XXXXXmet with Allen byXXXXXinXXXhotel room in Washington D.C. When I found out that occurred, I told XXXXXXXXX that if XXXknew that was going to happen again, to advise me so I could stop that from happening again. I also told XXXX not to do that again. XXXXignored me."
      • "XXXXworeXXX for Allen during the recent trail during his testimony. XXX does not wear XXXX XXXXadvised it was a surprise/present for Allen."
      • "XXXXtold Allen during the pitch for him to cooperate on or about 08/30/06 that XXXXXaccepted bribes from the FBI. XXXXXtold him details of the case and that XXXXXX had cooperated with the FBI. It was unnecessary to reveal all that information. I believed it was absolutely unnecessary to provide details about other cases to someone we were wanting to cooperate. I advised the other agent in the room and XXXagreed but did not feel comfortable stopping XXXX from revealing further information."
      • "XXXXtold Allen XXXXwas cooperating and information that XXXXXXXXprovided by the FBI. XXXXXXprovided Allen with information XXXXXtold the FBI."
      • "XXXXmay have revealed to Allen and/or his attorney the status of an ongoing Anchorage Police Department investigation involving Allen."

You've probably forgotten where we are in the list by now. "Mishandling Sources" was the first of 14 separate allegations the whistle-blower makes. While the second allegation - "XXXX accepted multiple things of value from sources" - is a general category of problem, most of the others actually are allegations of specific acts that the whistle-blower thinks are violations of some policy or regulation. You can read them all in the document itself linked at top or again here.

Perhaps the key points that draw attention revolve around gifts:
  • "I am aware of a drawing/artwork, house-hunting assistance and employment for XXXXXX. I believe there were more gifts I do not know about."
  • Issues about withholding and mishandling information at the Stevens trial
  • Handling of confidential information
  • Inappropriate relationship/communication with media
  • Inappropriately created a scheme to relocate prosecution witness that was also subpoenaed by defense during trial
I would also point out that there are two different sets of complaints:
  • First, complaints that seem to be about a specific person, XXXXXX, that relate to how XXXXX conducts the investigation, basically that XXXXXX is too close to the sources.
  • Second, complaints about how things are run between the FBI and the Prosecutors during the Ted Stevens trial.
After the whole list of 14 complaints, it moves to the last three titled sections.
  • My Motivation to Further Report

    • Many serious problems arose in the Ted Stevens trial
    • One of the sources wrote and published a book providing information he shouldn't have known and "the book mentioned me in multiple places." [The "Perps and Persons of Interest" section at the beginning of Frank Prewitt's book lists two FBI Agents - Lead Special Agent Mary Beth Kepner and Special Agent Chad Joy. While this section does not include all the key players (Judge Sedwick is not listed), these seem to be the two most frequently mentioned Special Agents.]
    • "XXXXXXXXXmanagement recently decided to reassign XXXXXXXXXXXXXXXto others including XXXXXXXand XXbelievedXXXXXXwould continue to have contact and mismanageXXXXXcausing other agents to be in inappropriate situations as I had been in the past XXXXXXX."
    • I found out XXXXX is "in the process of writing a book and I feared more problems would occur and I would be in the middle of XXXXproblems again."
    • I've been encouraged by two other agents to report these problems.
    • "My efforts to rectify the problems have not been solved by reporting them to management"
    • "I re-read the FBI's core values and found they have not been upheld in the areas mentioned throughout the document."

  • Concerns for Myself (Since what he wrote was so short, rather than paraphrase it I'll just quote it)
    "XXXXXXXXXXX In addition FBIHQ from PCU to the highest levels are extremely pleased with the successes of POLAR PEN. I am concerned about possible retaliation. On 11/21/2008 I requested whistleblower protection status from my XXXXXwho was my XXXXXXXXXat the time. I don't want to be punished for coming forward. I am absolutely outside my comfort zone by reporting my concerns beyond my efforts I listed in this document. Because myXXXXXXwas a bit unclear as to whetherXXXgranted my request for protection, I request any and all whistleblower protections available again."
  • Actions I have Taken
    • Told two other agents in his office
    • Tried unsuccessfully to report violations in command structure
    • Called Office of Integrity and Compliance (OIC) - they gave me number for Inspection
    • Division, Internal Investigation Section.
    • It looks like he followed up on that but not sure because of the redactions
    • The rest has enough redactions that I can't really report it other than to say he had discussions with people, some appear to be people about whom he was complaining.
  • People Who Could Provide Further Information/Corroboration
The lists of names that follow are totally blacked out. It looks like there might be 15 names in the first section and about 11 in the second.

So that ends the 'facts' and experience section.
**************************************************

Next we move on to the stories/theories I bring to this. Most of us use stories and theories (also called models and narratives) all the time without even realizing it to interpret facts. It's these stories in our heads that account for different people coming to totally different conclusions when presented the same facts. (Think of the conclusions reached by a Democrat and a Republican both watching the presidential debates, for example.) We acquire these stories through our experiences and through the stories we hear as we grow up at churches, schools, on television, etc. As a retired professor, I have a little more training and experience in articulating the stories/theories I use. Here I'm using theories/stories/models (while these can be distinguished, they are often used interchangeably and here I'll use all three so you can pick the one you're most comfortable with) that cover topics like ethics, corruption, administrative law, human behavior, whistle-blowing, and management.


So, pulling all the above together, I can use the models I know to make sense of the information we have and to predict what the missing facts might look like. But even if there weren't missing facts, when it comes to the social world, people simply don't agree on what is a fact. Even though a jury convicted Ted Stevens, he has said he isn't 'convicted' until sentenced and until his appeal is heard. And some people would say that even though they were convicted, that doesn't make them 'really' guilty. And in some cases, DNA tests have 'proven' them to be right.

And then we use different models to interpret the facts. The theory that explains DNA is used to explain why some convicted prisoners aren't guilty. But you have to accept that the explanation of DNA and that how they tested for DNA 'proves' the convict isn't guilty.

The social world is pretty complicated when you start peeling back the layers. Thus this is a long post as I try to to explain how I get to my conclusions.


Application of Models (Stories/Theories):


I talked about stories/theories earlier. Sometimes these are called models or narratives. I'm going to discuss a few here so anyone can follow how I get to my possible conclusions.

1. Administrative Discretion
- American government is based on the idea of 'rule of law' as opposed to 'rule of men'. This means that decisions made in government agencies are supposed to be made based on the law. However, as much as we would like to strictly follow this ideal, laws that elected legislators pass rarely can take into consideration every possible condition that can arise. Nor do they usually write all the technical details into the law. Thus it is normal for career public administrators to write out rules and regulations for how the law is going to be carried out. This too is supposed to be an open activity with the public getting chances to see and comment on the proposed rules before they are adopted. But even if these things happen perfectly, there will still be situations that require us to trust the judgment of the administrator to determine what to do.

That judgment call is known as administrative discretion. It should be consistent with the laws and rules and regulations. Why do these things occur? Sometimes simply because someone's situation will be totally unanticipated. What happens when someone says to the Census taker - "I don't fit any of those categories, I'm mixed race." Well that happened for a long time and census takers had to figure out what to do. Then they eventually changed the choices. Judges, of course, have to use administrative discretion all the time. But they do this within guidelines.

The Complainant doesn't cite specific policies, specific rules, or specific regulations that were violated. I don't know what rules there are - how general or specific they can get. In trials they did go over what has to be done when doing surveillance - things like not listening to personal conversations that are not related to the surveillance. But I don't recall, off hand, that kind of discussion about sources. They did talk about the promises made to sources about sentencing - in all cases no one was actually promised anything other than the prosecutors would ask for a reduction in sentence if there is continuing cooperation, but that ultimately the judge made those decisions. Bill Allen was told his family members would not be indicted if he cooperated fully.

It seems to me that the job of recruiting and working with undercover sources is a job that requires a lot of administrative discretion. One has to assess each individual source individually and weigh a lot of factors. One has to develop the trust of the source - that you will do as you promise, that you will protect them to the best of your ability from the people they are doing surveillance on. The agent also has to trust the source as well. The source is going to have to know information that the agency doesn't want disclosed to the people being watched. It is a careful balancing act. Determining exactly what one has to disclose to gain the source's continuing trust is an art, not a science. The agent wants to develop as close a relationship with the source as possible so the source trusts and feels a certain loyalty to the agent. If television cop shows are any indication, the line between proper and improper handling of sources is a topic of constant debate. Clearly this is a judgment call, it fits the category of administrative discretion.

As I said earlier, the hierarchical relationship between the Complainant and XXXXX is not clear. It appears that XXXXX does not take orders from the Complainant, but the Complainant seems to have a different direct supervisor. It appears that in the investigation, XXXXX was in a senior position to the Complainant. Possibly this investigation was like a project team where both are taken from their regular hierarchical units and temporarily assigned to a team. If that's the case, it appears that XXXXX might have been the team leader, but not the Complainant's normal supervisor.

If that is the case (and this is just speculation) the team leader can take advice from subordinates, but ultimately the team leader is responsible for making the call. Once that happens, unless it is clearly in violation of the law, the subordinate needs to go along. If XXXXX has the authority to make the final decisions, and these are decisions that fall within the realm of administrative discretion, then it is XXXX's call in the end, not the Complainant's.

What additional evidence is there to think the Complainant was subordinate to XXXXX? The Complainant said,
"I have been a Special Agent with the FBI since August 2003"
and
"soon after arriving in xxxxxxxxxxxxxxx I was made xxxxxxxxxxx agent on a sensitive public corruption case, POLAR PEN XXXXXXXXXXXX"
This investigation - known as POLAR PEN - was instigated in Spring 2004. So the Complainant was in the FBI, based on the above statements, for probably less than a year - a relative rookie - when he joined the investigation. XXXXX had to have more seniority. Furthermore, if Complainant were the person in charge, he wouldn't have to be a whistle-blower, he would have had the authority end the practices he disagreed with.

Thus, later when the writer says things like
"I told XXXXXXXXX that if XXXknew that was going to happen again, to advise me so I could stop that from happening again. I also told XXXX not to do that again. XXXXignored me"
this person sounds like he is giving orders to someone over whom he really doesn't have authority. Of course, with the redactions, one can't be certain who is meant or what the relationship actually is.


That said, if the Complainant can identify specific rules, regulations, or policies that are specific and show that XXXXXXX violated those policies, there may be something there. I've heard from a couple of attorneys who normally would not be sympathetic to the Defense in the Stevens case who feel that the Prosecution's actions in the case are inexcusable and would not be tolerated in an Alaskan court and that there should have been a mistrial. I don't know to what extent the court problems are issues with the Prosecutor's actions and to what extent they relate to the FBI's actions. But there may well be serious issues here.


In this case, the Complainant alleges
"I have witnessed or learned of serious violations of policy, rules, and procedures as well as possible criminal violations"
but doesn't cite the specific sections of the policy, rules, and procedures that were violated. (He does cite specific actions he finds problematic, but does not connect them to specific rules to show that they are a violation.) Complainant says, as mentioned in the section above on administrative discretion, things like 'gave unnecessary information'. Whether the information given was necessary or not to develop the rapport needed to keep a source productive all the way through the trial witness phase is definitely not black and white. It's administrative discretion. If there were a rule that said, "Agents may never tell sources X, Y, or Z" and the Complainant could demonstrate that XXXXX had told X, Y, or Z to a source, then there would be a basis.

The Complainant's last "motivation" for filing the complaint was that he "re-read the FBI core values and found they have not been upheld." I looked them up on the FBI website. Here they are:

Our Core Values
• Rigorous obedience to the Constitution of the United States;
• Respect for the dignity of all those we protect;
• Compassion;
• Fairness;
• Uncompromising personal integrity and institutional integrity;
• Accountability by accepting responsibility for our actions and decisions
and the consequences of our actions and decisions; and
• Leadership, both personal and professional.

None of these is specific. All of these are more about a person's character than about a person's behavior. Is the Complainant really saying that XXXXX is unfair? Compromises personal integrity? Doesn't accept responsibility for actions? Those are pretty heavy accusations. I do believe the Complainant believes everything he wrote. But these are clearly things, like beauty, that except in extreme cases, are in the eye of the beholder. Again, if we look at the recent presidential election, Republicans and Democrats had very different assessments of the character of each of the four main candidates. But the Complainant doesn't allow that there might be a legitimate difference in interpretation. So let's proceed to the next model to see how this can be.

Before I let go of administrative discretion, I have to use an example from the case itself. The Complainant writes about being aware of "a drawing/artwork" that was a gift to XXXXX. Presumably, receiving such a gift might somehow compromise the objectivity of the Special Agent. But I've said above, that the relationship between an agent and a source is a very delicate one. In this case, we also have a book, written by a source in this case, describing, probably not coincidentally, his relationship with his agent and a gift of a drawing. This is the same book that the Complainant has complained about. It's my impression that this book, by Frank Prewitt, takes liberties with the facts and has a tendency to be self-serving. But the author is smart. What he writes about the nature of the relationship between a source and an agent - whether the facts of their conversation are accurate or not - does capture why the charges here seem to me to be so rigidly unrealistic.

The agent, Mary Beth Kepner, has asked Prewitt to meet over coffee.

After a couple of rounds of small talk she said she wanted to tell me about a meeting with her supervisor. "Remember the lunch we had before I left?" I nodded and she went on, "Well, someone else at the table saw the picture of the dog portrait your wife gave me for Christmas and expressed concern."

I interrupted, "Concern about what?"

She said, "Concern about accepting a gift from a Confidential Source. It gives the appearance we may be too close."

I laughed and said, "Well that's easy, why don't you pay for it, we can use the dough!"

She replied, "No, serious, it's a problem."

What's a problem?" I said.

"The appearance, idiot!" she replied.

I thought for a moment, looked real concerned, and said, "You mean we're breaking up?"

Finally she laughed and explained that there was some kind of incident with an agent back in Baltimore who got too close to a source and ended up embarrassing the Bureau.

I studied her for a moment and said, "Let me get this straight. I worked covert operations with you and your team nearly full-time for two years, worked overt, including trials, for another two, and someone's concerned we might be too close!?" I squinted, leaned forward and cynically whispered, "Has anyone told my wife?"

Kepner replied, "Oh come on, there was just a concern over the portrait and a word to the wise."

I settled down a little and said, "Ahh, wise words. I like wise words. Come on Kepner, once you figured out I wasn't a crook [Steve: this was debated in trial - it seems at least that the statute of limitations was up; the next bracket was in the original] you know very well we both had to trust each other to do what we've accomplished. If I hadn't thought you really cared about me, my family, and getting to the real source of the corruption, I would have been out of here a long time ago. The first week we met I said I thought you were on to something, but you were looking under the wrong rocks. Remember? [Kepner nodded] When you say my help was "indispensable" I take you at your word, but without a trusting r-e-l-a-t-i-o-n-s-h-i-p we wouldn't be sitting here today, and the Corrupt Bastards Club might still be recruiting members."

Kepner looked me straight in the eyes and said, "You're over-reacting. You know these cases are fragile and there can't be even a whiff of impropriety!"

I avoided her stare, took a sip of coffee and mumbled, "Well, that's easy because there hasn't been and won't be."

In truth, we had become very close. People have real lives, real feelings, real highs, and real lows. Some people bring out our best, others our worst. Some relationships fit like a glove, others chafe like a scouring pad. Most of us are healthiest and happiest in circles of mutually supportive community. And for all those very natural reasons Kepner and I worked well together. So I grudgingly agreed that a little reminder wasn't a bad thing, settled down and said, "Vicki painted pet portraits for a bunch of family, friends, and acquaintances at Christmas and I'm the one who asked you for a photograph of your dog because Vicki supposedly needed a good likeness of a yellow lab for her art group."

Kepner nodded and I continued, "The going commercial rate is a few hundred bucks. Why don't you just go over to her studio and cut a check, she'll give you a receipt and everything will be squeaky clean. But when these cases are all closed I want an invitation to one of your in-service training classes to talk about agent-source relations from the source side of things." Kepner looked puzzled, so I explained, "I understand Bureau concern over conflicts of interest. But extreme cases make poor general policy. It was your training and humanity that accomplished the government's mission. Robotons don't have instincts or feelings, that's why they make crappy supervisors and can't solve cases, they also make lousy friends."

Kepner smiled, paid for her own coffee and said, "Catch ya later, I'm late for a meeting downtown with Robocop." I smiled, waved goodbye and thought, "What a paranoid outfit! They hire terrific people, put them through incredible training, and then force them to look over their shoulders in a defensive atmosphere of suspicion and distrust. Then again, they are spies, maybe that's why they're so good at what they do." [emphasis mine] [From Frank Prewitt, Last Bridge to Nowhere, pp. 137-138.]


2. Human Behavior and Styles

The management literature is full of theories of motivation that attempt to explain why people do what they do. Such theories began fairly simplistically ascribing a few motivations to everyone, but evolved into essentially saying that everyone is different and you have to know what motivates your specific employees. One of the more popular personality characteristic assessment tools is Myers-Briggs. It identifies different ways people approach basic functions such as taking in information, forming judgments, making decisions. The Myers-Briggs website does an excellent job of explaining this model. The four basic aspects they test for (taken from personalitypathways) are:

Q1. Which is your most natural energy orientation?

  • Every person has two faces. One is directed towards the OUTER world of activities, excitements, people, and things. The other is directed inward to the INNER world of thoughts, interests, ideas, and imagination.

Q2. Which way of Perceiving or understanding is most "automatic" or natural?

  • The Sensing (S) side of our brain notices the sights, sounds, smells and all the sensory details of the PRESENT. It categorizes, organizes, records and stores the specifics from the here and now. It is REALITY based, dealing with "what is." It also provides the specific details of memory & recollections from PAST events.
  • The Intuitive (N) side of our brain seeks to understand, interpret and form OVERALL patterns of all the information that is collected and records these patterns and relationships. It speculates on POSSIBILITIES, including looking into and forecasting the FUTURE. It is imaginative and conceptual.

    While both kinds of perceiving are necessary and used by all people, each of us instinctively tends to favor one over the other.

Q3. Which way of forming Judgments and making choices is most natural?

  • The Thinking (T) side of our brain analyzes information in a DETACHED, objective fashion. It operates from factual principles, deduces and forms conclusions systematically. It is our logical nature.
  • The Feeling (F) side of our brain forms conclusions in an ATTACHED and somewhat global manner, based on likes/dislikes, impact on others, and human and aesthetic values. It is our subjective nature.

Q4. What is your "action orientation" towards the outside world?

  • All people use both judging (thinking and feeling) and perceiving (sensing and intuition) processes to store information, organize our thoughts, make decisions, take actions and manage our lives. Yet one of these processes (Judging or Perceiving) tends to take the lead in our relationship with the outside world . . . while the other governs our inner world.

While most people do not fit perfectly into one category or another, I have found instruments such as this useful to get people to be aware 1) of their own ways of taking in information and processing it; 2) that there are other legitimate ways besides their own; and 3) how to benefit from, rather than fight with, people with different styles at work. Each style has situations where it is powerful and where it is not. Recognizing that other people are using different processes can be very helpful in understanding the basis for many so-called personality conflicts. And once you are aware of how you take in information, or make decisions, for example, you can see why you are at odds with someone who does it differently.

It may well be that the Complainant and XXXXX have very different styles and so they come to very different conclusions about what is appropriate. One area where they seem to have different styles is how they perceive rules and regulations. The Complainant appears to take rules very literally. XXXXX seems to believe that they are not as clear cut and rigid. The Myers-Briggs system uses the four factors above, divided into two options for each, to come up with 16 different types. One possibility is that the Complainant is an ISTJ which would lead him to be fairly rigid when it comes to following the rules (from portrait of an istj):

ISTJs tend to believe in laws and traditions, and expect the same from others. They're not comfortable with breaking laws or going against the rules. If they are able to see a good reason for stepping outside of the established mode of doing things, the ISTJ will support that effort. However, ISTJs more often tend to believe that things should be done according to procedures and plans. If an ISTJ has not developed their Intuitive side sufficiently, they may become overly obsessed with structure, and insist on doing everything "by the book".
So if the Complainant were, in fact, an ISTJ, he might see his way of interpreting the rules as the only possible way and thus anyone who disagrees is simply wrong. I'm using this as an example of how people could get into conflict in a situation like this. I'm not saying that the Complainant is a Myers-Briggs ISTJ or that the Complainant has these characteristics. But if he did, that would sure help us understand why he's taking the stand he's taking. Or, it may be the case that XXXXX has gone way beyond the discretionary gray area. But the Complainant hasn't spelled that out clearly enough for us to judge. (And, of course, the document was never intended by the Complainant to be seen by us.)

Going through his complaints, we see they are mainly about rules being violated - rules he doesn't specifically identify, and which would appear to be rules which cover situations that have a lot of gray area. He seems focused on rules without regard to the bigger picture - that ten people under investigation have either pled guilty or been convicted. Of the four who have gone to trial, they have all been convicted. Now, if there was some latitude in the application of rules to do this, it wouldn't seem to be a bad practice. However, if the court decisions were the result of clear violations of the rules that violated people's basic rights, then the Complainant has a legitimate case.

But he hasn't made that case. He has not identified in his complaint, harm that might have been done to the public or injustices done to those under investigation. The main harm I can detect from his complaints is possible harm to himself. And the rules were broken.

Let's go through his "Motivations for Further Reporting":
  • Many serious problems arose in the Ted Stevens trial -
    Are these problems that would affect the fairness of the trial? That would change the outcome? There is suggestion from others - particularly the Defense - that this may be the case. But the Complainant doesn't make this claim or the connections to rules broken. He only gives examples of the behavior he dislikes.

  • One of the sources wrote and published a book providing information he shouldn't have known and "the book mentioned me in multiple places."
    a. The Complainant needs to identify the specific rule or regulation that identifies what information may not be shared with sources and then show that this source had such information and then show how the source got the information.
    b. I don't know what the rules are about sources writing books, but I find it curious that the Complainant lists that someone wrote a book that mentions him. If there is a law or rule that abridges the First Amendment rights of sources, the Complainant should identify it.

    I would note that at least two reviewers of the book (Rich Mauer and myself) said that the book was more historical fiction than a factual depiction of the investigation. It was clear the author made up details in a number of places and the author didn't claim it to be completely factual. The Complaint's comments here now give more credence to the book than it previously had.

  • "XXXXXXXXXmanagement recently decided to reassign XXXXXXXXXXXXXXXto others including XXXXXXXand XXbelievedXXXXXXwould continue to have contact and mismanageXXXXXcausing other agents to be in inappropriate situations as I had been in the past XXXXXXX."
    There is too much redaction here to be sure what was intended. One possibility is that the Complainat is alleging that XXXXXX has been reassigned but with responsibilities similar to what XXXXXX had in the POLAR PEN investigation. You could argue that here is a situation where the Complainant is trying to prevent harm to others in the future - other Special Agents. But it also suggests that he is complaining that he was put in inappropriate situations - though again except where he says "XXXX gave sources information about the Complainant" - he never spells those out clearly. Are these just embarrassing and uncomfortable? Or illegal? Were they instances of harassment or mistreatment? Or did XXXX deem the sharing of information necessary to build trust with a source? In any case, if they were violations, the Complainant needs to identify the specific rule, give specific evidence, show that XXXXX actually did these things.

  • I found out XXXXX is "in the process of writing a book and I feared more problems would occur and I would be in the middle of XXXXproblems again."
    What problems would occur? In the previous book, the problem the Complainant offered was that the source had information he shouldn't have had. If that happened with the author of the new book, then that's happened already (he already has the information) and writing the book isn't an issue. If publicizing that information is the issue (the Complainant did not say it was in the previous book) then the Complainant needs to explain that and why. Or is the Complainant concerned that he will again be a character in the book? We need an explanation of how that violates the rules or what harm is done.

    I really don't know what the rules are here and I confess to being surprised that Frank Prewitt was allowed, as part of his agreement with the FBI and Prosecutors, to write a book which, from what I've heard, the FBI did not read and clear before it was published. Was XXXXX responsible for leaving such a clause out of the cooperation agreement with Prewitt? Or was the Prosecution? In any case, is this a violation of the regulations?

  • I've been encouraged by two other agents to report these problems.
    Whistle-blowers are generally encouraged to talk to mentors who have a broader view of things before filing their complaints. So, in principle, this is a good move. But one has to pick one's advisers well. Did these two have enough experience and knowledge about this case to advise him? Did he share enough information for them to judge accurately? Did they listen carefully and then urge him to file? Or did they not object to what he was intent on doing?

  • "My efforts to rectify the problems have not been solved by reporting them to management"
    Whistle-blowers are almost always advised to go through the normal channels before going beyond the organization to raise the issue. So this shows the Complainant did that. Sometimes such complaints are rejected because they have no basis, sometimes because the management is covering up something. There's no evidence one way or the other here.

  • "I re-read the FBI's core values and found they have not been upheld in the areas mentioned throughout the document."

I've posted these core values above. They're pretty general and they are about character not action. Is the Complainant accusing XXXXX of not being fair, not being respectful, not having integrity? Those are pretty heavy charges.

When people think there is only one right way to take in information, to draw conclusions, or to make decisions, it's easier for them to conclude that people who use a different method are wrong or even bad. One of the benefits of tests like Myers-Briggs is that if introduced well, they help people see that when other people have different styles on fundamental behaviors it doesn't mean they are bad or lazy or stupid, but that they approach things with a different style.


3. Organizational Culture - Women in the FBI


The FBI has been known to have a unique organizational culture. J. Edgar Hoover led the agency from 1924 until his death in 1972 - 48 years. During his tenure, women agents weren't allowed - see the excerpt below from Rhodri Jeffreys-Jones' book, The FBI:


[To enlarge, double click]

Once Hoover was gone, things changed, but while current FBI webpages say that 43% of all employees at the FBI are women, there are still only 15.5% women among special agents. [The data comes from the two FBI webpages below. 2,000 women special agents/12,851 special agents.]
On September 30, 2008, we had a total of 31,244 employees. That includes 12,851 special agents and 18,393 support professionals, such as intelligence analysts, language specialists, scientists, information technology specialists, and other professionals. (From FBI Website.)
Over 2,000 women serve as FBI Special Agents, many in high-profile, leadership positions. (From FBI Website - Female Special Agents page)


And today, based on the chart below, 74% of all employees of the FBI are still white. [White men make up 45% and white women make up 29.2%]

There are a lot of good agents who are strongly supportive of women and non-whites, I'm sure. But I suspect that there are still male agents who are not completely comfortable with the idea of female agents. That's the case of men in all organizational settings, even ones that are not linked to as strong a male image as the FBI has had.

I once heard a talk by a black, female CPA who worked for a major national accounting firm that helped me understand how this lingering sexism can work. She'd been invited to talk to an undergraduate accounting class at a major university. She talked to them about racist and sexist incidents she had encountered in her career. Students kept interrupting her and challenging her on what she said. Finally the regular professor intervened. "You've never once challenged me the way you are challenging our guest today. Nor have you challenged previous guests. Why do you suddenly feel that it is ok to challenge today's guest?" He then went on to point out that their treatment of her seemed to reinforce what she was saying about black women being treated differently, and with less deference, than white males.

I raise this as another hypothesis to follow up in this situation. If in this case the Complainant is a male and XXXXX is a female, perhaps some of the Complainant's discomfort is related to the fact that XXXXX is a woman who doesn't defer to his suggestions all the time. Obviously, this is a guess and I don't have any data to back it up. Would the Complainant have responded the same way if XXXXX were a male? Or is he like those students who feel more freedom to challenge a female authority figure than a male? And remember, I'm not sure that XXXXXX is a female. But should the genders be as I describe, this could be one of many factors that are affecting behavior here.

So, these are a few of the stories/theories that one could bring to analyzing this complaint to determine whether the Complainant has legitimate issues or not. I'd like to look at one more story - whistle-blowing .

4. Whistle-blowing

Whistle-blowers have a generally good positive image with the public. It's true that management may be cynical about whistle-blowers, but overall the image is good. Thus to call someone a whistle-blower, for most people, tips their initial bias in favor of the whistle-blower.

But there was a point while I was writing this that I began to question the label Whistle-blower. I went back to see why the label was applied. The Anchorage Daily News called the file of the complaint it posted "FBI Whistle-Blower Complaint Document." I checked the document itself again. It isn't labeled with the word whistle-blower. It just starts, "Background." There is no title, though it has a heading that says it isn't classified, but it is sensitive. I can't find the word "whistle-blower" until the bottom of page 6 (of 8 pages), "On 11/21/2008 I requested whistleblower protection status..." The only times it is used is in regard to getting protection from retaliation.

People do not have to label what they do by particular names. However, the more I read, the more this document felt like a grievance rather than a whistle-blower complaint. A grievance is filed by an employee who feels he has been treated improperly in violation of the rules and regulations of the organization. For a whistle-blower, the motive is not personal protection, but to protect the public from some significant harm.

James Bowman, a professor of public administration who has specialized in ethics defines a whistleblower as:
...an employee who reveals information about illegal, inefficient, or wasteful governmental action that endangers the health, safety, or freedom of the American public.
The Complainant in this case never discusses danger to the health, safety, or freedom of the American public. The Complainant does say that rules and regulations were violated, but the only consequences of those violations that he even hints at are dangers to himself.
  • He didn't like that a source wrote about him in a book.
  • He's concerned that a reassignment will lead to XXXXX "causing other agents to be in inappropriate situations as I had been in the past"
  • He's concerned about a second book being written "and I feared more problems would occur and I would be in the middle of XXXXproblems again."
I've read the complaint carefully, several times. I can't find anywhere that the Complainant argues the violations "endanger the health, safety, or freedom of the American public." He never mentions that cases could be compromised, that defendants' rights are being abused, that sources are being coerced. Rather we hear that he is made uncomfortable, that his concerns are being ignored, that he's in the middle of problems.

This is all material for a grievance, not a whistle-blower. But for a grievance you also need to cite specific rules, policies, or regulations that were violated, which he hasn't done.

It is not clear to me when the document was filed. There is a date stamped across the top of each page - "Filed 12/22/2008." Is that the date it was filed with Judge Sullivan? I'm not sure. Was it filed with another agency first? I don't know. Another date is mentioned in the complaint - "On 11/21/2008 I requested whistleblower protection status..." Whether this is significant or not I can't say for sure. This was almost a month after the Ted Stevens verdict was announced (Oct. 27, 2008.) Already during the trial there were problems that were embarrassing to the Prosecution and to some extent the FBI. Was the Complainant worried that his record might be tarnished if some of the charges against the Prosecution stuck? It does appear that the main complaints stemmed from his relationship with XXXXX and then at the end he added the material from the Stevens case. Was this because it added more examples of wrong behavior? Or was it added to strengthen his claims against XXXXX? I have no evidence to answer any of these questions, but they might be useful to pursue. If I were to let my imagination run wild, I might even wonder whether the Defense was actively looking for some weak links in the Prosecution team. But if that were the case, I think the complaint would have been much better written.

A useful model to evaluate whistle-blower claims, also cited by Bowman and many, many others, but taken here from The Indian Journal of Medical Ethics, is Norman Bowie's six criteria for determining if a whistle-blower's complaint can be justified:

1. The whistleblowing stems from the moral motive of preventing unnecessary harm to others.

As I've mentioned above, I have some question about the Complainant's motives. I don't doubt he believes there is a problem, but if his motives were to protect himself rather than to protect the public, he probably should have filed a grievance. Grievants also get protection from retaliation. In fairness to the Complainant, he really doesn't seem to have seen himself as a whistle-blower till the end, probably when people he went to for counsel advised him to ask for protection against retaliation. It was the media that seem to have plastered 'whistle-blower' all over this story. As I said, that word suggests that someone in the agency is coming forth to protect the public from harm. But there is nothing in this complaint, the way it was written, that can be characterized that way. This is, as I read it, a document to protect the writer from harm.
2. The whistleblower has used all the available internal procedures for rectifying the problem before making public disclosure. (This may be precluded under certain special circumstances.)
This seems to be the case. There is evidence in the complaint that he attempted different internal avenues. In fact, the whole process has been internal. It only was made public over the Complainant's objections by Judge Sullivan.

3. The whistle blower has ‘evidence that would persuade a reasonable person’.

This is a problem. He does not cite any specific rule, regulation, or policy that has been violated. There is little or no evidence provided to prove any of the actions mentioned - to prove they happened or to prove they were the way he characterized them. That doesn't mean they didn't happen, there just isn't any evidence other than his statement they did.

4. The whistleblower perceives serious danger from the violation.

If this is the case, he never specifies what that danger is and who is endangered, except himself.

5. The whistleblower acts in accordance with responsibilities for ‘avoiding and/ or exposing moral Violations’.

I understand this to mean that the whistleblower's position in the organization gives him responsibility to report wrong doings. This appears to be the case.

6. The whistleblower’s action has reasonable chance of success.

If we were just going to depend on the document itself, there's not nearly enough information. It all depends on whether the Complainant or others can identify the rules and regulations that were violated and can present evidence that what he claims happened.


4. Possible Conclusions


I said at the very beginning that there simply isn't enough information available in the complaint to have any answers.

There are two basic sets of charges:

1. Those that relate to how the Alaska Corruption investigations were conducted by the FBI, particularly in regards to relationships with sources.

2. Those that relate to the relations between the Prosecutors and the FBI during the Ted Stevens trial and how evidence was handled and communications with the Defense.

There are some potentially serious issues when working with undercover sources. At what point are the sources enticing the subjects into acts they normally wouldn't have performed? How do you decide who gets a reduced sentence and who doesn't? Will the outcome be that the some of the minor players end up getting the biggest punishment and some of the biggest players get off with relatively light or no sentences at all? How do you know for sure the informant isn't creating things to save his own skin?

But the Complainant doesn't raise such issues. His key concern seems to be that rules were violated - rules he never identifies. The infractions he does identify are mostly fuzzy. They have words like "unnecessary" in them. Determining what is necessary is not an objective, clear cut task. This is why we have a term like administrative discretion and why humans, not machines, make the decisions.

Even where there might actually be some more objective and significant infractions (it depends on what the unnamed rules and regulations are) like not keeping a written record of communications with sources, or the confusion between the Prosecutors and the FBI over who had control of the records, or the issue of turning over records to the Defense, the Complainant never talks about the harm to the defendant or to the public, or the effect on the cases or future cases. It's just about rules. When he does mention future effects, its about the impact on other employees, (concern in the heavily redacted point about a reassignment that others will face the same problems he had to face) but no concern is voiced about the effectiveness of the undercover operations or the success of the trials. (Also, the latter complaints seem to shift to decisions the prosecutors made, while the initial complaints seemed to be chiefly focused on another FBI agent.)

I also seem to detect that much of this is about the Complainant fearing that he will be blamed for things that other people ordered him to do.
  • He doesn't like that one of the sources wrote a book which "mentioned me in multiple places."
  • He expresses fear that a second book will be written and "more problems would occur and I would be in the middle of XXXXX problems again."
  • He discusses the decision to send one of the Stevens witnesses home because of a serious illness. He was concerned that they should inform the defense first. "I was ignored. They had me send Williams home. The defense and judge found out, were very angry, and suggested prosecutorial misconduct had occurred."
While it is certainly legitimate to be concerned that one isn't being scapegoated for others' wrong doings, one would hope that an FBI agent is looking at the bigger picture. Generally, whistle-blower complaints are made when there is serious potential harm about to impact the public - hazardous waste leakage, infrastructure in danger of collapsing, serious human rights abuses. The Complainant may be well aware of that bigger picture, but if it is in this complaint, I've missed it.

If there is concern here that he might be blamed for what he sees (possibly correctly) as improper actions taken by others, there are ways to deal with that. As long as he documents that he voiced his concerns and that he was acting on the orders of others, he should be ok.

In any case, from the perspective of an outsider who does not know all the rules and regulations that apply to the handling of sources or evidence, in order to conclude that there were the violations alleged in the document, it would be necessary to have:
  • a list of the specific rules and regulations that are alleged to be violated, and
  • a list of specific actions that are violations (he has some of this already) linked directly to the specific rules and regulations
  • the evidence that these things actually happened as he claims
This post is based mostly on what was written in the Complaint Document. Perhaps the problems he raises are legitimate and had he written a document that clearly linked the behaviors he mentions to specific rules and regulations that were violated, it would be more persuasive. That's why people hire expensive attorneys. And the Complainant was writing for an internal review system, if I understand it right, with no expectation that a judge would make his document public. But then he is an FBI Special Agent and thus should be better equipped than the average citizen to write a tight document and to know the risks of disclosure.

3 comments:

  1. XXXXXX XXX XXXXXXXX XXXXX XXXX XX X XXXXXX.

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  2. Sorry Steve, I had to post the above comment. ;) You raise some fascinating points. I think that what got to me the most is "3. The whistle blower has ‘evidence that would persuade a reasonable person’." My experience is that this term is used when one person making an argument isn't getting anywhere and tells the person they are trying to convince that "any reasonable person would agree." ("You just aren't reasonable!")

    I never trust any situation where an assumed criminals friends are used to entrap them. The situation with Bill B. and Tom Anderson got to me the worst because having met Bill B, the notion of not having his champagne socialist lifestyle terrified him would have him lie about his own mother to save himself from any inconvenience. How little he got suggests that he was very willing to entrap Tom A. Sure-- he felt bad for the negative publicity, but his wife is a doctor, his best friend is in DC and Bill may be going to pose with President Obama before long. He probably got over it. There are no tears in his Veuve Clicquot!

    What was the FBI getting out of bringing down AK's politicians? Pete, Vik, and Tom seemed like small potatoes. There are so many bigger states with bigger prizes. In another year few will remember what was happening up here because the public has the attention span of a fruit fly.

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  3. Lets cut through some stuff:
    Agent Joy was miffed he was noted in the Prewitt book, and seems to take out his wrath on Agent K, since Agent K seemed to have had interaction with Prewitt.
    Plus, Prewitt seems to have contacted higher ups in the FBI to complain/ rag about Agent Joy.
    So, what is the old saying: pay backs are a bitch. I have often heard that saying in matters, as people play games, with others.
    That is an old saying for someone who holds a grudge, and finds ways to put a knife, figuratively(ph) speaking, in someone's back.
    Agent Joy just detests Agent K, and even let his sexist rants explode in a fury hardly ever seen in offical documents.
    His complaint is a prextt for some deep emotional thing going on with Agent Joy.
    That it happened in conjunction with the Steven's matters, and the jury nullification compounds things even more.
    We seem to know so little of Agent Joy, we see only the tip of his very irrational behavior, and any can hardly wash it away as not being very odd.
    By the way, it is not a crime for people to write books, or write blogs, this is not Communist China, back in the days of deep suppression.
    Or, is it a crime to have coffee, but is Agent Joy setting up his own kingdom of some crime trap for Agent K, and gaming things for his own kinky head trip.
    Face it, Chad Joy, is not some Judge, some jury, some high executioner, as if something got to him in a way that made him become very unbalanced, totally UNGLUED.
    It looks like some form of cannablism, a very ugly sordid chapter, that goes deep into the roots of AK public affairs.
    Ted Stevens is not seen as some God in the lower 48, he is seen as a mean spirited, greedy politican, who would enslave most people in seas of debt, for his own glory club of favors, PAC money, and all the twardy stuff that surrounds that.
    Stevens is hooked on power(like a drug addict) in a way, that was not good for America, and even so beyond this Joy bizzare incident, that looms as a cloud over the entire American justice system, as if double standards are gamed in things by the FBI, as many rot in jail, and watch the strange twists and turns in this Teddy saga.

    ReplyDelete

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