Blogging - What's Real? How Do We Know? Stevens, Kepner, Joy

It's Saturday morning in Chiang Mai. We have tickets for the Monday afternoon flight to Taipei and Tuesday afternoon to Anchorage. I've got things to do, but I got a comment today on the Let's Get Real about Mary Beth Kepner post that has my brain twisting.

How do any of us know what is real? OK, I don't want to go into a deep philosophical discussion, so let's limit this to what we see and hear in the news. Suppose you read that a prominent politician's conviction has been thrown out and that there were allegations of prosecutorial misconduct, and that there was an FBI 'whistleblower' who said his partner was violating the rules and was much too close to the witnesses. And the defense claimed this partner was having an affair with a key witness based on the whistleblower's complaint.


How do we cut through all that to find out what is true? I don't know about you, but I tend to rely on my beliefs which are based on my experiences and education. Those beliefs then inform the labels I read in the article. The interpretations are tempered by any personal experiences I have had directly with any of the people or places in the article.

I tend to 'think' more than the average person. My job was to think critically and to teach people to think critically. But I still get seduced by my stereotypes when I'm not being careful, especially if a story matches what I want to believe.

So I tend to be wary of 'politicians'. The nature of the system is that they need to raise money to get elected. And we know that people that help them get elected with big contributions are more likely to get an audience when they want one. Most people write checks to candidates they agree with, so if a candidate votes the way the contributor suggests, it isn't necessarily suspicious. But big lobbyists tend to contribute to all the likely candidates - it's not about ideology, it's about getting a foot in the door and getting what they want later on.

So 'politician' being convicted of corruption. My unthinking response is, "Yes!" If it's a Republican, then add another exclamation point. OK, I know there are honest politicians and good, decent Republicans. But if I don't stop to reflect on that, my gut reaction works through my stereotypes. But in this case, there are personal experiences too. I've met Ted Stevens on a couple of occasions. (I'm an Alaskan. Is there an Alaskan whose been around more than five years who hasn't met Ted?) He's smart, he's rabidly dedicated to doing what he thinks is right for Alaska which tends to mean getting money sent to Alaska. He also has been a Senator forever and from what I can tell, he already had an ego and temper long ago. All these years surrounded by sycophants hasn't helped his ego. And I know people who have told me they've seen the effects close up of how some of that money has spilled over into the waiting buckets of associates. Fishing and Seward for example. [Note: The ADN seems not to be giving free access to the Seward article. You may need a library password to get through on this link. The article citation is: Ben Stevens ' secret fish deal - State senator helped steer Adak pollock to a company he had financial stake in Anchorage Daily News (AK) - Sunday, September 18, 2005 Author: RICHARD MAUER Anchorage Daily News ; Staff ]

Whistleblower. That's a magic word for me. This is someone who sees a wrong and when the powers that be won't fix it, he or she risks everything to make sure the public is protected. Deep Throat. Daniel Elsberg. Jeffrey Wigand (played by Russell Crowe in The Insider). Karen Silkwood. These are all heroes. So the word whistleblower tends to turn on the 'good guy' reactors in my brain.

But in this case, I have some personal contact. I've watched in court and had several conversations with the 'corrupt' FBI agent. And the 'whistleblower's' comments are at odds with my sense of Mary Beth Kepner's professionalism and judgment.

Our science based society puts lots of weight on objectivity. We're supposed to keep an arm's length. We're supposed to judge the facts using rationality, not feelings. I had a conversation just yesterday with an anthropologist who is studying farmers in a small Thai village. Anthropology has gone through these debates about studying cultures 'objectively' from the outside or 'subjectively' by being a participant. This anthropologist is living in the house of one of the villagers when staying there and has been unofficially adopted by the family. This puts some limitations on the anthropologist's movements, but on the other hand gives the opportunity to learn things that wouldn't be available to someone looking 'objectively' from outside. There is no one best way.

When I first started blogging the trials in 2007, it didn't occur to me to talk to any of the participants. I was somewhat surprised to see some of the reporters chatting with the defense attorneys, the prosecutors, even the witnesses. Well, of course, Steve, that's what reporters do. But to me it seemed like that would taint what I wrote. If I actually know someone, if they had the courtesy to talk to me, wouldn't I owe them something, some sort of restraint perhaps on what I wrote?

Eventually, I did one day ask an FBI technician a question about a missing exhibit and learned from the answer that they had been reading my blog and trying to figure out who in the courtroom was writing it. OK, so that's what I wanted, people reading my blog. But to what extent do I then become a participant? But every reporter has to deal with the fact that their subjects read their articles and in many cases their behavior is affected by what they read. There is no complete objectivity. That led me to invite Mary Beth Kepner to talk to a class. And there were, as I've said in other posts, other conversations when we accidentally met somewhere in Anchorage.

So, when I read her name in the newspaper along with the 'whistleblower's' allegations, I had to think carefully about whether those personal conversations gave me important information (like the anthropologist gets from the adoptive family) or whether those conversations bias me against the 'whistleblower' and make me miss 'the truth.' [I know that putting things in quotation marks can be annoying, but it's the cleanest way I know how to point out that I'm using these words with some skepticism.]

So I read the complaint carefully. While I acknowledge I couldn't totally erase my impressions from my mind, the complaint on its own just seemed peculiar. I've written at length about it. First the redacted version. Then the less redacted version. (I even blew my own horn a bit when there were news reports that Joy hadn't been granted whistleblower status, but that turned out to be another lesson in why you shouldn't blow your own horn. Whistleblower status turned out to not be so clear cut in the Justice Department.)

Law enforcement officers have a lot of pressure to not rat on their own - even when their own commit serious crimes. Why would this agent rat on his colleague for things like being too close to an undercover source? It's an anomaly at the very least, if not bizarre.

I've written quite of few posts on this topic. The one that comes closest to tying things all together with links to all the others is Checkered Swan at the Stevens' Trial? post.

But in this post I want to focus on the difficulty of really knowing and how each of us has stories buried in our heads which give meaning to the words we read, whether that meaning is really in those words or not. Even if we don't have an immediate personal stake and won't be affected in any way, we judge where the truth lies not so much on the facts (in this situation there are still enough missing facts that we have to use circumstantial evidence) but on our beliefs, our prior experiences with the labels in the story, and our own emotional needs.

Perhaps Mary Beth Kepner did some voodoo on me that has kept me disbelieving Joy's allegations. Perhaps my ego is now invested in this and I want things to fall a certain way so that I will be vindicated as being right from the beginning. I work hard to make calls based on as much factual information as possible and with as much self-examination of my own hidden biases and motives as I can. Most of the time I don't write conclusions because there's still too many missing pieces. I just stack up the evidence as I see it and let readers draw their own conclusions. But, of course, which things I choose to list and which I omit, and how I tie them together will affect where the uncritical reader takes it. And the ideologically motivated reader will not be persuaded at all if my stacks of evidence don't point to the conclusion he wants to believe.

So, as someone who has followed this story closer than most people and still is not sure what it all means, I'd call on others who value the quest, if not the certainty, of truth, to be cautious in their conclusions. And to be skeptical of those who use any of this story to declare certainty about anything but the absolute facts - such as the fact that the Attorney General has written:

In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial.

And even here I'm taking the Anchorage Daily News' word for it, but there were many other similar reports so I feel reasonably confident this is accurate.



So, about that comment on the blog today. How do I know that the writer has something solid? Part of me wants to say, "Yes!' just because it would mean I was on the right track. But how much does he really know? It sounds like he's had a closer look than most, but that doesn't mean that his filters, his stories didn't lead him to unwarranted conclusions.

Ambiguity is not one of humankind's favorite places to be. We like to know. And even if we don't have enough evidence, we tend to jump to conclusions anyway. We like closure. I think that's why sports are so popular. At the end of the game we know who is the winner and who is the loser. Some may still dispute which is the best team, but they can't dispute who won the game.

[UPDATE March 17, 2012:  Cliff Groh pursues the question of why the Bush Administration pursued the Ted Stevens  indictment using the Schuelke Report for more information.]

Checkered Swan at the Stevens Trial?

[Monday, Feb. 23, 2oo9, 12:12 am Thai time]

Suppose you were at Potter Marsh last summer and you saw the bird above. You might say, "Hey, look, there's a swan." We don't see swans every day, but they do pass through Potter Marsh regularly and it makes sense when we see them there. But suppose you saw the next scene.


"Whoa!" you might say, "A black swan, here in Alaska? What's going on?" We know there are black swans - even if we didn't take philosophy - but in Alaska? You start scratching your head - this is unusual, but it's possible. But suppose you see the next bird.




"Hey, I know that black swans exist, but this just can't be."

When watching the Ted Stevens trial from afar, there are two situations that cause me to react as though I'm seeing a black, or even a checkered, swan - that is, things that cause me to take special notice and say, "Something isn't right."

1. Prosecution Bungling
   
   Four prosecution attorneys have been found in contempt of court by Judge Sullivan. (One was later excused since he'd just begun to work on the case.) As Cliff Groh, an Alaskan attorney who attended the trial wrote on his blog

   . . . today’s action is both a very big deal and another sign of [Judge Sullivan's] fury at the prosecutor’s conduct. As the Associated Press and the Washington Times reported, it is unusual for a judge to hold a prosecutor in contempt and very unusual to hold a federal prosecutor in contempt.

   
   This follows a series of screwups by the Prosecution regarding information withheld and for which they were scolded by the judge.
   
   OK, so attorneys can make mistakes. But hold on. In the three previous trials of Alaskan politicians held in Anchorage that have come from the same FBI investigation, the four Prosecuting attorneys were on top of every detail. They knew every fact and only occasionally had to look up the number of an exhibit even.
   
   But when the venue for the Stevens trial was set for Washington, DC, not Alaska, it came with a new lead Prosecutor, Brenda Morris, and apparently closer oversight from the Public Integrity Section (PIN) of the Justice Department, where the cases have been based. (Two of the attorneys at the Alaska trials - Nicholas Marsh and Andrew Sullivan - were from PIN and the other two were Alaska Federal Prosecutors Joseph Bottini and James Goeke.) The attorneys ruled in contempt include the new lead prosecutor Brenda Morris who is also the Deputy Director of PIN and PIN Director William Welch, but NOT the four attorneys who got the three convictions in Alaska.
   
   And then we get the announcement last week that the whole Prosecution team has been replaced - even the four attorneys who have been working these cases for several years and know all the details and were NOT ruled in contempt of court - by

   Paul O'Brien, chief of the Narcotic and Dangerous Drug Section, David Jaffe, deputy chief of the Domestic Security Section, and William Stuckwisch, senior trial attorney in the Fraud Section.

   The defendant has been convicted after years of work in developing the case. And now we have three new attorneys brought in to finish the trial in the 11th inning? Relief pitchers with a fresh arm work in baseball, but relief attorneys? Maybe they don't need to know all the details of the case, they just have to clean up the questions of why the Prosecution's mishandling shouldn't lead to a mistrial. But getting rid of all the attorneys who know about the trial?
   
   
2. FBI Agent files complaint against lead FBI agent in Alaska investigation
   
   FBI Special Agent Chad Joy filed a complaint against the lead agent in this investigation Mary Beth Kepner. I've put up several extensive posts analyzing the claims in Joy's complaints - Let's Get Real and What Does the Internal FBI Complaint Tell Us? You can see the second, less redacted version of Joy's complaint here. The Anchorage Daily News just recently published Richard Mauer and Lisa Demer's "Key Players Contest FBI Whistle-blower Allegations" confirming the suspicions I raised about Joy's complaint.
   
   The black swan here, maybe even the checkered swan, is that Joy even filed the complaint in the first place. As I've discussed in a previous post, law enforcement officers tend not to squeal on their colleagues. While I questioned the use of the term Code of Silence because it suggests some level of honor, I found plenty of evidence that law enforcement officers often cover for their colleagues even when they are committing serious crimes that compromise their mission.
   
   It's odd enough that Joy would file a complaint. What pushes this from black swan to checkered swan territory for me is the fact that none of Joy's complaints about Kepner are about clear, serious transgressions that are routinely covered up - like abusing suspects, taking bribes, or using drugs on the job. These were mostly administrative discretion judgment calls - did Kepner share too much information with undercover sources, and things like that.
   
   Why would he file a complaint about things like that? I hazarded a guess that perhaps he was excessively rule oriented and the Mauer/Demer piece does say he was brought in to the case because he was good with numbers. But it is still very bizarre for a rookie agent to file against a 17 year veteran over discretionary calls.
   

So how do we explain these black swans at Potter Marsh and possibly even a checkered swan sighting? Behavioral psychologists explain behavior by looking at what reinforces that behavior. Economists use their own term - incentives. So what are the incentives here? Who benefits from the clouds over the FBI investigation and the Prosecution team meltdown?

1. The most obvious incentive for the Defense here is to get Stevens' conviction dismissed and have a new trial, or better yet, no new trial.
   
   
2. Another incentive for Stevens is to prevent the indictment and trial of his son, Ben Stevens, who has been one of the targets of the investigation and whom many think is the next in line to be tried.
   

By creating the appearance that the FBI investigation was corrupted and that the Prosecutors have illegally and intentionally mishandled evidence and witnesses in order to get their conviction of Stevens, the Stevens Defense team could possibly pull off both those goals.

We know that Stevens is a fierce competitor. He's famous for his Incredible Hulk tie and his corresponding temper. He's been known as Senator for Life long enough now that he clearly sees any question about his actions as an unwarranted personal attack. He feels he's innocent, and presumably wants to also protect his 'innocent' son. The Huffington Post reported after the conviction

Unbowed, even defiant, Stevens accused prosecutors of blatant misconduct and said, "I will fight this unjust verdict with every ounce of energy I have."

We also know that the Bush Administration Justice Department Republicans were not a single unified group.

[T[he firing of eight Republican U.S. attorneys last Dec. 7 [2006], in an episode that some of its victims have already taken to calling the "Pearl Harbor Day Massacre

by the Republican Bush Administration was one sign.

More related to the Stevens case was the appointment of Alaska Federal Prosecutor Nelson Cohen in 2006. Normally, when an Alaska Prosecutor is appointed by the Justice Department, the Alaska delegation is consulted. But not in 2006. The FBI investigation into Alaska political corruption was about two years old already and Ben Stevens, if not Ted Stevens too, were known to be targets. Clearly, there were Republicans who were not averse to taking on the senior Republican US Senator and they had enough clout to get this appointment made behind Senator Stevens' (and Senator Murkowski's) back.

"I am just furious at the way the attorney general handled this," the aide quoted Stevens as saying.

But a former Alaska U.S. attorney, Mike Spaan, now in private practice here, said he believes Cohen has a strong background in Alaska and is a "top-notch guy."

"I am confident Nelson knows Alaska. I'm not remotely upset about it," Spaan said. From Richard Mauer's ADN article.

But battles are won and lost in a war. Is the Stevens trial one more of those battles? Is it possible that some pro-Stevens folks got into the Prosecution team and helped disrupt the previously well oiled machine that got the Alaska convictions? Did the Defense get hints of Joy's discontent and find ways to push him into the extraordinary move of filing a formal complaint over such ambiguous issues?

There are, of course, other explanations for the black swan we see. Brenda Morris, perhaps, just wasn't capable of handling the case. Perhaps she was called to head the prosecution because they thought an African-American female leading the prosecution before a mostly female and African-American jury would be a good move. Perhaps the high-powered, well paid Stevens Defense team was a more formidable foe for the Prosecution than what the Prosecutors faced in Alaska.

Perhaps Chad Joy was just compulsive about the rules and in his eyes, Kepner had crossed the line once too often, and/or working for a highly successful, female boss was just too much for him.

One of the issues here - the Prosecution bungling and Joy's complaint - might have been like seeing a black swan at Potter Marsh. Highly unusual, but possible. But both the extreme Prosecution mishandling together with the rookie FBI agent squealing on his senior partner happening on a case of this level pushes this into the checkered swan category for me. Something is fishy. Both of these together didn't just happen. This didn't just fall into the Defense's lap.

My guess is that there's more to this. Joy's complaint alone, by a rookie FBI agent against a 17 year veteran over issues of administrative discretion - is like seeing a checkered swan. I don't see this happening without people intentionally working to pull this case apart from the inside.

David Whitney, in an August 8, 1994 ADN article, quotes Stevens on how Stevens lobbied (you may need UAA id for this link) for Alaskan statehood:

"I had made a study on each member of the Senate and this goes on now into '57, '58 whether they were Rotarians or Kiwanians or Catholics or Baptists and veterans or loggers, the whole thing," Stevens said in the 1977 interview.

"And we'd assigned these Alaskans to go talk to individual members of the Senate and split them down on the basis of people that had something in common with them," he said.

"We were violating the law . . . we were lobbying from the executive branch, and there's been a statute against that for a long time," Stevens said. "We more or less, I would say, masterminded the House and Senate attack from the executive branch."

What was to stop Stevens or his supporters now from studying each member of the FBI and Prosecution team and trying to find a crack the way he did in the statehood lobbying campaign? He certainly had a bigger personal stake now than in the statehood battle. And he didn't seem very contrite over breaking the law in the interview. Perhaps Joy was one of those cracks. And perhaps there were people willing to help in the Justice Department. I have no evidence to prove any of this, except the appearance of a couple of black swans, maybe even a checkered swan, that call for some sort of explanation.

We've been reluctant to question the motives of people like Stevens for years. But we've had a couple years of events that suggest that caution was misplaced. Maybe I'm totally wrong, but it wouldn't hurt, at this point, to check it out. And I'm sure that the people on the inside, people whose case has been fouled, have a lot of ideas about what might have happened.

Code of Silence or Mob Silence?

Bear with me here while I play around with some ideas.

While trying to understand Alaska based FBI Special Agent (are there any FBI agents that aren't special?) Chad Joy’s decision to complain about fellow Special Agent Mary Beth Kepner, one of the issues that arose was the idea of the code of silence. Why, if there have been so many cases of law enforcement officers not reporting other officers abusing suspects, taking drugs or bribes, etc., would he go after a fellow agent for things as relatively insignificant as "giving away unnecessary information to sources." "telling her husband about her work," and "wearing a skirt in court as a surprise for a witness"?

A Google search found a variety of stories headlined “Code of Silence” ranging from

Prison guards intimidating others guards to not reveal their abuses against prisoners
The Bush Administration
Orange County Sheriff’s Office
Gangs silencing neighborhood witnesses
The Mafia
Corporations Not Talking about being hacked

This got me thinking about the wide variety of ways “Code of Silence” is used, suggesting to me that the term is rapidly losing its meaning. It’s becoming an easy headline, a cliche, that now simply means that "people won’t talk."

Let’s consider what a code is. The first two definitions at Merriam Webster online are

1: a systematic statement of a body of law ; especially : one given statutory force
2: a system of principles or rules

Both these definitions have positive connotations. As do Honor Codes and Codes of Ethics. There’s also Code of Chivalry.

Chivalry was disciplined by a code of conduct that was clearly understood although it was never clearly formulated. Examination now, in retrospect, allows it to be reduced to this series of commandments composed by Léon Gautier ~

1. Thou shalt believe all the Church teaches and shalt obey her commandments.
2. Thou shalt defend the Church.
3. Thou shalt respect all weaknesses and shalt constitute thyself the defender of them.
4. Thou shalt not recoil before thine enemy.
5. Thou shalt make war against the infidel without cessation and without mercy.
6. Thou shalt perform scrupulously thy feudal duties, if they be not contrary to the laws of God.
7. Thou shalt never lie, and shalt remain faithful to thy pledged word.
8. Thou shalt be generous, and give largesse to everyone.
9. Thou shalt be everywhere and always the champion of the Right and the Good against Injustice and Evil.

This is a noble code (assuming you believe in the church and feudal duties). In the purest form, people in some sort of group voluntarily pledge to follow a code simply because it is seen as a being morally right. But as I look at how “Code of Silence” is used, it appears to me that rather than people voluntarily pledging to an honorable code, it often refers to very negative ways to force people to conceal potentially embarrassing, even harmful information about corrupt individuals. I’d say there is a continuum from


Let’s look at some examples:

1. Honor. Members take a pledge, often at risk to themselves, to remain silent for what they consider the greater good of their group, community.
Examples:
a. Captured soldiers who refuse to reveal information to their captors. They are ruled by a sense of honor not fear of punishment - for they often receive terrible punishment from their captors for refusing to cooperate. While they may also be affected by peer pressure from their fellow captives, this is an appeal to honor of sorts too.
b. Members of an underground movement - say the Underground that fought the Nazis in WWII - who also will not reveal hideouts or other members despite torture and threat of death.

Even at this theoretical ‘good’ side of the continuum, there are problems. One could believe that one country’s military is honorable while the other side is not. One could find certain underground movements (the US Revolutionary Army, the WWII underground, the Mujahideen fighting the Russians) as good, but others (Fidel Castro’s revolutionary army, the Irish Republican Army, the Taliban fighting the Americans) as bad. While someone else might see the moral right in each of these examples reversed. And there are probably few if any pure situations where some sort of sanction doesn't have a role.

2. Honor and Punishment. Members take a pledge and there is a sense of honor, but there is also a real threat of physical harm to those who do not uphold the Code.
Examples: The traditional Mafia (at least as portrayed in books, movies, and television) seems to have had a sense of honor in the loyalty of members to each other, yet the code is also enforced by threats of violence, even death. It’s what Tony Soprano refers to when he complains that there isn’t the honor among the troops that there used to be.

3. Punishment. There is no pledge or Code. Silence about illegal activity is enforced by threats of expulsion, violence, death.
Examples:
a. Prison guards who abuse prisoners in violation of the law and keep prisoners and other guards from reporting the abuses through threats, peer pressure, intimidation.
b. Community members who will not talk to the police about gang members for fear of retaliation.


I'd guess that Codes of Silence (where people maintain silence as a form of honorably maintaining of a code of behavior based on principle, not based on fear of retaliation) are pretty uncommon these days. There appears to be ample evidence of situations where people refuse to cooperate with law enforcement by remaining silent about what they know. But this silence is for the most part, not based on some Code of Conduct, but rather simple fear of retaliation or distrust of the law enforcement agencies or a combination of both. To call this a “Code of Silence” is to give it a dignity it doesn’t deserve. "Fear Forced Silence" is not as catchy as “Code of Silence” but probably more accurate. "Bullied Silence?" Maybe "Mob Silence" is catchier, suggesting the pressure to be silent, with the hint of violence.

This is one of the problems we have with all cliches. As George Orwell wrote, back in the 1930s, metaphors are coined to help us grasp an abstract idea. At first they are crisp and eye-catching like Churchill's use of "iron curtain." But then with overuse they become cliches, and we no longer see the imagery. (When was the last time you "saw" someone dead just short of the line?) Then we use the concept without thinking.

I think that's happened with Code of Silence and now journalists, headline writers, and others apply this term without thought to any situation where people won't talk, even where there is no 'code' operating, just the power of bullies protecting themselves from exposure. This is a form of terrorism.

Let's Get Real About Mary Beth Kepner

[Update, Saturday November 20, 2010:  As leaks suggest that a "draft Justice Department  report makes misconduct findings against" Mary Beth Kepner, I've organized my thoughts on all this in a new Kepner post with links to relevant posts since this post.]

[Tuesday, January 27, 2009, 9:30 pm Thai time] I saw more hits from people looking up Mary Beth Kepner than any other single google search term today. Then, later, someone sent me a link to a story that begins like this:

Stevens: Agent, witness had romance
By JOHN BRESNAHAN | 1/26/09 5:42 PM EST [I've corrected the link, sorry about that, I accidentally put in the link from the email.]

Whoever put that headline up is the kind of person who gives bloggers a bad name.  I know that people want to believe the worst and really don't care about the facts. [As I look at that headline again, pre-posting, I realize that the colon means that Stevens is alleging this. But I missed that the first few times I looked and I'm sure others did and will, as the person who put it there (presumably Bresnahan) intended.]

Let me say from the beginning here, as I've said in previous posts: Mary Beth Kepner met with a class of mine and I've talked to her on a couple of other occasions when I've accidentally run into her around town. I even met her mother at the Weekend Market in the summer. (For non-Alaskans, that happens a lot in Anchorage. We have a small population and we see people we know when we are out and about.) I'm a reasonably cautious judge of character - I know that often people are not what they seem to be. With those caveats, I'm 99% sure that Kepner is a stellar agent who has played very craftily in the grey area of working with undercover sources. Chad Joy seems to be extremely rigid and can't deal with ambiguity, grey areas, or the difference between the letter of the law and the spirit of the law.

Let me say that for the most part, while some of my blogger friends come out and say things like, "He's a total slimeball" I generally put all the evidence out there for the readers and then let the readers draw their own conclusions. Generally, but not today. I did that in a very long post on the original, heavily redacted, complaint that this story is based on.


The headline is totally sensational and based on the flimsiest of evidence, as the story says later. Well the story doesn't say the evidence is flimsy, but it gives the evidence.  It's evidence I and others have posted already in more depth.   FBI special agent, Chad Joy, in a complaint he filed with an internal oversight unit within the Justice Department (that did NOT grant him whistle-blower status) says that:

1. Most recently, Kepner met with Allen by herself in her hotel room in Washington, DC.
   
2. Kepner wore a skirt for Allen during the recent trial during his testimony. Kepner doesn’t wear skirts.
   

1.  Two people can't be in the same hotel room without having sex?  Do you think she'd have met with him in her hotel room if she could have imagined that anyone would have leaped to the conclusion they were having an affair?

2.  Obviously, one of the two parts of the second statement is false.  Either she DOES wear skirts sometimes, or she DIDN'T wear one in court.  Basic logic.  OK, I know he means something like he's never seen her in a skirt before.  But this is evidence in a serious complaint?  By an FBI agent no less?
It's sort of like someone saying Mr. X murdered Mr. Y based on the evidence that someone says he saw Mr. X buy a gun. Just as I could win the lottery tomorrow (if I'd bought a ticket), the odds are millions to one against it.

From there the Defense team filed a motion to dismiss the Stevens conviction based on a number of issues including their leap to claim that Kepner and Allen were having an affair.

OK, I acknowledge that nothing is impossible, but this allegation (as well as the post cited above) is clearly part of an attempt to invalidate the Stevens conviction, and seemingly part of a scheme to make the Prosecution case look ridiculous whether there is evidence or not.  I can't speak for what happened with the Prosecution in the DC based Stevens case. I've offered possible explanations in at least one previous post already. But I can speak to Joy's comments about Kepner in the investigations and working with sources.

Let's look at some of the facts:

Bill Allen is in his early 70s, but looks and acts older. When Allen testifies, the prosecutors first take pains to point out he was in a motorcycle accident that has affected his ability to find the words he wants to say, but not his memory or his thinking abilities. Judging from when I saw him on the witness stand in the Kott and Kohring cases, I would say his mind works just fine, but he does have trouble speaking fluently at times and he walks slowly. He's an old man who's not well.

Kepner is a fit, attractive woman, attractive in a very natural and unobtrusive way,  probably between 30 and 40 years old. She instigated, as I understand it, and has been in charge of, the FBI investigation of Alaska corruption since 2004 and has been pretty busy working the case with various sources and with the Prosecutors most of the time.

I know such alliances happen, but usually the younger lady is hoping there will be an inheritance. While Allen is wealthy, there's no way Kepner could be expecting to cash in on that.

She is not your stereotypical FBI agent. Well, you could say that was obvious since she's not a man. But beyond that, she exudes a sense of sincerity and caring with the people she's talking to. I realize I'm generalizing from my own experience, but most of the media who covered the three trials in Alaska that I've spoken with also admire her. Frank Prewitt (about whom I have serious ethical concerns), a key source in the Tom Anderson trial,  wrote a book in which he often praises Kepner  while being snide about almost everyone else - including Chad Joy. Let me quote from him as I did in the post on the original, highly redacted complaint.    Prewitt is writing about meeting with Kepner because there have been complaints that she got a gift from him - a painting of her dog by his wife.

"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?". . .

Come on Kepner, once you figured out I wasn't a crook [this was debated in trial - it seems at least that the statute of limitations was up] 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. . .

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.

"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."

I would note that while Prewitt is clearly a very smart man, the details of the book, as he acknowledges, are not necessarily accurate.  And he is the hero in his own book.  But this section about their relationship rings true with what I know. While nearly everyone else in the book gets skewered, the fact that he didn't do that to Kepner and instead portrays her very positively, says something about how he regards her. And how I would imagine Allen regards her. Remember, Kepner's investigation brought down Allen, one of the most powerful men in Alaska, but he's stuck around and been a convincing witness in three trials. If wearing a skirt is going to keep him testifying, I say go for it.

I also know of another person who lost his freedom due to Kepner, who nevertheless, speaks highly of her too. This all tells me she does her job of working with undercover sources exquisitely well.




There was a time when women were trying to get into law enforcement, but there were barriers - mostly physical. First it was height requirements which kept out most women. Then there were requirements like "able to carry 100 pounds for 100 yards." Those too, were eventually shown to be basically irrelevant to most situations. What wasn't generally recognized by the old guard was that women had compensating abilities. They often can calm down situations that the guys who can carry 100 pounds would inflame.

My suspicion is that Kepner's use of her 'feminine' charms to so successfully work her sources has driven Chad Joy's frustration level through the roof. It's all so unmanly. And so exceedingly successful. These folks are cooperating voluntarily because they want to please Kepner, not because she's some big bad guy they are afraid of.


The most plausible story for me is that Kepner has used her skills, including charm, to keep Allen active and cooperative in the various cases - he first testified in fall 2006. Her playful intelligence and her seeming guilelessness which appears to have worked on Frank Prewitt too, seems to work well on Bill Allen. Both these men are smart enough to know she's an FBI agent and playing them, and both probably enjoyed just being in her company. I suspect there aren't that many people who feel that way about Chad Joy. And it bothers him, I suspect, that this woman is being so successful using decidedly un-macho techniques.

Am I falling under the Kepner spell myself? I came of age when J Edgar Hoover WAS the FBI and he was the personification of power gone bad. Kepner has given me renewed faith in the FBI. I have this to say in my defense - my wife, who has also met Kepner, likes her too and doesn't feel the least bit jealous. (I double checked this last fact just now.)

Some of the googlers have been looking for "Mary Beth Kepner photo." Part of me thinks a photo of her would help people get who she is. But I also have been fascinated by how the person who is behind shaking up the Alaska political scene like no one has ever done before can wander around Anchorage unrecognized. There are photos of her on different Alaska blogs, including on this blog; I'm not going to repost my picture here.

Less Redacted Version of Internal FBI Complaint

Here, thanks to Legal Times, is the less redacted version of, now in court identified, FBI Special Agent Chad Joy's internal complaint document. Click the link for my earlier analysis of this document (in the more redacted version). [you can magnify the document if you scroll over the down arrow on the toolbar of the scribd box below then click on the plus (+) sign.]

Whistle Blower Complaint 2

Publish at Scribd or explore others: Government Business & Legal ted stevens trial FBI

There are quite a few more names visible here - basically his and the agent he complained about most, Mary Beth Kepner. He clearly did not like her or how she operated. While there are a number of allegations that probably do violate rules if proven - ie. telling her husband things about work - these are probably violations that occur frequently in many households. Other allegations seem pretty bizarre - that Mary Beth Kepner wore a skirt as a surprise for Bill Allen when he was testifying in the Ted Stevens case, but she never wears skirts.

I'm afraid I don't have time to go into this more.

Score One for Critical Thinking - The Whistleblower Who Isn't

A couple of plugs here for bloggers and newspapers. I just found the ADN story on the web that Chad Joy has been identified as the FBI agent who wrote the so-called whistleblower document. I know that the ADN was 95% sure as was I, that the author was Chad Joy, but we both withheld naming him in the articles/posts we did on the topic. Not everyone posts things they know, let alone wild rumors.

I don't blow my own horn here too often. It isn't seemly. But when I wrote the article on the FBI Complainant Document, I realized that few readers if any would read the whole thing. It was way too long. But I think it is one of the better posts I've written. People who did read it carefully would have known the author of that document was probably Chad Joy. I didn't make that claim. The information was buried deep in the post. But I followed the line of reasoning of the author of the document. He wrote that he'd been mentioned frequently in an FBI source's book about the Alaska political corruption investigation. I pointed out there was only one book published so far, and in that book, Chad Joy and Mary Beth Kepner were the two FBI agents mentioned in the list of characters.

But I also argued that I thought the term whistleblower didn't fit. Whistleblowers are people who warn the public about some impending danger, and in this document, nothing like that was ever mentioned, the complaints were basically about rules being broken and the author also complained that he was made uncomfortable and no one was listening to him. If there was a complaint at all, it should have been a grievance.

In the ADN post today, it turns out that Chad Joy was NOT granted whistleblower protection. I want to thank my UCLA 17th Century English Literature Prof, Dr. Clayton, for teaching me how to read between the lines, basically how to think. I did a post on how that happened a while ago, reading between the lines.

Posted 8:49am, Jan. 15 Thailand Time

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.