An Investigation of the Belated Production of Documents
in the Oklahoma City Bombing Case
March 19, 2002
Office of the Inspector General
FBI HEADQUARTERS' ACTIONS AFTER
LEARNING OF THE BELATED DOCUMENTS
In this chapter we discuss the role FBI Headquarters played following the disclosure that documents had not been properly disclosed. As previously discussed, Defenbaugh notified FBI Headquarters and Connelly about the problems with the documents on May 7 and May 8, 2001. Within a few days, FBI Headquarters realized that the field offices continued to possess OKBOMB materials that had not been analyzed to determine whether the materials had been disclosed to the defense pretrial. In the ensuing weeks Headquarters sent several instructions to the field offices relating to the OKBOMB materials.
We concluded that Headquarters had difficulty organizing an appropriate response to the problem, and it contributed to the sense of confusion that existed throughout the agency. Headquarters did not adequately communicate with the field, and its instructions to the field were confusing, contradictory, and led to duplicative and unnecessary activity by field personnel.
Within a few days of notifying the defense that the government was disclosing over 700 documents, the government learned that its count was not accurate. Despite having noted in ACS that Shackelford's December 20 lead and Richmond's January 30 and March 15 leads were "covered" (in other words, completed), Baltimore in fact had done nothing with respect to the leads and had never sent any files to Oklahoma City. Because she had received no response from Baltimore, Peggy Richmond made repeated telephone calls to various Baltimore personnel during the week of May 8 to inquire about Baltimore's OKBOMB documents. As a result, Baltimore searched for and found its Auxiliary Office files. On May 10, 2001, Baltimore sent its files to Oklahoma City from which eight additional documents were found that Richmond and Vernon determined had not been disclosed to the defense.
According to Deputy Director Pickard, FBI Headquarters learned on Thursday, May 10, 2001, that Oklahoma City had just received Baltimore's OKBOMB files. This triggered the question of whether other field offices also had more OKBOMB material.
By May 11 numerous articles critical of the FBI were running in the major newspapers and other media. Congressional members also expressed dismay at the situation. The FBI was under pressure to both ensure that no other OKBOMB material remained in the field offices and to explain how and why it had "bungled" such a serious and high-profile matter. As a result, FBI Headquarters sent numerous communications to the field seeking to get all OKBOMB material to Oklahoma City and asking the field offices perceived to be responsible for the belated documents to explain their actions.
On May 11, 2001, Pickard directed the Counterterrorism Division to send an EC to all field offices requiring them to certify that all documents and materials relating to the OKBOMB investigation had been sent to Oklahoma City. Pickard said that at this point there was a concern that there might be other documents still out in the field offices, since the Baltimore documents had just been sent to Oklahoma City that week. Pickard said that the certification requirement was imposed because he wanted the matter to get the SACs' attention so that the FBI could make sure that they had everything from the field offices.
Late in the evening on Friday, FBI Headquarters sent an EC to all field offices, Legats, and Headquarters Divisions describing the problem and providing background information. We were told that this communication was the first information the field offices had received about the problem from Headquarters.81 In the EC, Headquarters identified seven teletypes from the OKBOMB Task Force in 1995 and 1996 requesting the field to send investigative materials to the Task Force.
In addition to the historical information, the EC instructed all [Assistant Directors in Charge], SACs, and Legats … to certify by EC to the Deputy Director's Office … that all investigative materials to include, but not limited to FD-302s, inserts, 1A evidence, 1B evidence, 1C evidence, and elsur tapes relating to the Oklahoma City bombing investigation have been forwarded to Oklahoma City and that no further materials exist. This certification should be considered a 'personal assurance' of each division head, and must be included as a signed endorsement on the hard copy EC. If any investigative materials are located which have not been previously submitted to Oklahoma City, [Headquarters] should immediately be contacted….
(Emphasis added.) The certification was to be completed by May 15, 2001.
In response to this EC, many field offices conducted extensive searches for OKBOMB documents that included supervisors contacting all employees and requesting them to search their work areas; conducting multiple searches of the closed files, evidence and Elsur rooms; and searching the work space of employees who were out of the office on leave. Eighteen field offices sent material to Oklahoma City in response to the May 11, 2001, EC.
Despite requests in December 2000, January 2001, and March 2001 for the field offices to locate and send OKBOMB material to Oklahoma City, the May 11 EC caused a number of offices to locate their Auxiliary Office files or parts of the Auxiliary Office files for the first time. For example, New York City located its OKBOMB files only after the May 11 EC; on May 16 it sent 55 volumes of its OKBOMB files and physical evidence to Oklahoma City. Newark, which had been unable to locate its OKBOMB files when it was responding to the ECs of December 2000, January 30, 2001, and March 15, 2001, finally located its entire Auxiliary Office file. Newark personnel reviewed the file for original documents, which were then pulled from the files and sent to Oklahoma City. Little Rock found two bags of "confidential trash" containing its OKBOMB Auxiliary Office files that were then sent. Denver located five volumes of its Auxiliary Office files on Saturday, May 12, 2001, and sent them to Oklahoma City. On May 14 the Denver Administrative Officer ordered a review of all files and boxes in the closed files section of the office, and Denver located an additional 32 volumes of OKBOMB material.
Jackson and Tampa each found a volume of their Auxiliary Office file that had been overlooked when they had sent their OKBOMB materials to Oklahoma City in response to the prior ECs. Although the Columbia Division had responded to Richmond's January 30, 2001, EC with an EC stating that it had no OKBOMB materials, no one had actually searched the rotor. In response to the May 11 EC, Columbia conducted a search of the rotor and located one volume and five smaller subfiles that were sent to Oklahoma City on May 14.
Some field offices understood the May 11 EC to mean that they were looking only for original material. Many field offices, like Newark, reported in their responses to the OIG survey that they located OKBOMB material but since what they found were copies that they believed had been previously submitted to Oklahoma City, the documents were not sent to FBI Headquarters or Oklahoma City until later.
Some of those field offices also reported receiving guidance from FBI Headquarters to the effect that only originals needed to be identified and provided. For example, Denver Division witnesses told the OIG that they had contacted Jarboe at FBI Headquarters to receive guidance about the May 11, 2001, EC and that Jarboe explained that because Oklahoma City was overwhelmed with documents, they should send only original documents that the Denver office determined had never before been sent to Oklahoma City.82 Albuquerque and Minneapolis said that they withheld their documents based on instructions from FBI Headquarters. Pittsburgh reported that it withheld its documents based on instructions received from Shackelford. As we discuss subsequently, these documents ultimately were sent in response to later instructions from Headquarters.
On Saturday, May 12, 2001, FBI Headquarters sent an EC to the 46 field offices and one Legat that had generated the problem documents. Headquarters stated in the EC, "In February 2001, Oklahoma City began receiving boxes from various field offices which contained material never previously provided." Headquarters instructed the 47 offices to "provide a written explanation as to why this material was never forwarded to Oklahoma City until recently." In the EC, Headquarters placed the blame for the belated production of documents squarely on the field offices. The EC pointed to five teletypes the OKBOMB Task Force had sent to the field pretrial requesting information relating to the OKBOMB investigation. The explanations were to be sent by May 14, 2001.
FBI Headquarters also faxed copies of the problem documents generated by each field office to that field office. However, the field offices had problems responding to the EC. First, some cities did not receive complete packages of the problem documents generated by that field office. When the OIG conducted on-site interviews, we had belated documents that the field offices said they had not seen before.83 Second, because the field offices had sent their OKBOMB files to Oklahoma City, they had no files available to search in their efforts to piece together an explanation. Third, when the offices tried to use ACS to view documents, their access was initially restricted because of the limitations that had previously been put on access to the OKBOMB case file. After telephone calls from the field caused Headquarters to lift the restrictions, ACS was so overwhelmed by the usage that it repeatedly crashed. Therefore, in some cases, the responses were not complete and not accurate. We discuss the responses more fully in Chapter Six, Section I B.
While some field offices located and submitted parts of their Auxiliary Office files in response to the EC of May 11, 2001, Pickard told the OIG that he became extremely concerned about the existence of additional material in the field when he received a call in the afternoon of Tuesday, May 15, 2001, from Defenbaugh. Defenbaugh told Pickard that three more boxes of documents had been received in Oklahoma City from the Denver Division. These documents were the remaining volumes of the Denver Auxiliary Office files, the first five volumes of which had been located on Saturday, May 12. Pickard said that Defenbaugh was extremely upset because the documents were located "only two blocks away" from the Denver Command Post location. After this, Pickard decided to have a conference call with all the SACs to convey how important the matter was.
In the call, Pickard instructed the SACs to send absolutely everything related to OKBOMB to Oklahoma City. Pickard said that he wanted to convey to the field offices that they should not use any discretion at all or make any decision at all about any document and whether it should be sent to Oklahoma City. He made it clear that nothing should remain in the office that related to OKBOMB. We were told that Pickard was particularly forceful during this call. Pickard and other witnesses told the OIG that he said that anyone not complying with his directive would have to account for it personally to him.
After the Pickard conference call, most offices searched their offices again. Because Pickard was clear in his message in the conference call that all OKBOMB material was to be sent, field offices attempted to empty their offices of every piece of paper that had anything related to OKBOMB on it. Thirty-four of the 43 field offices surveyed reported sending material to Oklahoma City after the Pickard telephone call. Some offices reported sending material that they had found during the search after the May 11 EC but had not sent in because they believed only originals should be sent. For example, Los Angeles located an agent's working copies and reference material that had not been generated by Los Angeles. Given the type of material found, however, Los Angeles did not forward it to Oklahoma City until after the May 16 telephone call with Pickard because they did not think it was responsive to the May 11 EC. Thirty-one field offices reported finding material that had not been located in previous searches. San Juan located its Auxiliary Office files for the first time.
The field offices that we visited also reported sending more materials to Oklahoma City after Pickard's telephone call. Columbia found a subfile of incoming teletypes in one of its Resident Agencies. Philadelphia forwarded documents they considered to be "working or bootleg" agent copies of various documents, including photographs. Philadelphia personnel explained that these were not sent earlier because they did not consider the documents to be official copies and believed the official documents had been previously furnished. Detroit also located two boxes of "work papers" of an agent assigned to the Task Force.
In Buffalo, after the May 11 EC, the field office canvassed all agents and support personnel and responded that all original investigative materials (with the exception of original ELSUR tapes) had been sent previously. However, after the Deputy Director's conference call, the employees were again canvassed. They also searched all cabinets, desks, safes, and other storage containers maintained at Headquarters City, Resident Agencies, the evidence room, ELSUR, 1Bs, squad areas, and administrative offices. That search located a significant amount of material, including confidential informant inserts and work copies of investigative materials.
The Denver Field Office canvassed every employee in the Division for all copies of documents related to the OKBOMB case as well as any other item in the possession of employees related to OKBOMB, including photographs and mementos.84 On May 16, 2001, the Denver Field Office sent five additional boxes of documents and other items to Oklahoma City. Denver personnel told the OIG that the material had not been sent in response to the May 11 request because they understood that request was for original OKBOMB investigative material.
As a result of the May 11 EC and the May 16 telephone call, Oklahoma City was deluged with boxes of materials, most of the contents of which were not within the scope of the discovery agreement or had been disclosed previously. For example, we were told that framed pictures, newspaper clippings, and pieces of granite that looked similar to the granite in the Murrah Building were sent in. These materials were reviewed in similar fashion to the earlier materials. (We describe this review process subsequently.)
At some point between May 11 and May 15, 2001, FBI Headquarters realized that inserts from confidential informant files might not have been disclosed to the defense. FBI Headquarters checked its confidential informant database (CIMS) and determined which offices had "hits" for the OKBOMB file number or words relating to the OKBOMB investigation, such as McVeigh or Nichols. FBI Headquarters made calls on May 16, 2001, to field offices about "source files" that possibly contained references to the OKBOMB case. FBI Headquarters identified specific source files for the field offices to search.
In response to our survey, 25 field offices reported receiving a telephone call from Headquarters, searching their confidential informant files section, and sending documents to Oklahoma City as a result of the search. In our field visits, several field offices also reported finding documents as a result of these telephone calls from Headquarters. They said that while Headquarters could do an automated search, the field offices could not. Therefore, they were unable to find the documents except through a file-by-file search or through information supplied by Headquarters.85
In a May 18, 2001, EC, the Director's Office instructed all Assistant Directors in Charge, SACs, and Legal Attachés to certify again that all OKBOMB materials had been identified and delivered to Oklahoma City. The certification was to be completed by May 21, 2001.
Seven field offices reported finding even more OKBOMB material when they searched again in order to respond to the May 18 EC. Several of these offices reported that they found the material by searching unrelated cases for the words OKBOMB or McVeigh.86 Seven offices also reported finding additional material after the SAC had certified on May 21, 2001, that all OKBOMB material had been sent to Oklahoma City. Five of these offices stated that the material was found in agents' working files; two offices reported that the material was from complainants who had given information to the FBI on May 16 and May 21, 2001.87
To handle the massive amounts of material arriving in Oklahoma City, Pickard selected John "Dave" Stenhouse, Chief of the Intelligence Operations Section, as the leader of a team that would travel to Oklahoma City and determine whether the new material also contained items that had not been disclosed to the defense. Stenhouse and a team of nine others arrived in Oklahoma City on May 16.
Stenhouse told the OIG he quickly realized that the task was much bigger than he had expected. He received an additional 80 people, as well as support from Oklahoma City Division personnel. Stenhouse said that they initially tried to log in all the material but abandoned the effort because of the volume of material. Instead, the team segregated presumptively discoverable material, such as FD-302s, inserts, and 1As, from items clearly not within the discovery agreement, such as teletypes and other internal documents. The team then searched for each document in ZyIndex. If the item was found in ZyIndex, it was presumed to have been turned over to the defense.
Stenhouse's team worked 24 hours a day using 30 computers. The review was completed on May 24, 2001. The review identified 158 items that were not located in the relevant databases. Stenhouse stated that he believed that with more time, they would have found that some of these materials had been disclosed. Stenhouse noted that their searches were inexact and depended heavily on the skills of the person doing the searching.
While Stenhouse was analyzing the second wave materials that had come from the field offices and a few Legats, another team was conducting a search of the OKBOMB Task Force files. James Bernazzani, Jr., an Assistant SAC from the Houston, Texas, Division, led a team of 60 people. Bernazzani's team examined every document in the entire OKBOMB case file, including all subfiles, looking for misfiled FD-302s and inserts. They located 14 FD-302s and 5 inserts that had been misfiled.88 In addition, Bernazzani's team also searched through 69 4-drawer file cabinets and 24 boxes that were located in the OKBOMB warehouse. The file cabinets and boxes contained "working files" of the agents assigned to the OKBOMB Task Force. The team found 11,455 FD-302s and 2,616 inserts in the files. After searching the databases, 11 FD-302s and 8 inserts could not be found, indicating that these items had not been disclosed to the defense.89
FBI Headquarters' actions after learning of the problem documents in May 2001 were more reactive than well-considered. In some part, this was because they had little time to reflect and were faced with a legal and public relations crisis. Early statements from FBI officials were only partially accurate, however. They blamed the computer system and the field offices when the fault lay with both the field offices and the Task Force. FBI Headquarters also issued directives to the field without fully understanding what was being sought or the effort necessary to respond, resulting in confusion, frustration, and wasted effort by field personnel. Poor communication with field managers also caused resentment, confusion, and more wasted effort.
Many SACs complained that they had no information from Headquarters about the belated documents problem until the May 11, 2001, EC. They said that they were being asked to respond to the problem by the media before Headquarters gave them any information about the situation. In addition, they resented the fact that Headquarters placed much of the blame for the belated documents on the field before they had an opportunity to explain their offices' actions.
The confusion generated by Headquarters over the May 11, 2001, EC caused field offices to have to search their offices multiple times. The wording of the EC indicates that the field offices were expected to look only for material that had not been forwarded to the OKBOMB Task Force, an instruction that was interpreted by many as meaning only originals. This was reinforced by verbal instructions given to many field offices by Headquarters' personnel. Headquarters apparently did not understand at that point that the belated documents consisted of copies as well as originals. Just because a field office believed an item had been sent to the Task Force did not mean that the defense received the item. Therefore, Oklahoma City personnel needed copies as well as originals if they were to perform a thorough search for all documents that had not been disclosed to the defense. When Pickard changed the instructions on May 16, the field offices had to redo their search efforts.
There also were issues concerning Headquarters' May 12, 2001, EC. First, despite knowing that the OIG had been asked by the Attorney General to conduct an investigation into the circumstances surrounding the belated production of documents, the FBI requested explanations from the field offices without consulting with the OIG. In order to respond to the EC, many field offices interviewed agents and administrative personnel. Although we do not believe these actions ultimately had an impact on our investigation, in some situations advance discussions with witnesses risks interfering with an OIG investigation.90
In addition, as previously discussed in this report, Headquarters did not seem to appreciate the difficulty the field offices would have trying to respond accurately to the request for an explanation. The field offices had no files, and ACS provided only limited or, in many cases, no assistance. In addition, Headquarters had no appreciation for the significance of determining whether "originals" were included in the problem documents. (This issue is addressed more thoroughly in Chapter Three, Section III B 1.) What the field offices received through the faxes from Headquarters looked for the most part like copies. Consequently, the field offices asserted, often incorrectly, that because the problem documents were copies, the field must have sent the original to the OKBOMB Task Force during the course of the OKBOMB investigation. It was not until we showed various field office personnel color copies of the documents that they understood that originals had been found in their files.
Also, because of the lack of adequate communication, field offices continued to insist in their responses to the May 12 EC that they had complied with their responsibilities in 1995-1997 because they had sent information to the Task Force by teletype. These explanations showed that some of the offices either continued to misunderstand or were not being informed of the nature of the problem.91
At the time the 05/18/2001 EC was received by [this field office], [the] former SAC was out of the division. It was apparent to ASAC , who was Acting SAC at the time, that the search for OKBOMB material was "out of control" across the Bureau and field offices were in a state of panic. The mindset of other field managers ASAC  had discussions with was that this search for materials was an 'overkill' and totally unnecessary. In fact, many suggested that the OKBOMB stone (a piece of wall from the Murrah Building), given to field offices in memory of the tragic incident, be sent to Oklahoma City because it had the word OKBOMB inscribed on it. Thus, ASAC  decided to conduct additional queries of ACS and other data bases as one last final check. This query resulted in locating five serials which had a reference to OKBOMB, though these serials were of the nature that did not seem to fit the requirements for discovery in this case. An example would be a teletype from FBIHQ to all field offices advising that a story re the OKBOMB incident was airing on television on a particular day. Regardless, ASAC  opted to send these documents to Oklahoma City, which was done via Federal Express on 05/18/2001.
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