A Review of Allegations of a Double Standard of Discipline at the FBI
November 15, 2002
Office of the Inspector General
"Ruby Ridge" is a shorthand phrase for events that occurred in 1992 in Ruby Ridge, Idaho, after an attempt by U.S. Marshals to arrest Randall Weaver on a fugitive warrant. Deputy United States Marshals became involved in a shootout with Weaver, members of his family, and a family friend. A Deputy Marshal and Weaver's teenage son were killed during the gunfire. A specialized FBI unit was then called in to capture Weaver and the others. During the resulting standoff, an FBI sharpshooter shot and killed Weaver's wife. Weaver and his family ultimately surrendered. In a federal trial of Weaver, he was acquitted of murder and other serious federal charges.
The conduct of the Deputy Marshals and the FBI in the Ruby Ridge matter also came under close scrutiny, and several internal FBI and DOJ investigations ensued. These internal investigations also came under scrutiny, including questions whether there was an effort in the FBI internal investigations to cover up the original misdeeds.
In January 2001, nearly nine years after the original Ruby Ridge events, the final disciplinary decisions pertaining to the allegations were made by Assistant Attorney General Stephen Colgate, then the head of the DOJ's Justice Management Division (JMD). Colgate decided, against the recommendations of DOJ OPR and the JMD Assistant Director for Human Resources who was asked to review the matter, that the evidence did not support additional discipline against anyone.
The disciplinary decision in the Ruby Ridge incident has been cited as an example of a double standard in the FBI. We believe that substantial problems marred the original investigation of the Ruby Ridge incident and the disciplinary process that took almost nine years to come to an end. Allegations arose that the FBI investigators who looked into what happened at Ruby Ridge intentionally or negligently conducted poor investigations resulting in a cover-up of misconduct by FBI officials. Although the motivation of the FBI investigators has never been clearly resolved, the evidence brought forth by later investigations showed that the original investigations conducted by the FBI were significantly flawed, perhaps to protect senior officials. These flawed investigations affected the disciplinary decisions.
Following years of subsequent investigations and retirements, only a few officials who were under investigation for the cover-up portion of the case were left to have their cases adjudicated. These final disciplinary decisions were assigned to and decided by JMD, and therefore the final decisions, to the extent that there is disagreement with them, cannot be blamed on the FBI's protection of senior officials. Although we disagree with the ultimate JMD decision, we do not believe that the JMD officials involved were part of a systemic effort to protect senior FBI officials. Rather, we believe that JMD used an incorrect standard in evaluating the evidence. We also believe that the disciplinary actions in Ruby Ridge contributed to the continued perception of a double standard of discipline in the FBI.
Although the original Ruby Ridge incident has been well documented and discussed, the tortured aftermath has not been disclosed previously in one report. We believe that a recitation of the internal investigations and disciplinary process can shed light on what has, up to now, been a process shrouded in secrecy. Accordingly, we explain in some detail the events from Ruby Ridge to the final disciplinary decisions.
Chronology of Events in the Ruby Ridge Investigations
|1986||ATF begins to investigate Randall Weaver|
|June 1990||Weaver indicted, fails to appear in court, arrest warrant issued|
|August 1992||Standoff begins; FBI activates Strategic Information and Operations Center and Hostage Rescue Team; Rules of Engagement drafted; FBI sharpshooter Horiuchi wounds valign="top"Weaver and Harris, kills Vicki Weaver|
|September 30, 1992||FBI Shooting Incident Review Team finds shooting justified|
|November 2, 1992||FBI holds routine after-action conference; Kahoe later destroys report|
|November 9, 1992||FBI Shooting Incident Review Group finds no FBI misconduct|
|April 1993||Weaver and Harris acquitted of murder charges. Weaver convicted of failure to appear and committing an offense on release; Coulson promoted|
|July 1993||Deputy Attorney General forms special inquiry team headed by Barbara Berman; FBI forms team for investigative support to Berman team|
|September 1993||Inspectors Robert E. Walsh and Van Harp appointed to lead FBI team assisting Berman|
|November 1993||Coulson and Kahoe receive cash awards|
|January 16, 1994||FBI team issues Walsh Report; finds no FBI misconduct|
|June 10, 1994||Berman inquiry report; concludes rules of engagement were defective and Horiuchi first shot justified, second shot not justified|
|June 1994||FBI forms Mathews team to review Walsh and Berman reports|
|June 30, 1994||DOJ OPR issues separate opinion finding both Horiuchi shots were justified|
|Summer 1994||DOJ Civil Rights Division declines to prosecute Horiuchi for lack of evidence; concludes rules of engagement were unconstitutional|
|September 1994||Coulson promoted|
|December 6, 1994||Freeh promotes Potts to Acting Deputy Director|
|December 16, 1994||Mathews team recommends discipline for Glenn, Rogers, and Kahoe, but not Potts or Coulson|
|December 29, 1994||FBI Assistant Director Coyle sends letter to Freeh recommending disciplinary action for Coulson and Potts|
|December 29, 1994||Freeh recommends to DAG Gorelick that Potts be issued a letter of censure|
|January 6, 1995||Freeh announces proposed discipline of FBI employees|
|March 7, 1995||Freeh urges Gorelick to censure Potts instead of suspending him|
|April 5, 1995||Gorelick decides to censure Potts|
|May 2, 1995||Potts promoted to Deputy Director of FBI|
|May 3, 1995||Glenn sends letter to DOJ OPR alleging cover up by Mathews team|
|May 1995||DOJ OPR begins investigation into alleged FBI cover up|
|July 1995||DOJ OPR refers Ruby Ridge matter for criminal investigation; reports preliminary findings to the DAG; Mathews promoted|
|August 1995||Criminal investigation begins, headed by Michael R. Stiles, the U.S. Attorney for the Eastern District of Pennsylvania|
|August 11, 1995||Freeh places Potts and Coulson on administrative leave|
|December 1995||Harp promoted to SAC, Cleveland|
|October 1996||Kahoe pleads guilty to obstruction of justice and is sentenced to serve 18 months in prison; Walsh receives bonus|
|December 1996||Walsh promoted to SAC, San Francisco; Kahoe retires|
|June 1997||Mathews promoted to SAC, New Orleans|
|August 12, 1997||Stiles criminal investigation concludes with no further criminal charges, refers matter back to DOJ OPR for further administrative investigation|
|August 1997||DOJ OPR starts administrative investigation; Coulson retires|
|November 1997||Harp receives cash award|
|March 1998||Walsh retires|
|October 1998||Harp receives cash award|
|January 1999||DOJ OPR provides copies of its draft report to FBI OPR|
|April 8, 1999||FBI OPR responds to DOJ OPR's report|
|June 30, 1999||DOJ OPR issues final report; concludes Potts, Coulson, Walsh, Harp, and Mathews committed misconduct; report sent to AAG Colgate for disciplinary decisions; Colgate assigns JMD Assistant Director Jarcho to review matter|
|December 1999||Jarcho completes review; concludes Freeh, Potts, Coulson, Harp, and Mathews should be disciplined; recommends rescission of discipline for certain FBI employees, including Glenn and Rogers |
Colgate asks JMD Deputy AAGs Vail and Sposato to review Jarcho's report
|April 17, 2000||Vail and Sposato complete their review; conclude no misconduct or evidence of bad intent|
|October 5, 2000||DOJ OPR responds to Vail and Sposato; objects to no misconduct conclusions|
|November 29, 2000||FBI OPR responds|
|January 3, 2001||Colgate issues decision, concludes no further disciplinary action should be imposed and no prior disciplinary decisions should be changed or rescinded|
The underlying events that comprise the Ruby Ridge incident are well known, so we will only briefly summarize them below. Beginning in 1986, Randall Weaver was the subject of an investigation by the Bureau of Alcohol, Tobacco and Firearms. Weaver lived on a mountain in Ruby Ridge, Idaho, and was believed to be associated with a white supremacist group and to traffic in illegal firearms. In June 1990, Weaver was indicted by a federal grand jury on weapons offenses. Weaver was arrested and released pending trial. Due in part to a clerical error notifying him of the trial date, he did not appear for trial and an arrest warrant was issued for him. According to law enforcement sources, Weaver retreated to his cabin and threatened to shoot any law enforcement officers who tried to arrest him.
In August 1992, Weaver's family discovered three Deputy U.S. Marshals who were surveilling Weaver to prepare for his arrest. Kevin Harris, a Weaver family friend, shot and killed Deputy Marshal William Degan, and Weaver's teenage son Samuel was killed during the gunfire.
The FBI was called into the matter. The FBI activated its Strategic Information and Operations Center (SIOC), an FBI Headquarters post used for the management of crises. It also activated its Hostage Rescue Team (HRT), a tactical unit of agents trained in handling high-risk situations. The FBI Assistant Director for Criminal Investigative Division, Larry Potts, and his deputy, Danny Coulson, discussed the need for an operations plan containing rules of engagement that would provide guidance for the HRT's actions. Rules of engagement were drafted which provided that if any adult male was observed with a weapon, deadly force "can and should be employed" if the shot could be taken without endangering any children.
On August 26, 1992, the HRT was deployed to the site and surrounded Weaver's cabin. When an HRT helicopter took off and flew near the cabin, Weaver, his sixteen-year-old daughter Sarah, and Kevin Harris came out of the cabin, all armed with rifles. HRT sharpshooter Lon Horiuchi fired one shot, wounding Weaver. Weaver, his daughter, and Harris began running back to the cabin, and Horiuchi fired a second shot that penetrated the open door of the cabin. The shot killed Weaver's wife, Vicki Weaver, who was behind the door, and seriously wounded Harris.
The standoff ended on August 31, when the remaining occupants voluntarily left the cabin. Weaver and Harris were charged with various federal offenses, including murder. They were both acquitted of the most serious charges following a trial. Weaver was convicted of failure to appear for trial and committing an offense while on release.
The FBI and the Department of Justice conducted several internal inquiries to determine what had occurred at Ruby Ridge and whether there had been any improper actions taken by law enforcement personnel.
The first review of the Ruby Ridge incident was conducted by an FBI Shooting Incident Review Team (SIRT). FBI procedures call for an administrative review of all shooting incidents. The SIRT review of the Ruby Ridge shootings, which began even before the standoff at Ruby Ridge had ended, was headed by an FBI Inspector and included seven other FBI employees. This team was responsible for reviewing the propriety of the use of deadly force by Horiuchi and the adequacy of the command, control, and operational planning of the entire Ruby Ridge operation.
The report issued by the SIRT team on September 30, 1992, concluded that Horiuchi had been justified in taking both shots and that the FBI had responded appropriately at Ruby Ridge. It noted that the rules of engagement that were in effect at the time of the shooting had been approved by SAC Eugene Glenn, who was the on-scene commander, HRT SAC Richard Rogers, "and FBIHQ personnel, to include Assistant Director Larry A. Potts. . . ."
After the SIRT report was issued, the Shooting Incident Review Group, headed by Michael Kahoe, the Section Chief of the FBI's Violent Crimes and Major Offenders Section, reviewed the report and the FBI's use of force at Ruby Ridge. According to FBI procedures, a Shooting Incident Review Group reviews the report and conclusions of the SIRT team. Kahoe's Review Group issued its own conclusions in a memorandum dated November 9, 1992. Kahoe's Review Group concluded that no FBI personnel had engaged in misconduct. It also concluded that the rules of engagement used at the scene had been approved by FBI Headquarters personnel.
In addition, on November 2, 1992, the FBI held a routine after-action conference, which the FBI typically uses to critique an emergency response and to determine how the FBI can improve its response in the future. A report prepared by FBI employees under Kahoe's direction summarized the conclusions of the conference. A subsequent criminal investigation, which we describe below, found that Kahoe failed to disclose the conference report during discovery in the trial of Weaver and Harris, and in fact had destroyed his copy of the report and ordered his subordinate to destroy his copies. As we describe below, for these actions, Kahoe later pled guilty to obstruction of justice and was sentenced to eighteen months in prison.
In July 1993, DOJ OPR initiated an investigation into the allegations of misconduct by the government in the Ruby Ridge matter. The allegations were raised by several sources, including defense counsel for Weaver and Harris, the U.S. Attorney's office in Idaho (which had prosecuted the cases against Weaver and Harris), and FBI personnel. Shortly thereafter, Deputy Attorney General Philip Heymann assigned the allegations to a DOJ task force for review. Four attorneys from the Department's Criminal Division were assigned to work with OPR Assistant Counsel Barbara Berman to investigate the allegations. This review became known as the "Berman Inquiry." The FBI was asked to provide investigative support for the inquiry. The FBI assigned an investigative team, led by two FBI inspectors, to assist the DOJ task force. These two inspectors were replaced by FBI Inspectors Robert Walsh and Van Harp in September 1993.19
After a contentious decision was made by Deputy Attorney General Heymann to exclude FBI agents from some of the interviews, the FBI withdrew from the investigation and produced its own report, dated January 16, 1994, which came to be known as the Walsh Report. This report was issued several months prior to the Berman Inquiry's final report. DOJ OPR later found that it was "understood that Berman was in charge of the inquiry and would be issuing a formal report on behalf of the DOJ task force." A later JMD review also concluded that the FBI investigators had been instructed to assist the DOJ task force and not to reach their own conclusions regarding the Ruby Ridge incident. Yet, the Walsh report included conclusions and legal analysis, including the propriety of the rules of engagement and the shots fired by Horiuchi. The Walsh Report concluded that the rules of engagement as written could have been misunderstood, but it found that they were not misunderstood by Horiuchi and added that Horiuchi's use of deadly force at Ruby Ridge was "reasonable under constitutional standards."
Berman and her team produced a different report, dated June 10, 1994. The Berman report found serious failings by the FBI and the U.S. Attorney's office in their handling of the Ruby Ridge matter and subsequent events. The Berman report concluded that the rules of engagement were defective because of the inclusion of the word "should" in the phrase deadly force "can and should be employed," which deviated from the standard deadly force policy that requires agents to assess the level of danger before using deadly force and to give warnings if feasible. The report was unable to reach a conclusion as to whether FBI Headquarters had approved the "can and should" language, but stated that it was "inconceivable" that FBI Headquarters remained ignorant of the rules of engagement throughout the entire incident. The report concluded that Horiuchi's first shot was justified, but that his second shot was not because the immediacy of the threat had dissipated when the subjects retreated into the cabin.
DOJ OPR Counsel Michael Shaheen transmitted the Berman report to Deputy Attorney General Jamie Gorelick on June 30, 1994, together with DOJ OPR's separate views on the issue of Horiuchi's second shot. In a report signed by Shaheen, DOJ OPR disagreed with the Berman report's conclusion that the second shot was not justified. DOJ OPR argued that the second shot was justified in view of the totality of the circumstances. Based on its review of the reports, in the summer of 1994 the DOJ Civil Rights Division concluded that while the rules of engagement were probably unconstitutional, the evidence was insufficient to justify a prosecution of Horiuchi.
After the issuance of the Walsh and Berman reports, the FBI conducted an administrative review of the Berman findings to determine what, if any, disciplinary action should be taken against FBI personnel. The FBI's General Counsel asked Thomas Coyle, Assistant Director for the Personnel Division, to assemble a team to determine what administrative action should be taken by the FBI. Coyle picked Charles Mathews, who was the Associate SAC (ASAC) in San Francisco, to conduct the review. Mathews had worked as an ASAC under Coulson for two and a half years, from 1988 to 1990, when Coulson was the SAC in Portland, Oregon.
On December 6, 1994, ten days prior to the issuance of the Mathews report, Freeh elevated Potts to the position of FBI Acting Deputy Director. The Mathews team issued its report on December 16, 1994. It recommended discipline for several agents related to mishandling of the crime scene or laboratory issues. It also recommended a censure for on-scene commander Glenn for "approval of flawed rules of engagement that could reasonably be interpreted to direct FBI employees to act contrary to policy and law"; a censure for HRT SAC Richard Rogers for "creating and documenting flawed [rules of engagement] that could reasonably be interpreted to direct FBI employees to act contrary to policy and law"; a censure for Michael Kahoe for "failures in supervising the SIRG [Shooting Incident Review Group's] review" of the incident; and a censure for the ASAC who prepared the Shooting Incident Review Team's report on the incident for failures in preparing the team's report. The Mathews report did not contain any recommendations for discipline against Potts or Coulson. The Mathew's report suggested that it was not recommending discipline for Potts or Coulson in part because of the Mathews team's conclusion that rules of engagement are generally approved at the level of the on-scene commander and not at FBI Headquarters. The report stated that because there was no requirement for the rules of engagement to be approved at the Headquarters level, there was no need to pursue whether the rules of engagement had actually been approved at the Headquarters level.
Following the Mathews report, on December 29, 1994, Coyle sent a memorandum to FBI Director Freeh containing amended recommendations for disciplinary action. Coyle suggested amending the Mathews recommendations so that Coulson and Potts would receive a censure for "failing to review the finalized [rules of engagement] after involving [themselves] in discussions leading to the promulgation of the [rules of engagement]"; that Glenn and Kahoe be referred to the SES Board for consideration of appropriate action rather than "merely censure"; and that Rogers be censured and suspended rather than "merely censure."
On December 29, 1994, Director Freeh sent a letter to Deputy Attorney General Gorelick recommending that Potts be issued a letter of censure.20 The letter stated that Freeh had found that Potts had discussed and approved the rules of engagement with ASAC Rogers prior to Rogers' arrival at Ruby Ridge. But Freeh's letter stated that he found the rules of engagement as subsequently drafted, approved, and disseminated on site, and which had been found to be improper, had not been approved by Potts. Freeh concluded that although Potts' approval of the rules of engagement was not required by FBI policy at that time, Potts was remiss in failing to review the finalized rules after involving himself in discussions leading to their promulgation.
On January 6, 1995, Director Freeh held a press conference and announced the proposed discipline of the FBI employees, as listed in the December 1994 Coyle memorandum.
On March 7, 1995, Freeh wrote a memorandum to Deputy Attorney General Gorelick urging her to approve his recommendation of a censure for Potts for "failing to follow through on his discussion concerning the rules of engagement to be recommended to the on-scene commander." Freeh stated in the memorandum that Gorelick had advised him that she was "preliminarily inclined to recommend the discipline be increased to a thirty-day suspension." Freeh wrote that he strongly disagreed on the grounds that Potts' actions were deficient only to the extent that he did not follow through on earlier discussions about the rules of engagement and that a thirty-day suspension would be disproportionate to Potts' conduct. Freeh argued that the suspension would send "a wrong message to both the public and the employees of the FBI," would signal that there was culpability among FBI employees for the accidental shooting of Vicki Weaver, and would harm the credibility of Potts and other FBI employees involved in the creation and implementation of the rules of engagement. Freeh also stated that the increased discipline was "so divergent from my recommendation that it is likely to do profound damage to the relationship between the Department and the FBI." Freeh expressed concern about the impact that the suspension would have personally on Potts and about the impact it would have on Freeh's credibility as Director. Freeh urged Gorelick to censure Potts, but recommended that if she was still persuaded to the contrary, that she consider reducing Potts in grade for six months and place him on probation for one year.
On April 5, 1995, Gorelick approved Freeh's recommendation that Potts be issued a letter of censure for his role in Ruby Ridge, and the letter of censure was issued. On May 2, 1995, the Attorney General approved Director Freeh's recommendation that Potts be named as Deputy Director of the FBI.
On May 3, 1995, while the FBI's final disciplinary actions against him were pending, Glenn sent a letter to DOJ OPR alleging that the disciplinary review conducted by Mathews had been faulty and requesting that DOJ OPR conduct its own investigation. Glenn alleged that the deficiencies in Mathews' investigation "reveal a purpose to create scapegoats and false impressions, rather than uncovering or reinforcing the reality of what happened at Ruby Ridge." Glenn stated that the DOJ and FBI investigations (referring to the Berman and Walsh Reports) had determined that the rules of engagement had been approved at the level of Headquarters, but that the Mathews report blamed Glenn alone for approving them. He also alleged that the Mathews investigation was incomplete and resulted in discipline for agents without faulting those who had supervised them. Glenn also alleged that Mathews had a close relationship with Coulson and that this association caused Mathews "to avoid the development of the necessary facts, and caused him to cover up facts germane to the central issues."
Glenn's allegations led to several subsequent investigations. In the spring of 1995, DOJ OPR began an investigation into allegations that some of the FBI agents involved in the earlier inquiries had intentionally withheld or covered up information in order to protect the FBI, Potts, and Coulson from criticism. As a result of the new investigation, DOJ OPR concluded that Kahoe had lied under oath to the Berman team about the destruction of the after-action report, that Potts and Coulson had been closely involved in the drafting of the rules of engagement, that Potts had approved the rules of engagement, and that the decision to destroy the after-action report had been made "above Kahoe."
In July 1995, DOJ OPR reported its preliminary conclusions to Deputy Attorney General Gorelick, and the matter was referred for criminal investigation. As a result, on August 11, 1995, Director Freeh placed Potts, Coulson, and two other officials on administrative leave with pay.
The criminal investigation was supervised by Michael Stiles, the U.S. Attorney for the Eastern District of Pennsylvania. That two-year investigation resulted in the conviction of Kahoe for obstruction of justice in connection with his destruction of the after-action report. Stiles recommended no further prosecutions, but he referred several matters back to DOJ OPR for investigation of administrative misconduct. In a letter dated August 12, 1997, Stiles referred to DOJ OPR several issues that he believed required further administrative review.21
DOJ OPR investigated these matters, together with the broader questions of (1) how did the rules of engagement that were in effect at Ruby Ridge come to be formulated and approved, and (2) to what extent did misconduct by FBI personnel contribute to the failure of the internal inquiries to uncover the full story of FBI actions in connection with Ruby Ridge. With respect to this second issue, DOJ OPR investigated several key points, including:
In analyzing the conduct of FBI employees, DOJ OPR considered whether a given act or failure to act constituted misconduct, demonstrated poor judgment, or did not present any problems. DOJ OPR found misconduct in instances where it determined that the subject had intentionally violated his duty or had acted in reckless disregard of a generally accepted duty. It found poor judgment in instances where it determined that the conduct amounted to a less serious failure to carry out responsibilities properly.
In January 1999, DOJ OPR provided copies of its draft report describing the results of its investigation to FBI OPR for review and comment. This was done pursuant to an agreement that FBI OPR would provide DOJ decision-makers with information on what policy provisions it thought should be applied to the disciplinary decision and what discipline it thought would have been taken if the Rudy Ridge decisions were handled within the FBI. In a memorandum dated April 8, 1999, FBI OPR Assistant Director DeFeo responded to the draft report. DeFeo's memorandum included information about what policy provisions would apply and what disciplinary action the FBI believed would be taken if the Ruby Ridge inquiry were being handled within the FBI. The memorandum addressed only those employees about whom adverse findings had been made and those who still worked for the FBI.
The FBI OPR memorandum discussed the proposed discipline of Harp at length. It agreed with DOJ OPR's conclusion that Harp used poor judgment in writing the agent evaluations, which made it appear that agents were being rewarded for "correctly" deciding that the HRT had acted properly. However, the FBI OPR memorandum stated that poor judgment would not provide a basis for discipline of an FBI SES member unless it rose to the level of misconduct, malfeasance, or neglect of duty. FBI OPR concluded that it would not recommend to the Deputy Director that poor judgment of that nature be referred to an SES Disciplinary Review Board. On the issue of whether FD-302s had been improperly edited, FBI OPR did not agree that Harp's actions constituted misconduct or neglect of duty and stated that it would not recommend that the incident be referred to an SES Board. The memorandum asserted that "all Harp did was question the interviewer if certain language was accurate, and neither pressured nor instructed the interviewer to make any changes. . . ." The memorandum disagreed with DOJ OPR's statement that it was a serious dereliction of duty for a supervisor who did not participate in an interview to direct or request changes in the substance of an FD-302. FBI OPR asserted that DOJ OPR had not defined "what is substance and what is style," and that the final version of the FD-302 was accurate.
The OPR memorandum also considered the allegation against Harp that he failed to conduct a complete investigation. It concluded that, in the absence of any direct evidence of wrongful intent, OPR would not recommend that Harp's failure to ensure interviews of every person on the after-action conference list or to ascertain that Kahoe had lied be referred to an SES Disciplinary Review Board as misconduct or neglect of duty. OPR concluded that the facts did not establish that Harp was responsible for either FBI management or Berman being deceived or ignorant as to the completeness of the Walsh inquiry. OPR stated that it would not consider the FBI's decision to withdraw from the Berman Inquiry, which was approved at much higher levels than Harp, or the lack of a disclaimer that the Walsh report was incomplete, to be misconduct attributable to Harp. The memorandum also rejected DOJ OPR's conclusion that Harp had tried to counterbalance the perceived bias of Berman, and "thereby to protect some of the subjects of the investigation."
With respect to Mathews, FBI OPR agreed with DOJ OPR that Mathews used "extremely poor judgment in failing to recuse himself from the inquiry." FBI OPR stated that it would have recommended that Mathews' creation of the foreseeable appearance of impropriety in a case as significant as Ruby Ridge be referred to an SES Disciplinary Board for a review of whether misconduct or neglect of duty were present and for disciplinary consideration. FBI OPR disagreed with DOJ OPR's assertion that Mathews relied on unsupported statements about who bore the responsibility for the approval of the rules of engagement. But FBI OPR concluded that Mathews should have been aware of the investigative holes in prior Ruby Ridge investigations and that it would have referred what is "arguably a marked departure from professional standards of thoroughness and impartiality to the SES Board for disciplinary consideration, particularly given the recusal issue."
The disciplinary issues became even more complicated when investigators within FBI OPR made clear that they did not agree with the official FBI OPR position as reflected in Assistant Director DeFeo's April 8, 1999, memorandum to DOJ OPR. Three FBI OPR investigators who had worked on the DOJ OPR investigation - FBI OPR Unit Chief John Roberts, FBI OPR Unit Chief Frank Perry, and Supervisory Senior Resident Agent John Werner - sent a memorandum to DOJ OPR commenting on the draft DOJ OPR report. The memorandum stated that the authors had been advised by Assistant Director DeFeo that their observations and recommendations did not represent the official opinion of FBI OPR, so they wanted to provide their comments to DOJ OPR directly.
In their memorandum, the FBI investigators were more critical of many of the FBI officials than FBI OPR's memorandum was. The most significant difference was the investigators' criticism of FBI Director Freeh. The investigators stated that they believed that Freeh should receive "direct criticism for his role in the Ruby Ridge adjudication." The memorandum stated that Freeh's actions in creating a deadline for the Mathews report and his elevation of Potts during the investigation of him "at least lend the appearance of implied influence on as of then an unfinished investigation and adjudication of the Ruby Ridge matter." It stated that Freeh also deserved criticism for his elevation of Potts given the information that had been provided to him about Potts' exposure in the Ruby Ridge matter. The memorandum also stated that the investigators believed Freeh inadequately reviewed the Mathews report, or he would have realized that it was a significantly flawed investigation. It stated that "at a minimum, we have an appearance of an attempt on the part of Walsh, Harp, Mathews, Coyle and Director Freeh not to disclose the FBI's improper conduct during and following the Ruby Ridge crisis, or inattention to detail on the part of these individuals in conducting a thorough and objective investigation and adjudication." The memorandum also criticized Freeh for failing to remove Walsh from the investigation despite knowledge of Walsh's relationship with Potts, for promoting Harp and Mathews while the investigation was pending, and for authorizing cash bonuses to several subjects of the investigation while the investigation was pending.
On June 30, 1999, after considering the comments of FBI OPR and the FBI investigators, DOJ OPR issued a 571-page final report describing the findings of its review. In an undated memo to FBI OPR, DOJ OPR stated that it disagreed with FBI OPR's comments and would not change its conclusions.22
On the issue of approval of the rules of engagement, the DOJ OPR final report found by a preponderance of the evidence that Coulson approved the "can and should" language in the rules. It did not find, however, that there was sufficient evidence to show that Potts had approved the language. But the report concluded that both Potts and Coulson committed misconduct by knowingly approving rules of engagement that improperly deviated from the FBI's standard deadly force policy, regardless of whether they had approved the actual "can and should" language. It also concluded that Potts and Coulson later committed misconduct by making false statements about their approval of the rules of engagement.
DOJ OPR also discussed the adequacy of the Walsh investigation and determined that both Walsh and Harp committed misconduct by failing to ensure that their inquiry was complete. DOJ OPR concluded that this failure was motivated in part by a desire to counterbalance what they perceived as the bias of Berman's review. DOJ OPR also found that it was unwise to have Walsh conduct the investigation given his friendship with Potts, but it found no evidence of overt favoritism during the inquiry or evidence that Walsh was selected in order to protect Potts. Walsh and Harp were also found to have committed misconduct in failing to supervise properly the production of interview reports in order to ensure their integrity. In addition, DOJ OPR concluded that Walsh and Harp used poor judgment in drafting performance appraisals for agents who worked on the inquiry when they stated that the agents had "correctly determined that the HRT acted effectively and that the [rules of engagement] were formulated and modified within parameters of FBI policy."
The DOJ OPR report found that the Walsh team did not take sufficiently aggressive steps to investigate various areas and that the lack of diligence was evidence that the Walsh team avoided uncovering the full truth about Ruby Ridge. The report stated that Walsh and Harp reached conclusions in their report despite orders from DOJ not to, and that this was further evidence showing that the inquiry was slanted to protect Potts and Coulson. DOJ OPR recommended discipline for Harp ranging from censure to suspension for 30 days. DOJ OPR did not recommend any range of discipline for Walsh because he had already left the FBI.
The DOJ OPR report examined the adequacy of the administrative review by Mathews. It concluded that Mathews committed misconduct by failing to recuse himself in light of his relationship with Coulson, and that Mathews' supervisor, Thomas Coyle, used poor judgment in permitting him to work on the inquiry. It also concluded that Mathews committed misconduct in conducting an inquiry that was incomplete or inadequate by failing to interview key witnesses who had been in the SIOC and by using unsupported conclusions that FBI Headquarters did not need to approve rules of engagement as justification for not investigating Headquarters personnel's actions. DOJ OPR recommended suspension of Mathews for 15 to 60 days.
The DOJ OPR report discussed the adjudication of discipline following the issuance of the Mathews report. It concluded that, while those on the SES Disciplinary Board acted in good faith in making the disciplinary decisions, they relied on the unsupported conclusion that on-scene commanders were responsible for approving the rules of engagement. Based on DOJ OPR's finding that the rules of engagement were approved at the FBI Headquarters level, DOJ OPR concluded that the FBI should consider whether Glenn should have his record cleared or modified with respect to discipline.
The DOJ OPR report criticized numerous other agents and FBI officials for their roles in the investigations of the original Ruby Ridge incident. DOJ OPR also criticized Director Freeh by stating that he used poor judgment in promoting Potts to Deputy Director while investigations of Potts were ongoing. DOJ OPR concluded that this promotion, together with his earlier promotion to Acting Deputy Director, could be viewed as a signal to the FBI investigators that Potts should not be criticized for his conduct in Ruby Ridge. However, FBI OPR did not make any recommendation for discipline of Freeh.
On June 30, 1999, the Department of Justice referred the final DOJ OPR report to Assistant Attorney General (AAG) for Administration Stephen Colgate, who was the head of the Department's Justice Management Division (JMD), for him to make the disciplinary decisions. Director Freeh had recused himself from the decisions and the Department believed that the decision on disciplinary matters should be handled outside the FBI. Colgate was assigned because many of the other high-level Department officials had worked closely with Potts and also were recused.
In a July 23, 1999, memorandum from Assistant Director DeFeo to Colgate and DOJ OPR, DeFeo urged that an "in-depth pre-decisional reexamination of several issues be made by a deciding authority detached from the DOJ investigation." He stated that the "intensity of feeling reflected in DOJ OPR's final report's findings compel[led]" him to make this recommendation. The first such issue was DOJ OPR's finding that the failures to conduct further interviews of SIOC witnesses and to locate the after-action report gave rise to the inference that Walsh and Harp were motivated by a desire to skew its results in order to counterbalance the perceived bias of Berman. DeFeo noted that no such adverse inference was drawn as to the motives of the DOJ attorneys who were in charge of the Berman inquiry, who consulted with the FBI about who to interview, and who had the ability to participate in interviews and to conduct separate interviews. DeFeo argued that if the attorneys were entitled to a presumption of regularity in the performance of their duties, no inference of bad faith was warranted as to the agents whose work was supervised by those attorneys.
DeFeo also argued that punishment of Harp for terminating an incomplete investigation appeared to be "punishment for an institutional FBI decision, proposed against Harp because he is the only remaining on-board manager who was involved in that aspect of the inquiry." DeFeo contended that the evidence demonstrated that the withdrawal from the investigation was decided well above Harp's level. DeFeo also argued that the penalty proposed against Mathews was unduly severe and not in keeping with FBI precedent. He stated that the absence of evidence of intentional misconduct "would militate against a suspension as severe as that recommended," and that Mathews' actions were more akin to neglect of duty than to intentional misconduct.
Colgate assigned JMD Assistant Director Vivian Jarcho to completely review DOJ OPR's and FBI OPR's analyses and provide recommendations as to the appropriate discipline. Jarcho was the Assistant Director for Workforce Relations Group at that time and had handled personnel matters for the Department for almost 15 years.23 Prior to handling the Ruby Ridge matter, she had reviewed and made disciplinary recommendations in two other sensitive Department matters - an OIG investigation into the Miami Immigration and Naturalization Service's alleged deception of Congress when a congressional delegation came on a fact-finding visit to the Miami District, and the OIG's investigation about deficiencies in the FBI laboratory.
In June 1999, Jarcho began her review of DOJ OPR's report, the responses to it, and the underlying materials. In December 1999, she completed a 216-page report that described the results of her review, contained her analysis of the underlying materials, and made recommendations for discipline. Jarcho told the OIG that even though FBI employees do not have appeal rights to the Merit System Protection Board (MSPB), she applied MSPB criteria for disciplinary action in her review "for the sake of equity." Jarcho's report stated that she also considered the criteria applied by DOJ OPR, conducted a "Douglas Factor analysis" in order to make recommendations regarding reasonable penalties, evaluated possible mitigating and aggravating factors, and applied FBI disciplinary precedent for similar deficiencies or misconduct.
Jarcho's report concluded that Potts and Coulson were directly involved in formulating and approving the rules of engagement and impeding official investigations by making false and misleading statements to investigators. It also concluded that they blamed more junior FBI members for their actions and let them be harshly judged and disciplined in their place. It stated that if Potts and Coulson were still employed by the FBI, they could be subject to disciplinary action.
Jarcho's report also agreed with the DOJ OPR finding that Walsh and Harp committed misconduct by failing to ensure that the Walsh inquiry was complete with respect to the after-action report and the interview of SIOC personnel, and that this failure was motivated in part by a desire to counterbalance the perceived bias of Berman. The report agreed with DOJ OPR that it was unwise to have Walsh conduct the investigation given his friendship with Potts. It did not agree entirely, however, with DOJ OPR's finding that there was no evidence of overt favoritism during the inquiry or evidence that he was selected in order to protect Potts. The report stated that Walsh's independent decision to issue the findings and conclusions of his team in a separate report was troubling conduct. Jarcho found that this action was evidence that Walsh was trying to protect Potts and Coulson and deliberately sought to present findings that he believed would be more favorable to the FBI than the findings he anticipated would be included in Berman's report. The report also stated that it was troubling that Walsh and Harp were unable to provide a satisfactory explanation for why SIOC personnel were not interviewed and why Walsh's teams failed to thoroughly investigate the entire matter.
In addition, Jarcho's report agreed with DOJ OPR that Walsh and Harp committed misconduct in failing to supervise properly the production of interview reports in order to ensure their integrity. Jarcho also agreed that Walsh and Harp used poor judgment in drafting performance appraisals for agents who worked on the inquiry saying that they had "correctly determined that the HRT acted effectively and that the rules of engagement were formulated and modified within parameters of FBI policy." The report recommended that Harp receive a 15-day suspension and found that it was an aggravating factor that Harp claimed to investigators that he did not know that the FBI was not to include conclusions in its fact-finding, "despite extensive documentation that proves otherwise."
On the issue of the adequacy of the Mathews review, the Jarcho report disagreed with the DOJ OPR finding that Mathews committed misconduct by failing to recuse himself in light of his relationship with Coulson. Jarcho stated that Mathews' history with Coulson was well known at the FBI and that other agents who raised potential conflicts during their participation on the Walsh and Mathews inquiry teams were directed to remain members if they believed they could be objective. Jarcho found that it was likely that Mathews would have stated that he could have been objective and would have been allowed to conduct the inquiry regardless. Jarcho's report stated that it is well-established FBI practice not to disqualify agents because they have worked for or have a personal relationship with the person under investigation. It noted that FBI OPR has expressed the opinion that any FBI official is expected to be able to investigate virtually any other FBI official, regardless of professional friendships that develop between senior employees over the years. However, the report recommended that the FBI review its policies regarding conflicts of interest and ensure that all FBI personnel understand the importance of avoiding both actual and apparent conflicts.
The Jarcho report found that Mathews committed "egregious" misconduct in conducting an inquiry that was incomplete or inadequate in failing to interview SIOC personnel and in using unsupported statements about approval of the rules of engagement to conclude that the rules were not approved at FBI Headquarters. The report recommended that Mathews be suspended for 30 days for this misconduct.
The Jarcho report questioned whether earlier disciplinary decisions in the Ruby Ridge matter were equitable, given the failures of the Mathews report. Jarcho found "procedural deficiencies and flawed analysis in the Mathews report which resulted in non-supportable disciplinary actions being taken against FBI employees." Jarcho's report reviewed the disciplinary decisions made in 1994 relating to the rules of engagement and concluded that Glenn's and Rogers' discipline should be rescinded based both on earlier procedural problems and on the grounds that discipline had been imposed on the unsupported proposition that on-scene commanders were responsible for approving rules of engagement. Jarcho agreed with DOJ OPR that FBI Headquarters was responsible for approving the rules of engagement and that disciplinary action against Glenn and Rogers was unwarranted and unreasonably harsh.
Jarcho, like the three FBI investigators who had commented on the DOJ OPR report, believed that Freeh's conduct deserved significant criticism. Jarcho's report stated that the Department had devoted considerable funding and staff to thoroughly review the events surrounding Ruby Ridge, which culminated in the Berman report. Despite this effort, Director Freeh dismissed the Department's findings in favor of the Mathews report, which was conducted in two months, as being more credible and accurate.24 Jarcho's report stated that the fact that the Mathews report was less critical of the FBI than the Berman report and made conclusions that insulated FBI leadership from culpability damaged the FBI's credibility. Jarcho stated that the "Director's support for [the Mathews report] also ensured that Ruby Ridge would remain a problematic public relations and FBI employee morale issue."
Jarcho's report concluded that Director Freeh bore significant responsibility for much of the adverse publicity surrounding Ruby Ridge and for the appearance of FBI bias. Jarcho concluded that Freeh's actions undermined the integrity of the Department-led investigation and led to disciplinary actions being taken against FBI employees based on faulty analysis and incomplete fact-finding. The Jarcho report stated:
Director Freeh's admitted bias towards Larry Potts caused him to strong-arm the Department about approving his recommendation for Potts to receive censure rather than a 30 day suspension. These actions constitute misconduct and warrant disciplinary action. Therefore, we recommend that Director Freeh be censured for his actions and admitted demonstrated poor judgment.
AAG Colgate told the OIG that Deputy Assistant Attorney General John Vail and Deputy Assistant Attorney General Janis Sposato acted as his counsel on the Ruby Ridge disciplinary matter and that he asked them to fully review the work of Jarcho and DOJ OPR. Jarcho gave her report to Vail in December 1999 and briefed Vail and Sposato several times about her conclusions.
After their review, Vail and Sposato rejected DOJ OPR's and Jarcho's conclusions and disciplinary recommendations. In a memorandum to Colgate dated April 17, 2000, Vail and Sposato began by stating that the actual events of Ruby Ridge were long past. They stated that it also appeared to have been a "tale of the search for someone to blame for an operation that went so horribly wrong," and that "there has been a desperate need to hold someone to account for an outcome that no one wanted and which no one finds satisfactory."
With respect to Harp, Vail and Sposato stated in the memorandum that they believed that, "absent some evidence of volition on his part in producing an 'incomplete' report, he should not be held to task on this basis." They stated that this was especially true in light of the fact that Harp's superiors had left the FBI and were never disciplined for their alleged roles in the matter. They stated that to focus responsibility for the inadequacies of the Walsh report on Harp, six years after the fact, "does not serve any apparent equitable or institutional purpose." They added that Berman could also be said to have issued a report without the benefit of the same interviews but that no recommendation of discipline had been made in that case. Finally, they stated that any action against Harp on the basis of inadequacies of the Walsh report seemed more appropriate for the realm of performance evaluations than of discipline:
That is, if there were any shortcomings in the report which Harp helped to produce, absent any evidence of improper motive on Harp's part - and we have not been convinced of any - such deficiencies as "incompleteness" of work are matters for which an employee may be counseled, may suffer in his or her rating, or may not be rewarded when bonuses are handed out - but not, typically, disciplined. (Emphasis in original.)
In addition, Vail and Sposato did not view the changes to the FBI 302s as seriously as Jarcho did. Their memorandum stated that, since there appeared to have been an acceptance of the editing process generally, they would not recommend discipline for Harp on that basis. Sposato told the OIG that, while she believed that editing 302s should be kept to a minimum because the 302s should remain as faithful as possible to the original interview, she did not believe that discipline was appropriate when such a practice was not prohibited by the FBI and where she did not believe there were significant, material alterations.
Regarding Mathews' conduct, Vail and Sposato concurred with Jarcho that Mathews did not commit misconduct when he failed to recuse himself from the investigation because of his relationship with Coulson. They disagreed, however, with Jarcho's (and DOJ OPR's) conclusion that Mathews should be disciplined for conducting an inquiry that was incomplete and inadequate. The Vail and Sposato memorandum stated that, as with Harp, there was no evidence that Mathews intentionally slanted his report to further a "cover-up" of wrongdoing by senior FBI officials. They again concluded that, absent evidence of intent or of gross negligence or dereliction, deficiencies in work product are typically dealt with through the performance management process.
Vail and Sposato also disagreed with Jarcho's recommendation of a letter of censure for Freeh. Their memorandum to Colgate stated:
Even assuming it would be in your purview to recommend it (given that Mr. Freeh is a Presidential appointee), we do not believe that censure is appropriate in this case. From our perspective, Director Freeh at all times used his own best judgment about matters that were hotly debated both within and without the Department. His judgments should not be the subject of discipline, no matter what others may think of them.
Vail and Sposato's memorandum also reviewed the issue of whether the earlier discipline against Glenn and Rogers was justified. The memorandum discussed the propriety of whether rules of engagement should ever be developed, given the Department's overarching deadly force policy. In the end, Vail and Sposato concluded that, with respect to discipline, they were "inclined to leave in place the discipline that has been proposed and/or taken by others, and to recommend no further disciplinary action based upon the promulgation of the rules of engagement."
Their memorandum stated:
It is our intention that these recommendations should put the Ruby Ridge incident in perspective. While there has been much written and said about the "Rules of Engagement," we believe most of that discussion has been misplaced, focusing on the niceties of a phrase (i.e. "could" v. "should" v. "can") rather [than] on the real question of the appropriate role for such rules in a crisis. Most of the individuals responsible for the Ruby Ridge [rules of engagement] have either left the FBI voluntarily or been disciplined.
This is not an outcome that many will find satisfying; indeed, some will be very dissatisfied with it. However, we are willing to accept that there are as many views of human events as there are viewers, and that it is rarely possible to reconcile them all.
Their memorandum concluded with three brief recommendations: (1) that the FBI should clarify the role of the FD-302 and undertake a vigorous training effort to ensure that all agents prepare them in the same way; (2) that Department leadership needed to be mindful of the unsatisfactory conduct of the Berman/Walsh investigation25 and to consider whether the FBI can investigate itself when the conduct of top leadership is a potential subject of the investigation; and (3) that the Department should undertake a study of the proper role of rules of engagement in crisis management and then clearly articulate its policy in this area.
Jarcho told the OIG that she felt that Vail and Sposato respected her work, but were "viewing things differently at a different time." She added that Vail and Sposato were very "immersed" in considering the matter and that they were not cavalier about any aspect of it. She said that she believes they made considered decisions in this matter, but that they did not review the voluminous materials as thoroughly as she had. Jarcho told the OIG that she did not agree with Vail and Sposato's analysis, and Jarcho remains convinced that her recommendations were appropriate.
Vail and Sposato both told the OIG that they had concerns about Jarcho's conclusions. Sposato stated that she thought Jarcho's report was professional and thorough in its analysis, and that Sposato had high regard for Jarcho's work, but Sposato disagreed with the conclusions. Sposato told the OIG that her major concern was that employees should not be disciplined for mistakes. She stated that she did not believe that discipline was appropriate in these cases without evidence of bad intent. She stated that, in the case of both Harp and Mathews, the investigations were not complete, but that there had been no attempt to hide this fact and no evidence that they had been ordered to take actions and had refused to do so. She stated that the criticisms made against Harp and Mathews also could have been made against Berman because she was the supervising attorney on the original Department investigation and Sposato believed that investigation had been flawed as well. Sposato also stated that she felt that many of the characterizations by DOJ OPR were unfair. She said that her review of the facts did not support a conclusion that the performance by Harp or Mathews was "terrible."
Vail said that he was very concerned that many of the subjects had left the FBI and that he did not find the DOJ OPR analysis of the insufficiency of the Walsh and Mathews investigations to be persuasive. He felt that DOJ OPR had made too many inferences and that there was "no evidence" of intent. Vail added that he was "not even convinced the work had been all that shoddy." Vail said that "absent some evidence of motive," he did not see the matter as appropriate for disciplinary action. Vail agreed that evidence of intent is not always necessary in order to discipline an employee, but stated that negligence must reach a certain level in order for discipline to be appropriate.
Vail and Sposato both said that they were also concerned that the matter was very old. They said they viewed it as unfair to discipline people who were still at the FBI when so many others who were equally or more culpable had left. They told the OIG that they were concerned that Harp had generally followed the orders of Walsh, who was gone and could not be disciplined.
On July 21, 2000, representatives from DOJ OPR met with Sposato and Vail to discuss the appropriate levels of discipline in the Ruby Ridge matter. At that meeting, Sposato and Vail provided DOJ OPR with their April 17, 2000, memorandum to Colgate. In a memorandum dated October 5, 2000, DOJ OPR responded and strongly objected to Vail and Sposato's conclusion that discipline should not be proposed without clear evidence of a bad motive:
JMD apparently would conclude that a subject (Harp or Mathews, in this case) engaged in misconduct warranting discipline only if it found sufficient evidence to conclude that the subject failed to carry out his assigned duties (in this case, to conduct a complete and thorough inquiry) for an improper purpose (in this case, to cover-up wrong-doing of high level FBI managers). Absent evidence of such an improper purpose, JMD apparently could conclude that the subject's failure to perform his duties constituted a management rather than a misconduct issue.
DOJ OPR stated that, under its analytical framework, an employee commits misconduct if he intentionally violates or acts in reckless disregard of an obligation or standard imposed by law, applicable rule of professional conduct, or Departmental regulation or policy. It stated that, in this case, both Harp and Mathews each had a professional obligation to conduct a thorough, complete inquiry into the Ruby Ridge matters assigned to him or to document that the inquiry was incomplete. DOJ OPR concluded that each of them breached that obligation. DOJ OPR stated that, under both its and FBI OPR's frameworks, "it is not necessary to find that the employee's breach of a duty was motivated by an improper purpose; rather, it is necessary only to find that the employee engaged in conduct while knowing that the natural consequence of that conduct would result in the breach of an obligation or standard." DOJ OPR argued that JMD was substituting a narrower definition of misconduct than that used by DOJ OPR, the investigators, or the FBI.
DOJ OPR also argued that Vail and Sposato had failed to consider the evidence in DOJ OPR's report of an improper purpose on the part of Harp and Mathews. With respect to Harp, DOJ OPR set forth its view of the evidence regarding Harp's explanations and the evidence indicating bias in favor of the subjects of the investigation and bias against Berman. Specifically, DOJ OPR stated that Harp had admitted that the Walsh inquiry was incomplete. DOJ OPR concluded that Harp, as a highly experienced supervisor, had a professional duty to document clearly or notify people orally that the investigation was not complete. DOJ OPR also disagreed with the conclusion that Department attorneys could be equally faulted for conducting an incomplete inquiry. It stated that the Department attorneys were not familiar with the workings of the SIOC and justifiably relied on the agents of the Walsh group to guide them to the pertinent evidence.
In addition, DOJ OPR stated that there was evidence of Harp's intent to skew the inquiry based on his conduct with respect to the editing of the FBI 302's. It cited an example of what it considered an attempt to "cleanse a 302 of language harmful to the FBI." In this example, Harp admitted that he questioned the agent who was the author of a 302 about the accuracy of the 302. This inquiry by Harp resulted in the agent changing the 302 describing the rules of engagement from "free to fire and justified in doing so," to a "cleaned-up" version which stated "authorized to apply deadly force, if appropriate." DOJ OPR concluded that it was significant that Harp singled out this statement for his inquiry and that the 302 was then changed to a more innocuous formulation of the rules of engagement.
With respect to Mathews, DOJ OPR asserted that Mathews had been instructed to make sure the investigation was complete, that it was clear that the investigation was not complete, and that Mathews should have been aware of that fact because there were a number of pieces of important information missing. DOJ OPR also stated that it had not found direct evidence of intent on the part of Mathews, but that it had found statements that, when taken together, suggested Mathews' intent to skew the inquiry. For example, Mathews said to an agent that he wanted to see "an arrow pointing to Glenn," and criticized an agent who commented that Potts and Coulson were likely to be disciplined. DOJ OPR found that Mathews also changed the report's finding that there was "little evidence" to "no evidence" in the discussion of the evidence against Headquarters officials. DOJ OPR found that these actions, together with the "clearly unreasonable discussions in his report of the approval of the [rules of engagement]," led DOJ OPR to conclude, by a preponderance of the evidence, that Mathews had conducted an inadequate investigation in order to skew the results of his inquiry to protect Coulson, Potts, and others at FBI Headquarters.
DOJ OPR also disagreed with JMD's conclusion that Mathews did not commit misconduct when he failed to recuse himself because of his relationship with Coulson. DOJ OPR concluded that Mathews alone knew of his deep sense of loyalty to Coulson and that it was incumbent upon Mathews to remove himself from the inquiry. DOJ OPR cited statements by Mathews that "[his] friend Danny is not going to get hurt in this," and Mathews' notes to Coulson and Freeh after the inquiry had ended enclosing press articles that were complimentary to Coulson and expressing satisfaction that Coulson was being remembered for his good work at the FBI.
DOJ OPR also objected to JMD's assertion that Director Freeh's judgments should not be the subject of discipline. DOJ OPR stated that JMD's conclusion was an "extremely broad approach [that] would amount to granting the Director blanket immunity for any decision he makes, no matter how lacking in judgment." DOJ OPR stated that it rejected that view and affirmed its conclusion that Freeh should be criticized for using poor judgment.
JMD did not respond formally to DOJ OPR's memorandum. In interviews with the OIG, Sposato, Vail, and Colgate stated that they did not write any additional internal memoranda or keep any notes justifying or analyzing their decision to depart from DOJ OPR's findings.
FBI OPR responded to DOJ OPR's memorandum on November 29, 2000, in a memorandum signed by Assistant Director DeFeo. In that memorandum, FBI OPR clarified that, while its standard for misconduct was the same as that utilized by DOJ OPR, it did not agree with DOJ OPR's finding of misconduct with respect to Harp. It also stated that, while it had recommended that the issue of whether Mathews had committed misconduct by failing to conduct a full review of the evidence with respect to the approval of the rules of engagement should be reviewed, this recommendation indicated only that the evidence had reached a threshold at which it should be subject to disciplinary consideration and did not equate to a finding that Mathews had committed misconduct. Finally, FBI OPR disagreed with DOJ OPR's assertion that the editing of the 302s by Walsh and Harp was well beyond the bounds of acceptable FBI practice. It stated that absent evidence establishing bad motive "by a clear preponderance," FBI OPR would not impose discipline for such editing.
Colgate told the OIG that he reviewed the materials in this matter, including the DOJ OPR report, Jarcho's report, the Sposato/Vail memorandum, DOJ OPR's response, and FBI OPR's response, and he concluded that he agreed with Vail and Sposato that no further discipline was appropriate. He told us that he did this for two reasons. First, he said he was concerned that the lower-level employees might be punished for the deeds of their retired superiors. He stated that his "gut" told him that there was a lot of "angst" over the fact that Potts and Coulson left the FBI without any punishment and that there was a sense that those who were still at the FBI should "pay for the sins of those who got away." Second, he believed that many of the issues were performance rather than misconduct matters. He said that there was no question that serious discipline was appropriate for Potts and Coulson because they were the leaders of what took place at Ruby Ridge. But he did not believe that Harp and Mathews had committed misconduct.
Colgate said that he tried to view the issue of intent as he thought the MSPB would view it. He said he believed that the management and culture at the FBI did not place an emphasis on internal investigations and that senior management was well aware that the investigations were sloppy and that there were conflicts of interest involved. He stated that he saw the whole matter as sloppiness rather than as a conspiracy to "throw" an investigation. Colgate said that he saw his role as sorting through the evidence and taking a critical look at some of the conclusions. He said that, in deciding disciplinary matters, he generally defers to the assessments of the investigators who conducted the original inquiry, but that he is a "check point" to ensure a fair outcome. He said that he did not have any dispute with DOJ OPR's factual findings, just with the conclusions that they drew from them.
Colgate stated that he never seriously considered disciplining Freeh. He said that Freeh was a Presidential appointee and could have been removed at any time by the President. Colgate said that since Freeh had publicly admitted he made mistakes in the aftermath of Ruby Ridge, the President had all the information he needed to remove Freeh if he so chose. Colgate stated that he also was aware of the stormy relationship between Director Freeh and Attorney General Reno over the campaign finance investigation, and Colgate felt that a recommendation for discipline of Freeh by the Department would be seen as retaliation by Reno against Freeh.
Colgate told the OIG that he made his decision independently, knowing that it would make many people unhappy. He said he was never pressured by any entity and that he tried to make the decision process an open one in which all parties had input. Colgate added that he has no bias for or against the FBI, but that he is sure that the FBI has viewed him as a "thorn in its side" over the years.
Under Department procedures in matters involving a Department attorney, the deciding official must notify Associate Deputy Attorney General Margolis if he or she intends to depart from DOJ OPR's recommended range of discipline.26 Margolis met with Jarcho, Sposato, Vail, and DOJ OPR, and reviewed their submissions and a draft of Colgate's decision. Margolis also met separately with Colgate about his draft decision. Margolis said he reviewed the decision using an "abuse of discretion" standard. Margolis said he does not substitute his own judgment of what would constitute an appropriate result; rather, he determines only whether the deciding official's conclusions are unreasonable in light of the evidence.
Margolis told the OIG that he told Colgate that he did not agree with his decision and could not endorse it. Margolis said he believed that it would have been better to have followed DOJ OPR's practice of not requiring proof of intent in order to find misconduct. However, Margolis said he was satisfied that Colgate had looked at the matter carefully, and Margolis also believed that Colgate had not abused his discretion in reaching the decisions he did. Therefore, Margolis did not have the case reassigned from Colgate to a new official to make the final disciplinary decisions.
As a result, in a memorandum issued on January 3, 2001, Colgate reported his final decision. In the memorandum, Colgate stated that his staff thoroughly reviewed the DOJ OPR report and briefed him on the results. He stated that it was his conclusion at the end of that process that he did not concur with the DOJ OPR findings of misconduct and the resulting disciplinary recommendations. He stated that he consulted with both DOJ OPR and FBI OPR about his conclusions and received additional input from both. He stated that, because his recommendations were not consistent with those of DOJ OPR, he had notified Associate Deputy Attorney General Margolis of his decision. Colgate's memorandum stated that, for the reasons outlined in the April 17, 2000, memorandum from Sposato and Vail, he had decided discipline was not warranted, and he declined to adopt the OPR findings of misconduct. He stated:
My conclusion is based, in major part, upon my belief that, absent evidence of improper motive on the part of these individuals, shortcomings in their work products (if any) are typically dealt with through the performance management process, not through the application of discipline. In these cases, I am unwilling to ascribe improper motive to the employees, who in my view simply saw the issues differently from their [DOJ] OPR counterparts and therefore do not believe discipline is warranted.
As a result, no disciplinary action was taken against Harp for the allegations that he failed to ensure that the Walsh inquiry was complete and to supervise the production of accurate reports of interview. Similarly, no action was taken against Mathews for the allegation that he failed to properly recuse himself, for conducting an incomplete inquiry, and for making unsupported conclusions regarding the rules of engagement in his report in an attempt to insulate FBI leadership. Finally, the previously imposed discipline against Glenn and Rogers for their role in the promulgation of the rules of engagement was not rescinded.
Finally, Colgate's memorandum did not discuss Freeh or DOJ OPR's recommendation that Freeh be criticized for poor judgment. Margolis told us that, after discussions with Vail and Sposato, he told Colgate that he should consider formalizing his implicit decision not to recommend discipline for Freeh. Colgate told us that he thought that was unnecessary and did not do so because Freeh had admitted his mistakes and because Colgate did not believe that he had jurisdiction over a Presidential appointee.
On January 3, 2001, Margolis notified JMD and DOJ OPR that he had reviewed the material supplied to him by JMD and DOJ OPR and had concluded that the disposition proposed by Colgate "falls within [his] legitimate discretion." Margolis stated that JMD could therefore proceed to resolve the pending matters along the lines proposed in Colgate's memorandum.
We recognize that, at this point, there are well documented and strong disagreements about the disciplinary decisions ultimately reached in Ruby Ridge and that our independent assessment is unlikely to end the disagreements about the ultimate outcome. Numerous entities and individuals who were much closer to the events than we have weighed in with analysis and opinions, often reaching different conclusions. Nonetheless, we believe that there are important lessons to be learned from a review of the response to Ruby Ridge.
First, there is almost nothing about Ruby Ridge that worked well. The incident itself was replete with poor performance, poor judgment, misconduct, and acts of clear obstruction to cover up the problems. The FBI's initial investigation of the incident was at best grossly deficient and at worst intentionally slanted to protect the FBI and senior FBI officials. Subsequent investigations were more thorough, but the discipline process took so long and was so flawed that in the end, it is hard to say that a fair result was reached.
The ultimate disciplinary decision for the subjects of the second round of investigations was removed to the Department specifically to avoid any further allegations that the FBI was covering up the misconduct of its senior officials. Nonetheless, in the end, because of what we believe to be flawed analysis on the part of JMD, the appearance that culpable senior officials had "gotten off" remains.
There are no standards or internal Departmental regulations guiding a deciding official's actions in discipline matters. In this case, JMD used a different standard to evaluate the evidence than did DOJ OPR and FBI OPR. As Colgate's final memorandum made clear, JMD viewed the deficiencies as performance issues, not misconduct that required adverse action. DOJ OPR strongly objected, arguing that it is not necessary to find that the employee's breach of duty was motivated by an improper purpose; rather, it is necessary only to find that the employee engaged in conduct while knowing that the natural consequences of that conduct would result in the breach of an obligation or standard.
We, like DOJ OPR and FBI OPR, believe that it is not necessary to find a bad intent in order to impose discipline. Intent is a factor that may be considered when determining the appropriate discipline. Indeed, one of the factors relevant in determining a penalty, as outlined in the seminal case of Douglas v. Veteran's Administration, et al., 5 M.S.P.B.313 (April 10, 1981), is "whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain." The fact that inadvertence could be a factor to be considered in determining a penalty is a clear indication that discipline, not just a poor performance evaluation, may be appropriate in cases where bad intent has not been proven. Also, the Department has imposed discipline in other cases where intentional misconduct was not shown.
We also believe proof of intent should not be required because of the difficulty in proving the bad motive of any individual. Such proof is rarely direct and depends upon putting together circumstantial evidence. Where other credible evidence of misconduct exists, proof of intent should not be a requirement to impose discipline. In addition, treating poor performance only as a performance issue often means that significant neglect of duty will go unaddressed. By the time the misconduct investigation has been completed, the rating period will have passed and the employee's neglect of duty will not be accounted for. Therefore, we believe that future cases should be based on a standard that does not require proof of a bad motive.
Of course, even if JMD had used what we believe to be the appropriate standard, it is likely it would not have recommended discipline against Harp or Mathews. As expressed in JMD's report, JMD was heavily influenced by the passage of time and the inability of the Department to discipline the individuals who many believed were the more culpable individuals. This factor - the disciplining official's discomfort at imposing punishment on some individuals but not others - is present in other cases as well and can present a significant obstacle toward imposing discipline on mid-level managers. In general, senior officials are eligible for retirement and many escape punishment by retiring before the investigation is concluded. The appearance of a double standard is exacerbated when disciplining officials consider the absence of punishment for others as a mitigating factor when considering whether to discipline managers. We believe this should only be a significant factor when considering whether to discipline rank and file employees after more culpable managers have retired.
In at least one other complex matter in which JMD officials were the deciding officials for discipline, JMD argued that the passage of time was a mitigating factor. We believe that this view creates problems for investigative entities, which are obligated to conduct thorough and complete investigations. Ruby Ridge, in particular, was delayed by actions of the subjects that arguably impeded the initial investigation and by a criminal investigation. If the efforts of the investigators are in the end going to be wasted unless the investigation is completed within a specific time frame, then investigating entities need to be informed of the time frame and given sufficient resources to meet it.
We, like DOJ OPR, believe that Harp and Mathews should have been disciplined for failure to carry out their assigned duties - completing thorough and impartial inquiries - regardless of whether there was evidence of improper motivation. Moreover, like DOJ OPR, we believe that there was sufficient evidence in the record to sustain a finding that both men acted with an improper purpose. Harp acknowledged that the Walsh inquiry was incomplete but offered an explanation that DOJ OPR found lacked credibility. Moreover, Harp failed to notify anyone of the incompleteness of the inquiry. In our view, this fact, together with Harp's conduct with respect to the editing of the 302's, suggested, by a preponderance of the evidence, an improper purpose on Harp's part. We also believe that Mathews' failure to recuse himself despite his relationship with Coulson, taken together with his statements and the unsubstantiated findings in his report regarding approval of the rules of engagement, established by a preponderance of the evidence that Mathews conducted an inadequate investigation.
With respect to changing previously imposed discipline, we believe that Colgate should have cleared Glenn's record, as recommended by DOJ OPR. DOJ OPR investigated the process by which the FBI made disciplinary decisions after the issuance of the Mathews report and found that those decisions were made based on the unsupported assertion that on-scene commanders were responsible for approving the rules of engagement. Given DOJ OPR's findings that the rules of engagement were approved at the Headquarters level, we believe that the preferable course was for JMD to have taken action to correct a prior error in imposing discipline, regardless of the benefits of finality in the disciplinary process and the significant passage of time since the discipline had been imposed.
However, while we do not agree with Colgate's ultimate decisions, we believe they were made in good faith, after a careful review of the record. He had a difficult task that was unlikely to please everyone. Although we would have come out differently on the ultimate decisions he made, we do not believe he abused his discretion. Yet, we disagree with the basis for his decisions.
We also believe that Colgate should have addressed the issue of Freeh's conduct in Ruby Ridge. The issue was raised by both DOJ OPR and Jarcho and warranted explanation in Colgate's final decision, even if the explanation was why Colgate did not believe that discipline was appropriate. Like DOJ OPR, we do not agree with the opinion in the Vail/Sposato memorandum that Freeh's "judgments should not be the subject of discipline, no matter what others may think of them." We agree with DOJ OPR that such a statement creates a type of immunity for the Director of the FBI and suggests that his decisions cannot be reviewed for either misconduct or poor judgment. We therefore believe that Colgate should have explicitly addressed Freeh's role in the matter and explained his decision not to recommend any action regarding him.
Finally, although the ultimate decision in Ruby Ridge was made by JMD and not the FBI, we believe the effect of Colgate's decision was to exacerbate further the perception of a double standard in discipline for senior FBI officials. This was likely worsened by the fact that Colgate's decision rejected the lengthy and complex analyses in two separate reports by DOJ OPR and Jarcho with only a short, conclusory memorandum. In the end, the effect of his decision, particularly without sufficient explanation as to the reasoning and the evidence supporting it, was to feed the perception that several lower-level FBI employees were harshly disciplined and upper-level employees either retired or received no or light discipline. We believe this result contributed to the perception of a double standard of discipline in the FBI.
One aspect of Ruby Ridge and the Potts party investigation that has not been reviewed by the Department or FBI OPR was the promotions and bonuses given to FBI employees who were the subjects of internal Ruby Ridge investigations while the investigations were pending. While a presumption of innocence is usually appropriate while a subject is under investigation, rewarding a subject who is later found to have committed misconduct can result in adverse consequences. We believe the FBI should be mindful of the message it sends to both the investigators in a particular case and the rest of the FBI when subjects of investigation are promoted or receive bonuses or awards while under investigation. This is especially true where high-level officials are under investigation, because investigators may interpret the giving of an award as an indication that senior management has already judged the merits of the investigation.
A number of FBI officials under investigation for the Ruby Ridge matter received promotions and bonuses while the investigation was pending. The most well known of these promotions was of Potts to Deputy Director - a promotion that Freeh later acknowledged was poor judgment on his part. Our review of other promotions and bonuses reveal additional issues of concern.
Harp, Walsh, Mathews, Coulson, Kahoe, and Potts received either promotions or bonuses while under investigation for Ruby Ridge:
We asked former Director Freeh about these promotions and bonuses. He told us that the fact that someone is under investigation was not necessarily enough for him to disapprove a bonus. He stated that in many cases he would approve a bonus and leave it to the Department of Justice to disapprove it if they wanted. Freeh stated that the Department was free to disapprove any of his recommendations and had access to the information that might cause them to do so. Freeh also stated that the various Ruby Ridge investigations dragged on far too long, and he believed that he could not "leave people hanging" in terms of career advancement. Freeh told us that he is a "strong believer in the presumption of innocence even as applied in an administrative process." Freeh said that he spoke at length with FBI OPR Assistant Director DeFeo and felt that, given the facts developed by DOJ OPR to that point, it was not inappropriate to make personnel decisions regarding the subjects. Freeh stated that he repeatedly pushed the Attorney General to resolve Ruby Ridge one way or another. He also stated that he believed there had been insufficient diligence by the Department in resolving the matter. He told us that this delay put FBI employees in an intolerable position, especially employees like Harp and Mathews who were ultimately not disciplined by Colgate. Freeh added that he attempted to obtain relevant information about the facts of the investigation in making his decisions, but that the Department was reluctant to provide such information. Finally, he stated that there were many instances in which he did not make otherwise merited promotions because of a pending disciplinary inquiry.
It is true that the investigations of Ruby Ridge were lengthy and that the disciplinary process was extraordinarily slow. However, Freeh testified before a Senate subcommittee in October 1995 about the wisdom of his promotion of Potts to Deputy Director despite the finding that Potts had mishandled the crisis. He stated at that time: "Looking back, I recognize that I was not sufficiently sensitive to the appearance created by my decision to discipline and simultaneously promote Mr. Potts." See Hearing before the Senate Judiciary Committee, Subcommittee on Terrorism, Technology and Government Information, October 19, 1995. The DOJ OPR Ruby Ridge report put the problem more strongly:
We agree with the Director's own statement that he exhibited poor judgment in promoting Potts, not just because he failed to balance all the positive and negative factors, but because the promotions (both to Acting Deputy Director and to the full position) and their timing inevitably had the effect of sending a signal to the persons investigating the Ruby Ridge matter, that the Director had full confidence in Potts and that he might not be receptive to a report that strongly criticized the conduct of Potts. This action also sent a message to employees throughout the FBI, telling them that the Bureau was willing to overlook serious allegations of misconduct and even reward the subject of the allegations with a major promotion. Such a message inevitably had a damaging effect on the morale of the great majority of FBI personnel who take great pride in their integrity and in their adherence to high standards of professional conduct.
We agree with DOJ OPR that the promotions of individuals while under investigation for serious misconduct were troubling. In 1993 it should have been obvious that there were significant issues involving FBI personnel and by 1995 an ongoing criminal investigation should have made it even clearer that the allegations against certain individuals were serious. Despite Freeh's comment to the Senate subcommittee in October 1995 that he had not been sufficiently sensitive to appearances, he promoted Harp only two months later, followed by promotions for Walsh and Mathews. We believe that the FBI and Department components need to carefully consider whether to promote or grant awards to individuals who are under investigation. The Department should consider whether a Department official should approve awards and promotions for high-level individuals who are under investigation.27
In addition, we have serious concerns about various conflicts of interest surrounding these promotions. First, Potts sat on the Career Board that made recommendations to the Director on the promotions of Kahoe and Coulson. Given that the Ruby Ridge investigation still was ongoing at the time, it is shocking that neither Potts nor the FBI thought it improper for Potts to be involved in considering the promotions of individuals who were also subjects of the investigation. In addition, Potts sat on the Career Board considering Walsh for promotion just six months after Walsh completed his report on Potts' and others' actions at Ruby Ridge. Potts also sat on the Career Board that considered the promotion of Harp to the SES level just five months after Walsh's report, with great input from Harp, was completed. The appearance of a conflict should have been obvious. We asked Freeh about some of these conflicts. He responded that, in retrospect, Potts should not have been on those Career Boards.
Indeed, we found that the FBI's insensitivity to possible conflict issues was a common thread running through many cases. As noted previously, the FBI assigned Walsh and Mathews to investigate their friends. Also, Coyle was on the SES Board for the Potts party disciplinary matter. Although the FBI may believe that all personnel will attempt to act objectively even with respect to their close friends, we believe this view is not realistic and, in any case, such conflicts at a minimum feed the appearance of favoritism.