Botching The Big Case Missing documents surface, McVeigh's execution is delayed, and the FBI is left scrambling to explain its latest fiasco

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Even war criminals usually go to the trouble of claiming some moral justification for their crimes, some moral equivalence with their enemies. Timothy McVeigh argued that the arrogance of the Federal Government, the government that wanted to take his guns and cramp his rights, was so vast and so dangerous that he needed to blow up a building, start a revolution. "I did it for the larger good," he claimed, and if innocent people had to die, well, that's what happens in war. He called the 19 dead children "collateral damage," and bragged that even if he is executed, he still wins: the final score will be 168 to 1.

And so the last thing that anyone in the government, anyone in law enforcement and above all any of McVeigh's surviving victims could abide was anything that might give him satisfaction or lend his theories of moral equivalence a veneer of legitimacy. They wanted to take away his platform. Most were ready for him to die, and the execution had the makings of an awful circus: 1,600 reporters were booking rooms in Terre Haute, Ind., for next Wednesday. "Good morning, America, it's time to kill a killer, but first, this is Today." All those cameras, all those talking heads and the countdown clocks would guarantee the insane intimacy of this might-as-well-be-public execution.

Then the FBI revealed that it had suddenly found 3,135 documents about the Oklahoma City bombing investigation that McVeigh's defense lawyers had never seen, and Attorney General John Ashcroft stopped the clock. The problem was not that there were doubts about McVeigh's guilt; he has admitted that. This was not the discovery of some sinister plot, Justice officials insisted--just human error, maybe a computer glitch. But it was another bomb exploding nonetheless. Ashcroft looked drained and solemn as he announced that McVeigh's execution would be postponed for a month so his defense lawyers could review the documents. "I believe the Attorney General has a more important duty than the prosecution of any single case, as painful as that may be to our nation," Ashcroft said. "If any questions or doubts remain about this case, it would cast a permanent cloud over justice, diminishing its value and questioning its integrity."

President Bush had a message for McVeigh, and for anyone else who would try to make him a martyr to those questions and doubts. He said McVeigh is "lucky to be in America. That this is a country who will bend over backwards to make sure that his constitutional rights are guaranteed." But that was small consolation to the victims' families, the parents and children and spouses whom McVeigh derides as the "woe is me" crowd, to whom he has never shown the least regret, other than that there were not more of them killed, that he did not bring down the entire Alfred P. Murrah Federal Building. They imagine him sitting in prison, rubbing his hands together, feeling as if it were Christmas. "This is playing right into his hand," says Paul Howell, who lost his 27-year-old daughter Karen. "He can go in there and say, 'Guys, I told you the Federal Government is all screwed up.' This could hurt a lot of people, and it will hurt the FBI."

That, of course, was McVeigh's goal all along, the one he and his fellows in arms were never going to achieve on the battlefields that stretched from Ruby Ridge to Waco to Oklahoma City: the crusade to turn citizens against a tyrannous government. Through mistakes, misjudgment and misconduct, the feds have, over time, done damage to themselves worse than any McVeigh could have inflicted in his poisonous revolutionary dreams. "This clearly nudges [the FBI] off its pedestal," says Oklahoma Governor Frank Keating.

The McVeigh fiasco comes just as the FBI is having to defend itself against charges that it is capable of brutal indifference to individual rights if it feels justified by some larger goal. It's hard even to say which was the worst of the recent crop of federal offenses, though the McVeigh blunder probably doesn't make the top five. Two weeks ago, officials from the Boston FBI field office were hauled before the House Committee on Government Reform to explain why they had allowed Joseph Salvati to spend 30 years in prison for a murder they knew he didn't commit, just to protect one of their informants. "The Federal Government determined that Joe Salvati's life was expendable," said his lawyer Victor Garo. Asked if he felt any remorse for what they had done to Salvati and his family, retired Boston agent H. Paul Rico said: "What do you want, tears?"

That same week, prosecutors in Alabama finally convicted the Klansman who bombed the black church in Birmingham back in 1963, killing four little girls. We could have done this years ago, they said, if the FBI had just handed over their secret tapes that proved his guilt. That conviction came after months of criticism that the FBI had dismissed warnings of a mole in its ranks right up until they tripped over Russian spy Robert Hanssen, an agent for 25 years. Last month the bureau announced a mediation agreement with African-American agents in a long-running class action charging bias in promotions. Last year there was the relentless pursuit of Wen Ho Lee, the Los Alamos scientist who spent nine months in jail after an immense FBI mole hunt, only to be released by a judge who said his imprisonment had "embarrassed our entire nation and each of us who is a citizen of it." To say nothing of Richard Jewell.

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As for the mysterious missing McVeigh documents, this was the FBI's biggest case ever--an $82 million effort that at one time occupied half the agents in the entire bureau--and the bureau still couldn't get it right. It is easy to blame FBI officials for all this, but there are reasons that stretch well beyond their control. For years they have been chasing a moving target. First the mission was to catch bank robbers, kidnappers and Russian spies; then came the war on drugs, then on racketeers, then on Islamic terrorists. Then came campaign contributions from Chinese nationals, and meanwhile those Russian spies were back. The bureau lurched and lunged from task to task but had trouble keeping up, while open borders, open markets and open computer networks made the job ever harder.

So has our deep ambivalence, our awkward love for both order and liberty. We don't want people stockpiling weapons and holding children hostage in Texas religious sects, but we don't want tanks firing on church camps in Waco either. We want something done about hate groups, but we don't want FBI sharpshooters killing militants' wives on Idaho mountaintops. We don't want China stealing our nuclear secrets, but we don't want a racial-profiling witch hunt. We don't want organized crime to hide its computer files online, but we don't like the idea that the FBI has developed a way to read our e-mail. Much more than in Congress or the White House, the FBI--like the Justice Department of which it is part--is a place where our values are daily in collision.

And that leads to a third problem: the time-honored, nonsensical way we choose FBI directors. No self-respecting mayor would pick a police chief who had never been a cop. It would be counterintuitive for any large enterprise, but it is dangerous in an organization in which people wear guns to work and have the power to put other people in jail. But the habit, shared by Presidents and cheered by the press, is to select an FBI director who knows virtually nothing about managing a 28,000-strong institution like the FBI--that secretive, hidebound clerisy. The last three FBI directors have been federal judges, wisemen trained to balance law enforcement with civil liberties. Judges are good at that, but they also spend most of their days in the presence of a clerk or two, and have never run a complex bureaucracy with enormous power to trample individual liberties.

Keeping scattered agents in line is all the harder when each field office is its own fiefdom. Individual agents have tremendous autonomy; they depend so much on their secret informants that they resist sharing information up and down the food chain. That need-to-know mentality has suffused the whole bureau; agents investigating Wen Ho Lee didn't even know that he and his wife had been paid FBI informants a few years earlier. During Louis Freeh's eight-year tenure (he is stepping down next month), the bureau was often at war with the Clinton Justice Department, largely over Janet Reno's hands-off approach to the serial Clinton scandals. Congressional Republicans cheered Freeh on--and gave him little oversight. There was plenty of fresh young talent entering the ranks, but mid- and senior management was a huge problem, as veteran agents left for better-paying jobs or were driven out by the politics of the place. "This is not a guy who breeds healthy skepticism and dissent," says a Clinton White House official of Freeh. "He got rid of a lot of people. He surrounded himself with yes men, and he believes in his own righteousness. And therefore people don't stop to think and say, 'Hey Louie? Are we doing this right?' This is a pretty monumental screw-up, and it feels like no one was in charge."

"How did it happen?" aides said Bush asked Friday morning. "Why are we finding out now?" Which were trenchant questions, given the fact that this was the biggest investigation the FBI had ever pursued and that McVeigh was just six days away from execution. The discovery rules had been set at the start of the case: Turn over to McVeigh's defense everything you find, which ultimately amounted to 43,500 leads, 28,000 interviews, 7,000 lbs. of evidence and 15,661 leads on the phantom accomplice known as John Doe No. 2. It was an extraordinary deal between prosecutors and the defense, this total disclosure of even marginal material; but it was designed to instill the greatest possible public confidence in the outcome of a trial of homegrown terror--an act staged in supposed retaliation for questionable acts by federal officials, like Waco and the Ruby Ridge shootings.

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Last December FBI headquarters, for the fifth time, ordered that all the Oklahoma-bombing documents be permanently archived. As material flowed in from the field offices, the archivist realized some of it had never been put in the main case file and shared with defense lawyers. Not until Tuesday were McVeigh's lawyers notified--and even then FBI officials waited two more days to analyze the documents before telling Freeh; they were ashen as they left his office. He was, says one insider, "absolutely tear-ass." Bush and Ashcroft learned Thursday as well, and immediately after Ashcroft's Friday press conference, officials from the Justice Department Inspector General's office descended on the bureau to investigate what had gone wrong.

FBI officials blamed an antiquated computer-database system: "Our technology is so old and unreliable, we don't know what we know," said one. Yet a former senior Justice official called it "beyond amazing" that the FBI would commit such a blunder in its most high-profile case in years--especially after similar charges of mishandling evidence were leveled during the investigation of Clinton's campaign-finance scandals and led to a sweeping internal probe. "It's a problem the bureau has had for a long time," the official noted. "Agents are great at acquiring information; they're not great at cataloging it or knowing what they have." What was especially troubling was that the mistakes were so widespread. Fully 46 of 56 FBI field offices, from Houston to Honolulu and Atlanta to Anchorage, failed to turn over everything they had on the case--in some instances it appears that the Special Agents in Charge decided on their own that some dutiful reports were unimportant. "The thing that flabbergasts me--and makes me think that more inquiry is required here--is that this was not just one office," says a Justice veteran. "This was the whole damn bureau. I can't figure out how so many people ignored the rules."

No one suggests that the retrieved documents would have changed the outcome of the case. But the confusion still had its costs because the public, even in its angriest moments, wanted this all handled fairly. "It's heartbreaking," says the Justice veteran. "The country needs for this to be over. We tried to put the very best people on this case, the best prosecutors. We really tried hard. The main thing we wanted was an error-free environment."

In any capital case, the stakes are by definition as high as they can be. With this latest misstep, the doubts about the process are threatening to help reshape the whole death-penalty debate. The prospect of McVeigh's execution had already made every argument get up and dance. Just as capital punishment was losing support with each new innocent man freed by DNA evidence, along came the perfect villain: so clearly guilty, unrepentant and pitiless that at least 75% of Americans agreed with his sentence, including 22% who say they oppose the death penalty but would make an exception for him. The Pope had asked for mercy; most Americans didn't think McVeigh deserved any.

But last week the debate, with its sudden plot twist, turned inside out once again. Death-penalty opponents seized on the FBI's embarrassing revelation to argue that when the stakes are this high, justice must be perfect. The moment Ashcroft announced the delay, questions flew. What if these documents had turned up six days after his execution, rather than six days before? McVeigh admitted his guilt, but death row is full of inmates who have not. How much doubt can the criminal justice system withstand? "The events of the past three days demonstrate that even in Mr. McVeigh's case, the government is not capable of carrying out the death penalty in a fair and just manner," said McVeigh lawyer Robert Nigh.

McVeigh's execution had all along promised to rattle our thoughts about justice, simply by virtue of being the most closely watched, widely discussed, endlessly publicized execution in a generation. We are already involved: we "know" McVeigh. However mysterious his motives, he is still far more familiar than anyone America has executed in decades. We know that we were all his targets--that's how terrorism is supposed to work. In return, we were going to hear all about his last meal, his last words, at last.

That sense of closeness was affecting even the bombing survivors. Randy Ledger was a maintenance man on the first floor of the Murrah building. His views on the death penalty have been challenged by this process. "Six months ago, I would have said it was fine. But the more personal this becomes, the closer it becomes, the more moderate I become. It's very easy to say, 'Just put to death another murderer' when you have no personal feeling involved; but the closer this gets, the more introspective I get--morally and spiritually--and it's very difficult."

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Even if the FBI's conduct proves to have been more careless than venal, the charges call attention to more serious problems that have led to 95 exonerations in capital cases since 1973, problems such as corrupt prosecutors, lying jailhouse snitches, incompetent forensic experts, junk science and racial prejudice. Will people be prepared to support the next execution if they have even the faintest doubts about the last?

On Friday there were more visitors than usual to the memorial at the site of the bombing in Oklahoma City. Ellen Bailey, 74, hoped that the extra time "might help convince McVeigh to say he's sorry." For his part, her son Larry is typical of many others: he opposes the death penalty but not this time. "I'm for it. I'm hoping it will give the victims closure." Beth Carpenter had worked in the building until the month before the bombing and lost scores of friends. She was distraught at the news of the delay. "He deserves to be executed," she said. "I don't want to see him anymore." As for McVeigh, he could look forward to some long sessions with his lawyers and boxes and boxes of papers. But if last week just delayed the inevitable, he is ready. He had worked out all the details, down to where he wanted his ashes scattered. His lawyers deny rumors that he wants them left at the scene of his crime.

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