Do we really want citizens, even unpopular ones, treated this way?
We all want the FBI to be tough on criminals, and to avoid putting themselves in unnecessary jeopardy as they perform their often difficult and dangerous duties. But should there be reasonable limits to how they treat citizens who have yet to be convicted of a crime? Even if popular sentiment is running against those citizens? I think so, and allow me to explain why.
Here’s the context: In a series of high-profile blog posts (here and here), Chuck Rosenberg, the former Obama administration appointee turned pundit for MSNBC, said the massive FBI contingent deployed on January 25th to storm the home of Mueller probe suspect Roger Stone is “quite normal” for the agency. Rosenberg says this even though he admits that Stone has “no criminal record and is charged primarily with a white collar-ish sort of crime.”
Stone’s wife, Nydia, who was not charged with anything, says FBI agents burst into their bedroom and demanded “at gunpoint” that she get out of bed. The 72-year old she says was then “marched out to the street in front of [their] house wearing only a night gown and in bare feet.”
It was, she says, “humiliating,” and the “most terrifying thing [she had] ever experienced.” That and more was in a fundraising email (so consider that) from Mrs. Stone, and some details in it are mistaken (the agents didn’t have AK-47s), but to my knowledge the gist of her account of the raid hasn’t been much disputed.
What Rosenberg is defending as “wholly appropriate” is the use of as many as 29 agents – many whom were dressed up like soldiers and were holding assault rifles in a firing stance – to conduct a pre-dawn arrest in a quiet Ft. Lauderdale neighborhood.
(Remarkably, Rosenberg suggests even more law enforcement could have been present as local police may have been in a boat behind Stone’s home.)
Let me be clear: I’m no promoter of Stone – and I want to see him held accountable if the allegations are proven – but I also believe that endorsing the FBI’s handling of this particular arrest is a mistake. I’m convinced that in times like we are living through today it’s especially important to ensure that those among us who are accused of wrongdoing are treated fairly by law enforcement, irrespective of the accused’s popularity or lack of it.
The issue here is hardly a partisan one. Rather, the question is whether we should accept as “quite normal” heavily militarized policing being applied to those who have no criminal record or history of violence, including unarmed citizens in their sixties and seventies.
Rosenberg evidently believes it takes 29 heavily-armed and highly-trained law enforcement agents to subdue a 66 year-old man, and to stop him from destroying evidence (even though Stone had months to do so if he were so inclined). Rosenberg centers his excusal of the FBI’s behavior, however, on his assertion as a “fact” that “Stone threatened to kill a witness.” Actually, in this country, people are presumed innocent under the law. News flash – what may be in an indictment is a really just an allegation, not an established “fact.” Not even the FBI gets to be judge and jury…not yet anyway.
Perhaps more importantly, Mueller’s team apparently saw it differently than Rosenberg – and for good reason. I invite readers to examine that portion of the indictment Rosenberg is relying upon (page 20). If you do, my bet is that you’ll easily understand why, (despite Rosenberg’s contention that the words establish a threat to kill as an indisputable “fact”), Mueller’s team chose not to charge Stone with threatening a witness, even though there’s an explicit Federal statute readily available (18 U.S. Code § 1512 (a) (2)).
Among other things, I have to wonder if Rosenberg realizes that the so-called “threat” he relies upon – the hyperbolic phrase “prepare to die” – is a popular meme from the 1987 romantic comedy The Princess Bride.
And the words Rosenberg is citing are sandwiched in the indictment between allegations that Stone said his “lawyers are dying Rip [the witness] to shreds” and a warning that he, Stone, would file a “bar complaint” against the witness’ friend. No serious prosecutor would think those words in that context amount to a serious physical threat. Indeed, Stone’s physical harmlessness may be why a judge immediately released him on bail after the arrest.
Moreover, ask yourself this: doesn’t Rosenberg’s claim that Stone’s email tirades actually necessitated all this force ring rather hollow when one considers that no such display of FBI firepower was deployed for the many celebrity rants – including several alluding to violence – that have been made about the President? In my view, prosecutors understand that certain fulminations, while improper and possibly reflective of a process crime of some sort, are not to be taken as serious threats of physical violence.
Regardless, is the FBI really so awash in personnel and resources that they can dedicate 29 agents to an arrest of a single individual with no criminal record and who is charged “primarily with a white collar-ish sort of crime”? What example does that make for the thousands of police all over the nation who serve warrants on felons with records of actual convictions of violent crimes?
If it is “normal” to use 29+ heavily armed law enforcement agents to arrest someone with no history of violence, what does that say to local police overwhelmed with more than a million outstanding felony warrants? Pew Research Center tells us that “fully 86% of officers say their department does not have enough officers to adequately police the community.”
Pew also reports a troubling mindset among law enforcement personnel who support the kind of militarized tactics the FBI employed in the Stone case. Specifically, Pew’s research shows that those “more likely to endorse the use of aggressive or physically harsh tactics” are those “who feel they have grown more callous since starting their job.” They are also those who “say they are frequently angered or frustrated by their jobs” and “are more likely to have been involved in a physical or verbal confrontation with a citizen in the past month or to have fired their service weapon sometime in their careers.”
Accordingly, what then should we understand about the attitude of today’s FBI leaders when they choose to employ “aggressive or physically harsh tactics” in a case like this one? Have they grown “callous”? Are they “frequently angered or frustrated by their jobs”? Should we be concerned that they are “more likely” to generate a “confrontation with a citizen”? All of that is, or should be, concerning.
Hear me on this: lots of highly qualified, diligent FBI agents are serving with honor and this does not question their patriotism or their personal mindsets. What I’m disputing is the lack of appropriateness in scope displayed by the leaders who designed the raid.
If a 29-person entourage is normal law enforcement procedure, why does this report from NBC News show the U.S. Marshalls using teams of less than a dozen officers to capture as many as 300 often dangerous suspects every day? Moreover, why were only 12 FBI agents used in the “no-knock” raid to arrest Paul Manafort in 2017? In that operation a source told the Washington Times that “[a]gents felt up Mrs. Manafort lying in bed to see if she had guns.” It also said the source claimed:
The aggressive search of a prone sleepy woman is, the source said, a hallmark of Mr. Mueller’s top prosecutor, Andrew Weissmann. A former mob prosecutor in New York, he specializes in turning witnesses against bigger prey and is not afraid to make things rough for spouses, too.
“Weissmann will want to maximize the trauma to his family,” said Sidney Powell, a Dallas appeals attorney critical of his tactics.
As others have pointed out, the army of agents the FBI marshaled against Stone – an unarmed sexagenarian – exceeded the 25 Navy SEALs used not just to breach Osama Bin Laden’s compound in Abbottabad, Pakistan in 2011, but also to seize a trove of no less than 470,000 documents.
The SEALS did all that – plus engage in a deadly firefight – in just 40 minutes. (The FBI was at Stone’s house for hours.) And the Abbottabad operation was under circumstances where, as then CIA chief Leon Panetta tells us, it was assumed that Bin Laden “would have set up layers of defenses around a booby-trapped lair, posting sentries and guards, and perhaps digging escape tunnels or otherwise having an intricate escape plan.” Utterly none of that was present or anticipated in Stone’s case.
I appreciate that we shouldn’t expect civilian FBI agents to be on the level of the military’s elite Navy SEALs, but I would think they would be comparable to agents of the Naval Criminal Investigative Service (NCIS). NCIS only used about half (15) the number of armed agents the FBI employed against Stone to arrest Navy SEAL Edward “Eddie” Gallagher not on charges of “white collar-ish sort of crime,” as was Stone, but rather on accusations of serious war crimes including allegedly stabbing to the death a captured terrorist. Does the FBI really think that Roger Stone is potentially more dangerous than a highly-trained SEAL with the experience of multiple combat tours?
Safety and reputation of law enforcement
To reiterate, everyone wants FBI and other law enforcement officers to be safe. So let’s ask: does the use of SWAT team tactics like those employed in Stones’ case really protect law enforcement or reduce crime?
Decide for yourself: a study published by the last September by the Proceedings of the National Academy of Sciences shows that militarization of law enforcement “fails to enhance police safety or reduce crime but may harm police reputation”. The reputational harm ought to be of concern to the FBI since there are indications that public support is eroding, and even that most “likely voters” want a special prosecutor appointed to investigate it.
Moreover, Vox reported in 2015 that there are a “staggering 20,000 or more estimated no-knock [SWAT] raids every year across America,” and that the “SWAT raids are far more dangerous to civilians than they are to police.” Unlike the Manafort raid, Stone’s was not a “no-knock” operation, but last year the New York Times pointed out that:
The casualties [in SWAT raids] have occurred in the execution of no-knock warrants, which give the police prior judicial authority to force entry without notice, as well as warrants that require the police to knock and announce themselves before breaking down doors. Often, there is little difference. (Emphasis added.)
Additionally, was the raid conducted in a heavy-handed way in order to soften up the citizen for prosecutors? Typically, the element of surprise is necessary to preclude a suspect from fleeing or destroying evidence – and this requires what we call in the military “operations security” or OPSEC.
In Stone’s case, there obviously was no effective OPSEC as CNN was on the scene waiting for the FBI to arrive for the raid. In other words, if it were really true that the tactics employed were intended to keep Stone from fleeing (even though the government would know he had no valid passport) or from destroying evidence, he had plenty of time to do both given the tip-off the CNN presence provided.
Did the FBI have another motive for the way they conducted the raid? Some former FBI agents seem to suggest that may be the case. The Boston Herald quotes ex-FBI agent Peter Yachmetz as saying the raid was “was inappropriate and improper,” adding that the FBI was “trying to get a point across and it was leaked to CNN. Why?” The Herald further reported:
It’s a message for everyone else connected to the investigation,” said retired FBI supervisory special agent Todd Hulsey. “They are saying, ‘If you think we have something on you, we are going to get you.’ And it’s going to be an unpleasant arrest.
“Basically, it’s a pressure tactic,” Hulsey added. “Mueller and his people want to raise their stress level and cause people to cooperate.”
So how did CNN know about the raid in advance? It says “it camped outside Stone’s house with cameras because of unusual activity reporters had noticed at the D.C. federal courthouse and the special counsel’s office.” You be the judge: are we to believe the FBI (and Mueller’s team) are so unskilled at OPSEC so as to be so obvious with their intentions, or was the activity meant to make sure the media was present in order to humiliate and pressure the citizen and his wife?
I don’t know Stone, but I do get why some (many?) people dislike him. But should distaste for a citizen influence how he is treated by law enforcement? Should the FBI be squandering resources on apprehending someone with “no criminal record and [who] is charged primarily with a white collar-ish sort of crime,” when hundreds of thousands of dangerous felons are loose in this country?
Senator Lindsey Graham has rightly asked the DoJ important questions about the raid, and we ought to carefully examine the responses.
No one disputes that we need a strong and professional FBI to counter the complex range of dangerous threats in the world today. But as with any powerful governmental entity, we also need to scrutinize its activities – even when the target of them is distasteful to so many. As Graham recently said of the FBI, “Someone needs to watch those that watch us.”
This ought to be a concern for everybody, irrespective of where one may be on the political spectrum. Are we not to speak out merely because – this time – the government happened to be coming for someone perceived by some partisans as unlikable? What if it did become acceptable and standard practice, “the norm,” in our country? Think about it.
Still, as we like to say at Lawfire®, check the facts, assess the law and the arguments, and decide for yourself!