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Burden of Proof

The Future of the FBI

Aired December 20, 2000 - 12:33 p.m. ET



JANET RENO, U.S. ATTORNEY GENERAL: We want to do everything we can to make sure that we are taking steps to bring these people to justice.

LOUIS FREEH, FBI DIRECTOR: He used an elaborate scheme to move the equivalent, as you've heard today, twice, 400,000 pages of extremely sensitive nuclear weapons files.

UNIDENTIFIED MALE: Eric Robert Rudolph has been charged with that bombing, as well as two other Atlanta-area bombings and the fatal bombing in Birmingham in January 1998.


GRETA VAN SUSTEREN, CO-HOST: The FBI, Louis Freeh and the Bush administration. Is anything going to change?

ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. And Roger has a well-deserved day off.

The times they are a-changing as the new kid on the block plans his move to the White House and stocks his Cabinet. So with all this shifting around, what happens to the FBI?

Joining us in Detroit is FBI historian Susan Rosenfeld. In New York state -- in New York, state Attorney General Eliot Spitzer. And in Houston, former FBI Special Agent Don Clark. Here in Washington, Brian Jones (ph); Ronald Kessler, who's the author of "The FBI: Inside the World's Most Powerful Law Enforcement Agency"; and Crystal Galny (ph).

And in our back row, Hadiza Buget (ph) and Mark Rodeffer (ph).

Let me go first to you, Ron. The FBI chief, Louis Freeh, is that an appointed job for a term?

RONALD KESSLER, AUTHOR, "THE FBI": There is a limit, which is going to expire in 2003. There's sort of a tradition of not replacing FBI directors so that it doesn't look like that position is political. But, in fact, Freeh has been talking about leaving, going to the private sector. Bush will want to bring in his own person. I'm quite sure that that will happen. I believe Jack Lion (ph) will be the new director. He's a former San Antonio special agent in charge, later was head of the DEA, supervised one of the most successful investigations in FBI history involving the murder of Judge Wood in San Antonio.

VAN SUSTEREN: Are you suggesting, Ron, that Louis Freeh is likely to resign before the end of his term?

KESSLER: Yes. The term is just -- is a limit. And of course he can resign when he wants. He's been there since 1993. He has presided over so many debacles, or debacles, and Bush, I think, wants someone in there who will be more competent.

VAN SUSTEREN: Susan, how long have we had terms for the head of the FBI, and why do we have them?

SUSAN ROSENFELD, FBI HISTORIAN: Oh, well, terms for the FBI started in around 1968 when they decided first that the president should appoint the director. Actually, before that it was the attorney general. And then William Webster was the first appointee to have to have a limit of 10 years. And that was done not to coincide with presidential administrations. But, as Ron said, it looks like that most new presidents want to have their own people in.

VAN SUSTEREN: Susan, was there some event, though, that precipitated the decision to have terms?

ROSENFELD: Absolutely. J. Edgar Hoover had been director of the FBI for 48 years and had amassed a tremendous amount of power. It was literally impossible to fire him, although both Lyndon Johnson and Richard Nixon talked about it, at least with their aides. But because of that, they decided they did not want anyone else in government to amass the kind of power that he had.

VAN SUSTEREN: Eliot, what do you envision as sort of the dynamics with a new attorney general and with Louis Freeh, assuming that he stays on for his full term as head of the FBI?

ELIOT SPITZER, NEW YORK ATTORNEY GENERAL: Well, first of all, let me defend Judge Freeh. There was a reference to the debacles during his term. I think he's really been a superb FBI director. It is impossible to run an agency that large for that many years without there being some problems. I think the dynamic will revolve around independence. The FBI wants to be independent of Justice. It doesn't want to feel that somehow it is being guided to -- with too heavy a hand. It doesn't want to feel the pressure of the politics that it believes goes on within the Justice Department.

And I think Judge Freeh -- I refer to him that way because he had been a judge -- Judge Freeh really spoke to that and he tried to maintain his distance from Janet Reno. There was a tension as a result. I think that same tension will exist if there's a new attorney general, as there will be, who comes in and tries to exert control over the FBI. VAN SUSTEREN: Eliot, do you think, though, there's necessarily a problem with the tension between two important law enforcement agencies, or may there be something sort of healthy and good for the rest of us?

SPITZER: I think there's a healthy dynamic there. I think that if the FBI were under the thumb of the Department of Justice in too extreme a way, then we would all be concerned about whether the FBI was being used, perhaps abused, by political forces to pursue investigations that were not really directed towards pure law enforcement. I think there's a healthy dynamic that emerges when you have two strong individuals who play out that tension, who observe each other's independence, each of them conscious of the constraints within which he or she is supposed to operate.

VAN SUSTEREN: Don, you were in the FBI for a number of years. Does it make a difference to the field agents who's the director of the FBI?

DON CLARK, FORMER FBI SPECIAL AGENT: Oh, I think it makes a difference initially who the director is because everybody will have their own opinion about it. But, Greta, one of the key things here is that the importance is that the FBI's success has been because of its independence and its ability to identify crime problems and address those crime problems. I think that will continue no matter who the president might be. As it has been explained, the director only has a 10-year term, and clearly a president of a particular party will appoint -- in this case it will be Mr. Bush who will appoint another director.

But once that person is on board, then I think the crime problems will be identified, they'll work with the Department of Justice to do what we've done so well. And keep in mind the mission of the FBI is really set by Congress and by statute. And that's what the FBI has been good at doing, is following those statutes to investigate all the variety of crimes that we've been involved in over the years.

VAN SUSTEREN: All right, next -- we're going to take a break -- background checks. Could you pass one? We'll talk about how the FBI goes about shaking those skeletons out of the closet.


Hawaii has become the ninth state to legalize medical marijuana. The state announced its rules Tuesday, allowing certified patients to possess up to three ounces and grow up to seven plants. The U.S. Supreme Court agreed last month to review the conflict between state and federal laws concerning medical marijuana.



VAN SUSTEREN: While the president-elect interviews his Cabinet candidates, the FBI is busy checking them out.

Ron, I want to start at the top. President-elect George W. Bush. Does he get a background check?

KESSLER: No, he is free and clear. He was appointed by the people, essentially under the Constitution, and nobody can overrule that. Therefore, he's the only person who does not get a background check.

VAN SUSTEREN: How about the vice president?

KESSLER: No, same.

VAN SUSTEREN: Are those the only two? I mean, if I go down the totem pole, do I now start get the people...

KESSLER: Anybody who is appointed by the president at a high- level does get a background check.

VAN SUSTEREN: Susan, the background checks, does the FBI actually OK someone or is it just gathering information?

ROSENFELD: The FBI really just gathers the information, and then they prepare a summary, and that's really important, they don't send the files over to the transition team, or to the White House. They will send over a summary, in which they just say what the information that they came up with is.

But when people say they've been cleared by the FBI, they really haven't been. It just means that, perhaps, if the FBI did turn up any derogatory information, they found that they couldn't verify it or it just didn't matter to whoever does the appointment.

VAN SUSTEREN: Don, have you ever done, as an FBI agent, have you ever done these FBI clearances, not clearances, but what Susan describe them.

CLARK: Greta, yes, we've done a lot, and we have managed a lot of these. And these are the times that these are not complex investigations, but it is so important that the FBI agents are precise in their collection of information that they gather.

Of all the cases that we do, there is no decision made by the FBI, but important is that they collect the information and put it in readable fashion, that it is forwarded on so that someone else can make it.

They have to have an opportunity to expand, and I'm sure that the field agents will get together with people back at headquarters in Washington, as well as the Department of Justice, and determine if there's some information that developed during the course of these investigations that requires some expansion, because these have to be detailed and very precise investigations.

VAN SUSTEREN: Eliot, go ahead.

SPITZER: The point that I think is most interesting here is that the FBI gathers an enormous volume of data, then it really becomes a question of: What is the public's standard? Let's presume nobody is a spy, there is nothing egregious here. Remember what happened when President Clinton was appointing his attorneys general, attempting to appoint attorneys general. The issue of having a baby-sitter with respect to whom one hadn't certain taxes, made certain deductions.

Prior to that, there was the issue of when somebody was nominated to the Supreme Court, and it became clear that that individual had used marijuana during college or law school. Once those issues are out there, it appeared that there's a spasm, there is a focus on, and then sometimes the standard shifts.

And so I think it is going to will be interesting to see what issue. if any, emerges here, not because there is sort of rank criminal conduct, not because anybody -- very fine people have been put forth, not because any of them has a real security problem, but where has there been contact with the law, where our standards are changing, or perhaps there will be an issue that emerges.

VAN SUSTEREN: Eliot, as the attorney general of the state of New York, your assistants have had security checks; right?

SPITZER: Yes, absolutely.

VAN SUSTEREN: Is marijuana, is that a disqualified?

SPITZER: Well, it depends, quite frankly, when the use was. I mean, we now live in an era where I believe many elected officials have said that at prior times in their life they have used drugs that were not legal, and what we have done is craft a form that is used across the state and many places across the country, which is very specific with respect to time, saying once you've been a lawyer, once you have been in law school, then any illegal conduct is hot permissible.

But, again, we try not to -- and I think most agencies are like this, delve back to what somebody did 30, 40 years ago.

VAN SUSTEREN: Ron, let me ask you the question...

KESSLER: In the FBI, Freeh actually relaxed the standards for new FBI agents so that if they took cocaine more than 10 years ago I think they could still be accepted as agents.

VAN SUSTEREN: Ron, let me ask you a question. When I was an intern in the U.S. Attorney's Office back in 1978, they did a security clearance on me, which took probably all of five minutes. They sent out letters, I think, to my school. But there are different security clearances for different levels of jobs, is that right?

KESSLER: That's right.

VAN SUSTEREN: And I take it that mine is the bottom of the totem pole, intern. Now what is the most intensive security clearance that is done?

KESSLER: That would involve classified information if someone has access to very high levels of classified information, top secret and beyond.

VAN SUSTEREN: Are you asking, like have you ever had contacts with spies? are you asking about marijuana use? are you asking about financial? what are you asking?

KESSLER: Really anything that could compromise the individual, used as blackmail, that would mean that the person might be looking for bribes. So at a high-level, let's say National Security Council, State Department, Cabinet officer, they do have top secret clearance and beyond, and so they would get the very highest level of investigation.

VAN SUSTEREN: Susan, what if someone is really talented, really good, no prior convictions, no marijuana use, no nothing, but has very bad credit, then what?

ROSENFELD: I'm going to just guess on this, but I would think is that somebody with bad credit, or who owes a lot of money, perhaps someone who might have a gambling habit and have had some problems that way, could possibly be a candidate for blackmail. And I think that the people who do the appointing would look very, very seriously at it.

VAN SUSTEREN: Don, what happens when someone lies about a question, like have you ever used marijuana?

CLARK: Well, the question here is character, and what the total of the background investigation is trying to develop is information that someone can make a judgment of this particular person's character, and if it has been determined that a person has lied, on any particular issue, whether it is use of a controlled substance or anything else, that information is going to be forwarded to the people who will be ultimately making the decision, and then they are going to have to determine: Is this the character of person that should be serving in such position?

VAN SUSTEREN: We are going to take a break. Up next, Eric Rudolph, organized crime and child molesters. Stay with us.


Q: When the Federal Bureau of Investigation was founded in 1908 it was an unnamed force of special agents. In 1909, it was name the Bureau of investigations.

When did the agency officially receive its present title of Federal Bureau of Investigation?

A: 1935.



VAN SUSTEREN: Welcome back, let's look at some of the ongoing cases the FBI will carry into the new administration. Eliot, let me go to you on some of these investigations, the USS Cole is one; Eric Rudolph, who has been on the lam, is another. Do you think that it really makes any difference in those investigations whether we have a new president, and whether Louis Freeh stays or not?

SPITZER: I think the answer is no, and I think the answer is that it shouldn't matter because these are investigations being run by the assistants in the field, by the agents in charge of their field offices.

These, of course, critical decisions can also be made at the very top, but these are investigations that will be run by professionals, have nothing to do with politics, having everything to do with good law enforcement, and it really doesn't matters in those cases who the president is.

VAN SUSTEREN: All right, Susan, let me ask you about the issue of politics. What is the relationship between the president and with the head of the FBI? And is it a different one, I assume, based on who is the head of the FBI and who is the president?

ROSENFELD: I think today usually the president goes right through the attorney general, which is a change from Hoover's day when, except for John Kennedy, presidents went right straight to J. Edgar Hoover. With Kennedy, he had his brother as attorney general, and he insisted that Hoover go through Bobby Kennedy.

But, today, the relationship between the president and the head of the FBI is usually one removed with the attorney general.

VAN SUSTEREN: Ron, is there like a Chinese wall between the president and the head of the FBI now?

KESSLER: No, except, you know, there are some matters that obviously would not be appropriate to discuss, for example, the pending investigation of Clinton by the FBI. But, in other cases, it is very important for them to meet and cooperate.

I agree with what Eliot and Don said about the FBI pursuing its investigations regardless of who is in charge. It is a professional bureaucracy that goes on regardless.

But, On the other hand, the leader of the FBI does make decisions that are important, and when you look at a lot of the problems that the FBI has had...

VAN SUSTEREN: What problems are you talking about? You mentioned that earlier in the show, what one?

KESSLER: Wen Ho Lee.

VAN SUSTEREN: Let's talk about that, like the Wen Ho Lee. It is easy to say it is FBI. As I recall, isn't it an agent, or maybe even a couple of agents...

KESSLER: It is all supervised by headquarters and by Freeh. Freeh has been a micromanager.

VAN SUSTEREN: Do you blame Freeh? Is Freeh held accountable, as I recall in Wen Ho Lee, there was an agent who misrepresented, some people say lied, on the witness stand, which caused a great deal of sadness for the Went Ho Lee family and was plain wrong. But given that, do you put that problem at the feet of Louie Freeh?

KESSLER: I do because, first of all, he got rid of a lot of the real experienced professionals in the Chinese section. So the result was that he had these very inexperienced agents who knew nothing about counter-intelligence, who were not well supervised. And that was part of the problem. The other part is that Freeh allowed this indictment to go forward, you know, recommend that Wen Ho Lee be indicted, when it was very clear at the time that there was not sufficient evidence.

SPITZER: Let me jump in for a second. I don't know Louie Freeh well, but I do know that he is a man of the utmost integrity and good judgment. He was a judge and an agent and the FBI prosecutor, and this is a guy -- and I think, inevitably, if you are at the top, you are held accountable. But nonetheless, when you look back at his tenure. I think it is a tenure of dramatic successes by the FBI.

Does it, like every agency, have problems? Are there problems at the labs? Are there some agents who not perfect? Of course. But I think that Louie Freeh has run an agency with integrity, he has tried to do always what is correct, keeping away the politics that have been very difficult. It has been thicket down there.

VAN SUSTEREN: And that always raised the interesting question, which is probably good material for a series of shows as to what extent do we hold people accountable for problems within -- guess what, today I get the last word because it does mean a whole other show, and we don't have any more time.

KESSLER: If you look in the case, you find Louie Freeh involved in almost all of them.

VAN SUSTEREN: All right with two different viewpoints on Louie Freeh. But that's all the time we have for today. Thanks to our guests, and thank you for watching.

Join me at 8:30 tonight for CNN's new show, "THE POINT." When George W. Bush comes to Washington, he brings more than just a new vision and a Cabinet. Tonight, who are his friends? What will the new culture be like? And, oh, about those 6,000 jobs that need to be filled, he's got a lot of work to do.

We'll be back tomorrow with another edition of BURDEN OF PROOF.



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