Putting the FBI In the Dock

Felony crimes were pulled off literally under the noses of FBI agents, but for decades not a single arrest was made. The reason? The offenses--burglaries, unauthorized wiretaps, mail thefts and assorted other illegal dirty tricks--were committed by agents of the Federal Bureau of Investigation, pursuing real or imagined enemies of the country on orders from their superiors.

Last week, the first felony indictment of an agent in the bureau's 69-year history was returned by a New York City grand jury. John J. Kearney, 55, a retired FBI special-unit supervisor, was named on five counts of illegal wiretapping, conspiracy and intercepting mail in the course of a futile hunt for Weather Underground terrorists between 1970 and 1972. Additional indictments of FBI officials, possibly reaching as high as the assistant director level, are expected soon. The message: Violations of the law, even in the name of law enforcement, are no longer to be automatically tolerated among federal agents.

Dirty Dozen. Attorney General Griffin Bell announced the Kearney indictment after informing Jimmy Carter. The yearlong investigation of Kearney and other agents was led by J. Stanley Pottinger, assistant Attorney General for civil rights under Presidents Nixon and Ford. Last year FBI Director Clarence Kelley assured Congress that all bureau abuses had been uncovered. But then a Socialist Workers Party lawsuit produced new, damning evidence of repeated "black bag jobs," or illegal break-ins, by FBI agents in several cities. Pottinger was permitted to assemble a task force of Justice Department lawyers and FBI agents to probe bureau excesses, starting in New York. The inquiring agents were quickly labeled "the dirty dozen" by their colleagues. They discovered a detailed list of extraordinary activities by agents, many of which were illegal, in a safe maintained by John F. Malone, a stolid G-man nicknamed "Cement Head," who headed the New York FBI office until 1975. More than 20 agents were granted immunity in return for testimony about their superiors.

The investigation focused on members of the New York office's Squad 47, which was assigned to investigate radical groups, and is alleged to have regularly pilfered letters from relatives and friends of suspected terrorist fugitives. The indictment charges that in carrying out "the mail run," as the agents came to call it, they used illegally obtained mailbox keys and opened the letters at FBI headquarters in Manhattan with a "steamer"--a device that allows resealing without evidence of tampering. Agents also tapped phones of numerous eavesdropping targets without obtaining required court permission. Despite those efforts, they failed to turn up Bernardine Dohrn or other Weather Underground fugitives accused of complicity in various protest bombing attacks.

Ironically, the Kearney indictment came twelve weeks after the Justice Department dropped its inquiry into the illegal opening of more than 200,000 letters by CIA agents from 1953 to 1973. The outcome of the Kearney case, and others likely to follow, is difficult to predict. When--and indeed if--the case actually comes to trial, notes Washington Attorney Edward P. Morgan, it will still be doubtful "whether an American jury will convict an FBI man for trying to combat terrorism."

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