Bureaucrats With Berettas
It’s a morning Kenneth Wright will never forget: 15 armed agents break in his front door and grab him by the neck, still in the boxer shorts he slept in. For six hours, a handcuffed Wright sat in a cruiser parked outside with his three children, ages 3, 7, and 11, while agents searched his house.
“They put me in handcuffs in that hot patrol car for six hours, traumatizing my kids,” the Stockton, Calif., resident told a local news outlet at the time.
Drugs? Weapons? Domestic violence? No. As Wright later found out, his gun-toting visitors were from the Department of Education’s Office of Inspector General (OIG). What the neighbors mistook as a S.W.A.T. team raid was really the execution of a search warrant in a student loan fraud case involving Wright’s wife, who wasn’t even there at the time.
“They busted down my door for this,” he exclaimed, “it wasn’t even me.”
The Department of Education took a drubbing from conservative and libertarian media but was unrepentant in its explanation. It offered no information on what the search warrant was for, other than to say that the OIG got it signed by a federal judge, and that the OIG routinely executes warrants for bribery, embezzlement, fraud, “and other criminal activity.” The department also said it “assesses” the danger of each search based on “a number of factors” before bringing the guns, like the whether the “persons” known to be at the house have a criminal or violent history.
Wright had no previous record, according to the above-mentioned report.
It might come as a surprise to most Americans, but the DOE considers its inspector general’s office to be its “law enforcement” arm and has outfitted it as such. In 2010, the department purchased 27 Remington Brand Model 870 police 12-gauge shotguns to replace its old firearms. “OIG operates with full law enforcement authority,” the department said after the Stockton incident.
And it was right. After the 9/11 attacks, the Homeland Security Act of 2002 gave inspector generals’ offices across the federal spectrum statutory authority to build up such law enforcement capabilities—including the right to carry weapons and arrest people.
Not surprisingly, as the nation debates the militarization of local and state police in the wake of several high-profile use of force cases, the proliferation of the law enforcement culture within the federal bureaucracy has largely gone unnoticed. The fact is, agencies whose prime directive is to audit and investigate regulatory transgressions like waste, fraud and abuse, are arming up with rifles and submachine guns—in essence, getting ready for battle.
“Not only is it overkill, but having these highly-armed units within dozens of agencies is duplicative, costly, heavy handed, dangerous and destroys any sense of trust between citizens and the federal government,” declared Rep. Chris Stewart, R-Utah, in a statement to TAC. He plans to re-introduce language he sponsored in the last session that would repeal the authority given to the OIGs in 2002 and prohibit any federal agency outside “those traditionally tasked with enforcing federal law,” like the FBI and federal marshals, to get their hands on machine guns, grenades, and other military weapons.
In May last year, the U.S. Department of Agriculture (USDA) OIG put a bid out for 85 submachine guns (original solicitation here), specifically “.40 Cal. (Smith & Wesson), ambidextrous safety, semi-automatic or 2 shot burst trigger group,” outfitted with “Tritium night sights for front and rear, rails for attachment of flashlight (front under fore grip), scope (top rear) and stock-collapsible or folding, magazine.”
In September, a contract went out to Heckler & Koch Defense Inc., a weapons outfit in Northern Virginia, for $126, 586 worth of “weapons” for the OIG with no additional detail available. On the Heckler & Koch website, the gun closest to the solicitation is the MP5/40 Smith & Wesson.
Broiled by bad press after news of the solicitation and subsequent contract to Heckler & Koch, the USDA OIG responded with a five-page backgrounder—and justification—in October. “OIG’s investigations handles, on average, over 800 criminal investigations each year, some of which place OIG agents in potentially life-threatening situations,” it read.
The USDA said its statutory authority dates back to the Agriculture and Food Act of 1981 which gives the OIG authority to “make arrests, execute warrants for arrest, the search of premises or the seizure of evidence; and carry firearms.”
“Although most OID enforcement activities do not result in a use of force related incident, a seemingly routing action such as an interview, surveillance, or search-arrest warrants always has the potential to turn into a dangerous deadly situation,” the agency argued, going on to list 11 cases dating back to 1997 in which OIG investigators were directly or indirectly threatened, or involved massive amounts of drugs, weapons and criminal activity.
“Carrying situation-appropriate firearms and wearing ballistic vests, as necessary, can reduce the possibility that criminal suspects engage OIG special agents or other persons in physical violence or use of firearms,” the agency said. So what about the 85 sub-machine guns?
The agency says the guns are not “fully automatic” capable and would “be carried by OIG special agents only when a particular arrest or search warrant is deemed as high risk for danger.”
One might ask two things: 1) whether the “crime” and “danger” should dictate that traditional law enforcement like the FBI step in rather than the USDA’s OIG, and 2) Why the OIG, which is has traditionally looked inward to tackle fraud and abuse among USDA’s programs, is increasingly pursuing cockfighting rings and meth labs on farms.
It isn’t new, says Washington, D.C., attorney Patrick O’Donnell, whose work in part requires that he defend corporate clients and individuals in federal cases quite like the ones pursued by these OIGs every day. He says the complexity of federal law has pushed the boundaries of what violations of a regulation constitutes a “crime” and the OIGs have taken full advantage, pursuing the more “glamorous” path of arming up.
“Those who do this on the defense side don’t carry guns—I can’t carry a gun. I work in Washington D.C. where they are basically outlawed,” he tells TAC. “But I personally don’t feel the need to be armed.” He said aside from his government cases, he has defended clients in both white-collar crimes and in pro-bono criminal defense cases. “I’ve done a lot of them in rough neighborhoods with rough folks—I know what cases tend to be threatening or not threatening. So this strikes me as outlandish.”
O’Donnell and colleague Brita Strandberg recently penned an op-ed, “We Don’t Need a Pistol-Packing FCC Inspector General’s Office,” for the National Law Journal. The FCC’s OIG David L. Hunt has testified that his office would like to hire two criminal investigators, who would be armed, to carry out what he says are potentially dangerous investigations going on both inside the agency’s programs and outside fraud and theft cases, typically involving federal communications subsidies like the Video Relay Service or the Universal Service Fund and its four major programs.
Hunt has argued that the office lacks the tools to go after more of these crimes effectively and must wait for FBI/DOJ investigators, whose time is split, to do the job. “However, if we were to have the support of criminal investigators, we could develop a case to a further point on our own rather than consume DOJ and FBI resources,” he told a House subcommittee in September.
As for the guns, “OIG investigators will be able to securely enter premises to interview witnesses in situations where it may be unwise to do so without the assistance of the FBI,” Hunt said, pointing an ongoing cases where “we have been advised not to conduct interviews because of possible safety concerns.”
Hunt told TAC last week that, “the focus on the weaponry is frustrating; all we are saying is if you want to investigate crime you have to have people trained to do that.” He said his office oversees a nexus of $10 billion in taxpayer money and is their job to keep it from leaking out into the wrong hands—whether that is embezzlement on the inside or among potentially dangerous actors outside.
“We’re like internal affairs at a police department but with a huge program (Universal Service Fund)—a number of huge programs on the outside too,” Hunt tells TAC. “Congress did not just task us to look on the inside.”
O’Donnell says it’s no surprise that FCC and other OIGs “are turning outward in the world, and not inward to the agency. ” The former invites possible law enforcement action, is higher profile, and tends to get more press.
“There is nothing glamorous about taking a hard line on the FCC and critically pointing out its shortcomings,” he said, referring to internal audits required by the OIG. “But to say you helped bust someone ripping off a program and to say you helped prosecute them and you have to carry a gun as a federal agent—well that’s more glamorous.”
So far, FCC Chairman Tom Wheeler has been unwilling to green light Hunt’s request to add two criminal investigators to his 39-member staff. In a statement to TAC, Wheeler’s office said:
Chairman Wheeler values and supports the independence of the Office of the Inspector General. The question of whether to permit armed employees in FCC buildings and field offices raises important security and employee safety questions. The Chairman has not made a final decision. The Office of the Chairman has discussed public safety concerns with the Inspector General and is consulting other agencies on their practices.
Critics like O’Donnell and others suggest that once these agencies have the ability to build law enforcement capabilities, the need to justify them inevitably grows, too, as does the proliferation of their trappings, including weapons and “tactical” gear (the USDA’s Animal and Plant Inspection service paid $10,000 for a sniper rifle in 2010, for example)—not unlike the militarization of local and state police departments everywhere in the nation today.
“We are already far down this road,” he said. “There is no shortage of law enforcement in America. Quite the opposite.”
Kelley Beaucar Vlahos is a Washington, D.C.-based freelance reporter and TAC contributing editor. Follow her on Twitter.