- The Washington Times - Monday, August 6, 2001

It's easy to see why the Senate voted unanimously and quite expeditiously to confirm President Bush's nomination of Robert S. Mueller III to head the much-beleaguered FBI. His credentials suggest he is a dedicated and no-nonsense civil servant, is respected for his prosecutorial zeal, and he is a war hero. And he has bipartisan support in the first Bush administration, he headed the Justice Department's criminal division and oversaw some high-profile investigations, such as the bombing of Pan Am Flight 103, and Bill Clinton appointed Mr. Mueller U.S. attorney general in San Francisco. But is he the perfect nominee?

A close inspection reveals a disconcerting characteristic, which becomes especially worrisome in the context of FBI reform. When Mr. Mueller was the U.S. attorney in San Francisco, he urged his prosecutors to get defendants who pleaded guilty in plea bargains to waive what's known as their Brady rights. Those rights, established in the landmark Brady vs. Maryland precedent, require government lawyers to divulge any evidence that could indicate a defendant's innocence, as part an individual's constitutional right to due process.

This type of evidence that is supportive of a defendant could emerge at any time, including some years after a trial. But if government lawyers have gotten a defendant to waive his Brady rights as part of a plea bargain deal, then prosecutors can sit on that evidence indefinitely with immunity. On March 5, the U.S. Court of Appeals for the Ninth Circuit ruled that Brady disclosure is a right that can never be waived, and that the Brady waivers that Mr. Mueller pursued are unconstitutional. "The main issue is, look at where Mueller is on ," said Timothy Lynch, director of the Cato Institute's project on criminal justice. "He's pushing government to limit disclosure obligations, rather than expand them," Mr. Lynch said, adding that this "invariably leads to miscarriage of evidence."

Given this record Mr. Mueller must work especially hard to prove he is capable of stewarding greater accountability and transparency at the FBI. Indeed, the need to reform the agency becomes clearer by the scandal. The failure to censure former FBI Director Louis Freeh in connection with the 1992 Ruby Ridge preceded the missing weapons and computers scandal, which was preceded by the missing McVeigh papers, which was preceded by the Hanssen spy scandal and the agency's failure to turn in evidence in the Ruby Ridge and Waco cases. Moreover, as Sen. Charles Grassley, Iowa Republican, said, there are "concerns that Mr. Mueller doesn't completely understand the culture problem at the FBI."

So, Mr. Mueller will have to work especially hard to prove himself and reform an agency troubled by pervasive arrogance and lack of accountability. Wish him luck.

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