When the James “Whitey” Bulger scandal broke in the 1990s, FBI faced the daunting, perhaps, insurmountable task of repairing the damage caused to its image by this murderous informant and his corrupt FBI handler.   But as so often has happened with the nation’s premier law enforcement agency, just when you think the public has gotten over one fiasco, another controversy surfaces to undermine the integrity of the famed Federal Bureau of Investigation. A media story this past May illustrates this point.

 

The ugly story was about a child porn site. It was reported that the FBI seized and continued run the site, which had 5,000 customers, following a lengthy investigation conducted by its Nebraska-based agents.

 

Last November agents raided a “large child pornography service” in an attempt to “catch users who shared thousands of images showing children being raped, displayed and abused.” After the raid, someone in the chain of command made a highly questionable decision to continue the site’s child porn services, distributing child pornography, while under the control of the FBI—a decision endorsed by a Nebraska federal judge. The site was kept up and running by the agency between November 16 and December 2, 2012.

 

A Seattle-based agent filed an affidavit supporting a search warrant for what the agent called “Website A”—a site that had 24,000 posts by 5600 users who shared 10,000 photos of “children being posed nude, raped or otherwise abused.” FBI agents had monitored active chatter by the users about their shared interest in child pornography, including discussions about how to avoid law enforcement detection. This intelligence led to the Nebraska raid.

 

The decision by the FBI to maintain the child porn site after the raid, so as to snag more users, is troublesome.

Federal prosecutors routinely argue to juries and to judges at sentencing hearings that each time the image of child being abused is displayed, a new offense occurs. One of those is Seattle-based Special Assistant U.S. Attorney Marci Ellsworth who has pointed out that the crimes of child porn consumers are not “victimless.”

 

“Distributing of child pornography – images and videos of real children experiencing the worst moments of their young lives – is not a ‘victimless’ crime, and the heinous nature of this offense should never be diminished by referring to it as ‘just pictures’,” Ellsworth has observed. “The children portrayed … suffer real and permanent damage, for the rest of their lives, each and every time their exploitation is shared over the Internet.”

 

That being said, and assuming that is the case, then the question arises as to why the FBI decided to perpetuate this suffering and permanent damage to sexually abused children in order to catch a few more offenders. More troubling is the FBI’s reaction to the media interest in the story. The agency said its investigation is “still in its early stages” and other arrests may be forthcoming.

 

There was another arrest shortly after this controversy exploded. Donald Sachtleben is a former FBI agent and a visiting professor at Oklahoma State University’s Center for Health Sciences in Tulsa. He was arrested in California for possession and distribution of child pornography as part of the agency’s Project Safe Childhood initiative. No evidence surfaced about whether Sachtleben visited or secured child porn from the FBI-maintained site.

 

This new kind of “investigation” would create an interesting dilemma for a trial court hearing charges brought against a defendant, that stem from the two-week period in which the FBI itself distributed the child pornography. It was not like agents were trolling the Internet for child porn sites and identifying users of those sites in order to ensnare them. This site had been identified, raided and was then run by the Government.  It is akin to the FBI seizing a thousand pounds of crack cocaine and deciding to go into the drug distribution business by using its own agents to sell the drugs on the open market to the end user.

 

That’s a slippery slope. Beyond the sticky legal implications, such investigative tactics raise serious moral and social questions; namely, should law enforcement  engage in and promote crime with the sole purpose being apprehending criminals. As defense attorneys, we think these law enforcement techniques add a new, disturbing dimension to the war on crime.