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The dictionary definition of “rogue” ranges widely from “a mischievous person,” a scoundrel, to a “vicious and destructive,” “dangerous and uncontrollable” criminal. The term has evolved from description of an individual to encompass nations, organizations and operations deviating from a purported norm. Thus, North Korea, the CIA’s Operation Phoenix in the Vietnam War and Jack Abramoff have all become included in the ever-expansive definition. Whether the Boston crime boss portrayed by Jack Nicholson in the current film The Departed is merely a lovably mischievous rogue or something darker is the matter of some debate, but the truth about the Boston mob and FBI complicity in its crimes in the 1980s, as disclosed by a federal judge, is particularly shocking in the annals of contemporary roguery. In a detailed 66-page opinion in McIntyre v. U.S., 447 F. Supp. 2d 54 (D. Mass. 2006), we are reminded of “the decades long association between the Boston office of the FBI and two of the most notorious criminals in Boston history,” including James J. (“Whitey”) Bulger. It seems that in the course of “fighting organized crime,” a highly praised FBI agent, one John Connolly, disclosed the identity of government informants to Bulger (both a leader of a crime mob and a long-standing informant), leading to their grisly murders. Discovery of this information led to a spate of suits against the United States, Connolly and his errant supervisors. The decision only addressed one claim against the United States under the Federal Tort Claims Act (FTCA). Although the law is important, of greater significance to the question of roguery are the facts found by Judge Reginald C. Lindsay. In 1980, the FBI became single-mindedly committed to eradicating the Mafia and used some 300 informants in the Boston area in the effort. Guidelines for their use stressed the need to control and supervise, and to limit their criminal activity to nonserious crimes (which were not defined). But, wrote Lindsay, “it seems likely . . . that an informant who was the head of a criminal organization would be involved” in such crimes, and the guidelines only mandated that the FBI, not other law enforcement agencies, be notified. Yet “it was never appropriate . . . to take any action to conceal” an informant’s crime. Not only did (“rogue”) agent Connolly violate reporting requirements, he recommended that other agents “tell informants not to inform them of ongoing criminal activity.” This see-no-evil practice was particularly relevant to Bulger and an associate, who were eventually indicted for 37 murders and other organized criminal activities during their tenure as informants. Despite the notoriety of their crimes, the Boston office did not investigate or inform other law enforcement agencies of its knowledge: “For decades preceding the [John] McIntyre murder . . . [FBI] agents protected Bulger . . . by shielding [him] from prosecution for crimes [he] had committed.” One result was Connolly’s leak of sufficient information to Bulger to identify McIntyre as an informant, resulting in his grisly torture and murder. Under Massachusetts law (partially applicable under the FTCA), his actions were tortious, foreseeable and within the scope of his employment. Among the damages awarded for wrongful death was $3 million for pain and suffering. No, the scenario was not directed by Martin Scorsese, whose account featured only one rogue infiltrator into an otherwise estimable law enforcement operation. McIntyre was real life, the same real life that can be found in other “cover-ups” in the name of “crime fighting.” Perhaps its lessons even extend to aspects of the Iraq War: the federal government’s use of “disinformation” and unreliable informants; its bribing of war lords; and its use or condoning of torture. The real question is: Who are the rogues and what kind are they? Are they the mischievous types, Ahmed Chalabi as Jack Nicholson? Indeed, what is the boundary between “normal” and rogue activity when concerted, widespread government activity is involved? Isidore Silver is professor emeritus of constitutional law and history at the City University of New York.

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