The FBI’s Race Problems Are Getting Worse. The Prosecution of Terry Albury Is Proof.

It’s no secret that the FBI has a problem with race. Former Director James Comey even called the FBI’s lack of racial diversity a “crisis.”

WASHINGTON, DC - SEPTEMBER 28:   Federal Bureau of Investigation employees and guests attend the installation ceremony for FBI Director Christopher Wray at the bureau's headquaters September 28, 2017 in Washington, DC. Wray was appointed by President Donald Trump after he fired former FBI Director James Comey on the recommendation of Sessions and Deputy Attorney General Rod Rosenstein.  (Photo by Chip Somodevilla/Getty Images)
Federal Bureau of Investigation employees and guests attend the installation ceremony for FBI Director Christopher Wray at the bureau's headquarters on Sept. 28, 2017 in Washington, DC. Photo: Chip Somodevilla/Getty Images

It’s no secret that the FBI has a problem with race. Former Director James Comey even called the FBI’s lack of racial diversity a “crisis.” Some have argued that the top federal law enforcement agency’s failure to recruit a force that is better representative of the country is a liability and a security threat. The bureau has spent much effort and money over the last three decades trying to fix the problem — and yet its ranks have only grown less diverse after 9/11.

Eighty-three percent of the FBI’s 13,500 special agents are white — and only 4.4. percent are black, even though African-Americans make up 12 percent of the U.S. population. That’s down from about 6.5 percent just a decade ago, a retired, high-ranking FBI official involved in the agency’s diversity efforts told The Intercept. In the mid-90s, after a class-action discrimination lawsuit brought by black FBI agents, black officers made up 5.3 percent of the force.

And that’s just the race problem within the FBI. It’s hard to diversify an agency that many still associate with the systemic surveillance, infiltration, and repression of civil rights activists in the past — and which maintains ample discretion today to target individuals and groups it deems suspicious based on criteria that all too often reflect their race or religion. The bureau’s efforts at reform, so far, have been mostly aimed at recruiting a more diverse force. But people of color who do sign up to join its ranks often find themselves isolated as they come face to face with racism and discrimination within the bureau, as well as with the bureau’s often racist and discriminatory policing.

That’s the struggle Terry Albury seems to have grappled with before he leaked a series of documents to journalists.

Ronald Hopper (3L), FBI Tampa division Assistant Agent in Charge, talks to Orlando Police Chief John Mina (2L), Orlando Police Chief, Paul Wysopal (4L), FBI Tampa Division Special Agent in Charge, and others near the Pulse nightclub June 13, 2016 in Orlando, Florida.<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br />
Forty-nine people and the shooter died and more than 50 were injured when a gunman opened fire and seized hostages at a gay nightclub in Florida, police said June 12, making it the worst mass shooting in US history. / AFP / Brendan Smialowski        (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)

Ronald Hopper, FBI Tampa division Assistant Agent in Charge, third left, talks to Orlando police near the Pulse nightclub on June 13, 2016 in Orlando, Florida.

Photo: Brandon Smialowski/AFP/Getty Images

Albury, a former agent with the FBI’s Minneapolis field office, pleaded guilty on Tuesday to two federal charges of violating the Espionage Act. In a statement, his attorneys said that Albury takes “full responsibility” for his actions — and suggested that he was motivated by his personal experience with racism within the bureau, as well as by the bias with which he saw the bureau operate in the communities where he served.

“It has long been a critique of the FBI that it consists of and reflects a predominantly white male culture, which, as a result, has often treated minority communities with suspicion and disrespect. These criticisms are especially resonant in the terrorism context,” the statement reads. “For Terry, the only African-American field agent in the Minneapolis office, the problem of racism both within the FBI and in its interactions with minority communities was especially pronounced. The situation became even more acute for him when, having previously served a tour for the FBI in Iraq, he was assigned to the counter-terrorism squad, and was required first-hand to implement FBI investigation directives that profiled and intimidated minority communities in Minnesota and other locations in which Terry served.”

“Witnessing all this, and, as an African-American being subjected to it himself directly in some instances, profoundly affected Terry professionally and personally,” the statement continues. “The tensions and conflicts within him became unbearable, and he acted.”

While court documents filed against Albury did not identify the news outlet he was accused of leaking to, reports linked the charges to a series of stories published by The Intercept regarding a set of secret FBI guidelines. Albury, who could face up to 10 years in prison for each of the two charges, declined to comment through his attorney. His sentencing has not yet been scheduled; the government has recommended a 46 to 57 months sentence. The FBI declined to comment on its diversity problem, but the agency’s website states that “the FBI is committed to building a high performing, diverse and inclusive workforce. However, there are still disproportionately low numbers of individuals from diverse backgrounds within the Special Agent ranks.”

Members of Minneapolis’s large Somali community — a major target of FBI’s efforts there — told The Intercept that the documents Albury was accused of leaking helped shed light on the profiling and harassment many in that community regularly experience at the hands of the FBI, and said that they were grateful for the former agent’s courage in making them public.

The Fraternity

Months before he was fired by President Donald Trump, Comey gave a speech at a historically black university, lamenting that the “the percentage of special agents in the FBI who are white has been growing” steadily over the last decade. “That is a crisis for reasons that you get, and that I’ve worked very hard to make sure the entire FBI understands,” he told the audience.

It wasn’t the first time Comey addressed the bureau’s struggle with diversity — nor its much bigger problem with racism. In his famous 2015 “hard truths” speech, which came on the heels of nationwide protests against police brutality, Comey said that “the FBI is overwhelmingly white and male among my agent force. … I have to change the numbers.” On that occasion, he also made an unprecedented acknowledgment of the role historically played by law enforcement in communities of color: “All of us in law enforcement must be honest enough to acknowledge that much of our history is not pretty.”

FBI Director James Comey pauses while discussing race and law enforcement, Thursday, Feb. 12, 2015, at Georgetown University in Washington. Comey said the nation is at a ?crossroads? on matters of race relations and law enforcement, saying the country must confront hard truths following the deaths of Michael Brown and Eric Garner and the slayings of two police officers in New York. (AP Photo/Cliff Owen)

FBI Director James Comey pauses while discussing race and law enforcement on Feb. 12, 2015, at Georgetown University in Washington, D.C.

Photo: Cliff Owens/AP

But despite the repeated acknowledgment that the bureau needed to do better — also echoed by former Director Robert Mueller and current Director Christopher Wray — the FBI has failed to change.

In 1991, a group of black agents filed a class-action racial discrimination lawsuit against the bureau, alleging that they were regularly denied promotions that went to white agents with similar qualifications. A judge ruled in their favor and the FBI promised to reform — but it didn’t, prompting a new lawsuit and a second settlement, this one mandating an outside moderator to oversee discrimination complaints. Emmanuel Johnson, the lead plaintiff in the 1991 lawsuit, told The Intercept that “essentially nothing” changed as a result of it.

“Actually, it is worse now than when we did the lawsuit,” said Johnson, who served in the bureau for 26 years. “The statistics are worse now.”

Michael Mason, a former executive assistant director responsible for the FBI’s Criminal, Cyber, Response and Services Branch, and one of the highest-ranking black men in the bureau’s history, says that’s not for lack of trying. Like Albury, Mason said he was often the only black agent in the room over his 23-year career with the bureau. He said he sometimes called off investigations that he found problematic and recalled telling an agent that he couldn’t run somebody’s plate just because he saw a Quran on their car’s backseat. But Mason, who left the bureau in 2007, also said that he was “very pleased” with how he was treated and promoted at the bureau, and added that one of his proudest achievements at the FBI was winning the same transfer rights for same-sex couples that heterosexual couples already enjoyed.

Today, Mason works with the FBI’s Diverse Agent Recruiting initiative. “I’m sorry to say that 10 years after I’ve retired, when the representation of African-Americans in the bureau was about 6.5 percent, that it’s about 4.5 today,” he said. “But I really genuinely don’t believe that is from some systemic lack of effort.”

Alex Turner, another black FBI assistant director who retired in 2014, echoed that sentiment. “I don’t think there’s a systematic bias within the bureau,” he told The Intercept, pointing to his own career as indicative that it’s possible for minorities to climb up the ranks. “Was it easy? No. Did I experience some biases along the way? Absolutely.”

SCHERTZ, TX - MARCH 20:  FBI and ATF agents return to their investigation following a news briefing outside a FedEx facility following an explosion on March 20, 2018 in Schertz, Texas. A package exploded while being transported on a conveyor shortly after midnight this morning causing minor injuries to one person. The explosion is believed to be related to several recent package bombs that have been detonated in Austin, Texas, about an hour's drive from Schertz.  (Photo by Scott Olson/Getty Images)

An FBI agent returns to his investigation on an explosion on March 20, 2018 in Schertz, Texas.

Photo: Scott Olson/Getty Images

But critics argue that focusing on recruitment has done little to change the agency’s biases, and that the FBI’s lack of diversity is symptomatic of a broader failure by the bureau to change the ways in which it views the world it operates in — alienating those who see things differently as much as those who look different.

“It has actually gotten worse every year since 9/11, and I don’t think that’s an accident,” Michael German, a former FBI agent and a fellow with the Brennan Center for Justice, told The Intercept. “The FBI has given a lot of lip service, yet it hasn’t responded in a way that would actually change things, and part of it is because there is this national security imperative that tends to view even people within the FBI with suspicion, particularly if they stand out.”

“National security policies that the public should know about demonstrate racial and ethnic bias that make it hard for people to work there who are not conformists,” German added. “The problem is that the FBI is a very conformist organization. So anybody who publicly criticizes the FBI is ostracized from the wider FBI fraternity – and I say fraternity because it is still almost all male, as well as almost all white.” (Only 20 percent of the FBI’s special agents are women, according to the bureau’s figures.)

Michael German, a law professor at New York University who worked as an undercover agent for the FBI for sixteen years, at an office in New York, May 12, 2016. The FBI has significantly increased its use of stings in terrorism cases in hundreds of investigations into Americans suspected of supporting the Islamic State group. "They're manufacturing terrorism cases," says German. (Nancy Borowick/The New York Times)

Michael German, a law professor at New York University who worked as an undercover agent for the FBI for 16 years, works in an office in New York on May 12, 2016.

Photo: Nancy Borowick/The New York Times/Redux

Said Barodi, a Moroccan-American former intelligence analyst who spent nearly a decade at the FBI’s headquarters and Washington field office, said that diversity recruitment efforts worked on him — even though, as a Muslim, he was “fully aware” of the FBI’s scrutiny of his community before he joined. “[The human resource division] does a really good job of trying to entice and attract diverse kinds of employees,” Barodi told The Intercept. “But once you get in, it’s a completely different story.”

Barodi was hired as the bureau found itself scrambling to find Arabic-speaking staff. But while the FBI sought out Muslim and foreign-born analysts like him, it never fully trusted them or treated them equally, Barodi charged. According to The Guardian, Barodi was fired in February 2017 for refusing to cooperate with airport customs agents who he believes were targeting him because of his background. Barodi told The Intercept that he appealed his dismissal with the FBI’s HR division and said he was told in July that he would be reinstated. After much waiting, he was recently notified that his reinstatement was blocked.

“I wanted to serve my country. I wanted to fight terrorism and fight U.S. enemies and do my patriotic duty, but little by little, I discovered that I’m the target inside,” Barodi told The Intercept. “People like me are the target.”

While he chose to address his claims through the FBI’s formal redress process, Barodi said the system got him nowhere, and that he couldn’t blame Albury for seeking other ways. “I know exactly how he felt,” he said. “Since 2012, I’ve been fighting this through the official channels. Look what the official channels got me: I got fired.”

Barodi stressed that his ordeal was shared by many Arabs and Muslims working at the bureau. An FBI program known as “post-adjudication risk management” has been particularly controversial because of the increased scrutiny to which it subjects FBI staff of foreign backgrounds. The FBI agent who perhaps more than any others damaged the bureau’s security in its history was a U.S.-born white man — Robert Hanssen — who leaked secrets to Russia for over two decades. But the bureau is much more likely to suspect its nonwhite and Muslim agents. African-Americans, Barodi added, citing COINTELPRO, have been targets of the agency even longer.

“That’s just the history. It’s ingrained in the FBI’s DNA,” he said. “Even after people were allowed in, and some measures of diversity were introduced into the FBI, and African-Americans and other minorities were making it inside, it did not mean that they were going to be successful.”

A group of FBI agents display their revolvers while training at Quantico, Virginia. Ca. 1930s. (Photo by © CORBIS/Corbis via Getty Images)

A group of FBI agents display their revolvers while training at Quantico, Virginia in the 1930s.

Photo: Corbis/Getty Images

The FBI declined to comment on Barodi’s case.

Johnson, the lead plaintiff of the 1991 lawsuit, said that since he left the bureau in 1999, many agents of color have sought his advice as they dealt with the same kinds of discrimination he had experienced years earlier. He talked to them all.

“Had Mr. Albury reached out, I would have done the same thing for him,” Johnson told The Intercept, adding that he understood Albury’s frustration but disapproved of his actions. “I wish him the best. I hate to see his career end like that. It’s really tragic.”

When the Leaker Is Not a Powerful White Man

In his just-released memos, Comey described a private conversation with Trump in which the president complained about leaks relating to his phone calls with the leaders of Mexico and Australia, as well as about Michael Flynn’s calls with Russian representatives.

Comey wrote in the memo that he sympathized with the president and then explained why leaks about FBI operations were also “terrible and a serious violation of the law.”

“I said I was eager to find leakers and would like to nail one to the door as a message,” Comey wrote. “I said something about it being difficult and he replied that we need to go after the reporters, and referred to the fact that 10 or 15 years ago we put them in jail to find out what they know, and it worked. He mentioned Judy Miller by name. I explained that I was a fan of pursuing leaks aggressively but that going after reporters was tricky.”

According to the memo, Trump encouraged Comey to talk to Attorney General Jeff Sessions “and see what we can do about being more aggressive.” Then, as the meeting wrapped, Trump raised the issue of leakers again. “I said something about the value of putting a head on a pike as a message,” Comey wrote. “He replied by saying it may involve putting reporters in jail. ‘They spend a couple days in jail, make a new friend, and they are ready to talk.’ I laughed as I walked to the door Reince Priebus had opened.”

Last August, Sessions vowed to crack down on leaks of classified information and promised to ramp up efforts to prosecute whistleblowers — and so far, the Department of Justice is on track to keep that promise. Bill Priestap, assistant director of the FBI’s counterintelligence division, warned after Albury’s guilty plea that “the FBI will work tirelessly to bring to justice those who would expose America’s secrets.”

Albury is the second person — after National Security Agency contractor Reality Winner — to be charged under the Espionage Act for allegedly leaking documents to journalists since Trump took office. Before him, Barack Obama waged an unprecedented war on whistleblowers, overseeing more Espionage Act prosecutions than all his predecessors combined.

AUGUSTA, GA - JUNE 8: Reality Winner exits the Augusta Courthouse June 8, 2017 in Augusta, Georgia. Winner is an intelligence industry contractor accused of leaking National Security Agency (NSA) documents. (Photo by Sean Rayford/Getty Images)

Reality Winner, an intelligence industry contractor accused of leaking NSA documents, exits the Augusta Courthouse on June 8, 2017 in Augusta, Georgia.

Photo: Sean Rayford/Getty Images

But not all accused leakers receive the same treatment.

Government agencies often respond more harshly to whistleblowers whose disclosures embarrass them than to those who put national security at risk. Perhaps the best example of that is former CIA Director David Petraeus, who pleaded guilty to a single misdemeanor — and served no jail time — for sharing his highly classified journals with his biographer and lover and then lying to the FBI about it.

“Powerful people often get off with a slap on the wrist for talking about these things, but less powerful people often get the book thrown at them,” Trevor Timm, executive director of the Freedom of the Press Foundation, told The Intercept. “Terry Albury is literally going to face jail for doing something that was in the public interest and an act of conscience.”

In his new book, Comey wrote that “Petraeus was treated under a double standard based on class. … A poor person, an unknown person — say a young black Baptist minister from Richmond — would be charged with a felony and sent to jail.” In fact, some of those facing the harshest consequences for leaking documents have been people of color. Stephen Kim, a Korean-American former State Department official, spent 10 months in prison after he pleaded guilty to leaking classified information about North Korea to a reporter. And Jeffrey Sterling, a black former CIA agent, was released to a halfway house in January after serving more than two years of a 42-month sentence. Sterling was convicted under the Espionage Act of sharing classified information with New York Times reporter James Risen — now at The Intercept — about a botched CIA program. Prosecutors had tried to force Risen to disclose his source, but he refused.

Stephen Kim, a former State Department expert on North Korea, center, leaves federal court in Washington, Wednesday, April 2, 2014, after a federal judge sentenced him to 13 months in prison for passing classified information to a journalist.  (AP Photo/Cliff Owen)

Stephen Kim, a former State Department expert on North Korea, center, leaves federal court in Washington on April 2, 2014, after a federal judge sentenced him to 13 months in prison for passing classified information to a journalist.

Photo: Cliff Owen/AP

For Sterling, there was no doubt that race played a fundamental role in the hostility with which the government pursued charges against him. He had left the CIA years earlier, after having lodged first an internal racial discrimination complaint and later, a lawsuit alleging retaliation because of that complaint. In a post-conviction motion, Sterling’s attorneys compared his treatment with that of James Cartwright, a retired Marine Corps general who, around the time of the Sterling trial, was under investigation for providing classified information to a different Times journalist. Cartwright eventually pleaded guilty to lying to the FBI during the investigation, but Obama pardoned him before his sentence.

“The only difference between the two cases,” Sterling’s attorneys wrote at the time, “is that General Cartwright is a white high-ranking official and Jeffrey Sterling is an African-American man who became an outcast at the CIA following his publically-filed employment discrimination claim.”

Barry Pollack, one of Sterling’s attorneys, said that the CIA saw the trial as an opportunity to save face after the leaked material damaged its reputation — and that the agency released much more secret information as part of the trial process than had been disclosed to Risen in the first place.

“I think that it was very apparent in the Jeffrey Sterling case that he was an outcast within the CIA,” Pollack told The Intercept. “He believed that race played a role in that, and I suspect that it did, but I think ultimately the fact that he was not a part of the old guard, the regime, the club that was the CIA, really led to the CIA’s extraordinarily aggressive stance against him.”

“I think this is true in any organization where you are not viewed as part of the team: It is more likely that you are going to resort to whistleblowing, and it seems also more likely that if you do, you are going to be pursued more harshly,” he added. “From society’s standpoint, that’s not necessarily a bad thing. If you have an organization of very likeminded people it tends to lead to ideas not being challenged, and if there is no satisfactory vehicle within an organization to challenge a problem, it’s far better in my view that the problem gets challenged through whistleblowing than it doesn’t get challenged at all.”

The Community

Albury interned at the FBI while still in college and joined the agency after graduation. He studied sociology at Berea College in Kentucky, where he showed an early interest in law enforcement’s relationship with the community, researching the local department’s community policing initiative. In 2001, he was given an award for students in the social sciences who have shown “outstanding character.”

Jackie Burnside, one of Albury’s former professors, told The Intercept that he had “a very good record” at the school. “I remember him as a good character, a good student, intelligent,” said Burnside, who has not been in touch with him in years. “We have been quite proud of Terry as a Berea alumn.” Suleiman Oko-ogua, a classmate who lived in the same dorm and served as a reference for his FBI clearance, told The Intercept that he was a “smart guy, very inquisitive.”

At the FBI, Albury worked in counterterrorism at an office at the Minneapolis-St. Paul airport. Barodi, the former FBI analyst, speculated on what that might have entailed. “His job was basically to hunt down and harass Somali Muslims in Minneapolis,” he said. “That was his job. That’s what drove him nuts.”

“This is a career special agent. He was in for 17 years; he had three years to retire with full pension. All of that went out the window,” Barodi added. “The pressure must have been extraordinary on him. The things he must have seen must have been extraordinary.”

In their statement, Albury’s lawyers wrote that “in cases that involve unauthorized disclosures of matters of public interest, there is always the claim that the person making the disclosure should have pursued remedies through official channels.” But Albury “did not view this option as viable.”

Internal redress channels have failed before. Thomas Drake, a former employee of the NSA, tried all formal channels available to him when he became convinced of wrongdoing at the agency. Drake told his bosses, the NSA’s inspector general, the Defense Department’s inspector general, and congressional intelligence committees. Then, as a last resort, he turned to a reporter from the Baltimore Sun. He ended up with 10 federal charges, including five under the Espionage Act. All charges were eventually dropped, and Drake pleaded guilty to one misdemeanor count of exceeding the authorized use of a government computer.

Drake’s case made clear that resorting to formal channels was no guarantee one’s concern would be heard — or that one wouldn’t be retaliated against.

“There is no safe way for an FBI whistleblower to internally report a complaint without opening yourself up to retaliation,” German, the former agent and himself a whistleblower, told The Intercept. “The internal system the Justice Department uses to adjudicate whistleblower reprisal cases is a complete failure.”

German said that the documents Albury was accused of leaking should have never been withheld from the public in the first place. “Most of them were FBI policy documents, and if we live in a democracy, we can’t have secret government policies,” he told The Intercept. “Clearly, having released them hasn’t put our national survival at peril. All it has done is provide the public with more information about how the FBI conducts its business, and clearly there was evidence of abuse, particularly in a lot of the documents about targeting immigrants, targeting journalists.”

“These things are threats to our democracy, not things that are done to protect our democracy,” he added.

Mason, the former FBI executive assistant director, said the idea that Albury couldn’t have addressed his concerns internally was “laughable.” “I do believe that if you join a football team, and the quarterback calls a call, everybody’s got to run the right routes, or you have nothing,” he said.

But Mason added that leaks are symptomatic of bigger problems and that they should prompt those in charge to ask themselves why an agent wouldn’t come to them first. “If I had a leak in my department, the first place I’d look is my desk,” he said.

Some leaks, he added, are justified. “I happen to think there’s a valid place in our republic for certain types of leaks,” he said. “I would not want any kind of wrongdoing that’s being covered up. I think there’s an obligation to get that out in front of the public.”

FILE - In this July 16, 2014 file photo Minneapolis police officer Mike Kirchen talks with Mohamed Salat, left, and Abdi Ali at a community center where members of the Somali community gather in Minneapolis. The nationwide effort to stop a new wave of Westerners being recruited by terror groups, this time for Islamic State militant groups in Syria and Iraq, could take some cues from Minnesota. Attorney General Eric Holder said Monday,  Sept. 15, 2014 the Justice Department is launching a series of pilot programs to help detect American extremists looking to join terror organizations in countries like Syria and Iraq. (AP Photo/The Star Tribune, Jim Gehrz, File)

Police officer Mike Kirchen talks with Mohamed Salat, left, and Abdi Ali at a community center where members of the Somali community gather in Minneapolis.

Photo: Jim Gehrz/The Star Tribune/AP

To many in Minneapolis’s Somali community, Albury’s leaks are more than justified. Jaylani Hussein, executive director of the Council on American-Islamic Relations’ Minnesota chapter, told The Intercept that the FBI and other law enforcement agencies have been doing “a great deal of profiling of our community,” visiting people at home and subjecting them to unwarranted harassment. In 2015, the Brennan Center warned that the FBI’s community outreach initiatives in Minneapolis had morphed into intelligence-gathering efforts. A year later, a manager with the Transportation Security Administration in Minneapolis reported being ordered by a supervisor to profile Somali imams and community members.

“Communities of color have been calling for law enforcement officials to call out these type of practices,” said Hussein, who added that he sat in meetings with Albury before, though the agent never said much. “We commend him for his bravery in challenging institutions that need a great deal of reform to better serve the community that they serve.”

Burhan Israfael Isaaq, a Somali community organizer in Minneapolis, felt the same way.

“I think he did a great service to the citizens of this country and especially to the people who are vulnerable to harassment from the FBI,” Isaaq told The Intercept. “More power to him. People are definitely grateful.”

Top photo: Federal Bureau of Investigation employees and guests attend the installation ceremony for FBI Director Christopher Wray at the bureau’s headquarters on Sept. 28, 2017 in Washington, DC.

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