Charges for FBI Agent Renew Scrutiny of Elite Team

This photo taken from an FBI video shows Robert "LaVoy" Finicum after he was fatally shot by police on Tues., Jan. 26, 2016 near Burns, Oregon.

This photo taken from an FBI video shows Robert "LaVoy" Finicum after he was fatally shot by police on Tues., Jan. 26, 2016 near Burns, Oregon. (FBI via AP)

June 29, 2017

When the FBI finally defused the armed occupation of a wildlife refuge in Oregon last year, the agency largely viewed the effort as a success. One of the occupation leaders had been killed by law enforcement, but a situation that threatened to become far more deadly had ended relatively peacefully.

But the operation has now come under increased scrutiny, with the indictment made public this week of an FBI agent for lying and obstructing justice.

The indictment says that the agent, W. Joseph Astarita, a member of the FBI’s hostage rescue team, lied about firing two shots at Robert “LaVoy” Finicum, one of the occupation’s leaders, after he drove his truck toward a roadblock set up by the FBI and Oregon State Police. Finicum was ultimately killed by the state police.

“Special Agent Astarita falsely stated he did not fire his weapon during the attempted arrest of Mr. Finicum, when he in fact had,” U.S. Attorney Bill Williams said at a press conference on Wednesday. Astarita pleaded not guilty and was put on administrative duty pending the outcome of his trial, which begins in August.

The Justice Department investigation into the hostage rescue team’s actions in the shooting is ongoing, and comes at a challenging time for the FBI. The allegation that one of its agents lied will be a boon to the anti-government militia movement, which is fueled by deep distrust of federal law enforcement. Its members have maintained that Finicum was murdered, and his death has become a rallying cry.

The investigation also clouds the FBI’s carefully crafted response to the occupation of the Malheur National Wildlife Refuge, a hands-off strategy that was honed after deadly missteps by the FBI decades earlier.

“Regardless of how it comes out, it’s going to have a negative impact on the FBI and our efforts,” said Greg Bretzing, the special agent in charge of the response to the occupation. “This was a very patient, a very deliberate approach to what happened at Malheur and our goal from the beginning was to resolve it peacefully … and we largely achieved that. And now to have something like this, where the integrity of an FBI agent is called into question — that has lasting effect, not just on that agent but unfortunately on the FBI.”

Bretzing, who has since retired, said the indictment also reinforces anti-government militia conspiracy theories about federal agents. “This is all they’ll choose to remember,” he said. “And it will solidify in their minds everything they believe.”

The FBI’s hostage rescue team is an elite unit that has worked overseas with the military and conducted high-stakes rescues in the U.S. But team members were also involved in the bloody incidents that galvanized the anti-government movement during the 1990s: the botched siege of Randy Weaver and his family at Ruby Ridge, Idaho, and the deadly raid on a religious sect, the Branch Davidians, in Waco, Texas.

At Ruby Ridge, a rescue team sniper killed Weaver’s wife as she stood in the doorway holding her baby. At Waco, members of the hostage rescue team harassed the Davidians, inflaming tensions with FBI negotiators who were trying to bring about a peaceful resolution. Ultimately, roughly 80 people perished when a fire consumed the compound.

Anger over those incidents inspired Army veteran Timothy McVeigh to detonate a truck bomb at a federal building in Oklahoma City in 1995, killing 168 people.

To avoid bloodshed, the FBI has since shifted its approach to such armed standoffs. In April 2014, when Cliven Bundy, the patriarch of a Nevada ranching family, sparked an armed uprising against the federal government over their cattle, federal agents backed down.

Nearly two years later in January 2016, when Cliven’s son Ammon led armed followers to occupy the Malheur refuge, the FBI held back.

“We knew that if we were to immediately blockade the refuge that it could be used as a source to rally others,” Bretzing said in an earlier interview. The bureau decided against roadblocks, checkpoints or immediate arrests. The local sheriff stayed on as the operation’s public face.

Then on Jan. 26, the FBI learned that Ammon and other members of the core leadership — including Finicum — would be driving to a meeting in a nearby county. The FBI decided to step in and arrest them. Four members of the hostage rescue team were deployed to assist the Oregon State Police.

What happened next was documented by an FBI surveillance plane from above, and the cellphone of a woman, Shawna Cox, who was inside Finicum’s truck. After police ordered Finicum to get out, he gunned the engine, charging the police roadblock. The car swerved, nearly hitting a rescue team agent before slamming into a snowbank. Finicum climbed out of the car with his hands up and walked a few paces. He reached for his jacket, ignoring commands to put up his hands, officials said, and was shot and killed by Oregon State Police.

Finicum’s death was investigated by the Deschutes County sheriff’s office, which found that the state police was justified in the shooting — a finding that still stands, Williams said. The actions of the Oregon State Police “were justified and necessary in protecting officer safety,” he said. None of Astarita’s shots hit Finicum; one lodged in the roof of the truck.

It’s not clear from the indictment why Astarita would have tried to cover up the rounds. According to the indictment, he lied about the shooting to three FBI agents, and failed to disclose his actions to state police investigators.

“This is like Waco and Ruby Ridge, where the tragedy is compounded by error and cover up,” said Michael German, a retired FBI agent, now at the Brennan Center for Justice, “rather than acknowledging the truth of what happened.”

Update Aug. 10, 2018: After deliberating for less than a day, a jury found Astarita not guilty on all three counts.

Sarah Childress

Sarah Childress, Series Senior Editor, FRONTLINE



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