The Obama administration is beginning to do some damage control relative to what we have been saying and asking lately. Why was a criminal investigation not launched early in the BP crisis and why has one not been launched to date? As I suspected, we are seeing some articles appearing and some pundits grandstanding with the notion that stopping the flow is first and foremost, so, a criminal investigation can either take a back seat or even be counterproductive to the top priority of stopping the flow. Of course, stopping the flow is priority number one. But the idea that a criminal investigation can or should wait is ludicrous.
We have been told that the presidential appointee heads of the Department of Justice (DOJ) civil division and environment division have been dispatched to the region. This action does not constitute a criminal investigation. It certainly hints at civil proceedings and, perhaps, is laying the groundwork to deal with the turf battles to come once a real investigation is allowed to begin. A real criminal investigation into an issue of this magnitude would be equipped with a small army of investigators, attorneys and scientists under the direct control of an Environmental Protection Agency (EPA) Criminal Investigation Division (CID) special agent-in-charge (SAC). There is no way such an operation would remain quiet, and the media would definitely pick up on it.
At some point in the future, the administration is likely going to go public and admit that it instructed the agencies to hold on sending criminal investigators in to address the primary questions of who made the decisions, who with authority within BP (and the government) knew about the decisions which led to the destruction of the rig and why those decisions were encouraged and sanctioned. The message is going to say something along the lines that the federal officials in charge of stopping the flow (US Coast Guard?) requested that criminal investigators be kept at bay and that the White House agreed with this request. It is an argument that I (and other seasoned SACs in EPA) have heard before, and an argument that seasoned criminal enforcement managers recognize as BS.
For one thing, I have ignored such pleas before and dispatched criminal investigators immediately or very soon after an environmental incident, including launching an investigation into a BP “accident.” The presence of the investigators did not hamper the response. In fact, their presence may have encouraged an even more aggressive response. Their presence provided an avenue for fearful employees to deliver damaging inside information. Also, do not allow yourself to naively believe that BP does not have a legion of attorneys advising its employees and officials to be very mindful of what they say (if not encouraging silence) because of the financial liability the company could incur because of loose statements. This would have the same “chilling” effect feared by the government that a criminal probe would create.
So, what is at stake in not sending in the cops right away? Witness statements needed to have been memorialized early on in order to prevent them from fading or changing over time and/or with influence. Documents and written communications needed to have been obtained before they disappeared or were altered. It is not too late, per se, for a criminal investigation, but it will be a much harder endeavor with the passage of this much time.
We are brought back to the significant question of why was a criminal investigation (there are other types of investigations and do not be misled by this general term) not initiated immediately in the Deepwater Horizon incident? BP is an environmental criminal recidivist. It is still on probation. There is not an EPA CID criminal investigator in the country that does not know that. Those facts are red flag enough to have immediately launched a criminal investigation to determine if the Deepwater Horizon catastrophe fit the same pattern of the corporate criminal culture which led to the previous criminal convictions. If CID managers were timid, then, certainly, subsequent revelations about events on the rig and misleading information from BP should have triggered a criminal probe.
We can only conclude that direction from very high up in the government prevented the launch. Why? At best, the administration swallowed the BS from the Coast Guard about a chilling effect a criminal investigation might have; and, at worst, there is a high level collusion within the government to protect senior BP executives, just as we saw in the last administration. While the latter possibility is worse than the former, neither is acceptable.
Who holds the administration responsible for this failure? That, on the first instance, would be Congress. Where are the demands for a criminal probe and hearings to quiz government officials regarding their failure to act? There are some mumblings beginning to be heard about this, but they are not loud enough. My wife sent letters to our representatives here in Washington State and even to Henry Waxman, but no one from Congress has yet to contact me.
The next level of accountability rests with the fourth estate, the press. The press is doing a very good job of getting our questions asked and of informing the public of multiple examples of knowing criminal behavior associated with this catastrophe. They are out there conducting the (criminal) investigation the government is paid to do, but is not doing. Let us all applaud the fourth estate and encourage them in their work that our government and its officials are failing to do.
Now, we come to the final level of accountability: That is us, the voting public. If the government, administration and Congress will not do what needs to be and should be done, then we need to send them home and get in folks who will. This is something in which each and every one of us can participate.
In case any one is wondering, I was very glad to see the end of Bush, and worked hard to see Obama and Democrats elected. I was particularly hopeful that we would see a significant change in how environmental criminals were treated. I cannot though, in good conscience, sit back and swallow a party line. The failure to initiate a robust criminal violation is a failure of the highest magnitude and I will continue to call it so no matter who or what party is at fault.