Return FBI to Law Enforcement Roots
“Can Anyone Control the FBI?” Was that asked by President Donald Trump? No, it was a Washington Post editorial in 2016. Recently it was Tucker Carlson on Fox News.
Today it is the FBI seizing materials covered by attorney-client privilege from the president’s own lawyer.
The FBI was once the model of bureaucratic expertize. Today, even the forensic analysis that built its early reputation is in tatters. Its basics like hair-test analysis were wrong in court 95 percent of the time and DNA half the time by a study co-funded by the FBI itself.
Public Administration 101 explains the problem. The first principle is that government and private management are different, as Ludwig von Mises demonstrated in his classic book “Bureaucracy.” Government bureaucracy has no internal signaling device similar to the private profit-and-loss mechanism to tell top management whether a project is working or not.
And the equally important James Q. Wilson’s “Bureaucracy” book’s second fundamental principle is that institutions like government lacking a sophisticated internal signaling device must simplify their missions to minimizing competing goals and cultures.
The problem with the FBI jumps from its official mission statement: “The FBI is an intelligence-driven and threat-focused national security organization with both intelligence and law enforcement responsibilities. It is the principal investigative arm of the U.S. Department of Justice and a full member of the U.S. Intelligence Community.”
What could be a more archetypical definition of competing cultures and goals with different missions and even different agencies?
It was not always that way. As then-Director Robert S. Mueller III testified before the House Permanent Select Committee on Intelligence in 2011:
The FBI significantly increased its intelligence capacity after the attacks of September 11, 2001, when the FBI elevated counterterrorism to its highest priority. Prior to the 9/11 attacks, the FBI’s operations were heavily weighted towards its law enforcement mission…
Do you agree that the FBI should go back to its roots?In the immediate aftermath of 9/11, the FBI quickly identified the need to enhance intelligence programs with improved analytical and information sharing capacities… Protecting the United States against terrorism demanded a new framework for the way the FBI carries out its mission: a threat-based, intelligence-led approach.
This new approach has driven significant changes in the Bureau’s structure and management, resource allocation, hiring, training, recruitment, information technology systems, interagency collaboration, and information sharing, as well as a paradigm shift in the FBI’s cultural mindset.
At the time of the new framework, I actually debated a former attorney general against the FBI taking on such a new, competing function with such conflicting missions. He won.
In 2007, Judge Richard Posner publically criticized the FBI for failing in its intelligence mission by placing too much emphasis on a legalistic orientation to obtain court convictions rather than on security and called for a separate agency like Britain’s MI5 to take over intelligence matters. Mueller’s Deputy Director of National Security John P. Mud responded that the FBI was “a national security agency; we are not solely a law enforcement agency. Under this new model, intelligence drives how we understand threats, how we prioritize and investigate these threats, and how we target our resources to address these threats.”
In response to the criticism, the FBI built its intelligence capacity so dramatically that it reversed the Posner concern. Today the legal ethos does not inhibit the intelligence work so much as the security orientation overwhelms the legal, in fact suppresses it, as is well demonstrated by the FBI breaching the attorney-client legal privilege.
As legal scholar Alan Dershowitz emphasized, “There are, of course, exceptions to the lawyer-client privilege” but “civil libertarians should be concerned whenever the government interferes with the lawyer-client relationship. Clients should be able to rely on confidentiality when they disclose their most intimate secrets in an effort to secure their legal rights.”
Earlier, former 33 year agent Thomas J. Baker argued that placing intelligence over its prior culture of legality changed the FBI from fact-gathering, where an agent would have to swear in court — and a “lack of candor” was a firing offense — to an intelligence agency that deals with “estimates and best guesses” not allowed in court. Intelligence is more centralized and puts decisions in more politically-sensitive hands like Peter Strok’s. “As a result, there now is politicization, polarization, and no sense of the bright line that separates the legal from the extralegal.”
For example, the Foreign Intelligence Surveillance Act was never intended to be used against Americans who should be tried with full legal protections. The use of FISA to target a U.S. citizen, as did Strok, is “the most egregious abuse uncovered so far.”
It is time to admit turning the FBI into a security agency was an egregious error, to send that mission to a real intelligence operation, and to return the FBI to following the law.
Donald Devine is senior scholar at the Fund for American Studies, the author of “America’s Way Back: Reclaiming Freedom, Tradition and Constitution,” and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term.
A version of this op-ed appeared on the Newsmax website.
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