GET THE FBI OUT OF THE JUSTICE DEPARTMENT The FBI has been part of the Justice Department since the administration of President Theodore Roosevelt a hundred years ago. With such a record the presumption is against change. But presumptions aren't always right. When they conflict with reality, they're never right. The reality today, whatever it may have been in the past, is that the FBI are police and the Justice Dept. is not. It is instead a prosecutor's office and nowhere else in America do we find the two under one roof. For most of the hundred years this hasn't mattered enough to make the change worthwhile. One of the reasons was that from 1924 to 1972 only one man ran the Bureau -- J. Edgar Hoover. Presidents and Attorneys General came and went, but he remained. Criics accused him of running the Bureau as an independent arm of the Justice Dept., rather than a real part of it, but he paid no attention, knowing that in doing this he was only replicating the normal relationship of police and prosecutors as it existed everywhere else in the country. And who was going to challenge him about it? Challenging an institution was a no-win proposition and none of his nominal superirors ever cared to try it. Things changed, though. Hoover's reputation peaked during World War II when he scooped up Nazi spies galore and was a confidante of President Franklin D. Roosevelt. After the war he found that Russian spies had a lot more friends than the Nazis, so that while scooping them up went over well with the general public, it didn't sit so well with leftist intellectuals, who tended to pick holes in his cases and carp about his methods, finding them to be insensitive to the nuances of the Constitution. Hoover trimmed his sails to this kind of criticism and demanded more discretion from his operatives than they had been used to. But he never gave in on essentials and the objective continued to be the suppression of crime and sedition, whatever restraints might be imposed by new laws and new attitudes. Since Hoover's death, though, it's clear that things have gone downhill. Obviously no subsequent FBI Director has been able to reach the stature of a man who served forty-eight years. They've lacked his authority and under them the Bureau has receded to its original role as an auxiliary to Main Justice, the control center of the Justice Dept. This general staff consists exclusively of lawyers. Law enforcement is not their job. Prosecution is. Prosecution is a kind of sport where you try as hard as any NBA coach to rack up a winning record. Phil Jackson and Joe Torre are your models. You too can be in the Hall of Fame if you are, say, 120-2 lifetime, convictions v. acquittals. To compile this record, you have an advantage the Hall of Famers lack. You can pick your spots. You can duck the tough teams and get fat on the setups. A football coach doing this can explain that he believes in giving everyone a chance and that is why he chooses to open his season against Slippery Rock as opposed to Ohio State. This doesn't work in Justice, but there are plenty of other subterfuges that can be employed. You can find that the evidence is insufficient or the witnesses are incredible or the arrest was not immaculate, or it's not the right time of the month, or whatever. The outstanding example of this, and the inspiration for this article, was the shipwreck contrived in the Moussaoui case by the superiors of Agent Coleen Rowley, who made her Time Magazine's Woman of the Year for 2002 and themselves poster boys for bureaucratic bungling. What sticks out in the case are the lengths to which the flak-catchers went to avoid having to do anything to follow up on the arrest of Moussaoui by the Immigration and Naturalization Service on August 15, 2001. He wasn't talking, but he had a computer to which he was refusing anyone access, making it a clear target for an immediate search. Searches are Chinese puzzles these days, thanks to the courts, but FBI headquarters didn't try to find a way to solve the problem, preferring to complicate it rather than simplify it. Consider this: "The...agents'...thought was to obtain a criminal search warrant, but...they needed to get FBI Headquarters approval in order to ask for Dept. of Justice Office of Intelligence Policy and Review approval to contact the U.S. Attorney's Office in Minnesota... "(who would apply for the search warrant). The picture is clear. The agents had to run through an obstacle course to get a simple search warrant against an INS detainee who had been identified by French Intelligence as an associate of Al-Qaeda taking a course in flying American planes. As most people know now, they didn't get their search warrant and nobody got to know what was on the computer until 9/11 was all over. (That's when they got the warrant; apparently the legal outlook had changed). Reading about the legal labyrinth down which the poor FBI man wanders looking for a way out is enough to convince anyone that the inmates have taken over the asylum. Once upon a time it wasn't that way. Not when Hoover was around. Even today it doesn't have to be. Miss Rowley points out that agents have the right under federal law to apply directly to a judge for a search warrant. Every agent is free to do this...if he doesn't mind offering his job up for grabs. As I've tried to show here, the fact that United States Attorneys control their local FBI offices is only part of the problem. The other part is the "lawyerization" of the FBI itself, whereby an internal structure is created which does the U.S. Attorneys work for them. As we've seen in Moussaoui the headquarters is just as keen as they are to maintain the correct ratio of convictions to acquittals. As Miss Rowley says, they don't want just a 51% chance of conviction, they want 75-80%. Anyone who knows them knows the truth of this. They have other restrictions too. In my own days as a bank security officer I found the U.S. Attorney wasn't accepting any bank cases involving less than a $5,000 loss. Too much work, I guess. Prosecutors are all like that. Give them a felonious assault and they'll want to know if the skin was broken. I didn't see that in the law, you say. Well no, but it's our rule down here. The skin has to be broken. Concussions don't count? Not if the skin...All right, all right, I know, I know. Yeech! It should now be clear why I've written this piece. I was a cop and I arrested those who seemed to need arresting. If in doubt about the perfect propriety of our actions, we consulted the gurus in the Legal Bureau. Otherwise we stuck to the letter of the Penal Law. If the District Attorney thought we had exceeded our brief, we discussed the matter with him and, sometimes, agreed to reduce the charge before appearing in court. Other times we just told him to go ahead and do his thing while we did ours. In the end, of course, he had the authority actually to throw out a charge he considered utterly worthless. In the ordinary course of things none of these things happened to any extent at all. We brought in the cases and the D.A. accepted them and prosecuted them and the only objectors were the prisoners. This is the relationship the FBI should have with the Justice Dept. The Dept. doesn't need to be in the position of running a police force, putting a crowd of constitutionally cautious lawyers in the position of being responsible for the actions of a lot of crazy cops they've never even seen and who might be up to God knows what outrages against the citizens unless they're under 24-hour surveillance. Conversely the cops don't need a corps of legal busybodies watching their every move and getting in their way when they're in hot pursuit of a fleeing felon. Unfortunately the FBI management doesn't seem to see it this way. Miss Rowley says that their response has been to create a new "Super Squad" to oversee the thundering herd of specialized squads already in place to fight terrorism. This is called "layering", also "gold plating" and even "CYAing" by cynics. It should be put down by law, and the reforms I have proposed adopted.
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