The Green Papers
The Green Papers

The "new" FBI and its threat to Civil Rights and Liberties

Thu 30 May 2002

Let's get this straight: the Federal Bureau of Investigation was set up as a fact-gathering/fact-reporting agency within the Department of Justice to aid the U.S. Attorney General (in his capacity as the chief law officer of the Land), his assistants and the several U.S. Attorneys in the Federal District Court districts across the country in prosecuting crimes against the United States as well as other legal cases in which the United States might be a party. "Fact" is a very important term of art in Law- for example, in a typical American criminal trial, the Judge is the "finder of law" (that is, the judge- for example- solely determines whether or not an objection by either the prosecutor or the defense attorney can be sustained in order to keep the trial to the "straight and narrow" of the rules of Evidence); however, the Jury is the "finder of fact" (that is, it is the jury that solely determines which witnesses to believe or disbelieve; the judge charges the jury with the law after closing argument [so that the facts thereafter determined by the jury can be- as correctly as possible- properly applied to the case before them during deliberations]); thus, "fact"- in Law- implies the pre-existence of what the U.S. Constitution itself calls "a case or controversy". The jury is the finder of fact re: Crime precisely because the trial itself takes place only because it is alleged a crime has already been committed!

Thus, the FBI has been committed- virtually since its inception as the Bureau of Investigation under the aegis of Teddy Roosevelt's Attorney General, Charles Bonaparte (yes, a collateral relative of Napoleon), back in 1908- to being an investigatory agency (hence its name) that gathers, reports- but does not analyze- its own data (analysis is, in theory, left to the Federal prosecutors who are charged with making the legal decisions as to whether or not- and, if so, how- to prosecute crimes). Yes, it is true that the FBI does engage- and, for a long time, has engaged- in domestic intelligence in order to deal with such issues as espionage, sabotage and, yes, terrorism and there are, thus, analogies to the foreign intelligence work of the Central Intelligence Agency; nevertheless, there is a crucial difference between the FBI and the CIA and that is that the CIA must also analyze whatever data it gathers (in order to provide daily briefings on the world situation to the President of the United States as well as to provide crucial, time-sensitive information to the members of the President's National Security Council) while the FBI is (and must) turn over what it has gathered to the prosecuting attorneys within the Federal system.

Now we have FBI Director Robert Mueller- operating under the aegis of Attorney General John Ashcroft- proposing not so much a sweeping reorganization of the FBI (as has been widely reported) as a sweeping redirection of that agency from fact-gathering/reporting investigation to prevention of incidents (most notably, terrorist incidents). The problem here is that allowing the FBI to make what are no more than educated guesses, based on the received data and other information, about where and when such an incident might occur is not at all "fact" in the legal sense of the term and is too dangerous a power to put into the hands of an agency that is part and parcel of a Department of Justice charged with, among other things, criminal prosecution at the Federal level. Those who fought the American Revolution, had they been alive today- a Revolution which eventually led to the very Constitution which this Federal department and its agencies (including the FBI) have been sworn to protect, would, in my opinion, clearly and so easily have caught that "tainted breeze" in which there would so strongly be "the whiff of Tyranny".

In addition to a change in focus and mission, there is to be the increase in the size of the counterterrorism section of the FBI- not only through the hiring of new agents but also through moving agents already in the Bureau from other duties, with a concomitant and negative effect on the FBI's secondary purpose of aiding State and local police and prosecutorial authorities, particularly as regards the apprehension and prosecution of those who have already committed crimes and have crossed state lines- or even international boundaries- either to commit such crimes or to, having committed them, attempt to flee prosecution for those crimes. Again, this is an abandonment of a large part of the FBI's traditional fact-gathering mission in favor of prevention before the fact at the expense of investigating such crimes that have already been committed and still await solution.

There is the argument- in favor of the FBI thus becoming more proactive than reactive, as Director Mueller proposes- that there already is a Federal law enforcement agency charged with prevention: this being the Secret Service, primarily charged nowadays with protecting the President, Vice President, certain other present and former high-level Federal officials and their families. However, this preventative function of the Secret Service is a.) so narrowly focused and b.) contained within a Cabinet-level Department other than that of Justice (that being the Department of the Treasury- this due to the Secret Service's original mission, which it still has, of protecting the integrity of the Nation's currency), thus well separating the analyzers within the Secret Service from those- the U.S. Attorneys and their assistants- who would have to then prosecute those arrested by the Secret Service in a court of law. No such separation can exist within the proposals put forth by Mueller on Wednesday 29 May!

I can only, in response, go back to my own proposal, briefly outlined in my 18 May Commentary and which- or so I would think- would be a better solution to the problem: that is, creating a Department of Homeland Defense (with its head a member of the National Security Council) which would analyze data it would gather on its own- as well as relevant data provided it by both the FBI and CIA plus other agencies- and then decide (with the advice of its own legal counsel, attorneys not at all associated with the Department of Justice) how best to proceed on any such data. Any alleged terrorist stopped by the new Homeland Defense Department would, of course, be turned over to the appropriate prosecutorial authority- Federal, State or Local- for further criminal proceedings against such an individual: this then well separating the analysis/prevention function of a new Homeland Defense Department from the investigation/prosecution functions of the Department of Justice and its agencies (including the FBI).

My fear is that, with the FBI now going headlong into the business of rounding up potential criminals "pre-crime", we will be facing a grave denting of the armor of Civil Rights and Liberties the Constitution of the United States is supposed to protect on behalf of all Americans as well as noncitizens who are guests in our country. These proposals simply put too much power into the hands of an already powerful agency of the prosecutorial department of the Federal Government and merely turns the Department of Justice itself into the American equivalent of the French Sûreté Nationale. Therefore, if we are going to be brutally honest about the whole thing, let's just also go and rename the FBI the "Federal Bureau of Intrusion"!

Modified .