For Immediate Release
FBI National Press Office
Why the U.S. Doesn’t Need Secret Police
Judge Posner's March 19 advisory on re-engineering the FBI (Opinion, "Time to Rethink the FBI") op-ed deserves a response. I don't know this judge personally, but I admire his prolific ability to comment on the widest range of complex subjects. It is not clear from his outstanding biography exactly where he draws his law-enforcement, counterterrorism and counterintelligence expertise. What is clear is that no district judge in the republic would be able to qualify him as an expert witness in these areas without committing reversible error.
His long-winded thesis is that we should take away the FBI's counterterrorism and counterintelligence jurisdiction and create a secret, national police to exercise these most important and sensitive duties. Given the judge's total lack of experience in the practical and difficult worlds of investigating, collecting, analyzing and prosecuting either criminal or intelligence matters, he can be excused for pushing such a naïve scheme.
Nevertheless, it is a spectacularly bad idea, which is precisely why it has been repeatedly rejected by knowledgeable people.
Judge Posner may have missed the fact that for over 200 years, Americans have thoroughly rejected the notion of a national police force. While eventually a standing army and even a central bank were adopted over the objections of the Framers, the FBI did not become a law-enforcement agency until 1933, and even today has fewer than 13,000 special agents. The inefficiency of having over 800,000 state and local law-enforcement officers and dozens of sometimes-overlapping federal agencies in terms of jurisdiction is not a happenstance. Rather, it is a strong and perpetual decision by Americans to limit the authority of those who protect—and determine—their most precious liberties. For this very wise and critical reason, law and order in America is mostly local, controlled by mayors, town-hall gatherings and citizens to be as transparent as possible. Our federal law-enforcement and security agencies have been given certain enumerated authorities designed to protect the country but not to amass excessive power in any one agency.
Thus the CIA and FBI are given domestic and extraterritorial missions that are statutorily separated. The FBI, which has domestic law-enforcement powers, is designed to be as transparent as possible in order to ensure that it protects the nation as well as the rights and liberties enshrined in the Constitution. The oversight provided by the Congress, media and the many internal controls in the FBI and Justice Department have done a very good job over the years in making sure that we do not have a secret police force operating in the "perpetual black." More importantly, with rare exceptions, Americans have been well-served by the dedication and integrity of the men and women of the FBI.
Establishing in effect a secret police to monitor, collect and keep under observation those whom a nontransparent agency believes to be a threat to the republic is a dangerous and dumb idea. Judge Posner's citation to England's MI5 is romantic enough but needs to be qualified by the long and painful history of its operations in Northern Ireland, which are still unfolding after decades of secrecy and nontransparency. I suppose that this secret-police agency would appear before Congress in closed sessions and operate with a black budget. We accept this necessary covertness in order for the CIA to operate securely outside the U.S. and against foreign enemies. Americans in my opinion will never accept this mission to be directed against them as well as the many noncitizens who live and work under our flag.
Additionally, the practical dysfunction of such a secret-police agency is apparent to those who would be charged with the annoying details of executing such a knucklehead plan. For example, consider how the country's 17,000 other police agencies, myriad federal civilian, military and other public-safety and security institutions would liaise with this secret police. To say nothing of how the 193-odd foreign law-enforcement and security agencies would try to interface with this outfit. Would this secret agency have a platform in our foreign embassies, or would we confine its presence to our cities and countryside? What would be the intersection between it and what is left of the FBI? If an intelligence matter became criminal –or the reverse—how would the "handoff" be made in a manner that would protect evidence, sources and liberties?
If we learned one essential and painful lesson from 9/11, it is that the bifurcation and stovepiping of our intelligence and law-enforcement competences is a formula for disaster.
This is not to say that we can't do a better job integrating these disciplines, both within the FBI and the larger intelligence and law-enforcement communities. The fact that these structures can be further improved does not mean that they are broken. Having spent some time on the bench myself but also down in the arena, I put my trust in the men and women of the FBI to do the best job protecting this great nation under the necessary glare and transparency of the rule of law.
Federal Bureau of Investigation
(As printed in The Wall Street Journal, March 31, 2007)
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