[This item was chapter XIX, pp. 328-336, in a collaborative project of conservative writers entitled This Is the FBI, prepared by Americans for Effective Law Enforcement, Inc., in Evanston, Illinois, and published in 1975 by Friends of the FBI, Inc.] 

 

The Ultimate Safeguard 

Dwight D. Murphey

 

            A discussion of the appropriate “checks” delimiting the FBI will by its very nature focus on potential abuses.  Accordingly, it is desirable at the outset to emphasize—so that it won’t be lost sight of in the discussion—a necessary complementary truth: that there is important work to be done and that if that work is not done by either the FBI or some other agency, legitimate and perhaps sacred interests both of government and of private citizens will suffer.  It is a matter of no small consequence to a free people that this work get done.

            The problem, of course, is the classic one of how best to arrive at the optimal balance between an energetic governmental performance of needful functions and the conditions of a free society.  Libertarians or “classical liberals” (to differentiate ourselves from the contemporary type of “liberal” who in most areas has little respect for the principle of limited government) have traditionally theorized that individual freedom is protected by checks on the power of governmental institutions.  It will be our task in what follows to examine several of the relevant facets of that theory as it applies to the FBI.

            As we talk about restraints on police or investigative functions, it is well to keep in mind that an ineffectual “check” may be worse than no check at all.  If, say, the Attorney General is the primary external supervisor of the FBI but does not actually exercise that function, then his presence has merely retarded the development of an alternative supervisory system that could have been more active.  Another example could relate to the courts’ supervision over searches and seizures; if they are to pass on warrants but often do not take the task seriously, a vacuum is left that could perhaps be better filled.

            The restraints must be neutrally applied so that they do not depend on “whose ox is gored.”  Here we cannot have a double standard.  One rule cannot be applied where the political Left is concerned and another where dangerous reactionaries are involved.  It is inconsistent to want the FBI to investigate only after a known crime has been committed when revolutionary activity is involved, but to be enthusiastic about general infiltration of the Ku Klux Klan.  The principles governing investigation should be the same in each instance.

            Perhaps the most important check on FBI power has been its limited jurisdiction, which in turn has limited its size.  An agency whose size relative to society is small will, other things being equal, be less dangerous than one that is large; size gives rise to influence and coercive potential.  Thus, from a libertarian standpoint, smallness is to be preferred, particularly in a law enforcement agency, if it can be accomplished without great sacrifice to other goals.  The country was fortunate, in my opinion, to have had for as long at the head of the FBI a man who repeatedly urged Congress to check the jurisdiction, and thus the power, of the Bureau.  One would wish that the proponents of new Federal programs would equally pause in the future to consider the effects of those programs on the expansion of the Federal police power.

            Still another important check is to be found in the “rule of law,” which limits administrative discretion.  Director Hoover often underscored the need for the FBI’s conformance to law: “Should the day ever come when the Director… has the discretion of choosing those laws which his service will enforce, then indeed we will have a Gestapo….”

            There are, however, subtleties; this ideal is not so easily gained.  In the twentieth century the trend has been strongly away from the Rule of Law; the overwhelming Zeitgeist among contemporary legal philosophers favors increased judicial and administrative discretion.  This tendency presumptively clashes with a strict legal delimitation of any agency, including the FBI.  In the area of anti-trust laws, say, there have long been those who have wanted them deliberately kept ambiguous, so as to give administrative flexibility.  If the FBI has tasks in enforcing them, the ambiguity is not its fault, but the potential for abuse of liberty exists nevertheless.

            The rule of law being presently held in low esteem, there is a question of how long we can reasonably expect the FBI will honor the concept.  It has done so to date; the essential conservatism that has dominated the Bureau has helped delimit the FBI, which has shied away from a “social engineering” view of its functions.  It is problematical whether it will continue to do this under a new director.

             The problem cannot be totally obviated.  The Overstreets in The FBI and Our Open Society are somewhat naïve when they say that “the FBI’s jurisdiction… holds no area in which the Bureau can adopt a Hamlet-like stance and ponder, ‘To enforce, or not to…’”  The facticity of all action is such that every time someone undertakes one task, as an investigation, he automatically has fewer resources to devote to the deeper investigation of something else.  And there would be no remedy for this inherent discretion, unless Congress were to set down definite expenditure priorities itself in the internal operation of the Bureau.  The important thing is that this discretion be kept in view and that Congress set standards to the extent that other considerations are not overriding.

            Another aspect of the checks on FBI power is the fact that the Bureau shares federal investigative responsibility with other agencies.  The FBI will never entirely control federal law enforcement when coequal agencies such as the Bureau of Narcotics and Dangerous Drugs and the Treasury Department have their own investigative and enforcement forces.  These other agencies have important law enforcement jurisdictions.  By splitting the federal law enforcement jurisdiction among various agencies, the potential for aggregated power in any one of them is minimized.

            There is, on the other hand, merit from an administrative viewpoint to collecting certain assignments under one bureau.  There are the well-known efficiencies of scale: some tasks require coordination of associated matters; and the expertise provided by an experienced agency, (the FBI), can tip the balance in favor of adding the assignment to the Bureau’s jurisdiction.  Even this ought, however, to be done with circumspection; Americans ought to resist the lures of the “efficiency experts” who from time to time recommend centralization of all federal investigative work within the FBI.  This would perhaps appear neater in the federal organization charts, but we are reminded that should the will exist to use the FBI’s powers against individual freedom, the very efficiency of the Bureau would itself then be dangerous.

            Within an individual case, the functions should be shared by several centers of power.  In the literature of liberty spanning several centuries there have been frequent comments that the combination of legislative, judicial and executive functions in the same hands is the very definition of tyranny.  We may believe this an overstatement of the point and yet think the separation of powers a critical method of “check and balance.”

            The key limitation here is that the FBI is not responsible for evaluating its investigative information for purposes of deciding what action should be taken.  Hoover steadfastly maintained that his agency did not evaluate the results of its investigations, and the former Director resisted moves to place the responsibility upon the FBI to draw conclusions.  As an illustration, author Don Whitehead pointed to the time in 1950 when Mr. Hoover prevented the passage of legislation amending the National Science Foundation Bill to require the FBI to certify the loyalty of each person investigated.  Also, the Overstreets have stressed the importance of this separation of investigation and evaluation, saying that “painstakingly to assemble facts and transmit them, unedited and unevaluated, to whoever must interpret them as a basis for federal action: this is the proper and limited role of the FBI.”

            Critic Fred Cook has called this a fiction.  He points to testimony by Mr. Hoover to the effect that Hoover “had assured the Attorney General I felt it was unwise for  (Harry Dexter) White to serve,” and quotes Arthur Krock to the effect that this “was evaluating plenty.”  Elsewhere the point is made that FBI agents often make their own conclusions known to the U.S. prosecutors.

            We do not doubt that the members of the FBI are human and will sometimes make their feelings known.  But the principle of non-evaluation is agreed upon by both the FBI and its critics, and should be followed as consistently as possible.  In any case, of course, it is worth keeping in mind that the ultimate responsibility for deciding on a recommendation rests on someone outside the Bureau.

            In the same way, the FBI is restricted from “railroading” its enemies to jail by the fact that the federal judiciary must be involved in the process of federal law enforcement.  Though we will consider the courts’ role separately, it is important to note that the courts in fact share a portion of the total governmental function with regard to any given federal case.  Not only do grand juries, U.S. attorneys and judges “look over the shoulder” of the FBI, but they also play a substantive role in each case.

            If the FBI were, say, to arrest an individual unreasonably, the inconvenience and expense could not be totally alleviated, but at the trial the judge or jury have a very real ability to mitigate the abuse by acquitting him.  Or the prosecutor might have refused to prosecute (or have refused to ask a magistrate to issue an arrest warrant in the first place).  These are important checks that arise out of the sharing of functions.  Though we virtually take them for granted in our system of government, such checks are constantly operative and important.

             It is not likely that the aforementioned separation of powers concepts, which have guarded against an overly-powerful FBI, will be removed.  The greater danger is that federal power itself will overwhelm the traditional division of powers between the Federal and state governments.  It is this erosion that could possess the FBI with too much power.

            In his book Crime in a Free Society, Robert Winslow has stressed the existing decentralization of American law enforcement.  “There are today in the United States 40,000 separate agencies responsible for enforcing laws on the federal, state and local levels of government… There are only fifty law enforcement agencies on the federal level of government and 200 departments on the state level.  The remaining 30,750 agencies are dispersed throughout many counties, cities, towns, and villages that form our local governments….”

            But from a different perspective, Avella J. Younger, Attorney General of California, stated in the February 1972 issue of the American Bar Association Journal that “barring a massive effort by the public and their officials to change the national course, the takeover of local law enforcement functions by the Federal Government will soon be accomplished.”  He attributes “an avalanche of centralization in criminal justice and law enforcement” to several factors: the federal government’s superior financial capability; the view that is common among federal officers that they are themselves more capable than local officials; the phenomenal growth of habeas corpus in the federal courts, which today often preempts state criminal justice; the growing reliance by prisoners on certain Reconstruction legislation enacted over a century ago; the increasing prosecution of local officials in Federal courts.  Finally, he warns of the pending Federal Criminal Code, which he reports would create direct federal jurisdiction over important crimes without regard to whether state lines have been crossed or other federal jurisdictional criteria met.

            A classical liberal finds much value in decentralized government and particularly in a decentralized police power.  A decentralized police constitutes an important obstacle to a national police state.  But the process of centralization has been going on even longer than Younker’s comments would suggest.  At one time even the killing of a federal officer was considered a local crime; it was declared federal in 1934.  Today, few “states’ rights” scruples exist; more and more is federalized.

            This is part of a general shift in governmental power that has occurred over several decades.  In the late 1930s the Supreme Court vastly expanded the “interstate commerce” jurisdiction of the federal government; in matters of civil regulation there have been no real judicial restraints for almost four decades.  Congress held back from exercising this full jurisdiction for several years, but now appears to be forgetting even these inhibitions.  A few years ago even the Truth in Lending Law would have been thought a presumptuous invasion of state jurisdiction.

            This shift has been due to many diverse factors—some ideological, some arising out of the centralizing effects of modern transportation and communication, some attributable to the failure of local institutions (as commented on as long ago as 1908 in Woodrow Wilson’s Constitutional Government in the United States).  It will require a national redirection to reverse the tendency.

            In another connection, the literature is somewhat ambivalent about the desirability of making the FBI closely subordinate to the Attorney General.  In his annual report for 1908, Attorney General Charles Bonaparte spoke in terms of intimate control: “The special agents, placed as they are under the direct orders of the chief examiner, who receives from them daily reports and summarizes these for submission each day to the Attorney General, are directly controlled by this department and the Attorney General knows, or ought to know, at all times what they are doing and at what cost.”  Mr. Hoover has reiterated the principle of subordination: “We are not a policy-making organization.  The FBI is a service organization which is subordinate to the Department of Justice.  And that is as it should be.  The FBI should never be permitted to become an independent agency….”

            It is not uncommon, on the other hand, to praise the independence of the Bureau.  Fred Cook quotes Attorney General Stone in 1924: “’Everyone says he’s (Hoover’s) too young,’ Stone said, ‘but maybe that’s his asset.  Apparently, he hasn’t learned to be afraid of the politicians, and I believe he would set up a group of young men as investigators and infuse them with a will to operate independent of congressional and political pressure.’”  There is to some degree a contradiction here; subordination and independence are opposites.  Each is useful in a given context: Independence if the attorney general is ruthless or corrupt or if pressure groups seek advantage; subordination if the Bureau on its own would run amuck.

                Critics charge that the attorney general has exercised little real control.  Newsweek reported on May 19, 1971, that “the complaint now is that the FBI has not been accountable for its procedures.  The fact is that it has never been held fully accountable by administrations or Congresses and so has gone on following its own instincts.”  H. H. Wilson in the Nation has written that “it is also essential that direct supervision of the Bureau’s activities be restored to the Attorney General.  The late Robert Kennedy appears to have been the first attorney general in years to visit FBI field offices and to issue an order to agents.”

            If subordination to the Department of Justice is to be the criterion, there must inevitably be some truth to the criticism.  In the absence of a definitive administrative mechanism for detailed review, the attorney general’s day-to-day knowledge of the operations of the Bureau are bound to be relatively sketchy or to depend on what the director tells him.  Even if an attorney general visited field offices, this would, as a control, be primarily symbolic.

            And yet the point can be overstated; the Bureau can be subject to effective ultimate control even in the absence of day-to-day scrutiny.  Mr. Hoover served under several presidents and attorneys general and there have been other men who under our elective system have come close to being president or attorney general; accordingly, there have been a number of powerful men who either actually or potentially could have made sweeping changes, had they felt so inclined and if the American public had supported them in it.  Though this is not an hour-by-hour check, in an open society it is extremely significant.  In ultimate fact, the FBI is presently under the control of each president.

             This is not to say that the attorney general has not on occasion exercised direct review, as in 1940 when Attorney General Jackson had Henry Steinhart, the Chief of the Civil Liberties Unit of the Department of Justice, conduct an investigation of an FBI raid on the Spanish Loyalist sympathizers in Detroit and other places.  He vindicated the Bureau in that case, but that isn’t the point.  Such an ad hoc procedure is available at any time.

            More worrisome perhaps than independence is the possible subordination of the FBI to a ruthless attorney general, president or ideologies party.  Were all these to coincide, executive checks from outside the FBI would by definition be rendered nugatory. 

            Given these difficulties, America has indeed been fortunate that the FBI was for so long directed by a scrupulous man who resisted politically motivated Justice Department campaigns, but recognized his subordination on policy to the Department.  This will be a continuing challenge to the subsequent directors.

            It is my belief, however, that so crucial a matter ought not to be left to the vagaries of personal choice or temperament.  I would think it most compatible with classical liberal principles to (1) gain the desired goal of direct responsiveness to the current administration and its felt needs by having a director appointed by, and responsive to, each new president, subject only to the ratification of the director’s appointment by the Senate; and yet at the same time (2) to assure a finely-honed operational restraint by taking the department within the FBI that conducts internal inspections and placing it under the direction of a bipartisan commission composed of members of each major political party.  As with many other agencies, its members should have relatively long terms, which should be staggered.  Together, these proposals would mean that the current administration would actively determine FBI policy, but that abuses would be held in check by a body that would contain persons not affiliated with the administration.  This body would have inside operational knowledge of the day-to-day activities of the Bureau and its agents, and hence would possess a better veto over potential abuses than any previously known in the area of law enforcement.

            The legislative branch also has ultimate authority over the FBI, a check that in a government run by the people must always exist.  The very existence of Congress constitutes a major check on federal police conduct.  Though in a very different America the day may come when Congress cowers in fear, the 435 representatives and 100 senators are today effective Ombudsmen for their constituents.  Even a single representative or senator is able forcibly to air grievances to the public.  And the structure of Congress is available: its committees often investigate charges at length—a process that may result in an attempted whitewash, but that also may not.

            As a potential, this is not lessened by the relatively low intensity of Congressional criticism of the FBI during Mr. Hoover’s tenure.  Of course, anyone reading J. Edgar Hoover’s testimony before the House Appropriations Subcommittee, before which the FBI director appears annually, would recognize the questioning in recent years to have been habitually friendly.  But if we take the 1965 hearing into the 1966 appropriations, for example, there were six Democratic and three Republican congressmen on the subcommittee, coming respectively from New York, Florida, West Virginia, Iowa, Georgia, New Jersey, Ohio, California and Michigan.  Though there were in that hearing no unfriendly questions and one receives the impression that Hoover even knew in advance what questions he would be asked, the hearing could have exploded at any moment; it could have been teeming with hostility.  That it was not attests to the sound operation of the FBI, not to the impotency of the Congress as a potential check.

            There have, indeed, been some vehement criticisms over the years.  Senator Walsh of Montana introduced into the Congressional Record a long report on “Charges of Illegal Practice of the Department of Justice” before Mr. Hoover was director and Senator Norris once pressed for and obtained an investigation of an FBI operation.  At the subcommittee hearing in 1946, Representative Stefan was quite biting about the rapid growth of the FBI.  At the 1936 hearing, Senator Mackellar pressed Director Hoover with a number of questions designed (demagogically) to show that Hoover had never personally made an arrest.  As illustrated, Congressional criticism has long been possible.  The assertion that Congress has been intimidated or blindly pro-FBI appeals only to the deeply alienated.

             Congress is still an ultimately vital body.  The Senate now has the right to participate in the selection of the FBI director. The House has the power of the purse and of legislation, and can accordingly cause an agency to expand or atrophy, or can abolish it altogether.  Nor is it just one Congress that can do this; if one Congress does not, another can.

            One other check on the FBI comes from the review of FBI operations exercised in the judicial process.   As FBI agents gather evidence and present it to a U.S. Attorney, a process has begun that involves repeated intensive review of the evidence and of the agents’ conduct in getting it.  The U.S. Attorney himself scrutinizes the evidence with an eye toward its sufficiency for prosecution and toward attacks that can be made on it; a magistrate may already have been involved in granting warrants; a grand jury may peruse the evidence and the agents; at the trial, opposing counsel will hammer at them, seeking anything that can be faulted; the agents testifying are subject to severe cross-examination; if it is found that evidence was illegally seized, it will be excluded and this may negate the entire case; a jury may be present to judge the agents’ credibility and to provide relief, justifiable or unjustifiable, if for any reason it is unhappy with the government’s case; if there is a conviction, there are appeals: not just one, but often several, extending over a period of years.  Ultimately the case, and with it the record of the agents’ conduct, may be reviewed by the United States Supreme Court.  Moreover, that is not the end of it: habeas corpus actions can continue to test new theories of defense as they arise; and there may be criminal or civil suits against the agents, and sometimes the agents are brought into pretrial examinations in cases involving other parties.

            An illustration is the court process involved in the Rosenberg spy case.  The case was considered sixteen times by the United States District Court and there were seven appeals to the United States Circuit Court of Appeals.  Also, seven petitions were filed for review to the United States Supreme Court.

            No doubt this process serves as a substantial check on the FBI and its agents, who by no means act with the prospect that they can be guilty of misconduct with impunity.  Nor do they have the rubber-stamp protection of an ideologies court system, as was the case with the Nazis and is even now the situation in Soviet courts.

            Here, however, we see a two-pronged aspect that arises with regard to many of the “checks and balances” as they now exist: That the check when viewed from an ultimate vantage point is potent, but that it is very imperfect when viewed in terms of practical deficiencies.  Prosecutors may callously shrug off indications of agent misconduct; judges may pass superficially over the real reasons for a search warrant; even the defense counsel can be inexperienced or negligent; appellate courts may not be able to pierce through to the reality behind the written record.  Despite the fabled finesses of great defense lawyers and shrewd judges, a trial is often a very imperfect instrument—and an appeal even less perfect.

            Still, the judicial process is a good check on any abuses the FBI might practice.  Imperfect as it may be, the existence of the legal procedures available to a complainant, which procedures are now weighted more against the police than the suspect, serves to make any investigative agency more cautious, if not too much so.

            All of these things—respect for law, separation of powers, splitting of functions and jurisdictions, and external controls—are important safeguards.  Yet, the most important safeguard is the public itself.

            There are several aspects of the FBI’s relationship to public opinion.  First we must appreciate the multiplicity and vast potential for public pressure.  A large publisher, the Macmillan Company, felt free to publish Fred Cook’s scathing book in 1964; another published Max Rosenthal’s, another William Turner’s—and the latter has been in paperback on thousands of stands throughout the country.  Scholars, demagogues, special organizations, great radio and television networks, political parties: all stand ready to make flaming issues out of felt abuses.

            Morris L. Ernst, a counsel for the American Civil Liberties Union, reported in his article “Why I No Longer Fear the FBI” in the December 1950 Readers Digest that “I wrote articles in which I asked readers to send me any evidence they might have that the FBI violated a person’s constitutional rights.  My scoreboard shows a remarkable absence of such accusations.”  Thus, even one man can serve as an Ombudsman to gather and articulate information about the FBI.  In Mr. Ernst’s case it produced results favorable to the FBI, but in theoretical potential it could have generated an avalanche of critical comment, had there been persons who felt aggrieved.

            The public, then, is the final and most lasting check on the abuse of federal police power.  It is to that body that we must turn, if erosion of governmental checks and balances is to be stopped, and perhaps reversed.

            As conservatives have pointed out over the years, the erosion of safeguards is a matter for grave concern.  The violent years of the past decade have demonstrated, however, that slow erosion is not the only possibility: there is the potential for rapid qualitative change under the impetus of revolutionary violence; and civil strife is more often a great destroyer of liberty.  Even as we contemplate such a possibility, however, it becomes apparent that our best assurance that under such circumstances the FBI would not become a totalitarian instrument of either the right or the left lies precisely in maintaining the safeguards that have existed in the past but that have been under erosion.  They are the tools available to us.  Now and not later is the most effective time to guard against the rise of a Gestapo or an NKVD in America.