The best way to ensure the independence of the Federal Bureau of Investigation (FBI) from the president while maintaining civilian control is to split the agency into separate organizations for criminal investigation and national security, argues a paper published in the George Washington Law Review.
Calls for the “independence” of the FBI, particularly in the wake of controversy connected with President Donald Trump’s efforts to halt the investigation into his campaign’s connection with Russia, are “misguided and dangerous,” wrote Justin Walker of the Louis D. Brandeis School of Law at the University of Louisville.
Although Walker writes he is not advocating splitting the agency, he says that those worried about presidential interference in the FBI’s criminal investigation should consider such a move instead of trying to make the “entire agency independent,” which he warns would violate the principle of civilian control of the military.
Giving such blanket independence to the FBI would threaten civil liberties and undermine the warnings expressed by the Founding Fathers about a military outside of civilian control.
“Just as distinct political, religious, and ethnic groups were often targeted by the armies whose abuses in Britain and the colonies caused the founders’ skepticism of standing armies, so too for individuals and groups targeted by the FBI,” wrote Walker.
The article details the history of civil liberty infringements associated with the FBI’s national security efforts, through the early 20th century to the post 9/11 world, listing abuses such as “illegal and warrantless wiretaps, buggings, burglaries, destruction of files, and harassment of political minorities, the gay community, and African-Americans.”
While the author also extols the FBI’s achievements, he notes that keeping the agency accountable to the president and congress is essential.
“The FBI director should not think of himself as the Nation’s Protector,” Walker wrote. “Instead he must think of himself as an agent of the president. Of course like any military officer, he should give candid advice and like any military officer, he should not obey illegal orders.
“But he must not make the mistake of (former) Director J. Edgar Hoover and view himself as an independent force who can decide for himself what practices to pursue, what politics to embrace, and what commands from the president or attorney general to obey.”
Walker warned, “When the FBI is independent of the president, it is independent of us—and of anyone.”
The article says splitting the agency into two separate units –one for criminal investigations and one for security—“would be consistent with the principle of civilian control of the military,” and follow a model used by other countries such as the United Kingdom, where MI 5 is in charge of counterterrorism, counterintelligence and domestic intelligence; and New Scotland Yard is responsible for criminal investigation.
Walker said the 9/11 Commission came close to recommending such a reform.
But the effort failed after “extensive lobbying” by then-FBI Director Robert Mueller, who currently heads the probe into the Trump campaign.
The full paper can be downloaded here.
TCR news intern John Ramsey contribute to this summary. Readers’ comments are welcome.