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It is Time to Get The FBI under Control

My favorite television show is the old legal drama LAW AND ORDER -- the original, not any of the many spin offs from it. I still love watching the reruns. I can probably be diagnosed with an obsession. I would argue that my obsession rather than being with the dramas is with the principles of liberty and justice the show portrays and how they are preserved and protected in the American criminal justice system. The opening words of the narrator at the beginning of each episode define a fundamental principle of our Republic:

"In the criminal justice system the people are represented by two separate but equal groups -the police who investigate the crimes and the district attorneys who prosecute the offenders." 

That simple statement of "checks and balances" between powerful government forces, preventing power from being consolidated in the hands of a few, nor diminishing its effectiveness, is fundamental to enforcing law while preserving civil liberties. The recent scandals involving the misuse of authority by the FBI to consolidate power behind Hillary Clinton's quest to be President while undermining Trump's show that the structure of Law Enforcement at the Federal level diminishes individual liberties. The Federal Bureau of  Investigation is our nation's premiere law enforcement agency. The agency is organizationally aligned under the purview of the Department of Justice. The combined reach of two continues to expand. 

The recent scandals involving the surveillance and investigation of President Trump along with the mishandling of the Hillary Clinton email investigation during a Presidential campaign revealed the need for boundaries on investigative and prosecutorial authority. Carter Page, a low level Trump campaign volunteer, had frequent business assoications with Russia. After the hacking of the DNC campaign server the FBI rightly began to investigate the security of the election and Page's activity. A lack of structures and barriers between the counterintelligence and criminal pursuit lead to a blending of the two realms of the investigation, resulting in the issue of FISA application with out probable cause being established. What started out as a process inquiry evolved into an inappropriate criminal probe, which spun out of control. False accusations, inappropriate spying, a dubious special counsel investigation against Trump clearly lead to a misguided attempt to effect the outcome of the 2016 election.

The convoluted relationship between FBI and DOJ again botched the investigation into Secretary of State Clinton's email. In early 2016 the Inspector General of the State Department released a report on inappropriate use of emails by department personnel. The probe revealed that Mrs. Clinton conducted State Department business on a private  unsecured server in her private residence in New York State. Leading to questions of whether she had compromised classified information, and whether such activity was criminal. As part of it's hearings on the IG report The House of Representative subpeoaned her emails. Clinton's lawyers culled through the emails and only delivered the ones they thought were relevant to the investigation and reported that over 30,000 of her personal emails had been lost. Questions arose as to whether Mrs. Clinton or her team had violated the espionage act by maintaining a private server and whether they were concealing information by hiding email. The FBI launched and investigation.

In July of 2016 after a bungled investigation James Comey, the director of the FBI, announced that the investigation against Clinton was closed and that while her actions were careless they were in his opinion not actionable. On October 16 Clinton emails were found on the laptop of the husband of one of her campaign officials who was under criminal investigation in another matter. This lead to a reopening of the investigation into the Secretary's use of her private email server. Three days before the election Comey again announced that he had determined that Clinton had no criminal liability in the affair. 

These announcements were made after consultation with then Attorney General Lorretta Lynch, who may have been compromised by a conversation with former President Bill Clinton, the Secretary's husband, and other DOJ attorneys. The closure of a criminal investigation by the head of FBI represents at best a confused, convoluted process and at worst a criminal conspiracy to conceal crimes. A lack of barriers and boundaries between prosecution and investigation hardly served justice for either candidate.

A symbiotic relationship  between FBI and DOJ leads to a milieu of protection of inner circle relationships and preserving of institutional status quo. During the 2016 election cycle in a suspicion of candidate Trump, who ran on a platform of breaking up the commensalism inherent in the federal bureaucracy, arose. Had Hillary Clinton been elected President, the power and abuse of DOJ and FBI authority used against President Trump prevailed, and the FISA process succeeded in subverting a Presidential campaign,  our country would have become a police state where the outcome of the election was determined by the elite and powerful rather than the people. 

While some would argue that these abuses were the result of overzealous leaders, that most in the FBI would scorn these activities, I would ask who carries  out the directives of the leaders, managers? Is it not the agent in the field? Abuses of power are systemic to the FBI/DOJ symbiosis. In their self-protective relationship the civil liberties of the accused are too often violated. These agencies must be restructured if our Constitution is to be preserved. I disagree with those pundits reacting to recent events who say, this is not, like the FBI, it is a corrupt group at the top. I would argue there is a culture of state control and domination  runs through the FBI culture. The FBI has a legacy of protecting people's freedoms as long as they "stay in line." 

President Theodore Roosevelt established the FBI in 1908 to regulate "abuses in corporate capitalism." The Bureau was establish by executive order rather than by legislation. The constitution allows the President to call on Congress to establish administrative agencies by law. When an agency is created legislatively to serve the executive the laws are written to more fairly consider the rights of the people the Congress represents. Oversight was lacking in the founding of the FBI.  

Originally established  as the Bureau of Investigation to carry law enforcement function of the Executive Branch. It's first Chief Examiner was  Stanley Finch. Finch became obsessive about the crime of prostitution after the passage of The White Slavery and Trafficking Act of 1910, and the many bank robbers, such as John Dillinger, that were travelling across state lines to commit their crimes and allude local and state authorities. He exercised his authority ruthlessly sometimes with little regard for the rights of the accused.

Finch's successor Bruce Bielaski served from 1912- 1919, which was a period of War in Europe that would eventually engage the United States. Congress gave the bureau the authority to enforce the Selective Service Act, enacted the Espionage Act and the Sedition Act. During his tenure Bielaski detained young men without cause until they could prove they had registered for the draft. German Americans were detained in camps during World War One. Newspapers were shut down and those who opposed the war were detained because they spoke against the nations powers. The FBI prosecuted and jailed Eugene B. Debs, a former Wilson opponent for President, because of his opposition to the war.  The scandals in the FBI continued after Bielaski left.

The Warren G. Harding administration was under investigation because of financial malfeasance. Secretary of Interior, Albert Fall allowed oil companies to tap the nation's strategic oil reserves in return for kickbacks. When Senator Burton K. Wheeler began investigation into what came to be called "the teapot dome" scandal Attorney General Harry Daugherty used the FBI to investigate Wheeler on false charges and trumped up accusations. The Director, William J. Burns 1921 - 1924 had been a private investigator rather than in public law enforcement, operated on the principle the "ends justifies the means." The Attorney General was using the FBI to investigate the political opponents of the President in an attempt to distract the American people from the scandal, protect Albert Fall, and the President from political retribution. Burns was followed by the infamous J. Edgar Hoover.

During the Depression crime was rampant and many Americans were suffering. Franklin Roosevelt, himself no defender of Civil liberties, wanted a strong hand at the FBI and appointed J.Edgar Hoover. Under Hoover the agencies culture of abuse was nurtured:

  • In the 1930's the Chief Justice of the Supreme Court accused the Executive Branch of survieling the court to put pressure on Justices to rule in favor of the administration. What seemed outrageous at the time seems quite plausible today.
  • From 1956 -1971 the FBI ran a program they labeled a COUNITELPRO. The objective was to incite criminally violent street warfare among opposing political groups to get people fired, to portray innocent people as government informants, to target political groups through targeting by the IRS. They sought to cripple and corrupt organizations and people they deemed anti-american -- communist, white supremacist, racist, black civil right groups and powerful people like Martin Luther King. 
  • The FBI abused their authority when Steven Hatfil a civilian contractor for the US Army was falsely targeted by the FBI and his career and reputation were destroyed.
  • Security Guard Richard Jewell was falsely targeted for investigation in the Atlanta Centennial Park Bombing during the 1996 Olympics. He was mercilessly harassed and hounded unnecessarily. Some believe the stress of the investigation lead to his early death by heart attack at the age of 44. 
After Hoover died President Nixon replaced him with L.Patrick Gray who was his sycophant and continued to use the FBI to target Nixon's political opponents. His Deputy Mark Felt was angry at Nixon because of the appointment. He had applied for the job and felt he was better qualified. He vindictively leaked information about financial improprieties in the Nixon re-election campaign to Washington Post reporters Bob Woodward and Carl Bernstein, creating a media firestorm of opposition to the President, which resulted in expansion of the Watergate Investigation. 

While the investigation uncovered improprieties that resulted in a Presidential resignation Felt's actions were hardly heroic. He leaked classified information, violated the President's due process rights and used the agency to harm both the Attorney General, John Mitchell, and the President because of a personal vendetta. Mark Felt demanded that Woodward and Bernstein keep his identity secret until after his death, because he knew that once his motivations were revealed his actions would be viewed as ignoble if not criminal. 

Director Grey was followed by William Session who simply maintained the status quo and was eventually fired for his use of FBI funds and property for his own personal benefit. Session was followed by Robert Mueller who was has a reputation for prosecutorial misconduct in the Whitey Bulger and Enron prosecutions. Which leads us to James Comey whom we now know oversaw an improper and possibly illegal investigation into the Trump campaign and into the Presidency itself ultimately becoming the second director fired by a President.

While Comey's actions are clearly inappropriate are they any worse that any of predecessors? The recent report of FISA abuse in the investigation of Trump campaign volunteer Carter Page revealed Comey's lies, misconduct and complete disregard for the Constitutional right of either Carter Page or the President. Many in the Conservative media are maligning Comey as if he were some uniquely rouge director wielding power for his own corruption. I see it very differently. I see Comey as the product of the historic culture and unhealthy political climate that has been present at the FBI since it's inception. Comey was  a product of the political environment in the Obama DOJ rather than a malign agent. Comey had to go; his firing was appropriate, yet if the actions of his successor Christopher Wray are any indicator, his firing has done nothing to change the culture of the FBI.

Wray continues to resist attempts to investigate FBI misconduct. It is also evident that the connection between justice and FBI and DOJ leads to a culture of mutual protection of each other. One must only look to the misconduct of Deputy AG Rosenstein to see there are few systemic protections within the organization. It is to easy for a corrupt President or AG to use the FBI to harm his opponents. It is also to easy for the FBI to become protective of the establishment and interpersonal relationship in the DOJ and actually use its power against the President, the Congress or the people. The Spygate and Clinto email scandasl has  revealed that  the federal criminal investigation system needs to be reformed.

Should the Republicans regain control of the House I call on Attorney General Barr to ask Congress to make the following changes in the FBI/DOU structure:
  1. The authority for counter intelligence and criminal investigations need to be separated under separate agencies. The counter intelligence function would fall under the aegis of the Director of National Intelligence. Congress would create an agency the could conduct counter intelligence investigation under the direction of the President or Director of National Intelligence. These agencies would have no authority to arrest or indict but would be obligated to report suspicious intelligence activity to Department of Justice. Under this scenario if a campaign worker like Carter Page aroused suspicion he could be probed. The federal counterintelligence agency would refer to DOJ if it suspected criminal activity.
  2. Jurisdiction for investigation of Espionage or Criminal Activities involving National Security would be assigned to the Secret Service, which would increase it's personnel. 
  3. The FBI would be reassigned to the Department of Homeland Security. All future FBI directors would have to have spent at least five years immediately prior to their appointment outside of  the FBI culture. Under this scenario's upon completion of the Hillary Clinton email investigation the DOJ would have received the report and determined whether she was to be prosecuted. 
  4. The jurisdiction and  structure of the federal law enforcement agencies as well as the various offices of inspectors general - (Bureau of Alcohol Tobacco Firearms and Explosives, Criminal Investigations Division, Department of Veterans Affairs, Drug Enforcement Agency, Office of Inspector General Environmental Protection Agency, Office of Law Enforcement, Fish and Wildlife Service, Office of Inspector General Health and Human Services, Immigration and Customs Enforcement, Criminal Investigation Division, Internal Revenue Service, U.S. Marshal Service, US Postal Inspection Service and U.S. Secret Service)  that refer to DOJ would be reviewed to make sure they are aligned with the agency responsible for their appropriate area of jurisdiction.
  5. Legislation would be crafted prohibiting any Law Enforcement Agency to be subsumed under the authority of the Department of Justice. The Law Enforcement and prosecutorial function should be kept separate. 
These changes would enable the federal criminal justice system to enforce the law and to protect the Constitutional rights of our citizens. Under the above system whether an investigation began because of an indictment from a U.S. attorney, a criminal investigation from the FBI, or a counter intelligence investigation. Had a political appointee at the DOJ come to the FBI with a request to investigate  Carter Page they would have been under no direct organizational pressure to do so.  The two would operate independently. Neither side would have had the ability to compel the other to act. There relationship would be co-equal and cooperative. If the FBI has been granted a FISA application on Carter Page the DOJ would have been very likely to have declined to investigate due to a lack of evidence. We know this is true because it happens thousands of times at every level of government across the country.

 Although you can never completely overcome ambition and greed of the individual and there will always be abusive people and agencies.These simple changes would realigned legal boundaries so that it would be more difficult for any political party or group to manipulate law enforcement and DOJ for it's political end. There would always be a separate but equal sharing of authority between the agents and officers who investigated the crime and the U.S. Attorney's who prosecute them. The natural tendency to overlook fault an error caused by relational and organizational familiarity would be weakened. It is time to get the FBI under control. 

This post first appeared on Samson's Jawbone, please read the originial post: here

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It is Time to Get The FBI under Control


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