With Federal Bureau of Investigation whistleblowers regularly informing Congress about agency abuses, it is difficult to remember that the FBI was once a quiet little bureaucracy mainly confirming facts for U.S. Department of Justice legal decision-making.
Today the FBI is involved in everything from national-security excesses to charges of playing politics to protect one president and indict another. Just now, an ex-FBI counterspy chief has pled guilty to laundering funds for a Russian billionaire.
The FBI’s own official history traces its origins to the assassination of President William McKinley and succession by progressive hero Teddy Roosevelt, who appointed the equally progressive Charles Bonaparte (grandnephew of Napoleon) as attorney general. Noting the absence of a DOJ police force, Charles set out to create one, first seconding agents from other departments before Congress forbade it. Then, as FBI official history says, “apparently” with the support of Roosevelt, he quietly created his own internal police in 1908.
World War I saw FBI personnel grow from 34 to 360, to police millions of “enemy aliens” of German ancestry to discover possible spies and, peculiarly, to combat prostitution. The history concedes that the “Palmer Raids” were “poorly planned and executed and heavily criticized for infringing on the civil liberties of the thousands of people swept up in the raids.”
Alcohol prohibition and mob reactions in the 1920s further increased FBI policing, often in opposition to local authorities. The creation of a national fingerprint file found support locally but created more dependence. World War II antifascism and Cold War anti-communism policing were popular but also came under criticism for abusing associational and free-speech rights.
The 1964 Civil Rights Act and the 1965 Voting Rights Act added rights-enforcement and affirmative-action responsibilities to become “one of the Bureau’s top priorities,” later expanded to “hate crime, human trafficking, police brutality, and other crimes.”
The biggest change was what the history calls a “new era of national security” responsibility, following undetected terrorist attacks on the World Trade Center, the Pentagon, and a fourth plane into rural Pennsylvania. These resulted in Congress giving FBI responsibility for internal security and intelligence, “one of the most dynamic transformations in the history of the FBI.”
The Problem With the Modern FBI
But this multiplication of functions over the years came at a great cost to effective FBI management and performance. As public-sector administration expert James Q. Wilson of the University of California, Los Angeles, has explained in his classic Bureaucracy: What Government Agencies Do and Why They Do It, the more separate functions a government agency has, the more difficult it is to manage. Ludwig von Mises’ Bureaucracy added that, unlike the private sector, the multiple divisions and layers of government bureaucracy have no profit and loss to measure unit success or failure.
The problem with the modern FBI jumps out from its official mission statement: “The FBI is an intelligence-driven and threat-focused national security organization with both intelligence and law enforcement responsibilities. It is the principal investigative arm of the U.S. Department of Justice and a full member of the U.S. Intelligence Community.” With competing missions — and a large increase in size — the FBI fell afoul of the imperative to simplify decision-making. (READ MORE: Did a Mentally Challenged Teenager Just Become the Victim of an FBI Entrapment Scheme?)
In 2011, FBI Director Robert S. Mueller III explained to Congress how the 9/11 terror attacks led to a “paradigm shift” in mindset by elevating “counterterrorism to its highest priority”:
Prior to the 9/11 attacks, the FBI’s operations were heavily weighted towards its law enforcement mission; intelligence tools and authorities were primarily used for the counterintelligence mission. In the immediate aftermath of 9/11, the FBI quickly identified the need to enhance intelligence programs.…
This new approach has driven significant changes in the Bureau’s structure and management, resource allocation, hiring, training, recruitment, information technology systems, interagency collaboration, and information sharing, as well as a paradigm shift in the FBI’s cultural mindset.
Change did not come easily. At first the FBI was criticized by Judge Richard A. Posner for placing too much emphasis on domestic legal investigation. Mueller’s deputy, John Philip Mudd, replied that the FBI did both law enforcement and intelligence but that under its “new model, intelligence drives how we understand threats, how we prioritize and investigate these threats, and how we target our resources to address these threats.”
The FBI then shifted emphasis so heavily to intelligence that it reversed the problem described by Posner. Today, the legal investigation ethos does not inhibit the intelligence work so much as the security emphasis overwhelms the legal mission. Thomas J. Baker, an FBI agent for 33 years, explained that placing intelligence higher than the original law-enforcement mission had changed the FBI fundamentally from a fact-gathering agency, where an agent would have to swear in court — and a “lack of candor” was a firing offense — to an intelligence agency dealing with “estimates and best guesses” not admissible in court. (READ MORE: You Are the Target of an Investigation)
Intelligence is more centralized than legal investigations, and decisions are placed in more media-sensitive hands, like those of Peter Strzok, the FBI intelligence director who was found to have discussed the possibility of using FBI authority against a presidential candidate he opposed. He was fired after being exposed, but the problem went beyond one person. Baker concluded that politicization and polarization were now endemic to the agency, with “no sense of the bright line that separates the legal from the extralegal.”
When Baker analyzed special counsel John Durham’s report, he found that the FBI did not have sufficient cause to even investigate Russia’s alleged collusion with Donald Trump’s 2016 presidential campaign, and that, as the report states, “the FBI failed to uphold their important mission of strict fidelity to the law”:
Mr. Durham describes how the bureau initiated its probe based on a conversation between unpaid Trump adviser George Papadopoulos and an Australian diplomat. No U.S. law-enforcement or intelligence agency thought the conversation was evidence of collusion, but the FBI launched a formal investigation anyway without “any significant review of its own intelligence databases” or “conducting interviews of witnesses essential to understand the raw information it had received.” The FBI also opened full investigations of four members of Mr. Trump’s campaign team.
Former FBI attorney Kevin Clinesmith, Baker explains, “committed a criminal offense by fabricating language in an email that helped the FBI obtain” a Foreign Intelligence Surveillance Court “surveillance order” against Trump foreign policy adviser Carter Page, “us[ing] an unverified dossier … as probable cause in its FISA applications.” Durham charged that those working on those applications displayed “a cavalier attitude towards accuracy and completeness.”
Durham concluded, “We therefore believe it is important to examine past conduct to identify shortcomings and improve how the government carries out its most sensitive functions.” FBI Director Christopher Wray, however, disagreed, saying that the report deals with the “actions of a few who are no longer part of the organization” and that the FBI has “already implemented dozens of corrective actions.” Wray at first even refused a subpoena from the House Oversight Committee to explain further but then testified on a more limited basis.
Who could blame Wray? He is the lone presidentially appointed executive at the FBI. Even if he were fired, who could fix things when everyone is protected by civil service laws in an environment manifesting secrecy? Separating domestic legal investigation and national-security functions into separate agencies could help, and legally restricting FBI actions to specific national laws could enable a return to a more constitutional federalism, but FBI history suggests that a proper balance would be arduous.
Donald Devine is Senior Scholar at the Fund for American Studies in Washington, D.C. He served as President Ronald Reagan’s civil service director during the president’s first term in office. A former professor, he is the author of 10 books, including his most recent, The Enduring Tension: Capitalism and the Moral Order, and is a frequent contributor to The American Spectator.