The Wavering “Wall” Between Intelligence and Law Enforcement: A Longer View

This article is a commentary on Bernard Horowitz’ paper entitled FISA and the “Wall” (to be published contemporaneously), which focuses on the revelations of irregularities in the FISA surveillance process targeted on Carter Page. This commentary pulls back from that narrow topic, to place these particular problems in a longer and broader context of larger forces at work that may make addressing the current problems more problematical. The commentary identifies four larger forces at work that played at role at producing these current abuses. First, Americans have long suffered from a mistaken self-perception of discomfort or ineptitude with their own security arrangements, particularly with respect to intelligence and counter-intelligence. Using the example of the Pearl Harbor attack in 1941, the commentary shows that, in fact, America was well-served by its pre-war preparations and the performance of its intelligence services. Nevertheless, a mythology arose that Pearl Harbor was an “intelligence failure,” and that mythology has affected America’s security and intelligence arrangements ever since, influencing the provisions of the National Security Act of 1947, which still today serves as the foundation on which our current national security institutions are built. This same pattern of perception of an “intelligence failure” and a legislative response to re-structure intelligence arrangements was echoed in the national response to the attacks of September 11, 2001. But these are not isolated events. In between Pearl Harbor and 9/11, Americans continued to wring their hands about America’s “intelligence failures” in a wide variety of otherwise dissimilar historical events, through which walked the specter of Pearl Harbor mythology, which evokes Americans’ self-doubts about intelligence capabilities. Second, the development of intelligence and surveillance methods has led to their improper use against American citizens, as was revealed during the Church Committee hearings in the 1970's. Part of the aftermath of those hearings was the creation of FISA, which seeks to distinguish between “domestic” intelligence surveillance, which is a crime without an order under Title III, and “foreign” intelligence surveillance, which can be authorized under the more permissive standards of FISA. Because both types are conducted by the same Bureau of the same Department, this arrangement introduces a duality and moral relativism into both agents and prosecutors of the Department of Justice, leading to a temptations to shift law enforcement efforts into the inherently criminal nature of intelligence and counter-intelligence activities. Third, there has been an increasing use of secretive and deceptive methods in all forms of law enforcement, which has been accompanied over the last 30 years with a decline in the state of prosecutorial ethics. These factors have exacerbated the problems introduced both by FISA and by the Classified Information Procedures Act of 1980. A classified information bureaucracy has arisen largely without accountability or legal control, which in turn has produced the misuse of the classification system to further attenuate the accountability of prosecutors. During this same period, the judiciary’s willingness to police the prosecutors has become more lax, and the Justice Department itself has developed a clubbish atmosphere that fails to police itself, and to some extent even rewards prosecutorial overreaching. Fourth, given the protracted nature of the decline in prosecutorial ethics, effective internal reform seems less likely than ever, and the problem is further exacerbated by the rise of careerism within federal prosecutors, which is a sharp change from previous decades. The article concludes that these larger forces indicate that the problems within the Department of Justice go far deeper than the Carter Page/FISA episode. A free people will not long endure a Justice Department that does not pursue justice rather than litigating advantage. It is time to restore the traditional ethics of federal prosecution, and observe fairness to all, including the prosecuted defendant. As for “Crossfire Hurricane” itself, though its codename was sophomoric, the execution was infantile. The unprofessional aspects are baffling, but there are still a number of loose ends, which may need to be tied up before a final judgment may be made.