Law in Order: Reconstructing U.S. National Security
Mini Teaser: A bold proposal to end the estrangement of law enforcement from U.S. foreign policy--and not a minute too soon.
FEW TOOLS of U.S. foreign policy are as vitally important and as consistently overlooked as law enforcement. Terrorism, organized crime, drug trafficking, arms smuggling, sanctions busting and foreign corruption are serious challenges confronting American policymakers, and law enforcement has an important-- sometimes central--role in combating each of these threats. That role suffers, however, from two fatal flaws. First, differences in bureaucratic culture and viewpoints between the law enforcement and national security communities make coordination difficult. Law enforcement agencies generally refuse to see themselves as components of U.S. foreign policy. Nor does the traditional foreign policy establishment adequately appreciate the distinct culture, capabilities and constraints that characterize U.S. law enforcement agencies. Second, there are structural impediments to effective coordination, both among the various law enforcement agencies and between such bodies and the traditional national security agen cies. Federal law enforcement agencies, themselves riven by turf battles, lack proper civilian oversight and are organizationally ill-suited for integration into the wider foreign policy community.
Previous administrations have tried, but failed, to solve these problems. Too many important actors prefer things as they are, most significantly the various Federal law enforcement agencies themselves. In the past, the need to fix the systematic inefficiencies bedeviling Federal law enforcement seemed less pressing. But the world has changed, and U.S. law enforcement must change with it. Just as war is too important to be left to the generals, law enforcement reform is too important to be left to FBI directors and Customs commissioners.
International Crime: A Threat to U.S. National Security
FOR MOST of American history, there has been a bright line on the Federal level between national security threats on the one hand and criminal threats on the other. The former were international, the latter domestic. The international side was the purview of the military and intelligence agencies; the domestic side that of the law enforcement agencies. This separation was primarily intended to prevent military encroachments on civilian authorities and civil liberties. The fear of militarism in American civil society remains deeply embedded in the national consciousness and has long been incorporated into American governance. U.S. government actions are still defined by the Posse Comitatus Act, passed in 1878 to prohibit the military from performing certain domestic police functions.
In recent decades this bright line has blurred. Traditional crimes in the United States have increasingly been found to have links to criminal networks overseas. Narcotics trafficking, most obviously, cannot possibly be combated by domestic law enforcement operations alone. A bipartisan consensus also has emerged that the threat from foreign narcotics trafficking is not just a law enforcement concern but a matter of national security as well. Thus in 1987 did President Reagan overrule his Secretary of Defense and instruct the military to go abroad to help fight the war on drugs.
As technology advanced and borders became increasingly porous after the Cold War, it became increasingly evident that international crime in all of its various forms threatened U.S. national security interests. Sometimes the threats were direct. Terrorists groups like AlQaeda, no longer as dependent on state sponsorship, began targeting Americans at home and abroad. They also engaged in a host of criminal activities apart from terrorism, from arms trafficking to people smuggling to securities fraud. Vast networks of criminals based in Russia, Nigeria, Latin America, East Asia and elsewhere went global, infiltrating the United States as one of the world's most lucrative targets. Hackers halfway around the world broke into U.S. computer systems, including sensitive systems belonging to the military and intelligence agencies.
International crime also poses indirect threats to U.S. national security. Criminal syndicates have corrupted government officials, undermined democratic governance, and hindered economic development in many countries. This has been well documented in post-communist states like Russia, developing countries like Nigeria, post-conflict societies like Bosnia and countries of particular concern to the United States like Mexico. In Colombia, groups engaged in drug trafficking, terrorist activity and other serious crimes even challenge the government itself for control over territory and the population, just as typical communist insurgencies did a few decades ago.
Criminal syndicates have also helped to undermine regional stability. In Sierra Leone, for instance, the illegal smuggling of "conflict" diamonds helped finance a brutal civil war. Elsewhere in Africa and around the world, arms trafficking by organized criminal networks has stoked regional conflicts that might otherwise have died down. Criminal syndicates have been instrumental in violating U.S. and international sanctions regimes in such places as Iraq and Serbia. Russian criminal organizations are reportedly involved in smuggling materials for weapons of mass destruction--chemical, biological and nuclear. In other places, such as in Albania, criminal organizations have driven regime change, as when the collapse of a pyramid scheme precipitated anarchy and flooded next-door Kosovo with small weapons. Financial crimes such as money laundering and counterfeiting have the potential to undermine national banking systems and thereby to destabalize the global financial system. Economic crimes such as piracy--both physical and intellectual--affect U.S. companies' competitiveness in foreign markets.
What We Have Here Is a Failure to Communicate
GIVEN THESE considerable stakes, all appropriate foreign policy tools should be employed to combat criminal threats to U.S. security interests, and those tools should be employed in a coordinated process according to a comprehensive strategy. Unfortunately, this commonsense view is far too uncommon in Federal law enforcement agencies today.
As to the direct threats to this country--terrorism, drug trafficking and international organized crime--nobody denies that Federal law enforcement has a critical and even a predominant role to play. But other tools of U.S. foreign policy also need to be deployed to combat international crime, including bilateral diplomacy, cooperation in multilateral forums, financial sanctions, and in some cases covert operations and overt military campaigns. In these cases, obviously, law enforcement activities must be integrated into the overall strategies, even in those instances when law enforcement has the lead. Sometimes this works well. When it comes to the rendition of terrorists from abroad, for instance, U.S. law enforcement agencies have developed excellent working relationships with the military and intelligence agencies. But law enforcement officials who are accustomed to the considerable freedom of action and limited civilian oversight that domestic operations afford often chafe when confronted with the need t o coordinate with others when operating abroad.
Americans are proud that nobody in the United States, not even the president, is above the law. This principle is drilled into the consciousness of every law enforcement officer. Since the abuses of Federal law enforcement by the Nixon Administration, Federal agents have taken refuge in the axiom that criminal trails should be followed to their conclusion by non-political technical experts, no matter what the wider consequences may be. Law enforcement officers remain suspicious that requests for "coordination" with other government agencies, even on matters of foreign policy; are subterfuges for political interference. Even worse from the point of view of many Federal law enforcement agents is the argument that law enforcement objectives--putting individual criminals behind bars--should sometimes be subordinate to other objectives, such as disrupting a terrorist network, winning a military campaign, or "merely" maintaining positive bilateral relations with certain other countries. Some law enforcement agencie s have become especially adept at using the media and the Congress to draw attention to allegations of "political interference" in such cases.
This viewpoint is extremely shortsighted. First, the isolation of law enforcement agencies from other agencies and from the interagency process harms the effectiveness of law enforcement operations themselves. U.S. diplomacy is too often unable to assist law enforcement efforts because ambassadors are not informed about specific cases or are not asked to secure cooperation from foreign governments. Yet such diplomatic efforts can be extremely valuable, not least because many foreign governments are more comfortable speaking with U.S. diplomatic (or intelligence) agencies than with U.S. law enforcement agencies. Diplomats sometimes possess additional leverage to use on behalf of the national interest, as well.
One example: for years U.S. law enforcement strained hard and usually failed to trace criminal money trails overseas to countries with strict bank secrecy laws. Then, in 2000, a multilateral diplomatic initiative to "name and shame" certain money laundering havens successfully coerced several countries to change their laws and adopt stronger international anti-money laundering standards.1 Now, U.S. law enforcement can track money in ways it never could before. In recent months, Liechtenstein and the Bahamas-- two countries "named and shamed" -- have provided important information to the United States about elements of AlQaeda's financial network. It is inconceivable that the United States would have had access to this same information two years ago, before diplomacy was brought to bear on this problem.
Second, the lack of coordination with law enforcement agencies can harm U.S. foreign policy. Sometimes U.S. foreign law enforcement operations anger foreign heads of government when they are kept out of the loop. Not that foreign governments should be allowed to halt or hinder U.S. investigations; their anger and irritation is often a price we must pay to enforce U.S. laws. But law enforcement objectives can often be achieved without harming bilateral diplomatic relations--if only law enforcement personnel would stop intentionally hiding their activities from the State Department and the National Security Council.
Information as well as activities relevant to U.S. national security that come from law enforcement sources also often go unshared with the national security community. There are complicated, painstaking and heavily-scrutinized methods for disseminating intelligence information to law enforcement agencies, always scrubbed so it can be used in court without revealing intelligence sources and methods. But there are no similar procedures for information gathered by law enforcement agencies to routinely make its way into intelligence agencies and thereby into the wider national security community. It is up to law enforcement officials themselves to decide when information they have is relevant to national security, but such decisions often require expertise that law enforcement officials, through no fault of their own, do not possess. Nonetheless, for many years during the Clinton Administration, the Justice Department and the associated law enforcement agencies refused to agree to a basic memorandum of understan ding to establish even first principles as to how information should be shared.
The problems that have arisen from this state of affairs are not merely hypothetical. Former CIA Director James Woolsey has publicly complained that he was unable to obtain terrorist-related information once the Justice Department decided to bring the 1993 World Trade Center bombing case to court. In another situation during the Clinton Administration, the FBI discovered that the wife of the former Russian delegate to the International Monetary Fund might have been involved in illegally moving $7 billion in Russian money of unknown origin through the Bank of New York. Not until this case was reported in the New York Times did the Justice Department and the FBI think to brief the National Security Advisor or the Secretary of State on the matter. More recently, when on February 11 the FBI announced a terror alert concerning a 23-year-old Yemeni named Fawaz Yahya Al-Rabeei and his cell, it did not even bother to inform the U.S. embassy in Sanaa, or to share with it obviously relevant information that led the FBI to declare the alert.
Third, law enforcement objectives often differ from wider U.S. objectives, and that is natural. The FBI's job is to arrest criminals in such a way that a court case against them will result in a conviction that can stand the test of an appeal. But law enforcement goals should not be presumed pre-eminent by definition. Even when U.S. law1s have clearly been broken, other objectives may be more important to the nation. One such case is President Bush's wise decision to treat AlQaeda primarily as a military adversary rather than a law enforcement concern. Another example: During the Clinton Administration, the Justice Department repeatedly objected to the use of economic sanctions against foreign drug cartels as proposed by the national security agencies, preferring that efforts be restricted to building cases in U.S. courts. This view was held by the law enforcement agencies despite the success of President Clinton's 1995 order, under the International Emergency Economic Powers Act, to disrupt the Cali cartel's financial network. Not until 1999 were additional sanctions imposed, and then only after the Congress, frustrated by the lack of similar actions against other cartels, passed the Foreign Drug Kingpin Designation Act.
Problems of the Indirect
WHEN IT comes to direct threats to the United States from international crime, U.S. law enforcement agencies generally object to the involvement of national security agencies, believing that the latter may curtail or otherwise interfere with their operations. But this dynamic is reversed when it comes to indirect threats. In these cases, law enforcement agencies generally refuse to become substantially involved, notwithstanding pleas from the State Department. The reason is that many in U.S. law enforcement simply do not care if foreign countries and their governments are being harmed by international crime, unless there is a clear connection to a case that can be brought to trial in U.S. courts. As they see it, it is not their job to worry about damage to U.S. national security interests or regional stability abroad. That is also why law enforcement agencies give low priority to foreign law enforcement training and technical assistance efforts, administration of justice development programs, post-conflict go vernance initiatives, and the civilian policing components of UN peacekeeping operations. This reluctance has even carried over with respect to places such as the Balkans and Haiti, where conditions had previously deteriorated to the point that U.S. military forces had to be called into action. State Department officials are therefore left more or less on their own to deal with international arms trafficking, sanctions busting, alien smuggling, trafficking in women, corruption and all the rest of the dark side of globalization.
The costs of this abnegation are huge. The transformation of Russia into a functioning, market democracy was one of the primary objectives of U.S. foreign policy in the 1990s. Yet U.S. law enforcement took no serious interest in combating Russian organized crime, unless it set foot on U.S. soil. Moreover, Russian organized crime gained strength and influence in Hungary, a new NATO member and an important ally for U.S. efforts in the Balkans. This was of great concern to Hungary's President and had been identified as one of the primary threats to Hungary's economic and political development by the U.S. ambassador. Yet the FBI refused for years to assign even one agent to the U.S. embassy in Budapest, much less actively assist the Hungarian National Police in combating Russian organized crime. It took a meeting between President Clinton and the Hungarian President, and then a personal request from the National Security Advisor to the FBI Director, before even this small step could be taken.
The traditional national security agencies also share blame for the lack of integration of the law enforcement agencies into U.S. foreign policy. Most foreign policy experts know little and care less about the capabilities and limitations of U.S. law enforcement. As a result, unfair expectations are sometimes set or improper requests are made. International law enforcement issues are too often a secondary concern of the foreign policy establishment, and sometimes they are ignored entirely. Particularly when foreign governments themselves are implicated in crimes, U.S. diplomats can be reflexively unwilling to press issues that might result in a deterioration of bilateral relations. The State Department's Bureau of International Narcotics and Law Enforcement Affairs, despite relatively strong leadership in recent years, is still considered a bureaucratic backwater. It only rarely attracts the most capable civil servants and foreign service officers, and has historically been marginalized by the leadership of t he department.
SOME OF these problems might be solved by changes in leader ship, but structural changes will be necessary as well. In 1995, President Clinton issued Presidential Decision Directive 42 which, for the first time, defined international crime as a national security threat. An NSC-chaired interagency working group was established to coordinate the government's efforts to combat this threat. And in 1998 President Clinton released the first-ever International Crime Control Strategy, describing the goals and objectives of this new effort.
It paid off. Achievements include the aforementioned "naming and shaming" of money laundering havens, a series of multilateral treaties negotiated by the State Department on subjects such as small arms trafficking, a series of bilateral Mutual Legal Assistance Treaties negotiated by the Justice Department, greater efforts to combat trafficking in women, and the financial sanctions on the Cali drug cartel (the first time this tool was used against a non-state actor). There were also some successes in the wars on drugs and terrorism, and new initiatives to protect critical infrastructures from information warfare and cyber crime. But overall, despite President Clinton's personal interest and strong pushes from the National Security Council and the State Department, the effort left too much undone. Part of the problem flowed from the differing viewpoints and failures of coordination between law enforcement agencies and national security agencies, but other difficulties stemmed from structural flaws in the law en forcement community. These flaws deserve special attention, and remediation.
The very structure of the Justice Department illustrates the low priority assigned to curtailing international crime. Its international training, technical assistance, counter-intelligence and criminal programs are spread out over several different offices and report to a multitude of different Justice Department officials. Most regrettably, a single assistant attorney general oversees both international and domestic criminal investigations. One person who held that post during the Clinton Administration told me he had not spent even ten minutes thinking about international crime before he took the job. While the State Department, Pentagon and CIA are all organized geographically, no one in the Justice Department is responsible for what the department and its subordinate agencies are doing with regard to, say, Russia.
Even if there were such a position, the Justice Department would still suffer from its institutional inability to oversee its subordinate law enforcement agencies. During the Clinton Administration FBI Director Louis Freeh was rarely if ever held accountable by Attorney General Janet Reno. In keeping with the legacy of J. Edgar Hoover, Freeh functioned without effective civilian oversight, a pattern that was replicated down the chain of authority. The law enforcement agencies that fall under the Treasury Department's jurisdiction, too, operate more or less independently from the civilians to whom they are allegedly accountable. This became evident in 1997 when Ray Kelly, then the Under Secretary of the Treasury for Enforcement, took what seemed to be a demotion to become the Commissioner of the U.S. Customs Service-one of many law enforcement agencies that he already supposedly oversaw. The move only made sense upon recognition that Customs operates with little effective civilian oversight.
Even if the problem of civilian oversight were somehow fixed, the massive problems stemming from the sheer number of Federal law enforcement agencies would still exist, as would the lack of coordination among them, the lack of cooperation with state and local authorities, and the vast operational inefficiencies that result. In 1991 the General Accounting Office identified an astonishing 148 different Federal agencies with some law enforcement functions. (2) On far too many issues jurisdictional confusion hampers investigations. The various law enforcement agencies are notoriously turf-conscious, regularly refusing to share information with each other, always focused on securing "credit" for convictions.
The mission statements of many law enforcement agencies reflect this focus; to an outsider (and even to many insiders) they seem oddly centered on ensuring institutional primacy with regard to specific crimes, particularly ones where legal jurisdictions are unclear. "Interagency" offices and task forces are established to great fanfare and then become ineffective because key law enforcement agencies refuse to join or to genuinely participate, fearing "subordination" to others. Databases are therefore rarely combined between agencies and equipment is often not interoperable. Basic data on the number and types of crimes are often incomplete and are tracked according to differing methodologies in different agencies. Standardized procedures do not even exist across the law enforcement community in such areas as recruitment, selection and training; surveillance; rules of engagement; forensic laboratory management and classification and use of forensic data. In the course of virtually every high-profile case, state and local law enforcement officials complain that Federal law enforcement agencies refuse to share information, making it harder for them to function.
These are not new insights. Every decade or so an outside group of experts examines the structure of Federal law enforcement, and they all come to virtually the same conclusion: it's a dysfunctional mess. Sadly, these conclusions have all been ignored. In 1996, for instance, after the public outcry over law enforcement actions in Waco and Ruby Ridge, the Congress asked Judge William H. Webster, a former director of both the FBI and the CIA, to chair a commission to examine the state of Federal law enforcement. Its admirable final report was published four years later and, alas, promptly shelved. This was a shame. The Webster report is as comprehensive a review of the structure of Federal law enforcement as has ever been written, and includes a number of far-reaching recommendations. It is still not too late to adopt some of them.3
Time for Change
THE WEBSTER report's overall conclusion was that "the current organization of Federal law enforcement needs to be changed." While that call went unheeded during the final year of the Clinton Administration, the Bush Administration can and should take up the challenge now, and if it does it has good reason to expect success. That is because a rare confluence of events has pushed Federal law enforcement to a crisis.
First, a sting of high profile debacles have recently embarrassed the FBI, puncturing its public image and finally allowing criticisms to be voiced in public. Consecutive episodes such as the Robert Hanssen spy case, the botched investigation of Wen Ho Lee, the media leaks attacking Richard Jewell, the cover-up of deficiencies in its crime lab, its improper withholding of documents in the Timothy McVeigh case, and the intelligence and operational failures in the domestic war on terrorism have finally put many in Congress in the mood to ask some hard questions.
Second, there is a growing consensus that simply ponying up more resources will not solve the problem. After all, the Clinton Administration tripled the FBI's counter-terrorism budget and the number of its agents, and the FBI still failed utterly to detect the events of September 11 being planned on American soil. Nor had it any knowledge that Al-Qaeda was planning to attack Los Angeles International Airport during the millennium celebrations, something that came to light only after a terrorist was caught with explosives by an alert Customs agent at the Canadian border.
And third, now that the United States is at war with terrorism, questions about law enforcement reform have taken on a new urgency. The continuing investigation into Al-Qaeda's operations in the United States makes clear how much was missed and has highlighted the need for various law enforcement agencies to better share information concerning suspected terrorists. On September 11, as the public has now learned, the FBI had no computer system to centralize its intelligence and share it with other agencies. Tom Ridge, the director of the new White House Office of Homeland Security, is undoubtedly confronting the same coordination problems that beset the Clinton Administration after 1998, when it issued Presidential Decision Directives 62 and 63 and first established government-wide initiatives to defend against cyber- and bioterrorism. The Bush Administration--wisely, in my opinion--batted down suggestions that Ridge's office be made a separate agency; its real challenge will be to find ways to make the other agencies of government, including the law enforcement agencies, do their own jobs better.
Attorney General John Ashcroft and FBI Director Robert Mueller have already taken initial steps that show cognizance of the need for structural change. Mueller has overhauled the bureau's top management to place more emphasis on counter-terrorism and cybercrime. Ashcroft has rightly taken control of the terrorism investigation from the Southern District of New York, begun to separate the service and enforcement functions of the Immigration and Naturalization Service, and, at long last, given the Justice Department's inspector general jurisdiction over allegations of FBI misconduct-- a fundamental step if the FBI is to be accountable to civilian oversight. In recent months, too, Congress has passed legislation to encourage law enforcement to share more information with national security agencies.
President Bush should now take the next step and call for a comprehensive review of law enforcement, with the intention of producing lasting, systemic reform. Politically, such an effort is more likely to succeed if sponsored by a Republican administration, because the GOP has stronger traditional ties to law enforcement than the Democrats. President Bush will also benefit from the absence of the adversarial relationship that existed between some law enforcement agency heads and the Clinton White House, in part due to the several investigations of the President.
A New Vision for Law Enforcement
BEFORE THE administration sets forth to fix this problem, it would do well to recognize that the structural deficiencies facing Federal law enforcement are not without precedent. The reform of the U.S. military after World War II, which led ultimately to the Goldwater-Nichols Act in 1986, is a salutary model for study. This is not the place to review what has already been widely analyzed and well appreciated, except to stress three principal lessons. The first and most important lesson to be drawn is that the incrementalist approach does not work; the entrenched interests that oppose reform can be overcome only when leaders at the highest levels of the Executive and Legislative Branches work in a bipartisan spirit to seek comprehensive changes. The second lesson is that unification is the goal, "jointness" is the means, and clear lines of authority are the prerequisite. And the third lesson is that it is possible to ensure professionalism and even independence among career officers while still guaranteeing ef fective civilian oversight and wider integration into the foreign policymaking process.
So, then, what would a reformed Federal law enforcement community look like? There are four necessary components of reform: consolidation of proliferating law enforcement agencies; coordination among the remaining agencies; centralization of both civilian and agency accountability; and integration into the wider foreign policy community.
First, consolidation. If the Federal law enforcement community were organized functionally as the military services are, the multitude of its agencies could be consolidated into three.
(1) A Federal Investigative Agency would have as its primary mission the investigation of Federal crimes, both at home and abroad. It would combine the law enforcement functions of the FBI, the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco and Firearms (ATF), the Criminal Investigation Division of the Internal Revenue Service, the Financial Crimes Enforcement Network, and the investigatory elements of the Secret Service. This step alone would eliminate much friction among existing agencies, eliminate duplicative efforts, remove barriers to coordination, and save money in the long run. This idea is not new, and it has been supported in the past by leaders of both parties. In the 1980s, then-Associate Attorney General Rudolph Giuliani oversaw a study that proposed combining the DEA and the FBI. In 1993 Vice President Al Gore's "re-inventing government" initiative recommended that the DEA, ATF and FBI be merged.4 And the Webster Commission also recommended that ATF and DEA become part of a larger FBI.
(2) A Border Enforcement Agency would be constituted of uniformed federal officers and focus on defending the borders of the United States. It would combine the U.S. Customs Service, the U.S. Coast Guard, and the planned Bureau of Immigration Enforcement, including the U.S. Border Patrol, the uniformed arm of the Immigration and Naturalizadon Service. Neither is this a new idea. The U.S. Commission on National Security/21st Century (a.k.a. the Hart-Rudman Commission), which at the start of the Bush Administration--eight months before September 11, 2001--called for a new effort to defend the U.S. homeland against terrorist threats, also recommended combining the Customs Service, the Border Patrol and the Coast Guard.5 And shortly after taking office, Tom Ridge called a series of cabinet-level meetings to push this idea, which he intended to make a centerpiece of President Bush's most recent State of the Union address. Unfortunately, he soon learned how difficult it is in Washington to overcome bureaucracies intent on defending their turf, so the plan was sent back for "further study." So far, President Bush has followed the same path as his predecessors: increased budgets, but no serious re-organization.
(3) A Federal Protective Agency would be charged with protecting the physical security of U.S. government officials, buildings, properties and persons under government control. It would combine the protective division and uniformed service of the Secret Service with the Bureau of Diplomatic Security, the Federal Protective Service (the law enforcement and security arm of the General Services Administration), the U.S. Marshals Service, the Federal Bureau of Prisons (which employs one-third of all Federal personnel authorized to carry firearms), newly federalized airport security personnel, and the U.S. Park Police. It would be operationally efficient, though perhaps political unrealistic, also to include the numerous independent federal police forces that primarily operate in and around Washington, DC. (Most Americans have no idea, of course, that the Congress, the Supreme Court and the Library of Congress, which are located right next to one another, each have their own police force.)
Why not go all the way and create just one law enforcement super-agency? Three reasons. Some degree of competition is healthy. Distinct functional missions--investigations, border enforcement, physical protection--may require distinct institutional cultures. Perhaps most important, though, is the traditional and sensible American reluctance to concentrate police powers in the hands of one person or institution. The protection of our civil rights requires strong law enforcement; the protection of our civil liberties requires separated law enforcement institutions.
Second, coordination. As with the military, all three of these restructured Federal law enforcement agencies would coordinate their planning and operations across all levels, starting with the top. A joint committee of agency directors, modeled after the Joint Chiefs of Staff, would be established, and a joint staff made up of some of the strongest law enforcement officers in the land would be created to aid its work. Similarly-designed joint organizations would be placed in the field to manage at the local level. Special Federal law enforcement regional agents would be responsible for coordinating the local operations of the special agents in charge from all three Federal law enforcement agencies in any given geographic area.
Third, centralization of accountability. Reform of law enforcement should avoid the mistakes made in 1947 by military reformers. A chairman of the joint committee of agency directors should be named, and that chairman should function as the principal career law enforcement advisor to the president and attorney general. To promote professionalism, the practice of installing political appointees at the top of law enforcement agencies should end. Career law enforcement officials should be promoted to lead their agencies, as is done in the military. To promote civilian control, the military model should again be followed: the chairman should hold office for a two-year term, renewable by the president only once. Similar term limits should be placed on the directors of the three law enforcement agencies.
Centralization should also take place on the civilian side. Only by an accident of American history does the U.S. Treasury Department have significant law enforcement responsibilities. No other modern state has placed bodies like Customs, ATF and the Secret Service in its finance ministry. As argued above, these functions should be removed from the Treasury, leaving it with its primary missions intact. (No president has chosen his Secretary of the Treasury on the basis of his knowledge of law enforcement issues.) Similarly, the Coast Guard, as a military and law enforcement agency, does not belong in the Transportation Department, whose secretary cannot be expected to have expertise on either military or law enforcement matters.
All of these agencies, in their new structure as described above, should come under the civilian authority of an expanded Department of Justice, where they belong. The Webster Commission usefully pointed out Executive Order No. 11396, signed by President Lyndon Johnson in February 1968, which charged the attorney general with coordinating the law enforcement and crime prevention activities of all Federal departments and agencies. Now, more than thirty years after the order was issued, it is high time to implement it.
Admittedly, this will not be easy. Historically, the attorney general has been unable to effectively oversee even the FBI, much less a host of other Federal agencies. A new position should be established, therefore, with a title perhaps of deputy attorney general for law enforcement, the holder of which will focus only on the oversight of law enforcement programs, plans and operations. The Justice Department staff will need to employ more civilians with experience in law enforcement--which the department 's present cadre of predominantly civilian lawyers lacks. A stronger Justice Department committed to effective oversight could also centrally administer the sixty different Offices of the Inspector General, which have in recent decades taken on wider law enforcement functions. Most importantly, the Justice Department should directly oversee the inspectors general of the law enforcement agencies.
Strengthened oversight by Congress is also necessary to guard against abuse. Arrangements that ensure the General Accounting Office access to information on the one hand, and congressional oversight committees on the other, are essential to ensure that structural reform efforts produce true operational reforms.
Fourth, integration. The attorney general should formally be made part of the National Security Council through a change in the law, and the chairman of the joint committee of agency directors should hold the same formal observer position at the NSC as does the chairman of the Joint Chiefs of Staff. They should each have a top official--an assistant attorney general at Justice--whose responsibilities are focused solely on international and national security affairs. Those officials, and their subordinates responsible for foreign geographic regions, should participate in all the relevant interagency working groups to develop and implement U.S. foreign policy.
In addition, a new international division of the Department of Justice should be created to oversee all international law enforcement investigations and prosecutions, ending the dangerous near-autonomy that some Federal law enforcement officials now wield when they operate overseas. At present, despite the placement of more than 2,000 U.S. law enforcement agents and support personnel abroad, law enforcement agencies' foreign staffing planning documents are not well coordinated, either within the law enforcement community or with other Federal agencies. Foreign law enforcement activities too often take place without the foil knowledge of the embassy chief of mission, the local representative of the president. Agents stationed in the same embassy that represent different law enforcement agencies bring their habits with them, competing for foreign sources, often refusing to share information. This must stop. Once again, the model should be that of the U.S. military, where different services rotate in the role of embassy military liaison officers, and only one of them at any given time reports to the chief of mission.
THIS VISION of reformed Federal law enforcement will not be realized anytime soon. But it can be done more quickly than the decades it took to reform the military. The key question is, will President Bush take advantage of the rare opportunity to push reform?
Perhaps he will. The President certainly understands the importance of terrorism and other international criminal threats to U.S. national security. His national security team is undoubtedly confronting the lack of integration between the law enforcement and the foreign policy communities. His homeland security director has already made important--albeit stillborn--proposals on law enforcement reform. He may find that, in the current post-September 11 environment, there are members of Congress on both sides of the aisle who are ready to tackle the tough issues if the President is willing to lead the way. Conditions are propitious for change, and President Bush has clearly proven that he can lead. Let us, then, hope that he decides to do so.
1 See my "Follow the Money", Foreign Affairs (July/August 2001).
2 Federal Criminal Justice System-A Model to Estimate System Workload, U.S. General Accounting Office, April 1991.
3 Law Enforcement in a New Century and a Changing World: Improving the Administration of Federal Law Enforcement, Report of the Commission on the Advancement of Federal Law Enforcement, January 2000.
4 From Red Tape to Results: Creating a Government that Works Better and Costs Less, Report of the National Performance Review, September 7, 1993.
5 Roadmap for National Security: Imperative for Change, the Phase III Report of the United States Commission on National Security/21st 1st Century, February 2001.
William F. Wechsler has served as Special Advisor to the Secretary of the Treasury, Director for Transnational Threats at the National Security Council, and as Special Assistant to the Chairman of the Joint Chiefs of Staff.