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Senate Farce: Reining in the FBI


THE FOUNDING FATHERS did not create a national police force. Since Prohibition, however, federal law enforcement agencies have multiplied like mushrooms.

Unfortunately, there has been no parallel growth in either curiosity or competence by the legislative branch. Charles Carroll of Maryland, one of the signers of the Declaration of Independence, declared that it was the task of elected representatives “to examine severely, and judge impartially the conduct and the measures of those employed in the administration, to represent the grievances, and watch over the liberties and the properties of the people of this nation.” Carroll’s concept of a representative’s duty seems even more archaic than George Washington’s wooden teeth.

The U.S. Congress has dismally failed to perform its duty of keeping an eye and a leash on federal law enforcement. Every few years, after a cluster of especially embarrassing scandals, Congress might hold a few hearings and thunder and threaten — but nothing substantive has resulted.

The latest façade of oversight

On June 20, the Senate Judiciary Committee held the first of perhaps a series of hearings on the Federal Bureau of Investigation. Committee chairman Sen. Patrick Leahy (D-Vt.) set a lofty tone in his opening statement:

Our purpose in holding these hearings is to find ways to restore confidence in the FBI, not to tear it down. There are many irresponsible critics of the FBI who promote their conspiracy theories on Internet web sites and in the popular media.

However, anyone who sat through the hearing would have to wonder which is more deluded — the typical anti-FBI web site or the U.S. Senate.

A Los Angeles Times report captured the irony of the opening hearing:

Just a year ago, many members of Congress were still giving Director Louis J. Freeh rave reviews and urging that the FBI be allowed to take over expanded responsibility for drugs and guns from other federal agencies.

This was despite FBI fiascos involving the Olympic Park Bombing suspect, the FBI laboratory, Waco, Ruby Ridge, the entrapment of the daughter of Malcolm X, et cetera.

However, the most recent surge of problems — including an FBI agent who was allegedly a spy for the Soviet Union and later Russia for more than 15 years, the abuse of Wen Ho Lee, and the failure to provide all the evidence in the Timothy McVeigh bombing case — finally exhausted the patience of the U.S. Senate.

Or at least that’s what senators wanted people to think.

The senators supposedly came to discover and proclaim truth. Instead, they did as they usually do — they groveled at the mere mention of the FBI and competed to heap laurels on the heads of federal agents. The only thing that kept most senators from actually licking boots was the fact that FBI Director Louis Freeh spurned Leahy’s invitation to testify at the hearing.

Sen. Dianne Feinstein (D-Calif.), in her opening statement, proudly announced that “I went through the Ruby Ridge hearings and I went through the Waco hearings” that the Senate Judiciary committee conducted. Her choice of words is accurate: she sat there like a potted plant in those 1995 hearings — except when she made stupid comments or otherwise dragged her feet in ways helpful to federal officials who wanted to keep the lid on their agency’s conduct.

A big clue to the nature of the hearing was the lead-off witness, John Danforth, Janet Reno’s hand-picked Special Counsel on Waco. Danforth was his usual pious self, repeatedly assuring senators that the FBI did nothing “dark” at Waco. Danforth succinctly summarized the great government abuses that occurred on Waco:

Some FBI personnel and some Justice Department lawyers were not forthcoming in reporting the events at Waco, and some FBI personnel were not cooperative with my investigation. Lack of openness and candor caused and then complicated my investigation. And, far more important, lack of openness and candor undermined public confidence in government.

In other words, there is nothing wrong with federal law enforcement that writing a few additional memos could not cure. Danforth’s remarks stirred no controversy — so the Judiciary Committee presumably has no qualms about sending in tanks to gas young children.

A “blue-ribbon commission”

Senators sought to be perceived as anguishing over the need to create a new oversight mechanism to make doubly sure that all FBI agents obey the law. Sen. Charles Schumer (D-N.Y.) and Sen. Orrin Hatch (R-Utah) announced a bill to create a “blue-ribbon commission to conduct a top-to-bottom review” of the FBI.

Their press release noted that the commission would “be made up of top law-enforcement experts.” Hatch gushed that the FBI is “one of the finest law-enforcement agencies in the world” and Schumer hailed the FBI as “the premier law-enforcement agency in the world.”

Schumer added, “Sometimes you owe it to a friend to look him in the eye and tell him the hard truth” — i.e., the FBI has made some mistakes in recent years.

It is comical to have Schumer and Hatch in the forefront of FBI “reform” — since they were two of the biggest FBI apologists. Hatch worked diligently to deter the valiant efforts of Sen. Arlen Specter (R-Pa.) to conduct congressional hearings on Ruby Ridge. During a live interview on the G. Gordon Liddy show, Hatch even publicly praised FBI sniper Lon Horiuchi, who killed Vicki Weaver as she stood in her cabin door holding her baby, as a “great American.”

Schumer was the Clinton administration’s point man during the House hearings on Waco in the summer of 1995. He continually derided and sneered at any suggestion that the FBI had done anything less than laudatory during its siege and final assault on the Branch Davidians. (During the recent hearing, Schumer congratulated Danforth for doing a great job with his Waco investigation.)

Hatch justified the creation of a new panel:

The inspector generals are great at doing factual investigations, but they are not designed to do strategic, long-term recommendations on these important policy and managerial issues.

Some voters might have the mistaken idea that senators are supposed to have clear ideas on what strategy the nation’s most powerful law-enforcement body should follow. But that is apparently not in senators’ job description — that is what they hire commissions for.

In sharp contrast to all the other committee members, Sen. Charles Grassley (R-Iowa) has consistently and courageously pursued allegations of FBI abuses. Grassley is one of the few Republicans who does not instinctively cringe and kowtow at any mention of the FBI’s name. Nor does he spend half his allotted speaking time at hearings apologizing for raising any doubts about the FBI’s infallibility. As he sternly declared, “Let there be no question; for far too long the FBI has broken faith with the American people.”

Congressional responsibility

Grassley derided the notion of appointing an “FBI Review Commission.” He noted that the “end result” of commissions to investigate the FBI “has usually been that the FBI ends up with a bigger budget, more jurisdictions, and the director [of the FBI] walks out with a nice pat on the back.”

The same could be said of the response by Congress to most of the FBI fiascoes of the last decade. After the FBI sent in the tanks at Waco, Congress provided a hefty budget increase to expand the Hostage Rescue Team.

There was scant awareness at the hearing that part of the blame for FBI misconduct rests with the U.S. Senate — especially the Judiciary Committee. Instead, senators speak as if FBI abuses were something that “just happened” in spite of the explicit wishes of Senate Judiciary Committee members for the FBI to “play fair and square.”

The Senate has been criminally negligent in overseeing federal law enforcement — and now we are supposed to be thrilled that some senators are calling for the appointment of another review commission. James Madison’s scheme for a “balance of power” between the legislative and executive branches did not assume that senators would perennially prostrate themselves before the feet of federal lawmen.

Just in case anyone might get the wrong idea about the hearing, it was titled “Oversight: Restoring Confidence in the F.B.I.” rather than “Oversight: Finally Discovering What G-Men Are Up To.” Most senators seemed more interested in boosting public confidence than in ending agency abuses. The recipe for good government thus requires little more than frequent enthusiastic professions by FBI officials about their dedication to providing the American public “the truth, the whole truth, and nothing but the truth.”

No one raised any questions at the hearing about the FBI’s and Justice Department’s efforts to guarantee that FBI sniper Lon Horiuchi had zero criminal responsibility for killing Vicki Weaver as she stood in her cabin door holding her baby at Ruby Ridge, Idaho. The federal government has fought tooth and nail to block Idaho courts from prosecuting Horiuchi for the killing. After the FBI exempted itself from judicial oversight, senators apparently believe that clever graduates of public-administration schools will be able to design oversight mechanisms to compensate.

The Judiciary Committee is planning to conduct other FBI oversight hearings. Perhaps more senators will leave their knee-pads at home for the next round of questioning. Perhaps Grassley’s example and record will finally inspire his fellows. But it would be a bad idea to bet the rent money on that outcome.

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    James Bovard is a policy adviser to The Future of Freedom Foundation. He is a USA Today columnist and has written for The New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader’s Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of Public Policy Hooligan (2012); Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book’s Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.