How To Reform Federal Intelligence And Law Enforcement Agencies

How To Reform Federal Intelligence And Law Enforcement Agencies

The paradox of freedom has always been to create a government strong enough to defend the people against their foreign enemies, but not so strong that it becomes an oppressor itself.
Willis L. Krumholz and Robert Delahunty
By

Evidence of serious abuses of power by our nation’s intelligence community (IC) has been steadily accumulating. Consider the revelations that the Federal Bureau of Investigation (FBI) used Hillary Clinton-funded opposition research to spy on the opposing party’s presidential campaign without either verifying those claims independently or disclosing their ultimate source to a court.

By those deliberate omissions, the FBI was able to obtain a national security warrant to spy on a U.S. citizen. During the Obama administration, the Central Intelligence Agency (CIA) spied on Senate committee staffers overseeing the CIA and the rest of the IC. Members of Congress, along with reporters and their family members, were spied on as well.

Former director of national intelligence James Clapper also lied to Congress when he said that the National Security Agency (NSA) wasn’t collecting bulk data from the daily lives of ordinary American citizens. It is. The ghost of J. Edgar Hoover must be laughing.

Republicans and Democrats Need to Take This Seriously

Some old-guard Republicans have howled about the abuses that occurred during the Obama administration, but refuse to curb IC power as a result. They claim to speak for national security, but fail to see that the nation’s security can be endangered, not only by hostile foreign powers, but even more by unaccountable domestic investigative and espionage agencies.

The paradox of freedom has always been to create a government strong enough to defend the people against their foreign enemies, but not so strong that it becomes an oppressor itself. These Republicans grasp the first danger, but are blind to the second.

Save a few voices like that of Ron Wyden (D-OR), Democrats have increasingly grown silent too. This stands in stark contrast to the civil libertarian outlook most Democrats professed during the Bush administration. It turns out this commitment to civil liberties was merely tactical.

Rep. Adam Schiff, the top Democrat on the House Intelligence Committee, used to worry about abuse of the Foreign Intelligence Surveillance (FISA) law. Now, Schiff and his fellow Democrats accuse anyone who questions the FBI of “undermining the rule of law,” and have proposed doling out even more money to that agency. Schiff has also said that a Republican memo that details FBI abuses risks causing a domestic terror attack.

This tolerance for the IC’s abuses is a disturbing development. A high-powered intelligence bureaucracy, such as this nation has, can become a clear and present danger to our democratic republic if it becomes highly partisan or a law unto itself. Congressional oversight cannot be effective if the intelligence agencies are spying on, lying to, or concealing information from Congress. As they have been.

Political Partisanship in Intelligence Agencies

Political partisanship offends the fundamental norms that should control the unelected—and often unremovable—officials who wield daunting powers in criminal investigation, prosecution, and counter-intelligence. IC officials are entrusted with their powers precisely because they are expected to be nonpartisan in administering them. Personal political biases must never sway their investigative and prosecutorial choices, even if they convince themselves that the success of particular political candidates would harm the country. That decision is for voters to make, not unelected bureaucrats.

Partisanship not only mars public confidence, it also impairs the IC’s ability to serve its core function of protecting the nation. Partisanship hamstrings the intelligence bureaucracy’s ability to weigh the credibility of raw intelligence. In but one example, it is highly likely that the “dossier” the Clinton campaign and the DNC sponsored and used to spy on the Trump campaign used unknown individuals connected to the Kremlin as sources.

There is even evidence to suggest that the dossier’s author, Christopher Steele, could have been working for or with Russian oligarch and Kremlin confidant Oleg Deripaska. This Russian disinformation was taken seriously by James Comey’s FBI precisely because of their partisanship. Those officials wanted to believe there was something nefarious about Trump. As we’ve learned, they needed an “insurance policy,” because they couldn’t “take the risk” that Trump could be elected.

Consequences of Jim Comey’s Partisanship

In his characteristically self-serving way, former FBI director Comey claimed the FBI didn’t “give a hoot about politics.” If he meant to say that the FBI, under his direction, did not intervene in political contests, his statement was absurdly false: he personally and repeatedly intervened at critical points in the 2016 campaign.

If Comey meant to say that during and shortly after his tenure, the FBI’s interventions were not motivated by partisanship, his statement was, at best, almost unbelievable. We now know Comey manipulated events to ensure that President Trump would be bound, early in his term, to appoint a special prosecutor—one of Comey’s close mentors and friends, in fact. Can anyone believe that Comey did not mean to inflict maximum damage on a newly elected president, and ultimately to thwart the election’s outcome?

Furthermore, the FBI leadership that Comey promoted and protected displayed a disgraceful degree of partisanship before and after the presidential election. To take only one example, Comey’s deputy Andrew McCabe worked to set up former White House chief of staff Reince Priebus, then tarred Priebus in the media.

There is no question that the FBI leadership under Comey did not possess the ethos of a responsible civil service. Because of Comey, millions of Americans have come to mistrust the agency he professed to love.

The Imperative of Disclosure

The kind of misconduct that has begun to be revealed confirms the depth of intelligence agencies’ problems. Claiming to be protecting the nation’s security, the intelligence bureaucracy seems to be much more interested in concealing its machinations from Congress and the public.

TThe intelligence bureaucracy seems to be much more interested in concealing its machinations from Congress and the public.

A bureaucracy that has no problem with selectively leaking to the media is curiously unwilling to disclose facts, even in non-public hearings, to the nation’s elected government. The FBI refused for months to let congressional investigators see the documents surrounding the FBI’s abuse of power at the FISA court that occurred before and after the 2016 presidential campaign. This included the FBI’s presentation of verifiably false information in its filings to the FISA court.

To see the documents surrounding the FBI’s warrant application, Congress had to threaten top FBI officials with being held in contempt. That didn’t stop the FBI from showing up in Speaker Paul Ryan’s office, at the last second, to try to convince him to back down. When Republicans in Congress worked to release information based on the documents they were finally allowed to see, the FBI claimed that disclosure to the public would risk “sources and methods.” It did not: the FBI and DOJ top brass simply wanted to cover their tracks.

In a related and chilling example, the CIA is now arguing in federal court that the public shouldn’t be able to see classified CIA information, even after the CIA has leaked this info to favored “reporters”—i.e., media members sure to tout the CIA party line.

The Basic Parameters of Reform

Without a doubt, America needs an effective yet restrained FBI, NSA, and CIA. In our recoil against the abuses that the IC has committed, we must not go to the opposite error of endangering the nation’s security. In essence, this is a problem of institutional design. It breaks down into at least three more specific problems that cry out for answers.

First, how can we ensure that the federal civil service is honest and nonpartisan, but also subject to the overall supervision and control of our elected government? Somehow, the civil service must be politically responsive without becoming “politicized.” It must be willing to execute the policy decisions of its elected masters, while remaining sufficiently independent to resist their potential for lawlessness.

It must be willing to execute the policy decisions of its elected masters, while remaining sufficiently independent to resist their potential for lawlessness.

This country, like other Western democracies, has sought to balance these demands by creating safeguards for civil servants against unwarranted removal from their jobs. Some form of tenure protection must remain. But tenure protection for civil servants (as for academics) comes at a high cost. Most obviously, it can incentivize poor and incompetent performance. More subtly and more dangerously, it can permit bureaucrats to decide the policy agenda, regardless of the wishes of their elected masters. A tenure-protected civil service is apt to become an independent government-within-a-government—a “deep state.”

Second, there is the risk that the bureaucracy will volunteer to serve the aims and ambitions of the party in power. The most egregious example of this kind of behavior was probably that of Lois Lerner at the Internal Revenue Service. Even if Lerner did not receive explicit instructions from her political masters in the Obama administration, she proved only too willing to use the governmental powers entrusted to her to smash the administration’s political opposition—the newly emerging Tea Party.

In a case like Lerner’s, there may have been no particular reason for the Obama administration to weaponize the bureaucracy: the career officials weaponized themselves. It is highly likely that those who choose a career as government regulators will belong to, and favor, the political party that most promotes regulatory power—Democrats.

Third, there are problems specific to the IC. On the one hand, the mission of these agencies demands a high degree of secrecy, confidentiality, and even stealth. But the workings of the IC must be transparent to the political branches—the president above all, but also Congress, which incepted and funds these bureaucracies.

Furthermore, in carrying out its investigative activities, the IC can train its aim on the very politicians tasked with their oversight. Where there is espionage, there is always the possibility of blackmail; where there is prosecutorial power, there is inherently the prospect of intimidation. The IC, as a necessity, possesses weapons that it can turn against its “controllers.” The master of such devices, it is said, was the FBI’s infamous Hoover.

What Can Be Done?

What can be done? In the final analysis, the best solution to excessive federal power is to downsize the federal government. The federal security apparatus is so bloated it is becoming more menacing than the dangers it was created to guard against. While we can hope that politicians eventually band together to curb these bureaucracies’ budgets, that doesn’t seem possible right now. The fear of terrorism all but ensures that these agencies’ budgets will remain sacred cows.

In the current political environment, it would also be hard to cut back the IC’s powers. Even after many Republicans knew the FISA process had been abused, they still voted to expand the domestic spying-power granted to the intelligence community by an amendment to the FISA law, called Section 702.

The Office of Inspector General (IG), tasked with investigating wrongdoing within these federal appendages, does meaningfully check abuses of power, but there are limits to the IG’s jurisdiction, including what may well be politically motivated ones. A push for reform is thus needed that doesn’t impact the IC’s budget or snooping power in the age of terrorism, but also threads the needle mentioned above: Increasing the control over the IC by our elected leaders, but avoiding politicization and partisanship.

This Means Civil Service Reform

First, Congress needs to pursue overdue civil service reform. This would affect the entire federal bureaucracy, not just the intelligence community.

The overriding question is of the civil service’s ethical culture. Restoring that culture will require a number of efforts. But serious legal reform can help bring the culture back in line. Too often, bad bureaucratic actions meet a shrug of the shoulders from our elected officials. “What can I do about Lois Lerner—I’m only the president,” seems to be the attitude of the day. The buck needs to stop with somebody, and that somebody needs to be elected officials, who are accountable to the people. As such, political appointees should be granted broader powers to demote, reassign, transfer, and fire senior civil servants.

The buck needs to stop with somebody, and that somebody needs to be elected officials, who are accountable to the people.

There is a long history of legislation trying to stamp out the “spoils system,” which led to the entrenched bureaucracy we have today. In 1883, President Chester Arthur signed the Pendleton Civil Service Reform Act, which attempted to bring a merit-based system to the federal bureaucracy, instead of the system of political patronage that existed in that day. Later, the 1939 Hatch Act banned political activities by most executive branch officials, after New Deal-era Works Progress Administration employees were found engaging in political activities for the Democrat Party.

By the 1970s, and in the wake of Watergate, voters were clamoring for another round of civil service reform. In 1978, Congress passed the Civil Service Reform Act. This set up the Office of Personnel Management (OPM), the Merit Systems Protection Board (MSPB), and the Federal Labor Relations Authority (FLRA). Jimmy Carter ran promising to “strengthen presidential control over federal services.”

Instead, the DC swamp turned the act into the opposite of what Carter intended. The Merit Systems Protection Board, for example, has become over-powerful, and makes it hard to fire even the most egregious bad actors in our civil service. An overhaul is needed. The push, broadly speaking, should be to equalize the terms of public and private employment.

Federal employees should be subjected to essentially the same standards as you or I, and with the normal protections available in the private sector, serve at the pleasure of their managers. The Trump administration has already proposed tweaking financial rewards, especially income and pensions. Making salary increments discretionary and supplanting them with performance awards is brilliant. So is the president’s idea to stretch out promotion.

The push, broadly speaking, should be to equalize the terms of public and private employment.

Part of the effort should attempt to foster a healthy amount of turnover. The U.S. military’s up or out system comes to mind. On this front, Trump should also look at vesting pensions sooner.

Democrats won’t be on board right away, but these moves would be huge hits in middle America, red and blue. Civil service reform won’t be a hard sell when the average American worker is struggling while the average American bureaucrat lives high on the hog. A 2011 study found federal workers receive salaries 14 percent higher than their peers in the private-sector, and a 61 percent premium over similar private jobs when benefits are factored in.

As Kim Strassel notes, this is the result of “automated increased, bonuses, seniority rules and gold-plated pensions that are all but extinct in the private sector.” On this point, Trump should work to release the salaries of the federal workforce, many of which remain secret, and pensions and benefits should be made more comparable to those in the private sector.

Federal employees should have protections from wrongful termination, but only those protections held by the average American worker.

Sticks are needed as well as carrots. Criminal prosecutions for conduct like Lerner’s should be the norm. So should demotions, pay cuts, loss or clawback of pensions, and firings. The hugely generous protections provided by the Merit Systems Protection Board should be scaled down, or the board should be abolished, to make it easier to discipline even senior civil servants. Federal employees should have protections from wrongful termination, but only those protections held by the average American worker.

The expertise of the permanent suzerains is also overrated. More openings should be made for political appointees throughout each department. Fundamentally, civil servants need to realize that they only exist to execute policy, not make it.

The federal government should also increasingly privatize its functions. Let the civil servants be measured against competitors in the private sector. Even some of the IC’s functions should be reassigned to private contractors. If the FBI itself believes that it can rely on privately funded investigators like Steele and his unverified sources, how could it object to a broader privatization program?

Checks and Balances in the IC’s Leadership

Structural change within the IC is also needed. We suggest that each agency in the intelligence apparatus have two heads who work in concert, one a Democrat, and one a Republican, both appointed by and serving at the pleasure of the president, and each able to block major actions the other proposes. Leaders of the party opposite to the president in Congress would suggest, but not appoint, one of the directors, and both would be subject to the normal confirmation process. The director of national intelligence would remain a single individual, appointed by the president.

The co-directors of each agency would have control of (and have to agree upon) hiring and promotion decisions. Only one of the directors, designated by the president, would have control over termination decisions.

Congress sought to control the risk of partisanship by creating an ingenious system of plural headship.

How would this work? Suppose that Obama’s FBI and CIA had two heads, one from each major party. Even if the Republican co-director of those agencies strongly disliked Trump, she or he would be much less willing to go after the presidential campaign of his own party without firm evidence of wrongdoing.

These co-directors should also only serve one four-year term, corresponding with one presidential term. This would reduce the pull on directors to cozy up to a president in the hope of being reappointed. It would also keep these directors from becoming too comfortable with the amount of power they hold.

There is a precedent for such a reform. When structuring institutions like the Securities and Exchange Commission (SEC) or the Federal Communications Commission (FCC), earlier Congresses understood that these institutions must inevitably make decisions with significant political consequences. Congress sought to control the risk of partisanship by creating an ingenious system of plural headship.

In the case of the SEC, the president appoints five commissioners, each confirmed by the Senate. The president designates which commissioner serves as chairman, the SEC’s top executive, but no more than three commissioners may belong to the same party. Likewise at the FCC, and other independent federal agencies.

The driving force behind such a reform is the idea that America’s national security is not, nor should it ever be, a partisan endeavor.

The FBI, CIA, and NSA are given a far more critical and much less potentially partisan task: the security of our nation. The internal check-and-balance of bipartisan leadership would help counter the risk of undue partisanship. The driving force behind such a reform is the idea that America’s national security is not, nor should it ever be, a partisan endeavor.

To be sure, there are significant constitutional issues to address. First, the SEC and FEC are independent federal agencies of a far different nature than intelligence agencies, which are very firmly parts of the executive branch. Furthermore, the Appointments Clause of the Constitution precludes Congress from handcuffing the president’s power to select agency heads, e.g., by imposing requirements concerning political affiliation. As we read the Constitution, Congress cannot compel the president to appoint both a Republican and a Democrat at the helm of each agency in the IC.

But there is a work-around. The statute we envisage would only recommend bipartisan leadership, not mandate it. If the president didn’t follow the statutory recommendation, he or she would have to pay a political price, and the credibility of the agency in question would be impaired. Moreover, the Senate would still have a say in the confirmation process, where it could refuse to confirm appointments that would upset the bipartisan balance. Here, tradition and politics, not the full force of the law, would keep such posts bipartisan.

Restoring Public Confidence in Intelligence Agencies

The public often learns only of the bad actors in our civil service. But most of our civil servants do an upstanding job. In the FBI, for example, the vast majority of agents in the field operate with the utmost respect for the rule of law, and have a deep commitment to public service. The nation owes these unsung heroes our gratitude.

But some in the FBI’s top brass, at least formerly, have acted to tarnish that entire organization.  The solution to getting the FBI and the rest of the intelligence agencies back on track requires balance and moderation. Thread the needle between making the IC more accountable to the people’s representatives and less prone to partisanship; between an effective intelligence apparatus and one that doesn’t abuse its powers.

Because the rule of law has deep roots in America, our nation has a strong tradition of good, incorruptible civil servants. Let’s restore that tradition.

Willis L. Krumholz lives in Minneapolis, Minnesota. He is a JD/MBA graduate from the University of St. Thomas, and works in the financial services industry. Robert J. Delahunty is a professor of law at the University of St Thomas and has taught Constitutional Law there for a decade.

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