FBI to Congress: Don’t Make a Federal Case Out of It

The Federal Bureau of Investigation has had its share of embarrassments lately. There was Los Alamos scientist Wen Ho Lee and counterintelligence agent Robert Philip Hanssen and those mishandled Timothy McVeigh documents. So how did the nation’s premiere law-enforcement agency find itself in such hot water? Poor management and absentee leadership over the last decade have had something to do with the problems. But from my perspective, the most significant factor in the spate of problems is the FBI’s expanding jurisdiction.

The FBI is responsible for investigating suspected federal crimes. Up until the last decade, that mostly meant things like espionage and conspiracy and wire fraud and kidnapping. It meant crimes that didn’t honor state lines. But that was back before members of Congress began introducing new legislation every time there was a new outrageous act of criminal behavior. The Congressional Record is loaded with examples of representatives and senators talking tough on crime and demanding that their colleagues join with them in support of this bill or that. Yet, for all their good intentions, federal laws aimed at attacking violent street crime are mostly ineffective. Nevertheless, once on the books, the majority of these laws fall to the FBI to enforce.

This making of every offense into a federal crime has now begun to erode the effectiveness of the federal courts. In his 1998 “Year-End Report on the Federal Judiciary,” Supreme Court Chief Justice William H. Rehnquist observed, “Over the last decade, Congress has contributed significantly to the rising caseload by continuing to federalize crimes already covered by state laws. The trend to federalize crimes that traditionally have been handled in state courts ... threatens to change entirely the nature of our federal system. The pressure in Congress to appear responsive to every highly publicized societal ill or sensational crime needs to be balanced with an inquiry into whether states are doing an adequate job in these particular areas. Federal courts were not created to adjudicate local crimes, no matter how sensational or heinous the crimes may be.” And federal law enforcement is not the answer to local crime problems either. But try telling that to Congress.

After Pamela Basu was dragged to her death by carjackers in suburban Maryland outside Washington in September 1992, Congress swiftly passed a bill making carjacking, already illegal under the laws of every state, a federal crime. After massive anti-abortion protests, some involving vandalism, at abortion clinics around the country, Congress, in May of 1994, passed the Freedom of Access to Clinic Entrances Act, which made it a federal crime to engage in certain behavior at an abortion clinic. Again, such behavior was already illegal under state laws. In 1996, responding to a rash of arsons at churches around the country, then-President Clinton signed into law the Church Arson Prevention Act. Arson was already a crime in all 50 states, and there was no evidence that the fires had been motivated by racism or hate. Yet, because Congress and the president took action, the FBI had yet another already-illegal crime it was responsible for policing.

In each of these examples--and there are many more--the FBI was required to provide agents and support staff to investigate these crimes. But in most cases, the agency did not get additional investigators to handle the new responsibilities. If an agent was off investigating a carjacking or act of clinic vandalism or church arson, that meant one fewer agent assigned to the FBI’s more traditional missions.

Legislators know that appearing tough on crime is good politics, which is why federal crime-control measures have been as much a part of the political landscape as kissing babies. What nobody says, though, is that baby kissing has about as much impact on violent crime as most federal crime legislation.

But what politician will risk political suicide by arguing against tough-sounding laws? And what bureaucrat, FBI officials included, wants to appear soft on crime by opposing criminal statutes--especially ones proposed by the holders of the purse strings?

The FBI finds itself at the dawn of the 21st century going in a lot of new and different directions. We have been given broad investigative responsibilities, not just in the United States, but all over the world. It’s possible that even without these additional responsibilities we would have ended up with an undetected spy within. It’s possible that Wen Ho Lee would have remained under suspicion for far too long and that a cache of McVeigh documents would have been missed. But perhaps it’s time to reevaluate all the responsibilities that have been heaped upon us over the years and relinquish the needless in favor of the necessary.