Intelligence and Law Enforcement Agencies

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Intelligence and Law Enforcement Agencies

█ JUDSON KNIGHT

Despite the obvious relationship between intelligence and law enforcement, historically a number of barriers have separated the two. One of the most important of those barriers in the American experience has been the law itself, which has sought to prevent the development of an internal security apparatus more suited to an authoritarian or totalitarian nation than a liberal democracy. The end of the Cold War and the subsequent war on terrorism, however, presented the nation with threats that seemed to require blurring the lines between intelligence and law enforcement. These changes have in turn forced a rethinking of the relationship between national security, internal security, and the rights of citizens under the rule of law.

"Posse Comitatus" law. Few ideas are as antithetical to American sensibilities as the notion of a government free to enforce its will with armed troops, or invisible spies, moving among the citizenry. Only once in American history has martial law prevailed over a large geographic region for an extensive period. That period was the Reconstruction (1865–77), in which the former states of the Confederacy were ruled by federal troops. In the aftermath of the Reconstruction, Congress passed the Posse Comitatus Act of 1878. The title of the act harkened to an ancient institution of English law whereby the local lord could raise a citizen militia to maintain public order, but the purpose of the 1878 law was to protect the citizenry from encroachments by government.

Although the Posse Comitatus Act made it illegal to use the U.S. military to enforce domestic law, a few occasions in the years since have necessitated adjustments. Such was the case in 1957, for instance, when President Dwight D. Eisenhower federalized the Arkansas National Guard and used it, along with the 101st Airborne Division, to integrate the high schools of Little Rock, Arkansas. Again in the 1980s, President Ronald Reagan used the military for the domestic "war on drugs."

Restrictions on the intelligence community. The National Security Act of 1947, which created the Central Intelligence Agency (CIA), explicitly forbade it from operating in a law-enforcement or internal security capacity. With World War II recently concluded, America's leaders had a negative example in the form of the Nazis' Gestapo, not to mention the Soviet internal security apparatus that would become the KGB in the 1950s. Additionally, the National Security Act reinforced a division of labor between the nascent intelligence community (represented during the war by the Office of Strategic Services, or OSS) and the highest law-enforcement agency in the land, the Federal Bureau of Investigation (FBI). Though the FBI had been engaged in intelligence-gathering operations in Latin America, for the most part it had maintained its focus on internal affairs while OSS concentrated on external ones.

In today's U.S. intelligence community, which consists of more than a dozen agencies, most are members of the Department of Defense (DOD), which is effectively prevented by posse comitatus law from playing a role in internal security. Another factor that discourages the blurring of law enforcement and intelligence is the strong sentiment against domestic intelligence and surveillance operations such as those conducted by the FBI under the leadership of J. Edgar Hoover in the 1950s and 1960s. Such activities, when they came to light, served to reinforce a growing attitude of suspicion toward the federal government.

New threats and the blurring of lines. Countering popular concerns for civil liberties and the rule of law are growing threats to national and internal security whose response almost seems to necessitate a blurring between intelligence and law enforcement duties. This has been particularly the case with the end of the Cold War and the rise of terrorist organizations. Not only do the latter threaten national security, but they are also involved in a number of activities usually dealt with by law enforcement: drug trafficking, counterfeiting, money laundering, and so on.

Additionally, the 1990s saw the rise of internal terrorism such as that perpetrated by the Oklahoma City bombers and the Unabomber. These actions required a response by domestic law-enforcement agencies, including the FBI and the Bureau of Alcohol, Tobacco, and Firearms. In a move that resembled actions of the CIA or National Security Agency, the FBI reportedly used satellites to conduct surveillance on Theodore Kaczynski, the Unabomber.

This new environment of combined law enforcement and intelligence efforts was reflected by the rise of state and local organizations devoted to providing intelligence to law enforcement agencies. An example was the Intelligence Network of the Iowa Department of Safety, established in 1984 to support multi-jurisdictionary operations within the state. Law enforcement agencies in the Washington, D.C., and Baltimore area formed the Washington-Baltimore High Intensity Drug Trafficking Area Information Center, designed to serve as a hub for intelligence on drug and weapons trafficking, as well as money laundering, in the two cities.

As early as March, 1993, an awareness of the potential problems to be faced by the increased merging of law enforcement and intelligence operations spurred the formation of a federal study panel. In August, 1994, the Joint Task Force on Intelligence and Law Enforcement released a series of recommendations, including the creation of "focal points," or coordinating offices, that would provide an interface between the Justice Department and CIA. A decade later, the FBI and CIA engaged in a turf battle over new domestic intelligence responsibilities that arose from the war on terror. The administration of President George W. Bush chose to make CIA the lead agency in those efforts.

█ FURTHER READING:

BOOKS:

Best, Richard A., Jr. Intelligence and Law Enforcement: Countering Transnational Threats to the U.S. Washington, D.C.: Congressional Research Service, 2001.