8/14/2019 DM B4 Justice Dept 2 of 2 Fdr- Toward a Department of Justice National Security Division by David S Kris 346

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Toward a Departmentof Justice National Security Division[By David S . Kris]

For m ore than a year, experts and others in this country have debated w hether to create anAmerican versionof Britain's MI-5- that is, a domestic counter-intelligence agency separatefrom federal lawenforcem ent agencies, p articularlythe FBI. Unfortunately,the debate so farhas focused on the FBIalone, w ithou t consideringits parent organization,the DepartmentofJustice (DOJ). The President and Congress ought to consider creating a Nation al S ecurityDivision (NSD) inside DOJ. A D epartment of Justice NSD w ould enhance operational andpolicy coordination betw een intelligence and law enforcem ent, and wo uld at the sametimeincrease safeguardsfor civil liberties.

To protect national security effectively, domestic intelligence and law enforcement mustclosely coordinate their operational activities. Properly understood, theyare separate but similartools in the President's national security toolbox- far more similarto each other thaneither oneis to other tools like diplomacy, military strikes, covert action, or economic initiatives. Theyseek m uch the same info rma tion about foreign spies and terrorists, an d they use ma ny of thesame investigative techniqu esto collect and process that information- for example, judiciallyapproved, targetedsearches and wiretaps; undercover agentsand recruited informants; an d luresor "honeypots" to attract would-be perpetrators (though law enforcement is here somewhatcircumscribed b y entrapm ent doctrine). These similarities ap ply not only to investigations ofespionage and terrorism themselves, but also to investigations of ordinary crimes comm itted tofinance or otherwise facilitate espionage and terrorism.

On the other hand, there are also imp ortantdifferences between intelligence and lawenforcement. Much of law enforcement (particularly domestic law enforcement) has nothing todo with national security, and much offoreign intelligence (particularlyaffirmative intelligence)has nothingto do with law enforcement. Law enforcement remediesare always overtand servemany different goals - punishment, deterrence, incapacitation,and in some eras, rehabilitation -whereas intelligence remedies areoften covert and are alwaysfocused on protection. Thetraining, skills, perspective,and culture of government professionalsin each area is necessarilysomewhatdifferent: George Smiley(or James Bond) wouldnot be effective investigating crackcocaine dealers, and Dirty Harry wo uld not be a good spycatcher.

Competing needs for operational coordination but cultural separation have led reasonableminds to different conclusions about whetherto split the FBI. However, as applied to theDepartment of Justice (both Main Justice and the U.S. Attorneys'offices) the result is far clearer.Today, DOJ's principal national security responsibilities- electronic surveillance,lawenforcement, economic security,information security, and emergency planning- are scatteredfar and wide w ithinthe agency. Moreover, apartfrom a fewhigh-level staffers in theDepartment's frontoffices, there is no um brella structure to hold thepieces together. Theresulting hodgepodge yieldsthe worst of both worldsfor DOJ - inefficient (and sometimesineffective) operational coordination, and no distinct national security culture. It thwartscoherent policy developm ent and weaken s the Depa rtment in its relationships with otherfederaland state agencies and the private sector. In short, at a time w hen the national security mission ispreeminent,DOJ is structuredas if national security werean afterthought.

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A Justice N SD w ould also m ake the FBI mo reeffective. For more than 50 years, theBureau has trained its agents to work on complex investigations in close coordination with DOJlawyers. Gone forever is the era in which the FBI investigated a case on its own , arrested thesuspect, and brought the file to a prosecutor for indictment and trial. Today, pa rticularly incomplex cases, lawyers and agentswork closely from the beginning, in part because many of themost effective investigative techniques- including subpoenas, search warrants, electronicsurveillance, and certain undercov er operations- require D OJ's participation. Experience showsunequ ivocally that agents and lawyers work ing together produce better results than either groupworking alone.

In national security matters, however, the FBI and DO J continue to operate as if it were1940. Until November 2002, whena federal courtdismantled the legal wallbetween intelligenceand law enforcement, prosecutors were kept awayfrom national security investigations, andother elements of DOJ (including the FB I's ow nOffice of General Counsel) lacked the resourcesto participatefully in such matters beyond their (vital) wo rk on electronic surveillance an drelated activities. A Justice NSD w ould have the resources,focus, and clout to wo rkclosely withthe FBI on all aspects of the Departm ent's com bined national security mission. In Wash ington,NSD would w ork with FBI H eadquarters on national security programs and policy, am ong othermatters. In the field, NSD could maintain a presence modeled on the old Organized Crime StrikeForces, and partner with FBI agents on individual investigations. In this way, NSD wou ld helpmodernize theFBI's national security activities to take advantage of the agent-lawyercooperative model that work s so well in other contexts. Indeed, although it wouldrepresentsome loss of independence,the FBI should welcomea Justice NSD because it would improvetheFB I's eff ectiven ess, and thus diminish the chances of Congress sp litting the Bureau to create anAmericanMI-5.

Last, but not least, a NS D could only enhance protection o f civil liberties by bringinglawyers - with their legal expertiseand perspective- into national security operationsas theynow participate in law enforcement operations. Thus, for example, just as DOJ lawyers havelong sat on the com mittee that reviews risky FBI undercover o perations in criminalcases, so theywould now sit on its national security counterpart. Such a mov e wouldfurther support (andwould also seem tofollow logically from) the Department's November 2003 decision to alignthe Attorney General's national security investigations guide lines with the more relaxed criminalguidelines.

The principal argumen t against creating a NSD is that it would separate national securityprosecutorsfrom other Criminal Div ision lawyers, and thereby reduce the synergies betweenthem. But DO J has specialized prosecutors in its Antitrust, Civil Rights, Environm ental, and TaxDivisions because of a belief that greater synergies can arisefrom grouping employees bysubject-matter (the toolbox) rather than by legal technique (the tool), at least when the subject-matter becomes amajor national priority. Thus it was that the civil rights section of the CriminalDivision becam e the criminal section of the Civil Rights Division wh en the latter was created in1957. In that era, the mo vereflected a belief that prosecution w ould be m osteffective as part ofa single, coordinatedeffort by the Department using all available metho ds to protect civil rights.Today, I believe, the same is true of national security.