FBI Independence as a Threat to Civil Liberties: An Analogy to Civilian Control of the Military

68 Pages Posted: 22 Feb 2018 Last revised: 13 Feb 2019

See all articles by Justin Walker

Justin Walker

University of Louisville - Louis D. Brandeis School of Law

Date Written: February 12, 2018

Abstract

At a time when the President is under investigation, and in the wake of a controversial dismissal of the FBI Director, the need for an "independent" FBI has appeared to many more important than ever. Indeed, the Senate would not have confirmed the new FBI Director if he had not promised to be independent of the President and the Attorney General. However, this Article argues that calls for an independent FBI are misguided and dangerous. It analogizes presidential control of the FBI to civilian control of the military by demonstrating that, contrary to conventional wisdom, the FBI and the military share the same purpose. It then explores in depth how the FBI has often infringed on civil liberties in the same way that the framers worried an out-of-control military might do so. And it explains why the independence that the FBI often enjoyed was a cause of those civil-liberty violations. Finally, it concludes that if it is necessary to preserve the FBI's investigative independence, the solution is to split the FBI to reflect the model of many western democracies-creating an independent agency to investigate crime (like Britain's New Scotland Yard) and a separate agency to continue the FBI's national-security functions (like Britain's MI5).

Keywords: FBI, national security, civil liberties, separation of powers, unitary executive, J. Edgar Hoover

JEL Classification: K00, K19

Suggested Citation

Walker, Justin, FBI Independence as a Threat to Civil Liberties: An Analogy to Civilian Control of the Military (February 12, 2018). George Washington Law Review, Vol. 86, 2018, University of Louisville School of Law Legal Studies Research Paper Series No. 2018-6, Available at SSRN: https://ssrn.com/abstract=3122728

Justin Walker (Contact Author)

University of Louisville - Louis D. Brandeis School of Law ( email )

2301 S 3rd St.
Louisville, KY 40208
502-852-6638 (Phone)

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