Archive for FBI

An Open Letter to the Honorable Chuck Grassley

Posted in Law & Justice, Social & Political with tags , , , , , , , on July 12, 2017 by xaipe

"History shows that the ten-year term limit isn't there to protect the FBI Director from politicians or politics; it's there to protect–to help prevent the FBI Director from overreaching or abusing power."

Dear Senator,

I directly quote you above to highlight a serious factual error in your statement. I'm not sure what history text you're consulting for this position, but I would suggest you find another source, perhaps documents from your own Senate.

Case in point, from the 2nd Session of the 93rd Congress, Report No. 93-1213, Calendar No. 1151, Ten-Year Term For FBI Director:

"The purpose of this bill is to achieve two complementary objectives. The first is to insulate the Director of the Federal Bureau of Investigation from undue pressure being exerted upon him from superiors in the Executive Branch. The second is to protect against an FBI Director becoming too independent and unresponsive."

As Chair of the United States Senate Committee on the Judiciary, the same position you now occupy, Senator Robert Byrd would be an excellent source for you to reference. As I think should be clear from the above citation, you are clearly incorrect in stating that the ten-year term limit for the FBI Director isn't meant to insulate the Director from undue political influence.

I would further argue that you fail to comprehend the meaning of the plain English language in the amendment itself:

"(b) Effective with respect to any individual appointment by the President, by and with the advice and consent of the Senate, after June 1,1973, the term of service of the Director of the Federal Bureau of Investigation shall be ten years. A Director may not serve more than one ten-year term. The provisions of subsections (a) through (c) of section 8335 of title 5, United States Code, shall apply to any individual appointed under this section."

—S. 2212 (94th): Crime Control Act, Sec. 203 (emphasis mine)

I highlighted the relevant language so that we might operate from the same set of facts. The law says clearly that the term of the Director "shall be ten years." This reminds me of other language that seems familiar, i.e. "Congress shall pass no law…" within the text of the Bill of Rights. I draw this parallel for a reason.

We take the language in the Bill of Rights to mean what it says, so when we read:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

We understand it to mean that Congress will never, ever, do any of these things. The words "shall make no" carry weight & force. While the auxiliary verb "shall" denotes future action, its connotation is that of expressing an assertion or a command. This is the function of these words in general, but the example helps to elucidate their gravity.

In a like manner, S. 2212, Sec. 203, states in few words that the FBI Director's term "shall be ten years." There is no equivocation nor qualification in the words chosen. There is nothing suggesting that its authors meant for the term to be "up to" ten years. They say quite simply that the term will be exactly ten years.

We could argue that they could have been more clear about how the Director functions under the umbrella of the Office of the Executive, under what specific conditions the Director can be fired, etc. However, while such debate might be relevant to the esoteric discussions of the future, it has no bearing on this issue.

The notion of FBI independence is not about to whom the FBI reports or under whose office they are organized. At its core, FBI independence is about ensuring that, when the coercive powers of the State are moved en masse against an individual or a group, those coercive powers are brought to bear with absolute regard for Constitutional Rights & the demands of Justice, without being colored by political motivations.

That you fail to grasp this simple concept is unconscionable. In my mind, it borders on negligence. Your apparent ignorance about important, relevant legislation would drive me to distraction were I an Iowan; as an American I'm simply incensed. You made these statements in public, on the record, opening the confirmation hearing for the nominee for the position of Director of the FBI!

I'd like to say that history will judge you unkindly, but I have little faith that many people will pay any attention to this whatsoever. I suggest that contravening such an opinion as yours is of great importance. If allowed to proliferate, your notions could easily lead to a situation in which every incoming president will simply appoint his or her preferred director, a situation the 94th Congress sought to avoid at all costs.

I won't attempt to address further remarks you made disparaging Andrew McCabe, James Comey, & the FBI for carrying the ugly legacy of J. Edgar Hoover, as if the very fact of the ten year term doesn't already address Hoover. To suggest that a politically independent FBI is somehow a threat to liberty is not just foolish, it is irresponsible.