The administration can’t seem to distinguish between law enforcement and national security.
The administration can’t seem to distinguish between law enforcement and national security.
T he onslaught of jihadist terrorism against both our homeland and American targets overseas began in 1993 with the bombing of the World Trade Center, just a few blocks from the FBI’s lower Manhattan headquarters and the federal courthouse. The Clinton administration then decided international terrorism would be treated as a law enforcement problem.
Besides the obvious security challenges that flowed from this decision was a consequence less apparent but just as real: It necessarily eroded due process protections because the societal costs of mass-murder attacks are prohibitive — compared to the costs of enduring a reasonable level of quotidian crime, which is a price of living in a free society. The erosion deepened markedly after the shocking 9/11 atrocities that killed nearly 3,000 Americans, destroyed the World Trade Center, and struck the Pentagon.
The result? Our government agencies and the public have lost perspective of what used to be a clear divide between national security challenges and law enforcement problems.
I ran a major terrorism prosecution, and I worked with the FBI for many years both before and after the jihadist onslaught. So, I’m often asked what happened to the bureau, whose misadventures over the past 30-plus years, and especially since 9/11, sent its reputation into free fall. My diagnosis is: Its character changed.
Since its inception, the FBI has had dual missions in tension with each other: It is the government’s premier law-enforcement agency, but it is also its domestic security service. The FBI is a superb police force: It is professional and methodical, and its forensic capabilities have no peer in law enforcement. Historically, its domestic security capabilities have been less adept, to put it charitably.
By the 1990s, compared to such advanced countries as Britain and Israel, the United States had had less experience with systematic terrorism. The bureau’s security mission had thus drawn less attention. Even then, though, it was telling that the FBI’s worst debacle had been the 1970s COINTELPRO scandal: Due to investigative excesses driven by national security concerns, law enforcement cases against domestic terrorists who should have received long prison sentences (such as the Weather Underground) had to be dropped.
The jihadist onslaught changed the FBI’s ethos. It went from being a stellar police agency with a domestic security sideline, to being an intelligence agency — and a mediocre one, at that — which subordinated its law enforcement mission to its national security mission.
Intelligence and law enforcement are as different as they are mutually vital. They involve distinct skill sets and mindsets. When I say the FBI is a mediocre intelligence agency, I am not saying its agents are mediocrities — far from it. What I mean is: An agency that has one foot in upholding the rule of law is never going to keep the other foot steady in the dark world of intelligence, where sensibilities about law are ambiguous at best.
American law enforcement agencies mainly solve crimes after they happen, in a nation in which people are presumed innocent. Ergo, they must keep due process front-of-mind; otherwise, their laborious investigative work will come unraveled. Intelligence agencies, in stark contrast, are dedicated to preventing terrible things from happening. They mainly operate outside the U.S., often in badlands where it could be a grievous mistake to presume innocence and where their espionage activities, in service of American security, are illegal — and could get them killed if discovered. They are not heedless of due process, but it is a decidedly secondary concern.
That, indeed, is why the FBI, for all its shortcomings in the intelligence realm, has remained our domestic security service. We must have a government agency dedicated to security of the homeland; but inside our country, where the government serves a free people, not the other way around, our domestic security service has to be bound by the Constitution and statutory law. It must have a culture that is law-abiding, which intelligence agencies operating outside our borders, frequently against hostile regimes, do not.
And that’s our problem at home. We want effective law enforcement that respects our rights, and we expect government to protect us from security threats, especially foreign ones.
In contemporary America, nowhere have the lines between law enforcement and national security been blurred more than in immigration enforcement.
A free society that guarantees due process does not aspire to eliminate crime entirely. We don’t approve of crime, of course; we want it prosecuted. But our culture could never tolerate the kind of policing that would be necessary to apprehend and prosecute every criminal, and we don’t have nearly the resources such a draconian approach would require.
Hence, crime problems are managed. We are not under any illusion that they can be eliminated — in fact, most crime is not even reported to police, and most reported crime is not solved. Government’s policing, prosecutorial, judicial, and detention assets are finite. Unavoidably, we must trust law enforcement officials to allocate the resources in a manner that targets the most serious crime, surges when crime shows signs of spiking in a particular area, and promotes a perception that the laws will be enforced, thereby discouraging law-breaking.
Our goal is domestic tranquility and a flourishing society, not perfect lawfulness.
By contrast, some challenges to our society, such as terrorism, sabotage, and espionage, are essentially national security matters (even though they are criminalized in our penal code). To the extent we are capable, we have to prevent those things from happening. It’s not enough to manage them because the cost of a mass-murder attack, the destruction of critical infrastructure, or the undermining of our system of government is too high. Consequently, to deal with national security threats, we have different rules that confer broader investigative license — e.g., surveillance under the Foreign Intelligence Surveillance Act, and the creation and safeguarding of classified intelligence.
Illegal immigration should be a law enforcement problem, one that we manage through reasonable policing. The public has never expected the government to arrest and deport every non-American who is living in the country illegally.
That doesn’t mean most of us approve of illegal immigration — just like we don’t approve of street-level drug dealing, prostitution, usury, and a host of other crimes, many of which are arguably more serious than illegal immigration. It simply means that we don’t want the earth scorched by the government: We don’t want the erosion of the rights of innocent people and the interference in our daily lives that it would take for government agencies to hunt down every illegal immigrant.
Residing in the United States are probably between 12 million and 20 million illegal aliens (though it could be more). Yet, Congress provides detention space for barely a fraction of this population: less than 50,000 before President Trump entered office a year ago. Plainly, we’ve allowed far too many illegal aliens to enter (largely because progressive Democrats do not believe the United States should have borders).
Since illegal aliens have no right to be in our country, and since our law presumes that removable aliens must be detained until the conclusion of removal proceedings, I believe the border should be closed to almost all immigration until the illegal immigrant population and the detention resources are much closer to parity. But regardless of what I think, the fact that the people’s representatives provide detention space for well under 1 percent of the illegal immigrant population powerfully demonstrates that the public is not demanding a dragnet in which every illegal immigrant is captured and deported.
That would be patent except for two things: border security and the just-mentioned presence of 12 million to 20 million (or more) illegal aliens. Those are national security challenges, not mere law enforcement problems.
When border security collapses, it is impossible to protect against foreign threats. Defended borders are an ineliminable element of sovereignty.
Moreover, ordinary crime problems can become national security problems if they are allowed to spin out of control. On the low estimate (12 million), the illegal immigrant population is greater than the population of every American city (greater than Los Angeles, our second largest city, by a factor of three); it is greater than the populations of 44 states — and, if the high estimate (20 million-plus) is right, only the populations of California, Texas, and maybe Florida are higher. The strain that imposes on state and municipal resources — housing, health care, education, social welfare, law enforcement — is intolerable. So is the lack of national capacity to assimilate such masses of aliens. That is not a manageable law enforcement problem; it is a national security problem that has to be reduced to a level that can be contained by normal policing.
This is the dilemma. The anti-American left sees no problem at all because it wants radical transformation of the United States. The MAGA right, by contrast, sees an undifferentiated crisis of illegal immigration. Thus does the Trump administration react with indignation when its hardball tactics are questioned — it sees every illegal immigrant as part of a national security challenge, beyond the bailiwick of normal policing.
The country writ large is not in either of these places.
The vast majority of people see border security as vital. We want effective control: Everyone trying to enter should be confronted, and those without legal entry authority should be turned away.
Most Americans also believe that, over the past quarter century (and at record levels in the Biden era), the federal government allowed illegal immigration to metastasize until it became a crisis that threatened the nation’s security and stability.
All that said, the fact that illegal immigration became a national security challenge does not make the illegal presence of each individual alien a national security matter.
The public wants the border to be secure and the alien population reduced to the point that illegal immigration can be controlled by normal policing. Americans do not expect the illegal population to be reduced to zero; no one would want done what would have to be done to reduce it to zero (which would be impossible even if it weren’t undesirable).
Because resources are limited, they should be targeted — as they are for all law enforcement problems — at the most serious criminals. Otherwise, enforcement assets should be trained on the drivers of illegal immigration: businesses that knowingly employ illegal aliens, and our law’s misguided prioritization of family unification, which encourages noncitizens to enter or remain illegally, confident that if they have family here, they will be permitted to stay. Finally, the government should complement sensible enforcement measures with policies that encourage voluntary repatriation — helping people go back home can be much less expensive than apprehension, detention, and adjudication before deportation.
The fast-diminishing public approval of ICE and the Trump administration’s immigration-law enforcement tactics is a direct result of inability to distinguish between law enforcement and national security, between crime and crisis. It’s not enough to say no one expected President Trump to solve our illegal immigration problem in four years. The point is: This is not a problem “solved” by its elimination. The objective should be to steadily reduce the problem to a manageable level.
Apprehend the main offenders (we don’t have enough detention and adjudication resources for more than that), target the employers, and give illegal aliens incentives to leave rather than stay. Arrest and deport other illegal aliens gradually, as they come up on the radar — because inevitably, all of us have to deal with the federal, state, and local government in various ways.
Militarizing enforcement, as if every illegal alien is a national security problem, will result in plummeting public support and, inexorably, more illegal immigration.