>>> Report: How to Fix the FBI
John Popp: From The Heritage Foundation, this is Heritage Explains.
Mark Guiney: Mark Houck is a pretty busy guy. He’s a pro-life activist, faith leader, and father of seven children. In early morning last September, he received a very unexpected visitor, or should I say visitors at his front door. To understand those visitors, you also have to understand an event that happened in October of 2021. Mark was praying outside an abortion clinic in Philadelphia and had a minor altercation with a clinic escort who was harassing his 12-year-old son. In the aftermath, Mark complied with all law enforcement. Here’s Mark telling his story to the House Judiciary Committee on Capitol Hill this past May.
Mark Houck: I want you to know that the Philadelphia PD and the DA in Philadelphia as well as the Civil Affairs Department did not intend to prosecute. They had no interest in that. I was put in a private criminal complaint, which was dismissed. I want to take you to April 22nd when it was dismissed. Five days later, this is 2022, I was served a target letter on the same street corner with my 12-year-old boy, a target letter that I was a target of a federal indictment. Fast-forward to September 23rd, my attorneys reached out and initially at the target letter stating that we would peacefully present ourself to the district. “There’ll be no need to come out to his house and disrupt his family and cause any trauma to them. He’s a peaceful man, he will come in.” He said that. In August of 2022, my attorney reached out to me and says, “Have you heard from the assistant U.S. attorney?” I said, “No.” “She won’t return my phone calls,” he says, I said, “Well, maybe we’ll just let sleeping dogs lie.”
Guiney: But those sleeping dogs did not lie. It turned out that the Justice Department had a very different plan in mind. Here’s Mark Houck again.
Houck: On September 23rd, my home was rated by 10 unmarked and marked units, state troopers, federal law enforcement personnel. I had five federal agents on my doorstep at 6:30 in the morning with long guns pointed at me and my seven children. They banged on the door and they said, “Open up,” they did not even declare who they were that day. They didn’t even ask me, “Could you please open the door? We’re the FBI.” They just said, “Open up.” I went to the door, I was up. I said, “Who is it?” They said, “It’s the FBI, open up.” So, I opened up the door peacefully. I said, “Please, stay calm. I have seven babies in here.” They pointed M16 guns at me and my wife. My wife comes down and says, “Do you have a warrant for his arrest?” They said, “We’re taking him with or without a warrant.” My wife said, “You can’t do that. That’s kidnapping.”
Guiney: But the federal authorities did not listen to Mrs. Houck. Mark was arrested in his pajamas. He was not permitted to brush his teeth or put on appropriate clothing or socks, even though it was a cold morning. He was taken to a federal building, chained to a table for hours and questioned when he was released eight or 10 hours later, Mark Houck, even though he was a free American who had done nothing wrong, somehow found himself in a legal battle with the might of the Federal Department of Justice, facing the possibility of 11 years in prison. With seven children, that’s a lot of childhood to miss.
In the last several years, the FBI, the Federal Bureau of Investigation, has been caught behaving badly and doing so in a highly politicized manner. To name a few high profile examples, the recently released Durham report revealed that the FBI used unfounded claims to target the Trump campaign during the 2016 election. Independent reporting has shown that the FBI colluded with major tech companies, most notably Twitter, to censor and intimidate the American public, famously downplaying the Hunter Biden laptop story, and the FBI has been caught targeting such groups as concerned parents and traditional Catholics as potential terrorists or extremists, but what do you do when a once trusted institution like the FBI loses that trust? Well, the situation is not without precedent. I sat down with Heritage Foundation distinguished fellow Steve Bradbury, author of the paper, How to Fix the FBI to talk about just that.
Steve Bradbury: I’m Steve Bradbury. I’m a distinguished fellow here at Heritage. I work mostly on project 2025, planning for the next conservative administration, that’s a big project, but also work on a range of other issues, regulatory issues, law enforcement issues. In this case, taking on the big question of what should be done with the FBI. And before coming to Heritage, I’ve worked previously in government. I’m an attorney, worked in private practice in Washington for many years, but served in the Justice Department during the Bush 43 administration as the head of the Office of Legal Counsel and in the Trump administration, I served in the transportation department as the general counsel and acting deputy secretary among other things.
Guiney: And interestingly, prior to that in your career, you also clerked on the Supreme Court for Justice Clarence Thomas. Is that right?
Bradbury: That’s right, yep.
Guiney: So, I think this is a really interesting question. Your paper is How to Fix the FBI, and of course the FBI is an American institution. I feel like I’ve watched 100 films where the climax of the film is the bad guys get caught and the FBI comes in and they’re wearing their jackets and they take the bad guy away and all this stuff. So, we think of the FBI as a good thing, right? But that’s not the situation that we’re in. Could you explain that?
Bradbury: Right. Well, it certainly is a venerable institution and has a great tradition in a lot of respects, sort of stands for the American way of life and protecting the American way of life from organized crime that are beyond the reach of state and local law enforcement agencies, so there clearly was a need. But of course, we all remember J. Edgar Hoover in the days when he was a base of power unto himself, sort of mini government that wielded huge power, really, political power over a lot of people in Washington, and the Congress attempted to change that over the years. They put a 10-year term limit on the director of the FBI, but in recent years, it’s really changed fundamentally. After 9/11, after the terrorist attacks of 9/11, president gave the FBI sort of a new prime directive, which was to help stop the next terrorist attack and be an intelligence gathering agency, a national security agency first.
And that made a lot of sense after 9/11 when we feared follow on attacks, but a lot of water has gone under the bridge since then, and I think what we’ve seen is some of those intelligence gathering tools have been used in a much more expansive way in recent years and have been turned on Americans, including ordinary Americans exercising their constitutional rights, free speech on the internet, parents trying to get control over their children’s education, religiously motivated folks protesting at abortion clinics, and we’ve seen the abuses reported in the Durham report, really astounding, disparate treatment of the Trump campaign versus the Hillary Clinton campaign and very politicized and an abuse of the foreign intelligence surveillance authorities of the government to do the Carter Page, FISA, for example, and then the Twitter files, really astounding. To me, one of the biggest stories in recent years, of course, largely ignored by mainstream media, but the Twitter files exposing the FBI and other government agencies monitoring American speech, and then working with the tech companies to censor and suppress that speech.
And obviously then also attempting to suppress the stories about the Hunter Biden laptop leading up to the 2020 election, which a lot of people think did have an impact on the election. So all of these facts, this sort of chilling background record has been exposed in recent reports, including FISA court reports recently unsealed showing the FBI more than 278,000 times improperly dipping in into foreign intelligence databases to gather information on Americans for purposes having nothing to do with national security, completely unauthorized and improper.
And by the way, some of those FISA tools, the Section 702 it’s called, foreign intelligence tool, very powerful tool, is up for reauthorization this year. And so in the midst of all of this, I think senior policy makers, particularly conservatives, particularly in Congress, are looking hard at what should be done with the FBI and a lot of people talking about a fundamental rethink of the FBI, rebuilding it from the ground up. Kevin Roberts, president of Heritage has reflected some of those growing concerns by suggesting that there really ought to be a look at rebuilding the FBI, starting it over as a new agency, reconceiving it, and that’s largely what our paper is focused on.
Guiney: Now, first I want to ask, obviously there’s other three letter intelligence agencies under the government, there’s the NSA, the CIA. Why are we focusing on this particular agency?
Bradbury: Well, it has the full range of tools. It’s the agency that puts boots on the ground, that does physical surveillance of Americans in America, all the full range of law enforcement power. Its powers, its investigatory tools, its jurisdiction are co-extensive with the full range of federal authority. It’s got quite a waterfront and quite a set of powers, and the other agencies are limited in their ability to do surveillance or foreign intelligence gathering in the US on Americans, very much more restricted. FBI has broad mandates to do that, and so I think the issue has been identified and concentrated and focused primarily on the FBI, but there’s always questions about whether reform should be brought to bear on other intelligence agencies as well, and certainly we’ve seen with Department of Homeland Security and other entities of the federal government getting involved as the Twitter files exposes in this monitoring of online accounts.
But our focus is primarily on the FBI, and I think the policy makers are focused on that, and this renewal of Section 702 is kind of bringing everything to a head this year. It’s going to be reauthorized, something has to happen legislatively this year, so that’s sort of leverage. It’s a decision point, an opportunity to take on this question, and so in our paper, we walk through, first of all, what would it look like to rebuild the FBI? What would the elements of that be that Congress should consider? And then we step back and say, “Okay, whether or not Congress takes on that big project of reconceiving the FBI, what’s the minimum set of reforms that at the very least must be put in place, including as a condition of reauthorizing Section 702 to end the abuses that we’ve seen and to bring the FBI under control and protect the rights and liberties of Americans?”
Guiney: Now, can you talk about Section 702 and FISA? People may not be familiar with what either of those are. Could you describe what’s going on there?
Bradbury: Right, FISA is the Foreign Intelligence Surveillance Act, and it’s a statute that provides for Article III judges, life tenured federal judges, regular ordinary judges who have life tenure and are independent under Article III, to sit on a special court to hear applications from the government, the intelligence community for orders or warrants, if you will, that allow the government to do surveillance on individuals or groups for purposes of foreign intelligence gathering, identifying or responding to potential threats to the US from foreign powers, for example, and this is surveillance that can happen in the US. Section 702 is a particular tool within the FISA toolbox, but it’s very powerful and broad and what it allows, it’s limited to surveillance that’s targeted at foreigners, not Americans, but foreigners who are believed to be located outside the United States. So, it’s surveillance targeted at foreigners who are in foreign countries outside the US.
So think about, for example, China, the communist leaders of China or the Chinese military. We know they are trying to spread their influence, undertake malign encroachments or activities in the United States, but also elsewhere around the world, and we want to understand what they’re up to. That’s very important for national security. So, Section 702 can enable the government to focus on those foreign actors and collect their communications when they pass through facilities in the US. It’s surveillance done in the US, so a very powerful tool. It doesn’t require individualized orders approved by the FISA court. You get the procedures for the program are approved, and once the procedures are approved by the court, then the executive branch can undertake this surveillance, and we have a lot of targets under surveillance under 702, so it’s much more flexible and broad than the regular FISA, which requires individualized orders with showings of probable cause that the person you’re trying to surveil is an agent of a foreign power or a terrorist, for example.
So, a very powerful tool, but one of the things we suggest in our paper is Congress should take a really hard look at separating the FBI from this 702 program, insulating the FBI and saying, “Okay, but the FBI, it’s a great tool and maybe we continue to need it...” We think it does have great benefit and the next president should have it to protect the country, for example, from China, cartels, et cetera, but it’s not an FBI tool in the first instance. Other elements of the intelligence community really use it for foreign focused intelligence gathering. So, the FBI doesn’t really need to have direct participation in 702. That’s what we’re suggesting. That’s a big question, that’s a big issue. There’ll be a lot of pushback on that from the executive branch, from the FBI in particular, but I think just the record of abuses, the high number of improper uses of this database by the FBI to gather information on Americans, for example, January 6th rioters, Black Lives Matter protestors, visitors to the FBI headquarters, maintenance workers, they do checks on them in this database. That’s completely improper.
Obviously, members of Congress, the intel committees will need to take a hard look at that, but that’s something we think is an important fundamental reform that needs to be made in light of the abuses we’ve seen, and we’re saying that’s something that at a minimum should be done as a condition of reauthorizing Section 702, where this is for the first time in this cycle that Heritage is taking a position on Section 702, on its reauthorization, on what should be done as a condition to that, very specific suggestions in the paper on that, and then broader discussion in some detail of what the elements of more total encompassing reform of the FBI would look like. We also have a set of basic suggestions for reforms that we think at a minimum should be put in place, even independent of rebuilding the FBI, like a prohibition on federal agencies monitoring people’s speech online and working with tech companies or others outside the government to try to suppress or censor, that’s still going on.
There was a report from the House Judiciary Committee just yesterday about the FBI doing that in conjunction with Ukrainian security forces to try to censor or suppress anti-Ukraine speech online as disinformation or potentially Russian influence, but this is fundamentally chilling because we’re talking about federal power, the most powerful federal law enforcement and domestic intelligence gathering agency in the government actively working to suppress constitutionally protected speech online of Americans. And what could be more chilling than that really? What could be more anti-American? And that’s continuing, and Congress, it seems to us, ought to take a hard look at a complete prohibition on federal agencies engaging in that activity. Put this disinformation enterprise out of business.
Guiney: So, we’re not talking about reforming the FBI, we’re talking about potentially rebuilding the FBI. What’s the distinction there? Would the plan be to just fire everybody?
Bradbury: Well, this is all up to Congress, whether Congress takes this on, and basically it’s a matter of scope and sweep, but there are a good number of people in Congress and elsewhere talking about the idea of, “Okay, let’s just start over with the FBI. Let’s reconceive it. Let’s make it a new agency. Let’s put the old one out of business and let’s start from the ground up with something new.” And if you were going to do that, as we discuss in our paper, we think here are the elements in that concept that you would need to consider. What would the jurisdiction of this agency be? Would it be any and all federal criminal laws, or would it just be certain ones that are not already covered by other federal agencies? So, we eliminate the redundancy, so it’s not an all things considered, complete waterfront of everything federal, which it currently is.
Then, should we take the intelligence gathering function, which has been so prominent since 9/11? And at this point, would it be better to take that out of the FBI? So, the FBI is not part of the intelligence community anymore, and maybe if we need that function, put it in Department of Homeland Security or someplace else? That’s a big question. Another question is, should the FBI have the full range of tools that it currently uses? So for example, FBI does formal investigations, they do preliminary investigations. These involve some factual predicate, some reason to believe the target of the investigation is engaged in something unlawful or a national security threat, but they also do what they call assessments, and assessments are less formal and they don’t have a time limit. They can be approved by a fairly low level supervisor. FBI decides when they do them, FBI decides the purpose.
They don’t require a factual predicate to believe the subject of the assessment has violated the laws engaged in anything nefarious, and it’s under this assessment authority that they can track Americans online, they can monitor your online activities, they can follow you around physically, do physical surveillance of you. They can gather information on you from other agencies or all publicly available sources. They can do all kinds of surveillance that doesn’t require a court order on you and gather information, create a dossier, if you will. And it’s under this sort of assessment authority that they do a lot of the monitoring of people’s speech online, they’re following parents around school board meetings, abortion clinic protestors, et cetera. And there’s a real question there, if you’re going to rebuild the agency, maybe Congress ought to consider... We think they ought to consider limiting the use of a tool like that.
So, requiring that there be some factual predicate before they open an assessment on Americans, requiring higher level approval, or maybe not allowing them to do it on Americans without a serious factual predicate. A lot of questions like that. Also, issues about putting the FBI within the chain of command of the Justice Department, eliminating a lot of its self-supporting functions like General Counsel’s Office, Office of Public Affairs or Ledge Affairs. It doesn’t need to do that for itself. It’s sort of a mini fiefdom. It’s not mini, it’s a big fiefdom unto itself with a lot of power, and self-supporting, maybe it should be folded into the Justice Department’s chain of command and the Justice Department can provide those services to the FBI, make the FBI like a normal sub-component of the department, subject to the political accountability of the president.
We think that’s a reform that ought to be made, really whether or not Congress takes on the complete rebuild of the FBI, but also if you’re going to take a fresh look at the FBI, you probably want to look at the personnel, revamp the personnel standard, return it to the traditional high standards of fitness, of ethics, of professionalism that the FBI traditionally has stood for.
We think they’ve gotten away from that in recent years, and there really ought to be a returned to that standard of excellence. Other considerations as well, we walk through 11 elements of a potential rebuild of the FBI. We’re not in this paper trying to dictate exactly every jot and tittle of a rebuild. That will take a lot of work. If this is a road Congress goes down, it will probably be a fairly long road. It’s a pretty complicated proposition, and of course, we have experts here at Heritage who will be ready to help provide technical assistance, help flesh out what some of these components would involve, put more flesh on the bones, if you will, of a rebuild, but then just equally important is the third part of the paper where we lay out those minimum set of reforms that we think is an absolute minimum are necessary to stop the abuses and protect the civil liberties of Americans.
Guiney: Is there anything else you think people should understand about this issue?
Bradbury: I would encourage people to go on our website, heritage.org, and take a look at this report called How to Fix the FBI, and these debates are really just getting rolling and it’s going to intensify throughout the year as Section 702 comes up for reauthorization and as Congress takes on these issues, we hope to be very much involved in those discussions and helpful if we can be. That’s really the traditional role Heritage has played as a leading policy think tank in Washington, and few issues could be bigger than this one.
Guiney: Absolutely. Steve Bradbury, thank you very much.
Bradbury: Thank you.
Guiney: A positive note to end this story. Mark Houck, the father of seven who found the FBI on his doorstep last September was acquitted by the US District Court of Philadelphia, and so he got to go home to his seven children. Someone tomorrow might not be so lucky. One thing that Mark, Steve, and all of us here at Heritage know is that if we want justice to be served, there’s work ahead of us. Thanks for listening to this episode of Heritage Explains, and thanks especially to Steve Bradbury, Mark Houck, and all of you for listening to our show. Check out our show notes for Steve Bradbury’s paper, How to Fix the FBI. You can find more of Steve’s work at heritage.org. You’ll also find the link to The Daily Signal documentary on Mark Houck, where his wife and children give their side of the story. If you have any thoughts or feedback for us, send it our way at Heritage Explains at heritage.org. We’d love to hear from you. Thanks for listening. We’ll see you next week.