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A Federal Crime?

From the June 19, 2002 Dallas Morning News: As Congress repurposes the FBI, it should also look at what constitutes a federal crime.

10:00 AM, Jun 19, 2002 • By TERRY EASTLAND
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IT TURNS OUT that on the morning of September 11, 2001, two FBI agents were monitoring phone calls from the home of a madam of a New Orleans brothel. Yes, the prostitution supervised by one Jeannette Maier so concerned the feds, who suspected it involved drug trafficking and organized crime, that wiretap authority had been duly secured. But with the terrorists attacking back East, the agents shut down the wiretap. They were back listening the next day, and in March a dozen women were indicted on charges including money laundering, racketeering, prostitution, and marijuana possession. Last month, Maier and her mother, Tommie Taylor, pleaded guilty to prostitution conspiracy.

The FBI was proud of its work--and has publicized it. But the case has drawn only criticism. It isn't hard to see why, since here you had agents investigating prostitution even as al Qaeda terrorists were assembling in America to kill Americans. Of course, the Bureau didn't know that, though it now concedes it might have been able to figure out at least part of the terrorist conspiracy before September 11. Even so, the New Orleans case, active on the very day the terrorists struck, sharply raises the question of federal law enforcement priority: Why should the feds have probed activity that local authorities typically handle?

The question is a good one, but I am concerned that it won't be pressed as far as it should be. The temptation is to damn the FBI for bad judgment in pursuing the case--as Sen. Patrick Leahy did earlier this month during an oversight hearing--and leave the matter there. But the deeper problem lies in the federalization of so much crime.

Over the years, the FBI has been given many crimes to investigate--including prostitution. Who gave it that authority? Congress after Congress, urged on by presidents. And both parties have joined in the ongoing manufacture of federal criminal law. Who, after all, wants to be portrayed during a campaign as pro-criminal?

With so many federal crimes--now more than 3,000, including carjacking, wife beating, and church burning--no one should be surprised when an FBI office winds up investigating something that seems, in a larger context, hardly urgent. Lawmakers rethinking anti-terrorism policy would be well-advised to figure out which crimes should be federal and which shouldn't--and amend the U.S. code accordingly. Doing that would ensure that the Bureau focused on cases of national concern.

In the New Orleans case, the Bureau's decision to go forward seems highly dubious--especially when you look at it now. Agents monitored 5,000 phone conversations but failed to turn up evidence of drug trafficking or organized crime. In other words, the criminality was less serious than originally supposed.

The New Orleans FBI office has defended the probe on the grounds that because the prostitution conspiracy crossed state lines--arrests being made in Pittsburgh, Atlanta, Boston, and Chicago--only the Bureau could have handled the case. That is true, yet the basic question remains of whether the Bureau ever should have to worry about interstate prostitution. No doubt, the FBI, now being reorganized to better counter terrorism, won't focus on another brothel anytime soon. But whether or not the Bureau opens such a case will continue to be its decision--unless Congress takes the matter out of its hands. If Congress did that, prostitution (in-state, that is) would be solely for the states and localities to investigate.

Rethinking our anti-terrorism policy should involve more than reducing the number of federal criminal laws. It is a mindless federalism that seeks simply to get the national government out of matters better left to the states. Federalism also means equipping the national government with the power it needs to do plainly national tasks. Defending the nation is supremely such a task. And yet the Bureau still doesn't have the power it needs to disrupt and prevent terrorism.

The story of Zacarias Moussaoui illustrates a current weakness. In that case, agents weren't able to secure the authority for a search warrant. The reason: Under the relevant law, the government must show that the target is an agent of a foreign power or terrorist group. The agents couldn't demonstrate that. Congress usefully might change the law so that it provides for search warrants for individuals thought to be terrorists, regardless of any group membership.

The FBI obviously has much it must do to improve its counterterrorism efforts. But Congress also has a vital role to play. For only Congress can revise the criminal code so that the Bureau pursues--and has adequate power to pursue--cases of true national interest.

Terry Eastland is publisher of The Weekly Standard