When government tempts
IN a democracy citizens are understandably ambivalent about letting law-enforcement agencies resort to ruses to catch lawbreakers. They clearly don't want people in high places to get away with wrongdoing: Every corrupt government official weakens a society.
Yet they wonder why law-enforcement officials don't concentrate on solving those crimes that already are taking place, rather than plotting to exploit the weaknesses of government officials and others to manufacture a new crime and bring about their downfall.
In a way this national ambivalence is symbolized by the split of a House subcommittee in its report, just released, on the Federal Bureau of Investigation's undercover operations. The majority, all Democrats, sharply attacked actions of the FBI and recommended that it be required to get a warrant from a judge before undertaking a secret probe.
The minority, all Republicans, said this was a slanted view which focused on a few FBI investigations that had shown problems, instead of considering all probes in perspective. The minority opposed requiring a warrant on grounds the procedure would make judges a de facto part of an investigating team and jeopardize their judicial independence.
The FBI now puts substantial effort into undercover probes, the majority report noted. It said 316 were under way last year, with 53 major probes. It added that the FBI has budgeted $12.5 million for undercover work this year.
Best-known investigations have been the Abscam series, with convictions of seven members of Congress on various charges, and the cocaine trial of John De Lorean, now under way. The Abscam cases raised the public issue of whether the FBI acted properly or unfairly entrapped the congressmen, and whether stricter oversight is needed of FBI probes.
Forcing the FBI to obtain prior judicial warrants, as the Democratic members of the House subcommittee want, would be one approach. But a bipartisan proposal pending in the Senate, sponsored by Sens. Charles McC. Mathias and Walter D. Huddleston, steers a wiser middle ground: It would require tougher oversight but does not involve the judiciary. It would require the FBI to establish strict guidelines for supervising its clandestine probes. It would demand that the FBI show there is probable cause to believe a crime has been committed before beginning each undercover operation. And it would enable an innocent person victimized by such an investigation to sue.
Such an approach should be tried first. If there still appeared to be a need for tighter supervision of undercover probes, the idea of requiring a judicial warrant could always be considered. But that would be too drastic a step at this time.