The problem with nationalized law enforcement

OPINION:

For the past 1,000 years or so, law enforcement in the English-speaking world has been grounded in localities rather than in regions or national authorities.

Local enforcement officials were selected by local nobles or by the town councils. Laws were ad hoc and based on religious prohibitions and local customs more than anything else. Lawyers were mercifully rare, and punishments were relatively mild. They didn’t lock people away in cages for decades.

Most importantly, citizens knew and, in some cases, selected their law enforcement officials. As a practical matter, that meant local laws and customs were predictably enforced in ways that made sense to those who lived under them.

Unfortunately, local control of law enforcement began to give way, as did many other things, before the “progressive” wave at the start of the previous century. This wave was based on the untried (and ultimately unwise) notion that all functions of government should be professionalized and — more ominously with law enforcement — nationalized.

The shining victory of the progressives on law enforcement was, of course, the creation of the FBI in 1908. Originally and ostensibly designed to focus on the illegal production and transportation of alcohol, the agency eventually found lots of reasons to grow, despite objections from some that having a law enforcement agency completely unmoored from local citizens would invite abuse.

Those concerns appeared to have been warranted. Federal law enforcement, in general, and the FBI, in particular, have a mixed record. From J. Edgar Hoover surveilling pretty much everyone (left, right and center) to Presidents Obama and Biden weaponizing federal law enforcement against their political adversaries, the media, presidential campaigns and even congressional offices, the FBI has not been an unalloyed tribune of freedom and the rule of law.

Having himself been a victim of this separation of law enforcement from the citizenry, President Trump understands how federal law enforcement can be used against people, innocent and otherwise.

That brings us to the U.S. Immigration and Customs Enforcement agency. ICE’s actual enforcement record has been unremarkable, with few deaths in custody and no credible evidence that any American citizen has been deported, accidentally or otherwise. The actual number of deportations (voluntary or not) roughly tracks the numbers of previous administrations.

The problem is that the immigration police, like the FBI before them, have sometimes traduced traditional norms of law enforcement, just as critics of national police forces in the last century predicted and just as other national police forces have reliably and predictably done.

Federal agents have sometimes fallen into the bad habits that lack of local oversight brings: occasional indifference to probable cause, individualized suspicion of guilt, denial of the right to counsel, arrests without warrants, failure to presume innocence, and all the other traditions we have concluded are essential to maintaining the rule of law.

We should have and enforce national borders; there cannot be a nation without them. At the same time, there can’t be a nation without laws or without the enforcement of those laws, which respect the hard-earned lessons of 1,000 years of interaction between rulers and the ruled. We adhere to due process because it protects all of us — ruler and ruled, law abider and law enforcer — by minimizing the possibility of grievous error.

To the extent any regime claims sovereignty — that only it may wield force legitimately and for the purpose of maintaining order in a specific place — that sovereignty can be considered legitimate only if it is grounded in the rights given by God (sorry, Sen. Tim Kaine).

The problem with federal law enforcement is that it is completely disconnected from the citizenry’s control. Local control of the police function, the court system and the jails has been understood in the Anglo-Saxon world as the bulwark against the depredations of faraway rulers.

Sheriffs (“Shire reeves,” or clerks of the town or county) may have been appointed by the king, but they were local men whose families and clans lived in the town and who were, consequently, in tune with local customs, preferences and exigencies.

I’m not sure the same can be said of federal law enforcement agents or agencies. Like so many other ideas from the Progressive Era, we probably should rethink our approach to national law enforcement.

• Michael McKenna is a contributing editor at The Washington Times.