16 YLLPR 331
16 Yale L. & Pol'y Rev. 331
(Cite as: 16 Yale L. & Pol'y Rev. 331)
© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.
is available, and that notwithstanding the transnational nature of the investigation, the stricturesof
United States v. Toscanino
Brady v. Maryland
[FN10]have been met.But this expanded assertion of international criminal jurisdiction has not occurred in avacuum, as the United States also maintains an expansive global network of intelligencecollection activities. While the Central Intelligence Agency (CIA) is perhaps the best-knowncomponent of that apparatus, its espionage and covert action activities are complemented by thesignals intelligence operations of the National Security Agency (NSA), the satellites orbited bythe National Reconnaissance Office, the
human intelligence collected by the DefenseIntelligence Agency (DIA), and the operations of a dozen other U.S. intelligence organizations.Of special note in this respect is the dual role played by the Federal Bureau of Investigation(FBI), which combines in one organization responsibility to enforce U.S. law worldwide and toconduct counterintelligence activities both at home and, in some cases, overseas.During most of the Cold War, the lines were clearly drawn between the work of theintelligence community and the law enforcement community. U.S. law enforcement agencies,whether the FBI, the Bureau of Alcohol, Tobacco, and Firearms, the Customs Service, or theDepartment of Justice concentrated primarily on crimes that had occurred and could beinvestigated within U.S. territory.[FN11]This domestic focus followed naturally from thestatutory responsibilities of the law enforcement agencies and the structure of U.S. criminal law.The intelligence agencies could not have been more different, in terms of both geographicalresponsibility and subject matter. Unlike the FBI, Department of Justice, and the other federallaw enforcement agencies, the CIA was expressly prohibited by the National Security Act fromexercising any “police, subpoena, or law enforcement powers or internal security functions”from the moment of its creation in 1947.[FN12]The primary reasons for that “law enforcement” proviso were twofold. First, the nation had recently witnessed in Hitler's Germany, and wascontinuing to observe in Stalin's Soviet Union, the abuses that can arise from the combination of intelligence collection activities and law enforcement authority. And second, the FBI was jealousof its own prerogatives: Although the Bureau did close its Latin American field offices in the late1940s in deference to the nascent CIA, the FBI was not prepared to accept any challenge to itsown core function of domestic law enforcement.The strict delineation between intelligence and law enforcement was facilitated by the factthat, simply stated, there was relatively little overlap between the two in 1947. Such overlap asthere might be was addressed primarily by the FBI, which continued to exercise itscounterespionage functions within the United States as it had done during the Second WorldWar. Espionage
the United States and
the United States clearly was a criminaloffense and, therefore, a matter for law enforcement, and so the Bureau (or, in appropriateinstances, the military) would continue to address it. Events
however, were another
matter, for there the primary U.S. concern normally was not crime, but Communism, againstwhich American activities consisted primarily of military and intelligence operations.