1909 Letter to President Roosevelt
Historical Documents from the Bureau's Founding
Letter, Attorney General Bonaparte to President Roosevelt, January 14, 1909
The White House.
In submitting my views on the organization of a detective force, as directed in Secretary Loeb's letter of the 12th instant, I think it will be advisable, for the sake of clearness, to say a few words respecting the radical change in the scope of the duties of this Department since the establishment of the office of the Attorney General. For this change must be understood to appreciate the anomalies in the existing situation and the reasons for the suggestions herein contained. Section 35 of "An Act to establish the Judicial Courts of the United States," approved September 24, 1789, (1 Stat., 92-93) is as follows:
"And it be further enacted. That in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of such counsel or attorneys at law as by the rules of the said courts respectively shall be permitted to manage and conduct causes therein. And there shall be appointed in each district a meet person learned in the law to act as attorney for the United States in such district, who shall be sworn or affirmed to the faithful execution of his office, whose duty it shall be to prosecute in such district all delinquents for crimes and offenses, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned, except before [p.2] the supreme court in the district in which that court shall be holden. And he shall receive as compensation for his service such fees as shall be taxed therefore in the respective courts before which the suits or prosecutions shall be. And there shall also be appointed a meet person, learned in the law, to act as attorney-general for the United States, who shall be sworn or affirmed to a faithful execution of his office; whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the other departments, touching any matters that may concern their departments, and shall receive such compensation for his services as shall by law be provided."
It will be observed by this law the Attorney General was merely the legal advisor to the President and heads of departments, and the counsel for the government before the Supreme Court. He had no supervision or control over the attorneys for the United States in the several districts, and he and they alike had nothing whatever to do with the detection of crime or the apprehension of criminals. The law apparently contemplated that the President, or the head of the Executive Department, whose duties related to the subject matter of the offense, would discharge functions analogous to those of a prosecutor under the English system; and the United States Attorney in the appropriate district, or the Attorney General upon appeal, would fulfill the duties of counsel for the public prosecutor and no others. Under [p.3] this system there grew up in the several Departments what were virtually detective forces, although not, in some cases, originally so intended; and such is the existing condition. There are at present in the Treasury Department, the Post Office Department, and the Departments of the Interior, of Agriculture and of Commerce and Labor, a large number of officers whose duties include the detection of offenses [created by] various criminal statutes on the United States and the collection of evidence for use in the prosecution of such offenders. These officers report to the heads of their respective Departments, are subject to discipline or separation from the service, and receive promotion only through him, and are subject to no direct control by the Department of Justice.
In the meantime, however, the position and duties of the Attorney General have been completely changed. By the Acts approved August 2, 1861, (12 Stat., 285) and June 22, 1870, (16 Stat., 162), the latter creating the Department of Justice, the Attorney General was given supervision and control over all United States Attorneys and Marshals; and by a result of a large number of successive statutes all tending with more or less of conscious purpose, of to the same end, the Department of Justice and the Attorney General, as its head, [p.4 begin] are now, in substance, the direct agency through which the President discharges his constitutional duty to "take care that the laws be faithfully executed" in all those cases in which proceedings, criminal or civil, in courts of justice constitute the necessary or appropriate means of enforcement. This constitutes already an extremely wide field or duty, and the tendency of Federal legislation has been to steadily increase the burdens and responsibilities of the Department of Justice ever since its organization in 1870.
By reason of this radical change and vast expansion of its duties, it has become, each year, more and more imperatively necessary that this Department should have some executive force directly subject to its orders. The actual arrest of persons charged with crime may, indeed, be required of the several Marshals as part of their duty to execute all civil and criminal process, and they can also be called upon to supply such force as may be needful for the protection of Federal officers in the discharge of their duties or the preservation of public order in localities under the jurisdiction of the United States; but the detection of crime, the collection of evidence, and the conduct of all forms of preliminary inquiries necessary for the enforcement of the law, are [p.5 begin] not duties imposed by law upon the Marshals or which they could be reasonably expected to discharge with efficiency. It is true that, as above noted, other Executive Departments are supplied with what may be fairly called detective agencies for certain limited purposes, as, for example, the punishment of counterfeiting or frauds upon the revenue, of offenses against the postal laws and of violations of various penal statutes; but a large and increasing residuum of cases exists in which the Department of Justice is obliged by law, and expected as a result of custom, to furnish such services itself; and by a curious anomaly, no specific provision has been made by law to enable it to discharge these difficulties. This is more singular since by the act approved March 3, 1893, (27 Stat., 591) it is provided that "hereafter no employee of the Pinkerton Detective Agency, or similar agency, shall be employed in any Government service or by any officer of the District of Colombia:" so that the law expressly forbids this Department to employ a trained detective from any responsible private agency and yet has made no express provision for any public agency of the like character to render the same indispensable service. Under these circumstances, a practice grew up whereby officers of the Secret Service were "loaned" by the Treasury Department [p.6 begin] to the Department of Justice. Such officers became, it is true, technically subordinates of this Department on being assigned to duty with it; but they remained virtually subordinates of the Secretary of the Treasury, reporting to their own chief and also, of course, to the United States Attorney or special counsel of this Department whom they were detailed to assist. The Attorney General had no direct information as to what they did, and, owing to this lack of information, but an imperfect control over the expenses which they might incur. With very few exceptions, these officers proved zealous and efficient in the discharge of their duties, and there services were nearly always satisfactory and often of great value; but I believe, as a result of my official experience and, especially, in view of certain incidents connected with the investigation and prosecution of land frauds, that a strict, direct and personal control by the Attorney General over the detective force employed by the Department is indispensable to the efficiency and economy of the force and a necessary safeguard against abuses and scandals, of which there is always a danger as a result of the employment of detective agencies. I attempted to impress these views upon the Congress in my annual report submitted in December, 1907, but, apparently, with results which were un- [p.7 begin] expected and embarrassing to the Department: for, by the provision incorporated in the Sundry Civil Appropriation Act, approved May 27, 1908, it became impossible for this Department to avail itself of the services of the Secret Service at all after July 1, 1908; so that, instead of obtaining an improved detective force, the Department was cut off from the source to which it had been previous accustomed to look for such services of that nature as it needed. It became, therefore, unavoidable for the Department to itself organize a corps of special agents, and this it did, under the authority conferred by the general appropriations placed under its control. It incorporated in this force a number of former officers of the Secret Service, and also certain special agents of the Department previously employed to perform duties of a more or less analogous character, which, for various reasons, it had been found impractical, or deemed inadvisable, to entrust to such officers. As an illustration, I may say that it has been deemed inexpedient to employ Secret Service officers in peonage investigations or prosecutions, since this often results in placing them in antagonism with the local peace officers, on whom they naturally call for assistance in the discharge of their normal duties. This force has, on the whole, worked satis- [p.8 begin] factorily. It has been necessary to discharge some of the agents originally employed, but there have been comparatively few such cases, and a number of men who have rendered satisfactory service have been, from time to time, secured as the necessity for their services arose. Every officer of this force makes, each day, a written report of his actions and expenses to the Chief Examiner of this Department. These reports are summarized by the Chief Examiner for the benefit of the Attorney General, and the latter has thus every day placed before him an official record of what each of these agents has done and what he has cost the Government on the day of his last report. The indications are that this system will result in an appreciable saving of money, and I believe that, if it is maintained by my successor and receives, from time to time, the improvements suggested by experience, it will develop a highly efficient and trustworthy detective, maintained at a comparatively moderate cost.
From the forgoing somewhat extended statement of the facts leading up to existing conditions, it appears that this Department is charged with the duties of detecting crime, collecting evidence, securing information necessary for the effective enforcement of the law, and making preliminary in - [p.9 begin] quiries to ascertain whether crimes have, in fact, been committed - in short, with what are generally understood to be detective duties - in all cases where such duties have not been assigned by law to some other Department. It is moreover, entrusted with the further duty of conducting all criminal prosecutions or civil suits necessary for the enforcement of the laws, whether it has or has not prepared such cases for trial. In instances where another Department is charged with the detective duties above mentioned, the results of its labors must be turned over to officers of this Department for use in court or before Commissioners or grand juries. Moreover, by the Act of 1870, above mentioned, codified as Section 361 of the Revised Statutes, it is provided that -
"The officers of the Department of Justice under the direction of the Attorney-General, shall give all opinion and render all services requiring the skill of persons learned in the law necessary to enable the President and the heads of Departments, and the heads of Bureaus and other officers in the Departments, to discharge their respective duties; and shall, on behalf of the United States, procure proper evidence for, and conduct, prosecute, or defend all suits and proceedings in the Supreme Court and in the Court of Claims, in which the United States, or any officer thereof, as such officer, is a party or may be interested; and no fees shall be allowed or paid to any other attorney or counselor at law for any service herein required of the officers of the Department of Justice;"
so that the administrative officers of the other Departments must discharge their duties under the legal advice and guidance of subordinates of this Department. I am of the opinion that it would conduce to unity, and consequent harmony and efficiency of administration, if all detective duties, which are directly connected with actual or contemplated civil or criminal proceedings, should be entrusted to a detective force organized substantially on the basis of the force of special agents now employed by this Department, and which could, if necessary, furnish to other Departments suitable men to discharge any exceptional duties, such as the protection of public functionaries or the guarding of public property, in emergencies or under circumstances not readily forseen.
I think it is important - indeed, indispensable - to the proper discipline of each Executive Department that investigations relating to the conduct of its business, the care of its records and the efficiency of its personnel, should be directed by the Head of the Department in question. Officers discharging duties analogous to those of the Examiners of this Department, employed primarily for the purpose of calling attention to official irregularities [p.11 begins] or misconduct on the part of Departmental subordinates should be appointed and controlled by and report to the Head of the Department employing them. Moreover, in the special work of each Department, there will be developed experts more competent than any outsider could be to pass upon questions connected with the proper observance of laws or regulations in that particular Department. No such duties as these ought to be imposed upon members of the detective force of this Department. Their work should not begin until the need for the criminal prosecution or some civil proceeding against somebody shall become at least reasonably probable; but, when the work to be done is in preparation of a case, civil or criminal, for trial be the appropriate law officers, whether in the several districts or under the immediate control of this Department, then the agents needed for that purpose should be employed, dismissed, directed and supervised in their work by this Department alone.
"The difficulties encountered in recruiting a trustworthy and efficient detective force are serious. Such a force must have some acquaintance with the haunts and habits of criminals, and its members are obliged to frequently associate with and use in their work persons of [p.12 begin] extremely low moral standards. If continued employment depends on his success in providing evidence satisfactory to his employer, a detective is often tempted to manufacture the evidence desired, and a large proportion of those confessing to be detectives in private employ are generally believed to be former criminals, often very imperfectly informed. These reasons explain the widespread popular prejudice which undoubtedly exists against professional detectives. To counteract this prejudice, and also to safeguard the force against the evils which have caused, and in some measure, justified, the dislike and suspicion entertained for the profession, I think it indispensable that the members of such a force should receive a compensation and occupy a position of sufficient consideration to render the service attractive to intelligent and courageous men of good character and adequate education for the purposes of their employment, and no less indispensable that they shall be subject to extremely strict discipline; so that they may understand that any exhibition of insubordination or other form of official misconduct, or any serious delinquency in morals or decent behavior, will result in immediate separation of the guilty person from the force. To these ends it is of great importance that the direct control and immediate responsibility for their merits and [p.13 begin] shortcomings should be placed upon a designated public officer of high rank - in my judgment, upon a member of the cabinet - and, if my views previously expressed are to be adopted in practice, upon the holder of my present position. I think the Attorney General, as Head of the Department of Justice, ought to have such entire authority in the premises, so that, if any ground for reasonable complaint connected with the detective force shall be found to exist he shall be the person justly to be called to account.
I have submitted the foregoing views at considerable length, but the subject appeared to me to require some measure of explanation for its adequate treatment.
I remain, Sir,
Yours most respectfully and truly,
[Source: Department of Justice File, 44-3-11- Sub 3, 12/5/08-4/6/09]