David Burnham
Above the Law: Secret Deals, Political Fixes, and Other Misadventures of the U.S. Department of Justice
Scribner, 1996
ISBN 0-684-80699-1
444 pages, $27.50 hb.
Reviewed by Gary McGath
This review copyright 1996 by Gary McGath

The Department of Justice wields a great amount of power; and as our government as a whole grows more powerful and abusive of our liberties, it is only to be expected that many of these abuses will be found in its law enforcement apparatus. David Burnham has provided an illuminating account of some of these abuses.

Burnham's political sympathies clearly lie toward the left side of the conventional political spectrum, but he addresses his subject matter with a minimum of bias. For example, in discussing the Senate's investigation of Watergate, he points out that previous Presidents, notably Franklin Roosevelt and Lyndon Johnson, had also made use of the FBI for their own political purposes, obtaining background checks on their opponents and leaking information to influence campaigns.

Some of Burnham's views are disturbing. For instance, he notes that two-thirds of the corporations in a survey violated environmental laws, in the opinion of their own lawyers; but rather than thinking that there might be something wrong with a system of laws which makes the large majority of the affected parties criminals, he appears to take this as evidence that not enough businesses are being prosecuted. But the fact that Burnham provides enough facts to support arguments against his own conclusions does illustrate his thoroughness.

Both Democratic and Republican administrations come under scrutiny. Burnham condemns Jimmy Carter's orders to expel Iranian students en masse and Bill Clinton's exploitation of the Oklahoma City bombing to promote "antiterrorism" legislation which "had very little to do with terrorism," as well as Ronald Reagan's alleged violation of tax laws and Richard Nixon's many manipulations. And he gives credit where due to Republican actions, such as Rep. Henry Hyde's strong opposition to the excesses of civil forfeiture. (Yes, this is the same Hyde who wrote language into the Telecommunications Act outlawing the posting of information about abortion. His name seems eerily appropriate.)

The discussion of the FBI's attempts to increase its surveillance capabilities and reduce the privacy of citizens will be of special interest to most of the online readers of this review. Burnham discusses the efforts to make the key-escrowed Clipper chip the de facto standard for encryption, Louis Freeh's campaign to outlaw strong encryption and obtain a vast expansion of federal wiretapping capability, and the sweeping use of telephone call logs to gain information on anyone who calls or is called by a suspect. The book argues that Freeh has used distorted statistics to make the crime problem look worse than it is; while its does not directly tie this to Freeh's claims that encryption will frustrate legitimate law enforcement efforts, the material in the book provides at least a starting point for casting doubt on the FBI chief's arguments.

In discussing the War on Drugs, Burnham takes a conventional liberal position; he does not dispute the legitimacy of laws criminalizing people's choice to ingest certain substances, but he recognizes that the enforcement of anti-drug laws is ineffective in stopping drug abuse, especially harsh on some ethnic groups, and often detrimental to people's liberties. He notes that intensive anti-drug efforts have often let crimes against people increase by diverting enforcement resources. He also points out the rapidly growing cost to the taxpayer: "For the Justice Department alone, spending for drug-control purposes has grown at an astonishing pace, increasing more than eleven times, from $360 million in 1981 to slightly more than $4 billion in 1994."

The current Attorney General also comes in for criticism; for example, Burnham notes that Janet Reno has spoken in favor of arbitrary sentencing disparities in drug laws and has defended the practice of seizing the assets of people who have not been convicted of any crime. Curiously, there is no mention of the Waco siege, although other examples of stormtrooper justice are cited.

Above the Law is heavy but rewarding reading for those who want to learn more about how the growth of government power has injured our liberties. While I do not agree with all of Burnham's conclusions, I think he has presented a compelling and well-documented case that the government officials who are charged with protecting us from crime are often the ones from whom we are most in need of protection.

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