Who Guards the Guards?Cloak and Gavel: FBI Wiretaps, Bugs, Informers, and the Supreme Court by Alexander CharnsReview by: Daniel N. Hoffman and Johnson C. SmithPublic Administration Review, Vol. 53, No. 6 (Nov. - Dec., 1993), pp. 579-580Published by: Wiley on behalf of the American Society for Public AdministrationStable URL: http://www.jstor.org/stable/977372 .

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economies became dangerously exposed as the country became more and more dependent upon its own resources and sought to diversify both markets and its product base.

In these developments, the public service played a key role. Established in its modern form in 1912, moderate reforms were implemented in the 1960s, but by the time that a fourth Labour government was returned to office in 1984, the service had come to represent a complex, overgrown bureaucracy in an over-regulated, inefficient state, itself ripe for reform.

Before the fourth Labour government came to power, a public sector study group had already studied possible financial reforms, but such limited pre- liminaries bore little relationship to the virtual blitzkrieg of reform that was to follow. For between 1984 and 1990, a rampantly reformist fourth Labour gov- ernment radically reorganized the struc- ture of the state in a market-driven direction. Reshaping the State: New Zealand's Bureaucratic Revolution is a study of the causes, philosophy, and nature of this change.

The argument advanced is that the bureaucratic revolution was driven by a relatively consistent theoretical frame- work, in particular, agency and public choice theories supplemented by trans- action cost analysis and ideas associated with new managerialism.

Public choice theory, advanced by the Treasury, was used to justify minimizing the role of the state, and seeking to ensure that the services provided by sur- viving state agencies were made con- testable. Advisory, regulatory, and deliv- ery functions were separated and undertaken by different agencies. Agency theory was employed to impute a self- interest motivation in a society now viewed as linked by contracts. Transac- tion-cost analysis was employed, inter alia, for evaluating the efficiency of alter- native governmental arrangements, and this was then topped off by a philosophy of managerialism or "letting managers manage." Thus the New Zealand public service was rapidly down-sized from a large, all-embracing, career-oriented orga- nization, virtually totalitarian in scale, to a much smaller, narrower, more efficient type of organization with the earlier emphasis upon benevolent state control replaced by policies favouring private ownership, contracting out, and contesta- bility in public service provision.

In practical terms, these theories have resulted in the separation of policy advice from policy implementation; a heavy emphasis upon transparency and an extensive policy of corporatization and privatization of state services. The effect has been a remarkable shift from a belief that the bureaucracy should be designed to minimize competition and avoid duplication to a belief that compe- tition-both of advice and delivery mechanisms-is essential to an efficient service.

Few of these reforms were unusual considered separately. The significance of the New Zealand experience is that the country travelled further, and faster in its reforms than virtually any other country outside the former Eastern bloc. In Reshaping the State, aspects of this revolution are considered by academics and a sprinkling of public servants. Useful chapters are devoted to state- owned enterprises, industrial relations, various types of expenditure manage- ment employed, and bicultural and gen- der implications.

Of necessity, Reshaping the State tends to be a descriptive study of the changes that have taken place and the theories that underpin them, rather than a full assessment of their implications, although in a chapter devoted to "Ethos and Ethics," a number of possible prob- lems are raised, including to what extent public servants are to be expected to take into account considerations beyond profit. This issue in particular has since proved to be a vexing question, espe- cially in relation to state-owned enter- prises. There is also the question of how well these doctrines sit in what has been a traditional type of Westminster regime-not least in relation to such concepts as ministerial responsibility.

The problem for the authors is that the implications of this revolution are still being worked through following a change of government in 1990 and that, of necessity, a study such as this is largely a progress report. Nevertheless, Reshaping the State provides the most comprehensive and useful study of these changes to date.

Who Guards the Guards? Daniel N. Hoffman, Johnson C. Smith Uniterity

Alexander Chains, Cloak and Gavel: FBI Wire- taps, Bugs, Informers, and the Supreme Court (Urbana: University of Illinois Press, 1992), pp. xviii, 206 pp.; $24.95 hardcover.

his important, thought-provoking expose is based on documents the author, a civil rights attorney, obtained with much difficulty through repeated Freedom of Information Act requests for FBI records regarding the Supreme Court. Further documents were obtained, by special permission, from the sealed papers of former Justice Abe Fortas. The findings are sobering for believers, if any there remain, in the rule of law.

Chapter 1 briefly summarizes the FBI's use under J. Edgar Hoover of inside informants to keep track of events at Court, and its keeping of files on the "loy- alty" of justices, clerks, and judicial nomi- nees. Chapter 2 focuses on the bureau's penchant for sweeping, often politically motivated, warrantless wiretapping and bugging programs. Here Charns docu- ments the FBI's evasion of legal restric- tions, the Court's longstanding reluctance to interfere, and the fact that justices themselves were sometimes overheard in the course of these surveillance.

Chapter 3 launches the narrative of how the bureau responded to the sudden prospect that these activities might be publicly disclosed. In 1966 a criminal defendant, Fred B. Black, Jr., appealed his conviction, alleging that his conversa- tions with counsel had been bugged. When Attorney General Katzenbach pro- posed to admit this in open court, the bureau's reponses included interventions at the Justice Department, the White House, and the Court itself, designed to limit the scope of disclosure, to ensure that its actions would be held lawful, and, failing this, to transfer blame from the FBI to Attorneys General and/or presidents who, Hoover claimed, had always autho- rized the controversial actions.

The approach to the Court, outlined in chapter 4, involved direct, highly unethi- cal contacts with Justice Fortas. Accord- ing to Chains, Fortas, while formally dis- qualifying himself from participating in the case, nevertheless made active efforts to shape the Court's decision in ways that

Book Reviews 579

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would assist the FBI and damage the rep- utation of Robert Kennedy, a leading foe of Fortas's mentor, Lyndon Johnson.

In addition, indirect pressure was brought upon Justice Douglas, the Court's strongest critic of wiretapping and related abuses. Chapter 5 recounts the FBI's efforts to neutralize Douglas with accusa- tions of financial irregularities and Mafia connections. Douglas was well aware of this campaign and repeatedly charged that the Court's conference chamber had been bugged; this charge, however, was never substantiated. As chapters 6 and 7 relate, the Black litigation ended late in 1966, with minimal embarrassment to the FBI. Yet by all indications, the rising strength of civil-libertarian sentiment on the Court and in the executive branch meant that the era of uncontrolled bureau discretion in these matters was ending.

Chapters 8 and 9 relate how the Court finally brought wiretapping within the scope of the Fourth Amendment's guaran- tee of privacy, even in cases involving alleged threats to "national security." Yet the FBI continued to engage in such actions, citing an ostensible, inherent presidential power to authorize them regardless of judicial or legislative restraints. Moreover, the 1968 elections produced a return to permissiveness (to put it mildly) in the executive branch. A similar transformation in the judicial atti- tude was soon effected through new appointments, along with the forced departure of Justice Fortas, whose credit with the FBI did not protect him from the Nixon White House.

Chapter 10 recounts the unsuccessful effort to impeach Justice Douglas, along with other executive actions of the same period that culminated in Watergate. Chapter 11 continues the tale of the Court's transformation with the appoint- ment of Justice Rehnquist, who was thus rewarded for his unstinting support of the Nixon administration.

The Epilogue, after further historical updates, offers seven proposals for avoid- ing recurrence of the abuses described. Although not spelled out in detail, these include discontinuation of existing court/FBI liaison programs; increased court independence of the FBI in hiring staff; increased Senate independence of the FBI in investigating judicial nominees; a legislated FBI charter; strengthening the Freedom of Information and Privacy Acts; improved congressional oversight of the FBI; and improved public access to Supreme Court records.

One may regret the brevity (131 pages, plus 66 pages of notes) and the incom- pleteness of Charns's account, limited as it is by the destruction and continued with- holding of papers. As Charns acknowl- edges, it is unlikely that these documents tell the whole story of FBI actions direct- ed toward the Court. Yet what they do reveal is certainly well worth bringing to public attention.

What this reader finds less satisfying about the book is its heavily legalistic per- spective. The main focus is on FBI actions and attitudes, Hoover's in particu- lar, which run counter to the separation of powers, judicial independence, respect for civil liberties, and the rule of law. Charns clearly does not believe that Hoover's departure was a sufficient reme- dy, because he strongly advocates further, institutional reforms. Yet his own narra- tive suggests that such reforms would be woefully insufficient, even if, contrary to present political realities, they could be put in place. After all, this is a story span- ning several decades in which officials of evety branch of government, ranging from liberal Democrats to conservative Republi- cans, repeatedly, though not invariably, subordinated constitutional norms to per- sonal, partisan, and ideological concerns.

Thus, the true lesson of the book appears to be that, in the end, neither the FBI nor the Supreme Court is or can be a politically neutral "legal" institution. This thesis should come as no surprise to read- ers familiar with the critique of the tradi- tional distinction between "politics" and "administration."

Of course, it does not follow that the "abuses" detailed by Charns are not a problem; nor does it follow that no improvement is possible. Perhaps we need to rethink more ambitiously and cre- atively what our norms of judicial inde- pendence really mean to us, and what can be done to narrow the current chasm between ideal and reality. In this rethink- ing, we need to face up to the full extent of the contradiction between secrecy, the police power, and constitutional values.

The President and Pub- lic Administration &yRosemary O'Leary, Syracuse Unizrity

John A. Rohr, The President and Public Administration. (Washington, DC: American Historical Association, 1989), 78 pp.; $5.00 paper.

This mongraph is John Rohr doing what John Rohr does best: examin-

ing the origin and development of con- stitutional principles that underlie public administration. The specific focus here is the relationship between public administration and the President of the United States. The monograph is one in a series of works published by the American Historical Association (AHA) to commemorate the two hundreth anniversary of the framing and adoption of the United States Constitution.

The monograph is well written and easy to read. It is divided into four main sections. Part one discusses con- stitutional sources of administration, with specific emphasis on the Articles of Confederation, the FederalistPapers, and the Constitution. Part two analyzes presidential removal power, including an in depth examination of major court decisions, and an up-to-date look at the challenges faced by the Office of Gov- ernment Ethics.

Part three concerns the President and Congress. In this section, Rohr exam- ines the congressional practice of "trying to control administration by driving a wedge between the President and his subordinates in the executive branch of government" (p. 31). Rohr deftly accomplishes this formidable task by focusing on major Congress-President struggles during the tenures of Andrew Jackson, Franklin Roosevelt, and Jimmy Carter. An examination of additional court decisions, as well as the Brown- low Report, support Rohr's analysis. The section ends with a discussion of the Office of Management and Budget's role in Congress-President tensions.

Part four examines the topic of dele- gation. Specific areas of emphasis include congressional delegation of leg- islative authority and the legislative veto. In this section, particuarly, Rohr's mas- tery of the significance of history in shaping public administration as we know it today shines through.

Final sections include a retrospective view and suggestions for further read- ing. In the retrospective section, Rohr persuasively argues that because of our constitutional history, values, and man- dates, government simply cannot be run like a corporation in the private sector. The suggestions for further reading would be quite helpful to students and scholars who desire to learn more about the president and public administration.

580 Public Administration Review * November/December 1993, Vol. 53, No. 6

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