This is an interesting book (more interesting than compelling, sadly, given its detached, journalistic style) to think about in these times. I actually read it a couple of months ago, but it’s crept back to relevance over the past couple of weeks. How could it not, given that it tells the story of the United States’ first concerted effort to deal with racial terrorism, which also gave rise to an unprecedented expansion of police power and tactics?

It’s the story of Hiram C. Whitley, who from 1869 to 1875 was the chief of the Secret Service. At that time, the Secret Service’s primary job was dealing with counterfeiters (it’s Presidential protection role didn’t come until ??) – which it still does, by the way (one of my great Fourth Circuit victories involved a counterfeiting case). When Whitely took over he broadened the Service’s mandate (via bureaucratic slight-of-hand and without Congressional authorization) into a broader criminal investigative unit with its sights trained the Ku Klux Klan.

Not that Whitley was particularly a crusader for human rights. Before the Civil War he did some work as a slave hunter and he essentially bought his first child. During the war he led a Union regiment in New Orleans with such brutality that his men nearly mutinied. He was a shameless self promoter who wasn’t above working outside the law when he thought it was justified. He tortured prisoners. He arrested men and executed searches without warrants. He was even involved in a Watergate-style burglary and scandal later in his career.

His most lasting contribution, however, is introducing the concept of the undercover work to American law enforcement. The idea that you had to use bad people – or at least good people pretending to be bad – to catch other bad people was scandalous. In fact, the book recounts how in one counterfeiting trial, where the case was built on undercover work, the judge actually gave the jury a cautionary instruction about how unreliable undercover officers were! If only we could get an instruction like that now.

If anything, Whitley seems like the archetype of a character we’ve become familiar with over the years from all kinds of police fiction – the cop who can’t follow the rules, but it still celebrated in the end because he gets the bad guys (a trope that’s getting some fresh looks these days). You can’t argue that Whitley’s targets were evil – not just the Klan by political machines in New York City were targets – but, as this review points out, none of those resulted in convictions, partly due to Whitley’s overreaching. One of my chief criticisms of the book is that author Charles Lane doesn’t really examine what Whitley’s legacy was or how he was an exemplar of lots of cops that came after him.

That’s why the book had come back to mind in the wake of the police killing of George Floyd and the related protests. As a society we’ve been conditioned to give cops the benefit of the doubt (there’s even a “good faith” exception the exclusionary rule for Fourth Amendment violations), mostly on the expectation that if they cross the line they’ve got a damned good reason. But lines are drawn for a reason and not everybody the cops cross the line to get are “bad guys” and, even if they are, they deserve the due process of the law, too.

I won’t say we can draw a direct line from Whitley’s abuses to Derek Chauvin’s knee on George Floyd’s neck 150 years later, but there are definitely echoes there. If Whitely really was “Freedom’s Detective,” it’s worth wondering what kind of freedom it was and whether, too often, it’s been the freedom to behave badly in the name of doing good.