The Burglary (45 page)

Hoover was clear about intending to keep standards loose in regard to which people should be placed on the list of alleged subversives considered dangerous enough to be stripped of their freedom by the FBI at the time of a national emergency. People whose names were placed on the list, he instructed, should be “watched carefully … because their previous activities indicate the
possibility but not the probability
that they will harm the national interest.” Hoover's language here—“possibility but not the probability”—reflects the elasticity he used to determine who should be included on the list. Over the years that elasticity was stretched more and more.

Because there was no law authorizing such lists, Hoover warned agents from the time the list was established that its existence must be “entirely confidential.” When the full history of the director and the bureau started to emerge in the 1970s, it became known for the first time that the director never had been shy about breaking the law. Any concerns he expressed about operating outside the law were not about respect for the law or regret about breaking it but instead about the possibility of embarrassing the bureau if the violations became known.

In June 1940, Attorney General Robert H. Jackson alleviated Hoover's concerns when he agreed with Hoover that there was a critical need for such a list and assured the director that in the event of an emergency he, as attorney general, would authorize warrants for the arrests of those on the
list. But Jackson imposed a stipulation Hoover regarded as an intrusion on his turf. Jackson insisted that the
Department of Justice should review the list regularly. Hoover agreed, but he did so only after the attorney general agreed that the department would not prosecute anyone on the list because to do so might lead to exposure of FBI informers.

Efforts by Jackson to require Hoover to use only lawful methods in the bureau caused a conflict between Jackson—the future U.S. Supreme Court justice and prosecutor at the Nuremberg trials—and President Franklin D. Roosevelt. Discovery of instances of attorneys general and presidents not reining in the FBI led the Church Committee to conclude in 1975 that the major failures it uncovered in the FBI were largely the result of a failure of oversight by Congress, attorneys general, and presidents. Too often, in fact, presidents had been enablers of the wrongdoing, the committee concluded, beginning with Franklin Roosevelt.

Through private directives to Hoover and orders to Jackson to keep hands off Hoover, Roosevelt gave the director reason to believe he could operate without regard for the law, especially without regard for the protection of civil liberties. Like Presidents Johnson and Nixon, Roosevelt instructed Hoover to gather intelligence about the president's political enemies. From then on, on those rare occasions when Hoover was asked to justify his illegal operations, he cited Roosevelt's approval of such actions, claiming years later that FDR's secret memorandums and oral directives should be regarded as Hoover's permanent license to operate as he wished. Years later, Hoover sometimes even doctored the language of Roosevelt's written directives to make them match Hoover's desire for authorization to go beyond the law.

An example of Roosevelt's freewheeling attitude toward Hoover was evident in his response to a Jackson memorandum on the need to limit the FBI's methods to legal ones. In the memorandum, Jackson stated that though the president condoned questionable FBI procedures, such evidence would not be admissible in court. Jackson pointed out to the president, “The subject matter of investigation which the FBI has authority to undertake do not extend beyond charges of suspicion of crime, or of definite subversive activity which does not consist of views or expressions of opinions, but of overt acts of incriminating evidence.”

Roosevelt, in angry response, forced the attorney general to withdraw that interpretation and to give Hoover free rein. Jackson reluctantly ate his mandate to Hoover in this April 4, 1941, memorandum: “I had no thought to restrict or alter in any manner the internal operation of the FBI or the Department of Justice, or its right to proceed in all the fields in which it has been operating.” He agreed to remain quiet about his opposition to Hoover's intelligence operations.

GIVEN THE FREE REIN
Hoover assumed he had, an extraordinary development took place in his life in 1943. For the first time—one of very few times in his half century as FBI director—an attorney general, assuming his role as Hoover's boss, ordered him to terminate an operation.
When Attorney General Francis Biddle learned about the index—known then as the Custodial Detention list—he was deeply disturbed that the program existed and ordered Hoover to eliminate it. Such lists, he told Hoover, were illegal, and so were the bureau's plans for emergency arrests of the people whose names were on the list.

Biddle stated his orders to Hoover in a July 16, 1943, letter:

“There is no statutory authorization or other present justification for keeping a ‘custodial detention' list of citizens.” He challenged the reliability of the evidence used to compile the list, and he attacked the central underlying premise of the program:

“The notion that it is possible to make a valid determination as to how dangerous a person is … without reference to time, environment, and other relevant circumstances, is impractical, unwise, and dangerous.” In his order, he told Hoover that the FBI files on individuals who already had been given a “detention” classification must henceforth include a card stipulating, “This classification is unreliable. It is hereby cancelled, and should not be used as a determination of dangerousness or of any other fact.”

Biddle's order was forceful, but it contained a flaw. Expecting Hoover to carry out his order, he did not require oversight of how the director executed it. In the absence of oversight, Hoover immediately defied the order. He carried out no part of it.

Deeply angered by the attorney general's action, within a month of the order, Hoover confidentially announced to FBI officials and agents that the bureau would secretly defy it. He lied to Biddle, telling him that the Custodial Detention Index no longer existed. In his world of truth by language technicality, that was accurate. The Custodial Detention Index no longer existed, but its complete content and purpose remained in place. Hoover kept it functioning and simply renamed it. The FBI continued to add names of alleged subversives to the index as though Biddle had never issued his order.

Hoover's defiance of Biddle's order deepened the culture of lawlessness
that continued to flourish in the FBI the rest of Hoover's life. The public did not know that culture existed until after the revelations that started with the Media burglary. FBI agents were, of course, a necessary part of the director's elaborate plan to violate the attorney general's order. In an August 14, 1943, letter marked “personal attention strictly confidential” and sent to agents in charge of all FBI field offices, the director announced the continuation of the list, despite the attorney general's order, and also announced the deceptive name change: The “character of investigations of individuals who may be dangerous or potentially dangerous to the public safety or internal security of the United States shall be ‘Security Matter' and not ‘Custodial Detention.' The phraseology, ‘Custodial Detention,' shall no longer be used to designate the character of the investigation, nor shall it be used for any purpose in reports or other communications.”

“Henceforth,” Hoover told FBI officials, “the cards known as Custodial Detention cards will be known and referred to as Security Index cards, and the list composed of such cards will be known as the Security Index.…The fact that the Security Index and Security Index Cards are prepared and maintained should be considered as strictly confidential, and should at no time be mentioned or alluded to in investigative reports, or discussed with agencies or individuals outside the Bureau, other than duly qualified field representatives of the
Office of Naval Intelligence and the
Military Intelligence Service, and then only on a strictly confidential basis.”

Subterfuge accomplished.

Hoover regretted no longer having an attorney general acting as a shield to protect him in regard to the secret list. But through his determined deviousness he demonstrated to everyone inside the bureau that he, not the attorney general, set the rules. He demonstrated inside the FBI that he was in full control of the bureau files and that his asserting control of what the bureau did, including in matters of national security, outweighed his responsibility to obey his superiors, to be truthful, or to obey the law. He demonstrated he was, indeed, a law unto himself—willing to operate without statutory authorization, without approval of the attorney general, and without integrity—in order to accomplish his goals.

Two years later, to Hoover's relief, he got his shield back. He once again had the kind of attorney general he wanted when Tom Clark was appointed by President Harry Truman in 1945. Clark, who would be appointed to the U.S. Supreme Court by President Truman in 1949, created the
Security Portfolio, a secret emergency detention program inside the Department of Justice but carried out by the FBI. Under this program, Hoover was
authorized to do what he already had been doing: maintain the Security Index in defiance of Biddle's order. The Security Portfolio program called for the issuance of a master arrest warrant by the attorney general at the time of an emergency and for the suspension of the writ of
habeas corpus at such times. The FBI was authorized by the attorney general to summarily arrest up to 20,000 people and place them in national security detention camps.

This arrangement gave Hoover control of the list and how it would be used. Once again he was privately assured that the attorney general would protect him, even in conducting illegal programs. However, this arrangement was soon flummoxed by an unexpected development—the passage by Congress of the Emergency Detention Act of 1950, also known as the McCarran Act. This landmark legislation mandated that the FBI create and maintain lists of subversive citizens to be arrested in times of national emergency, what the FBI already had been doing since 1939. During hearings and public debate on the proposed bill, Hoover and the attorney general strongly supported the proposed legislation, but neither of them revealed to Congress that such a program already existed.

The law passed with solid support because of a strong liberal-conservative consensus on national security, a consensus very similar to the one that quickly developed between Democrats and Republicans in Congress after the attacks of September 11, 2001. During hearings on the detention act, liberal leaders in the Senate, including
Hubert Humphrey, were emphatic in their admiration for and confidence in Hoover.

Congress achieved important goals for itself and for the FBI when it passed the Emergency Detention Act. By passing the law, Congress increased its public support for strong internal security, considered a political necessity at the time, given the circumstances that year—fear stirred by the arrest the previous year of Judith Coplon for allegedly passing secret documents to the Soviet Union, the arrests of
Julius and Ethel Rosenberg for passing secrets of the U.S. bomb-building program to the Soviet Union (they would be executed in 1953), and the entry of the United States into the
Korean War. Until this time, internal security had been the nearly exclusive—and in large part secret—bailiwick of the executive branch. Now Congress took a strong stance on internal security but did so while making the executive role in national security even stronger. It required the executive branch to create a security apparatus that would assure that the detention and arrest of subversives would be isolated from the political pressures of the legislative branch. At the same time, Congress detached itself by not establishing congressional oversight of the internal security apparatus it mandated.

There was a strange twist. Hoover was upset about the new law. Congress had just authorized what it thought was a great increase in power for the bureau. It had done so without establishing oversight over how Hoover would use that power. What more could he have wanted?

Members of Congress did not realize that because the director already had unilaterally assumed so much power for years in regard to national security matters, that he regarded what Congress and the public thought was an expansion of his power as the opposite. Publicly, he warmly embraced the passing of the Emergency Detention Act of 1950 and happily accepted the respect and adulation he received from members of Congress during the hearings that led up to the passage of the law. Inside the bureau, however, this law that was widely regarded among civil libertarians as a disastrous infringement on rights was seen as a disastrous infringement on the FBI's power.

Once again he had a solution: Just as he had defied Biddle's order, now he would defy Congress.

As soon as the measure became law, Hoover started developing secret plans to evade it because he thought it was not sufficiently repressive. In his mind, there were now two detention programs—the one Congress had just established and the one he had long been operating—and they were at odds with each other. The secret detention plan he had been carrying out without statutory support was more repressive, and he was determined to continue using those harsher standards, no matter what was now required by the new law.

Many defenders of constitutional rights thought the Emergency Detention Act would lead to the suppression of speech and to unfair accusations against people who were merely liberals, not communists. Like Congress, these opponents of the law didn't know that Hoover had long carried out, and would continue to carry out, a secret and much more repressive program than the one Congress had just made the law of the land. To the liberals in Congress who joined conservatives in passing the law, the Emergency Detention Act was the forceful measure they believed was needed at this time when anticommunism, especially as embodied in the hearings recently started by Senator
Joseph McCarthy, had made many people fearful about whether domestic communists were penetrating the federal government. But to the FBI and the Department of Justice, the new law was too weak. Under its provisions, people could be placed on the detention list and apprehended only if they had been active in subversive organizations since January 1, 1949. Under the secret Justice/FBI program already in
place, people could be added to the list if they had at
any
time been engaged in what the FBI regarded as subversive activities and whether or not they belonged to a subversive organization. Another difference was that under the new law,
habeas corpus was not suspended, and individual warrants would be required. Under the FBI's secret program long in place, habeas corpus would be suspended and blanket arrest warrants would be issued.