The Burglary (46 page)

Without Congress knowing, Hoover secretly took the strongest possible action against the new law. He asked Tom Clark's successor, Attorney General
J. Howard McGrath, to order the FBI to ignore the will of Congress. McGrath agreed, but he was reluctant to put such an order in writing. However, just two weeks after the law was passed, McGrath verbally directed Hoover to disregard the new law and to “proceed with the program as previously outlined.” Hoover was advised that “all persons now or hereafter included by the bureau on the Security Index should be considered subjects for immediate apprehension” during a national emergency. Two years later—after more prodding by Hoover—in 1952, McGrath gave Hoover what he wanted: written approval to violate the new law. In a memorandum, he fully endorsed the “bureau's concepts of the Detention Program and the Security Index standards.” In early 1953, President Dwight D. Eisenhower's attorney general,
Herbert Brownell, also agreed that the FBI should ignore the requirements of the Emergency Detention Act of 1950 and should continue using its own more repressive standards in preparing for the detention of the people Hoover considered the most dangerous Americans.

That Hoover could, with the support of attorneys general from both political parties, disregard this major new law meant his superiors had placed him beyond the reach of the law. That was the kind of protection he liked.
William W. Keller, an international security scholar, sees this as a seminal moment in the establishment of Hoover's power over internal security matters. After the bureau “achieved sufficient insularity of operations to apply detention standards that were at variance with those mandated by law,” Keller says, the power wielded by the director was so great that it “suggested the emergence of an agency that resembled more the model of a police state.”

From then on, Hoover assumed he could expand his authority in internal security matters and that he could get away with secretly shaping and loosening the standards for selection and detention of subversives.

It was during debate of the detention bill, Keller has concluded, that Congress “shut the door to a more sophisticated view of domestic communism and the actual magnitude of the threat it posed after 1950 to American
government and society. They adopted the bipolar thinking that came to dominate the field of internal security for a generation. The actions of the liberal senators in introducing the detention legislation and their consistent support for the FBI, the backing of the liberal press and the attitude of liberal organizations all buttressed the view that internal security powers should be centralized in the FBI as administrative functions.”

LACK OF OVERSIGHT
was essential to Hoover's growing power. So was his popularity. Recognizing that, he became a master of public relations. The FBI did not enter American consciousness as an important and popular government agency until it successfully defeated John Dillinger and other criminals who had terrorized the country, particularly the Midwest, briefly in the early 1930s. Until then, the average American was hardly aware of the bureau. Hoover grasped that moment of public enthusiasm and turned it into a public relations bonanza that transformed the FBI and the director into popular icons. Iconic stature provided a shield that immunized the director and the bureau from criticism.
So great was his public adulation after the killing of Dillinger that the director briefly considered running for president. When a private straw poll revealed, to his surprise, that he would not have the support of law enforcement agents outside the FBI, he settled instead for becoming one of the best-known and most powerful public officials in the country.

Determined to expand and sustain this new popularity, Hoover opened a public relations division within the bureau.
The public relations arm soon became nearly the largest and most productive such operation in the federal government, second only to the one operated by the U.S. Marines. Knowing that some members of Congress thought it inappropriate to fund a public relations operation in the federal law enforcement agency, he called it the Crime Records Division—which it was not. “A propagandist more than a cop,” wrote historian and media studies professor
Stuart Ewen, “Hoover helped inaugurate a merciless publicity environment that again and again depicted the United States as a society under siege.” Under Hoover's byline, his staff and freelance ghostwriters penned dozens of books and hundreds of articles in a wide variety of magazines and newspaper columns where he expressed his views on countless subjects. He turned himself into the go- to government man for thoughts on crime, communism, war, religion, child-rearing, and even on how to make the best popovers. The material created by the division ranged from manifestos against communism to children's
coloring books on crime to
Mickey Mouse Club
television episodes broadcast from the director's office to confidential tips, true and untrue, to “friendly” journalists about the personal lives of powerful people the director considered enemies of the bureau. His goal was achieved: During the presidency of Harry Truman, polls showed that Hoover was more popular with the public than the president was.

One of the most important ways the heroic brand of the FBI and its director was made forever a part of American popular culture was through the strong liaison Hoover established with Hollywood studios immediately after the killing of Dillinger. Seven FBI-centered feature films were made in 1935 alone, including Warner Brothers'
G-Man
starring
James Cagney. The public didn't realize that the FBI often was fighting serious crime much more in the movies than it was in real life.
With a few notable exceptions, the bulk of criminal cases solved by the FBI, especially after World War II, were the easiest types of cases, bank robberies and stolen cars, crimes usually solved by local and state law enforcement agencies.

Scripts of proposed movies and all segments of
The F.B.I.
, ABC network's hit prime-time Sunday evening dramatic series about the FBI that ran from 1965 to 1974, were carefully controlled by the director himself. He required that all scripts be approved by him, and all actors and other people who worked on network and studio film projects be investigated by the FBI.

The director's close ties with Hollywood also served his political purposes well in the 1950s, when Hollywood executives became the first employers to blacklist employees on the basis of unverified FBI surveillance of alleged communists and alleged associates of communists.

The combination of no oversight of his operations and his large and successful public relations operations led to his achieving the distinction of being one of the most powerful appointed officials—many have said
the
most powerful—who has ever served in the federal government. His popularity was widely recognized over many years, but how he used that power—much of which was wielded secretly—would not be known to the public until the Media burglars released files.

FROM 1953 THROUGH 1971
, when the Security Index was revealed in the Media documents, the list of alleged subversives was continuously expanded by the FBI, and so were the criteria by which people were chosen to be placed on the list. Increasingly flexible standards were used in the 1960s to decide what types of Americans would be added to it. Hoover was
particularly concerned by the mid-1960s that not enough New Left people were being added. He was stumped by how to categorize them. Many, he lamented, were
anarchists who were not joiners. Previously, harvesting names from membership and subscription lists had been an efficient way to expand the lists. Nonjoiners made that old method useless. “In many instances,” he complained in an April 2, 1968, letter to agents at all field offices, “security investigations of these individuals are not being initiated.” Sometimes, he said, “subjects are not being recommended for inclusion on the Security Index merely because no membership in a basic revolutionary organization could be established.” He told agents not to let that stop them. “Even if a subject's membership in a subversive organization cannot be proven, his inclusion on the Security Index may often be justified because of activities which establish his anarchistic tendencies.…A subject without any organization affiliation can qualify for the Security Index by virtue of his public pronouncements and activities which establish his rejection of law and order and reveal him to be a potential threat to the security of the United States.”

Later that year, Hoover made the standards for adding names to the list even more nebulous: “It is not possible to formulate any hard-and-fast standards by which the dangerousness of individual members or affiliates or revolutionary organizations may be automatically measured because of manner revolutionary organizations function and great scope and variety of activities. Exercise sound judgment and discretion in evaluation of importance and dangerousness of individual members or affiliates.…Where there is doubt an individual may be a current threat to the internal security of the nation, the question should be resolved in the interest of security and investigation conducted.”

WHILE THE INTENSE SEARCH
for the Media burglars continued in 1971, Hoover still assumed he could operate the bureau with disregard for the law. He was outraged that files were being revealed, but he—with the attorney general,
John Mitchell, as his enabler—was defiant. This time Hoover's defiance was in response to the
repeal of the Emergency Detention Act of 1950.

In the fall of 1971, just months after Congress, the press, and the public had learned about the bureau policies and practices revealed in the Media documents, Congress repealed the Emergency Detention Act of 1950 with wide bipartisan support. A national campaign promoting repeal of the
act had been conducted by the
Japanese American Citizens League. The 25,000-member organization set out to convince Americans that because of the detention act every American lived with the threat of being unjustly and indefinitely incarcerated in the manner that 110,000 Japanese Americans, two-thirds of them American citizens, had been incarcerated in remote camps after Japan attacked Pearl Harbor in World War II. They were incarcerated despite the fact that there was no evidence that Japanese American citizens or Japanese immigrants had engaged in any subversive action against the United States. Only the repeal of the 1950 law, the league claimed, could remove the threat of the government taking such repressive steps again. Another impetus for repeal came from widespread revulsion to a 1968 report by the House Un-American Activities Committee that recommended the establishment of camps to detain black nationalists and communists. This radical recommendation by the House committee raised fears that the 1950 law could indeed be used, as many people had feared, to detain people on the basis of race or political opinion. There also were rampant rumors that the government was preparing the six detention camps that were established under the 1950 detention act to be used to detain subversives.

During the hearings on repeal of the Emergency Detention Act, Nixon administration officials in the Department of Justice spoke forcefully in support of its repeal. Their positive public stance, however, stood in direct contradiction to what the attorney general would do immediately after the law was passed. Prior to the vote on the bill, at a hearing of the House Judiciary Committee, Assistant Attorney General Robert Mardian testified that the Department of Justice was “unequivocally in favor” of repealing the law. Deputy Attorney General Kleindienst, in a letter to the committee, said continuation of the act would be “extremely offensive to many Americans.”

In what seemed like a triumph for basic rights and the erasure of a stain, Congress repealed the Emergency Detention Act of 1950 and replaced it with the Non-Detention Act. The new 1971 law declared, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”
When President Nixon signed the measure on September 25, 1971, he said the repeal was “wholeheartedly supported by this administration”:

The cumulative crimes known as Watergate had not yet started to be revealed. Consequently, Nixon's expression of reverent regard for constitutional ideals was not received at the time with the cynicism that would have greeted them in little more than a year when his lawless White House operations started coming to light. Interestingly, the meaning of the Non-Detention Act was contested in litigation in the aftermath of the 9/11 attacks. President
George W. Bush claimed the Non-Detention Act of 1971 was intended to restrict imprisonment and detention by
the attorney general but had no impact on the authority of the president or military authorities to detain and imprison. An analysis conducted in 2005 at the request of Congress by its Research Service concluded, “Legislative debate, committee reports, and the political context of 1971 indicate that when Congress enacted Section 4001(a) it intended the statutory language to restrict all detentions by the executive branch, not merely those by the Attorney General. Lawmakers, both supporters and opponents of Section 4001(a) recognized that it would restrict the President and military authorities.” The law was generally interpreted that way when it was passed in 1971, except by the two people most responsible for enforcing it—the FBI director and the attorney general.