The Burglary (59 page)

Representative
Hale Boggs, Democrat from Louisiana, may have described the deep timidity of Congress most clearly in comments he made on April 22, 1971: “Our apathy in this Congress, our silence in this House, our very fear of speaking out in other forums has watered the roots and hastened the growth of a vine of tyranny which is ensnaring that Constitution and Bill of Rights which we are sworn to uphold.”

By the end of 1973, the tide had started to turn. The traditionalists in the FBI were kicking and screaming as they tried to keep Hoover's secrets sealed. They no longer were confident they could trust either the new director or Justice officials to support their efforts.

Absorbed in reports about the Watergate investigations, the public developed a keen interest in the country's intelligence agencies. Previously, Americans had shown little interest in how they operated and had seldom questioned their practices. The Media revelations stimulated interest in intelligence operations, and the Watergate investigations greatly increased that interest, especially after reports about the Nixon administration's wild secret intelligence operation, the
Plumbers, based in the White House.

It was the persistence of Carl Stern, a legal affairs reporter for NBC television, that led to COINTELPRO being exposed. Without his efforts, FBI officials might have been able to close the door permanently on more disclosure. The Media burglars revealed the term. Then Stern pressed to find out what it meant. What he forced the FBI to reveal, as the result of a lawsuit, made it impossible for Department of Justice officials to continue to support the bureau's efforts to keep Hoover's past off-limits to the public.

The department and the FBI said no to Stern more than once. Finally, a judge ordered the bureau to release the files Stern sought. When he reported what those documents revealed about the purpose of COINTELPRO, the Justice officials who had tried to prevent the files from being released saw them for the first time themselves, at the same time the public first saw them. Added to the Media revelations, Stern's revelations greatly increased
pressure for records of operations conducted inside Hoover's secret FBI to be opened to public scrutiny.

Stern had become interested in determining what COINTELPRO was a year after the Media files were released. While in the office of the Senate Judiciary Committee in March 1972, he noticed on someone's desk a copy of the Media file that included the routing slip with the “COINTELPRO–New Left” label. When Stern asked what the term meant, no one in the office knew. Sensing it was important, Stern decided to find out. On March 20, 1972, in a letter to then deputy attorney general
Richard Kleindienst, he applied under the Freedom of Information Act of 1966 for the FBI documents that established and defined COINTELPRO. In a written response, Kleindienst told Stern that the COINTELPRO documents were “exempt from disclosure” and that information about the COINTELPRO operations must “be kept secret in the interest of the national defense and foreign policy.” (It was learned later that none of the COINTELPRO files concerned either national defense or foreign policy.)

Stern then appealed directly to acting FBI director
L. Patrick Gray, who refused to provide the files. In a letter in September 1972, he told Stern, “This matter involved a highly sensitive operation. It has now been discontinued, but I do not feel that details concerning it should be released since such disclosure would definitely be harmful to the Bureau's operations and to the national security.” Actually, only the name of the operations had been discontinued. The operations themselves were still being conducted.

Stern persisted. In an October 26, 1972, letter to Kleindienst, he renewed his request “for the umpteenth time for whatever documents authorized and defined the FBI's COINTELPRO–New Left program.” He was turned down again in what Kleindienst described as “a final denial by the Attorney General.”

On January 31, 1973, Stern sued the Department of Justice and the FBI in federal court, claiming that under the Freedom of Information Act (FOIA), the COINTELPRO documents should be made public. Stern's suit was filed by attorney
Ronald L. Plesser representing him through the newly formed
Press Information Center. With his lawsuit, Stern would become the first journalist to sue the government for files under the FOIA and the first journalist to receive FBI files as a result of the act. The only FBI files made available to journalists before this were ones that the director provided to “friendly journalists” in an attempt to smear individuals or organizations.

Department of Justice lawyers claimed the judge could have no say in the matter because, they said, the federal judiciary lacked jurisdiction over
intelligence matters. U.S. district judge
Barrington Parker thought otherwise, and on July 24, 1973, he ordered the documents be released to him for private inspection. When department officials submitted the files to Judge Parker, it was the first time COINTELPRO files had been seen by anyone outside the FBI. On September 25, 1973, Judge Parker ordered Justice officials to release the files to Stern.
At first, the department appealed the order, but acting attorney general Robert Bork withdrew the appeal and turned four pages of COINTELPRO documents over to Stern on December 6, 1973.

From Stern's story broadcast on NBC—the first story reported about COINTELPRO—people learned that in a May 1968 memorandum Hoover had informed officials at FBI headquarters in Washington and in key field offices that he had opened COINTELPRO–New Left to “expose, disrupt and otherwise neutralize” the New Left movement. He emphasized that the operations would be carried out in heavy secrecy and that they would be aimed at “disrupting the organized activity of these groups.…No opportunity should be missed to capitalize upon organizational and personal conflicts of their leadership.…The devious maneuvers and duplicity of these activists must be exposed to public scrutiny through the cooperation of reliable news media, both locally and at the seat of government [Hoover's term for bureau headquarters in Washington].” He ordered heads of selected field offices throughout the nation to take advantage “of all opportunities for counter-intelligence and also inspire action in instances where circumstances warrant.” Activists in these organizations, he instructed, “must not only be contained but must be neutralized.”

In the memorandum, Hoover emphasized again the clandestine nature of the operations: “The nature of this new endeavor is such that under no circumstances should the existence of the program be made known outside the bureau and appropriate within-office security should be afforded this sensitive operation.”

Agents in charge of field offices were instructed by Hoover to send proposals for COINTELPRO programs to Hoover. They were reviewed by officials in the Domestic Intelligence Division and by Hoover himself. Coming up with a COINTELPRO proposal the director liked was a career booster for agents. In addition to proposals from agents in the field, COINTELPRO proposals also originated with officials at headquarters and with Hoover himself.

There was no going back after Bork's crucial decision to release the files rather than appeal the court order to do so.

Bork, who became well known in 1987 when he was rejected by the
Senate in 1987 after President
Ronald Reagan nominated him to serve on the U.S. Supreme Court, ordered the FBI to release the COINTELPRO files to Stern soon after Bork became acting attorney general as a result of the
Saturday Night Massacre, the evening, October 20, 1973, when Nixon, within a matter of hours, fired one attorney general and one deputy attorney general and, through Bork, fired the Watergate special prosecutor. At the end of the evening, Bork was the last domino standing at the top of the Department of Justice. He released the COINTELPRO statement-of-purpose files to Stern in the midst of that intense Watergate atmosphere, and as he did so, he urged attorney general–designee
William Saxbe, who became attorney general on January 4, 1974, to investigate the FBI's COINTELPRO operations. Reluctant at first, Saxbe did order an investigation, but he had a difficult time convincing Assistant Attorney General
Henry E. Petersen to conduct the inquiry. Though limited in scope, it was the first investigation of the bureau by any agency.

When the first glimpses of COINTELPRO operations emerged as a result of that limited investigation, the
Washington Post
declared in an editorial, “Mr. Hoover's Dirty Tricks,” that what had been revealed so far about Hoover's FBI showed that he had made “meaningless the rule of law.” The
Post
called on FBI director Kelley and Attorney General Saxbe to make sure that steps would be “taken to see that such outrages against the Constitution are not allowed to be repeated.” The editorial focused on the FBI's treatment of black people, including the bureau's plans to prevent “the rise of a messiah” and to prevent black leaders from “gaining respectability” by discrediting them with bad publicity, ridicule, and whatever means could be thought up by what Hoover called “imaginative” FBI agents. The editorial blasted the revelations in recently released files that Hoover had praised one American city's officials for placing all its black militant leaders in jail for a summer on successive trumped-up charges until “they could no longer make bail.”

In the past, the FBI had succeeded in stopping the only congressional effort to make the FBI accountable—a hearing in 1965 that was limited to an examination of the use of electronic surveillance by the FBI and other federal agencies. Senator
Edward Long of Missouri asked the FBI and other federal investigative agencies to provide records of their electronic surveillance activities to the Senate Subcommittee on Administrative Practice and Procedure. Determined not to reveal any information from FBI files, especially about the bureau's investigative methods, Hoover said he would provide the committee with
all
its electronic records, including ones
that contained recordings of Long allegedly being offered money by the Teamsters union. With that threat, Hoover achieved his goal.
Long issued a statement that certified that the FBI did not wiretap, and the bureau was dropped from the list of agencies being investigated. After meeting with Long about this matter, FBI deputy director Cartha “Deke” DeLoach told Hoover that Long had been “neutralized.” But he suggested that Long should be watched. He was. The bureau continued to investigate Long and initiated investigations of all members of the subcommittee and their legal counsel. In contrast, in the mid-1970s, as a series of investigations of the FBI were getting under way, no deals were made to make it possible for the FBI to escape investigation.

While FBI agents were investigating the crimes of the Nixon administration in 1974, some officials in the Department of Justice were preparing to investigate the FBI's past. A new attitude had developed among officials in the department after Nixon and the high-level department officials who were partners in his corruption left the government one by one and, in most cases, were indicted and then convicted. William Saxbe, the last attorney general appointed by Nixon, and Saxbe's successor, Edward Levi, who was appointed attorney general by President Gerald Ford, played major roles in forcing open wider the FBI door the Media burglars had opened.

FBI director Kelley opposed the department's investigation of the bureau. He was in fact still very reluctant to criticize the FBI's past when Saxbe did so in 1974 in a setting that for Kelley was public, personal, and very embarrassing—the June 20 graduation ceremony of 250 police officers from the United States and a few foreign countries who had just completed three months of training at the FBI National Academy in Quantico, Virginia. Sanford Ungar, author of
FBI: An Uncensored Look Behind the Walls,
observed this ceremony that was attended by notable present and past FBI officials, military officers, members of foreign diplomatic missions, and the proud families of the young police officers who were graduating that day.

Introduced by Kelley, Saxbe used his keynote address to make his first public remarks about the FBI's past. As FBI officials listened from seats scattered throughout the audience, Saxbe referred to the “recent memoranda released”—a reference to the files released to Stern—that revealed the FBI had “sought to expose, disrupt, misdirect, discredit, or otherwise neutralize” a number of organizations and their members. The FBI, Saxbe told the graduates, had leaked “detrimental information” and “spread dissension through partially fake and entirely fabricated documents.” Disruptive tactics used by the FBI, he said, with or without the knowledge of the attorney
general, should not occur. “The national security can be protected without resorting to such practices.” Then came his kicker. He told the young police officer graduates,

“When you return to your various police departments, I hope you will take the word with you and pass it along that the dirty tricks are over—not only in campaign tactics, but in law enforcement as well. The public is demanding that we find ways to enforce the laws that do not violate standards of decency and fairness.”

The silence was heavy, Ungar remembers, as Saxbe told his audience that his “point in discussing certain FBI programs is not to criticize a man who is no longer here to defend himself.…The purpose of my remarks is to stress that all of us with criminal justice responsibilities must continually examine and reexamine every aspect of our work to make certain it is fair—as well as legal. There is no person who should be immune from criticsm and no practice that should be shielded from healthy skepticism.”

These remarks by Saxbe were the first public criticism ever made by a sitting attorney general of Hoover or his secret operations. The tide was indeed shifting.

After the speech, a ranking FBI official believed by Ungar to be representative of bureau reaction to Saxbe's comments said to him, “When you invite someone into your home, do you expect him to take a crap on the living room floor?”