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”:
No president has ever attempted to use the provisions of this act.…Nevertheless, the mere continued existence of these legal provisions has aroused concern among many Americans that the act might someday be used to apprehend and detain citizens who hold unpopular views.…I have supported and signed this repeal in order to put an end to such suspicions. In taking this action, I want to underscore this Nation’s abiding respect for the liberty of the individual.…There is no place in American life for the kind of anxiety—however unwarranted—which the Emergency Detention Act has evidently engendered.…We do have a great deal to fear if we begin to lose faith in our constitutional ideals. The legislation I have signed today keeps faith with those ideals.
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.
J. Edgar Hoover, as usual, interpreted the new Non-Detention Act his way.
Just as he had in 1950, after the president signed the act in 1971, the FBI director did what he had done twenty-one years earlier when the Emergency Detention Act of 1950 became law. He set in motion secret plans to defy it.
Plans for his new subterfuge started the day after Congress voted to repeal the act, when the head of the FBI’s Intelligence Division, Richard Cotter, made the case in a September 17, 1971, memorandum to the director for continuing to maintain the Security Index. “The potential dangerousness of subversives is probably even greater now than before the repeal of the Act, since they no doubt feel safer now to conspire in the destruction of this country.” Bolstering the case that Hoover would make in his request that the attorney general approve an order for the bureau to flaunt the law, D. J. Dalbey, head of the bureau’s Office of Legal Counsel, wrote in a memorandum that repeal of the Emergency Detention Act did not affect either the bureau’s “basic investigative authority” or its right to carry “in its files an assessment of each principal subversive which would be sufficient to mark him for Government attention should need arise in a national emergency.” Despite bureau officials’ certainty about their conclusion, once again they wanted the attorney general to give them a secret protective shield for the operations they now planned to carry out in defiance of Congress. The bureau needed clear authority, Dalbey advised Hoover, to “protect” it if “some spokesman of the extreme left” claimed the repeal undercut such investigative authority.
Ironically, the authority Hoover and other bureau officials now felt they had lost by the detention act being repealed was the authority that they had thought in 1950, at the time the Emergency Detention Act was enacted, was inadequate. But now they felt naked, unprotected. With the repeal of the Emergency Detention Act, there was no detention law—not even the one they regarded as inadequate because it was not sufficiently repressive. But as long as a detention act was in place, it was possible for the FBI to hide behind it, even as the bureau went beyond what it mandated. Now there was no law to hide behind—only a law to defy.
Despite the shifting nature of their relationship in the past year, the director appealed to Attorney General Mitchell. Hoover told him that, in the absence of the law just repealed, he could rely instead on old presidential directives as a rationale for creating lists of subversives—something he had done many times in the absence of laws. But in the event of public disclosure, Hoover thought reliance on those old directives was a dangerous option. He told Mitchell he preferred to have the official backing of the attorney general for maintaining lists of subversives.
Mitchell, who, along with his top aides, had publicly supported the repeal, now privately became an enthusiastic accomplice in Hoover’s plan to defy it. The two highest law enforcement officials in the country secretly agreed that the FBI could ignore the repeal. The bureau would continue to choose people it considered to be dangerous and place them on detention lists. In a secret October 22, 1971, memorandum, the attorney general assured the director that the FBI could do everything it had done before. The FBI’s authority in this area, Mitchell wrote, “remained unaffected by repeal of the emergency detention title.…The repeal … does not alter or limit the FBI’s authority and responsibility to record, file and index information.…An FBI administrative index compiled and maintained to assist the Bureau in making readily retrievable and available the results of its investigations into subversive activities and related matters is not prohibited by the repeal of the Emergency Detention Act.” Mitchell also gave the FBI exclusive control of the index. That meant the bureau no longer would have to submit the names of alleged subversives to the department for review, except for a monthly report on the federal employees the bureau added to the list.
Hoover won. The sixteenth—and, as it would turn out, the last—attorney general under whom he would serve gave him carte blanche to disobey a new law that had been designed, in part, to wipe out this part of his intelligence operations. That was quite an accomplishment. Not only could the bureau secretly continue to maintain and build the index of subversive Americans, but it would, wrote Mitchell, make the “sole determination as to which individuals should be included” on the list. Vetting of those people by the Department of Justice officials often had been perfunctory, and now, under Mitchell’s new order, it would not exist at all.
Following the pattern of subterfuge he had established many years earlier, as a guard against discovery of the bureau’s defiance of the law, Hoover now changed the name of the index again. This time it was changed from the Security Index to the Administrative Index, or ADEX. In 1943, he had changed the index from the Custodial Index to the Security Index to hide his refusal to enforce Attorney General Biddle’s order to destroy it. This time the name change was done to hide his deception of Congress. In case anyone ever asked, technically there no longer was a Security Index. With the magic of language, Hoover had once again eliminated the index while actually keeping it. No one outside the FBI would know the index was still there and continued to grow. Under his new plan, no one would know that the significant public consensus and nearly unanimous congressional decision that the Emergency Detention Act should be repealed had been secretly upended by the FBI director with the approval of the attorney general.
Subterfuge accomplished again.
IN 1971, J. Edgar Hoover experienced both the cold shoulder and the warm embrace of Attorney General John Mitchell. The attorney general’s support of Hoover’s defiance of Congress’s Non-Detention Act just days after it was passed contrasted sharply with how he treated the director in March 1971. At that time, Mitchell ignored the director’s request that he seek a court order to make it a crime to publish stories about the stolen files or to possess copies of them.
The explanation for his contrasting treatment of Hoover in the spring and fall of 1971 probably is rooted in the complex, secret, and dangerous web in which Hoover, Mitchell, and Nixon were entangled, beginning in the summer of 1970. The three men were ideological soul mates, but they had markedly different priorities then.
By the time the Media burglary took place in March, Mitchell and Nixon undoubtedly still resented what Hoover had done to them a year earlier when he took steps that defeated Nixon’s major effort to expand intelligence operations against the people he regarded as enemies of his war plans and his reelection plans.
A year later, at the very time Congress, the press, and the public were learning from the Media files for the first time about the FBI’s spying on antiwar and other activists and about the bureau’s goal to make Americans “paranoid,” the president and the attorney general were involved in a highly secret effort to create an alternative to the expanded domestic intelligence plan Hoover had forced Nixon to kill in 1970. Some of the practices exposed by the Media files—as well as some of Hoover’s practices not yet exposed—were similar to dirty tricks programs the attorney general and the president had by that time been desperately trying to expand for more than a year. The then still deeply secret White House plans involved bizarre and shocking criminal operations that would be conducted from the White House. They included the plan to burglarize Democratic National Committee headquarters at the Watergate Hotel and the plan to break into the office of Daniel Ellsberg’s psychiatrist. Among the crimes White House staffers planned then but did not execute were the bombing of the Brookings Institution, a liberal think tank in Washington, and the ass
assination of columnist Jack Anderson.
Not until 1973, as investigations of Watergate crimes commenced, did the public learn about either the intelligence agency collaboration plan Nixon tried to put in place in 1970 or the wild crimes that were being planned in the White House in the spring of 1971. Both efforts were driven by the president’s intense desire to target people he regarded as enemies, primarily antiwar activists and journalists, even more than they already were being targeted by multiple intelligence agencies.
Hoover and Nixon had been close friends since the director and Nixon, as a young member of Congress from California from 1946 to 1952, worked together closely in choosing who the House Un-American Activities Committee would accuse of being communists, or fellow travelers with communists, often on the basis of secret unverified FBI informer files provided confidentially to the committee by Hoover. The two of them had been close collaborators ever since then. In 1970, though, Nixon was furious when his old friend Hoover forced him to kill his intelligence collaboration plan. Most, if not all, presidents under whom Hoover had served as director had used the FBI to gather political intelligence on their behalf, often against their political opponents, but no president before Nixon had pressured Hoover to collaborate with other intelligence agencies. Hoover was willing to do just about anything presidents asked him except that. He despised working with other agencies. He had always been a lone wolf, not a collaborator. He wanted to keep all domestic intelligence work under the bureau’s exclusive control and within the walls and files of the FBI.
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