The Burglary

by Betty Medsger

  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?”

  Meanwhile, Assistant Attorney General Petersen was so hesitant to take on Saxbe’s assignment to investigate COINTELPRO operations that he asked the FBI to provide him with summaries of COINTELPRO files rather than access to the original records of the programs. This meant that the department’s first investigation of COINTELPRO was far weaker than it would have been if it had been based on the bureau’s original files. When original files were released later to the Senate committee that investigated the FBI in 1975, it became clear that the FBI-prepared summaries had minimized the toxic nature of the COINTELPRO reports.

  Four months after Saxbe’s unwelcome speech at the FBI Academy, the recent first glimpses of COINTELPRO were the subject of fierce debate at an open congressional hearing of the House Civil Rights and Constitutional Rights Subcommittee of the Committee on the Judiciary, chaired by Representative Don Edwards, Democrat from California and a former FBI agent. Hoover’s appearances before congressional committees on Capitol Hill had been lovefests at which few questions were asked—except an implied “How much more can we do for you?” Director Kelley did not get much love on the Hill. In comparison to Hoover’s appearances there, his were more like facing a firing squad. He was pressed repeatedly to reveal and condemn the past and to agree not to repeat it. Kelley seldom appeared alone at these hearings. The ghost of Hoover usually was nearby.

  That attitude was evident at the November 20, 1974, hearing of Edwards’s subcommittee—the first congressional hearing at which COINTELPRO operations were discussed. In addition to Kelley, the committee also had compelled Justice officials to be present. Standing in for Attorney General Saxbe were Assistant Attorney General Petersen and Deputy Attorney General Laurence Silberman.

  The circumstances were unusual: As FBI investigators continued to search for the Media burglars in Philadelphia and elsewhere, the director of the FBI was seated before a congressional committee that had compelled him to be there to answer questions about the controversial program whose existence was known because its mysterious name had been revealed by the burglars still being searched for by his agents.

  Edwards drew attention to that anomalous circumstance when he opened the session. In his opening remarks, he gave credit to the Media burglars for the fact that the committee and its witnesses were gathered to discuss the FBI’s past. “The subcommittee’s attention was first directed to allegations of questionable FBI activities when materials surfaced after an FBI office was broken into in Media, PA, in 1971. Following that break-in, a suit was brought under the Freedom of Information Act by NBC newsman Carl Stern. After an 18-month court battle, the FBI recently released a number of memoranda, which surfaced the so-called COINTELPRO operations. The potential for invasions of constitutionally protected rights was apparent.”

  Edwards then turned to the director and blasted his recent defense of COINTELPRO:

  Regardless of the unattractiveness or noisy militancy of some private citizens or organizations, the Constitution does not permit federal interference with their activities except through the criminal justice system, armed with its ancient safeguards. There are no exceptions. No federal agency, the CIA, the IRS, or the FBI, can be at the same time policeman, prosecutor, judge and jury. That is what constitutionally guaranteed due process is all about.…

  I suggest that the philosophy supporting COINTELPRO is the subversive notion that any public official, the president or a policeman, possesses a kind of inherent power to set aside the Constitution whenever he thinks the public interest, or national security warrants it. That notion is the postulate of tyranny. Law enforcers cannot be lawbreakers.

  Two days before this hearing, Saxbe had released key parts of the Petersen investigation at a press conference where he told reporters that some of the COINTELPRO operations were “abhorrent in a free society.” Despite the fact that the report was based on files that had been watered down in summaries prepared by FBI officials, some of the harsh aspects of the operations still were evident. Kelley and all other top officials at the FBI had joined together to urge the attorney general not to release the report. Public disclosure, the director told Saxbe, would cause “catastrophic damage” to the FBI.

  Even Senator Sam J. Ervin Jr., Democrat from North Carolina, then deep in investigating Watergate in televised public hearings that were riveting the country, advised Saxbe not to release the report. He was widely regarded as a strong defender of constitutional rights, especially the right to privacy and the right to dissent. But presented with evidence of what the FBI was doing in this area he cared about so much, Ervin and all members of the Senate Subcommittee on Constitutional Rights, the committee he chaired, advised Saxbe to keep the COINTELPRO report secret. Ervin reacted as he did when he refused to investigate the FBI when asked to do so shortly after the Media files first became public.

  Despite nearly unanimous advice from the FBI and members of Congress that he should suppress the department’s COINTELPRO report, Saxbe released it. Petersen had recommended that on the basis of his report no FBI agents should be prosecuted for operations they had carried out. Nevertheless, Saxbe considered recommending that a special prosecutor be appointed to investigate the FBI. That idea also was strongly opposed by everyone Saxbe consulted, including Senator Ervin. In the end, Saxbe did not recommend the appointment of a special prosecutor.

  When Saxbe released the COINTELPRO report at a press conference shortly before the Edwards committee hearing, Kelley issued a news release defending COINTELPRO: “FBI employees acted in good faith and within the bounds of what was expected of them by the president, the attorney general, Congress, and, I believe, a majority of the American people.”

  Now, at the House subcommittee hearing, Edwards praised Saxbe’s conclusion that some of the COINTELPRO actions were abhorrent and strongly criticized Kelley’s defense of the operations. Paul Sarbanes, Democratic member of the House from Maryland, turned to Kelley and asked if he agreed with the attorney general’s conclusion that some of the COINTELPRO “activities involved isolated instances of practices that are abhorrent in a free society.”

  The director responded, “I do not.”

  Kelley told the committee he thought the attorney general had authority to allow the FBI to go beyond investigating, monitoring, and employing counterintelligence to take action to disrupt the activities of particular organizations. His comments sounded remarkably like Hoover’s justification for COINTELPRO. Where was the statutory basis for such an executive order? asked the Reverend Robert F. Drinan, Democrat from Massachusetts.

  “It is inherent,” responded the director. That claim inevitably brought to mind President Nixon’s recent claim that he had inherent rights as president, and that crimes committed by him, therefore, were not crimes. “I do not want to argue about anything that happened in the past,” Kelley said at one point, clearly frustrated with the line of questioning.

  Silberman stepped into the crossfire and acknowledged that Department of Justice officials “do not have power to authorize the bureau to disrupt domestic groups.” At the same time, he practically pleaded for mercy for the director. “I would like to tell t
his committee that the attorney general and I have absolute confidence in Clarence Kelley. He is put in a very awkward position here and you all ought to realize it. He was not there when these acts were engaged in and he has an obvious personal reluctance, it seems to me, to have to be in a position to condemn his predecessor.”

  When Drinan asked if Justice officials “have any intention of seeking out the FBI agents who engaged in this criminal conduct and bringing disciplinary or criminal action against them,” Petersen said the matter was open to consideration, but because the program “was directed by the Director of the Federal Bureau of Investigation … it would be somewhat incongruous to single out … the grade 10 agent on the street level for doing what he was directed to do by the director of the Federal Bureau of Investigation.”

  Petersen’s remark placed the ghost of Hoover at center stage. “… If discipline were to be meted out,” he continued, “it would have to be meted out to one who is no longer alive.…We do not intend … to discipline agents … for actions which, indeed, the entire bureau and the director were responsible.”

  THE TIPPING POINT that led to the first extensive investigation of the FBI and other intelligence agencies was a story written by then New York Times reporter Seymour Hersh on December 22, 1974: “Huge CIA Operation Reported in U.S. Against Anti-War Forces.” Hersh’s front-page story that day reported that the CIA had collected surveillance files on thousands of activists in violation of its charter, which prohibits the agency from conducting domestic operations. The programs that CIA director Richard Helms had denied existed, after select CIA staff members pressed him, the day after the first Media files were reported, to confirm or deny whether such programs existed inside the agency, were now confirmed in Hersh’s story. They existed, they were extensive, they were illegal—and, it would be learned later, they had been directed by Helms.

  By January 1975, Congress no longer could avoid what was by then considered a potential crisis in intelligence operations. A string of revelations—the Media files, Stern’s reports on the files that defined and established COINTELPRO–New Left, Petersen’s report on the bureau’s watered-down files, Watergate revelations about the manipulation of intelligence agencies by the Nixon administration, and now Hersh’s report on the CIA’s domestic operations—together led to widespread concern that there were serious problems in the nation’s intelligence agencies that needed to be examined. That month the Senate passed a resolution establishing the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities. The committee would be known as the Church Committee for its chair, Frank Church, Democratic senator from Idaho. At the same time, the House established a similar committee. Unfortunately, its extensive work ended up having little impact. Most of its hearings were closed and its final report ultimately was suppressed.

  As questioning of the behavior and values of Hoover grew in the 1970s, the many people who relied on Hoover’s perception of who was dangerous and what thinking was appropriate must have been shocked. Writer Jim Edwards got some insight into how people relied on the director for guidance on such matters when he reviewed the bureau’s 1,700-page file on George Seldes, an investigative journalist who, after a career as a Chicago Tribune reporter, published his own newsletter, In Fact. In it, Seldes reported many important developments long before the mainstream press did. For instance, he published evidence of the deadly power of tobacco in 1941, decades before the mainstream press. As Edwards reviewed Seldes’s file for an article he wrote for Brill’s Content in November 2000, in addition to discovering that the bureau had followed and harassed Seldes and his wife, Helen, including secretly opening and copying mail sent to their Norwich, Connecticut, home, he reviewed files that offered insights about the relationship between Hoover and the public.

  “It was not uncommon,” Edwards found, “for members of the public to write to Hoover. They asked his advice, inquired as to whether their neighbor was a communist, turned in their friends as Reds and occasionally wrote proclamations of innocence if they believed that they might be suspected of something.” For example, a person who wrote on stationery with the letterhead of the architecture department of Pennsylvania State University, and whose name was blacked out, informed Hoover that “he was receiving Seldes’ In Fact against his will.” He told Hoover he had not subscribed to the publication, preferred “not to have it enter my home,” but had been unsuccessful in attempts to have his name removed from the mailing list. “In case of any eventuality [it’s not clear what he thought that might be—perhaps an FBI agent someday finding an issue of the newsletter near his dead body in his home] I wish to state now that I have never subscribed to In Fact.” In his response, Hoover replied and “assured the worried academic that ‘you may be sure that your letter will be made a matter of permanent record.’ ” Everyone in the files of the secret FBI could count on that.

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  Crude and Cruel

  SOME OPERATIONS carried out by the secret FBI were crude. Others were cruel and life-threatening. Antiwar activists’ oranges were injected with powerful laxatives. Agents hired prostitutes known to have venereal disease to infect campus antiwar leaders. Prostitutes were hired in an effort to entrap leaders of the Fair Play for Cuba Committee. Some plots were designed to destroy specific individuals and institutions—providing an apartment diagram that guided a Chicago police shooter to “Fred’s bed” so Black Panther Fred Hampton could be killed, taunting the Reverend Martin Luther King Jr. to commit suicide.

  Some of the plots would have been considered beyond the bounds of humane conduct if carried out by any agency or individual, but they were regarded as even worse—nearly beyond belief—when it was discovered such operations had been executed by the nation’s most powerful law enforcement agency, and that it did so under the leadership of a director who repeatedly spoke of the need for strict moral behavior. And who would fire an agent for simply having sweaty palms.

  The Media break-in changed the whole dynamic, says historian Athan Theoharis. Then, when COINTELPRO was revealed, “that finally exceeded what the public would support.”

  Widely exposed during the Church Committee hearings in 1975, these secret FBI operations—COINTELPRO and others—utilized the tools of espionage. Tools usually reserved for clandestine use against foreign enemies were employed under Hoover against a wide swath of Americans in efforts to stop dissent. The methods used by the FBI inflicted pain, anxiety, and humiliation—forms of torture.

  The operations were, in the words of respected surveillance scholar Frank Donner, “an embryonic version of officially instigated terrorism.”

  Wrote Donner, “The bureau constituted itself the secret instrument of a tribal system of justice directed against people it had itself defined as enemies and outcasts.” These investigations were “highly personalized … unfettered by professionalism or, for that matter, the norms of legality and accountability.”

  “It seemed like a good idea at the time.”

  That’s how Cartha “Deke” DeLoach, deputy director of the FBI from 1965 to 1970, assessed COINTELPRO operations in his 1996 book Hoover’s FBI: The Inside Story. DeLoach defended Hoover until his own death in March 2013. When the nature of these operations was first revealed in the mid-1970s, probably few, if any, people thought such methods of intelligence gathering or law enforcement were a good idea.

  The operations were carried out as part of Hoover’s overall vision of his duty not only to enforce the law—which could not be done with these programs because most of the FBI actions involved were illegal and, therefore, could not be presented in court—but also to maintain the status quo and quash new ideas by harassing people into silence and passivity. Files were maintained and actions taken against people in nearly all movements: the civil rights movement, the antiwar movement, the women’s movement, the gay rights movement (then referred to as homosexual groups), and the environmental movement. The Ku Klux Klan was added to the list after President Johnso
n ordered the director in 1964 to investigate a series of brutal murders against civil rights workers in Mississippi.

  Sanford Ungar, to this day still the only writer to whom an FBI director (Clarence Kelley) granted wide access to FBI officials and internal information about their operations, in 1975 described some COINTELPRO methods and the impact of these secret illegal operations on the FBI’s official responsibilities:

  As the director saw that he was on to an issue that was stirring considerable emotion in the country, he embarked on a veritable crusade.…Once an organization or activist … had been put into the category of a threat, they were pursued with a vengeance almost unknown in FBI annals. Their phones were tapped, their every movement watched in the hope that some basis could be found for charging them with a local or federal crime.

  The manpower assigned to such domestic intelligence was sometimes doubled, tripled or quadrupled—even at the expense of the bureau’s responsibilities for genuine counterintelligence efforts against foreign espionage—as the FBI pursued the director’s new public enemy number one.

  The COINTELPRO operations were started by Hoover in 1956. Frustrated by recent U.S. Supreme Court decisions that made it no longer possible to prosecute people for radical political speech or Communist Party membership, the director circumvented the court’s decisions and created COINTELPRO as his secret means of punishing, through harassment and dirty tricks, people who could no longer be punished under the law.

  He had always secretly used such unscrupulous methods, it would be learned in the 1980s, but the 1970s investigations provided the first evidence of what he created, starting in 1956—COINTELPRO operations directed against specific types of individuals and organizations. He opened successive COINTELPRO programs, including ones that were directed against the Socialist Workers Party, the Puerto Rican Independence Movement, the Black Liberation Movement, the New Left, the American Indian Movement, and black and white hate groups. In all, there were twelve COINTELPRO umbrella programs. Within each category, the director used wide discretion as to which individuals and organizations would be targeted. As with the infiltration of black groups in Philadelphia that was documented in the Media files, organizations that professed violence, such as the Black Panther Party, and organizations that professed nonviolence, such as the Southern Christian Leadership Conference, all qualified as targets of COINTELPRO programs.