The Burglary

by Betty Medsger

  Silberman has made two recommendations for confronting Hoover’s legacy. First, he proposes that all new FBI recruits be required to study “the nature of the secret and confidential files of J. Edgar Hoover.” Only knowledge of what happened in the FBI for forty-eight years under Hoover, he thinks, will assure that the FBI’s past will not be repeated.

  He also recommended that J. Edgar’s name be removed from the FBI’s massive national headquarters building in Washington. Representative Burton has joined in this call. The longtime director should not be honored, both firmly believe, especially in such a prominent way. “The country and the bureau” would “be well served” by removing Hoover’s name, said Silberman. “It is as if the Defense Department were named for Aaron Burr. Liberals and conservatives should unite to support legislation to accomplish this repudiation of a very sad chapter in American history.”

  Considered a classic example of brutalist architecture, the mammoth concrete FBI headquarters on Pennsylvania Avenue between the Capitol and the White House was dedicated by President Gerald Ford on the day it opened, September 30, 1975. At that time, at $126 million, it was the most expensive federal government building ever built. Hundreds filled the courtyard as the United States Marine Band played, among other selections, the “J. Edgar Hoover March,” a song composed for the occasion by Al Nencioni, an FBI agent in the Alexandria, Virginia, field office.

  Since that sunny dedication day, the J. Edgar Hoover Building has honored Hoover by boldly bearing his name. Conclusions of investigations and court rulings by judges that have declared his actions unconstitutional and shocking to the conscience have revealed the depth of his shame.

  20

  Closing Cases

  FBI HEADQUARTERS FELT like a war zone in July 1976. The attorney general, Edward Levi, and the Church Committee were pushing Clarence Kelley to get the domestic intelligence files under control. Levi thought Kelley had made a bad decision when he appointed one of the strongest Hoover defenders as his associate director. Levi eventually ordered Kelley to fire him. Inasmuch as Kelley realized by then that the person he had appointed was sandbagging him in regard to intelligence operations—hiding files, giving him inaccurate information to pass to Levi and the Church Committee, thereby humiliating him—he wasn’t unhappy about complying with Levi’s demand. The people who saw their main mission as protecting Hoover’s files were, of course, very unhappy with the firing.

  Then Neil Welch, the special agent in charge in the Philadelphia field office, arrived to conduct a special assignment for Kelley. That upset the old guard even more.

  As evidence mounted about the true nature of J. Edgar Hoover’s secret FBI, Levi demanded that Kelley force the Intelligence Division to review its files and decide whether continuing them could be justified. In response to Kelley’s assignment, the intelligence bureaucrats quietly but firmly rebelled. They simply stopped reviewing the files. Kelley analyzed the situation and concluded he would appoint someone from outside headquarters to take control of this problem. It was not the kind of task Kelley liked. He suffered now even more than he had in his first year at the bureau from being pushed and pulled on the one hand by the staunch Hoover loyalists and, on the other hand, by the reformers, the Church Committee, and the attorney general. He also suffered from serious back pain and wanted to return to Kansas City, where he had been police chief before he became FBI director, for treatment of his back problem.

  Enter Neil J. Welch.

  For a variety of reasons, Welch seemed to be the perfect person for the job that needed to be done. He had been called by the new associate director, Richard G. Held. “Come immediately,” said Held. Welch said later that Kelley wanted someone who could “take charge … someone tough enough to handle the headquarters bureaucrats. In short, ‘the toughest SOB we have because the whole bureaucracy is going to fight this effort.’ ”

  A somewhat gruff man with a sardonic sense of humor, Welch took pride in thinking he fit that bill well. But what gave him unique qualifications for Kelley’s assignment was that Welch openly hated COINTELPRO and for years had refused to let agents in his office participate in it. That, of course, was anathema to Hoover. In 1971, at the time the Media burglary took place, Hoover placed Welch on probation because of his refusal to let agents in the Detroit FBI office, where he was then SAC, participate in COINTELPRO.

  He was in fact the only SAC in the country who refused to let agents under his supervision be involved in such operations. He maintained that policy in every city where he was the SAC—Detroit, Philadelphia, and New York. He made an exception in Buffalo, where he was in charge of the FBI office before going to the Detroit office. Every Russian official who came to the United States seemed to insist on visiting Niagara Falls. Given that situation and pressure from headquarters about the presence of Soviets, Welch relented and permitted an intelligence crew to go to the falls regularly to watch Russians watching the falls.

  There were other SACs who were not enthusiastic about having their agents participate in COINTELPRO operations, but it is believed that only Welch drew the line and said his agents could not be involved in them. “It was a serious problem,” he said; “not only was that stuff ridiculous and silly and unjustified and all that. It’s also terribly disruptive in an office to have eighty-five percent of your people working according to proper guidelines and statutes, with everything you do provable in court—guys enforcing the law because they were sworn to uphold the Constitution and the laws of the United States. And then, at the same time, you got a little backwater place over here [in the office] where you got guys that are out doing all kinds of inventive things for none of which can any possible authority be found. It doesn’t belong in there. It’s a bad fit.”

  Even with his rule against COINTELPRO operations being carried out by agents in the Detroit office, Welch still had to go to great lengths to prevent some agents from proposing them to Washington behind his back. Every time young agents went to Washington headquarters for in-service training, they “returned to Detroit with bizarre counterintelligence schemes so regularly” that Welch started requiring agents who went to bureau headquarters to be debriefed when they returned to Detroit. “Those hopelessly poisoned by the bureau instruction were summarily reassigned to the bank robbery squad where they could do no harm.” But one agent’s propensity for COINTELPRO must have slipped through Welch’s debriefing unnoticed. Welch got a call from someone in the Domestic Intelligence Division in Washington who wanted to make sure Welch would be able to provide security for the quart of foul-smelling distilled pig feces liquid the Detroit office had ordered for a COINTELPRO operation against the local Black Panther organization. Welch recalls that he went wild. There was a lot of screaming and yelling. He canceled the operation and made sure the liquid, which was supposed to have a potency that would belittle the best efforts of the biggest skunk, was not delivered to the Detroit FBI office.

  In addition to thinking such programs were cruel and stupid, Welch thought few, if any, of the COINTELPRO programs were constitutional, a crucial factor that, until the time he arrived at headquarters on orders from Kelley, had not been given much attention in the bureau. “As soon as you get into an area where you are dealing with people’s ideas,” he said, “you are dealing with something extraordinary.…Domestic intelligence is prone to abuse unless tightly regulated.…As soon as you gather intelligence you are making some hard decisions. You are impacting people’s rights to associate without Big Brother and his ears. As long as they’re not breaking any laws, they should be free from government surveillance and … from being on some government list … free from intrusive informant operations and things more inventive, such as flattening their tires.”

  In perhaps his most devastating comment about Hoover’s massive intelligence operation, Welch said it was “mindless.”

  WELCH ACCEPTED Kelley’s special assignment to come to headquarters in July 1976 in order to, as Kelley had put it, “get this domestic intelligenc
e caseload closed down to a defendable level.”

  Since being transferred by Kelley to Philadelphia in 1975, Welch had been called to Washington several times on special assignments from Kelley. The most frequent ones were to teach advanced courses to agents at the FBI Academy in investigating organized crime and political corruption. That was the work he liked most and that he thought should be the bureau’s primary work. During Hoover’s lifetime, he had to do such cases almost surreptitiously. He is proud that when he was assigned to Philadelphia he “almost immediately upon arrival completely shut down the domestic intelligence program there, which had been operating prior to that moment in a timeless and mindless manner as in days of old. I reassigned all the agents to criminal work.” That was possible now that Kelley was director. When he did that in Detroit, under Hoover, he “encountered warlike resistance,” including a threat to remove him as SAC. Welch was punished by Hoover for his firm resistance to COINTELPRO, but he survived. That may have been possible because Hoover surely knew that Welch’s leadership in the new Jackson, Mississippi, office in 1964 played a major role in the bureau’s solving some crucial Ku Klux Klan murder cases when President Johnson ordered Hoover to investigate those cases.

  Unlike Hoover, Kelley regarded Welch as a model FBI field office administrator. As Kelley gradually moved the bureau away from an emphasis on domestic intelligence operations and into a greater emphasis on investigating organized crime, government corruption, and police brutality—areas that Welch was emphasizing in Philadelphia—Kelley relied on him for advice. The shift meant the bureau, like Welch’s office, also moved from an emphasis on quantity to an emphasis on quality. Hoover had placed a major emphasis on the quantity of crimes solved, and for that reason concentrated on easy bank robberies and stolen car cases. That approach built the numbers he used to impress Congress at appropriations time. However, it prevented the bureau from attacking the crimes that were most damaging to the country.

  What Welch saw when he arrived at headquarters in July 1976 was not pretty. “The place looked like it was under siege. The Department of Justice was there gathering information on sundry topics … taking statements from bureaucrats.…I was just another unwelcome investigator, and, as I understood, one particularly unwelcome, both because of the unusual nature of my mission and because of my known views on the ‘usefulness’ of that bureaucratic empire.”

  Kelley had left for Kansas City, so Welch received his orders from Kelley through Held as soon as he arrived. Held walked Welch through the executive office suites, repeating Welch’s assignment to each FBI executive: “SAC Neil Welch has the director’s orders to undertake a special assignment immediately. You are to cooperate with him in every way. Consider his orders those of Director Kelley, without question of any kind.” Shock was obvious on every face, Welch remembers.

  For several weeks that summer, he and Norm Rand, Welch’s friend and formerly an agent in Detroit, sat across from each other in a room that contained only their large desk and intelligence files. The files were wheeled in, cartload after cartload, and stacked, as Welch remembers, on their desk and in floor-to-ceiling piles throughout the room. The assignment involved reviewing intelligence files housed in Washington headquarters as well as at bureau offices throughout the country. At the outset, Welch sent a telegram, followed by a phone call, instructing every field office SAC to review the intelligence files in their offices. When they balked, Welch told them he would fly to their office the next day to do the task. They fell in line without him having to do so. The domestic intelligence files were flown to Washington.

  Surreptitiously, the two highest officials in the Domestic Intelligence Division tried to discourage people in the field from cooperating with Welch. He says he reacted as he thought Kelley would want him to react in what the director had described as an emergency situation. “The ship was about to flounder,” said Welch, so he transferred the two men out of the Intelligence Division. When the head of the personnel office told Welch it would not be possible to arrange transfers quickly, he did it himself, in Kelley’s name, effective immediately. “That was that. All resistance collapsed.”

  Well, almost all. A few days later another person from the Intelligence Division approached Welch with a plea that he stop reviewing and closing intelligence files. “He made the case for resistance,” Welch recalls, “with an argument … that a change now would undercut our previous positions, we needed to keep solidarity with the past, he said. And we should hold out and wait for a more friendly administration and Congress. To go along with Levi, he said, would serve to aid communism and the enemies of our country.

  “I didn’t say much to him,” said Welch, “except that the decisions had been made by higher authority, and all, soundly so in my judgment, were final, and in any event were those of the director and the attorney general on behalf of the president. His job, I told him, was to follow orders, or resign if he couldn’t do so for whatever reason.” Some people in the Domestic Intelligence Division were, as a matter of fervid belief, devoted to keeping the cases alive because, like Hoover, they saw a danger in opinions different from their own, subversive opinions, and they thought people who held opinions they considered subversive should be carefully watched. Others in the division had no particular interest in the intelligence itself; they wanted to maintain the caseload simply because their jobs depended on maintaining it until they retired. Their attitude, said Welch, was “It’s what we do. And we have to keep doing it because we’re too old to learn to do something else.” Neither of those two groups, the ideologically dedicated or the retirement-calendar watchers, liked what Welch was about to do to the intelligence files.

  He and Rand read each of the intelligence files delivered to them. The number of people or organizations who were named within each file varied, for many of the thick files included dossiers on several people. These files were the fruit of COINTELPRO and COINTELPRO-like operations. As Welch and Rand reviewed them, they answered these questions about each file:

  How long has this investigation of the individual or group been going on?

  Was there a violation of a criminal law?

  Does he or she pose a criminal threat to society?

  Do we have an actual bombing case on this guy?

  The bottom line: Does this investigation meet AG guidelines?

  Under Levi’s new guidelines, only cases that involved actual criminal conduct or clear and present danger would remain open—all others were to be closed.

  Some of the cases they reviewed were relatively new, only a year or two old. Others had been started in the 1930s. “I can tell you I have never given the closing of any of those cases a second thought and doubt we made any mistake that came back to endanger the nation,” said Welch years later.

  Asked what the standards were for opening the cases, Welch says, “God knows. It was the product of perceived threats at earlier times. The process got out of tune with the passage of time. And the bureaucrats, for their own selfish reasons, chose to ignore changing times.” An investigation that might have been of real concern at a particular time in the Cold War, but should have been closed, was often reinvestigated periodically and maintained just to keep the number of cases up. What appeared to be dangerous forever may have stayed in the files out of inertia, not because of continued danger.

  In the end, of the 4,868 cases Welch and Rand reviewed, they decided only 636 qualified to be left open. Welch stipulated that the open cases were to be reviewed in sixty days. Convincing evidence would have to be presented to justify continuing an investigation beyond that time. Otherwise, if there was no reason to continue the investigation and insufficient evidence to present it to a prosecutor, the case must be closed.

  Welch’s overriding goal was to apply the standards of criminal investigations to intelligence cases. Doing so would make it impossible for the cases to live forever. “If they could convince me that the subject of a case had committed a felony, or was about to do so, they got thir
ty days to wrap it up. Otherwise, it’s over now and for evermore.” He moved the 636 open cases to the Criminal Division. That meant each of them had to be investigated quickly and decisions made about whether the case should live or die. The cases could not linger in the files.

  “The name of the game henceforth was not endless intelligence gathering, surveillance, and intrusion by informants or wiretaps,” said Welch, “but handling the case like any other crime: Develop the evidence and go to a prosecutor to either prosecute or close it and go to something more pressing.”

  This emphasis on applying criminal investigative standards to intelligence cases would be criticized years later, especially after the September 11 attacks, as having weakened the capacity of the bureau to discover and capture terrorism plotters. Defenders of the system promoted by Welch claimed the opposite: that approaching terrorism as a criminal rather than an intelligence problem intensified investigations and made it more likely that they would lead to important information. Without using criminal investigation standards, they claimed, such investigations were more likely to become victims of bureaucratic inertia, as intelligence files often had.

  “I suppose I knew it was a thankless job, one that would incur a lifetime of enemies,” Welch said years later about his special assignment to clean up the intelligence files of J. Edgar Hoover’s secret FBI in 1976, “but, nevertheless, one that needed doing and one I probably was uniquely qualified for.” He says he thought at the time that taking this assignment “will ensure they never bring me into this headquarters again.”