The Burglary

by Betty Medsger

  “It was a time when LBJ could announce a war on poverty. Think about that. Poverty was something to go to war against. It was a war to win, to spend millions and billions to win. And he could get the votes in Congress because they thought there were enough people in this country then who believed poverty was an enemy that should be defeated rather than something that should be blamed on the poor.

  “It was a time when literally hundreds of thousands of people would get in cars and fill East Coast highways, get on trains, and travel to New York and Washington, again and again, for massive rallies against the Vietnam War.

  “It was a time of the best music we’ve produced.…It began with the freedom songs in the South, then the Beatles. The energy that was in the music and the counterculture—along with the drugs and some of the craziness—the sheer energy of that time was astonishing.

  “It was a time when I found Catholics could be radical, and nuns could be the most radical of all.

  “It was a time when I discovered the wonderful liberality of the Jewish conscience.

  “It was a time when black people in the South taught me courage.

  “It was a time when I as a WASP finally discovered and became close to the moral resources of all these other communities.

  “It was a time when [Senator Eugene] McCarthy’s delegates to the 1968 Democratic convention were gassed by Chicago police, beaten by them on national television, and chanted to the cameras, ‘The whole world is watching,’ and knew that the world was watching.

  “It was a time when Hubert Humphrey, even after the huge disaster of the Chicago ’68 convention, would have won the election if the liberal antiwar folks like myself had had better political judgment about how much was at stake in that election.”

  A look of profound despair crosses his face—his deep regret—for what he now regards as a profoundly foolish belief he held then: that it was more important to punish Humphrey for his failure to take a strong stand against the war than it was to prevent Nixon from being elected. This memory moves him to shift to the painful memories of what flowed from that election—more war and more certainty at the Nixon White House about staying the course in Vietnam.

  “It was a time when Richard Nixon rimmed the White House with Washington, D.C., buses, bumper to bumper, while thousands of antiwar demonstrators filled the Washington Mall. And he bragged to the country that while he was protected by the buses he watched a football game.”

  Most important, though, says John Raines, “It was a time when we still believed we could and should be a good nation, not just a powerful nation.”

  Near the end of his vivid recall of that time, he is high from the memories he has evoked. “What an exciting time it was,” he says, almost sounding as though it’s a surprise that such a good time existed, a time when people were passionate about justice.

  Bonnie Raines agrees, but she is slightly uncomfortable with his occasional emphasis on the past. The woman whose sketched face became well known to FBI agents throughout the country—the woman J. Edgar Hoover believed was the key to solving this case that he considered one of the worst things that ever happened to the bureau in his forty-seven years as its director—hesitates to dwell too much on the past.

  “Yes, it was exciting,” she says, “but we differ on that. You can feed off that more than I can. I tend to say, ‘Well, okay, but what do we do now?’ ”

  “Now,” says John.

  His soft echo of her last word is not a question but rather is recognition of being pulled back to reality, something Bonnie occasionally does when she thinks he is sinking into too deep an appreciation of the past, however remarkable and important it was. He acknowledges the wisdom in her concern. He, too, is realistic. He acknowledges that the accomplishments of the burglary and its aftermath are fragile. “Government intimidation and surveillance are never farther away than the next unpopular war or movement.”

  He sometimes despairs about “now.” “America has lost some of the freedoms that we fought for and thought we had won back in the ’60s and early ’70s. We’re back to square one. We’re back to having to fight. We the people, once again, have to fight for an America that belongs to all Americans, not to just the special few Americans who have a lot of money and can use that money now freely to influence elections and drown out the voice and the meaning of the vote of … the people.”

  Bonnie agrees. “I worry. I worry very much about what it’s going to take to change the climate in this country right now. And the silence of the ordinary people who just accept. Even when certain activities are exposed, they are just accepted.…It’s not just about what’s going on in America. It’s global—the huge inequality gap of wealth in the world and in this country.…There has to be a generation that picks those problems up and says, ‘These are the ones we’re now going to attack.’ ”

  Despite the realities of “now” that Bonnie often introduces into their conversations, she savors the big secret of what they did on March 8, 1971, as much as John does. That special smile that has appeared countless times over the years when they reminisced about the burglary is on their faces now.

  “That was a fairly good moment in time, wasn’t it?” says Bonnie.

  John couldn’t agree more. “It was wonderful.”

  26

  Fragile Reform

  AFTER ALL of the evidence of abusive behavior by the FBI had been placed on the table—the Media files, the COINTELPRO files Carl Stern sued to have the FBI release, and the massive documentation and testimony gathered by the Church Committee—efforts were initiated to prevent such abuses from taking place again. Reformers soon discovered it was nearly as difficult to put reforms in place as it had been to compel the FBI to open the files of J. Edgar Hoover’s secret FBI.

  At the end of its work, the committee made 180 detailed recommendations with two major goals—curbing abuses and simultaneously increasing the capacity of intelligence agencies to fulfill their lawful missions. The effort to turn key recommendations into legislation was slowed somewhat at the outset when the relatively halcyon bipartisan work of the committee was deliberately recast by some opponents of reform in ways that stretched and denied the truth.

  One of the first attacks on the committee was a vicious false accusation made by George H. W. Bush, the future president. Shortly after he was confirmed in January 1976 as the new director of the CIA, he appeared before the Church Committee and angrily stated that the committee was responsible for the assassination on Christmas Day 1975 of Richard Welch, the then new CIA station chief in Greece. The committee had honored its agreement with the CIA not to name agents involved in any of the wrongdoing it revealed. In fact, as Senator Fritz Mondale, a member of the Church Committee, pointed out to Bush, the committee did not even have Welch’s name. The CIA, for reasons unrelated to the committee, had warned Welch not to move into the house of the previous station chief’s home, but he had done so.

  Later, Bush returned to the committee and conceded there was no evidence that the Church Committee had any impact on Welch’s cover in Greece, nor did the committee have “any relationship to his tragic death.” But the original accusation made a strong impression that was never completely erased. Some members of Congress repeated it seemingly without regard for the fact that the director of the CIA had retracted his accusation.

  Such attacks on the Church Committee have echoed through three decades. On September 11, 2001, James Baker, secretary of state in President George H. W. Bush’s administration, issued an angry broadside against Frank Church. The late senator and the committee, he said, could be blamed for the horrendous disaster that had just happened hours earlier when more than 3,000 people were killed in New York, at the Pentagon, and in a field in western Pennsylvania. The Church Committee hearings, he said, had caused the United States to “unilaterally disarm in terms of our intelligence capabilities.” In the same vein, a short time after 9/11, the Wall Street Journal asserted in an editorial that the opening of the Church he
arings was “the moment that our nation moved from an intelligence to anti-intelligence footing.” Given the very powerful influence the CIA had under successive presidents, beginning with President Reagan, such claims were not sustainable.

  In March 2005, George H. W. Bush, despite his decades-old apology to the Church Committee, apparently could not resist taking a swipe at the committee again. In opening remarks at a conference on counterintelligence, he said, “It burns me up to see the agency under fire.” Recent criticism, he said, reminded him of the 1970s, when Congress “unleashed a bunch of untutored little jerks out there” to investigate the CIA.

  IMMEDIATELY AFTER the Church Committee hearings, despite efforts to turn the public and Congress against the committee, a spirit of reform carried the day in Congress. That spirit changed over the next five years as Congress tackled these major reforms the Church Committee had recommended:

  • Limit the FBI director’s term to ten years.

  • Establish permanent intelligence oversight committees.

  • Create a Foreign Intelligence Surveillance Act court to control electronic surveillance.

  • Write a binding charter that specifies requirements and limits on FBI conduct in investigations.

  Setting a ten-year limit on how long an FBI director could serve was approved in 1976. Hoover had made that reform easy. Given what had become known about how he abused his position, even the strongest defenders of the FBI were hesitant to keep in place a system that had made it possible to appoint a twenty-nine-year-old and give him freedom to build and maintain a fiefdom without accountability for a half century, as Hoover had.

  Congress also embraced the Church Committee’s recommendation to establish permanent congressional oversight of the FBI. Such committees were created in both houses of Congress. Members of several existing committees—Armed Services, Appropriations, Foreign Affairs, and Judiciary—fought this effort, claiming that oversight of intelligence agencies should be only their responsibility. Given the considerable evidence that showed that none of those committees had in the past exercised the oversight powers they now claimed were theirs, these turf claims did not succeed. During the debate on establishing oversight committees, a few senators, including Senator Milton Young, Republican from North Dakota, argued that Congress could not be trusted with oversight of intelligence agencies. But voices that claimed the FBI must no longer be an autonomous agency, free of checks and balances, won the day.

  In 1978, Congress passed the Foreign Intelligence Surveillance Act, regarded by many as the most important reform to emerge from the Church recommendations. It established a secret federal court to review applications for warrants for electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of residents might be intercepted. The law rejected the claim of presidential inherent authority in such matters, as well as the use of ambiguous terms, such as “subversive” and “national security,” to justify electronic surveillance. The court would set time limits on warrants in order to stop the FBI’s practice of placing people under endless electronic surveillance. A popular measure, the act passed in the Senate 95 to 1. It was this court that, in the years after 9/11, the administration of President George W. Bush attempted to evade.

  A fierce debate erupted over another major reform recommended by the Church Committee, the creation of a legislative charter for the FBI. For many people inside and outside the bureau such a charter was a major goal. A charter that would spell out, as a matter of law, what the bureau could and could not do, they thought, would be the strongest possible guarantee that the bureau could never again flout the law. FBI director Clarence Kelley was a strong supporter of the charter concept, but he retired before the charter proposal was debated and ultimately rejected.

  As the draft of the charter evolved, it became something completely different from what was originally planned by reformers. In the end, goals of charter supporters varied greatly. Some wanted a charter that would deepen reform of the FBI. Others wanted a charter that would thwart reform.

  The charter that ultimately was proposed was, in fact, the opposite of what the Church Committee had recommended. Instead of inhibiting overreach and violation of civil liberties by the FBI, the charter endorsed and protected such behavior. Thomas I. Emerson, a constitutional law professor at Yale Law School and a strong advocate of preventing the FBI from continuing its past behavior, called for either rejection or serious revisions of the charter. As written, he said, it would make matters much worse: It could legalize and ingrain more deeply the worst FBI practices instead of preventing them. Senator Edward Kennedy noted when he introduced the charter bill that it had essentially been written by the bureau. In the jawboning that led to the compromise, the reformers had lost. Consequently, Emerson pointed out, the proposed charter would continue to allow “highly intensive methods of investigation that are incompatible with democratic institutions.” It did not require judicial warrants for investigations of political organizations, nor did it provide for oversight by the attorney general.

  As Aryeh Neier, former head of the ACLU and then law professor at New York University Law School, said during the debate, “It belatedly grants to the bureau to operate, as it has all along, as our national political police.”

  Former attorney general Ramsey Clark also strongly opposed the charter. “We are considering a law that, far from preserving and enlarging freedom, puts the imprimatur of positive law on police practices and abuses developed over the years that are irreconcilable with the ideas of freedom.” He wondered how such a charter even could be proposed at that time. “Now, in the wake of Hoover’s career, and knowing of the revelations about COINTELPRO, and the outrageous violations of individuals’ freedom, from the Black Panthers to Martin Luther King Jr., from Ethel Rosenberg to Jean Seberg, Congress contemplates memorializing the practices by legalizing them.”

  Some ACLU officials supported the charter in the belief that a charter, any charter, was essential. They agreed that the one proposed in 1979 had major flaws, but they maintained that simply getting a charter in place would pave the way for reform in the future. Once in place, the imperfect charter could be amended.

  For many, approving a charter that essentially retroactively made Hoover’s FBI lawful was too great a risk. They were not willing to count on amending it in the future. The effort to establish a charter for the FBI failed. Those who initially wanted a charter the most were the people who were most opposed to the one that was proposed. The politics of intelligence had changed again, and compromise was not possible.

  With Congress’s failure to agree on a charter, the guidelines promulgated by Attorney General Edward Levi in 1976 were the only external rules governing how the FBI should operate. As the first FBI guidelines ever promulgated by an attorney general, they marked a departure from the practice of most past attorneys general forfeiting their supervision of the bureau and its director to the director. At the time, some FBI critics saw Levi’s guidelines as a way of heading off a charter—as a way to keep control of the FBI in the executive branch. Critics also saw guidelines promulgated by an attorney general as fragile because they would be subject to being changed every time a new administration took office.

  But the guidelines Levi put in place, after conferring with the Church Committee and the FBI, could not be dismissed by reformers. In contrast to the rules-free past, the Levi guidelines required the bureau to have “specific and articulable facts giving reason to believe that an individual or a group is or may be engaged in activities which involve the use of force or violence and which involve or will involve the violation of federal law” in order to open a full investigation. They embodied the idea that “government monitoring of individuals or groups because they hold unpopular or controversial political views is intolerable in our society.” Time limits were set on each phase of an investigation. FBI headquarters had to approve the use of informers, and the attorney general had to app
rove the use of mail covers and other invasive investigative methods.

  In 1980, a year after the charter effort died, there was more evidence that the reform pendulum was reversing. That year FBI reform was an issue in the presidential campaign. Ronald Reagan, the Republican candidate, promised that as president he would unleash the FBI. Soon after he became president he took his first step in that direction. In September 1980, just two months before Reagan was elected, W. Mark Felt and Edward Miller had become the only high-ranking bureau officials ever to be convicted of criminal charges. They were convicted for ordering FBI agents to illegally break into the homes of families and friends of Weather Underground members. Shortly after he was inaugurated, Reagan pardoned Felt and Miller. It was a sign that as far as his administration was concerned, intelligence reform was over.

  W. Mark Felt on CBS’s Face the Nation, August 30, 1976. (AP Photo)

  Break-ins like the ones Felt and Miller admitted they had approved and directed had been standard practice at the FBI for many years as part of COINTELPRO and other operations. Until their trial, no agent had been prosecuted for such crimes. In the aftermath of the Church Committee revelations and the illegal bureau actions revealed as part of the Socialist Workers Party lawsuit, the Department of Justice investigated dozens of street-level agents, many from the New York field office, who had conducted break-ins and other crimes on behalf of the FBI. Prosecutors decided to charge the high-level officials who had conceived and ordered the crimes rather than the agents who carried out their orders. Some aspects of the crimes were particularly egregious. For instance, Jennifer Dohrn learned years later, when she received her FBI file under the Freedom of Information Act, that in the course of planning the numerous break-ins that were conducted at her apartment and at various places where she worked, Felt suggested agents should kidnap her infant son as a way of pressuring her sister, Bernadine Dohrn, one of the members of the Weather Underground being sought by the FBI, to turn herself in.