When Reagan pardoned Felt and Miller, he likened the pardon to what President Carter had done for draft resisters: “Thousands of draft evaders and others who violated the Selective Service laws were unconditionally pardoned by my predecessor. America was generous to those who refused to serve their country in the Vietnam War. We can be no less generous to two men who acted on high principle to bring an end to the terrorism that was threatening our nation.”
When Felt’s history emerged more fully, it was evident that in many ways he embodied key aspects of the FBI and its director during its first half century. Like Hoover, Felt spent his entire professional life in the FBI, much of it at Washington headquarters working very closely with Hoover. Like Hoover, he had a public image as a hero—Watergate’s Deep Throat and Reagan’s terrorism fighter—and managed to evade public scolding for engaging in crimes and dirty tricks.
As the FBI official in charge of inspections of FBI field offices for years, Felt had helped manage the bureau’s illegal COINTELPRO operations throughout the country. Like Hoover, he promoted the public image of the FBI by editing or censoring scripts for Hollywood movies and network television dramatic series based on FBI cases. In the two years before Hoover’s death, Felt was locked in a bitter contest for Hoover’s favor with another top official, William C. Sullivan. Felt won. After Hoover’s death, Felt served as the second-highest official, under interim director L. Patrick Gray. In 2005, Felt complied with his family’s wishes and briefly emerged from retirement in California to confirm that he was Deep Throat—the mysterious man who met Washington Post reporter Bob Woodward in a dark garage and provided or confirmed clues about Watergate crimes.
Not until 2012, in Leak: Why Mark Felt Became Deep Throat by Max Holland, did it become widely known that Felt had other important secrets, ones that cast him in a very different light from his heroic image. During his last year in the FBI, Felt leaked information not only to Woodward, but also to other reporters, sometimes on the same day. More significantly, some of what he leaked was not true. Most of this behavior, Holland concludes from extensive research, was motivated not by an idealistic desire to expose corruption—the image promoted by his family and by Woodward and fellow reporter Carl Bernstein—but by an intense and almost reckless desire to be appointed FBI director. Holland also reveals that the two enemies who vied for Hoover’s anointment as his successor, Felt and Sullivan, managed to end each other’s FBI careers with COINTELPRO-like dirty tricks. Such actions were consistent with Felt’s use of deception in reports on the Media burglary to misrepresent the crime scene there in ways that provided Hoover with the justification he wanted in order to blame and punish Tom Lewis, the head agent in the office, for the burglary.
Reagan’s pardon of Felt and Miller was the first step he took to turn back the clock at FBI headquarters to the Hoover days. The next step took place in August 1981 when a little-noticed voluminous report by a Department of Justice task force on crime called for the attorney general to take “whatever action is necessary” to eliminate impediments to effective performance of federal law enforcement. After that report, Attorney General William French Smith considerably loosened the controls Levi had put in place. Now the bureau had fewer restrictions on what could prompt and continue an investigation, and the need for attorney general approval of certain investigative methods was eliminated. Those who had predicted Levi’s guidelines were fragile and would be short-lived turned out to be right.
In hindsight, perhaps the results were predictable. In 1988, documents released to the Center for Constitutional Rights under the Freedom of Information Act revealed that beginning in 1981, the FBI did indeed assume that the “impediments” on investigations had been lifted. That year it opened a five-year investigation of individuals and organizations that opposed Reagan’s policies in Central America. The investigation—which included widespread use throughout the country of informers at political meetings; break-ins at churches, members’ homes, and organizations’ offices; and surveillance of hundreds of peace demonstrations—started under FBI director William Webster and continued under his successor, William Sessions, both of them former federal judges.
The massive five-year investigation involved fifty-two of the fifty-six FBI field offices and included investigations of the National Council of Churches, the Roman Catholic Maryknoll Sisters, the United Auto Workers, and the Southern Christian Leadership Conference. The focus was on the Committee in Solidarity with the People of El Salvador, known as CISPES.
The ghost of Hoover seemed to be in charge. The investigation was carried out almost precisely as it would have been by him. But there were new elements—ones Hoover never had to confront. Despite Reagan’s efforts to unleash the FBI, there were mechanisms in place for holding the FBI accountable, thanks to the Church Committee—recommended reforms that had been enacted. Levi’s guidelines had been gutted, as many had feared they would be, but the congressional intelligence committees were in place. Those committees also were subject to political winds, and sometimes they, like Reagan, had the unleashing of the FBI as their goal. At other times they conducted investigations.
In the CISPES case, Director Sessions was grilled by the Senate Intelligence Committee. At first, he defended the program, saying it was justified as part of an international terrorism investigation. That idea had been the brainchild of an informer, Frank Varelli, who told FBI agents that CISPES was linked to the Soviet KGB intelligence agency. Sessions later confessed to the Intelligence Committee that mistakes had been made by the bureau, including continuing to rely on Varelli despite realizing early in the investigation that he was unreliable. Files indicated that officials at headquarters several times warned agents involved in the CISPES operation not to abuse people’s First Amendment rights. But agents continued to do precisely that. The warnings had not been followed by internal oversight. For instance, despite such warnings, the New Orleans office moved beyond surveillance to “a plan of attack against CISPES and specifically against individuals who defiantly display their contempt for the U.S. government by making speeches and propagandizing their cause.”
At the White House, in contrast to the FBI director’s confessional comments about the CISPES investigation, President Reagan said he believed the FBI had conducted a proper investigation against groups opposed to his policy. In the tradition of Presidents Franklin Roosevelt, Lyndon Johnson, and Richard Nixon, Reagan was willing to use the FBI to spy on Americans who opposed his policies.
Little in what was learned during the Senate hearings or from the FBI’s internal investigation imparted optimism about internal oversight by leadership at the FBI regarding the CISPES case. But the fact that there was a congressional investigation and hearing constituted a striking change. It was now more difficult for the FBI to hide questionable behavior. A director could be compelled by Congress to testify. It was, in fact, so shocking for an FBI director to testify about such matters that his mere appearance before the committee stirred excitement. A New York Times editorial referred to Sessions’s “remarkable admission of mistakes in probing opponents of Washington’s Central America policy. Such a confession was unimaginable in J. Edgar Hoover’s time.” Moving beyond surprise that an FBI director could confess mistakes, the editorial writer advised that his “confession ought to remind Congress to take its F.B.I.-monitoring function more seriously.” It was time, nine years after the failed attempt by Congress to establish a charter for the FBI, to reopen that effort in order “to shore up its flagging self-regulation,” the Times editorial urged. That never happened.
THE CONGRESSIONAL INVESTIGATION of the CISPES case unfolded in ways that are indicative of a pattern that has been repeated numerous times over the years since those mid-1970s efforts to curb FBI abuses. The pattern often has included these elements, occurring in this order:
• Abuse by the FBI became known when an organization, a few years after it suspected abuse, managed to get files under the Freedom of Information Act that proved such
abuse had indeed taken place. Because it usually took at least a few years, often longer, for such files to be released, abuses usually did not come to light until years after they occurred.
• News stories based on the files were published in one or more major newspapers.
• Editorial writers and officials of civil liberties organizations called for an investigation by Congress.
• A congressional oversight committee investigated the charges and announced it would hold hearings, including testimony from some of the people whose rights were abused.
• The committee compelled the director—fill in name of person at the helm at any given time—to appear before the committee.
• During questioning, the director defended what the bureau had done and said the bureau had not violated civil liberties.
• Weeks or months later, depending on when additional confirming information emerged, either from the press or newly released FBI files, the director appeared again before the committee and acknowledged that the bureau had gone too far, that it had in fact violated civil liberties, that there was no intentional harm, and that the inappropriate behavior would not happen again.
• The committee expressed regret about the abuse and expressed gratitude to the director for eventually being forthright.
• Invariably, a member of the committee remarked that the committee was glad the director was, unlike J. Edgar Hoover, willing to admit error.
• Usually, no one was held responsible.
To some extent, simply not being J. Edgar Hoover was sufficient when it came to how successive directors were perceived by Congress and the presidents who appointed them. But none of the directors developed and carried out plans to change the bureau in ways that truly melded strong respect for the Bill of Rights into the values and skills required in order to be either law enforcers or intelligence gatherers. And Congress seldom, if ever, insisted that such transformation take place. As important as each of the mechanisms put in place by Congress to provide oversight of the FBI was, inertia and lack of political will often made such efforts sluggish and unsystematic.
The single most important reform that has led to exposure of FBI abuses and provided an impetus to continued reform was not any of the actions specifically aimed at changing the bureau. Rather, the single most powerful source of reform has been the Freedom of Information Act, as it was strengthened by Congress in 1974 to require government agencies to respond to requests for government records. Most investigations of FBI abuses have been initiated because information that became known as a result of average citizens, journalists, or civil liberties organizations, such as the ACLU and the Center for Constitutional Rights, requesting FBI files that were so compelling that Congress could not avoid investigating the bureau.
Hoover understood the potential power of the exposure the FOIA would cause. That’s why, when the act was first passed in 1966, he ordered FBI officials not to comply with requests made under this new law. And thus his multiple layers of protection of secret records about the bureau’s dirty tricks operations, such as COINTELPRO. Hoover’s fear of exposure was a compliment to Americans. He thought that if Americans knew what he was really doing—as opposed to the image he had promoted for so long—they would insist that the FBI be investigated. Hoover was right. When some of the essential facts about how he operated were revealed, first by the Media burglars and then by the court-ordered release of more secret FBI files, the public insisted that the FBI be investigated. From a different perspective, William Davidon had that same confidence in Americans: that if they were given evidence that the FBI was suppressing dissent, they would demand an investigation.
Only after changes were made to the FOIA in 1974 did the bureau comply with requests, and then reluctantly. It had done so in one instance before—under court order in 1973 when journalist Carl Stern asked for the first COINTELPRO files. The need for easier access to files was clear “in the immediate aftermath of the Watergate hearings,” says leading FBI scholar Athan Theoharis. As the author or editor of several books on the FBI, he has obtained thousands of FBI files under the FOIA to develop a historical record of the FBI that was impossible to document until original files became available as a result of the 1974 amendments that strengthened the FOIA. Trials and hearings related to Watergate, as well as revelations from the Media files and news stories about the CIA’s unlawful domestic operations, Theoharis says, made clear “the extent to which national security claims are political security claims, not legitimate claims.” In the face of becoming aware of the monumental harm done by government secrecy, not to mention lies, about the Vietnam War and about intelligence practices, there was a strong consensus in 1974, says Theoharis, that “we need to ensure access to records if we’re going to understand what the federal government is actually doing.”
At first FBI officials negotiated with Congress to weaken the proposed 1974 FOIA reforms. Then they decided to stop negotiations because the bureau “wanted the bill to be ‘as bad as possible’ to make the case stronger for presidential veto,” according to a National Security Archives report. The effort to defeat the 1974 FOIA reforms was supported inside Gerald Ford’s administration by Donald Rumsfeld, Ford’s White House chief of staff; Dick Cheney, the deputy chief of staff; and Antonin Scalia. The future Supreme Court justice was then head of the office of legal counsel at the Department of Justice office. Scalia rallied opposition to the measure, urging the CIA to push the White House to veto it. As a young member of Congress in 1966, Rumsfeld had supported the original Freedom of Information Act. In 1974, concerned about leaks from the Ford administration, he opposed strengthening the law.
Ford was inclined initially to sign the law, realizing that, as one aide put it in a memo, to veto a Freedom of Information law might be a political disadvantage in an administration that, in the wake of Watergate, had openness and candor as its theme. Nevertheless, Ford vetoed the bill. The public consensus for more disclosure was so strong that his veto was easily overridden: by a vote of 371–31 in the House and 65–27 in the Senate.
ANY ASSESSMENT of the FBI’s history should acknowledge that the bureau has endured unprecedented circumstances. No other government agency was shaped by and in the image of one individual. Workers in no other agency worked, willingly or unwillingly, in the rigid and secret world of a single leader for so long. Also, no other agency has been forced to reveal elements of its unsavory past and been forced to change after having been told forever that it was a model law enforcement agency, the world’s best. In the wake of the 1970s investigations of the FBI, many agents must have felt whiplashed, caught between the spirit of the reformers of the 1970s and the spirit of the past. Many retired as soon as they could, rather than deal with change. Many decided simply to hunker down and change as little as possible. Others thought the reforms made them better agents because the new rules set limits that led to stronger evidence for prosecutions and to more precision in intelligence gathering.
But whatever the bureau had become by September 11, 2001, it did not seem to matter. On September 12, the FBI was confronted and ordered to change. Drastically. Immediately. The turmoil that roiled the bureau, beginning then, may have surpassed even the tumult that took place when Hoover’s loyal followers resisted the investigations and bureau reforms of the 1970s. Now, in the aftermath of 9/11, the changes were fast and furious and threatened the bureau in fundamental ways, including a push to remove one of its major missions.
Robert S. Mueller III, on the job as director only a week by 9/11, had spent most of his career as a prosecutor or supervisor of prosecutions. He assumed that would be his job now, leading the FBI in investigating what had happened and contributing to the Justice Department’s future prosecution of the people who had planned these horrific crimes. Attorney General John Ashcroft had news for him: Forget prosecutions. His order to the new FBI director was huge:
“This must not happen again.”
Describing a similar encounter at that time
with President George W. Bush, Mueller said in an April 2013 address at his alma mater, the University of Virginia School of Law, “I felt like a high school kid who had done the wrong homework assignment. I got it wrong.”
Mueller said he realized then that the course of the bureau had to change. Shortly after those encounters with Bush and Ashcroft, Mueller sent this message to the special agents in charge of the fifty-six FBI field offices:
“The FBI has just one set of priorities: Stop the next attack.”
Overnight, the FBI’s mandate was to transform itself from a law enforcement and domestic intelligence agency into primarily a domestic intelligence agency, just as the CIA had a new mandate to greatly expand its paramilitary capacity. There were threats from Congress to force the Bush administration to entirely remove intelligence gathering from the FBI and establish a new domestic intelligence agency.
While Americans assumed the FBI was going into high gear to do everything it could to save the country from the next attack, the bureau had a double focus. It was trying to guard against another attack while also fighting for its continued existence. Hoover’s instant reaction to any circumstance that reflected badly on him or the bureau had been to find a person who could be scapegoated. In the aftermath of September 11, some bureau officials felt the bureau itself was the scapegoat.
Top bureau officials may have felt somewhat cynical when they became aware of Ashcroft’s demand that their mission shift dramatically in order to prevent another attack. In the months immediately before 9/11, Ashcroft had blocked the bureau’s efforts to increase its counterterrorism efforts. It was later discovered that though the FBI may have failed to see crucial signs that pointed to terrorist attacks, some bureau officials, including Thomas Pickard, who had become acting director when Louis Freeh resigned as director in June 2001, were pressing the issue urgently in the months before 9/11. When Pickard submitted the bureau’s annual budget to Ashcroft that summer, he asked for an increase in only one area, counterterrorism. On July 18, Ashcroft sent a letter to Pickard in which he not only rejected the increase but also reduced the bureau’s existing counterterrorism budget. Determined to reverse that decision, Pickard immediately appealed it and made the case for the urgent need for an increase in the counterterrorism budget. In a letter dated September 10 that arrived on Pickard’s desk the morning of September 12, the attorney general notified Pickard that his appeal had been rejected. The bureau’s budget for counterterrorism would be cut, not increased.
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