The Burglary

by Betty Medsger

  Stone may have been naïve. He is said to have believed it would have been impossible for someone as young as Hoover to have executed policy decisions at the time of the Palmer Raids. He openly admired Hoover’s characteristic efficiency and willingness to make decisions quickly, and indicated he thought Hoover would develop the values most essential to the job. Stone seemed to have so little insight about Hoover that he assumed that through the force of his personality and his position of authority he could influence the younger man to become a strong defender of civil liberties.

  At first, things seemed to go as Stone wished, at least on the surface. Stone appointed Hoover acting director the day after he fired William J. Burns as director. Years later, Hoover told—and required all new agents to be told—his memory of the exchange he claimed took place between him and Stone the day the attorney general asked him to be acting FBI director.

  According to Hoover’s account, he tried to make small talk about administrative matters when he arrived in Stone’s office that day in response to a request that he appear there, but the attorney general “told me brusquely to sit down, and looked at me intently over the desk. Then he said to me, ‘Young man, I want you to be acting director of the Bureau of Investigation.’ ”

  Given Hoover’s age and what he knew about Stone’s view of the Palmer Raids, it is difficult to imagine that he entered the attorney general’s office that day thinking he was about to be appointed to direct the bureau. But as he tells the story, he arrived expecting the appointment and armed with a demand about the conditions under which he would accept it. Years later, when Hoover recounted what happened in that private meeting, he said that when the job was offered, he responded, “I’ll take the job, Mr. Stone, but only on certain conditions.”

  “What are they?” Stone is supposed to have asked.

  “The Bureau must be divorced from politics and not be a catch-all for political hacks. Appointments must be based on merit. Promotions will be made only on proven ability. And the bureau will be responsible only to the attorney general.”

  Hoover said Stone was thrilled that he had put principle first. The attorney general, he said, responded, “I wouldn’t give it to you under any other conditions. That’s all. Good day.”

  Shortly after appointing Hoover acting director, the attorney general made an unequivocal public declaration about the peril posed to democracy by illegal surveillance. It was as though he was giving his new young director a very public order:

  There is always the possibility that a secret police system may become a menace to free government and free institutions, because it carries with it the possibility of abuses of power not always quickly appreciated or understood. The enormous expansion of Federal legislation, both civil and criminal, in recent years, however, has made a Bureau of Investigation a necessary instrument of law enforcement. But it is important that its activities be strictly limited to the performance of those functions for which it was created and that its agents themselves be not above the law or beyond its reach.…

  The Bureau of Investigation is not concerned with political or other opinions of individuals. It is only concerned with their conduct and then only with such conduct as is forbidden by the laws of the United States. When a police system passes beyond these limits it is dangerous to the proper administration of justice and to human liberty, which should be our first concern to cherish.…

  A few days after Stone made those remarks, Hoover testified before the Senate committee then investigating his recently disgraced boss, former attorney general Harry Daugherty, who had been fired by Coolidge. Hoover used the occasion to announce that he already had fired all of the political cronies of Daugherty in the bureau and was in the process of rooting out deadwood. Future qualifications to be a bureau agent, he said, would be an academic degree, some legal training. No longer, he said, would political connections lead to an FBI job in the bureau. By February 1925, the month Stone resigned as attorney general to become a justice on the U.S. Supreme Court, Hoover had announced a significant accomplishment. Now more than half the bureau’s agents had legal training and most had academic degrees. He also now required that local bureau offices be inspected periodically. Reformers were pleased that Hoover seemed to be imposing discipline in the bureau Stone once called a “lawless” organization.

  In line with Stone’s directive, Hoover also announced that no longer was the FBI interested in people’s political opinions. But that was not true. Political spying continued.

  The public didn’t know that. In these, his earliest days in the bureau, Hoover had started to build the “other” FBI—the secret FBI.

  Roger Baldwin, a founder and the original director of the American Civil Liberties Union in 1920, assumed Hoover was telling the truth when he told him such surveillance no longer took place. Grateful for the apparent change in Hoover’s values, Baldwin established a cordial relationship with the director that began shortly after Stone appointed him. He learned later that Hoover had deceived him. “They never stopped watching us,” he said in 1977. In fact, the ACLU was a favorite and continuous bureau target, with some ACLU offices infiltrated by FBI agents or informers throughout Hoover’s tenure. Surveillance of the ACLU included monitoring the group’s lawyers as they developed legal strategy for cases they were trying.

  Future Supreme Court justice Felix Frankfurter, a close adviser to Stone, thought Stone’s appointment of Hoover was a terrible mistake. The close professional relationship between Stone and Frankfurter started shortly after Stone was appointed attorney general. When Stone arrived at the department in March 1924, he told friends he felt like an outsider. “I don’t know whom to trust,” he remarked during that early period. One of the few people he relied on for advice was Frankfurter, then a law professor at Harvard. Of the many letters Stone received right after his appointment, the one he seemed to appreciate most was a letter from Frankfurter. In that first letter to Stone, Frankfurter wrote that nothing “had been more saddening during the last few years than the betrayal of the law by its special custodians at the Department of Justice.” He told Stone he was confronted in the department by a “Herculean job.” Stone wrote back that he would be grateful for Frankfurter’s advice. “I need all the help I can get.” That was the beginning of a continuous correspondence. They wrote to each other every few days.

  Frankfurter was especially concerned about the bureau. It was widely known to be corrupt. Agents commonly took bribes or demanded kickbacks from gangsters and bootleggers. Some agents had criminal records. Stone had said he wanted to turn the bureau into “an honest, professional, law-abiding force that deserved the public trust.” When Stone fired Burns as head of the bureau, Frankfurter applauded him.

  In one letter to Stone, Frankfurter wrote about one of the bureau issues that concerned him most: “There can hardly be two opinions about the fact that the spy system in government has been the watershed of the improprieties, illegalities and corrupting atmosphere of recent years.” In public statements, it was clear that Stone agreed with the Harvard professor on this point.

  Frankfurter addressed the appointment of Hoover in a letter several days after the appointment was announced. He reminded Stone of Hoover’s connection with Palmer, his courtroom defense of the Palmer Raids, and his demands to the Labor Department for deportation orders. “Nevertheless, my mouth has been sealed about the Hoover appointment … because I feel so deeply about the ends at which you aim in reorganization of the Bureau of Investigation, that I did not want to set my judgment against yours.…”

  But he warned Stone, “Hoover … might be a very effective and zealous instrument for the realization of the ‘liberal ideas’ which you had in mind for the investigatorial activities of the Department of Justice when his chief is a man who cares about these ideas as deeply as you do, but his effectiveness might be of a weaker coefficient with a chief less profoundly concerned about these ideas.”

  There is no record of Stone responding to Frankfurter
’s criticism of the Hoover appointment.

  STONE APPARENTLY NEVER KNEW that when he ordered the dismantling of the General Intelligence Division, Hoover made it appear that he had done so, but actually he had kept the heart of the division—the files. As head of the Radical Division, what became the General Intelligence Division, Hoover had ordered bureau agents to create dossiers on bureau critics, painting them with a wide brush, wrote Kenneth D. Ackerman, as “parlor Bolshevists and Red sympathizers.” In a remarkably short period, two years, he had assembled files on 450,000 people and organizations. The dossiers were to be used as “ammunition to smear them at a moment’s notice.”

  In violation of Stone’s orders, Hoover quietly continued building secret dossiers based on people’s political opinions. He already knew how to hide files, even within the bureau. He wrote and inserted in the files official memoranda saying political spying was not taking place even as he was ordering exactly that. Sometimes when agents asked for permission to conduct political surveillance he would respond that such surveillance was illegal—making that claim even as he directed other agents to conduct it.

  The people and organizations he targeted then and placed in his files would remain his targets for life. Even in those earliest years in his career, members of unions, pacifist groups, anarchists, racial justice groups, and bureau critics were regarded by Hoover, with or without evidence, as subversives who should be spied on regularly and recorded in his files. Hoover assigned agents to work with, and sometimes help direct, political surveillance conducted by the police forces’ Red Squads, then common in various cities. His surveillance of the National Association for the Advancement of Colored People began then and continued for decades. Editors of black newspapers were monitored because they were suspected of “exciting the negro element of this country to riot.”

  During the Great Depression, Hoover assigned agents to monitor protests against the economic policies of President Herbert Hoover. Political spying also was done during this time at the request of Republican Party officials and businessmen, some of whom had easy access to the director. In 1931, at the request of Joseph R. Nutt, chairman of the board of Union Trust Company and treasurer of the Republican National Committee, five bureau agents were sent to Syracuse to interview George Menhinick, editor of Wall Street Forecast, a financial newsletter that reported on the “dismal situation facing American banks and investors” at that time. After the interview, an agent reported that they had “thoroughly scared” Menhinick and that he was not likely to “resume the dissemination of any information concerning the banks or other financial institutions.”

  While Hoover was widely assumed to be following Stone’s rule that prohibited political surveillance, he also developed another skill he would use throughout his years as director—manipulating the meaning of words to suit his purposes. How he justified asking the State Department to monitor Americans traveling abroad provides an example of his early linguistic elasticity. Officially, such monitoring was to be limited to Americans who were suspected of acting on behalf of a foreign government. He reasoned that the rule could be interpreted to mean that an individual “who advocates Marxist Leninism might just as well be working as an agent of a foreign power,” and, therefore, monitoring them could be justified. Under this stretching of the rule, Frankfurter, hardly a Marxist-Leninist, was one of many Americans spied on by the FBI while traveling overseas.

  FROM WHAT IS KNOWN, Stone never asked basic questions of Hoover—never conducted an internal investigation. Just months after Stone appointed Hoover, when Coolidge nominated Stone to be a Supreme Court justice, some senators openly expressed fear that Stone’s Wall Street contacts would cause him to be too protective of business interests when he was on the court. Stone responded by suggesting that senators should clarify their concerns about him by questioning him at a Senate Judiciary Committee hearing. Hearings to question high-level appointees had never been held. The one held to question Stone set the precedent for what soon became required confirmation hearings for all people appointed to the federal bench. It is unfortunate that Stone did not apply the same critical standard in assessing Hoover that he suggested the Senate should apply to himself.

  Basic questions about Hoover, posed to him or to others, if answered honestly, surely would have raised profound concerns in Stone’s mind. Under the circumstances, some of the questions that should have been asked are: What were Hoover’s responsibilities in connection with the Palmer Raids, the prison conditions of those detained, and the aggressive efforts to deport them? What were his responsibilities when he worked directly for the disgraced Palmer, Daugherty, and Burns? What records were maintained in the General Intelligence Division, formerly Radical Division, and what happened to those records when Stone closed the division? If Stone had learned about the 450,000 files that were maintained there on individuals and groups, he probably would have asked who ordered the building of those files. If he had learned that they still existed, neatly stored away for continued use and expansion, he probably would have demanded that those files be made available for his inspection.

  Because questions apparently were not asked about these files, Hoover was able to keep them and develop new plans for them—make them the initial building blocks in his lifelong dedication to creating and maintaining massive files on people whose opinions he opposed. Some of them became the first entries for his Custodial Detention Index, the list of people the FBI would detain indefinitely and without due process in the event of a national emergency. It was this index that Attorney General Francis Biddle ordered Hoover to close and to destroy, but that Hoover, in secret defiance, simply renamed and expanded. He started such defiance to authority not long after Stone appointed him.

  If Stone had reviewed the index cards in those files, he would have seen Hoover’s notes about the Palmer Raids, including his demands for more arrests, higher bail, fewer lawyers, and more spying. He would have seen Hoover’s note about the argument he made that to give the detainees access to lawyers would “defeat the ends of justice.” Stone would also have found some of his friends in the files. He would have seen files on each of the twelve law professors who in May 1920 issued the “Twelve Lawyer Report,” a detailed investigation of the Palmer Raids. As Hoover would all his life with critics, when the report was issued, he immediately instructed agents to secretly investigate the scholars who wrote it. He questioned Frankfurter’s loyalty to the country, and claimed that the criticism written by another professor in the group, Harvard professor Zachariah Chafee, was “reckless and untrue.” He secretly tried to get Harvard trustees to fire the two men. Lacking evidence, he failed in both efforts. He probably was especially upset with the twelve professors. Their detailed documentation of the crimes perpetrated by the government in connection with the Palmer Raids and their aftermath was widely credited with turning public opinion against the raids. When the professors’ report became public, there was widespread concern that the government had abandoned the rule of law.

  If Stone had read those files, he might have considered more carefully whether the person who created such files, and who had not destroyed them, despite Stone’s order, should be the director of the nation’s most powerful law enforcement agency.

  It is puzzling that Stone did not ask essential questions before he appointed Hoover. Unlike Hoover’s future supervisors, Stone surely was not intimidated by the twenty-nine-year-old Hoover. Surely he did not think Hoover had a file on him, a fear that in future decades kept countless members of Congress and other officials from questioning him about his operations.

  THE LACK OF QUESTIONING continued, even when Hoover, in a very rare instance, revealed the nature of his suppression plans to top officials.

  On another March 8—this one in 1956—Hoover spoke before a meeting of the National Security Council. Nearly all members of President Dwight Eisenhower’s cabinet, as well as other high-ranking officials in his administration, were present. Hoover’s presentation, entitled “T
he Present Menace of Communist Espionage and Subversion,” exaggerated the power and size of the Communist Party in the United States at that time. The director lamented that the U.S. Supreme Court had recently eviscerated the Smith Act, thereby making it impossible to arrest people for simply advocating subversive ideas. Instead, the bureau would have to prove advocacy of actual violent acts. Hoover was furious that the court had limited the bureau’s ability to arrest communists.

  But Hoover had a plan to get around the limitations caused by the Supreme Court. He would secretly suppress communism through illegal means—and later other people and organizations he opposed. Instead of arresting them, now he would secretly harass and suppress them. He described his new plan to the president and all top members of his administration that day.

  Hoover told the assembled officials at that National Security Council meeting that he would now use every means available to pursue and disrupt the CPUSA. As James Kirkpatrick Davis, the first writer to reveal what transpired at this meeting, wrote, “he failed to mention that many of the means he had in mind had already been in use for some time” and that the communist “menace” no longer existed.

  Eisenhower asked him to explain the counterterrorism techniques he planned to use, and Hoover responded, “Sometimes it is necessary to make a surreptitious entry where on occasion we have photographed secret communist records and other data of great use to our security.” Additional counterintelligence methods that he listed included safecracking, mail interception, telephone surveillance, microphone plants, trash inspection, infiltration, and IRS investigations. In short, he said, “every means available to secure information and evidence.”