Enemies

by Tim Weiner

  The majority in Olmstead had ruled that the government was within its rights: “A standard which would forbid the reception of evidence, if obtained by other than nice ethical conduct by government officials, would make society suffer and give criminals greater immunity than has been known heretofore.”

  The minority, led by Justice Louis Brandeis and Hoover’s old boss, Justice Harlan Fiske Stone, had issued a powerful dissent. Brandeis warned: “The greatest dangers to liberty lie in insidious encroachments by men of zeal, well-meaning but without understanding.”

  “Crime is contagious,” Brandeis wrote. “If the government becomes a law-breaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution.”

  Brandeis compared wiretapping and bugging to the “writs of assistance” and “general warrants” that the British had used to search the homes of American colonists before the war of independence that created the United States: “As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared to wiretapping.” And he shrewdly pointed out that one wiretap was in effect infinite: “Tapping of one man’s telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him.” Hoover’s men knew that well.

  Six years after Olmstead, in 1934, Congress passed the Communications Act, a law banning the interception of telephone calls and the disclosure of their contents. The lawmakers thought they had made wiretaps a crime. But they had left Hoover a loophole. He interpreted “disclosure” in a lawyerly way: wiretapping was not illegal if the information was not used as evidence in court. Therefore, if it was secret, it was legal. The FBI thenceforth used wiretaps whenever Hoover authorized it. Wiretapping, bugging, and break-ins became a holy trinity for FBI intelligence operations from the 1930s onward. Hoover believed that they were essential tools for protecting the United States against spies and saboteurs. President Roosevelt knew such methods were standard practice in the game of nations.

  At the highest levels of power in Washington, an awareness dawned that Hoover might be listening to private conversations. This sense that the FBI was omnipresent was its own kind of power. In a 1936 investigation into the suspected leaking of Supreme Court decisions, the FBI tapped the home telephone of a court clerk. Chief Justice Charles Evans Hughes suspected that Hoover had wired the conference room where the justices met to decide cases. If you had to watch what you said in the chambers of the Supreme Court, times had changed.

  “HOW UNPREPARED WE ARE”

  In 1937, Hoover began to understand that his FBI was no match for an experienced foreign espionage service. He saw—too late, to his sorrow—that the Soviets, the Germans, and the Japanese had been spying for years on America’s shipyards, aircraft plants, military bases, and maneuvers in the Atlantic and Pacific oceans.

  His understanding came through the work of military code breakers. The army’s Signal Intelligence Service was working on stealing radio communications from abroad. The navy had been trying to crack Japan’s military codes and ciphers, with a weather eye on a potential attack in the Pacific; they had an under-the-table agreement with RCA, the Radio Corporation of America, to receive copies of Japanese cable traffic.

  The navy’s intermittently successful efforts led the FBI to arrest the first American tried and convicted for espionage since World War I. The investigation started when a navy cryptanalyst, Aggie Driscoll, stared at an odd word in a Japanese radio message: “TO-MI-MU-RA.” The word mura means “town,” but it also can mean “son.” Thinking out loud, she heard the name “Thompson.” Her insight led to the FBI’s arrest of Harry Thompson, a former navy yeoman and a spy for Commander Toshio Miyazaki, a Japanese Imperial Navy officer studying English in California. Thompson had sold top secret weapons and naval engineering data to Japan.

  Broken codes also led to the conviction of John Farnsworth, a Naval Academy graduate, a former lieutenant commander, and a desperate alcoholic who had been dismissed for misconduct. Farnsworth was hanging around navy bases up and down the Pacific Coast, flashing wads of cash, picking up bar tabs, and asking old shipmates about codes, weapons, and warship designs. The navy turned the case over to the FBI. In 1937, Farnsworth was arrested, tried, and convicted of selling secrets to Japan for $20,000.

  These cases paled in comparison to the FBI’s first great international espionage investigation: the Rumrich case.

  “NAZI SPIES IN AMERICA”

  On Valentine’s Day, February 14, 1938, Hoover was on vacation in Miami. He was mourning the death of his mother, with whom he had lived all his life. He was forty-three years old and looking for a new home. He was also about to publish his first book, Persons in Hiding, a ghostwritten rehash of some of the FBI’s gang-busting stories. When he first heard about the arrest of Guenther Rumrich, in a telephone call from headquarters, Hoover had deep doubts about the facts of the case. The story was far stranger than his crime-fighting yarns.

  A senior British intelligence officer, Guy Liddell, had warned the U.S. Embassy in London about a Nazi spy ring in the United States. A few days later, a clerk at the State Department’s passport office in New York answered the telephone. The caller said he was Cordell Hull, the secretary of state. He ordered the clerk to deliver thirty-five blank passports to the McAlpin Hotel in Manhattan.

  The New York police arrested Guenther Rumrich when he picked up the package of passports. They searched his room and found a note describing a plot to steal the American military’s plans to defend the Atlantic Coast.

  Rumrich, the weak-chinned son of an Austrian diplomat, was twenty-six, an American citizen, AWOL from the U.S. Army—and, as he freely confessed, a spy for the German military intelligence service, the Abwehr.

  Hoover assigned a star FBI agent, Leon Turrou, to the investigation. He had one of the highest profiles of any of Hoover’s men; he had cultivated newspaper reporters all over New York. He saw the Rumrich case as a path to fame and fortune. In April 1938, while Turrou was supposed to be preparing for the presentation of the case to a federal grand jury in New York, he was meeting at night with a newspaper reporter, readying a series of first-person stories to be serialized in the New York Post and published in a heroic (and half-invented) true-crime adventure book entitled Nazi Spies in America.

  Turrou had learned that the German espionage operation had run free in the United States for years; some of its members had been stealing American military technologies since 1927. Their leader was Dr. Ignatz Griebl, a physician in Manhattan, a public figure who ran an openly pro-Nazi political group called the Friends of New Germany. Within two months, with help from Rumrich, the FBI had identified eighteen members of the ring, both Germans and Americans, who had stolen the blueprints and specifications for a new generation of American warplanes and destroyers. The ring also distributed funds from Berlin to the ever-growing German-American Bund and members of American Nazi militias, whose numbers now ran into the tens of thousands.

  It could have made a great movie. But Turrou made a mistake. He told every one of the eighteen members of the Abwehr spy ring that they would be subpoenaed to appear before a grand jury on May 5, 1938. Fourteen of them immediately fled the United States, some stowing away on German passenger ships whose captains and stewards were German intelligence agents. Rumrich, who had pleaded guilty in a bargain with the government, remained in New York along with three relatively minor co-conspirators. Dr. Griebl of the Abwehr turned up in Berlin—where, as the head of the FBI’s New York office ruefully noted in a letter to Hoover, he and his fellow spies “probably have laughed time and again at our efforts in connection with the instant case.” The case was all but destroyed. When Turrou took the stand at the trial of the remaining suspects,
he was painted as a pathological liar.

  The case made the FBI a laughingstock. That was Hoover’s greatest fear.

  “THE UTMOST DEGREE OF SECRECY”

  The Japanese and the Germans were not the only foreign intelligence services spying on America. By the time Rumrich entered prison for a two-year sentence, a Soviet intelligence agent named Mikhail Gorin was arrested in Los Angeles. In the first case of its kind, the Soviets stood accused of recruiting a spy within the American military. The mole worked for the Office of Naval Intelligence—Hoover’s best source for the secrets of foreign espionage.

  President Roosevelt expressed outrage. He reflected on “how unprepared we are to cope with this business of spying which goes on in our country.” The president said: “Only by reinforcement of our intelligence services can we successfully combat the activities of foreign agents.”

  On October 14, 1938, Hoover gave the president and the attorney general a bold proposal to create an immense intelligence service under his control. His plans were an awesomely ambitious grasp for power in a nation where few were prepared for the next war.

  Hoover had 587 agents in the FBI. He proposed to hire 5,000 more. He would take over the immigration and customs services. He would run the Federal Communications Commission, which controlled the national and international networks of radio, cable, and telegraph systems. He would be responsible for the security of every factory holding a government contract and every military research facility. He would oversee the issuance of passports and visas by the State Department. He would have the power to investigate anyone in the United States suspected as a foreign agent.

  He proposed that all this should be done in secret, by presidential fiat.

  “The utmost degree of secrecy” was required “for the expansion of the present structure of intelligence work,” Hoover wrote in a memorandum to the president on October 20, 1938. The goal was “to avoid criticism or objections which might be raised to such an expansion.”

  Espionage was “a word that has been repugnant to the American people,” Hoover continued. “Consequently, it would seem undesirable to seek any special legislation which would draw attention to the fact that it was proposed to develop a special counter-espionage drive of any great magnitude.”

  On November 2, 1938, the president called Hoover to the White House. Once again, the only record of the conversation is Hoover’s secret memorandum. It read: “He stated that he had approved the plan which I had prepared.”

  But Hoover found that secrecy could cut both ways in the exercise of power.

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  THE JUGGLER

  AS WAS OFTEN the case when Franklin D. Roosevelt issued secret orders in the White House, there was a catch.

  “You know I am a juggler, and I never let my right hand know what my left hand does,” FDR once said of his strategies in statecraft. “I may have one policy for Europe and one diametrically opposite for North and South America. I may be entirely inconsistent, and furthermore I am perfectly willing to mislead and tell untruths if it will help win the war.”

  The president told no one that he had “approved the plan” Hoover had proposed for a gigantic increase in the power of the FBI. Nor did the president give Hoover the money or the people he requested. FDR did reach into his secret cache of White House funds to give Hoover $600,000 under the table, a 10 percent increase over the FBI budget authorized by Congress. With this small windfall, Hoover began hiring 140 new special agents, roughly 4,860 men short of the force he sought.

  But after months of struggle, Hoover won a new presidential order, giving him a measure of the authority he desired. He had to use all his powers of persuasion on the president and a new attorney general, Frank Murphy, whose tenure began in January 1939. Murphy was the eighth attorney general whom Hoover had served; the director was by now skilled at telling a new boss what he thought he wanted to hear. Murphy had a civil liberties streak; Hoover had to persuade him that the FBI’s control over intelligence work was crucial to avoid the chaos and unconstitutional conduct that had characterized the Red raids of old.

  On June 26, 1939, FDR issued a secret directive placing the FBI, army intelligence, and navy intelligence jointly in charge of all espionage, counterespionage, and sabotage investigations. Hoover and his military counterparts would meet weekly at the FBI to coordinate their work, with a senior State Department officer sitting in as a consultant. Their conference became known as the Interdepartmental Intelligence Committee; Hoover was its permanent chairman, since military chiefs came and went on two-year rotations. The directive made Hoover an American intelligence czar as World War II enveloped Europe.

  The war exploded before summer ended. On September 1, 1939, Hitler’s armies invaded Poland and began their war of conquest. Two days later, France and Great Britain declared war on Germany. Hitler and Stalin had already signed their nonaggression pact; to the shock of most of the leftists and liberals in America, the Communists in Moscow had made their peace with the Nazis in Berlin. Their concord freed Germany to attack eastward in Europe without fear of the Red Army.

  The Nazis would soon drive west toward the Atlantic. Japan had rampaged through China and would seek a wider war in the Pacific. No one knew if or when the war might come for the United States.

  FDR formally declared American neutrality. But from September 1939 onward he set out to support the British by delivering warships and sharing intelligence, to counter Axis spying and subversion in the United States, to try to divine what the Soviets would do next—and to keep a close eye on his enemies at home, with help from J. Edgar Hoover.

  The relationship between the president and the director was by now growing into one of trust. It was founded on a mutual understanding of their respective powers. Hoover had a reverential respect for the presidency. Though not every authority he sought would be granted by the president, Roosevelt gave him plenty, and he was grateful for what he had received. FDR had a high regard for clandestine intelligence. Though not every secret he sought would be revealed by spying, he was greatly pleased when Hoover could provide them.

  To Hoover’s immense satisfaction, on September 6, 1939, five days after the start of the war in Europe, FDR issued a public statement to the American people. Expanding on his earlier secret order, the president said the FBI would “take charge of investigative work in matters relating to espionage.” He ordered every law enforcement officer in the United States to give the FBI “any information obtained by them relating to espionage, counterespionage, sabotage, subversive activities and violations of the neutrality law.” FDR said he wanted “to protect this country against … some of the things that happened over here in 1914 and 1915 and 1916 and the beginning of 1917, before we got into the war.”

  Everyone in power—the president, the justices of the Supreme Court, the attorney general and his inner circle, and Hoover himself—remembered the Black Tom explosion of 1916. They hadn’t forgotten the Red raids of 1920. But this time, Attorney General Murphy reassured the nation, America’s civil liberties were in good hands.

  “Twenty years ago inhuman and cruel things were done in the name of justice,” he told the press. “We do not want such things done today, for the work has now been localized in the FBI.” Murphy said: “I do not believe that a democracy must necessarily become something other than a democracy to protect its national interests. I am convinced that if the job is done right—if the defense against internal aggression is carefully prepared—our people need not suffer the tragic things that have happened elsewhere in the world and that we have seen, even in lesser degrees, in this land of freedom. We can prevent and publish the abuse of liberty by sabotage, disorder and violence without destroying liberty itself.”

  “DISASTROUS CATASTROPHES”

  Hoover had no time for sentimental statements about civil liberties. He was already at war, and he required three new weapons in his arsenal.

  First, Hoover wanted stronger laws against subversion. He had wanted them f
or twenty years. He got them. Congressional hearings had already begun on the statute that would ultimately be known as the Smith Act. It was aimed, initially, at the fingerprinting and registration of aliens. By the time it passed, it had grown to become the first peacetime law against sedition in America since the eighteenth century. The Smith Act included the toughest federal restrictions on free speech in American history: it outlawed words and thoughts aimed at overthrowing the government, and it made membership in any organization with that intent a federal crime.

  Second, Hoover revived and strengthened the practice of maintaining a list of potential enemies to be arrested and detained when war came. The mechanics of making the list closely resembled the work that Hoover had done at the Alien Enemy Bureau during World War I.

  On December 6, 1939, Hoover signed a “personal and confidential” order to every FBI agent under his command, headlined “Internal Security.” It ordered them to prepare a list of people—Americans and aliens alike—who should be locked up in the name of national security. Hoover had in mind Communists and socialists, fascist followers of Hitler, “pro-Japanese” people, and anyone else his men thought capable of fighting political warfare. He wanted the names of the enemies of the state. The compilation of the list was called the Custodial Detention Program.

  Third, Hoover wanted to wiretap at will. But a new and seemingly insurmountable obstacle lay in his way. On December 11, 1939, the Supreme Court, reversing itself, said that government wiretapping was illegal.

  United States v. Nardone pitted the government against gangsters. The evidence rested heavily on the transcripts of five hundred tapped telephone calls. The defense lawyers looked to the Communications Act of 1934, which banned the disclosure of wiretapped conversations. The Supreme Court had ruled that the law was clear: its “plain words … forbid anyone … to intercept a telephone message, and direct in equally clear language that ‘no person’ shall divulge or publish the message or its substance to ‘any person.’ ”