by Tim Weiner
Truths eventually came out. The Harding administration, from the top down, had been led by men who worshipped money and business, disdained government and law, and misled the American people. The secretary of the interior, Albert Fall, had taken some $300,000 in bribes from oil companies; in exchange, he let them tap the navy’s strategic oil reserves in Elk Hills, California, and Teapot Dome, Wyoming. The Justice Department had gotten wind of the scandal but had quashed an investigation. There was more: the head of the newly created Veterans Bureau, Charles Forbes, a poker-playing pal of Harding’s, had pocketed millions in kickbacks from contractors. A Justice Department official, Thomas Miller, had banked bribes from corporations trying to free seized assets—and, years later, the evidence showed that Attorney General Daugherty had gotten at least $40,000 of the swag.
When Senator Wheeler announced that he and his colleagues had been the targets of the Bureau’s spies, the political outrage was sharp, and the public shared it. On March 1, 1924, the Senate resolved to investigate the Department of Justice. John H. W. Crim, the chief of the Criminal Division, was a willing witness. He was about to retire after eighteen years at Justice, including a stint at the Bureau. His advice to the Senate was blunt: “Get rid of this Bureau of Investigation as organized.”
The senators subpoenaed Daugherty, demanding the Bureau’s internal records. Daugherty defied the order, and that was his undoing. It took weeks of pressure, but on March 28, President Coolidge announced that the attorney general was resigning. Daugherty eventually was indicted for fraud, but he avoided jail after two juries deadlocked. He escaped conviction by the grace of the Fifth Amendment’s constitutional safeguards against self-incrimination.
President Coolidge named his new attorney general: Harlan Fiske Stone, the longtime dean of the Columbia Law School, a pillar of legal scholarship, and a friend to Coolidge since college. Stone was not a liberal, by his own standards, but he stood foursquare in favor of civil liberties. He had been a pointed critic of the 1920 Red raids. He had urged the Senate to investigate the arrests and deportations of the radicals as an assault on the law and the Constitution.
Stone was sworn in on April 8, 1924, and he spent the next month walking the corridors of the Justice Department, talking to people and taking notes. Those notes show that he found the Bureau of Investigation “in exceedingly bad odor … filled with men with bad records … many convicted of crimes … organization lawless … many activities without any authority in federal statutes … agents engaged in many practices which are brutal and tyrannical in the extreme.”
On May 9, Stone fired William J. Burns as director of the Bureau of Investigation. He then issued a public statement whose power resounds to this day:
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 which are not always quickly comprehended or understood. The enormous expansion of Federal legislation, both civil and criminal, has made the 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. Within them it should rightly be a terror to the wrongdoer.
On May 10, Harlan Fiske Stone summoned J. Edgar Hoover, second in command of the lawless Bureau. Still seven months shy of thirty, his hair slicked back, thick neck straining at his tight shirt collar, Hoover looked up at Stone, who stood a head taller at six foot four. Stone looked down, with steely eyes under thick gray brows. He told Hoover that he was on trial.
For the time being, Stone said, Hoover would serve on an interim basis as the acting director of the Bureau of Investigation. Hoover was to report directly to Stone. And the rules of the game were going to change.
The Bureau would only investigate violations of federal law. The political hacks and the blackmailers were to be fired forthwith. No more midnight break-ins at the Capitol. No more cloak-and-dagger work. No more mass arrests. The Bureau would no longer be an instrument of political warfare. It was out of the spy business.
Hoover said yes, sir.
Stone made his terms plain and he made them public. He was in no hurry, he told the press. He was putting Hoover to the test. He wanted just the right man for the job. And until he found that man, he would run the Bureau himself.
Harlan Fiske Stone stayed on for nine months before ascending to the Supreme Court. Hoover lasted forty-eight years.
7
“THEY NEVER STOPPED WATCHING US”
THE SURVIVAL OF the Bureau—and its revival as a secret intelligence service—depended on Hoover’s political cunning, his stoic patience, his iron will. In time, the man became the institution. They would withstand every political storm for the rest of his life. He never lost his faith that the fate of the nation lay with him and his work. And he never took his eyes off his enemies.
While Hoover was still on probation as acting director of the Bureau, Attorney General Stone heard a warning from a friendly acquaintance, Roger Baldwin, the head of the American Civil Liberties Union (ACLU). Baldwin was an American aristocrat who traced his roots three hundred years back to the Mayflower; he had been investigated by the Bureau for political subversion and imprisoned for resisting the draft in World War I. The ACLU itself was created in 1920 chiefly to defend the constitutional rights of people prosecuted under the espionage and sedition laws.
Baldwin urged Stone to study a new ACLU report, “The Nation-Wide Spy System Centering in the Department of Justice.” It accused the Bureau of wiretapping, opening first-class mail, bugging, burglaries, political blacklisting, and spying on lawful organizations and individuals. The ACLU said the Bureau had become “a secret police system of a political character.” It noted that Hoover’s files were the fuel for the espionage machine—the General Intelligence Division, and its predecessor, the Radical Division, had driven the Bureau’s spying operations since 1919.
Stone read the report with intense interest. It described precisely the kind of conduct he had forsworn. He handed it to Hoover and asked him what he thought.
Hoover’s future depended on the skill of his scalding seven-page rebuttal. He insisted that the Bureau had investigated only “ultra-radical” people and groups breaking federal laws. Many if not most were “charged with activities inimical to our institutions and government.” The Bureau’s work since 1919 had been “perfectly proper and legal.” It had never wiretapped or burglarized anyone. “The Bureau has very rigid rules on matters of this kind,” he wrote. The ACLU, for its part, was “consistently and continually advocating … on the part of the communistic element,” taking civil liberty as criminal license. One week later, on August 7, 1924, Hoover, Baldwin, and Stone sat down for a conversation at the Justice Department. Hoover did most of the talking, as was his custom when confronted with a conversation that posed the potential for trouble. He maintained, as he did all his life, that he was not a willing participant in the Red raids. He assured Baldwin that the days of political espionage were over. He said the General Intelligence Division would be shut down—though he would keep its files unless Congress ordered him to burn them—and the Bureau would stick to the investigation of violations of federal law. He renounced his own past. He was utterly convincing. “I think we were wrong,” Baldwin wrote to Stone a few days later. He told reporters that Hoover was the right man for the job. Hoover responded with a gracious thank-you note. It was his goal, he wrote, “to leave my desk each day with the knowledge that I have in no way violated the rights of the citizens of this country.”<
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The FBI kept right on infiltrating the ACLU throughout these exchanges of pleasantries, and in the months and years thereafter. In the fall of 1924, the Bureau maintained a spy on the ACLU’s executive board, purloined the minutes of its meetings in Los Angeles, and kept tabs on its donor lists. Seven weeks after his cordial meeting with Baldwin, Hoover was receiving new and detailed reports on the ACLU board’s legal strategies. His files grew to include dossiers on the group’s leaders and prominent supporters, among them one of the world’s most famous women, the deaf and blind Helen Keller. Hers became one file among thousands in the FBI’s unique history of the American civil-liberties movement.
“We never knew about the way that Hoover’s FBI kept track of us,” Baldwin said half a century later. “They never stopped watching us.”
Nor did Hoover abolish the General Intelligence Division. On paper, the division disappeared. But its lifeblood, the files, remained. To preserve their secrecy, Hoover created an entirely new record-keeping system called “Official and Confidential.” These documents were kept under his control. In theory, the Bureau’s centralized records belonged to the Justice Department. They were vulnerable to discovery in the courts or subpoena by Congress. The “Official and Confidential” files maintained by Hoover were his and his alone. For fifty years they remained his inviolate cache of secrets. His power to spy on subversives depended on secrecy, not publicity. Confidential files were far better than blaring headlines. Despite the dangers of discovery, Hoover and the Bureau maintained surveillance over America’s Communists.
“SEE THAT EVERY SECRECY IS MAINTAINED”
Attorney General Stone had told Hoover to stick to law enforcement. He had asked Hoover more than once what federal laws made communism illegal. There were none. “The activities of the Communists and other ultra-radicals have not up to the present time constituted a violation of the federal statutes,” Hoover wrote on October 18, 1924. “Consequently, the Department of Justice, theoretically, has no right to investigate such activities.”
The Bureau of Investigation had no authority to conduct political warfare. The Espionage Act of World War I was null and void now that the war was over. The remaining federal sedition law, dating from the Civil War, required proof of a plan to use violence to overthrow the government. The Bureau never had been able to prove to the satisfaction of any court that American Communists conspired to that end. An even older law, the Logan Act of 1790, outlawed the communication of hostile conspiracies between Americans and a foreign country. Communists in the United States clearly communicated with Moscow. But Congress never had voted to grant the Soviet Union diplomatic recognition—it was not a country, in the eyes of American law—so the Logan Act was out. Hoover had no law to enforce. He had bent his authority to the limits and beyond in the realm of anticommunism.
Yet he had met the attorney general’s standards. On December 10, 1924, Stone said he had passed the test. Hoover would become the director of the Bureau of Investigation.
Remarkably, that same week, Hoover found a legal basis for secret intelligence investigations of the American Left. It lay buried in an eight-year-old Justice Department budget authorization bill. In 1916, the Wilson administration, newly vigilant against foreign diplomats engaged in espionage, had started using the Bureau’s agents to eavesdrop on the German embassy. The administration had slipped a line into the Justice Department budget giving the Bureau the power to investigate “official matters under the control of the Department of Justice and the Department of State” [emphasis added]. The bill became law and its provisions remained. When the Senate held hearings on the question of Soviet recognition in 1924, Secretary of State Charles Evans Hughes asked Hoover to prepare a report on Moscow’s influence over American Communists. Hoover responded with nearly five hundred pages detailing his belief that Soviet communism sought to infiltrate every aspect of American life.
He maintained that the continuing diplomatic and political controversy gave him license to investigate communism in the United States. Hoover made that fragment of a sentence the foundation of his secret intelligence service.
Harlan Fiske Stone now ascended to the Supreme Court, where he served for the rest of his life, ending his days as chief justice. He watched over Hoover, and the new director knew it. To that end, Hoover hewed to Stone’s edicts. He had to avoid the barest hint of lawbreaking if he wanted to rebuild the Bureau from the rubble bequeathed to him. “This Bureau cannot afford to have a public scandal visited upon it,” Hoover wrote in a “personal and confidential” message sent to all special agents in May 1925. “What I am trying to do is to protect the force of the Bureau of Investigation from outside criticism and from bringing the Bureau of Investigation into disrepute.”
He fired crooks and incompetents, cutting his forces until he had fewer than three hundred trustworthy special agents. He banned drinking on and off the job in light of the Prohibition laws. In time, he instituted uniform crime reports, constructed a modern criminal laboratory, built a training academy, and assembled a national fingerprint file. And for the next decade, he kept his spying operations small and tightly focused.
The risks of being caught spying on Americans were great. Hoover ran them; the risks of not spying seemed greater. Throughout the rest of the 1920s, Hoover and the Bureau tracked the work of American Communists with the help of paid informers, Party defectors, police detectives, and State Department officials.
Hoover investigated the national movement to stop the 1927 execution of the Italian anarchists Sacco and Vanzetti. Their murder conviction was seen as a frame-up by liberals across the country, chief among them Hoover’s old nemesis Felix Frankfurter, who had fought Hoover face-to-face during the Deer Island deportations. He instructed his agents to “keep fully informed” on the local Sacco and Vanzetti defense committees and to “keep me advised”—but to “see that every secrecy is maintained.” Hoover had always suspected that Italian anarchists had carried out the 1920 terrorist bombings that targeted American leaders and left Wall Street running in blood. But he was never able to prove it; the cases remained forever open.
Hoover spied on William Z. Foster, the Communist Party’s perennial presidential candidate, the Comintern’s favorite American labor organizer, and the head of the Party’s Trade Union Educational League. FBI files from 1927, detailing secret meetings of Communist Party leaders in Chicago and New York, reported on the Reds’ resolve to redouble recruitments and burrow into the ranks of the American Federation of Labor. Hoover told his most trusted confidant at the State Department that Communists controlled “the entire membership of all New York unions” and conspired “to take over the executive power of the unions in this country.” He went on high alert when Foster and his followers traveled to Moscow in May 1929. He took note when Stalin directly addressed the American delegation, and he kept the file on hand for the rest of his days.
“The moment is not far off when a revolutionary crisis will develop in America,” Stalin said. “Every effort and every means must be employed in preparing for that, comrades.”
The crisis came quickly. It began with the Wall Street crash in November 1929, it grew mightily with the Great Depression, and it lasted until World War II.
8
RED FLAGS
“THE WORKERS OF this country look upon the Soviet Union as their country, is that right?” Congressman Hamilton Fish of New York asked the American Communist leader William Z. Foster. “They look upon the Soviet flag as their flag?”
“The workers of this country,” Foster said, “have only one flag and that is the red flag.”
The ruins created by the Great Depression provided cornerstones for the Communist movement. Roughly eight million people lost their jobs in 1930. Thousands of banks failed. One-quarter of the nation’s factory lines stopped. President Herbert Hoover seemed unwilling or unable to act. Congress did little or nothing to help. The Communist Party of the United States, despite vicious internal battles, began to b
uild significant support among labor unions and unemployed workers.
Congress responded with its first formal investigation of American communism in 1930. The House Committee to Investigate Communist Activities was a long-running spectacle, but not a success. The congressional investigators were befouled from the start by forged documents, fake evidence, and grandstanding witnesses.
J. Edgar Hoover tried to keep his distance from the public crusade led by Congressman Fish, a cantankerous Republican who represented Franklin D. Roosevelt’s home district in New York State. But he did agree to testify before the investigative committee, and he shared some of his voluminous files on American radicals. Hoover issued a pointed warning about the power of Communist propaganda, which he called a new instrument of warfare for an armed conflict between workers and bosses, a class struggle that could threaten the shaky foundations of American capitalism.
But he said the Bureau could not attack American Communists unless Congress once again outlawed revolutionary words. He wanted federal laws to make communism itself a crime.
In 1931, as the misery of the Great Depression spread and protests against the government grew, Congressman Fish ended his hearings in a state of rage. He had concluded that “no department of our government had any authority or funds from Congress to investigate Communism, and no department of the government, particularly the Department of Justice, knew anything about the revolutionary activities of the Communists in the United States. We have about 100,000 Communists in New York, and if they were so minded, they could raid the White House and kidnap the President, and no department of the government would know anything about it until they read it in the newspapers the next day.”
But Congress gave Hoover no fresh ammunition for the war on communism; nor did the Supreme Court. The new chief justice, Charles Evans Hughes, the former secretary of state, was from the progressive wing of the Republican Party. He held that even Communists had constitutional civil liberties. The chief justice wrote a majority opinion overturning the California conviction of Yetta Stromberg, a nineteen-year-old counselor in a Communist Party summer camp who was sentenced to five years in prison for raising a red flag each morning. The Court said her conviction violated the Constitution and the Bill of Rights. The red flag could be waved freely in America.
