The FBI in Our Open Society
Despite its broad title, this is a very narrow book. It has two themes: (1) All criticism of the FBI to date has been largely based on a distortion of the record. (2) In the opinion of the Overstreets, no criticism of the FBI is warranted. The development of these themes reveals that the Overstreets, themselves are capable of considerable distortion, and that they know very little about the FBI.
Almost half of the book is devoted to demolishing the FBI’s critics. The style of the attack is sufficiently shown by the treatment given, on a single subject, to two of them—Max Lowenthal and Fred J. Cook—each of whom is the subject of a separate chapter and of running fire throughout. Lowenthal’s The Federal Bureau of Investigation, first published in 1950, was the first comprehensive criticism of the FBI. Cook’s the The FBI Nobody Knows, published in 1964, was the second. Neither could be described as an objective study. Both contain distortions beyond the “reasonable margin for error” which the Overstreets would “grant to any author who copes with a host of details.”
All three books begin their accounts of the FBI by exploring its origin. The originator, all agree, was Theodore Roosevelt’s Attorney General Charles Bonaparte (grandson of Emperor Napoleon’s brother). In his 1907 report to Congress he complained that the Department of Justice had “no permanent detective force,” being obliged to borrow special agents from the Secret Service Division of the Treasury Department. Although the 1870 statute creating the Department of Justice gave him ample authority to create such a force without additional legislation, he repeated his complaint in his testimony before a subcommittee of the House Appropriations Committee of the Sixtieth Congress in 1908, and again in 1909.
The subcommittee was more interested in his existing arrangements than in his proposals. The Secret Service Division had much earlier been subjected to criticism for its role in investigating the amorous adventures of a Navy officer on leave and, more to the point, for airing unsustained charges that a Congressman had tampered with an appropriation bill. As a consequence, its appropriations had for some time been granted expressly for the detection and punishment of counterfeiting and violating pay and bounty laws—with protection of the President added in 1907—“and for no other purpose whatever.”
It seemed to the subcommittee that the use of Secret Service agents by other Departments for other purposes violated this attempt by Congress to control their use. Accordingly, it recommended and Congress adopted a new limitation in the 1908 and 1909 appropriation acts forbidding other Departments to use appropriated funds to pay Secret Service agents from the Treasury Department. In the course of House debates on this matter only Appropriations Committee Chairman Tawney opposed a permanent detective force for the Department of Justice. But other Congressmen, including most of the members of the subcommittee, expressed their opposition to a “Federal secret police,” to a “general system of spying upon and espionage of the people such as has prevailed in Russia, in France under the empire, and at one time in Ireland,” to a “central police or spy system in the Federal government,” and to “a great central secret-service bureau as there is in Russia.” But they conceded the necessity for “some detective force in the enforcement of the criminal laws,” to “detect criminals,” and “to detect crimes against the United States and frauds upon the Government.” A Senate Committee also reported against a “spy system,” but conceded that the Justice Department should have a force of agents to investigate “violations of law.”
President Roosevelt responded in typical fashion by charging in his annual message to Congress that the limitation would benefit only “the criminal classes,” that the “chief argument in favor of this provision was that Congressmen did not themselves wish to be investigated by secret-service men,” that “the work of the secret-service agents was partly responsible for the indictment and conviction of a Senator and a Congressman for land frauds in Oregon,” that he did not believe “that it is in the the public interest to protect criminals in any branch of the public service,” but that if Congress disagreed “a special exception could be made in the law prohibiting the use of a secret-service force in investigating members of Congress.” But before this message was delivered, Attorney General Bonaparte had established his own force of “special agents,” announcing that the limitation in the 1908 appropriation act made such action “involuntary on the part of this department.”
During the 1909 hearings on appropriations for 1910, although showing some testiness about Bonaparte’s characterization of his action as “involuntary,” the subcommittee did not challenge his authority to establish his own force. Rather, it wrung from him the reluctant admission that his Department had not been materially hampered by the denial of access to Secret Service agents, that there should not be “a secret political service in this country,” and that the functions of his agents should be confined to “frauds and crimes and the like against the Government.” Members of the subcommittee also expressed the views that “an instrument so dangerous should never be given to an executive unless safeguarded in every way possible against abuse,” and that they should guard against a detective force used “for the ascertainment of matters of scandal and gossip” and a “system of espionage that looks to keeping the heads of the departments thoroughly informed of the actions and habits and whereabouts of every employee.”
Subcommittee members sought for some suggestion from Bonaparte of a “provision that could be adopted as part of the permanent law of the land that should restrict the activities of a detective force to what we might all agree should be its legitimate lines.” But he responded that “any restriction which limits the scope of the employment of a force of this character would tend to the advantage of lawbreakers,” and that Congress should be content to have the detective force under central supervision by the Attorney General who would be “directly responsible for any abuse that may come to light.” The subcommittee was not satisfied, but the best it could do was to confine Justice Department appropriations not otherwise limited to sums for “investigation and prosecution of frauds” and “detection and prosecution of crimes.” Even these efforts were shortlived. By 1911 sums were also appropriated “for such other investigations regarding official matters under the control of the Department of Justice as may be directed by the Attorney General.”
Lowenthal reports that what is now the FBI was first requested by Bonaparte in 1907, that “authorization of the Bureau was withheld by the Sixtieth Congress in 1908,” and that the “grounds for opposition were expressed in Congressional debates and committee hearings on the subject and in the comments of the press.” He then summarizes, quite accurately, what was said in the debates and hearings. An account of the prohibition on use of Secret Service agents is followed by the statement: “Thus the Sixtieth Congress made doubly clear its intention that the Attorney General should not employ detectives.” That is a distortion. The question whether the Attorney General should employ his own detectives was never before the Sixtieth Congress. Lowenthal is much more accurate when he later refers to the “fear expressed during the Sixtieth Congress” that “the newly established Federal police force at the Department of Justice might some day adopt practices habitual to political police systems in Europe but abhorrent to a democracy.”
Cook pushes matters a bit further. In his view, the Bureau was “created in secrecy, by executive order, in defiance of the will of Congress” and he has Bonaparte “called upon to explain his conduct” in the hearings on the 1910 appropriations and giving explanations which “enraged the legislators further.” The Overstreets rightly complain of these distortions, but then contribute their own: “The passages [in debates and hearings] from which Lowenthal quotes were all directed against the use of the Secret Service as a central or general source of investigative manpower. No one of them expressed opposition to the type of departmental force that Bonaparte wanted to establish.” Later they get so far carried away in their denunciation of Cook that they are able to detect a nonexistent suggestion in a passage of testimony “that Congress, in May 1908, may simply have taken it for granted that its ending of the use of the Secret Service was equivalent to its authorizing Bonaparte’s ‘permanent detective force.”’
Since in a court of law “a show of bias disqualified a witness,” Lowenthal’s book, according to the Overstreets, should “be stricken from the record.” Cook, whose book should presumably meet the same fate, is also guilty of violating “normal rules of evidence” in reporting what he was told by a former FBI agent who was similarly “disqualified” for bias. These observations suggest the inadequacies of the Overstreets’ book. First, this is not so: witnesses are not disqualified for bias, although evidence of their bias is admissible to aid the court or jury in evaluating their testimony. (Cook does disclose that his informant had resigned from the FBI, had unsuccessfully sought reappointment a month later, and that the FBI thereafter asserted that reappointment had been denied “because his former record was substandard.” Cook also wrote that “it had been naive for [him] to suppose that, once he had resigned, he would ever be reinstated.” This statement provoked the Overstreets to what was apparently their only direct communication with J. Edgar Hoover, which elicited the advice that in the past some agents who had “resigned for personal reasons” had been reinstated.) Secondly, their own book is permeated by an equally heavy bias, albeit of an opposite slant.
Both of these shortcomings are apparent in the Overstreets’ own appraisal of the FBI. On topical issues they are generously uninformed but convinced that all criticism of the FBI is unfounded, and they are usually able to prove their points by the testimony of the one witness who apparently is not disqualified for bias—J. Edgar Hoover.
The FBI has been criticized for maintaining political dossiers on citizens which doubtless contain much malicious falsehood and gossip—just as members of the Sixtieth Congress feared. In part this charge is based on the FBI’s functions under the federal loyalty-security program under which the FBI collects information and accusations about executive employees and applicants for employment. Here the Overstreets counter with Hoover’s “repeated” assurances that “those who investigate must not evaluate” and add their own assurance that “what is received becomes just so much inert matter in the file unless there is a specific reason, dictated by some federal law, to make a checkup on its truth or falsity.” Perhaps the Overstreets may be forgiven for not knowing that the very process of investigation pursued by the FBI contains a built-in evaluation of what goes into the files. Perhaps they have not been interviewed by FBI agents about government employees or prospective employees and do not know that the quickest way to terminate the interview is to make clear to the agent that you have only favorable things to say about the subject. (In my experience this has even been true in instances where I knew—though perhaps the agent interviewing me did not—that the files already contained adverse comments from others about the subject.) FBI interviewers are interested only in collecting “derogatory” information.