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.
But the Overstreets can hardly be forgiven for not knowing that the information in the files does not remain “inert” when J. Edgar Hoover decides to make a speech or write an article or a book. Then the files are exhumed and their contents offered by the Director as the unvarnished truth. For instance, in Hoover’s Masters of Deceit (1958) the reader is offered case histories taken from FBI interviews of “many hundreds of [Communist] Party members,” is let in on what former Party members “told FBI agents” and on “information we have received.” In two later books Hoover avoids such slips, but their contents are largely a rehash of his first book. In A Study of Communism (1962) his publisher vouches for him as “eminently qualified as an authority on Communism” by virtue of his position since 1924 as Director of the FBI, which “conducts numerous investigations and extensive research regarding all phases of Communist activity.” The same technique is repeated in this year’s entry, J. Edgar Hoover on Communism, but Hoover has now become “the nation’s foremost authority on the danger of communism within the borders of the United States.” The Overstreets cannot even claim ignorance of Hoover’s use of the FBI files in this fashion. Masters of Deceit is one of the sources on which they drew to write What We Must Know About Communism (1958).
In 1959 the New York Post published, as originating from Congressmen who would not be quoted, charges that the FBI had “detailed dossiers on everyone in Washington”—including Congressmen, who are not subject to the federal loyalty-security program. Cook repeated the charge and the Overstreets take cognizance of it by observing that the story makes “various unnamed Congressmen called liberals seem like feeble carriers of the liberal tradition” and that “we do not see how Hoover can be held accountable” for their lack of courage. That, of course, does not dispose of the possibility that the Congressmen’s fears were well-founded, but “in this age of the anonymous smear” the Overstreets urge “skepticism” about “what is said by those who refuse to stand up and be counted.”
Which brings us, logically enough, to their treatment of the FBI’s informants. Here they create a false issue—whether or not the informant should be permitted to testify in court. Of course he is allowed to testify, just like any other witness, and has been from time immemorial. But the question whether the informant is testifying out of fear or for compensation, or is otherwise unreliable, is a proper subject for cross-examination. Defense counsel have quite properly declined to join with the Overstreets in accepting Hoover’s assurance that the informants “are frequently men and women with extensive records of past offenses who have come to respect the FBI because of fair and courteous treatment accorded them and members of their families by Special Agents.”
All of this, moreover, assumes that the informant is produced for cross-examination. That does not happen in a loyalty hearing where the charges are frequently based on FBI reports of the statements of “confidential informants,” whom the FBI (which does not “evaluate” its data) certifies to be “reliable,” but who do not appear to testify and whose identity is not revealed either to the accused or to the tribunal trying the charges. If the Overstreets are aware of this practice, they do not mention it. But the FBI’s certification would doubtless relieve the “skepticism” with which they would otherwise treat the reported statements of “those who refuse to stand up and be counted.”
Another frequent criticism of the FBI has been that it has failed to do as much as it could have done to protect civil rights workers in the South from physical violence. This is a complicated area. The FBI has no jurisdiction over non-federal crimes such as murder and assault. But there have been on the federal statute books since 1866 and 1870 laws which make it a crime (1) for state officials or private persons acting with them to deprive any person of rights guaranteed by the United States Constitution or laws, or (2) for private persons to conspire to deprive citizens of such rights. Inflicting physical punishment without a trial or interfering with interstate movement deprives the victim of constitutionally guaranteed rights.
Clearly, these provisions give a considerable mandate for federal action to prevent violence against civil rights workers. True, the constitutionality of these provisions as applied to private persons was not clearly established until 1966. But neither had they been held unconstitutional. And in the course of defending the FBI’s attempts to enforce the Internal Security Act of 1950 until the Supreme Court invalidated most of its provisions, the Overstreets are at pains to point out that the FBI should not refuse to enforce a law simply because it anticipates that the Supreme Court will later hold it unconstitutional.
Nor do they defend the FBI here on that ground. Rather, they conjure up another legal concept unknown to lawyers and judges. Because the Constitution vests “police power” in the states, only state and local authorities can move to prevent crime or protect those in danger. The FBI can move only after their rights have been “overtly violated.” There is a constitutional concept of state “police power” but this is not it. Federal law enforcement officials have fully as much authority to act to prevent federal crimes as state officials have to prevent state crimes. The Constitution neither allocates the prevention of federal crimes to the states nor disables the federal government from acting to prevent them.
Finally, there is the matter of wiretapping and bugging through electronic devices. In 1928 the Supreme Court ruled that wiretapping did not violate the Fourth Amendment’s prohibition against “unreasonable searches and seizures,” so long as it was done without “trespassing” on the victim’s property. In 1942, it made the same ruling with respect to a bugging device. But, in cases decided in 1967, it overruled these earlier decisions and concluded that such eavesdropping, whether or not committed by “trespass,” violated the Fourth Amendment unless authorized by a prior court order or warrant “upon probable cause…and particularly describing the place to be searched, and the…things to be seized” as that Amendment requires. (Provisions of the Omnibus Crime Control and Safe Streets Act of 1968, purportedly enacted to implement these rulings by requiring prior judicial approval for both tapping and bugging, may go beyond what they permit.) Thus, wiretapping and bugging violated the Fourth Amendment before 1967 if accomplished by trespass and thereafter if accomplished without a sufficiently specific warrant.
Wiretapping might also be illegal for another reason. A federal statute-adopted in 1934 provides that “no person not being authorized by the sender shall intercept any communication and divulge…the contents…to any person,” and prescribes criminal penalties for its violation. On the pretext that it does not “divulge” intercepted communications unless it introduces them in court the FBI has long disregarded this statute—frequently with express Presidential approval.
That the FBI has long engaged in both illegal wiretapping and illegal bugging has been repeatedly revealed by Congressional hearings, private studies, and, since 1966, by a series of cases in the Supreme Court. But courts can only decide cases brought before them, and in the Supreme Court these have been limited to criminal convictions, which it has set aside when they have been based on the use of illegally obtained evidence. The Department of Justice has not seen fit to prosecute its FBI for illegal wiretapping, and there were, until 1968, no federal criminal sanctions for illegal bugging.
Hoover eschews discussion of the legality of wiretapping and bugging. But annually, since 1965, he has reassured a subcommittee of the House Appropriations Committee that the supervision and central responsibility which Attorney General Bonaparte promised were still operative by testifying that every wiretap undertaken by the FBI has been “approved in advance and in writing by the Attorney General,” and that all taps were limited to “national security” or “internal security” cases. He has given no similar assurances about electronic bugging, however, and when, in December 1966, Senator Robert Kennedy said that as Attorney General he had not been aware of the extent of the FBI’s electronic surveillance, Hoover replied merely that the statement was “absolutely inconceivable.” But when he testified before the appropriations subcommittee in February 1967, he not only gave his usual assurances that wiretaps were approved in advance and in writing by the Attorney General, but also stated that “we have no microphone installations in any area of our work” and that electronic devices were used “with the knowledge and approval of Justice Department officials,” of whom he, of course, is one.
Now it appears that there is some doubt cast on the use of wiretaps and microphones. Early last June, in proceedings involving Cassius Clay, an FBI agent testified that Dr. Martin Luther King’s telephone had been tapped from 1965 until his death in April, 1968, and another testified that the FBI had both a wiretap and a microphone in the home of Elijah Muhammad, leader of the Black Muslims, from 1962 until 1966. Hoover was reported as saying that the wiretapping of King was authorized in writing by Attorney General Robert Kennedy in 1963, and that it ended in 1965. Kennedy could no longer respond to that statement and Hoover did not produce his written authorization. Ramsay Clark, who became Attorney General in 1967, has since said that Hoover repeatedly sought from him, and was denied, authority to tap Dr. King’s telephone.
Meanwhile, it has also been revealed that the Justice Department used both wiretapping and bugging on leaders of the demonstrators at the Democratic National Convention last summer. Nixon’s Attorney General, John Mitchell, has responded to those revelations by arguing in a federal court in Chicago that the Department is not subject either to the Fourth Amendment or to the provisions of the 1968 Omnibus Crime Control Act requiring prior judicial authorization when it resorts to tapping or bugging of those whom it suspects of seeking to “attack and subvert the Government by unlawful means.”
In such circumstances, he contends, the use of these devices “properly comes within the competence of the executive and not the judicial branch.” This arrogant position is completely in opposition to the Fourth Amendment. As the Supreme Court said many years ago, speaking through Justice and former Attorney General Robert Jackson: “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences [as to probable cause for search] which responsible men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”
Most of the above record was available when the Overstreets finished their book at the end of September 1968. But they give a quite different picture of the eavesdropping problem. From it the reader not otherwise advised would conclude that the Supreme Court had not ruled on the matter since 1961, that there were—prior to the 1968 Crime Control Act—no legal limitations on bugging, that an order of a President or an Attorney General can legalize wiretapping in the face of a federal statute, and that, as usual, the FBI has been the victim of “anti-FBI propaganda.”
Something, I suppose, can be learned from reading almost any book. But it is very difficult for the reader to be confident that he has learned anything correctly when the author’s bias is so strong that even his recital of facts seems untrustworthy. Unfortunately, that has been characteristic of the authors of all books thus far written about the FBI. But the reader who is willing to cope with a pro-FBI bias can do better than the Overstreet effort. Don Whitehead’s The FBI Story (1956), while virtually an authorized history written with the cooperation of the FBI and published with an appreciative foreword by Director Hoover, has one virtue which the Overstreet book lacks. Whitehead usually understands what he is talking about.