The Burglary (47 page)

J. Edgar Hoover, as usual, interpreted the new Non-Detention Act his way.

Just as he had in 1950, after the president signed the act in 1971, the FBI director did what he had done twenty-one years earlier when the Emergency Detention Act of 1950 became law. He set in motion secret plans to defy it.

Plans for his new subterfuge started the day after Congress voted to repeal the act, when the head of the FBI's Intelligence Division, Richard Cotter, made the case in a September 17, 1971, memorandum to the director for continuing to maintain the Security Index. “The potential dangerousness of subversives is probably even greater now than before the
repeal of the Act, since they no doubt feel safer now to conspire in the destruction of this country.” Bolstering the case that Hoover would make in his request that the attorney general approve an order for the bureau to flaunt the law,
D. J. Dalbey, head of the bureau's Office of Legal Counsel, wrote in a memorandum that repeal of the Emergency Detention Act did not affect either the bureau's “basic investigative authority” or its right to carry “in its files an assessment of each principal subversive which would be sufficient to mark him for Government attention should need arise in a national emergency.” Despite bureau officials' certainty about their conclusion, once again they wanted the attorney general to give them a secret protective shield for the operations they now planned to carry out in defiance of Congress. The bureau needed clear authority, Dalbey advised Hoover, to “protect” it if “some spokesman of the extreme left” claimed the repeal undercut such investigative authority.

Ironically, the authority Hoover and other bureau officials now felt they had lost by the detention act being repealed was the authority that they had thought in 1950, at the time the Emergency Detention Act was enacted, was inadequate. But now they felt naked, unprotected. With the repeal of the Emergency Detention Act, there was no detention law—not even the one they regarded as inadequate because it was not sufficiently repressive. But as long as a detention act was in place, it was possible for the FBI to hide behind it, even as the bureau went beyond what it mandated. Now there was no law to hide behind—only a law to defy.

Despite the shifting nature of their relationship in the past year, the director appealed to Attorney General Mitchell. Hoover told him that, in the absence of the law just repealed, he could rely instead on old presidential directives as a rationale for creating lists of subversives—something he had done many times in the absence of laws. But in the event of public disclosure, Hoover thought reliance on those old directives was a dangerous option. He told Mitchell he preferred to have the official backing of the attorney general for maintaining lists of subversives.

Mitchell, who, along with his top aides, had publicly supported the repeal, now privately became an enthusiastic accomplice in Hoover's plan to defy it. The two highest law enforcement officials in the country secretly agreed that the FBI could ignore the repeal. The bureau would continue to choose people it considered to be dangerous and place them on detention lists. In a secret October 22, 1971, memorandum, the attorney general assured the director that the FBI could do everything it had done before. The FBI's authority in this area, Mitchell wrote, “remained unaffected by repeal of the emergency detention title.…The repeal … does not alter or limit the FBI's authority and responsibility to record, file and index
information.…An FBI administrative index compiled and maintained to assist the Bureau in making readily retrievable and available the results of its investigations into subversive activities and related matters is not prohibited by the repeal of the Emergency Detention Act.” Mitchell also gave the FBI exclusive control of the index. That meant the bureau no longer would have to submit the names of alleged subversives to the department for review, except for a monthly report on the federal employees the bureau added to the list.

Hoover won. The sixteenth—and, as it would turn out, the last—attorney general under whom he would serve gave him carte blanche to disobey a new law that had been designed, in part, to wipe out this part of his intelligence operations. That was quite an accomplishment. Not only could the bureau secretly continue to maintain and build the index of subversive Americans, but it would, wrote Mitchell, make the “sole determination as to which individuals should be included” on the list. Vetting of those people by the Department of Justice officials often had been perfunctory, and now, under Mitchell's new order, it would not exist at all.

Following the pattern of subterfuge he had established many years earlier, as a guard against discovery of the bureau's defiance of the law, Hoover now changed the name of the index again. This time it was changed from the Security Index to the Administrative Index, or ADEX. In 1943, he had changed the index from the Custodial Index to the Security Index to hide his refusal to enforce Attorney General Biddle's order to destroy it. This time the name change was done to hide his deception of Congress. In case anyone ever asked, technically there no longer was a Security Index. With the magic of language, Hoover had once again eliminated the index while actually keeping it. No one outside the FBI would know the index was still there and continued to grow. Under his new plan, no one would know that the significant public consensus and nearly unanimous congressional decision that the Emergency Detention Act should be repealed had been secretly upended by the FBI director with the approval of the attorney general.

Subterfuge accomplished again.

IN
1971, J. Edgar Hoover experienced both the cold shoulder and the warm embrace of Attorney General John Mitchell. The attorney general's support of Hoover's defiance of Congress's Non-Detention Act just days after it was passed contrasted sharply with how he treated the director in March 1971. At that time, Mitchell ignored the director's request that he
seek a court order to make it a crime to publish stories about the stolen files or to possess copies of them.

The explanation for his contrasting treatment of Hoover in the spring and fall of 1971 probably is rooted in the complex, secret, and dangerous web in which Hoover, Mitchell, and Nixon were entangled, beginning in the summer of 1970. The three men were ideological soul mates, but they had markedly different priorities then.

By the time the Media burglary took place in March, Mitchell and Nixon undoubtedly still resented what Hoover had done to them a year earlier when he took steps that defeated Nixon's major effort to expand intelligence operations against the people he regarded as enemies of his war plans and his reelection plans.

A year later, at the very time Congress, the press, and the public were learning from the Media files for the first time about the FBI's spying on antiwar and other activists and about the bureau's goal to make Americans “paranoid,” the president and the attorney general were involved in a highly secret effort to create an alternative to the expanded domestic intelligence plan Hoover had forced Nixon to kill in 1970. Some of the practices exposed by the Media files—as well as some of Hoover's practices not yet exposed—were similar to dirty tricks programs the attorney general and the president had by that time been desperately trying to expand for more than a year. The then still deeply secret White House plans involved bizarre and shocking criminal operations that would be conducted from the White House. They included the plan to burglarize Democratic National Committee headquarters at the Watergate Hotel and the plan to break into the office of
Daniel Ellsberg's psychiatrist. Among the crimes White House staffers planned then but did not execute were the bombing of the Brookings Institution, a liberal think tank in Washington, and the assassination of columnist Jack Anderson.

Not until 1973, as investigations of Watergate crimes commenced, did the public learn about either the intelligence agency collaboration plan Nixon tried to put in place in 1970 or the wild crimes that were being planned in the White House in the spring of 1971. Both efforts were driven by the president's intense desire to target people he regarded as enemies, primarily antiwar activists and journalists, even more than they already were being targeted by multiple intelligence agencies.

Hoover and Nixon had been close friends since the director and Nixon, as a young member of Congress from California from 1946 to 1952, worked together closely in choosing who the House Un-American Activities
Committee would accuse of being communists, or fellow travelers with communists, often on the basis of secret unverified FBI informer files provided confidentially to the committee by Hoover. The two of them had been close collaborators ever since then. In 1970, though, Nixon was furious when his old friend Hoover forced him to kill his intelligence collaboration plan. Most, if not all, presidents under whom Hoover had served as director had used the FBI to gather political intelligence on their behalf, often against their political opponents, but no president before Nixon had pressured Hoover to collaborate with other intelligence agencies. Hoover was willing to do just about anything presidents asked him except that. He despised working with other agencies. He had always been a lone wolf, not a collaborator. He wanted to keep all domestic intelligence work under the bureau's exclusive control and within the walls and files of the FBI.

The two old friends, Nixon and Hoover, played a convoluted series of potentially explosive tricks on each other in 1970 and 1971. Their divergent priorities came between them. Nixon was obsessed with a desire to quash the antiwar movement. Hoover shared that obsession, but his other obsession, fear of losing his job, was his top priority. Given his friendship and political collaboration with Nixon over many years, he undoubtedly expected Nixon to endorse his continued service as FBI director at least as enthusiastically as President Lyndon Johnson had. In 1964, President Johnson had issued an executive order exempting Hoover from compulsory retirement at age seventy. Johnson hailed him then as “a quiet, humble and magnificent public servant … a hero to millions of citizens and an anathema to all evil men.…No other American now or in our past, has served the cause of justice so faithfully and so well.” Johnson's high praise for his former neighbor was easily believed by the public, for by 1964 Hoover had long been an American icon. Under Nixon, the platitudes about Hoover continued, but the atmosphere was more treacherous, for neither Hoover nor Nixon felt an ethical imperative when loyalty competed with self-interest.

Immediately after Nixon's secret plan for intelligence agencies to collaborate—known as the Huston Plan for
Tom Charles Huston, the young White House aide who designed it on Nixon's behalf—was approved in 1970 by the heads of all intelligence agencies, Hoover informed the president he would not go along with the plan unless every request for illegal work by the FBI under the joint operation—bugging, wiretapping, home or office burglary, all of which the FBI secretly had been doing for many years—was first authorized in writing by the president.

That did it. Rather than agree to Hoover's demand for written
presidential authorization for illegal projects, Nixon killed the intelligence collaboration plan before it started, as Hoover must have been sure he would. The president was unwilling to create a paper trail that would be evidence he had asked intelligence agencies to engage in illegal activities. Interestingly, Nixon did not exert the same caution with the massive recorded trail of evidence his
White House tapes created daily—the definitive record that later contributed to public certainty about his criminal behavior and thus to his decision to resign.

When the dispute between the president and Hoover became known years later, it was speculated that by that time in his life Hoover had become opposed to breaking the law. Comments he wrote to Sullivan make it clear that was not the case:

IN HOOVER'S DEALINGS
with the attorney general and the White House during the Nixon administration, he had found ways, as he often had in the past, to have his cake and eat it too—creating an impression that he was abiding by the law when actually he was conducting illegal operations. Even as he told the president he was unwilling to make unilateral decisions for the bureau to engage in illegal intelligence activities, he was in fact continuing such projects and initiating new ones, including treacherous dirty tricks.

Mitchell's refusal to respond to Hoover's request at the time of the Media burglary that the Department of Justice go to court in an effort to criminalize distribution and publication of the Media files might have come from a desire to prevent discovery of the crimes then being planned at the White House. Seeing the high public interest in the information revealed in the Media files, the attorney general would have realized that this first
public glimpse of the FBI's domestic intelligence operations revealed the tip of a very large hidden domestic intelligence iceberg. As someone involved in both the failed 1970 intelligence collaboration plan and now, in the spring of 1971, in the plans for crimes to be carried out by the White House, Mitchell, and also the president, probably were desperate for the intelligence iceberg not to become visible, especially while they were in the process of making the iceberg bigger. That may have made them fear that an effort in court to suppress distribution and publication of the Media files might stimulate new interest and lead not only to more revelations about secret FBI intelligence operations but also to exposure of the unprecedented and bizarre criminal operations then being developed in the White House.