by Tim Weiner
“GET TO THE BOTTOM OF IT”
The FBI was under siege in Washington. The new Congress, elected three months after Nixon’s resignation, was the most liberal in memory. In the wake of Watergate, the Senate and the House of Representatives resolved to undertake formal investigations of the nation’s intelligence operations. President Gerald R. Ford realized that the revelation of those secrets would tarnish the reputations of American leaders going back to FDR. The president’s top aides tried to contain the damage and limit the investigation to the CIA.
“Why not add the FBI?” the former director of central intelligence, Richard Helms, asked President Ford pointedly, face-to-face in the Oval Office. “You may as well get to the bottom of it.” Deputy Attorney General Laurence Silberman agreed. “The FBI may be the sexiest part of this,” he told the president’s national security team on February 20, 1975. “Hoover did things which won’t stand scrutiny, especially under Johnson.”
Director Clarence Kelley was starting to understand that the Bureau’s intelligence operations had broken the law. He feared Congress would impose strict limits on his agents. He beseeched the president to counter that threat by issuing an executive order expanding the national security powers of the FBI.
The FBI relied on laws “designed for the Civil War era, not the Twentieth Century,” he argued. The Supreme Court had “reduced to a fragile shell” the statutes against advocating revolution, he said; its ban on warrantless wiretapping of Americans had forced the Justice Department to drop its indictments against the leaders of the Weather Underground, charges built on illegal surveillance. Under the existing law, Kelley said, he doubted the Bureau’s ability to gain intelligence on “terrorists and revolutionaries who seek to overthrow or destroy the Government.”
If the courts or Congress questioned the legality of black-bag jobs and break-ins, Kelley and his allies in the Justice Department believed, the answer was to legalize them. On May 9, 1975, they asserted that the FBI could conduct “warrantless searches involving physical entries into private premises” if the president gave the orders.
But Watergate had washed away the old idea that the president had the powers of a king. The political climate was hardly conducive to a claim that the FBI could commit crimes on orders from the White House, even in the name of national security. After nearly seven decades of freedom from the scrutiny of outsiders, the Bureau was no longer inviolate.
“THEY GOT MY NAME!”
A confrontation was coming. Despite strong resistance at headquarters, the congressional committees investigating intelligence already were reading through the FBI’s files and taking sworn statements from its commanders.
A skirmish in the corridors of the FBI was an opening battle in a long war.
The Bureau had started moving out of the Justice Department, across Pennsylvania Avenue. The new J. Edgar Hoover Building, officially dedicated on September 30, 1975, cost $126 million. It was the ugliest building in Washington: it looked like a parking garage built by the Soviet Politburo.
Members of Congress wanted tours of the old and new headquarters. The FBI’s James R. Healy—a die-hard believer in the Bureau and a great admirer of Hoover—had the duty of escorting Congressman Robert Drinan, a Massachusetts Democrat, a pacifist Jesuit priest, a passionate opponent of the Vietnam War, and a proclaimed enemy of the FBI.
They passed the FBI’s indoor firearms range. Healy explained that an agent only shot at a suspect in self-defense. Someone asked: What if they fire back? “Then we shoot to kill,” Healy said.
“Reverend Drinan started shouting, ‘They shoot to kill! They shoot to kill!’ ” he recounted. “I figured the guy had gone completely bonkers.” Healy tried to move the congressional delegation along into a room holding index cards with the names of people in the FBI’s files; the cards were the foundation of the house that Hoover had built. “Reverend Drinan said, ‘Well, I’d like to see my name.’ As a courtesy, I led him to a young lady who was filing the cards. I asked her to produce a few.” The clerk held up the index cards with a shaking hand. The congressman snatched them away.
“They got my name!” Drinan shouted. “They got my name!”
The congressman demanded to see what else the Bureau had on him. He became one of the first Americans granted the request to see his own FBI file. It included a letter that a suspicious nun had sent to Hoover four years before, calling Father Drinan a Communist plant inside the Catholic Church.
Such was the prevailing spirit when the Senate opened its first public hearings on the FBI on November 18, 1975.
“HEADS WOULD ROLL”
As Director Kelley feared, congressional investigators had dug into the FBI’s past and unearthed some mortifying stories—the bugging of Martin Luther King, the maintenance of a half-million pages of internal security files on Americans, the abuses of civil liberties in the COINTELPRO campaigns, and the misuses of investigative power as a weapon of political warfare.
The Senate committee concluded that the FBI had spied on Americans without just cause. It laid blame for the Bureau’s violations of the law and the Constitution principally with “the long line of Attorneys General, Presidents, and Congresses who have given power and responsibility to the FBI, but have failed to give it adequate guidance, direction, and control.”
But the Bureau took the rap. Public approval of the FBI plummeted. The perception of the people, shaped by the press, was plain. Respect eroded. The fear remained.
A new attorney general—Edward Levi, the fifth man to hold the office in a three-year span—saw that judgment coming. Levi put forth the first guidelines that ever governed the FBI’s intelligence operations. He told Congress that they grew from the conviction that “government monitoring of individuals or groups because they hold unpopular or controversial political views is intolerable in our society.” They defined domestic terrorism as a problem for law enforcement. They limited the powers at the FBI’s command: the Bureau had to believe that the target of an investigation was willing to use violence before an investigation could begin. It was a high standard.
On May 8, 1976, Kelley tried to make amends to the public in a speech delivered at Westminster College in Missouri, where Winston Churchill had warned at the outset of the Cold War that an iron curtain was descending over Europe. He acknowledged that the FBI had engaged in operations that were indefensible, and he said they would never be repeated.
His performance was less than stirring. Inside the Bureau, it was instantly labeled the “I’m sorry” speech.
It was too late for apologies. Seven weeks before, on orders from the attorney general and his Civil Rights Division, Kelley had transmitted a secret order throughout the FBI. Every agent was commanded to report anything he knew about black-bag jobs that had taken place in the past decade. The responses had come back, nearly every one of them identical: no one knew anything about any break-ins or surreptitious entries. But the Civil Rights Division at the Justice Department started sorting through that thicket of lies and evasions. The FALN investigator Richard Hahn said the word had gone out among street agents in New York: “Heads would roll.”
Across the United States, agents began to recoil from secret intelligence missions. I won’t take that case, they said. I won’t take that squad. “Nobody wants to work terrorism,” remembered Bill Dyson, who had become the leader of the FBI’s nationwide investigation of the FALN. “Everybody is trying to run away.” Hundreds of agents thought that “nobody will support me,” Dyson said. “The Bureau won’t support me. The Justice Department won’t support me. The citizens won’t support me.”
Fifty-three agents were informed they were targets of a criminal investigation, implicated in crimes committed in the name of national security. Any agent who had used bugs or black-bag jobs in counterterrorism or counterintelligence might be indicted and imprisoned.
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“A STATE OF CONTINUAL DANGER”
THE FBI NOW faced a case of unprecedented complex
ity. It had to investigate itself.
Clarence Kelley had assured the press, the public, and the president time and again that the FBI had ceased committing black-bag jobs a decade before. His top aides had told him so; they said the same to Congress and the courts in sworn testimony. On August 8, 1976, four months after he had the facts in hand, he had been forced to admit he had been fooled by experts—“knowledgeably, knowingly, intentionally deceived” by men at the top of the FBI’s chain of command.
Kelley should have known this day would come. He knew from his own experience—his two decades as an FBI agent—that “very little bad news was passed along to J. Edgar Hoover.” As Kelley recalled it, almost everyone at the Bureau was “afraid to tell Hoover the truth”; the boss had been “so domineering and his power over his people so intimidating” that agents concealed harsh facts from him. He attributed the deception he had suffered to “an arrogant belief at high levels in the infallibility and appropriateness of all FBI activities and policies”—an unquestioning belief in the public image of the Bureau.
Three days after his public confession that he had been fooled by some of the FBI’s most experienced con men, Kelley announced that he had taken two dramatic steps toward reforming the Bureau.
First, he created a new force to handle internal inspections; under the watchful eyes of Justice Department prosecutors, FBI agents opened dozens of criminal investigations into their own ranks.
Second, he cut out the heart of the Intelligence Division. Apart from its work against the spies of foreign services, the FBI would henceforth handle national security cases no differently from common crimes. Secret intelligence investigations against subversive Americans would cease. It was his strongest blow against the ghosts of Hoover’s past.
“A HUMILIATING AND DEGRADING EXPERIENCE”
Attorney General Edward Levi had questioned the FBI’s infallibility from his first day at work.
Levi was one of the most respected lawyers in America. Balding, bespectacled, bow-tied, the son and grandson of rabbis, Levi had been president of the University of Chicago before returning to the Justice Department, where he had worked throughout World War II. Like his predecessor Harlan Fiske Stone, who had made Hoover the director half a century before, he revered the rule of law more than the power of politicians. He believed that a secret police was a menace to a free society.
Levi was just settling into his leather chair, admiring the rich wooden paneling in his new surroundings, when “an FBI agent appeared at my door without announcement,” as he recalled. The agent introduced himself as Paul Daly. “He put before me a piece of paper asking my authority for the installation of a wiretap without court order and he waited for my approval.”
“You’re going to have to let me think about it,” Levi said. “The agents might get caught going in.”
“It’s already in,” Daly replied. “The microphone’s in.” That was the time-honored procedure: first the break-in to install the tap, then the approval to turn it on. The traditions of the FBI differed from the rules of criminal procedure.
Levi was astonished. “His bow tie spun around,” Daly remembered.
The attorney general did not approve of warrantless searches and seizures and surveillances. In the wake of Watergate, he thought the nation would not stand for them. He was mortified to learn that the FBI’s leaders had lied to Congress and the courts about the continuing practice of black-bag jobs.
He began to draft guidelines for FBI investigations, the first in the Bureau’s history, governed by the principle that the government should not break the law to enforce the law. He established a clear chain of command within the Justice Department to look into criminal misconduct by agents. He gave Kelley a direct order to report on the FBI’s improprieties.
“We don’t ask our agents to squeal on one another,” Kelley had said. But that tradition was eroding too.
The tensions at headquarters had been building ever since the FBI opened a criminal investigation of Mark Felt, the dismissed deputy director, during the denouement of the Watergate investigation. In the final days of the Nixon administration, Felt stood accused within the Bureau of smuggling documents out of the FBI and feeding them to The New York Times. The charge of stealing the Bureau’s records was punishable by up to ten years in prison. Felt was confronted by FBI agents and advised of his constitutional rights. He had lied about his role in the leaks, skillfully, first to the agents, then in a personal letter to the director.
“Dear Clarence,” he had written. “To be treated as a prime suspect in a sordid example of crass disloyalty to the FBI is a humiliating and degrading experience.” He added: “Incidentally, I am not ‘Deep Throat.’ ”
Kelley correctly surmised that there had been a concerted effort by a group of senior agents to leak the secrets of Watergate, and he had good reason to suspect that Felt had led the secret campaign. But Felt also had been his friend for two decades. Kelley’s loyalties—to the FBI and to Felt—compelled him to protect Felt from prosecution. He would not embarrass the Bureau. Kelley ensured that the leak investigation was closed, and he eventually fired the man who had opened it for unspecified abuses of power. But by then, Felt’s troubles had multiplied tenfold. His wife was becoming ill, physically and mentally; she later committed suicide. His daughter had disappeared into a hippie commune in California. He became the subject of a second criminal investigation by the FBI. This one could not be quashed.
On August 19, 1976, the FBI raided its own headquarters. Two teams of FBI agents, led by criminal investigators from the Civil Rights Division of the Justice Department, executed the searches in Washington. A separate FBI squad went through the New York office of the Bureau. They discovered a cache of documents no outsider had ever seen. Hoover’s “Do Not File” filing system, first created before World War II, was designed to keep evidence of FBI burglaries and bugging concealed forever. It required FBI agents to destroy the original records of their secret intelligence investigations. But even Hoover occasionally erred in matters of national security. He had kept a folder in his office, labeled “Black Bag Jobs,” containing a detailed description of the “Do Not File” regulations. It had somehow survived the bonfire of his personal files after his death. It led the investigators in New York to discover twenty-five volumes of original records that had, inexplicably, been preserved. The investigation began to focus on a series of burglaries in the New York apartments of relatives and friends of the fugitive members of the Weather Underground. The break-ins had been conducted in 1972 and 1973 by the FBI’s Squad 47, led by John Kearney.
Kearney, recently retired after twenty-five years at the FBI, opened his daily newspaper. He read about “a special unit being set up in the Department of Justice investigating Squad 47,” he remembered. “They were interested in the unusual investigative techniques that had been used in trying to apprehend the fugitives. I had heard directly that a number of the agents had gone to testify in a grand jury, and then I had a call, an unidentified caller, who said, ‘I had to give you up, John.’ ”
Kearney was about to be indicted for conspiracy. He was the first ranking agent in the FBI to be charged with committing crimes against the United States.
At headquarters, Clarence Kelley told a few trusted agents to run a counterinvestigation—to find out where the Justice Department was taking the case. They quickly learned that Kearney was a prime target for a criminal indictment. But he was not the only one. On August 26, a week after the initial raids, Mark Felt and Ed Miller, the FBI’s retired intelligence chief, were summoned to testify in secret before a federal grand jury. The two men decided on a dangerous legal strategy. They swore that they had authorized the black-bag jobs carried out by Squad 47. They said they had had the approval of the acting director of the FBI, Pat Gray.
Their testimony made their prosecutors stop and think and argue among themselves, a debate that went to the highest levels of the Justice Department. If they indicted Felt and Miller, they wo
uld have to indict Gray as well. They would have to make a felony case against the man who had succeeded Hoover.
The charge would criminalize the FBI’s traditions in the realm of intelligence. In effect, it would indict the FBI as an institution.
Felt and Miller believed that, if they went to trial, they could convince a jury that the FBI had the power to bend the law in pursuit of national security, a power that flowed directly from the president of the United States. They thought they could prove that the president’s sworn duty to protect and defend the Constitution gave him to power to break and enter a citizen’s door. They would assert that a president could violate the rights of an individual to preserve the interests of the nation.
They would face one more hurdle: a burden of proof. Under law, they would have to show that they carried out the break-ins to defend the United States against the agents of a foreign power. Felt and Miller both suspected that the Weather Underground fugitives received direct support from Cuba and Vietnam. The FBI in Chicago drafted an affidavit of more than one hundred single-spaced pages trying to make that argument. It was not supported by the evidence. Presidents Johnson and Nixon had demanded over and over that the FBI find the proof that the Weathermen were secret foreign agents, financed by the enemies of the United States. But the FBI had no such smoking gun.
Felt went on the Sunday morning talk show Face the Nation to tell the world what he had told the grand jury: he had authorized the break-ins. They were intelligence operations vital to national security. “You are either going to have an FBI that tries to stop violence before it happens or you are not,” he said. “I think this is justified, and I’d do it again tomorrow.”
Ed Miller put it more elegantly years later. He took his argument from the common law of centuries gone by. A man’s home is his castle, he conceded. But no man can maintain a castle against the king.