by Jay Feldman
Pandora’s box was open. With Stone’s policy thus superseded, it was an easy step to discarding it altogether. The Bureau of Investigation was on the threshold of reclaiming its role as the nation’s secret police force.
When Hoover stopped in at the White House on the morning of August 24, 1936, for a confidential meeting at Roosevelt’s request, he had little idea of just how far-reaching the effects of their talk would be. According to Hoover’s top-secret summary of the meeting, FDR had summoned him to discuss “the question of subversive activities in the United States, particularly Fascism and Communism.”12
The director of the now-renamed Federal Bureau of Investigation spent most of the time talking about Communist activities, going into detail about the control of the San Francisco longshoremen’s union by Harry Bridges, the activities of the Newspaper Guild headed by Heywood Broun, and the doings of suspected Communists in the federal government. Hoover’s information in these areas was extensive, indicating that the FBI, while lacking official authorization to conduct intelligence operations, had nevertheless been involved in collecting information on left-wing groups. Hoover informed the president that officially there was no governmental agency engaged in gathering “general intelligence information” in this area.13†
When Roosevelt expressed his desire to get “a broad picture of the general movement and its activities as may affect the economic and political life of the country as a whole,” Hoover, ever eager to extend his web of control, sprang at the opening. Roosevelt appeared to be offering a justification for further undermining Stone’s order prohibiting the bureau from conducting intelligence investigations. Such investigative authority could prove a quantum leap forward for the FBI, bestowing upon it a power and influence it had not enjoyed since 1924.
There was a problem, though. The current appropriations statute funding the bureau limited its activities to investigating and prosecuting crimes. Hoover saw a way around that. The appropriations statute of 1916, which was still on the books, allowed the bureau to use its funds for investigations requested by the secretary of state, even if no violations of law had yet occurred, and since the investigation Roosevelt was outlining involved international movements, the matter should be of clear interest to the State Department. If Roosevelt wanted to get the ball rolling on such a broad-ranging investigation, all it would take would be a request from Secretary of State Cordell Hull to bring it within the bureau’s purview as set down by the 1916 law.
The following day, Hull joined FDR and Hoover at the White House. Again, according to Hoover’s confidential record of the meeting, Roosevelt told Hull of his concerns about domestic Communist and Fascist activity and informed him that the Justice Department could undertake an investigation of these at the secretary of state’s request.14 Hull, in turn, asked if the request should be in writing, but the president, fearing a potential leak to the press by State Department personnel, indicated that he preferred to keep the matter confidential. Hull then asked for an FBI investigation.
Involving Hull through the 1916 statute was clearly nothing more than a pretext to execute an end run around the existing appropriations restrictions on FBI activities. In his analysis of the August 1936 meetings, Frank Donner points out that the 1916 appropriations statute “contemplated limited, closed-end investigations related to foreign affairs (the dynamiting of a consulate, the suspicious movements of a diplomatic attaché), not the extended domestic political probe that the President apparently had in mind.” Moreover, suggests Donner, FDR’s request for “a broad picture of the general movement” was not a demand for specifics like “dossiers, identifications, linkages requiring penetrative surveillance.”
Donner concludes that Roosevelt, Hoover, and Hull deliberately “deceived Congress for what the President regarded as a justifiable end … Congress was doubly deceived: the launching of the probe was kept secret, and its funding authority deliberately misused.”15
Whatever Roosevelt’s intentions, the significance of these two meetings cannot be overstated, for in sanctioning such secret investigations of “subversives,” FDR started Hoover down a path the FBI director would zealously pursue for the next four decades, a path that would soon lead to serious abuses of power and invasions of privacy by the FBI as it carried out covert and often illegal scrutiny of tens of thousands of individuals and organizations, the vast majority of whom were guilty of absolutely nothing. “No one,” writes Donner, “could persuasively claim—although the Bureau has not hesitated to do so—that Secretary Hull requested an investigation in 1936 which permanently empowered it to conduct domestic intelligence operations.”
Yet Hoover interpreted the Roosevelt/Hull request as a carte blanche license to reinstitute the freewheeling counter-subversive investigations of the pre-Stone era. On September 5, he sent a memo to FBI field offices, instructing agents “to obtain from all possible sources information concerning subversive activities being conducted in the United States by Communists, Fascists, representatives or advocates of other organizations or groups advocating the overthrow or replacement of the Government of the United States by illegal methods.”16 Tellingly, Roosevelt and Attorney General Cummings were not among the recipients of this memo,17 and Hoover apparently never informed them of his unilateral broadening of the investigative boundaries beyond the Communist and Fascist movements.
Athan Theoharis, author of numerous books on J. Edgar Hoover and the FBI, has observed that the pattern was now set for “certain basic characteristics of federal surveillance policies after 1936: the ineffectiveness of executive supervision over the internal security bureaucracy; the indifference of federal officials, particularly within the FBI, to constitutional and legal principles; and the arrogance of FBI officials who either ignored, misinformed, or selectively informed responsible elected officials about bureau policies and procedures.”18
In the spirit of the 1934 suggestion by Secretary of War Dern to establish a civilian counterespionage service, the bureau began within days to put together a corps of informants, as well as reports on “prominent subversives” and daily memos for Hoover on “major developments in any field” of subversive activity.19 To facilitate the new mission, Hoover resurrected the bureau’s General Intelligence Division, which had been disbanded in 1924, and renamed it the General Intelligence Section.
For the next two years, as Hoover reported to Roosevelt in October 1938, the special agents in charge of the FBI field offices collected information on subversive activities in the following categories: “maritime; government; industry (steel, automobile, coal mining, and miscellaneous); general strike; armed forces; educational institutions; Fascisti; Nazi; organized labor; Negroes; youth; strikes; newspaper field; and miscellaneous.”20 Using this information, Hoover created a new version of the Editorial Card Index, which by the fall of 1938 contained twenty-five hundred names. The bureau also developed an extensive collection of periodicals, pamphlets, and other publications and, in accordance with Roosevelt’s instructions at the August 24, 1936, meeting, “developed a close and coordinated plan of operation” with the Office of Naval Intelligence and the Military Intelligence Division.21‡
In Hoover’s October 1938 memo to the president, he appealed for additional funding and expanded authority, requesting $35,000 each for MID and ONI and $300,000 for the FBI. He maintained that the established protocol, whereby the secretary of state requested investigations, was “sufficiently broad to cover any expansion of the present intelligence and counter-espionage work.” He also argued that in expanding the intelligence structure, they had to proceed “with the utmost degree of secrecy in order to avoid criticism.”22
When Roosevelt gave his imprimatur on November 2 to the proposal for a secret expansion of domestic intelligence operations, it further reinforced the clandestine approach established in 1936, as FDR, Hoover, and Cummings continued to deceive Congress about the FBI’s highly questionable and ever-increasing intelligence-gathering activities.23 The old pre-Stone Bure
au of Investigation—“The Nation-Wide Spy System Centering in the Department of Justice”—was small potatoes in comparison to the organization that Hoover was now putting together.
The late 1930s saw an escalation of tensions around the globe, as German, Italian, and Japanese aggression posed rising threats in Europe, Asia, and Africa, and caused heightened concerns about sabotage and espionage in the United States. Following the signing of a Germany-Soviet nonaggression pact in August 1939, Hitler invaded Poland on September 1.
The following day, Hoover—on his own authority, apparently24—sent a memo to the field offices, instructing them to prepare reports on “persons of German, Italian, and Communist sympathies,” as well as on others “whose interest may be directed primarily to the interest of some other nation than the United States.”25 These included subscribers to and officers of all German- and Italian-language newspapers, foreign-language Communist newspapers, and other foreign-language and English papers “of pronounced or notorious Nationalistic sympathies”; members of all German and Italian fraternal and other organizations; and members of “any other organization, regardless of nationality, which might have pronounced Nationalistic tendencies.” As his authority for such investigative activity, Hoover cited the Foreign Agents Registration Act of 1938, which required agents of foreign governments to publicly disclose their relationship with those governments. But, as Athan Theoharis points out, since the law makes no mention of U.S. citizens, Hoover’s plan “entailed the abrupt abrogation of the constitutional rights of every American citizen affected by it.”26
Four days after Hoover’s unilateral decree, Roosevelt issued a directive appointing the FBI “to take charge of investigative work in matters relating to sabotage, espionage and violations of the neutrality regulations.”27 Local law-enforcement agencies were instructed to turn all intelligence in these areas over to the FBI. In the same week, it was revealed that for the past year, FBI agents had been receiving “intensive secret training in the technique of uncovering espionage, sabotage and subversive activities.”28
On November 9, Hoover asked the FBI’s assistant director, Edward A. Tamm, to begin compiling a list of individuals whose “presence at liberty in this country in time of war or national emergency would constitute a menace to the public peace and safety of the United States Government.”29 A month later, Hoover sent out a lengthy memo to the special agents in charge of the forty-nine regional field offices, giving them six months to compile extensive information on these individuals, stressing that under no circumstances should the investigations become known to anyone outside the FBI.
It would seem that six months was hardly an adequate amount of time to conduct careful and thorough investigations of thousands of suspects, especially in an era before the advent of computers and centralized, instantly accessible databases. Nevertheless, in the middle of June 1940, Hoover asked the SACs to supply the lists of individuals in their districts “who should be considered for custodial detention … in the event of a national emergency.”30
The legal basis for “custodial detention” could be found in the Alien Enemies Act of 1798 and its updated World War I version, the Alien Enemies Act of 1918.31 There was, however, absolutely no legal basis during peacetime for amassing such a catalog of names or for the FBI’s clandestine investigations of those individuals whose names appeared therein.
The catalog was officially called the Custodial Detention Index and was maintained by the bureau’s Special Defense Unit, but the names submitted by the SACs came to be known as the “ABC list” for the three designations of enemy aliens described: the “A” list of supposedly irrefutably dangerous individuals; the “B” list of the potentially dangerous; and the “C” list of those who merely merited surveillance. Whereas holding a leadership position in an ethnic organization was enough to qualify a person for the “A” list, an individual could land on the “C” list for nothing more than having made a donation to a cultural society. All three lists included many prominent business, cultural, and religious leaders, but given the sources used and the time allotted, it was not surprising that the methods employed in researching these names were less than airtight, as would become clear in due time.
Nor was there any legal basis for Roosevelt’s secret order of May 21, 1940, authorizing Attorney General Robert Jackson to conduct wiretaps of “persons suspected of subversive activities against the Government of the United States, including suspected spies.” The admonition “to limit these investigations … to a minimum and to limit them insofar as possible to aliens” would prove meaningless.32
Emboldened by the new surveillance parameters and with the ABC list being compiled, Hoover wrote to Assistant Attorney General Matthew F. McGuire in August 1940, proposing that the Department of Justice draft legislation “with reference to the internment of dangerous alien enemies in event of war” and advocating that such legislation “permit the taking into temporary custody of individuals” who were suspected of seditious activity “pending further investigation.”33
On June 28, 1940, two months before Hoover suggested legalizing wartime custodial detention of aliens, Congress had passed the Alien Registration Act, also known as the Smith Act. The legislation made it a crime for anyone to advocate the overthrow of the government, or to belong to any organization that advocated such an end. The law also required all aliens to register and be fingerprinted and photographed at a U.S. post office. This process was overseen by Solicitor General Francis Biddle, who would soon be attorney general, and Earl G. Harrison, an up-and-coming Philadelphia lawyer, whom Biddle had tapped for commissioner of the Immigration and Naturalization Service, which had been transferred from the Department of Labor to the Department of Justice on June 14. By the end of the year, nearly 5 million aliens were registered, including close to 700,000 Italians, over 300,000 Germans, and more than 90,000 Japanese.
The war in Europe was almost a year old, and Americans had watched from across the Atlantic as Hitler swept through the continent, reportedly aided by fifth-column movements in many countries. Declaring it “an acknowledged reality” and “an established fact” that such a movement was now menacing America, Hoover used the specter of a fifth column in the United States to create fear and tighten the grip on alien control. “A Fifth Column of destruction,” he declared, “following in the wake of confusion, weakening the sinews and paralyzing it with fear can only be met by the nationwide offensive of all law enforcement.” He identified the supposed fifth columnists only as “the vilifying Communist and the espouser of alien philosophies.”34§
By this time, the Immigration and Naturalization Service, despite no funds having yet been allotted for such a purpose, had already begun preparing detailed plans for internment camps to house those “A” list individuals in the Custodial Detention Index who would presumably be apprehended and interned when war broke out. In January 1941, Fort Stanton, on the site of an abandoned Civilian Conservation Corps camp in southern New Mexico, was the first internment camp to go into operation, providing housing for more than four hundred seamen from the German luxury liner Columbus, which had scuttled off the east coast of the United States. By April, Fort Missoula, in Montana, and Fort Lincoln, near Bismarck, North Dakota, both military facilities, were being converted for service as internment camps.
The FBI, meanwhile, working together with ONI and MID, was zealously adding names to the Custodial Detention Index and carrying out secret investigations of individuals on the list. Concerned that these illegal methods might jeopardize the prospect of convictions in court cases, Attorney General Jackson wrote to Hoover early in the spring of 1941 to question these activities. Citing the 1924 Stone guidelines, Jackson pointed out that “the Federal Bureau of Investigation … cannot be used except for the investigation of crimes and subversive activities which amount to overt acts rather than matters of opinion.” He set out a proposed list of rules that the bureau should observe, including: “The subject matter of investigations which the F
BI has authorized to undertake do not extend beyond charges of suspicion of crime, or of definite subversive activity which does not consist of views or expressions of opinion, but of overt acts of incriminating relationships.”35
Hoover responded on April 1 with a long defense of the investigations and list keeping, saying,
Had we refrained from gathering such information … this Bureau would not be in a position today to furnish to the Department the names of individuals who should be considered for either internment or prosecution in the event of the declaration of a complete national emergency. None of these persons today has violated a specific Federal law now in force and effect, but many of them will come within the category for internment or prosecution as a result of regulations and laws which may be enacted in the event of a declaration of war. To wait until then to gather such information or to conduct such investigations would be suicidal.36
Paying no heed to Jackson’s concerns or instructions, Hoover continued with the investigations and compiling of lists. On April 30, he sent a thirteen-page single-spaced memo to the SACs, instructing them to “continue to submit to the Bureau the names of persons who you believe should be considered for custodial detention pending investigation in the event of emergency.”37 The memo went on to delineate in minute detail how the investigations should proceed, what types of materials should be collected, and how the gathered intelligence should be presented.
In July, with war appearing increasingly inevitable, the Department of Justice and the War Department agreed to a set of procedures regarding the roundup of alien enemies. The FBI would carry out the arrests of “dangerous” aliens, who would then be held in INS camps as temporary “detainees.” The Justice Department would conduct their hearings, and those found worthy of internment would be handed over to the War Department for incarceration in camps managed by the provost marshal general. The INS would retain custody of any women and children who were ordered interned. The attorney general’s office also prepared a series of presidential proclamations authorizing the pending roundups of German, Japanese, and Italian aliens, to be issued upon the outbreak of hostilities.