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Fall 1981 "WITHOUT UNDERSTANDING": THE FBI AND POLITICAL SURVEILLANCE, 1908-1941 DAVID JOSEPH WILLIAMS
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Williams, David Joseph
"WITHOUT UNDERSTANDING”: THE FBI AND POLITICAL SURVEILLANCE, 1908-1941
University o f New Hampshire PH.D 1981
University Microfilms International 300 N. Zeeb Road, Ann Arbor. MI 48106
Copyright 1981 by
Williams, David Joseph Ail Rights Reserved
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Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. "WITHOUT UNDEESTANEING"
THE EBI AMD POLITICAL SUEVEILLANCE, 1908-1941
BY
DAVID J . WILLIAMS
E. A. (History), Marquette University, 1974
A DISSERTATION
Submitted to the University of New Hampshire
in Partial Fulfillment of
the Requirements fcr the Deqree of
Doctor of Philosophy
Graduate School
Department of History
September 1981
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@ 1981
David J. Williams
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Dissertation director* Scbert M.Hennel Professor of Bistory
Hans Heilbronner, Professor of History
______W illia n a. Jones, Professor cf History
, ! \ ) i
B. tfatasin, PEOfe££Cr c£ HistOCT
iilliau Preston, Jr., Prcfecsor of History John Jay Colleqe of Criminal Justice, City University of New York
■L (IKl Date
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ACKNOWLEDGES ENTS
Special thanks to all of the members of my dissertation
committee, especially my thesis director, Robert Mennel. I
would also like to thark ay fellow qraduate students, in
particular Karen Andresen, Steve Cox, Ron lettieri, and
Steve Weisbuch. This proiect would not have been possible
without expert leqal ccunsel from my qood friend and
attorney, Ray Dall'Csto. Sany warm thanks to him.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ABSTRACT
" HI THOUT UNDERSTA NDI NG*1
THE FBI AND POLITICAL SURVEILLANCE, 1908-1941
by
David J. Williams
University of New Hampshire
By 1941, the Federal Bureau of Investigation, created in
1908 as the Justice Department's Bureau of Investigation, had
become a vast, influential and semi-independent bureaucracy.
Under the close' scrutiny of Director J. Edgar Hoover, the FBI
publicly promoted its criminal investigation capabilities and
highlighted dramatic episodes such as the Dillinger case. At the
same time, however, the FBI unilaterally created a covert code of
political crimes and conducted numerous illegal investigations of
both prom inent and o rd in a ry Americans.
This dissertation focuses on the development of FBI
political surveillance between 1908 and 1941. Discussion of FBI
enforcement of the criminal law will be limited to the aqency's
implementation of political surveillance investigations. Special
attention is given to analyzing the evolution of surveillance
techniques, and the variety of surveillance methods. Who were
the targets of political espionaqe? To what extent did the FBI
v
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. spy on leqal political activities? The study will also discuss
efforts of the executive and leqislative branches to control FBI
political surveillance activities.
T his d is s e r ta tio n r e l i e s p rim arily upon FBI i n v e s tig a tiv e
f i l e s and Bureau memorandums in th e custody of th e N ational
archives, and FBI files acquired throuqh the Freedom of
Information Act. Other documentary evidence is drawn from the
Congressional Becord. conqressicnal hearinqs, court records and
decisions, manuscript collections, newspapers, and memoirs.
vi
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ABSTRACT ...... V
INTRODUCTION...... 1
Chapter
I . THE ORIGINS OF THE EOREAU OF INVESTIGATION . . . . 24
I I . POLITICAL IDEAS BECOME CFIM ES...... 68
i n . THE RED SCARE AND THE DEPORTATION RAIDS . . . . . 112
IV. THE EUEEAO AND ITS EARLY CRITICS ...... 159
V. REFORM OF THE B I'S INTELLIGENCE OPERATIONS . . . . 197
V. FBI FC1ITTCAL SURVEILLANCE, 1924-1 936 „...... 253
VII. REFORM AND PUBLIC RELATIONS, 1920-1940 ...... 304
V III. PRELUDE TO HAR, *936-1941 335
BIBLIOGRAPHY...... '...... 334
APPENDIX ...... 3 98
\
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Introduction
The Federal Bureau of Investigation {FBI) was founded in
1908 with the primary purpose of investigating violations of the
a n t i - t r u s t and bankinq law s. By 1941, the FBI was a
semi-autorcncus aqency, free frcm the normal restraints placed on
ether federal departierts and aqercies. In 1939, for example,
the Bureau may have unilaterally developed contiucency plans for
the preventive deterticn cf individuals it considered dangerous
to the nation’s internal security. Had such a plar ever been put
into effect it would have clearly breached Constitutional riqhts,
but there is no indication that the FBI sought either the
President's or the Attorney General's permission. Most of the
individuals placed cr the Bureau’s detention list were not
serious threats to the nation's security. Ccrqresstran Vito
M arcantonic, a member of the American Labor P a rty and a
persistent critic cf President Franklin Roosevelt's foreign
policy, for example, was put on the detention irdex after
delivering a nationwide radio address on Kay 30, 1941. Later the
list would include persons such as Hartin Luther Kinq, Jr., Yale
Law School's Constitutional scholar Thomas I. Emerson, Frank
Conner, a New York lalcr lawyer vhc was critical of the Bureau,
Dr. Quentin E. Young, chief of Medicine at Cock County
{Illinois) Hospital, and Ken Lawrence, a civil rights and peace
1
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a c t i v i s t . [1 ]
The development of F3I political surveillance from its
founding in 1908 through 1941 and the inpleraentaticn cf programs
such as the deportaticr raids cf 1920 and the custodial detention
plan are the subject of this dissertation. It will also consider
how the FEI the Bureau came to exercise the authority that it was
never officially granted. The role cf Congress, the Executive,
and the courts in this process will also be examined. I will
arcue that illegal FBI political surveillance and aggressive
intelligence activities are the result cf institutional failures
and conscious policy decisions, and not simply the product of FBI
director J. Edgar Hccver's xenophobia, anti-communism, and
racism. Had the Congress, the Executive, and, to a lesser
extent, the ' courts exercised their Constitutional
r e s p o n s i b il it ie s and taken more s e rio u s ly c ritic is m of FBI
abuses, Hccver would never have had the opportunity to build his
counterintelligence empire- Political leaders, however,
consistently fcund anti-crime and anti-radical sloganeering more
attractive aid thus paid little more than lip service to
preserving the rights of minorities and political dissidents.
There were, cf ccurse, exceptions. Representative Baiter
Huddleston cf Alabama, a courageous defender of the foreign-born
worker, sponsored legislation to curt FEI abuses at the height cf
the first Bed Scare (1919-1920). Few listened and fewer
supported his proposal. Similarly, Senator George Norris of
Nebraska challenged the FEI on the eve of the Seccnd World Bar.
In February 1940, N crris c r i t i c i z e d e a rly , morning ra id s in
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Detroit durinc which the FBI arrested and held incommunicado 10
men and a woman. The suspects, who had teen active in
recruitment fcr the Abraham Lincoln Brigade, had alleqedly
violated a federal law prohibiting such activities. Despite
evidence that indicated that Eureau aqents had violated the
rights of tie Detroit defendants, the Senate refused to step-in
and conduct an investigation of the FBI’s growing internal
security responsibilities.[2]
But these failures do not completely explain why the FEI
conducted tcn-criminal, politically-motivated investigations in
the first place. Federal political surveillance can only be
understood in the context of America's nativist and anti-radical
traditions® FBI political surveillance served to stabilize
industrial relations and limit democratic participation in the
political process: it helped to make the United States safe for
ccrporate capitalism. Political and economic leaders used the
Bureau in an attempt to undermine popular support cf reform and
radical movements. Ihey understood, as ethers had before them,
that spies, informers, and aqent provocateurs could effectively
encouraqe ir-fiqhtirq and spread distrust within targeted
organizations. Essentially, the Eureau was the official
counterpart to the private detective agencies hired by
industrialists to intimidate the later force and preserve the
open-shop, services which Jercld Auerbach has called an
"instrument of industrial warfare. "[3 1
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4
The qrcwth of the FBI’ s power and i t s im pact on in d iv id u a l
riqhts prior to the Second Scrld Sar is an important aspect of
modem American history. Yet historians have qiven this
important subject only peripheral treatment. Fart of the problem
lies in the lack of primary source materials. Fcr ever 60 years,
the FBI odd not allow ary independent researchers to review its
investigative files. Cn cccasicn, however, the Bureau leaked
material tc friendly conqressmen, sympathetic journalists, and
others who would use the material tc discredit critics or to
write favorable reviews, articles, and books. Then, in 1974, in
the wake cf the Watergate scandals and revelations of
intelligence agency abuses, Ccrqress amended the 1966 Freedom of
Information Act. For the first time, federal law reguired
federal acercies, including the FBI, tc open their vast files to
public scrutiny. Thomas Emerson has summed up the amended law’s
importance: HFew developments in our time have done more than
the FOIA to tear away the veil of government secrecy and tc
promote the participation of citizens in the democratic process.”
By own use of the FC1A will be discussed ]ater in this
introduction.[4 ]
A review of previous histories of the FEI suqqests that
there is another reason why the early history cf the FBI has net
teen carefully examined. FBI surveillance activities prior to
the Second Sorld War have been, for the most part, discussed in
the context cf the intelligence abuses cf the Cold War and have
never been considered important enouqh tc rerit a separate study.
Beflectinq ttis sentiment, former assistant FBI director Courtney
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Evans has concluded that Eureau activities durinq this period
have "little tearing on the modern-day FBI unless cne accepts the
thesis that Hoover’s involvenent as a young Justice Department
o f f i c i a l {from 1919 through 1924) may have unduly in flu en ced h is
unwavering belief ir and public varninq against the 'communist
conspiracy* ever the succeeding 50 years," Evans' attempt to pass
off this period as unimportant has not attracted much support
amonc professional historians. And despite their agreement with
Evans that Hoover did solidify his power durinq the 1920's and
early 1930'sr little las been dene to explain the significance of
the Eureau's formative years.[5]
The most thorough congressional inquiry iEtc FBI
intelligence activities proceeded from a similar assumption. In
1905-1976, the Senate Select Committee to Study Governmental
Operations with Respect to Intelligence Activities, pcpularly
known as the "Church Committee", investigated the FEI, the
Central Intelligence Agency, the National Security Aqency, and
the intellicerce operations of the Nixon White House. Yet the
committee's final report, Intelligence Activities and the Rights
of Americars. devotes cnly a few cf its almost 350 pages to the
pre-Sorld War II era. A companion volume, Sccclementarv and
Detailed Staff 'Reports cr. Irtelligence Activities and the Rights
of Americans. does little better- Of its 982 pages, 14 relate
the history cf the FEI pricr tc 1936, and this discussion is
little mere than a rehash of Max Iowenthal's Federal Bureau of
Investigaticn (1950).[6]
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Lowentbal's beck, published at the height of post-war
political repression, traced the history of the Eureau from its
founding through the late 1940's. Lowenthal, a graduate of the
Earvard Law school, had been secretary to the National Commission
on law observance and Enforcement (wickersham commission) in the
late 1920's and a consultant tc Senator George Norris ten years
later. Given this experience, lowenthal was eminently qualified
to examine FEI investiqative activities. He had carefully
studied the Bureau's histcry and jurisdiction in criminal and
security matters. In 1940, at Norris's reguest, Lowenthal
prepared several detailed briefs which called attention to past
Bureau abuses and to erroneous claims made by the Bureau as Fart
of its public relations campaiqt. This Frolect served as a pilot
study f o r The jBT-fr?]
The book, like the Norris reports, was extremely critical of
the FBI. like many others durinq the McCarthy era, Lcwenthal was
particularly concerned abcut the FBI's role in the post-war
repression. Followinq a careful study of the first Red Scare,
anc findinq that repression during the 1940's was similar to that
of the 1S2C's, Lowenthal ccnclced that the methods used by the
Bureau were "abhorrent to democracy," threatened Constituticnal
Government, and seriously violated individual riqhts.[81 The
Bureau tried to suppress the work. In an attempt to discredit
low enthal and impugn h is i n t e g r i t y , he was c a lle d before a Hcuse
Committee tc testify ir executive session. FBI aqents attempted
tc persuade booksellers not to stock the bcok. The Bureau also
prepared and distributed derogatory materials and book
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reviews.[9] Shale ultimately ursuccessful, the Bureau managed to
stir up enough neqative publicity tc limit the book's impact and
call into question the author's integrity and credibility. Fcr
example, ir 1972, the liberal historian Paul Murphy branded the
lowenthal book "hypercritical".[101 Nevertheless, the abuses
outlined by Lowenthal sees tame compared to what the Senate
committee urcovered in 1976, in part, because loventhal's
research was limited to publicly available sources such as the
Congressional Record. Ccngressicnal hearings, and court records.
While the FBI is the most complete early study of the
Eureau, tie beck car be criticised cn several qrcunds. By
selectively cucting from public records, lowenthal develops
several erroneous interpretations. The most serious concerns the
founding cf the Bureau by Attorney General Charles Bonaparte in
1908. Lowenthal argues that Congress opposed the creation cf the
FEI, fearinq that the Bureau would become a political police in
the European tradition. But he fails to explain why Conqress did
net simply refuse tc appropriate funds to run the Eureau. As we
will see, the story is more complex than Lowenthal is willing to
concede. Her does he try to explain why Hoover ana the FBI were
sc popular in the 1930's ard into 1940 's. Despite these and
ether flaws, the FBI remains an invaluable source fcr research
into the early histcry cf the Eureau-fH]
In order to discredit Icwenthal and The FBI. Hoover
commissicred Bon Whitehead, a puli 2er prize-winning journalist,
tc write a more favorable history of the Bureau. Kith access to
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selected FEI documents, Whitehead published FBI Storv: A
Beport to t.fce A mericat People (1956).T 12] Not surprisingly the
took exonerated Hoover cf Lcventhal's charges, occasionally
admitting, however, that seme policies pursued by the Eureau,
especially the deportation raids of 1920, were i 3 3-ccnceived and
poorly executed. Here sophisticated than the -journalistic
trilutes of the 1930's, Whitehead's book contained important new
information. For the first time. President Franklin Roosevelt's
1936 order liftinq the Justice Department ban on political
surveillance was made public.[13] But like the Lowenthal book
Jane perhaps because of it). The FBI Storv suffers from serious
methcdoloqical and interpretive shortcomings. Whitehead
erroneously claims that Attcrney General Bonaparte created the
Eureau in an effort to combat Conqressicnal corruption. Congress
prohibited the Attcrrey General from borrowing Secret Service
agents, Whitehead argues, because it feared investigations of
members' shady dealings. The legal and Constitutional cuestions
actually addressed by the 60th Ccrgress and Attorney General
Ecnaparte are never mentioned, leaving one with the impression
that Congress never expressed any fundamental misgivings about
the Bureau. Whitehead also accepts uncritically Hccver's
explanatior ahcut his role in the deportation raids. According
tc Hoover and Whitehead, Hoover only drafted theoretical legal
briefs for Attcrney General A. Mitchell palmer and took no part
in the platting and execution cf the raids. Documents available
to Whitehead in the mid-1950's would have sugqested that such an
explanatior was dubious at best, an outright falsehood at worst.
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One can only conclude from this that Whitehead turned his back on
such evidence to serve Hoover's political needs.[14] It is filled
with misrepresentations and the selective use cf evidence. Hone
of this, however, prevented Thq ?gi Story from becoming an
instant bestseller. Several years later, an ecually successful
motion picture, based cn the beck, was produced.f 15 ]
Since The FBI Storv tore the Bureau's stamp cf approval, its
publication did net end linqering doubts that the FBI had
seriously abused its authority. Ihe 1960's gave rise to a new
save of criticism. In 1963 historians William Prestcn, Jr.,
Donald Jchnsct, and Stanley Ccben published bocks that were to
some degree critical of the Bureau’s role in the post-World War I
Bed Scare. Cf the three, William Preston's Miens and Dissenters j focuses most directly on FEI operations, especially the
deportatior raids of 1920. Using previously classified labor and
Justice Department documents, Prestcn clearly demonstrates that
Hoover was the primary architect cf the Justice Department's
deportatiois strateqy. But since Preston did not have access to
many other FEI investigative files, he was unable tc pursue leads
that succested that political surveillance was much more
pervasive and systematic than anyone hac presumed. Prestcn, fcr
instance, fcurd that as head of the Eureau’s General Intelliaence
Division, Eccver had asked Military Intelligence and the State
Department to search their files for any cerccatcry information
about Assistart Secretary cf labor Lcuis F. Eost. As the
Department official in charge of the administration of the
deportation laws. Post had freed many of the radical aliens
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arrested by the Bureau, thereby scuttlinq Hccverts deportations
strategy.r 16 ]
Johnson in C h allen ae J o Aaerican Freedoms (19€3) and Coben
in Hitcbell Palmer; Politician (1963) also link Hcover to
the planning and execution cf the raids. In an important chapter
on the refcrm of the Justice Department and the FBI in 1924,
Jchnson deiails the events leadinq up tc the resiqnaticn cf
Attorney General Harry Daugherty and Bureau director William
Burns and the appointment of Harlan Fiske StoEe as attcrney
General and J. Bdqar Hoover as IBI director. But like Preston,
neither author was allowed access tc pertinent FBI materials. As
a result, the books offer no further insiqht into the extent of
FBI political surveillance activities durinq the early post-war
period.f17 ]
In 1964, Fred J. Cock, an investiqative reporter for The
N aticn. updated L c w e rth a l’s beck in h is study The FBI Nobody
Knows. Drawirq on materials collected by The N a ticn»s editor,
Carey McWilliams, Ccck contributed valuable new infcrmaticn about
an FEI in v e s tig a tio n cf Senator Burton K. W heeler, an in su rg e n t
Democrat from Montana, who had pursued an investigation into the
Barding scardals. Ccck alsc documented FBI investigations of its
critics and other political dissidents during the Cold War era.
Eut on the whole, T he FBI Ncbodv Kncws is little more than a
qeneral, tbcuqh well-written, account of events already examined
by Lowenthal.r 181
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. In 1971, after FBI documents revealinq Bureau infiltration
cf the "New Left" were stolen from the FBI field office in Media,
Pennsylvania and distributed to -journalists and others, the
Committee fcr Public Justice sFcnsored a conference to discuss
FEI political surveillance. The Committee extended an invitation
tc Hoover tc deliver an address to the conference. Hoover
declined the offer, optinq instead to send a lcnq letter
defending the Eureau's counterintelligence activities. Hccver,
cf course, denied that the FBI had ever conducted
politically-motivated, non-criminal investigations. The
conference Fapers were published in Investigating the FBI, edited
by Stephen Gillers and Pat Watters. But with the exception of a
history of the FBI written by Harvard leqal scholar Vern
Cccntryman, the book focused on FEI activities since the Second
World War, cfferinq little new insiqht into the Eureau’s early
h is to ry , f 19 1
In 1975, following Hoover’s death in 1972 and the Waterqate
scandals, the U.S. Senate appointed a select committee tc study
intelligence activities. as noted above, the committee staff
decided tc fccus alncst exclusively on FEI activities from 1936
through the mid-1970’s. Following this investigation and the
passage cf amendments to the FOIS, several comprehensive
h i s t o r ie s cf the FBI have teen p u b lish ed . Cf th e s e , flthan
Theoharis’s Spying on Americans and Frank Dcrner's age cf
Surveillance are the most complete accounts. They also offer two
distinctly different explanations for the development of FEI
political surveillance activities. Theoharis,.who served as a
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consultant to the Church Committee, contends that illegal FEI
activities such as the Bureau Counterintellicence Program
(COINTELPBO), varrentless wiretapping and search and seizure, and
its custodial detention plan are the result of the consclidaticn
of executive pcwer during the Cold War years. Prior to this
period, he argues, FEI abuses were ac hoc, and were limited to
th e y e a rs between 1917 and 1924. While conceding in se v e ra l
fcctnotes that the FBI did engage in political surveillance
between 1924 and 1936, Theoharis contends that the FBI did not
undertake widespread surveillance until Franklin Boosevelt
rescinded the Department ban on these activities. Thecharis
further sucgests that pricr tc 1936 Conqress would have checked
any attempt by the executive tc amend Department policy and that
this was enough to persuade FEI director Hoover and ethers net tc
violate Stone's order. During the late 1940's and early 1950's,
the Cold War tipped this institutional balance in favcr of the
Executive, allowing internal security bureaucrats to develop and
inplement policies without first consulting with Congress:
w {!)he Cold War encouraged a stronq elite-dominated government
with authority tc make decisions and the gradual acceptance of
the need for secrecy and urcritical deference to so-called
national security claims. T 20 ]
Theoharis finds that liberals and conservatives egually
share the responsibility for this development. Liberals lost
their nerve and enthusiastically embraced the anti-communist
dogma that made security claims particularly persuasive. At the
same time, conservatives, who had traditionally favored
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decentralized government, limited executive authority, and,
however qualified, support for individual civil liberties, "came
to reject these conservative principles, particularly in the
•n a tio n a l se cu rity * area. Success in the f ig h t a q a in s t communism
at hoDe and abroad required centralized power, repudiating
legal/constitutional constraints, rejecting moral values, and
deference tc the executive hr anch. "f 21 ]
In The Ace of Surveillance. Frank Dcnner rejects the idea
that FBI intelligence abuses are simply the result of the Cold
War. While aqreeing with Theoharis that the Bureau’s internal
security responsibilities grew exponentially during the 1950’s
and 1960’s, Conner argues that illegal FBI political surveillance
is rooted in the contradictions of the American political
economy. Intelligence agercies protect a conservative capitalist
economic and political order from criticism that is otherwise
protected by the U.S. Constitution:
To a far greater extent than in other Western democracies (the United States) has asserted superiority ever socialism by insisting that it alone can guarantee political freedom. But the political freedom that legitimates the economic system poses a threat to the stability of the political order, indeed, a mounting threat in view of the ever increasing dependence of capitalism on state interverticn and subsidy. Given such an alliance between the qoverrment and the wealthy and powerful, how can the government enjoy mass support and the loyalty of all classes? Hew can it avoid the emergence of political options that offer alternatives tc capitalism? The reed for political socialization within the confines cf the eccEcmic system - a need cnce served by the media, the family, schools, and private asscciations - has become a major responsibility of the government, and in particular its
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political intelligence institutions.[22 1
Intelligence agency interference in the political process,
Dcnner notes, is legitimated by their pursuit of the "menace".
Cver the years different groups and political parties have played
the part cf this security scapegoat, at the beginning of the
twentieth century, the Industrial Workers of the Wcrld {IWW) and
the anarchists were cast in this role. Following the Bolshevik
levolution, the Comaunist Party supplanted the Wotblies as the
clear and present danger to American security. Duiinq the
1960's, the New Left replaced the Ccamunist bogeyman- And most
recently, alarms are sounded about the threat cf "international
terrorism. 11 Thus illegal FBI surveillance of lawful political
activities is net the product cf the dramatic institutional and
political changes that have marked the Cold War years, but rather
is the ccnseguence cf "American obsession with subversive
conspiracies of all kinds," the anti-ccmmunist "kulturkamcfand
the needs of corporate capitalism. While Dctner traces the
history of FBI security investigations from the becinninq of the
First World war, he, like Thecharis and ethers, emphasizes the
Fcst-World War II era. And with the exception cf his important
theoretical contribution. Dourer offers little new insight into
the pre-1940 period.T23']
This dissertation hopes tc ccnplement the work of Theoharis,
Tenner, ere ethers and examine FBI political suveillance
activities prior to the Second World War. The first chapter will
focus on the events leading up tc the Attorney General's decision
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to create the FBI, the Conqressicnal debate that followed, and
the Bureau’s early investiqative activities. Chapter II
concentrates cn the emergence of the Bureau's internal security
investigations from 1913 thrcuqh 1918. Chapter III is a case
study of the deportation raids of 1920 in New Hampshire and
examines Ecreau activities on.the state and local level during
the First Hec Scare. Chapter IV outlines the Bureau reaction to
criticism of the deportation raids and examines its
investigations cf the emerging civil liberties movement- Chapter
V focuses cn attem p ts to lim it FBI s u r v e i ll a ic e through th e
courts and Congress, and Eureau activities durinq the
Earding-Dauaterty-Burrs era. The chapter concludes with an
examination cf attorney General Harlan Fiske Stone's 1924
directive prohibiting ncn-cximinal, politically motivated
investigations. Chapter VI examines FBI political surveillance
in violation of the Stone order, Eureau dissembling, and Bureau
activities curing the first Rccsevelt administration. Chapter
VII examines FEl a d m in is tra tiv e reform from 1920 throuqh th e la te
1930's and the transformation of the Bureau's public image durinq
these years. Chapter VIII locks at President Franklin
Ecosevelt's 1936 and 1939 directives authorizing Btreau political
s u rv e illa n c e , and FBI s e c u rity in v e s tig a tio n s from 1936 throuqh
1941. It also examines the implementation cf the Eureau's
custodial detention program and wiretapping polices, and the
Congressional response tc these developments.
*****
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This study is based, in larqe part, on FBI files in the
possession cf the National archives and obtained through the
Freedom of Information Act. In September 1977, as a result of
Fresident Bichard Nixon's 1972 executive order requiring the
declassification of federal agency files, the National Archives
acquired FEI investiqative records compiled from 1908 throuqh
1922.[24] The microfilmed files are broken down into the
following categories: 1) Miscellaneous (Misc.); 2) Mexican
(S ex.); 3) Cld German (O.G.); 4) Bureau S ection (B .S .).
Miscellanecns files include records cf Bureau investigations of
violations of the anti-trust and banking lavs, seme Mann Act
cases, anc ether investiqative activities prior to the First
World War. Mexican f i l e s in clu d e reco rd s r e la tin q tc the
investigaticn cf Mexican radicals in the United States and Mexico
and violation of the Neutrality lavs during the herder troubles,
1912-1918. old German files includes records compiled during the
war and through the Bed Scare. Bureau Section files were
compiled from 1920 through 1922 and include records of BI
political surveillaEce. Mcst cf these records cover the years
after 1917. Bureau investigations of the IWB which began as
early as 19 12-1913, for example, are not indexed prior to 1919.
Consequently, many of these records'are net easily retrieved.
After 1918, Icvever, the Bureau's records are carefully indexed
and most are readily accessible. There are, however, important
exceptions. Many of the more sensitive files concerning the
investigation cf federal judges, congressmen, cabinet members,
and ether prominent individuals are missinq from the microfilm
i Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 17
collection- These records were presumably destroyed or refiled
sometime before June 1243- No reference is made as to why this
action was taken. In addition, a fifth category, called "the
confidential file", is ret incltded in the archives collection.
This file included records referrinq to individuals such as Harry
Weinberger, ac attorney for the anarchists Emma Goldman and
Alexander EerJaan, Senator Bobert LaFollette, assistant Secretary
cf Labor Louis Post, and Eamon EeValera, and orgarizaticrs such
as the American Federation cf Labor, the IWW, and the National
Association for the advancement of Colored People.[25]
Nevertheless, Bureau records of the investigations of some
prominent anc many other less-prominent individuals and
organizations are more or less complete, allcwinc the historian
to examine Eureau surveillance activities at the local level and
evaluate its impact on the lives of averaqe men arc women. While
these records cffer a unigue opportunity to study "workinq-class
life and culture," re attempt will be made here to examine this
sublect in a comprehensive fashion. To do this subject lustice
would reguire another entire vclume. One purpose cf this thesis,
however, is tc stimulate interest and research cn this topic. I
can only hope that my footnotes will provide a detailed, thcuqh
incomplete, quide fcr those historians who wish tc pursue this
and related topics. [26]
FBI files acquired through the FOIA constitute a second
important primary source. In August 1978 I submitted an
extensive ECIfl request, askinq for Eureau records on the
activities cf 26 organizations and 36 individuals. Copies of
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correspondence relac this request can be found in the appendix. i 0 date.ve received f ile s cn 7 individuals and 8 organizations. Thainder of the reguest waits to be Processed, a resul prohibitive reproduction fees and the failure of the justDepartment to process ny fee waiver request expeditious That FBI file s , some over 50 years old, are not in the posse: of the National Archives, unlike those of other federal cies such as the State and Defense
departments, is a :leo that awaits resolution. Massive declassification of: records, especially these relatirq tc
non-criminal surveill, compiled between 1S23 and 1S«1# rs required i f the hisr of Bureau activities durinq this period
is tc be mere thoroug.examined, obviously, then, this study
barely scratches thenrface of this subiect. I t does however suggest important newjnues of inquiry. Whether these avenues w ill remain open isgioblematical- The Reacan Administration
says that it wants tc st the government off the tacks of the people.« let at the time, it has proposed to gut the FOIA, the main barrier agair] illegal government surveillance. only through the independen inspection of federal files, especially those of the intelliqevce agencies, can Anericans hope tc preserve arc protect political rights aqainst official interference, as Justice Louis Brandeis observed: "Experience
should teach us to be most or guard tc protect liberty when the government's purpose is beneficial. . .The greatest dangers to liberty lurk in the insidicus encroachment cf men of zeal,
well-meaning, tut without understanding.Mf27 ]
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. NOTES
1) Athan Theoharis, Spying on Americans: Political
Surveillance From Hoover to the Huston Plan (Philadelphia, 1978),
40-43. "Should the FBI Purqe Its Files?," OS A Tqdav (November
1978), 46-50. Frank Bonner, The Age of Surveillance: The Aims
and liethods of America's Political Intelligence System (New York,
1980), 146- 150, 162- 169; Caroline Boss and Ken Laurence, J.
Edgar Hoover «s Detention Plan: The Politics cf Becressicn.
1939r1976 (Philadelphia, 1978), 20-21. The FEI is not, hovever,
) vithcut its defenders. In his book, Domestic Intelligence
(Austin, 156C), Bichard E. Horqan claims that the index was
composed solely cf "persons (koth aliens and citizens) whc were
considered, cn the basis cf intelligence information, so
dangerous that their arrest might be necessary in a home-front
emergency." (emphasis added) Domestic Intelligence. 34. Morqan
and the FBI wculd be lard pressed tc explain hew ard why a B.S.
conqressmar was "dangerous." Mcrqan simply chooses to iq n o re t h is
evidence ir making his argument.
2) See chapters I, V, and YIII, infra.
3) Jerclc Auerbach, labcr ard Liberty: The LaFollette
Committee anc the New Deal (Indianapolis, 1966), 97; Thomas E.
fiay. Constitutional History jjf England (Boston, 1864) , vol.II,
19
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 20
275-281; H.P. Thompson, The Baking of the Enolish Working Class
INev York, 1963), 472-602. See also, William Preston, Jr., "In
Security*s Nane," Tie Progressive. 43 (May 1979), 55-56. David
Eentqomery, Workers1 Control in America: Stndies in the History
of Work. Technology. and lahor Struggles (Cambridqe, 1979),
158-161.
4) See Eelvyn Euhofsky, Wj Shall Be All: ^ History cf thg
IWW (New York, 1969), 539; Victor Rafcinovitz, jj Be Alger Hiss
(New York, 1S78) , vol.I, x. Freedom of Information Act,
50.S.C.552.
5) Courtney Evans, "Proposals for Benovating the FEI," in
Bichard H. Elum, e d ., S u rv e illa n c e and Espicnaoe i n a Fee
Society (New York, 1972), 47-48. See also, Michael Belknap, "The
Mechanics cf Bepression: J. Edqar Hoover, the Eureau of
Investigation and the Eadicals, 1917-1925," Criae and Socia1
Justice (Sprinq-Summer 1977), 49-58.
6) Senate Select Comiittee tc Study Governmental Operations
with Respect to Intelligence Activities, Final Repcrt,
Intelligence Activities ard the Rights of Americans. Book II,
94th Cono., 2d Sess. 1976. Hereinafter cited as IARA.
Supplementary and Detailed Staff Reports on intelligence
Activities ard the Eights of Americans. Bock III, 94th Ceng., 2d
Sess. 1976. Hereinafter cited as SDSR. Max Lowenthal, The
Federal Bureau of Investiga tier (New York, 1950).
I Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 21
7) Ecx 278, Gecrge Norris MSS, Library of Congress,
Washington, B.C.
8) Donner, Age of surveillance. Ill; Carey McWilliams, The
Education cf Carey McWilliams (New York, 1978), 148, 215.
9) Paul Murphy, The Meaning cf Free Speech: first Amendment
Freedoms From Wilson to FTP (Greenwich, 1972), 69.
10) Compare the findings in Icwenthal, FEI with those of the
Church Committee. See especially, IABA. SPSS. Icwenthal, FBI.
465.
U) Jfcid. . 3-13- See chapter I, infra.
12) Den Whitehead, The FBI Story; A Report tc the American
People (New’ Ycrk, 1956).
13) Ibid. , 157-165. See also, chapter VII, irfra.
14) Ibid. 17-25, 46-53. See, e.q., National Popular
Government league, T_c the American Peotle: Berort Open the
Illegal Practices of the Dnited Stgj Department gf Justice
(Washington, I.C., 1920), 40.
15) Bichard Gid Powers, "Cne G-Man's Family: Popular
Entertainment and J. Edgar Hoover's FBI," American Quarterly.
30(Fall 1 97E) , 471-492.
16) William Preston, Jr., Aliens and Dissenters: Federal
SuppressioE cf Radicals. 190 3- 1933 (Cambridqe, 1963), 208-237.
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17) Ecrald Jchnscn, Challenge tc a ice ricar F reedoras: World
War I age the R ise of Jhj American Cj.vrl liberties Gala!
(Lexington, 1963), 148-175; Stanley Coten, A* Mitchell Palmer:
Politician {New York, 1963).
18) Fred 0. Ccok, The FBI Nobody Knows [Lender, 1964).
19) Stephen Gilleis and Pat Natters, ed.. Investigating the
FBI (New York, 1973).
20) Tbecharis, Srving on anericans: Dcncer, Age cf
Surveillance: MortCE Halperin, et al., Thq Lawless State: The
Crimes of the Onited States Intelligence Agencies (New York,
1976); SaEfcrd Onqar, FBI (Boston, 1976); Eavid Wise, The
American Police State (New Ycrk, 1976).
21) Tbecharis, S tying cn Americans. 230-234.
22) Berner, Age cf Snrveillance. 9-10.
23) Ibid. . 10-20.
24) FEI investiqative Files, 1908-1922, Heccrd Grcup 65,
National Archives, Washinqton, D.C. See Christine Warwick, ed.,
litigation Onder the Federal Freedom jgf Irfcrmaticn Act
(Washinqton, 1978), 67-93, for an explanation cf the
declassification orders-
25) See index tc FBI investiqative files, 1908-1922.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 26) See Lcrin Lee Cary, ’'The Eureau of Investigation and
Badicalism in Toledo, Ohio, 1918-1920,” Labor History. 21 (Summer
1980), 430-MC.
27) Olmstead v^. Onited States. 2770.S.U36, «79 (1928)
Jdissentinq CFirion). See also. Jay Peterzell, "Tie Intellioence
Transitior,” Tirst Princicies, 6(Jacnary 198 1), 1-3.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter I
Ike Oriqits ard Early Activities of
the Eureau of Investigation, 1870-1913
The Federal Bureau of Investigation is a stepchild of
American Frccressivism. Oriqinatinq in 1908 in the Justice
Department as the Bureau of Investigation JBI) it siqnified a
reformist effort tc control and limit effectively the federal
government's investiqative activities, while, at tfce same time,
neet the clallenqes cf modern law enforcement. Histories of the
Eureau have otscured cr iqncied the criqins of the agency,
perhaps fcr polemical reasons. The suhqect is important,
however, sirce one car find here echoes of the controversies
which later surrounded the FEI. This chapter will reexamine the
disparate roots of the agency, the debate in congress surroundinq
its creation, and notable early concerns such as the enforcement
of the Harr Act and its investigations cf federal q'udges-[1l
In a sense, the FEI originated in the tensions and conflicts
of the Civil Rar - Reconstruction era. In 1870, Ccnqress created
the Department of Justice as part of a major reorganization of
fe d e ra l le q a l a c t i v i t i e s . The n e c e s s ita tin g fa c to r was the
significant increase in war-related litiqation forced upon the
24
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established departments {State, War, and Treasury). By the late
1860’s Conqress was faced with their demands for authority to
hire solicitors and form their own law offices. In response.
Senator Lyman Trumbel 1 {Sep., 111.) and B epresentative Thomas A.
Jenkes (Fep., H.I) introduced legislation tc establish a
department of justice. Supporters of the idea claimed that it
would eliminate duplication, increase efficiency, and allow the
federal government to speak with one voice in important legal
matters. Since Ccnqress was already busy with other pressing
matters, including the impeachment of President Andrew Jchnson,
the committees responsible fcr the legislation did not report out
a final proposal for seme time. When the bill finally reached
the floor for debate, however, opposition tc the measure ”*as
largely perfunctory.” On June 22, 1870, President Ullyses S.
Grant signed the legislation, and, on July 1, the Justice
Department "came i n to form al e x i s t e n c e . 21
In Justice, Conqress envisioned ”a law department equal to
the presert emergencies of the law business of the day.” The new
department would be headed by the attorney general (a cabinet
member since 1790), whc was qiven sweeping powers to prosecute
violations cf the law, to represent the government in civil suits
and to assist the President and ether federal officials to carry
out their duties. The Solicitor General, a post created by the
same law, was authorized tc represent the government before the
Supreme Court and to advise the federal judiciary cn the law.
Conqress alsc required the attcrrey qeneral to draft rules and
regulations for the ” maragement and distribution of {the
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department's) FQ*ers."[3]
Of all of the department1 s responsibilities, the
"enforcement acts" were its most controversial. Besiqned tc qive
e ff e c t to the 14th and 15th A rnerdne r ts , the new laws empowered
federal officials to prevent intimidation cf white carpetbaaqers
and newly-etfrarchised blacks. At first, the new Attorney
General, Amos T. Ackerman, a former confederate officer vhc had
enthusiastically embraced Republican politics after the war,
scuqht vigorously to suppress violence and viqilantism: in the
South. As complaints cf Ku Klcx Klan and related activities
mounted, adequate investigations became increasingly problematic.
In 1871, Akerman suggested th a t " (t)h e law would b e tte r be
enforced if the Attorney General had the authority to employ
) persons to learn the facts, gather testimony and prefer charges."
Conqress appropriated $50,000 (renewable annually in amounts
required to satisfy the department's needs) fcr investigative
purposes.TEI The department iritially authorized O.S. Attorneys
tc hire "special agents", called "special deputy marshalls", for
record-keepinq purposes and to assist their offices ic criminal
investigations. The special acents were usually detectives or
skilled examiners borrowed from the Treasury Department's Secret
Service Divisicn-Th]
Like ether federal Reccrst ruc ticn proqrams, the Justice
Department's investigations experienced some initial success but
then waned due to local resistance, the lack of the necessary
resources, and declining interest among Northern Repuplicans in
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27
the plight cf the freedmen. In 1877, when the last cf the
federal trccFS were withdrawn from th South, enforcement of the civil riqhts laws came to an end.fSl
The Justice Department’s activities during Reconstruction,
particularly its use of professional detectives to enforce
unpopular laws, left a hitter leqacy. Many white southerners saw
these federal officials as aqents cf repression ard tyranny, and
for the next several decades, Southern congressmen would have
blocked any move to qive the Justice Department the authority to
h ire f u l l - t i n e d e te c tiv e s . Summinq up th is widespread f e e lin q ,
Representative James H. Beck {Eem., Ky.) declared that the
attorney General had sent "seeret-service thieves all over the
land - to Alabama, Lcuisiara, South Carolina, and elsewhere - for
the purposes of wronq and oppression. I repeat, it is a
Department cf injustice instead cf Justice. nr 61
Mistrust cf professional detectives, however, was net
limited tc the pcst-Reccnstruction South. Historically,
Americans have identified official investications with
governmental abuse and corruption. Frank Donner notesz "The use
by governments of p o l i t i c a l s p ie s was reqarded with re v u ls io n by
the founders of the Republic, lonq familar with such abuses both
in antiquity ard in the contemporary practices of Georqe III.
The planting of informers in protest groups aEd movements was
associated ir the mirds of the founders with the offense of
seditious libel, the key instrument of repression in the
eighteenth century." Throughout the nineteenth century, and into
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the twentieth, nary Americans lcckea contemptuously upon the
development of European secret police systems, especially those
in France, Fussia, and Ireland. Thus, it was believed that
spies, secret service operatives, and their informers were
unsavory characters who willfully violated individual riqhts, and
ultimately undermined community trust and faith in democratic
institutions.T 7]
Early Attorneys General shared this aversion to the
establishment of a raticEal pclice force, and repeatedly refused
tc employ professional investiqators on a full-time basis.
Instead, they followed Akerman's lead and continued to borrow
aqents from the Treasury Department. On occasion, the Justice
Department hired employees of the Pinkerton Detective Aqency on a
part-time basis, but followinq the Homestead ricts in July 1892,
Conqress forbade the use of Pinkertcn's in any official capacity.
Fcllowinq this restriction cn department hirinq practices, the
Attorney General authorized O.S Attorneys tc resume bcrrcwinq
investiqators from Treasury "frcm time to time as needed.1'
Summing up department policy in 1882, Attorney General Eeniamin
Brewster wrcte: "I have always teen adverse tc appointirq and
paying detectives and I have always disposed of them and
dism issed them (as soon as p o s s ib l e ) ." T8 1
Department policy chanqed radically durinq Theodore
Roosevelt's second admiristraticn. Roosevelt, mere than any of
his predecessors, used his office tc promote social and economic '
change. The Sherman Anti-Trust Act (1890) was an important part
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of this camFaiqn.. The Sherman Act aimed at curbinq the power of
larqe corporations ard restcrinq free trade and competition.
Consequently, the Justice Department, like nary ether federal
aqencies, assumed a more active posture. Hith the President's
approval, the Justice Department used the Sherman Act tc brinq
suit agairst seme cf the largest corporations and combines. The
department also tried to enforce federal bankinq law sore
vigorously and prosecute violations of land laws.fSI
In 1SC6 Eoosevelt appointed his Secretary of the Navy,
Charles Ecnaparte, attorney qeneral. Bonaparte, a Baltimore
attorney, had served in the adminstraticn for almost four years
as a member of the Board of Indian commissioners. He had also
been a special prosecutor in charge of investigations of
corruption in the U.S. Post Office and of land fraud in the
Indian Territory (Oklahoma). Eoosevelt once told Bonaparte that
"you represent the principles for which I stand." In December
1906, Conqress approved the nomination, -just as the
administration’s anti-trust campaion shifted into hiqh gear. In
November, the government had brought suit against Standard Oil
Company as a combination in restraint cf trade. Scon thereafter
investigations were initiated of the Union Pacific and the New
York, New Haven and Hartford railroads, and trusts in the area of
tobacco, powder, and turpentine and naval stores.[ 10 ]
The new Attorney General quickly realized that in order to
manace these complex investigations effectively, the department
would have to be reorganized. In the 1907 Annual Bencrt cf the
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Attorney General. he introduced his plan tc improve and
strengthen tie investigative capabilities cf the Justice
Department ard reguested Ccnqxessicnal approval to establish a
division of investigation within the department. The present
policy, he reported, was wcefully inadequate and no lonqer
fulfilled the department's more rigorous investigative
requirments. Eecause of the steadily increasing caseload and the
complexity cf the anti-trust ard banking laws, many important
cases would not receive the attention they deserved. A permanent
executive detective fcrce whcse operatives were fully trained and
familar with the law, he arqued, wculd be more efficient,
reliable and economical, and, consequently, the department wccld
be more effective. Aware that Conqress might question his
intent, Bonaparte pegged his proposal to the "public interest".
Eecause the President and the federal -judiciary regularly
consulted the Justice Department while shaping important policies
and reaching critical decisions, he maintained that they wculd
reach better, more informed decisions if the Attorney General had
access to expert investigative analysis. cf each particular
problem, " (A) Justice Department with no force of permanent
police in any capacity under its ccntrcl," he concluded, "is
assuredly net fully equipped for its work.” t 111
On January 17, 1SC8, Bonaparte again brought up the issue of
a permanent investigative division while testifying befcre the
Ecuse Appropriations Committee. Bcnaparte called the committee’s
attention to the fact that the Justice Department had been
required tc rely exclusively cn Secret Service employees to
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assist U.S attorneys in the preparation of civil and criminal
cases. The attorney General complained that the Treasury
Department had recently raised the cost of borrowing
investigates ty over thirty-three percent and recommended that
Congress grant the department authority to establish its own
division of iEvestigaticn. Echoing the argument that he had
advanced in the recent Report. Bonaparte insisted that such a
division wculc save acney and, through increased accountability,
be more effective. Understanding congressional animus toward the
centralization of federal investigative authority, Bonaparte
reminded the committee that there were inherent dangers in the
present policy, problems which to some degree had led to abuses
in the past. The attorney General explained that when the
justice Department borrowed agents from the Secret Service, they
remained or the rolls cf the Treasury Department, responsible to
the chief of Secret Service, thus enabling him to intervene, and
even direct Justice Department investigations. "I think the best
plan,” Bonaparte explained, '’would be tc have a service of that
kind under the control of the Department of Justice, and let it,
if necessary, assist ether departments in cases of
emergencies."T 12]
Bonaparte’s proposal sparked Congressional interest in the
issue ana led to ar important debate between Congress, the
attorney General, and the President which lasted for mere than a
year and a h a lf. The d isc u ssio n focused on hew t e s t tc manage
the qovernsert’s investiqative resources, and addressed three
basic questions. First, should Conqress continue to allow the
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Treasury Department to lend its aqents to ether federal aqencies
or cn ac hcc basis? If net, wccld this restriction interfere
with the President's constitutional responsibility to enforce the
law? And, finally, did the Attorney General have the authority
to create a bcreau of investigation, as Bonaparte had proposed?
Since the Attorney General and the President did not seem to
understand each other's position, and at tines, worked at
crass-purpcses, the debate was hard tc follow. It may help to
note that the primary concerns of Conqress were tc insure the
integrity of the appropriations law ard to preserve
administrative accountability and protect individual rights. At
no time did the critics of the administratet advance their
proposals tc protect themselves from possible criminal
investigation. That idea, which has been seized cpon by several
h is t o r ia n s , was dreamed up by B ccsevelt in a d esp erate attem pt to
preserve his prerogatives. Nonetheless, since several
congressmen lad been indicted and convicted for their
participation in a land fraud scheme follcwirq a Justice
Department investigaticn several years earlier, Eoosevelt's
suggestion was titillating, even if it was entirely
aroundless.r 13 ]
Bonaparte's January 1908 testimony before the House
Appropriations Committee fcrouoht to the surface some basic
concerns abcct Secret Service activities. For almost five years,
rumors had been circulating around Sashinqton that Secret Service
chief John E. Wilkie harbored ambitions to become an American
"spvmaster", modeled after Jcseph Fcuche, Napoleon's notorious
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chief of the French secret police- On January 3, ISCb, for
example, -the Chicago Inter-Ocean had published a report that
congressmen, cabinet members and a host of other public officials
and private citizens had been investigated by the Secret Service
because Wilkie was "net particular about drawing the line between
law makers and law breakers-" Secret Service ccurter-espicuaqe
activities during the SFanisb-Awerican Ear gave some credibility
to the Inter-Ocean report. It was widely reccqnized at the time
that the Secret Service had established a network cf operatives
and inforiers in several Anerican and Canadian cities in an
effort to undermine a Spanish spy rinq. Wher. the war ended
however, there were lingering dcubts about whether or not Wilkie
had dismantled his intelligence apparatus.[141
On Hatch 3, 1908, durinq its annual appropriations hearinqs,
the House Appropriations Committee investigated this and reports
about abuses stemming from the Secret Service’s agent-lending
program. Ifce first witness, assistant chief of Secret Service,
William H. Horan, admitted that agents had been used
indiscriminately in the past. He recounted a case involving a
former actirg Secretary of the Navy who had borrowed Secret
Service agents to spy on an Annapolis midshipuar who had run away
with a married woman. Secret Service detectives shadowed the
ycunq man and his female companion for several days and reported
the couple's activities directly to the acting Secretary. Ihe
Navy dismissed the midshipman for behavior urbeccming of an
officer and evidence qathered by government agents was later used
in the divcrce proceed inqs.f15 ]
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Disturbed by the Division's investigations of non-criminal
activity, committee members questioned Moran about the leqal
basis of the lending program. Since the 1880's, Congress had
restricted the Secret Service tc investigations of violations of
the federal currency and counterfeiting laws. In 1901, fcllcvinq
the assassination cf william McKinley, Congress added protection
cf the President to the Division* s responsibilities.r 16 1 How did
the Treasury Department, Hepresentative Walter Smith asked,
■justify its policy when federal law prohibited investigations of
crimes other than those ennumerated in the department's
appropriations. Moran explained that the Division assumed that
the law restricted only the expenditure of department funds and
did not prohibit other departments from borrowing Secret Service
agents if their salaries and expenses were paid from that
department's appropriations. Moran revealed that the Secret
Service kept about twenty extra employees on its rclls to lend to
ether departments but that they were not paid unless their
services were required by ether departments.[17 ]
Moran's testimony further angered committee members who felt
that the Secret Service hac deliberately circumvented the
apprcpriaticrs law. The committee agreed that the growinq power
and influence of the Secret Service, if left unchecked,
constituted a serious threat tc democratic institutions. In the
Washington, E.C. area alone, the committee discovered that the
Secret Service had assigned over 144 aqents to ether departments
ever the previous twenty months, but assistant chief Moran was
unable to testify as to how many of these assignments involved
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legitimate investigations or how cany sere department icguiries
into the private affairs of government employees "who had fallen
under suspicions cf their superiors.” Beprimanding the agency's
inability to account for the activities of its employees, the
committee declared that ”(r)cthing more foreign to every
principle cf republican gcverncent could be imagined than the
growth and extension of the espionage system in the National
C a p ita l.” [ 18 ]
On April 2, 1908, Attorney General Bonaparte presented the
Justice lepartment's budget request tc the Appropriations
Committee ere repeated bis argument for the creation of a
division of investigation under the Attorney General's
supervisior. He testified that investigations would be
administered better if Conqress clearly established the legality
cf his proposal, lines cf authority and responsibility would be
sharply drawn. Problems that had arisen in the past wculd net be
repeated, he added, ”if instead cf beinq obliged to call upon
tthe Treasury tepartment) for this service we had a small, a very
moderate, service of that kird cuiselves.” At the time, however,
the committee did not give the proposal serious
consideration.r19 1
About a mcnth later, cn May 1, 1908, conqress debated an
amendment to the 19C9 Sundry Civil Apprcp iations Act which
strictly prohibited the secret Service from lendicc its agents tc
other federal departments cr aqencies. Proponents of the
amendment agreed that investigations were a necessary element of
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effective lav enforcement. Ihey admitted that Conqress should
appropriate funds for departments to hire professional
investigators, but believed that centralization of the
government's investiqative authority in the Secret Service was
neither necessary cr desirable- "There has teen an effort once
cr twice tc create a general pclice system under the Federal
Government", Eepresentative John J. Fitzgeralc (Dem., N.Z.)
argued, varriEg that if the present "practice be continued,
then we will have in time a Federal secret police."
Eepresentative J. Swaggar Sherley (Eem., Ky.), tcrrcwinq from
the attorney General*s recent testimony, claimed that if
departments needed to hire their own investigators, "they should
come to Congress ard get authorization from Conqress for the
employment of this class of men." "I do not believe this country
has reached the point", Sherley emphasized, "where it needs,
.sepervisicr cf men's conduct by Government and by Secret Service
methods. . .Le-t the departments come openly. . .{otherwise
the departments) are treatinq congress and its laws with absolute
contempt." at no time did the supporters cf the restrictive
amendment mention the Attorney General's own proposal for the
creation of a bureau of investioation. Instead, they focused
exclusively cr the acent lending issue.f20]
Eepresentative Michael E. Driscoll {Bep. , E.Y.), who led
opposition to the amendment, thouoht that law enforcement wculd
le unnecessarily restrictive. But, like the bill's supporters,
he ignored the Attorney General's plan. Instead, he arqued that
proliferation cf investigative units within the federal
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bureaucracy would eventually frustrate the amendment’s primary
objective cf efficient and economical investigations and
executive accountability. "There should net te a secret service
bureau in every department. . .It is economical, it is
business-like, it is symmetrical to Veep them tcqether. . .It
tends toward economy; it tends toward keepinc tcqether the
thinqs that have been discovered in this work," he summarized.
Another opponent of the amendment. Representative William S.
Rennet (Rep., N.I. ) addressed the question of past improprieties
and claimed that the Appropriations Committee had overdramatized
alleqed misconduct. For over thirty years departments had
borrowed Secret Service aqents and, if Conqress had not
specifically approved the practice, it certainly knew what was
happening arc had dene nothing tc step it. Secret Service aqents
had served their country honorably and effectively. In fact,
Rennet continued, investigations directed by the Secret Service
had netted over S70C,CCO in fires in the Southern listrict of New
Icrk alone. "is it is now," he said, "(the depart nents) can go
to this Secret Service Bureau, where they have the best trained
men in the United States. . . and take them for a day cr two,
Fay them cut cf their appropriations, and let them go back to
their own employment. It cnly means twenty men a year. It is a
very small item, and it. . .absolutely protects the proceedings
of the different departments cf government." With the issues
clearly outlined, the amendment received bipartisan support and
was overwhelmingly approved by both hous€s.f21]
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On July 1, 1908, attorney General Bonaparte quietly hired
full-time investigators for the departments exclusive use, thus
creating the bureau cf investigation. Although some have accused
the attorney General of tad faith since he tcck his action while
Congress wes in recess and cnly a mcnth after the appropriations
bill prohibited agent-lending went into effect, it is unlikely
Eonaparte had deliberately tried tc undermine the intent of the
appropriations measure. After all. Congress had net formally
ruled on the Attcrney General's request and had only prohibited
the Treasury Department from lendinq agents tc other federal
aaencies. It his 1 € Bepcrt cf the Attorney General. filed the
following year, Bonaparte officially informed Conqress of his
decision. Theprohibition on the use of Treasury agents,
Hcnaparte wrote, necessitated the organization of "a small force
cf special acents cf its own.1* The special aqents reported
directly to the department's chief examiner. Eonaparte alsc
sought to assuage Congressional fears that the Eureau miqht, in
time, evolve into an independent agency, beyond effective
department control. Be reported that "the Attcrney General
knows, or cucht to knew, at all times what they are doing and at
shat cost. Under these circumstances he might he held justly
responsible fcr the efficienncy and economy cf the service
rendered." In view of the administration's anti-trust drive,
Eonaparte concluded that "such a force is, under modern
conditions, absolutely indispensable to the proper discharge of
the duties cf the department."f22j
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It is not clear that President Boosevelt supported his
Attorney General*s position. Althouqh it seems logical that he
would have, Bcosevelt's remarks cr the subiect offer no evidence
that he had indeed endorsed Eonaparte's Flan. On December 8,
1908, in bis arnual messaqe to Conqress, the President excoriated
Congress fcr adopting the amerdment limiting the use of Secret
Service agents. without mentioning that Congress had not
prevented tie Justice Department from hiring its own
investigators, Boosevelt accused it of approving the amendment
for "the purpose cf dimirshing the effectiveness of the war
against crime." Boosevelt recalled that in 1905, following a
Secret Service investigation. Senator John H. Mitchell and
Bepresentative John N. Williamson, both of Cregon, were
successfully prosecuted for land fraud. "lie chief argument in
favor of this amendment," the President insinuated, "was that
Congressmen themselves did not wish to be investigated." The
messaqe iqncred the fact that the amendment only required the
Treasury Department tc use its investigators in the manner
prescribed by law and that Conqress had not tried tc prevent the
Executive Eranch from investigating violations of the law. Ey
intentionally personali-zing the issue, he impugned the integrity
of individual representatives who opposed the aqent-lendinq
policies.r 23]
The P r e s id e n tia l messaqe was intended to Fut C cnqress on the
defensive was forcirq it tc explain why it had acted without
reqard to Boosevelt's conception of public interest. The messaqe
e l i c i t e d an immediate re s p c rs e . On December 16, th e Senate
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passed a resolution authorizing the Appropriations Conirittee to
make an investigation into the charges. The following day, the
Hcuse approved a rescluticr requesting the Eresident to "transmit
any evidence upon which he had fcased his statements" that
Conqress had adopted the anetdnent because congressmen feared
investiqations.f 24 1
On January 4, 1909 Rcosevelt delivered his reply tc the
Eouse. Having no evidence tc prove his allegation, the Eresident
tried to gloss over his overblown rhetoric. Eaplcyinq a more
conciliatory approach, the President asserted that his argument
had been misinterpreted by overly sensitive, though well-seaning,
Congressmen, who, quite appropriately, did not appreciate being
called crooked without a fair hearing: "I have made no charqes
cf corruption against Congress nor against any Heaters of the
present House," Roosevelt claimed, "I have always not only
deprecated but vigorously resented the practice cf indiscriminate
attack upon Congress, and indiscriminate condemnation of all
Congressmen, wise and unwise, fit and unnfit, gccd and bad
alike." He theE placed the blame for the amendment on his critics
principally Representative James Tawney (Rep., Him .), Salter I.
Smith (Rep., Iowa), Swaqgar Sherley, and John Eitzgerald. The
Eresident claimed that they had dene the nation a qreat
disservice by sponsoring a bill which hindered the "riqht cf the
Government tc detect criminals and punish crime." Roosevelt also
showed contempt for the congressmen’s fear about the qrowth cf a
spy system, newspaper reports exaggerated abuses cr had reported
the facts ccnpletely cut cf context. He concluded that there "is
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no more fcclish outcry." If the bar on the use of Secret Service
agents continued, millions cf dollars in fines would qo
uncollected and many criminals would qo unpurished. In his
opinion, the greatest threat was net widespread, illegal
surveillance of citizens and their elected representatives, but
that a crise wave wculd seen plaque the Bepublic. The present
administration had no other objective than to ferret cut the law
breakers and the Secret Service, Boosevelt arqued, "is by far the
most efficient instrument possible tc use against crime, "f 251
Four days later, on January 8, the House rejected the
President’s bread indictment as well as his partiality toward the
Secret Service, and, it effect, endorsed Bonaparte's decision to
establish the Bureau of Investigation. Bepresentative James
Tawney, chairiar of the appropriations Committee, arqued that the
restriction placed on the Secret Service had net impaired the
government's investiqative capabilities. attcrney General
Ecnaparte and Secretary of the Interior James R. Garfield, the
two cabinet nenbers who had addressed the issue during the
Committee's bearings, agreed that they preferred not to be
dependent on the Secret Service, that the system was inefficient,
and that the Division's examiners were not always qualified to
investigate crimes other than violations of the currency and
tanking laws. Garfield, like Bonaparte, testified that the
department wculd he more adequately served by a fcrce cf
investigators trained specifically fcr Interior's work. Implying
that Congress was only fulfilling the administration's wishes,
Tawney asked how the President could take a.position which had
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been refuted in sworn testimony by kis own advisers.T26 ]
Representative Sherley defended Congress’ authority tc
restrict the use cf Secret Service agents, explaining that the
amendment's intent was consistent with established federal
policies. lie Secret Service cculd not be allowed to ignore the
law any lenger, Sherley added, asserting that few issues
addressed by the Sixtieth Congress would have the potential
inpact on individual rights as an endorsement of unlimited
executive authority, "ihen it shall come to the formulation of a
new law that shall govern the use of the secret service, I trust
this Congress, representing the individual citizens of our
country, may as heretcfcre guard with jealous care the sacred
rights of those citizens, and hedge about with all the safeguards
essential tc the preservation cf the people’s liberty,” he
concluded.T27 ]
Next, Representative Fitzgerald introduced evidence shewing
that appropriations fcr federal law enforcement had been
increased across the board, thus suggesting that Roosevelt had
distorted the truth fcr political reasons. The underlying
auestion, Fitzgerald reminded his colleaques, was whether cr net
Congress thought it appropriate to concentrate the federal
government's investigative authority in one agency: "It is
apparent, moreover, that it has never been the policy to
establish a central police or spy system in the Federal
Government. Every department has been and is now given ample
funds and authority to procure evidence ard to detect criminals.
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The pclicy has long been followed of separating the wcik cf
secret aqerts cf the Government. "f 28 ]
Representative Siiith summarized the issue. The Attorney
General had long had the authority to hire detectives [although
he had net exercised his opticr tc dc so) and had, without
Congressional criticism, already established a division of
investiqaticn. "There is no limit whatever upon the power of any
department in the selection of its numerous special aqents. . .
The guesticr rev,'* Smith maintained, "is not should a leqal force
be created in the Justice Department, but was Congress subject to
criticism fcr destroying at its last session the system which had
grown up cf using the ccunterfeitirg force in the Treasury
Department for miscellaneous purposes.” Tawney joined Smith,
affirming that the amendment "does not take away from any cf the
departments cf the government the authority they theretofore
possessed, nor does it abridge any right cf theirs tc employ
d e te c tiv e s cr s e c r e t s e rv ic e men. . .F u rth e rm o re , t h is
provision leaves every department, available fcr the payment cf
such service, all appropriations frcm which this service has
heretofore been paid. "[29]
Follcwitc the debate, the House adopted a resolution,
212-36, ccrfirming its "utmost confidence in every member of the
House Appropriations Committee", therby rejecting the President’s
appeal tc reconsider the amendment. Seen thereafter, the Senate
concurred.T 3C]
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The Senate alsc recognized the attorney General’s authority
to e s ta b lis h th e Bureau cf I n v e s tiq a tic n . On February 11, 1909,
Senator James fl. Eemenway (Sep., Ind.), chaimac cf the
Appropriations committee, concluded that it wculd be unwise to
allow the Secret Service to conduct all cf the federal
government’s investigations. "It has never been the intention of
Congress tc build up a spy system of that nature." "Conqress has
made an appropriation fcr the employment of secret service agents
hy the Department of Justice. . . The Department of Justice is
the proper place for the employment of secret service agents, as
it is the department tc which finally all violations of the law
must be reported and which must conduct the prosecutions and
trials."f 3 1 ]
although Congress agreed that the Justice Department should
employ full-time investigators, it felt compelled tc ask the
Attorney General for mere specific information about how the
department planned to prevent abuses of its investigative
authority, and in cthei wcrds, tc succeed where the Treasury
Department had failed. Eonaparte appeared before the Hcuse
Appropriations Committee on February 9, 1909 and outlined his
plan to nanage the Bureau of Investigation. During the debate,
several congressmen questioned whether it wculd ever be possible
tc find professional investiqatcrs whc could be trusted to work
honestly, efficiently and within the law. Even Representative
Driscoll, cn€ cf the administration’s staunchest allies, admitted
that "a man who is a detective, whose profession it is to
discover crime and hunt down criminals, cannot be a man of high
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moral ideals. . . (and) can net always be truthful, sincere and
honest.'* Ecnaparte shared many cf these suspicions and conceded
that the department would have to use extreme care tefore hiring
an applicant. He hcped that adequate compensation and -jot
security wculd attract educated and scrupulous individuals tc the
Eureau. It previous testimony, Bonaparte revealed that the
department planned to eliminate payment on a per-iofc basis,
reducinq the possibility that aqents would create "the crime in
order that he might qet credit cf detectinq and punishing the
criminal.*1 Onder Eonaparte’s direction, the department had
adopted a disciplirary code which held agents strictly and
personally responsible for any indiscriminate or illegal
behavior. w (I)f any qrcund fcr reasonable complaint connected
with the detective force be found to exist,*1 Ecnaparte testified,
"he shall be -justly called to account."[ 32 ]
According tc Bonaparte's scheme, the attorney General would
be responsible for the Eureau's administration. Bonaparte told
the committee that he had kept abreast cf the Eureau’s activities
by reading daily summaries of field reports that were prepared by
the chief examiner, thcugh he characterized the task as "a bore".
Kevertheless, the attorney General had tc be aware of the status
cf onqoinq investigations in case complaints were filed against
the Bureau, thus enabling him tc answer any questions the
Eresident cr Conqress might pose on the sut-ject. [ 33 ]
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Bepresentative Sherley. The Bureau could become too efficient
and place qreater emphasis on results than upon tbe protection of
individual Eicbts, especially if all of the Bureau’s power flowed
from the top: "The idea that some of us (ir Conqress) have in
mind is, hew to safequard an instrumentality, which, in the past
history of the world, has been used for oppression and the
continuation in power of men havinc the instrumentality at their
command, sc as tc Fievent such abuses in the future." While no
human institution could be made entirely risk-free, Ecnaparte
reminded Sherley, Constitutional checks and balances would
prevent one person or qrcup frcm monopolizing the department’s
investigative authority. If the Attorney General failed to limit
the Eureau tc investiqatiens cf specific crimes and make it "mind
its own business". Congress and the courts could intercede. If
necessary, Ccrqress cccld pass legislation prohibiting the Bureau
from undertaking specific types cf investigations, providing for
criminal and civil penalties if employees deliberately violated
the prohibition. Asked whether the Eureau should be allowed to
investigate allegations of official corruption, Bonaparte
replied: "I can only go cn record here as very earnestly
protesting any limitation of the detective forces cf Government
as scmethirc which must tend directly to the benefit of the
lawbreakers and the criminals, "r3hi
The Attcrney General did erdcrse limitations cn two specific
types of investiqaticrs. The Bureau, he testified, should not be
used for political purposes or to investigate ar individual's
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political beliefs and affiliations, and should not be alleged to
investigate strictly personal natters and private affairs. He
concluded: "I thick. . . any limitations that would prevent
the use of secret service agents for political purposes, or for
any purpose that is clearly outside of their legitimate work
wculd be a perfectly proper lim itation."[35 ]
While the Attorney General recognized the Fover of the
Congress tc investigate any matter relatinq to the expenditure of
federal funds, the confidential nature of the Bureau's work
raised several serious questions.. In certain circumstances, the
right of Congress to investigate Bureau activities and the
obligation cf the President and the Attorney General to enforce
the law, could come into conflict. Bepresentative Fitzgerald
asked Bonaparte what wculd happen if Congress subpoenaed evidence
from the Attorney General concerning Eureau investigations and
the Presidert simply refused to comply with the order, claiming
"executive privilege." The only alternative, Bonaparte replied,
would be tc institute impeachment proceedings against the
President fcr contempt cf Congress. Bonaparte added later that
he did net anticipate the possibility that his guidelines wculd
fail so miserably as tc precipitate a serious Constitutional
crisis. "I believe that any abuses in the use of this force
which have the slightest reascr tc suppose to arise, will be
fully safeguarded against by the sucgestions I have made. "[36 J
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Tie Appropriations committee, convinced that the Attorney
General’s program adequately protected individual riqhts aqainst
any government subversion, recommended full furdinq for the
Bureau. The committee proposed no restrictions on Eureau
investigations, but reminded Bonaparte that Conqress reserved the
authority tc withheld any future appropriations if problems in
the Bureau's administration arose.T371
In March 1909, less than four weeks after Bonaparte’s
testim o n y , Georqe Wickersham became William Howard T a f t 's
attcrney general. Wickersham shared Bonaparte's conviction the
Justice Department needed its own investigators and re-organized
the Bureau, appointing chief examiner Stanley W. Finch to the
new position cf "chief cf the Eureau of investigation." Fitch was
in charge of approximately twenty "special aqents", fifty
naturalization examiners, seven land fraud irvestiqatcrs and
twelve general examiners. In an effort to prevent jurisdictional
conflicts, Wickersham established rules qcverninq
interdepartmertal cc-cperaticn. The Bureau could share
information and assist other aqencies provided no expenditure was
reguired. The quidelires also prohibited Bureau involvement in
investigations "specifically assiqned by law to federal
aqencies." "Throuqb. frecuent detailed reports regarding the
operations of the employees of this bureau," wickersham reported,
"I am alsc constantly kept informed of the progress of
investigations. "[38 ]
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In addition to its anti-trust work, th€ Bureau investigated
violations cf bankruptcy, tankinq and bucket-shoF Ji-e.,
dishonest brokerage houses) lavs, statutes prohibiting the
interstate transportation of obscene materials, the Chinese
exclusion lav and federal internal revenue, land and customs
regulations. Finding the vcrk cf the Eureau indispensable to
effective lav enforcement, Wickersham reported to Ccngress that:
"the experierce of the past year has demonstrated the wisdom of
having in this department a force of skilled investiqatcrs, vho
are available at all tines for the collection of evidence
necessary in order to properly enforce the lav.” f391
In June 1913, a major new responsibility was added. On
November 24, 1939, Representative Canes R. Kann (Eep., 111.)
introduced a till into the House vhich called fcr the Frchibiticn
of the interstate trarsportaticr cf women "for immoral purposes".
In proposing the measure, Mann claimed that the federal
government "is the cnly authority stronq enough tc cope with this
evil". Basirc his ccnclusicrs cr ar investigation by U.S.
attcrney E.R. Simms, Kann asserted that "mcst of these girls are
enticed avay from their hemes in the ccuntry to large cities.
The Folice Fever exercised by the State and municipal governments
is inadequate to prevent this - particularly when qirls ace
enticed from cne State tc another." Several Southern Democrats on
the House Committee on I n t e r s t a t e and Foreiqn Commerce i n i t i a l l y
opposed the till because it carried with it the onus of
increasing federal authority at the expense of that of the
states. Representative William Richardson of ftlatama declared:
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"If the hill becomes a lav there vill be no limits to which the
federal government night net qo in regulating the morals and
health of a sovereign State." respite the appeal cf Richardson's
view to nary congressnen, it attracted little support, primarily
because most legislators believed that "white slavery" was a
national problem which should be addressed by the federal
government. Cn June 23, 1910, the Senate approved legislation
passed by tie House in January, and the following day, the
fresident signed the till into law.£40)
The Karr act had an immediate impact on the BT since it was
the federal agency authorized tc enforce the new law. In 1911
the Bureau cf Investigation established a separate branch,
headquartered in Baltimore, to investigate violations of the
"white slave" law. Ir April 1912 Attcrney General Wickersham
named Chief finch special commissioner in charqe of these cases,
and appointed Eruce Bielaski, a former Secret Service agent,
c h ie f of the Bureau. By 1912, th e Bureau was expending more
funds on white slave cases than cn any ether general
investigative category, with the exception cf anti-trust
investiqaticrs ($31,449 tc $47,279). The following fiscal year,
the Bureau spent more than twice as much cn Kann Act
investigations than on anti-trust cases ($59,639 to $2S,7C0) ,
clearly illustrating the Bureau's new priorities. T 411
And this was gust the beqinninq. Durirq the 19 13
appropriations hearinqs, the Eureau requested $2CO,OCC for the
suppression cf white slave traffic, more than twice the 1913
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expenditure. In an effort to justify the enormous increase,
Finch painted a frigfcteEinq pictrre of the white-slave menace:
"In many of the cases the methods followed ty purveyors are
hideous in the extreme, and wheE this work was undertaken ty the
department, the business of procurinq qirls fcr the purpose of
prostitution was qettirg tc be one cf the greatest dangers in
this country. In fact, it miqht alacst fce said that unless a
qirl was actually confined in a rcoa and qnarded - owing to the
clever devices of these white slave traffickers - there was no
qirl, regardless of her staticr in life, who was altogether
safe." according to Finch, the white slavers procured a woman
throuqh fraud, duress and, in some instances, kidnappinq, and
then corraled their victims into houses quarded by thugs and
bullies tc prevent their escape.M2]
Althouqh FEI files in the national Archives dc not include
many of the records of the Mann Act investigations, it is
possible tc describe, in qeneral, the investiqative methods
employed by the Bureau. Ey 1913, the Bureau had targeted certain
cities and towns in 20 states and had established contacts with
lccal officials whc shared the department’s interest in
suppressing prostitution. Motivated more cut of personal
conviction than possible compensation, these assistants qathered
information about "every prostitute in every public house of ill
fame." Scne left cards threatening supposed violators of white
slave and peonage laws. They also hired aadams tc "spy cn ether
radars", and recruited ycunqer wemer as informers. Bureau agents
reciprocated and assisted local officials tc enforce state white
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slave, pandering and piaping lavs. Special Commissioner Finch
predicted that the arranqeuent would reduce, and possibly
eliminate, violations of the Mann Act. ru3]
Finch’s 1913 testimony fccused cn the suppression of
large-scale and hiqhly organized prostitution rings, but the
Eureau alsc investigated the private afffairs of consenting
adults, promoting themselves to a kind of "moral police". In
Johnson v. D.S.. the O.S. court cf Appeals upheld the
department’s tread interpretation and application cf the Mam Act
to include prosecution cf nen who "transported" women across
state lines for the purpose "of fornication and adultery". Cn
October 12, 1912 Chicaqc police arrested Jack Johnson,
heavyweight champion of the world, on charges that he had
abducted lucille Cameron, a 19 year-old white woman from
Minneapolis, Minnescta, and had taken her to his Chicago home-
O.S. Attcrney James Hilkerson ordered an investigation tc
determine if Jchnson had violated the Mann Act. On October 27,
1912, Attorney General Sickersham, in a memo to Hilkerson,
offered federal assistance in "any further investiqaticn against
Jack Jchnscr, the negro pcqilist, should it be charged that he
violated the Mann white slave act." On October 31, following
Cameron's refusal tc implicate Jchnson, a federal grand jury
failed to indict Johnson in the Camercn case. Two days later,
however, another grand jury investiqatirg a separate incident
indicted JchEscn, ctarginq him with trasportinq Eelle Schrieber
cf Pittsburgh "from that city to Chicago fcr imircral purposes and
causing her to be known as ’Mrs. Johnson.’" While the
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prosecution claimed that Johnson qave Sclrieber the money tc pay
for her frequent trips to visit him from Pittsburgh, Johnson
denied the accusation. Johnson testified durinq the trial that
he had merely loaned schrieber the money so that she could "fix
up her flat" and "keep her goirq till she could get a -job as a
stenographer a g a in ." Cn May 13, 1913, th e -jury announced th a t i t
agreed with the prosecution and convicted Johnson on several
counts of violatinq the Mann act.[44]
Thus, through careful manipulation of public opinion and the
exaggeration cf the "white slave" problem, El chief Finch
increased the Eureau's authority dramatically. No longer simply
involved ir. the mundane in v e s tig a tio n s of tankinq and a n t i - t r u s t
lass, the Eureau could ncs cast its nets into the murky waters of
sexual habits. Not only did the size anc the budget cf the
Eureau double in response tc the threat cf promiscuous sex, but
for the first time the El was authorized "tc dig up the private
scandals of men" and to assist the Justice Department tc
prosecute selectively individuals whose personal behavior did not
conform to official definitions of morality.[45 ]
The point was guickly tested. In July 1913 federal district
court judce Emory Speer accused the Justice Department of
re g u la rly spying on members of th e fe d e ra l -judiciary. The
accusations touched off a controversy between congress and the
executive ever access to El investiqative files. In early 1913
the Justice Department had received numerous complaints about
Speer's behavior on the bench, including claims that the judge
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had purposely postponed action in a case pending in his court,
bullied witnesses and litiqants, and rarely allowed the jury to
reach a verdict contrary to his wishes. When Speer learned that
the Justice Department was investigating these charges, he
immediately claimed that the department was attempting to
intimidate bin and limit the freedom of the judiciary.f461
The Justice Department should have had little trouble
refutinq Speer's qeneral accusations, tut an earlier
in v e s tig a tio n cf U nited S ta te s Commerce c o u rt judge Robert S.
Archbald lent some credibility to the charges. Cn February 12,
1912, in a memorandum tc President William Taft, Interstate
Commerce Commissioner Balthasar H. Meyer accused Archbald of
usinq his office for personal gain. Litiqants in cases pending
in the Commerce ccurt sere qiven special consideration if they
concluded favorable deals with Archhald and his business
partners. Or March 31, 1911, Archbald had arranged the purchase
cf the Katydid culm dump in Moosic, Pennsylvania fcr himself and
his partner, Edward J, Williams, from the Hillside Coal and Iron
Company. Archbald and Williams planned to resell the property
fcr a substantial prcfit. Archbald promised tc help the Erie
Bailroad Company, sole owner of the Hillside Co., tc a favorable
settlement ir a pending case in the commerce court. In another
case, on October, 1, 1911, Archibald persuaded the lehiqh Valley
Coal Company, a subsidiary of the Lehigh Valley Railroad, to
lease the Packer Ho. 3 culm dump ir Shenendoah, Pennsylvania to
himself and his associates. The Packer No. 3 contained
approximately 470,000 tens cf coal which the Archbald group
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aqreed to ship exclusively over the lines cf the Lehiqh Valley
Railroad. it the time, the railroad was a party to twc suits
pendinq in th e Commerce C cu rt.rh 7 ]
On February 13, Taft instructed attorney General Wickersham
to investicate Meyer*s charges and tc appoint ons of his agents
to write a repcrt detailinq all evidence against Archfcald for
possible use in impeachment hearings. Wickersham assigned
Wrisley Brcwc, special investigator and assistant to the attorney
General, to the case. a month later. Brown submitted his report,
concluding that although he was not entirely convinced of
Archtald's guilt, "the testimony and documentary proofs are
sufficient tc establish a course of action cn the part cf the
gudqe that is so violently abhorrent to the ludicial ptoprieties
as to d i s c r e d i t h is f i t n e s s to remain on th e Commerce C o u rt.n [h8]
On Hay 3, Taft forwarded the Ercsn report to the House
Judiciary Committee, and on July 7, the full House approved
thirteen articles of impeachment against archbald. On December
3, 1912, the Senate trial beqan, and for only the ninth time, the
Senate sat as a high court of impeachment. The Senate heard
testimony for about four weeks, and on January 13, 1913, it found
archbald guilty cn five cf the thirteen courts. The Senate took
a further step and declared that Archbald was "unqualified
forever fcr ary office of honor, trust cr profit under the United
S t a t e s , "[ t|5 1
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In this context, the Senate responded cautiously to Speer’s
accusation ty sponsoring a resolution offered by Senator John E.
Berks (De., cal.) which instructed attorney General Janes
HcSeynolds "tc inform what inspectors or other aqents are
appointed ty hia or his department to investigate ard report upon
the conduct cf proceedings of any cf the courts or judqes of the
country. . . under what law they are appointed, what
instructiors are given then, (and) any rules and regulations
under which they act. 11 A month later, HcSeynolds stiffly replied.
Ee informed the Senate that specific information concerning
instructions given field agents, the names of agents involved in
specific investigations or "(t)o state with particularity" the
courts or judqes currently under investigation "would be
incompatible with the public interest." McReynclds asserted that
the authority tc examine the behavior of federal judges derived
from the President’s constitutional mandate tc "take care that
the laws be faithfully executed. . .It is impossible for him
successfully to discharge this obligation unless the judges whom
he appoints are faithful tc the trust imposed upon them." He
concluded that the suggestion that the Justice Eepartment
systematically spied upon the federal judiciary was "entirely
without foundation". Ihe department had investigated only three
judqes over the past five years, and then oily after the
department had determined that there was sufficient cause to
initiate an inguiry.f50 1
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The Senate was net pleased. Berks, joined by Georqe Norris
(Sep., Net.) and William Borah (Bep., Idaho), called the Attorney
General’s tepcrt completely inadequate and an "evasion cf the
questions." The integrity and independence of the judiciary, the
dissenters agreed, was indispensable to constitutional
government, and any attempt ty the executive to influence
judicial decision-makitq would seriously undermine public trust
in the ccncept of equal justice. Evidence collected secretly,
whether it he innuendo or fact, by the Justice Department
constituted a particularly insidicus threat to judicial
independence. The results of such an investiqaticn, said Works,
should be made public immediately following the completion of the
investiqaticn. Noeris argued that balancing the need tc enforce
the law aid at the same time protect public officials from
unwarranted investigation and harassment was particularly
difficult ir cases involving judges: "I do net believe when we
do legislate, if we legislate on this subject, we cuqbt tc gc so
far as tc prevent the Department of Justice from making
investigations. . . Eut I believe if such ai investiqaticn is
made the judce ouqht tc have benefit of it and the country ought
tc have benefit of it." While aqreeinq that any potential threat
to the judiciary’s irdependence should be taken seriously,
Senators Georqe Sutherland (Sep., Utah) and leEarcn E. Colt
(Sep., Hass.) defended the administration's hacdlirq of the Speer
and Archbald irguiries. Investiqatiens of official corruption
were necessary Colt d eclared , and th e re was no evidence th a t the
Justice Department had ever tried tc use information developed in
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58
the coarse cf these inquiries tc influence judicial decisions-
The Attorney General had acted within his authority to order
investigations of judicial conduct and those investigations had
proceeded in an appropriately discrete manner. Persuaded by
Colt's and Sutherland's arguments, the Senate dropped the matter
without fcrther discussion, postponing resolution cf the
constitutional Questions cf executive privileqe and
c o n f i d e n ti a li ty and Congress' r ig h t to know. [51 ]
Although maEy vital constitutional questions concerning the
El's investigative authority were raised between 1908 and 1913,
Congress and the executive failed to resolve any cf them. The
first Congressional delates over the establishment of a Eureau of
Investigation clearly indicate that, while it was concerned that
the power tc investigate cculd quite easily become the power to
intimidate. Congress did not, for. example, consider a legislative
charter fcr the BT tc delimit the Bureau’s investigative
authority. In 1909 there was little reason tc believe, with the
exception cf some vaque, undefined fear of bureaucratic
aggrandizement, that Congress could not ccntrcl the Bureau
through its appropriations authority. The legislators assumed
that the assurances that it had exacted from Attcrney General
Bonaparte would prevent possible abuses and, if questions of
possible improprieties were raised. Congress cculd suspend the
department's appropriations until the matter was satisfactorily
reso lv ed .
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The Sixtieth Conqress (1907-1908) also demonstrated an
overriding ccncern to strike a balance between order and liberty
when it considered the Attcrney General*s decision to create the
El. Without Eonaparte's assurance that the activities cf the
Eureau would he closely mcnitcred by the Attcrney General himself
and that the Bureau never would be allowed to become a
quasi-independent agency, it is unlikely that congress would have
appropriated the funds for the Justice Department to hire
full-time, professional detectives. Once given these assurances,
Congress believed that future problems, should any arise, could
be solved within the context of this infernal arrangement,
nevertheless, the plan failed because Congress and Attorney
General Bonaparte did not anticipate the dramatic increase of
executive authority during the next decade. Nor did they realize
that labor conflict and total war would pose these questions in
much more serious ten s.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. NOTES
1) See especially Max lowenthal, FEI {New York, 1S5C); Den
Bhitehead, The FBI Story; A Beport tc the Alterican Beetle (New
York, 1956); Fred J. Cook, The FBI Nobody Knows {Iondon, 1964).
Histories cf the FEI that were published in the late 1970’s and
in 1980 are, more balanced than earlier books, ir part because
Hoover hac teen dead fcr seyeral years and the Senate had just
conducted a thorough investigation cf FBI domestic intelligence
operations. Nevertheless, ncre cf these books has carefully
examined the origins of the Eureaa. See especially, Sanford
Offgar, FBI (Boston, 1976); A than T h eo h aris, Spying on Ameri can
{Philadelphia, 1978); Frank Dcnner, Aoe of Surveillance (New
York, 1980).
2) Horten Keller, Affairs cf State: Public life j,n the Late
Nineteenth Century {Cambridge, 1977), 104-105; Homer Cummings
and Carl McFarland, Feder al Justice: Cha cters in the History of
Justice and the Federal Executive (New York, 1970), 218-229.
3) K e lle r, A ffa irs of S t a t e . 104-105; Cummings and
McFarland, Federal Justice, 223-229.
60
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4) Cummings and McFarland, F ed eral J u s t i c e . 230-249; 373.
Keller, Affairs of State. 105.
5) Cummings and M cFarland, F ederal J u s ti c e . 245-249;
"Inflation of the Attorney General," The Naticc 19(October 1,
ie74), 214-215;
6) Cannings and McFarland, Federal Justice. 2 46.
7) Dcrner, Age of Surveillance. 30-31; See also, Thonas E.
May, Constitutional History of England {New Tori', 1899), v.II,
112; Zechaziab Chafee, Jr., Free Speech in the. United States
{Cambridge, 1941), 215-218, 472-473; Aryeh Neier, "Mouchards and
Provocateurs." The Nation. 231 {September 13, 1980), 221-223;
lowenthal, FEI, 4. See also E.P. Thompson, The Making of the
English Working class {New York, 1966), 61-62, 82-83, 114,
4 84-505; Hichard E. Morgan, Domestic Intelligence: Monitoring
Dissent in America {Austin, I960), 15-17.
8) J . E . Horan , The P in k e rt cr» s: The P e te c ti ve Dynasty That
Made Histor y (N.Y., 1967); James J. Rakalik and Sorrel
Wildhorn, The Private Police: Security and Danger (New York,
1977), 67; 27 S t a t. 368 and 591, Auqust 5 , 1892 and March 3,
1893; Cumminqs and McFarland, F ederal J u s t i c e . 372-
9) William T. letwin. Law and Economic Pci icy: Fvcluticn
of the Sherman Anti-Irust Act (New York, 1963), 244-247; Gecrge
Mo wry, The Fra of Theodore Roosevel t and t he E irth of Modern
America (No*- York, 1954), 6-15.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 62
10) Cummings and KcFarlanc, F ederal J u s ti c e , 375-78; Joseph
Bishop, Charles Joseph Bonaparte. Bis Lifq and His Public Service
(New York, 1922).
11) Annual Bepcrt cf the Attorney General. 1907 (W ashington,
B.C., 1908) , 3.
12) 43 Congressional Becord (January 8, 1909), 662; House
Appropriation committee. Hearings. Emergency Appropriations Eill
[January 1£, 1S08) .
13) Even though Boosevelt guickly backtracked because he had
no evidence tc peeve his assertion. Bichard G. Powers,, in his
1975 article "J. Edgar Hoover and the Eetective Eero,” repeats
the claim that Ccrgress passed the amendment to prevent
investigations of members' allegedly criminal activities. See
Journal of Popular culture. 9 (Fall 1975), 26 1-264; note 23,
i n f r a .
14) 43 Congressional Becord (January 4, 1SC9) , 462-63; 43
Congressional Becord (January 8, 1909), 655-57; Bhcdri
Jeffreys-Jcces, American Espionage: From Secret Service tc CIA
(Hew York, 1977), 16-41.
15) 42 Congressional Record (Hay 1 , 1908), 5556; 43
Congressional Record (January 8, 1909), 655-57;
16) 42 Congressional Reccrd (Kay 1 , 1908), 5557-58; 43
Congressional Record (January 8, 1909), 672-74. (January 8,
1909), 672-74.
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17) 42 Congressional Record [May 1, 1SC£), 5557; 43
Congressional Record (January 8, 1909) , 655-56.
18) 43 Congressional Record (January 8, 1SC9) , 655.
19) 43 Congressional Record (January 8, 19C9) , 662.
20) 42 Congressional Record (May 1, 1908) , 5558.
21) 42 Congressional Record (May 1, 1908) , 5558.
22) annual Report of the attorney General. 19CS (Eashinqton,
E .C ., 1909) , 7.
23) 43 C ongressional Record (January 4 , 1 909) , 458-464. In
their study of the Justice Department, Cummings and McFarland
first advanced the thesis that the anerdaent to the
appropriations act was passed to prohibit the attorney General
from establishing a bureau of investigation, net simply to
prevent the Treasury Eepartmert frcn lending its aqents to ether
aqencies. "Congress responded (to the report) by depriving the
Department of Justice of the use of any secret service .operatives
borrowed frcn the Treasury!" Federal Justice. 376-73. Don
W hitehead, in h is s e m i- o f f ic ia l h is to r y of the FBI, The FBI
Storv: A Eerort to the American Peccle (1956) echoed the
Cummings-McFarland argument: "The Roosevelt Administration's use
of Secret Service agerts in the clean-up campaign came under
attack (after members of congress were indicted for land fraud).
.Congress pointedly ignored Bcnaparte's plea, although the
need for investigative work within the Justice Department (was
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pressing). . . The (amendment to the appropriations act) was a
crippling blow to federal law enforcement.” tost recently,
Bichard E. Morgan claims that ” (i)n 1908 President Theodore
Eoosevelt prcpcsed the creation of a bureau of investigation
vithin the Justice Department. The immediate precipitant was
neither lakci unrest ncr the activity cf radicals and terrorists-
Instead the impetus came from corruption within Conqress.”
Domestic Intelligence. 24. Prominent critics of the FBI, notably
Sax lowenthal and Fred J. Cock, quoting selectively ficm the
Congressional debate ever Secret Service and Justice Department
policies with respect to criminal investigations, conclude that
Ccnqress expressly prohibited the establishment of the BI.
Congress, they assert, talked at prohibiting Bcrapaxte*s decision
creatinq the Bureau because they would have played into
Boosevelt’s hand and strengthened his case aqainst Ccnqress in
this matter. See Max Icwenthal The Federal Bureau of
Investigation (New Ycrk, 1950); Fred J. Cook, The £BI Nobody
Knows (Lonccn, 1964), 49-55.
24) 43 Congressional Becord (January 8, 1SCS) , €60-63.
25) 43 Ccngressicnal Beccid (January 4, 19C9), 458-62.
26) 43 Cc n g re ssic ra l F.eccid (June 6, 1909), 663-64.
27) 43 C ongressional Record (January 8, 190S) , 671.
Representative Sherely added the ”(i)n my reading of history I
recall no instance where a government perished because of the
absence of a secret police force, but many there are that
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perished as a result of the spy system. If Anqlc-Saxcn
civilization stands fcr anything, it is for a government Hhere
the humblest citizen is safeguarded aqainst the secret activities
of the government, it stands as a pretest aqainst a government
of men and fcr a government of lav.” 43 Congressional Becord
IJanuary 8, 1909), 663-65, 671.
28) Ibid. . 678-79.
29) Ibid., 661, 672.
30) Ibid. . 683.
31) 43 Congressional Becord {February 11 , 1909), 2181-94.
32) Hcuse Appropriations Committee, Hearings. Sundry Civil
Appropriations Act for 1910, 779; 43 Congressional Becord
{February 25, 1909), 3 121 ; House Appropriations Committee, Kgjc
Be la ting to the Secret Service. 60th Ccnq. 1st Sess. (1909),
150.
33) Kemo Eelatino to t he Secret Service. 12S-3C, 161-63.
34) Ibid., 149-153.
35) liic. , 149-153.
36) Ibid., 156-57.
37) Ity . , 156-157.
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38) ft rtoal Report of the attorney general, 19 TO (Washington,
D.C. , 1911), 6, 26; Max Lcwenthal, FEl. 10-13; Den Hhitehead,
The FBI Stcrv. 20-21;
39) Report of the attorney General, 6, 26.
40) lowenthal, FEI. 11-13; Whitehead, The FBI Stcry, 23-25.
41) House appropriations Committee, Hearings. Sundry Civil
Appropriations Act fcr 1913, 1486; Hearings. Sundry Civil
appropriations Act fcr 1914, 888.
42) Hearings. Sundry Civil appropriations act for 1914,
874-15.
43) I b id . . 876-77.
44) Jchnscn v. 0. S. . 215 Fed. 679 ( 1913) ; New York Times.
October 19,1912, 4; October 27, 1912, 11; November 2, 1912, 1;
Hay 14, 1913, 1; May 3C, 1913, 4.
45) Cncted from a speech delivered by Bepresertative Sherley
IHay 1, 1908) when he first CFpcsed the agent lending policies of
the Treasury Department. 42 Congressional Record. 5558. In
1950, Max losenthal asserted that as a result cf the Mann Act,
the FBI "posses the poser the Sixtieth Congress of 1908 feared it
miqht acquire. It new possesses, actually or potentially, the
materials referred to years before by the attorney General
Bonaparte when he conceded the impropriety ’of the use of a
detective force. . .for they ascertainment of mere matters cf
scandal.1 Bis concession was no lenger applicable; after the law
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of 1910, ascertainment cf such natters fell legally within the
poser of the El." Lowenthal, FBI. 21.
46) New York Times. February 28, 1913, 3; June 15, 1913,
II, 8; El Hisc. file 700. The Bureau’s files concerning the
Speer investigation are missinq from the archives collection.
47) Senate Document 1140. "Impeachment of Bofcert S.
Archfcald", 62rd Cong. 23 Sess. (1912), 1804-22.
48) H id., 1825-46.
49) New York Times. July 8, 1912; December 1, 1912, 8;
December 4, 1912, 3; January 14, 1813, 1.
50) 50 C ongressional Becord (July 7, 1913), 2339; (Auqust
7, 1913) , 3166.
51) 50 Ccngres s i c r a l Becord (August 7 , 1913) , 3166-69.
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Political Ideas Eecone Crimes:
Anti-Badical Investigations, 1913-19 19
When President Woodrow Wilson asked Congress to declare war
on German? and h er a l l i e s on A p ril 2, 1917, he noted th a t the
tattle weald ret be limited to the fields of Europe- America,
the President emphasized, must te prepared to fight a war at home
aqainst na lawless and maliqnant few" who were "aqainst cur
national uiity of counsel, cur peace within and without, our
industries and our commerce." Disloyalty, WilscE warned, would be
"dealt with with a f in hand of stern repression." As a result of
this domestic strugqle aqainst subversion, the the Justice
Departments Eureau of Investigation underwent profound and,
arguably, pemanent changes. For the neit sixty years, the
Eureau would, in varyinq degrees, focus its investigative
a tt e r t io n ce a wide range of lawful political activities in the
United States. In short, the Wilson administration laid the
foundation fcr a pernarent state surveillance apparatus durinq t.e * the F ir s t World W ar.[1]
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Since historians have leng understood the important
relationship between the fear of foreign subversion and the
growth of domestic political surveillance, it is usually presumed
that the Justice Department first ordered the BI to conduct
intelligence investigations on the eve cf the First Hcrld War.
While the Eureau assumed extensive security responsibilities only
a f te r P r e s id e n t W ilscr warned the p u b lic about "German
intrigues", it had investigated the causes of labor strife in the
West as early as 1912 and the activities of radical Mexican
emigres during the Mexican Bevolution. Thus, rather than
introducing the BI to political surveillance, American
involvement in the First World War brought these peripheral
functions tc the fore. Ard since nc labcr organization was more
radical or militant than the Industrial Workers cf the World, the
Wottlies were the first grcup to be investigated by the BI fcr
'i political reascns.f 21
Toward the end of the Taft administration, western state
political ard business leaders clamcred for the federal
government to play a more active role in the struggle against
militant labor unions, primarily the Industrial Workers of the
World [IWW). The IWW was founded in 1905 by leaders of the
Western Miners Union to organize unskilled workers ard farm
laborers, groups that had been consistently ignored by the
conservative, trade-oriented American federation cf Labcr (AFL).
The TWW’s philosophy was a mixture cf ideas borrowed from Marx,
Earvin, the„ French anarchc-syrdicalists, and utopian socialist.
Its goal was to represent all workers ic "one. tic union." The
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Sobblies were unabashedly radical and irucb of their rhetcric was
cutraqeous and inflammatory: "The wcrkinq class and the
employing class have nothing ic ccnocn. There can be no peace so
lcnq as hunqer and want are found amonq millicrs cf working
people and tte few, she make up the employinq class, have all the
qood thinqs of life. . . Eetween these two classes a struqgle
must go cn until the workers of the world orqanize as a class,
take possession of the earth and the machinery cf production and
abolish the waqe system. . .It is the historic mission of the
working c la s s tc do away with c a p ita lis m ." The u n io n 's only
alleqience was to the worker- Woillies terated clergymen as
"long-haired preachers" who were apologists of the system,
offering only "pie in the sky when you die." Kcbblies reqarded
nationalism ard patriotism preposterous. In their war aqainst
"wage slavery", no strategy was unthinkable. Early cn, the IVtf
relied on "Free Speech" campaiqES tc encourage workers to support
i the organization. Although many believed these campaigns were
nothing more than obnoxious propaganda blitzes, the Kcbblies
asserted that the right tc advocate strikes, boycotts, slowdowns,
and even industrial sabotaqe, were constitutionally protected.
Few establishment political and labor leaders acreed with this
position. The Socialist Party, fcr example, approved a measure
prohibiting Farty members from advocating violence, crime, or
sabotage.[3 ]
In California, where many cf the "Free speech" campaiqns
were conducted, the response was visceral. Fcr five months in
late 1911 aid early 1912* vigilantes and supporters of the IKE
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tattled in the streets cf Sac Dieqc. On the surface, San Dieqo
appeared to he an unlikely battlegrccnd. A small city of 50,000,
San Diego had no serious labor treaties, either in the industrial
cr agricultural sectors. In addition very few Wottlies were in
the area, no more than a few hundred at any cne tine. Still, as
the journalist Walter 7. Wcelke noted at the time, the Sobblies
sere able to goad "the authorities and the populace into a
hysterical frenzy, into an epidemic of unreasoning fear and
trutal race, intc a ccnditicr of laslessness so pronounced that
travelers feared to visit the city." In December 1911 the San
Diego c it y co u n cil clo sed dewn se v e ra l blocks in th e downtown
area that had "served as a sort of Eyde Park Speakers* Corner."
The council's ruling sparked often violent clashes between IWi
members and o th ers who belonged tc th e San Diego Free Speech
league and the police and viqilantes. "Hangirg is tcc qccd for
IWobblies)", the editor cf the San Diego Tribune proclaimed, "and
they would be much better dead, fcr they are absolutely useless
in the human economy."[ 4]
when reports of official complicity in vicilante terror
attracted nationwide atterticr, California state officials moved
tc end the fighting. In an effort to obtain an even-handed
evaluation cf the facts concerning the situation in San Diego,
Governor Hiram Johnson, a prominent progressive, commissioned
special investigator Harris Weinstock tc conduct a thorough
inquiry. Weirstock, whc spent months in San Diego collecting
evidence, told the Governor that he found it hard tc believe that
he was in the United States ard net Czarist Hussia. Official and
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unofficial repression cf the I h e concluded, was vorse than he
had imagined. He recormended that the state take no additional
steps to suppress the IBW.[5]
Miffed ty the Jchrscn administration, conservative leaders
appealed directly to President William H- Taft fcr federal
assistance. Eepresentatiwes cf the anti-IHH forces informed Taft
that the Hobblies Here planning to "create a new government in
Southern California" and "invade Mexico." They urqed the
President tc prosecute I Hi leaders under a federal lav which
prohibited seditious conspiracy. Taft ordered attorney General
Georce Wickersham tc investigate these allegations. Southern
California, the President claimed, "is a tasis fcr most cf the
anarchists and industrial world workers, and fcr all the lawless
flotsam arc jetsam that proximity tc the Mexican border thrusts
into those two cities of San Diego and Los Anceles. " Governor
Jchnson anc the state government, he continued, do not "hesitate
tc dc (business) with these people and cultivate their goodwill,"
and for that reason, the federal government must "cc in ard shew
the strong hard of the Dnited States in a marked way so that they
shall understand that we are on the job."[6]
The attcrney General assiqned several BI aqents tc
investigate 1SW activities in Southern Californnia to determine
if federal indictments were warranted, following an exhaustive
inquiry, assistant attorney qeneral William B. Harr reported
that because the IWW had violated no federal laws, there was
nothing the Justice Departmert cculd dc to help the beleaguered
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California businessmen. Without the state legislature’s prior
approval, the President could net commit federal troops to the
region and such a request vas not forthcoming. The Immigration
act of 1SC3 allowed the Labcr Department to deport anarchists
from the United States, but such proceedings had tc occur within
three years after the immigrant had entered the United States.
Therefore, the deportation of large nuirbers of IWW aqitators was
unlikely. [7 1
Successful prosecution cf ictblies under section 6 of the
Federal Penal Code was equally unpromising. Passed in 186 1,
section 6 prohibited twe cr acre persons from conspiring to
overthrow the qovernaent, interfering with federal law
enforcement, or seizing government property. The BI had
uncovered no evidence that shewed that the IWW had conspired to
overthrow the U.S. government by force and violence. As a
result, Harr concluded that the IWW would remain a problem that
state and local goverrments world have to manage without federal
assistance.[8 1
A second BI investigation cf the California IWW followed a
protracted and sometimes violent strike against fruit and
veqetable growers, ending in the so-called "Wheatland Riot." Led
by IVW organizers, nearly three thousand migrant workers
protested aqainst the miserable workinq conditions, low waqes,
and inadequate food and housing at a hop ranch in Wheatland,
California owred by E.B. Durst. Labor Department analyst Stuart
Jamieson referred to the August 1913 rict as a "purely
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spontaneous uprising. . .a psychological pretest against
factory conditions cf hop picking."f9 1
Shaker by yet arcther demonstration of IWW "lawlessness”,
and fearing additional spontaneous strikes during the harvest
seasons. Durst and ether growers organized the Farmers'
Protective league to represent their interests in the state
legislature, The League also hired an army of private police to
guard fields and intimidate farm workers.
Governor Johnson abandoned the position he had taken during
the San riego Free Speech campaigns a year earlier. He sided
with the Wheatland growers and ordered the California Commission
cn Immigration to investigate conditions on the larqe farms. The
purpose of the inquiry was to help the Governor formulate labor
policies which would improve scrkiEg conditions and undercut the
IWW appeal. At the same tim e, Johnson ioined with the governors
of Oregon, Kashinqtcr, and Ctah in an appeal for federal
assistance. In a letter to Interior Secretary Frarklir lane, the
governors urced the federal government "to get to the bottom of
(the IWW) movement.” The region was "experiencing abnormal
disorder arc incendiarism." Expressly blaming the IWW for these
conditions, the qoverrcrs conceded that state and local officials
were nearly helpless to control or apprehend the "ringleaders."
President Wilson responded sympathetically to the governors'
re g u e s t, advising A ttorney G eneral Thomas W. Greqory th a t he
"w holeheartedly endorsed ' t h i s i r g u ir y which seems to mean so
much to the whole s e c tio n th a t i t c o n c e rn s .' " f 10 ]
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Gregory assiqned El aqents tc conduct an examination of
evidence compiled ty the Califorria Immigration Commission. As
in the earlier investigation, the BI failed to identify any IWW
activities vihich might have violated federal law. The aqect in
charqe of this investigation did characterize I¥W members as
•’chiefly panhandlers, without hemes, mostly foreigners, the
discontented and the unemployed, who were net arxicus to work.”
But to the dismay of the California politicians and their grower
allies, federal law did not yet prohibit vacabondaqe and
unemployment. Nevertheless, American nativism lay at the heart
of the BI’s analysis of the IWW, and would reappear during the
war to justify the suppression cf the Scbblies.r 113
From these somewhat inauspicious incidents, a procedure for
the investigation of domestic radicals had begun to take shape.
Propertied irterests, allied with various state and local
authorities, enlisted the support of federal aqercies tc handle
threats, either real cr perceived, tc their political power and
capital investments. The IKW, because cf its bombastic
propaganda, and perhaps more importantly, its success in
crqanizing an otherwise prostrate labor force, was the primary
target of these early efforts. But since the Wobblies had
violated no federal laws, there were no successful federal
prosecutions. As William Preston writes: "the exponents cf
repression envisioned the federal government as a deus ex machina
fcr their difficulties with radicals. Until World War I,
however, Washington was equally embarassed by the lack of laws
suitable for the prosecution cf dissident, members of the
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community."f12 ]
Just as domestic labcr unrest led to BI investigations of
radical labcr organizations prior to 1916, sc the threat of
foreign subversion during the Mexican Revolution brought about
federal surveillance of political activities. During the second
decade of the twentieth century, Mexico underwent profound
social, economic, and political change. When Wccdrcw Wilson took
office in March 1913, he found the political turmoil in Mexico
especially troubling. Two years earlier, Francisco Maderc had
overthrown Pcrfirio diaz. In 1913, Madero, who had championed a
■cdest program based on political reform and land redistribution,
was ousted and murdered by General Victoriano Huerta. Believing
that OiS. reccqniticn cf the Huerta regime vculd only serve to
undermine Mexican constitutionalism, and hopirg tc teach the
Mexicans tc chose better leaders, the Wilson administration
slowly intensified American pressure against the Huerta
government. In April 1914, after Huerta refused repeatedly to
satisfy Wilson's demands, American marines occupied Vera Cruz.
During the next two years tensions between the two qcvernments
mounted and finally, it 1916, General John Eershing led regular
army troops into Mexico to pursue border raiders led by rebel
leader Pancbc V illa.f13]
Not surprisingly, few Mexicans supported Wilscn's policies.
Many believed that an American President had no right tc
interfere ir the affairs cf Mexico no matter what his objectives
might be. That Mexican exiles living in the Dnited States also
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criticized his policy particularly irked the President. Already
frustrated by Mexican refusal to see thinqs its way, the Wilscn
administration moved tc silence these voices. Members of the
Partido liberal Mexicano (PLM) were among the vest vociferous
critics of Anerican intervention in the Mexican Revolution. From
1900 throuqh 1910, the PLM, led by Ricardo and Enrique Flcres
Maqcn, represented the only serious challenqe tc the corrupt diaz
reqime. Avcwed anarchists, the Flcres Maqcn brothers had first
'fled Mexico in 1903 to avoid police surveillance ard harassment.
Frcn their St. Louis, Missouri headquarters, they published
their newspaper, Reaeneracion. They advocated the overthrow of
diaz, the eiqht-hour day, the restriction cf the church, land
reform- In 1905, the U.S. Ambassador to Mexico, David E.
Thompson, reported tc the State Department that the "PLM ’worried
President dia 2*, ’harmed U.S. business interests’, and advocated
• anarchism’ By 1913-1914, however, exile had taken its toll on
the ELM and thereafter the party enioyed only peripheral support
amonq the Mexican wcrkinq class. Still, PIK leaders worked
tirelessly from their base in Southern California tc develop an
alternative political and sccial program to the more popular
Villistas and Caranzistas-T 14 1
In 1913, the BI, respcndinq to Wilsonian policy, which was
based on the belief that the PIM might somehow undermine the
Mexican government, began to investicate the party’s political
activities. Unlike ether Mexicans and Americans, members of the
PIM were not involved in running quns or munitions, activities
which would have clearly violated the neutrality laws. Instead,
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the Bureau investigated party members for criticizing American
policy and exhorting their comrades in Mexico to fight for "Land
and liberty-" nonetheless, Bureau agents assuned the worst. In
November 1915, for example, special agent E.H. Elanford reported
that the ELl! had organized "secret societies. . .fcr the
purpose that should the Dnited States intervene in Mexico, are
ocing to dc all the damage Fcssihle in this country* " Elanford
found this passage from the PLM's newspaper, Reaenerac4gn.
particularly incriminating: "The conseguence (cf American
intervention) can net hut be disastrous (fcr President Kilscn).
.it has proved to the world that the ’Bluffer* cf the North is
cnly a scarecrow and that the emissaries of the United States are
dogs which hark but which can’t bite because they have not the
teeth which only the stupidity of the people would give thme
(sic) in consenting to become cannon fedder fcr the benefit and
amusement cf their original parsaites (sic), "f 15]
While the investigative technigues used by the BI to gather
evidence against the PLM did not encompass the full array of
methods ofter associated with political intelligence operations,
the BI investigation of the Mexican radicals certainly
anticipated the acre comprehensive examinations of anti-war
activists by several years- El agents placed "sail covers" on
the party offices ard the homes cf party leaders. letters and
packages were intercepted, opened, and inspected without warrants
and in violation of federal postal regulations. Informers were
hired to procure membership and mailing lists, survey offices and
printing facilities, feign radicalism and later betray
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confidences. Larqe files includinq the ELM's publications and
correspondence, were developed and this information was shared
with ether government agencies, in this case the Post Cffice.
Aqents attended lawful political rallies and iteetirqs sponsored
by the party and rcted the names of the speakers, summarized
their speeches, estimated the size of the audience, and recorded
the response to the speeches. And for assistance, the Bureau
turned to local police officials.r16 ]
In February 1916, following a two year investigation cf
their activities, federal postal officials arrested the Flores
Maqon brothers for violating section 211 of the federal postal
penal code. Secticr 211 prohibited persons from csinq the mails
to distribute materials "tending tc incite murder, arson, and
assassination." The qovernment alleqed that as editors of the
ELM's newspaper, B e g e c e ra c ic n . the F lc re s Magons had in c ite d
others to commit arson and murder. Given the widespread
hostility toward aliens, especially Mexican radicals, in Southern
California, the O.S. Attorney had little trouble convincing a
itry that the two men were guilty as charged. In July 1916, a
federal judge sentenced Enrique Flores Magon to three years in
prison, his brother Ricardo, to one.f17]
A year earlier, iE May 1915, a German submarine had sunk the
British passanger liner Lusitania, precipitating a foreiqn policy
crisis much graver than the Mexican Reoluticn. As did troubles
to the scuth, World War I had serious domestic ramifications-
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Diplomatic Eeqotiaticrs cnly partially resolved the problem
related tc submarine warfare, ard the President decided to
suppcrt rearmament and military preparedness tc insure the
nation’s security, is part of his preparedness campaiqn, Wilson
singled-out foreign-born Americans who opposed the
administration*s rearmament policy, claiming that they were
pouring "the pcison cf disloyalty into the very arteries of our
national life." In December 1915, Wilson called cn Conqress tc
suppcrt rearnasent and to approve sedition legislation designed
to silence these dissenters. Althcuqh there was very little bard
evidence that any significant number cf German- or
Irish-imericats were involved in orchestrated attempts to subvert
the nation’s security, Wilson sounded this shrill alarm: "(T)he
qravest threats aqairst our rational peace and safety have been
uttered within our own borders." Hyphenated Americans guilty of
sedition, disloyalty, and anarchy should be "crushed out."
Although Ccrcress did ret pass legislation tc suppress criticism
of Wilson’s foreign policy until July 1917, the President’s
Preparedness Campaign enccuraqed the public to identify
fcreign-born citizens, socialists and other radicals with
subversion and disloyalty, an association that later
characterized enforcenent cf the espionage and sedition acts.[181
In the early years of the war, before direct American
involvment, it was unclear which federal acency wculd be
responsible fcr enforcirq internal security laws, such as the
neutrality acts. During the Spanish-American War, the Secret
Service had investigated enemy "spy rings" .operating in the
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United States and Canada, but since 1912, the BI bad shared the
responsibility for enforcing the neutrality acts. In 1915,
Secretary cf State William Uenrinqs Eryan turned to the Secret
Service to investigate alleqed "Genian intrigues." The legal
basis for these inquiries was somewhat obscure because Congress
had failed to approve Wilson's initial proposal for sedition
legislation. Nevertheless, Secretary of the Treasury Killian
HcAdco cauticred the President not to prohibit Secret Service
inquiries simply because of "the lack cf federal authority.11
Wilson aqreed that the situation was much toe critical tc let
formalities stand iE their nay and ordered the Treasury Secretary
to supervise the Secret Service’s ccunter-espicnage
activities.TIS ]
A bureaucratic struqgle between Secretary HcAdoo and
Attorney General Greqory over control of the administration's
internal security prcqran quickly ensued. Although Gregory, a
Texas attorney who had -joined the cabinet in 1914, stronqly
supported the President's efforts to secure passage of sedition
legislation, he firmly opposed the continued growth of counter
espionage responsibilities. For example, he tcck particular
exception tc the government's protracted case aqainst German
Commercial Attache Heinrich Albert. In August 19 15, Secret
Service agent Frank Burke illegally seized documents from Albert.
The documents outlined plans tc spread pro-German propaganda in
the United S ta te s . In an attem pt to prove German p e rfid y , the
Treasury Department later gave the papers to the Kew York World.
The Attorney General, jcired in his dissent by.El chief A. Bruce
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Bielaski, argced that turning the documents over tc the World was
counterproductive for two reasons. First, the Justice Department
could not Fxcsecute the individuals responsible fcr the scheme
because they had act violated any federal lavs. Second, Gregory
feared that Wilson’s critics, particularly belligerent
Republicans such as Theodore Bccsevelt, would exploit the
incident and claim that the administration was soft on "German
intriguer s."[ 2 C1
The net effect of this incident spurred inter-agency rivalry
and further confusion. Attorney General Gregory’s argument did
net impress the President or other cabinet members. Wilson
continued tc authorize the Secret Service to conduct
non-criminal, intelligence investigations in the Onited States.
In addition, in 1916, Congress adopted an aiendment to the
appropriations bill authorizing the Bureau of Investigation to
conduct investigations at the reguest of the Secretary of State.
Joan Jensen has suqgested that Congress approved the amendment to
allow the Bureau tc investigate an explosion at the Elack Tom
munnitions dump in New York Harhor. It is also possible that the
State Department wanted the authority to request El
investigations of foreign, primarily German, diplomats in the
Onited states. In any event, the amendment did not qrant the
Bureau blanket authority to conduct widespread surveillance of
dissident political activities. It did, however, give the
Attorney General and the chief of the BI the opportunity to
consolidate the department's jurisdiction in internal security
matters. [211
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In the spring of 1917, HI chief Bielaski realized that the
Bureau was ill-equipped to investigate the rising number cf
security-related complaints received by the Justice Department.
At the beqinning of the war, the Bureau fielded only 300
full-time acents, whc speEt acst of their time gathering evidence
fcr anti-trust and Mann Act cases. In 1916, ccly cne cut of ten
investigaticis conducted by the Bureau was related to security
natters. Moreover, since Ccnqress had not approved Wilson’s
proposals fcr sedition legislation, additional appropriations fcr
security verb were net forthcoming.r22]
In early February 1917 Albert £. Eriqgs, a Chicaqo
advertising executive who was disturbed by the gcvercBert’s
inability tc prevent local pre-German activities, contacted El
Division superintendent Hinton D. Clabauqh. Briqgs informed
Clabauqh that he could organize a volunteer association to assist
the HI in security-related investigations. Even before receiving
permission from Washington to implement the Briqqs proposal,
Clabauqh bac accepted limited assistance from Erigqs's
associates. Still Clabauqh withheld any final commitment to
Erigqs pending Bielaski's approval. Several seeks later, as the
pace of events leading to war quickened, Briggs offered the BI
the use of 75 automobiles. At the time, Bureau aqents still had
to rely on public transportation. Clatauch, whc had
enthusiastically supported Briggs' criqinal proposal, arranged a
meeting in Washington between Eielaski and the Chicago executive
to discuss the proposal. After conferring with Attorney General
Gregory, Bielaski accepted Briggs* offer, provided that the
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assistance would not be publicized.T23 ]
On March 14, Eriqqs, encouraged by Bielaski’s decision,
presented a third, sere comprehensive proposal to Clabauqh. This
plan called for the creation of a nationwide voluteer
orqanizaticr tc helF the justice Department protect the nation’s
security. Financed by membership dues and private contributions,
the American Protective league (API) would recruit "citizens of
qood moral character. . .whc nay be acceptable to your
department." Each local API unit would, at all times, be fully
accountable tc the Justice Departaert and "under the direction of
the nearest (department) headquarters." Althcuqh Clabangh shared
Brigqs* enthusiasm fcr such a program, he lacked the authority to
approve the proposal and instead sent it to Bielaski for his
consideration.[24 1
Six days later, cn March 20, the Cabinet unanimously aqreed
th at a s ta t e cf war between th e Dnited S ta te s and Germany alread y
existed and advised the President to act accordingly. Attorney
General Greccry suqgested that his department prepare legislation
aimed at ccntrolling German espicnaqe and sabotage activities
within the Dnited States. Bithcut discussing the implications of
such legislation for individual riqhts, the President and the
cabinet ccncurred. In this context, Bielaski approved Eriqgs*
plan later that same day. In a teleqram nctifyinc Clabaugh cf
his decisicr, the BI chief emphasized that the API should make no
arrests without the Bureau’s approval "in order that there be no
confusion."r 25 ]
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Two days later, Brigqs net with Eielasii in flashington to
iron out the final details. The El would inform its field
offices that Eriggs was organizing "a vcluteer committee.
.fcr the purpose of cc-CFerating with the department in securing
infcrmation cf activities of aqents of foreign governments or
persons unfriendly tc this qovernment, for the protection of
Frivate property, etc." Bielaski expressed his desire that the
AEL*s activities remain "as confidential as practicable,11 but
left the rest up to Briqgs. The API would establish its own
rules and regulations, and recruit its own members. If Brigqs
and Bielaski discussed measures to insure the APL*s
accountability to the Justice Department, they tcok no
affirmative acticn tc prevent abuses. Instead, they believed
that the Eureau and the API would be able tc solve any problems
should they arise. Tc say that Bielaski seriously misjudged the
situation is an understatement. In fact, Bielaski and Briqqs
could not tave concccted a better formula for lawless law
enforcement. By June 1917, a force of over 100,000 volunteers,
woefully lacking any leqal cr pclice experience had teen formed
and set lccse upon a society already engrossed in war
h y s t e r i a . f 26 ]
From the start, administration officials believed that the
effective suppression of the anti-war left required net only a
larqe police fcrce but alsc stringent sedition legislation. In
1916, it may be recalled. Congress had refused tc approve
legislative proposals drafted by the Justice Department which
would have p ro h ib ite d c r itic is m cf the P reparedness Campaign and
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the administration*s foreign policy. At that time, of course, a
state of war between the Dnited States and Germany did not exist,
and, as a result, the patriotism of the hill's opponents could
not be seriously questioned. After Congress declared war on
April 2, 1917, it became increasingly difficult fcr critics of
the sediticr legislation to challenge the proposal on
constitutional grounds alone. In Wilson's address to the icint
session cf Congress cn April 2, he warned that Germany "has
filled our cnsuspectinq communities and even cor offices of
government with spies and set criminal intricues everywhere
afoot." Ic framing the question in these terms, Wilson
effectively undercut any possible support opponents of the
espionage act might hate mustered in congress. [ 27 ]
On June 15, 1917, Congress passed an espionage act which
included previsions that were sufficiently tread tc allow federal
prosecution cf dissidert political activities which were totally
unrelated to "espionage". "(T)wo of the twelve titles cf the
act", Harry Scheiber writes, "bore directly upon freedom of
speech." Cre empowered the Postmaster General tc exclude from the
mails any material "advocating or urging treason, insurrection,
or forcible resistance to any law of the Dtited States."
established definitions of espionage:
(1) Whoever, when the United States is at war, shall willfully mafce or convey false reports or false statements with irtect to interfere with the operation or success of the military or naval forces cf the United States or to promote the success of its enemies; J2) and whoever, when the U nited S t a te s i s a t war, sh a ll willfully cause or attempt to cause insuhcrdination, disloyalty, mutiny, or. refusal of duty, in the military or naval forces of the
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United States; (3) or shall willfully obstruct the recruitinq or enlistment servi.ce of the United States, to the injury of the service or of the Dnited States.T28]
Even though the President bad privately assured his
supporters that the new law would not be used to silence critics,
the actual prosecutions tell a decidedly different story- In
all, the Justice Department brought charqes against ever 2,000
individuals fcr violations cf the espionage laws, including
former Socialist Party Presidential candidate lugene Debs and
J.a. Petersen, a Bepublican senatorial candidate from fliirescta.
Yet, as Jcbr Lord O’Brian, head cf the department’s War Emergency
Division, later suqqested: "net one bone fide spy or saboteur
was convicted during World War I. 29 1
The Frctlen was cne cf definition and identification- The
administration chose to interpret the espionage laws in the
broadest possible terms. Wilson and his seiior advisors
understood ttat most anti-war critics were not German spies in
the strictist sense of the word. They were net planning to steal
state secrets and turn them ever to German espicnaqe agents. Nor
were they saboteurs, who were likely to bomb armories, munitions
dumps, or defense plants- Instead, the Justice Department arqued
that opposition to the war, including even the most innocuous
remarks, could theoretically interfere with the war effort, and
therefore should be punished. Given this interpretation of the
statute, the administration's policy was to intimidate and
silence pacifists, radicals, and socialists, but above all, tc
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destroy militant labor organizations which opposed "Wall Street’s
war. nr 30 ]
There is nc more dramatic example cf this repression than
the federal government's struogle against the Ilfi, an
organization that, according to the President,-was "a menace to
organized society and 'certainly. . .worthy cf being
suppressed."' Since 1914 the IiW. had strongly opposed the war.
In 19 16 tie IHH's general executive board declared that "(i)n
this mad chaos of bloodshed and slaughter that has engulfed the
wcrld, we reaffirm with unfaltering determination the unalterable
opposition cf all Industrial Workers of the icrld and its
membership tc all war and the participation therein cf its
membership." following the Aaerican declaration of war, the IWW
changed this position somewhat. In an attempt to protect itself
against federal prosecution, the ISfi decided to leave any
decision concerning draft registration and conscription up to the
individual. "Begistratior by eligible IKH's ran as high as 95
per cent in some localities," William Preston writes, "and in
qeneral most craft-age Wobblies filled cut their forms." Having
taken this precaution, the Ififi refused to eguivocate on its
anti-war platform. The IWW believed that workers should crqanize
and, if iccessary, take direct action in opposing the war-
"Iy)ou cannot fight the masters," Ififi propaganda read, "with the
leqal weapons they have built for their cwr. protection." Thus,
its anti-war activities would include strikes, lock-ins,
slowdowns, general strikes, and, if necessary, industrial
sabotage*(3 1 ]
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Wilsoc administration officials were particularly
apprehensive about the ISW threats because of their influence in
strategic industries. The IWW had successfully crcanized workers
in the textile industry in the Northeast, miners and lumberjacks
in the mid and far west, and agricultural workers in California,
administration officials understood that any serious interruption
in any of these industries would have serious consequences. In
addition, by 1916, the IWW had reversed a decline begun in 1913
when internal factionalism and falling membership combined with
an economic slump to throw the organization into disarray.
Bealizinq tte danqer Fcsed by a militant and revitalized IWW,
federal officials joined forces with industrial and agricultural
leaders whc had been fiqhting the IWW for almost a decade. In
aliens and Dissenters. William Preston demonstrates that Western
businessmen and their allies in state and local government played
a key role in the federal government's decisicr to undermine the
IWW. In the summer cf 1917, Western aqribusinessmen, worried
that the harvest would be disrupted by the IWW, asked the Wilson
administration to arrest and intern IWW "ringleaders." These
individuals could later be indicted cn federal conspiracy
charges. "If they were apprehended," the theory went, "their
followers wculd be only scattered, ineffectual individuals.'T 321
The plan was particularly appealing to President: Wilson but
only if the indictments were coupled with reform of the
conditions that had led to labor unrest. Soon after the United
States entered the war in April 1917, administration officials
recognized the need tc rationalize labor-management relations.
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prevent strikes, preserve industrial peace, aid thus insure
maximum prcdcctivity. Althouqh the administration never
developed a ccxprehensive labcr program, the labor Department did
pursue two closely related goals. First, through the War Labor
Boarc, the administraticr encocraqed collective bargaining and
forced rabidly anti-uricn industries to deal with AFI affiliates.
The results of this program were impressive; by the end of the
war, more than three nillicn workers belonged to unions and were
receiving record waqes and working fewer hours. Simultaneously,
the President’s Mediation Commission, assisted by the Justice
Department, tried tc neutralize radical labor organizations
opposing American intervention in the war ard advocating
fundamental economic and social change. In one stroke, Wilson
hoped to realize the twin "progressive" goals cf rationalizing
labor-management relations in vital industries and routing the
radical opposition.[33 1
More than than other federal aqencies, the Justice
Department teed the administration’s anti-radical line. As a
consequence, ir July 1917 the Attorney General intensified the
department’s investigation of IWW activities throughout the
United States. Attcrrey General Gregory ordered all BI
Special-Aqents-in-Charqe and U.S. Attorneys to collect "all data
(about the ISW) which may be useful to the Department in
determining what action may be taken under the various criminal
statutes against the United States. . .or may be useful tc
state authorities." The IWW, Greqory asserted, was a "grave
menace11 financed "by some hostile (presumably German)
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organization.»' Following the receipt cf these instructions, the
El "had its agents infiltrate high leadership positions, and
ccrFcraticrs were willing tc make the reports of their private
detective investigations availaile to U.S. Attorneys."f34 1
These extensive investigations failed to uncover any
evidence that the Hill had received "German gold" in return for
their organizing and anti-war activities. U.S. Attorney iilliam
C. Fitts even declared that the Iifl "is a matter for the States
themselves to control under such laws as they deem proper to
enact and enforce.11 Despite the serious holes in the federal
government’s case against the HIS, the Attorney General informed
the President on August 21 that the Justice Department was ready
"to strike against the ISP. "r 35]
On September 5, 1S17, the El conducted a series of raids
aqainst ISP headquarters, union halls, and private homes
throughout the country. "Operating under perhaps the broadest
search warrants ever issued by the American judiciary," aelvyn
Eufcofsky w rite s , " f e d e r a l a g e n ts seized e v e ry th in g th ey could
find: minute books, correspondence, typewriters, desks, rubber
bands, fane) paper clips." In Chicaqo, they took the love letters
of Ealph Chapin, the editor of the ISfi weekly paper, Solidarity.
The documents, which spanned the thirteen years of the
organization's existence, did net show that the IPW had
participated in any espionage, or espicnaqe-related,
activities.f36 ]
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Nevertheless, the raids provided infornaticr that aliened
the qoverrnert to prosecute the Wokfclies. 0.5. Attorneys in
Chicago, Sacramento, fiichita, and Omaha persuaded grand juries to
indict 166 members of the IWW for violatinq the Selective Service
Act, the Espionage Act, and secticns 6 (seditious conspiracy) and
19 (prohibiting activities which interfered with the right of
others to exercise their constitutional rights). These
incictmeuts leave little doubt that the Justice Department’s goal
was nothing less than the destruction of the INS as a viable
labor organization. Virtually the entire leadership and many
second- and third-line officials were on trial. Initially, the
outcome cf the proceedings did not disappoint federal
prosecutors. In Chicago, where 113 Wobfclies steed trial, 35 were
sentenced to 5 years it prison, 33 tc 10 years, and 15 to 20; in
Sacramento, 12 members were sentenced tc 10 years, and in
Wichita, 26 Sobblies received terms ranqinq frcm 1 to 9 years.
While these wartime prcsecuticns seriously disrupted the IKK, by
draining important financial resources and slowing recruiting,
the government did not feel that it could claim tctal victory.
As 0. S. Attorney Fred Bcfcertscn told his superiors in April
1919: "The germ of discontent, destruction and outlawry has not
yet teen exterminated from the lWi."r37]
The campaign of the American Protective leaque was even less
successful. When BI chief Bielaski approved the fcrmaticr. cf the
organization in Harch 1917 he believed that such an organization
was necessary to prevent German espionage and safcetaqe of defense
in d u s tr ie s . Yet in two and a h a lf y ears, the API f a ile d to
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capture a sinqle spy or saboteur- Instead, with tbe
administration 's blessings, API operatives spent most of their
time investiqatinq, and in many cases harassing, anti-war
activists, pclitical radicals, German- and Irish-Americans, and
enemy a l i e n s , i . e . , German and A ustro-H ungarian im m igrants who
resided in this country but who had not become United States
citizens. The APL alsc tolerated, and in seme cases, instigated,
mob violence and vigilantisa, acts which President Wilson later
condemned as unbecoming American democracy- On April 4, 1S18, a
mob in Collirsville, Illinois dragqed Bobert Eraqer through the
streets, wrapped him in an American flag, and later lynched him.
Praqer had been accused cf talkinq to others about the "virtues
cf Socialism" and of planninq to blow up a nearby coal mine. The
Eraqer murder heiqhtened public awareness cf the threat of
violence arc viailartism, fcrcinq a scmewhat reluctant Eresident
to issue this statement three and a half months later: "There
have been many ly n ch in q s, ard ev ery one cf them has been a blow
at the heart of ordered law and humane justice. No man who loves
America, tc man who really cares for her fane and bcrcr and
character, cr who is truly lcyal tc her institutions, can justify
mob action while the courts of justice are open."r38]
Despite this ard similar pronouncements, the Justice
Department and the BI exercised little control over the APL.
During the war, Joan Jensen has observed, the BI 11 strayed so far
from its primary function* the investigation of violations of
federal laws, that it was difficult now to draw the line.
Eielaski had few guidelines for his own operatives- Little
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. wonder tie tie APL vclUEteers vho worked with (BI agents) had a
tendency to wander off into illegal activities." This conclusion
is clearly demonstrated by an analysis cf the Justice
Department's role in the Slacker Baids of 1916. In early 1918,
Wilson's political critics, led by Theodore Roosevelt and Leonard
Wood, charged that the administration had failed tc enforce
effectively the Selective Service laws. They called for
increases in military spending and the size of the armed forces.
They claimed that the best way tc achieve this goal was to
round-up the hundreds of thousands of "slackers" who had failed
to register fcr the draft. In June 1918 the War Department added
fuel to the fire when it warned the President that a second call
would leave the armed forces short cf its recruitirg goals. The
Department acvised the President that the problem could be solved
if the government took steps to find 300,000 slackers.f39 1
In the face of this growing political pressure. Attorney
General Greccry and BI chief Bielaski agreed tc place greater
emphasis on the investigation of violations cf the Selective
Service lews. And since Bureau agents would be unable to handle
the increased caseload, Bielaski asked the APL to assume
responsibility for finding and arresting slackers. Both Bielaski
and Attorney General Gregory, however, realized that the APL
could not legally detain suspects. Op to this time, the
Department had (at least officially) limited League members to
security-related investigations cnly. Even El agents could
arrest individuals only on the authority of the Attorney General.
When the AEI asked the War Department fcr the authority tc arrest
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possible draft evaders, Provost Harshall General Enoch A.
Crcwder turned down the request, claiminq that it was not within
his power tc crant such authority to civilians. In an attempt to
satify minimum legal requirements, Gregory urqed APL operatives
tc turn over suspects who would net voluntarily reqister for the
draft to "the proper State and Federal officer in order that the
arrest may be effected ir accordance with the law." He also
announced that the Justice Cepartment would reimburse both
federal agents and APL members "up to fifty dollars for
apprehendinc" deserters and draft evaders. "Scon", Jensen notes,
"the whole business became a nasty bcunty huntinq practice." In
July 1918, fcr example, the qovernment paid rewards totalling
alm ost $10C,CCC, $3C,CC0 on one Saturday alo n e.
Even while the July raids were in proqress Hilscn*s critics
pressed fcr rcre ccnprehensive enforcement of the draft laws-
1 he administration responded accordingly. In the course cf a
three day slacker raiding orgy in Chicaqc, 1C,CC0 APL members
arrested arc irterrcqated ever 15C,COO suspects. lew stones were
left unturned; individuals were grabbed at bus and train
terminals, ncvie theaters, workplaces, ball parks, beaches,
parks, and at home. Cf these only 1200 were slackers and 265
deserters, that is, less than one per cent cf those arrested and
held for cuestionirg had violated the selective service laws or
military requlations.[ U1 ]
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Undisnayed, the attorney General authorized the APL to
conduct a comprehensive sweep cf the New York area, assumed to he
the slacker capital of the United States, on Tuesday September
3, the day after Later Day, the API, under the direction of the
El, cast its net over the entire New York metropolitan area.
Every persct who appeared tc be eligible fcr the draft was
questioned, his identification checked, and if his papers were
not in order, sent to one of several arncries fcr further
interrogation. Like the Chicago raids, persons were apprehended
in both public facilities and private residences. In all, almost
75,000 men were detained, seme fcr several days. Later, BI
officials admitted that cnly one cut cf every two hundred (-5T)
persons cacqht in the AEL's dracnet was a be is a fide draft
dodqer.[ 42 ]
The Sew York raids, unlike those that had trarspired earlier
that summer, prompted widespread public criticism of the ftPL‘s
questionable, if not illegal, tactics. Several New York
newspaper agreed that the arrests were "inereusable" and in
"defiance of the spirit of American law." Cn September 4, only
the day after the Few York raids had commerced, Ccnqressicnal
Republicans criticized the raids, taking advantage of the
opportunity to discredit the administration. Senates Frank B.
Erandegee arqued that " (i)f this great government is. . .to
hunt down lawbreakers it cannot with any consistency assume to
act the part of a lawbreaker itself." Hiram JcbDscn, the
California prcqressive, asked rhetorically: "Where was it that
(the slacker raids) occurred? Would you say, if ycu had net been
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advised today, that this thinq were even possible in free
America?” Senator George Chamberlain*s assessment was equally
blunt: ”1. . .resent. . .any such Prussianism." Chamberlain
then asked the Senate to consider investigating the Justice
Eepartment, the APL, and their rcle in the slacker raids-r^l
In response. President Bilscn ordered the Attcrney General
tc prepare a report outlininq "exactly what were the
circumstances cf that .action, in making arrests of persons
charged with being slackers." Attorney General Greqory assigned
John Lord O'Erian, a prominent Buffalo, S. 7. Eepublican who
headed the Justice Department's War Emerqency Division, tc
investigate the raids. C'Brian’s appointment served a dual
purpose. Ey naming a Progressive Hepublican, Gregory hoped to
diffuse partisan criticism of the administration. And, by
choosing a ncted civil libertarian, Gregory wanted to demonstrate
that the administration was not, as its critics had charged,
determined tc curb domestic dissent.r44 ]
0 ‘Brian assured the press that he would examine all of the
facts. The primary purpose of the anvestiqaticr was, he said, tc
find out "whether persccs ccndcctinq the raids exceeded their
authority, whether there was any abuse cf power, whether there
was any undue hardship imposed, and what methods were employed in
carrying cut the {Attorney General’s) orders." The inguiry,
however, was ret as thcrcuqh as O'Brian implied. He stayed in
New York City for cnly two days. Without any staff to assist
him, o’Brian had to rely on information provided exclusively by
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BI agents and examiners and API operatives. Tiey assured him
that the arrests had been made in accordance with state and
federal law, that only these who failed to show their draft cards
sere detained, and that those who were questioned were treated
with courtesy and respect. Net surprisingly, C'Brian’s final
report dismissed many of the charqes made by critics cf the
raids. He assured the Attorney General that the "dragnet method
was effective" and that the "justice Department needed the
continued aic cf locatinq these men for the draft."f 45]
In the Justice Eepartment’s cover letter tc the President,
Gregory was more reticent. He told Wilson that he would accept
full respoisitility fcr the "unlawful and ill-advised, . .use
cf volunteers and military men by special agents cf the El."
"Contrary tc my express instructions," Gregory concluded,
"instructions which I have repeated over and ever again, and
contrary tc law, certain members of the (BI), without
consultaticr with me cr with any law officer cf this Eepartment,
used soldiers and sailors and certain. . .members {of the APL)
in making arrests." Nonetheless, the Attorney General did net
cateqoricaily denounce the Department's reliance on the APL.
Satisfied by the report, iilscn released it tc the Ftess cn
September 12. The action was seen by many as at indication that
more raids were tc cone and several weeks latex, the Attorney
General approved a request to employ APL units in a series cf
slacker raics in Washington State.Th6]
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Individual congressmen condemned the slacker raids and the
Jcstice Department's reliance cn API volunteers to enforce the
Ian. But Conqress never formally considered the important
questions raised by Bielaski*s API experiment. In fact, many
congressmen applauded the work of the API believing, like many
e th e r Americans, th a t w ithout th e le a q u e , German sp ie s and
saboteurs would be free tc collect vital security information and
disrupt war-related industries. Given this support and the
wartime hysteria, Congress refused to scrutinize closely the
investiqative activities of the BI, thus insuring that the aaency
would take future liberties in security's name.rh7]
The labor policies pursued by the Wilson Administration
during the war practically insured Fost-war industrial unrest.
As noted, the government had, with some success, disrupted
radical labor activities. Eut these organizations, especially
the’I»H arc, later, the Uricr of Bussian Workers, remained
influential among foreign-born workers in large-scale industries.
Cne reason fcr this resilience was the increasing militancy of
workers during the early postwar years. Bank-aEd-file workers
were unvillirq to surrender gains made during the war even though
their prosperity and power depended, in large part, on
unprecedented production and labor shortages. No fundamental
chanqes, however, had been made during this period to insure
their position vis-a-vis management, which was equally unwilling
to seek a compromise. Having sacrificed their right to dictate
terms to labor at the government's behest, business leaders
looked fcrward to a quick return to "normal11 industrial
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relations. Powerful, militant trade unions had no place in this
visicn of tie post-war era. This fundamental conflict made
ccnfrontaticn, labor unrest, and strikes practically inevitable,
and, as it had befcre and during the war, the Justice Eepartment
and the BI readily sided with capital. Hence, BI surveillance of
radical later and political organizations did not end with the
armistice, but continued well into the post-war years.[48]
Bureau agents throughout the country continued to believe
that aemhers of the IHU and similar organizations were "mostly
anarchists cr those having a strong tendency ir that direction,
who (oppose) the Constitution cf the United States and the
present form cf government". Eut their hands were tied. The
information that they collected was generally trivial, and the
end o f th e war deprived them cf the to o ls to p ro secu te.
Important provisions of the espionage and sedition acts had
either expired or cculd only be enforced when the nation was at
war. Although Justice Department officials and Conaress
aenerally acreed that a peacetime sedition act was vital to the
nation’s security, they were unable to agree on a specific
legislative proposal. Hence, only state syndicalist laws passed
in late 1918 and 1919, specifically defined impermissible radical
activities, arc, at the height cf the post-war red scare, the
Justice Department found this situation intolerable. Badicalism,
they believed, was a national prcblem, one which only the federal
government cculd handle effectively. Their desire for the
authority tc deal with the radical problem came tc end in the
fall of 19 19 when the new Attorney General, A. Eitchell Palmer,
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decided that the BI would coordinate the mass deportation of all
radical aliens from the United States.f49]
As i t had many o th er American i n s t i t u t i o n s . World War I
chanqed the Bureau cf Investigation. In 19 If, the Bureau
specialized in the investigation of violations cf tbe anti-trust
and white slave laws. Three years later, it was responsible fcr
nothing less than the internal security of the entire nation.
Given this enormous expansion of authority in such a short period
of time, it is not surprising that Attorney General Bonaparte's
criqinal guarantees ultimately failed to prevent BI abuses during
and after the war. Ir order tc work effectively, the Eonaparte
plan required an assertive and inquisitive Congress, a
conscientious attorney qeneral, a shared belief in administrative
accountability, and, perhaps most importantly, dispassionate
discussion cf the issues. In 1919, none of these conditions had
been adequately met. The details of this traqedy trust now be
discussed.r50]
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. NOTES
1) Paul Hurphy, fcr Id far I and the Origins of Civil
Liberties in the United States (New Ycrk, 1979) , 73. See also,
Harry Scheiber, Tlj§ WilscE Administration and Civil Liberties
(Ithaca, 1960), 17-19.
2) See especially, Frank 0. Dcnner, The age of
Surveillance: The airs and Methods of America’s Political
Intelligence System (New York, 1980), 3-29. See also, Lcwenthal,
FBI. 22-35; Murphy, Wcrld War f and the 0 rigins cf Civil
liberties, 32-50; H.C. Petersen and Gilbert C. Fite, Otconents
cf _War, 1917-1918: The Story j;i the Persecuticn cf Anti-war
Groans (Hadiscn, 1957), 3-20. Since the BI’s investigative files
compiled cr IWW activities pricr to 1918 are not indexed, I was
unable to include these sccrces in my analysis of these early
Eureau investigations. Instead, I have relied cn Prestcn's
account which is based upcn files in the general Department of
Justice records, documents which are also located in the National
Archives. See also, Lcrin Lee Cary, "The Bureau of Investigation
and Badicalism in Toledo, Ohio: 1918-1920," Labor History,
2 1 (summer 198C) , 430— 44C.
102
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3) William Prestct, Jr., Aliens and Dissenters; Federal
Suppression eji Radicals. 1903-1933 (Cambridge, 1963} , 3S-4G. See
also, Melvyn tubofsky, We Shall Ee All; a Histcrv of the IWW
(Sew York, 1969), 57-87; Paul Erissenden, Th e IWW: A Study of
Aaerican Syndicalism (Sew York, 1920), 155-177.
4} Preston, Aliens and Dissenters. 52-53; Dufccfsky, We
Shall Ee lil, 189-193; Brisserden, IWW, 260-282.
5) Harris Weinstcck, Report to the governor cf California on
the djstuiX gn^es in t&£ g i j j a j J S S M l l 2 t Sajj JBiego ifl J 9 1 2 ;
quoted in Erissenden, IWW. 266.
6) Preston, Aliens and Dissenters. 54-55. Dubofsky, We
Shall Be All. 192-193. Albert Tucker, a Wobbly from Ics Angeles
who along with several hundred ethers hopped a frieqht train tc
-join t h e i r b ro th e rs in San D iego, gave t h i s account o f th e
violence a f t e r th e t r a i n had been stopped en ro u te by scice 400
armed men: "The mccn was sh in in g dimly through the clouds and I
could see pick handles, ax handles, wagon spokes and every kind
of club imaginable swinginq from the wrists of all of them while
they had their rifles leveled at us. . .the only sign of
civilization was a cattle corral. . -We were ordered tc unload
and we refused. Then they closed in around the flat car which we
were on and began clubbing ard knocking and pulling men off by
their heels, so inside of a half hour they had us all cff the
train and then bruised and bleedinq we were lined up and marched
into the cattle corral, where they made us held our hands up and
march around in a crowd for mere than an hour, . -They marched
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as several tines, new and then picking out a mac they thought was
a leader arc giving hio an extra beating. Several men were
carried out unconscious. . .afterwards there was a let of our
sen unaccounted fcr and never have been heard from since. The
vigilantes all wore constable badges and a white handkerchief
around th eir le ft arms. They were drunk arc h cllerin a and
cursing the rest of the night. In the morning they took us out
four or five at a time and marched us up the track to the county
line. • .where we were forced to kiss the flag and then run a
gauntlet of 106 men, every one of which was striking at cs as
hard as they cculd with their pick ax handles. They broke one
man’s leg, and everyone was beaten black and blue, and wa.s
bleeding from a dozen wounds." Cuoted in Dubofsky, Wj§ shall Be
A ll. 192.
7) Preston, Aliens and Dissenters. 53-55.
8) Preston, Aliens and Dissenters. 53-55.
9) Preston, Aliens and Dissenters. 56-57; Dubofsky, He
Shall Be All, 294-298.
10) Preston, Aliens and Dissenters. 57-60. Ereston suggests
that Johnson’s decision was consistent with his "progress!vism"
since Hobblies and other militant workers deserved state
protection crly if they were "the victims of illegal and vicious
mob action." cnee the farm workers rioted in Wheatland, Jchnscn
perceived thew as criminal conspirators whose action seriously
threatened the existing c a p ita lis t economic order. Dubofsky
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agrees, notinq that Johnson and the Califcrria Progressives
"sought to restrict IWW influence amonq migrarts by reforminq
work conditicrs on California's ranches." Dubofsky, We shall jje
M l . 2 98.
11) Preston, Aliens and Dissenters. 59-61; John Hiqham,
Strangers in the land: Patterns .gf Arnerican Natiuism. I86 0-1925
(New York, 1966), 131-193.
12) Preston, A liens and Disserters. 54; Dcnner, The Age of
Surveillance. 30-32.
13) See generally, Arthur S. Link, Wocdrcw Wilson and t he
Progressive Ira. 1910-1917 (New York, 1954), on American policy
toward Mexico during the first Wilson administration. On the
causes of the Mexican revolution, see also, John M. Hart,
Anarchism and the Mexican Working Class. 1860-193 1 (Austin,
1978), 10®= 155; Robert Freeman Smith, The United States and
Revolutionary Nationalism jj,n Mexico . 19 16-1922 (Chicaqc, 1972),
1-42.
14) Hart, Anarchism amd the Mexican Working Class. 87-104;
Schieber, The Wilson Administration and C ivil l ib e r ti e s. 11;
James R. Mock, Censorship 1917 (Princeton, 1941); Smith, The
U.S. and Revolutionary Nationalism. 12-13 Even Arthur Link,
Wilson's sympathetic biographer, concludes that "by the end of
his administration the United States bad hardly a frierd left in
Mexico." Tie probleir, according to link, was not Wilson’s
obgectives ("Wilson had a sincere passion tc help the struggling
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 106
Mexican masses win lard and later-"), but his failure to chose
the riqht tactics tc implement his policies. lor a different
interpretation of Wilson’s Mexican policies, one which stresses
the imperial nature cf Wilson’s entire foreign policy, see
William Appleaan Williams, The Tragedy cf American Diclcmacy (New
Tor*, 1912), 69-89. For example, Wilson cnce told a E ritish
diplomat that "1 am going to teach the South Anerican republics
to elect qccd men." Undoubtedly fcrmer presidents of Ivy Leaque
colleges. See also, P. Edward Haley, Revolution and
In terv en tio n : Taft and Wilson with Mexico» 19 10-1917 (Cambridge,
1970).
15) Elanford report, 11/23/15; Unsigned jrencrandum,
*1/29/16; BI file Mex. 232-56
16) Elanford report, 10/4/15, 10/7/15, 11/5/15, 11/10/15,
11/11/15, 11/15/15, 11/18/15, 11/23/15, 11/26/15, 1/9/16;
Elanford tc Vann, 10/16/15; Elanfcrd to Eielaski, 11/19/15;
Blanford tc Earnes, 2/17/16; Neunhcffer report, 1C/24/16; Minck
report, 8/26/16; BI file Mex. 232-56.
17) Blanford to Hatabun, 3/1/16; Elanfcrd report, 6/23/16;
Webster rep o rt, 6/23/16; BI f ile Mex. 232-56.
18) Scheiber, Wilscn Administration and Civil liberties.
2-8; Joan Jensen, Price of Vioilance (Chicago, 1969), 9-16.
19) Bhcdri Jeffreys-Jones, Ameri can Escionaae: From Secret
Service tc CIA (New Tcrk, 1977), 16-41; Jensen, Price gf
Vigilance. 9-16; Scheiber, Wilscn Administrat icn and Civil
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 107
Liberties. 5-7.
20) Jensen, Price of Vigilance. 13-15.
21) Jensen, Price of Vigilance. 15-16; Dcnner, Age cf
Surveillance. 53, SDSE, 378-79-
22) SESE, 378-79; Jensen, Price of Vigilance. 16-17; Hcuse
Appropriations Committee, Hearings. Sundry Civil Appropriations
B ill for 1916, 762; C arrcll Wccddy, The Growth o£ the Federa 1
Government. 1915-1932 (New York, 1934) , 89-93.
23) Jensen, Price cf V igilance. 17-22; Murphy, World Bar I
and the Oricirs cf Civil Liberties. 89-90; SDSB, 380-81.
24) Jensen, Price of Vigilance. 20-21.
25) Jensen, Price p£ Vigilance. 22-23; SDSB, 381-82;
Donner, Age cf Surveillance. 32-33; Peterson and Fite, Opponents
cf War, 18-19.
26) Jensen, Price of Vigilance. 23-25.
27) Murphy, World Wat I anc the Origins of C iv il L ib e rtie s .
72-83; Scheiber, Wilscn Administration apd civil Liberties.
11-19.
28) Scheiber, Wilscn Administration and Civ i l lib e r tie s . 19.
29) Jchn Lcrd 0'Brian, National Security and Individual
Freedom {Cartridge, 1955), 123-130.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 108
30) Murphy, jj^cld Waj 1 ajoJ t£e Ojdalns Ql Cjvij liiSEiigs,
92-95, 197-207; When several federal judges ruled that net every
disloyal cr slanderous remark was actionable under the provisions
cf the Espionage Act, the Justice Eepartment moved to tiqhten uf
the law tc include such statements. In Hay 1918 Congress
approved a bill drafted by Department lawyers which amended the
Espionaqe Act. The legislation later became known as the
Sedition Act. The act prohibited persons to "willfully utter,
print, write, or publish any disloyal, profane, scurrilcus, or
abusive larquaqe" abcut the United States of its officials. See,
Feterson and Fite, Cpponents oj Ear. 208-221. Arncn Gutfeld,
"The Ves Hall Case, Judge Bourguin, and the Sedition Act of
1918," Pacific Historical Review 37 (May 1968), 163-78; Bureau
reaction tc later adverse judicial decisions is examined in David
Hilliams, "The Bureau cf Investigation and Its Critics; The
Origins of Federal Political Surveillance, 1919-1921," Journal cf
American History (forthcoming December 1981).
31) Preston, Aliens and Disserters. 89-91; Dubofsky, We
Shall Be All. 349-375; Peterson and Pite, Cctcnents of War,
43-60.
32) Freston, Aliens and D issenters. 92, 124-125; Dubofsky,
Je Shall Be All. 376-397.
33) See James Weinstein, The Corporate Iceal and ther
L iteral S ta te: 1900-1918 (Boston, 1968), 214-254.
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34) Prestcn, Aliers and Dissenters. 122-125; Dubofsky, Jje
Stall Be £1.1, 404-407.
35) Eufccfsky, We Shall Je J l l , 380-8 1, 3S0-4C5; Prestcn,
aliens and D issenters. 124.
36) Dubcfsky, We Shall Ee All. 405-406; Prestcn, A liers and
D issenters. 118-151.
37) P h illip T aft, "The Federal T rials of the IHN," labcr
History 3 (Vinter 1962), 57-91.
38) Jensen, Price of Vig ilan ce. 223. David Kennedy, Over
Here: The F irst World War and A eerie an Spcjet v (New York, 1980),
81-83.
39) Jensen, P rice of Vigilance. 188-190 ; Kennedy, Over
Here. 150-51.
40) Jensen, Price cf Vigilance. 194-195.
41) Jensen, Price cf Vigilance. 191-96; Lowenthal, FBI,
24-29; Petersen and F ite , Occcrents of War. 231- 24.
42) Icwerthal, FJEI, 28-29.
43) Jensen, Price cf Vjgjlance. 203-207; Lcwenthal, FBI.
32-35.
44) Jensen, Price cf Vigilance. 209-210; lowenthal, FBI.
24-35.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 110
45) Jensen, Price cf Viqilance, 209-211; Lowenthal, FBI.
34-35; SDSH, 381-82.
46) Greqcry to Rilson, qucted in Jensen, Price of vigilance.
47) Jensen, Price cf Vigilance. 212-218; Lowenthal, FBI,
34-35; Peterson and Fite, Ccpcrerts of Was;. 232-34.
48) Weinstein, The ccporate Ideal agd the Liberal State:
Alan Wolfe, The Seaev Side cf Beseeracy: Repression in Modern
anierica {New York, 1973), 24-30; Eubofsky, Be Stall Be A ll.
376-97; Kennedy, Over Here. 267-269;.
49) Echert K. Murray, Red Scare: Study in National
Evsteria (Minneapolis, 1955), 82-104; Jerold Auerbach, Unequal
Justice: lawyers ard Social Change in Mcdern America (New Ycrk,
1976), 102-107; Stanley Ccken, .A* M itchell Palmer: P o litic ia n
(New York, 1963; Paul Murphy, The Meaning of Free Speech: F irst
Amendment Freedoms from Wilscn tc FQR (Westport, 1972), 59-76.
Cary, "The Bureau of Irvestiqaticn and the Radicals in Tcledc,"
430-440 See Zechariah Chafee, J r . , Free Speech in the United
States (Cambridge, 1941), 141-170, on the peacetime sedition
le q is la tic r proposals presented to Congress in 1919-1920; Donald
Johnson, The Challenge tc A merican Freedoms: World War J an d the
Pise of the Americar Civil liberties Union (Lexington, 1963),
130-136; Kurphy, Meaning .gf Free Speech. 77-100.
50) Cr the impact of the war oc American society, see David
Kennedy, Over Here: E llis Hawley, The Great War and the Search
for a Modern Order. 19 17- 1933 (New York, 1979) . See also, David
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n i
Williams, " ’Sowing the Wind': The Deportation Baids of 1520 in
New Hampshire," H istorical New Hampshire (Spring 1979), 1-31.
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The Bed Scare, The Bureau of Investiqaticn ard
the Deportation Saids cf 1920: The Case cf Be* Hampshire
In November 1917, only seven months after the United States
had entered the war on the side of the Allies, the Bolshevik
Party under the leadership cf lerin and Trotsky toppled the
liberal, prc-var Bussian Provisional qcvernment. The successful
Eolshevik coup had immediate ittercaticnal and, in the United
States, domestic consequences. The new Soviet leaders, unlike
their immediate predecessors, souqht a separate peace with
Germany which seriously upset the balance cf poser in Central
Europe and renewed Germany's confidence that it cculd tc sin the
war. At heme, many Americans felt betrayed by Bussia's
withdrawal from the war so soon after the United States had
committed troops tc Europe. Seme suspected that the Germans had
assisted the Eclsheviks ir a deliberate attempt tc undermine the
Allied war effort. Yet the belief that the Bolsheviks were "the
Kaiser's aaerts" was ret the only source of American animosity
toward the Soviets. Hany others feared the new reqime because of
its uncomFrciisinq radicalism and its call fcr the overthrow of
capita lism.f 1 ]
112
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The Russian Revolution marked an important shift in the
Kilscn administration's internal security strateqy. Federal
o ffic ia ls telieved that because nany anti-w ar rad ic als had
proclaimed tleir support for the Russian revolutionaries they
seriously threated established values in America i t s e l f , cot just
the g o v errsert's war policies. fihile cnly a few of those who
identified with radical revolutionary qoals ever rescrted to
force or violence, the line separating advocacy and action had
not been clearly drawn in s ta te or federal law. Instead, courts
relied on the common lav tests cf criminality (i.e., bad tendency
and presumed intent) in espionqe and sed iticn cases. Civil
liberties lawyers like Zechariah Chafee, Jr. fcund these tests
to be "wholly inconsistent with freedom cf speech and any genuine
discussion of public affairs." And since radical frinqe groups
were presumably not ertitled to First Amendment rights accorded
to "legitimate" organizations, justice Department and BI
officials telieved tfcat investigations cf all radical activities
were well within their jurisdiction .\2 ]
Follcwirq the dramatic increase in security-related
investigations in 1S1 €, the Justice Department faced a serious
dilemma. The department realized th at i t wculd be v irtu ally
impossible tc prosecute all those who sympathized witv the
Russian revolutionaries. The process wculd be toe c o stly , time
consuminq, ard, it many cases, the verdict would be not guilty.
At the very least, the government realized that in crder tc
secure indictments ard ccnvicticns it had to produce some
evidence of sedition or espionage, beyond mere, membership in a
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radical organization. But, in most cases, it vas nearly
impossible tc substantiate allegedly seditious activities. As
the trials cf the ISW leaders had demonstrated, only the most
active members could be sent to *jail.[3]
In searctinq for an alternative. Justice Department
officials cecided that deportation would be a more useful tool
than sedition prosecutions. This new policy climaxed in the
•’Palmer Saids” of 1919-1920, named a fte r the new Attorney
General, A. Mitchell Palmer of Pennsylvania. Beqinning in
November 1919 the El in cooperation with the Immigration Bureau
rcunced-up mere than 10,000 radical aliens and citizens
throughout the country. Even today the scope cf these raids
remains unclear. The FBI has consistently refused access to its
investigative files, leavinq a larqe gap in cur understanding of
the implimentation cf the deportation policy. It is possible,
however, to fill some of those qaps. First, we shall briefly
examine the status of the immigration law in 1919 and the
policies developed by the Immigration Eureau and the Justice
Department to administer and enforce tte immigration statutes,
under the prevailing social and political conditions of the
immediate pest war period. Next, we shall illuminate the
ccnseguences of these decisions by studying their impact in one
state. New Hampshire.[h ]
During the first two decades of the twentieth century
traditional free immigration was restricted by a series cf new
laws which excluded p o litic a l radicals from entering the United
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States. In 1903, as a result of the assassination of President
william McKinley by Leon Czclgcsz, Congress approved legislation
which barred from entry "anarchists, or persons ubc believe in or
advocate the overthrew by force or violence of the government of
the United States, or all forms of law, or the assassination cf
public officials." If a foreign anarchist somehow slipped in,
federal law allowed three years tc find and depcrt him or her.
Congress changed the law in 1917 when both Houses overrode
President Eccdics Wilson's veto cf the immigration till which had
eliminated the time lim it. Congress had embraced the idea that
radical discontent was net native to the United States.
Criticism would be silenced by deportinq the troublemakers.[51
When it had become obvious that not all war resisters and
radicals cculd be punished under the espionage and sedition act,
the Immigration Bureau, in cooperation with the Justice
Department and Military Intelligence, decided to deport members
cf the ISS. Deportation of undesireable inaigrants was an
administrative, net a judicial, function. By law, the
Immigration Eureau arrested and tried the suspect. The
Commissioner General of Immigration reported his findings to his
superior, the Secretary cf Label, who made the final decision.
The alien had no right to appeal the decision tc any hiqher
authority.r 6 ]
When the IWW cases reached him fcr review, Secretary of
Labor Williai B. Wilson ruled that membership in the IWW alone
was not sufficient grcuds for deportation. Secretary Wilson held
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that individual acts which violated the Immigration lav would be
the only criteria used tc deternire the fate of the alien held
for deportation. Frustrated ty the release cf alncst two-thirds
of the Wotblies arrested, the Iirmigraticn Bureau and the Justice
Department drafted and lobbied throuqh congress the Immigration
Act of 19 18. Sith its passaqe, fcr the first time in American
history, membership in radical organizations became a depcrtable
offense. "The membership provision alo n e," Hilliam Freston
observed, "made possible the mass character of the red raids cf
1919-1920. " P I
In June 1919, following a series cf bonbinqs at the homes of
Attorney General A. Mitchell Palmer and ether prominent
government officials, the Senate pressed the Justice Department
tc investigate charges of a widespread conspiracy tc overthrow
the qovernnert. Corqress appropriated funds for a comprehensive
investigation of radical activities and- on August 1, 19 19
Attorney Gereral Palmer reported that a General Intellioence
Division (GID) had teen formed "with the purpose in view of
collecting evidence and data upon the revc luticnary and
ultraradical qroups." As head of the GID, Palmer appointed John
Edgar Hoover, a young El clerk who had worked with the attorney
General it the office cf the Alien Property Custodian- Hoover's
immediate task was to organize the anti-radical division cf the
Bureau of Investigation. For th a t purpose, Hccver created a
master file cf all radical activities. "The GID receives weekly
surveys from the various offices concerning all matters cf
ceneral intelligence ccmirg under investigation," the Attorney
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General reported, ard the "card index makes it possible to
determine or ascertain in a fen minutes the numerous
ramifications or individuals connected with the ultraradical
movement." In an e ffo rt to improve the GID's effectiv en ess.
Palmer replaced BI chief Eielaski, and appointed Hilliaa Flynn, a
former chief cf the Secret Service, to head the Bureau. Palmer
considered Flynn "the nation's fcrmcst expert cn radicalism."
Flynn then chose Frank Eurke, a Secret Service agent she had headed the agency's Russian division, as assistant El chief.T8]
For this particular anti-radical operation, the Justice
Department planned tc arrest only aliens and hold them for
deportation. In Auqust GID chief Hoover net with Anthony
Caminetti, the Commissicner General cf Immigration, and the two
aqencies established a working relationship. Hccver was
appointed tc coordinate the joint e ffo rt to stamp out rad ical
discontent and offered to assist immigration inspectors who were
investigating radical aliens. Usinq funds that had teen
appropriated for investigations only, the GID assumed
responsibilities formerly belcnqinq to the Immigration Eureau.
Hcover realized prior to the investigations that the Justice
Department had no jurisdiction in the deportation process. The
Department, he noted tc Frank Burke, chief of the Eureau of
Investigation, "has no authority tc take any acticns relative tc
radical activities." Nevertheless, Hcover plotted the course the
government traveled between September 1919 and June 1920,T9]
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By November 19 19 Hccver and Caminetti had decided th at
membership in the newly organized Communist Party of America or
or the Communist Labor Party, a s p lin te r group that had broken
with the Communists ever doctrinal differences, would be
deportable offenses. In a brief prepared for Attorney General
Palmer, Hccver asserted that party members were subject to the
deportation regulations of the 1918 ImmiqraticE Act because the
parties were dedicated tc the overthrow of all existinq
governments (with the exception of the Soviet Dcicn). Neither
Palmer, Hccver, ncr Caminetti sought the approval of the
Secretary of Labcr. Instead, they delivered him a fait accompli
in January 192C.[10]
The f i r s t move came on November 7, 1919, when the Ju stice
Department arrested 249 aliens in New York and five other states.
Imiqraticn o ffic ia ls a t Ellis Is la rd , New York, ordered them
deported and sent them abroad on December 23, 1919. The speed
and efficiercy cf the depcrtaticns alarmed leaders of radical
organizations and defenders cf civil liberties around the
country. Their lawyers drafted a circular which explained the
aliens' riaht to ccunsel at the preliminary hearing before the
Immigration inspector. Organizations distributed flyers which
urged anyone who was arrested tc remain silent until joined by
ccunsel to avoid self-incrimination at the hearirq. In Harch
1919 Secretary Wilsci had amended "Buie 22" of the Immigration
Eureau»s regulations governing the deportation process to provide
leqal counsel to aliens accused of violating the law from the
beginning cf the preliminary hearing. The ruling made it the
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responsibility of the inspector to inform the alien of his
rights. Kilscn had changed the rule to insure "due process," a
riqht guaranteed by the Fifth Amendment, freguently overlooked iy
zealous Immigration officials in the drive agairst the IUH.[ 11 ]
News cf the circular disturbed Hoover and Caminetti whc had
planned tc rely cr information provided by the alien at the
preliminary hearinq to prove his or her membership in the
Communist cr Communist Labor party. Frank Burke explained his
agents’ difficulty in finding evidence of party membership: "As
the activities of aliens who are radically inclined are always
most secretive in character, it is quite often rext to impossible
to prove actual membership with organization alleqed to be.
anarchistic." The BI hired undercover aqents and informers tc
infiltrate radical organizations to supply its agents with
information about local party cells. In Bureau memorandums
Hccver stressed the need tc protect the identity of its spies.
"Special aqents will constantly keep in mind," instructions
explained, "the necessity cf preserving the cover cf our
confidential informants during deportation hearinqs." Clearly,
from Hoover’s perspective, "Buie 22" had to be restored tc its
pre-March form to prevent attorneys from being present at
immigration bearings. Aqents could then squeeze confessions out
of stspects without exposinq their informers. Little wonder that
Hcover arcuec that attorneys world only bog do%n the hearings
unnecessarily and that, he later wrote, "defeats the ends of
lust ice. "f 12 ]
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Hoover and caminetti received tteir opportunity in December
when Secretary cf Labor Wilson vas i l l anc absent from
Washington. Caninetti pressed Labor Department S o licito r John
Abercrombie, who was ’'acting11 secretary cf Lafcci durinq Wilson’s
illness, tc change "Rule 22." caminetti prevailed and Abercrombie
restored the rule tc its original form on December 27. The
amended rule read: "Preferably at the beginning cf the hearing
under the warrant cf a rre st or a t any rate as soon as such
hearing has proceeded sufficiently in the development cf the
facts to rrctect the government’s interest (emphasis added) the
alien shall be allowed to inspect the warrant and all evidence on
which it was issued and shall be apprised thereafter he may he
represented by counsel."[ 13 ]
Net completely sa tisfie d with their plans the a rc h ite c ts of
the raids su b stan tially weakened the la s t censtitutiona 1 right cf
the accused. Hccver suggested that b a il be set a r t i f i c i a l l y
high, $5 ,000 to 510,000, to prevent the alien frcn buying his or
her freedcm. Customarily bend fcr deportable offenses was
$500.(14 1 Hcover persisted and the warrants required the higher
bond.r 14 1
After months of preparation the Justice Department decided
to strik e on Friday night, January 2, 1920. Cr December 31,
"acting" Secretary Abercrcmhie signed three thousand warrants for
the arrest of aliens throughout the country, charging them with
membership it cne of the communist parties. El chief Eurke sent
his final orders to George Kelleher, agent in charge cf northern
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New England on December 27. Burke advised Kelleher, a former
special assista n t O.S. Attorney in Massachusetts, to have his
undercover aqents arrange meetings cf lccal "communist" parties
on January 2. Agents could then sake mass a rre sts a t
pre-established locations and, in that way, they could avoid
house-to-house searches. Only then could they recruit local
police to assist in the arrests. After conducting the raid Eurke
ordered no publicity or information be given cut by the agents
and that such reguests "for information be referred to division
superintendent (Mr. Hoover)." The trap, which appeared foolproof
to its designers, was set-TIS]
* * * * *
At the turn of the century New Hampshire's cities bustled
with industrial activity. Manchester hcasted the world's largest
textile mill; the buildings cf the Amoskeag Manufacturing
Company lined the banks of the Merrimack River. Mills in Nashua,
the state's second largest city, wove blankets and produced
shoes, playixq cards, ice cream freezers, and shearing machines.
Concord, the state capital, was the home of the Swenson Granite
Company, the state’s largest. Portsmouth had a fine harbor which
made i t a center of trade and commerce. The United Statea Navy
had established a shipyard there in 1812 and during the First
World ¥ar shipyards employed maEy skilled and day laborers.
Bills in Jashua turned wcod pulp into papers products,
Claremont's Sullivan Manufacturing Company exported drilling
machinery around the world. Factories in Derry and Newmarket
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manufactured shoes and textiles. The prospect cf steady work and
its proximity to Ecstcn a ttracted immigrants tc New Hampshire
throughout tie nineteenth and intc the twentieth century.[16 1
Beginning in the 1£8C's the "new im niqrants," people free
eastern arc scutherr Europe, replaced immigrants from the United
Kingdom, Scaccinavia, and Canada. In New Hampshire the number of
Polish, Lithuanian, and Ukrainian inmiqrants increased frcn 1,589
in 1900 tc 8,787 in 1920 and composed about 10J of the s ta te 's
foreign-born population. Host Slavs, called "Bussians" by
native-born Americans, settled in Manchester, Nashua, Berlin,
Claremeont, and Lincoln, while sn ailer numbers lived in Derry,
Newmarket, and Portsmouth.[17]
Jerome Eavis, a ssista n t profesor cf sociology at Dartmouth
College, described the inniqiart colonies in 1922: "In nearly
every city the Russians live in a qroup by themselves. When they
come to the community they naturally qravitate to the pccrest
sections where the rerts are cheapest. A process of segregation
results, fox race pre-judice, strange custcms and language
harriers all make the Russian lcathe to live close to Slavic
immigrants. . .The Russian district is peopled almost entirely
by the foreigr-bcrn and whether it be bousing accommodations,
food supplies, or medical aid th at the immiqrant seeks, he is
likely to meet the foreigner almost exclusively." As with all
immigrant qrcups, wcrker clubs at the factories and neighborhood
sccial clubs served the educational and recreational needs of the
Russian community. I t Manchester, community leaders applied for
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and received state charters for the 'Lee Tclstoi Club* and the
•Ukrainian Club.* Russian Orthodox churches established
congregations in Manchester, Eerlin, and Claremcnt, reflectinq
the crowina Slavic populations it these tovns.[18]
Given the history of Slavic communities in Europe and
conditions in American towns and cities, it is Eot surprisinq
that some wculd become activists whc advocated radical social and
economic change. Some immigrants brought s o c ia lis t ideas across
the Atlantic, while ethers were influenced by an Imerican brand
of radicalism. IWW ideas filtered ncrth after the Wcbblies
scored a surprisinq victory in their efforts to orqanize textile
workers in Lawrence, Massachusetts in 1912. Supported by workers
throcghout Hew England, the IWW used direct action and the
aeneral strike tc increase pay schedules adversely affected by a
Massachusetts law which reduced the work week from fifty-six to
fifty -fo u r hcurs. Success in Lawrence signaled the high water
mark of IflR influence in the Northeast, and after 1912 widepread
support for the IWf? was mere illusory than real. Despite the
otq anizaticn 5s decline, Ilii propagandists continued to assail the
evils of the capitalist system, antagonizing mill cwners, factory
superintendents, shcp foremen, and conservative labor leaders.
Fearing industrial sabotaqe, the destruction cf property, and the
spread of radical ideas, opponents of the Hobblies ir Northern
New England scuqht help. Scrld War I qave them what they
needed.T19 ]
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In 1917 New Hampshire men responded p a trio tic a lly to the
call for recruits. Thousands, includinq many newly-arrived
Slavs, siqned up to serve in the armed forces as the United
States prepared for war aqainst the Central Powers. Cn April 12,
1917, six days a fte r the United States declared war, the Hew
Hampshire sta te leq islatu re passed emergency le q is la tic r tc
prohibit walkouts, strikes, and lockouts in industries engaged in
the manufactrre of war material. Governor Henry H. Keyes
appointed 100 men tc a Committee an Public Safety. Chaired by
John Jamescn of Antrim, the Committee encouraqed support for of
the war thrccqh a proqram of mass meetinqs, rallies, and parades.
Committee members also worked with police o ffic ia ls to provide
information about labor union and suspected radical activities tc
Eureau of Irv estiq aticn agents whc set up headguarters in Concord
in 1917.T 20 1
The Ccmittee cn Public Safety did not cisland after the
November 1S1? arm istice, nor did peace in Europe allay n a tiv ist
suspicion of foreigners. Indeed, two years cf anti-German
propaganda hac increased aistrust cf the Slavic immigrants living
in their communities, and some perceived them as aqents cf
violent revclotion. [2 1 ]
Bureau cf Investigation detectives exploited these fears and
promoted a n ti-ra d ic a l measures at the sta te lev el. In March 1919
Special Aqent A. V. Levensaler, a qraduate of Eowdoin College
and Harvard law School who was later appointed assistant U.S.
Attorney ir Hew Hampshire, wrote an anti-Bolshvist bill for New
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Haapshire 2ttorney General Cscar L. Ycung.[22] The proposal
prohibited "bclshevist" ideas from being tauqbt, advocated, or
practiced in New Hampshire. The leg islatu re approved the
measure, despit-e ob-jections from p rc-latcr representatives from
Kanchester ard Nashua. Governor John Bartlett signed the till
into law on Earch 28, 1919, and releasee the follcwinq statement
to the Fress: "ie have enacted in the closing days of the New
Haapshire legislature the most drastic anti-Bolsheviki law in the
United States, and 1 have requested cur Law Department to rake
the state with a fine tooth comb to find evidence cf their wcrk,
which are rumored tc be here ir two cr three centres. No cost
will be spared tc suppress the sccial viper." The legislature
also passed, and the qovernor signed legislaticc which prohibited
public assenbly and Faiades without first obtaining a permit from
local officials. Exceptions were qranted tc fraternal
organizations. The state office of the American Federation of
labor criticized the bill because of its arti-labcr
overtones.T 231
Critics of the state sedition leqislaticr were prcmtly
investigated by the SI. Cn Kay 5th, Charles 5i. Tobey,
Eepublican Speaker of the New Eampshire House of Eepresentatives,
a rcted progressive from Temple who later became a E.S. senator,
informed Acect Leversaler that he had received a teleqram from
Sidney Ecvning of Lincoln protesting the passage cf the
"anti-Bolshevist" bill since it restricted the right to free
speech. After inquiring about Tobey and his support cf the bill
in the House, Levensaler contacted Thomas Kcore, chairman of the
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Connnitee cr Public Safety ii Lirccln, asking him for a sketch of
Ecwning's background ard political beliefs. "Mr. Downing is
always on the opposite side of every questicn," Mccre told
Levensaler, "Be is especially cppcsed tc employers of labor#
posing as friend of the poor and dcwn-trodder ran,” but was,
despite the pretest, essentially harmless. Dcwritq's pretest,
however, earned him a spot cn Hoover's card index, lis te d as a
"Eclshevist sympathizer. "f 24]
The ink cf Governcr Eartlett's siqnature was barely dry cn
the s t a t e 's se d itic r law before Bureau agents, who had no
authority tc arrest suspects or seize property and literature
under the rew law, put it to use. From the sidelines, special
aqents instructed local police to disrupt meetings and raid clubs
ir. Manchester and Nashua. Chief M.J. Healy of Manchester turned
ever to levensaler pamphlets and a newspaper cf "undoubted
Eolshevik cr TWW ccrtent" that had been taken from Stanielaus
Fetrckski ard Constanta Bernatis, both of whom hac been arrested
for illeqal gamblinq. Under questioning, they had admitted
receiving the pamphlets cn Saturday, June 6, at the Folish Hall
cn Chestnut Street. Cn September 22, Police Sgt. Manning raided
the Tolstoi Club, 41 Central Street, Manchester, and seized
flyers printed in Russian and letters addressed to Andrew Kolas
frcm "Bolshevik" organizers in Claremcnt, Derry, and Lirccln.
Chief Healy turned the evidence ever to special aqent Martin E»
Sullivan, who then sent it to Eostcn for translation. Nashua
police, acting on a tip from Sullivan, raided a lccal publishing
house, fin d irc copies cf newspapers e n title d "The Worker," "The
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Labor aar's Calerdar," aDd copies of the Russian Soviet
Constitution. SullivaE urged Chief Irvinq P. Goodwin to hold
the material until its contents could be translated fcy a 3creau
agent frcn Ecstcn. Chief Gccdwin agreed and made literature
secured by his men available to Eureau agents "at any time.”r25]
Members cf the business community assisted Bureau
detectives, opening their personnel files upon request and
volunteering any bit of rumor or gossip that they bad heard about
radicals employed by their company. Bobert Stanley, a Eureau
contact whose name had been qiven to Levensaler by Speaker Tobey,
telephoned the Bureau after he had discovered that ccpies of
"Novy Mir” (New Life) were being distributed tc workers at the
Earker-Younq Company in Lincoln, levensaler later examined the
paper, had it translated by a "loyal" Russiar and advised
Stanley, whc was manager cf Parker-Ycunq, that the paper violated
the state sedition law and suqqested prosecution cf anyone fcund
in possessicr of "Ncvy Mir." Managers of the ftmcskeog Company,
the Sullivan Shoe Company, the Nashua Manufacturing Company, and
the Natioral Ccnstruction Company of Portsmouth sent the Bureau
lite ra tu re fcurd in th e ir shops and workrooms along with the
names of individuals they had discharged fcr their pclitical
activities cr whc they suspected of distributing the
le a fle ts. f26 ]
Businessmen used their own undercover agents tc root out
radicalism. Georqe S. Hewirs cf the Shattuck Construction
Company, Portsmouth, had hired Abram Aaelman cf the Need
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128
Detective Aqency, Boston, in February 1919 to ccllect information
of possible IKS a c tiv ity amounq his workmen. Hben interviewed by
Levensaler, Eewins suggested that the Eureau work directly with
Adelnan, who posed as a radical while working as a riveter at the
dhattuck shipyard. Levensaler aqreed and met with Adelman who
shared the names of the radicals he knew of at Shattuck and in
the community. E.H. Hunter, at undercover detective employed by
the New Hampshire Association cf Hanufacturers, worked at the
Nashua Manufacturing Ccmpary and informed the Bureau of union and
radical activities among Polish and Lithuanian workers at the
plant. Deputy Chief Campbell cf Nashua put Sullivan in touch
with Edward Hartwell, a special officer with the Nashua police,
who also did undercover work as an employee of the Nashua
Manufacturing Company. Hartwell, whc was close to many Bussian
workers, shared his information with Sullivan and cave him a copy
of a treatise cn the Scviet Russian Government. Sullivan sent
the work to Eoston for tra n sla tio n .T 2 7 1
In Portsmouth, union leaders joined the fiqht against
radicals. Bichard Cccney, long-time president of the state
Federation of labor, and H.R. Thompson, recordinq secretary of
the Metal Trades Council, which represented some seven hundred
workers in the Portsmouth shipyards, requested the assistance of
the J u stic e Department. Cooney and Thompson asked special agent
J.C. Leighton to investigate the activities of the ’’Open Forum”,
a leftist qrcup organized within the existinq union structure by
Peter Henry and Harry Hartford. The "Cpen Forum" advocated the
six-hour workday and demanded S1.00 per hour fcr a ll shipyard
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employees. Leighton contacted filbert C. Shaw cf Ecrtsmcuth, vihc
had done wcrk for Naval In te llig e rc e , to a ssist in the
investigation cf the "Fcrum." Shaw hired informers to attend
meetings and supply him with the minutes of the "OFen Forum"
debates. M. E. Clark, a right-wing socialist hired by Shaw,
informed Shaw that a group of "Bussian" radicals met at the "Last
Chance Tavern," Market Street, Portsmouth, to discuss politics
and shoot fcc I. Clark also gave Shaw copies of the Communist
labor Party newspaper he had received in the mail. Shaw sent
Charles Falser, " lcyal Pole," to join in the discussions at the
"Last Chance" and c o lle ct the names of the group's members.
Spies and informers sere also active in Manchester and Lirccln.
participatirg as members of radical clubs and organizations.r28 ]
Federal postal officials also cooperated with Eureau agents.
The Espioarge act of 1917 had promoted the local fcstmaster frcm
lcw-level bureaucrat tc ccnmurity censor, empowering him to
impound radical literature that he found tc violate the law.
Postmasters in Manchester, Nashua, Lincoln, and Portsmouth
received instructions from Bashingtcn to turn over to Eureau
agents parcels and letters addressed to perscrs suspected of
radical activities. In New Hampshire the postmasters received
lists of suspects from Levensaler, who bad his aqents pick up
entire bundles, or copies, of newspapers, personal letters, and
correspondence for department files in Ccnccrd, Boston, and
Washington.f29]
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Bureau acents did cot limit their investigations to mere
cooperation with police, businessmen, labor leaders and postal
officials, special aqents Levensaler and sullivar reported tc
Washington that they had installed "dictaphone" listeninq devices
in four halls on seven different occasions between February and
December 1919.F30 1 Sullivan and Levensaler "bugged" meetings of
the Manchester local of the Ciqar Makers Union, American
Federation cf Labor, to qather information cn a rational strike
by that unicn.F31l Aqert Sullivan asserted that the strike was an
effort by radicals to wrest control of the unicn from the
conservative leadership and withdraw the Cigar Bakers from the
American Federation of Labor. The strike, Sullivan continued,
"is an attempt cn the part of the Bolsheviks to create a trade
revolution amcnq workers cf this country," a thought echoed by
GID chief Hoover when he declared that seventy-five percent of
the strik es ir 1919 were inspired by the Communist s.T 32 ]
Sullivan and Levensaler also installed dictaphones in the
meeting halls of the Eolish, Lithuanian, and Ukrainian Clubs in
Manchester anc Nashua, hopinq tc record speeches by quests
speakers from Boston and New York. On June 16, the mcst radical
event Sullivan could report was a card game involving thirty
Boles who had gathered at their Manchester "headquarters. "[ 33 ]
Breaking and enterinq was also employed. Without warrants
Sullivan arc Levensaler entered and searched the Leo Tolstoi
Club, the Ukrainian Club, and the Eolish Club ir Manchester five
times between July and December 1919. Sullivan removed the
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padlock from the door of the Tolstoi Clui cn November 3 and made
a thorough search cf the premises, seizing numerous pamphlets and
newspapers. Be re-entered the club the following day with an
interpreter, un-locked a qlass paneled bcckcase in which
membership l i s t s were kept and transcribed names and addresses.
Cn December H Levensaler entered the Manchester Eolish Club tc
confiscate literature and other evidence of radical activities.
"Agents hac little cppcrtunity tc make a search of the premises,
as the caretaker of same was chopping wood in the cellar
immediately bereath the rccms," he reported. "This place will be
kept in mind and the first favorable time a more thorough
investigaticr will be made." Sullivan searched meeting halls used
by Lithuanians and Poles in Nashua but declined tc break into
rooms contairing ch arters and membership r o lls . "Agents did not
consider this advisable," he wrote, "but will endeavor shortly
through some other method of approach to get a l i s t of members."
Aqents alsc surveyed meetinq places of suspected radicals,
checking entrances and exits "for the purpcse cf beccminq more
thoroughly acquainted (with the building), anticipating a
thorough investigation of these quarters in the near future.nr3h1
The next step was for Bureau aqents to translate association
with Russiar social clubs and membership in rad ical labor
crganizaticns into membership in the Communist Party. Orders
issued by the GID instructed special agents to name individuals
in sworn affidavits which wculd c e rtify h is or her membership in
the Communist Earty. The New Hampshire BI office sent 102 rames
tc the GID ir. Washington, where the affidavits .served as a basis
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for the arrest warrants issued by "acting" Labor Secretary
Abercrombie cn December 31, 1919. The problem with the plan was
that the aqent who had siqned the affidavit had nc evidence,
admissible ir court, which would substantiate Farty membership.
All rad ical a c tiv itie s were blanketed under the "Communist"
la b e l.r35 ] Members cf the executive committee cf the "Open Fcrum"
were named ir. affid av its siqned by levetsaler. Bussians who were
listed by Thcmas Moore of Lincoln in a letter tc the Bureau’s
concord office became party members after levensaler filled in
th eir names on the a ffid av its. Likewise, Sullivan swore that
members of the Tolstci, Lithuanian, Ukrainian, and Polish Clubs
were Communist Party members. One's quilt was determined by
Hoover’s ard caminetti’s decision that membership in the party
was a deportable offense and by the subsequent need tc create a
"ccmmunist" conspiracy which sought tc overthrow the government.
The circle was completed; the immigrant, by bureaucratic whim,
was systematically stripped cf his constitutional rights and then
suited by tailcrs ir, the dress cf a political party in which
membership meant deportation to an unsettled and war-scarred
Europe. [ 36■)
* * * * *
January 2, 1920, differed l i t t l e from other recent Fridays.
Factories ran their normal schedules and workers received their
pay for th e ir week's labcr. Newspapers reported no sign of
unrest, such as walkouts, strikes, or demonstrations. Rather,
they reported the upset victory of Harvard over Stanford in the
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Bcse Bowl, by the score of 7-6, anc the effect cf Erchibition or
New Year’s celeb raticrs ir "wet" s ta te s ; New Hampshire had been
dry since 1S17. A ccld front from Canada had swept through the
state and temperatures dropped below freezing fcr the third day
in a row.
That evening people in the ’’Russian” communities qathered
together at their clubs seme tc hear socialist speakers, while
ethers danced, played cards, or shot pocl. An unexpected knock
at the dccr and the sudden appearance of government agents and
police broke up the parties. The fact that the agents had no
search warrarts or warrarts fci the arrest of many of the people
present did not stop them from detaining everycre present. Sedar
Serachuch, arrested at the Stanley-Younq Paper Hill clubroom,
asked the agent to see the warrant. Serachuch later testified:
”He showed me his f is t anc said ’ This is ycui w arrant,' and
continued tc search the rccm.” Fred Chaika, taken from his home
in lincoln at 11:00p.m., was shown no search warrant and was
handcuffed despite a broken wrist. The police took him to the
Hill clubrcom where he was held with fourteen others. The
government did not issue a warrant for h is a rre s t u n til Sunday
evening, after taking him to the Corcord police station.T37]
In Manchester, special agent Sullivan led a group cf forty
local police and captured fifty-fcur people at the Tolstoi Club.
The agent did not even bring the warrants durinq the raid.
Immigration Eureau inspectors waited at the police station with
the warrants until the met from Justice brought in the suspects.
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They then tried "to connect then? up with the warrants." Some of
the evicence seized by the police included musical instruments,
trunks filled with pieces of cloth "thought to be stolen frcm the
local mill," pictures cf tenin, Trotsky, and Imraa Goldman, and
"anarchist" lite r a tu r e . Agents allowed no ore, net even a
Bussian Orthodox priest, to visit the prisoners.[3f 1 i
In Hashua the raid a t St. Jean 3ap tiste Hall, rented for
the evening by the Lithuanian Club, netted 14 1 suspects, the
largest sincle haul in the country. Police searched everyone
present, handcuffed the men and tcok thirteen women into custody.
Cne cf the women, Annie Valiskas, twenty-one, was a mcther of
three. At the station, federal aqents showed her a bag which
they claimed they had taken from her house. She denied ownership
of the suitcase, which was filled with radical newspapers, but
identified two prayerbooks; one belonged tc her, the ether to
her father- Agents produced no search or arrest warrants, ars.
Valiskas and three ether women were held from Friday night to
Saturday afternoon. The police then released her and six ethers
for lack cl evidence.f39 ]
In Portsmouth police captured eight aliens, raidiEg hemes on
Bussell and McDonough S treets. Koly Hcnchkcff, 2rrestec asleep
at heme, had wcrked at the Atlantic Shipyard for eiqht years and
had been a member of the "Open Forum." Jchn Eellcws and his
brother Stanley were arrested in the back room of Stanley’s
qrocery store while playing cards. John had organized the oroup
that met at the "Last Chance" and remained in custody while his
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brother was released cr his own reccqni 2ance. On Sunday, January
h, the remaininq seven traveled to Deer Island, Eoston, to await
deportation.T40 ]
Elsewhere in the state aqents arrested twelve persons in
Newmarket and questioned them in the Eover jailhcuse. In Derry,
police rooted cut tverty-cne suspects and sent them to Manchester
by electric tram for questioning. The raids in Iincoln netted
twenty-seven men, alonq with two women who were flcent in Enalish
and tauqht in the RussiaE community there. A federal aqent and
Berlin police arrested eight and took them to the Merrimack
County J a il in Concord by autom obile.r4 11
In Claremont Bureau aqents swore in members of the fire
department and the Eoard of Selectmen and raided "Joe’s Russian
Eaths,11 101 Main S treet, and a house a t 172 Bain S treet,
arrestinq twenty-three men in all. The suspects offered no
resistance and were taken to the Central fire Station-
Examination began ianediately. "The prisoners were astonishingly
iqnexant of anythinq pertainiaq to Sovietism, and it required
considerable ingenuity and threatening persuasion,” the Claremont
advocate reported, "tc get anythinq out of them." The city’s
ether paper, the Daily Eagle confirmed "that for the nest part
the men were tot disposed tc acknowledge any connection with the
organization (Communist Party), nor qive any information which
would assist in identifying them with it. ’’f 42 1
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Interrogators throughout New Hampshire ran into identical
problems tryinq to establish ar a lie n ’ s membership in a communist
party. Evidence suggests that while many of the aliens captured
entertained radical socialist ideas, party affiliation was less
important to the Russian radicals than to the aqents, who had to
prove membership to complete the case against the suspect. 8hen
all else failed the BI agents simply manufactured membership in
the party. Fred Chaika did not know he was a member of the party
"until the first meetirq with the immigration inspector. ihen
the policeman showed me a membership bock he asked me whether
th at was my name, and I said 'yes.* Ihen he said the book was a
membership bock in the Communist Party." Anton Earlatuk, arrested
ir Lincoln, denied that he was a member of the party. At his
habeas corpus hearing Earhatuck testified: "I have never come to
any thouqht aqainst the government of the United States, only my
thouqhts cf the Russian government." He said that he had joined
the club, at the paper mill because be "had no ether place tc go,
and I thought I cuqht tc belonq tc seme organization." Similarly,
Koly Honchkoff, taken from bed at 10:00p.m., denied membership in
the Communist Party. At the preliminary hearinq, when asked if
he belonged tc a union, he replied "yes, for three years." The
interrogator put down three years in the Communist Party and the
questionaire became part of the official record. Sedar
Serachuch, also arrested in lirccln, testified that he had never
read the paper called Communist, had never heard cf the party's
manifestoes, and did not krew any of the party’s doctrines.
Serachuch, while admitting tc membership in the S o cialist Party,
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denied memlership in the communist Party.f43]
On Sunday, January 4, BI aqents accompanied by Chief Healy,
Captain Charles Healy, and Inspector Jce Gcrey of the Manchester
Police Departnent took 140 mer and nomen from Manchester to
Boston aboard the train labeled the "Bed Special." Arriving in
Bostcn, the prisoners marched handcuffed and in chains throuqh
the streets to the ferry landing. Officials made a special
effort to attract attention to the spectacle, inviting newsmen
and photographers to record the event. Immigration commissioner
Eenry Skeffirctcn and Deputy commissioner James Sullivan greeted
special agent levensaler, who brought the largest qrcup of
deportees tc Ecston. The prisoners boarded the city steamer
"Meritor" and headed for Deer Island, familiar tc thousands as
their first step in America after the Atlantic crossing.r441
There the New Hampshire qroup "joined abcut four hundred
ethers captured in raids in Massachusetts and Rhcde Island.
Commissioner Skeffirgtcn ard BI superintendent Kelleher received
permission from Boston Mayor Andrew Peters tc use the new Deer
Island prison, and the aliens became the facility’s first
occupants. Still, the conditions at the iail sere friqhtful.
Despite the January cold, the cells sent unheated for three days.
Overcrowding occurred. There were never enough t o ile t
facilities. Cne prisoner committed suicide hy casting himself
out of a prison window. Others sent insane. Some contracted
pneumonia and had to be hospitalized. The prisoners were held
incommunicado, and cne compared internment at Deer Island to
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imprisonment in Czarist Russia. Fcr the immigrants held at Deer
Island the dream of qreater opportunity had turned into titter
disillusion. Some prisoners petitioned officials tc te returned
immediately tc their ratine lands.fM5]
Dnrinq the next week the Immiqration Bureau received
numerous requests from attorneys from New Hampshire,
Massachusetts, and Rhcde Island cfferinq tc represent the aliens
charqed with membership in the communist p a rties. On January 6,
Commissioner Skeffinqtcn refused them tc act as counsel at the
deportation hearinqs held at Deer Island. The Commissioner also
banned the pullic and the press from the hearings. Skeffinqtcn
warned the public ret to believe the "sob sto ries" about the
hardships suffered by the "reds." "Remember the bombs, those
nefarious engines cf death sent throuqh the mail," he tcld a
qroup of Bcstcn citizens, "These men (he forgot tc mention the
women) would not hesitate to kill ycu or your children."[U6]
The precise results cf the hearinqs are difficult to
determine. Immigration Bureau records were removed from the
Rational archives, at the request of FEI director Ecover, in the
early 1960*s after lilliam Prestcn had used them to wrtie aliens
and Dissenters. Hiqh search fees prohibit recovery of the
individual files which are necessary to determine how many of the
aliens captured in New Hampshire were found guilty and subject tc
deportation. It is safe tc assume that as a result of the habeas
corpus hearinqs following the raids, few, if any, of the
immicrants were actually deported.f47 ]
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The hearings beqat on January €, 1920. Judge George Weston
Anderson, who was hern and raised on a farm in Acvorth, New
Hampshire, presided. 2 friend and colleague cf supreme Ccurt
Justice Lcuis Brandeis, Andersen had served as U.S. attorney in
Boston during the f i r s t months of the First Wcrld Hat. Despite
the heavy ccncentration of defense-related industries in the
d is tric t, Andersen did ret succumb to the wartime hysteria.
Experience taught him that *'99 per cent cf the spy plots were
pnre fake1’ and, consequently, cnly a few people were prosecuted
and one was convicted for violating the espionage act in eastern
Massachusetts. President Wilscn appointed Anderson to the
Federal Circuit Court of Appeals in 1918 after he had served for
a year on the In te rsta te Commerce Commission.
The first case involved Peter Frank, a 0.S. citizen who had
been arrested in Cheisea, Massachusetts cr. Jaruary 2. Anderson
ordered the Immigration Bureau tc release Frank, ruling that the
Bureau had absolutely no authority to hold a c itizen . In the
wake of the Frank decision, the Immigration Bureau released John
Wagliqnorc, a O.S. c itiz e r from Manchester, New Hampshire who
had refused tc cooperate with the police on the night cf his
arrest. Gecrae R eliefer cf the BI claimed that "citizen s dragged
tc Deer Island are themselves to blame, as they were given ample
opportunity ty the mer whc conducted the raids to show that they
are Americans. 48 1
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In April, attorneys Morris Katzeff cf Boston and Lawrence
Erooks of Cambridge file d petitions of habeas corpus for
twenty-eight of the aliens still held at Deer Island. The
petitioners included seven persons from New Hampshire. Following
an exhaustive examination of the conduct cf the Justice
Department during the raids. Judge Anderson grantee the writs and
ordered tie prisoners released cn 1500 bond pending the final
decision of the Secretary of labor. On June 20, 1920, Anderson
issued a lenqthy written cpinicr which was hiqhly critical of the
Justice Department. "I tefrair frcm any extended comment on the
lawlessness of our supposedly law-enforcing officials," Anderscn
wrote, "It nay, however, be fitly observed that a mob is a mob,
whether made up of government officials actinq under instructions
of the Justice Department, or of loafers, criminals and the
vicicus classes." Like much cf the criticism that followed,
Anderson's observation infuriated the GID. Hccver concluded that
parts of ~.tle decision were an "unjustifiable misconception cf the
facts and is the construction which the most perverted mind could
net put upon the evidence presented at the hearing."T49 ]
Initially, New Hampshire daily newspapers applauded the
efforts tc rid America cf the "Fed Menace." The editor of the
Ccnccrd Monitor believed th a t "America is merely protecting
herself against the activities cf irresponsible aliens." The
Manchester Crion welcomed the arrests and praised the swift,
efficient operation. The deportation raids, the editor claimed,
dragged Hussian communism into the open "to shew the active
poison working in cur nation under the direction of intelligent
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leaders." Fester's Daily Democrat cculd hardly believe that "the
disease of Bolshevism" could he found so clcse to Dover, in
neighboring Newmarket. The townspeople must s i t up and take
notice, it proclaimed, "before we have to strucqle for cur own."
The Clareircrt Daily Eacle declared that the raids proved that the
government was not asleep and revealed the gigantic plot to
overthrow the government. "Ho effort," its editor wrote, "should
be left urtried to bring to the bar of -justice these who plot to
overthrow the institutions and overpower its laws."C50 3 New
Eampshire d ailies did net cover the events in Boston after
January 6, 1S2C. In Jure nest respapers either failed to report
the outcome cf the habeas corpus hearinqs or buried th at news in
the last paces cf the paper.T51]
protests by liberal journals contrasted most daily
newspapers' single-minded approbation of the raids. The Nation
declared that any person, citizen or alien, who breaks a specific
law should be brought to trial, and if found quilty, punished.
Clearly, the a rtic le continued, membership alone in the S o cialist
or Communist p a rties was not a crime punishable by law. The
Justice Department had subverted basic constitutional rights
during the raids. "The only way," the article concluded, "to end
dangerous discontent is to remove its causes. Orless that is
dene, those who today are sewing the wind will before long reap
the whirlwind. "f52 1
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The New Republic compared the raids to the witch-hunts of
the seventeenth century. There was nothinq new about the "red
hysteria." Bed scares, like witch-hunts, arose from modes of
thcuqht, the writer argued, which evolved from the iqncrance cf
primitive cultures. It was "gcickened into an intenser life £y a
theological struqgle which allies terrorism with credulity." The
writer claimed that the rcot cf the problem was o f fic ia l and
unofficial lies, deliberate lyinq and imitative lyinq. "As a
result of that lie," the piece concluded, "a raticr, sclid and
imperturatle had beer wracked by persecution, bj cowardice, by
mistrust. Its great problems are postponed; its creat tasks are
undone; i t s houses turned into bedlam, the humble oppressed, i t s
ideals flcutec and the liqht it held tc the oppressed of mankind
extinguished. "F53 1
Adverse judicial decisions and public criticism combined
aith bureaucratic factionalism tc limit the success of the El's
deportation plans. When Secretary of Labor Silscr returned to
Hashinqton in late January he restored "Buie 22" to its
pre-December form, amendinq the ru le to allow counsel fcr the
accused frcm the begirring cf the deportation hearinq. Following
a meeting with Justice Department officials and counsel fcr the
opponents cf the raid s, Wilson ruled that membership in the
Communist Party, but not the ccmmunist Labor Earty, was a
deportable offense. Wilson appointed his assistant secretary,
Louis F. Pest, to administer the deportation laws under his new
quidelines. Althouqh Pest personally believed that no one should
be deported for mere membership in a p o l i t i c a l •party, nc matter
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ho* radical the party miqht be, he felt otliqed tc carry cut the
Secretary's orders. Nonetheless, by April, Pest cancelled the
•warrants cf all but 563 of the men and women seized in January
for lack of sufficient evidence of th eir membership in the
Communist or Communist Labcr parties. Several conservative
congressmen who supported the Justice Department's original
policy, that is, tc deport first and ask questions later, called
fcr P o st's impeachment. The resolution, however, failed tc
attract any appreciable support, and Post weathered the
storm.T54 ]
The effects of the deportation raids can be assayed on the
local, state and national level. first, on the community level,
the raids affected family life, jobs opportunities, and
migration. Hany husbands, fath ers, and sons were wrenched from
th e ir "hemes with resultant less cf income and family s ta b ility .
Arrested workers could not retu rn to th eir jets even a fte r they
had teen cleared of all charges against them. Those individuals
blacklisted by the employers probably mcved cut of the state. By
1930 only 751 cf the people whc had claimed Slavic origin in the
1920 census remained in Hew Hampshire. The raids may explain
this out-miqration, but this can only stand as supposition since
the Ju stice Department removed Immigration f ile s from the
National Archives and now denies free access tc these records.
Second, on the state level, while the deportations did not
launch any political careers, 31 activities have had some lastinq
effects. The raids may have been p a rtia lly respcrsible fcr the
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limited success of unionization, tut the evidence remains sketchy
and impressicristic. The state sedition law first enacted in
1919 remairs cn the tcoks. Generally, state leaders conntinued
their willingness to defer decision-makinq to federal aqencies in
the security field, while federal agencies scpported local
anti-radical activities. For example, the FBI funneled
information tc Attorney General Lcnis Wyman in the 1950’s when he
was investiqatinq "subversives11 in New Hampshire, f 56 1
On the rational level, the deportations raids were less
successful. They drcve the BI and the GIE underground, and
ruined attorney General Palmer’s presidential asperaticns. They
also gave GID chief Hccver his initial experience in fighting
"communnist" subversion. After the Justice Department's methods
had been thoroughly repudiated ty the courts and the labor
Department, Hccver learned that "due process" had to be, at least
publicly, respected. Hoover also understood that, above all
else, the El had to protect the confidentiality of its files.
Even thouqh many of the Bureau’s worst abuses were ccvered-up
{e.g., warrantless search and seizure and the deliberate
falsification of leqal documents), BI memos released to Judqe
Anderson showed that the El had entrapped maty cf the aliens
arrested in January and th at i t had employed agents
provocateur.f57 }
From this, Hccver concluded that future anti-radical
operations would have to he carefully scrutinized and limited tc
two general categories. First, rather than involving itself
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directly in the arrest and prosecution of "subversives", the
Bureau would help sta te and local law enforcement agencies
organize anti-radical intelligence units (later kncwr as "red
squads"). Icr a short tine the strateqy was successful, and in
1922, over ICO radical political leaders were arrested and
convicted.
Second, Eureau o ffic ia ls decided to continue to collect
covertly information on a broad range of lawful political
activities that the GID had determined to he "subversive." Euring
the early post-war years the GIE's definition cf "subversive" was
so inclusive that the Eureau barely discerned the bcirb-throver
from the literal law professor. Beth were seen as potential
threats to the nation*s security. Once persons were so
identified, the Bureau often resorted to extra-legal, clandestine
measures in an attempt to silence this dissent. This
surveillance, unlike the Bureau's association with the red
squads, remained absolutely ccrfidential. In this sense, these
investigations differed dramatically from the Bureau's earlier
anti-radical activities which had been duly reported to Congress
by the fittcrney General, and marked a new point cf departure fcr
the Bureau.T 55]
The El's role in the rise of the urban intelligence units
has been understood for some time. This was, after all, the
hallmark cf the Justice Departaent under Warran Harding and Harry
Dauqherty. Eoth Eaugherty and the new BI chief William Burns
were proud cf the urban red squads. Cn the other hand.
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historians atd ethers have until recently failed to identify the
Bureau's investigaticrs of its early critics, chapter four will
address this issue-f60 1
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1) Teter Filene, Americans and the Scviet Experiment.
19 17-1933: American Attitudes t oward Russia f r c n the Fefcrcarv
Revolution until diplomatic recognition (Cambridge, 1967), 9-63;
Robert K. Hurray, Bed Scare: J) study in National Hyst eria
[Hinneapolis, 1955), 15-17.
2) Zechariah Chafes, J r . , Free Speech in the Cnited States
(Cambridge, 19it 1) , 24-25, 80-84; Paul Murphy, Vcrld War J and
the Origins cf Civil Iiberties in the Orited States (New York,
1979), 179-247.
3) Melvyr Dubofsky, Bj| Shall Be All, 398-444; William
Preston, J r . , Aliens and Dis s e n te rs. 104-128. Murphy, World Bap
I and the Criqins of C ivil l i b er t i es. 104-128. Loren Lee Cary,
"The Bureau cf Investigation and Radicalism in Toledo, Ohic:
19 18-1920," Lahor Histcrv. 21 (Summer 1980), 430-440.
4) Investigative Records, Bureau cf Investigation,
1908-1922. The New Hampshire f ile is diviced intc the fcllcwing
categories: OG 344962, "Bolshevik and IWW Activities in
Manchester"; OG 352317, "Eolshevik and IWW Activities in
Portsmouth"; OG 3524C9, "Bolshevik ar.d IWW Activities in
Nashua"; CG 356956, "Eolshevik and IWW Activities iE Lincoln".
147
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The reports of the raids in New Hampshire are fcurd in file OG
377853-55. This file includes copies of the sicred affidavits
sent to the GID in December 1919 from the El Ccncord o ffice. The
qeneral Eureau records of the raids, including departmental
memos, warrants, and warrant cancellations are found in OG
341761.
5) Prestcn, Aliecs ard Dissenters. 32. Also see generally,
Ereston, 11—67 and John Bigham, Strangers in the land: Patterns
of American Nativism .(New Erunswick, 1955). Seigfried Hesse,
"The Constitutional Status of the lawfully Admitted Eesident
Alien: The Ere-1917 Cases," Yale Law Journal 66 (July 1959),
1578-1625. rThe Inherant Power to Expel," Yale Law Jour nal
69(December 1959), 262-297.
6) Prestcn, Aliens and Dissenters. 88-151; Louis Post,
Depor t a t i o ns Delirium cf 19 20 (Chicago, 1923) .
7) Prestcn, Aliers and Dissenters, 183.
8) Senate Document 153, "Investigation A ctivities of the
Justice Department, 1919," 66th Ccnq., 1 Sess. (19 19); Annual
Feport of the Attorney General. J.920 (Washington, 1921), 172-73.
Stanley Coben, Aj. M itchell Palmer: P o litic ia n (New York, 1963),
2 C 20 6.
9) BI f i l e CG 341761; Preston, Aliens and D issenters. 210.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 149
10) Palmer to Wilson, 1/2/20; Post to Wilson, 1/20/20,
Justice Department Records, Record Group 60, No, 54809/General,
11) National Popular Government leaque, Tc the A merican
People; Fepcrt Upon the Illegal Practices of t_te Onited States
Justice Department (Nashinqton, 192 0); Preston, Aliens and
D issenters. 161-207,
12) Ecover to Cam inetti, 1/20/20, Record Group 60, no,
54809/General. Flynn to all Special Acents ard Employees,
8/12/19, in Tc the American People. 37,
13) Cclver v. Skeffincrton . 265 Fed.17 (1st Cir. 1920), 46;
see John Abercrombie's testimony in "Charqes cf Tlleqal Practices
cf the Justice Department,” Senate Committee on the Judiciary,
Hearings. January 19-March 3, 1921,;
14) Hccver to Caminetti, 2/15/20, Record Group 60, no.
54609/General; Loventhal, Ffil, 223-36.
15) Burke to Kelleher, quoted in Tfi the American People.
37-42.
16) J. Cuane Squires, The Granite State cf the Orited
States (New Icrk, 19 56).
17) Report of the Seventeerth Decennial Census of the Nited
State s . Census of Population 1950, vol. 2, part 29, New
Hampshire (Washinqton, D.C.), Table 24, 34a.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 150
18) Jerome Davis, The Russiar Immigrant (New York, 1922) ,
56-57.
19) Joyce Kcrnbluh, ed., Rebel Voices; Bn IWW anthology
(Ann arbor, 1964); Dubofsky, We Shall Be all; El file OG
352317, 352409, 344962, 256956.
20) Squires, The Gratite State. 646 ; laws of the State oj;
Hew Hampshire. Passed in 1917 (Ccnccrd, 1917), c.146.
21) El file OG 356956.
22) leversaler report, 5/19/19, BI file CG 356956 ; laws of
the State cf New Hampshire. Pa ssed in 1919 (Concord, 1919),
c.155; The law prohibited advocating the overthrew or change in
the government cf the UEited States or Sew Hampshire,
interference with any public or private right by force or
unlawful neaEs, assembling ci advocating this, introducing into
the state,, publishing or distributing any matter, including
pictures or advocating this. The maximum penalty for violatinq
this law was ten years and a $4,000 fine- The law also included
an injunction provision and allowed for the destruction of
printed matter such as books and pamphlets. See Chafee, Free
Speech in the DL. S ..
23) Ecstcn Globe. Match 28, 19 19; Manchester On.icr, March
28, 1919; Hew York T ices. March 30, 1919.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 151
24) Leversaler revert, 5/5/19, El file OG 25 6956-
25) Sullivan report, 6/12/19, 5/19/19, 9/24/19, HI file CG
344962 ; Sullivan rep o rt, 11/14/19, BI file OG 352409;
Leversaler report, 4/30/19, 5/23/19, 5/26/19, El file OG 356956.
26) Sullivan report, 6/12/19, BI file CG 344962; Sullivan
report, 4/18/19, 11/14/19, El file CG 352409; levensaler report,
3/13/19, 3/2C/19, BI file OG 352319.
27) Scllivan report, 8/19/19, 11/14/19, BI file CG 352409.
28) Sullivan report, 7/19/19, 8/21/19, 12/17/19, BI file CG
344962; Leversaler report, 11/28/19, BI file CG 352317.
29) Act of June 15, 1917, c.30. T itle I , as amended May 16,
1918, 40 Stat.553; Ieighton report, 2/17/19, 2/16/19, 2/19/19,
2/20/19, 5/8/19; Leversaler report, 3/13/19, 4/1/19, 6/20/19, El
file OG 3522 17.
30) Cn Cctoher 13, 1912, K.M. Turner, inverter cf the
dictaphone, demonstrated his rev machine at Grand Central
Station, Sew lork. "The detective value of the device consists
cf the fact that the transmitter veiqhs only six ounces and can
be easily concealed," Turner explained to newsmen. "It can be
in stalled in cnly fcur minutes and can be wired so as to transmit
spoken words for more than a mile." fNe« York Times. 10/14/12)
Private detective agencies used the dictaphone as early as
January 1912 tc collect information fcr their clients. When
government agencies began using the dictaphone is uncertain. Ey
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 152
1918, however, the practice was common. In February 1S19 the
C ircuit Court of Appeals, Second C irc u it, condemned the use of
the dictaphone by federal agents. In an opinicr critter by Judge
Martin Martcc, the ccurt reversed a conspiracy conviction. "The
practice of entering into the confidential domain cf a lawyer's
office, installing this instrument (the dictaphcre) and by such
methods eavesdropping, enter iEtc the confidence of the defense
ought not to be encouraged. * 3cGuinniss et al. v., P.S.
265Fed.621 {2nd Cir. 1919), 629-30. Despite the warninq issued
by the Ccurt, the Justice Department and ether federal agencies
continued tc use the dictaphone tc collect evidence.
31) Cn July 2, 19 19, David Levy, secretary cf the Ciqar
Sorkers* Ia te l Committee, announced in New York that 25,COO went
cut as a result of a strike vote taken at an inter-shop convetion
cn July 1. The Cigar Makers Union, used ty Samuel Gcmpers as a
springboard tc power, was a model cf union efficiency. The union
demanded a 44-hour work week, a 501 pay increase and reccqniticn
of their grievance committee. Union locals in Hasten, New Haven
and Manchester loined the picket lines on July 8. Cn September
12, 1919, the Cigar Makers returned tc work a fte r management
agreed tc meet their original demands. Nev York Times. 7/3/19,
7/9/19, 9/14/19.
32) Sullivan report, 2/10/19, 2/11/19, 7/7/19, 7/9/19,
7/13/19, 7/15/19, 7/24/19, 7/30/19, El f ile OG 344962.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 153
33) Sullivan r e F c r t , 5/4/19, BI file OG 2524C9; Sullivan
r e p o r t , 6/16/19, 6/16/IS, 7/1/13, BI file OG 344962.
34) Sullivan report, 8/2/19, 12/15/19, BI f ile OG 344962;
leversaler report, 12/3/19, BI file CG 344962.
35) Ex Earte Jackson. 96 U.S.727 (1877); Ecvd v., U J . ,
1160.S. 616 (1886); Heeks £. O.S.. 232 0.S.383 (19 14);
Silverthorne lumber Company ▼. 0 .S .. 251 U.S.385 (1923). fihile
the Supreme Court had not fully articulated a comprehensive
doctrine reqarding electronic eavesdroppinq by 1919-1920, the law
reaulatinq search and seizure was clearer. In 1686, in BCyd v.
0.S.. the Ccurt had held that the dcctine of the Fourth Amendment
applied to "all invasions on the part cf the government and its
employees of the sanctity of a man’s home and the privacies of
life." (116 U.S.616, 630) In 1914, in Seeks £. U.S.. the Court
for the first time held that "in a federal prosecution the Fourth
Amendment barred the use of evidence secured through an illegal
search and seizure-" Justice Eay wrote; "This protection reaches
all alike, whether accused cf a crime or not, and the duty of
giving it to force and effect is obligatory upon all entrusted
under our federal system with the enforcement of the laws. Ihe
tendency of those who execute the criminal laws of the country tc
attain conviction by means cf unlawful seizure and confessions,
the later often obtained after sublectinq accused persons to
unwarranted practices destructive of riqhts secured by the
Federal Ccrstitutior shculd find rc sanction in the judgements of
the courts which are charged at all times with the support of the
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Constitution and to which people of all conditions have a right
to appeal fcr the maintainance of such fundamental riqbts." {232
U.S.383, 3S2) In Silvexthcrne va 0 .s. the Court extended the
ban on illeqal searches "to leads furnished by illegally seized
evidence, as sell as the use of the evidence itself." Gerald
Gunther, Individual Rights ir Cccstitutional law (Kineola, 1970),
305. Prom th is i t can be assumed that the Ju stice Department
sanctioned, if not erccuraqed, the unscrupulous and illeqal
behavior of i t s employees. It is beyond the scope cf this
chapter tc determine how widespread the practice of warrantless
entry had become by 1919-1920, tut evidence suqqests that
treakinq and enterirq was ccmmcn.
36) Ievensaler report, 12/15/19, El f ile OG 356956;
Sullivan and Ievensaler reports, 12/19, El file OG 377E53-55. In
1921 in testincny before a Senate Judiciary Subcommittee Attorney
General Palmer defended his subordinates against charqes that
they had deliberately falsified deportation affidavits and forced
immiqrants to confess membership in the communist Party durinq
the preliminary depcrtaticn hearinqs cn the niqht cf the arrests.
To substantiate his claims, the Attorney General entered into
evidence affidavits solicited by the GIE from its aqents in which
they denied any wrcnqdcinq. I discounted these affidavits and
Palmer’s own testimony since it contradicted evidence submitted
by those very same aqents Frier tc the raids. As Zechariah
Chafee told Senator Thomas Ralsh of the Judiciary panel: "It
might be worthwhile to point out that the men whem Mr. Palmer
describes as 'sworn officials cf the D.S.' are.really policemen.
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and that police testimony, hcwever honest, is always subject to
some discount because cf the natural mental attitude of the
witness. I t i s by no means to he taken at face 'value- Any one
who has sat cn a jury cr arqued a criminal case knows this very
well." Chafee to Walsh, 1/17/21, Chafee MSS, Earvard Law School
Library, Cantridge, Mass. This conclusion, incidently, was also
reached by Judge Gecrqe Arderscn, the National Eopular Government
league lawyers and the ACLU in 19 20-
37) Cclver v. Skeffinotcc. 73-75.
3 9) Ccnccrd Monitor. January 5, 1920; Manchester Orion,
January 3, 1920; NFGL, To the American People. 46.
39) SPG I, To the American People. 55; Mancheste r Onion.
January 3, 1920; Ecstcn Glcfre. January 3, 1920; Colder v.
Skeffinatoi. 44.
40) Portsmouth Herald. January 3, 1920, January 5, 192C; BI
file OG 377853-55.
4 1) BI f ile OG 377853-55 ; Manchester 0 nicn. January 3,
1920; Concord Monitor, January 3, 1920.
42) Claremont Advocate. January 9, 1920; Claremont Eagl e .
January 3, 1S2C.
43) Colver v. Skeffinoton. 73-75-
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***0 Bcstcn Globe. January 5, 1920; concord Monitor. January
5 , 1920.
45) Bcstcn Globe. January 5, 1920; Cclyei v. Skeffinoton:
Chafee, I r e j Speecb in the D.S.X 213: NPG1. To t he American
People. 42-56.
46) Ecstcn Globe. January 7, 1920.
47) Kelvyn Dubcfsky, We Shall Ee A ll. 539. Wien I contacted
the Imsiqrsticr and Naturalization Service in Washinqton, D.C. I
was informed that I would have tc file separate freedom of
Information requests for the files of each cf the individuals
free New Hampshire she was held fcr deportation. And since the
Frivacy Act prohibits the release of personal information, I
would f i r s t have to prove th at each of the individuals was
deceased fcefcre any information was released. In addition, I
would be charqed $5.CO an hour search fees tc find the documents
with no assurance ahead of time that these documents sculd be
fcund. Mary files, I was tcld, had been lest or misplaced when
they were removed from the National Archives at FBI director
Hcover’s reauest.
4 8) Alpheus T, Mason, Erandeis: A Fee Man1s life (New Ycrk,
1956); Joan Jensen, The Price of Vigilance (Chicacc, 1968), 158,
172; The Survey 44 (July 3, 192C), 489-90; The Nation 111{July
3, 1920), 7-6; The New Republic 23 (July 14, 1920), 189-190; New
iQ tk Times. February 14, 1538, 26; El file CG 379228. In
addition to the fact that there was only cne conviction for
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violation cf the espionage act in Arderson's district while he
was U.S. Attorney, there was no sabotage cf defense industries
in the Boston area, 1914-1917. See New York Tices, index,
1914-1917. Eoston Globe. January 7, 1920; Cclver v.
Skeffington.
4 9) Cclver v. Skeffinotor; NPG1, To the American People.
42-45; El file OG 379228. The habeas corpus hearings and
Anderson's decision will be discussed in greater detail in the
next chapter.
50) Concord Monitor. January 5, 1920; Manchester 0 c ion.
Januuary 5, 1920; Foster's Daily Democrat. January 7, 1920;
Claremont Dailv-Eagle. January 5, 1920.
51) An exception was the Manchester Union. which reported
the news of Anderson's decision on page 1. The Portsmouth Herald
reported the story on page 12, while the Ccnccrd Monitor and ) Fester's did not report the release of the aliens. The New York
Times reported the outcome on page 14. None cf the above paper
ran editorial comments on the Anderson decision.
52) The Nation. January 17, 1920, 64.
53) The New B erutlic. January 28, 1920, 249-252.
54) Pest, Deportations Delirium: cc1ver v. Skeffington.
47; John Icnbardi, lab o r's Vgi qe in the Cabinet: A History cf
the Labor Department from its Origin to 1921 (New York, 1942),
344-345. "Investigation cf the Administration cf Icuis F. Pest,
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Asst. Secretary of labor, in tie matter cf deportation cf
ra d ic a ls," Hcuse Committee on Rales, April 27, 1520, H.Res 552,
66th Ceng., 2rd Sess. (1 520).
55) Report of the Seventeent h tecennial Census cf the P.S. .
Census of Population 1950, vol. 2, part 29, Hew Hampshire
(Washington, L.C.), table 24.
56) Stephen D, Beisbuch, "Prhaus v. Wyman." (unpublished
senior thesis, Keene State College, 1976); "Sweezev v- New
Hampshire"; The Right tc Prosecute Subversion - State vs.
Eederal Government," (urpublished seminar paper, University of
New Hampshire, 1977).
« 57) Stanley Cohen, JU. Mitchell Palmer: Politician.
217-267; NPG1, To the American People.
58) See Chapter V, supra: Frank J. Ecnner, Age of
Surveillance. 40-44.
59) See generally. Report cf the Attorney General. 1919.
1520, 1921: Eavid Williams, "The Bureau of Investigation and Its
Critics, 1919-192 1: The Origins of Federal Eolitical
Surveillance," Journal of American History, forthcoming, December
1981.
60) Ecnner, Age of Surveillance. 40-44.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter IV
The Eureau of Investigation and Its Early Critics;
Political Surveillance, 19 19-1921
In Hay 1S20 the National Popular Government league (NPGL)
published its searing critigue cf the federal government*s
post-war anti-radical F°licies. Entitled £o the American People;
Report Upon the Illeqa1 Practices of the United States Department
of Justice, it was signed ty twelve distinguished attorneys, law
professors and a former federal district court judge. The
pamphlet documented mary cf the verst abuses perpetrated by the
El during the deportation raids and argued ttat the arrests
seriously abridged the basic Ccrstitcticnal rights of citizen and
alien alik e. The NPGL's p ro test was -joined by the Interchurch
World Movement (IWH) and the Federal Council of Churches of
Christ in America (ECCCA) co-spcnscrs of an investigation cf the
status of immigration laws and the deportation raids. In June
1S20 the group released the results cf its inquiry. This
protest, together with Assistant Secretary Louis Pest's
administrative restraints on deportation, discredited the Justice
Department's deportation policies and effectively scuttled BI
plans for ever more comprehensive deportations of radical aliens
later that year.[ 11
159
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Stung by the save of criticism, the Eureau, under the
leadership cf GID chief J- Edgar Hoover, secretly launched a
comprehensive investigation cf federal judqes, Assistant
Secretary Eost, the EPGL, the IWH, and the PCCCA. Believing
their criticisms to be part cf an insidious plot against the
federal government, the Bureau equated denunciations of the
deportations with. subversion- As a consequence, tie Bureau set
cut not only tc identify members of these qrcups, but to disrupt,
if possible, their activities and discredit their campaign.
Since the FEI was able to keep these illegal activities secret
fcr almost sixty years, Ccnqress, Justice Department officials,
and scholars have usually assumed that during the early pcst-war
years the Eureau had limited i t s a n ti-ra d ic a l operations to
fringe groups such as communists, socialists, Wcbblies,
anarchists, and radical labcr crgani 2ers. Thus, Athan Thecharis
recently asserted that "the Red Scare cf 1920 was a public effort
{tc harass and intimidate radicals) and was predicated upon
specific laws, while the mere abusive surveillance programs of
the cold war years were conducted in fcnewinq violation of federal
laws.” The following examination cf the Bureau's investigations
cf its early critics shows that this conventional interpretation
is inaccurate. Such a study alsc yields important new insight
into the El’s post-war priorities and the development cf domestic
political surveillance during this critical p e r i o d . [ 2 1
At f i r s t , Eureau o ffic ia ls were encouraged by the favorable
reaction tc the deportation raids. ?or almcst a year, "red
hysteria" hac engulfed the naticn. Hany people feared that labor
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militancy and strikes in the steel and coal industries would
paralyze the country* making it ripe fcx revolutionary upheaval.
Consequently, otherwise principled and conscientious individuals
arqued that tie naticral emergency iustified temporary suspension
of the constitutional rights of radical aliens. As Jchn Wiqucre,
dean of the Northwestern University Law School* observed: "When
you ate tryinq tc protect the community against moral rats you
sometimes qet to thinkinq more of your trap’s effectiveress than
cf its lawful constitution." Or January 5, 1920, three days after
the raids, the New York Times exclaimed: "If ar.y cr seme of us
impatient for the swift confusion of the reds have ever doubted
the alacrity, resolute will, and fruitful intelligent viqcr of
the Department of Jcstice in hunting down the enemies of the
United States, the guestioners and doubters new lave cause tc
approve anc applaud." Nary members cf the bar also believed that
the raids were necessary. "There is only one way to deal with
anarchy arc that is tc crush it", cne law journal explained, not
with "a slap cn the wrist, hut a broac-axe tc the neck." On
January 10, the Senate passed the Sterlinq till, a peace-time
sedition act, in effect endcrsinq Attorney General Ealmer's
anti-radical policies.[31
Not everyone was similarly impressed by Attorney General
Palmer’s red hunt. The indiscrim inate a rre s ts had prompted c iv il
lib e rta ria n s to orqanize a campaign to end goverm ert repression
and popular intolerance aEd restcre political freedoms restricted
durinq the f i r s t World War. The National Popular Government
League (NPGL), founded in 1S1h tc advance p o litic a l and social
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162
reform, lec the opposition to the raids. The Interchurch World
Movement (IiM) , established in 1919 by over 100 Erotestant
denominations to work towards post-war reconstruction, sponsored
a survey cf the mer ar.d women held by the Immiqration Eureau for
deportation. The Commission on the Church and Social Service of
the Federal council cf Churches of Christ in America (FCCCA) also
spoke out aqainst the Attorney General's qoals and tactics.[4 1
Withir days of the arrests, disaffected qcveriment officials
and liberal lawyers criticized the raids. Cn January 12, 1920,
Francis Fisher Kane, the United States Attorney fcr eastern
Pennsylvania, resigned in protest tc the arrests, in an open
letter to the Attorney General, Kane warned Ealmer that “the
policy of raids aqainst larqe numbers of individuals is qenerally
unwise and very apt tc result it injustice.” Several Immiqration
inspectors refused to co-operate with BI aqents and were
dismissed or transferred by Anthony Caminetti, the Commissioner
•'i General cf Immiqration. As reports of violations of basic
Constitutional rights filtered out of the Imaioraticn Bureau
prisons, sympathetic attorneys offered to represent the aliens at
the final deportation hearinqs. Followinq department policy, 31
aqents and Immiqraticr inspectors steadfastly refused to allow
aliens leqal counsel. Takinq a different tack, defense attorneys
turned to the federal courts for writs of habeas corpus.!-51
The critics of the raids, especially the KEG I, came tc rely
heavily on evidence developed at the habeas corpus hearings, held
in Eutte, Montana and Boston, Massachusetts. By January 1920
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official terrorism was part of everyday life in Butte. Beginning
in 1916, federal agents regularly disrupted meetings, physically
assaulted and arrested members of the radical labor union, the
In d u stria l Workers of the World (IKS). In co-operation with the
ju stice Department, the Immigration Bureau held alien members of
the IWW fcr deporta tier cr. evidence sei 2ed without warrants from
th eir union halls and homes. John Jackson, one of the Justice
Department’s victims, petitioned federal district court -judge
Gecrge Bourguin for a writ of habeas ccrpus. Judce Bcurguin, an
outspoken critic of the Justice Department throughout the war,
had been the targ et of BI criticism since Earch 1918 when he
refused to send draft resisters to jail. Butte agents pleaded
with John Lord 0'Brian, special assistant to the attorney
General, to relieve Bourguin or to have him transferred tc
another district. In bis reply, C'Brian reminded the aqents that
’•there i s no methods by which Judqe Eourquir can be tran sferred ."
C’Erian also . dismissed the aqents' charges that Bourquin had
acted in bad faith when he sentenced the draft dodqers to public
service work at the local poor house and h o s p ita l.[61
On February 12, 1920 Bourguin ordered the Immigration Bureau
tc release Jackson. Ihe judqe found little evidence that Jackson
had personally advocated the violent overthrow of the government.
" (H)e and kind are less a danqer to America than those who
indorse or use methods that brouqht him to d ep c rtatio n ," Ecurguin
concluded. "These latter are the mob and the spirit of violence
and intolerance incarnate, the most alarming manifestation in
America today. T 7]
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On Hay 5, 1920, El aqent Eavid Gershon submitted a weekly
survey laierting the lack of activity "in ccmtattinq radicalism
ty the local, city, state and federal officials" and charqinq
that Judqe Eourquin "is unquestionably in syapathy with the
radicals, bis decisici in Jackscn v, 0 .S. {sic) fcearinq out
this deduction," The radicals, Gershcn continued, used Bcurguin’s
decision tc ilcck attempts by BI aqents tc arrest and search
anyone or seize radical literature without "beirq clothed with
proper legal warrants," In October, aqent E.F. Costello
investigated the lNW*s defense attorneys, including Ecurguin*s
sen, George, Jr., who "like his father, is inclined toward
radicalism." A month later, aqent Baldwin Bcbertson commented
that "the situation in Eutte is indeed a serious ere and net the
least of the d iffic u ltie s is h is honor Judqe Bourquin." In the
same report, aqent F.ti. Kelley, a El trcufcle-shcoter, echoed
earlier requests to remove Eourquin, claiming that it wculd "be
in the best interests cf the Bureau."[8]
The habeas corpus hearings in Eoston, at which Judge George
Kestcn Andersen presided, proved to-be even more ir r ita tin q tc
the Justice Eepartmert. In crder to insure a fair and
scrupulously -judicious process, Andersen invited Felix
Frankfurter aid Zechariah Chafee, Jr, professors of law at the
Harvard Law School, to serve amicus curiae during the hearings.
Frankfurter, who taught administrative law, questioned
Immigration Irspector Henry Skeffinqtcn and the chief cf the BI’s
Northern Hew EEqland Disrict, George Kelleher, in order to
develop the facts relating to the planning and execution cf the
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deportation raids. Cbafee, who was preparing the first treatise
on F irst Amendment law, advised Andersen cn lim itations of
government power and ether Constitutional questions raised by the
mass a rre s ts . Both men la te r helped Andersen draft his opinion
at the judoe's Brookline heme.T9]
Throughout the hearings Anderson guesticned witnesses to
c la rify p c irts of fact and law. Government attorneys, led by
assistant D.S. Attorney louis Gcldberq, claimed that the 28
petitio n ers were bona fide members cf either the communist or
Communist Labor parties and were, therefore, subject to
deportation under the provisions of the 1918 Immigration Act. Tc
prove party membership, Gcldberq relied primarily on statements
collected from the aliens by Immigration inspectors on the niqht
cf the a rre s ts . Defense attorneys Morris Xatzeff and Lawrence
Ercoks challenged the validity cf the questionnaires that the
aliens had "signed" by asserting, among other things, that at
least 3 cf their clients had never even heard of the party until
their arrest. Anderson, confused by the conflicting testimony,
directed questions to key government witnesses. During
examination ty the bench, District chief Kelleher revealed that
El informers had infiltrated local immigrant sccial clubs and
helped to schedule meetinqs fcr the night of the planned raids.
Many persons, Kelleher admitted, were held withcct warrants and
remained in custody fcr as long as two weeks withcut cause.
Anderson alsc raised q u esticis about the Justice Department's
role in the deportation process. He noted that Ccnqress had
specifically delegated authority tc enforce the immigration laws
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to the Later Eepartment, while commissioner Skeffinqton and chief
Kelleher both conceded that the Justice Department involvement in
the deportation process had no statutory basis.PO]
On April 24, 1920, Anderson released on tail the 28
p e titio n e rs and reducing the amount frcm $5,0CC- 11C,000 to 3500.
The iudge held that the aliens could not be deported for
membership in the Communist or Communist Labor party alcce, even
if it could te proven. On June 22, Anderson entered the opinion
of the court. Taking issue with the qovernmert’s claim that,
unlike citizens, the rights cf aliens were not constitutionally
protected, Atderson argued that all "persons" were entitled to
"due process". As a consequence, the Later Department had
wronqfully denied the aliens counsel when the actinq secretary
amended the regulations on the eve of the mass arrests. Although
Anderson could have decided the case cn "due process" grounds
alone, he chcse to address ether fundamental questions raised ty
the government’s entire strategy. The judqe fcurd that the
provisions cf the 1S18 Immigration Act unconstitutionally broad.
G uilt, Anderson p o sited , was personal and the government could
not deport persons because of membership ir certain p o litic a l or
later organizations. Immigration officials had to prove that the
individual had advocated violence, conspired tc overthrow the
qovernment or participated in terrorist activities. Guilt by
association, he declared, had no place in American society and
ran counter to all Anglo-American leqal traditions. Anderson
also found the illeqal activities of government aqents (e. q. ,
warrantless searches, seizures, and arrests) particularly
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. reprehensible. Paraphrasing Thomas Erskine Hay, the nineteenth
century c c rs titu tio n a l scholar, Anderson ccrdenned the use of
informers, spies and aqent provocateurs by the Justice
Department: "I cannot adopt the contention that qcvernment spies
are more trustworthy ct less disposed tc make trouble in order to
make profit therefrom than are spies in the.private industry.
.The spy system destroys tru s t and propagates h a te .’1 The
government appealed Anderson's decision, claiming that Conqress
had allowed the Secretary of Labor, to establish tie criteria fcr
deportation decisions and the secretary's decision was not
sub-ject to -judicial review. The government did net address the
questions cf warrantless arrest, forced confessions,
administrative irregularities and lack cf due process.[11 ]
Encouraged by Anderson's decision, NPGL secretary Judscn
Kinq and Jackson Ralstcn, the league's attorney, solicited
support far a publication critical of the depcrtaticn raids.
Eleven lawyers with extensive experience in public and private
law assisted Ralston and lent their names to the final report.
Swinburne Hale, a former officer in Military Intelligence whc had
argued that membership in the communist cr Communist Labor party
was net grounds for deportation in a hearing before Secretary of
Labor William Wilsor in January 1920, helped Ralston collect
evidence and prepare the first draft of the report. Six
academics, departing from maiority opinion in the law schools,
edited the pamphlet. Ernst Fiecnd of the University of Chicaqo
law School and the nation's foremost authority cn administrative
law and limitations cf state and federal police power, "joined
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■Frankfurter, Chafee ard Dean Rcscoe Pound of the Harvard Lav
School, Sifted N iles, former O.S. d i s t r i c t court -judge and
professor of lav at the University of Maryland, and Dean Tyrell
Williams cf the Washington University lav School also supported
the e f f o r t . f 12 ]
Two former governnent employees and tvo lawyers in private
practice completed the citizens* panel- Francis Fisher Kane
-joined the ccamittee after he resiqned as O.S. Attorney- Frank.
Walsh, President Woodrow Wilson's choice tc cc-chair the War
labor Board, David Wallerstein of Philadelphia and Richard Brcsn
of Memphis signed the repcrt as a protest aqainst "the ruthless
and brutal disregard of the riqhts of the poor and defenseless
people shewn ly the employees cf the Department of Justice-'T 13 ]
At the height of the Red Scare defending the rights of
suspected radicals was risky business. During the First World
War, bar associations criticized, disciplined and, in some cases,
disbarred lawyers who represented persons charged with sediticn
and "(t)heir exuberant rationalism. . -remained potent after
the Armistice." To avoid charqes cf unprcfessiona1, even
unpatriotic behavior, the NPGL's lawyers had tc be absolutely
sure that each charqe against the Attorney General and his
subordinates was accurate and fully-documented. Accordingly, the
completed NPGL study included swern testimony, notarized
statements and depositions, phctcqraphs, and copies of department
instructions and memorandums- The NPGL had twe primary
obiectives; first, tc publicize Palmer's abuse of power and the
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department's disreqaxd fcr the la*# and, second, to use the
report as the basis fcr admiristrative reform of the deportation
process and le g is la tiv e reform of the BI. The Leaque mailed
copies of the report tc newspaper editors, federal judqes.
Supreme Court justices, and congressmen. later that year, the
American Civil lib e r tie s Onion helped to d istrib u te the report.
In January 1921, a Senate Judiciary Sub-Committee investigated
the charges aqainst the Attorney General and, by tie end cf the
year, the xepcrt had reached a rational audience-T 1^1
News of the NPGL's work reached Hoover's cffice on May 5,
1920. In a letter addressed to the Attorney General, a staff
member of the leaque sent ccpies cf newspaper editorials critical
cf the Justice Department and noted that "(t)his may interest you
Palmer. These who trample and ignore the lav are the real
anarchists.*' Cn May 8, GIE chief Hoover ordered a "discreet and
thcrcuqh investigation cf all essential facts." In a memo to an
assistant, Hcover stressed that the investigation must remain
secret because no criminal activity was involved: "The Eureau
desire fs) tc know who they are and and to obtain full infcrnation
concerning the NPGL. The inquiry should be directed as scon as
possible, without precipitatinq issue."T15 1
Agents from the El’s Washington, B.C. field cffice quickly
went to work on the request, and, on May 19, special aqent P.M.
Kemon transmitted the results cf the investigation. The NPGL, he
found, referred to itself as "a permanent, central organization
tc promote Ccr.stituticr.al and legislative measures which will
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democratize cur political machinery and establish control by the
people." Kemon listed its officers, including Senator Bofcert L.
C-vens, the league's president, anc the.Leaque's Pr cqressive-style
platform (support fcr initiative, referendum and recall, direct
nomination and election of the President and effective publicity
and corrupt practices acts). Kenon also provided personal
informatior about Judscn Kinq, the league's secretary, Thomas
Everitt, FEG1 business manager, and Linus Bailey, a mechanical
engineer vhc was active in league affairs. In addition, Kemon
mentioned their marital status, their wives’ occupations, home
address, and their physical appearance-T16 ]
In his next report, dated June 2, Kemcn outlined the NPGL
financial situation, named financial contributors, and listed the
remaininq officers of the League, its advisory ccurcil, aDd its
member orgerizatiens. After failing to secure data concerning
the NPGL's finances from "confidential sources", Kemcn reported
that he visited the Kunsey Trust Company, Washington, E.C., "in
order to secure inside information." Kemon interviewed the bank's
vice-president, who felt "under tie circumstances he was fcrced
to qive our department irfcimaticn." Vice-president Pope informed
Kemon that King was "simply a ’nut' with political phantasies,"
and was "firarcially irresponsible." Pope produced the Leaoue's
financial ledqers ar.d a complete list of doners, the amount of
the donation, and Leaque expenditures which Kencn passed cn tc
the EI.[171
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Kemon's fin a l memorandum, submitted on June 9/ 1920
described the "Reconstruction Conference" which the league had
sponsored a year earlier in Washington. The memorandum brought
tc Hoover's attention the fact that Assistart Secretary Icuis
Post, the administrator cf the deportation program, had addressed
the League's conference on the topic of industrial democracy.
Ecreau investigations of Post, however, had teem immediately
after the January raids. On January 15, 192C, worried that
Assistant Secretary Post might undermine the Justice Department's
deportation program, Hoover asked several BI field offices "fcr
information linking Pest to the I5S." BI aqents found out that
Pest had met with George Andreychine, an IS5 organizer and
Lincoln Steffens, the jo u rn a list, sometime in 1S1S. The Eureau
also learned that Post had "made a sworn statement attesting tc
the character of an anarchist named Turner" and had advised
aliens arrested by the Justice Department "to institute habeas
corpus hearinqs in order to get around the deportation orders."
Five months la te r, cn May 17, 1920, the Mew York fie ld office
sent an aqent on an "unsuccessful search" of area bookstores for
"Post's Ethical Principles of Marriage and Divorce." Another BI
memorandum "erroneously stated that Post owned 50 percent cf the
Hew Bepublic. The agent had apparently ccnfusec tbe then defunct
Public (a journal Post had edited seme 20 years earlier) with the
New Republic. " The Eureau alsc kept tabs cn Pest after he left
the labor Department. Thus, ir 192 1, BI aqents from the Bcstcn
field office "attended and reported on public lectures qiven by
the former assistant secretary (at the Harvard student Liberal
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Club).*' Po st’s bioqrapher Eominic Candelorc concludes that
"though Hccver obviously believed Post to be a Coiriiunist
sympathizer, so solid eviderce cculd be found to discredit
him. ”[18 ]
The lawyers who siqned To The flpericap P eerie were subjected
to similar scrutiny. actirq cn instructions from Frank Burke,
chief of the Eureau’s Rashingtcn headquarters, and from GI£ chief
Hoover, field aqents investigated a ll twelve men. The reports
included their dates and places of birth, marital status,
reliqious beliefs, and education. More significantly, aqents
closely examined their political ideas, organization and party
ties, and professional activities.f19 ]
On January 23, 1S2C, Hoover asked Military Intelligence tc
provide the Eureau with information about Swinburre Hale's ’’past
history anc ccrnecticrs” because Hale had displayed "somewhat
peculiar attitudes” when he represented the Communist party in
January. Several weeks later, the Eureau's Boston office placed
Hale's heme in Scituate, Massachusetts, under surveillance
because Hale had allcwed a friend, Max Cohen, to stay there on a
visit to Eostcn. The GID noted that Hale had "speit considerable
time at the Scviet cffice in New York. . . (and) assisted in
raising bail for James larkin (an advocate cf Irish independence)
and Een Gitlcw (a member of New York's Communist Party) ." Hale
also appeared "voluntarily. . .in most of the cases aqainst the
aliens in the Union of Russian Workers, an anarchist
crg an izaticn .’T 20 1
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On October 16, 1920, "ccnfidential informant 1080" reported
to the Bureau’s Pittsburgh office that "Hale is shortly to issue
an article in 'The Nation*; which is a most litelcus attack cn
the qovernrert and the Court cf Common Fleas of Allegheny County,
Fa." Division Superintendent E.E. Spencer brought a copy cf the
manuscript tc the attention of Judqe Sweringen cf the Court of
Common Pleas in an atteiFt tc persuade state officials to indict
Hale under an 1836 contempt law. In th e a rtic le . Bale c ritic iz e d
the court's decision disbarring Jacob Margolis for defending
members of the IWW and for his continuing support cf the Union of
Russian Workers. Although "Judqe Sverinqen seemed to be very
gratified in receivirg this advance information", Spencer was
advised that "Hale could net come under the scope cf the local
statute." Ir January 1921, Hale applied fcr and received a
passport to travel to England to visit with his children. On
January 18, Hcover, noting that "Hale is divorced from his wife",
requested B.L. Hurley of the State Department to "obtain
information concerning his activities while abroad and the
identities cf his associates."T21 J
On June 2*1, 1920, special aqent E.A. Sclarka wrote from St.
louis that Tyrell Williams "was well knewr fcr his socialist
leanings." sclanka's scurces reported that "Williams was always a
malcontent seeking publicity. . . (and)every mesber of the bar
knows this arc considers his views indspendable (sic) by reason
of his queer mental make up." Solanka also informed the Bureau
that Willians had attended "the conference of the Committee of
’48 in St. louis recember last year", but did net actively
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participate "in the meetings". Eavid Wallersteir, agett J.F.
McDevitt reported co n fid en tially , was na democrat in p o litic s and
was formally connected with fc m e i Judge James Jay Gordon, a
local -judge "very prominent in democratic politics'1 who "left the
tench 'under a cloud'." Durinq the in v estig atio n , the
Philadelphia office procured a letter writter to Wallerstein
which tharked him fcr defending Frank P. Walsh, who had
represented Alexander Berkmar and criticised the prosecution in
the Mooney case. In a recent speech, the report continued,
Francis Fisher Kane defended the He* York socialists who had heen
expelled frcm the state legislature and told his audience that
"curt tsic) cn freedom and qcwernmental violence may create
harm." In an address to a qroup called "The Yeung Democracy"
{referred tc by the Bureau as a "radical orqan izaticr.") , Kane
arqued that the supreme Ccurt had "qcne toe far" in the Victor
Berger case, and the law "has heen made to apply tc people whc
are not cuilty cf conspiracy, and that the laws against
Bolshevism are unnecessary. 'T 22 1
On December 17, 1920, special agent M.J. Davis reported
that Frank ialsh "has been looked upon as a sympathizer,
financial contributor, speaker and power amcrc the radical
element of (New York city), if net throughout the entire country-
.and was actively engaged in an endeavor to obtain the release
of Thomas B. Mooney, the convicted bomb thrower cf Califcrria."
Walsh, Davis Ected, had been "nixed up in Sinn Fein activities in
this locality, being attached to that faction which follows Eamcn
DeValera (President cf the Iris h Republic)" and had recently
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addressed tie Bronx Community Fcrum, where he " is alleqed to have
made fav o ratie comments on Eugene V. Debs and to have said that
'The men who backed Harding intend to chain dcwn American labcr
to its tasks'." Walsh's GXD dossier concluded that he "is still
active at the present time in revolutionary circles" and accused
him of "'whitewashing' the crimes of the miners in Colorado" when
he served on the War labor Eoard.r23)
Accordirq tc BI sources, Zechariah Chafee, Jr., an active
member of the Leaque fcr Democratic Control, was "busily engaged
in pacifistic propaganda and in assisting in violating the
Espionage arc Selective Service Acts." The Eureau also asserted
that Chafee had helped "Frankfurter, (Lawrence) Brocks and others
in their unsolicited propaganda for the communists." In a June
1921 survey cf "radical activities in (Ecston area) public and
private educational institutions", Eivisicn Superinterdent
William west wrote that Chafee was "prominently mentioned as a
radical" and had written a "book entitled 'Freedom cf Speech', in
which he has paid particular attention to the decision of Federal
Judge Andersen in the case of Colyer versus Skeffirqton." Chafee,
the report continued, had alsc "personally appeared before the
Joint committee on the Judiciary cf the Massachusetts Legislature
and spoke aqainst the enactment of (the Massachusetts
Anti-Anarchy Act)." Ecscce Pound's dossier referred to his
efforts to free Mollie Steimer and Jacob Abrams who had been
convicted cf violatirq the sedition act in 1918. Another
accusation claimed that Pcund was "anti-English and pro-German"
during the war and, as dean of the law schocl, had hampered
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efforts by students to procure their deqrees "before gcinq to
war- "t 24]
Felix Frankfurter, because cf his prominence as a
progressive social reformer, attracted mare attention from the
Eureau thai ary ether NPGL lawyer. Frankfurter and his mentor,
louis Brandeis, had mediated labor disputes in the Sew York
qarment industry before the war and, in 1917, Frankfurter had
teen appcirted by President Wccdrow Wilson as secretary and
counsel to the President's Mediation Commission. The commission,
despite its successful settlement of disputes in the mining,
lumber, and meatpacking industries, drew frequent criticism from
business leaders. The Commission's investigation of the Tern
Mccney murder trial was perhaps its most controversial
assignment. Mooney, a prominent San Francisco lalcr leader, had
teen convicted of planting a bomb at a Preparedness Day parade in
1916 whicb killed IS and wounded 40. Under Secretary of Labor
William Wilson's supervision. Frankfurter prepared the
Commission's final report which urqed the President to ask the
governor of California to grant Socney a new tr ia l because "a
solid basis exists fcr a feeling that injustice was done." After
reading news cf this report, former President Theodore Ecosevelt
accused Frankfurter of excusing murderers, traitors, and
anarchists who threaten "democracy and civilization"^ 251
The Eureau of Investigation sta rte d to assemble i t s dossier
on Frankfurter while he was serving as amicus curiae at the
habeas corpus hearings in Bcstcr- Cn May 17, the Bl's Boston
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office sent Hoover its first report which emphasized
F ran k fu rter' s involvement with the amalgamated Clothing Workers
cf America. That organization, special agent louis Nolan
observed, "is to Massachusetts trade unions what the I8W is to
the laborirc classes of the West.” Confidential information
showed that the main goal of the ACWA "was to control the raw and
finished Frccucts in the clothing industry, so that in the event
of the radicals getting a foot-bold in this country, they would
he able tc have the clcthinq situation in their hands-" Samuel
Torn, the ACWA's business manager in Bostcr and one of
Frankfurter’s associates, was "the most dangerous man in Boston"
and had "nothing on Trctski." Frankfurter, Nolan implied, was a
member of the "(Boston) Jewish element furnishing the trains for
the radicals and making the bullets which the ignorant of other
n a tio n a litie s fire, "f 26]
The report further developed Frankfurter*s connections with
ether critics cf government policy. Cn November 19, 1919,
Frankfurter and members of the Harvard L ite ra l Club had urged
norsalizaticr of relations with the new soviet government as a
means of insuring a lasting peace. In his report cn that event,
Assistant Superintendent William West found that these were the
same people who had urqed violation cf the Selective Service acts
and had assisted "violators of the Espionage Acts-" West charqed
that Frankfurter had displayed "unpatriotic attitudes during the
war" [as evidenced by Frankfurter’s report cn the Mccrey trial
and Boosevelt’s reply) and was "still voicing opposition to the
government - net tc its prosecution, of treasonable
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offenders."T27]
On May 2C BI headquarters teleqraamed Boston to ask whether
Frankfurter and Chafee had volunteered to serve anicus curiae or
had appeared at the request of Judqe Anderson. GIB chief Hoover,
who attended the Boston habeas corpus hearings, initiated the
request tc find out what had activated the two men to defend
"ccmmuni sts". George Kelleher reported th at "Frankfurter and
Chafee may have been urged tc appear by outside influences". The
HI then asked the Eoston office to investigate Arderscn because
of his "well-known sympathy. . . with the ’ l it e r a l movement*."
"Bis name", the GIB later recorded, "is a household word among
the reds," and his decision to qrant the writs cf habeas corpus
"was evidently intended fcr propaganda - and has teen seized upon
by radical papers and organizations both here and abroad." The
GIB concluded th at because Anderson had refused to prosecute
participants in "German spy plots" when he was O.S. Attorney, he
was unable to -judge impartially the "facts" relating tc the
international communist co n sp iracy .f28 ]
A separate BI investigation of Representative Ehillip
.Campbell, chairman of the House Buies Committee, turned up the
fact that Frarkfurter planned tc attend the International Zionist
Conference in Iondon in July 1920. The House Rules Committee had
recently completed an investigaticn into the administration of
the immigration laws and had rejected a resolution to impeach
Fast. On June 5, 1920, special agent W.E. Grimes, whc was later
appointed special assistant tc the Attorney General by Harlan
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Fiske Stone, procured a copy cf a telegram sent by Frankfurter to
Campbell from the congressman's Hashinqtcn office "under
circumstances not necessary to divulqe". In the telegram.
Frankfurter urqed Campbell to investigate the Justice
Department's role in the deportation raids, particularly its use
of aqent provocateurs tc arrange meetings to facilitate the
arrests, but regretted that he mould be unable tc testify after
June 14, 1920. Agent Grimes forwarded his copy cf the telegram
to GID chief Hoover, who then wrote W.L. Hurley at the State
Department, seekinq mere definite irformation about Frankfurter's
plans. Hurley advised Hccver that Frankfurter would sail from
New York aboard the S.S. Bctterdam or the S-S. Lapland, and
acded that the State Department had issued a great many passports
to persons planning to attend the Zionist conference.f291
The Eureau completed its investigation of the NPGL only
after the Senate Judiciary Subcommittee wrapped up its hearings
into the League's charges in July 1921. Hoover, who believed
that the NPGL lawyers were in "absolute ignorance of the facts,"
directed his employees to draft rebuttals cf the attorneys'
testimony and in a memorandum for his files observed that their
testimony was "typical cf the intense propaganda indulged in by
their organization." The GID also became involved in an attempt
by Austin fi. Fox, a New Ycrk attorney and Harvard law School
qraduate, to have Zechariah Chafee dismissed from the University
because of his public criticism of the justice Department. Dpon
request, Eccver supplied Fcr with information to support his
allegation that Chafee's charges hac been reckless and untrue.
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In addition, GID clerks collected newspaper clippirqs of the
Harvard investigation which ultimately concluded that Fox's
allegations sere iraccurate and recommended that "no further
action be taken".r 30]
In addition to raisinq important leqal end political
questions, tie deportation raids demonstrated the vulnerability
of minority groups in the United States to arbitrary
adm inistrative action. And since the Justice Department had
sinqled out Eastern European immigrants fcr deportation, many
literal clercymen believed the arrests were the result of
intolerance, cultural hostility, and racial preludice, Thus, cn
January 28, 1920, five Episcopal bishops criticized the raids in
an open letter published in the Sew york Times and the Sew York
Sun. "Ue» . .are moved to make an appeal to the people of the
churches of America on account of certain measures. . .which
threaten the basic principles of our Government. . .{and) (Vi) e
urqe the people. . . tc use their influence for the return to
that old faith in the fundamental principle cf cur civil
liberty.»r31]
In February 192 C the Interchurch Korld Bovement IIWM)
commissioned an investigation of conditions in Immigration Bureau
•jails where aliens were held while awaiting deportation, and the
effects of the arrests on the individuals, their families, and
their commurities. The IWM, founded in 1919 to study pressinq
social anc economic problems, chose Eeverend Constantine M.
Eanunzio tc head the investigation. Following an exhaustive
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examination of all of the available evidence, including Labor
Department case files, Panunzio concluded that "(c)nly a small
number of these aliens could be classed as danqerous radicals.
The simplicity of their testimonies, their obvious
straight forwardness, testify tc the fact that the maiority of the
persons. . . entertained no purpose hostile tc the American
qovernment cr the American people." The report, Dero rtatio n Cases
of 1919-1920. remains the mcst accurate profile of the
individuals arrested by the Justice Department.f32]
Withir weeks of i t s in itia tio n . Hoover learned of the IWM’s
inquiry. Cn Karch 27, 1920, special aqent William Hazen informed
GID chief Eccver that Panunzic was interviewing aliens in custody
in Hartford, Connecticut. Hazen assured Hcover that "there is no
cause whatever for any complaint amonqst the arrested aliens
confined in the Hartford County Jail." Aware that the IWM had
recently called for a Congressional investigation of the BI and
suspecting that the IHM'S religious affiliations merely masked
its "ultra-radical" sympathies, Hcover directed the Bureau’s
Pittsburgh cffice tc iEvestiqate the IWM. Special aqent H.J.
Lenon promptly filed two reports summarizing the history and
a c tiv itie s cf the IBM. On April 7, Lencn reported that "men with
u lte rio r motives have crept in tc the movement", and were trying
tc influence "certain gullible preachers to appeal to the Labor
Movement and tc leaders of radicalism. . .in order to fill
their pews and increase their collections." Some ministers, Lenon
continued, have "fallen for the idea." Lencn feared that the
churches would become "open fcrums for radicals cf every hue and
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182
color.” Tie Reverend Luther Freedman, paster of the Emory
Methodist Episcopal Church, Lercn's sources reported, had invited
Frofessor Harry Hard, president of the American Civil L ib erties
Onion, to speak in shat sas "commonly believed" to mark "the
beqinninq cf a ’Free Speech* campaiqn. in defiance cf a l l
law. "[33 1
Lenon's second report, completed on Hay 6, outlined the
IHM's ties with ether "radical aEd anarchistic" organizations,
primarily the ACLO. Ihe IHM investiqators, Lencn explained, were
"more or less radical" and were the tools cf William Fester {a
leader of the steel strike) , the "confessed syndicalist
anarchist". lenon lis te d the IHM's pufclicaticns and summarized
its platform and prcqram. Lencn also included short biographies
of Hard arc Roger Baldwin, founder cf the ACLO in the report.
Ihe investigation revealed that the ACLO and the IHM had
cooperated with the Amalgamated lextile Workers, whose members
had struck mills in Lawrence, Massachusetts and Paterson, New
Jersey. The textile workers, Lencn advised the GIE, were enaaged
in "fomenting a general strike in all the textile industry", and
that the Eureau wculd find the IHM's report cn the Lawrence
s trik e "very in terestin g ". Roger Baldwin, lenon suqqested,
" (b)ecause cf his education, traininq and executive ability,
.must he recarded oxly in the liqht of a dangerous man."T 34]
Alluding to the IHM report cn the 1919 Steel Strike which
was highly critical of the steel industry as well as to its
projected repcrt cn the deportation raids, Lenon concluded that
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the IWU represented an "apparent utilization of religious
movements to spread impossible and false theories and cntrcths
concerning ccrditicrs (in the United States)-" In an attempt to
measure the influence of the INN, lenon found that "it is hard to
qauqe when one considers these words and slcgars" are sponsored
ty an organization representing practically all the Protestant
denominations in the United States and "are mouthed and reported
and qiven the stamp of approval of about 26,OCC,000 enrolled
church members."r35]
In November 1920, the federal Council of Churches cf Christ
in America (FCCC&) voted tc recrqanize the Council and
incorporate the IWM. The FCCCA, founded originally in 1896 to
unite all Protestant denominations in a bcdy tc promote moral
reform throughout the United States, tcck up the work of the IWM.
The FCCCA condemned the raids and called fcr at irvestiqatico of
the Justice Department's rcle ir the deportation process. In
1921, at the hearinqs before the Senate Judiciary Subcommittee,
representatives of the FCCCA testified that "(t)he evils involved
in the raids ’are cf the first magnitude and should engage at
once the attention of the public and Conqress*-"T36 ]
The GID investigation of the FCCCA beqan on December 12,
1920. Hocver telegrammed the Bureau’s New Tcrk cffice, askinq
Division Superintendent George Lamb to prepare a report or the
qeneral principles cf the organization, the activities of the
FCCCA and "individual and detailed statements upon. . .the
various officers ard persons prominent in the organization." The
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FCCCA "is a 'very large and prominent organization", Lamb replied,
and its administrative staff "includes the names cf leading
clergymen arc laymen in the country." lamb informed Hoover that
he had instructed his agents to place an informer in the FCCCA to
find out who vas responsible fcr the Council's condemnation of
the deportation raids. Lamb reasoned that the Ccuncil had been
infiltrated by mean-spirited radicals because no organization
whose members included John 0. Hockefeller, Jr. and Charles
Fvans Hughes cculd have meant that i t had said about the Justice
Department. Only a few dissidents, probably of the "parlor
bolsheviki" ilk, lamb concluded, were responsible fcr the
Council's criticism ard he would transmit their names to the GIE
as scon as possible. Hoover also had the file s of M ilitary
Intelligence and the State Department searched for evidence, but
neither department turned up any infcrmaticc lirkirg the FCCCA to
subversive organizations . 121 ]
The tone of these investigative reports demonstrates net
only the El's extreme anti-radicalism but also its hostility
toward ethnic and relig io u s m inorities. According to the
Eureau's narrowly conceived standards, those who challenged the
conservative political crder in aty way were somehow unpatriotic
or "un-American". Thus, the Eureau's reports insinuated that
Irish-Americars vhc favored Irish independence, Jews who
advocated the establishment of a national homeland in Palestine,
civil libertarians wbc defended the rights of dissidents, and
anyone who argued that the United States should recognize the
Soviet Onion were engaged in "subversive" activities. Even the
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most cursor? analysis of BI investigative reports from the early
post-war years leads to the conclusion that the Bureau thought cf
itself as a political police whose mission was not limited to
purely criminal investigations.r38 1
It would he a Bistake to ccnclcde that iecause the Bureau
failed to silerce its early critics, that its investigations were
unimportant or irre le v a n t, as head of the GIE, Ecover learned
that Conqress and the President would tolerate the Eureau's
anti-radical activities as long as it appeared that its efforts
were limited to silencing dissident voices, at the same time,
Hcover came to understand the importance cf secrecy and
confidentiality. As head of the GIE, Hoover realized that if the
El engaged ir constitutionally questionable activities, these
investigations had to remain secret. Ir view of these
restraints, it is no wonder that the BI did no more than collect
information about its distinguished c ritic s . Yet, however
halting arc irconseguertial these investigations might have been,
an important precedent had been established. For the next fifty
years, fear of adverse publicity continued to he ar important, if
net central, element in the formulation of FBI internal security
policies. Cnee the Eureau conduced that surveillance cf a
particular individual qrcup was "safe" and likely to turn up
intelligence information, questions cf policy and law were
largely igrcred.r39]
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Bureau secrecy had another important consequence. The
Bureau's ability to to keep the lid on its illegal surveillance
activities eace the task cf its critics more difficult. Since
Congress, the Courts and the President were never fully avare cf
the dramatic crcvth of BI intelliqence operations, fundamental
constitutional problems vent unsolved. Thinkirq that Bureau
investiqaticrs were linited tc possible violations of federal
lavs such as the deportation statutes, federal officials never
recoqnized the scope cf BI surveillance activities or appreciated
the dimensions of the problem. Thus, when called rpcn tc balance
the nation's legitimate security needs vith individual riqhts,
federal authorities invariably opted fcr order, not liberty.
Nevertheless, sustained public criticism of the El's abuse of
authority durinq the last year cf the Wilson administration and
throrghout the Harding era compelled attorney General Harlan
Fiske Stone tc limit the Bureau's investigative authority shortly
after takinq office in May 1924. These attempts tc redefine the
El's authority thrcuqb the courts, Conqress, and finally the
executive will be examined in the next chapter.f40 1
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. NOT IS
1) National Popular Government leaque, To the American
People: Retcrt Peer the Illegal Practices of. tfg Onited States
Department cf Justice (Washirqtcn, 1920); Ccnstantine M-
Panunzio, reucrtaticn Cases cf .1919-1920 [New York, 1920) ;
Killian Preston, Aliens and Dissenters (Cambridge, 1964),
220-237; Robert K- Murray, Bed Scare (Minneapolis, 1955),
239-262.
2) David K illians, "The Bureau of Investigation and Its
C ritics, 1919-1921," Journal of Americ a n B is tc ry : Athan
Theoharis, "Feviey of Frank Conner, Age cf Survei 1 la nee. "
Political Science Cuarterlv (Summer 1980), 699-700. See alsc,
Frank Donner, Age of Surveil l a nce (Sew York, 1980), 35-51;
Murray, Jed Scare. 239-262; Killiam Prestci, Aliens and
Dissenters. 208-272; Max Lowenthal, FBI (Kew York, 1950),
130-260.
3) "Charqes of Illegal Practices of the Justice Department",
Senate Committee on the Judiciary, Hea ri ngs. 66th Cong. , 1 Sess.
(1921), 573; The New York T imes (January 5, 192C) , 10; Jerold
fiuertach, Drequal Justice: lawyers ard Social cianqe in acdern
America (New York, 1978), 130.
187
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4) The scst complete account of criticism cf the deportation
raids is Hilliara Arthony Gengarelly, "Resistance Spokesmen:
Opponents of the Fed Scare, 19 19-1921” (on published Ph.D
dissertation, Boston University, 1972) . NPGI literature, press
releases and legislative proposals can be found in several
manuscript collections. See Judson King Papers, Library cf
Ccnqress, Sashirgton, D.C.; Zechariah Chafee, Jr. MSS, Harvard
law School library, Cambridge, Massachusetts; American Civil
Liberties Uricn Archives, Princetcn University, Erinceton, New
Jersey.
5) The Survey published Kane’s letter cf resiqnaticn and
Ealmer's reply in th e ii e n tire ty ; see The Survey £3 {January 31,
1920), 502-04. Hoover to Cam inetti, 12/19/19, El file OG 368487;
Hoover to Caminetti, 1/2/20, 1/7/20, 1/20/20; Caminetti to
Hoover, 1/22/20, Eepartment of Justice Records, National
Archives, Kashington, D.C., Record Group 6C, 546CS/qeneral.
6) Sx Parte Jackson. 263 Fed. 110 (1620); BI f ile CG
147403.
7) Ek Earta Jackson. 263 led. 110, 113. Alsc see, ”A
Federal Judge Speaks Up", The New Republic 22 (March 31, 1920),
135; Arnon Gutfield, "The Ves Hall Case, Judge Bourquin, and the
Sedition Act of 1918", P acific His to ric a l Review 37 (May 1968),
163-78; Paul Murphy, World War J and the Crjgin cf Civ il
L iberties in the United States (New York, 1979), 198-203.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 189
8) BI file OG 291596, 5/5/20; A.B. Ccxe tc Ecover, 6/9/20,
BI f il e CG 291596; El f ile BS 195397, 7/7/20.
9) Liva Baker, Felix Frankfcrter (New York, 1969) , €7-98,
describes Frankfurter's rcle during the habeas corpus hearings.
Chafee explained his participation in the proceedings to the
Senate Committee on the Judiciary cr January 25, 1921; see,
"Charges cf Illegal Practices of the Justice Department",
Hearings. 165-205.
10) Boston Globe. April 7, 1920, 1 ; Boston Fos t. April 13,
1920, 1. Eecause I have been unable tc locate a copy of the
tra n s c rip t of the hearings, I have been forced tc rely on the
portions cf the testimony that were reprinted in the NFGL’s, To
The American People: Bepcrt Hpcn the Illegal Eractjcss of the
Onited States Department of Justice (Washington, E.C, 1920) ,
37-55.
11) Cclver v. Skeffinoton. 265 Fed. 17 (1st Cir. 1920);
quoted in Sidney Howard, "Judge Anderson's Decision", The survey
44 (July 3, 19 20), 489. Hoover's reaction to the the decision is
particularly interestirq. After Judqe Anderscr accused the
Justice Department cf using spies and undercover aqents to
operate "seme part of the Communist Party", Hoover tcld reporters
that the Judge's statement was an "unjustifiable misconception of
the facts" and was the "construction which 'the most perverted
mind' could Ect put upcn the evidence presented at the hearinqs."
Boston Globe, April 21, 1920. David Williams, "Sewing the Wind",
discusses Bureau investigations prior tc the .raids, presenting
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evidence net available durinq the habeas corpus hearinqs, and
substantiates Anderscc’s position that the El’s undercover aqents
were involved in party activities. In 1922, the U.S. Court of
Appeals reversed Andersen’s decision, rulinq that Conqress had
empowered the Secretary of Labor to determine which organizations
came within the scope cf the 1919 Immigration Act. 277 Fed-
129(1st Cir. 1922). Ihe case did net reach the Supreme Court
for review. Anderson to Walsh, 4/26/22, box 278, Thcmas Salsh
papers. Library cf Congress, Sashinqtcn, D.C.
12) Gengarelly, "Eesistance Spokesmen”, 202-03.
13) "Ckarqes of Illegal Practices”, Hearincs. 270-71.
14) Jercld Auerhach, Oneoral Justice. 106; Chafee, Free
Speech. 554. Commenting cn two deportation cases involvinq
members of the IWW, the Hew % q^k Lav Jour nal warred: ’’Lawyers
especially may well consider most seriously whether they should
give legal aid to such danqercus adversaries of cur government
and of our fundamental rights and liberties.” New ycrk La w
J ournal 6 1 (April 18, 1919), 224. Apparently 6ID chief Hccver
shared the bar associations' intolerance of attorneys who
disaqreed, or who defended those who disagreed, with official
p olicies. On December 4, 1519, Hoover wrote to John Creiqhton
that Issac Shorr, a New York lawyer who had criticized the
November 1919 raid on the o ffices of the Onion cf Russian Workers
in New York City, ”cuqht to be 'disbarred from further practice
before immigration a u th o r i ti e s .'” Quoted in Dcnald Johnson,
Challenge tc American Freedoms: Wc_rld War I and the Rise q£ the
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 19 1
am eric an Civ il L ib erties U njgn (Lexington, 1S6 3), 13 6- For a
representative expression cf the lecal profession's intolerance
cf dissenters* right tc freedom of speech, see John Wigmore,
""Abrams v. o.S.freedom of Speech and Freedom cf Thuggery in
Wartime anc Peace Time", I l l i c c i s La w Be view (March 1920),
reprinted in "Charges cf Illegal Practices", Bearings. 115-29.
NPGL, To Jhe American Pecrle. 3-8. Also see a le tte r written iy
a member of the Montana bar criticizing the infernal sanctions
hroucht tc tear against lawyers whc defended IWi members during
and a fte r the war- 110 The Nation {February 14, 1S20), 202,
15) Hoover to Ahern, 5/8/2C, BI f ile CG 379228.
16) Kemcn report, 5/19/16, El file OG 379228.
17) Kencr report, 6/2/20, BI f ile CG 379226.
Kemon report, 6/9/20, 31 file CG 379228; Cchn Icmbardi,
labor* s Voice in the Cabinet; A History of the Later Derartnent
fro m i ts Crigjn to 1921 (New York, 1942) , 344-45.
18) Dominic Candeloro, "Lcuis F. Post and the Bed Scare of
1920", Prologue 11 (Spring 1979), 46-49.
19) El f ile OG 379228. See also index under the name cf
each of the twelve lawyers who signed the Feccrt: Eureau of
Investigaticr, investigation files, ISO8— 1922, general index.
20) El file OG 379228; Hoover to Churchill, 1/23/20;
Churchill tc Hoover, 1/31/20; El file ES 213201; West report,
2/14/20 BI file BS 2026C0-1622.
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21) Spencer tc Hccvei, 10/16720, El file ES 2 13251; Davis
report, 12/17/20, BI f ile BE 213251; Hcover tc Hurley, 1/13/21,
El file BS 213251. Swinburne Hale, "U.S. Steel vs. Marqolis",
111 The Haticn (November 3, 1920), 998. Hale also accused the
Justice Department cf operating “a criminal espionaqe system
which has ccne to be part cf modern American in s titu tio n s ." Hale
asserted that the department had illeqally tapped telephones and
intercepted nail tc gather evidence later used aqainst Margolis
durinq the disbarment hearings.
22) BI f ile OG 379229; Sclanka rep o rt, 6/29/20, El f il e CG
379228; HcEevitt rep o rt, 12/19/20, BI f i l e CG 379228. In
December 1918, Victor Eerger, the editor cf the socialist daily
newspaper, The Milwackee leader, was convicted of violating the
Espionage Act for publishing several anti-war editorials. A
month earlier, however, Berger was elected tc Ccrqress frcm the
Fifth District of Wisconsin. Twice the House cf representatives
refused to seat him. In January 1921 the U.S. Supreme Ccurt
overturned Berqer's ccEvicticn, ruling that the trial judqe, K.M.
Landis, was "disqualified by his prejudicial conduct before the
t r i a l." See Chaffe, Free Speech. 296-250.
23) BI file 379223; Davis report, 12/17/2C, BI file BS
213251.
29) BI f i l e OG 379228; Eurke to Kelleher, 5/2C/2C, BI f ile
120969; Memorandum fcr Mr. Hccver, 6/15/23, El file CG 379228;
West report, "Badical Activities in Public and Private
Educational Irstituticns and Organizations",.6/8/21, BI file BS
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2 C2600-1622.
25) Eaker, Frankfurter. 58-84. fc'cover filed a ccpy cf
Roosevelt's letter in May 1920 ir Frankfurter's dossier/ 31 file
OG 120964. On December 17, 1920, special aqent M.J. lavis
reported tbat Frankfurter "undoubtedly accepted" fcrmer President
Roosevelt's "characterizations as a Bolshevist and Anarchist as
mere complimentary than defamatory." Eavis report, 12/17/20, BI
file BS 213251.
26) Nolan report, 5/17/20, BI f ile CG 120964. The
anti-semetic overtones in this statement were ret unique. In
reports atcut Frankfurter and his involvement in the ACKA, agents
placed the blame for strikes and worker militancy on the
activities cf "Hebrew agitators*'. In the same report, an aqent
described the membership cf the ACWA as ”50 9f Jess, the balance
beinq Lithuanians, Italians, and Poles, with hut a small
percentage cf Americans." The question cf whether the ethnics had
themselves become citizens of the United States does net seem to
have bothered the BI agent. Jewishness easily translated into
radical or "un-American" in the minds of many Eureau employees.
In a report ir 31 file OG 366194, Hccver ordered an investigation
of Eamon BeValera, President of the Irish Republic who was a
citizen of both the United States and Ireland. EeValera was in
the United States raising funds for the cause of Irish
independence. Hoover wanted to find out i f reports th at DeValera
was "a Spanish Jew" were true. DeValera's dossier was kept in a
"confidential file" which may have been in the "personal and
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confidential files" destroyed ir Say 1972 after FBI Director
Hoover died. See Athan Ih ech aris, spying cn Americans. 157;
Cngar, FBI, 496.
/ 27) Nolan report, 5/17/23; Kelleher report, 5/26/20, El
f il e OG 120964.
28) Kelleher rep o rt, 5/26/20, BI f i l e 12 C £ £ 4; Eurke to
Kelleher, 5/20/20, El file OG 120964; see George Nestcn
Anderson’ s dossier, El f il e OG 379228.
29) Grilles report, 6/5/20, BI f il e CG 120964; Hurley to
Hoover, 5/11/20, BI f i l e CG 120964; Baker, Frankfurter. 83-84.
30) El f ile BS 2CS115. See Arthur Sutherland, The lav at
Harvard: A History of Jan and Ideas (Cambridge, 1967), 254-58,
for an account of the incident. Also see Jerold Auerhach,
"Patrician as libertarian: Zechariah Chafee, Jr. and Freedom cf
Speech", Nejw England Quarterly 42 (December 1969), 511-31 ;
guoted in Auerbach, "Eatrician", 524-25. Also see, Peter Irens,
"’Fighting Fair': Zechariah Chafee, Jr., the Department of
Justice, and the ’Trial at the Harvard Club’," Harvard Laj;
Beview, 94[April 1981), 1205-1236.
3 1) Hev Fork Times. January 28, 1920, 2; Eew York sun,
January 28, 1920, 1.
32) IHR, Beport Upon the Steel s t r i k e cf 1919 (Nev York,
1920), 3- 18. Panunzio to Ames, 6/19/20, BI file ES 204048;
Justice Department tc Eanunzio, 6/30/20, El f ile BS 204048. C.H.
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Eanunzio, lh€ Deportation Cases of 1919-1920 (Sew York, 1920).
The report is reprinted in "Charqes of Illeqal Eractices",
Hearings. 311-41.
33) Hazer report, 3/27/20, El f ile OG 341677; Lencn report,
4/7/20, BI file BS 207588.
34) Lencn report, 5/6/20, El f il e ES 207586. On December
23, 1920, aqent Edward Arderscr investigated Panunzio and
interviewed a Catholic priest ard the pcstmaster and police chief
of lihite Elains, H.Y. Eecause Anderson "did not deem i t
advisable" tc interview individuals more intimately acquainted
with Panunzio, the investigation "was discontinued pending the
receipt of further instruction." Andersen report, 12/3C/2G, El
f ile BS 207568. $
35) lencn Beport, 5/6/20, El f il e ES 207588; IBM, Beport
Upon the Steel Strike of 1919 (New York, 1920). The Bercrt
claimed that the Justice Department unduly relied cn "cooperation
with corporations' secret services (i.e., private detectives and
later spies)," agencies, the I KM concluded, that "do not seem to
serve the test interests of the country." Bercrt Upon the Steel
Strike , 18.
36) Quoted in Lowenthal, FBI. 265. See New York Times.
November 6, 1920, 12, concerning the reorganization cf the IWM
and the FCCCA.
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37) Lamfc to Hoover, 12/24/20, El f ile ES 204048; Hoover tc
Grimes, 12/28/20, BI file ES 204048.
38) This suspicion of reliqicus and racial minorities could
explain why the Eureau employed very few Jewish and re hlack
special aqects until the 1970*s. See Onqar, FET, 327; Donner,
120- 122.
39) In November 1875, former a s sis ta n t chief of the FEI,
William Sullivan made the follcwinq deposition; "Durinq the ten
years that I was on the U.S. In telliq en ce Hoard. . . never
once did I hear anytody, includinq myself, raise the question:
•Is this course of action which we have aqreed upcx lawful, is it
leqal, is it ethical cr moral?' The one thing we were concerned
about was this; will this course of action work, will it get us
what we want, will we reach the objective that we desire?" flthan
Theoharis, Spying on Americans. 229-30.
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Resistance and Resolution:
Reform cf the B I's Intelligence Operations, 1920-1924
Broad criticism of the deportation raids necessitated
official review of the federal government's anti-radical
prcqrams. as Zechariah Chafee observed: "Unless the methods
used by the Justice Eepartment are severely condemned by Congress
and the American pecple, they will be repeated in future
emergencies." and, since the El had played a leadirq rcle in
formulating ard implementing the Justice Eepartment's internal
security policies, the debate that followed addressed again many
of the same ccnstituticnal and administrative ouestions left
unanswered by Congress and the Attorney General ir 1908 when the
Eureau was first orqarized. Acd there were many issues. Could
the fed eral government prevent the BI from violating the rig h ts
of individuals without placing debilitatinq restrictions cn the
Eureau? If rights were violated as they were in the deportation
raids, how corld persons seek redress? Here the Attorney General
and the BI chief legally responsible for El violations of
individual rights? If they were, could they be held perscrally
liable for compensatory and punitive damages: Did the Eureau
have the. authority to investigate ncn-criniral, political
197
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activities? If not, when could the Eureau initiate an
investigation cf possible criminal conspiracies? 5as it
legitimate tc scrutinize revolutionary organizations whose goal
was the overthrow of the ex istin q economic arc gcveznaental
institutions? Could the Bureaus investigative authority be
effectively controlled without compromising admittedly sensitive
information? If sc, would this be accomplished through
administrative reform or legislative measures? And, finally,
would congress and the EresideEt agree on a p a rtic u la r proqram to
achieve an elusive balance between order and liberty?[1 ]
Host reformers understood that solvinc the problem cf
illecal surveillance and developing a policy on domesstic
intelligence would not be easy. A conservative Cctqress and the
security-ccEScions Hilsoc and Hardinq Administrations sere not
inclined tc support any le g is la tiv e program which would have
re stric te d the qovercmert*s pcwer to in v estig a te "communist
subversion." luring the early 1920’s, for example, Congress
en th u siastically embraced the National Origins Act which set
discriminatory quotas cn immigration from eastern and southern
Europe. Many Americans autom atically assumed th at radicalism was
part of the racial heritage cf immigrants from these areas. At
the same time, the Harding Administration promoted programs such
as the "American Plan," a blueprint, for corporate unionism and
the open slcp. The Hardinq Justice Department also employed the
El to bust unions, break strikes and intimidate militant labor
crqanizers. These obstacles, however, did net prevent a series
of vigorous judicial and legislative challanges, directed in the
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f i r s t instance against A. Mitchell Falmer and the E l.[2]
From early 1920 throuqh March 1921 Attorney General Palmer
refused tc entertain the possibility that the Fed Eaids had in
any nay violated the rights of radical aliens who had been
targeted fcr deportation. "I apologize for ncthinq that the
Justice Department has done in this matter," Palmer insisted, MI
alory in it. I point with pride and enthusiasm to the results cf
th eir work; and i f . . .some cf my agents out in the fie ld , or
seme of the agents of the Department of Labor, were a little
rough or unkind, or shcit cr curt, with these alien agitators
whom they observed seeking to destroy their homes, their religion
and their ccurtry, I think it might well be overlooked in the
qeneral gcod to the country which has come from it.” Attorneys
fcr several victims cf the raids, realizing that a fair
departmental review cf their evidence was impossible, and having
wen the f i r s t round in some of the habeas corpus hearings,
troucht suit aqainst government officials for false arrest and
wrongful death. Since th is was the f i r s t time that persons had
filed for carnages fcr wrorqs stemminq from El operations,
decisions in these suits would determine whether illegal El
activities were actionable.[3 ]
In the first of three suits, Max Hclder, a Washington, E.C.
waiter and an official in the Hotel and Bestaurant Workers*
Onion, sued El chief William Flynn and Lawrence O'Eea, ar agent
with the Hailway Administration for false arrest and for
conducting warrantless searches at bis Washington flat, on June
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13, 19 19, eleven days after anarchist tents exploded at the hemes
of several prominent government officials, including attorney
General Palner, O’Dea arrested Holder after C'Dea’s brother,
Steve, informed him that Holder had threatered tc bomb the
Raleigh Hotel if the marageirent did net reach a settlem ent with
striking workers. After the Justice Eepartnent expressed an
interest ic guesticniEq Hclder ir connection with the June 2nd
bombings, C 'Tea turned Holder over to the E.C. pclice whc held
him for a week at their First District Station Horse. Later that
same day, C’tea broke ir. tc Holder’s apartment, searched the
premises and seized le tte r s and personal documents and papers.
He warrant was ever issued fcr Holder's arrest or for the search
cf his apartment. Cn June 21, unable tc produce any evidence
implicating Holder in the bombings, the pclice released
Holder.[4 ]
In a complaint filed on July 10 with the Supreme Cccrt cf
the D istrict cf Columbia by his attorney, Jackscn Ralston, Holder
alleqed that following his arrest, he was confined in a room
infested with vermin, was not civen sufficient feed or water and
was refused permission to contact his family or friends. As a
consequence, "(Holder) was compelled to undergo and underwent
qreat mental sufferinq, anguish, humiliation and tcdily pain and
suffering. . .(and) le st the employment in which he was
enqaqed." Ralston set forth daaaqes of $25,000. Cn Auqust 5,
C'Dea and Flynn pleaded not quilty . Durinq the January 1920
trial, chief Flynn denied any personal or El involvement in
Holder’s arrest and subsequent incarceration.. Flyrn's testimony
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contradicted that of a E.C. police inspector she claimed that
adder "was beinq held by orders cf the Department of Justice."
Blynr explained that C*Dea was acting on his own and that he was
net, nor had he ever been an employee of the Ju stice Department.
Cn January 7, the jury dismissed the suit against Flynn, but
awarded Hclder ShCC.CO in compensatory daraaqes from C’Eea. A
year later, Jcdge Walter KcCoy dismissed the defense metier fcr a
new trial which claimed that the verdict was contrary to the law
and the weiqht of the evidence.[5 1
Ehcouraqed by the Hclder decision, attorneys fcr the widows
cf two men who had died while in the custody of the Justice
Department and the Immigration Bureau filed suit aqainst the
Attorney General, the commissioner General of Immiqration and
several others for their role in the arrest and detention cf the
deceased. Eecause these cases could help to establish an
important precedent (the decision in the Holder case was still
quite limited), they assumed an importance larger than specific
issues involved. Since the beqinninq cf the First First World
War, no qcvernment official had been reprimarded, fined, cr
imprisoned fcr violating either the civil cr political riqhts of
dissidents. The few judqes who had fcutd fcr defendants in
sedition cr espionaqe cases did net rule that they were entitled
to compensation even if the government had a rb itra rily deprived
defendants cf riqhts befcre, durinq, or after the arrest.
Eulinqs favorable to the plaintiffs in these two cases would
demonstrate a new willirgress cn the part of the courts to hold
government officials accountable for policies cr actions that
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violated the constitutional riqhts of the accused. On the other
hand, if the court's found for the defendants, policy Bakers
vculd te free to ignore "due process” and to conduct political
investigations without regard to constitutional values. [6 1
On February 18, 1921, Walter Nelles, a former counsel to the
National Civil Liberties Bureau who had represented several
individuals charged with sedition, filed a conplaint fcr Mrs.
Maria Salsedc in the Federal district court in New York City.
Nelles alleqed that attorney General Ealmer, El chief Flynn,
d i s t r ic t superintendent Georqe Lairt, and special agents Charles
Skully and John Francisco were responsible for her husband's
death. On March 7, 1920, Skully and Francisco had taken Salsedc
into custody, without a warrant or even a specific charge against
him, and brought hin tc the BI's Manhattan headquarters on the
Uth floor cf 15-21 Eark Bow. Salsedo, a Brooklyn typesetter whc
had emiqrated from Ita ly in 1911, was employed at a p rin t shop
owned by Botert Elia. Ihe BI had ascertained that type-face
found a t E lia's shop matched the p e c u lia ritie s fcurd cr an
anarchist thrcsaway, "Plain Words", pieces of which had been
found near Attorney General Palmer's home fcllcwirc the June 19 19
bombing.[7 ]
From liasbinqton, chief Flyrn ordered Salsedo and Elia held
for guesticning. What transpired over the cccrse cf their
detention which lasted abcut tvc months has remained a matter of
dispute. El officials consistently maintained that Salsedc and
Flia voluntarily turned state's evidence, requested that the BI
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provide then with protection and a suitable place to live until
the case was resolved. Accordinq to this story, the New york
office allowed the tvc men to retain legal ccunsel, receive
visitors, take walks, and were adequately fee and enicyed
comfortable sleepinq cuarters. In early May, Salsedo fell into a
deep depression. Although officials admitted that he was visibly
disturbed, they characterized his condition as unrelated tc his
unofficial iicaxceratier. Salsedc, the official explanation
continued, suffered from acute anxiety because he feared a long
prison term. "He was never mistreated at any time", the El
official report later stated, "and never struck, intimidated cr
threatened."! E ]
In any event, Salsedo's depression worsened. Elia later
confirmed that Salsedc "would lie groaning and commenting all
niqht. He complained continually cf pains in h is stomach and
head. He was always nervous. He refused absolutely tc eat."
Around 4 a. i. on Monday May 3, Salsedo leaped from the window of
the room he shared with Elia, falling fourteen stories to his
death on the street below.[9 1
Despite El official denials, the dark side of Salsedo's
confinement was the basis of Maria's suit agairst falser and
others. Nelles argued that Salsedo was the victim cf often
brutal mistreatment, at times sc cruel that Salsedo had no other
way out than to take his own life. Nelles brief set out
graphically the treatment he received while in the BI's custody:
The El agents "lawlessly and wrongfully arrested ard seized his
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body and held him in confinement anc captivity without process of
lav and aqaicst his will; they assaulted him; they inflicted
upon him tlcws and grievous bodily injuries; they subjected him
aqainst his sill to repeated interroqaticns and inquisitions. .
. tortured the said itdrea Salsedc mentally by the following
acts of conduct; they threatened to inflict upon him grievous
physical injury and death; and to cause tin prosecution,
conviction and imprisonments fcr a crime of which he was
innocent; and they made and broke repeated promises to set him
free; they caused bin tc believe and he did believe that they
had present pcver and ability to inflict upon him the said vrcnqs
with which they threatened him ard they caused him to be and live
in constant fear.'T 10]
In a statement -drafted for the Sacco-Vanzetti defense
committee (the two men were then cn trial for murder in
Kassachusetts) , Elia described the El’s treatment cf Salsedc, the
only time he did sc under oath. On March 6, the day after
Salsedo's arrest, BI chief William Flynn traveled from Washington
to New York to supervise the interrogation cf Salsecc- Following
the first session with Flynn and several other agents, Elia
recalled; "Salsedo's face and forehead were bruised frcm the
beating he received. Ee had red spots and scratches cn his
cheeks anc temples ard his eyes were vacant. He was depressed.
I never saw him normal during all the times after that we were
together."fill
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Almost forty years la te r , ir ai interview with the
journalist Bred Cook, Bichard Bohman verified Flia's account.
Fohman, then a reporter fcr the sccialist daily newspaper, The
New York C all, v isited the B I's Park Bow headquarters in an
effort to qain an interview with Elia and Salsedc. As he entered
the outer office, Rchnan "became aware cf cries cominq from an
inner o ffice. As I walked on, I could hear these te rrib le c ries,
subhuman cries cf a irar in terrible pain, suddenly I barqed into
an inner room from which the cries were cominq. Salsedc was
slumped in a chair, and he looked as if every tone in his body
was broken. Two of three aqents were standinq over him, hittinq
him with blackiacks. "[ 12 ]
On February 2h, 1521, the defendants demurred to the
complaint "upon the qround that it did not state facts sufficient
tc constitute a cause of action." Four days later, federal
d is tr ic t judce Martir Marten dismissed the su it cn those qrounds
and orderd an investiqation of Nelles because he had submitted an
affidavit which accused federal aqents of misconduct. Manton
declared that "(p)ublic officials should net he subject [to
slander) sc lecsely constructed." Several weeks latex, assistant
U.S. Attorney Francis Coffey, whc had led the investiqation,
advised the Justice Department aqainst charqirq Nelles with
perjury. [Ill
Nelles appealed Wanton's decision and on December 1h, 1921,
the Circuit Court of Appeals affirmed, 2-1, Marten's judqement.
In his majority cpinicr., Judqe Henry W. Roqers ruled that the
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plaintiff had to shew that the defendants actions sere the
immediate cause cf Salsedo's suicide, not merely a remote or
proximate cause. "It seems to this court that a new and
independent cause intervened between the wrong and the injury,
and the suicide was not the natural and proballe ccnseguence
ofthe wronqful acts of the defendants and was net cue which the
deferdants coght tc have fcrseen in the light of the attending
circumstances, "f 14 1
In his cissent, Judge Julius H. Hayer asserted that the
case should be tried aid the facts left to a jury to decide. The
ccniicn law required proximate, not immediate, cause and given the
opportunity the plaintiff might be able to show that the suicide
was indeed the natural result of the defendants* actions. "If a
man is confined against his will fcr over two months and
continuously and qrievously injured, and, at the same time
continuously threatened with death," he queried, "can it be said
as a matter cf law, that the werngdeer should net have foreseen
the infliction of such wrongs continuously ever alonq period of
time miqht naturally ard probably lead to loss cf mind and that
self destruction *ight follow?" Salsedc and her attorneys decided
aqainst aE appeal tc the Supreme Cccrt.Mfl
In the final suit brought against qovernirert cfficials for
acticns related to the El's anti-radical cairpaicn, Selig Brez,
attorney fcr firs. Mary Harcinah, filed a complaint in the
Supreme Court of the D istrict cf Columbia, alleginq that her
husband iMichael, died cf pneumonia as a resu lt of a conspiracy
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between the attorney General and the Commissioner General of
I a mi qr at ion. On January 3, 1920, Passaic, N.J. police
officiers, acting on the orders of the Justice Department,
arrested Harcinak at 1 a.a. at his home on Jackson Street,
according to the brief, the police stowed neither an arrest or
search warrart, seized Harcinak's papers includinq becks,
letters, pamphlets ard ether personal documents, and "dragged
(Harcinak) cut of his hcuse, without qiving hia an opportunity to
provide himself with proper clothing."T 16 ]
Several hours later. Immigration Inspector Hilliam Fader
questioned Harcinak and ordered Harcinak depcrted fcr his
"memtershiF" ir the Communist party. Special Sqent-in-Charge
(SAC) Frank Stone later reported that the BI first became aware
of Harcinak's "party affiliation" in December 1919 after Passaic
pclice turned over tc him a membership l i s t taken from a New York
party organizer arrested for violation of state sediticr laws.
"My information at the time was that (Harcinak) had actually
organized and was one one of the most active spirits in the
Communist party.", ard fcr that reason, Stone had signed an
affidavit fcr a warrant for Harcinak’s arrest.[17]
From the time of his arrest until his death several weeks
later, Harcirak ste a d fastly denied party membership. In a
deposition taken by the New York attorney Charles Becht, Hrs.
Harcinak testified that Hichael had been a member of the Polish
Socialist party. Information in the BI’s own files and available
to field agents at the time of Harcinak's arrest confirm her
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version of the story. Contrary to Frank Store’s 1921 report
prepared fcr the defendants, Marcinak’s name appears only crce in
the El f ile s and that tine cr a Communist Party membership ro ster
prepared by Stone in December 1919 in anticipation of the mass
arrests in early January. It did net appear on a separate list
of "active" party members in the Passaic area.[18]
On January 3, the Iamiqration Eureau transferred Harcinak to
Ellis Islarc aboard the steamer Thomas c. M illard, to await the
final deportation orders. Mary Harcinak located her husband’s
whereabouts cn January 5 and visited him several times, findinq
that Michael was kept in a room with 530 ethers, "which was
inadequately beated ard ventilated and with an insufficient
supply of blankets." or January 16, Immiqraticn officials sent
Mary word that Michael had contracted preumcnia and had been
hospitalized. On Mcrday, January 19, Harcinak died.MS]
Michael Marcinak’s arrest and subsequent death left the
family without any source of income. P ricr tc his a rre s t,
Marcinak had wcrked at a Passaic tex tile mill where he earned
about $30.00 a week. His wife worked the liiqht sh ift at a
worsted spinning mill in Garfield, N.J., but was forced to leave
her -job follcwinq Marcinak's arrest in order tc take care of her
two children, Cheslov, 3, and Snna, 1. The three survived fcr a
year on itcrey given tc them by the Rcrkers' Defense Council and
the Passaic Overseer of the Poor. In the suit, Mrs. Marcinak
claimed damages of $350,000 fcr her husband’s a rre st, death, and
less of income.[201
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On Marcl 3, 1921, attorneys fcr Palmer and Caminetti filed a
mcticn to gnash the writs ard vacate charges filed against the
defendants. The suit languished in the court fcr the next five
years, and fitally cr September 30, 1926, the court dismissed the
suit withoct proceedings.[211
Even lefcre the courts threw out the Salsedc suit on
technical crcurds aEd failed tc hear preliminary arguments in the
Harcinak case, civil libertarians expressed dccbts that the
federal law afforded individuals sufficient protection against
official actions that deprived persons cf their constitutional
rights. Tcllcwing the deportation raids, Zechariah Chafee
asserted that "the extremes to which partisan fervcr had led some
prominent officials can cnly be acccunted for by their knowledge
that no legal means are available against them.*1 Speaking to this
same point, Ernst Tteund urcte: "The danger to (American)
institutions from anarchistic doctrines seems remote and almost
visicnary; the dancer from an endue growth of adm inistrative
power is much more real. As a student of administrative law for
over 25 years I believe that there is no doctrine that deserves
tc be more vigorously enforced than the doctrine that in the
furtherance cf public interests adminstrative discretion counts
fcr more than the law." In a speech delivered befcre the Saryland
Bar Association, ard entered into evidence during the
subcommittee hearings, John Lord C’Brian, the fcrmer Justice
Department official in charge cf security investigations, argued
that " (a)dministrative government is not reponsitle government."
"(I)t is ret the wcrk, the zeal, or the errors of public
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o ffic ia ls new in office th at matters so much," he warred his
audience, "it is the fact that without remcrstrance we are
tolerating practices and lendinq the countenance of approval to
theories of law which in the lonq run can only have the result of
uncermininc the -judicial power, the la s t repository of lib e r tie s
in America. "[ 22 ]
In early 1921, in a letter to the Senate subcommittee
investigating the HPGL's charges, Harlan Fiske stone, then dean
of the Columbia Law School, explained why he supported
legislation tc protect Constitutional rights from official
lawlessness: "It is inevitable that any system which confers
upon administrative officers power to restain the liberty of
individuals without safeguards substantially like these which
exist in criminal cases and without adequate authority for
-judicial review of the action of such administrative officers
will result in abuse cf power and in intolerable injustice and
cruelty tc individuals." Judson King, secretary cf the NPGL,
aqreed with Stone and in a separate statement prepared fcr the
subcommittee wrote: "The present attorney qeneral w ill soon
relinquish office, hut the precedents he set up will remain.
Shall it he said that Congress, by its silence, approves the
precedents and sanctions the policy of the law enforcing arm of
government to itself become lawless?"r23 ]
Seme neuters of congress shared this same concern, a l i t t l e
ever a month after the Bed Raids, on February 23, 1920,
Representative Halter Huddleston, a Eirminqham, Alabama Democrat,
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introduced legislation that would have redefined official
malfeasance- Huddleston, an outspoken defender of the riqhts cf
labor, ccrdemned the deportations arrests as an illegal attempt
to "intimidate workers as a class", undertaken "tc strike terror
into the heart cf ever-? foreigner in this country and to make him
feel that he dare not claim hiqher vaqes or to take Fart in a
strike fcr fear he would be sent tack to seme bloody land where
his life would be forfeited." The bill proposed that any official
of the federal goveirnent who willfully deprived or attempted to
deprive "any person of his lawful freedom of speech, cf press, of
assemblage, cr of due process cf law" be dismissed from office
and face a maximum ten years and $1G,O0O fine. Eelievinq that
the January raids resulted from an absence of checks on
administrative usurpation, Huddleston recommended that
malfeasance should also include any attempt tc 11 intimidate, put
under duress, spy upcr, eavesdrop, watch, follow or pursue any
Ferson who is in the exercise of his lawful riqhts. . . (or)
willfully CFer., expose, withheld, delay, destroy cr deface any
first class mail matter cr any mail matter of any class." If
enacted, the legislation would prevent the admirstraticr from
pursuing policies that threatered tc violated individual riqhts.
Despite the need for reform of administrative procedure, the
House Judiciary Committee did net held hearinqs on the Huddleston
measure and the proposal died in ccmmittee.T24 ]
On April 13, 1921, several weeks a fter the Seiate Judiciary
Subcommittee completed its iECuiry into the KEGL'S charges,
Senator William Borah introduced a bill which proposed tc protect
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Constitutional privileges and immunities. Drafted ty Alfred
Eettmen, a fcrmer special assistant to Attorney General Thcmas K.
Greqcry, tte till provided fcr a maximum 5 year/310,000 fine for
any government official who "injures, opresses, threatens, or
intim idates any persct i r t the free exercise cr enjoyment of any
riqht or privileqe secured cr guaranteed to him ty the
Constitution." A similar penalty would he levied aqainst any
official whc searched cr seized property cr entered into a
"house, office, room, or any premises of any person" without a
proper judicial warrant, cr who obstructed, interferred or
brcke-up a meeting." Upon introducing the till, Borah declared
that unless the congress acted positively tc protect the riqhts
of all persons, the Constitution itself wculc be placed in
jeopardy, "liere is no one whose duty it is to fce more
scrupulous cf the obligations of the Constitcticn or more
reqardful cf the Constitutional riqhts of the citizen than the
officer intrusted for a brief season with great authority.
Otediance tc the law is the primal pillar upon which free
institutions rest. Shen this spirit is broken down, law itself
becomes in a sense a mockery, "f 25 ]
Supporters of the Bcrah bill hcped that the Senate Judiciary
Committee would adopt, without further delay, a report prepared
by Senator Thomas Walsh. Burinq the war, Walsh, a fcrmer U.S.
Attorney frcn Montana, had been a strcnq supporter of the Wilson
Administration's efforts to suppress the IWW and ether radical
oraanizatiens. Following the deportations raids, his views
changed. The report found that the Ju stice Department had
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213
repeatedly violated the constitutional riqhts cf the accused and
had illegally intervened in the deportation process. In his
introduction, Walsh made it clear that he had no sympathy for
those who "rancorously array themselves aqainst all qcvernirent
and cultivate faultfinding with its ministers as a fine art,”
Nevertheless the evidence persuaded him that the "great majority
of those arrested, yea, even cf those deported, were perfectly
harmless, deluded individuals, many of them unable to speak a
word of Inglish. " Walsh recommended th at congress amend the
ImmiqraticE lav "to make Tit] conform to the plain mandate of the
C onstitution." Walsh also recommended that the rev lav should
specifically exclude the Justice Cepartment from interverinq in
the administration cf the Immiqration lav to prevent future
administrative confusion. The tone of the repcrt indicated that
literals vtc had supported political repression durinq the war
and the early post-war period were now ready tc embrace the
litertariar position that they had previously condemned as naive
or unpa trio ti c . [26 1
Althouch the NPGI and the ACID picked up tie support cf
Walsh and ether likemirded senators, several prominent members of
the Senate Judiciary Committee continued tc support the
adminstraticE•s position and bottled up Walsh’s report in
committee for almost two years. The most influential was Thomas
Sterling cf South Dakcta, sponsor cf the peacetime sedition bill
that the Senate had approved ir January 1920., As chairman of the
subcommittee which investigated the NPGL'S charqes. Sterling
prepared a repcrt which endorsed the Attorney. General Palmer’s
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arqument that the department's policy was dictated fcy the
overriding need to protect the n atio n 's in tern al security.
Palmer, appearinq before the Judiciary subcommittee, testified
that "in a qreat noveireEt for the overthrow of the government of
the U.S. , sponsored and adhered to by thousands cf alien
agitators, directed and enqineered by the quidinq hand of Lenin
and Trotski, I believe that it was the duty cf the department of
Justice, the branch cf the qovernaert tc whom the imerican people
lcok for the protection of its institutions and government, tc
move with dispatch." Sterling answered Walsh's charqe that the
Justice Department had nc riqht to investiqate possible
violations cf the Immigration laws, by findirc "nothinq tc
condemn ir the cooperation of the Department of Justice with the
Department of Labor in apprehendinq any number of aliens whose
beliefs arc practices rerdered them subject to deportation under
the law." toreover. Sterling came across nc evidence that the 31
had deprived "any person whomsoever of any leqal or
constitutional right. "[ 27]
While Sterling cculd net get a majority of Judiciary
Committee members tc support his findings, he successfully
frustrated Walsh's and Eorah's efforts tc mcve ahead on the
proposed lecislaticr. on February 5, 1923, almost two years
after it had completed its hearinqs, Walsh asked the full Senate
to discharqe the subcommittee from farther ccrsiceraticn of the
question atd tc prirt bcth this reports in the Becord. The
Senate approved this request withect cbjection.f281
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It would be incorrect tc conclude that opposition from
conservatives in the House and Senate Judiciary committees alone
explains why the Huddleston and Borah hills failed tc attract
sufficient support tc warrant committee hearinqs cn the subject.
I t i s lik ely that the 66th Conqress 11919-1921) shared the Senate
Judicary Committee's ambivalence toward federal suppression of
radicals. Stile many ccnqressiren continued to believe that El
anti-radical investigations were necessary, many ethers wanted to
somehow restrain the Justice Department’s authority. In December
1920, for example, the Senate voted to investigate the NEGL's
charges of illegal department activities, even though it had
wholeheartedly endorsed the depcrtaticn strategy less than a year
earlier. This shift from support to skepticism can largely be
attributed tc the Justice Department’s contempt for "due process”
and irrefutable documentary evidence that some irnocert pecple
had teen brutally treated.T29]
Yet while the red raids convinced many Pmericans that
summary ju stic e and o f f ic ia l viqilantism had no place in American
society, nc consensus fcrued arcund any one solution to the
problem cf administrative abuses. Those whc favored a
leqislative remedy such as the Huddleston and Ecrah proposals
remained in the minority. It is likely that amonq those whc
became disil lusicned with Palmerism, many came to believe that
the limited effect of the deportation raids showed that the
system worked. Even tbcuqh the Justice Department had initially
violated the rights of radical aliens and ethers, the Attorney
General was uratle to complete this purge because his moves were
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successfully checked by Assistart Secretary Post. Believing that
there was nothing seriously vrcrg with American institutions or
las and that the bureaucracy was self-ccrrectiEc, they did net
think that furdamental refcrm cf the Immigration las or the El
*as necessary. Finally, because many identified tie depcrtaticn
raids with a particular Attorney General, thus the appelation,
"Ealmer Baids", they assumed that the new Attorney General vculd
be less inclined to violate the law in order tc protect the
nation's security.f 30]
In this faith, they were to be disappointed. neither the
Wilson or the Harding administration supported tie Huddleston or
the Borah proposals. Harding's Attorney General, Harry
Daugherty, shared Palmer's aversion to legislation limiting
Justice Department pcser. Fcr both men, such action was
completely contrary to the department's stated objective tc rout
the reds at almost any cost, since anti-radicalism received the
department's highest priority, both men repeatedly cppcsed any
measure which wculd have tied the E l's hands. Futhermore,
neither ever publicly admitted that the problems addressed by te
legislation even existed. Their argument remained that no
serious riqhts violations had ever been committed in security's
name. In view of the Wilson and Harding administrations'
opposition to the measures, it is not surprising that
congressional liberals and progressives failed tc garner enough
support for even these modest refcrm s.[311
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Congressional failure to conduct a serious investigation of
the BI* S anti-radical investigations had sericus immediate and
long-term ccnseguences. First, Congress never learned of the
breadth of El political surveillance during the early pest war
years. Corqress accepted at face value the Attorney General's
reports which claimed that El investigations were linited tc
violations cf the law and that cnly fringe groups and dangerous
radicals were the legitimate subiect of BI investigations. If
there were suspicions that mainstream political figures and other
prominent Americans were the targ et of surveillance, Congress
took no acticn to curb these intelligence activities. Second,
its refusal tc force the BI tc relinquish any claim the El might
have to conduct purely political investigations allowed the
Eureau tc continue i t s widespread p o litic a l surveillance.
Congressional inaction at this critical jurcture demonstrated
that the Ccrqress was either unwilling or unable tc oversee the
a c tiv itie s cf the BI aEd enccuraqed the notion that the Eureau
was above the law, sut-ject only to its cwr. set of rules and
regulations.£ 32]
*****
In November 1920 barren G. Hardirq, Republican candidate
for Presdident, overwhelmingly defeated his Democratic opponent,
James M. Ccx. Harding received ever 60? of the total popular
vote and 404 electo ral votes, since Republicars and Democrats
generally acreed that the federal government should continue to
monitor the red menace, issues related tc internal security had
little effect cn the cutccme of the general election. Indeed,
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candidate Harding had tried tc defuse the issue by proclaiming
that the threat of radicalism had been consistently overstated by
Wilson's Justice Department and that "too much has teen said
about Bolshevism in America." Given Harding's campaign rhetoric
many hoped that when the new administration tcck cffice in Harch
1921 that the new Attcrney General would restore public
confidence in the Justice Department. Harry Daucierty cf Ohio,
however, had little iEterest in depclitici 2ing the department.
For the BI, it was business as usual. As noted above, Daugherty
shared Palmer's conviction that radicalism threatened the
nation's security. Consequently, Daugherty believed that the
Justice Department should use its resources tc suppress radical
ideas. Tc achieve this, the Attcrney General dismissed El chief
William Flynn in Harch .1921 and appointed his close friend,
William Burns directo r cf the El. As head of the Burns
International Detective Agency, Burns had earned a national
reputation as a union-tuster and was one of the country's premier
red-hunters. Ten years earlier, fcr example, Ecrns had teen
instrumental in the successful prosecution of the McNamara
brothers fcr their rcle ir the dynamiting of the Dos Angeles
Times. Giver Burns's background and flagging public support of
the El's anti-radical programs, a more inappropriate choice would
have been hard to find. James Giglic, Daugherty's biographer,
calls the Eurrs appcirtsent his wcrst. Under Burns's direction,
the Bureau equated criticism of the conservative political order
with sedition, and the drive aqainst liberals aEd radicals which
Palmer had initiated it 1919 continued. Ecrns, obviously
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impressed with the wcik cf GID chief Hoover, promptly promoted
Hcover to assistant chief in charge of general intelligence.f33 ]
Daugherty, Burns and Hoover sere net alcne in th eir
intolerance cf political dissent. Despite the public's reaction
against "Ealaerism", anti-radical nativism remained an important
and powerful political force in the United States throughout the
1920's. Voluntary organizations such as the American Legion and
the National Security League and business grcups lik e the
National Civil Federation and the National Association of
Manufacturers called cn the Harding Administration to champion
"100? Americanism" and join the fig h t against later unions and
radical political organizations. Although Justice Department and
El officials understood that the appropriations law authorized
the Bureau to investigate possible violations cf federal lav,
Daugherty, Eurns, and Hcover encouraged Bureau agents to conduct
general intelligence investigations of practically every liberal,
progressive, aid radical organization in the country- As Ann
Mcrrissett Iavidon later wrcte: "Even the Cuakers scared the
FBI. "[34 ]
By 192 1, the GID had established a vast netverk of informers
in left-leaning political organizations whc provided the Bureau
with first-hand infcrmaticr about the activities of hundreds of
organizations and thousands of individuals. Through its
informers, the Bureau had access tc account books, membership
lists, and minutes cf meetings conducted at both the local and
national level- The Eureau's Euffalo field office, for example,
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knew that the 125 members of the Socialist Earty cf Buffalo who
vere of Italian descent had paid monthly dues totaling $62.50,
half of which was sett cn to the national and state organization.
The same report notified the GIC that the Buffalo chapter of the
Communist Party earned $20.00 ic Bay 1921 sellinq copies of their
newspaper "Workers Challenge". Cn Auqust 31, 1921, special agent
O.F. McBevitt forwarded a copy of the minutes cf the "district
Executive Ccaxittee D istric t 3, Communist Earty of America" and
a report from "a colored member of the IWW" which described
efforts tc crcanize a strike amcnq Ehiladelphia's stevedores.r35 ]
Colleges and universities came under similar scrutiny. In
early June 1921, special assistant to the Attorney General K.W.
Grimes arcezec the Bcstcn field office tc prepare a report on
radical activities in educational institutions in the New Enaland
area. On Jure 8, assistant District Supervisor William West
filed his report on the activities of students and faculty
members at Harvard, Wellesley, Massachusetts Agricultural
College, Simmers College and the University of Vermont. West
reported that Harvard employed Earold Laski whc had cose "tc the
notice of Jthe Bcstcn BI cffice) cn account of his radical
utterances and activities." Another Earvard faculty member, Jacob
Bronfeneretc>, "had expressed himself favorable tc anarchist
doctrines." A Professor Newell a t Wellesley College had "offered
a course in anarchism, in which the theories cf Kail Marx, lenine
and Trotzky were tauqht tc a grcuF cf twenty or thirty students.
a ll cf whom subscribe to ’THE NATION', ’THE WCEKEF’ and
* EXTZAEACHEES'." Professor Eva S tilla , West reported, had
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addressed the Fabian Society of Boston "cn the subject cf
’Cooperation and the Hew Order1, in which she outlined the
establishment cf cooperatives by working men and the use of same
as commissaries during strikes."f36 ]
Althouch the FEI has always denied allegations that it had
ewer investigated Congressmen fcr political reasons, newly
declassified files show that the Bureau regularly placed
prominent senators and representatives under surveillance in the
early 1920’s. Many of these records were either refiled or
destroyed scoetime before June 1, 1943 and are net available in
the national Archives collection. Nevertheless, it is possible
tc piece together part of the story from the indices tc the files
which are aveilable and from ether sources. In the four months
between April and July 1921, El aqents filed nc less than eight
separate reports on the activities cf Senator Joseph France, an
early critic of the depcrtaticn raids and an advocate of U.S.
recognition cf the Soviet Onion. In early May the GID prccured a
copy of a telegrair France had sent frcm londcn following his
recent tour of the Soviet Onion. On May 21, 1921, special agent
H.J. Lencn attended a meeting of unemployed workers which was
addressed hy France and fcrwarded a copy of his speech to the
gathering. Cn July 30, the Chicago field office reported that
France plarrec to address the Chicago Federation of labor on
labor Day. In March and April 1921 BI agents "shadowed" Senator
Robert LaFcllette and filed reports outlining his "general
activities". Field offices sent the GID copies of speeches
laFollette delivered to an Oneaplcyment Conference, a Labor Day
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Bally, and one which favored U.S. reccqniticn cf the Irish
independence. In 1924 Gaston Means, a former BI special aaent,
tcld a Serate committee that the El had conducted an
investigation of Lalollette after the Senator had introduced a
resolution callinq fcr an examination of the affair. Beans
claimed that he had broken into LaEollette's Senate office tc
"find out all the mail that comes in, all the papers, anything
that he has lying arcutd."[37]
Other evidence suggests that such break-ins were net
uncommon. It 1920 special agent {and later assistant director)
H.R. Grimes obtained a telegram frcm Congressman Phillip
Campbell’s cffice. In September 1922 El chief Burns ordered his
aqents to investigate Congressman Oscar E. Kellar. Cn September
10, Kellar, an independant Bepublican from Minnesota, had
introduced a resoluticr callinq for the impeachment of Attorney
General Eacgherty. Earlier, Eauqherty had issued an extremely
broad labor injucticr aimed at breakinq the railroad workers’
strike and destroying their union. Turing the course of their
investigation cf Kellar, BI agents broke-in to the congressman's
Washington office and ransacked his desk tcpirq tc find seme
dercqatory or incrimirating evidence. Sometime in 1S21 {the
index card is not specific) a El aqent broke-ir to and ransacked
the office cf Senator William Eorah.The break-in was prcbably
part of a general ir.ves tiqaticr cf Eorah's campaign for
recognition of the Soviet Union, hut could have been related tc
the bill Ecrah had introduced in April 1921. Eiles obtained
through the ECIA suggest th at the Bureau was mere interested in
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Eorah1s views about foreign policy and veterans' affairs than his
criticism of the Justice Department. On February 28, 1923, for
iEstance, El director Burns ordered the New York field office to
prepare a report on a speech Bcrah *as scheduled to deliver to
the Sorld War Veterans, a leftist veterans qrcup organized by the
Workers Party. on March 12, New York SAC Edward Erennan
forwarded the memorandum together with a copy cf Eorah’s address
advocating, among other things, full amnesty fcr political
prisoners. Several days later field agents assigned to the New
York office attended a meeting of the Kings County Republican
Committee ir Erccklyr tc hear Bcrah advocate U.S. recognition of
the Soviet Enion. The agents forwarded a verbatim copy cf the
2h-page speech to Washington the following morninq.r381
It is entirely possible that the El could have collected
this type cf information ad infinitum (provided at agent did net
get caught ir the middle cf the niqht in a congressman’s Capitol
Hill office) without arousing much suspicion or public criticism,
tut the Bureau’s proclivity to pursue what Frank Donner calls
"aqgressive intelligence" activities reieved efforts to limit El
investigations to violations of the federal law. The difficulty
from the Bl’s perspective was the absence; of a peacetime sedition
law. The provisions of the 1918 Sedition act prohibiting
defamation cf the Ccnstituticr and the government had expired
when the war ended. The Sterlinq bill, like several other
similar proposals, had not been approved. Hence, the Justice
Department was hard-pressed tc find alternative methods to
discredit radicals and suppress dissent. -Consequently, the
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Bureau continued to in v estig ate violations of tie Immiqraticn
la s , even tlcugh i t had found deportation cumbersome and shelly
inadequate tc deal sith the "menace", as it was officially
perceived. "Following the widespread public criticism cf the
deportation raids, the Bureau had to scale down these
investigations, resulting in fewer deportations than the Bureau
would have ctterw ise recommended. Hence only 61 rad icals were
deported in 1S24, down from a high of 446 in 1921. f3 9 ")
The case of Nicholai Mansevich, while perhaps not entirely
representative, illustrates the delays and frustrations. By the
end of the First World War, a su b stan tial number cf Eastern
European immigrants had settled ir cr around Eetroit, Michiqan.
The Onion of Fussian Workers (DEW) established a chapter in the
Detroit area as it had in many other Slavic communities in the
United S tates. Members of the ORK, most of whom were philisophic
anarchists in the tradition of Tolstoi, cuickly established
themselves as the most cutspcken and energetic advocates of the
rights of the foreiqn-lorn worker. In January 1920, wheE the
Justice Department swept through Detroit with a vengeance, the
DRW bore tie brunt cf the assau lt. Cf the 800 men and women
arrested in Detroit durinq the January deportation raids,
probably half were members cf the DRW. The overcrowdinq and
incredibly dismal conditions at the makeshift priscn, dubbed the
"Black Hcle cf Calcutta" by lccal jo u rn a lists, prompted a group
of prominent women to investigate the raids. Like the NPGL and
the IWM, the women found that mcst cf those whc were arrested
were hard working men and women who had committed tc overt action
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inimaical to the best interests of the Detroit community cr the
nation as a whole. ThO]
While ccmnunity leaders in Detroit and other large
industrial cities tried to foster qreater understanding of the
foreign-bcrr worker, these effects had little affect on the rabid
anti-radicalism of the El- Eureau o ffic ia ls cn both the lccal
and national level ccrtinued tc believe that radical aliens
constituted a clear threat to the nation's security* SAC Arthur
Earkley, whc had led the January 1920 deportation raids in the
Motor City, assisted by special agent Thomas Wilcox kept a close
eye cn the activities of the local chapter cf the GBW- Constant
surveillance cf the distribution cf the ORW'S newspaper Wolna was
central to these investigations. Cn February 12, 1921, the Bl's
Detroit fie ld office reported that past issues of Wolna had been
shipped to that city from Philadelphia and New Ycrk City, but
more recently, a lccal printing shcp had produced several issues
of the paper. Several norths la te r, on July 22, SAC Wilcox
informed the GID that "we are not in the possession of any new
information ccrcerning th is maqazine. . . (but) confidential
informant is endeavorinq to secure definite information." In
August, special agent Fred Hessler advised the GID that "due to
the lack of funds, the publication of this paper has been
temporarily suspended (in Detroit). . - (and that) (t)hrcugh
confidential scurces, it has just been ascertained that a
shipment containing 800 copies of 'Wolna* issue 18, has been
recently fcrwarded from N-Y-" For the next mcnth, field aqents
and various Eureau operatives watched the bundles of the paper
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which lay unclaimed at the American Railway Express Station. On
September 3, a fter receiving word frcm their confidential
irforoant that the newspapers were about tc be delivered, special
aqent Barkley reported that tvc aqeEts had followed the delivery
truck to the home of Nicholai Mansevich, 11569 Nagel St.,
Hantramck, Michigan. There the aqents interroqated Mansevich.
Convinced that he was instrum ental in the d istrib u tio n of Wolna.
they turned him over tc Immigration Bureau officials for the
initial deportation hearing.Thi 1
Mansevich , whc had emmigrated frcm Gredno, Russia ten years
earlier, wcrked at the Ford Meter company and was an active union
member. He was married anc had three daughters, 3, 5, and 6
years old. Denied legal ccunsel at the hearing before
Immigration inspector Robert W. Fanfewexe, Mansevich answered
several theoretical questions without fully ccnprehendina the
ramificaticrs cf his replies. For example, when asked whether he
believed that the government of the United States shculd be
overthrown, he responded: "The American Government deserves the
same treatment as the C z a r 's ." BI agents Wilcox and Apelman
appeared as government witnesses and testified that Mansevich had
received, arc intended to distribute, copies cf Wolna. Despite
the absence cf any evidence th at Mansevich planned to tra n s la te
his answers to the theoretical questions into criminal action,
Inspector Fanfevere recommended Marsevich's deportation.f 42 1
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A citizens qroup protested the Immigration inspector's
decision tc deport Bansevich. The qroup included Frank Murphy,
the former assistan t C.S. Attorney who la te r became qovernor of
Bichiqan, U.S. Attorney General, and supreme Court justice,
Charles D- Williams, the Episcopal bishop of Detroit, Frank
Butzel, a tanker whc was a member of the Detroit Corrections
Commission. They petitioned the Later Departient tc free
Mansevich. Community leaders alsc signed a petition protesting
the action."As a wage earner, a father and a husband," the
document read, "Nichclai Mansevich has a c le a r record. We
believe that he is the victim of a qrave in-justice and that his
deportation would not be in harmony with all that is best in
American traditions and ideals. . . He is an honest,
industrious, self-respecting workinq man, and is krewn personally
by many Detroit citizens who believe that he can with entire
safety be permitted to continue to live in the United States."
Despite the committee's eloquent plea on "behalf of all
fair-mindec citizens", assistant commissioner cf Immiqration
Dixon reported on April 22, 1922 that after careful review of
"additional evidence presented in the case the Department has
found i t necessary to affirm the previous order of
deportation.'T 43 ]
Although the Immiqration Bureau aqreed tc depcrt Mansevich,
the outcome in these cases was not always predictable. As noted
in the previous chapter, the difficulties and delays encountered
in the process, coupled with the adverse publicity, led the
Bureau to seek other netheds tc deal with radical dissent. In
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early 1921 Attorney General Dauqheity announced that the 3ureau
would assist state and local "red squads", i.e., police
intelligence units established in the early 1920*s, tc
investigate violations cf state sedition lavs pased during the
heady days cf the qreat Fed Scare. While the Bureau cculd net
officially participate in the prosecution of individuals in cases
arising frcm these investigations, the Attcrney General arqued
that nothirq in precluded it frcm "advisinq" the states*
attorneys and supplying evidence needed by the prosecution to try
these cases effectively. State and local officials who shared
the Bureau’s anti-radicalism welcomed federal assistance, in part
because th eir offices lacked the nanpcwer and the expertise
needed to prove conspiracy and intent tc v io la te the sedition
laws. When i t fcund an e n th u siastic prosecutor, the Eureau put
i t s enormous resources at his disposal, allcwinq the lccal
district attcrney access tc its extensive files on "subversive
activities". The results testify to the programs effectiveness;
in 1922, state ccurts convicted 115 persons for violating
sedition, red flaq and anti-syndicalist laws. ThU]
In August 1922 the BI supervised a spectacular raid cn a
secret meetirc of the executive beard cf the Communist Earty in
rural Bridgman, Michigan, a reso rt town tucked away cn the
southeast shore of lake Hichiqar net far from chicaqo. The
Bureau had learned of the meetinc through cne its "special
employees", ar undercover aqent who had managed tc infiltrate the
party's leadership earlier in the year. The informer, a Camden,
Sew Jersey shoplifter named Francis x. Morrow, had teen offered
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a dollar a day to -join the party in February 19 20. Tvc years
later, after the Farty had qone underqrcuid tc avoid police
surveillarce and harassirent, Mcrro* was qettinq 35.00 a day plus
expenses, still a good investment considering Herron’s position
in the party. When Metros received instructions from the party
leaders in early August 1922 to attend tte Bridqnan neetina, he
immediately reformed BI d irecto r Burns of the p a tty ’s plans-
Eurns ther instructed the Chicaqc SAC to "Eroceed at once to
locate (the party’s secret convention) and keep (it) under
discreet surveillance."HS ]
On August 22, following several days of observation, special
aqents Jacob Spolansky, a veteran of the GIB, ard aqent Edward
Shanahan, alerted lccal cffica ls that the communists were aeetinq
nearby in violation of Michiqan lav. Spolansky, assisted by
Eridqman sheriff Gecrqe Bridqeman, tsenty deputies and several
ether BI agents, staqed a surprise raid or the convention and
captured tve leading Farty members, Charles Euthenterg and
William Z. Foster, as veil and undercover agent Morrcv, and 13
ethers. In the confusion, important party documents vere hidden
in tvo b arrels, vhich vere la te r fcund on a tip frcm Morrow.
Reiving on this evidence and testimony volunteered by Morrow, the
Michigan attcrney qeneral brouqht charqes against the Communist
party members under the state’s 1919 anti—sydicalist lav. "While
the alleged cffense was a state one,"' Michael Eelknap w rites,
"this was a federal case in everything tut name."T46]
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The ACID, which had tees mcnitorinq federal an ti-ra d ic a l
activities since the deportation raids, challenqed the Eridgman
raid on constitutional grounds. The ACLO claimed that federal
authorities did net have the xiqht to arrest persons who
alleqedly violated state laws and could not oversee prosecution
cf these cases. The department's initial reaction to the ACID’S
charges was to ignore them. The Attorney General failed to
respond tc a letter asking ’’under what authority axd under whose
authority" the arrests had been undertaken. When pressed fcy ACLU
board member Norman Thomas to respond, assistart attorney general
Halle Walker K illebrardt replied to the ACLU requests. "You have
been given a ll the information with regard to the Eridgiran a ffa ir
which can properly be released at the present time for unofficial
use. . . {and that the department is) not called upon to
account for its actions or to release information which it deems
ccn fid en tial."f 47]
On November 25, 1922 BI chief Burns, in an attempt to defuse
the Eridqman controversy, told ACLU attcrney Albert DeSilver that
"nc aqents cf the BI. . . have been cr are not now engaqed
upon any matters in connection with the arrests at Bridaman,
Michigan, in which this Department has net proper interest."
Burns added that the El had not performed "any duty which ir any
way is beyend the sccpe cf authority provided hy Congress."
Despite Burns’ denials, the ACID continued to press its case,
collecting evidence and affidavits to refute the Bureau's
assertions. Under the ACLU's direction, labor unions and liberal
political organizations attempted to persuade Michigan officials
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to lim it Justice Department interference in tie case. Then,
Frank Walsh, whc was representing several of the defendants,
uncovered evidence which suggested that Allan C. Heyers of the
Burns Detective Agency had access to o f fic ia l government
documents arc had b rie fly played a role in El a n ti-ra d ic a l
investigations. The new revalations briefly put the Bureau on
the defensive. When asked to respond to the allegations,
director Burns declined, claiming that "to answer that questions,
might defeat the ends of "justice."[48 ]
Initially the ACID'S criticism of the Bureau's role in the
Eridgman raid did not disrupt the Justice Department's
anti-radical strategy, on April 9, 1923, for example, the El
coordinated a police raid at the Typographical Temple, 428 G
Street NW, Washington, B.C., netting 16 persons. The Labcr
Defense Ccutcil had organized the neetinq to raise money for the
defense of William z. Foster and several ether Bridqman
defendants. The police confiscated Workers' Earty pamphlets and
other literature that was to be distributed at the meeting and
tock Edward J. Irvine, secretary cf district local of the
Workers' Earty, and James E. Cannon, national chairman of the
Workers' party, to the station house for further questioning,
later that evening, a second squad cf police led by the veteran
red-hunter Steve O'Dea, raided a bookstore and soda fountain
operated by Abraham Bavich, seizing numerous bocks, pamphlets,
and other literature. The follcwinq day, Wastinqtcn, D.C.
detectives searched Irvine's heme and found a letter that
alleqedly outlined Workers' Party plans to convert "thousands of
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government wcrkers in Washington to revolutionary ideals."
Following a meetinq between BI o ffic ia ls and members of the
Washington red sguad, El inspector C.L. Grant and Ma-jcr Daniel
Sullivan declared that "WashirqtcE will be cleaned of all enemies
cf America whc would bring about a revolution and attempt to set
up a soviet government." The government's case against Irvine and
the others, however, was particularly weak since nc overt act had
teen committed, on April 11, after hearinq preliminary arguments
in the case. Justice A.A. Hoehlinq of the Supreme Court of the
District of Columbia dismissed federal conspiracy charges against
the defendants.r 491
Justice fioehlinq's decision in the Irvine case did net deter
the Bureau. Two ard a half weeks later, BI agents directed a
series of raids on the homes and offices cf Workers* Party
members in the Pittsburgh area. That evening, squads of city and
county police, using warrants sworn out by Alleqheny Ccunty
District Attcrney Samuel Gardner, arrested 24 persons and seized
"many tons of literature, printed in at least seven different
languages." The material was "alleced to have as its purpose the
incitinq cf May Day xicts and the qeneral overthrow of government
and industry in the United States." The next day, the Pittsburgh
Post called the raids the largest and most important "in the
history of Western Pennsylvania." In the course of th eir
activities, police also confiscated typewriters, writing
materials, stationary, party records, mailing/membership lists,
subscription blanks for the Bridgman defense fund, and a red flag
th at "measured 12 feet in length anc four feet wide." On April 28
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District attcrney Gardner explained that the investigations
leading tc the raids confirmed that the Workers* Party was trying
to organize fcreign-bcir and black workers in Allegheny County
factories and mills. "The time for a clean-up,'* Gardrer told
reporters, "was opportune." Sixteen party members in all were
charged with violating the state's sedition law and eight ethers
were held pending further investigation. Bail was set from
S1,0O0 to 150,000, high enough to keep the suspects in jail until
May Day had passed.[50]
On April 28 BI division superintendent E. E. Spencer
announced that the Eureau "stand(s) ready tc render any
assistance Fcssible. . .to the district attorney's office in
the prosecution of the cases." More arrests followed Spencer's
proclamation. On May 3, Pittsburgh police, aided by special
aqent H.J. lenon, arrested tsc reporters who had been assigned
to cover the story by radical New York newspapers. A field
representative cf the Workers* Earty Lithuanian Division was also
held for questioning. Later that same day, however, ccunty
officials released the three, alcng with nine ethers who ahd been
taken prisoner during the April 17 raids. A spokesman fcr
District Attcrney Gardner also admitted that "the others will go
free. . .due to insufficient evidence in the hands of the
Government. "[51 ]
On Kay 25, 1923, BI chief Burns, in an address to the Shore
Rotary Club in Atlantic City, New Jersey, tried to breathe new
life into popular anti-radicalism. Eurns called cr Congress tc
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approve a proposed peacetime sedition bill ther perdinq which
would enable the Bureau to "drive every radical out of the
country and bring parlcr Bolsheviki tc their senses."
Anticipating EcCarthyite attacks on the intellectual ccitaunity by
almost a ccarter of a century. Burns blamed America's failure to
ccFe properly with the red menace on "a system ir schools and
colleges that was turning cut 'parlcr Bolshevki'." Several months
later, while testifying before the Hcuse Appropriations
Committee, Eurns sounded the tocsin once agains "Radicalism is
becoming strcrqer every day in this country. They are qoing
about it in a very subtle manner. Tor instance, they have
schools all ever the ccuntry where they are teaching children
from 4 to 5 years old. I dare say that unless the ccuntry
becomes thcrcuqhly arcused concerning the danger of this radical
element ir this country we will have a very sericus situation."
Attempts tc fight the red menace, Eurns alleqed, had been
severely crippled by the ACIU and ether "parlcr Bolsheviks".
"Whenever we seek to suppress these radicals, a civil liberties
union promptly gets busy. Fcr instance, when our men aided the
a u th o rities at Eridgman, Michigan, the Civil L ib erties Onion of
Hew York prcmptly demanded tc know what authority we had for
sending our agents there. They insisted cn knewinq specifically
under what law we did i t . " Eespite these and ether e ffo rts tc
draw a tte n tic r to the "radical th re a t", Burns' campaign fa ile d to
attract much interest. The department, it appeared, had cried
"wolf" once tcc often, and although the hard core, anti-radical
right still got excited every time the Attcrney General or the
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director of the BI issued a new warninq, few others did. f52]
The death of Warren Harding in Auqust 1923 provided a new
opportunity tc address the issue of intelligence reform. The
Bureau's critics stepped up their efforts to persuade the new
President, Calvin Ccolidge, tc recrqanize the justice Department
and de-politicize the El. In January 1924, the ACID'S executive
hoard commissioned an examination of Bureau p o litic a l
surveillance, its use of wiretapFinq and its co-operation with
private detective organizations. The final report, ’’The
Nationwide Spy System Centerirq in the Department cf Justice” was
published in Hay and copies were sent tc federal judges,
congressmen ard ether proiinent government officials. While this
was the most axfciticus campaign tc end government surveillance of
lawful political activities since 1921, it could have foundered
like earlier efforts had it net been fcr the Teapot Dome scandal-
In late 1923 and early 1924, it was alleged that attcrney General
Daugherty and Secretary of the Interior Albert Fall, were
involved it an attempt to sell federal oil reserves to
Frivately-cwned corporations. On Harch 28, 1924, President
Coclidqe, whc had taker office in August 1923, fired Attorney
General Daugherty fcr refusirq tc cooperate with a Senate
investigaticn of the Justice Department. Ccolidge appointed
Harlan Fiske Stcne, a prominent New lork attorney and former dean
cf the Columbia Law School, attorney general.r53]
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Harlan Biske Store was a lifelong Repuilican who had
consistently defended free speech and association daring the war
and the post-war Hed Scare. He was eminently qualified to
clean-up tie scandal-ridden Justice Department. While several
insurgent Republicans criticized Stcne's ties tc Wall Street, the
nomination was, on the whole, favorably received. The Washington
Star. for example, commented that Stone was "honest, able, lcyal
- a level-headed, brainy progressive-conservative." and, as his
criticism of the deportation raids had demonstrated, Store did
net share Daugherty's cr Burns* vision cf the red menace. Stone
believed that the free exchange of ideas was itself an important
value "worthy cf protection at the hands cf the state." Sharing
Zechariah Cfcafee's belief in the strength and viability of
American in s titu tio n s . Stone wrote in 1919 that "ffJirm but
im partial adherence tc the law by those in authority, and
ceaseless anc untirinq efforts tc educate and enliqhten the class
tc whom fthe radicals] make their appeal, together with the
fullest arc most searching analysis of the doctrines which they
preach, are the only methods which hold cut premise fcr the
triumph of democratic institcticrs ever the assaults directed
aqainst them." In April 1920, Stone reaffirmed his commitment to
civil liberties: "Our constitutional system presupposes the
right to effect chanqes in government by the processes cf
constitutional amendment and legislation, through the medium of
the ballet, and the intelligent exercise of the ballot
presupposes freedom cf c p iric r and free discussion of a ll
political cuestions. 59 ]
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Stone's appointment gave the Eureau's critics re* hope.
Realizing that the new attorney General would he mere receptive
to their ideas, ACLO cfficials urged stone to dismiss El director
Burns and to order the Bureau to c u rta il p o litic a l surveillance:
"Under his direction, c iv il rights are being seriously in te rfe re d
with thrcuqhcut the country and prosecutions undertaken sclely
fcr cpinicr." Stone apparently agreed with the flClE'S assessment
cf the El director. On May S, attorney General Stcne met with
Burns and announced that the directo r could eith er resign or be
fired. The following day, Burns handed in his resignation.r55]
On May 12, Stone, in testiacny iefore the Serate committee
investigating former attorney General Daugherty, told Ccngress
that he would reorganize the 31 and, until a suitable replacement
for Burns could be found, he would "personally supervise its
operations." The fcllcving day. Stone restricted El
investigations to violations of federal statutes. StcEe's Hay
15th public statement confirming this decision marks a watershed
in the history of civil liberties. For the first time, a
hiqh-ranking government official reccqnized that illegal BI
surveillance constituted a serious threat to the democratic
process:
There is always the possibility that a secret police may become a menace to free qcverinent and free in stitu tio n s , because i t c a rrie s with i t the p o ssib ility of abuses of power which are not always quickly apprehended or understood. It is important that its activities be strictly limited tc the performance cf those functions for which it was created and that its agents themselves be not above the law or beyond i t s reach. . . The Eureau of Investigation is net concerned with political cr ether .opinions of individuals. It is only concerned with their
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conduct and then only with such conduct as is forbidden by the laws cf the United States, When a police system passes beyond these lim its, it is danqercus tc the prcper administration of iu sticc e and to human lib e rty , which i t should be our first ccrcern to cherish.T56]
The day after Burns resigned, Ittorney Gereral Stone named
assistant El director J. Edqar Hoover actinq Btreau director.
Hoover's appointment did cot bcde sell for the future success of
Stone’s reforms. Hoover had, after a ll, been responsible for the
planninq arc execution cf the deportation raids, the Eureau’s
investigations of its critics, and the anti-radical operations
during the Hardinq years. Yet, vher reaching his decision, Stone
did not take into full account Hoover’s previous positions in the
Bureau or his unstinting loyalty to former director Burns.
Instead, fcllcwinq assistant attorney general Katie willetrant's
advice, Stcne concluded that Hoover was an honest and efficient
administrator who ” 'had not been contaminated’ by his service
under Burns. T 5 7 ]
At first the Bureau's critics, especially the ACLU, were
skeptical of the Hoover appointment. When asked by the ACLU to
reconsider his decision, Stone arranged a private neetinq between
Eccver anc th e. ACLD's d ire c to r, Bcger Baldwin to discuss the
Bureau's future. When the two men met in August 192h, Hoover
reassured Baldwin that the Bureau would no longer investigate or
disrupt radical political cr labor union activities, adding that
the Eureau had severed its t ie s with the notorious red squads and
private detective agencies. Impressed by Hoover's sincerity,
Baldwin told Stone: "I think we were wrong.in cur estimate of
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the nan- . -What he tcld me cf the details and changes in the
administration of the Bureau all indicate that the reorganization
meets every suggestion which any of us could p cssilly make, and
that it las already been carried out faithfully in accordance
with your stated policy.*1 In Eecemter 1924, a fte r John Lord
O'Erian, his first choice to head the Bureau, had declined the
offer, Store made Hccver's apFcirtment permanent. [ 58 ]
On the surface, Ecover expressed appreciation of the ACLU's
endorsement. The BI d irecto r la te r wrote Baldwin that " ( i ) f I
can leave my desk each day with the knowledge that I have in no
way violated any of the rights of the citizens cf this country.
.then I shall feel satisfied.” But since Hoover was never
bothered by his own duplicity, the BI continued to investigate
the ACLtJ. While ingratiating himself to the Attorney General and
qiving lip service to his reforms. Hoover could cnly have been
heartened and emboldened by the patterned failure of Congress,
the courts, and the executive to have developed a more effective
solution to illegal Eureau activities. Since tie Red Saids,
Couqress had been unable cr unwillirg to act positively to insure
that the riq h ts of Americans would not be violated by o ffic ia ls
sworn to upheld the law. In the absence of specific leg isla tio n
and legal precedent, courts had not found federal o ffic ia ls
strictly liable for their cwt, cr their subordinates, activities.
And, ironically enough, Attorney General Stone chose the person
most responsible fcr maty cf the Bureau's worst abuses to
implement El reform and c u rta il ille g a l surveillance. Hoover did
net hesitate to take advantage of the situaticr, ard fcr the rext
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 24 0
t*elre years, the Bureau amassed information cn a tide range cf
dissident political activities in violation cf store's mandate.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. NOTES
1) Donner, The aoe of Su rv e il l ance. 40-44; IAS A., 21-23;
SDSB. 387-388; Cook, The IB I Nolocy Knows. 117-145; Lcwenthal,
FBI. 269-32*1; Johnson, C hallenge to Ameri can Freedoms. 165-175;
Hichael Belknap, "The Mechanics of Repression; J. Edgar Hoover,
the Bureau cf Investiqation and the Badicals, IS 17-1925", Crime
and Social Justice [Spring/Summer 1977), 49-58. NEGI, Tg the
American People; "Charges of Illeqal Practices cf the Justice
Department", Senate Committee on the Judiciary, Hearings. 66th
Ccnq., 1 Sess. (1921), 423-24; filliam Anthcry Gergarelly,
"Resistance Spokesmen; CFpcnents of the Bed Scare, 1S1 £— 1S2111
[unpublished Ph.D. d iss e rta tio n , Boston University, 1972).
lavrence Erocks to Foger Baldwin, 3/12/20, vcl. 131, ACLU
Archives, Princeton University Library, Princetcn, N.J. "Checks
for Administrative Abuses", Zechariah Chafee, Jr. MSS, Harvard
law School library, Camtridqe, Mass. NPGL tc Senator Thomas
Walsh, "Ir Answer tc Attorney General Palmer, re; The Charqes
contained in the ’Report Upon the Illegal Practices of the U.S.
Department cf Justice” 1, 15-16, vol. 168, ACLU Archives.
2) Andrew S in clair, The Available Ban; The life Behind th e
Masks of War ran G. Harding [Chicago, 1969), 254; John D.
Hicks, Republican Ascendency; 1921-1933 [New York, 1960), 68,
241
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 242
131-132; Lcventhal fBT, 282-289.
3) "Cbarces of Illegal Practices of the Justice Department,"
582.
4) Holder v. 71 van et al.. S.Ct.E.C., ccc.no. 62627
11920); "Charges cf Illeqal Practices", 250-52; BI file BS
203403-5; ES 203403-6; OG 366599.
5) Holder v. PIvnn et a l . .
6) "Charqes of Illeqal Practices", 250-51; Key York Call.
"Victim of 'Bed Baids* Rins Suit", January 8, 1920, 1. An
unpublished nanuscript in the Chafee MSS demonstrates that the
United States resisted iBpleaentaticn cf an effective system of
ministerial responsibility similar to these in Europe.
Consequently, the dealinq with administrative misconduct was
ambiquous and somewhat amorphous. "Now, our existinq federal law
but scantily covers the field of official malfeasance." The law
did not, fcr example, include sanctions aqainst false arrest,
illeqal surveillance, and warrantless search and seizure.
Although many sta te s had considerably te tte r and more
comprehensive laws dealinq with official malfeasance, "the
federal courts have been very zealous in protectinq federal
officials aqainst state prosecution, invoking the theory that the
power to punish federal officials involves the power destroy the
federal gcverrment," "Checks For Administrative Abuses", Chafee
MSS.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 243
7) Salsedc v. Palmer et a l . . Department cf Ju stice, f ile
213479, national Archives, Washington, E.C. New York Tiaes.
2/26/21, 7; 2/27/21, II, 1.
9) BI file BS 213479-1; BS 213479-3; ES 213479-7; ES
213479-8; "Charges of Illegal Practices", 144-49; Cock, The FBI
Ncbodv Knows, 139-110.
9) Cook, The FBI Nofcodv Kncws« 114; Lcventhal, FJI, 73-74.
10) Salsedo v. Palmer et al^. Department of Justice file
2S47S, Judge Mayer dissenting, 1-2.
11) Cook, The FEI Nobody Knows. 111; Francis Bussell,
Tragedy in Eechaa (New York, 1962).
12) Ccch. The EEI Nobody Knows, 111, 113-115.
13) New Ycrk Tines. 2/26/21, 7; 2/27/21, II, 1; BI file BS
213479-11; ES 213479-16.
14) Salsedc y. Palmer. Department of Justice f ile 213479;
BI f ile ES 2 13479- 12.
15) Keyer dissent, Salsedo v. Palmer. Department cf Justice
file 213479.
16) "Charges of Illegal Practices", 376-79 ; Marcinak
Palmer. S.Ct. D.C., c iv il dcc.rc. 65145 ; New York Time s .
2/3/21, 14.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 244
17) "Charges of Illeqal Practices", 439; El file ES
1626CO-103 2; CG 379331.
18) "Charges of Illeqal Practices", 376-80, 439; El file ES
2026000-1032.
19) There are several discrepencies in the public records as
to the date of Marcinak's death. January 19, 1920, however,
seems the nest likely date, since it is the date given in the
plaintiff’s complaint. "Charges cf Illegal Practices", 378, 433.
20) "Charges of Illeqal Practices", 377; Marcinak v.
Palmer. S.Ct. E.C. c iv il doc. no. 65145.
21) Marcinak v. Palmer. S.Ct. £. C. c iv il doc. no.
65 145.
22) "Checks for administrative Abuses", Chafee MSS;
"Charqes cf Illeqal Practices", 229-230, 787-88; John lord
C’Brian, "The Menace of Administrative Law", reprinted in
"Charqes of Illeqal Practices", 787-788.
23) "Charges of Illegal Practices", 278-80; NPGI, "In
Answer to Attorney General Palmer", 16, vol. 168, ACL0 Archives,
Princeton, N.J.
24) H.F. 12816, 59 Congressional Record (February 28,
1920), 365C; 59 Congressional Record (April 23, 1S20), 6086. or.
September 5, 1922, Huddleston introduced this bill in a somewhat
different form, but this till suffered the sane fate as H.R.
128 1 6. 62 Ccrqressictal Record (September 5, 1922), 12152.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 245
25) S.664, 61 Congressional Becord (April 13, 1921), 187.
26) Judson King to Frank F. Walsh, 1/29/21; Walsh to King,
2/2/21, box 37, Frank F. Walsh MSS, New York Public lib ra ry ,
N.Y., N.Y. Swinburne Bale tc Jcdson Kicg, 4/8/21, Judson King
MSS, library of Congress, Washington, E.C. ; Zechariah Chafee tc
Boscce Pound, Chafee MSS, Harvard Law Schocl Library.
27) "Charges of Illegal Practices", 573. 64 Congressional
Becord (February 5, 1923), 3005-3027.
28) 64 Ccnaressicral Becoid (February 5, 1923), 3CC5.
29) Senate Document 153, "Investigative Activities of the
Ju stice Department, 1919,” 66th Cong. 1st Sess. (19 19);
Gengarelly, •'Eesistance Spokesmen", 236.
30) Gengarelly, "Eesistance Spokesmen", 241-245.
31) Alter carefully examining the available primary and
secondary sotrces, I found no indication th at either the Wilson
cr the Hardirc administrations ever seriously considered the
bills, preferring instead to ignore them completely.
32) Dcrner, Age cf Surveillance. 42-44; Cook, The FBI
Nobody Knows. 117-145; Johnson, Challenge to American Freedoms.
149-175; lcventhal, FEI, 269-281; Eelknap, "Mechanics cf
Bepression", 51-52. See generally BI file index, 1908-1922,
under title cf radical newspapers published during the period
fcor a full listing of indices; see particularly, Skully tc
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 246
Hoover, 8/15/2?, BI file ES 202600-33-302.
33) James Giqlio, H. 11. Eauqher ty and the P o litic s cf
Expediency (Fent, 1578), 128-130; S in clair, The Available Man,
262; Lowenthal, FBI. 269-281 ; Murray, Bed s c a re . 260-262;
Dcnner, age of Surveillance. 42-44; Johnson, Challenge io
American Freedoms. 165-161; Murphy, Meaning of Free Speech.
185- 187.
34) Preston,- Aliens and Eissenters. 243. Arn Morrissett
Davidon, "Even the Quakers Scared the FEI," The nation (March 11,
1978), 266-265. See also, qeneral index to BI f ile s , 1908-1922,
National Archives, Washington, I.e.
35) HcDevitt report, 8/31/21, BI file ES 202600-167-40;
Blackman report, 5/31/21, El file 202600-33-276.
36) West report, 6/6/21, El file BS 202600-1622.
37) Siqnurd Diatcctd, "God and the FEI at Yale," The Nation
JApril 12, 1980) , 423-426. See general index, El files,
1908-1922, under Joseph France, Bobert laF o llette and William
Ecrah. I recently filed an FOIA request fcr these documents
since they are net in the collection housed in the National
Archives, but the FEI failed tc locate any reference tc these
documents in th eir central index. Presumably the records have
been destroyed. Senate select committee on the Irvestiqaticn of
the Attorney General, Hearings. 68th Corq. 1st Sess. (1924),
88-95.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. I
247
38) Giqlio, H.M. Eauqherty. 152-153; Grilles report,
6/5/20, El f i l e OG 120964; Brennan to Hoover, 2/28/23, El f il e
62-387-73; Ken York field office tc Hoover, 2/1C/23, BI file
61-3546.
39) Conner, Age of Surveillance. 177-180; Jare Clark Perry,
Ceportaticr cf M iens Frcm the U.S. tc Europe (Hen York, 1931) ,
225. Chafee, Eree Speech in the 0 .? ,. 103. Araual Report of the
flttornev Gereral. 1921 (Washington, 1922), 129- 130.
40) El f ile index. Onion of Russian Workers, 1919-1922; see
BI file OG 369469, BS 2C2600-198, for a history of El
surrveillance of 0RW. Skully tc Hoover, 8/15/21, BI f i l e BS
2026 00-33-302. Frederick Barkley, "Jailinq Radicals in Detroit”,
The Nation 1K(January 31, 1920), 136-137; 110(April 10, 1920),
458-459; C.M. Panunzio, The Deportation Cases of 1920 (Nen
York, 1920). Thomas Ralsh MSS, fcox 278, folder 3, library of
Conqress, Washington, B.C. Murray, Red Scare. 215-216. Bcqer
Keeran, The Communist Pa rty qnd the Auto Workers Onions
(Bloomington, 1980), 28-59;
41) BI file BS 2C260C—345-163. Barkley tc Hoover, 2/21/21;
10/1/21; Hessler to Hoover, 8/5/21; 8/20/21; 9/6/21; 9/20/21;
9/24/21; El file BS 202600-345-163.
42) Barkley to Hoover, 9/2C/21 , BI file ES 202600-345-163;
Agnes In g lis to Thomas Walsh, 3/14/22, Walsh MSS, Ecx 278, folder
3.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 248
43) "The Nichclai Mansevich Case: An Appeal too All
Fair-Minded C itizens", Kalsh MSS, box 279, folder 3. Dixon to
In g lis, 4/20/22, Walsh MSS, box 279, folder 3.
44) Lcventhal, FBI, 270-271; Benner, Age of Surveillance.
42-44; Belknap, "Mechanics of Secession", 52.
45) Panl Murphy, Meaning cf Free Speech: F irst Amendment
Freedoms ijcj Wilscn tc ?PB {Green *ich, 1972) , 16 6-87. Belknap,
"Mechanics cf Bepressicn", 53-54.
46) Belkrap, "Mechanics of Hepression", 53.
47) Thomas to Daugherty, 9/2/22; Hard tc Willebrandt,
10/5/22; Willebrandt tc Thomas, 9/22/22, Department of Justice
file 2026CC-2721; Belknap, "Mechanics of Bepressicn", 53.
48) Belknap, "Mechanics of Repression", 54.
49) Washington Pest. 4/10/23; 4/11/23; 4/12/23; New York
Times, 4/10/23; The Naticn 116 (May S, 1923), 546.
50) AC1U, Becord cf the Ficht for Free Speech in 1923 (New
York, 1923), 8-11; Pittsburgh Pg?t. 4/28/23, 4/4S/23; New York
Times. 4/28/23, 2/29/23; Washington Pest. 4/28/23.
51) Pittsburgh Post. 5/4/23.
52) Hccse Committee cn Appropriations, Bearings cn 1925
Acrropriat jcrs Bill. 68th Ceng. 1 Sess- ( 1924), 91-95. New
York Times. 5/25/23, 44. In what may have teen the most bizarre
attempt cf a ll tc d isc re d it American communists, BI d irecto r
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 249
Burns sent a copy of the forqed "Zinoviev irstructicns" to
Secretary cf State Charles I. Hughes. The letter purportedly
urqed the Workers Party tc stem the white House and raise the
red flag over the executive mansion, former BI aqent Robert J.
Braniqan tele the New York World at the time that the Workers
Party had re plans cr intention tc resort to armed conflict, in
part, because "(a) quarter cf the force of the Rev York police
could handle any armed revolution they could pet up." Despite
this and ether evidence that the document had been forqed,
Secretary Euches released the letter to the press to prove the
perfidity cf the Soviets and their aqents in the Workers Party.
The State Departments action secured the anticipated results.
As Paul Blackstock writes: "A flood of mail arrived at the State
Department in response to the puhlicatcn of the Zincviev
' Instructions' from patriotic organizations, private business
concerns, and Eussian emigre organizations, indicating widespread
support for (the adiicistratier's policy of ncn-recoqnition of
the Soviet Union)In addition, the publication of the letter
bolstered Eurrs’s contention that there existed a well-organized
, plct to overthrow the govermert cf the Dnited States by force
and violence. Paul Elackstock, Agents of Deceit: Fra uds,
forgeries and P o litic a l Intrigue Among Nations (Chicaqc, 1966),
81-102.
53) AC10, Nation wide Spy system Centering j c the J cstice
Department (Kew York, 1524) ; Eurle Noqqle, Tearct Done; Ci 1 and
Politics in the 1920*3 (Baton Fouqe, 1962); Like other critics
of the Bureau, the ACLO had teen under investigation by the El
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 250
since i t s fcurding ir 1920. Cn March 1, 152C, George Ruch
recommended to GID chief Hccver that the Ecreau assign one of
their undercover agents to the ACLU since it was "preparing tc
start a campaign ttrcuqhcut the United States fcr free speech,
fre press and against the national {deportation) raids which have
been conducted by the Justice Department.1' The ACLU, Ruch noted
incredulously, was ready to defend anyone, "no matter whether
they be anarchists, IWW, Communists, or Union cf Russian Workers
(sic).11 Fcllcwing R uch's recommendations. Bureau informers and
undercover operatives infiltrated the ACIU and provided the El
with the organization's literature, the minutes of meetings,
membership lists, firancial records, and ether confidential
material. In January 1923, El director Burns notified the
Solicitor General of the United States that the Ecreau's files on
the ACLU "were voluminous." Eurns continued: "(Tie ACLU) is an
organization composed of a let cf extreme liberals which, at
every opportunity, seeks tc embarrass the authorities of the
proper enforcement of the law. They -justify their stand cn the
qrcund that it is at effort tc abridge freedom cf speech and of
the press but, as you know, this is a stock arqument used by
parlor Bolsheviks at every pro vocation." In January 1924, after
the ACLU had renewed its efforts tc enc illeqal surveillance, El
director Eurrs ordered H.J. Lencn to prepare a report updating
the qroup's recent activities. Lencn confirmed that the ACLU had
1) campaigned for amnesty for p o litic a l prisoners s t i l l in ia il
fcr violating the espicnaqe and sedition laws, 2) tested a
martial law declaration ir Singe county. West Virginia, 3)
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intervened ir deportations hearinqs cr behalf of radical aliens,
nest notably Nicholai Mansevich. The ACLU's leaders. Xenon
suggested, were "Pinks and Beds" and "all shades ir between," acd
were involved in "radical and extreae pacifist campagins." While
there Here a number of "so-called c iv il lib e rtie s groups"
operating in the United States, Lencn concluded that "gradually
the American Civil l ib e r ti e s Urici has taken ojer all th e ir work.
.{and new plays) tiq brother to them all, from the
tomh-throwing anarchist tc the wrist-slapping pacifist, an the
preferred occupation, slack er." "They Never Stopped Watching Os:
a Conversation between Boqer Ealdwir and Alan Hestin," C ivil
l ib e r tie s Beview {November/Iecember 1977) , 18-22.
54) Harlan Fiske Stone, "The Conscientious C ijector",
Columbia University Cuarterlv (October 1915), 21; see also,
Chafee, Free Speech. 222-240. "A savinqs account, a steady iob,
and plenty of good-humored to le ra tio n and friendly help and
encouragement", Chafee writes, "will bring in tc haiircny with ous
ideals all tut a few heated theorists, who are net likely to be
such a menace to our national safety th at we canrot counteract
them by scurd reasoning." Chafee, 239. 110 The Nation (April 17,
1920), 508. Alpheus T. Mason, Harlan Fiske Stone: P illa r of
the Law (New Fork, 1956), 143- 146.
55) Kasci, Harlan Fiske Stone. 150.
56) AC1U, Nationwide Spy Svstem. 3.
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57) Belkrap, "Mechanics cf Bepressicn," 55—5€ ; Donner, A^e
oj Surveillance. 44-47.
58) "They Never Stepped Matcbinq Os," 24-25; Belknap,
"Mechanics cf Bepressicn", 55-56.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. C hapter VI
"Ihey Never Stepped Satching Us':
FEI P o litic a l Surveillance, 1924-1936
"Ne never knew. . .about the way that Hoover's FBI kept track cf us after the 1924 reform announcements. They never stopped watching us.”
-Ecger Baldwin tc Alan tiestin, 197 7 m
FBI and Justice Department officials have steadfastly
maintained that from 1924 throuqh 1936 Attorney General Stcne's
executive order effectively tarred investigations of lawful
p o litic a l a c tiv itie s . Then, in August 1935, President Franklin
Bcosevelt, responding tc the growing international crisis,
primarily the rise cf fascism, and concerned about its effects on
American domestic politics, secretly rescinded the tan cr Justice
Eepartment political surveillance. Thus, it is argued, the FEI
conformed to Stone's guidelines and acted properly within the
executive’s inherent constitutional authority when it resumed
ncn-criminal investigations that year.[2 1
With few exceptions, historians and contemporary policy
makers have agreed that the FBI did not engaqe in political
surveillance activities until President Franklin Eccsevelt
formally rescinded Attorney General Stone's.executive order in
253
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Auqust 1936. Even the "Church Committee," which conducted the
most thorcuqh conqressiccal irvestiqaticn of FEI intelligence
activities to date, did not question this assumption. As a
result, the committee’s reports provide little new insiqht into
the development of FEI political surveillance prior tc 1936.
respite this consensus, FBI Eiles, obtained recently through the
Freedom of Information Act, confirm suspicions that FEI director
Hoover misled Attorney General Stcne in 1924, arc, fcr the text
twelve years, used the FBI tc gather information on the
activities of the Bureau's critics, and other radical political
anc labor crcanizaticis. The extent of this illegal surveillance
has never been fully appreciated. These investigations allcwed
FEI director Eccver tc help set the Bcosevelt Administration's
internal security aqenda.[31
This chapter will examine FBI surveillance of the following
qroups anc a c tiv itie s: the American Civil lib e rtie s Union, an
early critic cf political espionaqe; the Trace Dnicn Unity
Leaque, a l e f t is t labcr organization; and mass p o litic a l
demonstrations. The essay will also consider the Bureau's
cooperaticr with State Department intelligence officers who
mcnitored the activities of United States citizens overseas, and
show how such investigations were kept secret. FBI political
surveillance durinq the first Boosevelt administration will also
be examined. To fully understand the context, it is necessary tc
review the Bureau's initial reaction to Stone's 1924
directive.t 4]
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Initially, Hoover seemed eaqer to implement Stone's policy.
On Hay 20, 1S24, appearinq before the Brcckhart Committee which
was investiqating former attorney General Harry Daugherty, Hcover
testified that the FBI was nc lcnqer interested in political
opinions. He told the committee that: " (i)nstructions have been
sent to officers in the field to limit their investigations in
the field tc violations of (federal) s ta tu te s ." He announced that
in the two weeks since he had assumed o ffice, he had fired a ll cf
the notorious "dollar-a-year men" (political cronies hired by
Daugherty and Hoover's predecessor, William J. Burns) and would
continue tc "elim inate from the fcrces such deadwocd as has been
in the (FEI)." New emphasis, Hcover stated , would be placed on
future applicants' educational qualifications, rather than their
political connections. Heassuring the committee of his sincerity
and commitment to Stone's reforms, Hoover repeated his earlier
pledce in his closinq remarks. He reassured Senator Wesley Jones
(Fep., Nash.) th at Eureau investigations would he limited
"absolutely tc viclaticns cf Federal statutes, and that will be
the policy followed by this bureau."F5 1
These assurances aside, Hoover foucht vigorously tc maintain
the scope cf FBI authority. Five weeks after the Erookhart
hearings, Hcover sent a lonq memorandum to Attorney General Stone
responding tc charges made by the American Civil lib e rtie s Onion
(ACLO) . Earlier that year, in a pamphlet entitled "The
Nationwide Spy System Centering in the Departmert of Justice",
the ACLO asserted that the FBI had "created a nation-wide system
of espionage on radical and labor organizations, and on
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 256
individuals connected with these movements. . .land) ft) heir
activities. . .constitute in affect a secret police system of a
political character." In a bitter reply, Hcover advised Stone
that durinq the past five years the Bureau had investigated only
those persons and organizations that could be considered
"ultra-radical”, and only if "there (was) indication of a
probable violation cf a federal statute." Still smartiaq from the
widespread criticism of the FBI's role in the 1920 deportation
raids, Hoover defended FBI intervention in the deportation
process. "Ir many cases", he explained, "the aliens are charged
with activities inimical to our institutions anc government."
"This activity of the (FBI) is perfectly proper and leqal as such
work has always been performed upon the request of the Secretary
of labor." Eccver denied that the FEI had ever wiretapped, cr had
used dictaphone listerirg devices tc eavesdrop on private
conversations. The FBI, Hoover continued, had net, as the ACLU
had charged, seized evidence in violation of the Fourth
Amendment, or employed spies cr undercover aqents to "in c ite
members to unlawful acts nor to qet information calculated to
help break strikes cr tc prevent labor union organization." The
FBI director concluded that "the Eureau has very ricid rules on
matters cf this kird", and that the ACID's charges "cannot be
proved. "[6]
While Hccver's menc was primarily devoted to a detailed
defense of the FBI's record. Hoover assured the Attorney General
that the Eureau would conform tc the new guidelines and th at he
had strictly prohibited surveillance of. lawful political
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 257
activities. •’The agents of the tIEI) have beer specifically
instructed within the last month to confine theii activities to
investigations cf matters in which there appear to have teen or
may probably arise a violation of a federal statute.” The FBI
also required all new special aqents to attend a training session
"at which tine careful attention is given tc defining the
limitations of the duties of a Special Agent insofar as they
apply tc the rights cf the public citivens at large."
Consequently, "no innocent or lcyal American” shculd have "any
fear or objection tc" the FEI.[71
Hoover’s cpen-ended criticism cf the ACID in this memorandum
raises the possibility that stone and his immediate successors
may have been more ambivalent toward FBI p o litic a l surveillance
than is usually presumed. If this indeed was tie case, Bccver
and his superiors left no evidence that they amended Stone’s
crder to acccmmodate limited political surveillance. Perhaps
there was an unofficial, or verbal, understanding between Hccver,
Stcne, anc his immediate successors, that, under certain
conditions, allowed the FBI to conduct internal security
investigations even though nc specific violation of the law was
involved. Khile historians cannot dismiss this possibility, the
available evidence militates aqainst it.[81
The heart of the issue concerned the Justice Department’s
pcsition regarding American communists and the American Communist
Party. The issue was particularly complex because the party's
platform called for the overthrow cf the existing government and
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 258
economic order. Shortly after Stone issued his order prohibiting
FBI political surveillance, he asked assistart attorney qeneral
Earl J. Bavis to review the "applicability of federal criminal
statu tes tc Communist a c tiv itie s ." On June 10, 1924, Davis
reported that Communist party activities did rot appear to
violate any federal law. Because the FBI had been unable to
prove that party members had reached a "specific and definite
aqreement. . .tc overthrew the qcvernment," the Justice
Department could not indict party members under section 6 of the
Criminal code (seditious conspiracy). The courts, Davis noted,
had consistently ruled that section 6 required the goverment to
"prove a conspiracy to use force aqainst the federal qcvernment
cr its officers in their execution cf the law." Successful
prosecution of party members under the Logan Act 11790) was also
unlikely. That prohibited "communication between American
citizens aEc foreign governments when that correspondence was
contrary to the best interests of the United States." While the
FEI had prccf that party leaders in the United States were in
close contact with the Ccnmunist International in Moscow, such
communication did not violate the law because department lawyers
had determined that the Soviet Union did net qualify as a de jure
government as required by the law. FEI director Hoover
ostensibly agreed with the findings in the Davis nenorandcm. On
October 10, 1924, Hoover told assistant attorney general William
Tonovan that: " (i)t is, cf course, to be remembered that the
a c tiv itie s cf the Communists and other u ltra -rad ic a ls have net up
tc the present time constituted a violation cf the federal
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statutes, and consequently* tie Department of Justice,
theoretically, has no right to investigate such activities as
there has beer nc violation of the Federal laws,"[9 1
For the next sixteen years, Eocver putlicly maintained this
position, Fcr example, on Kay , 1925, FEI director Hoover
informed Stone that "from time to time information concerning
communist a c tiv itie s in the U.S. is voluntarily furnished tc.
.the Bureau. However, the Bureau is making no investigations of
such activities inasmuch as there is no violation of a federal
Fenal Statute involved (emphasis added)." Attorneys General John
Sargent ( 1925- 1929) and William Mitchell (1929-1933) demonstrated
no desire tc resurrect the Bureau's anti-radical division nor was
it likely that Hoover tried tc persuade his superiors to initiate
investigations of activities he thought to te sutversive qiven
the failure cf past efforts cf this sort. In fact, as we will
see. Hoover went to considerable trouble to ccnvirce department
officials that the Bureau was strictly fcllcwinq Stone's
policy.r101
Beneath the facade of cooperation and obedience, the FBI
persisted in old ways. Even as actinq d irecto r Hcover announced
the dramatic break frcn past policies and publicly pledged FEI
cooperation and support of the Stone directive, the FBI field
office ir Lcs Angeles forwarded to Washington headquarters
hundreds cf paqes of reports on the activities of the Iccal
chapter of the ACLU. Captioned "Attention Mr. Hoover", these
investigative reports carefully summarized the minutes cf the
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organization's weekly neetinqs, executive board meetings, the
ACLU*s plans for future demonstrations and litigation, the
groups’ financial resources and the names cf important
contributors. On Hay 23, I92h, special agent Arthur Hopkins
informed the Eureau that " (t)here were about fcur hundred people
at the {weekly) meeting of the ACLO. , .Cr. {Clinton) Taft
askec that the collecticr be larger than usual as there was rent
tc pay and the cost of the proqrams (sic), "f 11]
Official infiltration also continued. An TBI informer was a
member of the group’s executive board and provided the Eureau
with inside information about the ACLU’s policy, administrative
and financial decisicrs. Or September 26, 1924, special agent
Hopkins outlined the executive beard’s plans to challenge
compulsory military training at the University cf California,
labor injurcticns and California's criminal syndicalist laws.
Hopkins reported that the ACLU, in cocperaticE with the IWW,
decided to "start a fiqht fcr civil liberties in Los Angeles
harbor {sic)", and to sue former I. A. police chief August
Vollmer for arresting and ja ilin c peaceful picketers. "Upton
S in clair. . . premised tc qet for Mr. {Bcbert) Whitaker his
list of prominent people in all the nearby towns," Hopkins
concluded, "sc that he could visit them to solicit their aid in
his work. Informant will also get a copy of this list.'T 12 ]
At the same executive board meeting, Beverend Taft announced
tlat he had irvited federal district court judge Benjamin Bledsoe
tc address an open forum meeting scheduled for Cctcber 26, 1924.
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Cn October 3, Hopkirs informed FBI chief Hcover that Special
Aqent-in-Ckarce (SAC) I.e. iheeler had "confidentially informed
Judqe Bledsce (that the ACLtJ sponsored the open fcrutr) and also
to the character cf the crqani 2 aticn which had issued the
invitation." The briefinq achieved satisfactory results, and on
October 9, Eledsce decided net tc address the meeting. The ACID,
the judge told Beverend Taft, is "an institution with whose
plans, purposes and methods I have no sympathy at a l l . . .1
must withdraw the acceptance I made to speak." at the judge's
request, the FEI aqreed "to furnish [Bledsce) with a confidential
summary cf the history, activities and personnel of the
ACID. "[13 ]
Althouqh FEI director Hoover assured attorney General Stone
that the Bureau would nc longer cooperate with local "red
squads", the FBI actively solicited information frcm police
intelligence units about radical activities. Cn Earch 26, 1925,
special aaent Hopkins forwarded to Rashingtcn headquarters
"confidential reports covering the activities [of the ACID and
the IHW) " compiled by the Ics Anqeles police department. "This
office and this agent work in very close cooperation (with the
LAPE's radical secticr). . . (T)his agent knows, and assists
in directing, all the operatives furnishinq the data upon which
these reports are based." The field office's contact with the
I.A. "red squad" presumably continued well intc the 1930's even
thouqh Hcpkits closed the office's investigation of the ACID in
November 1925. T 1*0
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FBI director Hcover ordered two ad hoc investigations of the
New York ACLU after reqular ccveraqe ended in late 1925. Cn
February 27, 1929, responding to a personal request frcn the
director, New York SAC C.D. KcKean conducted "a confidential
undercover inquiry. . .at the main office cf the ACID."
Apparently, Ecover had heard that the the New Ycrk chapter had
described "white slave traffic”, once the mainstay of FEI
investigative work and still an important part of the annual
Indget request, as a "minor offense." The investigation,
reflecting Hoover's prurient interests, uncovered nothing. "A
search of the ACLU's file's from January 5, 1926 tc February 21,
1929," HcKear noted, "fa ile d tc develop any such circu lar as the
cne described by you. "f 15]
In March 1931, Hccver requested FBI clerks to compile a
history of the ACLU and a list of the organization's leaders. On
March 19, C.G. Scherken completed the report- Following a
concise summary of the ACLU's positions on such issues as free
speech, conscientious objection to military service, and civil
riohts, the nemc provided bioqxaphical information, gleaned from
mere comprehensive dossiers, or many prominent jurists, educators
and community leaders. The l i s t included Jane Addams, Clarence
Earrcw, John Eevey, Ernst Fruend, Charles Airidcn and Felix
Frankfurter. Schenker's portrait of Frankfurter demonstrates the
Bureau's ideoloqical biases, its extremely narrcw fccus and its
inability tc distinguish between a reformer and a radical.
Schenken referred to a le tte r in which Theodore Eccsevelt accused
Frankfurter cf excusirg anarchists who "threater democracy and
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civilization", in 19 7 7, as counsel to the Eresidert's Mediation
Commission, frankfurter had found th at Ten Mccrey acd Warren
Eillings had ret received a fair trial. In his report, Schenken
maintained that Frankfurter "accepted (Roosevelt's)
characterizations as mere complimentary than defamatory."
Frankfurter, Schenken continued, had en th u siastically enqaged in
"Communistic ard Workers Earty movements" and bad also "supported
and cooperated with the Socialist Party, Socialist LaJfcor Earty
Workmen's Defense Conference, labor Defense Leacue and Communist
Party." While i t cculd be argued that th is eaercise did not
overtly violate the Stone directive (no field investigations were
conducted), it certaiEly demonstrates that the Eureau considered
itself a political police.f16)
The monthly reports cn radical activities filed by FBI field
offices further support this conclusion. The summaries provided
the FBI with a useful overview and improved the accessibility of
information ir its possession. Using these summaries, FEI clerks
could compile dossiers, organizational histories and special
reports ir a fractior of the time it would have taken to paqe
through case files and other records.T17 1
The report submitted by special agent John Haas cn radical
activities iE the New York area during Kay 1925 reflected these
priorities. General categories included "Radical Activities",
"Individuals", "Radical Meetirqs", "Neqro Activities", "Japanese
Activities", "Russian Affairs Abroad", and "General". The
"Radical Activities" section described a May Day rally sponsored
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by the International ladies Garment Workers Union and a
celebratior honoring the twenty-fifth anniversary cf the
"Workman's Circle" held at Madiscr Sguare Garden. "The Public
Speaker was Fugene V. Eebs,n Haas reported, "declarinq that he
spoke for ail classes. . .when he called on the people to
aqitate for the release of Sacco anc Vanzetti. . .and that when
the workinq net thrcuqhcut the world clasped hands they would be
able to »prt an end to capitalism (sic) system, wipe it from the
face of the earth and establish a workinq class republic
throughout the world." In February 1926 Hoover notified the New
York field office that it no lonqer had to compile the monthly
radical repent, explaining that "it is not believed its value
warrants the continuation of it."F18J
FBI intimidation and harassment of the American labor
movement also continued despite Attorney General Stone's
opposition. Unlike his predecessors. Stone believed that the
riqhts of workers to organize, demonstrate peacefully, picket,
and strike were constitutionally protected. Hence, a primary
goal of his 1924 directive was to insure strict government
neutrality in industrial relations. FBI director Hoover,
however, shared none cf Stone's predilections. In ISIS as head
of the Bureau's GID, Hoover claimed that communists inspired 755?
of the strikes in the United States. Unable to separate
political rhetoric frcn basic issues such as wages, working
conditions and job security, Hoover equated labor militancy and
strik e s with treason. As a consequence, between 1S24 and 1936,
the FBI collected and analyzed information about the activities
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of radical later orgarizatiers-f9 11
Hilliam Z. Poster's Trade Union Educational leaque JTUE1)
vas a primary tarqet of FE3 surveillance during this period.
Founded in 1921 the TUEL supFCited the formation of a labor
Earty, recognition of the Soviet Union and full equality for
women, minority and ycunger workers. Khile many of its leaders
were avowed Marxists, the TUE1 initially represented a broad
co alitio n cf communist and ncr-ccmmunist trade union members.
Not a union itself, the TUF1 required members tc belcnq to an
established union, and advocated labor organization alonq
industrial rather ttar. trade lires. To finance its work, the
TUEI relied prim arily on in itia tio n fees, membership dues and
assistance frcm the Scikezs Party, but also received some support
from the Bed In tern atio n al Labor Unions (Profintern). Assistance
from Profirtern led the FBI tc believe that TUEL was a
”subversive" organization which served the intersts of a foreign
master and, therefore, precluded it from '’indulqicq cr
p articip atin g sincerely in any American movement."T201
In early 1922, the FBI opened an offensive aqainst the TUEL
in an effort to smash the organization before it gained any
influence ir the lahcr movement. During the campaign, the FEI
hired informers, regularly disrupted TUEL meetings and compiled
lengthy syrcpses on leaque activities, intentions and strategy.
In August 1922 FEI agents in cooperation with lecal officials
raided a TUFI/Communist Earty strateqy meeting in Bridgman,
Michigan arc arrested F ester and 15 ether Leaque o ffic e rs under
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tie Michigan syndicalist la*. k September 1922 report attested
tc the effect of the FBI’s teracicus efforts. The FEI agent
concluded that constant surveillance had demoralized leaque
members, "badly shaker up" League secretary Fester, and because
cf "tall abort there beinq a ’traitor' high up ir the (TDEL).
. (a)ll the reds are iE favor cf cleaninq house."1!211
Following the Stcre reform, the FBI found it necessary to
cover TDEL affairs more d isc re etly . Emphasis shifted frcm crude,
overt intimidation tc an exclusive reliance on the work of paid
informers. Whether for ideological or financial reasons, several
TDEL officials reqularly furnished the FEI with confidential
information. In February 1927 an FEI informer attended a secret
Communist Party/TDEL meeting in Chicaqo. Disturbed by a recent
decline in party membership, down by almost 35% , from 11,000 to
7,000 active members, 50 party and TDEL leaders decided to
emphasize tie recruitment cf minority and younger workers to
increase party membership. " (I)t was decided," the informer
advised the FBI, "that the ecumenist Party (and TOIL) from now on
must devote at least 75 percent of its activities to trade union
work." In January 1928 a confidential informer attended a TDEL
conference ir New Ycrk and reported that it was "most
revolutionary". The delegates discussed "plans for breaking into
the ranks cf the American Federation cf Labor", the basic
strategy of the TDEL since its founding seven years earlier.
Strikes lec by TUEL ic 1927, the informer learned, cost the
League approximately $25C,0Q0, 3100,000 of which was paid by
Frofintern. In a conversation with the . informer, Fester
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optimistically claimed that "he expected real work cn a bigqer
scale to result from the conference. 'T 22 ]
FBI surveillance extended se ll beyond the TUFI to include
the monitoring of political meetings and public rallies sponsored
by liberal arc radical organizations. Prior to Stone*s 1924
order, Bureau agents, assisted by local police, disrupted these
meetings, brt generally, FBI agents Cor their hired informers)
sent only tc jot dcwn the cames of the speakers and the main
points of their addresses and to estimate the size cf the
audience and its reaction tc the speeches. While department
policy prohibited surveillance of this kind after Stcne took
office, the FBI collected information about various protest
meetings after 1924. Ihe Bureau's investigations of the
Sacco-Vanzetti Defense Committee is a case in pcint.T23]
In the spring cf 1927, the Sacco-Vanzetti Defense Committee
hoped to mobilize public opinion to persuade responsible
government officials to stay the execution cf the twc convicted
anarchists. Hass demonstrations, the committee thouqht, might
succeed where legal appeals had not. Cn ipril 16 and July 7, the
committee sponsored rallies in New York's Union Sccare which drew
approximately 20,000 persons. ftt the July 7 demonstration,
Fiorello laGuardia, Scott Nearinq, Sidney Hillnan and Carle
Tresca addressed the crowd before New Ycry City pclice broke up
the meeting with clubs and cas. FEI aqent Jchr. Haas attended
both events, rcted the speakers' names, and summarized th eir
speeches.T24 1
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Far coverage of the Sacco-Vanzetti Defense Committee's
activities intensified as the scheduled date of execution drew
near. On August 6, F3T d ire c to r Hccver instructed a ll
Agents-in-charge to "make every effort to keep fully informed as
to the (activities cf the defense committee) in yocr district,
.see that every secrecy is maintained land) keep me advised by
wire of developments.11 Although Ecover la te r explained to
Attorney Gereral Sargert that these investigaticns were conducted
tc protect federal property and the lives cf federal officers,
several field offices indulged in general intelligence
investigations which were wholly unrelated to potential violence
or disorder.T25 ]
In the San Francisco Bay area, FBI agents contacted local
"red sguads" and assigned agents tc work "under cover" tc gather
information cctcerning "radical activities." The St. Louis field
office trarsmitted the names of individuals who participated in a
peaceful pretest a month earlier. On August 16, special agent
E.J, conrelly submitted summaries of several meetings held at
the Italian Fraternal Hall and clippings from tie St.. Lcuig
Post-Dispatch which called for a stay of execution until new
evidence cculc be thoroughly reviewed. "(T)he attitude cf (the
Post-Dispatch)C o n n elly concluded, "can readily he determined."
From Butte, Montana, special agent D.H. Dickerson reported that
a "confidential informant" planned to attend a meetinq pretesting
the executicr. The Atlanta SAC suspected that communists had
infiltrated the defense committee and informed the director that
he was "making a discreet and confidential investigation" of the
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n a t t e r . r 26 ]
The repression intensified Hoover's antipathy toward
communism. Bs the United States slid slowly irtc its qreatest
economic c r is is , and despair and public d issa tisfa c tio n with
President Herbert Hoover's policies increased, many Americans
took to tie stre e ts tc p retest unemployment and increasing
poverty. The demonstrations became known as "Hunger Marches".
FEI director Hoover wildly cverexaqqerated the Communist Party's
appeal to the unemployed, fearinq that it would exploit the
Hunqer Marches in an e ffo rt to crive a wedqe between the American
people anc their qcverrment. Hence, the "FBI closely monitored
attempts to organize protests and demonstrations against the
Hoover administration's economic policies.f27 ]
Veterans' marches were a prime investiqative target. In May
1930, word reached FEI d irecto r Hoover that the Ccmmunist Party
had shown considerable interest in organizing ex-servicemen who
had not receive qovernment pensions. I. Weiss, secretary cf the
Workers Ex-Servicemen league [SESL) , contacted Charles Gwynne of
the New Fork Chamber of Commerce and offered tc s e ll Gwynne
informatioi ccncerninq communist activities in the WFSL. Gwynne,
a former intelligence officer in the Army, informed the FEI cf
Weiss's offer. On Hay 28, special aqent C-D. McKean advised
Hoover that, havirq conferred with "our own confidential
informant [in the Communist Party)" and ether intelligence
officers in the New York area, Weiss "is a fraud and merely
seeking a position", and should net be hired as an FEI
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informer-T28 ]
r While the New York office chose not to employ Weiss, other
paid informants in the Communist Party kept the FBI up tc date cn
the WESL's plans. On January 20, 1931, in a letter to the State
Department, Hoover concluded that the WES1 was an "active
Communist unit- . -and is at present trying tc orqanize an
impressive number cf ex-servicemen for the purpose of a *Hunger
Harch* to Washington. The campaign is conducted by the league
under th e direction cf the Central Committee of the Communist
Earty. *T 291
In the spring cf 1932, when the Eonus Army sta rte d tc
assemble cn Arascctia Flats in Washinqtcn, C.c., FEI director
Hcover -joined the chorus of cabinet and ether o f fic ia ls who
advised the President that the demonstration was a
communist-inspired plot. By mid-summer,ever 20,000 unemployed
veterans had set up a make-shift camp which sw iftly became a
major political liability to the administration, symbolizing its
in ab ility to address so c ia l and economic problems e ffe c tiv e ly .
In late July, exasperated by the refusal of the Eonus Army to
leave the capital peacefully and convinced that "subversive
influence obtained control" cf the demonstration, Eresident
Hcover instructed the army "to resto re order". On July 28,
reqular army units, using calvary, tanks and tear gas, routed the
veterans, turned their temporary shelters and, in the process,
killed four and wounded hun dreds. f 30 1
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Follovinq the riot, the press roundly criticized the
Eresident fcr failing to deal with the veterans more
compassionately. Oc August 1, in an effort to allay this
criticism, the Eresident called the heads cf several
investiqative aqencies, including FEI chief Hoover, to the Shite
Hcuse and asked them to i n it ia t e in v estig aticrs cf communist
infiltration cf the Eonus Army. FBI field acects attended
meetings pretesting the administraticn*s brutal treatment of the
Bcnus marchers and, assisted by railroad police, carefully
monitored the movement cf Bcnus marchers throuqh important rail
yards. Chicaqo SAC W.A. McSvain assigned several agents tc
attend rallies and contacted H.A. Kline of the Hargrave
Detective Aqency and lieutenant Bake Hills cf Chicago*s "red
squad11 to s o lic it information atout communist influence in
veterans crgarizatiens. Hew ycrk SAC C.A. Appel informed the
Eureau that at a rally held in Onion Square the "WESL and the
Communist party openly accepted responsihility for the bonus
march11. "I instructed (special aqent) Quinn to have his agents
prepare affidavits of what took place last night" and to make
qeneral inquiries at banks used by the HESI "in order to prove
that the source of (their) money was the Communist Party, or
other Communistorganizations cr individuals." Ihe FBI
investigation, however, did not turn up any evidence, admissible
in court, tc prove that the Eonus march was "a rec plot" and the
federal grarc jury investigating the riot indicted only three
men, none of thorn were communists.r31 1
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Fcr the text two years, the spectre of a second Bonus Army
haunted FEI director Hoover. Field offices remained on constant
alert and were instructed to report any attempt tc crqanize a
sim ilar dem crstraticn. On November 23, 1932, St. louis SAC E.M.
Ladd summarized inform ers' reports cn Communist Farty involvement
in the proposed National Hunqer March cn Washinctcn. Scheduled
fcr December 5, the march dres about 3500 demonstrators who
camped in a secluded park in the Northwest section of the city.
On December 6, the marchers presented congress a petition urging
i t to adept a comprehensive unemployment insurance act. Later
that same day, the demonstrators peacefully disbanded, leaving
the city under pclice protection. A year and a half later, on
May 2, 193h, Hoover ordered FBI field offices tc survey "all of
the principal cities of the U.S. tc determine the number cf
Eonus Marchers reported tc be en route to Washington." In Salt
lake City, special agent Louis Wine conducted "an under-cover
investigation cf the WESL" and concluded that the "organization
was engaqed in communistic a c tiv itie s and probably the
dissemination cf communistic propaganda." Cn May £, the New York
office reported that 15 00 "Bonus advocates", who were "affiliated
with (the) Communist Earty of America" had left the city fcr
Washinqton. On May 18, 650 "rcuqhly clad men, a handful of
women, a small boy and a doq", marched past the White House and
the Capitol building, stcppirq only to pay their respects to
those who had died in the 1932 riot.f32]
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Daring tie earl? pest war years federal officials were quick
tc blame tie Soviet Union for inspiring widespread domestic
unrest. Eelieving that radical organizations were controlled and
financed ly the Bolsheviks, the FEI shared general intelliaence
information with the State Department, at the Bureau's request
the State Department monitored the a c ti v it ie s of American
citizens travelling afcroad. Suliects of State Department
surveillance included labors leaders, academics, and such
prominent critics of the Justice Department as Felix Frankfurter
and Swinburne Hale. An amendment to the 1916 Appropriations Act
allowed the Secretary cf State to request FBI investigations in
special instances, for example, the dynamiting of a consulate or
the suspicious movements of a diplomatic attache. But the
informal exclanqe of intelligence information could not be
■justified under this law. Thus, FEI cooperation with the State
Department was predicated upon the assumption that an individual
"who advocates Marxism-Leninism might gust as well be working as
an agent cf a foreign power because he is aiding his cause." The
problem cf course was that Hoover lumped a l l advocates of change
together.r 33 ]
Though Stone's 1S24 directive did not explicitly state it,
the intent was to preclude the FBI from sharirg information about
lawful political activities with the State Department cr ether
federal agencies. Hccvex addressed this subject in his July 21,
1924 memorandum to stone, assuring the Attcrrey General that
investigaticrs conducted fcr the State Department were limited to
violations of the passport laws. "The system,.in fact, was based
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upon the aFFrehension of fugitives applying fcr passports tc
leave the country'1. Hoover explained, "and is still operated fcr
that purpose.n In December 1924 the Attorney General asked FEI
d irecto r Hcover "whether the Bureau would have the authority tc
investigate Soviet and Communist a c tiv itie s within the United
States for the State lepartment in connection with the question
of the recognition of the Soviet Government." Eccver informed the
attorney GeEeral of the previsions of the 1916 appropriations
lav, addinq that the FEI could conduct such investigations only
"upon formal request ty the Sec reta ry gf State and approval of
the Attorney General {emphasis added). "[341
Despite these assurances, FEI director Hoover independently
solicited irfcrmaticr frcm, and provided data to, the State
Department frcm 1924 through 1936- On October 5, 1927, Hoover
informed Robert F. Kelley, chief of the State Department’s
Division cf Eastern European Affairs, that the executive board of
the TUEL would meet in Cecember 1927 to discuss " tie orqarizaticn
of Industrial Unions, a Labor Earty", and a strateqy to affiliate
"Workers cf other countries for the -joint defense of common
interests ard establishing World Trade Union Unity." A month
later, Hoover reported to Kelley that the "TUEL now controls the
entire membership of a ll New York unions." The TUEL was about to
implement plats, Hoover concluded, "to take over the executive
power of the unions in this country."r35 1
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Through Us confidential informants in the British labor
movement, Kelley occassicnally obtained TUEL documents which the
FBI had been enable to secure. On October q, 1S2S, Kelley sent
Ecover a copy of the minutes cf the TOEI's executive board,
meeting held in Cleveland in September, prepared for exclusive
use by the executive beard, the minutes detailed TUEL finances
and expenditures and its strateqy fcr orqarizinq workers in large
American industries. Through these same channels, Kelley was
able to cbtain infcrmaticn concerning other labor union
activities. In October 1929 Kelley sent Hccver a copy cf a
letter from the Southern Organizer of the National Textile
Workers appealing for money to a s sis t in the defense cf wcrkers
charqes with offenses stemminq from the Gastcnia, North Carolina
strike. Twc and a half years later, in January 1932, Kelley
forwarded Hoover a copy of the National Miners Onion
constitutici, noting that the organization Mis the most active of
a ll communist unions in the United States at the present
time."f36 ]
Hoover, then, had the best cf both worlds: a clean public
imaqe based upon e fficie n t conduct of the FBI’s legitim ate
business arc the advataqes of surreptitiously continuing illeqal
practices. Eut it was a delicately maintained wcrld. While the
FEI engaged in p o litic a l surveillarce in violation of department
policy, director Hoover actively opposed leg isla tio n which would
have required the Bureau to investigate subversive activities if
Conqress cic not first make these activities illegal. In 1930,
Hepresentative Hamilton Fish, Jr., chairman cf the special
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committee iEvestigating communist activities in the United , t " *» States, sponsored a till requiring the FBI "to investigate
•communist and revolutionary a c tiv ity . »•' In his appearance before
the committee, d irecto r Hccvei argued that while communist
doctrine Fcsed a serious threat to the cation's security, the
Bureau should net be required tc investigate communists until
Congress adopted a peacetime sedition law which clearly
prohibited communist a c tiv itie s . "If the Eureau is qiven the
power to investigate (subversive activities)11 in the absence of
such a law. Hoover insisted, "it would be in a position cf having
a mass of material with which nothing cculd be dene." In January
1932 Hoover explained to attorney General Sarqent that
Congressional authorization of political surveillance would
jeopardize the Bureau's effect!veress because the legislation
would lead to allegations that the FEI was a political police
whose very existence threatened Constitutional rights: "The
Department and the Eureau would undoubtedly be subject tc charges
in the matter of alleged secret and undesirable methods in
connection with irvestiqative activities, as well as to
allegations involving charqes of the use of 'Agents
Provocateurs'."F 37 1
Hoover's fervently anti-communist convictions best explain
why he took risks to collect ostensibly useless information. His
p o litic a l views had been forged in the heat of the post-war Bed
Scare. He believed that communist conspirators had infiltrated
every important government, educational and religious institution
and "threaten the happiness of the community, the safety cf every
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individual, and the continuance of every hone and fireside. They
would destrcy the Feace of the country and thrust i t ixto a
condition cf anarchy and lawlessness and immorality heyond
im agination.1' From 1919 throuqh 1924, under GID chief Hcover* s
direction, the FBI had successfully disrupted the activities of
radical political ard labor crqanizaliens. although Stone's
order stayed similar aggressive intelligence activities after
1924, Hocver believed that i t would irresponsible for the Eureau
to ignore the activities of individuals and organizations
"antagonistic to the conception cf American principles." Despite
his testimony before the Fish Committee, Hcover presumed that any
information gathered clandestinely was "intrinsically valuable"
and would he useful in some future emergency. Thts, when the FEI
drew up a 1943 custodial detention list, Eureau employees relied,
in part, on irformaticr about an individual's participation in a
1932 hunger march to justify placinq that person on the detention
index.T38 ]
In view cf the high stakes, the Eureau had to keep its
political intelligence operations absolutely secret. Tc achieve
th is goal, FEI director Hcover ccrsciously sacrificed volume for
confidentiality. The Bureau assiqned only a limited number of
aqents to full-time internal security work ard tcck the
additional precaution of replacing these agents on a reqular
basis. Hcover realized that a disgruntled aqert who knew too
much could undermine the e n tire program by leaking important
documents tc a powerful congressman or a respected journalist.
If unauthorized agents requested permission to initiate an
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investigation of political activities, the director vculd
perscnnally cuash the request and explain the 11 Bisunderstandinq,,.
On September 16, 1926 D etroit SAC H.W. Faqe informed Hoover that
he anticipated the TDEL to "spread propaganda" at an Anerican
Federation cf Labor convection tc be held the follovinq week in
that c ity . Rage, noting th at special a>qent Haas cf the New York
field office "is expecting an investigation and report by this
office", asked the director if the Eureau "desired that this
matter be covered." Cn September 25, Hoover notified Kaqe that
"ln)o investigation cf so-called radical activities should be
undertaken by your office unless there is a viclaticn cf a
Federal statute involved", addinc that Haas's report had been
"transmitted to you merely as information, not for any
investigative attention by your office." Two years later, in an
effort to tighten security, Hcover relieved the Few York field
office of its internal security responsibilities ard ordered that
informers in the TDEL and other communist organizations report
directly tc Kashinqtcr headquarters.T39 ]
Hoover's fears that one of his agents miqht blew the whistle
and expose illegal FEI surveillance were not entirely qrcundless.
On January 2 1, 1927, Franklin Dcdge, a former FEI agent from
Grand Rapids, Michigan, met with Senator Thomas Ralsh, for years
one cf the Justice Department's harshest critics. Dodge told
Walsh privately that the Eureau hac continued to investigate
radical activities after 1924 and had shared that information
with the State Department's Eastern European Division. Dodge
also informed Walsh that since at least 1920 the FEI had supplied
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"friendly" journalists with information from its extensile files
in return fcr favorable publicity. He later sent Kalsh a
photcstatic copy of a letter tc pro ve this allegation. Eodge
fu rth er alleged th at Eoover had misused Bureau funds, spending i t
fcr private vacaticr ard travel expenses. Nothing came of the
meeting, except a promise from Salsh that when the Democrats took
power once again he would see to it that Bureau policies would be
fully-revieuec and Hccver fired-ThO]
Consistent with his public statements, Hccver refused
private recuests to investigate political activities. Or January
10, 1927, Earl Hauck, a fcrmer FBI agent and attorney to the
United Mine Workers, informed the Bureau’s Indianapolis office
that he expected "nary cf the active and most resourceful
Communists" to attend the upcoming UMW convention. Hauck invited
the Eureau tc assign urder cover agents "to watch the movements
cf the Conncnists at the ccnventicn." If the Eureau cooperated,
he offered to exchange information gathered by his cwn under
cover operatives. If necessary, Hauck offered to travel to
Washington to personally b rief FBI chief Hccver and fin alize
arrangements with him. On January 18, Hoover told Indianapolis
SAC T.E. Eayliss to "advise Mr. Hauck that this Eureau is
unable tc take any investigative action except in cases where
there is reascn to believe that the existing Federal laws. .
.have been violated." Cn January 15, 1935, Bepresentative Louis
Ludlow of Indiana phcred the Bureau to find out i f the 1UEL was a
"communist organization". k fter consulting assistant director
E.C. Tamm, special agent E.L. Fagan returned.Ludlcw's c a ll and
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informed him that the FBI ’’had mace no investigation of the
TUEL". It was his personal opinion, Faqan continued, that the
TUEL "was generally thought cf as a Communistic o rg an izatio n ,”
but that the EEI ’’could maJce no official statement regarding this
organization inasmuch as we had net conducted any investigation
in connection therewith- 'T 411
In an imaginative strateqy, FEI chief Hoover used
unsolicited requests to demonstrate to his superiors that the
Bureau stricly followed department regulations. Ufon receiving a
request fcr ar FBI investigation of political activities. Hoover
would forward the letter to the attorney General, reminding him
that the Eureau lacked jurisdiction- Cn august 2 1, 1S2S, Curtis
Bush, a businessman from the midwest, informed the Justice
Department that the TUEL was ”very busy in tryirg to get recrcits
and organize seme industries” ir. the area. ”If it is at all
possible”, Eush declared, ”1 think the Government should send in
a trained irvestiqatcr tc keep track of the activities of these
Communists". In an august 26 memorandum, FEI director Hccver
advised assistant attorney general Oscar Luhring that the FBI
could not investigate Bush’s charges- ’’This Eureau, as you know,
dees not investigate any matters unless {a federal law has been
violated)." "Communist a c tiv itie s , including the a c tiv itie s of
the TUEL, are not matters which have received. . . the
investigative attention of this Eureau-’T ^2)
*****
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Althcuqh Stone’s crder was net officially revised until
August 1926, FBI surveillance policy changed substantively during
the second year of the Roosevelt administration. Kith the
exception cf the irvestigaticn cf the Bonus Army, Presidents
Coolidge and Hoover did not find it necessary tc use the FBI tc
collect general intelligence information; yet it would be a
mistake to conclude that th is stemmed from a genuine commitment
to free expression and association. Coolidge and Hoover, for
example, had no fundamental objection tc sta te suppression of
radicals, the use cf labor injunctions to break s trik e s ,
blacklisting and other corporate union-bustinc activities.
Father, Stcne's reforms fit the Republican model of federalism
which emphasized d e c e rtra liz a tic n of power. Franklin Eoosevelt
brought to the Presidency a more spacious view of federal and
executive authority than either of his two Republican
predecessors. Cn Hay 18, 1934, Eoosevelt signed into law a
series of tills which greatly increased the scope of FBI
jurisdiction ever criminal offenses. The new laws, for example,
broadened the Eureau’s ju risd ic tio n in cases invclvinq extortion,
kidnapping, fuqitives, and the killing cf federal officers. Ten
days earlier, without any of the fanfare that cccassioned the
sicninq cf the new additions to the federal criminal cede,
Eoosevelt unilaterally extended the FBI's authority to
investigate political activity, and by the erd of the year.
Stone's order had beer reduced to a dead letter. FBI chief
Hcover relished his new role as the President 's intelliaence
valet and cversaw these investigations with great enthusiasm.f43]
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A little less than two months before Fcosevelt’s
inauquaraticr., Adolph fiitler and his Nazi Party tcck power in
Germany. Almost immediately the spread of fascism threatened the
future of European and world peace. In the United States,
ultra-rightists, many cf whom openly sympathized with the Nazis,
complained t l a t President Roosevelt and his adm inistration were,
amonq other thinqs, tools of the internaticra1 ecumenist
conspiracy ard were planninq tc turn the United States over to
the Soviet Union. Hhile much of the riqht-winq rhetoric was
entirely itrccuous, ties between the German government and
several riqhtist splinter qroups, includinq the German-Anerican
Eund, led tc suspicions that Bundists were "Fifth columnists",
ready to bore from within to undermine American fa ith in
democratic institutions. Many important federal officials,
including the President himself, shared these suspicions, and on
Kay 8, 1934, Roosevelt convened a conference at the Hhite Hcuse
to discuss the problem. At the meeting, which was attended by
Attorney General Homer cumminqs. Secretary of the Treasury Henry
J. Marqanthau, Secretary cf Labor Frances Perkins, Secret
Service chief W.H. Moran and FBI chief Hcover, Eoosevelt
instructed the FEI to qather general intelligence informaticr cn
the activities of the Nazi Movement in the United States and
determine if the German embassy or ccunsulate "may have any
connection with the (qroup)." In their search for a
jurisdicticEal basis fcr the iivestiqation, the conferees decided
that the FEI should cooperate with the Immiqraticn Bureau, then
still a part cf the Later Department, "since the cnly federal law
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that might be applicable to (the investiqaticn) at the present
time would fee the Immigration law.” Two days later, FBI director
Hccver ordered the Bureau’s field cfices "to i n it ia t e an
intensive investigation of activities cf the Nazi qrcup. .
. Jane) slculd be considered as a so-called intelligence
investigation."! 44)
In a further extension of the Eureau's authority, Roosevelt
asked FBI director Hccver tc investigate a domestic labor crisis.
Onlike the investigation of American Nazis, the President made no
attempt tc justify the jurisdictional basis of the inquiry. On
September 1, 1S34, Francis J. Gorman, vice-president of the
United Textile Horkers (OTW) called for a gereral strike against
mills from MaiEe to Georgia. Throughout the summer mill owners
had failed to bargain in qood faith. They refused to raise
wages, improve working conditiors and comply with section 7(a) cf
the National Recovery Act. By Tuesday, September over 175,000
workers had joined the picket lines and within several days,
another 200,000 persons walked off their jobs. "The qeneral
strike in the textile industry," Bobert B. Ercoks writes, "was
unouestionably the qreatest sinqle industrial conflict in the
history of American organized labor."T 45]
In Rhode Island, where the industry employed 50,0 00 workers,
members of the UTW picketed every mill. Gcverncr T.H. Green,
claiming tlat the Communist Part? had inspired the walkout,
called out the National Guard to suppress the strike. The
display of fcrce "triggered violence". Rioting spread from
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Saylesville to Woonsocket and threatened several nearby teens.
The state legislature refused Governor Green’s request tc ask fcr
federal assistance tc suppress the strike and, even though
federal lav reguired the legislature's approval. Green appealed
to the President to dispatch federal trcops to Bhode Island.f46]
Upon receiving a telegram from Governor Green vhich
maintained that the "'Communist party anc the lawless eleirent'
were 'destroying cities ard towns", Fcosevelt asked the FEI to
investigate the "actual conditions existing in the strike area".
On septemter 14, Hccver reported that following initial
confrontations, conditions had stabilized and that his agents had
"observed nothing which could possibly justify the use of Federal
troops." Although the memc accurately reported important
information concerning a potentially serious crisis, Hccver
inferred that the viclerce was politically motivated. "Numerous
Communists from New York and Connecticut have been arrested
throughout the state". Hoover claimed, addinc that " Tc)cn
siderable Ccnnunistic literature has been found in the Communist
headquarters in Pro vidence. "f 47 ]
The Rccsevelt White Hcuse also used the FBI to screen
orqanizatiens that had criticized administration policies. On
December 5, 1934, Wilma Meredith, secretary tc White Hcuse aid
Stephen Early, phoned FBI directo r Hoover to s o lic it information
about the ACIU. The ACLU's executive board had requested a
meeting with the Presidert and invited him tc prepare a messaqe
outlining the administration's positions cn such politically
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sensitive issues as the riqhts of labor to organize, and the
proposed federal anti-lynching law for an upcoming conference on
the New Eeal and civil liberties. Hhile the ACLO believed that
some New Deal legislation could have an important impact on the
protection cf individual rights, especially section 7a of the
National Recovery Act, the organization withheld any qeneral
endorsement cf the Bccsevelt program. '‘The ercrncus increase in
the power cf the federal qcvemmert under New Eeal policies
carries with it inevitable fears of inroads cn the right cf
agitation11, the AC1U leported in 1934. “Alarms are widely
expressed over alleqed dictatorship by the Iresidect, the
abroqation cf states' riqhts anc the vast economic powers of the
federal government, reaching cut to every home and business in
the land. “ FEI director Hoover acreed tc "prepare" a background
memorandum fcr Early's use, but advised Keredith that "this
organization does not tear a particularly gocc reputation.
. (and) th at a message from the President miqht diqnify an
orqanizaticn which should net be diqnified." In the recent past,
Hccver continued, the ACLO had sponsored “vigcrcus and vicious
campagins le r what they c a ll 'c iv il l ib e r tie s '" and, for that
reason, a statement by the President "miqht offend many who hold
tc conservatism and law enforcement." The fihite Horse apparently
agreed with Hoover that Presidential reccgniticn cf the ACLH
would have serious political ccnsegcences, and Roosevelt neither
met with ACLO representatives tc discuss civil liberties issues
or sent a message to the conference^ 48 ]
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 286
By 1836, then, Eoosevelt and Hcover fcac developed ar
"understanding" unique in the relationship tetweer the President
and agency heads, who rcrnally are responsible to the relevant
cabinet officers. Eoosevelt knew that Hoover was not overly
concerned with formality and wculd ignore -jurisdictional problems
that would have otherwise tarred FEI intelligence investigations.
Hcover, in tu rr, understood that the President, like him self, was
given to "a natural affinity fcr the intelligence process, a
qcssipy and voyeuristic delight in the insider's role, and a
callousness tc the claims alike cf privacy and free expression."
Thus, as his fears of "subversive a c tiv itie s " mounted, Eoosevelt
consulted with FBI director Hoover, not his superior, attorney
General Cunnings, or Congress. During his August 1936 meetinq
with Eoosevelt, Hoover was able to persuade him that labor
militancy arc domestic radicalism, net simply Nazism, constituted
a serious threat to the nation's security. Following this
discussion, Sccsevelt officially {if secretly) rescinded the
department tar. cn ncn-criminal investigations, issuing the FEI an
open-ended mandate to scrutinize political and labor
activities.T 49 ]
One of the most strikinq and disturbing characteristics cf
FEI political surveillance between 1924 and 1936 is the
lackadaisical attitude of Congress and the Executive, In 1924,
when Stone announced his reform, he took no positive steps tc
prevent the FBI from simply continuing political investigations
under a new quise. He did not, for example, force the FBI tc
turn over tc him documents which would have proven the political
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 287
nature of many FBI investigations and that Hcover, despite his
disclaimers, directed many cf these illegal investigations.
Conqress did little tetter. Followinq its investigation cf
former Attorney General Dauqherty ard the politicization of the
FEI under William Eurns, Conqress allowed the executive to
clean-up its own house and did net seriously consider legislation
to prevent illegal FEI surveillance. This abdication cf
authority wculd have sericus consequences, when on the eve of the
Second world war, the FBI intensified its surveillance of lawful
political activities, and, cn its cwn initiative, developed a
custodial detention plan to hold '•subversives” in case cf an
emeraency. But tc understand hew the FEI qained this
discretionary authority in the security field, it is necessary to
examine the Bureau's chanqing public image during the 1S2C,s and
1930’s and i t s r is e to national prominence. It is tc these
issues we new turn. f50]
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. NOTES
1) "'They Never Stopped Hatching os': A Conversation
Between Bccer Baldwin and Alan F. Westin", Civil liberties
Review (Novenber/Decenter 7977), 25.
2) See "Ax Analysis of FBI Domestic Security Irte llio e n c e
Investigaticxs: Authority, Official Attitudes, and Activities in
Historic Perspective tsic),M Senate Select Committee to Study
Governmental Operaticrs with Respect to Intelligence Activities,
Hearings, vol. VI, FBI, S4th Ceng. 1 sess. (1975), 547-575.
3) A partial list of historians reaching this conclusion
includes Frank J. Bonner, The Age of Surve illa rc e : Tbe Aims and
Beth_ods of America1 s P o litic a l Inte llig e nce System (New lork,
1980) ; Athan Theoharis, Scving on Americans: From Hoover to the
Huston Plan (Philadelphia, 1978); David Hise, The American
Police State (New lork, 1976); Merton Halperin, et a l . , The
Lawless State (New lork, 1976); Sanford Ungar, FBI (Boston,
1976) ; Fred J. Cook, The FBI Nobody Knows (London, 1964) ;
HiIliam Preston, Jr., Aliens and Dissenters: Federal Suppression
oZ Radicals, 1903-1933 (Cambridge, 1963); Donald Johnson, The
C ha l.le nge to American Freedoms: So rid Hap I and the Rise of the
American Civil Liberties Union (Lexington, 1963); Paul Murphy,
The Meaning of Free Speech: The Firs t Amendment Fron Hilson to
288
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 289
FPU (Greenwich, 1974); Don Whitehead, The FBI Stcrv; J Report
to the American People (New York, 1956,); Bax Iowenthal, 2he
Federal Bcrean of In v estig atio n (New York, 1950). Several
authors have noted in their footnotes that the FEI investigated
p o litic a l a c tiv itie s between 1924 and 1936, bet ncne offer a
sustained aralysis cf these investigations. See especially,
Theoharis, Spying on Americans. 255-56; Prestcn, Aliens and
Dissenters. 336; Jerold Auerbach, labor and liberty: The
LaFollette Committee and the New Pea 1 (Indianapolis, 1966), 30.
Senate Select Committee to Study Governmental Cperations With
Respect to Intelligence Activities, Final ReFcrt, Intelligence
Activities and the Eights of Americans. Book II, 94th Ceng., 2d
Sess. (1976) ; Final Report, Supplementary and Detailed Staff
Reports on Intelligence Activities and the Bights cf Americans.
Book III, 9 4th Cong., 2d Sess. (1976).
4) Freedom of Information Act, 5 O.S.C.552. Because of the
processing fees involved in ay more extensive FCIA reguest, this
essay w ill be based on FEI f il e s released by the Bureau prior to
Hay 198 1. A fee waiver reguest and appeals are pending, and if
granted, files compiled on more than 20 organizations and 36
individuals will he forthcoming. Files cn the fcllcvirg
organizatiers have beeE released as a result of my own and
ethers' FCIA reguests; Workers' Ex-Servicemens League, Trade
UEion Educational League (re-named the Trade UDion Unity League
in the la te 1920's), United Mine Workers, United Textile Workers,
Unemployed Citizens Council, American Civil L ib erties Union, and
the Saccc-Varzetti Defense Committee. FBI files cn the ACLU are
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 290
located at the ACID's Sew York o ffices and can he seen upon
request. The files cr the Sacco-Vanzetti Defense Committee are
in the possession of the Eoston Public L itrary and can be seen
upon request. The reirainder are in the author's possession-
5} Senate Select Committee on the Investigation cf the
Attorney General, Hearings. 68th Conq. 1 sess. (1929) ,
3251-3263.
6) Hoover tc Stcre, 7/31/29, FEI f i l e s , ACID. The ACID,
Hoover claimed, was "consistently and continually advccatinq.
. the attempt cn the part cf the communistic element to paralyze
labor unions." The ACIU's existence. Hoover continued, "depends
larqely upcr its contimed agitation and the fostering of the
confusion in a defense of the terms 'liberty* and ’license*."
Kccver tc Stcre, 7/31/29, FBI files, ACLO. Eecent research
demonstrates that contrary tc Hcover's denials in the 7/31/29
memorandum, the FBI regularly eavesdropped, wiretapped, brcke-in
tc houses, neetinq halls, and offices tc gather evidence, hired
informers who became aqent provocateurs, and spied cn a wide
variety of lawful political activities. See especially, Cavid
Williams, "'Sowing the Wind': The Deportation Raids of 1920 in
New Hampshire", 39 Histcrical Jew Hampshire {Sprinq- 1979), 13-18;
"'They Never Stopped Watchinq Os'; A Conversation Betweei Rcqer
Baldwin arc Alan Westin", C iv il l ib e r tie s Revi ew. 20; Donald
Jchnson, Challenge to American Freedoms. 75-78. Also see.
National Poular Government league, To the American People :
Report Dpon the Illegal Practices of the D rited Sta tes J ustjce
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 291
Department {Washinqton, E.C., 1920), 29-30.
7) Hoover to Stone, 7/31/24, FEI f i l e s , flCIU.
8) A than Theoharis, in Spy*110 2.2 Americans. raises the
p o ssib ility that Cold Bar presidents miqht have qiven sim ilar
verbal authorization tc the FBI tc initiate custodial detention
proqrans. See pp. 40-64. There is a t lea st one example,
however, of Hoover attempting to persuade an. Attorney General
that there was somettirg insidious abort an organization like the
ACID. On September 9, 1924, Hoover sent Stone a copy of a letter
written by ACIO cirectcr Boqer Baldwin to Clinton Taft of the
California CIO which outlined the organization’s official policy
on defending the riqht of communists to free speech and
association. The letter was stolen sometime in Auqust 1924 by
one of the Bureau's undercover agents still operatinq within the
grcop. Hoover told Stone that the letter indicates "very clearly
what the views of the American civil liberties Onion are with
reqard to the right of freedom of speech and freedom cf press.11
There is no indication in the departmental records that Stone
ever read the memo, cr if he did, what he replied. Hoover to
Stone, 9 /9 /2 4 , Justice Department file 202600-823, Heccxd Group
60, National archives, Washington, E.C. Also see note 4C, supra.
9) William Preston, A liens and D issenters. 241-243;
Supplementary and Detailed Sjaff Be ports on Intellioence
ac tiv itie s anc the Bights cf Americans. 389.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 292
10) Senate Select Committee, Hearings. 553. t i t t l e is known
atout Hoover's relationship with attorneys General Sargent and
Mitchell. Nothinq in the record, however, suggests that Hoover
ever broached the subject cf political surveillarce with either
man.
11) Hopkins to Hoover, 8/23/24, FBI f ile s , ACIU.
12) Hcpkins to Hccver, 9/26/24, FEI f ile s , ACID.
13) Hcpkirs to Hccver, 9/26/24; Hcpkins to Hoover, 10/3/24;
Eledsoe to Taft, 10/9/24; FBI files, ACIU.
14) Hcpkirs to Hccver, 3/28/25; "American Civil liberties
Union. Southern California Branch. A ctivities. I. A,
California. Jan'Feb*March 1925"; FEI f ile s , ACIU. "This case",
Hcpkins reported, " is fceinq closed fcr the reason that no special
investigations of the activities in questions are being made.
. Case will be re-cpened in the event anythinq of importance
develops." The San Francisco, Chicaqc, New Fork, lew Haven and
Pittsburgh field offices also maintained clcse ties with local
"red sguads" tbrcuqhcut the period. See Sacco-Vansetti Defense
Committee, FEI f i l e s , Eoston Public Library; RES! FBI file s ,
author's possession.
15) McKean to Hoover, 2/27/29, FBI f i l e s , ACIU.
16) Schenken to Hoover, 3/19/31, FEI f ile s , ACLO.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. J J 1
293
17) anneal Report of the attorney General. 1920 (Washington,
1921), 172—79; Annaal Report of the attorney General. 1921
(Washington, 1922), 126-31; Skully to Hoover, 8/15/21, FEI f ile
ES 202600-33-302, FEI Investigative Files, 1506-1822, National
Archives, iashiegten, D.C.; Dcdqe to Walsh, 2/2/27; GID
Bulletin, 6/2E/21, Eox 278, Thomas Walsh Papers, library cf
Conqress, Washington, I.C.
18) Haas Report, 5/31/25, FBI f il e s , ACIU. Hoover to E. A.
Earling, 2/23/26, FBI files. Special Reports cf Radical
activities, 6 1-23-322, author’s possession.
19) See Jlpheus Kason, Harlan Fiske Stone; P illa t cf t he
lav (New York, 19) 56), 255-26C, 550-555. Irvinq Bernstein, The
Turbulent Years; A History s_£ £he American Worker. 1933-1941
(New York, 1569), 635-661 ; Williams, "*Sowing the Wind'", 17.
Under the direction of GIE chief Ecover, the FEI in filtra te d
every major labor organization from 19 19-1924. See General
Index, FBI investigative Files, 1508-1922, National Archives,
Washington, E.C. See also, J. Edgar Hccver, Hasters cf Deceit
(New York), 67-71. In 1927, FEI agent John Haas labeled an
investigation cf the TUFL under the caption "Treason”.
20) William Z. F ester, H istcrv cf the communist Party of
the Onited States (New York, 1952), 196-210; Eaniel Eell,
Harxian Sccialisa it the United States (Princeton, 1967),
341-345; Irving Hcwe and Lewis Coser, The Auerlean Communi s t
Party (New Ycrk, 1962), 236-239; "Attorney General Palmer on
Charges Hace against the Ju stice Department by-Lcuis F. Post and
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 294
ethers", Heese Buies committee. Hearings. 66th Cciq. , 2d Sess.
(1920) , 15«.
21) Michael Belknap, "The Mechanics cf Repression: J.
Edqar Hoover, the Bureau cf Investigation and the Radicals,
1917-1925", Crime and Social Justice (Sprinq/Sunmer 1977), 52-53;
Morten to Hcover, 9/5/22, FBI f i l e s , TUEI, au th o r’ s possession.
22) Feyrcnnin to Boover, 2/18/27; Haas tc Hccver, 1/30/28;
IEl files, TOEL.
23) Faul Murphy, World War I and the o ric in s cf Civ il
liberties in the Dnited States (New York, 1979), 71-132; Thomas
Lawrence, "Eclipse of Liberty: C ivil lib e r tie s in the U.S.
During the E irst World War", 21 Wayne Law Review (1974), 33-112;
H.C. Peterson and Gilbert F ite , Cnconents of the War: The Storv
cf the Persecution of Anti-Bar Groups (Madiscn, 1957); FBI
Investigative Files, 1.908-1922, National Archives, Washinqton,
D.C.
24) Lcuis Jouqhir and Edmund Mcrqan, The l egacy of
Sacco-Vanzetti (Pritceton, 1978), 254-55; Haas Report, 4/20/27,
7/11/27, FEI files, Sacco-Vanzetti Defense Committee.
25) Hccver to SAC's, 8/6/27; Hcover to Sarqent, 10/10/27,
FEI Files, Sacco-Vanzetti Defense Committee.
26) Wine to Hoover, 8/15/27; Ccnnelly tc Hoover, 8/11/27;
DeNett to Hoover, 8/23/27; Dickerson tc Hccver, 8/15/27; FEI
Files, Sacco-Vanzetti Defense Committee.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 295
2 7) Irvinq Bernstein, The lean Years; A History of the
American Worker, 192C-1533 {Boston, 1970), 415-455; Arthur
Schlesinqer, J r ., C risis o f th e Cld Crder. 1919-1933 (Eoston,
1957), 166-76, 248-65.
28) BcKean to Hoover, 5/28/30; Weiss tc Gwynne, undated;
FEI files, KIEL, author's possession.
29) Hoover to Kelley, 1/20/31, FBI f ile s , WESI.
30) Sarfcrd Ungar, FEI. 59; Donald J. Lisio, The President
and P ro test; Hoover, consciracv and t^e Bonus Bjot (Columbia,
1974), 229-230, 245-247.
31) Fay tc Hoover, 7/2/33; ApFell tc Hoover, 7/31/33;
HcSwain tc Hoover, 8/1/32; Nalls to Hoover, 8/8/32; Quinn tc
Hcover, 8/1/32, 11/23/32; Durn tc Hoover, 8/E/32, 8/31/32;
Connelly tc Hoover, 8/1/32. FBI files, WESI.
32) Ladd to Hoover, 11/23/32; New York Tines. 12/7/32, 3;
12/5/32, 1; Hoover to Hose, 8/2/34; Heinecke tc Hccver, 5/3/33;
Dowd to Hocver, 5/9/34; Little to Nathan, 5/5/34; Fay tc
Hccver, 5/9/34; New York Times. 5/4/34, 10; 5/12/34, 2;
5/19/34, 14.
3 3) Amual Report of the Attorney General. 19 20 (Washington,
1921 ), 178-79; A nnual Report of the Attorney General. 1921
(Washinqtor, 1922), 130-31; Ccrner, Age Survei ll a nce . 17-20.
See also, David Caute, The G reat r (New York, 1578), 115;
Jean Jensen, Price cf Vigilance (Chicaqc, 1969), 14-16. One such
I Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 296
memorandum caused FBI director Hccver setae consternation forty
years la te r. In 196 7 Harold N. Arrowsmith, J r. uncovered in
the state Department records in the National Archives a letter
from Hoover to w.L. Hurley in hich Hoover claimed that Felix
Frankfurter was irvclved ir attempts to spread Eolshevik
propaqanda. Arrowsmith, who the Eureau claimed tc be "psychotic/
extremely pre-Nazi ard anti-seme tic," circulated a copy of the
letter in an attempt to discredit then associate Justice
Frankfurter. Hillis A. Carto, chairman cf the liherty Lobby,
received a ccpy of the menc and brouqht it to the attention of
Representative James C. Davis (Dem., Ga.) and Senator Strcm
Thurmond (Dei., S.C.). Davis acd Thurmond then asked the FBI tc
produce a ccpy of the le tte r in an e ff o r t tc determine i t s
authenticity. The Eureau denied the request, te llic q the
congressmen that such action would violate aqency policy- In a
telephcne ccnversation ith Frankfurter, Hoover denied that he had
ever seen, much less written, the letter, anc that if he had "I
never voulc have signed it.” Hccver further claimed that althouqh
the letter was indeed signed "J.E. Hoover," he hac always siqned
his letters ”J. Edqai Hoover." Such an explanation was, of
course, nonsense. See, for example, a similar letter tc Hurley
which was also siqned "J.E. Hoover," in BI f i l e OG 213251 ,
1/18/21, in which Hccver asked Hurley to investiqate a trip to
Icndon by Swiniurne Hale. Frankfurter, who had rc idea that he
had been investiqated by the Bureau in the early 192C's, bouqht
the story, tellinq Hoover that "I'm qlad somecre is 1prctectinq'
me." Follcwirq the incident, Robert H. Bchraer, the Archivist cf
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 297
the United States, assured the Eureau that the archives wculd
"continue tc restrict FEI documents reqardless cf age." DeLcach
to Hohr, 9/1/61; Hccver to Tclscn, et al. , 9/25/61; Jones to
Deloach, 1C/19/61; Frankfurter to Hoover, 9/23/61; FEI f ile s ,
Felix Frankfurter, in author*s possession.
34) Hccver to Stcre, 7/21/24, ACIU f i l e s ; Supplementary and
Detailed Staff Repcrts or Intelligence Activities and tljs Rights
of Americans. 389-390.
35) Hccver to Kelley, 10/5/27, 11/22/27, FBI f ile s , TUEI,
author*s possession.
36) Kelley to Hoover, 10/4/29, 1/12/32, FBI file s, TUEL.
37) Senate Select Committee to Study Goverrmertal Operations
with Respect to Intelligence Activities, Hearings. FBI, VI, 94th
Cong. 1 See. (1976), 555-557; Dcnner, Age of Surveill a n c e .
47-51.
38) "Attorney General A. Hitchell Falmer cn Charges Made
aqainst the justice Department by Louis F. Pest and Others",
House Rules Committee, Hearings. 66th Ceng., 2d Sess. (1920),
154; Donner, A ge of Su rv eillanc e . 154. " (P )o litic a l
surveillance", Dcnner writes, "is a ccntinucus process of people
watching conducted it many cases for years, in order to develop
information for use at some time in the future. . . (and)
(i)nformaticn derived from clandestine sources i s assumed to be
in trin s ic a lly valuable - else why gc a f te r i t . " Eonner, 24-25.
Ihe FBI's custodial detention plan is discussed ir. considerable
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detail by 4than Theoharis in Spying on Americans. 40-64; "The
Truman Administration and the Decline of Civil liberties: The
FBI's Success in Securing Authorization fcr a Preventive
Detention Program", Jcurral cf American Historv (Spring 1978},
1010-1030; Robert Goldstein, "The FEI’s Forty-Year P lot” , The
Nation (July 1, 197 8), 10-15. Seattle fie ld office to
Washington, 7/8/43, FEI files, UCL, author's possession. The
name of tie individual was withheld by the FEI under section
b|7)c. Freedom of Information Act, 5 tJ.S.C. 552.
39) Race tc Hoover, 9/18/26; Hoover to McKean, 2/25/26, FBI
files, TOEL.
40) Dodge to Kalsh, 2/2/27; Erennan tc Bcdce, 11/22/20;
Walsh to Baker, 2/9/26; Walsh to Hesservy, 2/5/26; Walsh to
Eurtcrow, 2/25/26, bcx 278, Salsh MSS, library of Congress,
Washington, E.C. In early 1923 P resident-elect Rccsevelt
rcminated Walsh to head the Justice Department. Since Walsh’s
contempt for Hoover and the FBI was no secret, it appeared that
Hoover's days at the Eureau were numbered. On March 2, 1933,
however, Walsh died en route tc the inauguration and Hoover
survived the scare. Philadelphia Inquirer. 3/3/33; FBI file
62-28331, author's possession. In 1920, special agent Charles
Eetrcvitsky had advised Felix Frankfurter, a prcnirent critic of
the 1920 deportation raids, that he would "be willing to assist
in righting the wrongs made possible by the Department cf Justice
in the past four years. . . (and I) am anxious to put out of
power the men who are undermining our system cf government."
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Frankfurter forwarded Petrovsky's letter to albert DeSilver, AGIO
national counsel, who wrote C.J. France of the Seattle branch of
the ACID that "I hope you can find time to get in touch with him
for 1 think that the lead nay carry the possibility of important
development." Petrovitsky to Frankfurter, 8/16/20, 10/8/20;
DeSilver tc France, 10/20/20, vcl. 118, ACID Archives,
Princeton, N.J. On Jure 14, 1933, Bay Tucker, a New York
icurnalist, published a story in the New Ycrk World-Telegran
which claimed that the El, toqether with the Prohibition Eureau,
were slated fcr abolition. Tucker alleqed that tie Bureau had
"furnished material fcr ex-President Hoover's statement that the
majority of last year’s evicted bonus army were 'criminals or
Communists."It is th is bureau," Tucker concluded, "which has
been involved in huntinq extremists, secret activities and other
allegedly aEti-Americar dcinqs ever since the e?3 of Harry
Daugherty. William Burrs and Gaston Means." (emphasis added) The
following day, Hccver prepared a lengthy rejciner fcr the
Attorney General. claiming that "the facts" were at
"considerable variance" with Tucker's allegations, Hccver first
denied that tie Bureau had investigated the Ecnus Army. "This
Bureau had ncthinq to do with the investigation cf the sc-called
bonus marchers. . . (until) a fter the bonus army had left
Washigton, when the Veterans' Bureau submitted approximately
5,000 fingerprint records to be checked with the records in the
(El) Identification Bureau." Hccver alsc declared that the Eureau
had not engaged in political surveillance activities "(s)ince
1924 when the Eureau was reorganized." "(T)here have been no such
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ta c tic s resorted t o ,” Hcover repeated, and "Mr- Tucker’s a rtic le
is not only absolutely untice in its statements, tut in the
impression which it conveys, as well as unfair in its Bearing."
Hcover tc Gates, 6/15/33 Twc BCEths la te r, on August 11, 1933,
C o llie r*s Kagazine published a second a rtic le by Tucker which
claimed that "J. Edgar Hoover has made ’tailing* cne of the most
popular, though most unsocial, a c tiv itie s at the national
capital." lucker’s was cne cf the few articles published after
the 1924 reform that accused the FBI of illegal surveillance
a c tiv itie s . Tucker undoubtedly fcund an'FEI employee who had
access to important FEI files and was willirg tc share them with
Tucker. Fcr example. Tucker ccrrectly identified Harlan Fiske
Stone, Thomas Walsh, William Eorah, Felix Frankfurter, Zechariah
Chafee, J r , Frank P. Walsh and John I. lewis as targets of
earlier FET political investigations. It is nearly impossible
that Tucker could have kncwn this without assistance from an
insider. Hcover, of course, denied that F3I acents had ever
shadowed Tucker or anyone else fcr that matter who was not
suspected of violating a federal criminal statute. (Hccver tc
Early, 8/10/33) Several years later, when informed that Tucker
had critic iz e d the FBI at a meeting cf the National Press Cluh,
K.F. Glavin, an assistant to Clyde Tclscn, tcld his source that
Tucker was a "mental case." after reviewing the memo. Hoover
noted th at Tucker was "gust a poor alchoholjc!" (Glavin tc
Tolson, 9/7/36) all of the files Tucker alluded tc are now open
tc researchers at the National Archives, see FEI Investigative
Files, 1908-1922, National Archives, Washington, D.C.
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41) Eayliss to Hoover, 9/5/28; FEI files, UHW, author’s
possession; Baas to Hoover, 9/5/28; Faqan tc lamo, 1/15/35, FBI
files, TOEL, author's possession.
42) Ecsh to attorney General, 8/21/29; Luhrirq tc Hcover,
8/26/29; Hccver tc luhring, 8/26/29, FEI files, 1UE1, author's
possession; Hoover tc Dodds, 12/19/31; FEI files, WFSL,
author's possession. In an October 1975 analysis of FBI
•jurisdiction ever domestic security investigations, the 3ureau
cited one cf Hoover's denials as evidence that the FBI "followed
(Stone's) pclicy from its inception. On October 7, 1925, Hccver
told Colonel James H. Reeves, General Staff, War Department,
that 'general investigations into radical activities by our
various field offices were discontinued seme tine age by reason
of certain cbanqes in pclicy, program procedure, etc." Senate
Select Comsittee to Study Governmental Operations with Respect tc
Intelligence Operations, Bearings. FEI, VI, 554.
43) Sanue1 Walker, Popular J u s t^ce: A H istory of American
Criminal Justice (New York, 1980), 164-85; Cngar, FBI, 76-77;
Arthur Millstauqh, Cxi re Ccctrol by the Na tic ia l Ccvernjrent
[Washington, 1937), 48-53; See generally Trvinq Bernstein, Ihe
lean Years. Pccsevelt, it should be noted, had never been a
supporter cf the rig h ts cf dissidents. Ir 1920, while
campaigning fcr the vice-presidency, he claimed that the 19 19
takeover of the IWW headquarters by a not led by members cf the
American Lecicn was "a form of red-blocded patriotism". Conner,
Age cf Surveillance, 5 4.
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44) Senate Select Committee to Study Governirertal Operations
with Respect to Intelligence Operations, Hearings. FBI, VI,
559-60. Richard W. Steele, '’Franklin D. Roosevelt and His
Foreign Pclicy C ritics," P o litic a l Science Q uarterly. 94 {Spring
19*79) , 15-22.
45) Quoted in Eernstein, Turbulent Years. 209.
46) Bernstein, Turbulent Years. 310-312.
47) Hccver to Stephens, 9/14/34; Hoover to Cummings,
9/14/34; McKean tc Hccver, 9/14/34, FBI files, OTH, author's
possession. In Turbulent Yqars. Bernstein concludes that "the
Communists had nothing tc dc with the strik e. Communist
headguarters in nearly New Bedford was shutdown and the p a rty 's
'flame', ?nn Eurlak, was driven cut of Fall River." Turbulent
Years, 312.
48) Hcover to Tamm, 12/5/34; Hcover to Early, 12/5/34. The
report the FEI provided the Hhite House was prepared ky special
aqent C.G. Scherker iE Harch 193 1. See note 15, supra- Kilma
Heredith memorandum, 12/5/34, guoted in Jerold Suertach, l abor
a nd Lib e r ty ; The laF o llett e Committee and the New Pea 1
(Indianapolis, 1966), 30; A.CIU, liberty and the Few Deal : The
Record fo r 1533-1934 (New York, 1934), 3; Jonathan H itchell,
"Civil Liberties Onder Roosevelt", the New Republic (December 26,
1934), 1 86-165.
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49) Dcrner, ! .g e cf Suryeillarce. 54, 56-59; Iheoharis,
Spying on anericans. 73-77.
50) See Eavid Williams, "The Eureau of Investigation and I t s
C ritics, 19 19-1921: Ihe Oriqins of Federal E o litic a l
Surveillance," Journal of american Jj^stcry, farttccirinq, Decenber
1981. Theoharis, Spying on Americans. 40-64.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter VII
Befcri and Public delations:
FEI Administrative Changes and Self-Promotion, 192C-I94C
FBI director J. Edgar Hoover played an indispensihle role
in shapinq ret only the Bureau's investigative activities but its
public image as well. Substantive crq a riz a tic n a l and
administrative change was very veil publicized. Hoover's
orchestration of these changes help to explain why illegal
surveillarce a c tiv itie s went undetected between 192U and 1934,
and why President Rccsevelt officially rescinded the Stone
directive in 1936. Hore importantly, the reforms insulated the
Eureau frca public criticism and c lc se r Congressional scrutiny,
and insured that charges of abuse of authority would go
uninvestigated. Since the 1930's, these referirs have received a
qreat deal cf scholarly and public attention. The various
developments, from the foundinq of the fEI Crime Laboratory to
the shapirc cf a mere rigcrcus personnel policy and the creation
cf a publicity department, have teen cited either tc applaud the
Eirector's accomplishments or tc expose the rccts of Hoover's
later obsessions, particularly his manipulation cf public opinion
and his complete identification cf self %ith the Ecreau.ril
304
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 305
FBI surveillance of non-criminal, political activities
between tie world wars has orly recently come to liqht. Earlier
h isto rian s downplayed the Eureau's virulent an ti-radicalism and
political conservatism during the period, and focused almost
exclusively cn the Bureau’s well-known war on crime, especially
manhunts involving notorious crim inals scch as John D illinqer and
Alvin Karpis, which often related tc the emerqencc of the FBI
director as a popular hero during the Depression era. Eut given
the Director’s duplicity and contempt for Justice Department
regulations and the FBI's assumption of bread new powers cn the
eve cf the Second Wcrld Par, a fresh lock at the Hoover reforms
and the Bureau’s cfcanginq imaqe durinq the
Coolidge-Hardirg-Bocsevelt administrations is necessary.[2 1
There is little doubt that durinq the 1920*s and into the
1930’s the FEI underwent a fundamental trarsfcrmaticn. From
leinc a powerful but subsidiary bureau of investigation, it
became the Federal Eureau of Investigation. The symbolic
importance cf this change was net lest cn the director, his close
associates, the Attorney General, or Ccnqress. In 1924, the
Bureau had beer tainted by the Harding scandals and was a
significant political liability for the new President, Calvin
Coolidge. Twelve years later, the FEI director and his "G-Sen”
were folk heroes, the good guys, modern versions of frontier
sheriffs who stood alone between order and chaos, ■justice and
anarchy. In the early 1S20's, the Eureau was still considered a
political police, quardinq the naticn aqainst communists,
anarchists, and ether rad icals. By 1936, the Bureau had
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306
thorcuqhly exorcised this image, claiminq tc he guided by neutral
principles, free from any outside political interference, and
concerned crly with violations cf the fed eral law. And when
Hcover took office in 1924, he was a little-k rcw n , cr unknown,
bureaucrat; ty the m id-thirties, Hcover was a public figure
whose reputation as a fearless, qanqbusting cop was unrivaled. [3 ]
For the purpose of this analysis, the refcrirs will be broken
down into tvc distirct, though net unrelated, categories; the
adm inistrative (actual changes) and the cosmetic {symbolic
chanqes). Fcr example, had there been to tangible changes within
the Eureau after he took office in 1924, Hccver wccld have had a
more difficult time selling the FBI's imaqe a decade later. Yet
i t wculd be a mistake tc presume that Hcover reformed the the
Eureau simply to create a favorable public image. Rather, the
Hccver reforms were part cf a brcader process aimed at the
professionalization cf the Eureau begun in 1920 under the
direction cf the BI chief Frank Eurke, and late r endorsed by his
successor, William Burns. Hence, they can not simply be seen in
relation to the later Hardinq scandals and the resignations cf
Attorney General Harry Eauqherty and BI chief Eurns. Eut nothing
stepped Hcover from takinq credit for the administrative
modernization of the Eureau, thereby enhancing his reputation a t
ethers' expense. And because the reforms were in keeping with
Attorney General Stone's objectives, Hccver was able to win
Stone's confidence and consolidate his cwn power within the
Bureau. In addition, Hoover's commitment tc "clean-up" the
Eureau minimized congressional cr departmental suspicions that
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the FBI would violate the prohibition of politically-motivated
surveillance. Before exanininq chacqes initiated under Hoover’s
leadership, it is first necessary tc describe the 1920
adm inistrative reform s.[9 1
Durinq the summer of 1920, perhaps as a result of the
adverse publicity following the deportation raids, BI Rashinqtcn
office chief Levis Bailey assiqned veteran Division
Superintendents and Special-Agents-in-Charge such as R.B.
Spencer, Frank Stone, Edward Brennan, and F.M. Blanford, to
chair committees which would address the Eureau's pressing
administrative and personnel problems. For the first tine sirce
its founding in 1S0£, explicit guidelines were to be drawn-up.
Various categories were devised: field office administration and
oraanizaticr, internal communications and cooperation, local
publicity ard personnel selection, training and salaries. Up to
this time, the Bureau had dealt with these issues on an ad hoc,
almost infernal, basis, reflecting perhaps a less structured and
less demandinc apprcacfc to federal law enforcement.[5 1
In August 1920 the committee chairaer net with ether Bureau
officials it Rashingtcr, D.c. Bureau rules and regulations, they
aqreed, should encouraqe economy, accountability, administrative
reau larity ard lim ited decentralization. The Committee on Field
Office Administration, for example, suqqested that the
responsibilities of the District Superintendents and SAC’s should
be outlined in qreater detail. Uniform filing system were tc be
established ard perscrnel records standardized- The committee
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aqreed that the Bureau should redefine the functions of the field
offices and their relationship tc Kashington headguarters and
O.S. Attorneys. "Cur present machinery creaks. Authority and
responsibility are ill-defined," the committee noted, "There is
no adequate interchange of ideas, little utilization is made in
our various offices of the experience that has teen gained
(there)." Tc remedy the problem, the committee recommended that
the Bureau adopt a "divisional form of crqanizaticc," which would
help tc insure field office competence and accountability. The
report concluded with th is ste rn warning: "The Eureau has
drifted for years. . .But if it is our desire tc set sail cn a
mere ambitious voyage ard reach pert mere creditably than is at
all possible under present conditions structural changes are
necessary - patches will net dc."r6 1
In another important area, the Bureau adopted a new set of
guidelines fcr the use of informers, under-cover operatives, and
"blue slips" [receipts fcr payments made tc informers for
information and on-going in v estig ativ e services). The Committee
on Informants had suggested that informers should only be hired
after passing through a careful screeninq process. And since the
Eureau had been criticized for usinc "aqent provocateurs", the
committee recmmended that " (u) nder no circumstances should an
informant be encouraqed or permitted to initiate an act which in
itself is unlawful." In addition, information supplied by
informers should not he shared with any outside aqencies,
including private detective firms cr ether federal departments,
unless such reguests were authorized first, by the Eistrict
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Superintendent. and under nc circumstances should the names of
these persons fce revealed tc peiscns outside of the Eureau.[7]
The Committee on (Perscnnel) Selection, Traininq, and
Salaries fccrd that the Bureau should require applicants to have
a hiqh schccl diploma (or its equivilant) and at least some
knowledge cf the federal lav. These with formal leqal train in q
or accountinq skills should be qiven preference in the selection
process. The committee also reported that a training ccurse be
required cf a ll new perscnnel and that the Bureau should adopt a
standardized salary schedule to prevent political favcrs.
Following the August meetinq, the BI approved most of the
committees’ recommendations and sent copies of the various
reports to all field offices. In 1921, for example, BI chief
William Bums established the Bureau's first traininq school in
New York City and required all new special aqerts to take the
two-week ccurse. The divisional form of organization was also
adopted and the status of both the Divisional Superintendents and
the Special-Acents-incharqe were upqraded.r8]
In vie* of these significant chanqes in Eureau
administration prior to Hay 1924, Hoover's early accomplishments
vere far less dramatic than has been presumed. Shortly after
taking office, Hoover aqreed to inplement Store's proposals for
reorganizing the 3ureau which the attorney General outlined in a
six point memorandum. As we have already seen. Hoover did not
keep his aqreement to ban on political surveillance, and the
Eureau ccrtirued tc investigate a wide range cf lawful political
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310
activities. Four of the six reccamendaticns proposed changes in
the Bureau's perscnnel policies and bear remarkable resemblance
tc the 1920 reform proposals. stone, for exatrple, asked FBI
director Hccver that " (i) n' making appointments, please nominate
men cf knotn good character and ability, giving preference tc men
who have bad some legal training.” Eut earlier that sane year,
FEI chief Eurrs had explained tc a congressional committee that
the Bureau had established "a rule under which preference fcr
appointments cf special agents is given to men with legal
training." Hence the importance of Stone's succesticn is less
than convincing; still, Hccver was able to seize this
opportunity to endear himself to the new Attorney General. less
than a week after receivirg Store's instructions. Hoover informed
the Attorney General that "I have already commenced an
examinatior cf the personnel files cf each cf the employees of
the Bureau and have already recommended a number of Special
agents {primarily Burns' cronies known as •dcllar-a-year men)
whose services may be discoctinued for the best interests cf the
service. . .Every effort will be made by the employees of the
Eureau. . .t o carry out to the le tte r your p c lic ie s ."T9 1
If Hccver did itdeed make any important administrative
changes, be carefully followed the recommendations adopted by El
chief Bailey four years earlier. This, however, did net prevent
Hcover frcm rewritinq history. In his official account of the
FEI, Don Whitehead w rites:
One cf Hcover's first neves was to give the special agents in charqe at the field offices greater authority ever special agents .assiqned to them. The old system in which the acents
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sent individual administrative reports directly to Washington nag discontinued. The aqents reported to the special aqent in charge arc he made bis reports tc Washington. Thus a chain of command was established which had net existed before. Aqents were reclassified on a basis of efficiency, and Hoover saw to it that the test men received the highest pay. Authority was strengthened. . .A field inspection was established in which inspectors visited each field office and checked on the aqents' efficiency, character, and industry. Gffice routine was systematized and standardized sc that aqents ccinq from cn office tc another would find precisely th e same methods and rules of operations. Aqents were expected to put in an honest day's work - and not tc close shcF in midafternoon as nary had been doing.
Compare these assertions with the conclusions of the 1920
Committee cr the B ecrqarizaticn cf the Field:
The individual aqent will report all investiqative natters tc the Aqent-inCharge of the office to which he is attached. . .All the admit istrative business cf the individual Aqent with the Washington o ffice or with the Division Superintendent will be ccndccted by the Special Aqent-in-Charge- . .In qeneral, the individual Aqert w ill cease tc have written relatio n s with Washington and there w ill be a great reduction of the number of in d iv id u als with whom the Washington o ffice w ill deal. . .The more lia s c r we have between the Washington office and our individual men in the field, the greater w ill be cur success. And the Division Superintendent, as the immediate representative of the D irector, must be the author of such ! liasen.pn j That these two passaqes are quite similar suqgests that the
impact of the Stone-Hoover reforms have beer consistently
overstated. The FBI had already enderqene significant changes by
the time Hccver had taken o ffice in 1924, ever thouqh these
reforms have been overshadowed by the Harding-Dauqherty-Burns
scandals. Eut unlike his predecessor, Hcover was a sk illed
bureaucrat who was keenly aware cf the need, tc shape-up the
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Eureau and to resto re i t s tarnished imaqe. Eealizinq th is, and
the need fcr the Bureau to set a new aqenda, Hccver seen learned
to teat the police reform drum cften and loudly.f12l
The historian Samuel Walker has late le d the 1920's the "era
of the crime commission." Eeqinninq in 1919 with the Chicaqp
Crime Commission's study cf that city's criminal justice system,
important surveys were conducted in Cleveland (1922), Missouri
(1926), anc I llin o is (1929). Although each commission studied
different aspects of crime and society's response to it, each
report qenerally concluded that "’the practice cf the criminal
profession is not unduly hazerdous,' for the risk of punishment
seemed very lew.” In 1929, following the lead cf state and lccal
governments. President Herbert Hccver commissioned former
Attorney General Georqe wickershan to chair a nationwide study cf
law enforcement. Twc years l a te r , the National Commission on Law
Observance and Enforcement issued a fourteen volume report, only
cne of which attracted substantial public attention. Written in
larqe part ty Zechariah Chafee, Jr. of the Harvard Law School,
volume 11, entitled lawlessness jn Law Enforcement, outlined in
considerable detail police abuse of the constituticnal riqhts of
the accused. Special attention was paid to the use cf the third
deqree by state and lccal police. "Fhysical brutality,” the
commission found, "was 'extensively practiced' in the police
departments across the country.” Suspects, for example, had been
suspended "by th e ir ankles out of second stcry wirdews and
subjected, . .to beatings and ever sexual indignities in an
effort to extract confessions.” The commissict's revelations
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heightened the public’s awareness of police misconduct, qivinq "a
strong bccst to police professionalization." "Beforn-minded
police chiefs” Walker writes, "could nos rely on a reservoir of
public support for their efforts to improve their
departments.*^ 133
Havinq already earned his reputation as a reformer in
Washington, Hoover’s position to assume national leadership of
the police reform movenent could not have been more propitious.
The Wickersham Commission had been favorably impressed by the
Bureau and, therefore, Bureau operations were not the subject of
serious or sustained c r itic is m .r 1# 1 The commissicr did, however,
auestion the accuracy cf the Onifcrn Crime Heports (UP.C) system,
a program the Bureau had administered since 1930. For almost a
half a century, criminologists had argued that a clearinghouse
for national crime statistics was necessary "to measure the
effectiveness of both law enforcement and correcticnal prcqrams.n
In the late 1920’s, with help from the Hockefeller Foundation,
the El, various professional crganiztions, the International
Association cf Chiefs of Police conducted a comprehensive study
of the need for such a program. In 1930, the El was selected to
compile the OCR and distribute the results tc various state,
local and private agencies, sugqestinq at least that the Bureau
was considered the leading law enforcement agency in the country.
The Wickersham Commission c ritic iz e d the OCR for two reasons.
First, the methodology used by the Bureau tc analyze the
statistical data was seriously flawed. The Bureau did net, for
example, address the question cf umeported crim e, and since the
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DCS were basec cn sever "crime indexes," the UCR "presented a
distorted pictnre of criminal activitiy." Thus, "'misleadinq
information' was likely to be sent cut 'under official auspices
and with the imprimatur of the Government.fiore importantly,
the Commission feared that the BI would be tempted to misuse the
UCR: "A serious abuse exists in compiling them as a basis for
requesting apprcpriaticns or for justifying the existence of or
urging expanded powers and equipment for the agercy in question
rather thar for the purposes which criminal statistics are
desiqned to fu rth e r." Althouqh the Commission's critiq u e did not
lead to any significant changes ir the UCR, the Eureau did add
this disclaimer to the various UCR publications after 1931:
• "IT) he FBI dees not vouch (for the statistics') accuracy. T 15 ]
By the mid-thirties, the Commission's worst fears had been
realized. FEI director used the statistics tc lend credence to
the erroneous claim that the 3ureau had a 98? conviction rate,
the highest of any federal law enforcement agency. Hccver also
quoted statistical information while on the lecture circuit tc
stir up support fcr the FBI's war cn crime and corruption. In
1936, for example, the director decried the "armed fences cf
crime" which at d ifferen t times numbered somewhere between
3,000,000 and 4,500,00 active participants. Ir April 1936,
Hcover asserted that "there are today in America 150,000
murderers roaming at large," ever though the UCR reported that in
"987 cities with a total population of 25,450,€£6, the police
were cognizant cf only 3,582 cases cf criminal homicide."[161
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The FE3 director’s claims, however, were buttressed by
public fear of a few desperate criminals whose exploits had
received nationwide publicity. Responding to criticism that law
enforcement aqencies sere urable tc control -violent crime,
attorney General Somer Cummings initiated a drive tc increase the
federal qcvernment's criminal -Justice responsibilities.
11 (Cummings') las enforcement Fclicy”, Bichard G. losers writes,
"was desiqned to involve all citizens in a national crusade that
would give thee a sense of the law's validity and strength.” Ihe
attorney General's first objective was to secure Congressional
approval cf his le g isla tiv e proposals which wculd expand the
federal criminal cede. In May 1934, after the PEI had
successfully tracked down, and in some cases killed, notorious
criminals such as Jctn Dillinqer, Alvin Karpis, and Machine Gun
Kelly, Conqress approved a bill giving the federal government
iurisdicticr in cases where a suspect had crossed state lines to
avoid prosecution. A month later, Conqress passed additional
laws which made in te rsta te racketeering a federal crime and
required the registration of machine guns and sawec-cff shctquns,
popular weapons used in the ganqland b a ttle s of the 1930's-
These new laws, Arthur Hillsbauqh ncted , clearly evidenced "that
the federal government (hac) assumed large and increased
responsibilities in the field cf general law enforcement-T171
Attorney General Cummings then moved quickly to establish
the Justice Department's leadership in the rational crusade
against crime. For that purpose, Cumminqs convened the Attorney
General's Conference on Crime in Washington in December 1934.
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During the conference, which was attended ty mere than 600 state
and local law enforcement officials, Cummings sucqested that in
those areas still outside his department’s jurisdiction, the FEI
wculd lend state and local agencies technical support and expert
advice. The Eureau, fcr example, vcrld examine fin q e rp rin ts sent
by local officials and compare these prints with those cn file in
its Washintcr collection. In 1935, when the FEI opened its crime
laboratory, these forensic services were qreatly expanded. any
important evidence could be qiven to the FBI for careful,
scientific examination by specially trained Bureau employees.[18 1
In a similar development, the FBI established a national
police academy in July 1935. In his address to the Attcrney
General's Crime Conference, Heeler had tcld his audience that
"(t)he value of adequate tra in in g has already been prcven in the
training schools maintained by cur Eureau for i t s personnel.
.With but sliqht readjustmert cf operations, these training
facilities already established coulc be extended tc the local law
enforcement agencies cf the country." Understandably, the
Bureau's goal was not simply to improve and professionalize local
police services but alsc to establish important ties with these
aqencies. The Bureau would then be in a unique pcsiticr in the
law enforcenert field; fcr answers to perplexing evidential and
ether technical problems, police officials could appeal tc the
FEI foor assistance; fcr statistical information on crime in
America, pclice and crim inologists would lcch tc the OCB; and
fcr training and personnel development, local police departments
would send their most talented officers tc the-Eureau's National
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Police Academy. Thus, by early 1936, the Bureau had achieved
preeminence in the law enforceirent field and Has the best-known
and most respected agency in the country.r 19]
Yet the Eureau did net reach these lofty heiqhts without
considerable outside assistance. Had it net ter for a helpinq
hand from Ecilywcod in the fo ri cf "G-Men” movies, i t i s unlikely
that the Bureau's rise to the top would have teen as precipitous.
However, as Bichard Powers has demonstrated, the Justice
Department and the FBI did not, at first, associate themselves
from the production and promotion of these films. The Warner
Brothers movie, "G-Men" was the f i r s t of a se rie s of films which
qlamorized the FBI's accomplishments. Starring Janes Caqney as
Erick Davis, the ccnsunmate qccd-quy who happened to be an FEI
aqent, "G-Ken" dramatized the Eureau's tattle with qanqsterdcm in
the early 1S3C's. It referred at various times to the capture of
Machine Gun Kelly, Eretty Eoy Floyd, and Bruno Hauptmann,
kidnapper cf the Lirdterqh baby. The producers of the movie also
recreated tie shcotinq cf John D illirg e r a t a Chicaqo theater
even thouqh the major studios had agreed net tc allude tc the
incident at all.[20]
attorney General Cumminqs was particularly distressed by the
failure of the producers of "G-Men" to qive him any credit for
these achievements. Instead, the mcvie suqqested that the FEI
director (a Eruce j. Gregory) was personally responsible fcr the
government's victory ever qanqsterdcm. "Not only had Warner
Ercthers rewritten history," Pcweis writes, "but the studio had
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enqineered a departmertal coup d'etat.” Soon thereafter, FBI
d irecto r Hoover sto le the lim eliqht and became the oh-ject of
public adulation.f2 1 ]
Immediately after the movie was released, Hoover maintained
a low profile. If for no other reason than self-preservation,
the IBI director repeatedly denied that the Bureau had either
assisted in the production or the promcticr of "G-Hen”.
Nevertheless, Hoover slcwly begat tc encouraqe sympathetic
•journalists anc other writers tc publish glowing accounts of
Eureau's anti-crime activities. In some cases, the FBI assisted
writers directly, cpering files for their use in preparing their
reports.T221 As a result of these efforts, an entire new genre of
literature prcmotinq the Bureau sprung up almost overnight- In
addition tc the sto rie s fcund in increasing numbers in pulp
magazines and novels, more scholarly bocks cn the Bureau were
published cn the eve cf the Second Scrld War, testifying to the
increasing popularity of the FEI in the late 1930* s. Despite
claims to the contrary, these bocks qenerally qlorified the
Eureau, even to the pcint cf qenuflectinq a t the very mention of
Hccver's name. For example, in !}en Against Crime. Henry lysing
writes: "The work of John Edqar Hoover and the FEI is a shining
example of what can be done in the battle against crime. No
ether organization cf crime-fiqhters in the world has the color,
the qlamour, and the rele n tle ss s p ir it of th is compact qrcup of
hard-workira, unflinchiEq ycunq Americans, led by a man who is so
typically American. ” Similarly, in G-JJen at Work: The Stcrv of
America*s Fight Against Crime and Corruption. Dick C'Conner
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suqqests that Hoover is endowed with alicst super-human powers:
•’From one end of the vast American continent tc the ether J .
Fdqar Hoover - a lone crusader - is preaching the qospel of law
enforcement. Apart from his official duties I can hardly
understand where he finds the time tc carry on his campaiqn. But
then Hoover is no ordinary man. . .His associates vhc idolize
him. . .vender i f he ever sleeps. "f 231
Beqintirc in 193U, Hoover supplemented the steady diet of
icurnalistic paeans with his own articles and reviews which
appeared in publications such as Reader' s Digest. Parade.
Scholastic. American Magazine. P.otarian. C ollier *s. and
Scientific American. Heaver*s success as an authcr was truly
remarkable. As Frank Dcnner has observed: " (He) single
contributor, however lu stro u s, published in an array of
periodicals remotely comparable in number and diversity. Hccver
stands alcre in the number of his articles, speeches and
interviews that have been reprinted by both the government and
private groups, as well as his output cf officially spcrscred
pamphlets." ihe subjects of his early articles, and the many
speeches he delivered to practically every conceivable patriotic
and civic organization, focused primarily on the crime problem
and his prccposed solutions to it. Hoover did ret attack
communists, socialists, radicals, "pseudo-liberals and
intellectuals’1 and other similar anti-Americar bugahccs until
President Hccsevelt announced, in September 1939, that the Eureau
had taken on new internal security responsibilities. As with his
anti-radicalism, the Director's articles and. speeches reflected
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the urge tc find a simple answer to a complex problem. In
rejecting ccrtemporary sociological and crininclcqical theories
about the causes of crime. Heater inevitably pinned the blame on
convenient scapegoats, the "shyster lawyer anc other leqal
vermin”, "criminal jackels", "gutter scum”, "swivelchair
criminologists, professional panderers, ccrvict lovers and
fiddle-faced reformers" and the ever present "sob-sisters".
Yet Hoover’s unsophisticated critique attracted a nationwide
following. The FEI director soon became the nest popular and
scuqht-after ccventicr speaker, Averaqinq at least one major
address a mcnth, in 1936 alone. Hoover spoke to the New York
Hera Id Tribune Bound Table Forum, the Hi-Y Clubs cf America, the
Holy Name Societies, the Chicaqo Hoys' Clubs, the International
Association cf Police Chiefs, the International Association for
Id e n tific a tic r and the Daughters cf the American devolution.T25]
By the mid-193fl’s, the Bureau opened s t i l l ancther line of
communication, linking Hoover directly with a national
constituency. In an effort tc insure widespread publicity and to
in g ratiate himself to the country's newspaper e d itc rs, Hccver had
copies of his speeches nailed tc hundreds of daily and weekly
publications, together with a "personal" nessaqe from the
director thanking the recipient for his/her support of the
Ecreau's anti-crime efforts. Althouqh several editcrs later
complained that the Director had used general tax funds for
self-promotion, most newspapermen were fla tte re d tc be on the
FBI’S mailirc list ard found nc grounds for concern. In fact,
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many of tbeir had received ether letters from the Director
personally commending the newspaper for publishing favorable
stories about the Eureau. Eew would have acreed with the
conclusion reached ty Arthur Millsbauqh, a Erookinqs Institution
staff member who had supervised a comprehensive study of federal
law enforcsnert aqeEcies and policies:
By advertising the activities of a federal agency u n til it becomes a symbol cf efficiency in qeneral criminal law enforcement, we may be repeating the fellies cf the Eighteenth Amendment; and perhaps th is time we s ta ll not cone so quickly tc an acute realization of our error. . . It is quite possible that (Hccver's) proactive activities miqht be incompatible with the primary functions of the Bureau (i.e ., investigation, detection, apprehension, and identification, co-ordination of the operations of the operations of state and local police forces, research and traininq in police techniques, and the rendering of services, within the scope of these functions, tc ether agencies, federal, state, and local) . "f 26 ]
For the most p a rt, throuqhout the 1920’s and into the
1930's, Congress was sim ilarly starstru ck . Mary Congressmen
understood that enthusiastic support of Hoover's FBI and its
touqh anti-crime rhetoric was good politics. Few risked a public
ccnfrontaticr. with the Director, and usually, those who did, were
seasoned veterans who came from relatively safe districts. In
one such incident. Senator Kenneth McKellar, vhc was first
elected tc the Senate in 1916, tried to determine to what extent
the FBI had investigated a Tennessee -judce who hac been accused
of misconduct cn the beech. After the Justice Eepartment had
reached a compromise with the Senator over these file s , McKeller
told his colleagues that "I have my dcubts about secret service
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systems in a republican fcr® of government like curs. I have
been astounded at the tremendous qrcwth and the use of larqe sums
cf money fcr the (FEI)." Two years later, after the release cf
the movie "G-Men" and suspectinq that Hoover had assisted in i t s
production, McKeller asked the FBI director if the Bureau had
spent "any ircney directly cr indirectly (cn the promotion of
"G-Men")." Hoover cateqorically and, by all accounts truthfully,
denied any FEI involvement in the production of "G-Men" or any
other film about the FBI. The Justice Department and the FEI,
Hcover te s tifie d , had "declined emphatically tc lend any fcrm of
endorsement (cf the films) and had nothinq tc do with th e ir
production; furnished no technical advise, or ether advise as tc
the production cf these pictures."T27 ]
Hoover was less than fo rth rig h t when asked whether the FEI
had assisted journalists. As seen earlier, the Bureau had
carefully cultivated w riters ard, cn occasion, opened Eureau
files fcr their use. When queried, however, about these
activities, Hccver replied:
There are many magazines that are particularly ohjecticnable (tc the FBI). The Attorney General upon a few occasions, a very few, has permitted' a writer to come in and make a study of the Department, includirq cur Bureau and other branches of the Department and write s to rie s . There have been, I think, no more than three cr four cases of that kind.[28)
No ore in Congress raised the issue cf using federal funds to
distribute copies of the Director’s speeches until 1940 and then
only tangentially. As a ccnsecuence, this possible violation of
the spirit, if not the letter, cf the appropriations laws was
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never satisfactcrially resolved.
Unlike McKeller, and later, Georqe Norris, most congressmen
preferred to cultivate the Director's coodwill. One popular say
of currying tie Director's favcr was to have his speeches and
articles reprinted in the Congressional Record. Between 1935 and
1940, 14 congressmen had 25 of the Director's speeches entered
into the Record at taxpayers' expense. Several were even
considered ispcrtant ercuqh tc he reprinted twice in the same
volume. On several occasions, after the Director or the FBI had
been the oblect of public criticism, congressmen tcck the floor
tc defend the Bureau's record and praise the Director's
achievements. in the years after 1934, the Congressional
appropriations committees raised few objections to the Bureau's
ener increasing budget requests. committee members understood
that toeing the Eureau*s hard-line against crime was not only
qcod public relations, tut also qccd politics.[ 29 1
In l i t t l e over a decade, FBI director Hoover had
accomplished a public relations, departmental, and ccnstituticnal
ccup. But urlike the encurmcus increase in the Eureau's
popularity and DUblic visibility, Hoover's ccnsolidaticn of
bureaucratic power was mere subtle and, essentially, went
unnoticed cttside of the Justice Department. His celebrity
status, fcr example, did net insure his ascendency within the
department re matter hew maEy "G-Men" movies were made;
officially, the F3I director was still the Attorney General's
subordinate. Nevertheless, hjLs public stature did place real
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limits on the attorney General's authority over Bureau affairs,
and after 1S34, feu attorneys qeneial dared to disagree publicly
with Hoover, the nation's "top cop".f30]
Similarly, in vies of the FBI's successes, Conqress had all
but abdicated its authority to oversee Bureau operations. The
Bureau's independence was, at least theorecticaly, restrained by
the tudgetaiy process, as were ether federal agencies. Eut after
the Stone reforms neither the House nor the Seiate made any
serious effcrt to insure that the FEI woulc net overreach its
in v estig ativ e mandate as i t had during the Fed Scare and the
Harding administration. Thus, Conqress never learned the the FBI
had continued to conduct politically-motivated, non-criminal
investigations either on its own, or the President's, initiative
until 1939. This i^ ret to say that many congressmen would not
have sanctioned these investigations had they come to liqht, but
in 1930, when Representative Hamilton Fish called for renewed
general intelligence investigations, his proposal failed to
attract any appreciable public or ccnqressicnal support. In the
absence cf congressional oversight, then, the FEI director was
free, within certain limits, i.e., the FBI could not disrupt
radical activities, tc investigate political activities without
either legislative or executive authority. It this sense,
Conqress made it that much easier for Hoover to betray his 1924
pledge to Attorney General Stone.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 325
Like Ccrgress, President Hccsevelt »as thoroughly impressed
by the FBI's achievements in the criminal justice field. There
also seems tc be little doubt that the President was equally
pleased by the fact that the FBI scored its most important
successes during his first term in office. Attorney General
Cumminqs arc ethers used the Bureau's achievements to allay
lib e ral and radical c riticism th at the Government had failed to
find adequate soluticrs to ether Fressinq social problems, most
notably economic distress and displacement brought cn by the
Great Depression. since Hoover was both a popular hero and the
qcod soldier who had earned the President's respect and
confidence, he occupied a special place within the Boosevelt
administration. Hoover's image as reformer and crime buster
served ther ret only tc shield him from congressional control and
public criticism but also enabled him tc consolidate independent
power withii the executive branch. Net surprisinqly, Boosevelt
appreciated Hoover's unique position; in fact, he encouraged the
Eureau's crewing independence from the Attorney General and the
Justice Department and tried to make the most cf the situation.
Given i t s freedom from typical bureaucratic restra in ts and
accountability and Hoover's enthusiasm tc re-enter officially the
intelligence field, the FBI was the perfect choice tc conduct
secret political surveillance at the President's behest. In
Auqust 1926, when he decided that a comprehensive investigation
of "subversive activities" was again necessary, Hccsevelt was
surpremely ccrfident that the FEI could be trusted to keep his
request and the investigations confidential and in his own
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ability to keep the FBI director in line. The histcry of FBI
p o litic a l surveillarce cn the eve of the Second World War shows
that while Boosevelt was right cr the first count, he seriously
overestimated his own a b ility to control Hcover and the FBI.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. NOTES
1) See especially, Arthur Millsbaugh, Crime ccntrol ty the
Federal Government (Washirqtcn, D.C. , 193*7) ; fiomer Cummings and
Carl McFarland, Federal Justice; Charters in the Sisters cf
Justice and the Federal Executive (New York, 1937) ; Max
lowenthal, The Federal Eureau s J In vest iq a tic n (Nev York, 1950) ;
Eon Nhiteheac, The FEI Story: A Report to the Anerican Pecple
(New York, 1956); Fred J. Cock, The FEI Nobody Knows (Lcndon,
196ft); Sarfcrd Onqar, The FBI; J)n tlncensored look Behind the
Kalis (Bostcr, 1976); Frank J. Dcnner, The Age ofSurveillance
(New York, 1980).
2) Since 1976, it has beer, known that FBI d irecto r Boover
had deliberately misled Presidents and Attorneys General during
the Cold War about FBI programs such as CCINTEtPEC and the
custodial detention index. Eat the extent of his irsuhcrdinaticn
prior to the Second Kcrld War has never been fully examined. The
fact that he subverted Justice Department policies durina the
’’reform" pericd (1924 — 1936) should shed new light cn the
Eirectcr’s ability tc manipulate, obstruct and dissemble. See
chapter VI, infra: Bonner, Age of Surveillance. 79-125.
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3) See Hhitehead, FBI Storv. 65-156; Cock, TJ^g FEI Nobody
Knotts, 146-234.
4) In his critical analysis cf the FBI, Eax lowenthal
srqqested that Hoover’s so-called reforms nay net have been all
they were cracked up to be, bet without the necessary
documentation, he was unable to pursue the issue. See lowenthal,
FEI. : The reports cf the August 1920 conference can all be found
in BI file CG 390982, Bureau cf Investiqatict Investigative
Files, 1908- 1922, NatiCEal archives, Washington, I. C. Although
William Corscn, in his book The Armies cf Ignorance; Thg Rise cf
the American Intelligence Empire {New York, 1977), hin ts that
Hcover may have threatened Attorney General Stone when the latter
took office in order to continue FEI political surveillance
activities, this scenario is almost certainly unlikely. Corson
offers no proof other than some unconfirmed ruircrs that had teen
circulating among former U.S. intelligence officers. Net only
was Hoover in no positicn tc threaten stone with disclosures that
would ruin some Republican politicians, as corscn suqqests, but
Stone, whc was armed with an explicit Presidential mandate to
clean-up tie Justice Department, would not have suffered such
indignities and insubordination from a junior department
official. irstead, Hcover simply kept the lid on the illegal
surveillance of non—criminal activities, thereby avcidinq any
unpleasant, and, ir terms of his career in the Justice
Department, probably fatal, confrontation with the new Attorney
General.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 329
5) The reports filed by the various committees do not
specify exactly why BI chief Bailey ordered the committee to
study the adminstrative probleems in the summer cf 192C. It is
quite likely, however, that Bureau officials were less than
satisfied with the Eureau’s anti-radical and criminal
investiqaticns, especially after the deportations debacle. It is
interestinq tc note that GID chief Hcover had ncthinq at all to
do with the study or the committee recommendations. There were
nine committees in all: Communications, Co-Cperation, field
Cffice administration, Field orqanization, Informants, local
Publicity, Manual of Instructions, Fepcrts, Personnel Selection.
6) Report of the Committee on Field Cffice Administration
(Special acerts Pierce, Blanford, and Spercer), BI file 03
390962.
7) Repcrt of the Committee on Informants, Undercover Hen and
Elue Slips (Special Aqents Spercer, Stone, and Tiqhe), BI file CG
390982.
8) Report of the Committee cn Selection, Training, and
Salaries (Speciial aqents Brennan, Weakley, and M artin), BI f ile
OG 390982; Icwenthal, FBI, 307-3(5.
9) Alpheus D. Ha sen, Ha r1cn Fiske Stone: P iliar cf the La w
(Hew York, 1956), 151; Icwenthal, JEJ, 311; Whitehead, The FBI
Story, 68-6 9.
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10) Whitehead, FBI Story. 69.
11) Bepcrt of the Conmittee cn the Reorganisation cf the
Field J BI chief Bailey, special Aqents Brennan, Eraniman, Eryon,
Pendleton), El file CG 390982.
12) Whitehead, FBI S tcry. 9 2-112. Cook. The FEI
nobody Knows. 146-166; Dnqar, JET, 48-55.
13) Sairuel Walker, Fopulap J u s t ice; A B istory of the
American Crininal Justice S vstem (New York, 1S80), 169-180;
Rational Ccunissicn on Law Observance and Enforcement,
Lawlessness i t Law Enforcement (Washington, 1931).
14) Luring the Commission's investigation of the FEI,
several Chicaqo newspapers reported that the offices cf the
Chicago chapter cf the Trade Union Unity League had been raided
by the local red squad in co-operation with agents frcn the FBI.
In early March 1930 , the commission's secretary, Max Lowenthal,
questioned FEI director Hoover about the allegations and whether
these activities, if confirmed, had violated Attorney General
Stone's crder prohibiting politically- motivated investigations.
FBI director Hoover then ordered SAC E.J. Ccrnelly cf the
Chicaqo field cffice tc prepare a complete report cn the
incident. Ccrrelly denied any Bureau involvement in the raid and
the subsequent arre sts, and on March 5, 1930, Hoover told
Lowenthal that "there was nc foundation for any of these sto rie s
in so far as the a c tiv itie s cf the Aqents of this Bureau were
concerned." Hcover to Lowenthal,3/5/30, Records cf the National
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 331
Commission cn las Ctservanc€ and Enfcrceuent, Fecord Group 10,
National Archives, Washington, E.C. The director's stcry is
probably true, although there is nc way for knovinq for sure
since he feared that any adverse publicity would ruin the
Eureau's credibility and uidernine his secret surveillance
Frogram. Chicago Tribune. 2/28/30; Chicago Caj l y-News, 2/28/30;
Chicago Bailv-Times. 2/28/30. Chicago Evening Post, 2/28/30.
Chicago Herald and Examiner. 2/27/3C, 2/28/30. See chapter VI,
inf ra; also see, Whitehead, ?BI Story. 90.
15) Walker, Popular Just ice. 186-89: lowenthal. EEI„ 395.
16) Hillsbaugh, Crime Control by £he Federal Government.
272-273; Bax Lowenthal, "The Eegrettable Eependence of the
Attorney General on EEI S ta tis tic s ," box 107, George Norris
papers, Library cf congress, Washington, D.C.
17) Eichard G. Powers, "The Attorney General and the G-aan:
Hollywood's Rcle in Hoover*s Bise to Power," 62 South west Review
(Autumn 1977), 330;
18) Millsbaugh, Cr iae Cent rol by the Federal Government. 53.
Eowers, "The Attorney General anc the G-Han", 344; "J. Edgar
Hcover and the Eetective Hero," Journal of Pccclar Culture 9
(Fall 1975), 272-75; Whitehead, EBI Storv. 129-49.
19) Whitehead, JE1 Storv. 14 9-55.
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20) Fowers, "The attorney General and the G-Rar," 329-46.
21) Fevers, "The attorney General and the G-Man," 341.
22) FEI director Hoover was r e t the f i r s t Eureau o f f ic ia l to
assist -journalists write favorable stories about the Bureau. Cn
February 2,. 1527, fcrmer BI agent Franklin Dodge informed Senator
Thonas Walsh that SBC Edward Erennan of Chicago had asked his tc
co-operate witha reporter from the Saturday Even i no Post.
Specifically, Brennar wanted Dodge tc provide any derogatory
information about labor union activities in the Grand Eapids,
Michigan area, to the Post rep o rter. The natter, Brennan
reminded Dcdqe, was tc remain s tr i c t ly confidential. Dodge also
tcld Senator Walsh that the Bureau’s Washington headguarters had
aiven a reporter from the Bcstcn Transcript who was writing a
series abcut "Beds in America" "a rcom and desk space in Mr.
Hoover’s o ffice {in 1921) in the Dept, of Justice building and
fcr months the Dept, of Ju stice f ile s were turned over {to the
reporter) with ro cne else in the rccm." Dodge to Walsh, February
2, 1926, box 278, Thomas Walsh papers, library of Congress,
Washington, E. C.
23) Powers, "J. Edqar Hcover and the Detective Hero,"
272-75 ; Henry Lysinq, Men Against Crime {New York, 1938),
v i i - v i i i ; Dick O’Connor, G-Men at Work: The S tcrv of America♦s
Fight Against Crime and Corruption {London, 1939), 20; Tracy and
Leon Turrow, Row to be a G-Man {New York, 1939); Eelvin Purvis,
American Agent {New York, 1936). See also Guide to Periodical
L ite ratu re . 1532-1941. It is highly questionable whether Hoover
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authored all of the articles that he is crdited vith. His most
famous work, Easters of Beceit {Fw York, 1536), was en tirely
qhost-writter by Bureau agents whc later received a bcnus-revard
of S258. 00 apiece fcr their effcrts. Hcover, despite claims to
the contrary, kept the rest of the royalties. See Donner, age cf
Survei 11a nee . 9 5.
24) Dcnner, age of Surveillarce. 467-68.
2 5) See Millsbaugh, Crime Control by the Federal Government.
271. Copies of many of Hoover's speeches can be fcund at the
library of Congress, general collections.
26) Millsbauqh, Crime Ccntrol by t he Federal Government.
296-98; Threap to Ncrris, a p ril 26, 1540; Locke to Norris, May
6, 1940, hex 1C6, Gecrge Norris Eapers, library of Congress,
Washington, E. C.
27) Lowenthal, *BI, 333-34.
28) Icverthal, FEI, 392-93.
29) See the index to the Ccnaressional Reccrd. 1536-1548.
The Bureau's best ccngressicna1 Fatron during this period was
Representative Joseph J. O'Brien cf New York, C'Erian had eight
cf Hoover's speeches and articles reprinted in 1935 and 1540.
30) See, fcr exaople, the statement and testimony of former
Attorney General Nicholas deB. Katzenbacb, senate select
Committee to Study Governmental Operations with Respect, to
Intelligence Activities, Hearings. VI, FBI, 94th Ceng., 1st Sess.
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( 1975) , 196-2 16.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter VIII
Prelude tc War:
FDB, Conqress, and "FBI Internal Security Operations,
1936-1941
In august 1936, Fresident Franklin Boosevelt, responding tc
the growing threat cf fascism, secretly rescinded attorney
General Stone's 1924 order restricting FBI investigations to
possible viclaticns cf federal laws. He also lifted the Justice
Department's prohibition of warrentless wiretapping. As a result
of this directive, the F3I's intelligence operations were
effectively insulated from meaiingfrl executive and legislative
oversight. Ey 1940, FEI director Hcover hac re-ir.trcduced
surveillance cf practically every maici political and labor
organization in the United States and had unilaterally
estatlished a custodial detenticn program.
Although the 1936 directive was actually limited in scope,
the Bureau used this order from 1936 throuqh 1916 tc justify its
counterintelligence cperaticns. Den Whitehead la te r summarized
its significance: n [The d irectiv e made the FBI) re t cnly a crime
fiqhting orcarizaticn, but alsc an intelligence aqency. . .In
contrast to intelligence work of the past, Eresident Boosevelt
335
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made the FBI'S responsibility a continuing one, involving a broad
new fro n t."[ 11
Congress also played a role in this process. Following thhe
conservative triumph it the 1938 electicr Congress reasserted its
authority against thhe literal proposals cf the administration.
Yet it failed tc exercise its legislative authority in
intelligence matters in any meaninqful way. Fcr example, in
1939, R oosevelt made p ublic h is d e c is io n to g ran t th e FBI
important new internal security responsibilities. This action
vas guestioned but never seriously challenged. In early 1940,
several important congressmen, including George Norris and Burton
K. Wheeler, criticized the President's decisicn to re-establish
the FBI'S General Intelligence rivisicn and proposed a thorough
Ccnqressicra1 investigation cf the Bureau's intelligence work.
Eut, Congress deferred to the executive as it had in the past,
anc cancelled ar inquiry into FEI wiretapping ard ignored Norris'
proposal.
These issues require a closer analysis. Thus, this chapter
will review Roosevelt's decisicn to rescind the Justice
Department’s prohibition cn non-criminal, politically-motivated
investigations, and wiretapping. We shall also examine the
implementation cf the custodial detention program, and the
Congressional response to these executive initiatives.f2 ]
We begin by recallinq that the FEI conducted political
intelligence investigations after 1924 bcth on its own and on the
White House's initiative. Eut the Bureau, lacked a clear
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legislative or executive mandate to collect and analyze general
intelligence information. Hoover was acutely aware cf this
jurisdictional dilemma. As a ccnseguence, FBI political
investigaticns between 1924 and 1936 were secretly conducted and
few people outside cf the Bureau were aware that the F3I was
collecting intelligence information. Moreover, the Bureau could
do little with the intelligence information that it had qathered
in violation cf Stone's order. Coimunists and ether leftists
could not be prosecuted under existinq laws prohibiting seditious
conspiracy, ard while alien radicals corld still be deported, the
Bureau rarely intervened in these proceedings after 1924. Even
thouqh Hoover advised the Fish Committee in 193C that Congress
should approve a peacetime sedition law, he did not actively
lobby for its approval; his advocacy would have openly violated
Stone's order prohibiting his activities and would have left the
FBI director open to criticism, something Hoover invariably
avoided.[ 3 ]
Boosevelt shared some of these inhibiticrs. Soon after
assuming cffice he beqan tc use the FBI as an in-house detective
aqency. Yet the President was reluctant to use the Eureau to
suppress his political opponents on the right ard the left. Like
Hcover, Roosevelt feared that if he publicly authorized the FEI
tc conduct non-criminal investigations, he could tcuch cff an
unnecessary aid damaqirg ccntrcversy. At first there was qood
reascn not to publicize politically motivated investigations.[4 ]
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338
In 1936, however, sher Bccsevelt determined that foreign
policy crises required acre comprehensive general intelliqence
investigations, he called Hoover to a private meetinq and asked
the FBI director tc gather the desired information- The
President had legitimate ground for concern-. In January 1936
Secretary cf War George Eern advised Attorney General Hcmer
Cummings that "there was 'definite indication' of foreign
espionage in the United States and that in an emergency 'some
organizations- . .wccld probably attempt to cripple our war
effort through sabotage." Dern recommended that the Justice
Eepartment establish a "counterespionage service among civilians
tc prevent foreiqn espionage in the United States and tc collect
information sc that in case of an emerqency any persons intending
tc cripple cur war effort by means of espionage cr sabotage may
he taken ictc custody." Alsc Bccsevelt was aware that Gerald
MacGuire, a New York attorney who represented the American
Liberty League, had tried unsnccessfully tc persuade Smedley E-
Eutler, a former Marine Corps commandant, tc lead an anti-New
Deal c oup d ' e t a t . T5 1
On Auqust 24, Bccsevelt and FE3 director Bcover met alcne at
the White House to discuss these and ether potential threats to
the nation's internal security. Hcover's cwn memorandum
describinc the discussion is the only record of the meeting
currently available. Slthouqh Eocver refers to the President's
intention tc prepare a similar summary and place it in the White
Hcuse safe, such a document has not been found. Hence, we are
forced to rely on Hoover's interpretation cf the executive order,
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and, as a result, "the scope of the program Eoosevelt had
authorized- . -cannot he definitely determined." according tc
the nemo, Eccver apprised the Eresident of the riqht-ving
intrigues- Hut his hriefinq focused primarily cn the activities
of domestic communists, activities the Bureau had been watching
since T919- Hoover informed Bcosevelt that Harry Bridges’s West
Coast Longshoreman*s Oricr "was practically controlled by the
Communists". The coinunists alsc "had very definite plans" to
seize control of the United Mine Workers and had considerable
in flu e n ce i t th e Newspaper G u ild . The FEI d i r e c t o r 's memo
c o n tin u e d :
I told him that my information was that the Communists had planned to get control cf these three groups ard by dcirq sc they would be able to paralyze the country in that they step all shippirq in ard cut through the Bridges organization; stop the operation of industry through the Minirq Union cf Lewis; and stop publication of any newspapers of the country thrcught the newspaper quild. I also related to him the activities which have recently occurred with Governmental service inspired by Communists, particularly in some cf the Departments and in the National labor Felations Board-f6 ]
Apparently disturbed by Hoover's appraisal of the Communist
threat, Ecosevelt asked the HEI director tc investigate
systematically "subversive activities in the United States."
Further, the Eresident requested a "bread picture cf the general
movement and i t s a c t i v i t i e s as may a f f e c t the economic and
political life of the country as a whole." although the FEI had
never suspended its surveillance of radical activities, Hccvex
told the President that presently "no governmental organization"
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collected "cer.eral intelligence information”, and that because
membership in the Communist Earty was not illeqal, the FEI had
”nc s p e c if ic a u th o rity to make su e t in v e s t ig a t io n s .M Shen
Fcosevelt asked if Hoover haa any suggestions, the Director told
him about the amendment to the 1916 Appropriations act which
allowed the Secretary of State to authorise FBI investigations.
The statute was broad enough. Hoover claimed, to justify general
investigatiens of legal political activities. Firdirq the idea
appealing sirce the investigations could be ’’handled quite
confidentially", Hoosevelt aqreed to arrange a meeting with
Secretary cf State ccrdell Hull for the following day in order to
secure Hull’s approval of the plan.f7]
At this meeting, Eoosevelt explained to Hull that domestic
communist arc fascist activities were "international in scope and
that Communism particularly was directed from Mcsccw." A Soviet
counsel tc the United States, Constantine Oumansky, Hoosevelt
asserted, was deeply involved in these activities, "so
consequently it was a matter which fell within the sccpe cf
foreign affairs over which the State Department would have a
riqht to reguest an inquiry to be made.” Eoosevelt informed Hull
of his "desire” for ar investigation cf these allegations and
th at " th is survey could be made fcy the (FBI) i f the S e c re ta ry cf
State reguested the (Justice) Department to conduct an inguiry
under the FEI Appropriations Act." Khen Hull agreed with the
President’s proposal, Eoosevelt instructed Hocver tc nctify
Attorney General Cummirgs of the decisicr.r8]
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While Pcosevelt may not have intended the Auqust 1936
directive tc authcrize cn-qcing surveillance of dissident
political activities, the order qave Hoover the express
Presidential approval which the Bureau had previously lacked.,
These investications, which had been limited since 1S24 for
security reasons, were quickly broadened follcwirg the August 25
meeting. Cn August 28, assistant PEI director E.A. Taam advised
Ecover that the Bureau had begun to develop "a systematic
organizaticn of intelligence information 'concerning subversive
activities.'" Bureau surveillance would follow the basic pattern
it had assumed in 1919-1920, and would focus on the activities cf
labor organizers, university professors, journalists, and radical
p o l it ic a l le a d e rs and members of th e Communist and e th e r l e f t i s t
organizations. The Bureau would step up efforts to recruit
inform ers and would "index th e m a te ria l p rev io u sly s u b m itte d ."
That is, the FBI would organize information collected in
violation cf Stone's 192h order. Summaries cf all investigative
reports on "major developments in this field", Tamm indicated,
would be prepared and submitted to the Director daily. [9 1
The intelligence gathering campaign scon picked up momentum.
On September 5, Hccver instructed all field offices "to obtain
from all possible sources information concerning subversive
activities leinq conducted ir the United States by Communists,
Fascists, representatives or advocates of other organizations cr
groups advocating the overthrow cr replacement of the Government
by illeqal means." True tc the Bureau's record in such matters,
the investigations that followed Boosevelt's request were
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primarily political and would embrace many activities that cculd
not, by ary stretch of the imagination, he considered
"subversive*' cr "illegal",f 101
If Eoosevelt did not envision as broad an inquiry as the one
developed by FBI director Hccver, he and the attorney General did
nothing to discourage the Bureau iron conducting widespread
p o l it ic a l s u rv e illa n c e . On September 10, the FBI d ire c to r
informed attorney General Cummings that the "Secretary cf State,
at the President's suggestion, requested cf me, the
representative cf the Department of Justice, to have an
investigation made of subversive activities in this country."
Whether Hccver d e lib e ra te ly misled Cumminqs about the in tended
scope of these investigations has been the subject of some
controversy. If Roosevelt understood that these investigations
would focus cr espionaqe and related activities, then Hoover must
bear primary responsihlity for reviving widespread political
s u rv e illa n c e . But i f B ccsev elt and Cummings d id indeed a u th o rize
investigations of what Hoover descriled as "subversive
activities", then he must alsc be held accountable. While it is
impossible to determine with complete certainty whether this was
the President’s intention, Roosevelt undoubtedly shared Hccver’s
contempt fcr any formalities that stocd in the way of these
investigations. Did Eoosevelt, then, recognize that Hccver
understood the August 1936 order to include not just espionaqe,
but also subversive, activities? If specific federal laws were
violated (e.g., the 19 17 espionaqe act), the President wccld net
have had tc issue any special authorization for an FEI
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investiqaticr. Given the context cf the August 24 meetinq, it is
likely that Roosevelt was interested in information about more
than lust foreign intrigues, and probably aqreed with Hccver that
a comprehersive investiqaticr cf subversive activities was also
necessary- The fact that Roosevelt did not invite the Attorney
General tc either cf the Auqust meetings sugqests that Roosevelt
enconraqed FEI independence from the Justice Department. As he
had in 1934, when he ordered an investigation of the Bund,
Roosevelt believed that the end-product, accurate intelligence
information, was more important than any jurisdictional or
administrative guesticrs raised by the Bureau's inquiries- Thus,
while the acgust 1S36 order satisfied the FEI'S institutional
needs (i.e., executive sanction for its general intelligence
investigaticES), it was alsc characteristic of the New Deal and
Roosevelt's personal approach to gcverning. The directive, Leo I Bituffo has observed, "was a product cf Roosevelt's distrust of ! i Congress and penchant for s e c re c y .11 ] i i j j Roosevelt did not consult Conqress for several reasons.
First, despite growing CoEqressicnal interest in security-related i issues, it is unlikely Conqress wculd have approved a plan
callinq for renewed FBI qeneral intelligence investigations.
Cnly six years earlier Representative Hamilton Fish’s proposal
which would have a u th o rize d FBI s u rv e illa n c e of p o l i t i c a l
activities hac been defeated, even thouqh the bill was introduced
cn the heels of Fish’s investigation of Communist subversion.
Similar hearings were ret held again until 193S when the Dies
Committee investigated the activities of the German-American
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Eund. Domestic political considerations may have also entered
into the President's calculations. During the 1936 election
campaiqn he claimed that the Communist Party did net threaten the
nation's security ard criticised his opponents for red-baitinq.
Eoosevelt tried to diffuse the issue in order to reassure his
progressive and literal supporters, maintain the Democratic
Earty's coalition, and to protect New Deal adninistratcrs from
unfair criticism. 1c have asked congress for permission to
investigate his appointees and supporters in 1936 would have been
the beiqht cf folly. like Hoover, Hcosevelt wanted it both ways,
progressive support fcr his programs and FEI investigations of
potential radical critics, and he believed his Auqcst 1936
directive would achieve this qcal.T12l
Two years later, again at the President's behest, the FEI'S
intelligence activities were further expanded. In October 1938
E oosevelt appointed A ttorney G eneral Cumminqs to head a committee
that would investigate the need for additional "counterespionage"
activities. Ibe President may have been reacting to the
Czechoslovakian crisis which trouqht Europe tc the brink cf war.
But the Munich accord, signed ir October by Neville Chamberlain
and Hitler, postponed armed conflict. Eoosevelt probably also
took into account serious domestic considerations. Several
months earlier, 21 persons were indicted in New York City on
espionage charges in the wake of a th re e month IB I in v e s tig a tio n .
In June it was alleged that lecn Turros, the New 5ork SAC during
the investigation, had tried to sell information about the plot
to newspaper reporters. After the story broke, Roosevelt in an
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attempt to allay partisan criticism of tie incident, decided tc
troaden FEI intelligence investigations to deflect possible
criticism cf the adninistraticr. At a June 24 Fress conference,
Eoosevelt announced that he had reccmireded "increased
appropriations for FBI counterespionage investigations.^13]
On October 20, 1538 Attorney General Cummings reported to
the President that "a well-defined ^counterespionage) system was
functionirc". The system incorporated the IEI, Hilitary
Intelligence, and Baval Intelligence, "whose heads were *in
freguent contact and are operating in harmony*." Cummings advised
Eoosevelt that an additional $300,000 should be appropriated for
these FBI investigations, and $35,000 each for Hilitary and Naval
Intelligence. Cummirgs did r.ct anticipate any jurisdictional
problems and further legislation "to accomplish the general
objectives" was neither necessary nor advisable because "the
matter should he handled in the strictist confidence." As it had
in 1934 arc again in 1936, the administraticn effectively
sidestepped Congress ard did net seek legislative authorization
for the creation of an internal security apparatus.F14]
FBI d ir e c to r H c c v e r's memciandcm on t h is s u b je c t, subm itted
tc the President by the Attorney General cn October 20, detailed
the plan Cummings' had just approved. The FBI hac reestablished
the General Intelligence Division (GID) , which had been abolished
by Attorney General Stone in 1924. The purpose was for the GID
"to investigate and correlate information dealing with
’activities cf either a subversive cr so-called intelligence
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type*." The intelligence card index, first introduced ty Hoover
in 1919, vas updated for the purpose of identifying persons
♦•engaged in any particular activity, either in any section of the
country or in any particular industry cr movement.•' More general
information was broken down into specific sub-sections:
"Karitime; government; industry (steel, automobile, coal
mining, niscellaneous); general strikes; armed forces;
educational institutions; Fascist; Nazi; organized labor;
Neqroes; youth; strikes; newspaper field; and niscellaneous."
Hoover fcoastec th a t the Bureau had a ls o "developed an ex ten siv e
library of general intelligence matters, including sixty-five
daily, weekly, and mcnthly publications, as well as many
pamphlets and volumes dealing with general intellioence
activities. In short, Hoover had restored the Eureau to its
Fre-1924 states and the FEI could confidently engage in extensive
political surveillance cnce again.r 15]
In this memorandum Hoover insisted that the FBI’S general
intelligence program was entirely proper and legal. In 1930, it
may he recalled, Hocver had resisted attempts to reguire the FEI
tc investigate communist and other "subversive" activities
because such legislaticr would have exposed the Eureau to
unnecessary and possibly damaging criticism. The FBI director
repeated this theme in his October 1938 proposal:
In considering the steps tc be taken for the expansion of the present structure of intelligence wcrk, it is believed imperative that it be proceeded with, with the utmost
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degree of secrecy in order to avoid criticism or objections which night be raised tc such an expansion by either ill-informed persons or individuals having some ulterior motive. .Consequently, it would seem undesirable tc seek any special legislation which would draw attenticn to the fact that it was proposed -to develop a special counterespionage drive cf any maqcitude.r 161
Hoosevelt agreed with the FBI’s proposal. On November 2 the
President informed FBI director Hoover that he had instructed the
Eudqet Bureau to add S 150,000 tc the FBI’S budget request nto
handle counterespionage activities." At the same meeting the
President tcld Hcover that "he had approved the plan which
THooverl had prepared and which had been sent to him by the
Attorney G ereial.wr 1*1 ]
There was some bureaucratic opposition tc Hccver's growing
authority. In 1939 an attempt by the State Department to
coordinate all domestic intelligence investigations temporarily
threatened FEI director Hoover*s surveillance prcqram. When he
heard about the State Department’s proposal. Hoover appealed to
Frank Murphy, the rewly appointed Attorney General, to resolve
the dispute before any serious problems arose. During the First
florid war, Hccver noted, ccnfusicn led to serious intelligence
abuses, such as APL-spousored vigilantisn. The Wilson
Administraticr did net clearly SFell out the responsibilities of
each intelligence unit (e.g., FBI, Hilitary Intelligence, Naval
Intelligence). Consequently, the possibility that these problems
would reoccur in the event that the United States entered an
international conflict increased considerably. In crder tc avoid
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this situation, Hoover suggested that all intelligence agencies
should be reauired to forward domestic intelligence infcrmaticn
to the FBI rather than to the state Department.f 18 ]
Impressed by the FBI director's concern for citizens'
rights, Attorney General Murphy agreed to discuss Hoover's
proposal with the P re sid e n t. Cn June 17, 1939 Murphy reccm en d ed
tc Hoosevelt that the inter-departmental committee organized a
year e a r l i e r by Homer Cummings should be disbanded. All
"espionage, counterespionage, and sabotage m a tte rs " , Murphy
counseled, shculd he handled by the FBI and the military
intelligence agencies. These agencies, Murphy claimed, "have not
only gathered a tremendous reservoir of information concerning
foreign intelligence agencies operating in the United States, but
have alsc perfected methods cf investigation and have developed
channels fcr the exchange cf information, which are both
efficient and so mobile and elastic as tc permit prcmpt expansion
in the evert of an emergency.” Bccsevelt approved Murphy's
proposal and sent a memorandum prepared by the FBI to members of
the inter-departmental intelligence committee informing them of
his decision. In 1976 the Senate Select Committee cn
Intelligence fcund that "(t)his June 1939 directive was the
closest thing to a formal charter for the FBI." The directive
re a d :
It is my desire that the investigation of all espionage, counterespionage, and sabotage matters be controlled ard handled by the Federal Bureau of Investigation of the Departmect of Justice, the Military Intelligence Division of the Bar Department, and the Office cf Naval Intelligence in the Navy Department. . .No investigations should be conducted by any
I Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 349
investiqative aqency of the Government into matters involving actually or potentially any espionaqe, counterespionage, or sakotaqe, except by the three agencies mentioned above.f 19]
Once aqain the question arises, did Soosevelt mean tc narrow
the FBI'S jurisdiction to investigations of espicrage,
counterespionage and sabotaqe cnly, cr did the President assume
that the FEI could leqally conduct investigations cf "subversive
activities" as veil. The available evidence suqgests that
Hoosevelt never intended to confine the FBI tc investigations cf
federal lavs. In January 1937, for eaample, Attorney General
Cummings forw arded th e E re sid e n t FEI re p o rts vhich a lle g e d th a t
the Americar Ycuth Congress vas a "Communist Front." The
organization had sponsored a pilgrinaqe to Washington in support
of legislaticr vhich vculd benefit the younq. Several months
later, Cuimirqs sent the White House FBI reports outlininq the
Communist Earty's role in the Workers' Alliance. At the time,
the Alliance vas organizing a nation vide hunger, march to protest
continued hiqh unemployment.!;20]
In viev cf this evidence, it seems more likely that the June
1939 directive vas intended tc put the State Department on notice
that the Eresident wanted the FEI to have a free hand in its
internal security investiqatiens. Roosevelt's imprimater served
another vitally important purpose: sidestepping Ccngress.
"Since the FBI to longer wanted tc base its domestic intelligence
investigations on State Department request," the Senate
Intelligence Ccmoittee concluded, "seme other way had to be found
to retain a semblance cf congressional authorization." The
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language cf the directive seemed to indicate that the President
cnly wanted to clarify a troubling situation. The FBI was not
specifically authorized to investigate activities which did net
violate the law such as "subversive activities". "Yet the scope
of the FEI'S assignment ", the Senate Fanel found, was
deliberately vaque. "There is no indication that the President's
June 1939 directive had the intent or the effect of limiting
domestic intelligence to the investigation of violations cf the
lav.'T 21 ]
later events confirm this assessment. In September 1939,
several days after the German invasion of Poland, Bocsevelt
publicly arrcunced for the first time that he had ordered the
Bureau "to take charge" of the government's intelligence
investiqaticrs. FBI director Hccver learned at this time that
the New York Police Department had "created a special sabotage
squad." With the Bureau's predominance in the field threatened.
Hoover asked the Attorney General tc urge the President tc
"'issue a statement or request addressed to all police officials
asking them to turr ever tc the FBI* any information obtained
pertaining to espionage, counterespionage, sabotage, and
neutrality reculaticrs." On September 6, Attorney General Hurphy
explained to assistant FBI director E.A. Tamm that he had asked
the President to comply with the Bureau's request. Later that
same day Roosevelt made the following announcement:
The Attorney General has been requested hy me to instruct the Federal Bureau cf Investigation of the Department of Justice to take charge of investigative work in matters relating to espionage sabotage, and violations .cf the neutrality regulations. This task must be
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conducted is a comprehensive and effective manner on a national basis, and all information must be carefully sifted cut and correlated in order to avoid confusion and irresponsibility. To this end I request all police officers, sheriffs, and other law enforcement officers in the Dnited States promptly tc turn over to the nearest representative of the federal Bureau of Investigation ary information obtained by them relating to espionaqe, counterespiccage, salctace, subversive activities and violations of the neutrality laws.[221
That aftern o o n , a tto rn e y G eneral Murphy held a p re s s
conference to explaii the Eresident*s order to the public.
Alluding tc AE1 vigilantism, Murphy reminded reporters of the
"confusion ard laxity ard indifference" that had marked security
investigations twenty years earlier. In this context, he
declared that "(f)creiqn agents and those enqaqed in espionaqe
will no longer find this country a happy huntinq grcurd for their
a c t i v i t i e s . " Murphy assu red the c o u n try th a t the FEI was
"veil-prepared and well trained" to handle this kind cf work.
"(I)f you want this wcrk dcie in a reasonable and re sp o n sib le
way", Murphy le c tu re d h is au d ien ce, " i t must net turn in to a
witch hunt. He must do no wronq to any man." Two days later, cn
September 6, the President declared a national emerqency "in
connection with and to the extent necessary for the proper
observance, safeguardirg, and enforcinq the neutrality of the
Dnited States." Turning to the FEI to enforce the proclamation,
Eoosevelt ordered the Attorney General to hire 15C additional FBI
aqents. At an afternccn news conference, Eoosevelt warned
reporters to "guard aqainst. . .the spread by any foreiqn
naticn cf propaganda in- this ccuntry which vculd tend to be
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subversive. . .of cur fern of government. "[23]
Indeed, it vas the President, not Hoover, who took the
investigative initiative. The amhicuous nature cf the September
1S39 directive and the tone of his remarks at this press
conference again suggest that Hoosevelt was aware that the
Bureau's investigations were ret limited to violations {and
possible violations) of federal" statutes. If this vas not the
case, the situation chanqed dramatically during the next few
months. In early 1940, President Bccsevelt announced that he
wculd support increased defense spending and the destrcyer-bases
deal with Great Britain. Believing that neutralism threatened
the nation's security and after his decision had come under
sustained criticism frcm prominent neutralists, Hoosevelt ordered
the FBI to investiqate persons who had sent telegrams to the
White House protesting this ard ether foreign policy decisions.
In a May 1940 cover letter to FEI director Hocver, presidential
assistant Stephen Farly noted that "(a)s the teleqrams all were
mere or less in opposition tc national defense the President
thought you might want to look them o v e r." On June 17, E arly sent
the names cf perscEs who had supported Charles Lindbergh's
critique of Roosevelt's policies to FEI director Hoover.
Apparently, the Bureau investigated the individuals and returned
the lists tc the White House with "comment, and reports." In a
show of appreciation for the Bureau's cooperation, Eoosevelt
asked an aide "to prepare a nice letter to Edgar Hcover thanking
him for all. the reports ard investigations he has made." In 1941
when the White House asked FEI director Hccver to investigate
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opponents of Lend-lease, the FEI checked its files, tapped
telephones, planted tugs and shadowed individuals named by the
White House s t a f f . r 2^1
The FEI also investigated many groups and individuals
without price White House approval. In early 1991, after the
Savy Department alerted the Bureau that "fifteen colored mess
attendants" had organized a protest against racial
discrimination, the FEI began an extensive investigation cf the
national Association cf Colored People (NAACF). Although the
Bureau failed to turn up any evidence "that there is any
Communist infiltration" of the NAACP, the investigation continued
through the nid-1970*s. ether ncn-partisan organizations that
were scrutinized by. the FBI included the American Friends Service
Committee, Helen's International League for Peace and Freedom,
Fellowship for Reconciliation, National Council for the
Prevention cf War and the League for Fair Play. Ihe FBI
investigation of the New York-based League for Fair Play yielded
information that the organization hooked "speakers to Rotary and
Kiwanis Clubs and tc schools and colleges, but the Bureau found
no "indications of Communist activitiess."£251
Roosevelt's attitude toward Congress and constitutional
riqhts is illustrated by his decision tc allow the FBI to install
wiretaps to develop information concerning "subversive
activities". In 19 40 federal law prohibiting the use of wiretaps
was somewhat ambiquous. In 1931, when the Bureau on Prohibition
was transferred from Treasury to Justice,• Attorney General
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William M itchell l i f t e d Attorney General S tone*£ tan cn FEI
wiretappinc. Wiretaps, however, Mere tc be limited tc
investiqatiens invclvinq espionaqe, sabotaqe, and
life-threateninq situations such as kidnappinq, arc could cnly be
installed with the FBI director's prior approval.
Conqress had also restricted wiretapping. The Federal
Communications Act of 1934 prohibited • any person frcn
interceptirq "any communicaticr" and divulqinq or publishing "the
existence, contents, substance, purport, effect, or meaninq of
such intercepted communication tc any person." Yet the FEI
continued to use wiretaps in criminal investigations after the
bill was siqned into law by the President. In 1937, in U.S. v.
Mardone. the Supreme Court regected the qovernenent's argument
that Congress did net mean tc prohibit wiretapping by federal
aqencies arc ruled that evidence obtained usinq wiretaps was
inadmissible in court. In a somewhat peculiar interprets tier cf
Mardcne. the Justice Department concluded that wiretappinq itself
was permissible and the court meant only to prohibit the
interception and divuloence (emphasis added) cf telepbcric cr
teleqraphic messages it court. In March 1940, Attorney General
Eobert Jackscr reviewed this pclicy and subsequently prohibited
FEI vicetappinq in criminal and intelligence investiqatiens.
Jackscn ordered the Bureau tc restore a rule which listed
w iretapping as an u n e th ic a l p r a c t i c e . f 26 1
i
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Nevertheless, the refera "preyed tc be short-lived." In June
President Eoosevelt notified the attorney General that he wanted
the ban on wiretappinq lifted. It is possible, although there is
no evidence tc prcve this, that FEI directcr Hoover appealed to
the President to change the policy because be thought it
inhibited effective intelligence gathering. Eoosevelt, echoing
the department’s earlier interpretation of Nardcne. told Jackson
"I am convinced that the Supreme Court never intended any dictum
in the particular case which it decided to apply tc grave tatters
involving the defense cf the nation." Eoosevelt concluded:
lou are therefore authorized and directed in such cases as you may approve, after investigation of the need in each case, tc authcrize the Eecessary investigating aqents that are at liberty to secure informatics by listeiing devices directed tc the conversation or other communications of persons suspected of subversive activities against the United States, including suspected spies. Xou are requested furthermore to limit these investiqatiens so conducted to a minimum and to limit them inscfar as possible tc aliens.[27]
at about the same time. Congressional proponents cf federal
wiretappinq introduced legislation which vculd have had the
effect of repealing Section 605 of the 1934 Communications act.
Although the administration endorsed these bills, the House
Judiciary Committee refused tc support the legislation. The
administration did advise the Committee that it considered
wiretapping permissible if evidence collected thrcuqh electronic
surveillance vas not used in criminal prosecuticns.r28 1
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In October 1941 the public learned about the
administration's wiretappinq policy. Attorney General Francis
Biddle was forced to acknowledge that he had authorized the FBI
tc tap telephones after Harry Bridges discovered that the FBI had
used taps in an on-going investigation of his activities. During
a press conference Biddle confirmed that the Justice Department
"would continue to construe the {1934 Communications) Act, until
the Courts decided otherwise, not tc prohibit the interception of
communications by an agent." The Attorney General reassured
reporters that the FEI had used wiretaps "sparingly" and only
when the Attorney General had authorized their use. Eresident
Eoosevelt, who seemed annoyed by the whole affair, steadfastly
supported Eiddle's position. When briefed privately by Biddle
and Hoover about the Bridges wiretap, Eoosevelt quipped with a
touch of malice: "Ey . . ., Edgar, that’s the first time
you've been cauqht with your pants down. [ 29)
Eoosevelt tolerated and encouraqed FBI surveillance of
lawful political activities and allcwed the F3I tc resume
warrentless wiretappinq. But there is no evidence that the
President ordered the FEI to develop contingency plans for the
detention cf "danqercus" individuals, if and when the United
States entered the war. On the other hand, the latitude that
Eoosevelt allcwed the FEI in internal security matters probably
contributed tc the Bureau's independence and fostered Hoover's
cynicism and contempt for the law. Of course, the implementation
of the custodial deterticr prcqiam was not the first time the FEI
director had ignored department policy and federal law. But the
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unilateral creation of a detention plan was substantially
different thar political surveillance in violaticr of Attorney
General Store's lS2h order. Rhile closely related to "pure
intelligence", "preventive intelligence" has, by its very nature,
a qreater pctertial tc do violence to constitutional riqhts.
Preventive or aggressive intelligence violates not only an
individual's right to privacy and free expression, hut alsc
reduces the fifth and Sixth Amendments to meaningless phrases.
Thus, having -journeyed once again through the lccbinq glass and
discovered are* the attraction of summary justice, FBI director
Ecover decided that durinq a national emergency it became the
Bureau's duty to try, convict and sentence secretly these who
"questioned the American way cf life."T 30]
The FEI initiated the proqram cn September 2, 1939, when
director Hoover notified all SAC's tc compile the names cf
persons "cf German, Italian, ard Communist sympathies. - -whose
interst may he primarily directed to the interest of seme other
nation than the United S t a t e s ." The l i s t s would in clu d e
subscribers tc German and Italian language newspapers, newspapers
published by the Communist party and "its affiliated
organizations", ard newspapers cf "pronounced or notorious
nationalistic sympathies." Field offices were alsc required tc
id e n tify members cf German and I t a l i a n f r a t e r n a l o rg a n iz a tio n s
and of "any organizations, regardless of nationality, which miqht
have prorcutced nationalistic tendencies." Follovinq this
reouest, FEI field offices recruited new informers and
strengthened its ties to private investigative organizations.
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Bureau aqents also attended "mass meetinqs and public
demonstrations" and undertook confidential inquiries of "'radical
and fascist organizations in the United States' for the purpose
of identifying their 'leadinq personnel, purposes and aims, and
the part they are likely tp play at a time of national
crisis'. T31J
Several weeks later, on November 9, assistant director 2.A.
Tamm advisee Eccver that the Bureau had started to prepare a list
of individuals "on shorn information is available indicatinq
strongly that (their) presence at liberty in this country in time
cf sar or national emergency would constitute a menace tc public
peace and safety of the United States Government." Both citizens
and aliens she had demcnstiated "strong" Nazi or Communist
"tendencies" sere included on the detention list, on December 6,
FEI director Ecover notified all SAC's that the Eureau was
preparing a detention list. "In the near future", the director
informed the field offices, the Eureau would request then tc
develop information "from ccrfidential sources" necessary "to
enable the rendering of a decision as tc the acticr to be taken
relative tc the individuals concerned in the event (of an
emerqency)." Ecover advised his SAC's that these investiqatiens
were to be conducted in strictest confidence and that the "color
cf authority under which this matter is handled is, of course,
the Registration Act." The Eureau developed two categories for
these on the detention list: 1) persons "to be apprehended and
interned immediately" in case of war or national emerqency; 2)
persons "whc should be watched c a r e f u lly . . .because th e ir
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previous activities indicate the possibility but not the
probability" that they would endanqer the national security.r32 ]
In June 1940, about a year after the Bureau had established
its own custodial detention plan, FBI directcr Hoover asked
Attorney GeEeral Robert Jackscr fcr "policy guidance concerning a
suspect list of individuals whose arrest night be necessary” in
the event cf a national enerqetcy. Unaware that the Eureau had
already drawn up lists of suspects and had developed contingency
plans for tie arrest cf "danqercus" individuals, Jackson
consulted secretary of War Eenry Stinson before responding tc
Eccver's recuest. Stinson recommended that any emergency plans
"providing for the custody of such enemy aliens as may be ordered
interned" should be coordinated by the military and Justice. For
that purpose, Jackson created a Neutrality laws Unit (later
renamed the Special War Policies Unit) to analyze and evaluate
FBI reports and tc review decisions tc place individuals on the
custodial detention list. [331
Initially Hcover resisted the Attorney General's plan for
Department oversiqht cf the detention program. Eoover may have
wanted to cover-up th e f a c t t h a t he bad ordered the FBI tc
develop a detention program without receivinq prior department
approval. And given Stimson's reply that only "enemy aliens"
should be ccrsidered fcr preventive detention, it is likely that
the Attorney General and the FEI director had radically different
plans for the program, Hoover's beinq broader and more inclusive-
In any event, on November 28, 1940, Hoover advised I. K. C. Smith,
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head of the Justice Departnent's Special Unit, that Jackson's
proposal widened "the very definite possibility of disclosure of
certain counter-espionaqe activities-" The memc continued:
He in the FBI have endeavored to assure the utmost secrecy and confidential character cf our reports and records- To turn over to the Department this great collection of material in tote. . .means that the Department must assume th e same r e s p o n s i b il it y fo r any lea k s or disclosure vhich might be prejudicial tc the continued security of our country.
Fearirg that the Bureau's sources would be compromised.
Hoover cautioned against immediate prosecution cf any individuals
who were cn the FBI'S detention list- If charqes were brought
aqainst any cf these persons, Hccver claimed, "the identity of
confidential informants now used ty the Bureau would become
known." Ii the Department's plan was approved. Hoover sternly
varned, the FEI would then be forced "tc abandon its facilities
fcr obtaining information in the subversives field."f 34]
Several months later, after negotiators frcm the Justice
Department and the FEI had failed to reach a compromise, the
Attorney General ordered Hoover tc turn over its detention index
and its dossiers to the Special Unit. Jackson guaranteed FBI
director Hccver that the identity of the Bureau's sources would
remain confidential and that the plan "does net involve any
abandonment by the Department cf its present facilities for
cbtaininq information in connection with suversive activities by
s u rv e illa n c e and c o u n te re sp io n a g e ." f3 5 ]
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In the same memorandum, the Attorney General outlined the
departments cfficial custodial detention policy. Following a
Presdential proclamation, the Attorney General would issue
warrants for the arrest of aliens whose presence in the United
States constituted a clear danger to the nation’s security. The
Attorney General would also issue the arrest warrants on the
authority cf the President’s proclamation. American citizens not
targeted for detention hut whose loyalty was questionable would
he charged with violating the Smith (peacetime sedition) Act or
ether relevant federal statutes. The FBI generally accepted the
Attorney Gereral’s prcpcsal, bet later expanded its suspect list
to include members cf the Socialist Workers Party, tie
Proletarian Party, the Lovestoneites, "or ary cf the other
Communistic organizations, or. . .their numerous ’front *
organizations. "[36 1
While this list, compiled in 1991, was more comprehensive
than the Attorney Gereral’s, it does not adequately indicate the
scope of the preventive detention investiqatiens and listings.
The case cf Congressmen Vitc Marcantcnio, thouqh it may not be
typical, is certainly instructive. Cn Kay 30, 194 1, Karcantonio
delivered a radio address criticizing the President’s
proclamation cf a naticnal emerqercy. Scon thereafter the FEI
investigated the congressman and recommended that he be listed
for custodial detenticr. On July 26, 1991, FEI director Hoover,
bypassing Special Unit chief Smith, sent the recommendation
directly tc assistant attorney qeneral Matthew McGuire "(i)n view
of the special circumstances in this case.'.* Hoover then asked
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Murphy if it would he appropriate tc send a copy of the request
tc Smith anc the Special Unit, but there is no indication as to
McGuire*s response because in 1978 the FBI could find to
reference tc custodial deterticn in Harcantonio *s file- It is
possible that the Justice Department, in cooperation with the
FBI, developed a separate detention incex for listing "prominent
persons”, references tc which would not be filed in the FEI'S
main indices for security purposes- In any case, it is likely
that prior tc the Secctd lorld War the Bureau listed other
prominent in d iv id u a ls on the d e te n tio n index fc r, among e th e r
tbinqs, criticizinq administration policy.f37]
after ordering the FBI to investigate "subversive
activities" in August 1936, Hoosevelt may have advised selected
members of Congress t t a t he had rescin d ed S to n e 's 1924 o rd e r, but
Conqress vas not formally consulted either before, or immediately
after, he had reached his decision- Presumably, Eoosevelt
believed that such consultaticr would have threatened the
confidentiality of these inquiries, or might have re-opened the
debate on ccrstituticral questions raised by federal surveillance
cf non-criminal activities- His indifference toward the
constituticrality of his decision is further evidenced by the
fact that he relied exclusively on the FBI director*®
interpretation of the 1916 Appropriations Act without ever
consulting his Attorney General- One is left tc conclude that
Eoosevelt's primary coal was tc get the job dene quietly, with a
minimum cf concern for legal or administrative rules that stood
in his way.
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Congress vas first apprised of the FBI'S surveillance
activities in November 1339, nearly three and a half years after
these investigations had teen intensified at the request cf the
President, In testimony before the House Appropriations
committee, FEI director Hoover acknowledged that tie Bureau had
re-estatlisled a General Intelligence Division to investigate
"all complaints of violations of the national deferse statutes."
When asked under what authority the Bureau had expended funds for
intelligence investigations. Hoover claimed by "authority cf the
President's ISeptenber 1939) proclamation." Several weeks later.
Hoover appeared again before the House Appropriations Committee
and changed h is e x p la n a tio n . Asked once again tc j u s t i f y the
Eureau's irtelligence operations, Hoover referred to the
President’s September 6, 1939 statement which directed that
"there be coordinated under the FEI all the matters cf
investigative work relatinq to espionage, sabotaqe, and
violations of the neutrality regulations, and any ether
subversi ve activities {emphasis added)." Hoover apparently
settled on this explanation and repeated it six months later
before the same committee.f38 ]
Members cf the Appropriations committee sere generally
sympathetic with the administration's internal security policies.
Several congressmen, however, expressed concern that the 3nreau
would be perm anently changed by e x ecu tiv e d ecree. In November
1939 Representative Clifton A. Wcocrum askec the FBI director if
the aqents hired tc enforce the President's proclamation would
"be kept on through the next fiscal year." "(I)f the emergency
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continues," Hoover replied, they would be. "And if the enerqency
ceases the reed for the additional force will cease?" Hoover
answered "yes". In February !S41 a similar exchanqe took place.
(Representative Louis L.) Ludlow- At the close of the presert enerqercy, when peace comes, it would mean that such of this emergency work necessarily will be discontinued
Mr Eccver. This is correct.
(Representative John) Taker: Is your set-up for naticEal defense work separate from the ether work?
Mr. Hoover. It is. . .If the national emerqency should terminate, the structure dealing with rational defense can immediately be discontinued or very materially curtailed according to the wishes cf Ccnqress.[39 ]
As noted earlier, Hoover revealed that the Bureau had
reestablished the General Intelligence Division. The GID, Hccver
carefully explained, had "compiled extensive indices of
individuals, groups, and organizations engaqed in.
•subversive activities, espionage activities, or any activities
that are possibly detrimental tc the internal security of the
United States." Alluding briefly to the Bureau’s custodial
detention program, Hccver inforned the committee that:
These indexes have been arranged not cnly alphabetically but alsc qecqraphically, so that at any time, should we enter into the conflict alrcac, we would be able tc qo into any of these communities and identify individuals and croups who niqht be, a source cf qrave danqer to the security of the country- Their backgrounds and activities are knevn tc the Bureau. These indexes will be extremely important and valuable in qrave emerqency.[39 ]
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This rather obscure reference was the closest the
administrated came tc informing Ccnqress that contingency plans
for custodial detention had been drawn up. And althouqh i t led
tc some criticism in the literal press, the Appropriations
Committee mace no e ffo rt tc compel Hccver to elaborate-T h11
Given qrowing Congressional conservatism a fte r the 1938
election, it is not surprising that Conqress did not scrutirize
the administration*s internal security programs more closely.
Indeed, Congress shared many of tte President's concerns about
the threat cf domestic communism, and to a lesser dearee,
fascism. Throughout the 193G's, legislation to prohibit the
distribution of communist propaganda had been introduced in
Congress. Eut not u r til 1938, when the House Special Committee
on tJn-American a c tiv itie s [lies Committee) f i r s t investigated
allegations cf comiUEist infiltration of the federal government,
did the sponsors of peacetime sedition legislation attract
substantial support. Two years later, after the international
situation had dramatically deteriorated. Congress approved and
the President signed the Alien Registration (Smith) Act. But as
Zechariah Chafee la te r explained: "(The Smith act) i s no more
limited to the registration cf aliens than the Espionage Act was
limited tc spyinq. . . (and places) the most drastic
restricticis cn freedcm cf speech ever enacted in the United
States during peace." In its final form, the Smith Act was a
combination cf bills that had been proposed as early as 1935 and,
in essence, was the peacetime sedition law FEI director Hoover
had long supported. In fact. Congress passed tie Smith Act in
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lieu of a proposal introduced by Bepresentative Emmanuel Cellar
IDem., S .5-) that would have chartered the FBI. The .joint
resolution would have empowered the Attorney General to authorize
the FBI to conduct investigations to "ascertain, prevent, and
frustrate ary interference with the national defense by satotage,
treason, seditious conspiracy, espionaqe, violations cf the
neutrality laws, or in any other manner." But since the Smith Act
made the acwccac 7 cf radical and communist ideas i ll e g a l , there
was no pressinq need to pass the Cellar resolution.r^2 ]
Despite this growing consensus, it would he incorrect to
conclude that Congress had issued the administration a blank
check which allotted the President tc order investicaticns cf his
foreign pclicy critics. Several congressmen exhorted the
administration not to violate due process and ether
constituticna3 rights in the name cf national security. The most
dramatic confrontation between Conqress and the administration
occurred in early 1940. In February, Gecrqe N orris, the
venerable senator from Nebraska who first raised the issue of FEI
accountability in 1913, alleged that FBI aqents in Detroit and
Milwaukee had n istreated 12 members cf the Friends of the Abraham
Lincoln Erigade when they arrested then on February 5 in early
morning raids. The defendants had been active in the "Friends"
several years earlier and had actively recruited people to -join
the Abraham lincoln Erigade and fiqtt in the Spanish Civil liar.
In late January a federal qrand "jury had handed down secret
indictments of th e l 1 men and a woman for violating an 1818 law
which prohibited the recruitment ir the United States of persons
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tc serve in a foreign conflict-r43 1
Senator Norris did not take issue with the arrests per se,
but rather the manner in which they were conducted- The alleged
activities cf the defendants, Ncrris asserted, were merely a
technical violation of the law, yet the FBI tad treated the
twelve as if they were accused cf some heinous crime. The
arrests sere conducted simultaneously at five ft. H. In cne case,
an FEI agert misrepresented himself as an ailing patient tc gain
eDtry intc the hone cf a physician. In two separate incidents,
agents broke down the doors of the homes of frightened suspects
who thought they were thugs and hccdlcms who were trying to
kidnap them. Premises were searched without warrants and
documents ard other personal papers seized without cause.
Families and relatives were not advised as tc the charges against
the defendants. The defendants sere held incommunicado for nine
hours, and, without being allowed tc confer with their lawyers,
and guesticxed about their political beliefs and activities.
Onnecessarily high bail was set, preventing most of the accused
frcm postinq bond.
On February 22, Ncrris outlined these complaints in a letter
tc attorney General Jackson and asked him tc investigate these
allegations, ft week later, the Attorney General replied. The
charges were undoubtedly serious, Jackson conceded, because "in
this field. . .there is the qravest danger that the legitimate
protection cf the government might be perverted toward such
activities as the suppression of free speech and press, tcward
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anti-labor and anti-reform activities, and to«arc the disregard
of civil liberties." Still, the Attorney General insisted that
the FBI aqents sere not guilty cf any wrongdoing- The
circumstances compelled the Bureaa to conduct early morning raids
in order tc prevent the suspects from avoiding arrest or warning
others of their impending arrest- The aqents had fully complied
with department rules during the interrogation and had not
questioned the accused about their past political activities.
Nevertheless, Jackscr announced that he had ordered all of the
charqes dropped. The department would not be able to investigate
all sim ilar a c tiv itie s , he explained, and i t "would be m anifestly
cniust to single out these Detroit defendants." The Attorney
General concluded:
One of the first steps which I tcck upon assuming office to review the activities and the a ttitu d e of the PEI, with which ay previous duties had net made me familiar., with its d ire c to r, J- Pdgar Hoover. Hr- Hoover is in agreement with me that the principles which Attorney General Stone laid down in 192^ when the TBI was reorganised and Mr. Hcover appointed as Director are sound and th at t he usefclness of the Bureau depends upon a fai thful adherence to those lim ita tio n s. (emphasis added) "F 45]
Not satisfied with the Attorney General’s reply Ncrris sent
Jackson a mere comprehensive review of evidence of FEI
mistreatment- Norris suggested th at he examine this m aterial
before dismissing the defendants' allegations- cn February 28,
Ncrris brouqht these charges to the attention cf the Senate.
Norris warned that the same General Intelligence Division had
been respotsible for the infamcus "Ealmer Raids". The Detroit
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arrests were grim reminders that the FEI s t i l l chose to act firs t
and ask questions later. But the confused leqal tasis for FEI
internal security operations made it difficult for the Senator tc
offer a legislative scluticn tc the problem. Max Iowenthal, who
did much cf the Senator's research into this question/ arqued
that Conqress had never explicitly qranted the FEI the authority
to investiqate any activities other than violations cf the
federal laws. Allegedly subversive activities did not satisfy
this requirement, but in the ahsense of hard evidence that the
FEI was ccncuctinq politically-motivated investigations, critics
were hard-pressed to challenge the Attorney General's claim that
the FBI was operating vithir Stcne's 1929 guidelines. Only a
special Congressional committee with the pcwer tc subponae
necessary documents could settle the question. Fcr that reason,
Ncrris repeated his reguest that the Senate authorize an
investigation of the administration's internal security
investigations.[961
After Senator Norris -voiced his concerns cn the Senate floor
in March, many of the nation's most prominent and respected
newspapers called fcr an independent Congressional investigation-
"Since responsible men have said there is evidence that the FEI
has used ille g a l methods cf law enforcement and qcre beyond the
touncaries cf its jcb", the _N§jr York Jest wrote, "the nation has
a riqht tc ktcw whether or net the charges are correct.” The
Philadelphia Inquirer concluded: "By all means let there be a
comprehensive inquiry into (Norris') charges; into spyinq,
sneaking, snooping, framing and trapping that.have been going cn
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in the long-suffering name of Justice." "There Bust be no CPGU
ti.e., the Scviet Secret police) taint on the FBI or any other
police agetcy." Even the mere conservative Ngw Ycrk Failv-News
concurred: "Mr. Hccver is widely believed nowadays to be
building up a secret police organization of un-American
complexion. . . {w)e sympathize with Senator Gecrge Norris when
he writes. . .an urgent request tc put 'a strong restraining*
hand on Hccver*s FBI ’to keep it within bounds’.”fh7 ]
In response tc this pressure, the Attorney General
commissioned Henry Schweinhaut, assistant attorney general in
charge of the department's civil liberties division, to conduct a
thorough inquiry intc the February raids. In Hay, following a
mcnth and a half long investigation, Schweintaut dismissed
Norris' charges. The evidence showed that while a few aaents
might have teen somewhat overzealous, the rights cf the former
defendants had not been systematically violated. Norris, for
example, had c ritic iz e d the Eureau for using "third-degree"
tactics during the interrogations that fcllcwed the arrests.
After intervievirg FBI agents, nary cf the former defendants, and
ether individuals, Schweinhaut concluded that the "defendants
were adequately informed cf their right not to incriminate
themselves and that no compulsion was used tc make them do so."
Norris complained that unwarranted searches and seizures attended
the arrests. Schweinhaut reported that the agents were
"following instructions" and that the "searches ate seizures,
.were conducted in full accord with the regulations of the FEI."
The other allegations were either dismissed or similarly
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 371
explained away.
On May 3, in a letter tc Ncrris, attorney General Jackson
defended the findings of the schweinhaut rejcrt. Norris'
concerns were admittedly important and deserved the department's
full attention, the attorney General wrote. But be was convinced
that "the acerts in Detroit acted vithir their instructions and
exercised their discretion in qood faith." If "traditional civil
liberties. . .are generally endangered in this country",
Jackson continued, "it is not by the FBI." Jackscn repeated the
Bureau's own (erroneous) claim that 961 of all cases investiaated
and prosecuted with the assistance of the FEI, ended in
conviction, and that since 1924, no conviction thus reached had
teen overturned on appeal "because of 'third degree' or other
improper treatment of defendants." "I am confident", Jackscn
confided, "that the note the operations of the Eureau are
explored the more it will appear that its vigorous and effective
work for law enforcement is conducted with a fundamental purpose
tc observe the rights of the defendants."T48 ]
Not everyone was as impressed with the Schweinhaut repcrt.
On May 11, The Naticn called it an odd document: "Its tone
absolves and approves. Its findinqs - and its ommisions -
condemn." Senator Norris was more blunt ard referred tc the
report as a "whitewash". On Hay 7, in a four and half hour
spech, the longest of his career, Norris read into the record
evidence which he claimed the Justice Department had ignored and
concluded that "the methods beinq pursued by the FBI are wrcng, 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 312
and if continued, mean the destruction cf human liberty in the
United S ta te s -"[49 ]
The senator's criticism cf the FBI attracted a great deal of
Fublic attention, making him a lightning red fcr bcth pro and
anti-FBI C F i r ic n . The l e t t e r s Norris received following his
condemnation of the Eetroit raids ran almost 4 tc 1 against the
FBI- These letters may net adeguately reflect public opinion but
they at least representative cf concerned sentiment regarding
c iv il lib e rtie s on the eve of the Second World War. Not
surprisinqly, many of the reactions were quite emotional, others
were more tempered and reasoned. Some individuals and groups
criticized Norris for playing into the hands cf the communists,
anarchists, criminals and ether 11 nn-Americans". According to
these individuals, Norris himself had done considerable damage to
the nation's internal security in particularly dangerous times.
A sample of critical responses follow:
"Ycur attempts to smear Mr. Hoover are too transparent to dignify with conversaticn. The whole New Deal stench i s becoming disgusting."
"Who is instigating this attack cn Mr- Hccver. .Is it that fir- Jackscn is a bit pink and is afraid to find out as to the activities of the Communists?"
"I wish. . .tc voice fny) disapproval of the 'smear J. Edqar Hoover' campaign which is being carried cn by nen in Washington who should be in te llig e n t enough to know what harm they nay be causing by their vindictive attacks."
"When there is a prize on protecting treachery and ccndemning real p a trio tic c itizen s and the enforcement of Constitutional law you will win this beeby prize."
"I feel that the responsibility for smokirq out these subversive movements should be left in the
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 373
hands cf the FBI and J. Edqar Hcover, since after all these anti-american (sic) forces are really irivaadinq armies not individuals, and should he treated as such.”
"Oui criminal and subversive elements are qlcatirq with jcy. . .Sucker ccamentatcrs and sucker politicians who have allowed theirselves to he duped intc support cf this sabotaqe are unwittingly doinq great harm.n
" (Y)cur criticisms can cnly encouraqe the criminal element of our nation. . .1 wculd favcr giving (the FBI) still more power to strangle this viperous element in our country."
Senator Norris drew support from civil liberties
crqanizatiors, later unions, writers, newspaper editors,
academics, and a qood many private c itizen s who were not
affiliated with any particular organization. This support
suqgests that many conscientious Americans were net ready tc
sacrifice traditional political freedoms at the altar of national
security. 3 sample of these responses follows:
'•If we are tc lose are civil liberties, what will ether thinqs te worth? If it were net for a few ccuraqeccs men like ycu, petty bureaucrats could qet away with infamies."
" (W)e again urge upon ycu the immediate necessity of conducting a thcrouqh investicaticn of the activities cf the FBI in crder to insure that our B ill of Eiqhts and our c iv il lib e rtie s will ret be jeopardized by this Bureau."
"With the world in i t s present turm oil. . . i t is cut feelinq that ay threat tc Constitutional guarantees becomes in f ir ite ly more serious than i t might be under other conditions. .Withthese thinqs in mind, we respectfully request a full Senatorial investigation cf the FBI."
"No agency in th is government can afford tc be illeqal m its effort tc wipe out so-called radical and communistic activities."
"I appreciate ycur ccuraqe in this and ether
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 374
matters affecting the liberty and well-beinq of the Onited States citizen.T 50 1
If many did indeed support a congressional investigation cf
the FBI arc favored a more balanced approached to solving
internal security problems, Conqress did net share this opinion.
Senator Norris' proposal fcr an investigation of the Detroit
raids attracted little or no support. Similarly, the Senate
Interstate Commerce committee, which investigated federal
wiretapping policies in 1940, iqnered charges that the FEI had
tapped telephones in violation of the 1934 Communications Acta
The committee never explained this decision, brt administration
o ffic ia ls may have warned committee chairman Eurton K. Wheeler
that such an inguiry would endanger the nation's security. Thus,
as the irtertational crisis grew more serious, Congress once
again refused to exercise its authority to oversee the activities
of the FEI and a t the eve cf the Second World War, the
constitutional guestions first raised when the Bureau was created
in 1908 remained urxesclved, Cnly with in the context of th is
series of failures can the intelligence abuses cf the Cold War
years be adequately explained.f51 ]
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. NOTES
1) SESE, 391-399; HIA, 560-572; Thecfcaris, Spying cn
Americans. 6 5-77; Eonner, Ace of Surveillance. 52-69.
2) Donner, Age of Surveillanee. 62-64; Ioventhal, FEI.
3 15-329; Whitehead, JBJ Story. 170-180.
3) Jane Perry Clark, Deportation of Aliens. 225. Several
State Department officials with whom Hoover shared intelligence
information, for example, knew that the FBI hac investigated
political activities after 1924, bet it is not likely that these
same officials were aware of the scope of these operations.
'•*) HIA. 559-562; Dcnnei, Age of Surveillance. 53-54;
Bichard Steele, "Franklin Bccsevelt and Eis Fcreign Policy
C ritics," P o litic a l Science 0 uarterlw 94 (Spring 1979), 16-32.
5) SDSB. 293-394; Theoharis, Spying on Americans. 67-68;
see Zilg, Behind the Nylon Curtain (New York, 1974), for
3 additional information about the liberty League’s attempt to
overthrow the Roosevelt adm inistration. See also, Sander I.
Diamond, The Nazi Hcvement in the Onited S tates. 1924-1941
(Ithaca, 1974); Geoffrey S. Smith, 3 5 Save a Naticn: American
Counter-Suhversives. the New Deal and the coming cf World Waj II 1I (New York, 1972). Thecharis, Spying on Americans. 67. SDSR.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 376
392-94; HIA, 561-63; Eonner, Age of Surveillance. 53-55.
7) IAEA. 24-26; ED SB. 394-95; filA, 561-62; Theoharis,
Spying on Americans. 69-70; Donner, Age af Survei llance. 53-55.
8) HIA, 561-62; IAEA. 24-26; SDSB. 394-95 : Theoharis.
Spying on Americans. 69-70; Conner, Age cf Surveillance. 53-55.
SDSE. 396-57; Theoharis. Spying as Americans . 69-70; See also,
General Index, FBI Investiqative Records, 1908-1922, National
Archives, Kashington, E.C.
10) SESE. 397-398; Theoharis, Spving cn Americans. 70;
Ecnner, Age cf Surveillance. 54-55.
11) Theoharis arqces that FEI director Hccver developed a
nuch broader surveillance program than the one envisioned by FEE
in August 1936- Eat Theoharis tases his assertion cn the
semantic differences between the President's public statements
and internal FEI memorandums. Theoharis is correct when he
maintains tlat FDR never tobliclv authorized the FEI to
investiqate "subversive activities" and that this particular
Fhrase appears only in memos circulated by the FBI. Yet
Theoharis uirinizes or iqrcres evidence that suqqests that FDR
encouraged the investigation of lawful political activities. Nor
does he explain why the President did net invite the Attorney
General to the Auqust 1936 meetings tc represent the Justice
Department. leo Ribuffo, "Civil L ib erties Fcr V illains? The
Roosevelt Adniristraticn and the Far Eight," 17, paper delivered
at the 1979 Organization of American Historians meetiEq, New
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 377
Orleans, La. SDSR, 396-97; Dcnner, Age of Su rv eillan ce.. 54-55;
Ibeobatis, Scvipg on Americans. 70-71.
12) Killian E. Lecchtenburg, Franklin D. Roosevelt and the
New Deal. 1932-1940 (New York, 1963), 164-189. In January 1936,
for example, *1 Smith tcld members cf tbe Liberty League that the
New Deal bed taken a dangerous turn toward socialism. "It is all
right with me if (members of the Roosevelt Administration) want
to disguise themselves as Norman Thomas or Karl Marx, or Lenin,
or any of the rest of th at bunch. But what I won't stand for is
allowing them to march under the banner of Jefferson, Jackscn and
Cleveland." Leuchtenburg, 178. George W olfskill and John Hudson,
All but the People: Franklin D. Roosevelt ard His Critics,
1933-1939 (London, 1969), 93-116. Cnkncwn to Fcosevelt, the FEI
used Elizabeth D illin g ’s bock, The Red Network: A Handbook of
Badicalism for Patriots (Chicago, 1 934) as a reference source.
The book was v irtu a lly a Who's Who of American liberalism , and
listed such prominent persons such as Felix Frankfurter and
Zechariah Cbafee Charles Evans Hughes, and Harlan Fiske Stone as
communist sympathizers. See "American Friends Service Ccnmitee,"
undated FET memorandum, FBI file s , American Friends Service
Committee, Philadelphia, Pa. Hcod report, 1/30/41, FEI file s,
ILD; Washington, E.C. field office report, 12/29/40, FBI files,
ILD. Roosevelt's strategy backfired following his death when the
FEI, in concert with conservative congressmen and the House
Dn-American A ctivities Committee, turned on New Deal luminaries
such as Eerry Dexter White ard Alqer Hiss. By giving FEI
director Hoover authority to investigate radical activities in
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 378
1936 without takinq the necessary precautions virtually insured
FBI involvement in the post-war purqe. See, Theoharis, Spying on
Americans: Conner, Age of S u rv eillarce; Kenneth O 'R eilly,
"Artful Dissemination: The FBI - HUA.Cs Biq Brother," The nation
230 {January 19, 1 980), 42-45; Yictor Rahincwitz, £n Jj Alger
Hiss (New York, 1979); In Alger Hiss, vclume II (New York,
1980); David Caate, The Great Fear: The Anti-Communist Eugpe
Under Truman and Eiseenhower (New York, 1978).
13) SJCSR, 397-99; Theoharis, Srvieg on Americans. 70-71;
Dcrner, Age cf Surveillance. 56.
14) HIA, 565-67; TARA. 25-27; SDSP. 397-99; Theoharis,
Spying on Americans. 71-72.
15) HI A. 566-68; SD SR. 398-99; Theoharis, Spying on
Americans, 72.
16) Donner, Aqe of Surveillance. 48-50; HIS, 555-57; SISB. 398.
17) SISB. 397-98; Theoharis, Spying cn Americans. 72;
Conner, Age cf Surveillance. 56-57.
18) SISF. 400-401; Theoharis, Spying cn Americans. 72-73;
Conner, Age cf Surveillance. 56-57.
19) HI A. 568-70; SPSS. 40 1-03; Theoharis, Spying cr
Americans. 72-73; Dcirer, Age of Surveillance. 57-58.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 379
20) Richard Steele, "Franklin Bocsevelt and His Foreign
Policy Critics”, 16-16; SPSS. 414-15; Theoharis, Spying on
Americans. 156-158; Conner, Age of Surveillance. 57-58.
21) SCS5. 402-03; Theoharis, Spying on Americans. 73-74.
22) HIA. 570-73; SDSR, 403-4 05; Theoharis, Spying on
Americans. 74-75; Donner, Age of Surveillance. 58-60.
23) SDSR. 404-405; Thechais, Stving on American s. 74-75 ;
Dcnner, Age of Surveillance. 58-60.
24) Steele, ”Franklin Roosevelt and His Foreiqn Policy
Critics”, 15-32; Theoharis, Spying on Americans. 156-5S.
25) SDSB. 414-415; FEI f il e s , illE F , AFSC, ACID.
26) SDSR, 277-279.
27) SDSR, 279.
28) SEER, 280.
29) SDSR. 277-81 ; Theoharis, Spying on Amer icans. 97-100;
Theoharis and Elizabeth Heyer, ”The ' National Security*
Justification for Electronic Surveillance; An Elusive
Exception,” Wayne Lav Review 14 {Sunnier 1968) , 749-771.
3 0) SCSI. 412-414; Theoharis, Spy ing cn Americans. 41-42;
Ccnner, Ace cf S urveillance. 147-150; Carolire Rcss and Ken
Lawrence, J-, Edgar Hccver1s Detenti on Plan; The Pcl i tic s cf
Repression jr. the Onited States. 1935-1 976 (Jackscn, 1978) , 3-6.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 380
31) SJSR, 412-413; Theoharis, Scving cn Americans. 41-42;
Boss and lawrence, Hccver1s Eetepticn Plan, 3-4.
32) SESE. 413-414; Theoharis, Spying on Airericans. 41-43.
33) SESE. 417-19; Theoharis, Spying on Ajericans, 41-43.
34) IA FA. 34-35; SESH, 418-419; Thecharis, Srving cn
Americans, 42-43.
35) SESE. 418-419; Theoharis, Spying on Anericans. 42.
36) SESE, 418-419.
37) Thecharis, "The Eroblea cf Purging FEI Files," PSA Today
(November 1976), 48-50. Alsc see, Kenneth Waltzer, "The FBI,
Congressman Vito Harcantonio, and the Anerican labor Earty," in
Theoharis, ed., Beyond P.S. v. Hiss: The FEI. Ccngress and the
Cold war, forthcoming. In the 1940's the FEI developed a "Dc Net
File" file tc prevent the disclosure of sensitive documents like
the Karcantcnio detention file correspondence. Ir addition tc
the "do ECt file" procedure, Hoover maintained a confidential
file "in which are kept various and sundry items believed
inadvisable tc be included in the general files cf the Eureau."
Deports on the surveillance of organizations (e.g., ISW, HAACF,
and AFL) enc individuals (Fammcn EeValera, Harry Weinberger,
Botert LaFcllette, william Bcrah, and Hiram Johnson) were
included in the confidential files. The "dc net file" files and
the confidential files, Thecharis writes, enabled "the FEI
director to influence offical policy, key political leaders, and
I Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 381
through carefully orchestrated press leahs, public opir.icn, " In
Eichard Kixcn's voids: "(Hoover) had f ile s cn everbcdy."
Theoharis, Srvina ct A mericans. 157; Conner, Age of
Surveillance, 114.
38) SESE. 407-409; IARJ, 28-30.
39) SESE. 407-408.
40) SESE. 408-409; IAEA, 28-30.
41) SESE. 408-409; "Cur Lawless G-Hen," The Nation 150
(March 2, 1940), 296-297; "(1)ists cf perscrs he considers
dangerous have been compiled by J. Edgar Hoover," the editor
explained, "for a mass roundup in the event cf vai ci *qrave
emercency*
42) See generally Janes Patterson, Cocgressicnal
Conserva ti s n and the Jew Eeal (Lexinqtcn, 1967); Bichard
Polenberg, "The Decline of the New Deal, 1937-1S40," in John
Braeman, et a l . , The Kea Deal: The National Level (Ccluirbus,
1975), 246-266. fluqust R. Oqden, The Dies Committee
(Eashington, 1946);; Eichard Eolenterg, "Iranklii Bocsevelt and
Civil Liberties: The Case of the Dies Committee," Historian
30 (1968-65), 165-78; Zechariah Chafee, Jr., Tree Speech in the
Onited States (Cambridge, 1941), 440-493; SDSR. 26C.
43) Eichard Lositt, George W. Norris: The Triumph cf a
Progressive . 1933- 1944 (Urbana, 1978), 293-58; Congressiona 1
Fecord (February 26, 1940 , 1980-81 ; "American OPGU," Jhe Nev-
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 382
Republic 102 (February, 26 1940), 230-3 1; C ivil Riqhts
Federation, FEI Detrci t; The facts Concerning the FBI Raids in
Detroit (Detroit, 1940).
44) Civil Riqhts federation, FEI JQjtroit, 4-6; Ncrris tc
Jackson, 2/22/44, hex 106, Gecrqe Norris MSS, Library of
Conqress, Eashingtor, B.C.
45) Forris to Jackson, 2/22/40; Jackscn tc Ncrris, 3/1/40,
box 106, Ncrris MS; Civil Rights Federation, fBi Detroit. S-10.
46) Norris to Jackscn, 3/19/40, box 106, Norris MSS.
47) FEI Detroi t . 12-13; Ehiladelrhia I n q u irer. March 13,
19540 N.Y. railv News, March 3, 1940; St. Locis Eost-Dispatch.
March 16, 154C.
48) Henry Schweinhaut, "Report tc the Attcrney General
Concerning tie Investiqaticn cf Arrests and Subsequent Erocedure
in Detroit Spanish Recruiting Cases"; Jackscn tc Ncrris, 5/3/40,
box 106, Ncrris MSS. Alsc see, Robert Jackson, "The Federal
Prosecutor," address delivered at the Secord Annual Conferance of
U.S. Attorneys, 4/1/40, Nashinqton, D.C.
49) The Nation (May 1 1, 1940), 564-585; Congressional
Record (May 7, 1940), 5644-64.
50) All le tte rs in bcx 104, Norris MSS.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 383
51) See generally, Theoharis, Scvicq cn Altericans: Dcrner,
Age cf Surveillance,
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MANUSCRIPTS
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Jerold Auerbach, Lafccr and l i berty; Jhe LaFcllette committee acd the New Pea 1. IndianaFclTi, I96e. ~
, Snecujal Jns_ti.ce.: Lawyers and Sccial Chanae in America. New Ycrk, TT 717 — — — ------—
, "Patrician as L ibertarian: Zecbariafc Chafee, Jr. and Freedom of Speech," New England Ota i t e rlv 9 2 (December 1969), 51 1-531.
liva Baker. Felix Frankfurter. New Fork, 1969.
Michael Eelknap, Cold Sar P o litical Ju stice: The Smith Act, t he Communist Party, and American Cavil L ib e rtie s . Westpert, T5 y7.”
, "The Mechanics of Bepressicn: J. Edqar Hoover, the Bureau of Investiqation and the Badicals, 19 17-1925," Crime and Social Justice (Sprinq-Summer 1977), 99-58. ” ~
Daniel B ell, Marxian Socialism in the Orited S ta tes. Princeton, 1967. “
Irvinq Bernstein, Ihe lean Years: A History of the American Worker. 1920-1933. Foster: 1f737 — ----- — ------
r u XSTtnlent Y e j j j j . A lisicrj cf the AjericaE korker. 1933- 1991, BcstcS7 T9Tj .
Francis Bicdle, In Erief Authority. Garden City, 1967-
Jcseph Bistcp, Charles Joseph Ecnaparte, Hij Life and His Public Services. New YcrkT T 9 2 H ”
Paul Blackstcck. Aaerts cf Deceit: Frauds. Forgeries and Political Intrigue Tgcrq"NatlcnlT~mcago. T 9 IT - —H ““
Fichard H. Elum, ed., Surveillance and Hscicrace in a Free Society. New Ycrk, 1972. ------“ ------
Paul F. . Frissenden, The I . W.W.: A Study in American Syndicalism . New York, 1TZTJ.
David Brodv, Workers in Industrial America: Essays on the Twentieth Century struggle, Tie % Y crl7 1F8T3. ”
Dominic Carcelcro, "leuis F. Pest and the Bed Scare cf 1920," Prologue. 11(Sprinq 1979),
Lcrin Lee Cary, "The Bureau of Investigation and Fadicalism in
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Toledo, Otic: 1918-1920,” labor History, 21 (Summer 1980), 4 3 0—44 0,
Eavid Caute, The Great ?ear: The Anti-c o mmunist Purge Under Truman and Eisenhower. New York,i9787~ ” - - _
Zechariah Chafee, d r .. Free Speech in the United S tates. Cambriidge, 1941, ”
, "Eroqress of the Law, ISIS-1922.” Harvard Law Beview. 35 (1921-1922) , 692-7004, — ------
Kate H. Clagfccrn, The Iwrnig ra r t s 1 Eay in Court . New Ycrk, 1923.
Jane Perry Clark, Bgl.c_gtat.icgs Aligns l£ £ a t ) u United . S t a t e s , New York, 1931.
Stanley Coter, .A* Mitchell Palmer: Politician. New York, 1963.
James D. Cockcroft. In te lle c tu a l Precursors cf the Mexican Be volution. IS CO-1913. l u s t in ,1^61. — — ------— ------
Fred J . Ccok, The FBI Nobody Knows. London, 1964.
Hilliam B. Corson, The Armies of I qnorarce: The Bise of the American Intelligence jjmpire.~New York,1 9 7 ’?.
Homer Cummings and Carl McFarland, Federal Ju stic e : Chapte rs in the History of Justice and the Federal F x e c u tiv e ew~TcrlT 197T1T
Eobert Dallek. Franklin D. Boosevelt and American Foreign Policy. 192 2-1*457 Sew York. 1 9 7 1 T . ------— —
Bcqer Daniels, The Bonus March: An Episode of tie Great Depression. Bestport, 1971. ~ - - _
Jerome Davis, The Russian Immigran t . New York, 1922.
Balph DeToledano, J^. Edgar Hocver: The Han in Fis Time. New Ycrk, 1973.
Sander T. Diamond, The Nazi Movement in the United States. Ithaca, 1974. — — ------
Sigmund Diawcrd, "Healing fcr Hccver: Gcd and the FEI at Yale," The Nation 23C[April 12, 1980), 423-428.
, "More on Buckley and the FEI," The Nation, 231 [September 13, 1980), 202, 206. ------
Elizabeth Tilling, The Red Network: A Handbook cf Radicalism for Patriots. Chicagc, 1 9 3 4 . - - - -
Frank J. Tenner, T he Age _£f Surveillance: The Ai us and Methods i Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 391
of America 's P o litic a l In tellig en ce System. New Ycrk, 1980.
t " Hoover’s Legacy: A Nationwide System of Political Surveillance Eased on the Spurious Authority cf a Press Belease," 1 he Nation, 218(June 1, 1974), 678-699.
, "Hew J. Edgar Hcover Created His In tellig en ce Powers," Civil Liberties Beviev. 3 (Febrrary/March 1977), 34-51.
Eldridge F• Dowell, A History of Criminal Syndicalism legislation in the OniteS S t a t e s T -B a It iio r e ~ r7 9 3 9 T ~ — ~ - “
Helvyn Dubofsky, He Shall Be Ail: A History of the TWW, (New York, 1969, ~ *"
The Editors, "Eevelopments in the Law: The Actional Security Interest and Civil Liberties," Harvard law Feviea. 85 (April 1972), 1 1 3 3 -1 3 2 7 .
John Elliif, The Be for a cf FBI Intelligence Operations. Princeton, 19 <9. ~
Thomas I . Emerson, The svstem of Freedom cj Exrressicn. New York, 1970.
Peter F ilere, Americars and the Scviet Experiment. 1917-1933: American Attitudes leward fussia From tFe Fetrcary RevcluFicn until diplcmatic recognition. Cambridge, 1967.
Hilliam Z. Fester, Histcrv of the Communist Party cf the UEited S tates. New Ycrk, 196a. ”
Felix Frankfurter ard Nathan Greene. The Later In-iunctior. Gloucester, 1 9 6 3 . — ------
Ernst Freund, The Police Power. Chicago, 1904.
Eichard H. Frost, The Boonev Case, Pale Alto, 1968.
James Giqlio, H.B. Daugherty and the Politics cf Expediency. Ken 11 19 7 8 1
Eobert Goldstein, Political Eepress ion i,n Bcdern A merica. New York, 1978. “
, "The FBI's Forty-Year Plot: Internment Camps for Citizens ,*1 The Nation (July 1, 1978), 10-15-
Gerald Gunther, Individual Bights in C onstitutional Law. Kineola, I 3 70*
Arnon G utfeld, "T he Ves Hall Case, Judqe Bcurcuin, and the Sedition Act of 1916," Pacific Historical Eeview. 37 11968*. 163-178.
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Horten Halperin, et a l . f The Lawless State: The Crimes of the a.S. Intelligence agencies. New "York, 1 5 7 6 . ” ~
F. Edward Haley, Revolution and In terv en tio n: Taft and Wilson with Mexico. 1910-791?. tamhriTfiie . 19/5.
William Hartaugh, Power and Responsibility: The Life and Times of Theodore Eoosevelt. New Yorky i96T 7
John M. Hart. Anarchism and the Mexican Wcrkino Class. 1860-193 1. Austin, 79"E. — ------a. ------x
E llis Hawlev, The Great War and th e Search fo r a Modern Order, New York, 1978. - ” “ “
Seigfried Hesse, "T he Constitutional Status cf the Lawfully Admitted Resident Alien:The Pre-1917 Cases," Yale Law Journal. 68 {July 1959), 1579-1625-
, "The Inherant Limits of the Fower to Expel," Yale Law Journal. 6 9 (Eecemfcer 1959), 262-297.
John Hicks, Becuhlican Ascendency. 1921-1933. New Ycrk, 1860.
John Highan, Strangers in the Land: Patterns cf American Nativism. 1 8 6 3 -1 9 2 5 .liew York, 1 956T-- — ------*------
J- Edgar Hoover, Masters cf Deceit. New York, 18 5 6.
„ v- * Sone Leaai JL§-E§cts of Intersate Cjiae, Washington, 1938.
Ernest J. Hcrkins, Our Lawless Police: A Study of Unlawful Enforcement cf the LawT New York, 79 31.''
J.E. Horn, The Pinke r ton * 5 : The Detec t ive Dvrasty That Made Histo ry . New Ycrk, 1967.
Irving Howe and Lewis Ccser. The American Cctnrurist Partv: A C ritical Histcrv. New Ycrk, 1T61. — ------
Eeter Irens, M,Fighting Fair*: Zechariah Chafee, Jr., the Department cf Ju stice, and the "Trial a t the Harvard Club*," Harvard Law Feview. 94 {April 1981), 1205-1236.
Bodri Jeffrevs-Jones. American Espionage: From Secret Servir#= t.o CIA. New York, 1977. ------545------
Jean M. Jensen, The Price of Vigilance. Chicago, 1968.
Donald Johnsen. The Challenge to American Freedoms: World War I and the Eise of the American c iv il Libe r t i e s Uticn. Lexington, 1963. - - -
Louis Joughin and Edmund Morgan, The Legacy of Sacco a nd
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Vanzetti. Erinceton, 1978.
Fcger Keeran, The Communist Party and the Ante Kcrkers Unions. Eloomington, TTFO. “ - - - -
Horten Keller, Affairs of State: Public Life in the Late Mineteenth CenturvT Cambridge. 7 T 7 7 . - - _
David Kennedy, Over Here: The Fi r s t Hcrld Kar and American Society. Key York, T5TT. " ”
Ctto Kirchheiner, Political Justice: The Use of l e g a l Procedure for Political Enas. Princeton.1961. “ ~
Gabriel Kolkc, The Trinmph of Conservatism. New York, 1963.
Riltcn Konvitz, Civil Rights in Immigration. Ithaca, 1953.
Jcyce Kornbluh, ed., Hetel Voices: An IWW Anthclcgy. Ann Arbor, 1S64 ~
Jacob H. landynski. Search and Seizure and the Sotreme Cccrt: A study in Ccnstituticnal' interpretation. Baltimore, T 9 6 5 .
Elson Lassen, The Histcry and Development cf £he Fccrth A nendment to t he United States Ccnstituticn. Ealtimcre, T 5 3 7 7 ”
Killiam T. letvin, lav and Ecgnqmgc Pciicy in A aerica: Evolution cf the Shernan Inti^-rruTE Act.~Ne« York, 1 7 5 5 .
Pilliam Leuchtenburg, Franklin I. Roosevelt and the New Deal. 1932-1940. New Ycrk, 1 7 5 3 . - — ------
Hurray B, levin. P o litic a l Hysteria in America: The Democratic Capacity fcr Repressicr. Sew Ycrk7_ 17 7 1 . ” "
Arthur Link, licodrov Wilscn anc the Progressive Eia. 1910-1917. New York, 1957TI ~ “
Donald J. Lisic. The President ar.d Protest: Hoover* Conspiracy anc the Bonus Riot.Cclumbia. 1S7H. "
Jchn Lombardi, Labor♦s Voice in the Cabinet: A History of the Labor Depart nenl: frca Its flrigin' to 7 7 T T I~llew York ,'^ 7 "4 ^. ~
Richard E. lengaker. The Presidency and Individual Liberties. Ithaca, 1961. ~ ” “ ”
Max Loventhal, The Federal Bureau cf Investigation. New York, 1950. “ " - - -
Richard Lowitt. George W. Norris: The Triumph cf a Prcaressive. 1933-1944 . UrtanaT 1 7 7 8 7 " ------
Henry Lysine, Hen Agairst Crime. New York, 1936.
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Carey McWilliams, The Education of Carey McWillia b s . New York, 1978.
Christine B. Harwick, ed.. L itigatio n Under the A tended Federal Freedom of Irfcrmaticn Act. Washington, Y978. ” “
Gary T. Marx, "Thouqhts on a Neglected Categcry cf Social Movement P articipant: The Aqent Provocateur ana the Informer,11 American Journal of Sociology.
Alpheus T. Mason, Erandeis: J Free Ban's L if e. New Ycrk, 1956.
, Harlan Fiske Stcce: Pillar cf the Law, New York, 1956. “ “
Thomas B. May, Constitutional History of England, 2 vols., Boston, 1864. “ ~ “
Arthur Millshaugh, Crime Control Ey the Federal Government. Washington, 1937. “
James R. Meek, Censorshin 1917. Princeton, 1941.
David Montocaery. Workers* Control ij) America: Studies in the History of B e rk .T e c h n o logy, and Labor Struggles. Cambridge^ 1979.
Bobert B. Morcan, Domestic Intelligence: Monitoring Dissent in America. Austin, 19SQ. ” ~
George Mosry, The California Progressives. Eerkeley, 1951.
,Q{;c * The Bra of Theodore Boose v e lt. 1900-1912. New York, Hull*
Paul Murphy, The Meaning of Free Speech. Westport, 1974.
n -x >a War l an d tf§ Cjigfn of Civil iilf£tjes in the Cnited S ta te s . Sew York, 7979.
Egtert K. Murray. The Harding Epa; Warren Hard ing and His fldmimstraticr . Mmneapoils, 1969.
, Bed Scare: A Study in National Hysteria. Minneapolis, 1955. ~ “
Eurle Noqole, Teapot Dome: Oil aid Pol i t ics fn t he 1920 *s. Eaton Bouge, 1962. ~ “
John Lord C*Erian, National Security and Ircividual Freedom. Cambridge, 1955. —
Dick o*Ccnrcr, G-Men a_t fccrk: The s t ory of America *s Fight Against Crme and ccrrutticn. lender, 7§T9.
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August R. Ocden, The Dies committee. Washington, 1545.
Janes Patterson, Congressional Conservatism and the New Pea 1. Lexington, 1967. "" “ ” ~
B.C. Petersen and Gilbert Fite, Opponents of War. 1917-1918. Madison, 1557. ------
Richard Polenterg. "Franklin Roosevelt and Civil Liberties: The Case of the Pies Committee," The Historian. 3C( 1566-69), 165-176.
Louis F. Pest, Deportations Deliricm gf 1920. Chicago, 1923.
Richard G. Powers, "The Attorney General anc the G-Man: Hollywood’s Pole ir Hoover’s Rise to Power." Southwest Review. 62 (Autumn 1577), 329-306.
, " J. Edgar Hoover and the Detective Hero," Journal of Popular Culture (Fall 1975), 257-78.
, "Cne G-Man's Family: Popular Entertainment and J . Edcar Hoover's FBI," American Q uarterly, 30(Fall 1978), 471-492.
William Preston, Jr., Aliens and Dissenters: Federal Suppression cf Radicals. 1503-1 gSrTTaaErlflae. flST.------
Melvin Purvis, An American Agent. Hew Xcrk, 1936.
Victor Rabinovitz, In Re Aloer H iss. New York, 1979.
, In He Alger Hiss, volume XI. Nes York, 1980. Francis Russell, Tragedy in Dedham. New lork, 1961.
Alan Beitman, ed.. The Pulse of Freedom: American Liberties. 1920-1970 ' s . New Y o T T , T575. ------
Caroline Boss and Ken Lawrence, 0^ Fdaar Hoover's Detention Plan: The Politics of Repression m tie THnted HTFaTes. 1939-1976. Philadelphia, 1578.
Harry Scheiber, The Wilson Administration and Civil liberties. Ithaca, I960. “ “
Arthur Schlesinger, Jr.. The Crisis of the Cld Order. 1519-1933. Boston, 1957. *
• She Co mi n_g of the New JE§al, Eoston, 1 35 8 •
William Seaole, "The American National Eolice: The Dangers of Federal Crime Control," Harper's {November 1934), 751-761.
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o€2EC?*-S€ldf£' Hen t^. The Tgshnigue jnJ LEifits 2f Redbaiting. New York, 1993.
Andrew Sinclair, The Available Ma^j The Life Behird the Masks cj Warren G- Harding. Chicaqo, 1965.
Geoffrey Smith, To S ave a Nation: American Count er-Sobversives. the New Deal a n d t he T c al n o cl W crl^ War II, Hew YorE, T 5 l 1 ------
Jacob Spolansky, The Ccttmunist Trail in America. New Ycrk, 1951.
vc- 1Q59air6E' 2 2 li G jariis S j a j e J h s Suited Sia£es, New York, 1956.
Richard W. Steele, "Franklin D. Bccsevelt and His Foreiqn Eclicy Critics," Eolitical Science Quarterly. 94 (Spring 1979), 15-35.
William C. Sullivan, The Ejjreauj My Thirty Years in Hoover's FBI. New Ycrk, 1979. ~
Arthor Sutherland, The Law at Harvard: A Histcrv of Men and Ideas. Cambridge, 1 7 6 7 . ------— — J ~ *— ------
Ebillip Taft, "The Federal Trials cf tie IWW," Ijtot History, 3 (Winter 1962), 57-91. ------■*------JL'
athan Theoharis, Spying on Americans: Political surveillance from Hoover to the Huston Plan.T n ila d e lp h ia . T57BT
. TBI's Strechinq of Presidential Directives, 1936-1953 ," Political Science Quarterly, 91(Nirter 1976/1977), 649-672.
, "Should the FBI Purge I t s F ile s!," OS A Today November 1978) , 48-50. x
. , "The Truman Administrration anc the Decline cf Civil Liberties: The FBI's Success in Securing Authorization for a Preventive Detention Proqram," Journal cf American History. 64(Spring 1976), 1010-1C3C.
with Elizabeth Meyers, "The ‘ National Security* Ju stific a tio n fcr Electronic Surveillaice: An Elusive Exception," Wayne Law Review. 14 (Summer 1968), 749-771. ~
„ ,, ^ » BeXSDj lila JL- Jijsj. The FBI., Congress and the Cold Bar. foffheemmg.
E-P- Thcmpscr, The Making qf the English Wcrkirc c la s s . New YOEKf 19 6 3•
Bey Turnbauqh, "The FBI and Harry Elmer Barnes, 1936-1944," The Historian. 42 (May 198C), 385-396.
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Tracy ana Leer Turrcv, Hen Jfcc £e a G-Man. New York, 1939.
Sanfcrd Oncar, FBI: A t Oncenso^ed Look Behind th 6 Walls. Boston, 1976 ■ ”
Samuel Walker, Pggglar Jqsl.ifi.e; £ H jstcij °£ iieiisgn ££isi£jl Ju stice. Ken York,TTfcC.
Bcbert Warth, "The Palmer Saids." South Atlantic Cuarterlv. 49(1949), 1-*3.------
Eat Ratters and Stephen Gillers, eds., Investioa ting the FBI. Garden City, 1973- - “ ~ ~
James Weinstein, The Corporate Ideal and the liberal State: 1900-1918. E o s t o n ,1961. “
Eon Whitehead, The FBI Story: A Beport to £he American People. Nen York, 1956. " “ “
David Williams, "The Eureau of Investigation and Its Critics, 1919-1921: The Oriqins cf Federal P o litic a l Surveillance," Journal of American History, fortlcominq December 1981.
, "Failed Hefora: EBI Political Surveillance, 1924-1936," F irst P rirc ip le s {Julj/Auqust 1981).
, " ’Sowing the Wind*: The Deportation Faids of 1920 m lew Hampshire." Historical New Hampshire (Spring 1979), 1-3 1.
, "'The Never Stopped Hatching Os’: FBI Political Surveillance, 1924- 1S36," 0C1A Historical Journal, forthcoming 1981. “
William A. Williams. The Traqedv cf American Eiplomacv. New Ycrk, 1972. — — ------
David Wise, The American Police State. Nen York, 1S76.
Alan Wolfe, The Seamy Side cf Democracy. Nen York, 1973.
Georqe Wolfskill and Jchn Hudscn, All But the Peorle: Frarklin C. Boosevelt and H is Critics. 19 3 '3 -'i9'3'9T London, 1569.
Carroll Wccccv. The Gxcwth of the Federal Gcvermtert. 1S15-1932. New York, 1 9 3 4 . ------h------
Gerald C. Zila. DuPcnt:Behind the Kvlon Curtain. Enalewood C liff, 1974. — ------
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. &PPENDIX
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. UTUUERSlTl] OF nE1D HAmPSHIRE DURHAm, nEU; fAmPSHlRE 03824
111, I c.r-OF LIBERAL A H 'S ) t.infiinmnni of His^O'V Hr Social Science C ^tet 8 / 26/78
William ’Webster D irector Federal Bureau of Investigation Wash in g to n , D. C. ?.053 5
Dear Director Webster, Under the provisions of the Freedom of Information Act,
5 U .S.C . 552, I am requesting access to Bureau of Investigation .and Federal Bureau of Investigation files compiled through 19^-0 of the following organizations:
American Association for Labor Legislation American Civil Liberties Union- American Federation of Labor
I American Friends Service Committee j Association for Improving 1 he Condition of the Poor Brotherhood of Railroad Trainmen International Association of Machinists International Brotherhood of Electrical Workers
I International Labor Defence ] International Ladles' Garment Workers' Union I international Typographical Union
S Industrial Workers of the World I '■National Association for the Advancement of Colored People I National Association of Manufacturers I 'National Metal Trades Association
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 4 0 0
uiuuersiti] or neu; hauipshire DURHAItl. REID HAMPSHIRE 03824 r(i,1 -c.f o r l i b e h a l A n rs f IVii.vininnt ol Hivorv Mnrlnn Social Science Center
Williams, Freedom of Information request, continued
National Miners' Union. National Textile Workers Union Progressive Miners of America
Trade Union Educational League •
Trade Union Unity League
Unemployed Citizens Learue . United Mine Workers of America United Producers League United Textile Workers of America Workers Ex-Servicemen's League West Virginia Mine Workers Union
J am also requesting access to the files compiled by the 3ureau of .. i vestigation and the Federal Bureau of Investigation through 1940
o " the follovring persons:
Jane Addams George 'Weston Anderson Roger Baldwin Charles Beard Mary Beard
Hugo Black William E. Borah Louis D. Brandeis
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. UtUtfERSlTy OF REUP HAmPSHIRE
DURHAm, REID UAtnPSHtRE 03824
COLLEGE o r LIBERAL ARTS Oppirlinenl of History Hoitnn Social Science Center
Williams, Freedom of Information request, continued
Zechariah Chafee, Jr. John R. Chamberlain . Clarence Darrow •clugene Debs <>ohn Dewey John DosPassos Theodore Dreiser James A. Farrell John Finerty Felix Frankfurter William Green Learned Hand * Oliver Wendall Holmes, Jr. Hiram Johnson
Robert M. LaFollette, Sr. Suzanne LaFollette John L. Lewis Max Lowenthal George Norris Gerald P. llye Roscoe Pound Carlo Tresca George F. Vanderveer
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. uiuuersiti ] o f fieid hairpsfhre DURHAm. HEIP HAmPSHIRE 03824
;0' LEGE OF LIBERAL ARTS Opaiimcnt ol Hislciry Horion Social Science Center •
Williams, Freedom of Information request, continued
Robert F. Wagner, Sr. ' Henry V/allace Frank P. Walsh Thomas J . Walsh Harry Weinberger
As you know., the a ct perm its you to reduce or w aive fe e s when the release of the information is considered as "primarily benefiting the public". I believe that this request fits that category and I there fore ask you to -waive any f e e s . If all or part of this request is denied, please cite the specific
exemptions which you think justifies your refusal to release the infor mation, and inform me of the appeal procedures available to me under ■he law. I would appreciate your handling this request as quickly as possibl and look forward to hearing from you within ten days, as the law stipulates. Sincerely, .
r)ci- Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 4-03 YSPiVYv UNITED STATES DEPARTMENT OF JUSTICE '/ « r * l l * #1*1 ^1 v y r-SjiV v y ,// ];l r.\rv# . . (‘/'■/J FEDERAL BUREAU OF INVESTIGATION WASHINCTON, D.C. 2 SSJ5 , January 19, 1979 Mr. D avid W illiam s Departm ent of H istory U niversity of New H am pshire Durham, New Hampshire 03824 Dear M r. W illiam s: This is in response to your Freedom of Inform ation- Privacy A cts request dated Decem ber 8, 1 9 7 8 . I have noted in the above-m entioned letter, you desire to withdraw your request on M r. Roger Baldwin. Based on the additional inform ation you have fur bished regarding the other individuals of your request, we r .ve currently conducting a search of the index to our central ■•‘-.cords system and you w ill be n otified at a later date of the l ‘ - s u i t s . Please be advised that a search of the index to our central records system revealed no inform ation to indicate that the A ssociation for Im proving the C ondition of the Poor, V/nst V irginia M ine W orlcers U nion, and U nited Producers L. ague have been the subjects of an investigation by the FBI v ‘ - . r o u g h 1 9 4 0 . If you believe the above may have been recorded by the FBI incident to the investigation of some person or another o. qanization, please advise us of the details describing the 'sj-acific incident or occurrence. T hereafter, further effort veil be made to locate, retrieve and process any such records. As a result of a prelim inary review of docum ents pertaining to the organizations m entioned in your request d;ji;cd A u gu st 26, 1 9 7 8 , it is believed that processing of tb;:-se docum ents may resu lt in charges of approxim ately $9 , 8 0 0 . Department of Justice regulations (T itle 28 , Code of Federal R egulations, Part 1 6 . 4 6 ) require notification to a requester when anticipated charges exceed $ 2 5 . This letter constitutes such notification regarding the follow ing organizations: ■ EXHIBIT E Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Ip 04- Mr. D avid W illiam s N ational T extile W orkers Union Am erican C ivil L iberties Union N ational M etal Trades A ssociation W orkers Ex-Servicem en's League International A ssociation of M achinists Progressive M iners of Am erica Unem ployed C itizens League Am erican A ssociation for Labor L egislation N ational M iners 1 Union International Typographical Union Am erican Friends Service Com m ittee Trade Union Educational League International Labor D efense Trade Union Unity League N ational A ssociation of M anufacturers N ational A ssociation for the Advancement of C olored People Industrial W orkers of the W orld Brotherhood of R ailroad Trainm en United T extile W orkers of Am erica International L adies' Garment W orkers1 Union • International Brotherhood of E lectrical W orkers Am erican Federation of Labor U nited M ine W orkers of Am erica Because of the extensive work involved, it w ill be necessary for you to furnish a deposit of 25 percent of the :;timated cost, the rem ainder to be paid upon the com pletion •;v> the p rocessing of your requests. I m ust caution, however, that your indication of ..I'proval and consent to incur such fees w ill not necessarily .• nsult in the entire contents of our records being disclosed you, since we are guided by the provisions of the Freedom c ! Inform ation A ct (T itle 5, U nited States Code, Section 5 5 2 ) «;;d the Privacy A ct of 1 9 7 4 (T itle 5, United States Code, Section 552a) in disclosing m aterial from our records. This is in accordance w ith T itle 28, Code of Federal R egulations, Section 16.9 (e)(1) which provides that where the anticipated fee chargeable under th is section exceeds $ 2 5 , a n advance deposit of 25 percent of the anticipated fee or $ 2 5 , whichever is greater, may be required. - 2- Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 405 Mr. David W illiam s A ccordingly before taking further action, I w ill await receipt of your check or money order payable to the Federal Bureau of Investigation, in the am ount of $ 2 , 4 5 0 . Your request for a w aiver of fees has been.consid- ered in accordance w ith the provisions of T itle 5, U nited States Code, Section 552 ( a ) ( 4 ) ( A ) which perm its an agency to waive or reduce fees in the public interest when furnishing inform ation is considered as prim arily benefiting the general public. In balancing the potential public benefit in this instance against the concom itant expenditure of public funds, we have determ ined that under reasonable standards the interests of the general public appear more likely to be served by the preservation of public funds. Therefore, your request for a w aiver of fees is u e n i e d . If you disagree w ith the decision regarding a fee v.v?iver, you may appeal w ithin thirty days to the A ssociate Attorney General. Appeals should be directed in w riting to i-.Ue A ssociate A ttorney G eneral (A ttention: O ffice of Privacy a-d Inform ation A ppeals), W ashington, D. C. 2 0 5 3 0 . T h e envelope and the letter should be clearly marked "Freedom of inform ation Appeal" or "Inform ation A ppeal." Sincerely yours Thom as II. Bresson, A cting C hief Freedom of Inform ation-Privacy A cts Branch R ecords M anagement D ivision -3- Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. University of New Hampshire Durham, New Hampshire 03824 College of Liberal A rts Deportment of History Horton Social Science Center February 10, 1979 Deputy Attorney General Office of Privacy and Information Appeals Washington, D.C. 20530 Re: Freedom of Information Appeal Dear Sir, This is an appeal of the decision made by the Federal Bureau of Investigation denying a waiver of fees for information requested under the provisions of the Freedom of Information Act, 5 U.S.C. §552. Enclosed is a copy of the lett: c from Thomas H. Bresson, Acting Chief, Freedom of Information-Privacy Acts Branch, Records Management Division, dated January 19, 1979. The cords requested are necessary to complete a Ph.D. dissertation at the j' dversity of New Hampshire and w ill later be published as articles in a hi: i.orical journal. Publication "can be considered as primarily benefiting the funeral public." .• Than;- you. for your consideration. • ..Sincerely, ■ David Williams EX H IBIT F Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. tJInitcb S ta ted ^Department of Jutftiec OFFICE OF THE ASSOCIATE ATTORNEY GENERAL WASHINGTON, D.C. 20330 Mr. David WWilliams illiam s # .. CCollege ollege of Liberal Arts .;H- 1 Departm ent of Hist'H istory Horton Social ScieScience Center U niversity of New Hampshire Durham, New HampshHam pshire 0 3 8 2 4 Dear Mr. W illiam s:s You appealed from the refusal by the Federal Bureau of Investigation to w On the basis ofo the inform ation available to me, it is my opinion that you:your request for a waiver of fees in this case cannot be granted,granted. I sim ply cannot conclude at this tim e that the release of these records to you can be considered as prim arily benefitin I am prepared to reconsider this action and to apply any favorable decision retroactively, if the records actually released to you arear such that, the release can be said prim arily to benefit the gengeneral public. E x h i b i t £ T Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. k 0 8 - 2 - If you are dissatisfied w ith my action on this appeal, judicial review is available to you in the United States D istrict Court for the judicial d istrict in which you reside or have your principal place of business, or in the D istrict of Columbia, which is also where the records you seek are l o c a t e d . S i n c e r e l y , M ichael J. Egan A ssociate A ttorney G eneral S i / . Z Z B y : / /,////* * # ' r/O C._ Q uinlan J. S hea/ J r . , D i r e c t o r O ffice/of Privaoy and Inform ation Appeals Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 409 UNITED STATES OF AMERICA DEPARTMENT OF JUSTICE FREEDOM OF INFORMATION-PRIVACY ACTS APPEAL FOIPA Appeal No. 9-1005 I n r e FOIPA R equest of Memorandum in support David J. W illiam s of W aiver of Processing F e e s This Memorandum of Points and A uthorities in support of Mr. David J. W ilKams1 request for a waiver of processing fees for his FOIPA requests of December 8, 1973, and thereafter, is hereby subm itted to the FOIPA Appeals O ffice of the JusM.ce Departm ent, by his attorney, Raymond M. D all’O sto. H enceforth, for the convenience of the requesting party and his counsel, c o p . ' -:s of all correspondence and adm inistrative decisions should be sent to both Mr. illiam s and his counsel. Dated this 2 1 s t- day of January, 1980. RAYMOND M. DALL'OSTO Attorney for Requesting Party P.O.. A ddress: 632 !•., Lake V iew A venue Milwaukee, WI 53217 (414) 962-83C3 or 272-4032 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Jfio (1) BACKGROUND OF REQUEST In Autumn, 1977, David J* W illiam s, a graduate history student at the University of New Ham pshire in Durham subm itted a FOIPA request for inform ation regarding FBI surveillance of various left, labor and im m igrant groups in the Northeast United States in the early 20th century. A fter some confusion at the Justice Department level, an expanded request was subm itted on behalf of Mr. W illiam s b y his counsel on March 17, 1978. Copy attached as Exhibit A. Two responses from the Justice Department were made in A pril and November 1978. Copies attached as Exhibits B and C. Both on August 26 and on December 8, 1978, Mr. W illiam s resubm itted more particular requests for FBI files on these subject areas. In all of the 1978 requests, a waiver of processing and/or copying charges was asked for. The appeal by Mr. W illiam s of the earlier denial for a fee waiver was rejected by Associate Attorney G eneral M ichael Egan on December 19, 1978. Copy of denial attivhed as Exhibit D. Mr. Quinlan Shea joined w ith Mr. Egan in that' rejection but s t a t . a p r o v i s o : "I am prepared to reconsider this action and to apply any favorable .decision retroactively, if the records actually released to you are such that the release can be said prim arily to benefit the general p u b l i c . " Other than a paragraph devoted to the allegedly inordinate expenses of a fee w iver, no reasons as to why a fee waiver was not justified were given by the Associate A ttorney G eneral. The Justice Departm ent FOIPA Branch also denied the December 8, 1978 fee waive./ request of Mr. W illiam s in a letter dated January 19, 1979. Copy attached as Exhibit E. Acting FOIPA Branch Chief Thomas H. Bresson stated in that letter, regard ing the fee w aiver request: "In balancing the potential public benefit in this instance against the concom itant expenditure of public funds, we have determ ined that under reasonable standards the interests of the general public appear more likely to be served by the preservation of public funds. There fore, your request for a waiver of fees is denied." - 2 - Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. On February 10, 1979, w ithin the 30 day lim it for fee waiver appeals outlined by Mr. Bresson, Mr. W illiam s filed his notice of appeal of Mr. Bresson's denial with the Justice Departm ent O ffice of Privacy and Inform ation A ppeals. Copy attached as Exhibit F. Mr. W illiam s resubm itted a less extensive FOIPA request on February 26, 1979 (Copy attached as Exhibit G ), and his fee waiver request was again denied on April 16, 1979, w ith the same language as the January 19th denial. See copy attached as Exhibit H. Mr. Williams also filed a notice of appeal of this denial on May 5, 1979. See Exhibit I attached. As Mr. W illiam s' research progressed, further delay in review ing needed documents became intolerable. The Librarian at the Harvard Law School Library indi cated to Mr. W illiam s on May 17, 1979 that the records he was requesting "... constitute a very im portant scholarly source which w ill be of considerable interest to our faculty and students, to legal scholars generally, and to political scientists, historians, and others concerned w ith the period covered (1920-1940) and these individuals." Cop.- of letter of M orris L. Cohen attached as Exhibit J. In 24 H istorical New Hampshire (Spring 1979) 1-31, Mr. W illiam s made public the irst results of his initial research of 1977-78. Copy of article attached as Exhibit K. On October 30, 1979, based on the advice of counsel and the earlier retro- active application statem ent of M essers Egan and Shea, Mr. W illiam s notified David G. Flaruers of the FBI Records M anagement D ivision that he would pay $1,100.00 in proces sing and copying fees under protest, pending a decision in this continuing appeal. Copy ittached as E xhibit L. Processing of the more lim ited $1,100.00 request is now underway. Processing has lien held in abeyance on the other past requests, as the anticipated fees for such amount to nearly $10,000.00. Mr. W illiam s hereby appeals the denial of all his fee waiver requests and asks that fee waivers be granted for not only the $1,000.00 estimate of records but also on his other requests. Supporting arguments for Mr. Williams' position are set out below. - 3 - Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 2. FEE WAIVER IS IN ORDER AS FURNISHING THE INFORMATION REQUESTED CAN BE CONSIDERED AS PRIMARILY BENEFITTING THE GENERAL PUBLIC Mr. W illiam s, in his series of FOIPA requests regarding FBI. surveillance of political groups in 1920-1940, is not seeking such inform ation for personal gain. He has already stated that he w ill give all such records obtained to a renowned university library for public use. See Exhibit J attached. The results of his ini tial research have been publicly dissem inated (see Exhibit K ), and Mr. W illiam s wishes to follow up and expand on his thesis. More specifically, his thesis is that despite the adm inistrative changes and rulr..-. initiated in 1924 to curb the GID (later FBI) p olitical surveillance abuses of 1916- 1924, in fact, despite the reform s, constitutional violations occurred w ith reg ularity from 1924 to 1936, when President R oosevelt reinstituted the FBI p olitical surv illance program. Scholars and even the Senate Intelligence Com mittee Reports in the '■i.id-1970's have seem ingly accepted the view that adm inistrative reform su ccessfully cur;- d FBI dom estic abuses from 1924-1936. If this can be shown either to be the case, or be the opposite of what really occurred, the benefit of the addition of such rev elations to the public debate going on right now regarding legislation to charter FBI act:- Ities and to provide rem edies for constitutional abuses could be immense. That furt •shing such inform ation free of processing charges is prim arily in the public bent;-. It is c le a r . Although opponents of stricter controls on FBI political surveillance would probably prefer that such inform ation "remain quiet" via perhaps inordinately large processing charges, clearly this view is not an acceptable reason for not w aiving the fees -regarding these requests. In fact, the public interest in open governm ent and fully informed legislative debate overwhelm ing favors a fee waiver for Mr. W illiam s' ■ requests. Hi This case can be readily distinguished from other cases where the adm inis- brative agency's balancing of "benefit to the general public interest" against the I - 4 - Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 4 1 3 "concomitant expenditure of public funds" caused by a fee w aiver being granted can be seen as reasonable. In Rizzo v. T yler. 438 F. Supp. 895 (S.D.N.Y. 1977), the "public interest" standard for fee w aivers in FOIPA requests was discussed in detail, and the comments of the sponsor of the 1974 Amendments was cited to indicate "that the standard be 'liberally construed."' Rizzo v. Tyler, supra, at 900. The court in Rizzo held that the p laintiff prisoner in that case, who wanted to clear his name -e. allegedly slanderous accusations, did not show a requisite "public interest" to jquire a fee waiver. Rizzo's private benefit easily out-weighed the public bene- Lt in that calculus, and the fact of his indigency was held to be not enough to nec- ssiute a waiver of fees w ithout a showing of public benefit. Mr. W illiam s' requests are more akin to the fee waiver requests at issue i F.1 i.zgibbon v. CIA. 76-700 (D.D.C. 1/10/77) and Eudey v. CIA. 79-1198 (D.D.C. 10/26/ 3). Copies attached as Exhibits M and N. In Fitzgibbon, supra, plaintiff journalist/historian Alan Fitzgibbon requested IA fv.cuments on the abduction of Jesus de G alindez by Dom inican R epublic dictator ruj.i lo's agents in the U nited States in 1956. The inform ation was to be used in a ook •.■>> the case that Fitzgibbon was preparing. H is request for a w aiver of fees was enit^ by the CIA for sim ilar reasons (or lack thereof) as in Mr. W illiam s' case erei';, A fter appealing this denial to the U.S. D istrict Court, Judge Aubrey Robinson uled chat the CIA's reasons for denying a fee w aiver were arbitrary and capricious nd r-.-ied in favor of Mr. Fitzgibbon's fee w aiver request, finding a su fficien t public •enefi.c to be p resen t. In Eudey, supra, p laintiff graduate historian requested a fee waiver on CIA locumfiits "concerning relations betw een the U nited States and Italian and French trade inions during the post-W orld War II period . . . intended for incorporation in a book analyzing the effects of United States foreign policy in this area." The CIA felt that since many of the documents that Ms. Eudey requested were exempt from disclosure, fu m - ishing the rem aining inform ation would not benefit the general public and therefore, - 5 - Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. her fee w aiver request could be denied. As D istrict Judge Robinson stated in his decision in Eudey , citing the leg islative history of 5 U.S.C. § 552 (a)(4)(A), fees are not to be used as an ob stacle to disclosure of requested inform ation. C iting Fitzgibbon, Judge Robinson stated that "an agency's decision not to waive fees is arbitrary and capricious when there is nothing in the agency's refusal of a fee w aiver which indicates that furnish ing the inform ation requested cannot be considered as prim arily benefiting the general p u b l i c . " In the instant adm inistrative appeal of the FBI's denial of Mr. W illiam s' fee waiver request, nothing in the denial of such request is shown why the release of ;:he requested documents would not prim arily benefit the general public. Nothing is -iated but the unsupported conclusory line that in the Bureau's opinion, release would not benefit the general public. It is im possible for counsel herein to accept this unsupported conclusion, g i v a the present ongoing C ongressional debate on proposals for an FBI Charter: ad- dir .inal adm inistrative versus statutory rem edies for intelligence abuses, whether a str uger oversight mechanism is needed, how much discretion should be left to the Bui i.u director under the Charter, especially when constitutional rights are involved (as in political surveillance cases), etc. The actual record of the GID/FBI from 1924-1936, when it supposedly was ref.-med vis-a-vis dom estic intelligence abuses by executive and adm inistrative orders is •.,£ great im portance and benefit to the general public given the ongoing debate. c Thi'r period has been practially untouched by historians, and from the indications Mr. W illiams has found to date, it would appear that the internal dom estic in telli gence reform s of the 1920's were less than effective. The American public has a right to fully know the actual record of the domestic intelligence abuses of its national law enforcem ent agency, at least as much as it has a right to know, w ithout having to pay processing fees, e t c . , the record of - 6 - Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Dominican intelligence abuses in 1956 (Fitzgibbon) and CIA intervention in foreign trade unions (Eudey). M oreover, it is counsel's position that all of the inform ation requested by Mr. W illiam s w ill, when released, im part a greater benefit to the general American public because it concerns our governm ent's own interaction w ith the American c i t i z e n r y . If the American public and Congress are to make reasoned choices in the 1980's as to what must be done to protect our precious constitutional rights in the face of increased international tension and bureaucratic tendencies to u tilize broad ened and sophisticated intelligence surveillance techniques, unfettered release of information such as has been requested by Mr. W illiam s is of the utm ost benefit to tht general public. As George Santayana said, those who fail to learn from the m istakes of the pa:.?, are doomed to repeat them. U nless fu ll and. unfettered disclosure occurs at thi-- point in our history, we stand a much greater risk of never being able to learn of ; he past (and perhaps continuing) m istakes and abuses of our national intelligence ago. ies. At that point, a dem ocratic vision of America in the near future could chc-r :;e to the follow in g p red iction: The past is whatever the records and the memories agree upon. And since the party is in full control of all records, and in equally full control of the minds of its members, it follow s that the past is whatever the party chooses to make it. Six means eighteen, two plus two equals five, war is peace, freedom is slavery, ignorance is strength. George Orwell, 1984 (3) CONCLUSION For the reasons and argum ents above stated, the Departm ent of Justice should grant Mr. David W illiam s a full fee w aiver as to all the inform ation he has requested to date, as the release of such records w ill prim arily benefit the general public and no showing to the contrary has been made by the FBI or the Departm ent of Justice. Counsel requests that this adm inistrative appeal be acted on prom ptly by the Justice Departm ent so as to afford the requesting party an early opportunity - 7 - Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. to appeal any denial to the United States D istrict Court for the D istrict of Columbia. Dated this Raymond M. D all'O sto Attorney at Law Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 4-17 ^Jnitcb S ta te s ^Department of Justice OFFICE OF THE ASSOCIATE ATTORNEY GENERAL WASHINGTON. D.C. 205J0 21 MAR .980 Mr. Raymond M. D a l l ' O s t o 6 3 2 East Lake View Avenue M ilwaukee, W isconsin 5 3 2 1 7 D e a r M r . D a l l ' O s t o : This is an interim response to your letter dated January 21, 1 9 8 0 , on behalf of your client, Mr. David W i l l i a m s . On the basis of the new inform ation you have provided, i Lsidering carefully and on a particularized basis w hether E. : records requested by your client and the use he is m aking che records he is receiving are such that a fee w aiver aid be granted. By copy of this letter, I am requesting Federal Bureau of Investigation to inform me of its V.vs on this m atter by A pril 11, 1 9 8 0 . I then anticipate -senting Mr. W illiam s' appeal to the A ssociate A ttorney c , . leral for his personal decision by the end of A pril or in e- ly M a y . In the interim , I ask that you clarify one potentially significant factor for me. In his letter of February 2G, 1 ? ? 9 , Mr. W illiam s narrowed his original request to encom pass records as to which the estim ated fees were only $ 2 , 5 0 0 , a t s e t forth in Mr. B r e s s o n ' s letter of April 16, 1 9 7 9 . O n p a ; e 3 of your Memorandum of Points and A uthorities, dated — I f Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 4 1 8 - 2- January 21, 1 9 8 0 , you are obviously referring to the fees estim ated in conjunction w ith Mr. W i l l i a m s ' unnarrowed request — approxim ately $ 9 , 8 0 0 , as set forth in Mr. B r e s s o n ' s letter of January 19, 1 9 7 9 . I do not consider that the amount of money involved in a requested fee w aiver is irrele vant and would appreciate your prom pt clarification of this point, either by letter, or by calling me at 202-633-4082. Do be assured, however, that my decision to reconsider our earlier position is not itself dependent on the amount of money involved. Please feel free also to contact me on any other aspect of this m atter, if for exam ple you have additional facts or arguments which you wish to be brought to the attention of Associate A ttorney General Shenefield, or if you w ish to pro pose any compromise resolution for his consideration. I a l s o ask that you convey to Mr. W illiam s my com plim ents on h...s m ost interesting and inform ative lead article in the s p r i n g 1 9 7 9 issue of H istorical New H am pshire. S i n c e r e l y , John H. Shenefield A ssociate Attorney G eneral B y : Q uinlan J. S h e a , J r . , D i r e c t o r O ffice of Privacy and Inform ation Appeals FOIPA Branch Federal Bureau of Investigation / Mr. David W illiam s Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. RAYMOND M. DALL’OSTO ATTORNEY AT LAW 632 E A ST LAKE VIEW AVENUE ADMITTED TO PRACTICE MILWAUKEE. WISCONSIN 53217 IN WISCONSIN AND (414) 962-8303 or 272-4032 ILLINOIS May 2, 1980 Mr. Quinlan SShea, h e a Jr., Director Office of PrivacyP r iv a cy and Information Appeals U.S. Department of Justice 10th & ConstitutiorConstitution Avenue, N.W. Washington, D D .C .C . . 20530 Re: FOIA Appeal of David J. W illiams, No. 9-1005 Dear M r. S h ea : Thank you 1for your letter of March 21, 1980. I called your office there after and left a imessage that I would be responding in a letter. The following is mmy y response.r e sp o n se The indiindividuals' and groups' files that Mr. Williams does not want a file searvh and cccopying fee waiver for (as such files are already available) include the following: 1. American Civil Liberties Union 2. American Assoc, for Improving the Condition of the Poor 3. American Friends Service Committee 4. National Assoc, of Manufacturers 5. National Metal Trades Assoc.- 6. United Producers League 7. WestW est Virginia Miners 8. American Association for Labor Legislation. 9. Industrial Workers of the World The exclusioexclusion of the files of the above groups from Mr. Williams' re- queivque?.' should should subsl substantially reduce the amount of records requested and of mono/mom/ involved in his requested fee waiver. Mr. Williams wishes to continue his fee waiver request for all of the othc; groups and individuals listed, to wit: ORGANIZATIONS National Textile Workers Union Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ^ 2 0 Mr. Quinlan Shea, Jr. May 2, 1980 page 2 2. Workers Ex-Servicemen’s League 3. International Association of Machinists 4. Progressive Miners# of America 5. Unemployed Citizens League 6. National Miners' Union 7. International Typographical Union 8. Trade Union Educational League 9. International Labor Defense 10. Trade Union Unity League 11. National Association for the Advancement of Colored People 12. Brotherhood of Railroad Trainmen 13. United Textile Workers of America 14. International Ladies' Garment Workers' Union 15. International Brotherhood of Electrical Workers 16. American Federation of Labor 17. United Mine Workers of America INDIVIDUALS 1. Jane Addams,, b. September 6, 1860, Cedarville, Illinois 2. George Weston Anderson, b. September 1, 1861, Acworth, New H a m p sh ire 3. Charles Austin Beard, b. November 27, 1874, Knightstown, Indiana 4. Mary Beard, b. August 5, 1876, Indianapolis, Indiana 5. Hugo LaFayette Black, b. February 27, 1886, Harlan,Clay County, A lab am a 6. William Edgar Borah, b. June 29, 1865, Fairfield, Illinois 7. Louis Dembitz Brandels, b. November 13, 1856, Louisville, Kentucky 8. Zechariah Chafee, Jr., b. December 7, 1885, Providence, Rhode Island 9. John Rensaelear Chamberlain, b. October 28, 1903, New Haven Connecticut 10. Clarence Darrow, b. April 18, 1857, Kinsman, Ohio 11. Eugene Victor Debs, b. November 5, 1855, Terre Haute, Indiana 12. John Dewey, b. October 20, 1859, Burlington, Vermont 13. John Rogerigo Dos Passos, b. January 14, 1896, Chicago, Illinois 14. Theodore Dreiser, b. August 27, 1971, Terre Haute, Indiana 15. John Finerty, b. unknown 16. Felix Frankfurter, d . November 15, 1882, Vienna,Austria 17. William Green, b. March 3, 1870, Coshocton, Ohio 18. Learned Hand, b. January 27, 1872, Albany, New York 19. Oliver Wendall Holmes, b. March 8, 1841, Boston, Massachusetts 20. George Huddleston, b. November 11, 1869, Wilson Coun ty Tennessee Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Mr. Quinlan Shea, Jr. May 2, 1980 page 3 21. Hiram Warren Johnson, b. September 2, 1866, Sacramento, California 22. Robert Marion LaFollette, b. June 14, 1855, Primrose, Wisconsin 23. Suzanne LaFollette, b. unknown 24. Fiorello H. LaGuardia, b. December 11, 1882, New York City, New Yor 25. John Llewellyn Lewis, b. February 12, 1880, Lucas, Iowa 26. Max Lowenthal, b. 1888, Minneapolis, Minnesota 27. George William Norris, b. July 11, 1861, Sandusky, Ohio 28. Gerald P. Nye, b. December 19, 1892, Hortonville, .Wisconsin 29. Roscoe Pound, b. October 27, 1870, Lincoln, Nebraska 30. Carlo Tresca, b. 1879, Pulmona, Italy 31. George F. Vanderveer, b. unknown, Seattle,Washington 32. Robert Ferdinand Wagner, S r., b. June 8, 1877, Nastatten, Germany 33. Henry Wallace, b. October 7, 1880, Adair County, Iowa 34. Frank Patrick Walsh, b. June 20, 1864, St. Louis Missouri 35. Thomas James Walsh, b. June 12, 1859, Two Rivers, Wisconsin 36. Harry Weinberger, b. 1886, New York City, New York 37. Burton K. Wheeler, b. February 27, 1882, Hudson, Massachusetts Relative to FBI and Justice Dept, records dealing with criminal investigations, proposed prosecutions, etc., of the above, Mr. Williams' requer*- .wuid r e t in clu d e records of such crimes as murder, rape or armed robbery. However L w o u ld include records of all other criminal investigations regarding sue.: Sen ses as sedit ;;n, disorderly conduct, unlawful assembly, etc., which may cr nay not have politi al implications. Antitrust prosecutions or Investigations of niorsa, union '.leader's, or other requested social and political groups would still be included in Mr. Williams' fee waiver request. it becomes too difficult to separate out murder, rape am- *.»is.r c r i m i n a l investigation records of the requested individuals, Mr. Willfrrnw would be willir i, in order to conserve on your copying costs, to have al? 'Iminal-reLv.jsS records of the requested groups and individuals made available v in th e FBI1* public reading room in Washington, D.C. Mr. William: eld then review such,; and indicate which relevant portions he would like to hav*e ;;c©d (with fees waive;:! per his request). Relative to Mr. Williams' 'harrowing" of his request in February 1979, this was cone solely because he was given a small grant to cover t? fees •* for some of hi* request. That ’harrowed" request and agreement to pay .-•.•n© f e * i w a s done under protest (he still wants fees waived on those covered by . rmant also), so that h* could at least obtain some records with which to contir c i his research and writing. H■ | ^ Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 4-22 Mr. Quinlan Shea, Jr. May 2, 1980 page 4 As you know, I set cut arguments in my memorandum of January 21, 1980, showing the importance of Mr. Williams' research to the ongoing public dis cussion and debate as to exactly what measures should or need to be taken to charter and control American intelligence organizations. The aftermath of the alleged reforms of GID/FBI abuses by Attorney General Stone in 1924 has never been thoroughly documented by historians. As pointed out in a recent review of A. Theoharis', Spying on Americans (Temple Univ. Press 1978), copy attached as Exhibit 1 herein, a '^critical omission" from Theoharis' and other historians' work is that they ignore the period 1924- 1936 in American intelligence agency history. As Prof. Stone notes at pages 135-136 of his review of Theoharis' book, this omission is critical as an awareness and understanding of pre-1936 history in this area can only shed light 'Upon the related phenomena of 1936-1976". Did A.G. Stoners reforms work? or did the FBI continue its surveillance of political and social leaders and activist groups in spite of such? No one has researched or written on this before and the answers to these quest,ons and others, which will have great bearing on how far Congress goes in 1980 And beyond in enacting effective intelligence agency charters and controls, will come from Mr. Williams' research and writing. This is why his research is of great public benefit and why a fee waiver should be granted. As noted by Mr. Lewis Perry in his letter of April 16, 1980, copy attached as Exhibit 2, Mr. Williams' present research 'bn the origins of political sur veillance (is) important and original research". Mr. Williams was also cont» ;ted for his views in late March 1980 by Prof. Richard Kirkendall of the Organization of American Historians, who testified before Congressional committees regarding proposed amendments to the Freedom of Information/Privacy Acts now pend .g in Congress. The public value of Mr. Williams' request is clear and I hope that you will grant his request as clarified above. Please call or write me if you have any questions, and, of course, when you reach a decision. Yours truly, Raymond M. Dall'Osto Attorney At Law RMD.al cc: D.J. W illia m s enc. \ Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.