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Fall 1981 "WITHOUT UNDERSTANDING": THE FBI AND POLITICAL SURVEILLANCE, 1908-1941 DAVID JOSEPH WILLIAMS

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Recommended Citation WILLIAMS, DAVID JOSEPH, ""WITHOUT UNDERSTANDING": THE FBI AND POLITICAL SURVEILLANCE, 1908-1941" (1981). Doctoral Dissertations. 1314. https://scholars.unh.edu/dissertation/1314

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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

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. aLl RIGHTS RESERVED

@ 1981

David J. Williams

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Ihis dissertation has keen examined and approved

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

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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 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.

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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]

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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

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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

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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]

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 186

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,

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

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 25a

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

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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

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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

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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 ,

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 ]

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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

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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

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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.

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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.

I Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 332

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: . 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

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 390

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.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 392

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

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 393

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.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 394

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.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 395

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.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 396

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.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 397

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. — ------

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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

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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

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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

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;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

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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

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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

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(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."

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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.

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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

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"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,

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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

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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

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Columbia.

Dated this

Raymond M. D all'O sto Attorney at Law

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^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 ; have now presented on his behalf a factual predicate for

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

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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

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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

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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■ | ^

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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.

\

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