FBI: “A Stasi for America”

Following is a review essay I wrote for the American Conservative –

A Stasi for America

By James Bovard

A ripple of protest swept across the Internet in late March after the disclosure that the Federal Bureau of Investigation was teaching its agents that “the FBI has the ability to bend or suspend the law to impinge on the freedom of others.” This maxim was inculcated as part of FBI counterterrorism training. The exposure of the training material—sparked by a series of articles by Wired.com’s Spencer Ackerman—spurred the ritual declaration by an FBI spokesman that “mistakes were made, and we are correcting those mistakes.” No FBI officials were sanctioned or fired for teaching lawmen that they were above the law.

At least the FBI has been consistent. Since its founding in 1908, the bureau has rarely let either the statute book or the Constitution impede its public service. Tim Weiner, the author of a superb exposé of the CIA (Legacy of Ashes) has delivered a riveting chronology of some of the FBI’s biggest crimes with his new book, Enemies: A History of the FBI.

The FBI was born in deceit. Congress had prohibited Theodore Roosevelt’s administration from creating a separate agency of federal investigators for fear that the new hirees would trample the Constitution. Rep. George Waldo, a New York Republican, warned that it would be a “great blow to freedom if there should arise in this country any such great central secret service bureau as there is in Russia.” But Attorney General Charles Bonaparte—a direct descendent of the French dictator—created the bureau by his own edict, shuffling funds from the Justice Department’s expense account to bankroll the new operation.

The bureau was small potatoes until Woodrow Wilson dragged the U.S. into World War I. With one fell swoop, the number of dangerous Americans increased by perhaps twentyfold. The Espionage Act of 1917 made it easy to jail anyone who criticized the war or the government. In September 1918, the bureau, working with local police and private vigilantes, seized more than 50,000 suspected draft dodgers off the streets and out of the restaurants of New York, Newark, and Jersey City. The Justice Department was embarrassed when the vast majority of young men who had been arrested turned out to be innocent.

In January 1920, J. Edgar Hoover—the 25-year-old chief of the bureau’s Radical Division—was the point man for the “Palmer Raids.” Up to 10,000 suspected Reds and radicals were seized. (The bureau carefully avoided keeping an accurate count of detainees.) Attorney General Palmer used the massive roundups to propel his presidential candidacy. The operation took a drubbing, however, after an insolent judge demanded that the Justice Department provide evidence as to why individuals were arrested. Federal judge George Anderson complained that the government had created a “spy system” that “destroys trust and confidence and propagates hate. A mob is a mob whether made up of government officials acting under instructions from the Department of Justice, or of criminals, loafers, and the vicious classes.”

After the debacle of the Palmer raids, the bureau devoted its attention to the nation’s real enemies: the U.S. Congress. The bureau targeted “senators whom the Attorney General saw as threats to America. The Bureau was breaking into their offices and homes, intercepting their mail, and tapping their telephones.” The chairman of the Senate Foreign Relations Committee was illegally targeted because the bureau feared he might support diplomatic recognition of Soviet Russia.

After President Warren Harding died in August 1923, the bureau’s political espionage was exposed. The chief of the Justice Department’s criminal division urged Congress to “get rid of this Bureau of Investigation as organized.” The new attorney general, Harlan Fiske Stone, warned, “A secret police system may become a menace to free government and free institutions because it carries with it the possibility of abuses of power which are not always quickly comprehended or understood.” Stone fired the bureau’s chief, and Hoover, who was number two in the agency, pledged to cease the abuses. But the FBI soon resumed its machinations.

Hollywood teamed with the Roosevelt adminsitration to whip up support for a war on crime in the 1930s, and Hoover became the face of federal law enforcement. While Hoover stood as an icon of law and order, his men became experts at installing wiretaps and conducting “black bag” burglaries, often including the planting of listening devices. By the late 1930s, Weiner notes, “At the highest levels of power in Washington, an awareness dawned that Hoover might be listening to private conversations. This sense that the FBI was omnipresent was its own kind of power.” After the FBI tapped the home telephone of a Supreme Court clerk, “Chief Justice Charles Evans Hughes suspected that Hoover had wired the conference room where the justices met to decide cases.”

While FDR welcomed the dirt the FBI delivered to him, Attorney General Robert Jackson noted in a secret memo, “The FBI is the subject of frequent attack as a Gestapo.” Shortly after taking office, President Harry Truman made a similar comment in his diary: “We want no Gestapo or Secret Police. FBI is tending in that direction. They are dabbling in sex-life scandals and plain blackmail… . This must stop.” But Hoover outfoxed Truman and continued building his empire. Hoover correctly perceived that the Roosevelt and Truman administrations—especially the State Department—had been heavily infiltrated by Soviet spies. The FBI nailed some of the double-agents who provided Stalin with key information to build atomic weapons.

In 1950, three months after the start of the Korean War, Congress passed the Internal Security Act, which authorized mass detentions of suspected subversives. Hoover compiled a list of more than 20,000 “potentially or actually dangerous” Americans who could be seized and locked away at the president’s command. “Congress secretly financed the creation of six of these [detention] camps in the 1950s,” Weiner notes. Hoover specified that “the hearing procedure” for the detentions “will not be bound by the rules of evidence.”

The more power the FBI captured, the more craven Congress became. “Congress fawned over Hoover during his annual appearances before the leaders of the judiciary and appropriations committees,” Weiner notes. Hoover fed buckets of leaks to favored politicians, helping spur the rise of Richard Nixon and Joseph McCarthy.

From 1956 through 1971, the FBI’s COINTELPRO program conducted thousands of covert operations to incite street warfare between violent groups, to get people fired, to smear innocent people by portraying them as government informants, to sic the IRS on people, and to cripple or destroy left-wing, black, communist, white racist, and other organizations. FBI agents also busied themselves forging “poison pen” letters to wreck activists’ marriages. FBI agents were encouraged to conduct interviews with antiwar protestors to “enhance the paranoia endemic in these circles and further serve to get the point across that there is an FBI agent behind every mailbox.” COINTELPRO was only exposed after a handful of activists burglarized an FBI office in a Philadelphia suburb, seized FBI files, and leaked the damning documents to the media.

While Weiner’s history of the FBI’s first half-century is masterful, he downplays or excludes some of the bureau’s worst modern abuses. His less-than-a-paragraph thumbnail summary of Waco could have been written by the FBI Office of Public Affairs: “The FBI had used tear gas against the barricaded and heavily armed group, giving its leader the apocalypse he desired.” Weiner notes that 80 Davidians “died in the fire that followed.”

He neglects to mention that the CS gas was delivered via 54-ton tanks driven by FBI agents. The tanks smashed through much of the Davidians’ home and intentionally collapsed 25 percent of the building on top of the huddled residents. The FBI knew the Davidians were lighting and heating their residence with candles and kerosene lamps and had bales of hay stacked around the windows. The FBI also knew that “accumulating [CS] dust may explode when exposed to spark or open flame,” as a U.S. Army field manual warned. Six years after the assault, news leaked that the FBI had fired incendiary tear gas cartridges into the Davidians’ home prior to a fire erupting. Attorney General Janet Reno, furious over the FBI’s deceit on this key issue, sent U.S. marshals to raid FBI headquarters to search for more Waco evidence. From start to finish, the FBI brazenly lied about what it did at Waco—with one exception. On the day after the Waco fire, FBI on-scene commander Larry Potts explained the rationale for the FBI’s final assault: “Those people thumbed their nose at law enforcement.”

Weiner justly excoriates Louis Freeh as one of the FBI’s most inept directors. The FBI’s pervasive failures prior to 9/11 “contributed to the United States becoming, in effect, a sanctuary for radical terrorists,” according to a congressional investigation. Freeh had promised Congress in 1997 that he would “double the ‘shoe leather’” for counterterrorism investigations. But walking was no substitute for thinking.

The FBI’s ability to decipher terrorist plots was thwarted by its profound aversion toward modern technology. Though Congress had deluged the FBI with almost $2 billion to upgrade its computers, many FBI agents on 9/11 had eight-year-old machines that were incapable of searching the web or sending email. One FBI agent observed that the bureau ethos is that “real men don’t type. The only thing a real agent needs is a notebook, a pen and gun, and with those three things you can conquer the world… . The computer revolution just passed us by” because of that mindset. (FBI computer upgrades continue to flounder, billions of dollars and a decade later.) As usual, the FBI’s failures did not prevent the agency from receiving vastly more power and funding after the disastrous attacks.

At times, Weiner is like a prosecuting attorney who marshals a vast array of evidence of perfidy—and then suddenly announces that the defendant’s good intentions absolve all his crimes. Weiner declares, “Over the decades, the Bureau has best served the cause of national security by bending and breaking the law.”

But many of the FBI’s illicit operations were complete disasters. Hoover perpetually falsely assured presidents that the Soviets or other communist regimes were bankrolling the civil rights movement. Hoover’s reports also fed the fantasies and paranoia of both LBJ and Nixon that the communists were behind the antiwar movement, thereby helping deepen and perpetuate the Vietnam quagmire.

Hoover pioneered the art of assuming that the bureau was entitled to use any powers that had been delegated to it by a president or attorney general. The Supreme Court repeatedly ruled that warrantless wiretaps were unconstitutional. Hoover found one shady pretext after another to continue breaking the law. FDR authorized Hoover to use any means necessary to go after fascists, communists, or other subversives, and Hoover ever after cited that “authority” for black-bag jobs, bugging bedrooms, and other abuses.

Former Attorney General Nicholas Katzenbach explained to a Senate Committee in 1975 how the FBI justified scorning the law:

As far as Mr. Hoover was concerned, it was sufficient for the Bureau if at any time any Attorney General had authorized [a particular] activity in any circumstances. In fact, it was often sufficient if any Attorney General had written something which could be construed to authorize it or had been informed in some one of hundreds of memoranda of some facts from which he could conceivably have inferred the possibility of such an activity.

Hoover conveyed this attitude to his agents, and they acted accordingly. After COINTELPRO abuses were exposed, two top FBI officials were convicted for “black bag” jobs and other abuses. (President Reagan gave them full pardons.) Weiner recounts the justification offered by the FBI’s chief of intelligence, Edward Miller, who “took his argument from the common law of centuries gone by. A man’s home is his castle, he conceded. But no man can maintain a castle against the King.”

It was bizarre that any American could attribute such a doctrine to the common law. The English in the 1600s fought a civil war, executed one king, and deposed another to banish that notion from their land. William Pitt, speaking in Parliament in 1763, famously declared: “The poorest man may in his cottage bid defiance to all the forces of the crown. … [T]he storm may enter—the rain may enter—but the King of England cannot enter.” The English common law was adapted as the foundation of American jurisprudence at the time of this nation’s founding, and Pitt’s dicta helped guide American courts.

But the FBI long operated on a presumption that the law did not apply to the king—or anyone the king designated to break the law. FBI badges were presumed to provide the same exoneration that Cardinal Richelieu reputedly gave agents sent on dastardly deeds: “The Bearer of This Letter Has Acted Under My Orders and for the Good of the State.”

The “except for the king” theory of law has mightily expanded since 9/11. Justice Department lawyer John Yoo assured the Bush White House that the president was “free from the constraints of the Fourth Amendment” and its prohibition of unreasonable, warrantless searches. The Obama administration has taken up the same tune with its contortions on the president’s prerogative to order the killing of Americans without a trial or other judicial niceties.

The biggest surprise in Enemies is Weiner’s lionization of current FBI director Robert Mueller, who took over in 2001. Mueller earned his halo from Weiner for his refusal in April 2004 to rubberstamp the extension of the post-9/11 wiretapping regime. Bush purportedly modified his “Terrorist Surveillance Program,” and Mueller stayed contentedly on the job. Without knowing the details of the policy change, it is unclear why Mueller is sainted. The revised system continued vacuuming up thousands of Americans’ phone calls and emails and was widely condemned as illegal after the New York Times exposed it in December 2005.

Mueller is portrayed as a steadfast defender of liberty in part because of the just-released 460-page FBI guideline for running intelligence operations, which Weiner labels the “first realistic operating manual for running a secret intelligence service in an open democracy.” The new rules require “rigorous obedience to constitutional principles.” Sounds good—but at the same time, the FBI was teaching its agents behind closed doors that they have “the ability to bend or suspend the law.”

We have probably not seen the tip of the iceberg of the FBI’s post-9/11 abuses. The FBI has almost always been more abusive than it appeared. It took decades before Americans learned of Hoover’s secret list with the names of tens of thousands of people who would vanish into federal stockades at the drop of a presidential memo. Americans did not learn of the breadth of COINTELPRO’s outrages until almost 20 years after the program started. We have no idea what personal info has been vacuumed up by the 400,000-plus National Security Letters the FBI issued in the past decade. Weiner notes that the FBI has more than 700 million terrorism-related records and a suspected terrorist list with more than a million names.

For most of its history, the FBI has been one of the most venerated of federal agencies. The FBI has always used its “good guys” image to keep a lid on its crimes. There are many competent, courageous FBI agents who do fine work and make America a safer place. But the bureau’s vast power and pervasive secrecy guarantee that more FBI scandals are just around the bend.

James Bovard is the author of Attention Deficit Democracy.