Enemies: A History of the FBI (15 page)

A
S WAS OFTEN
the case when Franklin D. Roosevelt issued secret orders in the White House, there was a catch.

“
You know I am a juggler, and I never let my right hand know what my left hand does,” FDR once said of his strategies in statecraft. “I may have one policy for Europe and one diametrically opposite for North and South America. I may be entirely inconsistent, and furthermore I am perfectly willing to mislead and tell untruths if it will help win the war.”

The president told no one that he had “approved the plan” Hoover had proposed for a gigantic increase in the power of the FBI. Nor did the president give Hoover the money or the people he requested. FDR did reach into his secret cache of White House funds to give Hoover $600,000 under the table, a 10 percent increase over the FBI budget authorized by Congress. With this small windfall, Hoover began hiring 140 new special agents, roughly 4,860 men short of the force he sought.

But after months of struggle, Hoover won a new presidential order, giving him a measure of the authority he desired. He had to use all his powers of persuasion on the president and a new attorney general, Frank Murphy, whose tenure began in January 1939. Murphy was the eighth attorney general whom Hoover had served; the director was by now skilled at telling a new boss what he thought he wanted to hear. Murphy had a civil liberties streak; Hoover had to persuade him that the FBI’s control over intelligence work was crucial to avoid the chaos and unconstitutional conduct that had characterized the Red raids of old.

On June 26, 1939, FDR issued a secret directive placing the FBI, army intelligence, and navy intelligence jointly in charge of all espionage, counterespionage, and sabotage investigations. Hoover and his military counterparts would meet weekly at the FBI to coordinate their work, with a
senior State Department officer sitting in as a consultant. Their conference became known as the Interdepartmental Intelligence Committee; Hoover was its permanent chairman, since military chiefs came and went on two-year rotations. The directive made Hoover an American intelligence czar as World War II enveloped Europe.

The war exploded before summer ended. On September 1, 1939, Hitler’s armies invaded Poland and began their war of conquest. Two days later, France and Great Britain declared war on Germany. Hitler and Stalin had already signed their nonaggression pact; to the shock of most of the leftists and liberals in America, the Communists in Moscow had made their peace with the Nazis in Berlin. Their concord freed Germany to attack eastward in Europe without fear of the Red Army.

The Nazis would soon drive west toward the Atlantic. Japan had rampaged through China and would seek a wider war in the Pacific. No one knew if or when the war might come for the United States.

FDR formally declared American neutrality. But from September 1939 onward he set out to support the British by delivering warships and sharing intelligence, to counter Axis spying and subversion in the United States, to try to divine what the Soviets would do next—and to keep a close eye on his enemies at home, with help from J. Edgar Hoover.

The relationship between the president and the director was by now growing into one of trust. It was founded on a mutual understanding of their respective powers. Hoover had a reverential respect for the presidency. Though not every authority he sought would be granted by the president, Roosevelt gave him plenty, and he was grateful for what he had received. FDR had a high regard for clandestine intelligence. Though not every secret he sought would be revealed by spying, he was greatly pleased when Hoover could provide them.

To Hoover’s immense satisfaction, on September 6, 1939, five days after the start of the war in Europe, FDR issued a public statement to the American people. Expanding on his earlier secret order, the president said the FBI would “
take charge of investigative work in matters relating to espionage.” He ordered every law enforcement officer in the United States to give the FBI “any information obtained by them relating to espionage, counterespionage, sabotage, subversive activities and violations of the neutrality law.” FDR said he wanted “to protect this country against … some of the things that happened over here in 1914 and 1915 and 1916 and the beginning of 1917, before we got into the war.”

Everyone in power—the president, the justices of the Supreme Court, the attorney general and his inner circle, and Hoover himself—remembered the Black Tom explosion of 1916. They hadn’t forgotten the Red raids of 1920. But this time, Attorney General Murphy reassured the nation, America’s civil liberties were in good hands.

“
Twenty years ago inhuman and cruel things were done in the name of justice,” he told the press. “We do not want such things done today, for the work has now been localized in the FBI.” Murphy said: “I do not believe that a democracy must necessarily become something other than a democracy to protect its national interests. I am convinced that if the job is done right—if the defense against internal aggression is carefully prepared—our people need not suffer the tragic things that have happened elsewhere in the world and that we have seen, even in lesser degrees, in this land of freedom. We
can
prevent and publish the abuse of liberty by sabotage, disorder and violence without destroying liberty itself.”

“D
ISASTROUS CATASTROPHES
”

Hoover had no time for sentimental statements about civil liberties. He was already at war, and he required three new weapons in his arsenal.

First, Hoover wanted stronger laws against subversion. He had wanted them for twenty years. He got them. Congressional hearings had already begun on the statute that would ultimately be known as the Smith Act. It was aimed, initially, at the fingerprinting and registration of aliens. By the time it passed, it had grown to become the first peacetime law against sedition in America since the eighteenth century. The Smith Act included the toughest federal restrictions on free speech in American history: it outlawed words and thoughts aimed at overthrowing the government, and it made membership in any organization with that intent a federal crime.

Second, Hoover revived and strengthened the practice of maintaining a list of potential enemies to be arrested and detained when war came. The mechanics of making the list closely resembled the work that Hoover had done at the Alien Enemy Bureau during World War I.

On December 6, 1939, Hoover signed a “personal and confidential” order to every FBI agent under his command, headlined “Internal Security.” It ordered them to prepare a list of people—Americans and aliens alike—who should be locked up in the name of national security. Hoover had in
mind Communists and socialists, fascist followers of Hitler, “pro-Japanese” people, and anyone else his men thought capable of fighting political warfare. He wanted the names of the enemies of the state. The compilation of the list was called the Custodial Detention Program.

Third, Hoover wanted to wiretap at will. But a new and seemingly insurmountable obstacle lay in his way. On December 11, 1939, the Supreme Court, reversing itself, said that government wiretapping was illegal.

United States v. Nardone
pitted the government against gangsters. The evidence rested heavily on the transcripts of five hundred tapped telephone calls. The defense lawyers looked to the Communications Act of 1934, which banned the disclosure of wiretapped conversations. The Supreme Court had ruled that the law was clear: its “plain words … forbid anyone … to intercept a telephone message, and direct in equally clear language that ‘no person’ shall divulge or publish the message or its substance to ‘any person.’ ”

The Court made it just as plain that the law applied to federal agents.

On its face, the decision looked like a ban on wiretapping. Not to Hoover. Two days later he instructed his agents that nothing had changed: “
Same rule prevails as formerly—no phone taps without my approval.” So long as he and he alone approved the taps in secret, and the work was done in the name of intelligence, everything would be fine.

The prosecutors in
Nardone
took the case back to trial and convicted the defendants by sanitizing, summarizing, and paraphrasing the transcripts of the wiretapped conversations. This lawyerly tactic worked at the retrial, but it did not sit well with the Supreme Court.
Nardone II
was decided in a scathing opinion written by Hoover’s old archenemy: Justice Felix Frankfurter, the Liberal Club lawyer from Harvard who had crushed Hoover in a Boston courtroom during the Deer Island deportation cases two decades before.

Wiretapping was “
inconsistent with ethical standards and destructive of personal liberty,” Frankfurter wrote for the Court. And the trick of summarizing a transcript would not work: “the knowledge gained by the Government’s own wrong cannot be used.” Case closed: The government could not use wiretaps or the intelligence that flowed from them.

On January 18, 1940, Attorney General Murphy became the newest justice of the Supreme Court. He was succeeded by Solicitor General Robert Jackson, later the lead prosecutor at the Nuremberg trials of Nazi war criminals and a Supreme Court justice of distinction. Attorney General Jackson
quickly declared that the Justice Department had abandoned wiretapping. On March 15, he instituted a formal ban. It lasted nine weeks.

Hoover moved to undermine the new attorney general and find a way around the law. He was shrewd, and he was relentless when his superiors blocked his way. He sandbagged Jackson by leaking stories suggesting that the FBI was being handcuffed in the war against spies and saboteurs. He sought support from his political allies at the War Department and the State Department. He personally and pointedly warned that the fate of the nation rested on wiretaps and bugs.

Hoover was “
greatly concerned over the present regulation which prohibits the use of telephone taps,” he wrote to Jackson on April 13, 1940. Taps were “essential” for the FBI in its intelligence investigations and in espionage cases. Without them, “a repetition of disastrous catastrophes like the Black Tom explosion must be anticipated.” The FBI “cannot cope with this problem without the use of wire taps,” Hoover contended. “I feel obligated to bring this situation to your attention at the present time rather than wait until a national catastrophe focuses the spotlight of public attention upon the Department because of its failure to prevent some serious occurrence.”

Hoover was telling the attorney general that he would have American blood on his hands unless he overturned the ban in the name of national security.

“A
MENACE TO THE PUBLIC
”

Their confrontation deepened. Attorney General Jackson was appalled to learn about Hoover’s Custodial Detention Program. Keeping track of enemy aliens was one thing. Compiling files on Americans who would be rounded up in a national emergency was another.

Hoover warned Jackson to stand down. A fight over the Custodial Detention Program risked “
the very definite possibility of disclosure of certain counterespionage activities.” Any challenge to his power could force the FBI “to abandon its facilities for obtaining information in the subversive field.” The list remained.

Hoover had commanded every FBI agent in the United States to report on “persons of German, Italian, and Communist sympathies” as candidates for detention, Americans and aliens alike. He wanted the names of editors, publishers, and subscribers to all Communist, German, and Italian newspapers
in the United States. He wanted the membership rolls of every politically suspect organization in the United States, down to German singing clubs. He told his agents to set informants and infiltrators spying on “
the various so-called radical and fascist organizations in the United States,” identifying their “personnel, purposes and aims, and the part they are likely to play at a time of national crisis.”

The FBI had started drawing up a list of thousands of people whose “
liberty in this country in time of war or national emergency would constitute a menace to the public peace and safety of the United States Government.” The files held intelligence compiled by FBI agents across the country from “confidential sources”—not only informants, but intelligence gathered by break-ins, wiretaps, and bugs planted on Hoover’s authority. It came from public and private records, employment records, school records, and interviews.

The people on the list fell into two categories. The first were to be arrested and interned immediately upon the outbreak of hostilities between the United States and the nation to which they were loyal. The second were to be “
watched carefully” when war came, based on “the possibility but not the probability that they will act in a manner adverse to the best interests of the Government of the United States.” Hoover instructed his agents to keep their interviews and inquiries “
entirely confidential.” He told them to say, if asked, that they were conducting lawful investigations in connection with the 1938 Foreign Agents Registration Act, which required people representing foreign principals or powers to register with the State Department. This was a deception.

“W
HAT IF IT IS ILLEGAL?
”

Hoover now played power politics at the presidential level. At war with the attorney general over wiretapping and surveillance, he needed allies in the cabinet.

He found one in Treasury Secretary Henry Morgenthau. Hoover knew him as a lifelong friend to Roosevelt, as the grandson of a Jewish immigrant from Germany, and as a sophisticated economist intensely interested in the flow of funds between the Axis and American banks.

On May 10, 1940, Hoover told Morgenthau of a Nazi scheme to subvert the president. He said the FBI needed wiretaps to investigate it.

For years, Germany had been running an intelligence program in the United States. The program, subsidized by seized and stolen Jewish assets, was highly profitable both to the Nazis and to American bankers. It was Hitler’s best tool for identifying and recruiting Germans in America.