Enemies: A History of the FBI (8 page)

Judge Anderson contended that the government was concocting conspiracies. “
As an aftermath of our ‘war to make the world safe for democracy,’ real democracy now seems unsafe in America,” he said. “The same persons and newspapers that for two years were faking pro-German plots are now promoting ‘The Red Terror’ …

“I cannot say there will not be some bomb thrower. There are Reds—probably there are dangerous Reds. But they are not half as dangerous as the prating pseudo-patriots.…

“Real Americans, men who believe in law, order, liberty, toleration of others’ views on political and religious subjects, are not given to advertising themselves and their patriotism. They have too much respect for Americanism
and for patriotism to disgrace these fine words as they are being daily disgraced by those using them for personal or political notoriety.”

The next day, a petition for a writ of habeas corpus arrived at the federal courthouse in Boston, filed on behalf of prisoners held at Deer Island. Judge Anderson had engineered the petition, secretly arranging to hear the case himself, after consulting a young Harvard law professor and Liberal Club stalwart named Felix Frankfurter. Boston’s federal immigration commissioner, Henry J. Skeffington, who was named as the lead defendant, was outraged. “
I’ll take great pleasure in getting some of these Harvard Liberal Clubs myself,” he exclaimed. “If I have a warrant in my pocket I’ll take pleasure in getting them.”

Attorney General Palmer, preparing to announce himself as a candidate for president, did not wish to be burdened with the details of the case. He told Hoover to handle it.

The Justice Department would have to defend the Bureau’s arrests and the Deer Island deportations before a hostile judge in an open court. Hoover knew this posed a problem. The Bureau had overstepped its authority. Its conduct could not withstand close scrutiny.

At dawn on Wednesday, April 7, 1920, Hoover arrived in Boston on the sleeper train from Washington to face his first legal challenge. In Judge Anderson’s court, Felix Frankfurter, representing the prisoners, quickly offered into evidence the telegram that had gone out to the Bureau’s agents: eschew search warrants, seize anything they laid their hands on, and report directly to Hoover. Seated at the government table, whispering to the U.S. attorney, Hoover had good reason to wonder how his secret orders from headquarters—marked “strictly confidential” and carrying his name—had wound up in the hands of radical suspects. He listened as Frankfurter questioned George Kelleher, Hoover’s ranking agent in New England:

Q: It is a fact, is it not, Mr. Kelleher, that men and women were picked up that night without any warrant in your possession for their custody?
Objection. Overruled
.

A: That is so.

Q: Did your men search the bodies and the homes and the halls at which the various men and women were arrested?
Objection. Overruled
.

A: Yes.

Q: And they made seizure, did they not, of papers, documents, books and what not?
Objection. Overruled
.

A: Pursuant to the Department’s instruction …

Q: Searches were made by the arresting officers irrespective of the production of a search warrant?
Objection. Overruled
.

A: … That was left to the discretion of the various officers.

Q: What did you do with those whom the warrant did not fit, or who did not fit the warrant?
Objection. Overruled
.

A: They were detained at the station or brought to Boston and taken down to Deer Island.

The testimony turned to the government’s use of undercover informers. “Somebody who is employed to go around under an alias or pseudonym, or some kind of disguise, to pretend to be a Communist or Socialist or Anarchist.… [T]hat is an exceedingly dangerous thing, isn’t it?” said the judge. “I wonder that there have been no witches hung in the past six months.”

The judge himself then questioned Henry J. Skeffington, the Boston immigration commissioner:

Q: Were these arrests for what you call the “raids” made by your forces, or by the Department of Justice?

A: Department of Justice, your Honor.…

Q: Can you point out any rule or any statute under which the Department of Justice agents have power to arrest?

A: No, I don’t know anything about that, Judge.…

Q: Did you have instructions as to this procedure?

A: We had an understanding.

Q: Written instructions?

A: No. We had a conference in Washington … with Mr. Hoover.…

Q: Who is Mr. Hoover?

A: Mr. Hoover is an officer in the Department of Justice.

Hoover was not eager to testify about the raids under oath. After sitting through a day and a half of damning testimony, he left the courthouse and packed his bags.

“
This case seems to have been conducted under the modern theory of statesmanship: Hang first and try later,” Judge Anderson wrote in a ruling freeing thirteen Deer Island prisoners on $500 bail. In a final judgment, he called the Bureau’s conduct lawless and unconstitutional. The government had created a “spy system” that “destroys trust and confidence and propagates hate,” he concluded. “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.”

The Justice Department never challenged Judge Anderson’s ruling.

“S
EEING RED
”

Hoover returned to Washington to confront a new nemesis: Louis F. Post, the seventy-one-year-old assistant secretary of labor. On April 10, three days after Hoover’s disastrous trip to Boston, Post threw out more than a thousand of the remaining deportation cases.

Post was a lifelong liberal who had known and admired Emma Goldman. As the Labor Department official overseeing the federal immigration system, he also had signed the order deporting her. Now he had used his administrative powers to review the files of some 1,400 people who had been arrested in the Red raids. He found that in about three out of four cases the Bureau had violated the law. Many hundreds of the detainees were not members of the Communist Party: their names had been copied off Socialist Party rolls, they had wandered into a Communist meeting hall out of curiosity, or they had simply been swept up by mistake. Post also dismissed cases where prisoners had been denied counsel or had been judged by illegally seized evidence. He was proceeding by the letter of the law, not the spirit of the times. At the rate he was going, four or five thousand of the Red raid cases would be lost.

Hoover mounted a furious counterattack. This marked the start of an
American institution: the political surveillance of his prominent opponents.

He compiled a dossier on Post’s political associations with leftists and sent it to key members of Congress. His goal was to remove Post from office and reverse his rulings. His first foray into political warfare at the highest levels of the government met with an initial success. The House Rules Committee accepted the petition for a formal inquiry into Louis Post’s conduct and set hearings to begin in four weeks.

Attorney General Palmer took Hoover’s case directly to the White House. Palmer demanded to see the president immediately. This led directly to the first cabinet meeting convened by Woodrow Wilson in seven months. The White House had been an isolation ward ever since Wilson’s cataclysmic stroke.

At 10:00
A.M.
on April 14, 1920, Palmer passed through the guarded entrance alongside the locked gates of the White House, walked upstairs to the president’s study, and saw a dying man. Wilson could not move unaided. His thoughts were fleeting, his speech halting. The president was only dimly aware of the war on communism being waged in the United States.

A few minutes after the cabinet meeting began, Palmer tried to take control. One reliable eyewitness account survives, from the diaries of the navy secretary, Josephus Daniels, who described the “red-hot debate” Palmer started. Palmer argued that the country faced the threat of revolution and insurrection. He steered the president’s attention to the crisis being created by Louis Post. He demanded that Post be fired.

The president “told Palmer not to let the country see red”—“a much-needed admonition,” as Daniels heard it, “for Palmer was seeing red behind every bush.” Palmer chose to interpret the president’s words in a completely different way. He heard what he wanted to hear: a go-ahead for his campaign to cleanse the country of the Communists.

On April 29, Palmer announced that the United States would face a terrorist attack on May Day. His warning came straight from Hoover and the Bureau of Investigation—a red alert of an international conspiracy to kill American leaders and destroy American landmarks.

“
The plot is nationwide,” the attorney general told the newspapers. He said government officials and corporate executives were targets for assassination; warnings had gone out to all those on the list of marked men. Bureau
agents, state militiamen, and police officers were on guard across the country, concentrating on New York, Chicago, Philadelphia, and New Orleans; watching over railroad stations, harbors, Wall Street offices, and the homes of the most powerful men in America.

It was a false alarm. May Day came and went uneventfully. “While the night is not over, it looks as if the expected disturbances have been headed off,” Hoover told reporters late that evening. A perceptible snickering began—a smattering of suspicion, as Hoover himself recorded, that the May Day plots were “
creatures of the imagination of the Attorney General.” In short order, the press, the public, and the political establishment began to question the judgment of the nation’s chief law enforcement officer. Congress quickly cut Palmer’s budget request for the Bureau of Investigation by one-third.

On May 7, Hoover sat on a back bench in a congressional hearing room and took notes as Louis Post appeared before a hostile House Rules Committee. Over the course of two days’ testimony, Post made mincemeat of the charges of political misconduct that Palmer and Hoover had lodged against him. Case by case, Post argued that not one in one hundred of the men arrested in the January raids could be rightfully accused of planning to overthrow the government by force. He contended that even a despised alien was entitled to due process; warrantless arrests, forced confessions, and guilt by association were not the American way. After ten hours of testimony, the congressmen decided they would not impeach or condemn him. Instead they would summon Palmer to answer Post’s accusations himself.

Hoover immediately began to prepare testimony for the attorney general. He revised his closely reasoned legal briefs arguing that membership in the Communist Party constituted a crime against the United States and a deportable offense. He told Palmer that he had the perfect opportunity to tell the world “
the real story of the red menace.”

But Louis Post struck back first. His lawyer had mobilized a coalition calling itself the National Popular Government League, and it was about to publish a broadside, “Report to the American People upon the Illegal Practices of the Department of Justice,” signed by twelve prominent law school deans and lawyers—among them Hoover’s new archenemy, Felix Frankfurter, the Harvard liberal. Hoover ordered the Bureau’s chief in Boston, George Kelleher, to open a file on the future Supreme Court justice.

The “Report to the American People,” published on May 28, 1920, accused
Palmer and Hoover of torture and illegal imprisonment. It said they had mounted
an “assault upon the most sacred principles of our Constitutional liberties.”

“Wholesale arrests both of aliens and citizens have been made without warrant or any process of law; men and women have been jailed and held incommunicado without access of friends or counsel; homes have been entered without search warrants,” it said. “We do not question the right of the Department of Justice to use its agents in the Bureau of Investigation to ascertain when the law is being violated. But the American people have never tolerated the use of undercover provocative agents or ‘agents provocateurs’ such as have been familiar in old Russia or Spain. Such agents have been introduced by the Department of Justice into radical movements … instigating acts which might be declared criminal.”

Hoover worked feverishly for the next three days preparing Palmer’s response to Congress. He put everything he had into it—his bulletins on the Red menace, the seized records of American leftists, his agents’ affidavits against the deportees, paragraphs copied out of radical pamphlets, the annals of the Russian Revolution, the public decrees of the Comintern, Karl Marx’s
Communist Manifesto
of 1847. The document went back and forth across decades and nations—more than thirty thousand words thrown together in seventy-two hours.

The presidency was at stake: the Democratic National Convention was in four weeks, and Palmer remained among the front-runners in a weak field. The future of America’s war on communism could turn on his performance. So might the future of his chief strategist. If Palmer won, Hoover could succeed him as attorney general.

On the morning of June 1, Palmer and Hoover ascended together to the top floor of the Capitol. The small hearing chamber of the House Rules Committee overflowed with reporters and spectators. One window looked south from Capitol Hill toward Hoover’s home. Congressman Philip Campbell, Republican of Kansas, called the hearing to order at 10:00
A.M.