THE DEVELOPMENT OF FBI DOMESTIC INTELLIGENCE INVESTIGATIONS

I. INTRODUCTION

During the past forty years, FBI intelligence investigations have been one of the federal government's main resources for the protection of domestic security. The executive branch, not the Congress, took the initiative in 1936 to establish the Bureau's intelligence structure. Until this Committee's investigation, there has never been a substantial inquiry by the Congress into the policies and practices of the FBI and the executive for the conduct of domestic intelligence investigations. The purpose of this report is to set forth chronologically the development of these policies and practices, as shown by the materials obtained by the Committee from the FBI and the Justice Department.

A. Scope of the Report

There are several major limits on the scope of this report and of the inquiry it represents. Since it spans sixty years of American history, the report does not purport to be an exhaustive discussion of all the outside events which were the setting for policy decisions and the development of Bureau programs. Nor does this report touch on many of the most controversial cases in the FBI's past, such as the Hiss and Rosenberg cases, which have recently been the subject of extensive historical reconsideration on the basis of materials made public under the Freedom of Information Act. Rather, the narrative which follows concentrates on the Bureau's general policies and formal programs, with specific illustrations of what appear to be typical applications of these investigative standards. 1

Furthermore, the Committee has not attempted to secure from the FBI and the Justice Department an exhaustive compilation of all policy materials relating to domestic intelligence over the entire period since 1936. For example, the Committee has reviewed all versions of the FBI Manual Sections pertaining to intelligence only as far back as 1960. The same cut-off date was used in the Committee's requests for such basic policy documents as the "SAC Letters" (regular instructions to the Special Agents in Charge of all FBI field offices from Bureau headquarters) and memoranda recording decisions of the FBI's Executive Conference (composed of all Bureau executives at the level of Assistant Director and above). However, substantial information about pre-1960 intelligence policies was obtained in connection with the Committee's review of the FBI's Security Index and related programs going back to 1939. Other materials on the FBI's overall policy mandate from the President were located in the various Presidential libraries; and the Bureau volunteered to the Committee an extensive collection of documents on its operations as part of an analysis of the origins of its legal authority to conduct domestic intelligence investigations. 2

The most significant omission from this report is the FBI's foreign counterintelligence policies. While they are mentioned from time to time as part of the larger context for the Bureau's intelligence operations as a whole, they are not considered in the same depth as FBI domestic intelligence investigations not directed specifically at the activities of hostile foreign intelligence services in this country. 3

Nevertheless, it is essential to examine the nature of foreign counterintelligence investigations in order to understand the origins of FBI domestic intelligence. Counterintelligence investigations are a necessary response to the threat of espionage and related hostile intelligence activities of foreign governments. Foreign espionage is a tangible and obvious danger; and clandestine investigations of foreign agents are a minimal intrusion upon the rights of Americans (even if some foreign agents are citizens). The crimes a foreign agent may commit on behalf of his principal are extraordinarily serious, for they may result in disclosure of the nation's most sensitive defense information to a foreign adversary. The positive foreign intelligence by-product of counterintelligence may have great significance, since it can alert the United States to impending hostilities and provide information about the larger intentions and objectives of other nations.

Before World War II the governments of Nazi Germany, Japan, and the Soviet Union mounted intelligence efforts directed at the United States. While their extent was not fully known at the time, there were sufficient indications as early as the mid-1930s. Given the international climate and the activities of German and Soviet officials in the United States, there was every reason to believe that this country needed a counterintelligence capability to identify and possibly disrupt the work of hostile intelligence services.

From today's perspective it is harder to understand the nature of the domestic threats to security which, along with foreign espionage, were the reasons for establishing the FBI's intelligence program in the 1930s. President Roosevelt and the Congress were not just concerned about spies and foreign agents in the pre-World War II period. They saw a threat which combined both foreign and domestic elements, and FBI intelligence was assigned to deal with it. Only by a closer examination of the historical record can this assignment be fully explained. Factors of political belief and association, group membership and nationality affiliation, became the criteria for intelligence investigations before the war; and the continued to be used through the Cold War period to the 1960s and early 1970s.

Therefore, this report describes how the policy assumptions behind FBI domestic intelligence were established in 1930s and 1940s and became unquestioned dogma as the years went by. In the 1960s, new and unexpected events occurred which did not fit these established concepts. There was no longer a consensus among Americans as to the nature of government's proper response to home-grown dissidents who might engage in violence as a form of political protest, to racist groups using force to deprive others of their civil rights, to civil disorders growing out of minority frustrations, or to large-scale protest demonstrations. Presidents and Attorneys General turned to the FBI for intelligence about these matters without adequate controls. The resulting confusion and mistakes of the past ten years called into question some of the fundamental assumptions underlying the FBI intelligence programs of the previous three decades.

B. Issues Presented

Domestic intelligence investigations involve much more than the neutral collection of information. Intelligence gathering is a process including many kinds of activity. The ordinary means of collecting information inevitably has an adverse impact on the rights of individuals. The recruitment of informants paid to supply information about their acquaintances is a fundamental tool of intelligence. By arranging for what is in effect a government agent to intrude into the private relationships among people, the FBI substantially interferes with free association. 4 Moreover, like all investigations, intelligence collection involves extensive interviews with the subjects of investigation, their friends, employers, neighbors, school officials, sources of credit, and anyone else who may know something about their back ground and activities. The interview is not a neutral event. The way a person is looked upon by those around him can be significantly affected when they know he is someone "of interest" to the government. These consequences are the necessary price of investigations of crime, and they may be justified to satisfy other compelling governmental interests. But FBI domestic intelligence gathering has gone far beyond criminal investigation and, in many instances, beyond a reasonable definition of compelling necessity. No act of Congress has supplied clear legal standards against which to measure the propriety of domestic intelligence investigations. Instead, the executive branch has been on its own with vague legal concepts of "emergency power" or "war power" or other imprecise doctrines of inherent presidential authority. These problems have been compounded by practices of secrecy. Congress was often not informed or did not seek information. Even within the executive branch, the FBI assumed it had a general mandate and thus frequently did not advise its superiors of specific policies. The judiciary had no role at all because clandestine investigations did not lead to prosecutions. 5

The FBI's experience in the conduct of domestic intelligence investigations over the past forty years, as it is set forth in this report, argues strongly for discarding outdated ideas and striking a new balance between security and liberty. The dangers of domestic intelligence are real, not imaginary. They underscore the need to circumscribe carefully any intelligence operations carried out by the federal government within the United States or against Americans anywhere else in the world. Equally important, they demonstrate the need for Congress to assert its lawmaking power, for the executive to abandon inflated doctrines of presidential authority, and for an end to the excessive secrecy which destroys the effectiveness of the rule of law.

II. HISTORICAL ANTECEDENTS -- WORLD WAR I, THE "RED SCARE," AND ATTORNEY GENERAL HARLAN FISKE STONE'S REFORMS

A. Pre- World War I Programs

The first federal domestic intelligence programs originated shortly before the United States entered World War I in 1917. The initial threat perceived by federal officials was the activity of German agents, including sabotage and espionage, directed at the United States in the period before America entered the war. Although the neutrality laws were on the books, no federal statute made espionage or sabotage a crime. Attorney General Thomas W. Gregory proposed such legislation in 1916, but Congress took no action before American entry into the war. Nonetheless, the Executive Branch went ahead with development of a domestic security intelligence capability.

Several federal agencies expanded their operations. The Secret Service, which was established in the Treasury Department to investigate counterfeiting in 1865, had served as the main civilian intelligence agency during the Spanish-American War. With $50,000 in War Department funds, the Secret Service had organized an emergency auxiliary force to track down Spanish spies, placed hundreds of civilians under surveillance, and asked the Army to arrest a number of alleged spies. 6 After the assassination of President McKinley by an anarchist in 1901, the Secret Service was authorized to protect the President. Its agents were also assigned to the Justice Department as investigators until 1908 when Congress forbade the practice. In 1915 Secretary of State William Jennings Bryan decided that German diplomats should be investigated for possible espionage, and he requested and received President Wilson's permission to use the Secret Service. 7

The military had performed extensive security intelligence functions during the Civil War, although operations were largely delegated to commanders in the field. When the military discontinued its surveillance program after the Civil War, Allan Pinkerton who had worked for the War Department under President Lincoln founded a private detective agency. The Pinkerton agency and other private detective forces served both government and private employers in later years, frequently to spy upon labor organizing activities. 8 In the years immediately before American entry into World War I, military intelligence lacked the resources to engage in intelligence operations. Therefore, preparation for war rested largely with the Secret Service and its main competitor, the Justice Department's Bureau of Investigation.

The Justice Department's investigative authority stemmed from an appropriations statute first enacted in 1871, allowing the Attorney General to expend funds for "the detection and prosecution of crimes against the United States." 9 The Attorney General initially employed several permanent investigators and supplemented them with either private detectives or Secret Service agents. When Congress prohibited such use of Secret Service personnel in 1908, Attorney General Charles J. Bonaparte issued an order authorizing creation of the Bureau of Investigation. There was no formal Congressional authorization for the Bureau, but once it was established its appropriations were regularly approved by Congress. Members of the House Appropriations Committee debated with Attorney General Bonaparte over the need for safeguards against abuse by the new Bureau. Bonaparte emphasized, "The Attorney General knows, or ought to know, at all times what they are doing." Some Congressmen thought more limits were needed, but nothing was done to circumscribe the Bureau's powers. 10

Passage of the Mann Act and other federal statutes prohibiting interstate traffic in stolen goods, obscene materials, and prizefight films soon expanded the criminal investigative responsibilities of the Justice Department and its Bureau of Investigation.

By 1916 Attorney General Gregory had expanded the Bureau's personnel from 100 to 300 agents, primarily to investigate possible violations of the neutrality laws. The Attorney General objected to the Secret Service's investigations of activities which did not involve actual violations of federal laws. However, when President Wilson and Secretary of State Robert Lansing expressed continued interest in such investigations, Attorney General Gregory went to Congress for an amendment to the Justice Department's appropriations statute which would allow the Bureau to do what the Secret Service had already begun doing. With the agreement of the State Department, the statute was revised to permit the Attorney General to appoint officials not only to detect federal crimes, but also "to conduct such other investigations regarding official matters under the control of the Department of Justice or the Department of State, as may be directed by the Attorney General." 11 This amendment to the appropriations statute was intended to be an indirect form of authorization for investigations by the Bureau of Investigations, although a State Department request was seen as a prerequisite for such inquiries. 12

Under the direction of A. Bruce Bielaski, the Bureau concentrated at first on investigations of potential enemy aliens in the United States. According to the authoritative history of the Justice Department,

The Bureau of Investigation made an index of aliens under suspicion. At the end of March 1917, just before the entrance of the United States into the war, the chief of the Bureau submitted a list of five classes of persons. One class, ninety-eight in number, should be arrested immediately on declaration of war. One hundred and forty should be required to give bond. Five hundred and seventy-four were strongly suspected. Five hundred and eighty-nine had not been fully cleared of suspicion. Three hundred and sixty-seven had been cleared of specific offenses. Others, after investigation, had been eliminated from the lists. 13

Theoretically, the threat of dangerous aliens was the responsibility of the Immigration Bureau in the Labor Department. As early as 1903 Congress had enacted legislation requiring the deportation within three years of entry of persons holding anarchistic beliefs or advocating "the overthrow by force or violence of the Government of the United States.'' 14 In early 1917 the immigration laws were amended to eliminate the three-year limit and require deportation of any alien "found advocating or teaching the unlawful destruction of property ... or the overthrow by force or violence of the Government of the United States." 15 Nevertheless, the Immlgration Bureau lacked the men, ability, and time to conduct the kind of investigations contemplated by the statute. 16

As the United States entered World War 1, domestic security investigations were the province of two competing civilian agencies -- the Secret Service and the Bureau of Investigation -- soon to be joined by military intelligence and an extensive private intelligence network called the American Protective League.

B. Domestic Intelligence in World War I

Shortly after the declaration of war, Congress considerably strengthened the legal basis for federal investigations by enacting the Espionage Act of 1917, the Selective Service and Training Act, and other statutes designed to use criminal sanctions to assist the war effort. But Congress did not clarify the jurisdiction of the various civilian and military intelligence agencies. The Secretary of War established a Military Intelligence Section under Colonel Ralph Van Doman, who immediately began training intelligence officers and organizing civilian volunteers to protect defense plants. By the end of 1917 the MIS had branch offices throughout the United States to conduct investigations of military personnel and civilians working for the War Department. MIS agents cooperated with British intelligence in Mexico, with their joint efforts leading to the arrest of a German espionage agent during the war. 17

A major expansion of federal intelligence activity took place with the formation of the American Protective League, which worked directly with the Bureau of Investigation and military intelligence. A recent FBI study recounts how the added burdens of wartime work led to the creation of the League:

To respond to the problem, Attorney General Thomas W. Gregory and then Bureau Chief A. Bruce Bielaski, conceived what they felt might suffice to answer the problem. The American Protective League (APL) composed of well-meaning private individuals, was formed as a citizens auxiliary to "assist" the Bureau Of Investigation. In addition to the authorized auxiliary, ad hoc groups took it upon themselves to "investigate" what they felt were un-American activities. Though the intentions of both groups were undoubtedly patriotic and in some instances beneficial, the overall result was the denial of constitutional safeguards and administrative confusion. To see the problem, one need only consider the mass deprivation of rights incident to the deserter and selective service violator raids in New York and New Jersey in 1918, wherein 35 Agents assisted by 2,000 APL operatives, 2,350 military personnel, and several hundred police rounded up some 50,000 men without warrants of sufficient probable cause for arrest. Of the 50,000 arrestees, approximately 1,500 were inducted into the military service and 15,000 were referred to draft boards. 18

The FBI study also cites the recollections of an Agent of the Bureau of Investigation during World War I regarding the duplication of effort:

How did we function with relation to other agencies, both federal and state? In answering this query, I might say that while our relationship with the Army and Navy Departments, was extremely cordial at all times, nevertheless there was at all times an enormous overlapping of investigative activities among the various agencies charged with winning the war. There were probably seven or eight such active organizations operating at full force during war days and it was not an uncommon experience for an Agent of this Bureau to call upon an individual in the course of his investigation, to find out that six or seven other government agencies had been around to interview the party about the same matter. 19

The Secret Service opposed the utilization of American Protective League volunteers and recommended, through Treasury Secretary McAdoo, establishment of a centralized body to coordinate domestic intelligence work. The Treasury Department's proposal was rejected in early 1918, because of the objections of Colonel Van Deman, Bureau Chief Bielaski, and the Attorney General's Special Assistant for war matters, John Lord O'Brien. Thereafter the role of the Secret Service in intelligence operations diminished in importance. 20

During World War I the threat to the nation's security and the war effort was perceived by both government and private intelligence agencies as extending far beyond activities of enemy agents. Criticism of the war, opposition to the draft, expression of pro-German or pacifist sympathies, and militant labor organizing efforts were all considered dangerous and targeted for investigation and often prosecution under federal or state statutes. The federal Espionage Act forbade making false statements with intent to interfere with the success of the military, attempting to cause insubordination, and obstructing recruitment of troops. 21 With little guidance from the Attorney General, the United States Attorneys across the country brought nearly 2,000 prosecutions under the Espionage Act for disloyal utterances. 22 Not until the last month of the war did Attorney General Gregory require federal prosecutors to obtain approval from Washington before bringing Espionage Act prosecutions. John Lord O'Brien, the Attorney General's Special Assistant, recalled "the immense pressure brought to bear throughout the war upon the Department of Justice in all parts of the country for indiscriminate prosecution demanded in behalf of a policy of wholesale repression and restraint of public opinion." 23

In addition to providing information for Espionage Act prosecutions intelligence operations laid the foundation for the arrest and internment of enemy aliens. About 6,300 aliens were arrested, of which some 2,300 were turned over to military authorities for internment and the remainder released or placed on parole. 24

C. The Post-war "Red Scare" and the "Palmer Raids"

The end of the war in 1918 did not bring about the termination of domestic intelligence operations. The Bureau of Investigation shifted its attention from critics of the war to the activities of radical and anarchist groups. The new threat was dramatized vividly by a series of terrorist bombings in 1919, including an explosion on the doorstep of Attorney General A. Mitchell Palmer's residence. Congress resounded with calls for action, although the applicable provisions of the Espionage Act had expired at the end of the war and no new federal criminal statute was enacted to replace it. Instead, state statutes and the deportation provisions of the Immigration Act became the basis for the federal response.

Attorney General Palmer authorized two major revisions in Justice Department intelligence operations in 1919. First, he established a General Intelligence Division in the Justice Department, headed by J. Edgar Hoover, who had served during the war as head of the Department's program for compiling information on enemy aliens. At the same time, Palmer appointed William J. Flynn, former head of the Secret Service, as Director of the Bureau of Investigation.

Less than two weeks after the GID was established, Flynn ordered a major expansion of Bureau investigations "of anarchistic and similar classes, Bolshevism, and kindred agitations advocating change in the present form of government by force or violence, the promotion of sedition and revolution, bomb throwing, and similar activities." Since the only available federal law was the deportation statute, Flynn stressed that the investigations "should be particularly directed to persons not citizens of the United States." Nevertheless, he also directed Bureau agents to "make full investigations of similar activities of citizens of the United States with a view to securing evidence which may be of use in prosecutions under the present existing state or federal laws or under legislation of that nature which may hereinafter be enacted." (Emphasis supplied.) The instructions discussed the provisions of the recent amendments to the Immigration Act, which expanded the grounds for deportation to include membership in revolutionary organizations as well as individual advocacy of violent overthrow of the government. 25 Director Flynn concluded by urging Bureau agents to "constantly keep in mind the necessity of preserving the cover of our confidential informants." 26

The results of these investigations were reported to the Department's General Intelligence Division for analysis and evaluation. Overall direction of the work of the GID under Hoover and the Bureau under Flynn was placed in the hands of an Assistant Attorney General, Francis P. Garvan, who had been a division chief in the New York district attorney's office before the war. 27

Historians have documented fully the tremendous pressures placed on Attorney General Palmer, not just by his subordinates, but by public opinion, other members of President Wilson's cabinet, and the Congress to act decisively against the radical threat in 1919. For example, Secretary of State Lansing declared in a private memorandum written in July, "It is no time to temporize or compromise; no time to be timid or undecided; no time to remain passive. We are face to face with an inveterate enemy of the present social order." The Senate unanimously passed a resolution demanding that Palmer inform it whether he had yet begun legal proceedings against those who preached anarchy and sedition. According to his biographer, after passage of the Senate resolution Palmer decided that the "very liberal" provisions of the Bill of Rights were expendable and that in a time of emergency there were "no limits" on the power of the government "other than the extent of the emergency." 28

The principal result of the Justice Department's intelligence activities, in coordination with Immigration Bureau investigations, was the infamous "Palmer raids" on the night of January 2, 1920. Bureau of Investigation and Immigration Bureau agents in thirty-three cities rounded up some ten thousand persons believed to be members of the Communist and Communist Labor Parties, including many citizens and many individuals not members of either party. A summary of the abuses of due process of law incident to the raids includes "indiscriminate arrests of the innocent with the guilty, unlawful seizures by federal detectives, intimidating preliminary interrogations of aliens held incommunicado, highhanded levying of excessive bail, and denial of counsel." 29 Apart from the unavoidable administrative confusion in such a large-scale operation, these abuses have been attributed to several crucial decisions by federal officials.

The first was Director Flynn's instruction to Bureau agents that, in order to preserve "the cover of our confidential informants," they should "in no case ... rely upon the testimony of such cover informants during deportation proceedings." 30 Consequently, Flynn's assistant, Frank Burke, advised the Immigration Bureau that informants should not be called as witnesses and that immigration inspectors should "make an effort to obtain from the subject a statement as to his affiliations." The success of eliciting incriminating admissions depended, in turn, upon decisions which made possible the prolonged detention and interrogation of arrested persons without access to counsel. In previous deportation proceedings, defense attorneys had urged aliens to remain silent. Therefore, it was necessary to amend the immigration regulation which allowed "attorneys employed by arrested persons to participate in the conduct of hearings from their very commencement." 31 The head of the Justice Department's General Intelligence Division, J. Edgar Hoover, reiterated this request for a modification of immigration procedures. 32 Three days before the raids the regulation was revised to permit hearings to begin without the presence of counsel.

Another barrier to effective interrogation was the alien's right to bail. Three weeks after the round-up, J. Edgar Hoover advised the Immigration Bureau that to allow aliens out on bail to see their lawyers "defeats the ends of justice" and made the revision of immigration regulations "virtually of no value." 33 Hoover later told immigration officials that since the purpose of the raids was to suppress agitation, he could not see the sense in letting radicals spread their propaganda while out on bail. 34 He also urged the Immigration Bureau to hold all aliens against whom there was no proof on the chance that evidence might be uncovered at some future date "in other sections of the country." 35 However, despite the Justice Department's pleas, the Secretary of Labor ordered a return to previous policies after the raids, once again allowing detained aliens access to legal counsel and admission to bail if hearings were delayed. 36

An advantage of the amended Immigration Act had been that aliens could be deported simply for membership in a revolutionary group, without any evidence of their individual activity.

J. Edgar Hoover urged literal application of the law to all members regardless of the individual's intent or the circumstances involved in his joining the organization. 37 Nevertheless, the Labor Department refused to deport automatically every Communist Party alien, instead adopting a policy of differentiating between "conscious" and "unconscious" membership, declining to deport those whose membership in the Socialist Party had been transferred to the Communist Party without the member's knowledge and those whose cases were based on self-incrimination without counsel or illegally seized membership records. Assistant Secretary of Labor Louis F. Post, who strongly opposed the Justice Department's position, also defied Congressional threats of impeachment in his vigorous defense of due process of law. 38

During the months following the "Palmer raids", a group of distinguished lawyers and law professors prepared a report denouncing the violation of law by the Justice Department. They included Dean Roscoe Pound, Felix Frankfurter, and Zechariah Chafee, Jr. of the Harvard Law School, Ernst Freund of the University of Chicago Law School, and other eminent lawyers and legal scholars. The committee found federal agents guilty of using third-degree tortures, making illegal searches and arrests, using agents provocateurs, and forcing aliens to incriminate themselves. Its report described federal intelligence operations in the following terms:

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, have reached positions of influence therein, have occupied themselves with informing upon or instigating acts which might be declared criminal, and at the express direction of Washington have brought about meetings of radicals in order to make possible wholesale arrests at such meetings. 39

The initial reaction of the head of the Justice Department's General Intelligence Division to such criticism was to search the files, including military intelligence files, for evidence that critics had radical associations or beliefs. 40

The work of the General Intelligence Division was summarized by J. Edgar Hoover in a report prepared later in 1920. Even though federal criminal statutes were "inadequate to properly handle the radical situation," Hoover stressed the "need in the absence of legislation to enable the federal government adequately to defend and protect itself and its institutions [from] not only aliens within the borders of the United States, but also American citizens who are engaged in unlawful agitation." Therefore, in addition to providing intelligence for use in the deportation of aliens, the GID supplied information to state authorities for the prosecution of American citizens under the broader state sedition laws.

The GID also had expanded "to cover more general intelligence work, including not only the radical activities in the United States and abroad, but also the studying of matters of an international nature, as well as economic and industrial disturbances incident thereto." Hoover described the GID's relationship to the Bureau of Investigation:

While the General Intelligence Division has not participated in the investigations of the overt acts of radicals in the United States, its solo function being that of collecting evidence and preparing the same for proper presentation to the necessary authorities, it has however by a careful review system of the reports received from the field agents of the Bureau of Investigation, kept in close and intimate touch with the detail of the investigative work.

The GID developed an elaborate system for recording the results of Bureau surveillance:

In order that the information which was obtained upon the radical movements might be readily accessible for use by the persons charged with the supervision of these investigations and prosecutions, there has been established as a part of this division a card index system, numbering over 150,000 cards, giving detailed data not only upon individual agitators connected with the radical movement, but also upon organizations, associations, societies, publications and social conditions existing in certain localities. This card index makes it possible to determine and ascertain in a few moments the numerous ramifications of individuals connected with the radical movement and their activities in the United States, thus facilitating the investigations considerably. It is so classified that a card for a particular city will show the various organizations existing in that city, together with their membership rolls and the names of the officers thereof.

The report said little about any tangible accomplishments in the prevention of terrorist violence or the apprehension of persons responsible for specific acts of violence. Instead, groups and individuals were characterized as having "dedicated themselves to the carrying out of anarchistic ideas and tactics"; as "urging the workers to rise up against the Government of the United States"; as having "openly advocated the overthrow of constitutions, governments and churches"; as being "the cause of a considerable amount of the industrial and economic unrest"; as "openly urging the workers to engage in armed revolt"; as being "pledged to the tactics of force and violence"; as being "affiliated with the III International formed at Moscow" and under "party discipline regulated by Lenin and Trotsky"; and as "propagandists" appealing directly to "the negro" for support in the revolutionary movement.

The only references to particular illegal acts were that one group had participated in an "outlawed strike" against the railroads, that one anarchist group member had assassinated the king of Italy, and that Communists had smuggled diamonds into the United States to finance propaganda. The head of the GID did not claim to have identified terrorists whose bombings had aroused public furor. Instead, Hoover reported that the mass arrests and deportations "had resulted in the wrecking of the communist parties in this country" and that "the radical press, which prior to January 2nd had been so flagrantly attacking the Government of the United States and advocating its overthrow by force and violence, ceased its pernicious activities." State sedition prosecutions had served to protect "against the agitation of persons having for their intent and purpose the overthrow of the Government of the United States." Finally, the GID's work had "enabled the government to study the situation from a more intelligence and broader viewpoint." 41

Parallel to the Justice Department and Immigration Bureau operations, military intelligence continued its wartime surveillance into the post-war era. After a temporary cut-back in early 1919, the Military Intelligence Division resumed investigations aimed at strikes, labor unrest, radicals, and the foreign language press. The American Protective League disbanded, but its former members still served as volunteer agents for military intelligence as well as for the Bureau of Investigation. While the military did not play a significant role in the "Palmer raids," troops were called upon in 1919 to control race riots in several cities and to maintain order during a steel strike in Gary, Indiana, where the city was placed under "modified martial law." Following the 1920 round-up of aliens, J. Edgar Hoover arranged for mutual cooperation between the GID and military intelligence. Reports from the Bureau of Investigation would be shared with the military, and investigations conducted at military request. In return, military intelligence agreed to provide Hoover with information from foreign sources, since the State Department had refused to do so and Hoover was prohibited from having agents or informants outside the United States. 42

The domestic intelligence structure as finally established in 1920 remained essentially intact until Attorney General Harlan Fiske Stone took office in 1924. Under the Harding Administration and Attorney General Harry Daugherty, the GID was made a part of the Bureau of Investigation under Director William J. Burns, with J. Edgar Hoover becoming an Assistant Director of the Bureau. Although the deportation program was strictly limited by Labor Department policies, the Bureau still supplied results of its surveillance operations to state authorities for the prosecution of Communists. 43 Hoover also prepared a lengthy report for the Secretary of State on Communist activities in the United States. The State Department submitted the information to the Senate to back up its opposition to a resolution to grant diplomatic recognition to the Soviet Union. 44 During this period, the Bureau spelled out its domestic intelligence activities in annual reports to Congress, including summaries of investigative findings on the role of Communists in education, athletic clubs, publications, labor unions, women's groups, and Negro groups. Radical propaganda was "being spread in the churches, schools and colleges throughout the country." The Bureau also told Congress that it was furnishing information for prosecutions under state laws punishing "criminal syndicalism and anarchy." 45

D. Attorney General Stone's Reforms

In April, 1924, a new Attorney General took charge of a scandalridden Department of Justice. Harlan Fiske Stone, former Dean of the Columbia Law School, had been appointed by President Calvin Coolidge to replace the late President Warren Harding's political crony Harry Daugherty. Stone confronted more than simply corruption in the Justice Department when he took office. The Department's Bureau of Investigation had become a secret political police force. As Stone recalled later, "The organization was lawless, maintaining many activities which were without any authority in federal statute's and engaging in many practices which were brutal and tyrannical in the extreme." 46 Attorney General Stone asked for the resignation of the Bureau Director William J. Burns, former head of the Burns Detective Agency, and directed that the activities of the Bureau "be limited strictly to investigations of violations of law, under my direction or under the direction of an Assistant Attorney General regularly conducting the work of the Department of Justice." Stone also ordered a review of the entire personnel of the Bureau, the removal of "those who are incompetent land unreliable," and the future selection of "men of known good character and ability, giving preference to men who have had some legal training." 47 The Attorney General chose the young career Bureau official, J. Edgar Hoover, as Acting Director to implement these reforms, largely because of Hoover's reputation within the Justice Department as an honest and efficient administrator. 48

A principal problem Stone faced was the Bureau's domestic intelligence operation. He was vividly aware of the violations of individual rights committed in the name of domestic security at the time of the 1920 "Palmer raids." He had joined a committee of protest against Attorney General Palmer's round-up of radical aliens for deportation and had urged a Congressional investigation. When a Senate Judiciary Subcommittee began hearings in 1921, its first order of business was a letter from Stone calling for "a thoroughgoing investigation of the conduct of the Department of Justice in connection with the deportation cases." 49

In considering J. Edgar Hoover for the position of permanent Director of the Bureau of Investigation, Attorney General Stone was aware that he had played a major role in the "Palmer raids" as head of the Justice Department's General Intelligence Division. Roger Baldwin of the American Civil Liberties Union told Stone that he was skeptical of Hoover's ability to reform the Bureau. With the Attorney General's knowledge, Baldwin met with Hoover to discuss the future of the Bureau. Hoover assured Baldwin that he had played an "unwilling part" in the activities of Palmer, Daugherty, and Burns. He said he regretted their tactics but had not been in a position to do anything about them. He intended to help Stone build an efficient law enforcement agency, employing law school graduates, severing connections with private detective agencies, and not issuing propaganda. Most important from the American Civil Liberties Union's point of view, the Bureau's "radical division" would be disbanded. Baldwin wrote Stone "I think we were wrong in our estimate of his attitude," and announced to the press that the ACLU believed the Justice Department's "red-hunting" days were over. 50

When Attorney General Stone arrived in 1924, he requested a review of the applicability of the federal criminal statutes to Communist activities in the United States. Various patriotic organizations had urged that Communists be prosecuted under the federal seditious conspiracy law, but the courts had ruled that this Civil War statute required proof of a definite plan to use force against the government. 51 Justice Department lawyers also rejected prosecution under the Logan Act, enacted in the 1790s to punish hostile communications between American citizens and a foreign government. 52 These conclusions buttressed the Attorney General's decision to abolish the Bureau's domestic intelligence operations, although Stone told Roger Baldwin of the ACLU that he had no authority to destroy the Bureau's intelligence files, without an Act of Congress. 53

Attorney General Stone may also have contemplated the possibility of future investigations under Congress' prewar revision of the Justice Department appropriations statute. He asked Acting Director Hoover whether the Bureau would have the authority to investigate Soviet and Communist activities within the United States for the State Department in connection with the question of recognition of the Soviet government. Hoover replied that the appropriations act did allow such investigations, upon formal request by the Secretary of State and approval of the Attorney General. The Acting Director stressed that such investigations "should be conducted on an entirely different line than previously conducted by the Bureau of Investigation" and that there should be no publicity "because any publicity would materially hamper the obtaining of successful results." 54

After 1924, the Bureau of Investigation continued to receive information volunteered to it about Communist activities, and Bureau field offices were ordered to forward such data to headquarters. But the Bureau made "no investigations of such activities, inasmuch as it does not appear that there is any violation of a Federal Penal Statute involved." 55 Military intelligence officers still had a duty, under an Army emergency plan, to gather information "with reference to the economical, industrial and radical conditions, to observe incidents and events that may develop into strikes, riots, or other disorders, and to investigate and report upon the industrial and radical situation." However, by 1925 the military lacked adequate personnel and requested the Bureau of Investigation to provide information on "radical conditions." 56 J. Edgar Hoover replied that the Bureau had discontinued "general investigations into radical activities," but would communicate to the military any information received from specific investigations of federal violations "which may appear to be of interest" to the military. 57

Despite the curtailment of federal intelligence operations, it would be misleading to say that domestic intelligence activity ceased in the United States after 1924. The efforts of state and local authorities to investigate possible violations of state sedition laws continued in many parts of the country. Moreover, private industry engaged the services of detectives and informers to conduct surveillance of labor organizing activities. These industrial espionage programs reached their peak in the early 1930s. A Senate committee investigation in 1936 exposed these tactics and influenced at least one private detective firm, the Pinkerton Agency, to discontinue its anti-labor spying. The Senate inquiry documented the efficient techniques developed by labor spies for destroying unions. They wreaked havoc on union locals, generating mistrust, inciting violence, and reporting the identities of union members to hostile employers. 58

On one major occasion early in the Depression, military intelligence was reactivated temporarily. Army Chief of Staff Douglas MacArthur ordered corps area commanders in mid-1931 to submit reports on subversive activities in their areas. When the "bonus marchers" began arriving in Washington in 1932 to demand veteran benefits, military intelligence agents investigated Communist influence with the help of American Legion officials, reserve officers, and other volunteers. Military intelligence reports exaggerating the threat of "insurrectionists" among the veteran protesters contributed to the decision to use troops in a mass assault to clear the demonstrators out of Washington. Criticism of this operation led military authorities to instruct that intelligence officers be more discreet although they continued to gather intelligence on civilian groups. 59

Therefore, while Attorney General Stone had stopped the Justice Department's intelligence efforts in 1924, safeguards did not exist against state, private or military intelligence operations. Moreover, the Bureau of Investigation retained its massive domestic intelligence files from the 1916-1924 period, as well as the vague legal authority under the appropriations act to conduct investigations going beyond the detection of federal crimes if a future Attorney General and Secretary of State should direct it to do so. Nevertheless, when Congressman Hamilton Fish and members of a Special House Committee to Investigate Communist Activities in the United States proposed legislation authorizing the Bureau of Investigation to investigate "Communist and revolutionary activity" in 1931, Director Hoover opposed it. He told Congressman Fish that it would be better to enact a criminal statute and not expand the Bureau's power beyond criminal investigation, especially since the Bureau had "never been established by legislation" and operated "solely on an appropriation bill." 60 Hoover advised the Attorney General a year later,

The work of the Bureau of Investigation at this time is . . . of an open character not in any manner subject to criticism, and the operations of the Bureau of Investigation may be given the closest scrutiny at all times. . . . The conditions will materially differ were the Bureau to embark upon a policy of investigative activity into conditions which, from a federal standpoint, have not been declared illegal and in connection with which no prosecution might be instituted. The Department and the Bureau would undoubtedly be subject to charges in the matter of alleged secret and undesirable methods . . . as well as to allegations involving charges of the use of "Agents Provocateur."

Hoover assumed that the Immigration Bureau with jurisdiction to deport Communist aliens conducted such investigation and, if it did not, "would be subject to criticism for its laxity along these lines." Thus, the Director's position was not based on opposition to the idea of domestic intelligence itself, but rather on his concern for possible criticism of the Bureau if it were to resume "undercover" activities which would be necessary "to secure a foothold in Communistic inner circles" and "to keep fully informed as to changing policies and secret propaganda on the part of Communists." 61

III. THE ESTABLISHMENT OF A PERMANENT DOMESTIC INTELLIGENCE STRUCTURE, 1936-1945

Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger real or pretended from abroad.

-James Madison, Letter to Thomas Jefferson, May 13,1798

Since 1936 the Federal Bureau of Investigation has been the primary civilian agency charged with domestic intelligence responsibilities. However, the origins of this assignment have been clouded because the memoranda recording President Franklin Roosevelt's first instructions have not previously been made public. These and other directives of the President were described generally in the authorized history of the FBI. 62 But the full texts and other materials shed more light on the circumstances for and consequences of Roosevelt's decisions. The basic orders and agreements governing the relations between the FBI and the military intelligence agencies have also been kept confidential until recent years. 63 Although President Roosevelt's 1940 directive authorizing warrantless wiretapping by the FBI for national security purposes has long been a matter of record, the FBI's practices for breaking-and-entering and clandestine mail opening were closely held secrets. The scope of prewar domestic intelligence and the joint plans of the FBI and the Justice Department for compiling a Custodial Detention List of American citizens have never been publicly examined.

A. The 1936 Roosevelt Directive

In August 1936, President Roosevelt issued the first of a series of instructions establishing the basic domestic intelligence structure and policies for the federal government. The President used his executive authority to determine which of the several competing civilian agencies of the government would carry out domestic intelligence investigations, to set up machinery for coordination between military intelligence and the FBI, and to lay down the general objectives of domestic intelligence going beyond criminal investigation. From the beginning Roosevelt "desired the matter to be handled quite confidentially." 64 When Attorney General Homer Cummings submitted to the President a joint FBI-military plan for domestic intelligence in 1938, he advised that additional legislation was not required and that the plan "should be handled in strictest confidence." The Attorney General enclosed a memorandum prepared by FBI Director J. Edgar Hoover which stated:

In considering the steps to be taken for the expansion of the present structure of intelligence work, it is believed imperative that it be proceeded with, with the utmost degree of secrecy in order to avoid criticism or objections which might be raised to such an expansion by either ill-informed persons or individuals having some ulterior motive .... Consequently, it would seem undesirable to seek any special legislation which would draw attention to the fact that it was proposed to develop a special counterespionage drive of any great magnitude. 65

Thus, the President's orders were kept secret, and Congress was deliberately excluded from the policymaking progress until after war broke out in Europe in 1939. Possibly if President Roosevelt had gone to Congress with a proposal for domestic intelligence in 1936 or 1938, legislation might not have been enacted and the nation's security could have been jeopardized. Perhaps a public announcement of the President's actions would have put the nation's potential adversaries on notice of his intentions. But these benefits must be weighed against the cost to constitutional government of unilateral executive actions directly affecting the rights of citizens.

There were legitimate grounds for concern about the need for domestic intelligence by 1936. Two years earlier the President had ordered the FBI to conduct a more limited intelligence investigation of "the activity of the Nazi movement in this country." The FBI, in cooperation with the Secret Service and the Immigration Bureau, conducted a one-time investigation, described by FBI Director Hoover as "a so-called intelligence investigation." It concentrated on "the Nazi group, with particular reference to the antiracial activities and any anti-American activities having any possible connection with official representatives of the German government in the United States." 66

In January 1936, the Secretary of War advised the Attorney General that there was "definite indication" of foreign espionage in the United States and that in an emergency "some organizations . . . would probably attempt to cripple our war effort through sabotage." He urged the Justice Department to establish "a counterespionage service among civilians to prevent foreign espionage in the United States and to collect information so that in case of an emergency any persons intending to cripple our war effort by means of espionage or sabotage may be taken into custody." 67 - In addition to these foreign-related dangers, President Roosevelt was alerted to right-wing domestic threats. The FBI Director met with retired General Smedley Butler and reported to Roosevelt on "the effort of Father Coughlin to have General Butler lead an expedition to Mexico." 68

The nature of the President's interest is also reflected in the information FBI Director Hoover provided at their crucial meeting in August 1936. Except for a reference to Hoover's previous report on Father Coughlin and General Butler, it dealt exclusively with Communist activities. According to the FBI Director, the West Coast longshoremen's union headed by Harry Bridges "was practically controlled by Communists," the Communists "had' very definite plans to get control of" the United Mine Workers union led by John L. Lewis, and the Newspaper Guild had "strong Communist leanings." Director Hoover's memorandum of his conversation with the President continued:

I told him that my information was that the Communists had planned to get control of these three groups and by doing so they would be able at any time to paralyze the country in that they stop all shipping in and out through the Bridges organization; stop the operation of industry through the Mining Union of Lewis; and stop publication of any newspapers of the country through the Newspaper Guild.

I also related to him the activities which have recently occurred with Governmental service inspired by Communists, particularly in some of the Departments and in the National Labor Relations Board.

I likewise informed him that I had received information to the effect that the Communist Internationale in Moscow had recently issued instructions for all Communists to vote for President Roosevelt and against Governor Landon because of the fact that Governor Landon is opposed to class warfare.

This memorandum indicates that the FBI was already gathering domestic intelligence about Communist activities inside and outside the government. After hearing Director Hoover's report, President Roosevelt expressed a desire for more systematic intelligence about "subversive activities in the United States, particularly Fascism and Communism." He wanted "a broad picture of the general movement and its activities as may affect the economic and political life of the country as a whole." 69 Whether or not the FBI Director exaggerated the threat, no President could afford to ignore such dire warnings without some further investigation.

President Roosevelt clearly understood that Communist and Fascist activities were an international problem tied to potentially hostile foreign governments. At Hoover's suggestion, Secretary of State Cordell Hull met with the President and the FBI Director to review the situation. Hoover's memorandum of this meeting stated:

The President pointed out that both of these movements were international in scope and that Communism particularly was directed from Moscow, and that there had been certain indications that Oumanski, attached to the Russian Soviet Embassy, was a leading figure in some of the activities in this country, so consequently, it was a matter which fell within the scope of foreign affairs over which the State Department would have a right to request an inquiry to be made.

President Roosevelt and Secretary Hull also considered "the making of a protest, either formally or informally, to the Russian Government relative to its interference with affairs in this country." "I Thus, it was the international character of Communism and Fascism that both justified the Secretary of State's request and underlay the President's desire for domestic intelligence. 71

B. The Original Legal Authority for Domestic Intelligence

Despite its secrecy, President Roosevelt's initial request for domestic intelligence investigations did have a degree of statutory authorization. The provision in the Justice Department appropriations statute enacted before World War I allowed the Attorney General to direct the FBI to conduct investigations for the State Department. However, it became clear by 1938 that these investigations would not be terminated; and the President ceased relying on the procedure for State Department requests by mid-1939. Presidential directives issued in 1939 attempted to link domestic intelligence to the investigation of espionage and sabotage, even though the FBI's actual mandate extended beyond the investigation of violations of law to encompass "subversive activities" generally and "counterespionage" operations. These directives created legal confusion which has persisted until the present day. There was no attempt to clarify what domestic intelligence functions were authorized by statute and what functions were based on an implicit claim of inherent presidential power.

J. Edgar Hoover was particularly sensitive to this issue, since Attorney General Stone had ordered that the activities of the Bureau "be limited strictly to investigations of violations of law." 72 President Roosevelt sought to breach that line in 1936. His desire for "a broad picture" of the effects of Communism and Fascism on "the economic and political life of the country as a whole" went far beyond the investigation of violations of law. Nevertheless, Director Hoover advised Roosevelt that there was statutory authority for this type of investigation. Hoover told him that the FBI appropriation contained "a provision that it might investigate any matters referred to it by the Department of State and that if the State Department should ask for us to conduct such an investigation we could do so under our present authority in the appropriation already granted." 73 The President, in turn, told Secretary Hull that the FBI could make "a survey" of Communist and Fascist activities because "under the Appropriation Act this Bureau would have authority to make such investigation if asked to do so by the Secretary of State." 74

Director Hoover's reliance on the specific provision of the apprortions statute meant that FBI domestic intelligence was not initiated solely through an exercise of the President's independent constitutional power. In fact, Attorney General Stone had been aware of the implications of this provision in 1924. 75 AIthough there is no record that Attorney General Stone ever approved this type of inquiry, he clearly contemplated the possibility of at least a closed-end investigation for the State Department.

Thus, in compliance with Hoover's wishes, Secretary Hull "asked that the investigation be made," and the President asked Hoover to "speak to the Attorney General." 76 The FBI Director's memorandum of his conversation with Attorney General Cummings stated:

In talking with the Attorney General today concerning the radical situation, I informed him of the conference which I had with the President on September 1, 1936 [sic], at which time the Secretary of State, at the President's suggestion, requested of me, the representative of the Department of Justice, to have investigation made of the subversive activities in this country, including communism and fascism. I transmitted this request to the Attorney General, and the Attorney General verbally directed me to proceed with this investigation and to coordinate, as the President suggested, information upon these matters in the possession of the Military Intelligence Division, the Naval Intelligence Division, and the State Department. This, therefore, is the authority upon which to proceed in the conduct of this investigation, which should, of course, be handled in a most discreet and confidential manner. 77

These memoranda indicate clearly that Director Hoover was relying on the specific provisions of the appropriations statute. He followed almost to the letter the steps he had described to Attorney General Stone in 1924 as the necessary prerequisites for an investigation of Communist activities.

C. The FBI Intelligence Program, 1936-1938

Instructions were issued to FBI agents immediately after Director Hoover's meetings with the President and the Secretary of State. FBI field offices were ordered "to obtain from all possible sources information concerning subversive activities being conducted in the United States by Communists, Fascists, representatives or advocates of other organizations or groups advocating the overthrow or replacement of the Government of the United States by illegal methods." 78 Theoretically, this directive included purely domestic matters besides the international Communist and Fascist movements. There is no indication, however, that the President or the Attorney General were advised of this order; and the communications between the FBI Director and his superiors made no mention of advocacy of overthrow of the government. Instead, the terms used in 1936 were "general intelligence" and "subversive activities."

Following the Hoover-Roosevelt meetings, FBI officials also began developing a systematic organization for intelligence information "concerning subversive activities." The following general classifications were adopted:

Maritime Industry

Activities in Government Affairs

Activities in the Steel Industry

Activities in the Coal Industry

Activities in the Newspaper Field

Activities in the Clothing, Garment and Fur Industries

General Strike Activities

Activities in the Armed Forces of the United States

Activities in Educational Institutions

General Activities - Communist Party and Affiliated Organizations

Activities of the Fascists

Anti-Fascists Movements

Activities in Organized Labor Organizations

Steps were also taken to determine whether certain individuals were "available for service in the capacity of an informant," "to index the material previously submitted," and to "prepare memoranda dealing individually with those persons whose names appear prominently at the present time in the subversive circles." The Director was to receive daily memoranda on "major developments in any field" of subversive activities. 79

The President's instructions had dealt with relations between the FBI and other federal agencies. At his initial meeting with Hoover, the President said that the Secret Service "had assured him that they had informants in every Communist group," but Roosevelt believed this "was solely for the purpose of getting any information upon plots upon his life." He told Hoover that the Secret Service "was not to be brought in on this investigation as they should confine themselves strictly to the matter of protecting his life and the survey which he desired to have made was on a much broader field." In addition, the President suggested that Hoover "endeavor to coordinate any investigation along similar lines which might be made by the Military or Naval Intelligence Services." 80 The Director told his subordinates that he had advised the Attorney General that he would "coordinate, as the President suggested, information upon these matters in the possession of the Military Intelligence Division, the Naval Intelligence Division, and the State Department." 81

The FBI and military intelligence proceeded along these lines in 1937-1938. The President designated Attorney General Cummings "as Chairman of a Committee to inquire into the so-called espionage situation" in October 1938, and to report on the need for "an additional appropriation for domestic intelligence." The Attorney General advised the President that a "well defined system" was functioning, made up of the FBI, the Military Intelligence Division, and the Office of Naval Intelligence, whose heads were "in frequent contact and are operating in harmony." He recommended that the appropriations be increased by $35,000 each for MID and ONI and by $300,000 for the FBI. He also submitted a plan prepared by Director Hoover in consultation with the military agencies. He observed that "no additional legislation to accomplish the general objectives seems to be required" and that "the matter should be handled in strictest confidence." 82

The FBI Director's memorandum spelled out the reasons why legislation was considered undesirable. Hoover believed the FBI's expansion could "be covered" by the language in the appropriations statute relating to "other investigations" conducted for the State Department: 83

Under this provision investigations have been conducted in years past for the State Department of matters which do not in themselves constitute a specific violation of a Federal Criminal Statute, such as subversive activities. Consequently, this provision is believed to be sufficiently broad to cover any expansion of the present intelligence and counter-espionage work which it may be deemed necessary to carry on....

In considering the steps to be taken for the expansion of the present structure of intelligence work, it is believed imperative that it be proceeded with, with [sic] the utmost degree of secrecy in order to avoid criticism or objections which might be raised to such an expansion by either ill-informed persons or individuals having some ulterior motive. The word 'espionage' has long been a word that has been repugnant to the American people and it is believed that the structure which is already in existence is much broader than espionage or counterespionage, but covers in a true sense real intelligence values to the three services interested, namely, the Navy, the Army, and Justice. Consequently, it would seem undesirable to seek any special legislation which would draw attention to the fact that it was proposed to develop a special counterespionage drive of any great magnitude. 84

Hoover noted that Army and Navy Intelligence did not need additional legislation "since their activities ... are limited to matters concerning their respective services."

The FBI Director reviewed the current and proposed future operations of each of the three intelligence agencies. The FBI had set up a General Intelligence Section to investigate and correlate information dealing with "activities of either a subversive or a so-called intelligence type.'' Each FBI field office had "developed contacts with various persons in professional, business, and law enforcement fields" to obtain this information. The following was a break-down of the subject matter in the Intelligence Section files: "Maritime; government; industry (steel, automobile, coal, mining, and miscellaneous) ; general strikes; armed forces; educational institutions; Fascist; Nazi; organized labor; Negroes; youth; strikes; newspaper field; and miscellaneous." All information "of a subversive or general intelligence character pertaining to any of the above" was reviewed and filed at FBI headquarters, with index cards on individuals which made it possible to identify the persons "engaged in any particular activity, either in any section of the country or in a particular industry or movement." This index then included "approximately 2500 names ... of the various types of individuals engaged in activities of Communism, Nazism, and various types of foreign espionage." In addition, the FBI had "developed a rather extensive library of general intelligence matters, including sixty-five daily, weekly, and monthly publications, as well as many pamphlets and volumes dealing with general intelligence activities." From both investigative sources and research, the FBI from time to time prepared "charts ... to show the growth and extent of certain activities." 85

The Office of Naval Intelligence and the Military Intelligence Division were concerned with "subversive activities that undermine the loyalty and efficiency" of Army and Navy personnel or civilians involved in military construction and maintenance; with sabotage of military facilities or of "agencies contributing to the efficiency" of the military; and with "spy activities that may result in divulgence of information to foreign countries or to persons when such divulgence is contrary to the interests of our national defense." However, MID and ONI lacked trained investigators, and they relied on the FBI "to conduct investigative activity in strictly civilian matters of a domestic character." The three agencies exchanged information of interest to one another, both in the field and at headquarters in Washington.

For the future, all three agencies agreed that other federal agencies should be. excluded from intelligence work since others were "less interested in matters of general intelligence and counter-intelligence" and because "the more circumscribed this program is, the more effective it will be and the less danger there is of its becoming a matter of general public knowledge." The FBI hoped to expand its personnel so that it could assign an agent specializing in intelligence to each of its forty-five field offices and could reopen offices in Hawaii, Alaska, and Puerto Rico. Additional funds would also be used to expand FBI facilities for "specialized training in general intelligence work." 86

Director Hoover met with the President in November 1938 and learned that be had instructed the Budget Bureau "to include in the Appropriations estimate $50,000 for Military Intelligence, $50,000 for Naval Intelligence and $150,000 for the Federal Bureau of Investigation to handle counter-espionage activities." The President also said "that he had approved the plan which [Hoover] had prepared and which had been sent to him by the Attorney General," except for the revised budget figures. 87

D. FBI Intelligence Authority and "Subversion."

There is no evidence that either the Congress in 1916 or Attorney General Stone in 1924 intended the provision of the appropriations statute to authorize the establishment of a permanent domestic intelligence structure. Yet Director Hoover advised the Attorney General and the President in 1938 that the statute was "sufficiently broad to cover any expansion of the present intelligence and counter-espionage work which it may be deemed necessary to carry on." 88 Because of their reluctance to seek new legislation in order to keep the program secret, Attorney General Cummings and President Roosevelt did not question the FBI Director's interpretation. Nevertheless, the President's approval of Director Hoover's 1938 plan for joint FBI-military domestic intelligence was a substantial exercise of independent presidential power.

The precise nature of FBI authority to investigate "subversion" became confusing in 1938-1939. Despite the references in Director Hoover's 1998 memorandum to "subversion," Attorney General Cummings cited only the President's interest in the "so-called espionage situation." 88a, Cummings' successor, Attorney General Frank Murphy, appears to have abandoned the term "subversive activities." 89 Moreover, when Director Hoover provided Attorney General Murphy a copy of his 1938 plan, he described it (without mentioning "subversion") as a program "intended to ascertain the identity of persons engaged in espionage, counter-espionage, and sabotage of a nature not within the specific provisions of prevailing statutes." 91

Moreover, a shift away from the authority of the appropriations provision, which was linked to the State Department's request, became necessary in 1939 when the FBI resisted an attempt by the State Department to coordinate domestic intelligence investigations. Director Hoover urged Attorney General Frank Murphy in March 1939 to discuss the situation with the President and persuade him to "take appropriate action with reference to other governmental agencies, including the State Department, which are attempting to literally chisel into this type of work. . . ." The Director acknowledged that the FBI required "the specific authorization of the State Department" where the subject of an investigation "enjoys any diplomatic status," but he knew of "no instance in connection with the handling of the espionage work in which the State Department has had any occasion to be in any manner or degree dissatisfied with or apprehensive of the action taken by Bureau agents." 91

Director Hoover was also concerned that the State Department would allow other Federal investigative agencies, including the Secret Service and other Treasury Department units, to conduct domestic intelligence investigations. 92 The FBI cited the following example in communications to the Attorney General in 1939:

On the West Coast recently a representative of the Alcohol Tax Unit of the Treasury Department endeavored to induce a Corps Area Intelligence Officer of the War Department to utilize the services of that agency in the handling of all investigations involving espionage, counter-espionage, and sabotage....

A case was recently brought to the Bureau's attention in which a complaint involving potential espionage in a middle western state was referred through routine channels of a Treasury Department investigative agency and delayed in such a manner before reference ultimately in Washington to the office of Military Intelligence and then to the Federal Bureau of Investigation, that a period of some six weeks elapsed .... 93

During a, recent investigation . . . an attorney and Commander of the American Legion Post ... disclosed that a Committee of that Post of the American Legion is conducting an investigation relating to un-American activities on behalf of the Operator in Charge of the Secret Service, New York city. 94

Consequently, at the FBI Director's request, the Justice Department asked the Secret Service, the Bureau of Internal Revenue, the Narcotics Bureau, the Customs Service, the Coast Guard, and the Post Office Department to instruct their personnel that information "relating to espionage and subversive activities" should be promptly forwarded to the FBI. 95

The Justice Department letter did not solve the problem, mainly because of the State Department's continued intervention. Director Hoover advised Attorney General Frank Murphy "that the Treasury Department and the State Department were reluctant to concede jurisdiction" to the FBI and that a conference had been held in the office of an Assistant Secretary of State "at which time subtle protests against the handling of cases of this type in the Justice Department were uttered." Hoover protested this "continual bickering" among Departments, especially "in view of the serious world conditions which are hourly growing more alarming." 96

Two months later the problem remained unresolved. Assistant Secretary of State George S. Messersmith took on the role of "coordinator" of a committee composed of representatives of the War, Navy, Treasury, Post Office, and Justice Departments. The FBI Director learned that under the proposed procedures, any agency receiving information would refer it to the State Department which, after analysis, would transmit the data to that agency which it believed should conduct the substantive investigation. FBI and Justice Department officials prepared a memorandum for possible presentation to the President, pointing out the disadvantages of this procedure:

The inter-departmental committee by its operations of necessity causes delay which may be fatal to a successful investigation. It also results in a duplication of investigative effort ... because of the lack of knowledge of one agency that another agency is working upon the same investigation. The State department coordinator is not in a position to evaluate properly the respective investigative ability of the representatives of particular departments in a manner comparable to that which the men actually in charge of an investigative agency may evaluate the proper merit of his own men. 97

Endorsing this view, Attorney General Murphy wrote the President to urge abandonment of this interdepartmental committee, and "a concentration of investigation of all espionage, counterespionage, and sabotage matters" in the FBI, the G-2 section of the War Department, and the Office of Naval Intelligence. The directors of these agencies would "function as a committee for the purpose of coordinating the activities of their subordinates." To buttress his recommendation, the Attorney General pointed out that the FBI and military intelligence:

... have not only gathered a tremendous reservoir of information concerning foreign agencies operating in the United States, but have also perfected methods of investigation and have developed channels for the exchange of information, which are both efficient and so mobile and elastic as to permit prompt expansion in the event of an emergency.

Murphy stressed that the FBI was "a highly skilled investigative force supported by the resources of an exceedingly efficient, well equipped, and adequately manned technical laboratory and identification division." This identification data, related "to more than ten million persons, including a very large number of individuals of foreign extraction." The Attorney General added, "As a result of an exchange of data between the Departments of Justice, War and Navy, comprehensive indices have been prepared." 98

President Roosevelt agreed to the Attorney General's proposal and sent a confidential directive drafted by FBI and Justice Department officials to the heads of the relevant departments. This June 1939 directive was the closest thing to a formal charter for FBI and military domestic intelligence. It read as follows:

It is my desire that the investigation of all espionage, counterespionage, and sabotage matters be controlled and handled by the Federal Bureau of Investigation of the Department of Justice, the Military Intelligence Division of the War Department, and the Office of Naval Intelligence in the Navy Department. The directors of these three agencies are to function as a committee to coordinate their activities.

No investigations should be conducted by any investigative agency of the Government into matters involving actually or potentially any espionage, counterespionage, or sabotage, except by the three agencies mentioned above.

I shall be glad if you will instruct the heads of all other investigative agencies than the three named, to refer immediately to the nearest office of the Federal Bureau of Investigation any data, information, or material that may come to their notice bearing directly or indirectly on espionage, counterespionage, or sabotage. 99 [Emphasis added.]

The legal implications of this directive are clouded by its failure to use the term "subversive activities" and its references instead to potential espionage or sabotage and to information bearing indirectly on espionage or sabotage. This language may have been an effort by the Justice Department and the FBI to deal with the problem of legal authority posed by the break with the State Department. Since the FBI no longer wanted to base its domestic intelligence investigations on State Department requests, some other way had to be found to retain a semblance of congressional authorization. Yet the scope of the FBI's assignment made this a troublesome point. In 1936, President Roosevelt had wanted intelligence about Communist and Fascist activities generally, not just data bearing on potential espionage or sabotage; and the 1938 plan provided for the FBI to investigate "activities of either a subversive or a so-called intelligence type." 100 There is no indication that the President's June 1939 directive had the intent or effect of limiting domestic intelligence to the investigation of violations of law.

Consistent with the FBI Director's earlier desires, these arrangements were kept secret until September 1939 when war broke out in Europe. At that time Director Hoover decided that secrecy created more problems than it solved, especially with regard to the activities of local law enforcement. He learned that the New York City Police Department had "created a special sabotage squad of fifty detectives ... and that this squad will be augmented in the rather near future to comprise 150 men." There had been "considerable publicity" with the result that private citizens were likely to transmit information concerning sabotage "to the New York City Police Department rather than to the FBI." Calling this development to the attention of the Attorney General, the Director strongly urged that the President "issue a statement or request addressed to all police officials in the United States" asking them to turn over to the FBI "any information obtained pertaining to espionage, counterespionage, sabotage, and neutrality regulations." 101

A document to this effect was immediately drafted in the Attorney General's office and dispatched by messenger to the White House with a note from the Attorney General suggesting that it be issued in the form of "a public statement". In recording his discussion that day with the Attorney General's assistant, Alexander Holtzoff, FBI official E. A. Tamm referred to the statement as "an Executive Order". Tamm also talked with the Attorney General regarding "the order":

Mr. Murphy stated that when he was preparing this he tried to make it as strong as possible. He requested that I relay this to Mr. Hoover as soon as possible and stated he knew the Director would be very glad to hear this. Mr. Murphy stated he prepared this on the basis of the memorandum which the Director forwarded to him. 103

The President's statement (or order or Executive Order) read as follows:

The Attorney General has been requested by me to instruct the Federal Bureau of Investigation of the Department of Justice to take charge of investigative work in matters relating to espionage, sabotage, and violations of the neutrality regulations.

This task must be conducted in a comprehensive and effective manner on a national basis, and all information must be carefully sifted out 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 United States promptly to turn over to the nearest representative of the Federal Bureau of Investigation any information obtained by them relating to espionage, counterespionage, sabotage, subversive activities and violations of the neutrality laws. 104

The statement was widely reported in the press, along with the following remarks by Attorney General Murphy at a news conference held the same day:

Foreign agents and those engaged in espionage will no longer find this country a happy hunting ground for their activities. There will be no repetition of the confusion and laxity and indifference of twenty years ago.

We have opened many new FBI offices throughout the land. Our men are well prepared and well trained. At the same time, if you want this work done in a reasonable and responsible way it must not turn into a witch hunt. We must do no wrong to any man.

Your government asks you to cooperate with it. You can turn in any information to the nearest local representative of the Federal Bureau of Investigation. 105

Three weeks later Murphy reiterated that the government would "not act on the basis of hysteria." He added, "Twenty years ago inhuman and cruel things were done in the name of justice; sometimes vigilantes and others took over the work. We do not want such things done today, for the work has now been localized in the FBI." 106

Two days after issuing the FBI statement, President Roosevelt proclaimed a national emergency "in connection with and to the extent necessary for the proper observance, safeguarding, and enforcing of the neutrality of the United States and the strengthening of our national defense within the limits of peacetime authorizations." The proclamation added, "Specific directions and authorizations will be given from time to time for carrying out these two purposes." 107

Thereupon, he issued an Executive Order directing the Attorney General to "increase the personnel of the Federal Bureau of Investigation, Department of Justice, in such number, not exceeding 150, as he shall find necessary for the proper performance of the additional duties imposed upon the Department of Justice in connection with the national emergency." 108 President Roosevelt told a press conference that the purpose of this order expanding the government's investigative personnel was to protect the country against "some of the things that happened" before World War I:

There was sabotage; there was a great deal of propaganda by both belligerents, and a good many definite plans laid in this country by foreign governments to try to sway American public opinion.... It is to guard against that, and against the spread by any foreign nation of propaganda in this country which would tend to be subversive -- I believe that is the word -- of our form of government. 109

President Roosevelt never formally authorized the FBI or military intelligence to conduct domestic intelligence investigations of "subversive activities," except for his oral instruction in 1936 and 1938. His written directives were limited to investigations of espionage, sabotage, and violations of the neutrality regulations. Nevertheless, the President clearly knew of and approved informally the broad investigations of "subversive activities" carried out by the FBI.

President Roosevelt did use the term "subversive activities" in a directive to Attorney General Robert Jackson on wiretapping in 1940. This directive referred to the activities of other nations "engaged in the organization of propaganda of so-called "fifth columns" and in "preparation for sabotage." The Attorney General was directed to authorize wiretapping "of persons suspected of subversive activities against the Government of the United States, including suspected spies." The President also instructed that such wiretaps be limited "insofar as possible to aliens." 110

With respect to investigations generally, however, the confusion as to precisely what President Roosevelt authorized is indicated by Attorney General Francis Biddle's description of FBI jurisdiction in 1942 and by a new Presidential statement in 1943. Biddle issued a lengthy order defining the duties of the various parts of the Justice Department in September 1942. The pertinent section relating to the FBI stated that it had a duty to "investigate" criminal offenses against the United States and to act as a "clearing house" for the handling of "espionage, sabotage, and other subversive matters." 111 This latter "clearing-house" function was characterized as a duty to "carry out" the President's directive of September 6, 1939.

Four months later, President Roosevelt renewed his public appeal for "police cooperation" and added a request that "patriotic organizations" cooperate with the FBI. This statement described his September 1939 order as granting "investigative" authority to the FBI and not simply a "clearing-house" function. However, the President defined that authority as limited to "espionage, sabotage, and violation of the neutrality regulations" without any mention of "subversion." 113

The statement was consistent with Attorney General Biddle's internal directive later in 1943 that the Justice Department's "proper function" was "investigating the activities of persons who may have violated the law." 114 A similar problem is involved with the authority for "counterespionage" operations by the FBI and military intelligence. President Roosevelt's confidential order of June 1939 explicitly authorized the FBI and military intelligence to handle counterespionage matters, and the 1938 plan used the terms "counter-espionage" and "counterintelligence." However, none of the President's public directives formally authorized counterespionage measures going beyond investigation; and the Justice Department's regulations made no reference to this responsibility.

E. Congress and FBI Intelligence

Congress accepted this executive action as a necessary and inevitable measure to cope with the emergency conditions arising from the war in Europe.

In November 1939, FBI Director Hoover linked FBI intelligence to both the President's September 6 statement and his September 8 proclamation and order during testimony on an emergency supplemental appropriation bill. He told the House Appropriations Committee that establishment of a General Intelligence Division "was made necessary by the President's proclamation directing that all complaints of violations of the national defense statutes and proclamations be reported to the Federal Bureau of Investigation." When asked "by what authority" the FBI was expending funds for intelligence work beyond its existing appropriation, Hoover replied, "By authority of the President's proclamation directing the Attorney General to authorize an increase in the staff of the Federal Bureau of Investigation by 150 special agents and such additional clerical personnel and equipment as would be needed." 115 The following exchange then took place between Congressman Woodrum and the Director:

Mr. WOODRUM. Will these additional people be kept on through the next fiscal year?

Mr. HOOVER. If the emergency continues.

Mr. WOODRUM. If the emergency does not continue you anticipate the force will be reduced?

Mr. HOOVER. Yes. For instance, we have opened 10 new field offices to conduct this work in various parts of the country. We opened another office in Savannah, one in Baltimore, one at Albany, in manufacturing and shipping centers as well as points wherein huge naval bases are maintained.

Mr. WOODRUM. And if the emergency ceases the need for the additional force will cease?

Mr. HOOVER. Yes.

Director Hoover also pointed out that this expansion would increase the number of FBI agents from 797 to 947. 116 In his next appearance before the Appropriations Committee, the Director dropped reference to the President's proclamation of emergency and relied for his "authority" on the "formal statement" of September 6 which he described as "directing that there be coordinated under the Federal Bureau of Investigation all the matters of investigative work relating to espionage, sabotage, and violations of the neutrality regulations, and any other subversive activities." 117

Six months later the Director told the Appropriations Committee that the FBI had a National Defense Division to "handle and direct all investigations dealing with espionage, sabotage, national-defense matters, and violations of the neutrality statutes." He once again cited the President's "order of September 6, 1939," saying that it "directed the Bureau to coordinate the functions on national defense matters in intelligence work." 118 In early 1941, Director Hoover had this exchange with members of the Appropriations Committee:

Mr. LUDLOW. At the close of the present emergency, when peace comes, it would mean that such of this emergency work necessarily will be discontinued.

Mr. HOOVER. This is correct.

Mr. TABER. Is your set-up for the national-defense work separate from the other work?

Mr. HOOVER. It is.

Mr. TABER. Is it operated as a separate division?

Mr. HOOVER. Yes. In the field our field offices are under instructions to utilize approximately 50 percent of the personnel on national defense work and the other 50 percent on the regular work.

Mr. TABER. But if some rush comes up, you might have to vary that?

Mr. HOOVER. That is correct.

Mr. TABER. According to the situation.

Mr. HOOVER. According to the emergency that might arise. If the national emergency should terminate, the structure dealing with national defense can immediately be discontinued or very materially curtailed according to the wishes of Congress.

The FBI was seeking a deficiency appropriation for "700 additional field agents, 500 of whom would be used on national defense investigations, and 200 on the investigation of violations of the Selective Service Act." 119

The FBI Director's appropriations testimony in 1939 and 1940 spelled out certain aspects of FBI intelligence programs and policies. The Director stated in 1939 that the General Intelligence Division had "compiled extensive indices of individuals, groups, and organizations engaged in . . . subversive activities, in espionage activities, or any activities that are possibly detrimental to the internal security of the United States." Hoover added,

These indexes have been arranged not only alphabetically but also geographically, so that at any time, should we enter into the conflict abroad, we would be able to go into any of these communities and identify individuals and groups who might be a source of grave danger to the security of this country. Their backgrounds and activities are known to the Bureau. These indexes will be extremely important and valuable in grave emergency.

The FBI had established a translation section "to review various foreign-language material" and a code section for "decoding any messages which we are able to intercept or obtain." With the agreement of military intelligence, the FBI also handled the protection of defense plants and advised industry officials on security measures. 120 The FBI Director reiterated these points in early 1940, adding that military and naval intelligence were "conducting no investigations in matters other than those connected with the military forces." He described the "general index" as being "available ... so that in the event of any greater emergency . . . we will be able to locate immediately these various persons who may need to be the subject of further investigation by the Federal authorities." 121 Later in 1940 the Director said that the "general intelligence index" included the names of persons "who may become potential enemies to our internal security, such as known espionage agents, known saboteurs, leading members of the Communist Party, and the bund.'' The last referred to various pro-Nazi organizations of German-Americans. 122

There was one important side effect of the confused legal basis for domestic intelligence. It allowed the Attorney General to deflect criticism of the FBI from another congressional source in 1940. Since the President's formal public directive could be construed as simply designating the FBI to take charge of the investigation of espionage, sabotage, and neutrality violations, Attorney General Robert Jackson was able to respond to criticism from Senator George Norris by declaring:

Mr. Hoover is in agreement with me that the principles which Attorney General Stone laid down in 1924 when the Federal Bureau of Investigation was reorganized and Mr. Hoover appointed as Director are sound, and that the usefulness of the Bureau depends upon a faithful adherence to those limitations.

The Federal Bureau of Investigation will confine its activities to the investigation of violation of Federal statutes, the collecting of evidence in cases in which the United States is or may be a party in interest, and the service of process issued by the courts. 123

Attorney General Jackson may have hoped to circumscribe FBI domestic intelligence within these limits, but the program developed in 1936-1939 went far beyond them. Consequently, the Attorney General's statement was at best a misleading description of executive policy.

Congress did have an opportunity in 1940 to enact a basic legislative charter for FBI intelligence. Representative Emmanuel Celler introduced a joint resolution which provided:

That the Federal Bureau of Investigation of the Department of Justice be authorized and directed to conduct investigations, subject to the direction of the Attorney General, to ascertain, prevent, and frustrate any interference with the national defense by sabotage, treason, seditious conspiracy (as defined in 18 U.S.C. 6), espionage, violations of the neutrality laws, or in any other manner.

The resolution would have permitted FBI wiretapping for these purposes under the specific authorization of the Attorney General. 124 The measure was endorsed by Attorney General Robert Jackson, but it was not passed. Consequently, except for the FBI Director's appropriations testimony, Congress played no role in authorizing the establishment of domestic intelligence operations.

Instead, Congress enacted two general statutes to deal with "subversive activities". The Smith Act of 1940 made it a federal crime to urge military insubordination or advocate the violent overthrow of the government. 125 And the Voorhis Act of 1941 required the registration of all "subversive" organizations having foreign links and advocating the violent overthrow of the government. 126 The Smith Act has been described as containing "the most drastic restrictions on freedom of speech ever enacted in the United States during peace." It was passed with little publicity and only brief floor debate as part of the Alien Registration Act of 1940, which appeared to most observers to deal only with fingerprinting foreigners. 127

The Smith Act and the Voorhis Act, along with the previously enacted Foreign Agents Registration Act of 1938, offer an insight into the way threats to domestic security were perceived before World War II. The Foreign Agents Registration Act was the product of an investigation of pro-Nazi and Communist activities by the Special House Committee on Un-American Activities headed by Representatives John McCormack and Samuel Dickstein in 1935-1936. The Committee's principal recommendation was legislation requiring the registration of foreign agents disseminating propaganda in the United States. 128 The Smith Act and the Voorhis Act carried this idea beyond "foreign agents". Thus, the Smith Act has been authoritatively described in the following terms: "From its inception this act was intended to combat and resist the organization of Fascist and Communist groups owing allegiance to foreign governments whose operations and activities were clearly contrary and dangerous to the Government of the United States." 129

In other words, the danger to domestic security was understood as including American citizens whose political activities might lead them to serve the interests of opposing nations. Attorney General Jackson used the term "Fifth Column" in 1940 to characterize "that portion of our population which is ready to give assistance or encouragement in any form to invading or opposing ideologies." He told a conference of state officials that the FBI's intelligence mission involved "steady surveillance over individuals and groups within the United States who are so sympathetic with the systems or designs of foreign dictators as to make them a likely source of federal law violation." 130

The assumption that such persons and organizations posed a direct and immediate threat to the nation's security was not seriously questioned, although there was disagreement over the need for criminal prosecution or registration of "subversives" because of their political advocacy. Attorney General Jackson could endorse FBI domestic intelligence surveillance at the same time as he warned against prosecution of "subversive activity." It was a dangerous concept, Jackson told federal prosecutors, because there were "no definite standards to determine what constitutes a 'subversive activity,' such as we have for murder or larcency." Attorney General Jackson added,

Activities which seem benevolent or helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as "subversive" by those whose property interests might be burdened thereby. Those who are in office are apt to regard as "subversive" the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term "Republican" and the term "Democrat" were epithets with sinister meaning to denote persons of radical tendencies that were "subversive" of the order of things then dominant. 131

However, political organizations directly controlled by a potential enemy nation were considered to be different, especially when war was already underway in Europe. Germany and the Soviet Union (who, it should be remembered, were allied by treaty in 1939-1941) directed the international Nazi and Communist movements with well-organized followings in the United States.

In his effort to discourage prosecutions and to persuade the nation that FBI intelligence could handle any threats, Attorney General Jackson failed to acknowledge the risks to individual rights from unregulated federal surveillance. With no clear legislative or executive standards to keep it within the intended bounds, the FBI (and military intelligence in its sphere) had almost complete discretion to decide how far domestic intelligence investigations would extend. Only in retrospect as a Justice of the Supreme Court did Robert Jackson recognize these dangers. Shortly before his death in 1954 he wrote:

I cannot say that our country could have no central police without becoming totalitarian, but I can say with great conviction that it cannot become totalitarian without a centralized national police. . . . All that is necessary is to have a national police competent to investigate all manner of offenses, and then, in the parlance of the streets, it will have enough on enough people, even if it does not elect to prosecute them, so that it will find no opposition to its policies. Even those who are supposed to supervise it are likely to fear it. I believe that the safeguard of our liberty lies inlimiting any national policing or investigative organization, first of all to a small number strictly federal offenses, and second to nonpolitical ones. The fact that we may have confidence in the administration of a federal investigative agency under its existing head does not mean that it may not revert again to the days when the Department of Justice was headed by men to whom the investigative power was a weapon to be used for their own purposes. 132 [Emphasis added.]

F. The Scope of FBI Domestic Intelligence

A central feature of the FBI domestic intelligence program authorized by President Roosevelt was its broad investigative scope. The breadth of intelligence-gathering most clearly demonstrates why the program could not have been based on any reasonable interpretation of the power to investigate violations of law. The investigations were built upon a theory of "subversive infiltration" which remained an essential part of domestic intelligence thereafter. This theory persisted over the decades in the same way the Roosevelt directives continued in effect as the basis for legal authority. Moreover, there was a direct link between the policy of investigating "subversive" influence and the reliance on inherent executive power. The purpose of such investigations was not to assist in the enforcement of criminal laws, but rather to supply the President and other executive officials with information believed to be of value for making decisions and developing governmental policies. This "pure intelligence" function was precisely what President Roosevelt meant when he asked for "a broad picture" of the impact of Communism and Fascism on American life.

A second purpose for broad domestic intelligence investigations was to compile an extensive body of information for use in the event of an emergency or actual war. This information would supply the basis for taking preventive measures against groups or individuals disposed to interfere with the national defense effort. If such interference might take the form of sabotage or other illegal disruptions of defense production and military discipline, the collection of preventive intelligence was related to law enforcement. But the relationship was often remote and highly speculative, based on political affiliations and group membership rather than any tangible evidence of preparation to commit criminal acts. As the likelihood of American involvement in the war moved closer, preventive intelligence investigations focused on whether individuals should be placed on a Custodial Detention List for possible arrest in case of war. This program was developed jointly by the FBI and a special Justice Department unit in 1940-1941.

These two objectives -- "pure intelligence" and preventive intelligence -- were closely related to one another. Investigations designed to produce information about subversive infiltration also identified individuals thought potentially dangerous to the country's security. Likewise, investigations of persons alleged to be security threats contributed to the overall domestic intelligence picture.

Internal FBI instructions described the scope of surveillance in detail. On September 2, 1939, all FBI field offices were ordered to review their files and secure information from "reliable contacts" in order to prepare reports on "persons of German, Italian, and Communist sympathies," as well as other persons "whose interest may be directed primarily to the interest of some other nation than the United States." Such information included "a list of the subscribers" and officers of all German and Italian language newspapers in the United States, language newspapers published by the Communist Party or "its affiliated organizations," and both foreign and English language newspapers "of pronounced or notorious Nationalistic sympathies." FBI offices were also instructed to identify members of all German and Italian societies, "whether they be of a fraternal character or of some other nature," and of "any other organization, regardless of nationality, which might have pronounced Nationalistic tendencies." 133

In October 1939 the FBI was investigating the Communist Party and the German American Bund, using such techniques as "the employment of informants," "research into publications," "the soliciting and obtaining of assistance and information from political emigres, and organizations which have for their purpose the maintenance of files of information bearing upon this type of study and inquiry," and "the attendance of mass meetings and public demonstrations." The compilation of information on other organizations and groups "expressing nationalist leanings" continued pursuant to the September 1939 instructions. In addition, the FBI was conducting "confidential inquiries" regarding "the various so-called radical and fascist organizations in the United States" for the purpose of identifying their "leading personnel, purposes and aims, and the part they are likely to play at a time of national crisis." 134

In November 1939, the FBI began preparing a list of specific individuals "on whom information is available indicating strongly that [their] presence at 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 list, comprised persons "with strong Nazi tendencies" and "with strong Communist tendencies." The citizenship status of each individual was determined, and cards prepared summarizing the reasons for placing him on the list. 135

FBI field offices were instructed to obtain information on such persons from "public and private records, confidential sources of information, newspaper morgues, [sic] public libraries, employment records, school records, et cetera." FBI agents were to keep the purpose of their inquiries "entirely confidential" and to reply to questions by stating as a cover that the investigation was being made in connection with "the Registration Act requiring agents of foreign principals to register with the State Department." 136 FBI headquarters supervisors divided the list into two categories:

Class #1. Those to be apprehended and interned immediately upon the outbreak of hostilities between the Government of the United States and the Government they serve, support, or owe allegiance to.

Class #2. Those who should be watched carefully at and subsequent to the outbreak of hostilities because their previous activities indicate 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. 137

This program was described as a "custodial detention" list in June 1940, and field offices were again instructed to furnish information on persons possessing "Communistic, Fascist, Nazi or other nationalistic background." 138

The primary subjects of FBI intelligence surveillance under this program in mid-1940 were active Communists (including Communist candidates for public offices, party officers and organizers, speakers at Communist rallies, writers of Communist books or articles, individuals "attending Communistic meetings where revolutionary preachings are given," Communists in strategic operations "or holding any position of potential influence," and Communist agitators who participate "in meetings or demonstrations accompanied by violence"), all members of the German American Bund and similar organizations, Italian Fascist organizations, and American Fascist groups such as "Silver Shirts, Ku Klux Klan, White Camelia, and similar organizations." 139 Director Hoover summarized these "subversive activities" in a memorandum to the Justice Department:

the holding of official positions in organizations such as the German-American Bund and Communist groups; the distribution of literature and propaganda favorable to a foreign power and opposed to the American way of life; agitators who are adherents of foreign ideologies who have for their purpose the stirring up of internal strike [sic], class hatreds and the development of activities which in time of war would be a serious handicap in a, program of internal security and national defense . . . 140

Director Hoover claimed publicly in 1940 that advocates of foreign "isms" had "succeeded in boring into every phase of American life, masquerading behind front organizations." 141 Intelligence about "front" groups was transmitted to the White House. For example, in 1937 the Attorney General had sent an FBI report on a proposed pilgrimage to Washington to urge passage of legislation to benefit American youth. The report stated that the American Youth Congress, which sponsored the pilgrimage, was understood to be strongly Communistic. 142 Later reports in 1937 described the Communist Party's role in plans by the Workers Alliance for nationwide demonstrations protesting the plight of the unemployed, as well as the Alliance's plans to lobby Congress in support of the federal relief system. 143

FBI investigations and reports (which went into Justice Department and FBI permanent files) covered entirely lawful domestic political activities. For example, one local group checked by the Bureau was called the League for Fair Play, which furnished "speakers to Rotary and Kiwanis Clubs and to schools and colleges." The FBI reported in 1941 that:

the organization was formed in 1937, apparently by two Ministers and a businessman for the purpose of furthering fair play, tolerance, adherence to the Constitution, democracy, liberty, justice, understanding and good will among all creeds, races and classes of the United States.

A synopsis of the report stated, "No indications of Communist activities." 144 In 1944 the FBI prepared a more extensive intelligence report on an active political group, the Independent Voters of Illinois, apparently because it was the target of Communist "infiltration." The Independent Voters group was reported to have been formed:

for the purpose of developing neighborhood political units to help in the re-election of President Roosevelt and the election of progressive congressmen. Apparently, IVI endorsed or aided Democrats for the most part, although it was stated to be "independent". It does not appear that it entered its own candidates or that it endorsed any Communists. IVI sought to help elect those candidates who would favor fighting inflation, oppose race and class discrimination, favor international cooperation, support a "full-employment program," oppose Fascism, etc. 145

Thus, the Bureau gathered data about left-liberal groups in its search for subversive "influence." At the opposite end of the political spectrum, the activities of numerous right-wing groups like the Christian Front and Christian Mobilizers (followers of Father Coughlin), the American Destiny Party, the American Nationalist Party, and even the less extreme "America First" movement were reported by the FBI. 146

The Bureau even looked into a Bronx, New York, child care center which was "apparently dominated and run" by Communists to determine whether it was being used as a "front" for carrying out the Communist program. 147

One example, of the nature of continuing intelligence investigations is the FBI's reports on the NAACP. The Washington, D.C. Field Office opened the case in 1941 because of a request from the Navy Department for an investigation of protests against racial discrimination in the Navy by "fifteen colored mess attendants." FBI agents used an informant to determine the NAACP's "connections with the communist part and other communist controlled organizations." 148

FBI headquarters sent a request to the Oklahoma City Field Office in August 1941 for an investigation of "Communist Party domination" of the NAACP in connection with the development of "Nationalistic Tendency Charts." The field office report concluded, on the basis of an informant's reports, "that there is a strong tendency for the NAACP to steer clear of Communistic activities. Nevertheless, there is a strong movement on the part of the Communists to attempt to dominate this group through an infiltration of Communistic doctrines. Consequently, the activities of the NAACP will be closely observed and scrutinized in the future." 149

FBI informants subsequently reported on NAACP conferences at Hampton, Virginia, in the fall of 1941 and at Los Angeles in the summer of 1942. These investigations were conducted "to follow the activities of the NAACP and determine further the advancement of the Communist group has made into that organization." 150 Similar reports came to headquarters from field offices in Richmond, Virginia; Springfield and Chicago, Illinois; Boston, Massachusetts; Oklahoma City, Oklahoma; Indianapolis, Indiana; Savannah, Georgia; and Louisville, Kentucky, in 1942-1943. Informants were used to report on efforts "to place before the NAACP certain policies or ideas which . . . may be favorable to the Communist Party." 151 An informant attended an NAACP convention in South Carolina in June 1943 and reported on his conversations with NAACP counsel Thurgood Marshall. The informant believed that Marshall was "a loyal American" and "would not permit anything radical to be done." 152

Informants for the Oklahoma City Field Office reported on Communist efforts to "infiltrate" the NAACP and advised that the Communist Party would "be active" at a forthcoming NAACP conference. 153 On the other hand, an informant for the Chicago office reported "no evidence that there is any Communist infiltration in the Chicago branch." 154 And informants for the Detroit office advised that there were "numerous contacts by the CP members and NAACP members, some collaboration on issues which affect negroes, presence of CP members at NAACP meetings, interest of CP in NAACP, but no evidence of CP control." 155

FBI investigation of the NAACP reflected in these and other reports to headquarters produced massive information in Bureau files about the organization, its members, their legitimate activities to oppose racial discrimination, and internal disputes within some of the chapters. One thirty-five page report contained the names of approximately 250 individuals and groups, all indexed in a table of contents. 156 The reports and their summaries contained little if any information about specific activities or planned activities in violation of federal law.

The scope of the information compiled through these investigations of alleged Communist "infiltration" is indicated by an FBI estimate that by 1944 "almost 1,000,000 people knowingly or unknowingly had been drawn into Communist Front activity."

G. The Custodial Detention Program

The epitome of preventive intelligence was the Custodial Detention Program established by the FBI and the Justice Department in 1940-1941. It should not be confused with the internment of Japanese-Americans in 1942. Both the FBI and military intelligence opposed the massive infringement of human rights which occurred in 1942 when 112,000 Japanese and Japanese-Americans were placed in detention camps -- a decision made by President Roosevelt and ratified by the Congress. The authoritative histories stress the crucial influence of the Army's Provost Marshal General and his "empire-building" machinations, especially in reaction to a pre-war decision transferring responsibility for alien enemy internment to the Justice Department. 158

The mass detention of American citizens solely on the basis of race was exactly what the Custodial Detention Program was designed to prevent. Its purpose was to enable the government to make individual decisions as to the dangerousness of enemy aliens and citizens who might be arrested in the event of war. Moreover, when the program was implemented after Pearl Harbor, it was limited to dangerous enemy aliens; and the plans for internment of potentially dangerous American citizens were never carried out.

The most significant aspects of the Custodial Detention Program bear upon the relationship between the FBI and the Attorney General. Director Hoover opposed Attorney General Robert Jackson's attempt in 1940 to require Departmental supervision; and when Attorney General Francis Biddle abolished the Custodial Detention List in 1943, the FBI Director did not comply with his order.

Director Hoover asked Attorney General Jackson in June 1940 for policy guidance "concerning a suspect list of individuals whose arrest might be considered necessary in the event the United States becomes involved in war." 159 Secretary of War Henry L. Stimson advised the Attorney General in August that the War Department had emergency plans providing "for the custody of such alien enemies as may be ordered interned" and suggested that they be discussed between military and Justice Department officials. 160 To deal with these matters, Attorney General Jackson assigned responsibility to the head of a newly created Neutrality Laws Unit in the Justice Department. This Unit was later renamed the Special War Policies Unit and undertook Departmental planning for the war, as well as analysis and evaluation of FBI intelligence reports and the review of names placed on the Custodial Detention List.

The FBI Director initially resisted the plan for Justice Department supervision. He told the head of the Special Unit that the Department's program created "the very definite possibility of disclosure of certain counter-espionage activities." 161 Hoover added,

The personnel which would handle this work upon the behalf of the Department ... should be selected with a great deal of care. We in the FBI have endeavored to assure the utmost secrecy and confidential character of our reports and records. To turn over to the Department this great collection of material in toto ... means that the Department must assume the same responsibility for any leaks or disclosure which might be prejudicial to the continued internal security of our country. Obviously, the identity of many of our confidential informants will become known to such personnel.... The life and safety of these informants are at stake if their identities should become known to any outside persons.

Hoover also feared that if the Department took any overt administrative action or prosecution, "the identity of confidential informants now used by the Bureau would become known." This would "cut off that source of information in so far as continued counter-espionage might be concerned in that case." He claimed that if the Attorney General approved the plan, it would mean the Justice Department was "ready to abandon its facilities for obtaining information in the subversives field." 162

Attorney General Jackson refused to give in to the FBI Director. After five months of negotiation, the FBI was ordered to transmit its "dossiers" to the Justice Department Unit. 163 To satisfy the FBI's conce