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CHURCH COMMITTEE REPORTS
23
B. ESTABLISIIIXG A PEIDIANEXT DmIESTIC INTELLIGENCE
STRC:CTUHE: 1936-Hl4[)
1. Bac1cgl'ound: The Stone Standard
The first substantial domestic intelligence programs of the federal
gonrnmrnt ,,'ere established during ,Vorld ,Val' 1.
The .Justice Department's Bureau of Investigation (as the FBI
was then known), military intelligence. other federal investigative
agencirs. and the ,'olunteer American Protecti"e League were involved
in these programs.3 In the period imme(liately following ,Vorld ,Val'
1, the Bureau of Investigation took part in the notorious Palmer Raids
and other activities against persons characterized as "sub,'ersive." 4
Harlan Fiske Stone, who became Attorney General in 1924, described
the conduct of Justice Department and the Bureau of Investigation
before he took office as "lawless, maintaining many activities which
were. without any authority in federal statutrs, and engaging in many
practices which ,vere brutal and tyrannical in the extreme." 5
Fearing that the investigative activities of the Burrau could invade
privacy and inhibit political freedoms, Attorney General Stone
announced:
There is always the posibility that a secret police may become
a menace to free government and free institutions,
because it carries with it the possibility of abuses of power
which are not always quickly apprrhended or understood.
. . . It is important that its aetiyitirs be strictly limited to the
performance of those functions for which it was created and
that its agrnts themselves be not aboye the law or beyond its
reach.... The Bun'au of Investigation is not concerned with
political or other opinions of individuals. It is concerned only
with their conduct and then onlv with such conduct as is rorbidden
by the laws of the United States. When a police system
passes beyond these limits, it is dangerous to the proper
administration of justice and to human liberty, which it
should be our first concern to cherish.6
,Vhen Stone appointed .r. Edgar Hoover as Acting Director or the
Bureau of Inn'stigation, he instrlldpd Hoonw to a<1here to this
standard:
The activities or the Bureau are to be limited strictly to investigations
of violations of law, under my direction or under
3 Sf'f' Joan Jensen. The Price ()f Yillilance (Chicago: Rand l\Ic~any, 1968).
One FBI official recalled later. "There were prohably ~even or eight ~uch active
organization~operating at full force ouring war (lay~ and it wa~ not an uncommon
experience for an Agent of thi~ Bureau to ca1l upon an individual in the course
of hi~ inve~tigation, to find out that six or seven other Gm'ernment agencies had
heen around to inten-iew the party about the ~ame matter." (l\Iemorandum of
F. X. O'DonnelL Subject: Operation~ Durin~ "'arId War I. 10/4/38).
• Ree footnote 1. p. 21.
• Letter from .Ju~tice Harlan Fi~ke Stone to Jack Alexander. !)/21/~7, cited in
Alpheus T. l\Iason, Harlan Fisl;e Stone: Pillar of the Law (Xew York, Viking,
1!);;(l), p. 14!l.
• New York Times, 5/10/24.
24
the direction of an Assistant Attorney General regularly conducting
the ,york of the Department of .Tustice!
Nm'ertheless, beginning in the mid-thirties. at 'White House direction,
the FBI reentered the realm of collecting intelligence about ideas and
associations.
2. Main Deve70pments of the 1.936-1.94-5 PeTiocl
In the years preceding ,Yorld ,Yar II. domestic intelligence activities
,yere reinstituted. rxpande(1. and institutionalized. Based upon
vague and confliding orders to inwstigate the undefined areas of
"sllbnrsion" and "potrntial crimes" related to national security, the
FBI commenced a broad intelligence program. The FBI was authorized
to preempt the field, althongh the military engagcd in some innstigation
of ci,'ilians.
TI1P FBI's domestic intelligcncc jurisdiction wrnt be:vond investigations
of crime to include a vague mandate to innstigate foreign in"
olwment in American affairs. In the exercise of this jurisdictional
authority, the Hureau began to innstigate la,Y abiding domestic
,vroups and indidduals: its program ,,'as also open to misuse for
political pmposrs. The most intrusin intelligrncr techniques-initially
used to nwet \vartime exigencics-\yere basel] on '1uestionahle
stfltutory interpretfltion. or 1f!.cke(] any formallegfll authorization.
The executive intentionally kept the issue of donwstic intelligence[!
atllf'ring luvay from the Congress until 1030. and thereafter the
Congress appears to han deliberately declinee] to confront the issue.
The FBI gencrally complied ,vith the Attorncy Genrral's policirs.
bnt bpgan to resist .Tusticp Dppartnwnt review of its activities. On one
occasion. the Bureau appears to have disregarded an Attorney GenpraJ's
policy dirpctin.
However important these devplopments were in themselws. the pndming
significance of this perioe] is that it opened the institutional
door to greater excesses in later years.
3. Domestic Intelligence Authority: Vague and Conflicting ExcC'util'e
OTdeTs
The executive orders upon which the Bureau based its intelligence
acti\'ity in the decadf' brfore ,Yodd ,Yal' II were yague and conflicting.
By using \yords likr "su!Jn'rsion"-u trrm which was never
definrd-and by permitting the innstigation of "potf'ntial" crimes,
and mattrrs "not 'Yithin the specific proyisions of lll'eyailing statutrs·'.
the foundation \YflS laid for excessin inti'lligrncr gathering about
Americans. .
7 Stone to Hoo,er, 5/13/24. quoted in )Ia~on. Harlan Fi8h" Stone. at p. 151Although
Hom'er had ~en-ed a~ hean of the Genpral Intelligence Did~ion of the
.Tu~tice Department at the time of the "Pl11rner Rl1irl~" nnd he{,'lme an As~i~tant
Director of the Burpau in 1921. he ppr~uaded Attorney Gpneral Stone and ROlrer
Baldwin of the AnlPrican Civil Lihertie~ rnion that he had pla,\,pd an "unwilling
part" in t1H' PX('p~~p~ of the pa~t, and hp a!!1'Ppd to di~hand tllP Bureau'~
"radical diYision:' Bn'dwin ndyi~pd Stone. "T think we Wi'rp wrong in our e~timate
of hi~ attitmle," (Bn'dwin to Stone. 1':/6/~4. ouoti'd in nonnld .rohn~on.
The Challenge to American Freedom8 (rniwlr~ity of Kentucky Pres~. 11)63), pp.
174-175. )
In December 1924. Stone made HoO"er Director of the Bureau of InYestigation.
25
a. The Original Roosevelt Orders
In 1934, according to a memorandum by .T. Edgar Hoover. President
Roosevelt ordered an innstigation of "the Xazi movement in
this country." In response, the FBI conducted a one-time investigation,
described by FBI Director IraanI' as "a so-called intelligence
investigation." It concentrated on "the Xazi group," with particular
reference to "anti-racial" and "anti-American" activities having "any
possible connection with official representatins of the German government
in the United States." 8
T,,'o years later, in August 1036, according to a file memorandum
of Director Hoover, President Rooseyelt asked for a more systematic
collection of intelligence about:
subversi"e actiyities in the "Cnited States, particularly Fascism
and Communism.
Hoover indicated further that the President wanted:
a broad picture of the general mo\'ement and its activities
as [they] may affect the economic and political life of the
country as a whole.
The President and the FBI Director discussed the means by which
the Bureau might collect "general intelligence information" on this
subject.9 The only record of Attorney General Homer Cummings'
knowledge of, or authorization for. this intelligence assignment is
found in a memorandum from Director HoO\'er to his principal assistant.
10
b. Orders in 1938-39: The F aguenc88 0/ "Subver8ive Activities"
and "Potential" Crime8
In October 1938, Director Iroonr ach'ised President Roosevelt of
the "present purposes and scope" of FBI intelligence investigations,
"together with suggestions for expansion." His memorandum stated
that the FBI was collecting:
8 Memorandum from .J. Edgar Hoover to Mr. Cowley. 5/10/34.
• .r. Edgar Hoover memorandum to the files. 8/24/36. This memorandum states
that. earlier in the conversation. Director Hoover had told the President:
(i) Communists controUed or planned to take control of the 'Vest Coast longshoreman's
union, the United Mine 'Vorkers Union and the l'\ewspaper Guild (and
using those unions would he "ahle at any time to paralyze the country") ;
(ii) "activities ... inspired hy Communists" had recently taken place in the
Government. "particularly in some of the Departments and the Xational Labor
Relations Board"; and
(iii) The Communist Internationale had rpcently issued instructions for all
Communists to "vote for Presirlent Roosevelt and against Governor Landon because
of the fact that Governor Landon is opposed to class warfare."
These comments indicate that the Bureau had already begun some intelligence
gathering on Communists and activities "inspired" by them prior to any
Presidential order. In addition, Hoover's memorandum referred to prior intelligence
collection on domestic right,wing figures Father Charles Coughlin and Gen-
Prill Rmedlpy Rutlpr. .
10 Hoovpr statpd that Secrptary of Rtate Hull "at the Prpsidpnt's suggestion. requestpd
of me. the representativp of the Dppartment of .Justice, to have investigation
made of the suhversive activities in this country, including communism and
fas('[sm." He added that "the Attorney Gpneral verhally directed me to proceed
with this investigation." (Memorandum from J. Edgar Hoover to E. A. Tamm,
9/10/36.)
26
information dealing with various forms of activities of either
a subversive or so-called intelligence type.l1
Despite the references in Director Hoover's 1938 memorandum to
"subycrsive-type" investigations, an accompanying letter to the President
from Attorney General Homer Cummings made no mention of
"sub\'ersion" aIHl cited only the President's interest in "the so-called
espionage situation." 12 Cm1'1mings' successor, Attorney General Frank
:Murphy, appears to have abandoned the term "subversive activities." 13
::\10reoveL when Director Hooycr provided Attorney General Frank
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, counterespionage, and sabotage of a nature
not within the specific provisions of pre/'ailing statutes." 14 [Emphasis
added.] Murphy thereafter recommended to the President that he
issue an order concentrating "inYestigation of all espionage, counterespionage,
and sabotage matters" in the FBI and military intelli·
gence."5
President Roosevelt agreeed and issued an order which, like
Murphy's letter, Illade no mention of "subversive" or general intelligence:
It is my desire that the investigation of all espionage, counter
espionage, and sabotage matters be controlled and handlcd
by the Federal Bureau of Inycstigation of the Department of
Justice, the Military Intelligence Division of the "'Val' Department,
and the Office of Naval Intelligence in the Navy
Depaltment. The directors of these three agencies are to
function as a committee to coordinate their activities.
X0 investigations should be conclucted by any investigati\'e
-agency of the Government into matters involving actually or
potentially any espionage, counterespionage, or sabotage, ex-
11 Memorandum on "domestic intelligence," prepared by .J. Edgar Hoover,
enclosed with letter from Attorney General CummingR to RooRe'l'f'lt, 10/20/3R.
Director Hoover met With the President who, according to Hoover'R memorandum,
"approved the plan which I llad prf'pared and which had !wen Sf'nt
to him by the Attorney GeneraL" C\Iemorandum to the files from J. Edgar
Hoover, 11/7/38.)
U Letter from Attorney General Cummings to the President, 10/20/38.
13 On 2/7/39, the Assistant to the the Attorney General wrote lE'tters to the
Secret Service, the Bureau of Internal Revenue, the Xarcotics Bureau, the Customs
ServicE', the Coast Guard, and the Postal Inspection Service stating that the
FBI and military intelligence had "undertaken activities to inwstig-ate matters
relating to espionage and subversive activities." (Letter from .T. B. Keenan, ARsistant
to the Attorney General. to F ..J. Wilson. Chief, Secret Service, 2/7/39.)
A letter from Attorney General Murphy to the Secretary of the Treasury
shortly thereafter also referred to "subverisive activities." (Letter from Attorney
General Murphy to the Secretary of the Treasury, 2/16/39.)
HO"'eYer, a similar lettpr two days later refprred only to matters "involving
espionage, <Xlunterespionage, and sabotage," without mentioning "subversiye ac·
tivities." (Letter from Attorney General :Uurphy to the Secretary of the Treas·
ury. 2/18/39.) This may have reflected a decision by Murphy to cease using "sub·
versive activities" to describe FBI investigations. The record does not clarify the
reason for his deletion of the phrase.
,. :Uemorandum from .J. Edgar Hoover to Attorney General :\rurphy, 3/16/39.
:\Iurphy was aware that the FBI contemplated investig-ations of subversive activities,
since Hooyer enclosed his 1931' plan with this lllem(}randllm.
15 Letter from Attorney General :\Iurphy to the President, 6/17/39.
27
cept by the three agencies mentioned above. [Emphasis
added.] 16
Precisely "'hat the Prl'sidl'nt\ reference to "potential" espionage or
sabota<r~ \yas intpnded to ('on'r \\as unclpar. ,,'hatpver it meant, it \vas
appare~ltly intpnde(l to be consistent with Director IIoover~s earlier
description of the FBI prognun to Attonwy General :Murphy.".'
Three months later, aftpr thl' outbreak of ,,'ar in Europe, DIrector
,HoO\'er indicatrd his concrrn that pri\'ate citizens might provide
information to the ;;sabotage "qnads" \yhich local police departments
,,'ere crl'ating ratllPr than to the FBI. Hoover urged the Attorney
(Tl'neral to ask the Prpsidrnt to t'N]Upst lo('al officials to giye tlw FBI
aII information concprning ;'pspionagp, countprpspionage, sabotagp,
snhversivp activities. anelnpntrality regulations." 18
The Prpsident illlnwdiatplv issned a statpnwnt which continued the
confusing treatment of the h;'eaclth of the FBI's intelligence authority,
On the one hanel, the statenwnt began by noting that the FBI hacl been
instructed to investi gate:
matters relating to espionagl', sabotage, ancl \'iolations of the
neutrality regulations.
On thr other hand. the President ('on('luded by aoeling "subversive
activities" to the list of information local law enforcement offieials
shoulo relay' to the FBJ.1v
c. ()rdCl'8 lrJF)-!ts: The ronhl8iol1 (!ontil1ue8
Presioent Roosevelt llsed the term "sllbH'rsin~ activities" in a secret
dirrcti\'e to Attornev General Robert .Ta('kson on wiretapping in 1940.
Referring to adivities of other nations engageo in "propaganoa of socalleel
'fifth columns'" alHl ';prpparation for sabotage." he directed
the Attorney General to allthorize ""iretaps "of persons suspected of
subwrsin activit if'S n!!ninst thp GOYernnwnt of the Fnitecl States.
incl1lClin!~' Sllsnf'('ted snies." Tllf' Prf'sident instl'l1cteo that s11('h wire~
taps be limiterl ';insofar as possible" to nliens. 20 Xeither the President
"Confidpntial ~I~morandllmfrom thp PfP~idpnt to Dppartmpnt Hpads, 6/26/39.
11 ~Ipmorandum ffom Hom'pr to ~rllfphr, 3/16/39, pnclo~ing Hom'er mpmorandum
on "domestic intellig-pncp." 10/20/3R.
18 ~IE'mofandum from .J. Edg-ar IIoo\,pr to AttorllPY Gpnpral ~Iurphy, 9/6/39.
19 Statement of the Prp~idpnt. 9/6/3fl.
Pre~ident Roooevplt ne\'pr formally dpfinpd "suh\'ersiYe acti\'ities"-a tprm
\\'ho~p \'a.u:upness ha~ prm'pn a prohlpm throug-hout thp FBI's historr. Howpvpr, a
hint as to his definition is containpd in his remarks at a press conferpnce on SE'P'
tpmllPr fl, Ifl3!). A national pmprg-en('y had just hppn dpclarpd, and pursuant
thprpto, thp Prpsidpnt hnd issupd au authorization for up to 150 pxtra FBI ag-ents
to handlp "additional dutip~." In pxplaining- that action, he statpd he ,,-as
('oncPfned ahout "thinu:s that happpned" hpforp 'World 'War T. specifically "sabo·
ta.u:e" and "propag-anda hy hoth helligerpnts" to "sway puhlic opinion, ... [I]t
is to gnard against that and the sprpad hy any forpig-n nation of propag-anda in
this nation whi('h would tpml to hp sl1h\'Pr~i\'P-I hp!ip\,p that is thp \\'ordof
our form of GOyprnlllPnt," 11039 Puhlic Papprs of Franklin D. Roosevelt,
pp. 49'>--1fl6. )
20 Confidential mpmorandum from Prpsidput RoosP\'elt to Attornp,- GE'npral
.Jack~on, 5/21/40. In ~ray 1941. tlw Spc'retary of War aml tlw Spcrpt~ry of thp
Xan' llr~pd "a hroadpuing- of thp in\'estiu:ati\'P rp~ponsihility of thp Fpdpral
BUfeau of In\'estig-ation in tlw fields of suh\,prsi\'P control of lahor." DTpmoran·
dum from thp Sp('rptau of "'ar aIHI tlw Spcrptary of tlw Xa\'y to thp Prpsi·
dpnt, fl/29/41.) Thp Prpsi(lpnt rpp!ipd that hp ,,'as spnding thpir lpttpr to the
Attorney Genpral "with my g-pnpral apnro\'aL" DIpmorandum from President
Roosevelt to the Spcrptarips of War and Xa\'y, 6/4/41.)
28
nor the Attorney General subsequently clarified the scope of the FBI's
authority to investigate "subversive activity."
The confusion as to the breadth of President Roosevelt's authorization
reappeared in Attorney General Francis Biddle's description of
FBI jurisdiction in 1942 and in 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. Among other things, the
FBI was charged with a duty to "investigate" criminal offenses against
the United States. In contrast, the FBI was to function as a "clearing
house" with respect to "espionage, sabotage, and other subversive
matters." 21
Four months later, President Roosevelt renewed his public appeal
for cooperation by police and other "patriotic organizations" with the
FBI. In this statement, he describNl his September 1939 order as granting
"investigative" authority to the FBI for "espionage, :oubotagc, and
violation of the neutrality regulations." The President did not adopt
Attorney General Biddle's "clearing-honse" characterization, nor did
he mention "subversion." 22
4. The Role of Congress
a. Executive Avoidance of Congress
In 1938, the President, the Attorney General, and the FBI Director
explicitly decided not to seek legislative authorization for the expanding
domestic intelligence program.
Attorney General Cummings cantioned that the plan for domestic
intelligence "should be held in the stricest confidence." 23 Director
Hoover contended that no special legislation should be sought "in
OTder to avoid cl'iticism or objections which might be raised to such
an expansion by either ill-informed persons or individuals with some
ulterior motive." [Emphasis added.] Hoover thought it "undesirable
to seek any special legislaJtion which would draw attention to the fact
that it was proposed to de\'elop a special counter-espionage drive of
any great magnitude" because the FBI's intelligence activity was already
"much broader than espionage or counterespionage." 24
Director Hoover contended that the FBI had authority to engage in
intelligence activity beyond investigating crimes at the request of the
21 Attorney General's Order "'0. 3732, 9/25/42, p. 19. But see Delimitation
Agreement between the ItBI and Military Intelligence, 2/9/42. at footnote 56.
22 Statement of the President on "Police Cooperation," 1/8/43. A note in the
President's handwriting added that the FBI was to receive information "relat·
ing to espionage and related matters." (Copy in FDR Library.)
03 Cummings to Roosevelt, 10/20/38.
.. Hoover memorandum. enclosed with letter from Cummings to Roosevelt,
10/20/38. Director Hoover's full point was that:
"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
utmOf;t 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 heen
repugnant to the American people and it is helieved that the structure which is
already in existence is much broader than espionage or counterespionage, hut
covers in a true sense real intelligence valnes to the three serYicps intprpstpd.
namply, the ~avy. the Army, and thp civilian branch of tilt' Govprnmpnt-the
Department of Jnstict'. Const'quently. it woulll st'em undt'sirnhle to spt'k any spp<'
inl It'cisllltion which would draw .llttt'ution to tIlt' faet thllt it \vas proposed to
develQlp a special counterespionage drive of any great magnitUde."
29
Attorney General or the Department of State. He relied on an amendment
to the FBI Appropriations c\ct, passed before ",Yorld "'Val' I,
authorizing the Attorney General to appoint officials not only to "detect
and prosecute" federal crimes but also to :
conduct such other investigations regarding official matters
under the control of tllE' Depariment of .Justice, or the Department
of State, as may be directed by the Attorney GeneraJ.25
After conflicts with the State Department in 1939, however, the FBI
no longer relied upon this vague statute for its authority to conduct
intelligence investigations, instead relying upon the Executive orders.26
b. Oong1'e88 Dcclil1e8 to Oonfront the I8sue
Even though Executive officials originally avoided Congress tD
prevent criticism or objections, after the President's proclamation of
emergency in 1939 they began to inform Congres.<; of FBI intelligence
activities. In November 1939, Director Hoover told the House Appropriations
Committee that the Bureau had set up a General Intelligence
Division, "by authority of the President's proolamation." 27 And
in January 1940, he told the same Committee that the FBI had authority
under the President's September 6, 1939 statement to investigate
espionage, sabotage, neutrality violations, and "any other subversive
activities." 28
There is no evidence that the Appropriations Committee objected
or inquired further into the meaning of that last vague term, although
members did seek assurance that FBI intelligence could be curtailed
when the wartime emergency ended.29
In 1940, a joint resolution was introduced by New York City Congressman
Emmanuel CelIeI' which would have gi,'en the FBI broad
jurisdiction to investigate, by wiretapping or other means, or "frustrate"
any "interference with the national defense" due to certain
specified crimes (sabotage, treason, seditious conspiracy, espionage,
and ,'iolations of the neutrality laws) or "in any other mannr1'."
30 Although thr rCS(Jlution failrd to reach the> House, floor, it serms
likely that, rather than opposing domestic intdligence investigations,
Congress was simply choosing to avoid the issue of defining the FBI's
intelligence jurisdiction. This "iew is supported by Congress' passag-e
in 1940 and 1941 of two new criminaI statutes: the Smith Act made
it a crime to a(1\'ocate the ,'iolrnt O\'erthrow of the Government; 31 and
the Voorhis Act required "subversi \'C" organizations advocating the
25 28 U.S.C. 533(3).
,. The conflicts between the FBI and the State Department in 1939 are discusspd
at :l'ootnotp 54.
27 Emergpncy Supplemental Appropriation Bill. 1940, Hearings before the House
Appropriations CommitteI', 11/30/39. pp. 303-307.
In fact. the FBI had pstablishpd a Gpneral InteIligpnce Section in its Investi,
gative Division shortly after the President's 1936 requests. Congress was not
advised of the Bureau's activitips undertaken prior to September 1939, nor
of tIll' President's earlier directives.
28.Jnstice Department Appronriation Bill. 1941. Hearings before the House
Appropriations Committee. ]/5/40, p. 151. The President's ]939 statement did
not s}wcificalIy say that the FBI had anthority to investigate "snbversivl' activities."
,. ]93!) Hparings, p. 307; Firnt Deficip!H'Y Appronriation Bill. ]941, Hparings
before till' House Appropriations CommittPe, 2/19/41, pp. 188-189.
30 H..T. Res. 571. 76th Cong., 2d Sess. (1940).
31 18 U.S.C. 2385, 2387.
30
Government's violent overthrow and having foreign tics to register or
be subject to criminal penalties.32
Although, as indicated, the Executive branch disclosed the fact
that the FBI was doing intelligence work and Congress generally
raised no objection, there was one occasion when an Executive
description of the Bureau's \york \yas less than complete. Following
Director Hoonr's testimony about the establishment of an
Intelligence Division and some public furor over the FBI arrest of
several Communist Party members in Detroit, Senator George Norris
(R. Neb.) asked whether the Bureau was violating Attorney General
Stone's assurance in 1924 that it would conduct only criminal investigations.
Attorney General .Jackson replied:
Mr. Hoover is in agreement with me that the principles
which Attorney General Stone laid down in 1924 when the
Federal Bureall of Investigation \yas reorganized and Mr.
Hoover appointed as Director are sound, and that the usefulness
of the Bureau depends upon a faithful adherence to these
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 senice of process issued
by the courts.33
The FBI was, in fart, doing much more than that and had informed
the Appropriations Committee of its practice in general terms. Attorney
General.Tackson himself stated later that the FBI was conducting
"steady surveillance" of persons beyond tho~e \yho had violated federal
statutes, including persons \yho \ycre a "likely source" of federal
law \'iolation because they were "sympathetic with the systems or
designs of foreign dictators." 34
5. Scope of Domestic !1Itelligence
a. Beyond Oriminal Im'estigations
According to Director Hoover's account of his meeting with President
Roosevelt in 1936, the President wanted "a broad picture" of the
impact of Communism and Fasrism on American life.35 Similarly, the
FBI Director described his H)~R plan as "bl'Oader than espionage"
and covering "in a true sense rral intelligence." 36 Thus it appears that
one of the first pnrposes of FBI domestir intelligence was to perform
the "pure intelligence" function of supplying execntin offirials with
information beliend of nIne for making policy decisions. This aspect
of the assignment to inn'stigate "snbwrsion" was entirely unrelated
to the enforcement of federal rriminal laws. The serond purpose of
FBI domestic intelligence gathering ,yas essentially "preventive,"
"lR U.S.C. 2386.
33 Lpttpr from Attorney General Jackson to Senator Norris, 86 Congo Rec.
5642-5643.
84 Procepoine:s of thp Fpopral-State Conferpnce on Law Enforcempnt Problpms
of National Dpfpnsp, R/5-6/40.
Rpypral months parlipr. Attornpy Gpnpra! .TaC'kson hao warnprl fprlpra! prosp('
ntors ahont th(' rlallgprs of proRPcnting "snhn>rsiyps" hp('ansp of tbp In('l, of
staIHlaros anrl thp oane:pr of oyprhrpa<1th. (Rolwrt H. .TaC'ksoll. "Thp Fprlpral
Proc·PC'lltor." .Tol/rnal of fllr .4 mrriran .TI/rlirafurc ROC"irfll. 6/40. p. lR.)
"" Hooypr llwmoramlnm to tbp fill'S, R/24/::l6.
36 Hooyer memorandum, enclosed with Cummings to Rooseyelt, 10/20/3R. sep
p.28.
31
in compliance with the Presidenfs .Tune 1939 directive to investigate
"potential" espionage or sabotage.3
' As war moved closer, preventive
intelligence investigations focused on individuals who might be
placed on a Custodial Detention List for possible internment in case
of war.38
Both pure intelligence about "subversion" and preventive intelligence
about "potential" espionage or sabotage involved investigations
based on political affiliations and group membership and association.
The relationship tolaw enforcement was often remote and speculative;
the Bureau did not focus its intelligence gathering solely on tangible
evidence of preparation for crime.
Directives implementing the general preventive intelligence instruction
to investigate "potential" espionage or sabotage were vague and
sweeping. In 1939, for instance, field offices were told to investigate
persons of German, Italian, and Communist "sympathies" and any
other persons "whose interests may be directed primarily to the interest
of some other nation than the United States." FBI offices were
directed to report the names of members of German and Italian societies,
"whether they be of a fraternal character or of some other
nature," and members of any other groups "which might have pronounced
Nationalistie tendencies." The Bureau sought lists of
subscribers and officers of German, Italian, and Communist foreignlanguage
newspapers, as well as of other newspapers with "notorious
Nationalistic sympathies." 39 The FBI also made confidential inquiries
regarding "various so-called radical and fascist organizations" to
identify their "leading personnel, purposes and aims, and the part
they arp likely to play at a time of national crisis." 40
The criteria for investigating persons for inclusion on the Custodial
Detention List was similarly vague. In 1939, the FBI said its list included
persons with "strong Nazi tendencies" and "strong Communist
tendencies." 41 FBI field offices were directed in 1940 to gather information
on individuals who would be considered for the list because
of their "Communistic, Fascist, Nazi, or other nationalistic background."
42
b. "Infiltration" Investigations
The FBI based its pure intelligence investigations on a theory of
subversive "infiltration" ,vhich remained an essential part of the
rationale for domestic intelligence after the war: anyone who happened
to associate with Communists or Fascists or was simply alleged
to have s11ch associations became the subject of FBI intelligence 1'8portS.
43 Thus, "subversive" investigations produced intelligence about
37 Confidential memorandum from the President to Department heads, 6/26/39.
3R ~f'e pp. 34-35.
39 The above-mentioned directives were all contained in a memorandum from
.1. FAlg-ar Hoover to FBI Field OffiC'f's. 9/2/3.1).
.. )Iemoranonm from Clyde Tolson to J. Edgar Hoover, 10/30/39.
" Internal FBI memorandum of E. A. Tamm. 11/9/39.
.. )Jemoranonm from .T. F..d.gar Hoover to FBI Field Offices, 6/15/40.
.. Director Hoover declared in 194D that advocates of foreign "isms" had "sue{'
eeoeo in boring into every phase of American life, masquerading behind 'front'
organizations." (Proceedings of the Federal-State Conference on Law Enforcement
Problems of Xational Defense. Angust 5-6,1940.) In his hest-selling book on
Communists. Hom'er stated. "Infiltration is the method whereby Party members
move into noncommunist onmnizations for the purpose of exercising- influence
for commlmism. If control is secnred. the organization becomes a communist
front." (J. Edgar Hoover, Masters of Deceit (New York: Henry Holt, 1958),
Ch.16.)
32
a wide variety of lawful groups and law-abiding citizens. By 1938,
the FBI was innstigating alleged subversive infiltration of:
the maritime industry;
the steel industry;
the coal industry;
the clothing, garment, and fur industries;
the automobile industry;
the newspaper field;
educational institutions;
organized labor organizations;
Negroes;
youth groups;
Government affairs; and
the armed forces.44
This kind of intelligence was transmitted to the ·White House. For
example, in 1937 the Attorney General sent the President 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.45 Later reports in 1937 described
the Communist Party's role in plans by the "Torkers Alliance
for nationwide demonstrations prot€sting the plight of the unemployed,
as well as the Alliance's plans to lobby Congress in support
of the federal relief program.46
Some inve..c;tigations and reports (which went into .Tustice Department
and FBI permanent files) covered entirely legal political activities.
For example. one local grollp checked by the Bureau was called
the League for Fair Play, which furnished "speakPrs 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." 41
In 1944, the FBI prepared an extensive int€lligence report on an
active political group, the Independent Voters of Illinois, apparently
because it was considered a target for 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 elec-
" Hoover memorandum. enclosed with Cummings to Roosevelt. 10/20/38.
<5 I.Rtter from Attorney General Cummings to the President (and enclosure),
1/~O/~7 (FDRLihrary) .
•• IRttpr from Attorney General Cummings to the President (and enclosure),
R/l~/37 (FDR Library).
<1 Rl'port of Xew York City fjp]d office. 10/22/41. snmmarized in Justice Dpnartment
memorandum from S. Brodie to Assistant Attorney General Quinn, 10/10/47.
33
tion 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 Facism, etc.48
Thus, in its search for subversive "influence," the Bureau gathered
extensive information about the lawful activities of left-liberal political
groups. 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.49
c. Partisan Use
The collection of pure intelligence and preventive intelligence about
"subwrsin's" led to the inclusion in FBI files of political intelligence
about the President's partisan critics. In ~Iay 1940, President Roosen~
lt's serretary sent the FBI Director hundreds of telegrams received
by the 'White House. The attached letter stated:
As the telegrams all were more or less in opposition to national
defense, the President thought you might like to look
them over, noting the names and addresses of the senders.50
Additional telegrams expressing approval of a speech by one of the
Pn>sident's leading critics, Colonel Charles Lindbergh. ,,-ere also referred
to the FBJ.52 A domestic inte11igence program without clearly
defined boundaries almost invited such action.
d. Oentralized Authority: FBI and Military Intelligence
The basic policy of President Roosewlt and his four Attorneys General
was to centralize civilian authority for domestic intelligence in
the FBI. Consolidation of domestic intelligence was viewed as a means
of protecting civil liberties. Reca11ing the hysteria of World ,Val' I,
Attorney General Frank :Murphy declared:
Twenty years ago, inhuman and cruel things were done in
the name of justice; sometimes vigilantes and others took over
the work. ,Ve do not want such thinrrs done today, for the
work has now been localized in the FBI.53
Centralization of authority for domestic intelligence also served the
FBI's bureaucratic interests. Director Hoover complained about
4. Report of Chicag-o field office. 12/29/44. summarized in Justice Department
memorandum from S. Brodie to Assistant Attorney General Quinn, 10/9/47.
•• Justice Department memorandum re : Christian Front, 10/28/41.
60 Letter from Stephen Early, Secretary to the President, to J. Edgar Hoover,
5/21 /40 (FDR Lihrary) .
•• Memorandum from Stephen Early, Secretary to the President, to .T. Edgar
Hoover, 6/17/40.
.. New York Times, 10/1/39, p. 38.
68- 786 a - 76 - 4
34
attempts by other agencies to "literally chisel into this type of
,,'ork." 54 He exhorted: ",Ve don't want to let it slip away from us." 55
Pursuant to President Roosevelt's 1939 directive authorizing the
FBI and military intelligence to conduct all investigations of "potential"
espionage and sabotage, an interagency Delimitation Agreement
in .Tune 1940 assigned most such domestic intelligence work to the
FBI. As revised in February 1942, the Agreement covered "investigation
of all activities coming under the categories of espionage, subversion
and sabotage." The FBI was responsIble for all investigations
"involving civilians in the rnited States" and for keeping the military
informed of "the names of individuals definitely known to be connected
with subYersive activities." 56
The military intelligence agencies were interested in intelligence
about civilian activity. In fact, they requested extensive information
about civilians from the FBI. In May 1939, for instance, the Army G-2
Military Intelligence Division (MID) transmitted a request for the
names and locations of "citizens opposed to our participation in war
and conducting anti-war propaganda." 57 Despite the Delimitation
Agreement, the MID's Counterintelligence Corps collected intelligence
on civilian "subversive activity" as part of a preventive security program
using volunteer informers and investigators.58
6. Oontrol by the Attorney General: Oompliance and Resistance
The basic outlines of the FBI's domestic intelligence program were
approved by Attorney General Cummings in 1938 'and Attorney Generall\
Iurphy in 1939.59 Director Hoover also asked Attorney General
Jackson in 1940 for policy guidance concerning the FBI's "suspect list
"'l\Ipmorandum from J. Edgar Hoover to Attorney Gpnpr111 l\Iurnhy, 3/16/39.
The "literally chisel" reference reflects concern with a Rtate Department attempt
to "coordinate" all domestic intelligence. It may explain why, after 1938, the
FBI no longer relied for its intelligence authority on the statutory provision for
FBI investigations of "official matters under control of ... the Department of
Statp." Director Hoover statpd that the FBI required State Department authorization
only where "the subject of a particular investigation enjoys any diplomatic
sta tns."
55 Note attached to letter from Col. J. M. Churchill, Army G-2, to Mr. E. A.
Tamm, FBI, 5/16/39.
6<J Deiimitation of Investigative Duties of the Federal Bureau of Investigation,
the Office of Naval Intelligence, and the Military Intelligence Division. 2/9/42.
'7 Memorandum from Colonel Churchill, Counter Intelligence Branch, :\IID,
to E. A. Tamm, FBI, 5/16/39.
"Victor J. Johanson, "The Role of the Army in the Civilian Arena. 1920-1970,"
U.S. Army Intelligence Command Study (1971). The scope of wartime Army
intelligence has been summarized as follows:
"It reported on radical labor groups, communists, Nazi sympathizers, and
'semi-radical' groups concerned with civil liberties and pacifism. The latter, well
intentioned but impractical groups as one corps area intelligence officer labeled
them, \Yere playing into the hands of the more extreme and realistic radical elements.
G-2 still believed that it had a right to investigate 'semi-radicals' because
they undermined adherence to the established order by propaganda through
IH'\Yspapers, periodicals, schools. and churches." (Joan :\1. Jensen. ":\1ilitary Survpillance
of Civilians, 1917-Ul67," in JIilitarll lntenigcrwc. Hparings hefore the
Spnate Suhcommittee on Constitntional Rights (1974), pp. 174-175.)
'" Lettpr from Attorney Genpral Cumming'S to thp Prpl'iident, 10/20/38; lptter
frOl'1 Attornpy Gpnpral :\Iurphy to thE' Prpsident. 6/17/39. TIll' confusion as to
whetJ]f'r Attornpv Genpral :\Inrphv. AttorIIPY Gpnpral .Jackson and Attornpy
GE'neral Biddle defined the FBI's dutiE's to cover investigation of "snbversive activities"
is indicated at footnotes 13, 21 and 34.
35
of individuals whose arrest might be considered necessary in the event
the L"nited States becomes involved in war.:: GO
The FBI Director initially opposed, however, Attorney General
.Tackson's attempt to require more detailed suppn'ision of the FBI's
role in the Custodial Detention Program. To o\'ersee this program and
others, Jackson created a Xeutrality Laws Unit (later renamed the
Special 'Yar Policies Unit) in the .Tustice Department. When the
rnit pl'Oposed to review FBI intelligence reports on individuals,
Director Hoover protested that turning over the FBrs confidential
reports \yould risk the possibility of "leaks.:' He argued that if the
identity of confidential informants became known, it would endanger
their "life and safety" and thus the Department would "abandon"
the ;'subversives field." G1
After five months of negotiation, the FBI was ordered to transmit
its "dossiers" to the Justice Department Unit.G2 To satisfy the FBI's
com'erns. the Department agreed to take no fonnal action against an
individual if it "might interfere with sound innstigative techniques"
and not to disclose confidential informants without the Bureau's "prior
approva1.:' G3 Thus, from 1041 to 10:1:3. the .Tustice Department had the
machinery to oversee at least this aspect of FBI domestic intelligence.64
In 1943, however, Attorney General Biddle ordered that the Custodial
Detention List should be abolished as "impracticaL unwise, and
dangerous." His directive stated that there \yas "no statutory authority
or other present justification" for keeping the list. The Attorney
General concluded that the system for classifying "dangerous" persons
\yas "inherently unreliable;" the evidence used was "inadequate ;:, and
the standards applied were "defective." G5 Biddle observed:
the ncition t,hat it is possiblr to make a valiel clrtermination as
to how (langerous a person is in the abstract and \vithout
reference to 'time. em-ironment. alHl other relevant circumstances,
is 'impract ieal, llll\yise, a'nd dangerous.
Returning to the basie stamlar<l espouseel by Attorney General Stone,
Attomey General Biddle declared:
The Depadment fulfills its proper function by innstigating
the aetivitirs of prrsons \yho may havr violatrcl the law. It is
lWt aided in this work by cla:.;sifying prrsons as to dangerousness.
GG
OJ ~Ipmorandum from ,J. Edg-ar Hoowr to Attornpy Gpnpral ,Jackson, 10/16/40.
G1 ~I€'morandum from ,J. Edgar Hoon'r to L.~1.C. Smith, Chipf, Nputrality Law
('nit, 11/28/40.
62 ~Iemorandum from 1\1. F. ~IcGuire, Assistant to the Attorney General, to
,J. Edg-ar Hooyer and L. ~1. C. Smith, 4/21/41.
63 ~Ipmorandum from ~I. F. :UcGuirp, Assistant to the Attorney General, to
.J. Eelg-ar Hoo\·pr. 4/17/41.
61 Thp Custodial Detention Program should not b€' confusPd with the internIllpnt
of .Japanesp Am€'ricans in 1942. The mass uptention of Americans soleI, on
thp hasis of racp was exactly what the Program was dpsignPd to pre\'pnt, hy
making it possihle for the g-oYernment to df'Cidp in inuiYidual cases whether a
Iwrson should he arrf'stpd in thp p\'pnt of war. \Vhpn th€' Prog-ram was implempl1tpd
after Pearl Harhor, it was limited to dangerous enemy aliens only. FBI
Tlirpctor Hooypr oPPos€'d thp mass ronnd-np of .Japan€'se Americans.
., ~IpnHmllldum from Attornp~' Gpnprnl Riddlp to Assistant Attorney Gpnpral
Cox and.J. Edgar Hooypr, Dirpdor, FRI, 7/10/43.
"M€'morandum for Attornpv Gpnernl Ridrl!p to Assistant Attornpv General Cox
and.J. Edgar Hoover, Directo;, FBI, 7/16/43. . . . .
36
l~pon rpcp,ipt of thi..; o1'(lpf'. tl](' FBI Dirpctor rlirlnot in fact aholish
it,.; list. 'I'll(' FBI cOlltiJ1I1('<] to maintain an ilH]PX of ))(>rsol1s "\yho
may ))(' (lanl!prOl\:i or llotrntially dalll!rmu,.; to thp plI!>Iic ~afdy or
intl'rnal security of the l~nit<>(l Stat(''';'"' In ]"('S!HlllSe to the "\ttorney
(Jpnpra)',.; ()],([Pl:, the FBI Illl'rf'ly chanl!e(l thp nanlP of tIl(' li~t from
Cus:orlial I)ptrntion List to Sp('lIrity Indpx, I nstl'llctions to t)1(' !iplrl
stated that thp Spcurity Index should he kept "strictly confidential,"
an(] that it should np\"('r hp nlrntionp(] in FBI rp(Jolt" Of' "discnssp<!
\yjtlt ag<']l<'ips 01' inrliyirlllals ont~i(lp ill(' Bnrp;\ll" (':\:cppt fOJ' llli!itar~'
ill'tplliI!PlH'e agrncips.'''
This inci<]ent prO\·idp,.; an pxalllll)p of the FBI's ahility to conduct
dompstic intelligencp operations in opposition to the policips 0 r an
.\/tOr!1P,\· (Jpnpl'Hl. Dp,.;pitp .\ttOI'1H')' (Jpnpral Bi(]rlJp's on]pr. tlll> "(]angprousIlPss"
list pontinup<! to 1)(' hpt. and inHstigations in support of
that list continued to 1)(' a significant part of thp Burpau's \york
7. Jnt j'usi /'(' Tali II iqll(!s.' Q lIe.~tioll{/.b7e Authori2ation
a. 1rirctaps.' .1 ,':,tmined Statutol'y JntCl'fll'l'tlltioll
In W40. Prpsi(]pnt HoosPn'lt anthorizp<] FBI "'in'tapping against
"]Jp]'SOIlS snsppl'tp<! of suhHI'"in :lctiyitips against thp rnitl'c1 States.
inclnrlinl! snsjJPctp(] spic,.;.'· rpquiring the specifiC' approya) of thp Attol'
1wy (Jpneml for rach tap all(] rlirpl'tinl!that tlH'y])(, limite(] "insofar
as possiblp to a!ipns.'· (,R
This ordpr ,,'as issurd in the facp of the Fpdpral Communications
Act of Hl34. which had prohibited wiretapping.G9 HO\yeypr, the Attorney
General interpreted the Act of 1934 so as to permit gO\'l'rmnent
,,·irctapping. Since the Act made it unlawful to "intercept and eliyulge"
communications. Attol'lley General .Tackson contended that it
did not apply if there was no diyull!cnee outside the (iowl'IlmrnL
[Emphasis added.J70 "\ttol'1WY Genpra1 .Tachon's qnestionahle intrrpretation
was accepted by sllcceeding Attorneys General (until
Hl(j8) hut nrn'r hy thr conrts.71
.Tackson infornwd the Congress of his interpretation. Congress considewd
enacting an exception to the 19~4 Act, and hpld hrarings in
which Director HoO\'er said "'irrtapping \yas "of considprable importance"
because of the "gravity" to "national safety" of snch of-
67 ~Ipmorandum from .r. Erlg'ar Boon'r to FBI Fit'I(1 OfficC's. Rp: Dang't'rouslwss
Cla~sifi('ation. 1'/14/~3. This i~ tht' onl~' do(,ul11C'nt pC'rtaining' to Dirpetor IIooYt'r's
dt'rhdon \Vhit'h apppars in tlIP matprial pro\'idp<1 hy thp FBI to thp Rplt'ct Committpp
(,o\'t'riug' Burt'au polieips for tht' "Rt'('urity IIIdt'x," Thp FBI intt'rprt'tt'd
the Attornp~' Gt'nprnl's onlpr as applyillg' ouly tn "the (Iang'prous c-lassifications
prE'\'iously madp hy tIlE' ... RpE'cial ",,'ar PoliciE'S l'nit" of tlJE' JustieE' DE'partUIPllt.
(The full tpxt of thp Attorney General's onlpr and thE' FBI dirE'('ti\'e apjwar
in Heariug-s. Yo!. n. pp: ~1~--n;'j.)
<IS Confidential mPllloralHlum frolll PrpsidE'nt ROOSPYE'lt to Attornpy Gent'ral
,Jackson. ii/~1/40. .
"" 47 U.S.C. 605. TIlE' SuprE'me Court lwld that this Act madp wirptap-ohtained
Pyi(]pncp or thp fruits thpreof inadmissihle ill fedE'ral criminal cases. Tan/olle Y.
United Statc8, 30~ CS. 37!J (1!J37) : 308 1'.s. 338 OD3!Jl.
70 Letter from AttornE'Y GellPral ,Jackson to Rt'p. Hattoll Rummt'rs. 3/1!J/41.
71 E.g'.. Ullitell Statc.~ Y. Blltcllko. 4!J4 F.~d 5!J3 (3d Cir. l!JH). eert. den,ied
suh nom.l1'anov Y. Ullifrll State8, 419 n.s. 881 O!JH). The Conrt of Appeals held
in this case that warrantless wirptapping' could onl~' he justifipd on a thpor, of
inhE'rent Presidential pO\\,pr. and fjnpstiOl1E'r! thp statntory interprptation rplipr!
njlon sin('e AttorJwy Gpl\prnl Ja('kson's timp. rnti! ]f)(i7. thp RuprPIlIP Conrt did
not rulp that 'Yin·tapping- yiolntpd tlw Fonrth AmpIHIIlIPnt. [0l1i/8tr(fd Y. ['/litrd
Statrs, 275 C.S. 557 (1927) : Eatz Y. U/lited States. 3S!J U.S. 347 (1!JH7).]
37
fenses as espionage and sabotage.'" Apparently relying npon .Tackson~s
statntOl}' interpretation, Congress then dropped thp mattPI.. lpll \"il1g
the anthol'i/\ation of wiretaps to Execntin~ discretion, without pitll(>r
statutory stan(lards or the requirement of a judicial warrant.,a
The potential for misuse of wiretapping was demonstrated during
this lJPriod by sPH'ral FBI \yjn'tap" appl'm"pd b.'" til(' ~\ttorl\(,V OpneI'al
01' b," tll(' ,Yhite HOWie. 1/1 }H-+L .\ttol'1Jev Ge)wral Biddlp apprO\"ec]
a wi'rdap 011 til(> Lo,; .\ngelps CIIlIIIl!>Pl' O{COIllIllPl'CC \"ith thp canat:
There is no record of espionage at this ti]]1['; and. unless
within a month from today there is some evidence COllllPcting
the Chamber of Commerce \yith espionage~ I think the
sUITeillanc0 shoul(l be cliscontjnue(].7"
However, in another case Biddle disapproved an FBI request to wiretap
a Philadelphia bookstore "engaged in the sale of Communist literat
IIrp" and he(plented by "important Comnlllnist. 1Padprs'~ in In+I.'"
}Iatpriab locatpd in DirNtor TIoO\pr's "Official aIH] Contidential"
file indicate that President RoosP\"pjt\ aidp TIarry Hopkins asked the
FBI to wiretap his own home telepho/l0 in In-H. Additional reports
from "technical" surH~illance of all lI11idpntified target were spnt to
I lopkins in 3Iay and .Tuly In+.), \yh0n lw selTC'd as an aide to ]>rpsi(]
0nt TnulIan.'"
In In+ii t\VO Truman ,Yhite House aidC's, E. D. }IcKim and General
H. H. \raughn, receiH>d reports of plectl'Onic sllrn~illance of a high
eXl'eutin' oflicial. One of these reports jncluded "tral1scripts of tele])
hol1P connl'satiol1s Iwt'\"(>PIJ [the ollicial] aJl(l ,Tusticl' Fl'lix Fl'ankfmter
awl betwPPIJ [thl' official] and Drpw PC'arson." ,Ha
From .June ID-I-ii until }Iay In-l-8, GrnC'ral Yaug-lm rrcri\'p(] rrports
from r IpctrolJic smTpi llanee of a fOl'ml'r Hoosl'\'PIt 'Yhitl' Housp a·ide.
A !lIp!lIoran(lum by .J. Edg-al' Hool"('!' illdieatl's that Attorlley G('lJl'ral
Tom ('lark "autllOrizPd thr placing of a tl'chnical slllTpil1ance" all this
indiyi(]ual alJd that. according to Clark Pn'sidpnt Truman "was pal"
ticularly concel'lled" about the activities of this individual "and his
associat'ps" amI wanted "a very thorough inn'stigatiolJ" so that "steps
mig'ht be takl'n, if possible, to see that such acti,"jties did not iIJterfere
with the ]>roper administratioIJ of go\'pJ'l]ment." IIoO\'er~s ll]('mOI'aI1dum
llid not indicate what thrse "activities" were.'"h
" Hearings hpfore tIl(> Honse .Tndiciar.'" Committf'e, To Anthorizp Wirptapping,
77th Cong., 1st Sess. (1941), p, 112,
"Congress contilllwd to rf'frain from setting wiretap standards until 1968
when the Ominhus Crime Control Act was passed. The Act was limitl'd to criminal
caf;ps and, onef' again, ayoided thl' iSf;UP of intpJ!igPlwe wiretaps. [18 1:.S.C.
~:;Il( :{ ) . ]
11 )Iemorandum from Attomey General Biddle to .J. }~dgar Hoo,"er, 11/19/41.
Bid(llp ad,"ispd Hooyer that wiretaps (or "techuical sun-eillances") would not
lie authorized unless there was "information Il'ading to the concIuf;ion that the
actiyitips of any partku!ar indiyidual Dr gT011p m:e connl'cted with espionagp
or are authorized sources outside of this country."
;c. )Ipnwrlllu!um from .T, Edgar Hoo\"pr to Attorney Gl'nern! Biddlp, 10/2/41;
nlPmorandmll from Attorney Gpnpra! Biddlp to .r. Edgar lIoo,"pr, 10/22/41.
,,, )Ipmorandum from J<'BI to Sl'!<'d CommitteI', :1/~6/76 and pneIosures.
'6' )Il'llloJ':lnrlulll from D. )1. Lurlrl to Hooypr. 5/2~/45.
70" Hom"l'r ml'111orandum. 11/15/·!i';: fl I11l'l110rnIlfl11l11 11Pfld(>fl "Sul11maries D~liyp]'('(
l t:> thp \\'hitp lIousl''' lists o\"l'r I j';) rp!'orts SPIlt to (;('II('ra] "ang-Im fr0111
this sUl'\'('il!al1C'p: 111l'111orandu111 from FBI to Sf'led Committpp, 3/26/76. anll
('1I('!osurps.
38
b. Hllgginy, Jlail Opening, alld SW'i'CptitiollS Entry.
Intrnsiw techniques such as bugging, mail opening and surreptitious
pntrv ,vero used bv the FBI ,vithout PTen the kind of formal Presi(
lent'ial authorizatIon and requirement of ~\.ttorney General approval
that applied to warrantless ,viretapping.
During the ,val', the FBI began "chamfering" or surreptitious mail
opening, to supplement the owrt censorship of international mail
authorized by statute in ,vartime. 77 The practice of surreptitious entry-
or breaking-and-entering-1vas also used by the FBI in ,val"
time intelligence operations.'s The Bureau continued or resumed the
use of these techniques after the 1Yllr ,vithout explicit outside
authorization.
Furthermore, the installation of microphone surwillance ("bugs"),
either \vith or ,vithont trespass, was exempt from the procedure for
Attorney General appronll of ,viretaps.•Tustice Department records
indicate that no Attorney General formally considered the question
of microphone suneillance ill\'olYing trespass, except on a hypothetical
basis, until 1952.'9
C. DmIEsTIc IXTELLIGEXCE IX THE COLD 'YAR ERA: 1946-1963
1. Main Del'elopments of the 19.'f6-1963 Pel'iod
The domestic intelligence programs of the FBI and the military
intelligence agencies. which ,yore established under presidential authority
before World 'Yar II, did not cease with the end of hostilities.
Instead, they set the pattern for decades to come.
Despite Director Hoowr's statement that the intelligpnce structure
could be "discontinued or very materially curtailed" with the termination
of the national emergellcy, after tIle war intelligence operations
were neither discontinued nor curtailed.so Congressional deference to
the executive branch, the broacl scope of investigations, the growth of
the FBI's po\\-er, and the substantial immunity of the Bureau from
effective outside supenision became increasingly significant features
of domestic intelligence in the United States. Kew domestic intelligence
functions were added to previous responsibilities. X0 attempt ,vas
"FBI nlPmorandum from C. E. Hennrich to A. H. Bplmont, 9/7/51.
":\lemoraI1(Ium from thp FBI to thl' Spnatp Sl'll'ct Committpe, 9/23/75.
79 A H)·JA .Justice Dppartmpnt nWll10randum discusspd the "admissibility of
pyidp]H'e ohtainpd hy trash eoyprs and microphone surYPillance," in rpsponse to
a sprips of hypothetical qupstions suhmittPlI h~' tIw FRL The memorandum
eoncludpd that ('y!dencp so obtaine<J. was admissible pypn if the microphone surypil!
ancp inyo]ypd a trpspass. (:\Iemorandum from Alexandpr Holtzot'f, Sppcial
Assistant to thp Attornpy Gpnpral. to .T. Edgar lIooypr, 7/4/44; c.f., nwmorandum
from AttorIwy Gp]wral .J. Howard :\lcGrath to .J. Edgar Hooyer, 2/26/52.) Sep
footnote 22fl for the Ifl50s considpration of bugs by the Attol'lwy Gpneral.
80 In parly 1941, Dirpctor I-Iooypr had had tIw follO\Ying exehange with mpmlJPrs
of t}w HOllSP A]I]lr-opriations Com'nittpp:
'·:\lr. LUDLOW. At the dosp of thp prpspnt pmprgpney, whpn peace comps, it
would mean that much of this {'mprgpncy ,york np('Pf:sarily will be discontinued."
":\Ir. Hoon:R. That is COITPet.... If thp national pmergpnc~- should terminate,
the structurp dpaling with national defpnsp can immpdiatply hp discontinupd or
\"pry matprially eurtailpd accof(ling to the wislws of Oongrpss." (First DC'{icicllC'1!
Appropriatioil Rill. 1.~i1, Hearings hf'forp the House Committee OIl Ap]lropriation",
3/19/41. ]1]1. ISS-ISH.)

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