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CHURCH COMMITTEE REPORTS

THE DEVELOPMENT OF FBI DOMESTIC INTELLIGENCE
INVESTIGATIONS
CONTENTS
Page
I. Introduction__________________________________________________ 375
A. Scope of the report_ ____________________________________ 375
B. Issues presented____ _____ __ __ _______________ __ _______ __ _ 377
II. Historical Antecedents-World War I, the "Red Scare," and Attorney
General Harlan Fiske Stone's Reforms__ _______________ _______ _ 378
A. Pre-World War I programs______________________________ 378
B. Domestic intelligence in World War L___________________ _ 380
C. The post-war "Red scare" and the "Palmer raids" ____ 382
D. Attorney General Stone's reforms________________________ 388
III. The Establishment of a Permanent Domestic Intelligence Structure,
1936-45_______________________________________________ 391
A. The 1936 Roosevelt directive_ 392
B. The original legal authority for domestic intelligence_ _____ 395
C. The FBI intelligence program, 1936-38_ __________________ 396
D. FBI intelligence authority and "subversion"__ ____ __ __ ____ _ 400
E. Congress and FBI intelligence_ __________________________ 407
F. The scope of FBI domestic intelligence____________________ 412
G. The custodial detention program_ _________ __ __ __ _________ 417
H. FBI wartime operations_________________________________ 422
IV. Domestic Intelligence in the Cold War Era: 1945-63______________ 427
A. The anti-Communist consensus__________________________ 427
B. The postwar expansion of FBI domestic intelligence_ _____ 429
C. The Federalloyalty-security program_ ____________________ 431
D. The emergency detention program, 1946-50_______________ 436
E. The Emergency Detention Act of 1950 and FBI/Justice
Department noncompliance_____ ________________ __ ___ __ 442
F. The scope of FBI "subversion" investigations______________ 448
G. The Justice Department and FBI intelligence investigations__ 452
H. FBI investigations of "hate groups" and "racial matters" __ 454
I. Legal authority for domestic intelligence_ _________________ 457
J. FBI intelligence and international tension, 1961-63________ 464
V. FBI Intelligence and Domestic Unrest: 1964-74__________________ 469
A. Klan intelligence_______________________________________ 470
B. FBI intelligence and the black community________________ 475
C. COMINFIL investigations-"Racial matters" ____ 479
D. COMINFIL investigations-The antiwar movement and
studentgroups_______________________________________ 483
E. Civil disturbance intelligence_ ___________________________ 489
F. The Justice Department and the IDIU___________________ 495
G. "New Left" intelligence__ __ __ __________ ____ ____ __ __ __ __ _ 505
H. Target lists and the security index________________________ 510
I. Investigations of "foreign influence" on domestic unrest____ 519
J. Intensifications after the 1970 "Huston plan" ______________ 525
K. The 1971 inspection reports _____________________________ 531
L. The "new" Internal Security Division and turmoil in the
FBI, 197L_ __ __ __ ________ _________________ _____ __ __ _ 536
M. The "administrative index" ________ ___ ________________ __ 542
N. Curtailment of FBI domestic intelligence__________________ 548
O. Reauthorization of FBI domestic intelligence______________ 554
(373)

THE DEVELOPMENT OF FBI DOMESTIC INTELLIGENCE
INVESTIGATIONS
1. 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, too, t~e
initiative in 1.936 to establish the Bureau's intelligence structure. Until
this Committee's investigation, there has never boon 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.Ame~ican 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.!
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 con-
1 Separate Committee Reports deal with the most intrusive investigative tech.
niquf's (Elf'ctronic Survl'illillnce. Surreptitious Entry, Mail Openin~, and Informants),
FBI programs going heyond investigation to the disruption of
targeted ~roups and individuals (COINTELPRO), and one specific case stud"
combining all types of Bureau operations (Dr. Martin Luther King, Jr.).
(375)
376
nection 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 documpnts 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 origms 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 cnmes 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 It
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
"FBI Intelligence Division, Position Paper on Jurisdiction, 2/13/75; FBI Intelligence
Division, An Analysis of FBI Damestic Security Intelligence In1Jestigaticms:
Authority, Official Attitudes, and Activities in Histf»"ioal Perspective,
10/28/75.
3 A separate Committee report ~onsiders the subjl'ct of foreign counterintl'lligence
as it relates to 'both the FBI and U.S. foreign and military intelligence
agencies.
377
before the war; and they continued to be used through the Cold War
period to the 19608 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 19608, 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 del?rive others of their civil rights, to civil
disorders growing out of mmority 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, intelligen<X'
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 background
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 oranch 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
• See Committee Report on FBI Informants.
• Instead, the investigations often led to covert actions to disrupt and discredit
the targets. (See Committee Report on COlx'rELPRO.)
378
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 1 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 ag-ents,
including sabotage and espionage directed at the United States m 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.s In
• Joan M. Jensen, Military Surveillance af Civilians in America, (Morristown,
N.J.: Genel"al Learning Press 1975), p. 5.
1 Joan M. Jensen, The Price of Vigilance (Chicago: Rand McNally, 1968), p.12.
• Jensen, Military Surveillance, pp. 4-5.
379
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 Burean
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.lO
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
• 41st Cong., Sess. III, Ch. 14.
,. ~Iax Lowenthal, The Federal Bureau ot Investigation, (:\'ew York: Harcourt
Bmce Jovanovich, 1950), pp. 10--13.
1128 U.S.C. 533(3).
12 Jensen, The Price ot Vigilance, 15; Homer Cummings and Oar! :\IcFarland,
Federal Justice (New York: :\IadIHlan Co., i(37) , pp. 415--416.
69-984 0 .. 76 - 25
380
States. According to the authorative 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-nme had not
been fully cleared of suspicion. Three hundred and sixtyseven
had been cleared of specific offenses. Others, after investigation,
had been eliminated from the lists.1s
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 Immigration 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 I, 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. Dome8tic Intelligence tn 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 CO~OTess 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
Deman, who immediately began training intelligence officers and or·
ganizing 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 Gennan
espionage agent during the warY
U Cummings and McFarland, Federal Justice, p. 416.
"33 U.S. Statutes at Large 1214.
1£ 39 U.S. Statutes at Large 889.
18 WiUia.m Preston, Aliens aM Dissenters (Cambridge: Harvard University
Press, 1963), p. 84.
17 Jensen, The Price of VigilaMe, PP. 118-119.
381
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
wha.t they felt might suffice to answer the problem. The
American Protective League (APL) composed of well-meaJ1ing
priva.te 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 induoted into the military service and 15,000 were referred
to draJt boards.'s
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
~cA~oo, establishment of a centralized body to coordinate domestic
~ntelhgence work. The Treasury Department's proposal was rejected
III early 1918, because of the objections of Colonel Van Deman, Bureau
18 FBI Intelligence Division-An Analysis of FBI Domestic Security Intelligence
Investigations: Authority, Official AttitUdes, and Activities in Historical
Perllpective. 10/28/75.
10 Memorandum of F. X. O'Donnell, 10/24/38.
382
Chief Bielaski, and the Attorney General's Special Assistant for wILr
matters, John Lord O'Brien. Thereafter the role of the Secret Service
in intelligence operations diminished in importance.2o
During World War I the threat to the nation's security and the war
effort was perceived by both government and private intelli~nce
agencies as extending far beyond activities of enemy agents. CritIcism
of the war, opposition to the draft, expression of pro-Gennan 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
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 immensefressure
brought to bear throughout the war upon the Department 0 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.2~
O. The Post-War "Rea Scare" and the "Palmer Raids"
The end of the war in 1918 did not bring about the termination of
domestic intelligence orerations. 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 federILI
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
.. Jensen. The Price of VigiZanoo, pp. 102-103.
•1 Act of June 15, 1917, Title I, Section 3.
.. 'l'he Supreme Court upheld such convictions in Sohenck v. U.S., 249 U.S. 47
(1919) ,and Abrams v. U.s., ZOO U.S. 616 (1919) .
.. Zechariah Chafee, Free Speech in the United States (Cambridge: Harvard
University Press, 1941), p. 69.
.. Cummings and McFarland, Federal Justice, p. 427.
383
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 existmg state or federallaws
or under legislation of that nature which may hereinafter be
eJUWted." (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
organizaitons 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 subordill'ates: 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 dedared 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 proceedmgs against those who
preached anarchy and sedition. According to hishiogrwpher, after
passage of the Senate resolution Palmer decided that the "very liberal"
provisions of the Bill of Rights were expendahle 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
lIS Act of October 16, 1918.
.. Confidential Memorandum to all Special Agents and Employees, 8/12/19.
.., Cohen, A. Mitchell Palmer (New York, Columbia University Press, 1963),
pp. 130, 207.
'" Collen, A. Mitchell Palmer, pp. 210, 215-216; see also Preston, Aliens and
Dissenters, cbs. 7-8; Cbafee. Free Speech in the United States, cb. 5; Robert K.
Murray, Red Scare: A StUdy in National Hysteria (Minneapolis: U. of Minnesota
Press, 1955).
384
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, intimidoating preliminary interrogations
of aliens held incommunicado, highhanded levying of excessive bail,
and denial of counsel." 29 Apart from the unavoida:ble administrative
confusion in such a large-scale operation, these a:buses have been attributed
to several cruci'al 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
IntellilZence 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 immi~tion
officials that since the purpose of the raids was to suppress agItation,
he could not see the sense in letting radicals spread their propalZanda
while out on bail.3• 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."
3li However, despite the Justice Department's pleas, the Secretary
of Labor ordered a return to previous policies after the raids,
• Preston, AZiens and Dissenters, p. 221.
mConfidential Memorandum, 8/12/19.
31 Memorandum from Burke to Caminetti, 11/19/19, cited in Preston, AZien8
and Dissenters, pp. 216-217.
.. Memorandum from Hoover to Caminetti, 12/17/19, cited in Coben, A. Mitchell
Palmer, p. 223.
.. Memorandum from Hoover to Caminetti, 1/22/20, cited in Preston, AZiens
and Dissenters, p. 219.
.. Memorandum from Hoover to Caminetti, 3/16/20, cited in Preston, AUens
ana Dissenters, p. 219.
.. Uemorandum from Hoover to Caminetti, 2/2/20; 4/6/20, cited in Preston,
AUens and Dissenters, p. 224.
385
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 counselor 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 provocatewrs, and
forcing aliens to incriminate themselves. Its report described federal
intelligence operations in the following terms:
We ~o not question the right of the Depa.rtm~nt of Justice ~o
use Its agents in the Bureau of InvestlgatIOn to ascertam
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
.. Preston, Aliens and Di83enter8, p. 222.
37 Memorandum from Hoover to Caminetti, 3/16/20, cited in Preston, Alien.!
and Dis.Yenters, p. 223.
.. Preston, AUenil and Di~8enters, pp. 223-224; see Louis F. Post, Th-e Deporla-tionll
Delirium of Nineteen-Twenty (Chicago: Kerr, 1923) .
.. National Popular Government League, Report Upon the IZlegaZ Practice8 of
the United States Department of Justice, May 1920.
.. Memorandum from J. Edgoar Hoover to General Churchill, 1/23/20; 5/13/20,
cited in Preston, Aliens and Dissenters, p. 225.
386
The work of the General Intelligence Division was summarized by
J. Edg.ar.Hoover in a reportyrepared later in 1920. Even though federal
cflmmal statutes were "madequate 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
U~ited 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 reeults 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, t'hus
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 t!he 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
387
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 partiel'! 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 Diroot.or of the Bureau. Although the
deportation program was strictly limited. hy Labor Department policies,
the Bureau still supplied results of its surveillance operations
to stRte 'authorities for the prosecution of Communists.43 Hoover also
•• Memorandum from J. Edgar Hoover, re: General Intelligence Division,
10/5/20.
.. Jensen, Military Surv@iUance, pp. 18-22.
.. Don Whitehead, The FBI Story (New York, Random House, 1956), pp. 61-62.
388
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, wOOllen's groups, and Negro groups. Radioo.l propaganda was
"being s~m~ad in the churches, schools and colleges throughout the
country.' The Bureau also told Congress that it was furnishing information
for prosecutions under &.aite laws punishing "criminal syndicalism
and anarchy." 45
D. Att(;'f"J'Wy 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 statutes,
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 hood 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 incoonpetent 'and unreliable," and the future seleotion of "men
of known good character 'and ability, giving preference to men who
have had some legal training." 41 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
.. FBI, Digested History, 2/1/40.
.. Lowenthal, The Federal Bureau of Investigation, pp. 273-279.
.. Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law, (New York,
Viking, 1956), pp. 149-151.
<1 Memorandum From Attorney General Stone to J. Edgar Hoover, 5/13/24,
cited in Mason, Harlan Fiske Stone: Pillar of the Law, p. 151.
<. Mason, Harlan Fi!lke Stone: Pillar of the Law, pp. 150-152; Donald Johnson,
The Challenge to American Freedom8: World War I and the Rise of the Americlm
Civil Liberties Union (D. of Kentucky Press, 1963), p.174.
389
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 Umon 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 effici~nt
law enforcement agency, employing law school graduates, severmg
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 :r.rosecution under the Logan
Act, enacted in the 1790s to punish hostlle 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 fOrInal 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
•• Mason, Harlan Fiske Stone: Pillar of the Law, p. 113. See Charges Of Illegal
Practice.~ Oi! the Department of Ju.~tice, Hearings before the Senate Committee on
the Judiciary, 66th Congo 3rd Sess. (1921).
'" Johnson, The ChaUen.qe to Amrrican Freedoms, pp. 174-175.
61 Baldwin v. Franks, 120 U.S. 678.
52 MemorHndum from FlHrl .J. DHyi~ to the Attorney General, 6/10/24, ('ited in
Preston, Aliens and Dissenters, pp. 241-242.
<3 Memorandum from Roger Baldwin. 8/7/24. ('ited in Preston, Aliens and Dissenters,
p. 243.
390
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. Ed~ar 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
militaryP
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
in.vestigate 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
54 Memorandum from Hoover to the Attorney General, 12/13/24.
.. Memorandum from Hoover to Ridgeley, 5/14/25.
.. Memorandum from Colonel Reeves, Office of the Chief of Staff, to Hoover,
9/29/25.
WI Memorandum from Hoover to Colonel Reeves, 10/7/25.
58 U.S. Senate, Committee on Education and Labor, IndustriaZ Espionage, 75th
Cong., 2d Sess. (1937), cited Jerold Auerbach, Labor and Liberty: The LaFoZZCtte
Committee and the New DeaZ (Indianapolis: Bobbs-Merrill, 1966), p. 98.
50 Jensen, Military Surveillance, pp. 23--24.
391
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
STRUC11JRE, 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, 1'798
Since 1936 the Federal Bureau of Investigation has been the primary
civilian agency charged with domestic intelligence responsibil-
00 Memorandum of telephone call between J. Edgar Hoover and Congressman
Fish, January 19, 1931.
111 Memorandum from Hoover to the Attorney General, 1/2/32.
392
ities. 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 FBJ.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 alse
been kept confidential until recent years.63 Although President Roosevelt's
1940 directive authorizing warrantless wiretapping by the FBI
for national security purposes has lon~ been a matter of record, the
FBI's practices for breakmg-and-entermg 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 a~d
policies for the federal ~overnment. The President used his executive
authority to determme which of the several competin~ civilian
agencies of the government would carry out domestic intelhgence 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
beginnin~ 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
.. Whitehead, The FBI Story, pp. 157 ft.
.. The 1949 delimitations agreement between the FBI and the military intel·
Iigence agencies was released by the .Justice Department in 1974, but an earlier
agreement has not previously been publi!'hed. See Domestic Intelligence
Operations for Internal Security Purposes, Hearings before the House Committee
on Internal Security, 93d Cong., 2d Sess. (1974), pp. 3369-3383.
... Confidential Memorandum by J. Edgar Hoover, 8/25/36.
.. Letter from Attorney General Homer Cummings to President Roosevelt and
enclosure, 10/20/38.
393
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 Cong-ress 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 lmilateral 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 espiona~e in the
United States and that in an emergency "some organizatlons ...
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." 6. In addition to these foreignrelated
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 ""Vest 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
OIl Memorandum from J. Edgar Hoover to Mr. COWley, 5/10/34.
.. Letter from Secretary of War George H. Dern to Attorney General Homer
Cummings 1/6/36. Attorney General Cumming"! discussed the matter with Secretary
Dern, although he gained the impression that ",there was no particular
urgency." Memorandum from Attorney General Homer Cummings to J. Edgar
Hoover, 2/19/38.
.. Confidential memorandum by J. Edgar Hoover, 8/24/36. General Butler also
recounted attempts by right-wing elements to persuade him to join plans for
an anti-New Deal "coup" to a congrl'ssional committee. Arthur M. Schlesinger,
Jr., The Politics of Upheaval (Boston: Houghton :\Iifflin, 1960), pp. 82-85.
394
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." 70 Thus,
it was the international character of Communism and Fascism that
.. Hoover memorandum, 8/24/36.
70 Hoover memorandum, 8/25/36.
395
both justified the Secretary of State's request and underlay the President's
desire for domestic intelligence,71
B. The Original Legal Authority for D01neStW 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 request 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
71 Recently, FBI officials have differed in their interpr~tationsof these events.
An FBI study in 1972 concluded that "the concern for national security was
related to two international movements" in the pre-World War II period and
that "there was no national concern for indigenous anarchists or other groups
designing to overthrow the Government." FBI Memorandum, Scope 01 FBI Authority,
Jurisdiction and Responsibility in Domestic IntelUgence Investigations,
7/31/72. However, a later study contends that the Secretary of State's request
was a device to satisfy the provisions of the FBI appropriations statute and did
not set "jurisdictional limits." The State Department's involvement "did not
serve in some way to limit the scope of investigation to foreign or foreign-controlled
activities to the excluFion of domestic." FBI Intelligence Division, An
Analysis of FBI Dnme.~tic Security hl1:e,'Ugntinn.•, 10/28/75. Except for the reference
to General Butler and Father Coughlin, FBI records pertaining to the origins
and implementation of President Roosevelt's order tend to support the former
position.
'llI Memorandum from Attorney General Harlan F. Stone to J. Edgar Hoover,
Acting Director of the Bureau of Investigation, 5/13/24.
,. Hoover memorandum, 8/24/36.
74 Hoover memorandum, 8/25/36.
69-984 a - 76 - 26
396
Director Hoover's reliance on the specific provision of the appropriations
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 implictIons of this provision in 1924.75 Although 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 Intelh~ence 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 relyin~
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.
O. The FBllntelligenee Progr(JJYn, 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." 18
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
'IS Memorandum from J. Edgar Hoover to Attorney General Harlan F. Stone,
12/13/24.
T. Hoover memorandum, 8/25/36.
7T Memorandum from Hoover to Tamm, Strictly Confidential, 9/10/36.
.. Memorandum from Hoover to Field Offices, 9/5/36.
397
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 adoptR,d :
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
matR,rial previously submitted," and to "prepare memoranda dealing
individually with those persons whose names appear prominently a,t
the present time in the subversive circles." The Director was to receive
daily memoranda on "major developments in any field" of subversive
aotivities.19
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 striotly 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 espion~
situation" in October 1938, and to report on the need for "an additional
appropriation for domestic intelligence." The Attorney General
'11 Memorandum from E. A. Tarnm to Hoover, 8/28/36.
so Hoover memorandum, 8/24;36.
81 Memorandum from Hoover to Tamm, 9/10/36.
398
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 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 Navv, the
Army, and Justice. ConseQuentIv, 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 ofany 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 lOet up a
General Intelligence Section to investigate and correlate information
dealing with "activities of either a subversive or a so-called intel1i~nce
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 subiect matter
in the Intelligence Section files: "Maritime; government;·industry
.. Letter from Cummings to the President, 10/20/38.
.. 28 U.S.C. 533(3),
.. Hoover memorandum, enclosed with letter from Cummings to the President,
10/20/88.
399
(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 intelli~nce 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 exohanged information of interest to
one another, both in the field and at headquarters in Washington.
For the future, all three a~ncies 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 danp;er there is of its becominp; a matter of general
public knowledge." The FBI hoped to expand its personnel so
that It could assign an agent specializmg in intelligence to each of its
forty-fite field offices and could reopen offices in Hawaii, Alaska, and
Puerto'Rico. Additional funds would also be used to expand FBI
faoilities for "specialized training in general intelligence work." 88
Director Hoover met with the President in November 1938 and
learned that he had instructed the Budg:et 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-espionag-e 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 figuresY
.. Hoover memorandum, enclosed with letter from Cummings to the President,
10120138;--- -
.. Hoover memorandum, enclosed with letter from Cummings to the President,
10/20/38.
Of Confidential memorandum, by J. Edgar Hoover, 11/7/38.
400
D. FBI 1ntelligenee Autlwrity and "Subversion"
There is no evidence that either the Congress in 1916 or Attorney
General Stone ill: 1924 intended the provision of the appropriations
statute to authorIze the establishment of a pennanent domestic intelligence
struct.ure. Y:et Director Hoover advised the Attorney General
and the Presldent ill 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 193'8 memorandum to "subversion," Attorney General Cummings
cited only the President's interest in the "so-called. espionage
situation." 88a Cummings' successors, 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." 90
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 handlint of the
'" Hoover memorandum, enclosed with letter from Cummings to the President,
10/20/38.
- Letter from Cummings to the PreSident, 10/20/38-
.. On 2/7/39, the Assistant to the Attorney General wrote letters to the Secret
Service, the Bureau of Internal Revenue, the Narcotics Bureau, the Customs
Service, the Coast Guard, and the Postal Inspection Service stating that the FBI
and military intelligence had "lUldertaken activities to investigate matters relating
to espionage and subversive activities." (Letter from >T. B. Keenan, Assistan.
t 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 "subversive activities." (Letter from Attorney Genera]
Murphy to the ISecretary of the Treasury, 2/16/39.) However, a similar letter
two days later referred only to matters "involving espionage, counterespionage,
and sabotage," without mentioning "subversive activities." (Letter from Attorney
General Murphy to the Secretary of the Treasury, 2/18/39.) Attorney General
Murphy had abandoned this reference, although there is no record of any reasons
for doing so.
.. Memorandum from J. Edgar Hoover to Attorney General 'Murphy, 3/16/39.
401
espionage work in which the Sta,t,e 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, a.nd
sabotage....
A case was rerently brought to the Bureau's attention in
which a. complaint involving potential espiona.ge in a middle
western state was referred through routine channels of a
Treasury Department investigative agency a.nd 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
ela.psed. . . .93
During a. recent investigation ... a.n 'ltttorney and Comma.
nder of the American Legion Post . . . disclQ6ed tha.t a
Committee of that Post of the American Legion is conducting
a.n investigation relating to un-American activities on behalf
of the Opel"llJtor 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 Narcoti~
Bureau, the Customs Service, the Coast Gua.rd, and the Post
Offic Department to instruct their personnel that information "relating
to espionage 'lUld subversive activities" should be promptly forwarded
to the FBI.95
The Justice Department letter did not solve the problem, mainly
because of the State Depa.rtment's continued intervention. Director
Hoover e.dvised Attorney General Frank Murphy "that the Treasury
Department and the State Department were reluctant to concede juris-l
diction" to the FBI and that a conference had been held in the office
of an Assistant Secretary of State "at which time subtle protests
agu.inst 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." 98
.. Memorandum from Hoover to Murphy, 3/16/39.
.. Memorandum from J. Edgar Hoover to Alexander Holtzoft', Special Assistant
to the Attorney General, 1/18/39.
.. Memorandum from Hoover to Murphy, 3/16/39.
.. Memorandum from Hoover to the Acting Assistant to the Attorney Genernl,
5/5/39.
.. Letter of J. B. Keenan, Assistant to the Attorney Genernl. 2/7/89. (Compare
the similar ietter from Attorney Generni Murphy, omitting the term "subversive
activities," at p. 401, nota93.)
.. Memorandum from Hoover to the Attorney General, 3/16/39.
402
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 del,ay 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 recommend'ation, 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 equip~
ped, and adequately manned technical laboratory and. identifioation
division." This identification data related "to more than ten million
persons, including a very large number of individuals of foreiWl 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:
'" Memorandum from E. A. Tamm to Hoover, 5/31/39.
.. Letter from Murphy to the President, 6/17/39.
403
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 N'avy
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 saJbotage,
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 sabotJage.99 [Emphasis added.]
The legal implications of this directive are clouded by its failure
to use the term "subversive aciivities"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. Yat the scope of the
FBI's assignment made this a troublesome point. In 1936, President
Roosevelt had IWRnted intelligence a'bout 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 dirootive 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 Dirootor 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 deJl:..ectives
... and that this squad will'be augmented in the rather near
future to comprise 150 men." There had been "considerable publicity"
.. Oonifidential Memorandum of the President, 6/26/39. PreSident Roosevelt
also dictated a separate additional memorandum fur S~retary Hull which read,
in part, "This does not mean that the intelligence work of the State Department
should cease in any way. It should be carried on as heretofore but the directors
of the three agencies should be constantly kept in touch by the State Department
with the work it is doing." (Memorandum from the President to the Secretary
ot State, 6/26/39.)
100 Hoover memorandum, enclosed With letter from Cummings to the President,
10/20/38.
404
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." Galling 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 regul'ations." 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 i't be issued in the
form of "a public statement".l02 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.lOS
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.lo4
:rhe statement was widely reported in the press, along with the followmg
remarks by Attorney General Murphy at a news conference held
the same day:
ForeiWl agents and those enga~ in espionage will no
longer find this country a happy hunting ground for their
llI1 Memorandum from Hoover to the Attorney General, 9/6/39.
... Letter from MUTlphyoo the President, 9/6/39.
... E. A. Tamm, Memoranda for the File, 9/6/39, 11:34 a.m., 12 :47 p.m., 2:30
p.m., 6 :20 p.m. This memo1"llndum indicates Thmm was told that the President's
statement would declare that the FBI was authorized to investigate "subversive
activloties." There is no explanation for the disparity between this message
and the President's actual statement.
1" Statement of the Ptresident, 9/6/39.
405
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 tadded, "Twenty years ago inhuman
'and cruel things were done in the nllJffie 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
proelaimeda nllitional emergency "in connection with and to the extent
necessary for the proper observ'ance, 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." 101
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
thltt the purpose of this order expa,nding the government's investigative
·personnel was to protect the country against "some of the
things thaJt hltppened" before World War I:
There was sabotage; there was a great deal of propaganda by
both belligerents, and It 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 nlttion of propaganda in this country
which would tend to be sulbversive-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 oval instruction in 1936 and
1938. His written directives were liInited to investigations of espionage,
sltbotage, and viollttions of the neutrality regulations. Nevertheless,
the President clearly knew of Itnd ·approved informally the broad
investigations of "subversive activities" carried out hy the FBI.
101 New York Times, 9/7/39, p. 8, col.!.
100 New York Times, 10/lj39, p. 3'8, col. 3..
107 ProcLamation, 9/'8/89, 54 8ta·t. 2643.
1<8 Executive Order No. 8247, 9/8/39, cited in letter from Attorney Geneml
Murphy to the P1resident, 9/J.2/00, Roosevelt Liibrary, Official File 14-<b, Box N.
lOll 1939 Public Papers of Franklin D. Roosevelt, pp. 495-496.
406
President Roosevelt did use the term "subversive activities" in a
directive to Attorney General Robert J1ackson on wiretapping in 1940.
This dirootive 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 dirooted to
authorize wiretapping "of persons suspected of subversive activities
against the Government of the United States, including suspected
spies." The President also instruoted that such wiretJaps 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 Presldent's directive of September 6, 1939.
Four months later, President Roosevelt renewed his public RpJ?eal
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 tothe FBI and
not simply a "clearing-house" function. However, the President defined
that authority as limited to "espionage, sabotage,. and violatiQ.n
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-espiona~" and "counterintelligence."
However, none of the President's public directives formally
authorized counterespionage measures going beyond investigano
Confidential memorandum from President Roosevelt to Attorney General
Jackson, 5/21/40. In May 1941 the Secretary of War and the Secretary of the
Navy urged "a broadening of the investigative responsibility of the Federal
Bureau of Investigation in the fields of subversive control of labor." (Memorandum
from the Secretary of War and the Secretary of the Navy to the President,
5/29/41.) The President replied that he was sending their letter to the Attorney
General with my general approvat (Memorandum from fuesident Roosevelt
to the Secretaries of War and Navy, 6/4/41.) Attorney General Biddle's
response cited investigations under the recently enacted Smith Act. (Memorandum
from Attorney General Biddle to the President, 6/23/41.)
1n Attorney General's Order No. 3732,9/25/42.
1U Statement of the President on "Police Cooperation," 1/8/43. A note in
the President's Ihandwriting added that the FBI was to ,receive klformation
"relating to espionage and related matters." '
116 Memorandum from Attorney General Biddle to Assistant Attorney General
Hugb Cox and J!1BI Director Hoover, 7f16/43.
407
tion; and the Justice Department's 'regulations made no reference to
this responsibility.
E. Oongre88 aM FBI InteUigence
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 Intelligen<le 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 year1
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 1
Mr. HOOVER. Yes.
Director Hoover also pointed out that this expansion would increase
the number of FBI agents from 797 to 947.118
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
110 Hoover did not refer to the provision of the appropriations statute linked
to the State Department which he bad relied upon for authority before 1939.
11' Emergency Supplemental Appropriation Bill, 1940, Hearings before the
House Committee on Appropriations, 11/30/39, pp. 303-307.
n, JustkJe Department Appropriation Bill, 1941, Hearings before the Houae
Committee on Appropriations, 1/5/40, p. 151.
408
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 l
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 tel'minate, 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
speHed 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 tJhe security of this country.
Their backgrounds and activities are known to the Bureau.
These indexes will be extremely important and valuable in
grave emergency.
110 SupplementaZ NationaZ Defense Appropriations, 1941, Hearings before the
House Committee on Appropriations, 6/6/40, p. 180.
11lI First Deficiency Appropriation Bin, 1941, Hearings before the House Committee
on Appropriations, 2/19/41, pp. 179, 188--189.
409
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 agrooment
of military intelligence, the FBI also handled the protection of defense
plants and advised industry officials on security measures.l2O 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 S8Jboteurs, le:ading 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,
sa;botage, 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 Genera1'3
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 investiga-
,.. 1939 Hearings, pp. 804-305.
w. January 11»0 Hearings, pp. 152-154.
,.. June 1940 Hearings, p. 181.
1>3 Letter from Attorney General Robert H. Jackson to Senator George Norris,
86 Congo Rec. 5642--5643, cited in Max Lowenthal, The FederaZ Bureau of 111IIJeltt~
gation (New York: Sloane, 1950), p. 445.
410
tions, 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 wireta'Pping 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.m
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 legislationreql1iring the registration
of foreign agents disseminating propaganda in the United
States.m 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 ~overnments 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 inclu'ding American citizens whose political activities
might lead thOOl to serve the interests of opposin~ nations. Attor-
".. H.J. Res. 571, 76th Cong., 2d Sess. (1940). See also Permitting Wire Tapping
in Certain Cases, report to accompany H.J. Res. 571, House Committee on the
Judiciary, 76th Cong., 2d Sess. (June 14,1940).
uo 18 U.S.C. 2885, 2887.
""18 U.S.C. 2386.
127 Zechariah Chaffee, Jr., Free Speooh in the United States (Cambridge: Harvard
University Press, 1941), pp. 439-441.
"'22 U.S.C. 611-621. See Investigation of Nazi and Other Propaganda, H. Rept.
153 (February 15, 1935).
uo Report of the Commission on Government Security (1957), p. 621. The Administrative
Director of this Commission was D. Milton Ladd, who was Assistant
Director for the FBI Intelligence Division during the 1940s and Assistant to the
Director in charge of all FBI intelligence and criminal investigations until 1954.
411
ney 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 surveillarwe at the same time as he warned against proaemvtion
of "subversive activity." It was a dangeJ:ous 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.13l
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
J-ackson 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 con-
130 Proceedmgs of the Federal-State Conference on Law Enforcement ProbZems
Of National Defense (August 5-6.1940).
131 Robert H. Jackson, "The Federal Pros~utor," JOU1"'fW,Z of the America.n
Judicature Society (June 1940), p. 18.
69-984 0 - 76 - 27
412
viction 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 in limiting any national policing
or investigative organization, first of all to a small number
of 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 therea.fter. 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
... Robert H. Jackson, The Supreme Oourt in the American System of Government
(New York: Harper Torchbook, 19(3), pp. 70-71.
413
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 stI10ngly
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 infor-
III Memorandum from Hoover to Field Offices, 9/2/39.
1M Memorandum from Clyde Tolson to Hoover, 10/30/39.
136 Memorandum for E. A. Tamm, 11/9/39.
414
mation, newspaper morgues, 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 forei~ 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 "custodia,l 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 revoluationary 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
bea 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,
138 Memorandum from Hoover to Field Offices, 12/6/39.
1:rt Memorandum for E. A. Tamm. 12/2/39.
138 Memorandum from Hoover to Field Offices, 6/15/40.
139 Memorandum for the Director, 8/19/40.
'''' Memorandum from Hoover to M. F. McGuire, the Assistant to the Attorney
General,8/21/4O.
415
masquerading behind front organizations." 141 Intelligence about
"front" groups was transmitted to the White House. For example, in
19:37 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 elece
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. IV!
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 Na,tionalist Party, and even
141 Proceedings of the Federal-State Conference on Law Enforcement Problmns
Of National Defense, 8/5-6/40.
1.. Letter from Attorney General Cummings to the President (and enclosure),
1/30/37. (FDR Library.)
143 Letter from Attorney General Cummings to the Presidoot (and enclosure)
8/13/37. (FDR Library.)
"4 Report of New York City Field Office, 10/22/41, summarized in Justice Depart
memorandum from S. Brodie to Assistant Attorney General Quinn, 10/10/47.
145 Report of Chicago Field Office, 12/29/44, summariZed in Justice Depart'ment
memorandum from S. Brodie to Assistant Attorney General Quinn, 10/9/47.
416
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" bv Communists to determine
whether it was being used as a "front" foi· carrying out the Communist
programy7
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 Nav,Y Department
for an investigation of protests against racial discrimmation in
the Navy by "fifteen colored mess attendants." FBI agents used an informant
to determine the NAACP's "connections with the communist
party 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
,.. Justice Department memorandum re Christian Front, 10/28/41.
1<7 Report of New York City Field Office, 9/7/45, summarized in Justice Department
memorandum from S. Brodie to Assistant Attorney General Quinn, 10/9/47.
". Report of Washington, D.C. Field Office, 3/11/41.
,.. Report of Oklahoma City Field Office, 9/19/41.
1M Report of Los Angeles Field Office, 7/27/42; report of Norfolk, Virginia Field
Office, 4/[1.8/42.
m Report of Louisville, Kentucky Field Office, 2/13/43.
152 Report of Savannah, Georgia Field Office, 9/9/43.
,.. Re'port O'f Oklalhoma City Field Office, 10/29/43.
417
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 compile'd ,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." 157
G. The 01t8todial 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 .JapaneseAmericans
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 rea'ction 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
154 Rl'port of Chicago Fil'ld Office. 11/24/43.
155 Report of Dl'troit Fil'ld Office, 1/15/44.
'''' Report of Detroit ]'ield Office, 1/1;)/44.
157 Whitehead, The FBI Story, p. 329.
158 Sl'e Roger Daniels, Ooneentration Oamps USA; Japanese-AmeriCIJInB and
World War II (New York: Holt, Rinehart, and Winston. 1971) ; Stetson Conn,
et aI., 'l'ke United States Army in World War II; The Western Hemigpher8:
Guarding the United States and Its Outposts: (1964).
418
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
1I!00ited in memorandum from J. Edgar Hoover to the Attorney General,
10/16/40.
'80 Memorandum from Stimson to the Attorney General, 8/26/40.
101 It is not clear whether Hoover may have had in mind the secret arrangements
with British intelligence established at that time at President Roosevelt's
instructions. These arrangements have recently been made public in a book based
on previously classified British records. [William Stevenson, A man Called Intrepid
(New York: Harcourt Brace Jovanovich, 1976.) ].
,.. Memorandum from J. Edgar Hoover to L. M. O. Smith, Chief Neutrality
Laws Unit, 11/28/40.
," Memorandum from M. F. McGuire, Assistant to the Attorney General, to
J. Edgar Hoover and L. M. C. Smith, 4/21/41.
419
concerns, the Department agreed that any formal proceeding would be
postponed or suspended if the FBI indicated that it "might interfere
with sound investigative techniques." The FBI was assured that the
plan "does not involve any abandonment by the Department of its
present facilities for obtaining information in connection with subversive
activities by surveillance or counterespionage." There would be
"no public disclosure of any confidential informants ... without the
prior approval of the Bureau." 164 Thus, from 1941 until 1943 the Justice
Department had the machinery to oversee at least this aspect of
FBI domestic intelligence.
The wartime detention plans envisioned entirely civilian proceedings
for arrest of alien enemies following a Presidential proclamation
pursuant to statutory provisions, and all warrants would 'be authorized
and issued by the Attorney General.'65 Separate instructions stated
that, with respect to American citizens on the list and "notsubject to
internment," a Departmental committee would consider whether specific
persons should be prosecuted under the Smith Act of 1940 "or
some other appropriate statute" in the event of war.166
FBI instructions to the field reiterated the types of organizations
whose members should be investigated under the Custodial Detention
Program. In addition to the groups listed in 1940, the order included
the Socialist Workers Party (Trotskyite), the Proletarian Party,
Lovestoneites, "or any of the other Communistic organizations, or ...
their numerous 'front' organizations," as well as persons reported as
"pronouncedly pro-Japanese." 167
FBI officials were concerned that the Department plan did not provide
sufficiently for action against citizens. In addition to the Smith
Act of 1940, FBI officials pointed out to the Department "the possibility
of utilizing denaturalIzation proceedings." At the FBI's request,
the Special Departmental Unit prepared "a study of the control of
citizens suspected of subversive activIties." As later summarized by the
FBI, the study stressed :
... the great need for a federal overall plan of legislation to
control suspected citizens, rather than isolated statutes
which would care for particular citizens.... It was pointed
out that the British system of defense legislation had been to
enact a general enabling statute under which the executive
authority is permitted to promulgate rules and regulations
having the effect of law, and it was suggested that, if this
country entered the war, a similar type of statute should be
enacted which would enable the President to set up a system
of reg-ulations subject to immediate change and addition as the
need arose.'68
Attorney General Francis Biddle did not endorse this position. Instead,
the Department's Special Unit relied upon recently enacted
,.. Memorandum from M. F. McGuire to J. Edgar Hoover, 4/17/41.
'66 Memorandum from M. F. McGuire to Hoover, 4/17/41.
,.. Memorandum from McGuir~ to Hoover, and L. M. C. Smith, 4/21/41.
187 Memorandum from Hoover to Field Offices, 4/30/41.
'68 Memorandum from D. M. Ladd to the Director, 2/27/46.
420
specific statutes as the basis for its planning. These included the Foreign
Agents Registration Act of 1938, the Smith Act of 1940 making
it a federal crime to urge military insubordination or advocate the violent
overthrow of the government, and the Voorhis Act of 1941 requiring
the registration of organizations having foreign ties and advocating
the violent overthrow of the government.
Acting at "the post-investigative level," the Special War Policies
Unit considered these and other statutes as the basis for coordinating
"affirmative action on the internal security front." Its annual report
in 1942 stated:
The Unit deals with new forms of political warfare. As part
of its equipment, it has engaged analysts with special experience
and schooling in the field of political organization
and ideologies. The Unit has not only sought to collate information
regarding dangerous individuals and organizations;
it has sought to bring together a trained staff equipped
to understand the methods, beliefs, relationships and subversive
techniques of such individuals and organizations for
the purposes of initiating appropriate action.l6D
During the period 1941-1943 the Special Unit included a Foreign
Agents Registration Section, a Sedition Section, an Organizations and
Propaganda Analysis Section, and a Subversives Administration composed
of a Nazi and Fascist Section and a Communist Section. The
Special Unit initiated such wartime measures as the internment of
several thousand enemy aliens, the denaturalization of members of the
German-American Bund who had become American citizens, sedition
prosecutions, exclusion of publications from the mails, and prosecution
of foreign propaganda agents. The Unit received and analyzed reports
from the FBI, the State Department, the Office of War Information,
and the Office of Strategic Services. Attorney General Biddle abolished
the Special Unit in July 1943 and transferred its prosecutive functions
to the Criminal DivisionYO
In 1943, Attorney General Francis Biddle also decided that the Custodial
Detention List had outlived its usefulness and that it was based
on faulty assumptions. His directive to the FBI and the Departmental
Unit stated:
There is no statutory authorization or other present justification
for keeping a "custodial detention" list of citizens. The
Department fulfills its proper function by investigating the
activities of persons who may have violated the law. It is not
aided in this work by claSSlfying persons as to dangerousness.
Apart from these general considerations, it is now clear to
me that this classification system is inherently unreliable.
169 Annual Report of the Attorney General for Fiscal Year 1942, p. 209.
170 Annual Report of the Attorney General for Fiscal Year 1944, pp. 17,234-247.
From 1940 to 1943, a National Defense Section on the Criminal Division had
supervised espionage and Selective Service prosecutions. It was renamed the
Internal Security Section in 1943.
421
The evidence used for the purpose of making the classifications
was inadequate; the standards applied to the evidence
for the purpose of making the classifications were defective;
and finally, the notion that it is possible to make a valid determination
as to how dangerous a person is in the abstract
and without reference to time, environment, and other relevant
circumstances, is impractical, unwise, and dangerous.17l
Upon receipt of this order, the FBI Director did not abolish the FBI's
list. Instead, he changed its name from Custodial Detention List to
Security Index.172 The new index continued to be composed of individuals
"who may be dangerous or pot~ntially dangerous to the public
safety or internal security of the United States." Instructions to the
field stated:
The fact that the Security Index and Security Index Cards
are prepared and maintained should be considered strictly
confidential, and should at no time be mentioned or alluded to
in investigative reports, or discu$ed with agencies or individuals
outside the Bureau other than duly qualified representatives
of the Office of Naval Intelligence and the Military Intelligence
Division, and then only on a strictly confidential
basis.113
The Attorney General and the Justice Department were apparently
not informed of the FBI's decision to continue the program for dangerousness
classification under a different name.
Moreover, FBI investigations did not conform to Attorney ~neral
Biddle's statement that the Justice Department's proPer function was
investigation of "the activities of Persons who may have violated the
law." The FBI Director's instructions at the end of the war emphasized
that the Bureau investigated activities "of prosecutive or intelligence
significance." 114 However, towards the end of the war, the FBI
did limit substantially its investigation of individual Communists.
Orders to the field requiring investigation of every member of the
Communist Political Association (as the Party was named in 19431945)
were modified in 1944, when field offices were instructed to confine
their investigations to "key figures in the national or regional
units of the CPA." This directive received "widely varying interpretations"
in the field, and many offices "continued to open cases on the
basis of membership alone." Further instructions in April 1945 stated
that investigations were restricted to "key figures" or "potential key
figures" rather than on all members as had been the policy before 1944.
1n Memorandum from Attorney General Biddle to Assistant Attorney General
Cox and J. Edgar Hoover, Director, FBI, 7/16/43.
'71 Director Hoover interpreted the Attorney General's order as applying only
to the list maintained by the Justice Department's special unit. (Memorandum
from J. Edgar Hoover to FBI Field Offices, Re: Dangerousness Classification,
8/14/43.)
173 Memorandum from J. Edgar Hoover to FBI Field Offices, Re: Dangerousness
Classification, 8/14/43.
17< Bureau Bulletin No. 55, Series 1945, 9/12/45.
422
Security Index cards were "prepared only on those individuals of the
greatest importance to the Communist movement." 175
At the end of the war the head of the FBI Intelligence Division,
D. M. Ladd, recommended to Director Hoover another cutback in
operations. This proposal was approved by the FBI Executive Conference;
and the State Department and the Justice Department's
Criminal Division were advised of the changes.176 FBI field offices were
... instructed to immediately discontinue all general individual
security matter investiga.tions in all nationalistic ca.tegories
with the specific exceptions of oases involving Communists,
Russrans, individuals whose nationalistic 'tendencies
result from ideological or organizational affiliation with
Marxist groups such as the Socialist Workers Party, the
Workers Party, the Revolutionary Workers League or other
groups of similar character and members of the Nationalist
Party of Puerto Rico.
The FBI would open "no new general individual security matter investigations
... unless they fall within thea-hove specific exceptions."
However, the instructions permitted the field to continue investi'gating
"individuals whose activities are of paramount intelligence impoztance
such as individuals closely allied with political or other groups abroad,
individuals prominent in organizational activity of significance or individuals
falling within similar categories." The instructions added,
It is realized, of course, that in connection with the inteHigence
jurisdiction of the Bureau it will :be necessary ito investigate
the activities and affilia.tions of certain individuals
considered key figures in nationalistic and related activities
or considered leaders of importance in various foreign nationality
groups.... If in such an instance you have any question
as to the advisability or desirability of institut'ing such an
investigation in view of the wbove instructions, you should,
of course, refer the matter to the Bureau for appropriate
decision.
This flexibility specifically allowed for the investigation of "fascist
individuals of prosecutive or intelligence significance." 177
H. FBI Wartime Opemtions
A review of FBI intelligence work during World War II would
not be complete without brief mention of several other activities. In
1940 President Roosevelt authorized the FBI with the approval of
the Attorney General to conduct electronic surveillance of "persons
suspected of subversive activities 'against the Government ofthe United
175 In early 1946 there were 10,763 Security Index cards on "communists and
members of the Nationalist Party of Puerto Rico." (Memorandum from D. M.
Ladd to the Director, Re: Investigations ot Communists, 2/27/46.)
178 Memorandum from D. M. Ladd to the Director, 8/30/45.
m Bureau Bulletin No. 55, Series 1945, 9/12/45.
423
States, including suspected spies." 178 The Federal Communications
Commission denied the FBI access before the war to international
communications on the grounds that such intercepts violated the Federal
Communications Act of 1934.179 However, military intelligence
had secretly formed a Signals Intelligence Service to intercept internationalvadio
communications; and NaV'al intelligence arranged with
RCA to get copies of Japanese cable traffic to and from Hawaii,
although other cable companIes used hy the Japanese refused:to violate
the stJatuteagaiIlBt interception before Pearl Harbor.180 Moreover, the
FBI developed. "champering" or surreptitious mail opening techniques,
and the practice of surreptitious entry was used by the FBI in
intelligence operations.181
Several basic internal memoranda and agreements spelled out the
policies governing the relationships between FBI and military intelligence
in this perIod. The military concentrated more heavily on what
it perceived as potential threats to the armed forces, while the FBI
developed a wider and more sophisticated approach to the gathering
of intelligence about "subversive activities" generally. An example
of the Army's policy was an intelligence plan approved in 1936 for
the Sixth Corps Area which covered Illinois, Michigan, and Wisconsin.
It called for the collection and indexing of the names of several
thousand groups, ranging from the American Civil Liberties Union
to pacifist student groups alleged to be Communist-dominated. Sources
of information were to be the Justice Department, the Treasury Department,
the Post Office Department, local state police, and frivate
mtelligence bureaus employed by businessmen to keep track 0 organized
labor.182 The joint FBI-military intelligence plan prepared in
1938 stated that the Office of Naval Intelligence and the Military
Intelligence Division (G-2) were concerned. WIth "subversive activities
that undermine the loyalty and efficiency" of Army and Navy personnel
or civilians involved in military construction and maintenance.
Since ONI and MID lacked trained mvestigators, they relied before
the war 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.183
The FBI, ONI, and MID entered into a Delimitation Agreement in
June 1940 pursuant to the authority of President Roosevelt's 1939 di-
11. Roosevelt to Jackson, 5/21/40. See Report on Warrantless FBI Electronic
Surveillance.
179 Whitehead, The FBI Story, p. 225.
180 David Kahn, The Codebreakers (New York: Signet Books, 1973) (pb),
vp.11-16.
181 See Report on CIA and FBI Mail Opening; Memorandum From l!'BI to
Select Committee, 9/23/75.
182 Sixth Corps Area, Emergency Plan-White, December 1936, AG No. 386,
cited in Military SurveillaJnce, Hearings before the Senate Subcommittee on
Constitutional Rights, 93d Cong., 2d Sess. (1974), p. 174.
183 Hoover memorandum. enclosed with letter from Cummings to the President,
]0/20/38.
424
rectives. As revised in February 1942, the Agreement covered "investigation
of all activities coming under the categories of espionage,
counterespionage, subversion and sabotage." It provided that the
FBI would be responsible for all investigatIOns "involving civilians in
the United States" and for keeping aNI and MID informed of "important
developments ... including the names of individuals definitely
known to be connected with subversive activities." 1M As a
result of this Agreement and prior cooperation, military intelligence
could compile extensive files on civilians from the information disseminated
to it by the FBI. For example, in May 1939 the MID transmitted
a request from the Ninth Corps Area on the West Coast for the
names and locations of "alien and disloyal American sabotage and
espionage organizations," organizations planning to take advantage
of war-time hardships to overthrow the government, "citizens opposed
to our participation in war and conducting anti-war propaganda," and
potential enemy nationals who should be mterned in case of an "international
emergency." 185
Moreover, despite the FBI-military agreement, the Counter Intelligence
Corps of the Army (CrC) gradually undertook wider investigation
of civilian "subversive aetivity" as part of a preventive security
program which used voluntary informants and investigators to collect
informllition.186
Thc FBI developed a substantial foreign intelligence operation in
Latin America during the war. On June 24,1940, President Roosevelt
issued a directive assigning foreign intelligence responsibilities in the
Western Hemisphere to a Special Intelligence Service of the FBI.
SIS furnished the State Department., the military, and other governmental
agencies with intelligence regarding' "financial, economic, political
and subversive activities detrimental to the security of the United
States." SIS assisted several Latin American countries "in train~
police and organizing anti-espionage and anti-sabotage defenses.'
When another foreign intelligence agency, the Office of Strategic
Services, was established in 1941, it sought to enter the Latin American
184 Delimitation of Investigative Duties of the Federal Bnreau of Investigation,
the Office of Naval Intelligence, and the Military Intelligence Division,
2/9/42.
Ul6 Memorandum from Colonel Churchill, Counter Intelligence Branch, MID,
to E. A. Tamm, FBI, 5/16/39, and enclosure, "Subject: Essential Items of
Domestic Intelligence Information."
"'" 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 'semiradical'
groups concerned with civil liberties and pacifism. The latter, well intentioned
but impractical groups as one corps area intelligence officer labeled
them, were playing into the hands of the more extreme and realistic radical elemt'nts,
G-2 still bt'lieved that it had a right to invt'stigatt' 'st'mi-radicals' because
they undermined adherence to the established order by propagan.da through
newspapers, periodicals, schools, and churches." (Joan M. Jensen, "Military
Surveillance of Civilians, 1917-1967," in Military Intelligence, 1974 Hearings,
pp.174-175.)
425
field until President Roosevelt made clear that jurisdiction belonged
to SIS.187
There was constant friction throughout the war between the FBI
and the OSS. Despite the President's orders, OSS operatives went
to Latin America. Within the United States OSS officers are reported
to have secretly entered the Spanish embassy in Washington to photo-
181 Whitehead, The FBI story, pp. 266, 456. President Roosevelt's Directive of
December 1941 on the FBI's 'SIS read as follows :
"In accordance with previous instructions the Federal Bureau of Investigation
has set up a Special Intelligence Service covering the Western Hemisphere, with
Agents in Mexico, Central America, South America, the Caribbean, and Canada.
Close contact and liaison have been established with the Intelligence officials of
these countries.
"In order to have all responsibility centered in the Federal Bureau of Investigation
in this field, I hereby approve this arrangement and request the heads
of all Government Departments and Agencies concerned to clear directly with the
Federal Bureau of Investigation in connection with any intelligence work within
the sphere indicated.
"The Director of the Federal Bureau of Investigation is authorized and instru<
Jted to convene meetings of the chiefs of the various Intelligence Services
operating in the Western Hemisphere and to maintain liaison with Intelligence
Agencies operating in the Western Hemisphere." (Confidential Directive to the
Heads of the Govenunent Departments {lnd Agencies Concerned, 12/41.)
An agreement between the FBI and military intelligence dealing with "Special
Intelligence operations in the Western Hemisphere" cited Presidential "instructions"
of June 24, 1940 and January 16, 1942. It described FBI responsibililties as
follows:
"The Special lntelligence Service will obtain, primarily through undercover
operations supplemented when necessary by open operations, economic, political,
industrial, financial and subversive information. The Special Intelligence Service
will obtain information concerning movements, organizations, and individuals
whose activities are prejudicial to the interests of the United 'States." (Agreement
between MID, ONI and FBI for Coordinating Special Intelligence Operations in
the Western Hemisphere, 2/25/42.)
Overlap between FBI and OSS operations is indicated by the following sections
from a Joint Chiefs of Staff Directive on the functions of the OJUce of
Strategic Services in 1943:
"3. Secret Intelliuence
"a. The Office of Strategic Services is authorized to: (1) Collect secret intelligence
in all areas other than the Western Hemisphere by lJl.eans of espionage and
counter-espionage, and evaluate and disseminate such intelligence to authorized
agencies. In the Western Hemisphere, bases already established by the Office of
Strategic Services in Santiago, Chile, and Buenos AiTes, Argentina, may be used
as ports of exit and of entry for the purpose of facilitating operations in Europe
and Asia, but not for the purpose of conducting operations in South America. The
Office of Strategic Services is authorized to have its transient agents from Europe
or Asia !touching points in the Western Hemisphere transmit information through
facilities of the Military Intelligence Service and of the Office of Naval
Intelligence.
"4. Research and Analysis
"The Office of Strategic Services will (1) furnish eSSential intelligence for the
planning and execution of approved strategic services' operations; and (2)
furnish such intelligence as is requested by agencies of the Joint Chiefs of Staff,
the armed services, and other authorized Government agencies. To accomplish the
foregoing no geographical restriction is placed on the research and analysis functions
of the Office of Strategic Services...." (Emphasis supplied)
(JCS Directive: Functions of the Office of Strategic services, JOS 155/1I/D,
10/27/43.)
426
graph documents. The FBI Director apparently learned of the operation,
but instead of registering a protest he waited ulltil OSS returned
a second time and then had FBI cars outside tum on their sirens.
When OSS protested to the White House, the President's aides reportedly
ordered the embassy entry project turned over to the FBI.188
A similar incident occurred in 1945 when OSS security officers illegally
entered the offices of Amerasia magazine in the search for
confidential government documents.189 This Illegal entry made it impossible
for the Justice Department to prosecute vigorously on the
basis of the subsequent FBI investigation, for fear of expoffing the
"taint" which started the inquiry.
Director Hoover's most serious conflict with ass involved a weighing
of the respective needs of foreign intelligence and internal security.
In 1944, the head of OSS, William Donovan, negotiated an agreement
with the Soviet Union for an exchange of missions between OSS
and the NKVD (the Soviet intelligence and secret police organization).
Both the American military representative in Moscow and
Ambassador Averill Harriman hoped the exchange would improve
Soviet-American relations.190 When Hoover learned of the plan, he
warned Presidential aide Harry Hopkins of the potential da~r of
espionage if the NKVD were "officially authorized to operate 1ll the
United States where quite obviously it will be able to function without
any appropriate restraint upon its activities." The Director also advised
Attorney General Biddle that secret NKVD agents were already
"attempting to obtain highly confidential information concerning War
Department secrets." Thus, the exchange of intelligence missions was
blocked.l9l The FBI was also greatly concerned about the OSS policy
of employing American Communists to work with the anti-Nazi underground
in Europe, although OSS did dismiss some persons suspected
of having links with Soviet intelligence.192
The FBI was not withdrawn from the foreign intelligence field
until 1946. At the end of the war President Truman abolished the
Office of Strategic Services and dispersed its functions to the War and
State Departments. The FBI proposed expanding its wartime Western
Hemisphere intelligence system to a world-wide basis, with the
Army and Navy handling matters of importance to the military. Instead,
the President formed a National Intelligence Authority with
representatives of the State, War, 'and Navy Departments to direct the
foreign intelligence activities of a Central Intelligence Group. The
Central Intelligence Group was authorized to conduct all foreign espionage
and counterespionage operations in June 1946. Director Hoover
immediately terminated the operations of the FBI's Special Intelligence
Service; and in Some countries SIS officers destroyed their files
rather than transfer them to the new agency.193
188 Downes, The Scarlet Thread, pp. 87-97, cited in Smith, OSS: The Secret
Histo-r of America's First Gentral Intelligence Agency, p. 20.
189 Smith, OSS, p. 277.
]90 Smith, OSS, p.2l.
]0] Whitehead, The FBI Story, pp.277-278.
lOS Smith, OSS, pp.10-1l.
... Whitehead, The FBI Story, pp. 279--280; Smith, OSS, p. 366.
427
IV. DOMESTIC INTELLIGENCE IN THE COLD WAR ERA: 1945-1963
If, in the long run, the beliefs expressed in proletarian dictatorship
are destined to be accepted by the dominant forces
of the community, the only meaning of free speech is that they
should be given their chance and have their way.
~Mr. Justice Oliver Wendell Holmes, Dissenting in
Gitlow v. New York, 268 U.S. 652 (1925).
The situation with which Justices Holmes and Brandeis
were concerned in Gitlow was a comparatively isolated
event. . . . They were not confronted with any situation
comparable to the instant one-the development of an apparatus
designed and dedicated to the overthrow of the Government,
in the context of world crisis after crisis.
-Mr. Chief Justice Fred Vinson, Opinion in Denni8
v. United States, 341 U.S. 494 (1951).
A. The Anti-communist Oowensus
During the Cold War period the domestic intelligence activities of
the Federal Government were rooted in a firm national consensus regarding
the danger to the United States from international Communism.
No distinction was made between the threats posed by the Soviet
Union and by Communists within this country. At the peak of international
tension during the Korean War, the Supreme Court upheld
the conviction of Communist Party leaders under the Smith Act for
conspiracy to advocate violent overthrow of the government. The conspiratorial
nature of the Communist Party and its ideological links
with the Soviet Union at a time of stress in Soviet-American relations
were cited by the Court as the reasons for its decision.194
In the same environment, Congress enacted the Internal Security
Act of 1950 over President Truman's veto. Its two main provisions
were the Subversive Activities Control Act to register Communist and
Communist "front" groups and individual Communists, and the
Emergency Detention Act for the internment in an emergency of
persons who might engage in espionage or sabotage. Congress made
findings that the Communist Party was "a disciplined organization"
operating in this nation "under Soviet Union control" with the aim
of installing "a Soviet style dictatorship." 195 Going ewn further in
1954, Congress passed the Communist Control Act which provided
,.. The Court held that the grave and probable danger posed by the Communist
Party justified this restriction on free speech under the First Amendment: "The
formation by petitioners of such a highly organized conspiracy, with rigidly disciplined
members subject to call when the leaders, these petitioners, felt that the
time had come for action, coupled with the inflammable nature of world conditions,
similar uprisings in other countries, and the touch-and-go nature of our
relations with countries with whom petitioners were in the very least ideologically
attuned, convince us that their convictions were justified on this score."
[Dennis v. United States, 341 U.S. 494, 510-511 (1951).]
,.. 64 Stat. 987 (1950) The Subversive Activities Control Act's registration provision
was held not to violate the First Amendment in 1961. [Communist Party v.
Subversive Activities Control Board, 367 U.S. 1 (1961).] However, registration
of Communists under the Act was later held to violate the Fifth Amendment
priVilege against self-incrimination. [Albertson v. Subversive Activities Control
BOrbrd, 382 U.S. 70 (1965).] The Emergency Detention Act was repealed in 1971.
69"'984 0 - 76 - 28
428
~hat the C01?muni~t.Partywas "not entitled to any of the rights, privIleges,
and lnUnumtles attendant upon legal bodies created under the
jurisdiction of the laws of the United States." 196 These statutes buttressed
the intelligence authority of the FBI, even though Congress
never enacted legislation directly authorizing FBI domestic intelligence.
197
By the mid-1950s, gradual relaxation of international tensions between
the United States and the Soviet Union, coupled with a decline
in domestic Communist influence after the Smith Act prosecutions,
slowed the momentum for suppression. The Supreme Court reversed
Smith Act convictions of second-string Communist leaders in 1957,
holding that the government must show advocacy "of action and not
merely abstract doctrine." 1118 However, as late as 1961, the Court sustained
the constitutionality under the First Amendment of the requirement
that the Communist Party register with the Subversive Activities
Control Board.199
The degree of consensus in favor of repression of the Communist
Party should not be overstated. In contrast to the Congressional enthusiasm,
President Truman was concerned about the risks to constitutional
government. According to one White House staff member's
notes during the debate over the Internal Security Act of 1950,
"The President said that the situation ... was the worst it had been
since the Alien and Sedition Laws of 1798, that a lot of people on the
Hill should know better but had been stampeded into running- with
their tails between their legs." Truman said he would veto the bill
"regardless of how politically unpopular it was-election year or no
election year." 200
Throughout the period there was a confusing mixture of secrecy and
disclosure, both within the executive branch and between the executive
and Congress. On matters such as the Emerg-ency Detention Program,
the FBI and the .Justice Department joined in disregarding the will of
Congress. Unilateral executive action was frequently substituted for
1116 68 Stat. 775 (1954), 50 U.S.C. 841-844. The constitutionality of the Communist
Control Act of 1954 has never been tested.
197 In light of the facts now known, the Supreme Court overstated the degree
to which Congress had explicitly "charged" the FBI with domestic intelligence
responsibilities: "Congress has devised an all-embracing program for resistance
to the various forms of totalitarian aggression. '" It has charged the Federal
Bureau of Investigation and the Central Intelligence Agency with responsibility
for intelligence concerning Communist seditious activities against our Government,
and has denominated such activities as part of a world conspiracy." [Penn81/
loonia v. Nel8on, 350 U.S. 497, 504-505 (1956).] This decision held that the Federal
Government had preempted state sedition laws, citing President Roosevelt's
September 1939 statement on FBI investigations and an address by FBI Director
Hoover to state law enforcement officials in August 1940.
- Yates v. Unitea States, 354 U.S. 298, 325 (1957).
1lIIl Justice Douglas, who dissented on Fifth Amendment grounds, agreed with
the majority on the First Amendment issue:
"The Bill of Rights was designed to give fullest play to the exchange and dIssemination
of ideas that touch the politics. culture, and other aspects of our life.
When an organization is used by a foreign power to make advances here, questions
of security are raised beyond the ken of disputation and debate between
the people resident here." [Oommuni8t Party v. Subversive Aotivitie8 Oomrol
Boartl, 367 U.S. 1, 174 (1961).]
... File memorandum of S.J. Spingarn, assistant counsel to the President,
7/22/50, Spingarn Papers (Harry S. Truman Library).
429
legislation, sometimes with the full knowledge and consent of Congress
and on other occasions without informing Congress or by advising
only a select group of legislators. There is no question that both
Congress and the public expected the FBI to gather domestic intelligence
about Communists. But the broad scope of FBI investigations,
its specific prog-rams for achieving "pure intelligence" and preventive
intelligence obJectives, and its use of intrusive techniques and disruptive
counterintelligence measures against domestic "subversives" were
not fully known by anyone outside the Bureau.
B. The P08t-War Expamion of FBI Dome8tic Intelligence
In February 1946, Assistant Director Ladd of the FBI Intellige~ce
Division recommended reconsideration of previous restrictive policies
and the institution ofa broader program aimed at the Communist
Party. Ladd advised Director Hoover;
The Soviet Union is obviously endeavoring to extend its
power and influence in every direction and the history of the
Communist movement in this country clearly shows that the
Communist Party, USA has consistently acted as the instrumentality
in support of the foreign policy of the USSR.
The Communist Party has succeeded in gaining control of,
or extensively infiltrating a large number of trade unions,
many of which operate in industries vital to the national
defense....
In the event of a conflict with the Soviet Union, it would not
be sufficient to disrupt the normal operations of the Communist
Party by apprehending only its leaders or more important
figures. Any members of the Party occupied in any industry
would be in a position to hamper the efforts of the United
States by individual action and undoubtedly the great majority
of them would do so....
It.is also pointed ~ut that the Russian Go,:er~~enthas ~ent
and IS sendmg to thIS country a number of mdIvIduals WIthout
proper credentials or travel documents and that in the
event of a breach of diplomatic relations there would undoubtedly
be a considerable number of these people in the
United States.
Therefore, Ladd recommended "re-esta:blishing the original policy of
investigating all known members of the Communist Party" and reinstating
"the policy of preparing security index cards on all members
of the Party."
He observed that "the greatest difficulty" with apprehending all
Communists if war broke out was "the necessity of finding legal
authorization." While enemy aliens could be interned, the only statutes
available for the arrest of citizens were the Smith Act, the rebellion
and insurrection statutes, and the seditious conspiracy law. These laws
were inadequate because "it might be extremely difficult to prove that
members of the Party knew the purpose of the Party to overthrow the
Government by force and violence" under the Smith Act and "some
overt act would be necessary" before the other statutes could be invoked.
Hence, he proposed advising the Attorney General of the FBI's
430
plans and the need for "a study as to the action which could be taken
in the event of an emergency." 201
Consequently, Director Hoover informed Attorney General Tom
C. Clark that the FBI had "found it necessary to intensify its investigation
of Communist Party activities and Soviet espionage cases."
The FBI was also "taking steps to list all members of the Communist
Party and any others who would be dangerous in the event of a break
in diplomatic relations with the Soviet Union, or other serious crisis,
involving the United States and the U.S.S.R." The FBI Director
added that it might be necessary in a crisis '''to immediately detain a
large number of American citizens." He suggested that a study be
made "to determine what legislation is available or should be sought
to authorize effective action ... in the event of a serious emergency." 202
Assistant Director Ladd proposed another FBI program which was
not called to the Attorney General's attention. He told the Director,
"Apart from the legal problems involved, another difficulty of considerable
proportions which would probably be encountered in the
event of extensive arrests of Communists would be a flood of propaganda
from Leftist and so-called Liberal sources." To counteract this
possibility, he made the following recommendation:
It is believed that an effort should be made now to prepare
educational material which can be released through available
channels so that in the event of an emergency we will have
an informed public opinion.
To a large extent the power and influence of the Communist
Party III this country, which is out of all proportion to
the actual size of the Party, derives from the support which
the Party receives from "Liberal" sources and from its connections
in the labor unions. The Party earns its support by
championing individual causes which are also sponsored by
the Liberal elements. It is believed, however, that, in truth,
Communism is the most reactionary, intolerant and 'bigoted
force in existence and that it would be possible to assemble
educational materials which would incontrovertibly establish
the truth.
Therefore, material could be assembled for dissemination to show that
Communists would abolish or subjugate labor unions and churches if
they came to power. Such material would undermine Communist influence
in unions and support for the Party from "persons prominent
in religious circles." Additional material could be assembled "indicating
the basically Russian nature of the Communist Party in this country."
Ladd proposed a two-day training conference for "Communist
supervisors" from eighteen or twenty key field offices so that they
might have "a complete understanding ... of the Bureau's policies
and desires...." These recommendations were approved by the FBI
Executive Conference.203
.... Memorandum from Ladd to Hoover, 2/27/46.
00ll Personal and Confidential Memorandum from Hoover to the Attorney General,
3/8/46.
... Memorandum from Ladd to Hoover, 2/27/46.
431
C. The Federal Loyalty-Security Program
In 1947, President Truman established by executive order a Federal
Employee Loyalty Program.204 Its basic features were retained in the
Federal Employee Security Program authorized by President Eisenhower
in Executive Order 10450, which is still in effect with some
modifications today.205 The program originated out of serious and
well-founded concern that Soviet intelligence was using the Communist
Party as an effective vehicle for the recruitment of espionage
agents. However, from the outset it swept far beyond this counterespionage
purpose to satisfy more speculative preventive intelligence
objectives. The program was designed as much to protect the government
from the "subversive" ideas of federal employees as it was to
detect potential espionage agents.
The basic outlines of the employee security program were developed
in 1946-1947 by a Temporary Commission on Employee Loyalty.
Its understanding of the problem was shaped largely by the report of
a Canadian Royal Commission in June 1946. The Royal Commission
had investig-ated an extensive Srviet espionage operation in Canada,
which was disclosed by a defector from the Soviet Embassy. Its report
described how employees of the Canadian government had communicated
secret information to Soviet intelligence. The report concluded
that "membership in Communist organizations or sympathy towards
Communist ideologies was the primary force which caused these
agents" to work for Soviet intelligence. It explained that "secret members
or adherents of the Communist Party," who were attracted to
Communism by its propaganda for social reform, had been developed
into espionage agents. The Royal Commission recommended additional
security measures "to prevent the infiltration into positions of
trust under the Government of persons likely to commit" such acts of
espionage.206 The impact of the report in the United States was that
"questions of thought and attitudes took on new importance as factors
of safety in the eyes of all those concerned with national security." 207
A subcommittee of the House Civil Service Committee recommended
shortly after release of the Canadian commission report that
the President appoint an interdepartmental committee to study employee
security practices. FBI Director Hoover suggested to Attorney
General Clark whom he should appoint to such a committee "if it
is set up." 208 ·When President Truman appointed a Commission on
Employee Loyalty in November 1946, the FBI Director's suggested
.Justice Department representative was made chairman, and the other
,.,. Executive Order 9835, 12 Fed. Reg. 1935, 3/21/47.
... Executive Order 10450,18 Fed. Reg. 2489 (1953) .
• 00 Report Of the Royal Oommi88ion, 6/27/46, pp. 82-83, 686-689. The report
described how "a number of young Canadians, public servants and others
who begin with a desire to advance causes which they consider worthy, have
been induced into joining study groups of the Communist Party. They are persuaded
to keep this adherence secret. They have then been led step by step along
the ingenious psychological development course . . . until under the influence
of sophisticated and unscrupulous leaders they have been persuaded to engage
in illegal activities directed against the safety and interests of their own society."
"'" Eleanor Bontecou, The Federal Loyalty-Security Program (Ithaca: Cornell
University Press, 1953), p. 22.
208Memorandum from Hoover to Clark, 7/25/46 (Harry S. Truman Library).
432
members represented the Departments of State, War, Navy, and
Treasury, and the Civil Service Commission.
The President's Commission had less success than its Canadian
counterpart in discovering the dimensions of the problem in the United
States. FBI Assistant Director D. M. Ladd told the Commission
that there were "a substantial number of disloyal persons in government
service" and that the Communist Party "had established a
separate group for infiltration of the government." He also called
the Commission's attention to "a publication of the U.S. Chamber of
Commerce" which had expressed the opinion "that Communists in the
government have reached a serious stage." The War Department
representative on the Commission then stated that it "should have
something more than reports from the Chamber of Commerce, FBI,
and Congress, to determine the size of the problem." However, when
Assistant Director Ladd was asked later "for the approximate number
of names in subversive files ... and whether the Bureau had a file of
names of persons who could be picked up in the event of a war with
Russia," the FBI official "declined to answer because this matter was
not within the scope of the Commission." The meeting ended with
"general agreement that Mr. Hoover should be asked to appear...." 209
Thereafter, the Commission prepared a lengthy list of questions for
the FBI; but instead of Director Hoover appearing, Attorney General
Clark testified in a session where no minutes were taken.
The Attorney General supplemented his "informal" appearance
with a memorandum which stated that the number of subversive persons
in the government had "not yet reached serious proportions," but
that the possibility of "even one disloyal person" entering government
service constituted a "serious threat." 210 Thus, the President's Commission
accepted its foreclosure from conducting any serious evaluation
of FBI intelligence operations or FBI intelligence data on the extent
of the danger. One Commission staff member observed that these
were felt to be "matters exclusively for the consideration of the
counterintelligence agencies." 211
It is impossible to determine fully the effect of the autonomy of
FBI counterespionage on the government's ability to formulate appropriate
security policies. Nevertheless, this record suggests that executive
officials were forced to make decisions without full knowledge.
They had to depend on the FBI's estimate of the problem, rather than
being able to make their own assessment on the basis of complete
information. With respect to the employee loyalty program in 1947,
the FBI's view prevailed on three crucial issues-the broad definition
of the threat of "subversive influence," the secrecy of FBI informants
and electronic surveillance, and the exclusive power of the FBI to
investigate allegations of disloyalty.
Although Director Hoover did not testify before the PreSident's
Commission, he submitJted. a general memorandum on the types of
... Minutes of the President's Temporary Commission on Employee Loyalty,
1/17/46. (Harry S. Truman Library.)
... Memorandum from Attorney General Clark to Mr. Vanech, Chairman,
President's Temporary Commission on Employee Loyalty, 2/14/47. (Harry S.
Truman Library.)
J!III. Memoran,dum from S. J. Spingarn to Mr. Foley, 1/19/47. (Harry S.
Truman Library.)
433
activities of "subversive or disloyal persons" in government service
which would "constitute a threat" to the nation's security. The danger
as he saw it was not limited to espionage or the recruitment of others
for espionage. It extended to "influencing" the formation and execution
of government policies "so that those policies will either favor
the foreign country of their ideological choice or will weaken the
United States Government domestically or abroad to the ultimate advantage
of the ... foreign power." Consequently, he urged th!at attention
be given to the association of government employees with "front"
organizations. These included not only established "fronts" hut also
"temporary organizations, 'spontaneous' campaigns, and pressure
movements so frequently used. by subversive groups." If a disloyal
employee was affihated wirth such "fronts", he could he expected 'Ix>
influence government policy in the direction taken by the group.212
The President's Commission accepted Director Hoover's position
on the threat, as well as the view endorsed later iby a Presidential Commission
on Civil Rights that there also was a danger from "those who
would subvert our democracy by ... destroying the civil rights of some
groups." 213 Thus, the standards for determining employee loyalty included
'a criterion based on membership in or assoc~ationwith groups
designated on an "Attorney General's list" as :
Wtalitarian, fiasc'ist, communist, or subversive, or as having
adopted a policy of ·advocating or approving the commission
of acts of force or violence to deny others their rights under
the Constitution of the United Stau-s, or as seeking to alter
the form of government of the United States by unconstitutional
means.214
The executive orders provided a substantive legal basis for the FBI's
investigation of allegedly "subversive" organizations which might fall
within these categories.215
The FBI also succeeded in protecting the secrecy of its informants
and electronic surveillrance. The Commission initially recommended
that the FBI be required to make available to department heads upon
request "all investigative material and information available to the
investigative agency on any employee of the requesting department."
Director Hoover protested that the FBI had "steadfastly refused to
reveal the identities of its confidential informants." He advised the
Attorney General that the proposal "would also apparently contemplate
the revealing of our techniques, including among others, technical
surveillances which are authorized by you." The Director
assured the Attorney General that the FBI would make "information
available to other agencies to evaluate the reliability of our infor-
21Jl Memorandum from the FBI Director to the President's Temporary Commission,
l/3/47. (Harry S. Truman Library.)
.13 President's (J{mmtission on Civil Righits, To Secure TMse Rights (1947),
p.52.
2" Executive Order 9835, .part I, section 2; cf. Executive Order 10450, section
8(a) (5).
21& In 1960, for instance, the Justice Department advised the FBI to continue
investigating an organization not on the Attorney General's list in order to secure
"additional information ... relative to the criteria" of the employee security
order. (Memorandum from Assistant Attorney General Yeagley to Hoover,
5/17/60.)
434
mants" without divulging their identities.216 The Commission revised
its report to satisfy the FBI.217
Director Hoover was still concerned that the Commission (and the
President's executive order) did not give the FBI exclusive power
to investigate allegedly subversive employees.218 He went so far as to
threaten "to withdrnw from this field of investigation rather than
to engage in a tug of war with the Civil Service Commission." 219
Accordin,g to notes or presidential aide George Elsey, President
Truman felt "very strongly anti-FBI" on the issue and wanted "to
be sure and hold FBI down, afraid of 'Gestapo'." 220 Presidential
aide Clark Clifford reviewed the situation and came down on the side
of the FBI as "better qualified" than the Civil Service Commission.221
Nevertheless, the President insisted on a compromise which gave Civil
Service "discretion" to call on the FBI "if it wishes." 222 The FBI
Director objected to this "confusion" as to the FBI's jurisdiction.223
Justice Department officials warned the White House that Congress
would "find flaws" with this arrangement; and President Truman
noted "J. Edgar will in all probabIlity get this backward looking
Congress to give him what he wants. It's dangerous." 224 President
Truman was correct. The administration's budget request of $16 million
for Civil Service and $8.7 million for the FBI to conduct loyalty
investigations was revised in Congress to allocate $7.4 million to the
FBI and only $3 million to the Civil Service Commission.225 The issue
was finally resolved to the FBI's satisfaction. President Truman issued
a statement to all department heads declaring that there were "to be
218Memorandum from J. Edgar Hoover to Attorney General Clark, Re:
President's Temporary Commission on Employee Loyalty, 1/29/47. (Harry S.
Truman Library.)
211 Report of the President's Temporary Oommission on EmpWl/ee Loyalty,
2/20/47, pp. 31--S2.
Z1B Memorandum from J. Edgar Hoover to Attorney General Clark, 3/19/47.
(Harry S. Truman Library.)
.,. Memorandum from J. Edgar Hoover to Attorney General Clark, 3/31/47.
(Harry S. Truman Library.)
220 Memorandum of George M. Elsey, 5/2/47. (Harry S. Truman.)
m Clifford advised, "Inasmuch as 'undercover' and 'infiltration' tactics may
become necessary, duplication will be costly and would jeopardize the success of
both FBI and Civil Service." He added that the FBI "has a highly trained, efficiently
organized corps of investigators. There are approximately 4,800 FBI
agents now, 1,600 of whom are investigating Atomic Energy Commission employees.
FBI expects to begin releasing these 1,600 shortly.... Civil Service, on
the other hand, has fewer than 100 investigators, none of whom is especially
trained in the techniques required in loyalty investigations.... It is precisely
because of the dangers that I believe the FBI is a better agency than Civil Service
to conduct loyalty investigations for new employees; the more highly trained,
organized and admInistered an agency is, the higher should be its standards."
(Memorandum from Clark Clifford to the President, 5/7/47.) (Harry S. Truman
Library.)
... Memorandum from Clark Clifford to the President, 5/9/47. Letter from
President Truman to H. B. Mitchell, United States Civil Service Commission,
5/9/47. (Harry S. Truman Library.)
DO Memorandum from J. Edgar Hoover to Attorney General Clark, Re: Executive
Order 9835, 5/12/47. (Harry S. Truman Library.)
224 Memorandum from Clark Clifford to the President, 5/23/47. (Harry S. Truman
Library.)
... Bontecou, The Federal Loyalty-Security Program, pp. 33-34.
435
no exceptions" to the general rule that the FBI would make all loyalty
investigations.226
The rationale for investigating groups under the authority of the
loyalty-security program changed over the years.
Such investigations supplied a body of intelligence data against
which to check the names of prospective federal employees. 221 By the
mid-1950s, the Communist Party and other groups fitting the standards
for the Attorney General's list were no longer extensively used
by Soviet intelligence for espionage recruitment.228 Therefore, FBI
investigations of such groups became-in combination with the "name
check" of Bureau files-almost entirely a means for monitoring the
political background of prospective federal employees. They also came
to serve a pure intelligence function of keeping the Attorney General
informed of "subversive" influence and infiltration.229
No organizations were formally added to the Attorney General's list
after 1955. Groups designated prior to that time included numerous
defunct German and Japanese societies, Communist and Communist
"front" organizations, the Socialist Workers Party, the Nationalist
Party of Puerto Rico, and several Ku Klux Klan organizations.23o
However, the FBI's "name check" reports on prospective employees
were never limited to information about groups on the list. The list's
criteria were independent standards for evaluating an employee's background,
regardless of whether a group was formally designated by the
Attorney General.231
After 1955, a substitute for designation on the Attorney General's
list was the FBI's "characterization" or "thumb-nail sketch" of a
group. Thus, if a "name check" uncovered information about a prospective
employee's association with a group which might fall under
the categories for the list, the FBI would report the data and attach a
"characterization" of the organization setting forth pertinent facts
relating to the standards for the list. 232 This procedure made it unnecessary
for the Attorney General to add groups to the formal list, since
FBI "characterizations" served the same purpose within the executive
branch.
... Memorandum from J. R. Steelman, Assistant to the President, to the Attorney
General, 11/3/47.
m FBI "name checks" are authorized as one of the "national agencies checks"
required by Executive Order 10450, section 3(a).
208 FBI monograph, "The Menace of Communism in the United States Today"
(1955), pp. iv-v; testimony of former FBI liaison with CIA, 9/22/75, p. 32.
220 The FBI omcial in charge of the Internal Security Section of the Intelligence
Division in the fifties and early sixties testified that the primary purpose of
FBI investigations of Communist "infiltration" was to advise the Attorney
General so that he could determine whether a group should go on the "Attorney
General's list", and that investigations for this purpose continued after the
Attorney General ceased adding names of groups to the list. (F. J. Baumgardner
testimonY,10/8/75, pp. 48, 49.)
... Memoranda from the Attorney General to Heads of Departments and
Agencies, 4/29/53; 7/15/53; 9/28/53; 1/22/54.
231 Executive Order 10450, section 8(a) (5) .
... The FBI's field omces were supplied with such "thumb-nail sketches" or
characterizations .to supplement the Attorney General's list and the reports of
the House CommIttee on Un-American Activities. e.g., SAC Letter No. 60-34,
7/12/60. (The SAC Letter is a formal regular communication from the FBI
Director to all Bureau field offices.)
436
D. The Emergency Detention Program, 1911J-1950
The development of plans during this period for emergency detention
of dangerous persons and for intelligence about such persons took
place entirely within the executive branch. In contrast to the employee
security program, these plans were not only withheld from the public
and Congress but were framed in terms which disregarded the legislation
enacted by Congress. Director Hoover's decision to ignore Attorney
General Biddle's 1943 directive abolishing the wartime Custodial
Detention List had been an example of the inability of the Attorney
General to control domestic intelligence operations. In the 1950s the
FBI and the Justice Department collaborated in a decision to disregard
the attempt by Congress to provide statutory direction for the
Emergency Detention Program. This is not to say that the Justice Department
itself was fully aware of the FBI's activities in this area.
The FBI kept secret from the Department its most sweeping list of
potentially dangerous persons, first called the "Communist Index" and
later renamed the "Reserve Index," as well as its targeting programs
for intensive investigation of "key figures" and "top functionaries"
and its own detention priorities labeled "Detcom" and "Comsab".
Director Hoover advised Attorney General Clark in March 1946 of
the existence of its Security Index, although he did not say that it had
existed since Attorney General Biddle's 1943 directive. The Index
listed persons "who would be dangerous or potentially dangerous in
the event of ... serious crisis, involving the United States and the
U.S.S.R." 233 The Justice Department then prepared a memorandum
concluding that the available options for action in an emergency were a
declaration of martial law or suspension of the privilege of the writ
of habeas COrpUS.23
• The FBI Director recommended going to Congress
to secure "statutory backing for detention." 235
After a conference between Department and FBI officials, the FBI
s!1bmitted a lengthy analysis of its standards for classifying potentIally
dangerous persons. The memorandum gave specific examples of
"Communists and Communist sympathizers whose names appear in
the Bureau's Security Index." However, the FBI did not provide any
specific examples in the category "Espionage Suspects and Government
Employees in Communist Underground." Assistant Director
Ladd advised Director Hoover of the reason for excluding any such
examples:
The Bureau has identified over 100 persons who are logically
suspected of being in the Government Communist Underground;
however, at the present time, the Bureau does not
have evidence, whether admissible or otherwise, reflecting
actual membership In the Communist Party. It is believed
that for security reasons, examples of these logical suspects
should not be set forth at this time.
on Memorandum from J. Edgar Hoover to Attorney General Clark, 3/8/46.
... Memorandum from T. L. Caudle, Assistant Attorney General, to Attorney
General Clark, Re; Detention of Communists in the event of sudden difficulty
with Russia, 7/11/46,
... Memorandum from J. Edgar Hoover to the Attorney General, 8/5/46.
437
The Director noted, "I most certainly agree. There are too many
leaks." 236
The FBI memorandum explained that potentially dangerous persons
included not only "every convinced and dependable member of
the Communist Party," but also other individuals "who regard the
Soviet Union as the exponent and champion of a superior way of
life." The FBI listed:
known members of the Communist Party, USA; strongly
suspected members of the Communist Party, USA; and persons
who have given evidence through their activities, utterances
and affiliations of their adherence to the aims and objectives
of the Party and the Soviet Union.
The FBI provided a breakdown of the "fields of endeavor not directly
identified with the Communist Pariy" where Communists on the Security
Index were "promoting Communist Part.y objectives and principles."
These included:
A. Organized Lab01'.-The Bureau has followed closely
Communist infiltration of labor and is continually endeavoring
to identify Communists in the labor movement.
B. OommtlJlflJist "Front" Organizations.-There are numerous
of these organizations which not only serve as political
aoo pressure instruments, but also as media for recruiting
and raising funds for the Communist Party.
O. Ewploitation of Racial Gr<YUps and OonditionlJ.-In
many areas of the country where racIal tension has been prevalent,
conspirllitorial activity on the part of Communists could
very easily instigate race riots.
lJ. Nationality Gr<YUps.-Communists have worked actively
and intensely among various foreign language groups, endeavoring
to control their political thinking and attempting
to utilize them as pressure and propaganda media.
E. Y <YUth.-[The leading "front"] organization could be
effectively used, in the event of war with the Soviet Union,
to urge draft evasion, "conscientious" objection and insubordination
in the armed forces.
F. Propapanda Activities.-Communists have utilized several
orgalllzations in the United States to propagandize
[for] the Soviet Union.
G. Political Work.-The Communists look upon obtaining
informers in the major political parties or in other political
bodies . . . as an excellent means of obtaining advice, political
appointments,and other political influence.
H. Education and Oultural WO1'k.-In the field of cultural
work the Communist penetration of the motion picture
industry is one of the best examples.
I. Science and Research.-In this field it is well established
that the Communists and the Soviets are extremely anxious
and desirous of obtaining the secret of the atomic bomb and
... Memorandum from D. M. Ladd to the Director, 9/5/46.
438
other highly confidential and highly important scientific
developments. Furthermore, existing scientific groups have
been infiltrated by Communists with the view in mind of
propagandizing the relinquishment of the secret of the atomic
bomb by the United States....
In addition, the FBI gave examples from the Security Index of "persons
holding important positions who have shown sympathy for Communist
objectives and policies" and therefore "might possibly serve
the Community Party andlor the Soviet Union should war break out."
Finally, the FBI pointed out that the Security Index included "Trotskyite
Communists or members of such non-Stalinist groups as the
Socialist Workers Pany...." Although such groups were "opposed to
the Stalinist-Communist rule in the Soviet Union," many of them
looked upon the Soviet Union "as the center for world revolution."
Thus it was "entirely possible" in the event of a war that these groups
"would engage in activities aimed at our national security and at
hampering of our war effort." 237
The Justice Department raised no objection to the FBI's standards,
although it ignored the FBI Director's idea for legislation.
The FBI proceeded under this authority until late 1947, when Director
Hoover objected to the Justice Department's tentative plans (based
on suspension of habeas corpus) and again stressed the need for "appropriate
legislation." 238 In response, a "blind memorandum" was
prepared in the Justice Department. As summarized and quoted by the
FBI, it stated, "The present is no time to seek legislation. To ask for it
would only bring on a loud and acrimonious discussion...." In an
emergency the President could issue a proclamation suspending the
writ of habeas corpus which Congress could ratify later if it "is in a
position to assemble-and if it is not, then the situation has obviously
become so desperate that the President's actions will not be questioned."
Whllit was needed was "sufficient courage to withstand the
courts ... if they should act" and "a campaign of education directed
to the proposition that Communism is dangerous." This educational
purpose would be served by prosecuting Communist leaders under the
Smith Act.239
In view of the Justice Department's position, the FBI Intelligence
Division recommended reviewing the Security Index to keep it up-todate,
developing a "plan of action" for the apprehension of dangerous
persons, and studying more carefully the information on persons most
likely to be "saboteurs and espionage agents." The Intelligence Division
also agreed with the J ustlCe Department on the need to prosecute
Communist leaders under the Smith Act so as to "obtain a Federal
adjudication establishing the Communist Party as illegal for advocating
the overthrow of government by force and violence."
. . . it is felt that as a broad but an immediate objective of
the Bureau that it work earnestly to urge prosecution of
important officials and functionaries of the Communist Party,
particularly under Sections 10-13 of Title 18, United States
231 Memorandum from the FBI Director to the Attorney General. 9/5/46.
238 Memorandum from J. Edgar Hoover to Attorney General Clark, 10/20/47.
... Memorandum from D. M. Ladd to J. Edgar Hoover,1/22/48.
439
Code. Prosecution of Party officials and responsible functionaries
would, in turn, result in a judicial precedent being
set that the Communist Party as an organization is illegal;
that it advocates the overthrow of the government by force
and violence; and finally that the patriotism of Communists
is not directed towards the United States but towards the
Soviet Union and world Communism. Once this precedent is
set then individual members and close adherents or sympathizers
can be readily dealt with as substantive violators.
This in turn has an important bearing on the Bureau's position
should there be no legislative or administrative authority
available at the time of the outbreak of hostilities which
would permit the immedia.te apprehension of both aliens and
citizens of the dangerous category.
Finally, the Intelligence Division proposed that Bureau inspectors
review "the investigation of Communist activities in all field officeg,"
since Bureau headquarters officials had "no way of knowing the contents
of field office files concernin~ all potentially dangerous persons."
The inspectors would make sure that the field was "following those
dangerous and potentially dangerous persons as closely as possible." 240
Thereafter, FBI Director Hoover again advised the Attorney General
that he disagreed with the Justice Department's position against
legislation, suggesting that it would "be adopted readily by Congress."
Hoover also observed that the Attorney General "might wish to consider
the prosecution well in advance of such an emergency of the
Communist Party under [the Smith Act] ... thereby obtaining judicial
recognition of the aims and purposes of the Communist Party." 2'41
Instructions were issued to FBI field offices setting priorities for an
intensified investigation of "Security Index subjects" and preparation
of "a Communist Index (as distinguished from the Security
Index) which will contain information on all known Communist
Party members." Procedures for handling Security Index data were
revised, and the field offices were asked for suggestions on how best to
implement a detention program.:142
Numerous draft proclamations and orders were prepared by the
Justice Department and compiled in an "Attorney General's Portfolio"
for use in an emergency. The FBI began using IBM punch cards
for the storage and retrieval of its Security Index data.243 Lists of the
names of persons on the Security Index were forwarded periodically
to the Internal Security Section of the Justice Department's Criminal
Division, beginning in October 1948.2'44
The Emergency Detention Plan finally took shape in 1949, pursuant
to an agreement executed on February 11 by Secretary of Defense
James Forrestal and Attorney General Clark. The purpose of the
2(() Memorandum from Ladd to Hoover, 1/22/48.
241 Memorandum from FBI Director to the Attorney General. 1/27/48. The
Justice Department secured Smith Act indictments against the Party's national
leaders later in 1948, and they were convicted in 1949.
"'" Memorandum from FBI Headquarters to all SACs, 3/15/48, SAC Letter No.
57. Series 1948, 4/10/48.
243 Memorandum from F. J. Baumgardner to D. M. Ladd, 6/28/49.
"" Memorandum from H. B. Fletcher to D. M. Ladd, 8/26/49.
440
agreement was "to provide maximum security with respect to the apprehension
and detention of those persons who, in the event of war
or other occasion upon which Presidential Proclamations, Executive
Orders, and applicable statutes come into operation, are to be taken
into custody and held pending further disposition." The agreement
provided "that the entIre program of apprehending and detaining
civilians in such an emergency is the responsibility of the Attorney
General. . . ." It also stated that the FBI was "desIgnated by the Attorney
General as the agency charged with the complete responsibility
of investigating and apprehending the persons to be detained." 245
The Assistant to the Attorney General asked the FBI in September
1949 for "the standards upon which decisions are based to incorporate
names in the Security Index list or to remove them." 246 Director
Hoover replied,
The basic qualification required for inclusion of an individual
in the security index is that such an individual is
potentially dangerous or would be dangerous in the event of
an emergency to the internal security of this country. The
elements going into measuring an indIvidual's potential dangerousness
or dangerousness in the event of an emergency consist
of two broad elements: (1) membership, affiliation or activity
indicating sympathy with the principal tenets of the
Communist Party or similar ideological groups and the
Nationalist Party of Puerto Rico; and (2) a showing of one
or more of the following:
a. activity in the organization, promoting its aims and purposes;
b. training in the organization, indicating a knowledge of
its ultimate aims and purposes;
c. a position in a mass organization of some kind where his
affiliation or sympathy as set forth in element one will determine
the destiny of the mass organization;
d. employment or connection with an industry or facility
vital to the national defense, health and welfare j
e. possessing a potential for committing espionage or sabotage.
No individual was included on the Index until he had been "investigated
by the Bureau"; and deletions were made "when an individual
no longer fits the standards for inclusion...." 247
These general standards represented several different pro,grams
developed within the FBI in connection with the Security Index.
Field offices were instructed to give special attention to "tap functionaries"
and "key figures" in the Communist Party. In addition, a "Comsab
program" concentrated on Communists with a potential for sabo-
.... Joint Agreement of the Secretary of Defense and the Attornell GeneraZ
Re8pecting the Temporary Detention of Dangerou8 Per801l8 in Event Of EmergeMY,
2/11/49, revised by Attorney General Herbert Brownell and Deputy
Secretary of Defense R. B. Robertson, Jr., 9/6/56.
... Memorandum from Peyton Ford to Hoover, Personal and Confidential.
9/13/49.
2(' Memorandum from the FBI Director to the Assistant to the Attorney General,
9/16/49.
441
tage "either because of their training or because of their position
relative to vital or strategic installations or industry." Finally, under
the plans for the detention of Communists, the FBI had a "Detcom program"
which was concerned with the individuals "to be given priority
arrest in the event of ... an emergency." Priority under the Detcom
program was given to "all top functionaries, all key figures, all individuals
tabbed under the Comsab program," and "any other individual
who, though he does not fall in the above groups, should be
given priority arrest because of some peculiar circumstanc~."248
If an individual did not meet the standards for the Security Index
because investigation failed "to reflect sufficient disloyal information,"
he was considered for the Communist Index which was "a comprehensive
compilation of individuals of interest to the internal security."
Names for both the Communist Index and the Security Index would
be produced by "loyalty of government employee investigations" arid
by "espionage and foreign intelligence investigations," as well as hy
"all other types of investigations." The reports of any FBI investigation
of persons on the Security or Communist Index, regardless of the
subject, were to be sent to the Security Index Desk at FBI headquarters.
Finally, FBI pe,rsonnel were instructed that "no mention must be
made in any investigative report relating to the classifications of top
functionaries and key figures, nor to the Detcom or Comsa:b Programs,
nor to the Security Index or the Communist Index. These investigative
procedures and administrative aids are confidential and should not be
known to any outside agency." 249 A review of FBI documents indicates
that only the Security Index was made known to Justice Department
officials.
In July 1950, when the Congress and the President were considering
the Emergency Detention Act, Attorney General McGrath asked
the FBI for an analysis of the Security Index.250 The FBI provided
the following breakdown of the statistics by "Nationalistic Tendency
or Organizational Affiliation:" .
Communist Party, USA 11,491
Socialist VVorkers Party_____________________________________ 308
Independent Socialist League________________________________ 45
Nationalist Party of Puerto Rico______________________________ 77
Independent Labor League___________________________________ 2
Revolutionary VVorkers League --___________________ 1
Proletarian Party of America_________________________________ 6
Total 11,930
Of these, 9;258 were native born citizens, 2,281 were naturalized citizens,
296 were aliens, and 95 were of unknown nationality.251
By early 1951, the total had increased to 13,901 names as the result
of an FBI decision after the outbreak of the Korean War to broaden
"the basis for inclusion in the Security Index to include all active mem.
bel'S of the Communist Party." The size of the Communist Index,
as contrasted with the Security Index, was indicated by the figures.
from the New York field office which had 2,897 names on the Se-
... SAC Letter No. 97, Series 1949, 10/19/49.
.... SAC Letter No. 97, Series 1949,10/19/49.
,.., :\femoraudum from th(> AttorJ!(>Y G(>u(>ral to tlw FBI Director, 7/2/)/50.
'"' Memorandum from the FBI Director to the Attorney General, 7/27/50.
442
curity Index and 42,000 names on the Communist Index. Since the
Communist Index was based on "allegations of Communist activity,"
it was "a measure of investigations performed." If this proportion
applied "throughout the field," as the FBI memorandum suggested,
then the Communist Indexes in the field offices contained over 200,000
names.252
E. The Emergency Detention Act of 1950 a1Ul FBI/Justice Department
Noncompliance
There is no indication that Congress was advised of these plans or
the role of the Smith Act prosecution in them. When Cong-ress was
considering the Emergency Detention Act of 1950, President Truman's
staff advised him that he could safely veto the measure in view of the
government's power to use the Smith Act in an emergency. One of his
aides said the Justice Department could "arrest immediately all principal
national and local leaders of the Communist Party in the United
States under the Smith Act, and bail could be set sufficiently high so
that they could not be sprung." 253
The Emergency Detention Act of 1950 set forth specific standards
for the apprehension of persons in the event of an "internal security
emergency" declared by the President. The basic criterion was whether
there was "reasonable ground to believe that such person probably
will engage in, or probably will conspire with others to engage in, acts
of espionage and sabotage." The statute provided for hearmgs after
arrest before presidentially appointed hearing officers, review by an
administrative board, and appeal to the U.S. Court of Appeals.254
Nevertheless, the FBI and the Justice Department made no changes
in either the Security Index criteria or the previous detention plans
to bring them into conformity with the statute.
Shortly after passage of the Detention Act, according to an FBI
memorandum, Attorney General J. Howard McGrath advised Director
Hooyer to disregard it and "proceed with the program as previously
outlined." Justice Department officials were quoted as recognizing
that the act was "undoubtedly in conflict with the Department's
proposed detention program," but that the act's provisions were "unworkable."
255
The Justice Department also advised the FBI that it did not have
adequate personnel to review the placement of names on the Security
Index and that in an emergency "all persons now or ~ereafteri?cluded
by the Bureau on the Security Index should be conSidered subjects for
immediate apprehension, thus resolving any possible doubtful cases in
favor of the Government in the interests of the national security." 256
The FBI continued to furnish Security Index names ,to the Justice
Department, with one exception. The names of cert3iin espion1tge subjects
were not made available to the Deparbment "for security rea-
... Memorandum from D. M. Ladd to the FBI Director, 1/12/51.
:l5lI Memorandum of S. J. Spingarn, 7/21/50. A note on this memorandum indicates
that a copy was given to the President by his counsel, Charles Murphy.
"'Title II, Internal Security Act of 1950, 64 Stat. 987, 50 U.S.C. 811-826.
... Memorandum from A. H. Belmont to D. M. Ladd, 10/15/52.
... Memorandum from Peyton Ford, Deputy Attorney General, to the FBI Di·
rector, 12/7/50.
443
sons." An int~rnal FBI memorandum sta~d that apprehension of such
persons in an emergency "would destroy chances of penetration and
control of an operating Soviet espionage parallel or would destroy
known chances of penetration and control of a 'sleeper' parallel." 251
These coun~respionage investigations were supervised by the Espionage
Section of the FBI Intelligence Division, while all other domestic
in~lligence in,vestigations under the Security Index program and
related programs-were supervised in the Division's Internal Security
S~tion.25S There was also a category for "prominent persons" who
were given special review since their apprehension "might cause the
Bureau some embarrassment because these individuals would hold
themselves out as martyrs" and thus "result in considera:ble adverse
publicity and criticism of the FBI." 259
By May 1951, the Security Index had grown to 15,390 names, of
which oyer 14,000 were Communists. FBI officials decided to urge the
Just!ce Department to pass on each name (except espionage subjects)
so that, among other reasons, "the Bureau would not be open to an allegation
of using Police State tactics." 260 FBI Intelligence Division official;;
discussed the matter with officials of the Justice Department's
Criminal Division, who 'advised that Criminal Division attorneys
would conduct the reviews under the supervision of a former FBI
agent and four other Division officials. FBI Director Hoover nmed
after this meeting, "What do our files show on these five? Can't we get
names of the attorneys making the reviews~" 261
The Justice Department 'also undertook to revise the Security Index
standards "so -as to conform more closely" to the provisions of the
Emergency Detention Act of 1950.262 An FBI study of the Department's
standards concluded that they needed further revision so that
the FBI could continue to list thepersons it believed to be dangerous.
There was a "wide disparity" OOtween the FBI standards and Departmental
criteria.263
The FBI analysis of this problem disclosed how little the Justice
Department knew about the scope and purposes of FBI domestic intelligence
operations. In at least three areas of vital significance to
the Bureau, the Departmental standards showed almost total ignorance
of FBI intelligence programs. This lack of knowledge went far
beyond the Department's unawareness of the "top functionaries,"
"key figures," "Comsab," and "Communist Index" programs deliberately
kept secret by the FBI. The Justice Department failed to
take account of the FBI programs aimed at "Marxist-type or other
revolutionary groups" not controlled by the Communist Party, at
Communist sympathizers who had not positively "discontinued such
associations," and at subjects of "Nationalistic Tendency" or foreign
251 Memorand11ffi from A. H. Belmont to D. ~I. Ladd, 4/17/51.
258 Memorandum from A. H. Belmont to All Supeorvisors in the Espionage and
Internal Security SectiOIlB, 12/5/50.
... ~Iemorandumfrom Mr. Clegg to Mr. Tolson, 2/7/51.
... Memorandum from Mr. Clegg to Mr. Tolson, 5/10/51.
281 Memorandum from A. H. Belmont to Mr. Ladd, 5/31/51.
... Memorandum from Deputy Attorney General Peyton Ford to the FBI Director,
6/1/51.
... Memorandum from F..J. Baumgardner to A. H. Belmont, 6/8/51.
69 ..984 0 -- 76 - 29
444
intelligence investigations.264 The FBI informed the Justice Department
of these disparities. Among the examples of Security Index subjects
not covered by the Departmental standards were the following:
Individuals whose party membership or affiliation in a revolutionary
group has not been proven, but who have committed
past acts of violence during strikes, riots, or demonstrations,
and, because of anarchist or revolutionary beliefs,
are likely to seize upon the opportunity presented by a national
emergency to endanger the public safety and welfare.
A number of individuals are now carried on the Security
Index who were placed thereon several years ago ... yet concerning
whom we have no developed current activity of a
subversive nature. These individuals have not been removed
from the Security Index in the absence of positive indication
of disaffection or cessation of the activities which caused
them to be placed on the index. Bearing in mind the instructions
of the Communist Party relative to "sleepers" and
underground activities ... \ve have no assurance that these
individuals are not a continued potential threat ... and, indeed,
have strong reason to believe to the contrary.
Individuals ... whose association and activities are closely
affiliated with individuals or organizations having a definite
foreign interest or connection contrary and detrimental to
the interests of the United States. Examples are certain employees
and associates of Amtorg, Tass News Agency, United
Nations, foreign legations, etc.
The FBI Director asked for "a prompt resolution of the problem"
posed by the disparity between FBI and .Tustice Department criteria.
265
It took over a year for the Justice Department to decide that the
proposed standards, based on the act of 1950, would be set aside in
view of the FBI's desires. In discussions between FBI and Justice
Department officials in 1952, the Department officials made clear that
they intended to proceed under pre-1950 plans in the event of an emergency.
Criminal Division official Raymond Whearty told FBI intelligence
executives in March 1952 that the FBI should operate under the
"Attorney General's Portfolio" rather than the 19-50 act because of
the latter's "unworkability." 266 The standards in the "portfolio" used
by Justice Department attorneys in reviewing Security Index names
still differed from the FBI's criteria. Director Hoover noted, "I can't
understand the Department having one set of standards and approving
a different set for FBL" 267
2M Memorandum from F. J. Baumgardner to A. H. Belmont, 6/8/51.
... Memorandum from the FBI Director to Deputy Attorney General Peyton
Ford, 6/28/51.
... Memorandum from A. H. Belmont to Mr. Ladd, 3/19/52.
'""Note on memorandum from A. H. Belmont to D. M. Ladd, 7/10/52.
445
After meeting with Deputy Attorney General Ross Malone, an
Intelligence Division official summarized the differences between the
1950 Aot and the "Portfolio":
There are contained among the 19,577 individuals listed
in our Security Index the names of many persons whom we
consider dangerous but who do rwt fall within the standards
set forth in the Internal Security Act of 1950....
The fact that the Internal Security Act of 1950 does not
provide for suspension of the Writ of Habeas Corpus would
prove a definite hindrance to the execution of necessary measures....
The lack of provision in the act for measures to be taken in
the event of threatened invasion precludes the President from
taking aotion against potentially dangerous persons prior to
an actual invasion, insurrection, or declaration of war.
The provision in the Act for apprehension of subjects by
individual warrants is a factor which would be a detrimental,
time-consuming procedure as compared to the use of one
master 1varrant of arrest for all subjects apprehended as provided
in the Department's PortfolIo.
The apparent lack of provision in the Act for searches and
for confiscation of contraband would be a definite deterrent
to our operation....268 [Emphasis added.]
Director Hoover then repeated his request for "a definite and clear cut
answer" from the Department.269 Attorney General James McGranery
replied:
. . . I wish to assure you that it is the Department's intention
to proceed under the program as outlined in the Department's
Portfolio invoking the standards now used. This approval, of
course, indicates agreement with your Bureau's concepts of
the Detention Program and the Security Index standards as
outlined in your memorandum of June 28,1951....270
This directive was classified "Top Secret". For security reasons there
were only three copies made of the "Portfolio", two kept by the FBI
and one by the Attorney General.271
FBI records reveal no change in this policy under Attorney General
Herbert Brownell during 1953-1954. In April 1953, Attorney General
Brownell granted authority to the FBI "to implement the apprehension
and search and seizure provisions of this program immediately
upon ascertaining that a major surprise attack upon Washington, D.C.,
has occurred...." The Attorney General also repeated previous instructions
"to apprehend all individuals listed in the Security Index
in the event that the ... program is implemented prior to the completion
of the review of the individual cases by the Criminal Division." 272
... Memorandum from D. M. Ladd to the FBI Director, 11/18/52.
... Memorandum from the FBI Director to Deputy Attorney General Ross L.
Malone, Jr., 11/14/52.
.... Memorandum from the Attorney General to the FBI Director, 11/25/52.
271 Memorandum from D. M. Ladd to the Director, 11/18/52.
.,. Memorandum from the Attorney General to the FBI Director, 4/27/58.
446
By the end of 1954, the size of the Security Index had increased to
26,174, of whom 11,033 were designated under the Detcom and Comsab
programs for priority apprehension. At that time the Intelligence
Division decided to revise the Detcom and Comsab standards, reducing
the number by fifty percent to "permit a more efficient handling of the
arrests." 273 Shortly thereafter, in response to a request from Attorney
General Brownell, the FBI Director provided the Department the
"general criteria" used for the Security Index.274 After a meeting between
officials of the FBI Intelligence Division and the Justice Department,
Director Hoover advised the Assistant Attorney General for
the Internal Security Division "that there was no area of disagreement
between the Department and this Bureau on the criteria or concepts
regarding dangerousness" and that FBI standards were "not allinclusive.
" .." 275
On its own initiative the FBI decided in early 1955 to revise the
Security Index criteria, primarily because all cases were not being
reviewed by Justice Department attorneys and FBI officials wanted to
"minimize the inevitable criticism of the dual role" the Bureau had in
both investigating and passing on "the soundness of these cases." 276
Soon thereafter the FBI reorganized the work of its Intelligence
Division to create a new Subversives Control Section for the supervision
of the Security Index and related programs for the investigation
of individuals. The Internal Security Section continued to
supervise investigations of subversive organizations and individuals
considered to be "top functionaries" and "key figures" in those organizations.
277 The result of the revision of Security Index standards was
to reduce its size to 12,870 by mid-1958. The new standards still differed
from the 1950 act and the Department's "Portfolio". To aid in applying
the criteria, FBI agents were instructed frequently to interview the
individual. "Refusal to cooperate" with such an interview was "taken
into consideration along with other facts" in determining his
dangerousneiSS.278
The cancelled Security Index cards on individuals taken off the
Index 'after 1955 were retained in the field offices. This was done
because they remained "potential threats and in case of an all-out
emergency, their identities should be readily accessible to permit restudy
of their oases." These cards would be destroyed only if the
subject agreed to become an FBI source or informant or "otherwise
indicates complete defection from subversive groups." 279
Thus, the cancelled cards served as a supplementary detention list
which remaineclavailable despite the new, tighter standards for the
Security Index itself. In 1956, the FBI decided to use these cancelled
273 Memorandum from A. H. Belmont to L. V. Boardman, 12/8/54.
"'. Memorandum from the FBI Director to the Attorney General, 12/23/54.
"'" Memorandum from the FBI Director to Assistant Attorney General William
F. Tompkins, 1/27/55. In 1954 the Justice Department had established an Internal
Security Division, replacing the previous Internal Security Section in the Criminal
Division.
"'" Memorandum from the FBI Director to the Attorney General, 3/9/55.
277 Staff summary of interview with James F. Bland, former Chief of the FBI
Subversives Control Section (1955-1967), 10/13/75.
218 Memorandum from J. F. Bland to A. H. Belmont, 7/30/58.
27ll Mem<mlndum from A. H. Belmont t,<J L. V. Boardman, 4/14/55; SAC Letter
~o.55-31,4/19/55.
447
cards as the basis for a revised Communist Index, since this Index
had "grown unwieldy" and was "serving very little purpose." There
is no indication in FBI records that the Justice Department was ever
advised of the existence of the Communist Index. The Communist
Index was reviewed in 1959 and reduced from 17,783 to 12,784 names.280
In mid-1959 the Security Index included 11,982 names.281
The Communist Index was renamed the Reserve Index in 1960,
and subdivided into two sections. Section A was to include
... those individuals whose subversive activities do not
bring them within the SI criteria but who, in a time of national
emergency, are in a position to influence others against
the national interests or are likely to furnish financIal or
other material aid to subversive elements due to their subversive
associations and ideology. Included therein would be
individuals falling within the following categories: (1) Professors,
teachers and educators; (2) Labor Union organizers
and leaders; (3) Writers, lecturers, newsmen and others in
the mass media field; (4) Lawyers, doctors and scientists;
(5) Other potentially influential persons on a local or national
level; (6) Individuals who could potentially furnish
financial or material aid. This section could well include the
names of such individuals as Norman Mailer, a novelist and
author of "The N,ked and the Dead" and an admitted "leftist",
and , a former history teacher
who was recently fired for praising Premier Khrushchev before
his history class and stating that the pilot of the U-2
plane should be executed by the Reds.
Section B would follow the standards for the Communist Index, with
the additional criterion "membership in the Nation of Islam." The
purpose of the Reserve Index was to "have a special group of individuals
listed therein who should receive priority consideration with
respect to investigation and/or other action following the apprehension
of our SI subjects." 282 The FBI disseminated investigative reports
on Reserve Index subjects to the Justice Department, but there
is no indication that the Department was advised of the existence of
the Index itself.283
Throughout the 1950s, supervision of the collection of intelligence
information about individuals for the Security Index, the Communist
Index, and the Detcom programs was a major function of the FBI
Intelligence Division. In addition, the "key figure" and "top functionary"
programs were operated separately .from the Indexes and
Detcom. The purpose of these two programs was ''to select for special
attention those individuals in a subversive movement who are of outstanding
importance to the effectiveness of the movement." Field offices
were instructed to obtain photographs and handwriting specimens,
and to maintain intelligence coverage of the subject's activities
through "contact with informants" and "established sources." 284
... Memorandum from J. F. Bland to A. H. Belmont, 11/5/59.
281 Memorandum from J. F. Bland to A. H. Belmont, 8/18/59.
... Memorandum from A. H. Belmont to Mr. Parsons, 6/3/60.
... Memorandum from J. F. Bland to A. H. Belmont, 9/9/60.
28<1960 FBI Manual Section 87, pp. 66--70.
448
F. The Scope of FBI "Subversion" Investigations
While the Bureau targeted "key figures" and "top functionaries"
for special attention, the scope of the FBI program for security intelligence
investigations of individuals was far wider. The FBI Manual
stated, "It is not possible to formulate any hard-and-fast standards
by which the dangerousness of individual members or affiliates of revolutionary
organizations may be automatically measured because of
manner revolutionary organizations function and great scope and
variety of activities." Individuals were investigated if they were
"members in basic revolutionary organizations" or were "espousing
the line of revolutionary movements." The Manual added, "Where
there is doubt an individual may be a current threat to the internal
security of the nation, the question should be resolved in the interest
of security and investigation conducted." Anonymous alle~tions
could start an FBI investigation if they were "sufficiently specIfic and
of sufficient weight." On the other hand, prior approval from FBI
headquarters was required for investig-ating students, faculty members,
and U.S. or foreign government officials. Investigations were to be
"thorough and exhaustive," developing "all pertinent information concerning
the subject's background and subversive activity."
The FBI took the following steps if it learned that "any individual
on whom we have subversive derogatory information" planned travel
~ro~: \
Information concerning. these subjects' proposed travel
abroad, including information concerning their subversive activities,
is furnished by the Bureau to the Department of
State. the Oentral Intelligence Agency, and [FBI] legal attaches
if the proposed travel is in areas covered by such and,
frequently, requests are made of one or all of the above to
place stops with appropriate security services abroad to be
advised of the activities of these subjects. [Emphasis added.]
Domestic investigative techniques included a review of existing FBI
files, coverage by confidential informants, physical surveillance, photographic
surveillance, public source records, records of private firms,
and interviews with the subject.285
In addition to the policies for intelligence investigations of individuals,
the FBI had substantial programs for collecting intelligence
about "Marxist revolutionary-type organizations" including a "Cominfil"
program aimed at groups suspected of being infiltrated by Communists.
The purpose of these programs was not only to obtain evidence
for possible orosecution, but also "to follow closely the activities
of these organizations from an intelligence viewpoint to have a dayto-
day appraisal of the strength. dangerousness. and activities of these
organizations seeking the overthrow of the U.S. Government." 286
The FBI Manual did not define "subversive" groups in terms of
their links to a foreign government. Instead, they were "Marxist revolutionary-
type" organizations "seeking the overthrow of the U.S.
... 1960 FBI Manual Section ~, pp. 22-38.
""'1960 FBI Manual Section 87, pp. 5-10.
449
Government." 287 One purpose of investigation was possible prosecution
under the Smith Act. But no prosecutions were initi,ated under
that Act after 1957.288 The Justice Department advised the FBI in
1956 that such a prosecution required "an actual plan for a violent
revolution." 289 The Department's position in 1960 was that "incitement
to action in the foreseeable future" was needed.290 The First
Amendment required;
something more than language of prophecy and prediction
and implied threats against the Government to establish the
existence of a clear and present danger to the nation and its
citizens.291
Despite the strict requirements for prosecution, the FBI kept on
investigating "subversive" organizations "from an intelligence viewpoint"
to appraise their "strength" and "dangerousness." 292
The FBI's broadest program for collecting intelligence was carried
out under the heading COMINFIL, for Communist infiltration.293
The FBI collected intelligence about Communist influence under the
following categories;
Political activities
Legisl~tive activities
Domestic administration issues
Negro question
Youth matters
Women's matters
Farmers' matters
Cultural activities
Veterans' matters
Religion
Education
Industry 294
F~I investigations covered "the entire spectrum of the social and
labor movement in the country." 295 The purpose was pure i1}telligence-
to "fortify" the government against "subversive pressures" 296
or to "strengthen" the government against "subversive campaigns." 297
In other words, the COMINFIL program supplied the Attorney
General and the President with political intelligence about groups
201 1960 FBI Manual Section 87, p. 5.
... The Supreme Court's last decision upholding a Smith Act conviction was
Scales v. United States, 367 U.S. 203 (1961), which reiterated that there must
be "advocacy of action." Cf., Yates v. TJnited States, 354 U.S. 298 (1957) .
... Memorandum from Assistant Attorney General 'Tompkins to Director, FBI,
3/15/56.
2llO Memorandum from Assistant Attorney General Yeagley to Director, FBI,
5/17/60. ,
201 Memorandum from Assistant Attorney General Yeagley to Director, FBI,
9/23/60.
202 1960 FBI Manual Section 87, p. 5.
203 1960 FBI Manual Section 87, pp. 83-84.
""'1960 FBI Manual Section 87, pp. 5-11.
... Annual Report of the Attorney General for Fiscal Year 1955, p. 195.
... Annual Report for 1958, p. 338.
207 Annual Report for 1964, p. 375.
450
seeking to influence national policy, so that they might assess whether
Communists were involved.29B
.The FBI said it was not concerned with 'the "legitimate activities"
of "nonsubversive groups," but only with whether Communists were
"gaining a dominant role." 299 Nevertheless, COMINFIL reports inevitably
described such "legitimate activities" unrelated whatsoever
to the role of alleged "subversives." The FBI Manual required prior
approval from FBI headquarters before opening a OOMINFIL investigation.
The techniques used included contacting established
sources and informants and pretext interviews with members of the
organization.80o
An example of one such investigation was the FBI's COMINFIL
case on the NAACP. In 1957, the New York Field Office prepared a
137-page report covering the intelligence gathered during the previous
year. Copies Were disseminated to the three military intelligence agencies.
The report described the national section of the NAACP, its
growth and membership, its officers and directors, its national convention,
its stand on communism and the role in its state and local chapters
of alleged Communists, members of Communist front groups, and
the Socialist Workers Party. A synopsis oJ the report discusserl the
size of the NAACP and added,
NAACP 47th Annual Convention held June 26 to July 1,
1956, in San Francisco, California. Convention reaffirmed and
extended 1950 resolution against Communism. Resolution
bars NAACP membership to individuals with Communist
affiliations. Informant, who has furnished reliable information
in the past, advised that there was no activity at the convention
which could be termed Communist activity. Informant,
who has furnished reliable information in the past, advised
that two individuals of national CP status would attend
convention. NAACP in letter dated 11/3/55 to branch presidents
instructs branches to be alert for Communists in the
organization and see that no persons of questionable reputations
are permitted to obtain positions in NAACP branches.
The OP, USA continued to consider NAACP as main Negro
mass organization and desires program to win leadership
among Ne?,I:0 organizations. September 1956 issue of "Political
Affairs' carried an article entitled "The NAACP Convention."
Various attempts have been made by the CP to infiltrate
an~ dominate certain NAACP branches throughout the
Umted States and its territories. Identities of known CP
members in various branches throughout the United States
set forth.30l
.... The Chief of the Internal Security Section ()f the FBI Intelligence Division
in 1948-1966 testified that the Bureau "had to be certain" that a group's position
did not coincide with the Communist line "just by accident." The ·FBI
would not "open a case" until it had "specific information" that "the Communists
were there" and were "influencing" the group to "assist the Communist
movement." (F. J. Baumgardner testimony, 10/8/75, p. 47.)
... Annual Report for 1955, p. 195.
... 1950 FBI Manual Section 87, pp. 83-84.
, 801 Memorandum from New York City Field Office to FBI Headquarters
W~. '
451
The report was based on information supplied by 151 informants or
confidential sources, including at least four who attended the NAACP
national convention; most of the informants or sources provided data
on individuals with subversive connections who had either joined or
associated with the NAACP.
Other reports from field offices in Boston, Seattle, Philadelphia,
and Milwaukee provide additional examples of the scope of FBI intelligence
coverage of the NAACP. In Boston, informants provided
membership figures, and the FBI compiled lists of officers from public
sources.302 An informant in Seattle obtained a list of officers and reported
on a meeting where signatures were gathered on a "petition
directed to President Eisenhower" and plans announced for two'membel'S
to go to 'Washington, D.C., for a "Prayer Pilgrimage." 303 The
Philadelphia office used an informant to discover the officers and total
membership of the NAACP chapter and to learn its general objective-"
to seek the enactment of ne\v civil rights laws." 304 A Mi1waukee
informant also provided a list' of officers.30s Although these reports
concentrated ()n information about alleged Communist infiltratiQn,
they all included data on individuals and activities such as the above
having no connection with "subversive activity."
The FBI and the Justice Department both justified the continuation
of COMINFIL investigations, despite the Communist Party's decline
in the fifties and early sixties, on the theory that the Party was "seeking
to repair its losses" with the "hope" of being able to "move in" on
movements with "laudable objectives." 306 The FBI reported to the
'White House in 1961 that the Communist Party had "attempted" to
take advantage of "racial disturbances" in the South and had "endeavored"
to bring "pressure to bear" on government officials "through
the press, labor unions, and student groups." At that time the FBI had
under investigation "two hundred known or suspected communi~t front
and communist-infiltrated organizations." 307 By not stating h6'w effective
the "attempts" and "endeavors" of the Communists were,and by
not indicating whether they were beGoming more or less successful,
the FBI offered a deficient rationale for its sweeping intelligence
collection policy.30B
By 1960 the FBI had opened approximately 432,000 headquarters
files on individuals and groups in the "subversive" intelligence field.
Between 1960 and 1963 an additional 9,000 such files were opened.309
Apart from domestic intelligence programs aimed at the Communist
Party, Communist infiltration, and other "revolutionary" groups such
... Memorandum from Boston Field Office to FBI Headquarters, W28/57.
303 Memorandum from Seattle Field Office to FBI Headquarters, 6/1/57.
... Memorandum from Philadelphia Field Offiee to FBI Headquarters, 6/7/57.
"'" Memorandum from Milwaukee Field Office to FBI Headquarters, 6/13/57.
... Annual Report of the Attorney General for Fiscal Year 1959, pp. 247-248.
307 Memorandum from J. Edgar Hoover, Chairman, Interdepartmental Intelligence
Conference, to McGeorge Bundy, Special Assistant to the President for
National Security, 7/25/61, enclosing no Report, Status of U.S. Internal Security
Programs.
... A former head of the FBI Intelligence Division has testified that such language
was deliberately used to exaggerate the threat of Communist influence.
William O. Sullivan testimony, 11/1/75, PP. 4()...41.
309 Memorandum from FBI to Senate Select Committee, 10/6/75.
452
as the Socialist 1Vorkers Party and the Nationalist Party of Puerto
Rico, the FBI had extensive programs in the forei~ intelligence and
counterintelligence areas. Within the FBI Intelhgence Division, a
separate Counterintelligence Branch supervised investigations and
other operations dirocted against hostile foreign intelligence services
and espionage activities. This branch took over supervision of cases of
Communists suspected of being involved in espionage activity. The
Counterintelligence Branch included an Espionage Section, a Liaison
Section, and a Nationalities Section. The Internal Security (or domestic
intelligence) Branch included the Internal Security Section for
organizations, the Subversives Control Section for individuals, and a
Research Section.
G. The Justice Department and FEIIntelligence Investigations
The Justice Department supplied only the most general guidance to
the FBI for the investigation of organizations. An example is the
FBI's intelligence investigation of the Nation of Islam. As early as
1952, the Criminal Division advised the FBI that the Nation of Islam
would not then be placed on the "Attorney General's list," but that
available information indicated that the organization "may be a fit
subject for designation ..." under the employee security program.31O
The following year the Criminal Division told the FBI that "the evidence
presently available is insufficient to establish a violation of the
Smith Act," but that the FBI should continue to furnish investigative
reports "with a view to possible future prosecution under the Smith
Act." 311 In· 1955, the FBI asked the Department's Internal Security
Division whether it should continue to include leading members of the
Nation of Islam on the Security Index.312 The Internal Security Division
replied six months later that the evidence did not warrant designation
for the "Attorney General's list," but that "statements and activities
on the part of individual members of the Cult indicating
anarchistic and revolutionary beliefs should be considered in making a
judgment as to whether or not such individual members come within
the revised Security Index criteria." 313 Shortly thereafter, the Internal
Security Division advised that the evidence was still "insufficient to
constitute a violation of the Smith Act," since the statements of group
leaders were "more in the realm of prophecy than of an actual plan
for a violent revolution." 314
Nevertheless, the FBI continued to investigate and supply reports
to the Justice Department under the authority of the employee security
program and the emergency detention program.315 In June 1959, Director
Hoover noted on an internal FBI memorandum, "Is there no
310 Memorandum from Assistant Attorney General James M. McInerney to the
FBI Director, 5/5/52.
311 Memorandum from Assistant Attorney General Warren Olney III to the FBI
Director, 2/9/53.
313 Memorandum from the FBI Director to Assistant Attorney General William
F. Tompkins, 8/8/55.
313 Memorandum from Assistant Attorney General Tompkins to the FBI Director.
2/7/56.
314 Memorandum from Assistant Attorney General Tompkins to the FBI Director,
3/15/56.
31& Memorandum from the FBI Director to Assistant Attorney General Tompkins,
5/11/56; Assistant Attorney General Tompkins to FBI Director, 4/12/57.
453
action Dept. can take against the NOI?" 316 Therefore, the FBI asked
the Internal Security Division to review the reports submitted by the
Bureau and "advise whether any type of legal action against the NOI
is feasible in the light of this additional information." 317 The Internal
Security Division replied that the FBI reports "failed to disclose the
type of evidence required" for a Smith Act prosecution, but that designation
for the "Attorney General's list" was "under consideration."
Upon receipt of this memorandum, Director Hoover noted, "They always
come up with more reasons for no positive action and none for
constructive approach." 318
Nearly a year later, the Internal Security Division advised the FBI
that there were "a number of legal problems" with designation of the
Nation of Islam for the "Attorney General's list" because the language
of the group's leaders "concerning the destruction of the government
usuallj has been couched in terms of prophecy or prediction rather
than in terms of incitement to action in the foreseeable future." Nevertheless,
the Division would continue to review any "additional information
furnished by the Bureau relative to the criteria" of the employee
security program.319
Director Hoover was still dissatisfied, noting on the FBI's Current
Intelligence Analysis for August 31, 1960, "Has the Department
ruled on the NOI or are they still 'considering' it?" Hoover believed
"nothing would be gained" by writing the Internal Security Division
again, and suggested "an overall memo on NOI be sent A.G.
stressing vicious character and statements of this outfit." 320 Consequently,
the FBI sent Attorney General William Rogers a summary
of the most inflammatory rhetoric of the group and asked him to
"consider whether there is any legal action that can be taken or
whether the organization can be designated pursuant to the provisions
of Executive Order 10450." 321
In reply, {he Internal Security Division explained again that
"the First Amendment would require something more than language
of prophecy and prediction and implied threats against the
Government to establish the existence of a clear and present danger to
the nation and its citizens." Moreover, there was insufficient evidence
to meet the criterion of Executive Order 10450 "that it has adopted
a policy of advocating or approving the commission or ... acts of violence
to deny others their constitutional rights." Nevertheless, the
FBI was requested to "continue its investigation ... because of
the semi-secret and violent nature of this organization. and the
continuing tendency on the part. of some of its leaders to use lan-
810 Memorandum from S. B. Donahue to A. H. Belmont, 6/17/59. (The May 27,
1959, issue of the FBI's "Current Intelligence Analysis" had been devoted to
"presentation of picture of growing threat to internal security of Nation of
Islam."),
817 Memorandum from the FBI Director to the Assistant 'Attorney General, Internal
Security Division, 6./19/59.
318 Memorandum from the Acting Assistant Attorney General J. Walter Yeagley
to the FBI Director, 7/15/59.
819 Memorandum from Assistant Attorney General Yeagley to the FBI Director,
5/17/60.
... Memorandum from A. H. Belmont to D. J. Parsons, 9/1/60.
321 Memorandum from the FBI Director to the Attorney General, 9/9/60.
454
guage of implied threats against the Government. . . ." Director
Hoover noted on this memorandum, "Just stalling!" 322
Thus, for a decade the FBI continued to conduct an intelligence
investigation of the Nation of Islam, despite the lack of any evidence
to justify federal prosecution or other legal action by the Justice
Department. Although the Department had an entire division concerned
with internal security matters, it failed almost totally to
provide the FBI guidance or direction.
The Internal Security Division contained a Subversive Activities
Section to supervise prosecution of Communists under the Smith Act
and related statutes (over one hundred Party leaders were prosecuted
in the 1950s), a Subversive Organizations Section to enforce the
Subversive Activities Control Act against Communist and Communistfront
groups and to make designations for the Employee Security
Program, an Appeals and Research Section to handle the voluminous
appellate litigation and consider legislation, and a Foreign Agents
Registration Section. In 1955, the Division received 101,470 memoranda
and reports from the FBI.323 The Assistant Attorney General
in charge of the Internal Security Division from 1958 until 1970,
.T. Walter Yeagley, was a former official of the FBI Intelligence Division;
and his principal deputy, John Doherty, had been FBI Director
Hoover's liaison with the White House in the early 1950s.
H. FBI Investigatwm of "Hate Groups" and "Racial Matters"
During the 1950s the FBI also developed investigative programs
in the area of "racial matters," including racial disturbances and
"Klan-type organizations, hate organizations, and associated individuals."
As early as 1947, designations for the Attorney General's list
required data on any organization which advocated the commission
of acts of force or violence to deny persons their constitutional
rights.3u At that time President Truman's Committee on Civil Rights
endorsed "the principles of disclosure ... to deal with those who would
subvert our democracy by revolution or by encouraging disunity and
destroying the civil rights of some groups." 325 The first "Attorney
General's list" of subversive organizations for the employee loyalty
program included various Ku Klux Klan organizations.
The FBI program for Klan-type and hate organizations required
investigation of "organizations and associated individuals that ...
have adopted a policy or have allegedly adopted a policy of advocating,
condoning, or inciting the use of force or violence to deny others
their rights under the Constitution." The intelligence sought included
information about the structure, objeatives, publications and propaganda,
and finances of the organizations, as well as the officers, membership,
recruiting activities, and meetings of each klavern or local
chapter. Hate groups which did not "qualify for investigation" under
322 Memorandum from Assistant Attorney General J. Walter Yeagley to the FBI
Director, 9/23/60.
323 Annual Report of the Attorney General for Fiscal Year 1955, pp. 44-66.
... Executive Order 9835, 12 Fed. Reg. 1935 (1947), Executive Order 10450,
18 Fed. Reg. 2489 (1953).
325 President's Committee on Civil Rights, To Secure These Rights (1947), p. 52.
455
thesc standards were followed "through public source material and
established sources." 326
FBI field offices were instructed to "conduct no investigation regarding
individual acts of violence allegedly or actually committed
by an organization in absence of infonnation indicating violation
within Bureau's jurisdiction." Nevertheless, the FBI used its informants
rand sources within the groups to determine which group was
involved in "each such incident" and "whether action taken was on
initiative of individual members or with knowledge or aproval of
leadership." Individual investigations were opened "on officers, leaders,
and active workers in these organizations to detennine whether they
have been involved in acts of violence or have a definite potential for
future acts of violence." Names of members attending meetings were
"indexed from infonnants' statements," and names of new members
were furnished to FBI headquarters "for indexing purposes." Infonnants
were "developed in all such organizations." However, field
offices were cautioned,
Wholesale investigations of individuals of these organizations
should not 'be conducted and investigations of individual
members should lbe initiated only on a most seleotive basis. Individuals
investigated should be those who are key personnel
who actually fonnulate and carry out the organization's potiey
and not those individuals who merely attend meetings on
a regular basis.321
This restriction was imposed in mid-1959, after supervision of Klantype
and hate matters were transferred from the FBI Intelligence
Division to the General Investigative Division.
Nevertheless, the Burea,u used its "established sources" to monitor
the activities of hate groups which did not "qualify" under the violence
standard.328 Thus, the FBI collected and disseminated intelligence
about the John Birch Society and its founder, Robert Welch, in
1959.329 The activities of another right-wing spokesman, Gerald L. K.
Smith who headed the Christian Na,tionalist Crusade, were the subject
of FBI reports even after the Justice Department had concluded
that there was no federal law violation and no basis for putting the
group on the "Attorney General's list." 330
... 1960 FBI Manual Section 122, p. 1.
.., 1960 FBI Manual Section 122, pp. 2-3.
... 1968 FBI Manual Section 122, p. 1.
... The FBI has denied that it ever conducted a "security-type investigation"
of the Birch Society Qr Welch, but the Boston Field Office "was instructed in 1959
to obtain background data" on Welch using public sources. (Memorandum from
the FBI to the -Senate Select Committee, 2/10/76.) A 1963 internal FBI memorandum
stated that the Bureau "checked into the background" of the Birch
Society "because of its scurrilous attack on President Eisenhower and other
high Government officials," (Memorandum from F. J. Baumgardner to W. C.
Sullivan, 5/29/(l3.)
sao Letter from Assistant Attorney General Tompkins to Sherman Adams, Assistant
to the President, 11/22/54; letters from J. Edgar Hoover to Robert Cutler,
Special Assistant to the President, 10/15/57 and 1/17/58. (Dwight D. Eisenhower
Library. )
456
Under the FBI program for "General Racial Matters," the Bureau
gathered intelligence on "race riots, civil demonstrations, and similar
developments." These developments included "proposed or actual
activities of individuals, officials, committees, legislatures, organizations,
etc., in the racial field." Although the FBI realized it did not
have "investigative jurisdiction over such general racial matters," the
Manual stated, "As an intelligence function the Bureau does have the
responsibility of advising appropriate Government agencies and officials
on both a national and local level of all pertinent information
obtained concerning such incidents." FBI responsibilities were also
based on the long-standing agreement with military intelligence:
Insofar as Federal jurisdiction in general racial matters is
concerned, U.S. Army regulations place responsibility upon
the Anuy to keep advised of any developments of a civil disturbance
nature which may require the rendering of assistance
to civil authorities or the intervention of Federal troops.
OSI and aNI have a collateral responsibility under Army in
such matters and copies of pertinent documents disseminated
to Anuy concerning such matters should be furnished to OSI
and ONI.331
The need for federal troops to control civil disturbances was vividly
demonstrated in the Little Rock school desegregation events of 19571958.
The President was informed during these years of the FBI's "racial
matters" intelligence activities. At a Cabinet briefing in 1958, Director
Hoover stated:
... we investigate such fanatical and so-called "hate"
groups as the Negro Nation of Islam; the Ku Klux Klan; the
National States Rights Party, an anti-Jewish and anti-Negro
organization; and the "Confederate Underground." The latter
is a name which has been mentioned on a number of occasions
in recent bombing threats and other forms of violence.
Since January 1, 1957, there have been over 90 bombings, or
attempted bombings, in the United States. Of these, at least
69 have involved Negro victims and at least eight Jewish religious
and educational facilities. . ..
Recognizing the danger to the national welfare from a general
pattern of organized terrorism, the FBI has moved in
to expand its assistance to locallaw enforcement.... Weare
closely checking the activities of individuals prominently involved
in racial incidents, such as [a leader of] the Seaboard
White Citizens Council of Washington. As a further aid to
local law enforcement agencies, the FBI has scheduled a
series of special conferences . . . to discuss our cooperative
services regarding bombings and threats of bombings against
religious and educational institutions.
Our entry into these cases at this ne,v level is not to be
interpreted as an attempt on our part to usurp the jurisdiction
of local authorities. To give the FBI this jurisdiction
lla11960 FBI Manual Section 122, pp. 5-6.
457
would relieve local governments of the basic responsibility to
maintain law and order, and the ultimate responsibility rightfully
rests at the 10callevl'1.332
Director Hoover's sensitivity to possible criticism for exceeding the
FBI's jurisdiction was reflected in a warning to the field offices that
racial matters were "extremely delicate and great care must be exercised
in the approach to such matters." 333
There was greater emphasis on right-wing extremism in FBI
domestic intelligence policy during 1960-1963. In January 1963, FBI
field offices received a thirty-two page set of instructions on how to
characterize "Klan-type and hate-type organizations." Field offices
were advised that individual and group activities had to be "specifically
identified with the correct Klan organization." 334
Instruction.s to FBI field offices in June 1963 specifically emphasized
investigations of "rightist or extremist" groups, based not only on the
FBI's criminal investigative jurisdiction and its authority under the
Federal Employee Security Program, but also on a general intelligence
premise:
"Rightist or extremist" groups operating in the anticommunist
field are being formed practically on a daily basis. I
wish to re-emphasize the nl'cessity for the field to be alert to,
and advise the Bureau concerning, the formation and identities
of such groups. The field should also be alert to the activities
of such groups which come within the pnrview of Executive
Order 10450 or arl' in violation of Federal statutes over
which the Bureau has invl'stigative jurisdiction. Investigations,
where warranted, should be initiated and handled pursuant
to Bureau policy relating to the specific snbstantive violation.
You are reminded that anticommunism should not
militate against checking on a group if it is engaged in unlawful
activities in violation of Federal statutes over which the
Bureau has investigative jurisdiction.
Investigations of groups in this field whose aetimities are
not in violation of any statutes over which the Bnreau has
jurisdiction are not to' be conducted without specific Bureau
authority. A request for authority to investigate such a group
should include the basis for your recommendations regarding
investigation. 335 [Emphasis added.]
Thus, the FBI developed a program for collecting general intelligence
on right-wing extremism. There is no further reference to this
program in comparable instructions to the field issued after 1963.
I. Legal Autlwrity for Domestic Intelligence
During the 1945-1963 period, there were two formal presidential
statements (or directives) on FBI domestic intelligence authorityone
by President Truman in 1950 and the other by President Eisenhower
in 1953. These statements specifically authorized FBI investiga-
832 FBI Director Hoover's Briefing of the President and the Cabinet, 11/6/58.
... 1960 FBI Manual Section 122, p. 6.
8M SAC Letter No. 63-4, 1/23/63.
036l':l4.f1 T,pttn No. 63-27. 6/11/603.
458
tion of "subversive activities," unlike the more ambiguous Roosevelt
directives. Moreover, a confidential directive of the National Security
Council in 1949 granted authority to the FBI and military intelligence
for counterespionage operations and the investigation of "subversive
activities." The power of the National Security Council to issue
this order was based, in part, on the National Security Act of 1947.
That act also created the Central Intelligence Agency, with a prohibition
against its performance of "law enforcement or internal security
functions" and a limitation on the authority of the Director of Central
Intelligence to inspect FBI intelligence.
The action of the National Security Council in 1949 greatly
strengthened the independence of the FBI. The line of authority for
FBI and military domestic intelligence now flowed from the National
Security Council to an Interdepartmental Intdligence Conference
(IIC) , composed of the FBI Director (as chairman) and the heads of
the military intelligence agencies. This chain of command bypassed the
Attorney General. A member of the National Security Council staff in
the White House was assigned to serve as the point of contact between
the IIC and the NSC. The Attorney General was, as a practical matter,
regularly involved in major White House decisions.33G This arrangement
continued until 1962, when President Kennedy placed the Interdepartmental
Intelligence Conference under the direct authority of the
Attorney General.337
The testimony before Congress and the floor debate at the time of
consideration of the National Security Act of 1947 did not clarify the
authority of the FBI. Nevertheless, the legislative history supporting
the intent of Congress to exclude the CIA from domestic intelligence
was extensive. The restriction against "police, law enforcement or internal
security functions" appeared first in President Truman's directive
establishing the Central Intelligence Group in January 1946.338
General Vandenberg, then serving as Director of Central Intelligence,
testified in 1947 that this restriction was intended to "draw the lines
very shal1ply between the CIG and the FBI" and to "assure that the
Central Intelligence Group can never become a Gestapo or security
police." 339 Proponents of the creation of the Central Intelligence
Agency cited the FBI as a model. For example, Allen Dulles stated:
The success of the FBI has been due not only to the ability
of the director and the high qualities of his chief assistants,
but to the fact that that director has been on that particular
job for a sufficient period of years to build up public confidence,
an esprit de corps in his organization, and a high
prestige. We should seek the same results for our intelligence
'"'" The 1950 Truman statement on FBI authority was cleared by Acting Attorney
General Peyton Ford; and Attorney General Herbert Brownell took part in
the National Security Council meeting where the 1953 statement was approved.
(Letter from James S. Lay, Jr., Executive Secretary, NSC, to Attorney General
J. Howard McGrath, 7/24/50; Memorandum from J. Edgar Hoover to Attorney
General Brownell, 12/29/53.)
..., National Security Action Memorandum 161, 6/9/62.
... Presidential Directive, Coordination of Federal Foreign Intelligence Activities,
1j22/46, 11 Fed. Reg. 1337.
sao Hearings before the Senate Armed Services Committee on S. 758, 80th Congo
(1947), p. 497.
459
service, which will operate in the foreign field, and on items
of foreign information.340
Secretary of the Navy James Forrestal testified that the purposes of
the CIA were "limited definitely to purposes outside of this country,
except the collation of information gathered by other Government
agencies." The FBI was relied upon "for domestic activities." 341 In
the House floor debate, Congressman Holifield stressed that the work
of the CIA "is strictly in the field of secret foreign intelligence-what
is known as clandestine intelligence. They have no right in the domestic
field to collect information of a clandestine military nature. They
can evaluate it; yes." 342
Congressmen were also concerned with a provision of the original
bill establishing the CIA which gave its Director the power to make
"inspection" of the intdligence operations of other government agencies.
Congressman Busby urged an amendment "to eliminate the possibility
of its [the CIA's] going into the records and books of the FBI
because the FBI does not go outside the United States. It is only concerned
with internal intelligence and investigations in the United
States." 343 Congressman Judd introduced such an amendment "primarily
to protect the FBL" He stated:
I do not believe we ought to give this Director of Central Intelligence
power to reach into the operations of J. Edgar
Hoover and the FBI, which are in the domestic field....
All the intelligence the FBI has . . . must be available to
the Director of Central Intelligence if it relates to the national
security. But the Director of Central Intelligence will
not have the right to inspect their operations.
Congressman Judd feared the DCI "coming in and finding out who
their agents are, what and where their nets are, how they operate;
and thus destroy their effectiveness." He believed the FBI was "too
valuable an agency to be tampered with." The amendment was
adopted.344
Consequently, the National Security Act of 1947 contained two Sections
specifically applying to domestic intelligence. First, it provided
that the CIA "shall have no police, subpoena, law-enforcement powers,
or internal-security functions." Second, it excluded the FBI from the
... Senate Armed Services Committee Hearings. on S. 758 (1947), pp. 525-526.
President Truman had rejected a proposal by FBI Director Hoover in 1945 for
expanding the FBI's wartime Special Intelligence Service, which was assigned
to the Western Hemisphere, to a world-wide basis. Don Whitehead, The FBI
Story (New York, Random House, 1956) p.279.
an Hearings before the House Committee on Expenditures in the Executive
Departments on H.R. 2319, 80th Congo (1947), p. 127.
"'93 Congo Rec. 9430 (1947). Fears that a foreign intelligence agency WQuld
intrude into domestic matters went back to 1944, when General William Donovan,
head of the Office of Strategic Services, proposed that the OSS be transformed
from a wartime basis to a permanent "central intelligence service." Donovan's
proposal was leaked to the Chicago Tribune, allegedly by FBI Director
Hoover, and it was denounced as a "super-spy system" which would "pry into
the lives of citizens at home." [Corey Ford, Donavan af the 088 (Boston: Little
Brown, 1970), pp. 303-304.]
343 93 Congo Rec. 9404 (1947) .
... 93 Congo Rec. 4218-4219 (1947).
69-984 0 - 76 • 30
460
"inspection" powers of the Director of Central Intelligence and provided
only "that upon the written request of the Director of Central
Intelligence, the Director of the Federal Bureau of Investigation shaH
make available to the Director of Central Intelligence such information
for correlation, evaluation, and dissemination as may be essential
to the national security." 345
The only indication of legislative intent regarding the type of
information to be made available by the FBI appeared in the House
debate. Congressman Judd was asked, "If the FBI has information
about fifth-column activities and subversive information a.ffecting the
national defense, would that be open to the Central Intelligence
Agency~". The sponsor of the amendment replied, "Yes." 346
There was no general restatement of the FBI's domestic security
intelligence responsibilities at this time. This issue arose first in 1948,
when the Secretary of Defense recommended to the National Security
Council that it consider how best to coordinate internal security matters.
The NSC directed its executive secretary to conduct an internal
security survey, and a report was submitted in August 1948.341
In 1948 there were also political developments in Congress and the
forthcoming presidential election campaign, including the allegations
of Elizabeth Bentley and Whittaker Chambers before the House
Un-American Activities Committee regarding ('A)mmunists in government
service and charges that the administration's security procedures
were lax. In this context, Attorney General Clark advised the President
that he should make "a statement concerning investigations in
the internal security field." The draft read as follows:
On September 6, 1939, and again on January 8, 1943, a
Presidential directive was issued providing that the Federal
Bureau of Investigation should take charge of investigative
work in matters relating to espionage, sabotage, subversive
activities, and similar matters. It was requested that all law
enforcement officers in the United States, and all patriotic
organizations and individuals, promptly turn over to the Federal
Burelliu of Investigation any information concerning
these matters
The Federal Bureau of Investigation has fully carried out
its responsibilities with respect to the internal security of the
United States, under these directives. The cooperation rendered
to the Federal Bureau of Investigation in accordance
with the directives has been of invaluable assistance to it.
I wish to emphasize at this time that these directives continue
in full force and effect.
.... 50 U.S.C. 403(d) (3) and 403 (e) .
""93 Oong. Rec. 4219 (1947). The following discussion of FBI Director Hoover
by Congressm8lIl John McCormack appears in the :floor debate on the tenure of
the CIA Director: "The best we can do is as in the case of J. Edgar Hoover:
A man by his personality, a man who impresses himself so much upon his
fellowmen that permanency accrues by reason of the character of service that
he renders. But J. Edgar Hoover has no tenure for life. He has earned it because
of his unusual capacity." [98 Congo Rec. 9445 (1947).J '
'41 J. Patrick Coyne, Major Chronological Developmentil bn the Subject of Internal
Security, 4/8/49 (Harry S. Truman Library, Papers of Stephen J. Spingarn).
461

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