Wiretapping and J. Edgar Hoover

J. Edgar and the Kennedy Boys.

Some critics of the US national security wiretapping system – pursuant to the Foreign Intelligence Surveillance Act (FISA) – may not realize how much more stringent the standards for securing a wiretap have become since the tenure of FBI Director J. Edgar Hoover.

I recently read Curt Gentry’s J. Edgar Hoover: The Man and the Secrets (1991), and found myself aghast at the abandon with which Hoover wiretapped the American populace. The NSA warrantless wiretapping program utilized by President Bush was dwarfed by Hoover’s exploits –both in method and scale.

To illustrate this, I will present a series of Gentry’s passages, covering Hoover’s tenure as Director of the FBI from Roosevelt to Nixon.

Some may be surprised to find that during the presidencies of Franklin Roosevelt and Harry Truman, wiretapping was used with little oversight.

Truman called in his military aide, Brigadier General Harry Vaughan, and, after introducing the two men, told the FBI director that from now on if any especially important matters came up that needed his immediate attention he should route them through Vaughan…

That same day Hoover sent Vaughan a memo beginning, “I thought you and the President might be interested to know…” He then went on to report some partisan political intelligence.

Vaughan responded by asking for more: “future communications along that line would be of considerable interest whenever, in your opinion, they are necessary.”

Hoover also sent confidential reports to other presidential aides, including Matthew Connelly, Sidney Souers, E.D. McKim, and George Allen…

Within thirty days after Truman became president, the FBI was carrying out secret investigations for the White House.

Within sixty days the FBI was wiretapping and conducting surveillances for the White House. One tap, on the office and home telephones of the attorney – and political fixer – Thomas “Tommy the Cork” Corcoran, remained in place three years, generated over 175 summary logs and 6,250 pages of transcriptions, and resulted in the monitoring of many of the most prominent people in the government. (Gentry, p.322)

Hoover’s ability to instigate wide-scale wiretapping was reaffirmed with the appointment of each new attorney general.  In 1945, Truman hired Tom Clark (who later became a Supreme Court Justice) to fill the post; according to Gentry:

Clark showed no inclination to actually supervise the FBI… he turned over all wiretap requests to an assistant because he “didn’t want to know who was tapped or who wasn’t tapped.” Very few of the requests were denied. As far as Clark was concerned, the very fact that Hoover had requested them meant they were needed.

Tom Clark was, in J. Edgar Hoover’s estimation, a nearly perfect attorney general. He rubber-stamped the FBI director’s every request. He even –unknowningly– greatly broadened Hoover’s powers.

On July 7, 1946, the attorney general wrote the president asking him to renew Roosevelt’s 1940 [wartime] warrantless wiretapping authorization. Although Clark’s letter quoted from that authorization, it omitted a key sentence: “You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens.”

The elimination of that single sentence and the restrictions it contained, gave Hoover nearly unlimited authority to place as many wiretaps as he wanted, on whomever he chose. (Gentry, pp.323-324)

When Clark left office for the Supreme Court in August of 1949, he was replaced by J. Howard McGrath, who continued to choose against confronting Hoover:

The FBI director got along very well with the new attorney general. Asked by a friend how he handled Hoover, McGrath replied that he didn’t: “He’s too big to handle”… McGrath red-stamped most of the FBI director’s requests or turned them over to his deputy, Peyton Ford, who actually ran the department. Emboldened, Hoover decided to test McGrath to see how far he could go, and asked the attorney general to approve the installation of microphone surveillances involving trespass. McGrath responded that he couldn’t give his approval, because to do so might violate the Fourth Amendment, but he didn’t say that Hoover couldn’t do it, so the FBI went right on committing break-ins to plant its bugs. (Gentry, p.393)

Truman’s successor, Dwight Eisenhower hired Herbert Brownwell, Jr as attorney general.  According to Gentry, Hoover retained total control over the standards for wiretapping:

On May 20, 1954, Brownell responded, “it is clear that in some instances the use of microphone surveillance is the only possible way of uncovering the activities of espionage agents, possible saboteurs, and subversive persons. In such instances I am of the opinion that the national interest requires that microphone surveillances be utilized by the [FBI].” Nor did the attorney general restrict such use to obtaining evidence for prosecution. “The FBI has an intelligence function in connection with internal security matters equally as important.” In such stances, “considerations of internal security and the national safety are paramount and, therefore, may compel the unrestricted use of this technique in the national interest.”

Hoover had his microphone surveillance authority, which he would use for another decade. Although it did not go as far as he wanted—it said nothing about criminal cases, a fact he would totally ignore—it used the word “unrestricted”; it left him the decision as to what constituted “the national interest”; and it declared that the use of trespass (break-ins to plant the bugs) should be made on a case by case basis….

With his May 20, 1954 directive, Brownell gave Hoover carte blanche to bug whomever he chose, by whatever methods he found necessary. “There never was any definition of the methods that were to be used in carrying out the directive,” the former attorney general later testified. “The methods were left to the discretion of the FBI.” (Gentry, p.406)

Gentry asserts that the wiretapping remained similarly constant during the Kennedy and Johnson Administrations.  He cites the testimony of Horace Hampton, an executive with the Chesapeake and Potomac Telephone Company:

Asked how many wiretaps were in place at any one time during the twenty-two years he cooperated with the FBI, Horace Hampton stated, “it could have been a hundred. It could have been more…. I would say that probably during the Kennedy-Johnson administrations we had quite a few. It tapered off after that. It was quite low before Kennedy.”

Q: “What is meant by quite low?”

A: “Well, I said a hundred.”

Q: “In a year?”

A: “At one time, you said. It could have been as many as that, or it could be a little more than that.” (Gentry, p.634)

Gentry also asserts that at one point, every single foreign embassy in Washington DC was tapped:

In an off-the-record conversation with a Justice Department official in March 1969, Justices Warren and Brennan were told that the FBI was tapping all 109 foreign embassies in Washington. The following month however, FBI Director Hoover, in his annual appearance before the House Appropriations Subcommittee, testified that the FBI had only 49 telephone taps and 5 microphone surveillances in place. When the justices asked who was telling the truth, the Justice Department official conferred with his superior and reported back that there were 46 active continuous taps, while the other 63 embassies were tapped only occasionally. (Gentry, p.630)

Revealingly, late in his life, Hoover sharply cut back on his use of wiretaps.  This, Gentry argues, was because he became obsessed with preserving his legacy.

Although the FBI’s secret COINTELPROs [i] continued, any new action which could conceivably result in embarrassment to the Bureau was disapproved. Except for the seventeen Kissinger wiretaps—which had been ordered by the White House and approved by the attorney general—Hoover so severely curtailed the number of FBI taps and bugs that many operations in both the espionage and criminal fields had to be discontinued.

Unwilling to let his own men use these investigative shortcuts, Hoover was not about to take such risks on behalf of others. When the National Security Agency routinely requested FBI assistance on three bag jobs, Hoover said no. When the CIA made another routine request, asking for taps on two foreign embassies, Hoover told CIA Director Richard Helms that he’d have to get written authorization from either the president or the attorney general, and this Helms was not inclined to do. When the attorney general himself requested the placement of a bug, on a Justice Department case, Hoover made sure the signed authorization included the words “with trespass.”

Although the other intelligence directors complained among themselves about the “new Hoover”—cautious, wary, obsessed with protecting his reputation, constantly “covering his ass”—the FBI director’s personal ties with Richard Nixon were so well known and long established that none dared take their complaints to the White House. (Gentry, p.645)

Hoover’s about-face even meant rejecting President Richard Nixon’s wiretapping initiatives.  This denial led Nixon to create his own “in house” group, the plumbers:

Hoover even rejected the “Huston Plan,” an initiative to investigate young left-wing radicals in the United States. Nixon called for “a plan which will enable us to curtail the illegal activities of those who are determined to destroy our society.” (p.653)

J. Edgar Hoover had killed the Huston Plan. In its place, the president and his aides would create their own intelligence unit, the White House “Plumbers.” Hoover had triumphed, taking on and beating the president, his representative, and all three of the other intelligence chiefs. (p.658)

Hoover remained the Director of the FBI until his death due to a heart attack in May 1972.

In 1975, prevailing concerns about US intelligence operations led to the creation of the Church Committee, otherwise known as the “Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities.” The committee was critical of the CIA’s attempts to assassinate foreign dictators, but was also troubled by domestic activities, such as “COINTELPRO’s,” and specifically the “Huston Plan,” to which Church and his co-members devoted 409 pages. FISA[2] – an initiative to codify national security-purposed wiretapping – was inspired by the committee’s recommendations.

[2] The judicial oversight system for FISA is unorthodox: while the FISA Court approves the warrants, it is not the primary evaluative body. Since FISA’s inception, there has been a legal consensus that the misuse of FISA-derived evidence in a prosecution might result in the judicial invalidation of the statute itself. Hence, the Justice Department has overwhelming incentive to avoid issuing FISA warrants which do not expressly seek to acquire “foreign intelligence.” The guarantor of this standard is not the FISA Court, but a little-known Justice Department branch called the “Office of Intelligence Policy and Review” (OIPR). OIPR – a small bureau of national security lawyers – exclusively handles the promulgation of FISA warrants before the FISA Court. Hence, by using its discretion to reject improper FISA warrant applications (which endanger the statute itself), OIPR is charged with ensuring that FISA is utilized properly.