J. Edgar Hoover: The Man and the Secrets (34 page)

In 1930, when the Prohibition Bureau was transferred to the Justice Department, the attorney general, William Mitchell, found himself with a problem: one of his units, Prohibition, used wiretaps, while another, the Bureau of Investigation, did not. Mitchell resolved the dichotomy by permitting both to tap. By 1932 the BI was again tapping telephones, although Hoover supposedly
restricted their use to kidnapping and white-slave investigations and cases “in which the national security was involved.”
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However, in 1934 Congress passed the Federal Communications Act, Section 605 of which stated that “no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purpose, effect, or meaning of such intercepted communications to any person.”
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The FBI simply ignored the ban, first arguing that it did not apply to federal agents or their law enforcement activities, then, when the U.S. Supreme Court ruled otherwise, adopting the argument that while the divulging of tapped conversations might be prohibited, the use of evidence obtained from them was not. In December 1939 the Supreme Court rejected this argument too, ruling that Section 605 prohibited not only divulgence of “the exact words heard through forbidden interception” but also “derivative use” of evidence so obtained, which it characterized as “fruit of the poisonous tree.”
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Citing the Supreme Court decision, Attorney General Jackson on March 15, 1940, issued an order prohibiting any wiretapping by the Federal Bureau of Investigation. Publicly, Hoover went along with his boss, declaring with righteous indignation, “I do not wish to be the head of an organization of potential blackmailers.”
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Privately, he fought to overthrow Jackson’s ban. It took him less than three months. Rather than going directly to FDR, and risking the displeasure of his new superior, Hoover waged his fight behind the scenes. To favored journalists he leaked scare stories of how Jackson’s edict had hampered FBI investigations. Drew Pearson, for example, reported that FBI agents had overheard German agents plotting to blow up the
Queen Mary
but, because of Jackson’s prohibition, had to stop listening in on the plot. More important, Hoover encouraged other departments—including State, War, Navy, and Treasury—to pressure the president to overrule his attorney general. He was most successful with Treasury Secretary Henry Morgenthau, who, as previously noted, had an assistant monitor and transcribe all of his own conversations. Morgenthau’s diary entry for 4:20
P.M.
on May 20, 1940, reads:

“I spoke to J. Edgar Hoover and asked him whether he was able to listen in on [Nazi] spies by tapping the wires and he said no; that the order given him by Bob Jackson stopping him had not been revoked. I said I would go to work at once. He said he needed it desperately.

“He said there were four Nazi spies working in Buffalo across the Canadian borders and the Royal Mounted Police had asked for his assistance and he had been unable to give it.

“I called up General Watson [secretary to the president] and said this should be done and he said, ‘I don’t think it is legal.’ I said ‘What if it is illegal?’ He called me back in five minutes and said he told the President and the President said, ‘Tell Bob Jackson to send for J. Edgar Hoover and order him to do it and a written memorandum will follow.’ ”
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It must have been a very discomfiting meeting—for Attorney General Robert Jackson.

The next day the president sent the attorney general a confidential memo in which he stated that while he agreed with the Supreme Court decision, he was sure the Court never intended its decision to apply “to grave matters involving the defense of the nation.” He went on:

“You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigative agencies that they are at liberty to secure information by listening devices…of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens. FDR.”
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That the president had sided with his subordinate apparently upset the attorney general less than his realization that Roosevelt’s memorandum “opened the door pretty wide to wiretapping of anyone suspected of subversive activities,” a term that still remained undefined.
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Distressed, Jackson tried to wash his hands of the whole matter, letting the FBI director decide whom he wanted to tap. According to Francis Biddle, who was then solicitor general, “Bob [Jackson] did not like it, and not liking it, turned it over to Edgar Hoover without himself passing on each case.”
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Jackson didn’t even want to know who was being tapped. In a memorandum for the files, Hoover wrote, “The Attorney General decided that he would have no detailed record kept concerning the cases in which wiretapping was utilized. It was agreeable to him that I maintain a memorandum book in my immediate office, listing the time, places and cases in which this procedure is to be utilized.”
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Forced by the president to reverse himself, Jackson now wrote the House Judiciary Committee that he interpreted Section 605 to mean that it was illegal only to intercept
and
divulge a communication. Thus the FBI could continue to tap telephones and use any information or investigative leads so obtained, as long as it didn’t divulge such information in court.

Although it “required the exegetic skill of a Talmudist,” as the historian Frank Donner put it, Attorney General Jackson’s interpretation “was used to justify wiretapping in one form or another by all of his successors until the late 1960s.”
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According to a friend and associate, Robert Jackson hated Hoover and often stated, in later years, that “he was sorry he hadn’t fired him.” Whether he could have is open to question, as is whether he dared.
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Shortly before his death in 1954, Robert Jackson strongly, albeit obliquely, attacked the FBI, writing, “I cannot say that our country could have no central police without becoming totalitarian, but I can say with great conviction that it cannot become totalitarian without a centralized national police…All that is necessary is to have a national police competent to investigate all manner of offenses, and then, in the parlance of the streets, it will have enough on enough
people, even if it does not elect to prosecute them, so that it will find no opposition to its policies. Even those who are supposed to supervise it are likely to fear it. I believe that the safeguard of our liberty lies in limiting any national policing or investigative organization, first of all to a small number of strictly federal offenses, and second to nonpolitical ones.”

Brave words—yet, even though he was a much esteemed associate justice of the U.S. Supreme Court, Jackson didn’t dare criticize Hoover himself. To the above he had to add, “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 again revert 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.”
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Hoover, as usual, had the last word. When the associate justice died, in the apartment of one of his female secretaries, Hoover, through Crime Records, leaked the “inside story” to the press.
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Among those most enraged by the criticism of Hoover was Morris L. Ernst. “Morris Ernst telephoned from New York,” Adolf Berle noted in his diary entry for March 22, 1940. “He is very angry with the press attack on J. Edgar Hoover. As he points out, J. Edgar Hoover has run a secret police with a minimum of collision with civil liberties, and that is about all you can expect of any chief of secret police.”
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Considering that Ernst on occasion served as Hoover’s personal attorney, and was often seen with the director and associate director at Winchell’s table in the Stork Club’s Cub Room, his defense of the FBI director was perhaps understandable.
^†

But Morris Ernst was far more than J. Edgar Hoover’s attorney and friend. He was also one of the giants of civil liberties—a battler against censorship, the defender of James Joyce’s
Ulysses,
and a much respected attorney in many landmark court cases. Moreover, for twenty-four years, between 1930 and 1954, he was general counsel of the American Civil Liberties Union.

Roger Baldwin had been Hoover’s original ACLU contact; he’d even helped the BI director retain his job. Then Hoover and Ernst met. Almost overnight, Baldwin recalled, “Ernst developed a rather personal relationship with Hoover and, at the time, we thought that best served our purposes.”
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But Morris Ernst was not merely an unofficial liaison between the two organizations. He became an almost fanatic champion of the Federal Bureau of Investigation and its director.

Besides defending the Bureau in dozens of speeches and articles (such as “Why I No Longer Fear the FBI,” which Crime Records persuaded the
Reader’s Digest
to publish in December 1950), he barraged Hoover, Tolson, and Nichols with letters asking—sometimes almost begging—to be allowed to offer his support.

To Lou Nichols: “After my discussion with you yesterday, it occurred to me that maybe I could be of help to the Senate or the House Committee with respect to any inquiries as to the Lawyers Guild.”
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To Clyde Tolson: “Can I do anything to help you and Edgar on this stinking series of articles appearing in the
Star?
”
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And, especially, to “My dear Edgar”: “You are a grand guy and I am in your army.”
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“…a lot of people think I am just a stooge for you which I take as a high compliment. There are few people I would rather publicly support.”
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“I was flattered to be associated with you.”
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“I am fast becoming known as the person to pick a fight [with] in relation to the FBI.”
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“I am disturbed at the repeated implications that the FBI has been inefficient and slothful with respect to investigations. Is there anything I can do for you?”
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Ernst did a lot. He effectively neutralized criticism of the FBI within the ACLU. He reported private, and sometimes privileged, conversations to Hoover. Unbeknownst to their authors, he gave Hoover copies of personal letters he had received from such FBI critics as the journalist I. F. Stone, the columnist Max Lerner, Congressman Wayne Morse, and FCC Chairman Lawrence Fly (who had clashed with the FBI director over the issue of wiretapping). He led the fight to have the veteran Communist Elizabeth Gurley Flynn removed from the ACLU’s board of directors. He was instrumental in having the ACLU adopt the position that there were “no civil liberties issues involved” in the Rosenberg case.
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He even offered to become the attorney for the two accused atomic spies, not so much to help them (he’d already decided that Julius Rosenberg and his wife, Ethel, were guilty) as to assist the FBI. If Nichols’s memorandum of their conversation is to be believed, Ernst made the
offer “on only one ground, namely, that he could make a contribution,” and because he was convinced that if Julius Rosenberg broke and told all he knew, “this would be a terrific story and probably would be most helpful to the Bureau.”
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(Wisely or not, for both were convicted and executed, the Rosenbergs declined Ernst’s offer.)

Even more important is what Ernst didn’t do. The nearly quarter century during which he served as general counsel of the American Civil Liberties Union encompassed such epochal events at the Smith Act roundups; the federal loyalty investigations; the Hiss, Rosenberg, Lattimore, and Oppenheimer cases; blacklisting; and the anti-Communist witch hunts of the House Un-American Activities Committee and Senator Joseph McCarthy. Yet never once did Morris Ernst criticize, question, or even closely examine the FBI’s pervasive role in these and dozens of other related matters, almost all of which involved serious violations of constitutional rights.

For all this, Ernst—and the ACLU—received very little in return. In 1939 Hoover arranged a secret meeting between Ernst and Congressman Martin Dies, chairman of the House Un-American Activities Committee, during which a deal was apparently struck: HUAC would withdraw its charge that the ACLU was a “Communist front,” if the ACLU would, in return, purge itself of any known Communists. The ACLU’s “trial” of Elizabeth Gurley Flynn quickly followed, and Dies pronounced the organization free of any Red taint. Hoover also, over the years, helped “clear” some of Ernst’s clients whose loyalties or associations had been called into question.

But that was about it. For the most part, all Hoover gave Ernst was encouragement and support in his battles as self-appointed defender of the FBI. “Do not ever hesitate to call day or night when you get in a controversy involving us and you need the ammunition,” Nichols urged Ernst.
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When the philosopher Bertrand Russell charged the FBI with manufacturing evidence and blackmailing witnesses to testify in the Rosenberg case, Nichols informed Ernst, who was anxious to get into the fray, “You no doubt will recall back in 1940 Russell’s appointment as a professor at the City College of New York was revoked by the New York Supreme Court on the grounds that he was not fit for the position due to his ‘immoral and salacious attitude toward sex.’ ”
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To his credit, Ernst did not use this particular ammunition. But the ACLU did issue a statement calling Russell’s charges against the FBI “completely unproved and unjustified.”
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That Ernst was a staunch anti-Communist—he’d battled Communist attempts to take over both the Newspaper Guild and the Lawyers Guild—may partly explain Ernst’s uncritical espousal of the FBI’s cause, but it is not the only reason and was probably less important than certain facets of Morris Ernst’s character—very human weaknesses which Hoover, and Nichols, recognized and exploited for their own ends.