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Published online by Cambridge University Press: 20 November 2018
1 Quoted in American Civil Liberties Union, The Nationwide Spy System Centering in the Department of Justice 3 (New York: ACLU, 1924).Google Scholar
2 Marro, Anthony, FBI Break-in Policy, in Theoharis at 78, 107.Google Scholar
3 On the process that gave rise to the FBI's towering reputation, see Richard G. Powers, G-Men: Hoover's FBI in American Popular Culture (Carbondale: Southern Illinois University Press, 1983).Google Scholar
4 The FBI Story: A Report to the People (New York: Random House, 1956). Others include Andrew Tully, The FBI's Most Famous Cases (New York: William Morrow & Co., 1965); Harry Overstreet & Bonaro Overstreet, The FBI in Our Open Society (New York: W. W. Norton & Co., 1969); John J. Floherty, Inside the FBI (Philadelphia: J. B. Lippincott, 1943).Google Scholar
5 FBI Story, supra note 4, at 11, 328.Google Scholar
6 The Federal Bureau of Investigation (New York: William Sloane Associates, 1950).Google Scholar
7 The FBI Nobody Knows 419 (New York: Macmillan Co., 1964).Google Scholar
8 Id. at 415–17. See also Overstreet & Overstreet, supra note 4, at 218–51.Google Scholar
9 On civil rights leaders' criticism of the Bureau's inaction in the face of repeated acts of anti-civil rights violence, see David J. Garrow, The FBI and Martin Luther King, Jr.: From “Solo” to Memphis 122–24 (New York: Penguin Books, 1983). Tully, supra note 4, seems to have been a response to such criticism.Google Scholar
10 Whitehead, Don, Attack on Terror: The FBI Against the Ku Klux Klan in Mississippi (New York: Funk & Wagnds Co., 1970). In a forthcoming book, Federal Law and Southern Order, I argue that the FBI moved vigorously against the Klan only when President Johnson threatened Hoover's “turf” by sending retired CIA chief Allen Dulles to Mississippi after three civil rights workers disappeared near Philadelphia, Miss., in June 1964.Google Scholar
11 These papers are collected in Pat Watters & Stephen Gillers, eds., Investigating the FBI (Garden City, N.Y.: Doubleday & Co., 1973).Google Scholar
12 Emerson, Thomas I., The FBI and the Bill of Rights, in id. at 412.Google Scholar
13 Theoharis served as a consultant to the Senate's Church Committee and helped to assemble the massive documentary record of FBI abuses which that panel published.Google Scholar
14 Donner, Frank J., The Age of Surveillance: The Aims and Methods of America's Political Intelligence System (New York: Alfred A. Knopf, 1980).Google Scholar
15 Garrow, supra note 9.Google Scholar
16 William C. Sullivan (with Bill Brown), The Bureau: My Thirty Years in Hoover's FBI (New York: W. W. Norton & Co., 1979); W. Mark Felt, The FBI Pyramid (New York: G. P. Putnam's Sons, 1979); William W. Turner, Hoover's FBI: The Men and the Myth (Los Angeles: Sherbourne Press, 1970); Joseph L. Schott, No Left Turns (New York: Praeger Publishers, 1975); Bernard F. Connors, Don't Embarrass the Bureau (Indianapolis: Bobbs-Merrill Co., 1972); Anthony Villano (with Gerald Astor), Brick Agent: Inside the Mafia for the FBI (New York: Quadrangle/New York Times, 1977).Google Scholar
17 E.g., Garrow, supra note 9; Sanford J. Ungar, FBI (Boston: Little, Brown & Co., 1976); Ovid Demaris, The Director: An Oral Biography of J. Edgar Hoover (New York: Harper & Row, 1975).Google Scholar
18 Ralph de Toledano, J. Edgar Hoover: The Man in His Time (New Rochelle, N.Y.: Arlington House, 1973).Google Scholar
19 O'Reilly earned his Ph.D. under Theoharis at Marquette University in 1981.Google Scholar
20 Theoharis, Athan G., The FBI's Stretching of Presidential Directives, 1936–1953, 91 Pol. Sci. Q. 649 (1976–77); id., The Truman Administration and the Decline of Civil Liberties: The FBI's Success in Securing Authorization for a Preventive Detention Program, 64 J. Am. Hist. 1010 (1978); id., FBI Surveillance During the Cold War Years: A Constitutional Crisis, 3 Pub. Historian 4 (1981); id., The Presidency and the Federal Bureau of Investigation: The Conflict of Intelligence and Legality, 2 Crim. Just. Hist. 131 (1980); Kenneth O'Reilly, A New Deal for the FBI: The Roosevelt Administration, Crime Control, and National Security, 69 J. Am. Hist. 638 (1982); id., The FBI and the Origins of McCarthyism, 45 Historian 372 (1983); id., The Roosevelt Administration and Legislative-Executive Conflict: The FBI vs. the Dies Committee, 10 Congress & Presidency 79 (1983).Google Scholar
21 Theoharis, Athan G., Spying on Americans: Political Surveillance from Hoover to the Huston Plan Philadelphia: Temple University Press, 1978).Google Scholar
22 Weinstein's book is Perjury: The Hiss-Chambers Case (New York: Alfred A. Knopf, 1978).Google Scholar
23 Weinstein, Hiss, and the Transformation of Historical Ambiguity into Cold War Verity, in Theoharis ar 215.Google Scholar
24 Unanswered Questions: Chambers, Nixon, the FBI, and the Hiss Case, in Theoharis at 246. Hiss was charged with lying when he told a grand jury that he had not spied for the Soviet Union; by the time of his indictment, the statute of limitations had run on the espionage Whittaker Chambers alleged he had committed.Google Scholar
25 See Theoharis at 246–47 for his outline of five such questions.Google Scholar
26 Values, Liberal, the Cold War and American Intellectuals: The Trauma of the Hiss Case, 1950–1978, in Theoharis at 309.Google Scholar
27 The Case of the National Lawyers Guild, 1939–1958, in Theoharis at 129, 130.Google Scholar
28 Auerbach, Jerold S., Unequal Justice: Lawyers and Social Change in Modern America 231–62 (New York: Oxford University Press, 1976); Stanley I. Kutler, The American Inquisition: Justice and Injustice in the Cold War 152–82 (New York: Hill & Wang, 1982); Michal R. Belknap, Cold War Political Justice: The Smith Act, the Communist Party, and American Civil Liberties 219–22 (Westport, Conn.: Greenwood Press, 1977); id., The Fight for the Right to Counsel, 85 Ohio Hist. 28, 30–34 (1976).Google Scholar
29 His comparison of judges Mathes and Medina (Theoharis at 151) suggests lack of familiarity with the trial records of the New York and Los Angeles Smith Act cases, neither of which he cites. He cites Belknap, Cold War, supra note 28, at 240, for the fact that 3 local nonradical attorneys were recruited and paid by the local bar association to represent 11 indigent defendants in the Cleveland Smith Act trial (Bailey, in Theoharis at 159); as Belknap, supra, at 225, makes clear, it was 7 appointed attorneys funded by the association.Google Scholar
30 Diamond, Sigmund, The Arrangement: The FBI and Harvard University in the McCarthy Period, in Theoharis at 341, 365.Google Scholar
31 The FBI, Congressman Vito Marcantonio, and the American Labor Party, in Theoharis at 176.Google Scholar
32 Donner, supra note 14, at 403.Google Scholar
33 Id. at 103.Google Scholar
34 Actually. Clark was responding mainly to Republican political pressure on the Communist issue. See Belknap. Cold War, supra note 28, at 46–47.Google Scholar
35 See., e.g., in O'Reilly: at 145, hic use of the term “trial appeal”; at 242, his comment on the introduction of hearsay evidence.Google Scholar
36 Donner, supra note 14, at 22.Google Scholar
37 Belknap, Michal R., The Mechanics of Repression: J. Edgar Hoover, the Bureau of Investigation and the Radicals 1917–1925, 7 Crime & Social Just. 49, 51–52 (1977).Google Scholar
38 See Theoharis, , supra note 21, at 65–93; id., FBI's Stretching, supra note 20.Google Scholar
39 O'Reilly, at 94–95, 103. This information was riot all collected by passive means, such as clipping items from newspapers. In 1952 when FBI informant Gary Thomas Row was asked if part of his job had been supplying information about where candidates stood on issues, he replied, “I was instructed to do this, and I did do it.” 6 Federal Bureau of Investigation: Hearings Before the Select Committee to Study Governmental Operations with Respect to Intelligence Activities of the United State Senate, 94th Cong., 1st sess. 123 (1975). See also Donner, supra now 14, at 107.Google Scholar
40 Donner, supra note 14, at 103.Google Scholar
41 Id. at 256.Google Scholar
42 Garrow, supra note 9, at 221, 220.Google Scholar
43 David Williams's assertion that Theoharis blames the FBI's abuses on the Cold War seems a bit Unfair. See Williams, The Bureau of Investigation and Its Critics, 1919–1921: The Origins of Federal Political Surveillance, 68 J. Am. Hiyt. 560, 579 (1981). Although Beyond the Hiss Case perhaps provides some support for this contention, Theoharis's earlier work, Spying on Americans, supra note 21, clearly contradicts it. Like his mentor, O'Reilly identifies abuses committed by the FBI well before the Cold War and traces its anticommunism to before World War II. See O'Reilly at chs. 1–2.Google Scholar
44 Garrow, supra note 9, at 41, 85–86, 151–64, 170–72, 204. It is true, of course, that Hoover was a fanatical anti-Communist who was determined to establish that the civil rights movement was controlled or at least influenced by Communists. Id. at 68.Google Scholar
45 FBI learings, supra note 39, at 144 (testimony of Assistant Director James B. Adam).Google Scholar
46 Donner, supra note 14, at 206–7.Google Scholar
47 Id. at 9–11, 183; Garrow, supra note 9, at 208–9.Google Scholar
48 Belknap, Michal R., The Vindication of Burke Marshall: The Southern Legal System and the Anti-Civil Rights Violence of the 1960s, 33 Emory L.J. 93, 116–22 (1984).Google Scholar
49 Garrow, supra note 9, at 209.Google Scholar
50 Wilson, James Q., The Investigators: Managing FBI and Narcotics Agents 170, 205 (New York: Basic Books, 1978).Google Scholar
51 See supra note 10.Google Scholar
52 Exec. Order No. 12, 333 sec. 2.3, 46 Fed. Reg. 59,941, reprinted in 50 U.S.C. § 401, at 844 (Supp. 1981).Google Scholar
53 John T. Elliff does point out, however, that guidelines for FBI investigations which then Attorney General William French Smith issued on March 7, 1983, did seem to represent a significant shift away from the Bureau's pre-1976 internal security policies to a concept of criminal intelligence tied directly to its law enforcement functions. The Attorney General's Guidelines for FBI Investigations, 69 Cornell L.Q. 785, 792 (1984).Google Scholar
54 Donner, supra note 14, at xii.Google Scholar
55 See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).Google Scholar
56 Donner, supra note 14, at xii.Google Scholar
57 Laird v. Tatum, 408 U.S. 1 (1972).Google Scholar
58 The new FBI historian is Susan Rosenfeld Falb. She encourages scholars doing research on the FBI to communicate with her at Federal Bureau of Investigation, Ninth Street and Pennsylvania Avenue, N.W., Washington, D.C. 20535.Google Scholar
59 Belknap, supra note 37, at 55.Google Scholar
60 Emerson, supra note 12, at 418; Pat Watters & Stephen Gillers, Lessons of the Conference, in Watters & Gillers, supra note 11, at 451, 452; Jerry J. Rerman, FBI Charter Legislation: The Case for Prohibiting Domestic Intelligence Investigations, 55 U. Det. J. Urb. L. 1041, 1042 (1978).Google Scholar
61 Elliff, John T., The Reform of FBI Intelligence Operations 106 (Princeton, N.J.: Princeton University Press, 1981).Google Scholar
62 Id. at 107.Google Scholar
63 In 1961, although an informant warned the Bureau three weeks in advance that Ku Klux Klansmen intended to attack Freedom Riders at a Birmingham bus station, the FBI permitted the attack to take place. FBI Hearings, supra note 39, at 116–17 (testimony of Gary Thomas Rowe).Google Scholar
64 Elliff, supra note 61, at 110.Google Scholar
65 See Symposium: Chartering the FBI, 229 Nation 294, 295–96 (1979).Google Scholar
66 Elliff, supra note 61, at 109.Google Scholar
67 This is what the guidelines issued by Attorney General Smith purport to do. See Elliff, supra note 53, at 196.Google Scholar
68 Former agent William Turner has suggested this. Turner, supra note 16, at 35. Note that Canada has been considering since 1968 creating an intelligence service separate from the Royal Canadian Mounted Police.Google Scholar
69 The best study of MI'S domestic intelligence activities is Christopher H. Pyle, Military Surveillance of Civilian Politics, 1967–1970 (Ph.D. diss., Columbia University, 1974). However, the above paragraph is based on knowledge I acquired while serving with the 116th MI Group in Washington, D.C., Feb. 1967-Aug. 1969.Google Scholar
70 Elliff, supra note 61, at 125–27; Symposium, supra note 65, at 294–95Google Scholar
71 Elliff, supra note 61, at 119.Google Scholar
72 Garrow, supra note 9, at 227.Google Scholar
73 Marro. in Theoharis at 94–96.Google Scholar