CHAPTER 3 CONTINUED
[deleted at the author's request]
Be it enacted, That section three of the Act...approved June 15, 1917, be...amended so as to read as follows:
"Section 3. Whoever, when the United States is at war, shall willfully make or convey false reports or false state-ments with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, or shall willfully make or convey false reports or false state-ments, or say or do anything except by way of bona fide and not disloyal advice to an investor...with intent to obstruct the sale by the United States of bonds...or the making of loans by or to the United States, or whoever, when the United States is at war, shall willfully cause...or incite... insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct... the recruiting or enlistment service of the United States, and whoever, when the United States is at war, shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag...or the uniform of the Army or Navy of the United States, or any language intended to bring the form of government...or the Constitution...or the military or naval forces... or the flag...of the United States into contempt, scorn, contumely, or disrepute...or shall willfully display the flag of any foreign enemy, or shall willfully...urge, incite, or advocate any curtailment of production in this country of any thing or things... necessary or essential to the prosecution of the war...and whoever shall willfully advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both....
Paris Nov 12, 1918
Number 99. Secret for the President. Referring further to our number 61, I beg to suggest the following:
The whole problem of securing political intelligence, establishing an adequate counter espionage organization and providing protection for you and for the personnel, papers, and property of the American representatives at the Peace Conference should be dealt with, I believe, along the following lines:
The end of the war in 1918 did not bring about the termination of counterintelligence operations. 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 one explosion on the doorstep of Attorney General A. Mitchell Palmer's residence. Congress responded with calls for action, although the applicable provisions of the Espionage Act had expired at the end of the war and no new federal 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 counterintelligence 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 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 agitation advocating change in 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 existing state or federal laws or under legislation of that nature which may hereinafter be enacted." The instructions discussed the provisions of the recent amendments to the Immigration Act, which expanded the grounds for deportation to include membership in revolutionary organizations as well as individual advocacy of violent overthrow of the government.156 Director Flynn concluded by urging Bureau agents to "constantly keep in mind the necessity of preserving the cover of our confidential informants."157
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.158
Historians have documented fully the tremendous pressures placed on Attorney General Palmer, not just by his subordinates, 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 declared 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 proceedings against those who preached anarchy and sedition. According to his biographer, after passage of the Senate resolution, Palmer decided that the "very liberal" provisions of the Bill of Rights were expendable and that in a time of emergency there were "no limits" on the power of the government "other than the extent of the emergency."159
The principal result of the Justice Department's counterintelligence activities, in coordination with Immigration Bureau investigations, was the infamous "Palmer raids" on the night of January 2, 1920. Bureau of 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, intimidating preliminary interrogations of aliens held incommunicado, highhanded levying of excessive bail, and denial of counsel."160 Apart from the unavoidable administrative confusion in such a large-scale operation, these abuses have been attributed to several crucial decisions by federal officials.
The first was Director Flynn's instructions 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."161 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 admission 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 the arrested persons to participate in the conduct of hearings from their very commencement."162 The head of the Justice Department's General Intelligence Division, J. Edgar Hoover, reiterated this request for a modification of immigration procedures.163 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."164 Hoover later told immigration officials that since the purpose of the raids was to suppress agitation, he could not see the sense of letting radicals spread their propaganda while out on bail.165 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."166 However, despite the Justice Department's pleas, the Secretary of Labor ordered a return to previous policies after the raids, once again allowing detained aliens access to legal counsel and admission to bail if hearings were delayed.167
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.168 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 who 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 counsel or 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.169
During the months following the "Palmer raids," a group of distinguish 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, Ernest Freund of the University of Chicago Law School, and other eminent lawyers and legal scholars. The committee found federal agents guilty of using thrid-degree tortures, making illegal searches and arrests, using agent provocateurs, and forcing aliens to incriminate themselves. Its report described federal counterintelligence operations in the following terms:
We do not question the right of the Department of Justice to use its agents in the Bureau of Investigation to ascertain 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.170
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.171
The work of the General Intelligence Division was summarized by J. Edgar Hoover in a report prepared later in 1920. Even though federal criminal statutes were "inadequate 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 United States, but also American citizens who are engaged in unlawful agitations." Therefore, in addition to providing intelligence for use in the deportation of aliens, the General Intelligence Division (GID) supplied information to state authorities for the prosecution of American citizens under the broad 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 investigation 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 results 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, thus 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 the 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 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 parties 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 intelligent and broader viewpoint."172
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.173
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 Director of the Bureau. Although the deportation program was strictly limited by Labor Department policies, the Bureau still supplied results of its surveillance operations to state authorities for the prosecution of Communists.174 Hoover also 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.175 During this period, the Bureau spelled out its domestic intelligence activities in annual reports to Congress, including summaries of investigation findings on the role of Communists in education, athletic clubs, publications, labor unions, women's groups, and Negro groups. Radical propaganda was "being spread in the churches, schools, and colleges throughout the country." The Bureau also told the Congress that it was furnishing information for prosecutions under state laws punishing "criminal syndicalism and anarchy."176