Abuse of Power

In both the Cold War and aftermath of 9/11, civil liberties took a hit. Scott McLemee reviews a historian's assessment.

June 15, 2011

Very rarely do I wish that a professor would write his or her memoirs. Even saying “very rarely” may overstates the frequency of the wish. But if ever there were an exception to be made, it would be for Athan G. Theoharis – the dean of Freedom of Information Act scholarship.

Just to clarify, he is not actually a dean. According to the back cover of his new book, Abuse of Power: How Cold War Surveillance and Secrecy Policy Shaped the Response to 9/11 (Temple University Press), he is now professor emeritus of history at Marquette University. In the 1970s, on behalf of the Senate body best known as the Church Committee, Theoharis dug around in presidential libraries to find Federal Bureau of Investigation records, and he’s spent decades filing FOIA requests. At Marquette, he has “supervised a stable of masters and doctoral students who wrote about the civil liberties record of the FBI,” as one chronicle of the bureau puts it.

At very least, someone needs to sit down with Theoharis for a series of in-depth interviews on how he conducted his research, and trained others to continue the work. From passing references in Abuse of Power, it’s clear that the job requires extraordinary patience and tenacity -- but also a systematic understanding of the bureaucratic mind at its sneakiest. What’s that like? Does the frustration ever get to you? J. Edgar Hoover is named in the titles of three books by Theoharis, and central to several others. How do you learn to think like him without going quite paranoid? These questions blur the line between historiography and autobiography, though in a good way.

Abuse of Power, the author’s 20th book, is nowhere near so personal or ruminative as the one we might, with luck, get out of him one day. Subtitle notwithstanding, it has fairly little to do with 9/11, as such. Nor, for that matter, does Theoharis really make an argument about how Cold War policy “shaped the response” to that day’s attacks. He suggests that the Bush administration’s approach to domestic surveillance was an especially gung-ho version on Hoover’s attitude. But precedent is not cause.

There are a couple of ways to understand what Theoharis is actually doing in this book. One is to treat it as a challenge to American citizens of the present day. The other is to consider it a warning to future generations of historians.

Its contemporary challenge seems aimed at the liberal wing of public opinion in particular; for Theoharis makes the rather provocative case that George W. Bush was (at least in one respect) the fulfiller of FDR’s legacy, rather than its dim negation.

In the mid-1930s, faced with the aggressive pursuit of influence by Germany and the Soviet Union, Roosevelt made “a fundamental shift in the role of the Federal Bureau of Investigation … from [being] a law enforcement agency that sought to develop evidence to prosecute violators of federal laws to an intelligence agency that would seek to acquire advance information about the plans and capabilities of suspected spies and saboteurs.”

Rather than propose legislation to that effect, the president “instead opted for secret executive directives, a method that had as its central purpose the foreclosure of a potentially divisive and contentious debate.” And the director of the FBI was hardly going to object if things were done in secret, at least if he were the one doing them. Like the New Deal, “this profound shift was effected not through a well-defined blueprint but through a series of ad hoc responses” -- creating their own complex dynamics.

Just before the U.S. entered World War II, for example, FBI agents had interviewed almost 33,000 members of the American Legion, looking for people willing to infiltrate targeted organizations or monitor “persons of German, Italian, and Communist sympathies.” The program continued and grew throughout the war. Recruitment efforts intensified during the early 1950s despite grumbling by FBI field agents that maintaining contact with the Legionnaires took up a lot of time without producing much of value. But by then, the whole thing counted as a public relations effort for the FBI.

Meanwhile, more serious intelligence-gathering operations developed with scarcely any oversight. They included wiretaps and break-ins, campaigns to infiltrate and disrupt various organizations, and investigations into the private lives of public figures. Much of this is now common knowledge, of course, though only through the work of Theoharis and other researchers. Less widely known (and even more Ashcroft-y) is the program called Custodial Detention that Hoover launched in September 1939.

Renamed the Security Index in 1943, this created a list of candidates for “preventative detention” in case of emergency. There was also “a plan for the suspension of the Writ of Habeas Corpus,” in the words of FBI assistant director D. Milton Ladd. In 1950, conservative members of Congress were able to override president Truman’s veto to pass an internal security act that included its own provisions for rounding up potential subversives. But it defined the pool of detainees more narrowly than the FBI had, and mandated that they receive a hearing within 48 hours of being taken into custody. The bureau ignored the legislation, and by the 1960s was adding civil-rights and antiwar activists to the list. The program was phased out following Hoover’s death in 1972. By then it was called the Administrative Index: a case of blandness as disguise.

In his final chapter, Theoharis quickly reviews the domestic-surveillance operations that emerged in the wake of the 9/11 attacks, or at least the ones now part of the public record. Their resemblance to Cold War-era programs is not a matter of Hoover’s influence. The NSA has resources that old-school gumshoes could never imagine. According to Theoharis, the FBI had about 200 wiretaps going at any one time throughout the entire country, while intercepting (that is to say, opening) thousands of pieces of correspondence. Under the USA PATRIOT Act, that would count as a slow morning.

The point of Abuse of Power is that “a broad consensus that Congress should enact legislative charters for the intelligence agencies rather than defer to the executive branch” existed for only a brief period, roughly the 1970s. Even then, the “consensus” Theoharis invokes was hardly robust. Following 9/11, the old habits kicked in again -- technologically fortified, with all the ingenuity that highly skilled lawyers can bring to rationalizing decisions that have already been made.

As noted, the book also serves as a warning to those who, down the line, try to research this past decade.

Theoharis describes Hoover's techniques for routing and storing information. Agents would not submit material gathered from break-ins, wiretaps, or highly confidential sources in their official reports, but via letters forwarded to him directly with a code on the envelope. Besides the FBI files, he kept auxiliary archives full of especially sensitive documents. That way, if forced to turn over the bureau’s files on a given topic, he could limit the exposure of what intelligence he had gathered -- and, just as importantly, how he gathered it.

Assembling information was not enough; he had to dissemble it as well. The power to do either has grown exponentially in the meantime. Hoover's material was recorded on paper and audiotape. Just learning to find his way into the maze of Hoover’s evasions cost Theoharis much time and effort. The comparable documents covering the past few years will be far less tangible, more heavily encrypted -- stored in sticks, chips, or clouds. And the people creating (and hiding) information have the warning of Hoover's example. Within a few years of his death, the architecture of secrecy began to crumble. Things will be better hidden, and learning to track them down will be harder.

Abuse of power usually implies confidence that the abuser will escape any consequences. In that case, the historian is able to enforce some kind of accountability, however minimal and belated. Will it still be possible to do that in the future? Theoharis doesn’t seem to be prone to speculation; the occasional references to his own career are rather perfunctory, even self-effacing. But I hope he overcomes his reticence and explains how he found his way through the old labyrinth -- and how he sizes up the one on the horizon.

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