Spies, Lies, and the Underground

A new book shines some light on the violent radicals of the 1970s but misses their biggest impact on American politics.

Days of Rage: America's Radical Underground, the FBI, and the Forgotten Age of Revolutionary Violence, by Bryan Burrough, Penguin Press, 608 pages, $29.95

Beginning in 1969, a small but noisy segment of the radical left turned to bombings, bank robberies, kidnappings, jailbreaks, targeted assassinations of police officers, and other acts of violence. At the outset of Days of Rage, Bryan Burrough claims that the "most startling thing about the 1970s-era underground is how thoroughly it has been forgotten." His reconstruction of that period's activities profits from the journalist's extensive and revealing interviews with activists, their attorneys, and former FBI agents. The result is a comprehensive account of the lifestyles, motivations, and actions of the militants who went underground during the 1970s and '80s: the Weather Underground, the Black Liberation Army, the Symbionese Liberation Army, the Fuerzas Armadas de Liberacion Nacional, the United Freedom Front, the Mutulu Shakur Group.

Burrough characterizes these groups' headline-making behavior as "revolutionary violence," but they bore more real-world resemblance to crude terrorists and petty criminals. Their operations were uncoordinated, they lacked (and did not seek) broad support even within the radical political community, and, accordingly, they failed to seriously challenge established political and economic institutions. Yet despite their illegal actions, these activists for the most part escaped apprehension, whether by local police or the FBI. This is a striking failure, given the costs of their misdeeds: 23 people killed, 169 people wounded, more than a million dollars in property damage, more than a million dollars stolen.

Burrough's book is a riveting read, recapturing the senseless violence and perversity of the era. But it is of limited value to an understanding of the politics of the 1970s. Days of Rage has plenty of details about the activists' drug use, their sexual promiscuity, their extensive use of bombings (1,900 in 1972 alone), and their indifference to the consequences of violence for the broader radical movement. But the author is not well-informed on FBI operations, and his account says nothing about the paradoxical impact these radical activists had on the nation's political institutions.

So let's put this story in a broader context. In the 1940s, '50s, and '60s, the Cold War produced a militantly anti-Communist politics that equated dissent with disloyalty. That in turn led to an expansion of presidential power and the FBI's surveillance authority. By contrast, the terrorism of the '70s did not give rise to a more repressive politics, to the expansion of the FBI's surveillance powers, or to an increase in presidential power, despite the bureau's failure to apprehend the people responsible for the violence. To the contrary, the 1970s witnessed an unprecedented reassessment of the role and authority of both the presidency and the FBI. One catalyst to these developments was the Nixon administration's reaction to the radicals' activities.

Days of Rage

A review of FBI wiretapping authority highlights this reassessment. When Congress enacted legislation in 1934 regulating the communications industry, it adopted a section banning wiretapping. In rulings released in 1937 and 1939, the Supreme Court held first that this ban applied to federal agents and then that any indictment based on information derived from wiretaps would have to be dismissed.

Despite that ban and those rulings, President Franklin Roosevelt in 1940 secretly authorized FBI wiretaps during "national defense" investigations. (This was ostensibly intended to enable the FBI to anticipate and thus avert planned espionage or sabotage operations, but not to assist in the prosecution of spies and saboteurs.) Influenced by the security concerns of the Cold War era, Congress rescinded its ban in 1968. The new law required any proposed wiretap to be approved by a court in advance, but it also undercut the court's oversight role by stipulating that the warrant requirement shall not "limit the constitutional powers of the President to take such measures as he deems necessary to protect the Nation against actual or potential attacks or other violent acts of a foreign power, to obtain foreign intelligence deemed essential to the security of the United States, or to protect the United States against the overthrow of the Government by force or other unlawful measures, or against any other clear and present danger to the structure or existence of the Government."

When Richard Nixon became president in 1969, he interpreted that broad language as affirming his absolute power to authorize FBI wiretapping during an investigation of radical activists. The Supreme Court would reject this claim in 1972, at least as far as "domestic security" investigations were concerned. And in 1978, Congress would pass a law requiring officials to file affidavits with a special court affirming that a proposed surveillance subject was either in contact with a "foreign power," an "agent of a foreign power," or "an entity directed and controlled by a foreign government." But for now all that lay in the future.

Nixon's willingness to employ illegal investigative techniques was not confined to wiretapping. In 1970, frustrated by the FBI's inability to apprehend the underground activists and to document their suspected links with foreign Communist officials, the president appointed a special task force composed of the heads of four U.S. intelligence agencies—the FBI, the CIA, the National Security Agency, and the Defense Intelligence Agency. This group in turn recommended that the president authorize a series of techniques it acknowledged were illegal: break-ins, mail openings, interception of international communications, and the expanded use of wiretaps and bugs.

Recognizing the legal problems with the proposals and interested in ensuring deniability, Nixon rejected the task force's recommendation that he issue an executive order explicitly authorizing such uses. Instead, an authorization memorandum was issued under the name of Tom Charles Huston, the aide who had served as the White House's liaison to the task force. The memo thus became known as the Huston Plan.

A principal purpose underpinning the task force's recommendations had been to rescind orders that FBI Director J. Edgar Hoover had imposed in the mid-1960s. Hoover's orders banned practices that the FBI had employed since the 1940s (break-ins, mail opening) and limited the use of wiretaps and bugs. Hoover believed such techniques were now too risky politically, given the possibility of exposure and the more skeptical political climate of the 1960s. The director had pointedly objected to the task force's recommendations prior to their formal submission for Nixon's consideration.

For Hoover, Huston's signature constituted insufficient authority; if the FBI's employment of any of these techniques were discovered, he worried it could have adverse consequences for the bureau's reputation and his continued tenure as director. Accordingly, he advised Attorney General John Mitchell that he would submit a written memorandum whenever the FBI employed any of the recommended techniques, stipulating that this had been done pursuant to the president's plan. Mitchell immediately briefed Nixon of Hoover's intention, and the Huston Plan was hastily recalled.

The Huston Plan's highly secret records were soon publicly compromised. First, in 1973, White House aide John Dean turned a copy of the plan over to the Senate Watergate Committee. Then, in 1975, a committee headed by Sen. Frank Church that was investigating abuses in the intelligence community held public hearings on the program. Finally, in 1976, the Church Committee published the plan's text and the record of the task force's deliberations.

And that leads us back to the radical underground of the '70s. Although the Huston Plan was dead, the White House continued to pressure the FBI to use "all means necessary" to apprehend radical activists. In response, senior FBI officials authorized the New York field office to employ break-ins during an investigation of individuals suspected of association with the Weather Underground, an investigation that began in 1970 and continued through 1973. On its face, the order seemingly violated Hoover's ban on break-ins.

During the course of its investigations, the Church Committee obtained two secret memoranda of 1966 and 1967 that recorded Hoover's order banning future break-ins—in the FBI's parlance, "black bag jobs." The July 1966 memo described in detail the special records procedure, Do Not File, that Hoover had instituted in 1942 to preclude discovery of this bureau practice. Moreover, it conceded that because break-ins were "clearly illegal," FBI officials could not solicit the approval of the attorney general. To ensure that his unilateral approval could not be discovered (whether in response to a congressional subpoena or a court-ordered discovery motion), the director required that all requests from the heads of the 56 FBI field offices seeking his authorization of this practice and of the records of such operations were to be regularly destroyed.

The Church Committee's staff, after reviewing that memorandum, asked FBI officials to identify the "specific targets" of black-bag jobs and the number of "domestic security" break-ins conducted by the bureau from 1942 to 1966. FBI officials responded that due to the Do Not File procedure, "there is no central index, file, or document…no [extant] precise record of [such] entries." Instead, basing their response on a general review of FBI files and the recollections of agents at FBI headquarters, they estimated that during the 1942–1966 period the FBI had conducted "at least 239" break-ins "against at least fifteen domestic security targets." The FBI's proffered estimates suggested that break-ins had been employed sparingly and that only figures seen as legitimate security threats (i.e., American Communist Party officials and suspected Soviet agents) had been targeted.

This response was contradicted with the discovery in March 1976 that the head of the New York field office, John Malone, had maintained in his office safe a massive file recording the break-ins conducted by his team from 1954 to 1973. The Malone records, when reviewed, confirmed that the New York office alone (and just since 1954, not 1942) had conducted 433 break-ins targeting 250 to 300 different individuals and organizations. The Malone File (now incorporated in the FBI's central records system as the Surreptitious Entries File) further confirmed that FBI agents continued to conduct break-ins after 1966, using them against such targets as the Student Non-Violent Coordinating Committee, Students for a Democratic Society, Vietnam Veterans Against the War, and the Weather Underground.

The Malone File confirmed that the FBI had conducted break-ins extensively, that it had principally targeted political activists, and that in the process senior FBI officials had created a culture of lawlessness within the ranks of the agency. One memorandum in the Malone File captures the mind-set that governed the bureau's operations. Senior FBI officials, learning that a New York agent attending a training session had remarked that he considered break-ins to be unconstitutional, immediately suspended the New York field office's break-in operations. When advised that no member of the New York office's break-in squad shared this heretical belief, they lifted the suspension.

The Malone File had further rami­fications. Its unexpected discovery precipitated questions about the FBI's relationship with the Justice Department and its compliance with court-ordered discovery motions and congressional record requests. This is illustrated by bureau officials' response to a 1973 suit brought by the Socialist Workers Party and the unique circumstances that led to the indictment of two senior FBI officials in 1978.

The suit had been triggered by the public release that year first of the FBI's COINTELPRO files, which documented that the party had been one of that abusive program's targets, and then of the Huston Plan's proposed authorization of wiretaps and break-ins. Accordingly, the Socialist Workers Party's attorneys, during the trial's discovery phase, demanded all records of FBI wiretapping and break-ins involving their client. Based on FBI assurances, Justice Department attorneys conceded that the FBI had wiretapped the party but denied that there were any records of FBI break-ins.

With the discovery of the Malone File, U.S. attorneys moved quickly to advise the court that in fact the FBI had broken into the party's offices 94 times from 1960 to 1966. (The total turned out to be still higher. A further review of extant FBI records confirmed that agents had broken into Socialist Workers Party offices or party members' residences 208 times.) This admission proved to be an important factor in helping the socialists achieve a settlement award of $264,000 for the government's violation of their privacy rights.

By confirming that the FBI had continued to conduct break-ins targeting members of the Weather Underground after 1972, the Malone File meant that those involved could be prosecuted, their actions having fallen within the five-year statute of limitations. Justice Department attorneys, relying on the relevant extant records, thereupon launched an investigation that led to the indictment and conviction of senior FBI officials W. Mark Felt and Edward Miller for authorizing these break-ins.

Thus, the Nixon administration's pressure on the FBI led not to the apprehension and conviction of radical activists but to the unprecedented conviction of senior FBI officials for a practice their predecessors had safely conducted for three decades. (When Ronald Reagan became president in 1981, he promptly pardoned both agents.)

Burrough's book barely touches on these surveillance operations, and at times it distorts their political and policy impact—misrepresenting, for example, the Supreme Court's 1972 wiretapping decision, the political impact of the Huston Plan, and the factors leading to the indictment and conviction of Felt and Miller. His account may be engaging to read, but it leaves the reader uninformed about the shifts in both the public's and Congress' ideas about executive secrecy and presidential claims to expansive "national security" powers.