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The perils of unchecked power

NICHOLAS DEB. KATZENBACH served in senior Justice Department positions between 1961 and 1965. He was appointed attorney general by President Johnson in February 1965 and served until October 1966.

THE RECENT controversy over warrantless national security telephone taps, coupled with Martin Luther King’s birthday, remind me of my time in the Department of Justice in the 1960s. It was a period of turbulent demonstrations, marches and sit-ins, many of them led by King in support of the constitutional rights denied by Southern law enforcement to black citizens. And it was a time of growing animosity between King and J. Edgar Hoover, who had created the Federal Bureau of Investigation and led it since 1924. That animosity created a growing problem for Atty. Gen. Robert Kennedy and those of us on his staff.

Hoover had built a great institution in the FBI, essentially from nothing. In the public eye it stood for fair and decent law enforcement -- the rule of law -- and was a model of integrity and efficiency. Hoover was a national hero, responsible for putting killers like John Dillinger behind bars. Kids wore Junior G-Man badges. During World War II, he fought Nazi spies, and during the Cold War he went after members of the communist conspiracy.

But Hoover was getting old. He believed the world was questioning and rejecting the values he held out as fundamental -- patriotism, respect for law and order, sexual mores grounded in marriage and family, the work ethic. He detested what he saw as a growing culture of permissiveness, and, as a conservative Southerner, he seriously questioned the idea of racial equality.

Hoover was troubled by the activities of King. He did not approve of the constant sit-ins and demonstrations that he saw more as breaking laws than as a protest against their unfairness. The FBI worked regularly with local law enforcement, and he wished to preserve that relationship.

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What bothered him even more, however, was the frequent public criticism by King and his followers of the FBI for not protecting demonstrators from local sheriff’s deputies. One did not have to be long in the Justice Department to learn that to criticize the FBI was an inexcusable sin in Hoover’s eyes.

In October 1963, Hoover requested Atty. Gen. Kennedy to approve a wiretap on King’s telephone. At that time, taps had to be approved by the attorney general and did not require court approval in the form of a warrant. The basis for the tap was King’s close association with Stanley Levison, who Hoover said was a prominent member of the Communist Party with great influence over King in civil rights matters.

Bobby was furious. Hoover’s charge that King was a pawn of the communists could potentially taint the whole movement and bring into question everything we were doing to vindicate the constitutional rights of black citizens. It was hard to think of an issue more explosive.

To understand just how explosive, one has to remember that Hoover was both popular and enormously powerful, with great support in Congress. Some of that support was based on admiration, some on fear that he had damaging personal information in his files. Much support came from conservative Southern Democrats, opposed to King, who chaired virtually every important congressional committee. Hoover was formally a subordinate of the attorney general who could, technically, fire and replace him. That’s a big “technically.” No attorney general, including RFK and myself when I succeeded him, could fully exercise control over him. And none did.

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When Hoover asked for the wiretaps, Bobby consulted me (I was then his deputy) and Burke Marshall, head of the Civil Rights Division. Both of us agreed to the tap because we believed a refusal would lend credence to the allegation of communist influence, while permitting the tap, we hoped, would demonstrate the contrary. I think the decision was the right one, under the circumstances. But that doesn’t mean that the tap was right. King was suspected of no crime, but the government invaded his privacy until I removed the tap two years later when I became attorney general. It also invaded the privacy of every person he talked to on that phone, not just Levinson.

But what we didn’t know during this period was that Hoover was doing a lot more than tapping King’s phones. As King’s criticism of the FBI continued, and as Hoover became more and more convinced there must be communist influence even though no evidence ever materialized, he determined to discredit and destroy King. He went further, putting bugs in King’s hotel bedrooms across the country. (He claimed that Atty. Gen. Herbert Brownell had authorized him to use such listening devices in cases involving “national security” back in the 1950s, and that he did not require further permission from the current attorney general, who in any case had no idea that the FBI was doing it.)

The FBI recorded tapes of King conducting extramarital affairs -- and later had the tapes mailed to King anonymously, in one case actually encouraging him to commit suicide. Tapes were played for journalists, and the FBI sought to discredit King with foreign leaders, religious leaders, White House personnel and members of Congress. The bureau tried to kill a favorable magazine profile and encouraged one university to withhold an honorary degree.

I knew none of this until late 1964, when two prominent journalists told me that a bureau official had approached them and offered to play one of the salacious hotel bedroom recordings. I confronted the official -- one of Hoover’s senior deputies -- who categorically denied the allegation. I flew to President Johnson’s Texas ranch and asked him to help put a stop to it. I think that he did, but such was Hoover’s power I cannot be sure that even the president had the courage to do so.

It was only years later, at the Church Committee hearings held after Hoover’s death, that the full scope of Hoover’s anti-King activities became known. I was -- and am -- appalled. And sad. This man who was a national symbol of law and order ended up grossly violating the nation’s trust and respect in the name, he said, of national security. And the man he attacked so viciously was a great leader who never violated the law and who helped this nation realize rights guaranteed by the very Constitution Hoover was sworn to uphold.

All this is ancient history, but it has relevancy today. There is a growing movement to remove Hoover’s name from the FBI building in Washington, D.C.. I do not think that is the lesson to be learned. Hoover built the FBI and served for almost 50 years as its leader. His positive achievements should endure and be recognized. He served with distinction, but he served too long. Perhaps because of age accompanied by virtually unchecked power, he lost any sense of proportion in law enforcement, using his authority in what he thought was a righteous cause. To my mind, that is the lesson to be learned from Hoover’s vendetta.

Today we are again engaged in a debate over wiretapping for reasons of national security -- the same kind of justification Hoover offered when he wanted to spy on King. The problem, then as now, is not the invasion of privacy, although that can be a difficulty. But it fades in significance to the claim of unfettered authority in the name of “national security.” There may be good and sufficient reasons for invasions of privacy. But those reasons cannot and should not be kept secret by those charged with enforcing the law. No one should have such power, and in our constitutional system of checks and balances, no one legitimately does.

Forcing the executive to explain its reasons for intrusive law enforcement is essential to maintaining not just privacy but freedom itself. A congressional committee must exercise oversight. So too must an independent court because Congress is also subject to possible political pressure.

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Our freedom is too precious, and too much blood has been shed to preserve it, to entrust it to a single person, however sincere and however well intentioned.


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