Law, Order, and Politics:

The Working of the United States

Justice Department

            When the Federal Bureau of Investigation (FBI) arrested four Arab immigrants for bombing New York’s World Trade Center, the FBI agents acted in the name of their parent organization, the United States Justice Department.

            When government antitrust lawyers filed suit against AT&T charging that America’s most powerful monopoly was illegally retarding the development of a revolutionary new age in communications, they did so in the name of the United States Justice Department.

            When the Drug Enforcement Administration (DEA) forcibly abducted deposed dictator Manuel Noriega from Panama to face federal drug trafficking charges in Florida after his capture by U.S. military units, the DEA agents acted under the name of their parent organization, the United States Justice Department.

            When four hundred deputy U.S. marshals confronted a violent mob of Mississippians in an ultimately successful effort to carry out the court-ordered admission of James Meredith to the University of Mississippi, they did so as an arm of the United States Justice Department.

            When the Immigration and Naturalization Service (INS) rounded up scores of illegal Chinese aliens after their freighter went aground on a beach near New York City, the INS agents acted in the name of their parent organization, the United States Justice Department.

            When the solicitor general of the United States, in an appearance before the United States Supreme Court, argued that the nation’s Constitution required congressional districts of substantially equal population, he did so as a senior official in the United States Justice Department.

            When Al Capone was incarcerated in Alcatraz Prison, America’s most notorious gangster experienced life in one of the toughest environments in the United States. The escape-proof prison, located on an island in San Francisco Bay, was operated by the Bureau of Prisons, an arm of the United States Justice Department.

            When the nation became obsessed with communism immediately after World War II, the principal operator of the government’s massive and freewheeling effort to discharge allegedly disloyal federal employees was the Untied States Justice Department.

            When evidence emerged suggesting that the Defense Department’s nuclear weapons facility near Denver was violating the nation’s environmental laws, the U.S. attorney for Colorado became the lead player in directing the federal investigation of the corporation that managed the facility.

            Thus, in an amazingly helter-skelter way, the Justice Department and its component parts—the solicitor general, the ninety-three U.S. attorneys, the FBI, the antitrust division, the DEA, the INS, the U.S. Marshals and the Bureau of Prisons—have become a significant force in almost every aspect of American life, directly and indirectly influencing the way we work, the way we communicate, the way we learn, the way we govern ourselves and even the way we play.

            The broad impact of the Justice Department is not perceived or understood for several reasons. A powerful contrary notion—the idea that the department is just a small bunch of good guy cops going after a lot of bad guy criminals—has been fostered by a compliant media which for many years has lived off staged events, official press releases and the not-for-attribution whispers of ambitious prosecutors. A videotape sequence of agents smashing down the front door of a major cocaine dealer is the lifeblood of television, almost as addictive as the drug itself. A carefully leaked story that the FBI is investigating eight members of Congress for corruption makes the front pages of three major New York and Philadelphia newspapers on the very same day.

            The unquenchable thirst for good visuals, hot scoops and a simple story line means the media frequently miss or ignore the quiet but momentous events that often occupy the Justice Department. Of course the reporters and television cameras were present in Little Rock, Arkansas, when the 101st Airborne Division arrived to enforce the federal court order integrating the schools. But the long series of intense White House meetings between Attorney General Herbert Brownell, Jr., and President Dwight D. Eisenhower that led up to Ike’s historic decision were largely ignored. Nor did reporters pay a great deal of attention when Stuart M. Gerson, an assistant attorney general in the Bush administration, filed a forty-seven-page memorandum opposing the request that the federal court require the president to obtain a declaration of war from Congress before he ordered American troops to attack Iraqi forces in Kuwait.

            The pervasive ignorance about the Justice Department’s underlying powers and day-to-day operations, however, cannot be blamed only on the media. Frequently, information about momentous actions and decisions of the Justice Department never sees the light of day because of the agency’s strenuous and effective efforts to keep secret the darker aspects of its business.

            On August 3, 1948, for example, apparently without informing anyone outside of the Justice Department and only a very few within, Attorney General J. Howard McGrath and FBI Director J. Edgar Hoover agreed upon a plan by which President Harry Truman could suspend many of the key safeguards of the Constitution. Under the top-secret agreement, code-named “Security Portfolio,” the bureau was authorized, in the event of an ill-defined emergency, to summarily arrest up to 20,000 persons and place them in national security detention camps. A watch list of those who would be detained—along with detailed information about what they looked like, where they lived and their place of employment—was developed by the FBI. The decision as to who was place don the watch list was left to the FBI and included many whose only crime was to openly criticize some aspect of American life. The McGrath-Hoover detention plan did not require the FBI to obtain individual arrest warrants and it would have denied detainees the right to appeal their arrest in federal court.

            Two years later, Congress approved the Internal Security Act of 1950, one section of which officially authorized an emergency detention program. The new legislation, however, presented the attorney general and FBI director with a problem. Because the program authorized by Congress did not suspend the Constitution—detainees, for example, could appeal their incarceration in federal court—it placed the department’s secret detention program, which offered no such right, in violation of the law.

            This incongruity worried Hoover, a canny bureaucrat who almost always sought and obtained higher approval for his questionable activities. For two years, while the FBI continued to secretly establish the detention camps and work out detailed seizure plans for thousands of individuals, Hoover kept badgering President Truman’s attorney general for private relief. His request: McGrath’s official permission for the FBI to ignore the 1950 law and carry on with the more ferocious 1948 program.

            On November 25, 1952, the attorney general, a heavy-drinking former chairman of the Democratic National Committee, caved in to Hoover. “Pursuant to the questions which you have raised in the latter memorandum, I wish to assure you that it is the Department’s intention in the event of an emergency to proceed under the program as outlined in the Department’s Portfolio invoking the standards now used,” McGrath wrote in a brief note.

            This remarkable letter, in which the nation’s senior law enforcement official formally advised the nation’s top cop to go on breaking the law, remained secret for more than twenty years.

            A second example of the Justice Department’s considerable skill at hiding some of its important business from the public occurred about ten years later. At some point in the second half of 1961, Attorney General Robert E. Kennedy was told that, in the last years of the Eisenhower administration, the CIA had hired Sam Giancana, a senior member of the Mafia, to engage in certain “clandestine efforts,” sometimes referred to as “dirty business,” against Fidel Castro.

            The subsequent Senate investigation into the Giancana affair, and several other American attempts to assassinate world leaders, found evidence that Kennedy, after being informed that the CIA had hired an organized crime boss to assassinate Castro, had complained about the agency’s failure to consult him about the arrangement but did not seem to question its basic propriety. In addition, the committee was unable to find evidence that either Kennedy or Hoover, after learning about the plot, “ever inquired into the nature of the CIA operation” with Giancana, or that the attorney general instructed the CIA not to engage in assassination plots in the future. Considering Kennedy’s intense public commitment to the federal government’s all-out attack on organized crime, the attorney general’s apparent lack of curiosity about the CIA-Giancana connection was surprising, perhaps even suggestive. The 1974 Senate investigation, however, further discovered that, between May 1961 and May 1962, Robert Kennedy attended a series of White House meetings that did in fact lead to the development of another “contingency plan in connection with the possible removal of Castro from the Cuban scene.”

            After an extensive investigation of the meetings, the Senate committee said the records it had obtained did not make clear precisely how the officials who took part in these secret sessions were using the word “removal.” From the context, however, the committee decided that the assassination of the Cuban leader may well have been the objective.

            This conclusion is consistent with the committee’s finding that several more efforts to assassinate Castro did in fact go forward during the Kennedy years. By a bizarre coincidence, for example, one of the last U.S. attempts to assassinate the Cuban leader occurred at about midday on November 22, 1963—the same hour and day that John F. Kennedy was gunned down in Dallas. During this particular effort against Castro, which was never consummated, a CIA officer gave a Cuban agent a CIA-designed poison-pen device that was to be used to murder the Cuban leader. Attorney General Kennedy’s extensive, but finally murky, involvement in clandestine efforts to get rid of Castro remained secret for more than a decade.

            On November 21, 1986, Attorney General Edwin Meese ordered a secret “inquiry” into the Reagan administration’s sale of arms to Iran, which had just been revealed by a Lebanese newspaper. Three years later, during a related criminal trial, Meese acknowledged that, as a personal friend and political adviser to the president, the initial purpose of his 1986 probe was to head off a political firestorm that “could very well cause the possible toppling of the President himself.”

            “And your focus was really not the focus of an attorney general wearing the attorney general’s hat but it was basically to try to gather information to protect the President as best you could and deal with this enormous political problem brewing in Congress, correct?” Meese was asked.

            “Yes,” he replied.

            To achieve the narrow goal of protecting his boss from an impeachment investigation by the House of Representatives, the chief law enforcement officer of the United States acted in a most unprofessional way. Instead of selecting seasoned criminal investigators or experts in the legal aspects of covert operations to make his emergency inquiry of the arms sales, Meese chose a small number of personal staff members and political appointees. In picking the members of this team, Meese rejected the formal request of the assistant attorney general in charge of the department’s Criminal Division that the FBI be brought into the investigation.

            Meese also failed to immediately seal important files of the National Security Council (NSC) when his special team arrived at the White House. According to one critical analysis, this failure meant that many of the central documents in the case were altered or destroyed, “almost guaranteeing that we will never know the complete truth about what transpired.” Further undermining the credibility of the investigation, the critics said, was the fact that Meese’s team disregarded “standard investigative procedures such as taking notes in key interviews.”

            By the time the disturbing defects of Meese’s secret little “inquiry” became know, important parts of the record had disappeared and the Reagan administration, close to the end of its second term, was no longer in danger of disintegrating.

            The power of the attorney general and the United States Justice Department to influence the lives of individual Americans and the course of American history in both open and secret ways is clear. This book is the story of the misuse of that power. It describes situations when—through political calculation, malice, incompetence or neglect—the official agents of this increasingly powerful institution have done harm.

            One of the mysteries of modern life is why—while the people working within large organizations often try to do good—the systems they serve often do not. The answer to this apparent conundrum may be more obvious than it seems. Most individuals have an internal moral compass, an ethical guidance system that imposes on them responsibilities and obligations to family, friends and neighbors. By definition, however, large organizations do not have such a compass and seem to demand a blind loyalty that frequently works to subvert the idealism of their employees. As the world continues to create larger, more powerful and less accountable organizations, the task of nurturing the humanity of those who work for dominant organizations like the Justice Department may be one of the most difficult challenges of our age.

            However, it is equally obvious that over the years, thousands of principled men and women have sought to exercise the powers of the Justice Department in idealistic and constructive ways to deter or incapacitate society’s outlaws. Ruthless criminals have been sent to prison. Dangerous spies have been uncovered. Exploitative corporations have been forced to live by society’s laws and regulations. Organized efforts designed to deny black Americans their right to vote have been dismantled. It is thus easy to identify countless individual examples in which the Justice Department has met, and even exceeded, the expectations of the American people. That story is an important one that any objective critic must affirm. This book examines the darker side. 

© David Burnham