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Attorney General Francis Biddle abolishes the FBI’s Custodial Detention Program, which is designed to round up suspected dissidents in times of national emergency or war (see November 1940-1943). However, FBI Director J. Edgar Hoover secretly re-establishes the list under a new name: the Security Index (see Early 1943-1971). Biddle clearly informs the FBI: “There is no statutory authorization or other present justification for keeping a ‘custodial detention’ list of citizens.… [I]t is now clear to me that this classification system is inherently unreliable.” The attorney general comments: “The evidence used for the purpose of making the classifications was inadequate; the standards applied to the evidence for the purpose of making the classifications were defective; and finally, the notion that it is possible to make a valid determination as to how dangerous a person is in the abstract and without reference to time, environment, and other relevant circumstances, is impractical, unwise, and dangerous.” But Hoover does not comply with the attorney general’s order. He instead changes the name of the list from the Custodial Detention Program to the Security Index. The Senate Select Committee on Intelligence will later report, “The attorney general and the Justice Department were apparently not informed of the FBI’s decision to continue the program.” FBI headquarters informs its field offices, “The fact that the Security Index and Security Index Cards are prepared and maintained should be considered strictly confidential, and should at no time be mentioned or alluded to in investigative reports, or discussed with agencies or individuals outside the bureau other than duly qualified representatives of the Office of Naval Intelligence and the Military Intelligence Division, and then only on a strictly confidential basis.” (Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities 5/1976, pp. 420-421)
The Air Force refuses to meet the court-imposed deadline to turn over accident reports of a 1948 B-29 crash in Georgia (see October 6, 1948) to the plaintiffs in a lawsuit against the government (see July 26, 1950). Instead, the Justice Department argues before the court that because the accident reports might contain “state secrets” that might imperil “national security” if made available to anyone outside the Air Force, the reports cannot be made available. “[T]he aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force,” the government lawyers argue. “The airplane likewise carried confidential equipment on board and any disclosure of its mission or information concerning its operation or performance would be prejudicial to this department and would not be in the public interest.” Such a claim—that the production of the reports would “seriously hamper national security”—renders the reports “beyond judicial authority,” the Justice Department lawyers claim. (Siegel 2008, pp. 124-126)
Weeks after the Justice Department refused to make accident reports of a 1948 B-29 crash (see October 6, 1948) available to the plaintiffs in an ongoing wrongful death lawsuit against the government (see July 26, 1950) because the reports are so highly classified that their disclosure might “seriously hamper national security” (see July 26, 1950 and August 7-8, 1950), the Air Force, in a routine review, drastically lowers the classification of the accident reports from top-level “Secret” to third-level “Restricted.” Whereas “Secret” documents supposedly contain information that “might endanger national security” if revealed, “Restricted” documents are “for official use only” and should not be disclosed “for reasons of administrative privacy.” The Air Force apparently no longer considers the documents a threat to national security. However, neither the plaintiffs’ lawyers, the judge hearing the lawsuit, or even the Justice Department lawyers are aware of the reports’ reduction in status. They continue to argue the merits of releasing the reports as if they are still highly classified. (Siegel 2008, pp. 133)
Federal judge William H. Kirkpatrick rules that the US government must turn over the disputed, and supposedly highly classified (see September 14, 1950), accident reports from a 1948 B-29 crash (see October 6, 1948)—not to the plaintiffs in the lawsuit over the crash (see July 26, 1950), but to Kirkpatrick himself. He wishes to review the reports to determine if they contain any information that might threaten national security, and, before turning the documents over to the plaintiffs’ lawyers, will personally remove that information. In mid-October, when the government again refuses to turn over the documents, Kirkpatrick will find in favor of the plaintiffs (see October 12, 1950). (Siegel 2008, pp. 133-134)
J. Edgar Hoover, director of the Federal Bureau of Investigation (FBI), tells the House Appropriations Committee that the FBI is prepared to arrest 14,000 purported communists inside the US in the event of war with Russia. James M. McInerney, assistant attorney general, refuses to provide the committee with details regarding those on the list, but says they are “either out-and-out Communists” or are “sympathetic toward the Communist cause.” The officials are apparently referring to the FBI’s Security Index, which was established in 1943 (see 1943 and Early 1943-1971). (New York Times 4/28/1951)
The government, represented by a team of Justice Department lawyers, appeals the recent ruling against it in the ‘Banshee’ B-29 plane crash lawsuit (see June 21, 1949). In the Third US Circuit Appeals Court, the government argues that the lower court had no business demanding that the Air Force turn over classified accident reports about the crash, because the reports may contain information that would potentially compromise national security (see October 12-18, 1948 and September 14, 1950). The government had twice defied court orders to produce the documents, and as a result had lost the lawsuit (see October 12, 1950). The Justice Department’s arguments come down to the assertion that the judiciary has no constitutional right to compel the executive branch to turn over documents it considers privileged. In 2008, author Barry Siegel will write, “For the first time in the B-29 litigation, the government directly argued that the judiciary could not review [the government’s] claim of privilege.” The lawyer for the plaintiffs, Charles Biddle, counters that the executive branch has no such sweeping claim of privilege, and that a judge should be allowed to review documents in dispute to determine both their bearing on a case and the possibility that releasing those documents could jeopardize national security (see September 21, 1950). Three weeks later, the appeals court will rule unanimously against the government (see December 11, 1951). (Siegel 2008, pp. 149-153)
A three-judge federal appeals court unanimously rejects the government’s claim of unfettered executive privilege and secrecy in regards to classified documents (see October 19, 1951). In an opinion written by Judge Albert Maris, the court finds that the government’s claim that the judiciary can never compel the executive branch to turn over classified documents to be without legal merit. The plaintiffs in the case, three widows who lost their husbands in the crash of a B-29 bomber carrying classified materials (see June 21, 1949), had a compelling need for the documents in question, the downed B-29 accident reports, to further their case, Maris writes (see October 12, 1950).
No Legal Basis for Claim of Privilege - Maris goes further than the parameters of the single lawsuit, writing: “[W]e regard the recognition of such a sweeping privilege… as contrary to a sound public policy. The present cases themselves indicate the breadth of the claim of immunity from disclosure which one government department head has already made. It is but a small step to assert a privilege against any disclosure of records merely because they might prove embarrassing to government officials. Indeed, it requires no great flight of imagination to realize that if the government’s contentions in these cases were affirmed, the privilege against disclosure might gradually be enlarged… until as is the case in some nations today, it embraced the whole range of government activities.… We need to recall in this connection the words of [Revolution-era jurist] Edward Livingston: ‘No nation ever yet found any inconvenience from too close an inspection into the conduct of its officers, but many have been brought to ruin, and reduced to slavery, by suffering gradual imposition and abuses, which were imperceptible, only because the means of publicity had not been secured.’” He also quotes Revolutionary War figure Patrick Henry, who said, “[T]o cover with the veil of secrecy the common routine of business is an abomination in the eyes of every intelligent man and every friend to his country.”
Rejecting Claim of 'State Secrets' - Maris is even less respectful of the government’s claim of a “state secrets” privilege. He notes that the government did not make that claim until well into the lawsuit proceedings (see October 19, 1951), indicating that it was a “fallback” argument used after the original government arguments had failed. Maris is also troubled, as author Barry Siegel later writes, in the government’s “assertion of unilateral executive power, free from judicial review, to decide what qualified as secret.” The lower court judge’s ruling that he alone should be given the documents for review adequately protected the government’s security interests, Maris writes: “[But] the government contends that it is within the sole province of the secretary of the Air Force to determine whether any privileged material is contained in the documents and that his determination of this question must be accepted by the district court without any independent consideration.… We cannot accede to this proposition. On the contrary, we are satisfied that a claim of privilege against disclosing evidence… involves a justiciable question, traditionally within the competence of the courts.… To hold that the head of an executive department of the government in a [law]suit to which the United States is a party may conclusively determine the government’s claim of privilege is to abdicate the judicial function to infringe the independent province of the judiciary as laid down by the Constitution.”
Fundamental Principle of Checks and Balances - Maris continues: “The government of the United States is one of checks and balances. One of the principal checks is furnished by the independent judiciary which the Constitution established. Neither the executive nor the legislative branch of the government may constitutionally encroach upon the field which the Constitution has reserved for the judiciary.… Nor is there any danger to the public interest in submitting the question of privilege to the decision of the courts. The judges of the United States are public officers whose responsibilities under the Constitution is just as great as that of the heads of the executive departments.”
Government Appeal - The Justice Department will appeal the ruling to the US Supreme Court (see March 1952 and March 9, 1953). (Siegel 2008, pp. 153-156)
The Justice Department appeals the ruling of the US Appeals Court in the B-29 “Banshee” case (see December 11, 1951). The appellate judges found that the executive branch of government could not unilaterally refuse to hand over classified documents requested during the course of a trial, and justify its decision merely by its own say-so (see October 12, 1950). Solicitor General Philip Perlman argues that the appellate ruling erroneously interprets the law “so as to permit encroachments by the judiciary on an area committed by the Constitution to executive discretion.” The claim of “state secrets,” “executive privilege,” and, ultimately, “national security” must trump judicial concerns, Perlman argues, and he goes on to say that the judiciary should not be allowed to “substitute its judgment for the judgment of the executive.” The case will be labeled United States of America v. Patricia Reynolds, Phyllis Brauner, and Elizabeth Palya, and will usually be shortened to the more colloquial US v. Reynolds.
The Vinson Court - In 2008, author Barry Siegel, in his book Claim of Privilege, will note that the recent ascension of Fred Vinson as the Supreme Court’s Chief Justice does not bode well for the plaintiffs in the case. President Truman placed Vinson, whom Siegel calls Truman’s “poker and drinking buddy,” as Chief Justice to try to achieve consensus between the two contentious blocs of justices on the Court. Siegel notes that Vinson is widely considered an intellectual and legal lightweight, with a tendency to take the side of the government on issues in which he lacks a full understanding. Siegel will write that in many instances, Vinson functions “as part of the executive branch.”
'Dennis' Case Preview of Court's Tendency to Favor Executive Branch - Vinson had written the opinion in a 1951 ruling, Dennis et al v. United States, where the Court had upheld a lower court ruling that twelve acknowledged American Communists were sent to jail under the Smith Act—not for breaking the law, but for “teaching and advocating,” in the words of the original indictment. Siegel will call that ruling “the nadir of the Vinson Court.” According to Siegel, the Dennis ruling showed the Court’s predisposition to give the government, and particularly the executive branch, plenty of leeway in its findings in subsequent cases such as Reynolds. (Siegel 2008, pp. 157-162)
Congress passes the Civil Rights Act of 1960. This legislation goes somewhat farther than its 1957 predecessor (see August 29, 1957). It requires election officials to have all records relating to voter registration and permits the Department of Justice to inspect them, making it more difficult for white interests to oppress African-American voters. Additionally, the law allows African-Americans barred from voting to apply to a federal court or voting arbitrator to gain those rights. Like its predecessor, it was ushered through by President Eisenhower, who pushed for the bill after an outbreak of violence against African-American churches and schools throughout the South in late 1958. And as with the first bill, Southern legislators line up in opposition to it, calling it an unacceptable interference in states’ affairs by the federal government. The second Civil Rights Act is not a major enhancement for voting-rights protections, and many critics call it little more than a sop to engage African-American voters in the 1960 elections. The new bill does provide for the creation of a Civil Rights Commission in the Justice Department, a provision that was eliminated from the 1957 bill. (American Civil Liberties Union 2012)
A federal grand jury in Jackson, Mississippi, indicts 19 Ku Klux Klan members and others for the 1964 murders of three civil rights workers, James E. Chaney, Andrew Goodman, and Michael Schwerner. The indictments mark the first time in Mississippi history that white men have faced serious charges for committing race-related crimes. Deputy Sheriff Cecil Price will be sentenced to six years in jail. KKK leader Sam Bowers and KKK member Wayne Roberts will receive 10 years apiece. (American Civil Liberties Union 2012) Investigators conclude that Bowers, the Imperial Wizard of the White Knights of the Ku Klux Klan of Mississippi, instigated the murders of Chaney, Goodman, and Schwerner. Klan members had attempted to kidnap Schwerner on June 16, 1964, but when they were unable to find him, instead set fire to a black church and systematically beat a group of black churchgoers. Schwerner, along with Chaney and Goodman, were in Ohio at the time and returned to Mississippi after hearing of the incident. Both Price and his superior, Neshoba County Sheriff Lawrence Rainey, are members of the KKK, and have a reputation for being “tough” on blacks, and officials of the Congress of Racial Equality (CORE), the organization that sponsors the three civil rights workers, were worried about their safety. On June 21, while asking about the fire and the beatings, the three workers were notified that a group of white men was looking for them. They were arrested by Price while driving to the CORE offices in Meridian, allegedly on suspicion of being involved in the church arson, and taken to the Neshoba County jail. Price met with KKK recruiter (kleagle) Edgar Ray Killen to discuss what to do with the three. Price and the other police officers pretended to release the three, and let them drive away, but Price followed them in his police cruiser. Price pulled the car carrying the three over, placed them in his police cruiser, and drove them down a lonely dirt road, followed by at least a dozen Klan members. The three were beaten by the various Klan members, then shot to death by Klan member Wayne Roberts. The bodies were taken to a dam site at a nearby farm and buried under tons of dirt by earthmoving equipment. It is almost certain that Price informed Rainey of the murders and the burials upon returning to his office. Justice Department and FBI agents began investigating the disappearance of the three workers (giving the case the name “Mississippi Burning,” or MIBURN), and soon found the burned-out hulk of the station wagon driven by Chaney during the three’s final moments. Federal agents found it difficult to find witnesses willing to talk, but FBI agent John Proctor found that children were often knowledgeable and willing to speak in return for candy. A $30,000 reward offering led agents to the buried bodies. Informants from within the Klan itself finally broke open the case, particularly John Jordan, a Meridian speakeasy owner who cooperated with agents rather than face a long prison term. In December 1964, 19 men, including Price, Bowers, Roberts, and Killen, were arrested and charged under Mississippi law. Initially, a US commissioner threw out all of the charges against the 19, claiming that no evidence linked them to the crimes, but the 19 will be charged under federal laws instead. Segregationist Judge William Harold Cox will again dismiss the charges against all but Rainey and Price, but the US Supreme Court will reinstate the charges in February 1966. Cox will impose the extraordinarily lenient sentences, and will later say, “They killed one n_gger, one Jew, and a white man—I gave them all what I thought they deserved.” Price will only serve four years of his sentence before rejoining his family in Philadelphia, Mississippi. In 1999, Mississippi will reopen the investigation, and in 2005 will reindict Killen, who escaped conviction in the first trial because of the jury’s refusal to “convict a preacher.” Killen will be sentenced to 60 years in jail on three counts of manslaughter. (Douglas O. Linder 2005)
For the first time, the clerk of the US House of Representatives does his duty under the law and collects campaign finance reports, as mandated by the 1925 Federal Corrupt Practices Act (see 1925). W. Pat Jennings, a former congressman, turns in a list of violators to the US Department of Justice. Jennings’s list is ignored. (Center for Responsive Politics 2002 )
International Telephone and Telegraph (ITT) acquires three smaller corporations, prompting the US Justice Department to file suits against ITT charging that the mergers violate antitrust laws. Between 1969 and April 1971, ITT officials meet with several Nixon administration officials, including Vice President Spiro Agnew; White House aides John Ehrlichman, Charles Colson, and Egil Krogh; Cabinet secretaries John Connally and Maurice Stans; Justice Department officials John Mitchell and Richard Kleindienst; and others, in attempts to persuade the administration to drop the lawsuits. (Wallechinsky and Wallace 1981)
International Telephone and Telegraph (ITT) offers the Nixon administration $400,000 to finance the GOP’s 1972 national convention in San Diego. (Wallechinsky and Wallace 1981) President Nixon wanted San Diego as the site of the convention, but the San Diego city government has no intention of spending lavish amounts of money subsidizing a convention it does not need. The ITT contribution, privately arranged by White House and GOP officials, is key to having San Diego as the site of the convention. In early July, the Republican National Committee announces San Diego as the convention site; eight days later, the Justice Department announces that it is dropping its antitrust suit against ITT (see July 31, 1971). Shortly thereafter, Richard McLaren, the head of the Justice Department’s Antitrust Division and an enthusiastic trustbuster whose atypical decision to let ITT off the hook confuses many observers, abruptly quits the department; within days, McLaren lands a federal judgeship without benefit of Senate hearings. Syndicated columnist Jack Anderson believes the whole deal is fishy, and will write a December 9, 1971 column to that effect, but he will not learn the entire truth behind the GOP-ITT deal until months later (see February 22, 1972). (Anderson 1999, pp. 194-200)
President Nixon tells his aides H. R. Haldeman and John Ehrlichman that they will need to dun even more money out of International Telephone and Telegraph, one of his re-election campaign’s largest and most secretive donors (see 1969). ITT is embroiled in an antitrust lawsuit, and Nixon is working to get the suit settled in favor of ITT in return for secret campaign donations (see July 31, 1971). Nixon says that Deputy Attorney General Richard Kleindienst “has the ITT thing settled,” adding, “He cut a deal with ITT.” Nixon also orders that the Justice Department antitrust lawyer who is pursuing the prosecution of ITT, Richard McLaren, be given his marching orders: “I want something clearly understood, and, if it’s not understood, McLaren’s ass is to be out of there within one hour. The ITT thing—stay the hell out of it. Is that clear? That’s an order.… I do not want McLaren to run around prosecuting people. raising hell about conglomerates, stirring things up… I don’t like the son of a b_tch.” McLaren will later drop the prosecution in return for a federal judgeship (see May-July 1971). (Reeves 2001, pp. 324)
At the behest of President Nixon (see June 15, 1971), the Justice Department files a motion with the US District Court in New York requesting a temporary restraining order and an injunction against the New York Times to prevent further publication of articles stemming from the “Pentagon Papers” (see June 13, 1971). The landmark case of New York Times Company v. United States begins. The government’s argument is based on the assertion that the publication of the documents jeopardizes national security, makes it more difficult to prosecute the Vietnam War, and endangers US intelligence assets. The Times will base its defense on the principles embodied in the First Amendment, as well as the argument that just because the government claims that some materials are legitimately classified as top secret, this does not mean they have to be kept out of the public eye; the Times will argue that the government does not want to keep the papers secret to protect national security, but instead to protect itself from embarrassment and possible criminal charges. The court grants the temporary restraining order request, forcing the Times to temporarily stop publishing excerpts from the documents. (Herda 1994; Moran 2007)
Hearings over the legality of publication of the “Pentagon Papers” (see June 15, 1971) begin in federal court. Although the main newspaper publishing the Papers is the New York Times, the legality of the publication of an article derived from the Papers in another newspaper, the Washington Post, is also challenged in the hearings. The Justice Department will file charges against the Post similar to those already filed against the New York Times. (Herda 1994)
Opening arguments in the Pentagon Papers case of New York Times Company v. United States (see June 15, 1971 and June 24, 1971) begin in the Supreme Court. The government argues that the publication of articles based on the documents constitutes a “grave and immediate danger” to US interests, and that the “integrity of the institution of the presidency” must be protected. For the Times, the arguments are that, first, since it took days for the government to respond to the publication of the first articles, the documents must not be that sensitive; lower courts could not find a single sensitive document among the documents; the government had no right imposing restraints on a newspaper’s First Amendment rights to publish in this situation; and that many times in recent history the Times and other news outlets had published “leaked” information, often information that was deliberately leaked by government sources. (Herda 1994)
By the summer of 1971, President Nixon and his senior staffers, particularly John Ehrlichman, have come to view Vice President Spiro Agnew as more of a liability than an asset (see Mid-1971). Agnew, who has served the president well as a conservative “stalking horse” who could lambast antiwar protesters and foreign leaders in a way that might be unsuitable for a president (see 1969-1971), has in recent months begun complaining about being kept away from real decision-making, particularly on foreign affairs. (Agnew has not made himself popular by attacking Nixon’s recent overtures to the Communist Chinese and complaining to anyone who would listen about his “poor” treatment at the hands of Nixon and his aides.) All of this has made Nixon unwilling to spend a lot of political capital in defending Agnew from bribery charges (see April 10, 1973). Nixon aides ask Agnew to voluntarily resign, a request he resists. In return, Agnew levels accusations that White House staffers began a media leak campaign designed to drive him from office. Agnew waffles on the question, offering to resign if Nixon would promise to grant him immunity from prosecution, then thundering to one receptive audience, “I will not resign if indicted!” By September, Nixon’s new chief of staff, Alexander Haig, brought in to keep the Nixon administration intact under the specter of the Watergate investigations, begins pushing Agnew to resign, threatening that the Justice Department would prosecute him for income tax evasion on the bribes he had taken unless Agnew resigned. Agnew will later say that he felt Haig was implicitly threatening his life if he didn’t “go quietly”; for his part, Haig finds Agnew so menacing that he tells his wife if he disappeared, she “might want to look inside any recently poured concrete bridge pilings in Maryland.” (US Senate 2007)
The Justice Department reaches a deal with International Telephone and Telegraph (ITT) to drop the government’s antitrust lawsuit against the corporation (see 1969). The “consent decree” allows ITT to keep some of the firms with which it has attempted to merge. Perhaps coincidentally, ITT is allowed to merge with the firms that are relatively profitable, and dispose of the companies that will lose money for the corporation (see May 13, 1971). (Wallechinsky and Wallace 1981)
Deputy Attorney General William Rehnquist is sworn in as an associate justice of the Supreme Court, replacing the retiring John Harlan. Rehnquist was active in the Arizona Republican Party, and became well-known in the state as a conservative activist who, among other things, opposed school integration. Rehnquist befriended fellow Phoenix attorney Richard Kleindienst, who, after becoming attorney general under Richard Nixon, brought Rehnquist into the Justice Department. Rehnquist faced little difficulty in his confirmation hearings in the Democratically-led Senate Judiciary Hearings. (Oyez (.org) 9/3/2005) Rehnquist may have perjured himself during those hearings. He was confronted with charges that, as a Republican Party attorney and poll watcher, he had harassed and challenged minority voters in Arizona during the 1962, 1964, and 1966 elections. Rehnquist swore in an affidavit that the charges were false, even though the evidence available to the Senate showed Rehnquist did take part in such activities, which were legal in Arizona at the time. (Rehnquist will again deny the charges in 1986, when he is nominated for chief justice—see September 26, 1986). Former Nixon White House counsel John Dean will observe: “After reading and rereading his testimony, it appears to me that what he was really saying to the Senate [in 1971] was that he was not quite sure himself of his behavior, but he could not bring himself to tell the truth. Thus, his blanket 1971 denial forced him to remain consistent to that denial in 1986, and since his blanket denial was a lie, he had to continue lying. His false statement to Congress in 1971 was a crime, but the statute of limitations had passed. His false statement to Congress in 1986, however, was pure perjury.” (Dean 2007, pp. 129-137)
The US Supreme Court, in what becomes informally known as the “Keith case,” upholds, 8-0, an appellate court ruling that strikes down warrantless surveillance of domestic groups for national security purposes. The Department of Justice had wiretapped, without court warrants, several defendants charged with destruction of government property; those wiretaps provided key evidence against the defendants. Attorney General John Mitchell refused to disclose the source of the evidence pursuant to the “national security” exception to the Omnibus Crime Control and Safe Streets Act of 1968. The courts disagreed, and the government appealed the decision to the Supreme Court, which upheld the lower courts’ rulings against the government in a unanimous verdict. The Court held that the wiretaps were an unconstitutional violation of the Fourth Amendment, establishing the judicial precedent that warrants must be obtained before the government can wiretap a US citizen. (US Supreme Court 6/19/1972; Bernstein and Woodward 1974, pp. 258-259) Critics of the Nixon administration have long argued that its so-called “Mitchell Doctrine” of warrantlessly wiretapping “subversives” has been misused to spy on anyone whom Nixon officials believe may be political enemies. (Bernstein and Woodward 1974, pp. 258-259) As a result of the Supreme Court’s decision, Congress passes the Foreign Intelligence Surveillance Act. (Conyers 5/14/2003)
Opinion of Justice Powell - Writing for the Court, Justice Lewis Powell observes: “History abundantly documents the tendency of Government—however benevolent and benign its motives—to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the government attempts to act under so vague a concept as the power to protect ‘domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.” (US Supreme Court 6/19/1972)
Justice Department Wiretapped Reporters, Government Officials - In February 1973, the media will report that, under the policy, the Justice Department had wiretapped both reporters and Nixon officials themselves who were suspected of leaking information to the press (see May 1969 and July 26-27, 1970), and that some of the information gleaned from those wiretaps was given to “Plumbers” E. Howard Hunt and G. Gordon Liddy for their own political espionage operations. (Bernstein and Woodward 1974, pp. 258-259)
Conyers Hails Decision 30 Years Later - In 2003, Representative John Conyers (D-MI) will say on the floor of the House: “Prior to 1970, every modern president had claimed ‘inherent Executive power’ to conduct electronic surveillance in ‘national security’ cases without the judicial warrant required in criminal cases by the Fourth Amendment to the Constitution. Then Attorney General John Mitchell, on behalf of President Richard Nixon sought to wiretap several alleged ‘domestic’ terrorists without warrants, on the ground that it was a national security matter. Judge [Damon] Keith rejected this claim of the Sovereign’s inherent power to avoid the safeguard of the Fourth Amendment. He ordered the government to produce the wiretap transcripts. When the Attorney General appealed to the US Supreme Court, the Court unanimously affirmed Judge Keith. The Keith decision not only marked a watershed in civil liberties protection for Americans. It also led directly to the current statutory restriction on the government’s electronic snooping in national security cases.” (Conyers 5/14/2003)
Washington Post reporters Carl Bernstein and Bob Woodward have little luck talking to anyone who works for the Committee to Re-elect the President (CREEP). Both reporters spend several evenings visiting and telephoning CREEP employees at their homes. The first person Bernstein speaks to turns him away, shuddering. He has to leave “before they see you,” she says. “Please leave me alone. I know you’re only trying to do your job, but you don’t realize the pressure we’re under.” Another bursts into tears as she turns him away. “I want to help,” she says, but “God, it’s all so awful.” A third begs: “Please don’t call me on the telephone—God, especially not at work, but not here either. Nobody knows what they’ll do. They are desperate.”
Sally Harmony - One thing they do find out is the level of knowledge possessed by Sally Harmony, G. Gordon Liddy’s secretary at CREEP. Harmony had not been truthful or forthcoming in her recent testimony before the FBI and the grand jury investigating the Watergate break-in (see 2:30 a.m.June 17, 1972). This ties in with another Post reporter’s tip to Bernstein that Harmony lied to protect both her boss and CREEP deputy director Jeb Magruder. A Justice Department attorney confirms the fact that prosecutors believe Harmony was not truthful in her testimony, but they lack the evidence to charge her with perjury.
Destruction of Records - Some CREEP employees guardedly tell Bernstein and Woodward about large-scale destruction of records in the days after the Watergate burglary, but they know no specifics. Those who would know were interviewed by FBI investigators, but were interviewed at CREEP headquarters, in the presence of either a CREEP lawyer or Robert Mardian, the political coordinator of the committee and a former assistant attorney general. According to the employees Bernstein and Woodward interview, Mardian never directly told anyone to lie, but told them not to volunteer anything and evade whenever possible.
Pieces of Information - They garner other shreds of information:
John Mitchell, who resigned from the directorship of CREEP (see July 1, 1972), is still heavily involved in the organization, appearing three times a week “telling Fred LaRue and Bob Mardian what to do.”
Magruder himself is terrified, acting “like the roof is going to fall down on him tomorrow.”
CREEP director Clark MacGregor wanted to write a report detailing his knowledge of campaign finance irregularities, “but the White House said no.”
Prosecutors had asked employees if they knew of other surveillance operations besides the one at Democratic headquarters.
FBI officials had asked about documents being shredded.
“I heard from somebody in finance that if they [the FBI] ever got a look at the books it would be all over, so they burned ‘em.”
Liddy “would never talk” and Harmony talked about her “bad memory.”
“From what I hear they were spying on everybody, following them around, the whole bit.”
The obvious terror of the people they interview unsettles the two reporters. (Bernstein and Woodward 1974, pp. 58-61)
After a tirade about how humiliated and angry he was when he was investigated and audited by the IRS, President Nixon demands that the same kinds of investigations be performed on the Democratic presidential candidate, George McGovern, and his campaign staff and financiers. “What in the name of God are we doing on this one?” he asks. “What are we doing about the financial contributors?… Are we looking over the financial contributors to the Democratic National Committee? Are we running their income tax returns? Is the Justice Department checking to see whether or not there are any antitrust suits (see July 31, 1971)?… We have all this power and we aren’t using it. Now what the Christ is the matter?” Nixon particularly wants the tax returns of businessman Henry Kimmelman, one of the largest financial backers of the McGovern campaign, but the new Secretary of the Treasury, George Shultz, is reluctant to use the IRS for political purposes. Nixon cannot understand Shultz’s hesitation. “What’s he trying to do, say that we can’t play politics with IRS?… Just tell George he should do it.” Nixon has Kimmelman’s tax returns within three days. By the same time, IRS audits of McGovern’s campaign and senior officials are well underway. (Reeves 2001, pp. 519-521)
The General Accounting Office (GAO) completes its preliminary report on financial irregularities inside the Nixon re-election campaign (see August 1-2, 1972). According to the report, the campaign has mishandled over $500,000 in campaign contributions, including an apparently illegal “slush fund” of over $100,000—perhaps more than $350,000. The report lists 11 “apparent and possible violations” of the new campaign finance law (see Before April 7, 1972), and refers the matter to the Justice Department for possible prosecution. The GAO agrees to delay its public issuance of its report after the committee’s finance chairman, Maurice Stans, asks GAO chief investigator Philip Hughes to come to Miami, where the Republican National Convention is in full swing, to receive more information. Another GAO investigator tells Washington Post reporter Bob Woodward that the Nixon campaign does not want the report to be made public on the same day that Richard Nixon accepts the Republican nomination for president. (Bernstein and Woodward 1974, pp. 48-56)
The first indictments against the five men accused of burglarizing Democratic National Headquarters (see June 17, 1972)—James McCord, Frank Sturgis, Bernard Barker, Eugenio Martinez, and Virgilio Gonzalez—are handed down. White House aides G. Gordon Liddy and E. Howard Hunt are also indicted. (Gerald R. Ford Library and Museum 7/3/2007) The indictments are for conspiracy, interception of communications, and burglary. (O.T. Jacobson 7/5/1974 )
Washington Post Investigation - In its story of the indictments, the Washington Post will note that the indictments do “not touch on the central questions about the purpose or sponsorship of the alleged espionage” against the Democrats. Post reporter Carl Bernstein asks a Justice Department official why the indictments are so narrowly focused, as the FBI has certainly unearthed the same information as the Post investigation. After the source admits that the Justice Department knows about the campaign “slush fund” and the White House connections to the electronic surveillance, an indignant Bernstein asks why the Post should not run a story accusing the department of ignoring evidence. The official responds that the department does not intend to file any future indictments, and that the investigation is currently “in a state of repose.” (Bernstein and Woodward 1974, pp. 69-70)
FBI Continues to Probe - FBI spokesman J. W. Hushen says that the indictments have ended the investigation and the agency has “absolutely no evidence to indicate that any others should be charged.” Contrary to Hushen’s statement and the Justice Department official’s comment to Bernstein, the FBI will continue its investigation. A day later, Deputy Attorney General Henry Peterson says that any charges that the FBI has conducted a “whitewash” of the Watergate conspiracy are untrue. (O.T. Jacobson 7/5/1974 ; Reeves 2001, pp. 526-527)
Bay of Pigs Forged Bond - Martinez will later recall Hunt as one of his heroes from the time of the Cuban Revolution. Hunt, a CIA agent using the code name “Eduardo,” endeared himself to Martinez and other anti-Castro Cubans by denouncing the failed Bay of Pigs invasion as the fault of then-President Kennedy and others unwilling to fight against Fidel Castro. Martinez, himself then a CIA agent and an associate of Barker, Sturgis, McCord, and Gonzalez, will later write, “I can’t help seeing the whole Watergate affair as a repetition of the Bay of Pigs.” (Martinez and Barker 10/1974)
While researching the story that would reveal the extensive “dirty tricks” operations conducted by the Nixon presidential campaign (see June 27, 1971, and Beyond), Washington Post reporter Carl Bernstein learns of the extensive connections between “agent provocateur” Donald Segretti and members of the Nixon administration.
College Connection - Segretti, Nixon press secretary Ron Ziegler, White House appointments secretary Dwight Chapin, and Ziegler’s aide Tim Elbourne had all attended college together at the University of Southern California. All were members of a campus political group called “Trojans for Representative Government.” The group carried out a number of dirty campus political operations, which they called “ratf_cking.” Some of their “tricks” included ballot box stuffing, planting of spies in opposition camps, and spreading of bogus campaign literature designed to drive students away from the targeted candidate.
Campaigns - Ziegler and Chapin had joined Richard Nixon’s gubernatorial campaign in 1962, which was managed by H. R. Haldeman, now Nixon’s closest White House aide. After Nixon lost that election, Ziegler, Chapin, and Elbourne had worked for Haldeman in an advertising agency. Ziegler and Chapin had recruited Segretti and Elbourne to take part in the 1972 Nixon campaign.
Confirmation - A Justice Department official confirms that Segretti is under investigation for political sabotage and espionage operations, and says that he is familiar with the term “ratf_cking.” Bernstein discusses Segretti with a Justice Department attorney, who is outraged at the entire idea. “Ratf_cking?” he snarls. “You can go right to the top with that one. I was shocked when I heard it. I couldn’t believe it. These are public servants? God. It’s nauseating. You’re talking about fellows who come from the best schools in the country. Men who run the government!” The attorney calls the Segretti operation “despicable,” and Segretti himself “indescribable.” “You’re dealing with people who act like this is Dodge City, not the capital of the United States.” The attorney hints that the Nixon campaign “slush fund” (see September 29, 1972) helped pay for the operations, and that the “Canuck letter” (see February 24-25, 1972) was one of the Nixon campaign’s operations.
Mitchell Involved - Bernstein prods the attorney about the phrase “go right to the top,” and mentions former campaign manager John Mitchell. The attorney says of Mitchell: “He can’t say he didn’t know about it, because it was strategy—basic strategy that goes all the way to the top. Higher than him, even.” Woodward is stunned. Higher than Mitchell? The only three people in the Nixon administration higher than Mitchell are Nixon’s top aides, H. R. Haldeman and John Ehrlichman, and Richard Nixon himself. Bernstein and colleague Bob Woodward later write, “For the first time, [Bernstein] considered the possibility that the president of the United States was the head ratf_cker.” (Bernstein and Woodward 1974, pp. 126-129)
Around 2 a.m., Washington Post reporter Bob Woodward meets his FBI source, W. Mark Felt (popularly called “Deep Throat”—see May 31, 2005) in the underground parking garage Felt has designated as their rendezvous (see August 1972). Woodward’s partner Carl Bernstein has unearthed fascinating but puzzling information about a Nixon campaign “dirty tricks” squad headed by California lawyer Donald Segretti (see June 27, 1971, and Beyond and October 7, 1972). Woodward is desperately searching for a way to pull together the disparate threads of the various Watergate stories. An unusually forthcoming Felt says he will not give Woodward any new names, but directs him to look in “the direction of what was called ‘Offensive Security.’” Things “got all out of hand,” Felt tells Woodward, in “heavy-handed operation[s]” that went farther than perhaps their originators had intended. Felt says bluntly that Nixon campaign chairman John Mitchell was involved, and, “Only the president and Mitchell know” how deep Mitchell’s involvement really is. Mitchell “learned some things in those ten days after Watergate,” information that shocked even him. If what Mitchell knows ever comes to light, it could destroy the Nixon administration. Mitchell himself knew he was ruined after Watergate investigation began, and left the administration to try to limit the damage. Felt adds that Nixon aide John Ehrlichman ordered Watergate burglar E. Howard Hunt to leave town (see June 18, 1972), a revelation that surprises Woodward, since Ehrlichman’s name has not yet come up in the conspiracy stories.
Four Major Groups - There are four major groups within the Nixon presidential campaign, Felt says. The “November Group” handles campaign advertising. Another group handles political espionage and sabotage for both the Republican and Democratic National Conventions. A third “primary group” did the same for the campaign primaries (this group not only worked to sabotage Democrats, but Republican primary opponents of Nixon’s as well). And a fourth, the “Howard Hunt group,” is also known as the “Plumbers,” working under Hunt (see 2:30 a.m.June 17, 1972). Felt calls the Plumbers the “really heavy operations team.” Hunt’s group reports directly to Charles Colson, Nixon’s special counsel. One set of operations by Hunt’s group involved planting items in the press; Felt believes Colson and Hunt leaked stories of former Democratic vice presidential candidate Thomas Eagleton’s drunk driving record to reporters. “Total manipulation—that was their goal, with everyone eating at one time or another out of their hands. Even the press.” The Post is specifically being targeted, Felt warns; the White House plans to use the courts to make Woodward and Bernstein divulge their sources.
Watergate Investigation Deliberately Narrow - Felt says that the Justice Department’s indictments against the seven Watergate burglars (see September 15, 1972) was as narrow as Department officials could make it. Evidence of political espionage or illegal campaign finances that was not directly related to the burglary was not considered. Felt says that the investigation, as narrow as it was, was plagued by witness perjury and evasions.
Everything is Interconnected - Everything—surveillance operations, illegal campaign finances, campaign “dirty tricks”—is interconnected, Felt says. The Segretti story is just the tip of the iceberg: “You could write stories from now until Christmas or well beyond that.” The two men have been alternately standing and sitting in the unlighted parking garage for hours; dawn is approaching, and both are exhausted. Woodward knows he needs specifics, the names of these higher-ups. How is he to know if he is not being railroaded down investigative dead ends by White House media manipulation operations? How about the “Canuck letter” that destroyed the candidacy of Democratic presidential hopeful Edmund Muskie? “It was a White House operation,” Felt replies: “done inside the gates surrounding the White House and the Executive Office Building. Is that enough?” It is not, Woodward retorts. Are there more intelligence and sabotage operations still to come? Woodward angrily says that he is tired of their “chickensh_t games,” with Felt pretending he never provided primary information and Woodward contenting himself with scraps of disconnected information. Felt replies: “Okay. This is very serious. You can safely say that 50 people worked for the White House and CREEP [the Nixon re-election campaign] to play games and spy and sabotage and gather intelligence. Some of it is beyond belief, kicking at the opposition in every imaginable way. You already know some of it.” Woodward lists the many examples that he and Bernstein have been able to unearth: surveillance, following people, press leaks, fake letters, campaign sabotage, investigations of campaign workers’ private lives, theft, campaign provacateurs. Felt nods. “It’s all in the [FBI] files. Justice and the Bureau know about it, even though it wasn’t followed up.” Woodward, despite himself, is stunned. The White House had implemented a systematic plan to subvert the entire electoral process? Had used fifty people to do it? “You can safely say more than fifty,” Felt says, and walks up the ramp and out of the garage. It was 6 a.m. Woodward uses Felt’s information to help create one of the most devastating stories yet published about Watergate (see October 10, 1972). (Bernstein and Woodward 1974, pp. 130-135; Woodward 2005, pp. 75-79)
'Organizing Principle' of Watergate - Nixon White House counsel Leonard Garment will write in his 2000 book In Search of Deep Throat (in which he misidentifies the source as obscure Nixon staffer John Sears) that while Woodward’s source did not deliver “much in the way of specific information, he gave Woodward and Bernstein what they needed: an organizing principle.” It is during this time, Garment will write, that the reporters begin to truly understand the entirety of the Watergate conspiracy. (Woodward 2005, pp. 191-194)
Washington Post reporter Bob Woodward is phoned by a Post reporter in Los Angeles, Robert Meyers. Meyers has spoken with a fraternity brother of Nixon campaign operative Donald Segretti (see June 27, 1971, and Beyond). The fraternity brother, Larry Young, told Meyers that the FBI learned of Segretti and his campaign operations through the phone records of Watergate burglar E. Howard Hunt (see 2:30 a.m.June 17, 1972). Hunt had called Segretti numerous times to give Segretti instructions about something Young does not know, but “it wasn’t the [campaign] bugging.” Woodward had not known of any Segretti-Hunt connection. Young told Meyers that Segretti admitted working for “a wealthy California Republican lawyer with national connections and I get paid by a special lawyer’s trust fund.” Woodward believes the lawyer in question is Herbert Kalmbach, President Nixon’s personal lawyer; Meyers had asked Young about Kalmbach, but Young did not recognize the name. He does identify the lawyer as having an office in Newport Beach, where Kalmbach has his office. Young believes that Segretti met with both Hunt and White House aide Dwight Chapin (see October 7, 1972). Segretti often talked of going to Miami—the home of most of the Watergate burglars—to meet with Hunt and Chapin. Segretti told Young that when he was in Miami, someone Segretti didn’t identify asked him to organize a group of young Cubans to mount an assault on the Doral Beach Hotel, the location of the Republican National Convention, and make it look as if the Cubans were McGovern campaign workers. Segretti refused to carry out this particular idea, calling it blatantly illegal and violent. Woodward is aware that just such an assault had indeed taken place at the hotel, and that many suspected that there were Republican provocateurs in the crowd of protesters.
Segretti Worried about Being the Fall Guy - When the FBI first contacted Segretti, two weeks before the July convention, Young says that Segretti was shocked that he had not been given advance warning. Segretti worried that he was being set up as a fall guy. In his testimony to the FBI and before the Watergate grand jury, Segretti told them about his connections with Hunt and Chapin, and named the lawyer who paid him. So, Woodward muses, the Justice Department had known of the connections between Segretti, Hunt, and Chapin since June and had not followed up on them. Young agrees to go on the record as a source, and Woodward confirms the story through a Justice Department lawyer. The FBI didn’t consider what Segretti did to be strictly illegal, the lawyer tells Woodward, but “I’m worried about the case. The Bureau is acting funny… there is interest in the case at the top.… [W]e’re not pursuing it.” The lawyer refuses to be more specific. Chapin carefully denies the story. He admits he and Segretti are old college buddies, and does not directly deny that he was Segretti’s White House contact.
Haldeman Connection - A former Nixon administration official tells Woodward, “If Dwight has anything to do with this, it means Haldeman,” referring to Nixon’s chief of staff H. R. Haldeman. “He does what two people tell him to do: Haldeman and Nixon.” The Post story runs on October 15, without naming Kalmbach. The story breaks two new areas of ground: it is the first of its kind to rely on on-the-record sources (Young), and it is the first to directly allege that the Watergate conspiracy reaches into the White House itself and not merely the Nixon re-election campaign. A Time magazine follow-up adds that Chapin had hired Segretti, and names Gordon Strachan, a political aide to Haldeman, had taken part in hiring Segretti as well. Most importantly, Time names Kalmbach as the lawyer who paid Segretti. Irate at being scooped, Woodward quickly confirms Kalmbach’s status as paymaster with a Justice Department attorney, and in a conversation with former campaign treasurer Hugh Sloan, confirms that Segretti was paid out of the campaign’s “slush fund” managed by campaign finance chief Maurice Stans (see September 29, 1972). Kalmbach had distributed far more money than was given to Segretti, Sloan says. (Bernstein and Woodward 1974, pp. 150-159)
Verified - On October 18, the New York Times runs a story that uses telephone records to verify Segretti’s calls from Hunt. (Bernstein and Woodward 1974, pp. 167)
An internal FBI memo shows that the bureau suspects one of its own as being a source for Washington Post reporters Bob Woodward and Carl Bernstein for Watergate-related information. The memo reads in part: “As you know, Woodward and Bernstein have written numerous articles about Watergate [in which] they have frequently set forth information which they attribute to Federal investigators, Department of Justice sources and FBI sources.… [T]here is no question but that they have access to sources either in the FBI or the Department of Justice.” The memo says that the FBI’s acting director, L. Patrick Gray, has ordered an analysis of the reporters’ most recent article to determine its source and to locate the FBI leaker. The memo is signed by W. Mark Felt, the FBI’s deputy director and Woodward’s infamous source, nicknamed in the Post newsroom “Deep Throat” (see May 31, 2005). Woodward, who will read the memo for the first time in 1992, will realize as he pores over the document that Felt used the memo to cover his own tracks, not only by initiating the leak inquiry but by casting suspicion, however briefly, on US Attorney Donald Campbell. (Woodward 2005, pp. 7-11)
Former CREEP deputy director Jeb Magruder testifies in private to investigators for the Watergate investigation. Washington Post reporter Bob Woodward learns of Magruder’s testimony on April 18, from a CREEP official. The official tells Woodward that “Magruder is your next McCord (see March 28, 1973). He went to the prosecutors last Saturday [April 14] and really tucked it to [John] Dean and [John] Mitchell.” Woodward asks why Magruder, who has a reputation for extreme loyalty, would testify against anyone in either the White House or the campaign. “Bad sh_t, man,” the official responds. “The walls were coming in on him—walls, ceiling, floor, everything.” Magruder blamed Dean and Mitchell for “[t]he whole mess,” says the official, “the bugging plans and the payoff scheme… those meetings, or at least one meeting, in Mitchell’s office when everything was discussed with [G. Gordon] Liddy before the bugging.” Woodward confirms the official’s account with a White House official, who says that Magruder told everything he knew: “The works—all the plans for the bugging, the charts, the payoffs.… This is no hearsay like McCord. It will put Dean and Mitchell in jail.” Magruder’s lawyer confirms that his client will testify before the grand jury when called. And a Justice Department official adds that “other people will testify that Mitchell and Dean were in on the arrangements for the payoffs.” (Bernstein and Woodward 1974, pp. 292-293) The same day, Magruder admits to Bart Porter, the campaign’s director of scheduling, that he has been using Porter to help cover his own involvement in the Watergate conspiracy (see July 31, 1972). Porter, who has lied three times under oath for Magruder (see January 8-11, 1973), is horrified. He decides to stop lying for Magruder or anyone else, and tell the Senate Watergate Committee everything he knows about Watergate, regardless of the consequences. (Porter 10/1974)
White House counsel John Dean meets with President Nixon to discuss his upcoming testimony before the Watergate grand jury (see April 6-20, 1973). Dean apologizes for not telling Nixon himself (Nixon had learned of Dean’s intent to testify from the Justice Department—see April 6-20, 1973). Dean agrees not to talk about “national security” matters such as the indiscriminate wiretapping the White House has had the FBI perform. Nixon also says that “he had, of course, only been joking” when he the remark he made earlier to Dean about being able to provide $1 million in “hush money” to the Watergate burglars (see March 21, 1973). According to later testimony by Dean (see June 25-29, 1973), during the meeting, Nixon “went behind his chair to the corner of the office and in a nearly inaudible tone said to me he was probably foolish to have discussed Hunt’s clemency with Colson” (see March 21, 1973). Dean concludes by saying that he hopes nothing he’s done will “result in the impeachment of the President.” According to Dean’s testimony, Nixon replies jokingly, “I certainly hope so also.” Both men are stilted and formal; Nixon knows he is being tape-recorded for posterity (see July 13-16, 1973), and Dean suspects the taping. The White House will contend that Dean’s version of events is wrong, and that Nixon tells Dean he has to testify without immunity. The audiotapes later show that Dean’s version of events is accurate. (Time 7/9/1973; Reeves 2001, pp. 587-588)
Attorney General Richard Kleindienst stays up until 5 a.m. going over the evidence surrounding the Watergate burglary with other Justice Department officials. He and Assistant Attorney General Henry Petersen meet with President Nixon, and tell the president that they both believe White House officials as well as officials of his re-election campaign are involved in the cover-up conspiracy. Kleindienst, who along with Petersen will testify to this before the Senate Watergate Committee (see Mid-August, 1973), will recall that Nixon is “dumbfounded”; Petersen’s recollection is that Nixon seems concerned but calm. Kleindienst openly weeps as he discusses the likelihood that his friend and former superior at the Justice Department, former campaign head John Mitchell, may be involved. Kleindienst will testify that Nixon consoles him: “I don’t think since my mother died when I was a young boy that I ever had an event that has consumed me emotionally with such sorrow, and he was very considerate of my feelings.” Petersen urges Nixon to fire both of his senior aides, H. R. Haldeman and John Ehrlichman, because he is certain that their continuation as White House officials will become a “source of vast embarrassment.” Petersen says bluntly that if the Justice Department finds any evidence of Nixon’s own involvement, he will not only resign, but will “waltz it [the information] over to the House of Representatives”—where impeachment proceedings begin. When Petersen asks about Pentagon Papers leaker Daniel Ellsberg (see August 5, 1971), before he can even ask about the burglary of Ellsberg’s psychiatrist’s office (see September 9, 1971), Nixon cuts him off, saying: “I know about that. That is a national security matter. You stay out of that.” (Time 8/20/1973) Peterson passes along Nixon’s instructions to chief prosecutor Earl Silbert, who accuses Peterson of acting as Nixon’s agent. The two get into a shouting match, and take the dispute to Kleindienst, who informs them that because he is recusing himself from the matter (see April 19, 1973), he cannot settle the issue. (Reeves 2001, pp. 593)
Attorney General Elliot Richardson names former Solicitor General Archibald Cox as the Justice Department’s special prosecutor for Watergate. Cox is officially sworn in on May 25. (Washington Post 2008) Cox, who served in the Kennedy administration, says: “This is a task of tremendous importance. Somehow, we must restore confidence, honor and integrity in government.” Richardson says Cox’s appointment should allay suspicions that the White House will try to influence the investigation, but, “There wasn’t going to be any influence from the White House anyway.” Cox is not Richardson’s first choice for the job. Judge Harold Tyler turned the job down, not wanting to leave the bench and unsure how much independence he would truly have in conducting the investigation. Former Deputy Attorney General Warren Christopher cited similar concerns over “the requisite independence” of the position in turning down the job. Another choice, retired judge and current Wall Street lawyer David Peck, cited “urgent commitments to clients of long standing” as his reason for not taking the post; Richardson’s fourth choice, Colorado Supreme Court Justice William Erickson, was apparently never asked to take the job. Cox is not considered the best choice by Richardson because he lacks extensive experience in criminal prosecutions; Richardson intends to name a deputy for Cox who has such experience in trial work. Cox is not related to Nixon’s son-in-law, Edward Finch Cox. (Lardner 5/19/1973)
Washington Post reporter Carl Bernstein learns that Justice Department lawyers are wrangling over how to deal with the allegations of President Nixon’s criminal involvement in the Watergate cover-up. Some of them believe that Nixon cannot be indicted for criminal actions unless he is first impeached and removed from office. One Justice Department attorney confirms that had Nixon not been the president, he already would have been indicted for obstruction of justice and other crimes. But the lawyers are not even sure that Nixon can legally be subpoenaed to testify before the Watergate grand jury. “Of course, the president can’t be called,” says one, “and of course it would be justified.” White House press secretary Ron Ziegler insists that it would be “constitutionally inappropriate” for Nixon to testify before the grand jury, and a subpoena “would do violence to the separation of powers.” (Bernstein and Woodward 1974, pp. 323-324)
Watergate investigators find a memo addressed to John Ehrlichman detailing plans to burglarize the office of Daniel Ellsberg’s psychiatrist (see September 9, 1971). The one-page memo was sent to Ehrlichman by former White House aides David Young and Egil “Bud” Krogh, and was dated before the September 3, 1971 burglary. The memo was given to investigators by Young, who has been granted immunity from prosecution in return for his cooperation. Young, says Justice Department sources, will testify that Ehrlichman saw the memo and approved the burglary operation. Ehrlichman, through his attorney, denies any advance knowledge of the burglary. Young and Krogh directed the day-to-day operations of the so-called “Plumbers,” a group of White House and Nixon campaign operatives charged with stopping media leaks. Krogh has testified in an affidavit that he was given “general authorization to engage in covert activity” to obtain information on Ellsberg by Ehrlichman. Krogh won Senate confirmation as an undersecretary in the Department of Transportation, but has since resigned his post. Young was a member of the National Security Council and a former appointments secretary to National Security Adviser Henry Kissinger; he resigned in April. (Woodward and Bernstein 6/13/1973)
President Nixon delivers his second prime-time televised speech about Watergate to the nation. He says that both the Senate investigations have focused more on trying to “implicate the president personally in the illegal activities that took place,” and reminds listeners that he has already taken “full responsibility” for the “abuses [that] occurred during my administration” (see April 30, 1973). But in light of the increasing evidence being revealed about the Watergate conspiracy, Nixon’s speech is later proven to be a compilation of lies, half-truths, justifications, and evasions.
'No Prior Knowledge' - He again insists that “I had no prior knowledge of the Watergate break-in; I neither took part in nor knew about any of the subsequent cover-up activities; I neither authorized nor encouraged subordinates to engage in illegal or improper campaign tactics. That was and that is the simple truth.” He says that in all the Senate testimony, “there is not the slightest suggestion that I had any knowledge of the planning for the Watergate break-in.” He says only one witness has challenged his statement under oath, referring to former White House counsel John Dean (see April 6-20, 1973) and June 25-29, 1973), and says Dean’s “testimony has been contradicted by every other witness in a position to know the facts.” Instead, says Nixon, he insisted from the outset that the investigation into the Watergate burglary be “thorough and aboveboard,” and if there were any evidence of “higher involvement, we should get the facts out first.” A cover-up would be unconscionable, he says. He again insists that he was told in September 1972 that an FBI investigation, “the most extensive investigation since the assassination of President Kennedy… had established that only those seven (see June 17, 1972) were involved.” Throughout, Nixon says, he relied on the reports of his staff members, Justice Department, and FBI officials, who consistently reassured him that there was no involvement by anyone in the White House in the burglaries. “Because I trusted the agencies conducting the investigations, because I believed the reports I was getting, I did not believe the newspaper accounts that suggested a cover-up. I was convinced there was no cover-up, because I was convinced that no one had anything to cover up.”
Internal Investigation - He didn’t realize that those assurances were wrong until March 21, when he “received new information from [Dean] that led me to conclude that the reports I had been getting for over nine months were not true.” He immediately launched an internal investigation (see August 29, 1972), initially relying on Dean to conduct the investigation, then turning the task over to his senior aide, John Ehrlichman, and to the Attorney General, Richard Kleindienst. The results prompted him to give the case to the Criminal Division of the Justice Department, ordering the complete cooperation of “all members of the administration.” He never tried to hide the facts, Nixon asserts, but instead has consistently tried “to discover the facts—and to lay those facts before the appropriate law enforcement authorities so that justice could be done and the guilty dealt with.”
Refusal to Turn over Tapes; 'Privileged' Communications - Nixon says he is resisting subpoenas to turn over the secret recordings he has had made of White House and other conversations (see July 13-16, 1973) because of “a much more important principle… than what the tapes might prove about Watergate.” A president must be able to talk “openly and candidly with his advisers about issues and individuals” without having those conversations ever made public. These are “privileged” conversations, he says, similar to those between a lawyer and his client or “a priest and a penitent.” The conversations between a president and his advisers, Nixon says, are “even more important.” The conversations on those tapes are “blunt and candid,” made without thought to any future public disclosure, and for future presidents and their advisers to know that their conversations and advice might one day be made public would cripple their ability to talk freely and offer unfettered opinions. “That is why I shall continue to oppose efforts which would set a precedent that would cripple all future presidents by inhibiting conversations between them and those they look to for advice,” he says. “This principle of confidentiality of presidential conversations is at stake in the question of these tapes. I must and I shall oppose any efforts to destroy this principle.”
'Hard and Tough' Politics - Watergate has come to encompass more than just a burglary, Nixon says, but has brought up issues of partisan politics, “enemy lists” (see June 27, 1973), and even threats to national security. Nixon has always run “hard and tough” political campaigns, but has never stepped outside the law and “the limits of decency” in doing so. “To the extent that these things were done in the 1972 campaign, they were serious abuses, and I deplore them,” he says. The “few overzealous people” involved in the Watergate burglary should not reflect on his administration or the political process as a whole. He will “ensure that one of the results of Watergate is a new level of political decency and integrity in America—in which what has been wrong in our politics no longer corrupts or demeans what is right in our politics.”
Legal Wiretapping to Protect the Nation - The measures he has taken to protect the security of the nation have all been within the law and with the intention of protecting the government from possible subversion and even overthrow, he asserts. The wiretaps he authorized had been legal, he says, until the 1972 decision by the Supreme Court that rejected such wiretaps as unlawful (see June 19, 1972). Until then, Nixon says, he—like his predecessors—had implemented such wiretaps “to protect the national security in the public interest.” Since the Supreme Court decision, he says, he has stopped all such surveillance efforts. But the law must be mindful of “tying the president’s hands in a way that would risk sacrificing our security, and with it all our liberties.” He will continue to “protect the security of this nation… by constitutional means, in ways that will not threaten [American] freedom.”
The Fault of the Radicals - He blames the antiwar and civil rights movements of the 1960s as encouraging “individuals and groups… to take the law into their own hands,” often with the praise and support from the media and even from “some of our pulpits as evidence of a new idealism. Those of us who insisted on the old restraints, who warned of the overriding importance of operating within the law and by the rules, were accused of being reactionaries.” In the wake of this radical, anti-government atmosphere, the country was plagued by “a rising spiral of violence and fear, of riots and arson and bombings, all in the name of peace and in the name of justice. Political discussion turned into savage debate. Free speech was brutally suppressed as hecklers shouted down or even physically assaulted those with whom they disagreed. Serious people raised serious questions about whether we could survive as a free democracy.” That attitude permeated political campaigns, to the extent that “some persons in 1972 adopted the morality that they themselves had tightly condemned and committed acts that have no place in our political system… who mistakenly thought their cause justified their violations of the law.”
Looking Forward - It is time to put Watergate behind us, Nixon says, to abandon this “continued, backward-looking obsession with Watergate” and stop “neglect[ing] matters of far greater importance to all of the American people.… The time has come to turn Watergate over to the courts, where the questions of guilt or innocence belong. The time has come for the rest of us to get on with the urgent business of our nation.” (Nixon 8/15/1973; Nixon 8/15/1973; Nixon 8/15/1973; AMDOCS Documents for the Study of American History 6/1993; Gerald R. Ford Library and Museum 7/3/2007)
Former Attorney General Richard Kleindienst and Assistant Attorney General Henry Petersen testify before the Senate Watergate Committee. Both say they had been disturbed by the amount of White House interference they had gotten over their attempts to investigate the Watergate burglary, particularly from White House aide John Ehrlichman. Kleindienst tells of a phone call from Ehrlichman to Petersen demanding that the Justice Department stop “harassing” Maurice Stans, the former Nixon re-election campaign finance chairman. Kleindienst recalls that he told Ehrlichman he was flirting with an obstruction of justice charge, and threatened to resign “if the president tells me that you have the authority and the power to give specific instructions to people in the Department of Justice.” Ehrlichman reassured Kleindienst that “it will never happen again.” Kleindienst also recalls Ehrlichman coming to him in early 1973 asking for “technical” advice about securing lenient sentences or even presidential pardons for the Watergate burglars (see 2:30 a.m.June 17, 1972). Ehrlichman “did not have much of a knowledge of the criminal justice system,” Kleindienst says, and asked such questions as “What happens when somebody is convicted of a crime?… When are you eligible for a pardon? When do the circumstances arise for executive pardon?” (Ehrlichman has already testified that he never sought any executive clemency for one of the burglars, E. Howard Hunt.) Kleindienst testifies that when he told Petersen of the conversation, Petersen declared that the defendants would almost certainly do “jail time,” and said he would strongly oppose any efforts to grant anyone clemency. Petersen testifies that Kleindienst replied, “Tell those crazy guys over there [at the White House] what you just told me before they do something they will be sorry for.” For his part, Petersen says it struck him most how suspiciously everyone at the White House and the re-election campaign were acting. “There were no records,” he recalls. “Things were destroyed. They didn’t act like innocent people. Innocent people come in and say: ‘Fine, what do you want to know?’ It was not like that.” Petersen says that he and the Justice Department could and would have solved the entire case, and that they had the case 90 percent solved when Archibald Cox was appointed to take over the investigation (see May 18, 1973). “Damn it!” he cries, “I resent the appointment of a special prosecutor!” (Time 8/20/1973)
Vice President Spiro T. Agnew resigns. He will be replaced by an appointee, House Republican Gerald Ford (see October 12, 1973). Agnew, a conservative Maryland Republican with a long history of racial repression, ethnic jokes, and racial slurs in his record, appealed to conservative Southern voters as Richard Nixon’s vice presidential candidate in 1968 and 1972 (see 1969-1971). Agnew was the first vice president to be given his own office in the West Wing. (Morrow 9/30/1996; US Senate 2007) But by mid- and late 1971, Agnew is battling attempts from within the White House to force him to resign (see Mid-1971 and Beyond).
Nolo Contendre - Agnew’s lawyers reach a deal with the Justice Department, agreeing to a plea of nolo contendre (no contest) to the tax charge, a $160,000 levy of tax repayments, and a $10,000 fine. In return, Agnew agrees to leave office. One of his last actions as vice president is to visit Nixon, who assures him that he is doing the right thing. Agnew later recalls bitterly: “It was hard to believe he was not genuinely sorry about the course of events. Within two days, this consummate actor would be celebrating his appointment of a new vice president with never a thought of me.” For his part, Nixon will recall, “The Agnew resignation was necessary although a very serious blow.” Nixon apparently is not as concerned about punishing a White House official for misconduct as much as he hopes Agnew’s resignation will redirect the public anger away from himself. That ploy, too, will backfire: Nixon later writes that “all [Agnew’s resignation] did was to open the way to put pressure on the president to resign as well.” (US Senate 2007) Agnew later says that Nixon “naively believed that by throwing me to the wolves, he had appeased his enemies.” (Clines 9/19/1996) The State of Maryland will later lift Agnew’s license to practice law. (Ottalini 10/6/2003)
'Affluent Obscurity' - Agnew will return to private life (in what one reporter will call “an affluent obscurity”) (Star-Tribune (Minneapolis) 9/21/1996) as an international business consultant (see 1980s). He will publish a 1980 memoir entitled Go Quietly… Or Else, in which he says he was forced to resign by scheming Nixon aides, and a novel about a corrupt American vice president “destroyed by his own ambition.” Continuing to maintain his innocence of any wrongdoing (see 1981), he refuses any contact from Nixon until he chooses to attend Nixon’s funeral in 1994. (Clines 9/19/1996; US Senate 2007)
Bo Burlingame, a former member of the radical antiwar group the Weather Underground, interviews former Nixon White House aide Tom Charles Huston, the author of the notorious, unconstitutional “Huston Plan” (see July 14, 1970). Huston is just coming off a speech to a conservative audience in which he said that his plan, and Nixon’s attempt to seize executive power at the expense of Congress and the Constitution, was excessive and mistaken (see Late 1973). Huston, a lawyer, a former Army intelligence officer, and an early leader of the Indiana chapter of the conservative extremist group Young Americans for Freedom, tells Burlingame that he found an interesting parallel between his group of right-wing extremists and Burlingame’s left-wing extremists: “I was interested to learn that you people were frustrated because nobody was listening to you. You know, we felt the same thing at the White House. It seemed as if a momentous crisis was at hand, and nobody was aware of it or cared.”
Coup d'Etat Begins with Creation of Fear in Populace - Huston is contemptuous and dismissive of many of his former White House colleagues, particularly Richard Nixon. “Frankly, I wouldn’t put anything past him and those damn technocrats,” he says of Nixon and his senior aides. “[Y]ou can’t begin to compete with the professional Nixonites when it comes to deception.… If Nixon told them to nationalize the railroads, they’d have nationalized the railroads. If he’d told them to exterminate the Jews, they’d have exterminated the Jews.” He took a position with the White House in January 1969 “believing that things were finally going to be set straight.”
Disillusioned - Huston became increasingly disillusioned with the lack of idealism in the Nixon White House, and left after deciding that Nixon and his top officials were less interested in implementing true conservative reforms and more interested in merely accumulating power. The Nixon team was an apolitical, power-hungry bunch “whose intellectual tradition is rooted in the philosophy of [marketing and advertising guru] J. Walter Thompson.… This administration has done more to debauch conservative values than anything else in recent history.”
Fear and Repression - Considering his plan to abrogate the fundamental rights of hundreds of thousands of Americans, Huston seems quite supportive of those rights even in the face of national danger. “The real threat to national security is repression,” he had told a New York Times interviewer not long before the Burlingame interview. “A handful of people can’t frontally overthrow the government. But if they can engender enough fear, they can generate an atmosphere that will bring out every repressive demagogue in the country.”
Explaining the Huston Plan - Huston explains the rationale behind his radically repressive plan, telling Burlingame that the country was on the brink of mass insurrection and the FBI under J. Edgar Hoover was not doing nearly enough to combat the civil rights and antiwar protesters, particularly groups like the Black Panthers and Burlingame’s Weather Underground. By early 1970, many in the White House were ready to ease Hoover out of power; when, shortly thereafter, the mass protests against the Cambodia bombings (see February 23-24, 1969 and April 24-30, 1970) and the Jackson State and Kent State shootings (see May 4-5, 1970) occurred, Huston and others at the White House thought there was a far more organized and systematic underground, left-wing revolution going on than they had evidence to document. “We just didn’t believe we were getting the whole story,” he says.
Removing Hoover - Getting rid of Hoover and replacing him with someone more amenable to the White House’s agenda was the first goal, Huston says. The June 1970 “Interagency Committee on Intelligence” (see June 5, 1970) was designed to maneuver around Hoover and have him implicitly authorize counter-insurrection methods that he had always opposed, including “surreptitious entry” and “covert mail coverage.” The committee was the genesis of the Huston Plan. But Hoover stops the plan in its tracks by going through Attorney General John Mitchell. Whatever he said to Mitchell is not known, but Mitchell chewed out Huston and saw to it that the plan was terminated. Huston says that the unit of illegal campaign operatives later known as the “Plumbers” (see July 20, 1971) stems in part from the White House’s inability to force Hoover from power. Had Hoover made the FBI available to conduct the illegal burglaries and surveillances that Nixon wanted done—had Nixon supported the Huston Plan—the Plumbers would have never come into existence. “I find that totally indefensible,” Huston observes.
Ethical Confusion - Burlingame is bemused by Huston’s apparent ethical schizophrenia—on the one hand, Huston has come out strongly for constitutional freedoms, and on the other hand is now saying that his plan, which he himself has long admitted was blatantly illegal, would have avoided the entire Watergate contretemps and would have worked to bring the country into line. In fact, Huston asserts, he believed at the time that the Watergate conspiracy was completely legal. “I took the view that in internal security matters the president had the right to infringe on what would, in other circumstances, be constitutional rights, but that decision encompassed a decision that you forfeit the right to prosecute.” This view is why he left the Justice Department entirely out of the loop on his plan, he says.
Deliberately Keeping outside the Framework of the Law - The entire Huston plan would have never been used for anything except intelligence-gathering, he says. It was necessary for the plan to be exercised outside the structure of US law, he says. “[Y]ou don’t want a constitutional or legal mandate,” he says. “You don’t want to institutionalize the excesses required to meet extraordinary threats. The law just can’t anticipate all the contingencies.” He now thinks that he went too far with pushing for extraordinary powers; that if Hoover could have been eased out of power, the FBI could have done what needed doing without breaking the law. Burlingame writes that he cannot help but think that Huston is employing “tortured legalisms” to “cover his flank,” and questions Huston’s portrait of himself as an increasingly marginalized conservative idealist who became so disillusioned with the amoral power-mad bureaucrats of the Nixon administration that he walked out rather than further jeopardize his own principles. (Burlingame 10/1974)
In the aftermath of the Watergate scandal (see August 8, 1974), amendments to the Federal Election Campaign Act (FECA—see February 7, 1972) provide the option for full public financing for presidential general elections, matching funds for presidential primaries, and public expenditures for presidential nominating conventions. The amendments also set spending limits on presidential primaries and general elections as well as for House and Senate primaries. The amendments give some enforcement provisions to previously enacted spending limits on House and Senate general elections. They set strict spending guidelines: for presidential campaigns, each candidate is limited to $10 million for primaries, $20 million for general elections, and $2 million for nominating conventions; Senatorial candidates are limited to $100,000 or eight cents per eligible voter, whichever is higher, for primaries, and higher limits of $150,000 or 12 cents per voter for general elections; House candidates are limited to $70,000 each for primaries and general elections. Loans are treated as contributions. The amendments create an individual contribution limit of $1,000 to a candidate per election and a PAC (political action committee) contribution limit of $5,000 to a candidate per election (this provision will trigger what the Center for Responsive Politics will call a “PAC boom” in the late 1970s). The total aggregate contributions from an individual are set at $25,000 per year. Candidates face further restrictions on how much personal wealth they can contribute to their own campaign. The 1940 ban on contributions from government employees and contract workers (see 1940) is repealed, as are the 1971 limitations on media spending. Perhaps most importantly, the amendments create the Federal Election Commission (FEC) to oversee and administer campaign law. (Before, enforcement and oversight responsibilities were spread among the Clerk of the House, the Secretary of the Senate, and the Comptroller General of the United States General Accounting Office (GAO), with the Justice Department responsible for prosecuting violators (see 1967).) The FEC is led by a board of six commissioners, with Congress appointing four of those commissioners and the president appointing two more. The Secretary of the Senate and the Clerk of the House are designated nonvoting, exofficio commissioners. (Federal Elections Commission 1998; Campaign Finance Timeline 1999; Center for Responsive Politics 2002 ) Part of the impetus behind the law is the public outrage over the revelations of how disgraced ex-President Nixon’s re-election campaign was funded, with millions of dollars in secret, illegal corporate contributions being funneled into the Nixon campaign. (Campaign Finance Timeline 1999; Geraci 2006 )
Former Attorney General Richard Kleindienst pleads guilty to a misdemeanor charge resulting from his agreement not to pursue charges in the ITT corruption case (see 1969). Kleindienst admits to giving in to pressure from President Nixon and White House aide John Ehrlichman to drop the Justice Department’s investigation of ITT. He pleads guilty to failing to testify accurately before the Senate. The judge in the case fines Kleindienst $100 and gives him a 30-day suspended jail sentence, calling Kleindienst a man of the “highest integrity” but one who has “a heart that is too loyal.” (Stout 2/4/2000)
The Justice Department’s Office of Planning and Evaluation (OPE) submits a report on the role and actions of the FBI in the Watergate investigations. The report finds that, even with the attempts of former Attorneys General John Mitchell and Richard Kleindienst, White House aides John Dean and Jeb Magruder, and others to “mislead and thwart the Bureau’s legitimate line of inquiry,” and the “contrived covers” used to direct attention away from the White House, the FBI investigation was “the ultimate key to the solution of not only the Watergate break-in (see 2:30 a.m.June 17, 1972) but the cover itself.” The report continues: “There can be no question that the actions of former Attorneys General Mitchell and Kleindienst served to thwart and/or impede the Bureau’s investigative effort. The actions of John W. Dean at the White House and Jeb S. Magruder at the Committee to Re-elect the President were purposefully designed to mislead and thwart the Bureau’s legitimate line of inquiry. At every stage of the investigation there were contrived covers placed in order to mislead the investigators.” The OPE notes the following problems in the investigation, and provides explanations of some:
Providing information concerning ongoing investigations to the White House, and allowing Dean to actually sit in on interviews of White House personnel (see June 22, 1972).
Failing to interview key members of CREEP, the Nixon re-election campaign organization, as well as allowing CREEP attorneys to sit in on interviews of CREEP employees and allowing those attorneys access to FBI investigative materials. The report says that the investigation initially focused on James McCord and E. Howard Hunt, and interviewed CREEP officials tied directly to them. The net was widened later on. However, the report acknowledges that many CREEP employees undoubtedly lied to FBI investigators, “most notably John Mitchell, Jeb Magruder, Bart Porter, Sally Harmony, and Maurice Stans.” Porter and Magruder in particular “lied most convincingly.” Another CREEP employee, Robert Reisner (Magruder’s assistant), was not interviewed because Reisner successfully hid from FBI investigators. The FBI believes it was Reisner who cleaned out the “Operation Gemstone” files from Magruder’s office (see January 29, 1972 and September 29, 1972). Numerous other financial and other files were also destroyed after being requested by the FBI, most notably Alfred Baldwin’s surveillance tapes and logs from the Democratic offices in the Watergate (see May 29, 1972). Many of these files were destroyed by G. Gordon Liddy. “It is apparent that most [CREEP] people in the summer of 1972 were quite willing to lie and/or tell us considerably less than the full truth,” the report notes.
An untenable delay in searching and securing Watergate burglar E. Howard Hunt’s desk in the White House, putting the contents of that desk at risk of being removed, and the “[a]lleged activities by former Acting Director [L. Patrick] Gray to limit, contain, or obstruct FBI investigation of Watergate” (see June 22, 1972). Gray is known to have destroyed materials from Hunt’s desk given to him by Dean, and is known to have extensively interfered with the FBI’s investigation (see June 28-29, 1972 and Late December 1972). The report notes that while it cannot find specific evidence that Gray broke any laws in his attempts to impede the FBI’s investigation into the Watergate conspiracy, it is clear that Gray cooperated with the White House, specifically through Dean, to ensure that the White House was always aware of what avenues of investigation were being pursued. The OPE says that Gray’s destruction of files from Hunt’s safe did not necessarily impede the FBI’s investigation, because it has no way of knowing what was in those files. The report says that it is unfortunate that “many people make no distinction between the FBI’s actions and Mr. Gray’s actions.”
Failure to interview key individuals with knowledge of the suspicious monies found in the burglars’ bank accounts.
Failing to secure and execute search warrants for the burglars’ homes, automobiles, and offices. The OPE says that many of those issuing this criticism “should know better,” and claims that the FBI agents involved did their level best to obtain search warrants within the bounds of the law. The report notes that after the burglary, the assistant district attorney prosecuting the case, Earl Silbert, did not believe there was probable cause to search burglar James McCord’s home or office until after July 10, 1972, when Baldwin told the FBI that he had taken surveillance equipment to McCord’s home (see June 17, 1972). Even then, Silbert decided that because of the amount of time—23 days—that had expired, a search warrant would have been pointless.
Failing to identify and interview a number of people listed in the burglars’ address books. The OPE report notes that the decision to interview far less than half of the names in the books was made by FBI agents in the Miami field office, and due to the “fast moving extensive investigation which was then being conducted,” the decision to only track down a selected few from the books was right and proper. The report notes that subsequent interviews by reporters of some of the people in the address books elicited no new information. The report also notes that Gray refused to countenance interviews of the remaining subjects in the address book while the trial of the seven burglars (see January 8-11, 1973) was underway.
Failing to find and remove a surveillance device from the Democratic National Committee headquarters (see September 13, 1972). The OPE calls this failure “inexplicable.”
Failure to thoroughly investigate CREEP agent Donald Segretti (see June 27, 1971, and Beyond) and other CREEP operatives. The OPE finds that because Segretti was initially uncooperative with FBI investigators, and because an “extensive investigation” turned up nothing to connect Segretti with the Watergate conspiracy, the agents chose not to continue looking into Segretti’s actions. Only after press reports named Segretti as part of a massive, White House-directed attempt to subvert the elections process (see October 7, 1972) did the FBI discuss reopening its investigation into Segretti. After reviewing its information, the FBI decided again not to bother with Segretti. The OPE finds that the decision was valid, because Segretti had not apparently broken any federal laws, and the FBI does not conduct violations of election laws unless specifically requested to do so by the Justice Department. The report also says that politics were a concern: by opening a large, extensive investigation into the Nixon campaign’s “dirty tricks,” that investigation might have impacted the upcoming presidential elections.
Media leaks from within the FBI concerning key details about the investigation (see May 31, 2005). The report finds no evidence to pin the blame for the leaks on any particular individual. The report notes that New York Times reporter John Crewdson seemed to have unwarranted access to FBI documents and files, but says it has turned that matter over to another agency inside the bureau.
Failing to interview, or adequately interview, key White House officials such as H. R. Haldeman, Charles Colson, Dwight Chapin, and others. The report justifies the decision not to interview Haldeman because the FBI had no information that Haldeman had any knowledge of, or involvement in, the burglary itself.
“Alleged attempt on part of Department of Justice officials to limit, contain, or obstruct FBI investigation.” The report is particularly critical of Kleindienst’s concealment of his contact with Liddy about the burglary (see June 17, 1972).
“Alleged attempt by CIA officials to interfere, contain, or impede FBI Watergate investigation.” The report notes that during the Senate Watergate Committee hearings, Republican co-chairman Howard Baker (R-TN) tried repeatedly to assert that the CIA was behind the burglary. The report calls Baker’s theory “intriguing” but says no evidence of CIA involvement on any operational level was ever found. The report notes that there is still no explanation for the discussions regarding the CIA paying the burglars (see June 26-29, 1972), or the CIA’s involvement with Hunt before the burglary—loaning him cameras, providing him with materials for a disguise, and helping Hunt get film from the first burglary developed. According to the report, Gray stopped the FBI from pursuing these leads. The FBI report says that the CIA involvement apparently had nothing to do with the Watergate burglary, but was more in support of Hunt’s activities with the Ellsberg break-in (see September 9, 1971).
“Alleged activities on part of White House officials to limit, contain, or obstruct FBI Watergate investigation (Dean, Haldeman, Ehrlichman, Colson, et cetera).” The report notes, “There is absolutely no question but that the president’s most senior associates at the White House conspired with great success for nine months to obstruct our investigation.” The report says it was “common knowledge” throughout the investigation that the White House was paying only “lip service” to investigators’ requests for honest, complete answers; the report cites Dean as a specific offender. (O.T. Jacobson 7/5/1974 )
During a White House press briefing, Press Secretary Jerald terHorst is grilled about the fate of the thousands of hours of recordings made by former President Richard Nixon, recordings clandestinely made by Nixon of conversations with his aides, staffers, advisers, and visitors (see February 1971 and July 13-16, 1973). The practice of secretly recording White House conversations began with Franklin D. Roosevelt, but Nixon had gone far beyond the simple recording systems made by his predecessors. He had hidden microphones in the lamps and room fixtures in the Oval Office, his office in the Executive Office Building (EOB), the Cabinet Room, and in the Aspen Lodge at Camp David. In all, he made over 3,700 hours of recordings between July 1971 and July 1973. The tapes are loaded with evidence of criminal conspiracies and deeds involving Nixon and dozens of his closest advisers and aides, and are of intense interest to reporters and the Watergate prosecutors. TerHorst causes a stir when he tells listeners that the tapes are currently being guarded by Secret Service personnel, and “they have been ruled to be the personal property” of Nixon. Ruled by whom? reporters demand. The “ruling” is based on a “formal,” albeit unwritten, legal opinion by White House lawyers Fred Buzhardt and James St. Clair, who had helped frame Nixon’s Watergate defense. TerHorst is unaware of the legal dispute over the tapes brewing in the White House and in the office of Leon Jaworski, the Watergate special prosecutor. Ford was not involved in the decision to turn the materials over to Nixon, says terHorst, but concurs in it. TerHorst is speculating far more than the reporters realize; he has been given little information and only scanty guidance from Buzhardt. When asked if the decision to give the documents and tapes to Nixon comes from “an agreement among the different staffs, the special prosecutor, the Justice Department, and the White House legal staff,” terHorst replies unsteadily, “I assume there would be because I’m sure neither one would just take unilateral action.” (Werth 2006, pp. 71-75)
The Central Intelligence Agency (CIA) has repeatedly, and illegally, spied on US citizens for years, reveals investigative journalist Seymour Hersh in a landmark report for the New York Times. Such operations are direct violations of the CIA’s charter and the law, both of which prohibit the CIA from operating inside the United States. Apparently operating under orders from Nixon officials, the CIA has conducted electronic and personal surveillance on over 10,000 US citizens, as part of an operation reporting directly to then-CIA Director Richard Helms. In an internal review in 1973, Helms’s successor, James Schlesinger, also found dozens of instances of illegal CIA surveillance operations against US citizens both past and present (see 1973). Many Washington insiders wonder if the revelation of the CIA surveillance operations tie in to the June 17, 1972 break-in of Democratic headquarters at Washington’s Watergate Hotel by five burglars with CIA ties. Those speculations were given credence by Helms’s protests during the Congressional Watergate hearings that the CIA had been “duped” into taking part in the Watergate break-in by White House officials.
Program Beginnings In Dispute - One official believes that the program, a successor to the routine domestic spying operations during the 1950s and 1960s, was sparked by what he calls “Nixon’s antiwar hysteria.” Helms himself indirectly confirmed the involvement of the Nixon White House, during his August 1973 testimony before the Senate Watergate investigative committee (see August 1973).
Special Operations Carried Out Surveillance - The domestic spying was carried out, sources say, by one of the most secretive units in CI, the special operations branch, whose employees carry out wiretaps, break-ins, and burglaries as authorized by their superiors. “That’s really the deep-snow section,” says one high-level intelligence expert. The liaison between the special operations unit and Helms was Richard Ober, a longtime CI official. “Ober had unique and very confidential access to Helms,” says a former CIA official. “I always assumed he was mucking about with Americans who were abroad and then would come back, people like the Black Panthers.” After the program was revealed in 1973 by Schlesinger, Ober was abruptly transferred to the National Security Council. He wasn’t fired because, says one source, he was “too embarrassing, too hot.” Angleton denies any wrongdoing.
Supposition That Civil Rights Movement 'Riddled' With Foreign Spies - Moscow, who relayed information about violent underground protesters during the height of the antiwar movement, says that black militants in the US were trained by North Koreans, and says that both Yasser Arafat, of the Palestinian Liberation Organization, and the KGB were involved to some extent in the antiwar movement, a characterization disputed by former FBI officials as based on worthless intelligence from overseas. For Angleton to make such rash accusations is, according to one member of Congress, “even a better story than the domestic spying.” A former CIA official involved in the 1969-70 studies by the agency on foreign involvement in the antiwar movement says that Angleton believes foreign agents are indeed involved in antiwar and civil rights organizations, “but he doesn’t know what he’s talking about.”
'Cesspool' of Illegality Distressed Schlesinger - According to one of Schlesinger’s former CIA associates, Schlesinger was distressed at the operations. “He found himself in a cesspool,” says the associate. “He was having a grenade blowing up in his face every time he turned around.” Schlesinger, who stayed at the helm of the CIA for only six months before becoming secretary of defense, informed the Department of Justice (DOJ) about the Watergate break-in, as well as another operation by the so-called “plumbers,” their burglary of Daniel Ellsberg’s psychiatrist’s office after Ellsberg released the “Pentagon Papers” to the press. Schlesinger began a round of reforms of the CIA, reforms that have been continued to a lesser degree by Colby. (Some reports suggest that CIA officials shredded potentially incriminating documents after Schlesinger began his reform efforts, but this is not known for sure.) Intelligence officials confirm that the spying did take place, but, as one official says, “Anything that we did was in the context of foreign counterintelligence and it was focused at foreign intelligence and foreign intelligence problems.”
'Huston Plan' - But the official also confirms that part of the illegal surveillance was carried out as part of the so-called “Huston plan,” an operation named for former White House aide Tom Charles Huston (see July 26-27, 1970) that used electronic and physical surveillance, along with break-ins and burglaries, to counter antiwar and civil rights protests, “fomented,” as Nixon believed, by so-called black extremists. Nixon and other White House officials have long denied that the Huston plan was ever implemented. “[O]bviously,” says one government intelligence official, the CIA’s decision to create and maintain dossiers on US citizens “got a push at that time.…The problem was that it was handled in a very spooky way. If you’re an agent in Paris and you’re asked to find out whether Jane Fonda is being manipulated by foreign intelligence services, you’ve got to ask yourself who is the real target. Is it the foreign intelligence services or Jane Fonda?” Huston himself denies that the program was ever intended to operate within the United States, and implies that the CIA was operating independently of the White House. Government officials try to justify the surveillance program by citing the “gray areas” in the law that allows US intelligence agencies to encroach on what, by law, is the FBI’s bailiwick—domestic surveillance of criminal activities—when a US citizen may have been approached by foreign intelligence agents. And at least one senior CIA official says that the CIA has the right to engage in such activities because of the need to protect intelligence sources and keep secrets from being revealed.
Surveillance Program Blatant Violation of Law - But many experts on national security law say the CIA program is a violation of the 1947 law prohibiting domestic surveillance by the CIA and other intelligence agencies. Vanderbilt University professor Henry Howe Ransom, a leading expert on the CIA, says the 1947 statute is a “clear prohibition against any internal security functions under any circumstances.” Ransom says that when Congress enacted the law, it intended to avoid any possibility of police-state tactics by US intelligence agencies; Ransom quotes one Congressman as saying, “We don’t want a Gestapo.” Interestingly, during his 1973 confirmation hearings, CIA Director Colby said he believed the same thing, that the CIA has no business conducting domestic surveillance for any purpose at any time: “I really see less of a gray area [than Helms] in that regard. I believe that there is really no authority under that act that can be used.” Even high-level government officials were not aware of the CIA’s domestic spying program until very recently. “Counterintelligence!” exclaimed one Justice Department official upon learning some details of the program. “They’re not supposed to have any counterintelligence in this country. Oh my God. Oh my God.” A former FBI counterterrorism official says he was angry upon learning of the program. “[The FBI] had an agreement with them that they weren’t to do anything unless they checked with us. They double-crossed me all along.” Many feel that the program stems, in some regards, from the long-standing mistrust between the CIA and the FBI. How many unsolved burglaries and other crimes can be laid at the feet of the CIA and its domestic spying operation is unclear. In 1974, Rolling Stone magazine listed a number of unsolved burglaries that its editors felt might be connected with the CIA. And Senator Howard Baker (R-TN), the vice chairman of the Senate Watergate investigative committee, has alluded to mysterious links between the CIA and the Nixon White House. On June 23, 1972, Nixon told his aide, H.R. Haldeman, “Well, we protected Helms from a hell of a lot of things.” (Hersh 12/22/1974 )
FBI official R. E. Lewis writes an internal memo suggesting that the FBI disclose “some information from the Watergate investigation aimed at restoring to the FBI any prestige lost during that investigation. He argues, “Such information could also serve to dispel the false impression left by the book All the President’s Men (see June 15, 1974) that its authors, Carl Bernstein and Bob Woodward, not the FBI, solved the Watergate case.”
FBI Ahead of Reporters - “[A] comparison of the chronology of our investigation with the events cited in All the President’s Men will show we were substantially and constantly ahead of these Washington Post investigative reporters,” Lewis writes. “In essence, they were interviewing the same people we had interviewed but subsequent to our interviews and often after the interviewer had testified before the grand jury. The difference, which contributes greatly to the false image, is that the Washington Post blatantly published whatever they learned (or thought they learned) while we reported our findings to the US attorney and the Department [of Justice] solely for prosecutorial consideration.”
Decision Not to Go Public - The FBI will decide not to make any of its information public, citing ongoing prosecutions. In 2005, Woodward will counter: “What Long didn’t say—and what Felt [FBI deputy director Mark Felt, Woodward’s “Deep Throat”—see May 31, 2005] understood—was that the information wasn’t going anywhere until it was public. The US attorney and the Justice Department failed the FBI, as they folded too often to White House and other political pressure to contain the investigation and prosecution to the Watergate bugging (see 2:30 a.m.June 17, 1972). There was also a failure of imagination on the part of lots of experienced prosecutors, including US Attorney Earl Silbert, who could not initially bring himself to believe that the corruption ran to the top of the Justice Department and the White House. Only when an independent special prosecutor was appointed (see May 18, 1973) did the investigation eventually go to the broader sabotage and espionage matters. In other words, during 1972, the cover-up was working exceptionally well.” (Woodward 2005, pp. 120-121)
Staffers from the Church Committee (see April, 1976), slated with investigating illegal surveillance operations conducted by the US intelligence community, approach the NSA for information about Operation Shamrock (see 1945-1975). The NSA ostensibly closes Shamrock down the very same day the committee staffers ask about the program. Though the Church Committee focuses on a relatively narrow review of international cables, the Pike Committee in the House (see January 29, 1976) is much more far-ranging. The Pike Committee tries and fails to subpoena AT&T, which along with Western Union collaborated with the government in allowing the NSA to monitor international communications to and from the US. The government protects AT&T by declaring it “an agent of the United States acting under contract with the Executive Branch.” A corollary House subcommittee investigation led by Bella Abzug (D-NY)—who believes that Operation Shamrock continues under a different name—leads to further pressure on Congress to pass a legislative remedy. The Ford administration’s counterattack is given considerable assistance by a young lawyer at the Justice Department named Antonin Scalia. The head of the Office of Legal Counsel, Scalia’s arguments in favor of continued warrantless surveillance and the unrestricted rights and powers of the executive branch—opposed by, among others, Scalia’s boss, Attorney General Edward Levi—do not win out this time; Ford’s successor, Jimmy Carter, ultimately signs into law the Foreign Intelligence Surveillance Act (see 1978). But Scalia’s incisive arguments win the attention of powerful Ford officials, particularly Chief of Staff Donald Rumsfeld and Rumsfeld’s assistant, Dick Cheney. (Dubose and Bernstein 2006, pp. 36-37) Scalia will become a Supreme Court Justice in 1986 (see September 26, 1986).
Following the revelations of the Church Committee’s investigation into the excesses of the CIA (see April, 1976), and the equally revealing New York Times article documenting the CIA’s history of domestic surveillance against US citizens for political purposes (see December 21, 1974), Congress passes the Foreign Intelligence Surveillance Act (FISA). In essence, FISA prohibits physical and electronic surveillance against US citizens except in certain circumstances affecting national security, under certain guidelines and restrictions, with court warrants issued by the Foreign Intelligence Surveillance Court (FISC), operating within the Department of Justice as well as with criminal warrants. FISA restricts any surveillance of US citizens (including US corporations and permanent foreign residents) to those suspected of having contact with “foreign powers” and terrorist organizations. FISA gives a certain amount of leeway for such surveillance operations, requiring that the administration submit its evidence for warrantless surveillance to FISC within 24 hours of its onset and keeping the procedures and decisions of FISC secret from the public. (Tien 9/27/2001; Legal Information Institute 11/30/2004) On September 14, 2001, Congress will pass a revision of FISA that extends the time period for warrantless surveillance to 72 hours. The revision, part of the Intelligence Authorization Act of 2002, will also lower the standard for the issuance of wiretap warrants and make legal “John Doe,” or generic, warrants that can be used without naming a particular target. FISA revisions will also expand the bounds of the technologies available to the government for electronic and physical surveillance, and broaden the definitions of who can legally be monitored. (US Senate 9/14/2001; Senator Jane Harman 2/1/2006)
Former FBI Deputy Director W. Mark Felt, who served before and during the Watergate era, denounces the attempts by the Nixon administration to control the FBI and the Justice Department. Felt, who unbeknownst to the public was Washington Post reporter Bob Woodward’s celebrated inside source nicknamed “Deep Throat” (see May 31, 2005), writes scathingly in his memoir The FBI Pyramid of what he calls the “White House-Justice Department cabal” that worked to conceal the Watergate conspiracy. He does not reveal himself to be Woodward’s source. (Woodward 2005, pp. 33)
In 1993, the Departments of Justice and Agriculture report to Congress that over 313 “animal release” incidents have occurred, usually involving activists breaking into university or private research facilities and releasing animals being used for research and vivisection (see 1979 and 1992). The most active group behind these releases, or “liberations” as the activists term them, is the Animal Liberation Front (ALF—see 1976). Investigators call the ALF the most significant “radical fringe” animal rights group currently operating in the US. (Anti-Defamation League 2005)
Lieutenant Colonel Oliver North uses a sophisticated brand of software known as PROMIS to track potential security threats in the United States. Intelligence officials will later tell Wired magazine that North has a command center connected to a larger Justice Department facility utilizing the software. “According to both a contractor who helped design the center and information disclosed during the Iran-Contra hearings,” North maintains a “similar, but smaller, White House operations room… connected by computer link to the [Justice Department]‘s command center.” According to Wired, North uses computers in his operations center to track “dissidents and potential troublemakers within the United States as part of a domestic emergency preparedness program.” North is assigned to work with FEMA on the secretive Continuity of Government (COG) program from 1982 to 1984 (see 1982-1984). Wired will later report, “Using PROMIS, sources point out, North could have drawn up lists of anyone ever arrested for a political protest, for example, or anyone who had ever refused to pay their taxes.” Compared to PROMIS, Wired notes, “Richard Nixon’s enemies list or Sen. Joe McCarthy’s blacklist look downright crude.” (Fricker 3/1993)
Due to apparent problems with the use of intelligence information in criminal proceedings, a set of procedures that later becomes known as the “wall” begins to take shape. The FBI, which performs both criminal and counterintelligence functions, normally obtains two types of warrants: criminal warrants and warrants under the recently passed Foreign Intelligence Surveillance Act (FISA). FISA warrants are thought to be easier to obtain, as the FBI only has to show that there is probable cause to believe the subject is a foreign power or an agent of one. Sometimes a case begins as an intelligence investigation, but results in a criminal prosecution. In court the defense can then argue that the government has abused FISA and obtained evidence by improperly using the lower standard, so any evidence obtained under FISA should not be allowed in court. Although the government can use information it happens to obtain under a FISA warrant for a criminal prosecution, if the purpose of obtaining information under a FISA warrant is for a criminal prosecution, this is in violation of the Fourth Amendment’s prohibition against warrantless searches. To combat this apparent problem, the special FISA Court decides that for a warrant under FISA to be granted, collecting intelligence information must be the primary purpose, although such information can be used in a criminal investigation provided the criminal investigation does not become the primary purpose of the surveillance or search. As a result of these procedures, when the FBI is conducting an intelligence investigation and uncovers evidence of criminal activity, it no longer consults local United States Attorneys’ Offices, but prosecutors within the Justice Department’s Criminal Division. The prosecutors then decide when the local attorney’s office should become involved. (US Department of Justice 11/2004, pp. 21-24 ) The wall will be extended in the 1990s (see July 19, 1995) and will be much criticized before and after 9/11 (see July 1999 and April 13, 2004).
A PROMIS oversight committee is formed at the Justice Department to supervise the implementation of the PROMIS software at US attorneys’ offices. The committee’s members are initially Associate Attorney General Rudolph Giuliani, Associate Deputy Attorney General Stanley E. Morris, Director of the Executive Office for US Attorneys William P. Tyson, and the Justice management division’s Assistant Attorney General for Administration Kevin D. Rooney. The associate attorney general is the chairman of the committee. The date on which the committee is established is unclear, but it will be mentioned in a memo dated August 13, 1981, so it must be at this date at the latest. Lowell Jensen will also be significantly involved in the committee, first as the associate attorney general for the criminal division until early 1983, and then as associate attorney general, meaning he also chairs the committee. The main official who reports to the committee is PROMIS project manager C. Madison “Brick” Brewer, although he will not be hired by the department until the start of the next year (see April 1982). (US Congress 9/10/1992)
The Justice Department issues a request for proposals (RFP) for the installation of public domain PROMIS software. Two of the 104 companies that ask for the request for proposals submit bids. However, one of them, Systems Architects, Inc., has problems in its bid and the contract will be awarded to the other, Inslaw (see March 1982).
Problems with Installation Concept - The installation is to be on minicomputers and word processors, although both Inslaw, which developed PROMIS, and other potential bidders had previously advised the department not to try to perform PROMIS functions on word processing equipment, as it is not powerful enough. One reason for this is that PROMIS involves over 500,000 lines of Common Business Oriented Language (COBOL) program code and requires a very large-capacity computer at this time. In addition, Inslaw advises the department to move toward the use of more powerful computers that could perform both case management and word processing. However, the department ignores the advice.
Existence of Privately-Funded Enhancements 'Explicit' - There will later be an argument about how much the department should pay Inslaw for the software. This dispute will turn on privately-funded enhancements to the application Inslaw says it makes after an initial version of PROMIS was developed using government money. According to a report drafted by the House Judiciary Committee, during the contract negotiations, Inslaw is “explicit in stating to the department that its version of PROMIS had been enhanced with private funds and future enhancements funded outside the department’s contract were expected.” Nevertheless, the department will say that it owns the software, and will cite as support amendments to the RFP that make available to all bidders copies of the pilot project software, and state that the RFP does not anticipate redevelopment of the public domain PROMIS software used in the pilot offices. If any alterations are made under the contract, they are to be made available to the offices using a current version. Regarding the amendments, the committee will comment, “Unfortunately, this language may also have blinded department management to the idea that Inslaw had made privately funded enhancements that were its property.” (US Congress 9/10/1992)
Jack Rugh of the the Office of Management Information Systems Support (OMISS) at the Justice Department’s Executive Office of US Attorneys provides a copy of a government-owned version of PROMIS to Bob Bussey of the Colorado District Attorneys’ Council. The version is a pilot one for Prime computers and is provided at the request of the department’s PROMIS project manager, Madison “Brick” Brewer. Rugh will later discuss the availability of other government-owned versions of PROMIS with Bussey and will provide him with a version for DEC computers early next year. (US Congress 9/10/1992) This is one of several occasions when OMISS provides versions of the software to entities outside the Justice Department (see April 22, 1983).
Jack Rugh of the the Office of Management Information Systems Support (OMISS) at the Justice Department’s Executive Office for US Attorneys repeatedly tells Jean Gollatz of the Pennsylvania State Government that a pilot government-owned version of the PROMIS software for Prime computers is available for her use, if she wants it. He also provides her with a copy of a request for proposal used by his office for a computer contract at some time in early 1982, and says that his office’s enhanced Prime version should be available by mid-summer 1983. (US Congress 9/10/1992) This is one of several occasions when OMISS discusses providing versions of the software to other entities (see April 22, 1983).
Inslaw wins a $9.6 million contract from the Justice Department to install the public domain vesion of PROMIS application in 20 US attorneys’ offices as a pilot program. PROMIS is an application designed to be used by prosecutors to keep track of case records (see Mid-1970s). If the trial installation is successful, the company will install PROMIS in the remaining 74 federal prosecutors’ offices around the country. The contract is also for the necessary training, maintenance, and support for three years. According to William Hamilton, one of Inslaw’s owners, the eventual market for complete automation of the Federal court system is worth up to $3 billion. However, this is the last contract Inslaw receives from the Justice Department for PROMIS, as the deal becomes mired in a series of disputes. (US Congress 9/10/1992; Fricker 3/1993)
One month after the Justice Department and Inslaw sign a contract on the installation of PROMIS software (see March 1982), a departmental official raises the possibility of terminating the contract. At a meeting of the PROMIS Project Team, project manager C. Madison Brewer, the Justice Department’s contracting officer Peter Videnieks, and Jack Rugh, the acting assistant director for the Office of Management Information Systems Support, discuss terminating the contract with Inslaw for convenience of the government, according to notes taken at the meeting. “Discussed Inslaw’s ‘PROMIS II’ memo, termination for convenience discussed,” read Videnieks’ notes. When the contract becomes the subject of a series of legal actions, the three men begin to suffer from what the House Judiciary Committee will call “severe memory loss” over what happened at the meeting. In a sworn statement, Brewer will say he does not recall the details of the meeting, but if this recommendation were made, it was made “in jest.” However, he will admit to being upset with Inslaw’s handling of the contract and its demand for payment for enhancements it had made privately to the application (see April 2, 1982). Bankruptcy Court Judge George Bason will comment: “All of the [Justice Department] witnesses who attended the April 14, 1982 meeting professed a total lack of memory about it. They testified they had no recollection of any such meeting. This court disbelieves that testimony. None of them could offer any credible explanation, or indeed any explanation, of the meaning of Videnieks’ handwritten notes other than what this court finds to be their meaning.… These notes constitute a ‘smoking gun’ that clearly evidences Brewer’s intense bias against Inslaw, his single-minded intent to drive INSLAW out of business, and Rugh’s and Videnieks’ complicity.” (US Congress 9/10/1992)
Inslaw asks the Justice Department to appoint a manager other than C. Madison “Brick” Brewer to run the PROMIS project that Inslaw is working on for the department. Brewer had formerly worked for Inslaw, but had left under a cloud (see 1976), and later been hired by the department to supervise the contract between it and Inslaw (see April 1982). Following initial problems with Brewer (see April 14, 1982 and April 19, 1982), Inslaw asks Associate Deputy Attorney General Stanley E. Morris to replace him, as Inslaw owner William Hamilton thinks he has antagonistic feelings toward Inslaw due to their past. However, departmental officials say that Brewer’s skills and prior employment with Inslaw were important factors in his hiring by the department. Laurence McWhorter, deputy director of the Executive Office for US Attorneys, will later say that Brewer’s employment by Inslaw qualified him to “run the implementation of a case tracking system for US attorneys” and “to basically direct the implementation of a case tracking system in US attorneys offices.” The House Judiciary Committee will comment, “It is difficult to understand, however, how… McWhorter could make this statement” because Brewer himself admitted that at the time he left Inslaw, “he had very little, if any, experience in managing computer projects and government ADP [automated data processing] procurement law,” and he also “admitted to a lack of experience or detailed understanding of computers or software.” (US Congress 9/10/1992)
Justice Department manager C. Madison Brewer displays his hostility towards Inslaw, Inc., in a meeting to discuss the implementation of the PROMIS application. An Inslaw memorandum of the meeting says, “Brewer seized upon this issue [that Inslaw wanted to be paid for privately-financed enhancements it had made to the software] and launched into a tirade which was very emotional, unorganized, and quite illogical.” Brewer’s complaints are:
The memo claiming the payments is “typical of Inslaw and [Inslaw owner] Bill Hamilton and that it was self-serving and unnecessary.”
How did the Justice Department “know that we might say work was not finished under our government contracts and the next week copyright the work and begin selling it back to the Justice Department?”
A press release about a contract awarded to Inslaw was inaccurate because “it described West Virginia as a successful implementation when in fact, they had spent an additional 20K [$20,000] on the project and Lanier was doing all the work.”
The memo had caused “all kinds of problems in Justice and had many people upset.”
“Illinois Criminal Justice Coordinating Council, Michigan Prosecuting Attorney’s Association, Andy Voight, and others,” would say that “Inslaw did not do good or successful work.”
“Hamilton started the PROMIS system as an employee of the DC, USAO [US Attorneys Office in Washington, DC]. And that all of the software was developed with Federal funds and what right did Hamilton have to try to claim ownership of the software.”
The memo adds, “All of these comments were based with an obvious dislike of Bill Hamilton and a resentment for the success of Inslaw personified in him.” (US Congress 9/10/1992)
Inslaw enhances its PROMIS software under contract to the Bureau of Justice Statistics, part of the Justice Department. The improvement, known as the “printed inquiry enhancement,” is delivered to the department on May 17, 1982. As the development of the original software and this enhancement is government-funded (see Mid-1970s), Inslaw cannot charge for providing the software to the government solely by virtue of this improvement. However, Inslaw also says it makes privately-funded enhancements at this time, enabling it to charge a fee for a version of the application with these enhancements (see April 2, 1982 and July 17, 1982). (US Congress 9/10/1992)
Inslaw’s attorney James Rogers writes to the Justice Department in an attempt to allay fears the department has about the implementation of the company’s PROMIS software for it. Rogers provides Associate Deputy Attorney General Stanley E. Morris with a detailed description of what the company plans to do to market the software commercially from the next month, and asks that the department respond to Inslaw to “ensure that these representations are correct.” Rogers says that the version of PROMIS the company will market comprises three parts: (1) the original application developed with government money (see Mid-1970s); (2) enhancements made by Inslaw using private money (see April 2, 1982 and July 17, 1982); and (3) an enhancement made for the Bureau of Justice Statistics (see Before May 17, 1982). Parts (1) and (3) do not entitle Inslaw to market the software commercially themselves. However, part (2) does. At the Justice Department, both C. Madison “Brick” Brewer, who supervises the PROMIS contract, and Peter Videnieks, the department’s contracting officer, are unhappy with this intention. The House Judiciary Committee will comment that this letter is “followed by a very antagonistic meeting” between Brewer and Inslaw representatives, and that Brewer and Videnieks continue “to believe that, because the department was currently funding the implementation of PROMIS, they could ignore Inslaw’s proprietary interest in the privately funded enhancements made to the PROMIS software.” (US Congress 9/10/1992)
Associate Deputy Attorney General Stanley Morris writes to James Rogers, an attorney acting for Inslaw, and admits that the company owns privately funded improvements to the PROMIS software. Morris first points out that part of the software was financed by the government: “We agree that the original PROMIS, as defined in your letter of May 26, 1982 (see May 26, 1982), is in the public domain. We also agree that the printed inquiry enhancement is in the public domain.” This means that Inslaw could never charge the department for the use of software comprising only the original application and the printed inquiry enhancement (although it could of course charge for installation and maintenance). However, Morris adds, “To the extent that any other enhancements to the system were privately funded by Inslaw and not specified to be delivered to the Department of Justice under any contract or other arrangement, Inslaw may assert whatever proprietary rights it may have.” This means the department agrees that Inslaw can sell a version of the software with privately-funded enhancements. (US Congress 9/10/1992) This statement is made in response to a letter sent by lawyers acting for Inslaw founder William Hamilton, informing the department that Inslaw intends to become a private company, and asking it to waive any proprietary rights it might claim to the enhanced version. Clarification will be provided in a 1988 deposition in which Deputy Attorney General Arnold Burns will say, “Our lawyers were satisfied that Inslaw’s lawyers could sustain the claim in court, that we had waived those [proprietary] rights.” (Fricker 3/1993)
Peter Videnieks, the Justice Department’s contracting officer, writes to Inslaw and says that it is in default of a clause in a contract between it and the government on the installation of PROMIS software. The clause concerns advance payments made by the department, which Inslaw needs to receive for its work under the contract in order to keep on operating as a business. Due to Inslaw’s poor financial situation, the House Judiciary Committee will comment that withholding the advance payments would have a “devastating impact” on the company, and Videnieks will later say he was aware of this, stating, “I think I was advised at the same time that Inslaw may indeed have difficulty in meeting the December payroll, and I think in general I was advised that they were in bad financial condition.” Due to its lack of cash, Inslaw had assigned rights to the advance payments to a financial institution to secure a line of credit. Justice Department PROMIS project manager C. Madison “Brick” Brewer will say that the reason the department is considering terminating the advance payments is a loan Inslaw has from the Bank of Bethesda, under which a lien was placed on the advance payments received by Inslaw from a specific account (not the account itself). According to Brewer, the lien is contrary to the contract and places the government in financial risk. (US Congress 9/10/1992)
A technical representative for the Justice Department formally asks Inslaw for a copy of the PROMIS software currently being used by US attorneys’ offices. The department will later say that this request is motivated by concern over the financial viability of Inslaw, although the company is in financial difficulty because the government is withholding advance payments it owes (see November 10, 1982). At this time, the department has not yet obtained the minicomputer hardware for each attorney’s office and Inslaw has arranged for the largest US attorneys’ offices to use PROMIS on a time-sharing basis. (US Congress 9/10/1992)
Peter Videnieks, the Justice Department’s contracting officer, writes to Inslaw to demand that it turn over all computer programs and supporting documentation relating to a contract to install PROMIS software for the department (see March 1982). In response, Inslaw says it will not do this without the department modifying the contract between them to acknowledge that it has inserted privately-funded enhancements into a public domain version developed for the department. This modification is apparently required because the department is using a time-share version of the application in advance of full installation, and Inslaw’s other timesharing customers also use a version with the enhancements. The department then says that the original contract called for software in which the government has unlimited rights, and asks Inslaw to identify the parts of the software it claims are proprietary. Inslaw offers to provide the enhanced software to the 94 attorneys’ offices covered by the contract at no extra charge, provided the department agrees to Inslaw’s rights and does not disseminate the software beyond these offices. However, Videnieks will later tell investigators for the House Judiciary Committee that the department believed that it had unlimited rights to any versions of PROMIS, and if restrictions were placed on data rights, then this would not satisfy Inslaw’s obligation under the contract. (US Congress 9/10/1992)
The Justice Department’s PROMIS project manager, C. Madison “Brick” Brewer, writes a memo about potential developments in the project. In the memo, he says he is concerned about the possibility Inslaw, the company that is implementing the PROMIS software, may go bankrupt, and that staff at the Executive Office for US Attorneys may need to take over the project. Brewer also mentions the possibility that the contract with Inslaw could be terminated by the department. Inslaw will enter bankruptcy in 1985, at least partially as a result of the department withholding payments from it (see February 1985). (US Congress 9/10/1992)
The Justice Department makes a counter-proposal in the dispute over whether Inslaw should provide an enhanced version of the PROMIS software and documentation to the department to ensure against the company’s bankruptcy (see December 6, 1982). The counter-proposal is made in a letter from Peter Videnieks, the department’s contracting officer, to Harvey Sherzer, an attorney for Inslaw. Videnieks still wants a copy of the enhanced PROMIS software, but is willing to limit the software’s dissemination to the attorneys’ offices contemplated by the original contract. However, the department does not admit that Inslaw has made privately-funded enhancements to the software, so this limitation on dissemination will only apply if Inslaw can demonstrate the privately-funded enhancements that it claims have actually been made. Nevertheless, no mechanism for producing such proof will be specified. If Inslaw can show the software contains such enhancements, the department will either tell it to remove them, or negotiate regarding inclusion of the enhancements. (US Congress 9/10/1992)
Inslaw and the Justice Department conclude a modification, number 12, to a contract under which the company is to install PROMIS software for the department (March 1982). The modification appears to resolve a dispute that has arisen between the two parties (see December 6, 1982 and March 18, 1983), as the department wants Inslaw to give it a copy of the software, but Inslaw says it has made privately-funded enhancements to the code and wants the department to undertake not to disseminate the enhanced software beyond the locations specified in the original contract (the department is entitled to disseminate an earlier, public domain version of the contract any way it wants). The modification says that Inslaw will give the department a copy of the software, and the department undertakes not to disseminate it in future, provided that Inslaw can demonstrate the enhancements were actually made. As a result of the agreement, the department will continue to make advance payments to Inslaw. It is this modification that leads to a series of legal disputes that will last well into the next decade, as the parties never come to an agreement on how the enhancements are to be demonstrated and the department begins to disseminate the software unchecked. (US Congress 9/10/1992)
An official in the Massachusetts State government asks a Justice Department official about the availability of PROMIS software from sources other than Inslaw, the company that created it. This follows a demonstration of PROMIS by Inslaw at the Boston US Attorneys office to a group of people from the State of Massachusetts. The Massachusetts request is passed on to Jack Rugh of the Office of Management Information Systems Support (OMISS) at the Justice Department’s Executive Office for US Attorneys. Rugh replies that some government-owned versions of the software are available, but there is currently a dispute with Inslaw over ownership of an enhanced version of the software. (US Congress 9/10/1992) This is one of several occasions when OMISS discusses providing versions of the software to other entities (see April 22, 1983).
The Justice Department makes a version of PROMIS software owned by the government available to a contractor named Dave Hudak. The version is a pilot copy for use on Prime computers and is provided to Hudak under a contract according to which he should develop benchmarking programs for computer purchases by the department. Apparently, the version is made available by the Office of Management Information Systems Support (OMISS) at the Executive Office for US Attorneys. No restrictions are placed on the use of this software. According to Jack Rugh of OMISS, the department may also tell the bidders a version of PROMIS which Inslaw claims it owns may be made available to them at some future date. (US Congress 9/10/1992) This is one of several occasions when OMISS provides versions of the software to entities outside the Justice Department (see April 22, 1983).
Various versions of PROMIS software owned by the government are made available to potential bidders who may offer to supply computer equipment to the government. Apparently, the versions are made available by the Office of Management Information Systems Support (OMISS) at the Executive Office for US Attorneys for use in benchmarking the contractors’ equipment. No restrictions are placed on the use of this software. According to Jack Rugh of OMISS, the Justice Department may also tell the bidders a version of PROMIS which Inslaw claims it owns may be made available to them at some future date. (US Congress 9/10/1992) This is one of several occasions when OMISS provides versions of the software to entities outside the Justice Department (see April 22, 1983).
Jack Rugh of the the Office of Management Information Systems Support (OMISS) at the Executive Office for US Attorneys holds a number of informal discussions with personnel in the Justice Department’s criminal division regarding the division’s possible use of OMISS’s enhanced version of PROMIS, as well as its use of one of OMISS’s Prime computers. In addition, the possibility of cooperating on PROMIS software maintenance and enhancements in the future is discussed. (US Congress 9/10/1992) This is one of several occasions when OMISS discusses providing versions of the software to other entities (see April 22, 1983).
Jack Rugh of the the Office of Management Information Systems Support (OMISS) at the Justice Department’s Executive Office for US Attorneys discusses the availability of a government-owned pilot version of PROMIS software, as well as an enhanced version, with Don Manson of the Bureau of Justice Statistics on a number of occasions. According to a later memo drafted by Rugh, Manson is “particularly interested in providing a copy of our enhanced software to the US Virgin Islands.” (US Congress 9/10/1992) This is one of several occasions when OMISS discusses providing versions of the software to other entities (see April 22, 1983).
Jack Rugh, the acting assistant director of the Office of Management Information Systems Support at the Justice Department’s Executive Office for US Attorneys, drafts a memo summarizing occasions on which versions of PROMIS software have been provided to organizations other than US Attorneys’ offices by the department or such provision has been discussed. The memo is drafted in response to a request by PROMIS project manager Madison “Brick” Brewer, who asked Rugh about any discussions he may have had about such provision a week earlier. The memo lists various occasions on which versions of PROMIS were provided to entities outside the Justice Department (see Early 1982,Before April 22, 1983, and Before April 22, 1983). It also documents discussions Rugh has had about providing the software to other entities (see Early 1982, Between Early 1982 and April 22, 1983, Before April 22, 1983, and Before April 22, 1983). (US Congress 9/10/1992)
A Justice Department official writes a memo saying he will soon provide the PROMIS application to an Israeli government representative. The official is Jack Rugh, the acting assistant director of the Office of Management Information Systems Support at the Executive Office of US Attorneys. The memo states that “Reference my memorandum to file dated April 22, 1983, on the same subject. [C. Madison] Brick Brewer [PROMIS project manager at the Justice Department] recently instructed me to make a copy of an LEAA version of PROMIS [a version wholly owned by the Justice Department] available to Dr. Ben Orr, a representative of the government of Israel. Dr. Orr called me to discuss that request after my earlier memorandum was written. I have made a copy of the LEM DEC version of PROMIS and will provide it along with the corresponding documentation, to Dr. Orr before he leaves the United States for Israel on May 16.”
High Officials Possibly Involved - The House Judiciary Committee will comment: “Given the international dimensions to the decisions, it is difficult to accept the notion that a group of low-level Department personnel decided independently to get in touch with the government of Israel to arrange for transfer of the PROMIS software. At the very least, it is unlikely that such a transaction occurred without the approval of high-level Department officials, including those on the PROMIS Oversight Committee.”
Actual Version of PROMIS Unclear - The committee will also later speculate that a version whose ownership is under dispute was also given to the Israelis, saying: “[I]t is uncertain what version actually was transferred. Department managers believed that all versions of the Enhanced PROMIS software were the Department’s property. The lack of detailed documentation on the transfer, therefore, only creates new questions surrounding allegations that Enhanced PROMIS may have been sold or transferred to Israel and other foreign governments.” (US Congress 9/10/1992) Rugh will pass the application to Brewer for handing over to Orr six days later (see May 12, 1983).
Jack Rugh, the acting assistant director of the Office of Management Information Systems Support at the Justice Department’s Executive Office for US Attorneys, writes a memo turning over the PROMIS application to a colleague, C. Madison Brewer. The application is for passage to the government of Israel, a transfer already discussed by Brewer and Rugh (see May 6, 1983). Rugh writes: “Enclosed are the PROMIS materials that you asked me to produce for Dr. Ben Orr of the government of Israel. These materials consist of the LEM DEC PDP 11/70 version of PROMIS on magnetic tape along with the printed specifications for that tape, as well as two printed volumes of PROMIS documentation for the LEAA version of the system.” (US Congress 9/10/1992)
Peter Videnieks, the Justice Department’s contracting officer, writes to Inslaw to set out the department’s position on a significant modification to a contract between the two organizations. Videnieks agrees that modification 12 “continues to limit dissemination of that version of the PROMIS computer software [a privately-enhanced version] specified in the modification.” He adds that the modification “will continue to apply in the event that the government invokes the provisions of Clause 22, ‘Disputes,’ in that the government will limit dissemination pending a contracting officer’s final decision in the matter.” (US Congress 9/10/1992)
Inslaw implements its enhanced PROMIS software at 20 US attorneys’ offices. The implementation is performed pursuant to a contract signed by the company and the Justice Department in 1982 (March 1982). (US Congress 9/10/1992)
Deputy Attorney General Lowell Jensen and other members of the Justice Department’s PROMIS Oversight Committee approve the termination of part of a contract with Inslaw, Inc., for the installation of PROMIS software (see March 1982). The termination, pushed through despite a report that there was progress with Inslaw’s attorney on the resolution of contract problems, only concerns the part of the contract for the installation of PROMIS on word processing hardware in 74 small US attorneys’ offices. Inslaw will still be contracted to install the application in 20 other US attorneys’ offices. The termination is to be for default, as Inslaw has allegedly failed to perform this portion of the contract, although a different reason will later be given (see February 1984). (US Congress 9/10/1992)
In 1984, Senator Paula Hawkins (R-FL) meets with Pakistani President Muhammad Zia ul-Haq in Pakistan. During the meeting, she mentions that she is concerned about a Pakistani bank that is laundering money out of the Cayman Islands. Her staff later clarifies to Zia that she was referring to BCCI (which technically is not a Pakistani bank, but almost all of its top officials are Pakistani). As a result, Abdur Sakhia, the top BCCI official in the US, meets with Hawkins in the US a short time later and assures her that BCCI is not laundering money out of the Cayman Islands. Then officials from the Justice Department, State Department, and the Drug Enforcement Administration (DEA) meet with Hawkins’s staffers and assure them that BCCI is not the subject of any investigation. Weeks later, the State Department formally notifies the Pakistani government that BCCI is not under investigation. As a result, Hawkins drops her brief interest in BCCI. However, by this time the State Department, Justice Department, and DEA have all been briefed by the CIA about BCCI’s many criminal activities. Apparently, this information is deliberately kept from the senator. (Beaty and Gwynne 1993, pp. 324-325)
The CIA sends a report on the Bank of Credit and Commerce International (BCCI) and its drug-related activities to other US government departments. It follows up with a report about BCCI’s links to notorious terrorists such as Abu Nidal, the most wanted man in the world at the time. Similar reports follow in 1986. However, the Justice Department, Treasury Department, and other departments keep silent about what they know and no action is taken against the bank. (US Congress, Senate, Committee on Foreign Relations 12/1992; Cooley 2002, pp. 93)
Justice Department procurement counsel William Snider issues a legal opinion stating that the department lacks legal justification to terminate part of a contract on the installation of PROMIS software for default. The department’s PROMIS Oversight Committee had decided on this course of action in December (see December 29, 1983), as it said that Inslaw, the company installing PROMIS, was not performing the contract properly. However, the committee decides to terminate the portion of the contract anyway, but for convenience—meaning Inslaw may receive some compensation—not default. PROMIS project manager C. Madison Brewer then notifies INSLAW owner William Hamilton that Deputy Attorney General Lowell Jensen has decided on partial termination. (US Congress 9/10/1992)
Madison “Brick” Brewer, director of the the Office of Management Information Systems Support at the Justice Department’s Executive Office for US Attorneys, argues against accepting a proposal made by Inslaw to resolve the dispute that has arisen over rights to an enhanced version of the PROMIS application. In a memo to Kamal J. Rahal, director of the procurement and contracts staff, Justice Management Division, Brewer warns, “The proposal would substantially alter our rights in data (e.g., we would become a licensee—and thus give up the unlimited rights we currently enjoy).” (US Congress 9/10/1992)
After the death of Robert Jay Mathews, the founder and leader of the white supremacist group The Order (see December 8, 1984), federal authorities decide to “roll up” the group. Federal prosecutors from six states meet secretly in Seattle and decide to use the Racketeer Influenced and Corrupt Organizations Act (RICO) against Order members. Under RICO statutes, all defendants are considered co-conspirators and are jointly responsible for all the crimes committed by the group (see October 28, 1983, December 3-23, 1983, March 16, 1984, April 19-23, 1984, April 29, 1984, May 27, 1984, June 18, 1984 and After, June 24-28, 1984, July 19, 1984, and November 23-24, 1984). The RICO Act also allows the government to seize and forfeit all property and assets used by the criminal organization to further its goals. Between December 1984 and March 1985, the Justice Department builds a massive conspiracy case against The Order. On April 15, 1985, a grand jury in Washington State returns a 20-count indictment against 23 members of The Order with racketeering, conspiracy, and 67 separate offenses. By this time, 17 members of The Order are in custody; by the month’s end, all but one member, Richard Scutari (see March 19, 1986), are in custody. (McClary 12/6/2006)
According to former Reagan Justice Department official Terry Eastland, writing in his 1992 book Energy in the Executive, the process of selecting Antonin Scalia as a Supreme Court Justice begins now, well before anyone knows there will be a vacancy for him. Attorney General Edwin Meese asks his assistant attorney general, William Bradford Reynolds, to advise him in preparing a nominee, “just in case.” Reynolds assembles a team of Justice Department officials, who examine about twenty possible choices, mostly federal judges, focusing primarily on conservative judicial philosophy. Two individuals stand out: Robert Bork and Scalia. Eastland writes, “Neither was ranked over the other; both were regarded as the best available, most well-qualified exponents of Reagan’s judicial philosophy.” Both are seen as powerful and influential legal figures. When Chief Justice Warren Burger announces his decision to retire from the bench, Reynolds advises Meese to choose Justice William Rehnquist to replace Burger as Chief Justice (see September 26, 1986), and to choose either Bork or Scalia to replace Rehnquist. Reagan makes the final decision: Scalia. (Dean 2007, pp. 133)
Inslaw, the owner and developer of the enhanced PROMIS software, declares bankruptcy, applying for Chapter 11 reorganization at the Bankruptcy Court for the District of Columbia. Inslaw’s poor financial condition is at least partly due to a dispute with the Justice Department over the software, as the department owes it a minimum of $1.6 million in contract payments for implementation, but is withholding them. (US Congress 9/10/1992)
Inslaw representatives Elliot Richardson and Donald Santarelli, a former administrator of the Law Enforcement Assistance Administration, meet with acting Deputy Attorney General Lowell Jensen to discuss a resolution of the Inslaw affair concerning the Justice Department’s alleged misappropriation of enhanced PROMIS software. Richardson and Santarelli ask for rapid talks to resolve disputes that have caused the department to withhold money from Inslaw and the company to go bankrupt, that the department consider a new proposal for work by Inslaw, and that Jensen appoint somebody to investigate Inslaw’s claims that some department officials, in particular C. Madison Brewer (see 1976 and April 1982), are biased against it. The business proposal is that Inslaw implement PROMIS in smaller US attorneys’ offices. This was originally covered by a contract between Inslaw and the department (see March 1982), but this part of the contract was terminated in 1984 (see December 29, 1983 and February 1984). (US Congress 9/10/1992) The department rejects the proposal for additional work, but it is unclear whether the allegations against Brewer and others are investigated (see After March 13, 1985).
The Justice Department starts an internal review of the Inslaw affair, but the content of the review will be disputed. The review follows a meeting at which Inslaw representatives made three requests (see March 13, 1985): that the department negotiate on a resolution of the disputes between it and Inslaw; that it consider a new proposal made by Inslaw for additional work; and that it investigate allegations of misconduct against departmental personnel. The review is ordered by Deputy Attorney General Lowell Jensen and performed by Deputy Associate Attorney General Jay Stephens.
Jensen's Version - According to Jensen, the review is to look at the bias allegations. He will say he recalls discussing the results of Stephens’ review, adding that, based on Stephens’ assessment of the allegations, no review by the Office of Professional Responsibility is merited.
Stephens' Version - However, Stephens will tell the House Judiciary Committee under oath that he does not undertake a review of the misconduct allegations, but only looks at Inslaw’s business proposal. The committee will point out that this is in “direct contradiction” of Jensen’s version. While examining the proposal, Stephens receives several telephone calls from Inslaw attorneys Charles Work and Elliot Richardson. He feels they are lobbying the department very hard because they believe Inslaw has what the committee will call “some special relationship” with the department. According to a report by the committee, Work and Richardson attempt to convey that, “based on a longstanding relationship between the department and Inslaw, the department should look favorably on Inslaw’s new business proposal.”
Outcome of Review - However, Stephens reports to Jensen that the need for Inslaw’s business proposal is questionable and the department thinks the work can be done in-house. Jensen then writes to Richardson, saying that the department does not have an immediate need for the work, and will not act on the proposal.
Comment by House Committee - The committee will comment, “Because the department did not adequately investigate Inslaw’s allegations, the company was forced into expensive, time-consuming litigation as the only means by which the department’s misappropriation of Inslaw’s enhanced PROMIS could be exposed.” (US Congress 9/10/1992)
In an analysis of an Inslaw proposal for the resolution of the PROMIS dispute, the Executive Office for US Attorneys (EOUSA), a Justice Department component, says that Inslaw has not made any proprietary enhancements to the software. “It appears [to the department] that there are no proprietary enhancements,” says the analysis sent by William P. Tyson, the EOUSA director, to Jay Stephens, the deputy associate attorney general. “All proposals received from Inslaw attempt to force the department into acknowledging Inslaw’s proprietary interest in the US attorneys’ version of PROMIS by offering a license agreement for software maintenance,” Tyson adds. According to the memo, accepting Inslaw’s proposal “would, in effect, ratify Inslaw’s claim that the software is proprietary; not only the micro-computer version which Inslaw proposes to develop, but also the Prime mini-computer version currently operational in 20 districts.” The Justice Department’s position means that it would have unlimited rights to the software. The House Judiciary Committee will later comment that the department “may have used its ‘unlimited rights’ posture as a pretextual basis for its national and international distribution of Enhanced PROMIS outside of the department.” (US Congress 9/10/1992)
The Justice Department makes enhanced PROMIS software available at multiple locations, outside the framework of its contract with Inslaw on the application’s installation and over protests by the company. The software is first installed at 25 US attorneys’ offices in addition to 20 still covered by a contract between Inslaw and the department (see Between August 29, 1983 and February 18, 1985). According to Inslaw’s counsel Elliot Richardson, an enhanced version of the software is then illegally copied to support an additional two sites. Finally, 31 additional sites are brought on line via telecommunications. These additional, smaller US attorneys’ offices had initially been covered by the contract with Inslaw, but this portion of the contract was terminated in 1984 (see February 1984). Inslaw will repeatedly protest about this installation (see March 14, 1986), and a bankruptcy court will find it is in violation of the law (see September 28, 1987), although this ruling will be overturned (see May 7, 1991). (US Congress 9/10/1992)
Steven Calabresi joins the Justice Department. Calabresi is a young conservative lawyer who has clerked for appeals court Robert Bork, who failed to secure a position on the Supreme Court just months before (see July 1-October 23, 1987). Calabresi, a co-founder of the Federalist Society of conservative lawyers and judges, joins forces with another ambitious young Justice Department lawyer, John Harrison, and the two begin working to expand the power of the president. Calabresi and Harrison decide that an aggressive use of presidential signing statements can advance the president’s authority to the detriment of the legislative and judicial branches. Unfazed by a recent judicial rejection of just such signing statement usage (see 1984-1985), Calabresi and Harrison write a memo to Attorney General Edwin Meese advocating the issuing of more signing statements as part of a larger strategy to increase the president’s influence over the law. Calabresi and Harrison are interested in how what they call “activist judges” use the legislative history of a bill that became law to interpret that law’s meaning in subsequent judicial actions. The two lawyers believe that by issuing signing statements, the president can create a parallel record of presidential interpretations of potentially ambiguous laws to help guide judicial decisions. Meese approves of the idea, and in December has the West Publishing Company, which prints the US Code Congressional and Administration News, the standard collection of bills’ legislative history, begin including presidential signing statements in its publications. In 2007, author Charlie Savage will call Meese’s move “a major step in increasing the perceived legitimacy of the device.” (Savage 2007, pp. 232) In 2007, Calabresi will say: “I initially thought of signing statements as presidential legislative history. I’ve subsequently come to think of them as being important vehicles by which presidents can control subordinates in the executive branch. They subsequently came to be important to the unitary executive [theory of presidential power].” (Savage 2007, pp. 234)
Inslaw complains about additional installations of enhanced PROMIS software by the Justice Department. Inslaw and the department had a contract for the company to install the software in 20 large US attorneys’ offices and then dozens of smaller ones (see March 1982), but the portion of the contract for the smaller offices was terminated (see February 1984), and the department is installing an enhanced version of the software Inslaw says it owns in these smaller offices (see Between June 24, 1985 and September 2, 1987). The complaint is made in a letter by Inslaw president William Hamilton to H. Lawrence Wallace, the assistant attorney general for administration. “I am extremely disturbed and disappointed to learn that the Executive Office for US Attorneys has begun to manufacture copies of the PROMIS software for customization and installation in additional US attorneys offices, specifically those in St. Louis, Missouri, and Sacramento, California,” Hamilton writes. “This action occurs at the very time that the Department of Justice and Inslaw are attempting to resolve, by negotiation, Inslaw’s claim that the US attorneys version of PROMIS contains millions of dollars of privately-financed enhancements that are proprietary products of Inslaw and for which Inslaw has, to date, received no compensation.” (US Congress 9/10/1992)
The Justice Department makes a counterproposal in the dispute with Inslaw over rights to an enhanced version of the PROMIS software. The principles of the settlement, set out by the Justice Management Division’s general counsel Janice A. Sposato in a letter to Inslaw lawyer Harvey Sherzer, are:
The department will not pay Inslaw any additional money for the enhanced software obtained under a contract on implementation of PROMIS at US attorneys’ offices;
Inslaw will recognize that the US government has the right to unrestricted use of the enhanced software obtained under the contract for any federal project, including projects implemented by independent contractors;
The department will agree not to make or permit any disclosure or distribution of the software other than as described above, or as required by federal law.
Inslaw will not accept the counterproposal, and the dispute will continue. (US Congress 9/10/1992)
Samuel Loring Morison is prosecuted by the Justice Department for providing classified pictures of a Soviet nuclear-powered aircraft carrier to Jane’s Defense magazine. Morison, a naval intelligence analyst specializing in Soviet amphibious and mine-laying vessels, works part time for Jane’s, and has been warned about potential conflicts of interest. Part of Morison’s motives for passing classified information to the magazine is his belief that the US citizenry, if they knew about the carrier, would demand to “increase the defense budget.” Even though the Justice Department itself acknowledges that Morison did nothing to threaten national security, it successfully prosecutes him under the 1917 Espionage Act. Morison will serve a two-year prison sentence.
Commentary - Former Nixon White House aide John Dean will write in 2004 that if the same standard used to prosecute Morison were to be more widely applied, “several presidents and secretaries of state could have been prosecuted for information in their memoirs.” Before Morison, no one had ever been prosecuted for publishing leaked information. In Dean’s view, Morison is prosecuted under a standard more appropriate to Britain’s Official Secrets Act, not any applicable US law, and is a victim of the worst kind of selective law enforcement. Thirty-four amicus curiae briefs will be filed on Morison’s behalf, from a host of newspapers, television news networks, and news media trade and professional associations.
Pardon - In 1998, Senator Daniel Moynihan (D-NY) will call Morison’s conviction an “anomaly,” the only one of its kind in 81 years, and ask President Clinton to pardon Morison. He will write, “What is remarkable is not the crime, but that [Morison] is the only one convicted of an activity which has become a routine aspect of government life: leaking information to the press in order to bring pressure to bear on a policy question.” Clinton will grant the pardon in 2001. (Daniel Patrick Moynihan 9/29/1998; Research Foundation of the University of Texas A&M 1/21/2003; Dean 2004, pp. 66-67, 221)
Justice Department lawyer Samuel Alito, a member of the department’s Litigation Strategy Working Group, writes a memo advocating the creation of a pilot project designed to increase the frequency and impact of presidential signing statements (see August 23, 1985 - December 1985 and October 1985). The rationale is to use signing statements to “increase the power of the executive to shape the law.” Alito focuses on the use of signing statements to parallel the legislative history of a bill, a relatively modest view, but still recognizes the potentially revolutionary nature of the idea. He writes that signing statements must be used incrementally, so as not to draw undue attention from civil libertarians and key Congressional members. “[D]ue to the novelty of the procedure and the potential increase of presidential power,” he writes, “[C]ongress is likely to resent the fact that the president will get the last word on questions of interpretation.” Alito suggests that President Reagan begin issuing signing statements only on bills affecting the Justice Department, and later issue such statements for bills that affect other areas of the federal government. “As an introductory step, our interpretative statements should be of moderate size and scope,” he writes. “Only relatively important questions should be addressed. We should concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress. The first step will be to convince the courts that presidential signing statements are valuable interpretive tools.” President Reagan will issue signing statements that challenge, interpret, or actually rewrite 95 sections of bills, far more than any other president. His successor, George H. W. Bush, will challenge 232 sections of bills. (Savage 2007, pp. 233-234)
Peter Vidieneks, the Justice Department contracting officer working on the PROMIS contract, declares that Inslaw has not made any proprietary enhancements to the software. He therefore denies Inslaw’s claim of $2.9 million for licensing fees. This means that the Justice Department thinks it owns all versions of PROMIS, whereas Inslaw says it owns one version it has improved through privately-funded enhancements. (US Congress 9/10/1992)
A lawyer acting for Inslaw warns the Justice Department that the department’s use of the enhanced version of PROMIS software contravenes bankruptcy legislation. Inslaw, in Chapter 11 bankruptcy due to a dispute between itself and the department (see February 1985), writes to the department’s contracting officer saying that the software’s use without Inslaw’s consent and the payment of licensing fees would contravene Inslaw’s property rights and its rights as a debtor in possession of the software under the bankruptcy code. In addition, Inslaw argues it is “a wrongful exercise of control over property of the debtor’s estate in violation of the automatic stay now in effect.” The automatic stay is a legal mechanism that prevents creditors—such as the Justice Department—harassing a debtor—such as Inslaw—in bankruptcy. Inslaw also says that the department’s dissemination of the software to third parties could damage or destroy the product’s commercial value, possibly wrecking the company. (US Congress 9/10/1992)
Attorney General Edwin Meese receives a report, “Separation of Powers: Legislative-Executive Relations.” Meese had commissioned the report from the Justice Department’s Domestic Policy Committee, an internal “think tank” staffed with hardline conservative scholars and policy advisers.
Recommendations for Restoring, Expanding Executive Power - The Meese report approvingly notes that “the strong leadership of President Reagan seems clearly to have ended the congressional resurgence of the 1970s.” It lays out recommendations for restoring the power taken from the executive branch after Watergate and Vietnam, and adding new powers besides. It recommends that the White House refuse to enforce laws and statutes that “unconstitutionally encroach upon the executive branch,” and for Reagan to veto more legislation and to use “signing statements” to state the White House’s position on newly passed laws. It also assails the 1972 War Powers Resolution and other laws that limit presidential power.
Reinterpreting the Separation of Powers and the Concept of 'Checks and Balances' - Perhaps most importantly, the Meese report claims that for 200 years, courts and scholars alike have misunderstood and misinterpreted the Founders’ intentions in positing the “separation of powers” system (see 1787 and 1793). The belief that the Constitution mandates three separate, co-equal branches of government—executive, judicial, and legislative—who wield overlapping areas of authority and work to keep each of the other branches from usurping too much power—a concept taught in school as “checks and balances”—is wrong, the report asserts. Instead, each branch has separate and independent sets of powers, and none of the three branches may tread or encroach on the others’ area of responsibility and authority. “The only ‘sharing of power’ is the sharing of the sum of all national government power,” the report claims. “But that is not joint shared, it is explicitly divided among the three branches.” According to the report, the White House should exercise total and unchallenged control of the executive branch, which, as reporter and author Charlie Savage will later explain, “could be conceived of as a unitary being with the president as its brain.” The concept of “checks and balances” is nothing more than an unconstitutional attempt by Congress to encroach on the rightful power of the executive. This theory of presidential function will soon be dubbed the “unitary executive theory,” a title adapted from a passage by Alexander Hamilton in the Federalist Papers. (Savage 2007, pp. 47-48) Charles Fried, Reagan’s solicitor general during the second term, will later write that though the unitary executive theory displays “perfect logic” and a “beautiful symmetry,” it is difficult to defend, because it “is not literally compelled by the words of the Constitution. Nor did the framers’ intent compel this view.” (Savage 2007, pp. 50)
Inslaw files a complaint for a declaratory judgment, the enforcement of automatic stay bankruptcy protection provisions, and damages against the Justice Department in the dispute over the department’s alleged theft of enhanced PROMIS software. The automatic stay is one of the fundamental debtor protections provided by bankruptcy laws. It stops all collection efforts, harassments, and foreclosure actions, giving the debtor temporary relief from creditors. It is important because it allows a bankruptcy court to centralize all disputes concerning property of the debtor’s estate so that reorganization can proceed orderly and efficiently. (US Congress 9/10/1992) Inslaw’s attorney for the case, Leigh Ratiner of the Washington firm Dickstein, Shapiro & Morin, chooses the bankruptcy court for the filing based on the premise that the Justice Department, as the creditor, has control of enhanced PROMIS. He will later say: “It was forbidden by the Bankruptcy Act for the creditor to exercise control over the debtor property. And that theory—that the Justice Department was exercising control—was the basis that the bankruptcy court had jurisdiction. As far as I know, this was the first time this theory had been used. This was ground-breaking.” (Fricker 3/1993) Inslaw claims that Justice Department manager C. Madison Brewer, who was responsible for implementing PROMIS in the department, was instrumental in propelling Inslaw into bankruptcy (see April 1982, April 14, 1982, and April 19, 1982), and that he then hindered Inslaw in its development of a reorganization plan. Inslaw also alleges that its concerns were made known to the highest levels of Justice Department’s management, without any response. (US Congress 9/10/1992)
The Office of Professional Responsibility (OPR), a Justice Department oversight component, receives a letter from Laurie A. Westly, chief counsel to Senator Paul Simon (D-IL), asking for its view of allegations made by the software company Inslaw against the Justice Department. The letter mentions claims of misconduct by department official Lowell Jensen. Westly also refers to litigation recently initiated by Inslaw (see June 9, 1986), specifically the claim that Jensen contributed to the bankruptcy of Inslaw and had a negative bias toward its software. She also asks whether Jensen has breached any ethical or legal responsibility as a department employee. (US Congress 9/10/1992) It is unclear what action the OPR takes in response to this matter. However, it conducts a preliminary investigation into whether Jensen was biased against Inslaw this year, and this may be in response to this letter (see 1986). It will also begin a fuller investigation the next year (see October 14, 1987).
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