“Official and Confidential” files maintained by Hoover were his and his alone. For fifty years they remained his inviolate cache of secrets. His power to spy on subversives depended on secrecy, not publicity. Confidential files were far better than blaring headlines. Despite the dangers of discovery, Hoover and the Bureau maintained surveillance over America’s Communists.
“S EE THAT EVERY SECRECY IS MAINTAINED ”
Attorney General Stone had told Hoover to stick to law enforcement. He had asked Hoover more than once what federal laws made communism illegal. There were none. “The activities of the Communists and other ultra-radicals have not up to the present time constituted a violation of the federal statutes,” Hoover wrote on October 18, 1924. “Consequently, the Department of Justice, theoretically, has no right to investigate such activities.”
The Bureau of Investigation had no authority to conduct political warfare. The Espionage Act of World War I was null and void now that the war was over. The remaining federal sedition law, dating from the Civil War, required proof of a plan to use violence to overthrow the government. The Bureau never had been able to prove to the satisfaction of any court that American Communists conspired to that end. An even older law, the Logan Act of 1790, outlawed the communication of hostile conspiracies between Americans and a foreign country. Communists in the United States clearly communicated with Moscow. But Congress never had voted to grant the Soviet Union diplomatic recognition—it was not a country, in the eyes of American law—so the Logan Act was out. Hoover had no law to enforce. He had bent his authority to the limits and beyond in the realm of anticommunism.
Yet he had met the attorney general’s standards. On December 10, 1924, Stone said he had passed the test. Hoover would become the director of the Bureau of Investigation.
Remarkably, that same week, Hoover found a legal basis for secret intelligence investigations of the American Left. It lay buried in an eight-year-old Justice Department budget authorization bill. In 1916, the Wilson administration, newly vigilant against foreign diplomats engaged in espionage, had started using the Bureau’s agents to eavesdrop on the German embassy. The administration had slipped a line into the Justice Department budget givingthe Bureau the power to investigate “official matters under the control of the Department of Justice and the Department of State ” [emphasis added]. The bill became law and its provisions remained. When the Senate held hearings on the question of Soviet recognition in 1924, Secretary of State Charles Evans Hughes asked Hoover to prepare a report on Moscow’s influence over American Communists. Hoover responded with nearly five hundred pages detailing his belief that Soviet communism sought to infiltrate every aspect of American life.
He maintained that the continuing diplomatic and political controversy gave him license to investigate communism in the United States. Hoover made that fragment of a sentence the foundation of his secret intelligence service.
Harlan Fiske Stone now ascended to the Supreme Court, where he served for the rest of his life, ending his days as chief justice. He watched over Hoover, and the new director knew it. To that end, Hoover hewed to Stone’s edicts. He had to avoid the barest hint of lawbreaking if he wanted to rebuild the Bureau from the rubble bequeathed to him. “This Bureau cannot afford to have a public scandal visited upon it,” Hoover wrote in a “personal and confidential” message sent to all special agents in May 1925. “What I am trying to do is to protect the force of the Bureau of Investigation from outside criticism and from bringing the Bureau of Investigation into disrepute.”
He fired crooks and incompetents, cutting his forces until he had fewer than three hundred trustworthy special agents. He banned drinking on and off the job
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