Nicholas deB. Katzenbach, attorney general during the LBJ administration, writes in today’s Los Angeles Times about the perils of unchecked power. Specifically, he writes about J. Edgar Hoover’s crusade to destroy Dr. Martin Luther King.
These days Hoover has become almost a comic figure; the tough guy in ladies’ underdrawers. But for a time he was so powerful even presidents were afraid to go after him. “Some of that support was based on admiration,” writes Katzenbach, “some on fear that he had damaging personal information in his files.” Although on paper he reported to the attorney general, in fact he operated outside anyone’s control. In the eyes of the nation Hoover was a hero who had fought organized crime and Communists. But by the 1960s, Katzenbach writes, Hoover was getting old.
He believed the world was questioning and rejecting the values he held out as fundamental â€” patriotism, respect for law and order, sexual mores grounded in marriage and family, the work ethic. He detested what he saw as a growing culture of permissiveness, and, as a conservative Southerner, he seriously questioned the idea of racial equality.
Hoover convinced himself that MLK was working for Communists. Lack of evidence thereof would not dissuade him. In 1963, Hoover went to Attorney General Bobby Kennedy for approval for a wiretap on Dr. King’s phones. Bobby Kennedy feared that Hoover’s accusations would destroy the Civil Rights movement.
When Hoover asked for the wiretaps, Bobby consulted me (I was then his deputy) and Burke Marshall, head of the Civil Rights Division. Both of us agreed to the tap because we believed a refusal would lend credence to the allegation of communist influence, while permitting the tap, we hoped, would demonstrate the contrary. I think the decision was the right one, under the circumstances. But that doesn’t mean that the tap was right. King was suspected of no crime, but the government invaded his privacy until I removed the tap two years later when I became attorney general. It also invaded the privacy of every person he talked to on that phone, not just Levinson.
But what we didn’t know during this period was that Hoover was doing a lot more than tapping King’s phones. As King’s criticism of the FBI continued, and as Hoover became more and more convinced there must be communist influence even though no evidence ever materialized, he determined to discredit and destroy King. He went further, putting bugs in King’s hotel bedrooms across the country. (He claimed that Atty. Gen. Herbert Brownell had authorized him to use such listening devices in cases involving “national security” back in the 1950s, and that he did not require further permission from the current attorney general, who in any case had no idea that the FBI was doing it.)
The FBI recorded MLK having extramarital affairs, which it used to try to destroy him. The FBI played the tapes for journalists and other influential people. At one point tapes were mailed to MLK with the suggestion he commit suicide.
This is appalling, to be sure, but Katzenbach makes an essential point — Hoover believed he was doing the right thing . He believed his acts were justified to protect the United States. “Perhaps because of age accompanied by virtually unchecked power, he lost any sense of proportion in law enforcement, using his authority in what he thought was a righteous cause.”
And here’s the conclusion:
Today we are again engaged in a debate over wiretapping for reasons of national security â€” the same kind of justification Hoover offered when he wanted to spy on King. The problem, then as now, is not the invasion of privacy, although that can be a difficulty. But it fades in significance to the claim of unfettered authority in the name of “national security.” There may be good and sufficient reasons for invasions of privacy. But those reasons cannot and should not be kept secret by those charged with enforcing the law. No one should have such power, and in our constitutional system of checks and balances, no one legitimately does.
Forcing the executive to explain its reasons for intrusive law enforcement is essential to maintaining not just privacy but freedom itself. A congressional committee must exercise oversight. So too must an independent court because Congress is also subject to possible political pressure.
Our freedom is too precious, and too much blood has been shed to preserve it, to entrust it to a single person, however sincere and however well intentioned.
At Newsweek, Jonathan Alter describes the peril we face now:
Any rational person wants the president to be able to hunt for Qaeda suspects wherever they lurk. The “momentous” issue (Alito’s words) is whether this president, or any other, has the right to tell Congress to shove it. And even if one concedes that wartime offers the president extra powers to limit liberty, what happens if the terrorist threat looks permanent? We may be scrapping our checks and balances not just for a few years (as during the Civil War), but for good.
And, once again, in the Civil War Lincoln made emergency use of a power given to Congress (to suspend habeas corpus) to deal with riots and unchecked lawlessness in some of the border states while Congress was not in session. When Congress came back into session, Lincoln went to Congress, acknowledged this power rightfully belonged to Congress, and asked for their retroactive approval even while the Civil War was still heating up. He didn’t just declare he could do whatever he thought necessary because there was a war on.
The NSA story is an acid test of whether one is a traditional Barry Goldwater conservative, who believes in limited government, or a modern Richard Nixon conservative, who believes in authority. Alito is in the latter category. His judicial opinions suggest a deference to executive power, and he once pioneered presidential “signing statements” that are meant to help judges come down on the president’s side. Just recently, Bush attached such a statement to John McCain’s bill banning torture in which the president reserved the right to ignore the law if he wants to.
Alito embodies the inherent contradiction of the conservative movement. The nominee is an “originalist,” which means, as he said last week, that “we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.” But at that time, the 18th century, the Founders could not have been clearer about the role of Congress in wartime. As James Madison put it, “In no part of the Constitution is more wisdom to be found than in the clause which confides the question of war and peace to the legislative and not to the executive branch.”
No honest reading of the writings of the Founding Fathers, in or out of the Constitution, justifies Bush’s wartime ‘inherent authority” theory. The fact that so many “conservatives” accept this theory even as they babble about “strict construction” of the Constitution is proof that they’ve gone off the deep end, the charts, the scale, and any other measure of rational thought. The Right has become a virtual mob.
As John McGowan wrote here, “To pay the law heed is to accept that oneâ€™s own virtue is doubtful.” The ideologue who has no doubts he is right also has no qualms about setting the law aside when it gets in his way. But the person who would do such a thing is the same one whose judgment is too skewed to be trusted to do it — like J. Edgar Hoover.
Update: See Glenn Greenwald, “Bush followers are not conservatives.”