BY LARRY SEIGLE  
In 1956 the National Security Council convened a special meeting in the White House to hear a report and consider proposals from FBI Director Hoover on how to counter the stiffening popular resistance to government moves against the Bill of Rights. The facts about this meeting were first revealed in 1981 during the trial of the SWP lawsuit, when Justice Department officials introduced into evidence a report on the meeting previously classified top secret. The document was submitted in an effort—ultimately unsuccessful—to show that the FBI’s covert “Counter-Intelligence Program” (Cointelpro) was lawful on the grounds that it had been set in motion at this NSC meeting, where it received presidential approval.

To explain the document’s significance, the government lawyers called to the witness stand Herbert Brownell, who had served as attorney general in President Dwight Eisenhower’s cabinet. Brownell testified that those present at the 1956 NSC meeting included Eisenhower, Vice-president Richard Nixon, CIA chief Allen Dulles, FBI Director Hoover, and other government officials. At the meeting, Hoover outlined the situation. The government’s efforts to disrupt the operations of the Communist Party, the Socialist Workers Party, and other groups were running into greater public opposition, he said. This was being reflected in the growing reluctance by federal judges to sustain prosecutions under the Smith Act, to uphold denials of passports to “subversives,” and to approve other witch-hunting measures such as driving communists out of the merchant marine by lifting their seaman’s papers….

Fortunately, Hoover emphasized, the power of the government’s executive branch to act was not restricted to what the people of the country would support and the federal courts would accept. What could not be accomplished openly, could be achieved covertly. The FBI possessed the weapon of “counterintelligence.” Hoover proudly reported, “We have sought to infiltrate, penetrate, disorganize, and disrupt the [Communist] party…. Informants have been the key to penetration of the party…. We currently have 921 active informants operating in the security field, providing hourly intelligence reflecting the innermost plans and policies of the Communist Party.”

On the witness stand in 1981, Brownell stressed that Hoover’s report covered not just the Communist Party itself, but also…“what we call the subversive groups who were operating secretly in conjunction with foreign powers.” This included the Socialist Workers Party, the former attorney general added.

Brownell was asked to identify “the source of the authority for the FBI to conduct the countermeasures as set forth in this page against the Communist Party and other subversive groups.” “Presidential directive,” he shot back. “I think the legal situation was that the President did not give any restriction to the methods that were to be used to accomplish the ends that he sought.” The techniques approved by the National Security Council included disruption operations by informers, break-ins, wiretaps, and microphone bugs installed without warrants, as well as opening the mail and sorting through discarded trash of “subversive” targets. Six months later, the FBI formally inaugurated its Cointelpro operations, first against the CP, then against the SWP, Black organizations fighting for civil rights, and others.

If the majority of U.S. people could no longer be mobilized to support the openly proclaimed goal of breaking up communist groups by government prosecution and blacklisting, the National Security Council had decided, then the FBI would wage a secret operation against the “subversives”—what we would today call a domestic contra operation….

On the witness stand, Brownell argued that when it came to “intelligence” or “national security” investigations—that is, when the target is political, rather than criminal, activity—the executive branch of government has the authority to ignore the Bill of Rights. Under cross-examination the former attorney general became visibly irritated that anyone could question this doctrine. When the judge himself asked some pointed questions Brownell’s voice hardened. Finally, he was asked whether it was “your view as the Attorney General that the Fourth Amendment was applicable to intelligence investigations?” Brownell responded:

“We didn’t have any guidance from the Supreme Court on that. I think the matter is still open as far as the Supreme Court is concerned. On the one hand you have the express powers of the president to conduct foreign affairs and to be the Commander in Chief. On the other hand you have the Fourth Amendment.” Brownell then paused, glared directly at Griesa, and said, “So far there has been no court decision which prohibited such activities in the field of intelligence.”

The message was unambiguous: this has been going on for a long time and no federal judge has ever tried to stop us, so don’t make trouble for yourself. Griesa reserved response until his ruling, which explicitly rejected the claim by Brownell and the Justice Department that the executive branch has the power to trample on the Bill of Rights.
 
 
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