FRANK J. DONNER & RICHARD I. LAVINE

For two generations, the American imagination has either denied the possibility of fascism in this country or, while conceding its possibility, has been unable to project a convincing description of how fascism may come, to identify the institutional stress points, and describe its potential constituency. Watergate teaches that, for all our constitutional and political restraints on the abuse of power, if a police state comes into being here it will surely rest on an all-powerful Presidency in control of a centralized political intelligence apparatus. In its January 3, 1972 issue, The Nation published “The Grand Jury Network" (Donner and Cerruti), a report on the growing use by the Department of Justice of federal grand juries to curb political dissent. Events of the past two years have substantiated the earlier contention that this distortion of the grand jury function is part of a master plan to attack political opposition through a new centralized intelligence system. More specifically, the Internal Security Division (ISD) of the Justice Department has used the traditional accusatory function of the grand jury as a cover for:

(1) A secret White House-sponsored network for the systematic collection of political intelligence by illegal means and for purposes unrelated to law enforcement.

(2) The laundering or legitimizing through grand jury interrogation of such tainted evidence.

(3) The development of evidence through the grand jury process to support an indictment already handed up - form of pretrial discovery not permitted in criminal

cases.

(4) The use of civil contempt, not to obtain testimony but solely to punish uncooperative witnesses. In the past eighteen months, twenty-one individuals have, after grants of immunity, been jailed for contempt.

Specific instances of these practices will be dealt with in a moment, but before revisiting the grand juries we need to look more closely at the roots of these abuses, now laid bare by Watergate.

The enormous range of the Watergate disclosures invites a piecemeal response, and the large patterns thus break down into small clusters of seemingly unrelated events. It is, of course, important to know whether Dean or Ehrlichman is telling the truth, what may be learned from the Presidential tapes, the extent of the President's knowledge of the events, the source of authority for Operation Gemstone. But the concrete question of who

Frank Donner is director of the American Civil Liberties Union research project on political surveillance at the Yale Law School. This study forms part of a book on the subject to be published by Holt, Rinehart & Winston in the spring of 1974. Richard Lavine has been active in politics and is now a student at the University of Pennsylvania Law School.

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did it conceals the deeper issue of why it was done. In American public life we almost invariably reduce power conflicts to issues of due process, of individual rights; the one is typically abstract, and the other more accessible because it is specific and "human." Finally, a need for stability, a desperate dependence on institutional order and continuity, makes us reluctant to confront claims of usurpation of power, as though the very recognition of its possibility would deny meaning to the American experience.

But one can hardly sweep under the rug the wealth of evidence, uncovered by Watergate, of the growth of Caesarism in the White House, a phenomenon made visible by the President's plush accouterments of power and the use of his office for personal gain. The meat for this Caesar, the means by which he has sought to consolidate his power, is political intelligence, a system of surveillance and related practices ranging from informers and wiretapping to sabotage, break-ins, mail interception and dossiers. From almost the start of his first term, Nixon initiated a series of moves designed to seize control of the intelligence capability of the nation. Beginning in 1939, when the FBI was first given domestic intelligence jurisdiction, the intelligence community in this country had been highly diffused, with a variety of institutional bases and haphazard coordination. This decentralization reduced the efficiency of domestic survelllance and postponed the inevitable showdown with libertarian forces. In the same period a democratic constituency had on the federal level (urban and state units are another story) imposed jurisdictional limits on the scope of intelligence practices and targets; these restraints, though precarious and frequently evaded, were still no mean achievement when one recalls the struggle to rein in the surveillance excesses of the Defense Department, the CIA and the FBI. But the lack of effective and publicly responsive facilities to monitor essentially secret operations left open the danger of abuses, periodically exposed by alert Congressmen, defecting whistle-blowers and the media.

What President Nixon undertook was nothing less than the relocation and centralization of the entire intelligence establishment in the White House. More, he moved to eliminate all the bitterly won jurisdictional restraints on domestic espionage. And the justification for this no-holds-barred secret police apparat was national security, a goal which assertedly absolved the President from responsibility to the law or, save by impeachment, to the Constitution and beyond the reach of the courts. When in 1972 the Supreme Court unanimously rejected these expansive claims as a justification for domestic intelligence practices, the Administration simply renewed its contentions about the very same practices, but now under the warrant of "foreign intelligence."

The main leverage in the campaign to take over political espionage was the alleged need to refocus intelli

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gence priorities and coordinate intelligence sources. The agencies traditionally responsible for domestic intelligence had developed a vested interest in the old Left and in antiquated files of political subjects. But the entrenched bureaucrats of political surveillance thought they had a powerful shield against the new wave of political headhunters the Congress, which was itself under pressure from White House power seekers, and the Congressional anti-subversive committees. So it was that J. Edgar Hoover turned to his Congressional allies for protection against threats to his fiefdom, not from his liberal enemies but from White House firebrands. His seemingly bizarre Congressional testimony about the alleged Berrigan plot in November 1970 was an attempt to find sanctuary in his Congressional power base. Hoover's intelligence methods and priorities supported a structure that had evolved over a quarter of a century, built cooperatively by the bureau, Congressional committees and tenacious coldwar supporters. Now the committees were moribund, the bureau under severe attack, its senile director obsessed with his immortality, the cold war receding into the past, traditional surveillance practices riddled by Supreme Court decisions as new targets were moving to the center of the radical stage. In addition, the cry for more sophisticated intelligence and a cohesive structure was not confined to the White House. It was also demanded by sections of the surveillance community symbolized by the clash between Hoover and William Sullivan, former director of FBI domestic intelligence, and an Administration ally.

An Administration Besieged'

Domestic, peacetime intelligence systems have, with the growth of the modern state, evolved into a centrally controlled intelligence community. In the course of this development, political police became a special force independent of all other instruments of state administration, enjoying unlimited jurisdiction, answerable only to the head of state. This process was enormously accelerated by the release of powerful movements for change, beyond the control of conventional police unitsone need only recall Sidmouth's England, Fouché's France, the European continent after 1848. In the United States, the "natural" growth and centralization of the intelligence community has been hobbled for reasons already indicated, but the political stimulus to such expansion is unmistakable.

In 1969, the incoming Nixon Administration was faced with a society heaving with unrest. All of the major intelligence initiatives in the first Nixon term can be traced to a hysterical reaction to successive waves of protest. A "siege mentality" gripped the Administration almost from the day it took over. Nixon was haunted by the fate of Johnson, ambushed by what seemed to be the revolt of an entire generation. Those long years of powerlessness, of wandering in the wilderness, was it all to be for naught? Were the country's unruly dissenters to be allowed to frustrate Nixon's too-longdelayed entry into the promised land?

Early in 1970, the Administration began intensive preparations to expand and improve its surveillance

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capability over militant left-wing individuals and groups. In a series of interviews with a New York Times reporter, Administration officials conveyed the President's concern about the wave of bombings and bomb scares. On March 12, Nixon and some of his aides met at dinner with New York University Prof. Irving Kristol. According to the news account, "the discussion included attempts to draw parallels between young American radicals and the Norodniki, the children of Russian aristocrats who assassinated Czar Alexander II." No one mentioned Alexander III's jackboot repression of the radicals in the wake of the assassination, but the extraordinary horror-if not hatred of radical youth comes through the interview.

The "official view" was that the militants were political criminals. In mid-March President Nixon told the Congress that the bombings were the work of "young criminals posturing as romantic revolutionaries." In April one of his advisers told the Times, "It wouldn't make a lot of difference if the war and racism ended overnight. We're dealing with the criminal mind, with people who have snapped for some reason." A "key official" in the Administration added, "We are facing the most severe internal security threat this country has seen since the depression." He said that the President had "expressed distress that the intelligence system was not capable of pinpointing the activities of these people" and insisted that there was a desperate need to improve government intelligence. One White House aide proclaimed, "The greatest safeguard for the rights of individuals is to have good information on what [the radical fringes] are doing." He urged that the government substitute for traditional criminal prosecutions the collection of information to "prevent the perpetration of an act of violence." This benign verbiage masked the preparation of a comprehensive plan for restructuring the American political intelligence system into a cohesive political police force serving the same purposes as its counterparts in 19th-cen tury European despotisms.

President Nixon personally initiated a project to draft recommendations for intensified domestic intelligence at a meeting in the White House on June 5, 1970. Present in the Oval Office that day were Nixon; H.R. Haldeman, then White House chief of staff, John Ehrlichman, then the domestic counselor to Nixon; Tom Charles Huston, a Presidential aide, and the chiefs of the four intelligence agencies: J. Edgar Hoover; Adm. Noel Gayler, director of the National Security Agency; Lieut. Gen. Donald V. Bennett, director of the Defense Intelligence Agency; and Richard Helms, director of the CIA.

The proposals submitted by the committee, believed to be the handiwork of then domestic intelligence chief William Sullivan and now known as the "Huston plan," included a program of electronic surveillance of "individuals and groups in the United States who pose a major threat to the internal security," covert mail coverage or the opening of scaled materials before delivery, surreptitious entry (burglary), and an increase in the number of "campus sources" in order to "forestall widespread violence." Approved by Nixon on July 23, the plan was assertedly never implemented because of Hoover's opposition.

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But Hoover was not objecting because the proposed tactics were illegal. The FBI had routinely made illegal searches, including both burglary and mail interceptions, before the policy was changed in 1966. What disturbed Hoover was the proposal of an interagency group to supervise the bureau, thus ending his one-man rule and acting as a buffer between him and the President. "What was really at stake," reported one participant in the report's preparation, "was whether Mr. Hoover was going to be able to continue running the FBI any damned way he wanted." In a recent interview Huston has explained Hoover's actions in the same way: "In my judgment if Hoover at any time raised what I regarded as a principled objection... if he had said this thing is wrong because it is unconstitutional, the President doesn't

Haynie. The Courier-Journal

'Help! My Name Is National Security and I'm Being Threatened have the power to order it, that it is unethical... any kind of principled objection, then on that basis he'd have hit me right between the eyes. . . . But when a guy says, you know, that I don't want to do it-that it's too risky, but I don't care if someone else does it, then as far as I am concerned, I think it's fair to draw an inference that the guy is just trying to save his butt and duck the responsibility that's his and of the agency that's charged with these problems." ("Tom Charles Huston: Don't Call Him a Sonovabitch," by Terence Sheridan, Rolling Stone, October 25.)

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Although Hoover's objections stymied the Huston plan, it hardly moved the Administration from the conviction that some form of secret police operation (always euphemistically described) was imperative to contain the radicals. As we will show, the Internal Security Division of the Department of Justice and the bureau pressed forward to spearhead the drive on the radicals. The release of the Pentagon Papers, one of a series of leaks, caused another White House explosion in 1971-a "panic session," Colson called it-and demands for an effective intelligence sanction to choke off these new threats to the Administration's authority. Again this response throbbed with a wildly exaggerated insistence that the very foundations of Presidential power were being undermined. As the trial record in the Ellsberg case later demonstrated, the asserted threat to national security was ludicrously overstated, but every surveillance initiative seeks acceptance because of a claimed emergency, an imminent peril to a vital interest. In most cases such assertions are ritualistic, but in the corridors of the White House and in the Oval Office it became a cri de coeur, an expression of a fear of betrayal from within. From the beginning, Nixon and his aides felt surrounded by hostile forces, by holdovers from prior administrations who were in league with the press and the networks to "get" the President.

Mounting frustrations plainly took their toll of Nixon as he lurched back and forth from megalomania to paranoia. In the tightly knit Presidential circle, an ominous thesis was evolving, a sort of political Manicheanism in which legitimate critics and rivals for power, regardless of their political affiliation, were indiscriminately condemned as "enemies" to be stopped by any means necessary. Grandiosity and bitter rancor began to set the tone of the Presidency, completely personalizing it in the process. Only those could qualify for the President's approval who shared his self-appraisal that he was a lion beset by jackals. In such an atmosphere what was more natural than the transfer to the domestic theatre of intelligence tactics traditionally used against foreign enemies, a real-life version of a James Bond script performed in our own back yard? Viewed in this chilling setting, many seemingly disconnected images again fuse into a pattern: the shuttered inwardturning world of the Presidency, supported by the fanaticism of personal loyalty; the cult of toughness ("balls"); the rise to prominence of kamikaze types such as Colson and Ehrlichman; the "enemies" list, and the Nixon-ordered 1969-71 wiretaps of staffers and newsmen.

Nixon's activation in July 1971 of the "plumbers" unit is enormously significant. For the first time in American history, a Chief Executive formed an espionage network, a secret intelligence system answerable only to himself and operating outside the law and the Constitution. To most Americans such an action must seem borrowed directly from the manual of a police state, but as Nixon saw it, he could do no less, for, as he told Mardian at San Clemente in July 1971, his capacity to govern was threatened. No member of the White House staff close to Nixon was permitted to forget that a sanction against Ellsberg was an obsessive Presidential priority. His orders were to "get" Ellsberg; had he not

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learned from his other "crises" that capture of the offensive by a bold stroke was the most effective way to deal with "enemies" out to "get" him? Had he not by such tactics triumphed over Alger Hiss, another Eastern intellectual, twenty-five years earlier?

Ehrlichman, Krogh, Dean and the rest must have felt very much like the courtiers who heard Henry II's angry cry against Thomas à Becket, "Will no one rid me of this turbulent priest?" The formation of the plumbers' unit; the CIA involvement; the burglary of Dr. Fielding's office; the tenacious surveillance; the hoaxlike covers (national security, "prosecutibility"); the barrage of grand jury subpoenas in Boston and Los Angeles; the organized attempt to assault Ellsberg on the Capitol steps in May 1972; the attempt to influence the outcome of the Ellsberg trial by offering the trial judge the directorship of the FBI; the deliberate suppression for weeks of the evidence of the burglary; the invented laxness of Hoover and the FBI-are all the fruits of the President's nightmare reaction to the Ellsberg affair. In his May speech, Nixon described the situation as "so grave as to require extraordinary actions," an organized effort to "find out all it (the plumbers' unit] could about Mr. Ellsberg and his motives." If there was a "White House horror," this corrupt use of power, unmistakably instigated by the President, was it.

Significantly, a major frustration of the Cox investigation was the Administration's refusal to turn over materials relating to the plumbers. And it will be recalled that the President admittedly told Asst. Atty. Gen. Henry Petersen last April "to stay out of national security matters" when interrogating the master plumber, Howard Hunt.

Popkin's Ordeal

Despite the claim advanced to witnesses that the Ellsberg grand jury in Boston was a legitimate law-enforcement proceeding, newly revealed background facts establish that it was merely a branch of a White House project intended primarily to develop material which would smear Ellsberg and inspire extralegal sanctions against him. For all of the spooky rhetoric used by Hunt, the grand jury proceeding was part of a campaign of political gangsterism made familiar by such films as Z. It had a dual objective: to give color to the suggestion that Ellsberg was a victim of some repellent psychic deviation (preferably sexual in origin) and to identify him as a member of a conspiratorial ring with ties to Russia.

Two memoranda on the "Pentagon Papers project" in the Watergate record are revealing. The first, dated August 11, 1971, from Krogh and Young to Ehrlichman, reports on the progress of the Boston and Los Angeles grand jury proceedings and the preparation of a CIA psychological study (considered "disappointing" and "superficial"), and proposes the seizure of Dr. Fielding's records by a "covert operation," which Ehrlichman approves "if done under the assurance that it is not traceable." This memo corroborates testimony that the major focus in the Ellsberg matter was on personal smearnot, it should be noted, that such apparatchiks as Liddy

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and Hunt had difficulty with the notion that a man who had "turned" from ardent hawk to a midnight purloiner of national secrets was indeed deranged.

The memo establishes that both grand juries were feeding into the plumbers, who coordinated and evaluated the data received for inclusion in a comprehensive investigative "game plan." But when Ellsberg's counsel, six months later, attacked the Boston grand jury on the ground that its process was being improperly used to develop evidence for the Los Angeles case, the ISD lawyer vigorously denied it. And his Los Angeles colleague took the same position when Ellsberg moved the court for a protective order to prevent the use of the Boston grand jury as a source of evidence for the Los Angeles trial. The courts relied on these questionable representations in denying relief.

By August 26, plumber David Young had broadened his vision. Initially the aim of the project had been, to use Young's euphemism, "the development of a negative image." Now, according to a memo of that date, a new theory was developed as the result of a meeting with Congressional moguls: Mardian, a Justice Depart ment functionary, and the Defense Department's general counsel, J. Fred Buzhardt. The notion that Ellsberg was a "prime mover" was to be abandoned in favor of the hypothesis of a subversive conspiracy of insiders (Halperin, Gelb, Warnke and others), already victims of Nixon-sponsored wiretaps. And if the break-in produced usable "negative" material, it should be released through a Congressional investigation, not by press leaks. (This last was the contribution of White House aide Patrick Buchanan.) Plumber Egil Krogh in a recent press interview has solemnly averred that this entire project was presented to him by the President as a "matter of the most urgent national security." The break-in was intended not for any squalid smear purpose, but to verify a hypothesis that Ellsberg was "involved with a foreign power" in an intrigue to damage President Nixon's peace with honor strategy. Krogh never explained how Ellsberg's emotional problems could throw light on this thesis.

The Boston investigation, first by bureau agents and then by the grand jury, fits well the objectives discussed in the memoranda and establishes that law enforcement was a flimsy cover. One person interviewed by bureau agents, Everett E. Hagen, director of the Center for International Studies at M.I.T., where Ellsberg had an office, reports that the questions he was asked dealt mainly with personal qualities: "I had the feeling that they would have liked me to say, 'Dan Ellsberg's a kind of odd person; he stands on his head in his office every afternoon.'

FBI agents also interrogated Samuel Popkin, then a Harvard faculty member specializing in Vietnamese village life. The interview commenced on a curious note. As Popkin recalls, one agent began by making this observation: "We would like to ask you questions about Dan Ellsberg. We want to understand him and we need your help." The leitmotif of the interview was expressed through terms such as "emotions," "stability" and "psychiatric." "I had the impression the agents were trying to elicit negative comments about Ellsberg.... All sorts of questions were also asked me that didn't sit right like,

THE NATION/November 19, 1973

'Does Ellsberg seem to be a nervous person?' 'Is Ellsberg emotional?' 'Is Ellsberg erratic?" questions that at the time I thought were there to impugn the person, to try to paint him as a neurotic, or a crazy person, or a person with a grudge or a vendetta."

After unsuccessful attacks on his subpoena, Popkin appeared before the grand jury on August 19. "My first contact with the manipulative side of the grand jury," he recalls, "came when I asked the prosecutor, May I please be told the subject of the matter under inquiry?"

"The prosecutor reared up at me and gave a long lecture in a very stentorian voice, saying: 'The judges just told you that you may not ask this question, to appear here immediately and testify. Please don't keep these people waiting. Why are you trying to hold up the process of justice?"

"Not having immunity, I immediately took the First, Fourth and Fifth Amendments on totally trivial elementary questions: 'Do you read the Boston Globe, The New York Times?" "

But Popkin was soon confronted with more sensitive questions and unsuccessfully sought a protective order freeing him from the obligation of exposing confidential sources. His ordeal stretched on through the rest of 1971, as other subpoenas were dropped for a variety of reasons, including a deficient government denial of wiretapping in the cases of three other witnesses.

On January 18, 1972, Popkin again refused to testify, this time because of uncertainty over the continued validity of a previous grant of immunity. Finally, on March 29 he was held in contempt for having refused to answer seven questions before the grand jury two days earlier.

In his testimony, Popkin denied all knowledge of who might have possessed the Pentagon Papers before their general publication the previous June, or how they were distributed to the press. An unofficial transcript of the proceedings (printed in the Harvard Crimson) reads in part:

Q. Mr. Popkin, more specifically, do you know if someone possessed what is now known as the Pentagon Papers in Massachusetts other than to the extent you have previously testified?

A. May I see my lawyer?

Q. Mr. Popkin, as you know, a witness has the right to see his lawyers only on serious questions. You have been out of the room twice already for periods as long as ten minutes. You are now asking permission to leave the room for a third time. Is this necessary?

Q. Mr. Popkin, do you recall an immediate reaction that was formed in your mind upon hearing about original stories in The New York Times about who may have been the source?

A. I request permission to see my counsel.

Q. Mr. Popkin, how can your counsel be of use in this case? We're asking you about your immediate re

action.

A. I request permission to see my counsel.

Q. Mr. Popkin, you are being asked about your immediate opinion, how can your counsel be relevant? A. 1 request permission to see my counsel.

Q. Mr. Popkin, you are stretching things for this

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grand jury. Your exits from the room have been ranging about five minutes. This is an inconvenieneb for the grand jury. c vi

Popkin eventually gave answers to these questions, after intense intimidation and harassment by the prosecutor. However, he refused absolutely to divulge to the jury his "opinions" about who might have had access to the documents.

Q. Mr. Popkin, perhaps I should rephrase that question. What is your opinion as to persons you believed possessed the Pentagon Papers in Massachusetts prior to June 13, 19717

A. Is this grand jury really asking me to violate confidences necessary to my research, simply to discover my opinion?

Q. The grand jury does not answer questions.