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HOW THE FBI CREATED A CULTURE OF LAWLESSNESS:
A Review of Athan Theoharis's Chasing Spies


By MARK S. ZAID


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Friday, Aug. 9, 2002

Athan Theoharis, Chasing Spies: How The FBI Failed In Counterintelligence But Promoted The Politics Of McCarthyism In The Cold War Years (Ivan R. Dee, 2002).

Though the Cold War may have ended with the collapse of the Soviet Union, revelations concerning espionage between the two superpowers during the Atomic Age will never cease to be a subject of intense interest. Historians, in particular, have relished the opportunity to review previously classified documents that detail the Soviet Union's espionage activities within the United States in the 1940s and 1950s.

As more and more documents become publicly available, scholars hope to answer some of the still-lingering questions - such as whether the panic caused by Senator Joseph McCarthy and his accusations that Communists had infiltrated the U.S. government had any basis in reality.

Athan Theoharis, a professor of history at Marquette University, has spent years researching the history of the FBI. In particular, he has tirelessly used the Freedom of Information Act to obtain thousands of declassified FBI documents. The result has been several important books on the FBI, secrecy and the interplay of civil liberties.

Chasing Spies and Its Revelations: The Previously Secret Venona Project

What is so tantalizing about Chasing Spies is that it is almost exclusively based on original documentation from the era; a feast for professional or amateur historians alike. Most notably, the books analyses recently declassified records from the Venona Project, the official existence of which was only made public in 1995.

Venona was the codename used for the U.S. Signals Intelligence effort to collect and decrypt the text of Soviet KGB and GRU messages. The intercept program, a top-secret military intelligence effort that began in 1943 and was formally closed in 1980, involved analysis of more than 2000 communications.

As Theoharis chronicles, the messages revealed the existence of Soviet operatives working undercover in the United States, and included references to the Manhattan Project, KGB tradecraft and the activities of the American Communist Party. The information was turned over to the FBI which, ostensibly, was to use the information to develop leads that would, in turn, generate arrests and convictions for espionage.

However, the Venona information has been interpreted to support two very distinct conclusions. To some, because the information confirmed that Soviet spies indeed operated in the United States, as McCarthy claimed, the information proved that McCarthy-era fears about Communist infiltration of the American government had more validity than thought previously.

But others have pointed out that the information can also be read - quite to the contrary - to seriously undermine the contention that the "red scare" of the 1940s and 50s was justified.

It is the latter view that Theoharis adopts. In particular, his work reveals the FBI's crucial hidden role in generating a culture of suspicion and blacklists that helped fuel McCarthyism beliefs rather than vindicate McCarthy's allegations.

Evidence of An FBI-Created "Culture of Lawlessness"

As Theoharis interprets them, the documents raise "disturbing questions about how secrecy, ostensibly for counterintelligence reasons, undermined limited, constitutional government based on the rule of law and accountability." They also represent, he argues, "the politicization of intelligence and a successful cover effort to influence opinion."

The documents reveal that Hoover allowed the Democratic administrations of Roosevelt and Truman, from whom even the existence of the Venona Project may have been kept, to suffer political and public criticism for the Soviet espionage activities - criticism the FBI itself should have been forced to face. "McCarthy and his followers," Theoharis comments, never suggested that the FBI might bear responsibility for Communist subversion, having failed to uncover the Soviet espionage threat" - particularly because the FBI was leaking information to selected members of Congress .

Theoharis also details how clandestine--and often unlawful--surveillance techniques precluded the prosecution of several valid espionage cases. And he rightly questions the effect of the FBI's intensive monitoring of suspected Communist activists - surveillance that dated back to the 1930s. During this time, the FBI often obtained evidence through illegal wiretaps, break-ins, mail openings and other illicit means. As a result, none of the evidence obtained was admissible in a court of law.

This result raises important questions about the consequences of the often-illegal monitoring and evidence-gathering: Did it actually prevent Soviet agents from obtaining Atomic secrets , and to what extent? If so, was the preventive effect worth ruining criminal prosecutions of all those who were later revealed (in decoded communications intercepts) to have actually been involved in espionage activities?

The FBI's Illegal Activities Undermined Prosecutions - But Not the Rosenbergs'

To have pursued prosecutions with any degree of success, the intelligence community would have had to disclose the existence of the intercepted Venona cables. But that was something the government was unwilling to do.

Moreover, in order to indict Communist Party officials for violating the Espionage Act, or for failing to register as Soviet agents, the FBI would have been placed in the "awkward position" of having to disclose its embarrassing investigative techniques. As a result, criminal prosecutions of suspected Soviet agents - such as Theodore Alvin Hall, a young physicist working for the Manhattan Project and whom the Venona messages revealed had provided the Russians with nuclear weapons secrets - never occurred.

On the other hand, the prosecution of Julius and Ethel Rosenberg, both of whom were convicted and executed for spying in 1953, was an exception. Theoharis points out that "FBI officials did not need to disclose the Venona messages in order to indict and convict" the Rosenbergs, because they were able to find other witnesses to testify against them. Interestingly, although the cables revealed that Ethel knew of Julius' activities, no evidence surfaced that she was a co-conspirator. Thus, the Venona documents no doubt add fuel to the long-standing debate, still raging a half century later, as to whether Ethel should have been executed, much less convicted..

A Strong Indictment of Hoover's FBI

In the course of his research for the book, Theoharis read thousands of pages of previously classified documents - much of their text still blacked out more than 50 years later. Having done so, he concludes that while the "motivations of FBI officials may have been sincerely patriotic, based on their own political views of the nation's security interests ... their decisions to leak information to ideologically supportive members of Congress and journalists nonetheless damaged a democratic system of limited government."

Though the documents discussed in Chasing Spies are primarily 50 years old, the underlying counterintelligence dilemma that is revealed - containment of a serious threat, versus adhering to law enforcement norms and respecting individual rights- is just as valid today in the war against terrorism as it was in the Cold War days of Communism. The lessons of the past may help guide our nation's law enforcement and intelligence communities as they currently struggle to protect our citizenry yet still remain dedicated to preserving the civil liberties we hold dear.


Mark S. Zaid is a Washington, D.C. attorney who is Of Counsel to the law firm of Lobel, Novins & Lamont. Mr. Zaid specializes in national security, FOIA and First and Fifth Amendment cases. He is also the Executive Director of The James Madison Project, a non-profit organization that seeks to reduce secrecy and promote government accountability.

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