The FBI After the Hoover Era

FOR the present, President Nixon has chosen not to try to fill J. Edgar Hoover's shoes. In order to avoid turning the succession into a political issue during an election year, he named only an acting director. If Nixon wins reelection, he will settle on a permanent successor after November. If he loses, White House Press Secretary Ron Ziegler suggested last week, he will leave the selection to the new President.

His interim choice is 55-year-old L. Patrick Gray III, a burly former Navy captain who has been a Nixon friend since they met at a Washington cocktail party in 1947. A graduate of George Washington University Law School, he served for a time as a legislative and legal assistant to the Secretary of Defense. Gray left the Navy in 1960 and worked in Nixon's presidential campaign against J.F.K., then joined the Administration in 1969 as an executive assistant in HEW. In 1970 he moved to the Justice Department as Assistant Attorney General. Gray, who bears something of a resemblance to Hoover, insisted that his relationship with Nixon--and his mandate as acting director--is strictly nonpolitical.

Awesome Power. Others were not so sure. For all the guise of a basically noncontroversial interim appointment, an Administration had succeeded for the first time in almost 50 years in gaining political control of the FBI. Had Nixon selected a strong, less politically active permanent director--such as Supreme Court Justice Byron White or the Army Chief of Staff, General William Westmoreland--the new man might have preserved a measure of Hooverian independence. But by settling on a temporary director who has such close personal ties to the President, Nixon opened the way, in theory at least, for remote-control direction of the FBI by the White House.

Because Hoover was unique--and because the problem of succession has never arisen before--his death posed the most fundamental questions about the nature of the FBI. What is its role in American society? Who should control it? How should its awesome power be checked and balanced?

In theory, the FBI has always functioned as the Justice Department's investigative agency. The director is charged with investigating all violations of federal laws except those assigned to other federal agencies, such as postal cases and narcotics crimes. The bureau has jurisdiction over some 180 investigative matters, including espionage, sabotage, treason, kidnaping, extortion, bank robbery and civil rights, and of course has powers of arrest for violations. As Hoover saw it, "The FBI is strictly a fact-finding agency, responsible in turn to the Attorney General, the President, the Congress and in the last analysis, the American people."

But Hoover exercised a broad and crucial discretion. It is ironic that contrary to the general impression, he often served as a restraining influence in internal-security cases. One of the Nixon Administration's chief complaints about him was that he was not sufficiently aggressive in the use of wiretaps, electronic eavesdropping and the other "dirty tricks" of the trade in cases involving campus disorders, racial unrest and leftists in the antiwar movement. Hoover's standard in such cases was protective of his institution: he hesitated to undertake any investigation that would not be supported by popular opinion.

So the first crucial question is how the bureau should be controlled: by a czar like Hoover running a virtually autonomous agency within the Justice Department? Or by a director under closer supervision of the Attorney General? The question is complicated by the fact that the office of Attorney General has recently become an increasingly political appointment (e.g., Robert Kennedy, John Mitchell).

On balance, it seems wiser to have an FBI under direct Administration control. Certain safeguards could prevent political abuses. The Omnibus Control and Safe Streets Act of 1968 already stipulates that new directors of the FBI must be confirmed by the Senate, thus providing one review. But Congress should inspect the bureau's budget and operations on a continuing basis, instead of unquestioningly rubber-stamping appropriations as it did in Hoover's time. Certainly the director's term should be fixed by law in order to prevent another man from establishing a life tenure.

Other checks have been proposed. A citizens' review board--lawyers, judges and other experts appointed by the President--might be established as a kind of public watchdog over intelligence investigations. Or as is done with the CIA, a special congressional committee could oversee the FBI.

The Democratic Policy Council, a group organized to formulate party policies, has some recommendations. Says Courtney Evans, a council member who is a former assistant director of the FBI: "Some way must be found to maintain the integrity of the FBI, at the same time providing policy guidance and direction in security and intelligence investigations, particularly in areas where there is likely to be a legitimate difference between freedom for individual citizens and security for the Government itself."

Dragnet. Some experts have suggested that the Justice Department's Internal Security Division--a unit separate from the FBI--draw guidelines for the investigation of subversives, rather than leaving the matter open to FBI interpretation. Why was Senator Edmund Muskie's name mentioned in an FBI report on a 1970 Earth Day rally, for example? Agents were assigned to the rally to keep an eye on Rennie Davis, who was then awaiting trial in the Chicago conspiracy case, but including Muskie's name in the report created at least an impression of indiscriminate dragnet surveillance. Strict guidelines might also provide that any extraneous information be deleted from agents' reports before they achieve a dangerous permanence in the bureau's files.

Some have suggested that the FBI be split into two separate domestic investigative agencies;--one for subversion and one for crime. Such a formula would at least reduce the present concentration of power in the FBI director. A more extreme proposal is to parcel out the FBI'S myriad investigative functions to other federal bureaus, leaving the bureau itself with only a small corps of agents working for the Attorney General. Both ideas seem slightly perverse. The efficiency and performance of the bureau were seldom questioned during the Hoover era, only the policies of the director himself, or simply the fact that one man--whatever his policies and politics--was wielding too much power. To dismantle the FBI's investigative machinery because of the director's policies might be equivalent to junking an excellent automobile because its driver was considered, in his last years, erratic.

Whether Nixon or any President will be moved to revamp the system that J. Edgar Hoover built remains to be seen. An FBI without Hoover seems an anomaly, so entwined were the man and his machine. For this reason, it might be advisable for the President to appoint a special commission of lawyers, police experts and judges to examine the FBI's functions and its future.

Their job would not be easy, for while Americans want security they are always uneasy with secret power.

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