Of Telecoms, and "Twisting Slowly, Slowly in the Wind": Watergate Reprised

By Jeffrey Breinholt

As Congress continues to consider the regulatory regime necessary to “permit” the President to engage in national security-based wiretaps, it is important to put the current debates into historical perspective. The canvass upon which the wiretap authority is now being argued is the Foreign Intelligence Surveillance Act (FISA), a 1978 statute that was a response to litigation that arose during the Watergate era. That litigation, contrary to popular belief, did not reach the question of whether the President had inherent authority to conduct electronic surveillance with respect to the activities of foreign powers, within or without the U.S. U.S. v. U.S. Dist. Court, (Keith), 407 U.S. 297, 308, 321-22 (1972). If such authority existed, it is unclear how it was impacted by FISA, which arguably governs legal authority where the surveillance target is a domestic person or entity.

I am known as a Watergate junkie, and it remains my favorite historical topic. Shortly after joining the Department of Justice in the fall of 1990, I took it upon myself to read every Watergate book I could find. I watched all of the television retrospectives that tend to be broadcast on the anniversaries of the break-in, went to book signings and lectures, and followed with great interest the various historical theories and the news that accompanied the gradual opening of archives. I visited the locations where certain Watergate-related events occurred, and got to know many of the surviving characters. I now know far more trivia about 1970s-era government misdeeds than is good for me.

The volume of Watergate-related books has now slowed to a trickle, which makes it easy to keep up with new revelations. The biggest mystery came to an end on May 31, 2005. Deep Throat, it turns out, was Mark Felt, the person who, according to historical consensus, ran the FBI during the two-year period between the Watergate burglary and Richard Nixon's resignation. This revelation terminated an entire industry of amateur sleuths and historians.

The revelation hit me particularly close to home, requiring me to reexamine long-held beliefs about what it means to be a public servant. This is because Mark Felt was one of my kind - a career law enforcement officer who presumably survives from year to year irrespective of which political party happens to be in power. For those of us in that category, assuring professional success requires strict adherence to the standards of what we proudly call the “career professional.” This means being loyal to whoever is in charge, respecting the position even if not the person who occupies it, not getting too close to either political party, and certainly not jeopardizing sensitive, ongoing investigations with loose talk. It is something that is seared into our conscience from the day we take the oath of office.

I ended up sorting out these feelings by writing a law review article which examined Felt’s motivations and attempted to place him somewhere along the hero-villian continuum.

Now, many of the Watergate players are dead, and the first-person accounts tend to be infrequent. Egil Krogh recently published a volume entitled Integrity, in which he gives advice young government employees. My favorite character from Watergate, John Dean, has refashioned himself as a critic of the Republicans, and he has written a series of books that compare the current Administration to the Nixon White House he served. These books, however, deal only peripherally with the Watergate scandal, and fail to satisfy addicts like me. That is why I was pleased to see the late Patrick Gray’s In Nixon’s Web (Times books, 2008). Written with the help of his son shortly before Gray’s death, it is a real Watergate book. It sheds light on many of the things I have been wondering about.

Watergate involved wiretaps, which is the hot topic right now in Congress. Just like today, Watergate occurred in the waning days of an unpopular war, and during a Presidential election season. The Watergate scandal involved the politicization of national security, because of the White House’s attempt to contain a political scandal by claiming that a thorough investigation of the burglary would jeopardize sensitive sources and methods. In this sense, the current debates over electronic surveillance are inapposite, as there is no evidence that the Bush Administration targeted surveillance at their political rivals.

However, when one considers what happened to Patrick Gray and Mark Felt in the aftermath of Watergate, one comes closer to an apt comparison.

Gray served for slightly less than a year as acting FBI director, before his performance at his confirmation hearings made the Nixon White House lose confidence in him. Their response was, in John Ehrlichman’s famous words, to let Gray “twist slowly, slowly in the wind.” Gray’s revelation that he took possession of the contents of burglar Howard Hunt’s safe from White House counsel John Dean and burned them in his Connecticut fireplace proved to be the death knell of his hope to succeed J. Edgar Hoover. Gray took himself out of the running, and returned to Connecticut.

It was then that things got very weird. Gray and Felt, along with Edward Miller, were indicted on civil rights violations by Jimmy Carter’s Justice Department, because of warrantless surveillance they allegedly approved within the U.S. What was their motivation? It was the threat of terrorism. This was clear both in The FBI Pyramid, Felt’s memoirs, and from Bob Woodward’s book about Deep Throat, The Secret Man.

This theory is supported by Gray. It is also obvious that terrorism was high on Gray’s agenda during his stint at the FBI. In Nixon’s Web describes how airline hijackings occurred at a rate of once every two weeks in 1972, a frequency hard to imagine even now, in another age of terrorism. During his directorship, a group of black radicals killed several people at a country club in the Virgin Islands. Gray complains in his book that no one in the Nixon Administration wanted to take responsibility for fighting the growing Palestinian terrorist problem, where Al Fatah appeared to be collaborating with the Black Panther faction headed by Eldridge Cleaver. The U.S. was simultaneously facing a growing domestic threat from the Weather Underground, and from the American Indian Movement which took over Wounded Knee. Aggressive efforts seemed to be in order.

When the Nixon Presidency went down and Jimmy Carter won a close election against Gerald Ford based on his promise to correct these excesses and bring integrity back to the White House, the top levels of the FBI were sitting ducks. Gray, Felt and Miller were indicted for the FBI’s counterterrorism excesses. This is no doubt what many of the current critics of the Bush White House hope will happen if Hilary Clinton or Barak Obama win in November.

There’s only one small problem, which should make these critics take a deep breath: it seems Gray was innocent. Many of the FBI excesses were done without his knowledge. His attorney, Alan Baron (a friend of mine, and not a Republican) was able to get Gray’s charges dismissed. Felt and Miller were not so fortunate. They were convicted. I suppose one can say that justice was served, judging by the fact that the government won. After all, legal results do matter, unless you are a nihilist.

However, there is this little thorny fact, which should give pause to those who argue that FBI agents (or telecommunications providers who help them) should face legal liability for aggressive government counterterrorism operations: when heads were rolled in the aftermath of Watergate, they included that of Mark Felt, who we now know was Deep Throat. Of course, no one knew that at the time, since Felt was not willing to come out as Woodward's famour source. It remains a mystery to me why he did not tell his prosecutors his pivotal role in publicizing the political excesses of the Nixon White House. After all, he would have likely been embraced as a hero by the Left.

The answer, I now believe, was because Felt was not proud of his role in the scandal. Only he knew his own motivations. His cooperation with Woodward was not because he was shocked by warrantless entries, as some have speculated. After all, he was guilty engaging in the same activities in an attempt to gain intelligence on the whereabouts of Weather Underground fugitives. It was probably because he wanted to be FBI Director, and felt slighted when Gray was selected.

Gray does not go easy on Felt, who repeatedly lied to him when asked whether he was responsible for the leaks. The same is true of the other FBI executives Gray worked with, who he describes as petty, insular, and prone to character assassination. Gray, for example, had to fire the Special Agent in Charge of the Los Angeles division, who complained about the very things Felt mocked in his memoirs: Gray’s use of the FBI’s plane, and his decision to bring a chef into the FBI Headquarters. Meanwhile, Gray had enormous respect for the FBI rank and file, and describes the FBI as the greatest law enforcement agency in the world. Going after Gray because he was too loyal Nixon’s political henchman was probably a mistake. After all, these henchmen, it is now known, turned on Gray because he was not sufficiently loyal.

What about Felt? I believe he deserves some credit for trying his best to keep the FBI clear of the scandal, but for less than honorable reasons. Felt revered J. Edgar Hoover, and was steeped in the late director’s tradition. When Hoover died, Felt was part of the old guard who tried to hold out against any change. The biggest crime for them was doing anything to make the FBI look bad, which is why they resented the political interference in the Watergate investigation. This is what makes his prosecution in the post-Watergate climate difficult to understand.

In the end, the only thing that stood in the way of Felt and Miller going to jail for their aggressive counterterrorism actions was a Presidential election. They were pardoned shortly after Ronald Reagan was inaugurated. Was their prosecution political? Richard Nixon, then in exile in San Clemente, testified in their defense, which must have been somewhat uncomfortable for Mark Felt, given his role in Nixon’s undoing. The top Department of Justice official in charge of their prosecution leaked grand jury information to Bob Woodward which, last I checked, is a criminal offense. Had Felt and Miller not been pardoned by a Republican President who thought they should be treated as heroes rather than criminals, the people who were crying for blood after Watergate would have had to come to terms with the fact that the system turned on Deep Throat, the person most responsible for keeping the scandal alive and the public informed.

This is, I think, an important lesson for those inclined to view counterterrorism through a partisan political lens. It is important not to turn our venom inward out of frustration with how things are going in the United States. The Americans who are fighting terrorism are not the enemy, any more than Mark Felt was a Nixon loyalist. What about Patrick Gray? He grew to despise Nixon and his henchmen, writing that he never envisioned that he could be the spider who would weave a vast conspiratorial web that was the wreak the lives of so many other Americans his administration. Lumping Gray with the other villains of “All the President’s Men” is a mistake, just as it is unfair to act out against telecommunications providers for the whole host of frustrations with the current White House.

In terms of Watergate lore, In Nixon’s Web contains some other nice elements. Gray’s son, in a post-script, argues that Woodward and Bernstein have not been entirely truthful about the identity of Deep Throat, claiming that it was a composite of many people beyond Felt, including one Donald Santarelli, a wonderful guy and great raconteur and lunch companion. (I must confess that this prospect makes me feel a little bad, because I wrote a facetious e-mail to Don shortly after the Felt/Deep Throat revelation, congratulating him for being off the hook.) In terms of the current debates, it also has some other amazing tidbits. For example, a young Colin Powell makes an appearance in the book, and it is interesting to note that there were discussions about creating a domestic intelligence agency as far back as the 1970s. The more things change ….

The views in this article do not reflect those of the Department of Justice.

TrackBack