KEEP OUT! JULY 5, 1996 TRANSCRIPT

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Polls show a majority of Americans are skeptical of the benign explanation offered by the White House regarding its obtaining of FBI files on prominent Republicans. Fifty seven percent believe the Administration has engaged in a deliberate attempt to gain confidential information about a political opponent. A NewsHour panel of historians looks at the history of the relationship between the FBI and the White House to put the situation into context, and to discuss why Americans feel so strongly about their privacy.

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A RealAudio version of this discussion is available.

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June 26, 1996 -- The Paper Trail.The House Government Oversight Committee questions staffers involved in the Clinton White House/FBI files scandal. June 20, 1996 -- FBI Files Hearings. The Senate Judiciary hearings on the release of classified FBI files to the Clinton Whitehouse. June 19, 1996 -- Regional Commentators on the FBI Files. Jim Lehrer talks with the NewsHour's regular panel of regional commentators about the alleged "bureaucratic snafu". June 19, 1996 -- FBI Files: Nagging Questions. The House Government Reform and Oversight Committee opens hearings on what the White House has called "a bureaucratic snafu". June 14: Margaret Warner talks to two Congressmen involved in the FBI file/Whitehouse investigation

MARGARET WARNER: Now for a look at why this kind of issue seems to resonate so, we're joined by three NewsHour regulars, Presidential Historians Doris Kearns Goodwin and Michael Beschloss, and Journalist/Author Haynes Johnson. They're joined by Terry Eastland, a fellow at the Ethics and Public Policy Center, and editor of Forbes Media Critic Magazine. He authored a book on the Presidency and formerly served in the Reagan Justice Department. Welcome, all of you. Michael, give us just a sense of the history of this relationship between the FBI and the White House, a little historical context.

MICHAEL BESCHLOSS, Presidential Historian: Well, Margaret, you know, there are very few bedrock expectations that Americans have about American politics, and one of them for the last 20 years or so has been that Presidents do not in any way abuse the FBI.

In 1974, one of the counts of impeachment against Richard Nixon was that Nixon misused the FBI, and in the course of the Watergate investigations during that scandal, we discovered, we, Americans, that for several decades before then, from Franklin Roosevelt through Richard Nixon, there was a pattern in which Presidents would call for FBI files containing the most sensitive and oftentimes damaging information about their political opponent.

This began particularly with Franklin Roosevelt, who used them in some cases during World War II. He made the argument that we were fighting a Second World War, there was a national security justification. Some of the later Presidents during peace time had no such argument. So you had Presidents doing this pretty consistently--although unknown to the American people--through Richard Nixon and then at the time of the Watergate investigations, people got very upset about this, so in an exchanged between the Senator from Georgia, Herman Talmadge, and John Ehrlichman, the Nixon aide, in which Talmadge said one of the principles of our law is that if a man owns a house, without his consent even the King of England cannot come in and violate his privacy. Ehrlichman's reply, which is very emblematic of the Nixon administration at that time, was, that principle has eroded over time.

Talmadge replied by saying, "Down in my part of the country, it's a pretty strong principle." Since the Watergate revelations, we've always assumed that Presidents don't do this. So now with what we've heard about a possibility of misuse of the FBI, whether by a snafu or otherwise, people are very upset.

MARGARET WARNER: Why do you think we do have this history, Haynes?

HAYNES JOHNSON, Journalist/Author: It's deep in the bone. I mean, what he--what Michael was talking about, J. Edgar Hoover, the head of the FBI, was the most revealing figure. I grew up as a boy in New York and you had Gangbusters on the radio, and every American boy had--wore a little emblem, and the Gangbusters were the FBI. They were incorruptible. So to find out that they abused and kept and hounded and kept secrets on people really changed me. But it's even deeper than that. Our revolution was about the fear of power and privacy and being--having troops put into your, your village, or a militant in your house. That's what liberty was all about, so this tension between the power of the state and the freedom that we need has always been throughout our history.

MARGARET WARNER: And LBJ, Lyndon Johnson, was one of the greatest users of the FBI, wasn't he, Doris?

DORIS KEARNS GOODWIN, Presidential Historian: What happens is information that is contained in the FBI files is power for a President. So what would happen, Hoover and Johnson, unfortunately, they made a great duo, because Hoover would have all this information that would come out not just on people who were national security risks but columnists who had written anti-Vietnam columns would suddenly find their FBI files on Lyndon Johnson's desk. He would sit around at night with a drink and say, look at this Teddy wise guy, I know that he's a Communist empathizer, look at Joe Craft. Last night, Dobrynin, the Soviet ambassador, was at his house, and that's why he's writing this anti-bombing column. He also had FBI reports done on George Hamilton, who was dating Linda Byrd, his daughter, just to see if he could find some discrediting information, so that he could convince his daughter not to go out with George Hamilton.

MARGARET WARNER: And would he talk about this very freely with you and other staff?

DORIS KEARNS GOODWIN: He loved to talk about it. It was one of the ways he relaxed at night, which is a terrible thought. In fact, I feel that Roosevelt relaxed that way too. I think there's something about Presidents when they get in a bunker mentality and they're being criticized from the outside in, they take this malicious pleasure in talking about other people's foibles. So he would talk about the sex lives of the Senators, but more importantly, the Senators knew that he had those files, so if he wanted them on something, he could get it. He knew that Hoover had things on him, so there were times when he wanted to get rid of Hoover, but that's when he made that great statement, "It's better to have a skunk outside the tent looking in, versus inside looking out." (laughter)

MARGARET WARNER: Well, Terry, do you think the President always thought--or justified in some way--and if so, how?

TERRY EASTLAND, Former Reagan Justice Department Official: Well, that's interesting. Michael related the history on back to FDR. But, in fact, we can even fit history earlier than that. In World War I, we passed the Espionage Act and the Sedition Act. This was a time of grave concern for national security. National security has really always been the rationale, usually offered by Presidents, certainly through Nixon, in fact, Richard Nixon was thinking about the Vietnam War, and he was thinking about--he called it his situation in a war time context, and that was the justification that he offered for doing what he had proposed. Incidentally, you know, in 1970, I believe it was, Richard Nixon had come up with a plan co-authored by Tom Houston, one of his aides, that was especially invasive, if you will, of privacy considerations. I mean, this would have called for war.

It was searches--it would have called for infiltration of a number of groups and yet this was, in fact, rejected by the FBI to rectify it by Hoover at the time. He thought that this was completely unconstitutional. Nonetheless, these were done, nonetheless in the Nixon years. I think what Bill Clinton has unavailable to him is quite striking. He doesn't have a national security rationale as to what he's been doing. He's, of course, not even tried to invoke one.

MARGARET WARNER: Well, and we have to point out here no one has said that he knew anything about it, and we don't know the facts in that. What--but Haynes, Hoover most of the time was very much a self-starter, wasn't he, I mean, even when Presidents didn't ask him to get involved?

HAYNES JOHNSON: A self-starter and self-promoter, both. I mean, he was--

MARGARET WARNER: They went together.

HAYNES JOHNSON: Absolutely. And he would, he would have these files. He would bring, as Doris said, he would--he would give them to the people or let you know that he had something on you. He did it with the Kennedy brothers. He did it with the--he did with across-the-board. An entire generation or two of Americans grew up in power fearing the excesses or abuses J. Edgar Hoover had over their lives.

DORIS KEARNS GOODWIN: One of the things that Hoover did was that during the Roosevelt administration when Roosevelt asked him to look into the activities of isolationists because he feared it was a national security danger, he on his own looked into liberals he hated, including Eleanor Roosevelt, so meanwhile, while he's giving these files to Roosevelt for national security, he's investigating Roosevelt's own wife, the First Lady of the United States.

HAYNES JOHNSON: They bugged--

DORIS KEARNS GOODWIN: It's an amazing story, what Hoover did.

HAYNES JOHNSON: They tapped phones on Eleanor Roosevelt.

DORIS KEARNS GOODWIN: And nobody could get anything on him, so the problem was they were all so indebted to him because they knew what he knew that they could never get rid of him. Nixon wanted to get rid of him later, but Nixon knew that Hoover knew that Nixon had authorized wire taps on six Kissinger aides and on more columnists, so he knew that Hoover would tell if he got rid of Hoover, so his men were there.

MICHAEL BESCHLOSS: You know, every President worried about the kind of files that Hoover had, and it was also, oddly enough, a tool of the imperial press--we talk a lot on this panel about Presidential power. One area of this that was really unseen by the American people during all this period was that Presidents really had the power and they used it to use the FBI and in some cases the Internal Revenue Service to harass political opponents.

And someone like Richard Nixon would say I know that every President since Roosevelt has done this, that there's something that we don't talk about very much, not very pretty, but it's something that Presidents do for important purposes, and the result is that now that they are deprived of doing this, we don't have a situation where, for instance, a columnist who may not be entirely current on taxes or someone else with sensitive things in his or background, those people might have been chaste, and oddly enough it's a wonderful thing that this is true, but the Presidency is somewhat weak.

HAYNES JOHNSON: Let me give you an example. I remember when I was writing on the civil rights in the 60's, I had to go places like Birmingham or in Selma, places like that, came back one day, the FBI office, and there the top guy to Hoover had all the files on Martin Luther King. They had 'em open, and he left the room. There were the files on King.

MARGARET WARNER: Sitting there.

HAYNES JOHNSON: Sitting there alone now. I'm in this room. There are the files. Now I looked.

DORIS KEARNS GOODWIN: Sure. How could you not look?

HAYNES JOHNSON: That was what the whole point was. Nobody could say they gave it to me or leaked it. It wasn't--there they were. They were just--he left the room for quite a while and those were the files. That's the kind of thing they were doing. People abused in this case--

MARGARET WARNER: How did one know this, or was it just known in the political community?

DORIS KEARNS GOODWIN: I think it was mostly known inside until, as Michael mentioned earlier, after Watergate and after Hoover died in 1972, finally the Senate had a series of hearings, and that was the first time I think there was a real public exposure. I remember being shocked when they said every President from Roosevelt, including Truman, including Eisenhower, including Kennedy, including Johnson, all of them had misused the powers somehow, looking for national security information, but interpreting that as critical information on their opponent. It's as if dirty tricks in the campaign philosophy worked its way into the Presidency and the White House, so they used the FBI as a tool for themselves, and I remember the country was pretty shocked at that time.

MARGARET WARNER: All right. Let me ask you this. Do you think that Americans, more than people elsewhere, are concerned about privacy? I mean, if you look at this particular place in the Clinton White House, things were just people's files were looked at. Thus far there's been no proof that any political use was made of them. And yet and in the polls, the public seems concerned.

TERRY EASTLAND: Right.

MARGARET WARNER: Why do you that it is?

TERRY EASTLAND: I think Haynes is right. It's a little tradition that goes back to our founding. I don't think it began to blow up so large though until this century with the advent of big government especially, with the--the Cold War period, especially also, but I think it's interesting in 1974, we passed a privacy act, and this was one of the post-Watergate reforms, if you will, and I think that that act expressed a concern that people had at that time that had been made more obvious as a result of Watergate, what we discovered in that period, made more obvious the concern to try to protect people's privacy against an unauthorized disclosure of information.

MARGARET WARNER: Well, what did you mean about the connection with big government? You mean, Americans feel--

TERRY EASTLAND: I think the larger the government becomes the more centralized it becomes, the more powerful it has--and certainly that has been the story last century. I think--we have greater law enforcement tools right now, and the FBI, in fact, we're talking about what it does to these background investigations, but it has enormous investigative authority right now under recent statutory authority, and this can be used, and again the question is: how do we constrain that, how do we properly channel that?

HAYNES JOHNSON: And that's the real, that's the dilemma, isn't it? Because it's always been there. In the Civil War, Lincoln talked about most of society being too strong to preserve its own liberties or too weak to survive, and so every President and every time you go through a crisis--we're doing it right now with the picking up of these militia groups. You tap their phones, you follow them. You infiltrate, you invade their privacy--and because they may be dangerous people who may blow up the building, and I think this is a continual--

DORIS KEARNS GOODWIN: I think the problem is--

HAYNES JOHNSON: --contention point.

DORIS KEARNS GOODWIN: Half of the people who are getting this information now have so overrun our capacity to create checks and balances. I mean, when the framers worried about it in the Declaration of Independence actually, the framers talked about the importance of protecting life, liberty, and the pursuit of happiness against government intrusion. That's part of our heritage.

The Constitution, the 4th Amendment of the Constitution says no unreasonable searches and seizure against your person, your privacy--they don't say privacy but your house and your property. Well, that can be used in today's word. It's still your reputation if it's out there in some file, and we don't have ways of protecting it today, to match up to this enormous data gathering information that we can get. Do you agree? Do you think it's more a feeling of our privacy being threatened, is more intense today?

MICHAEL BESCHLOSS: I think it is greater because you have things, technology that makes it much easier to be invasive, and I think one of the most important safeguards against all of this, as it often is with constitutional rights, or at least rights that are rooted in the Constitution as the right to privacy, is, is for Americans to get very upset when there's any suggestion that there is an invasion and sort of bring those full circle, even the possibility that through a bureaucratic mistake, if that's what it was, that seven hundred or three hundred or four hundred or however many of these FBI files made it into the hands of people who should not have even seen them, if we don't get upset about this, then you might have a future President who perhaps is a little bit less careful in protecting these rights who will say the FBI, perhaps the IRS, these are important tools that perhaps I can use and I won't get caught using them.

HAYNES JOHNSON: It goes beyond FBI. It's--we're all linked to computers. Right now, as we speak, out there a few miles away, all of our lives are whirring through computers, and you can stop in the second and find out where you were born, who your parents were, what your health history was, what your economic history was. I mean, it's just like that. And the power to, if you wanted to abuse that, is, is astonishing today. We ought to feel nervous--

DORIS KEARNS GOODWIN: If I could pick up, I think, on what Michael said, which is that it seems that the outrage has produced positive results in the past. After World War I, when as you mentioned, Terry, they used these FBI things to get espionage against labor unions, against Jane Adams, people that didn't deserve to be caught in the net--then in 1924, they had rules. You couldn't use political intelligence operations. But then the war came along and those words slipped. After Watergate when people got upset, new rules were put in place. It may now be time for some new harsher rules.

TERRY EASTLAND: What's interesting about the current episode is that the FBI very quickly investigated what happened. The general counsel, Howard Shapiro, issued a statement in which he characterized what had happened as a massive, a massive invasion of privacy, a wholesale invasion of privacy. Clearly, there is a question here as to whether the government, meaning the FBI here, did wrong. There may be a lawsuit, I understand, filed this week on this precise point. But I think--

MARGARET WARNER: You mean, even though he said the FBI was--

TERRY EASTLAND: Right.

MARGARET WARNER: --"victimized"--

TERRY EASTLAND: Right.

MARGARET WARNER: In fact, the burden may be on the FBI.

TERRY EASTLAND: The question would be this: If you simply get a request from the White House, have, have you at the FBI taken enough care to consider whether--

HAYNES JOHNSON: That's a very good question.

TERRY EASTLAND: --whether, in fact, it is appropriate to send back to the White House the request that has come to you. And I think the FBI clearly did err, and that's what Howard Shapiro has said publicly, and that's what Louis Freeh has said publicly. Already, the FBI has put in place a number of constraints, new constraints, new rules, new regulations to try to ensure that now the FBI will not simply hand over any file that's asked for.

HAYNES JOHNSON: Terry, you worked for the Justice Department. I assume that in the Reagan Library, your files are there.

TERRY EASTLAND: I'm sure they are.

HAYNES JOHNSON: Just as an example. I mean, that's another kind of question. Should they be?

MARGARET WARNER: Right, because that's come out at these hearings though. One reason these files had been removed was that the Bush administration archives now--

HAYNES JOHNSON: Right.

MARGARET WARNER: --include the files of every single person who worked there.

HAYNES JOHNSON: True.

MARGARET WARNER: So you think, Michael, we're going to see a kind of reaction to this?

MICHAEL BESCHLOSS: I think we should, and I think it's just nothing but healthy. It's a good thing that a flood light is put on this issue in a way that it probably hasn't over the last 20 years. Frankly, that hasn't happened because, as far as we know, there hasn't been a larger view for this kind of thing by a President, but this is a tension that's really going to run through American politics in the future. One quick example, the anti-terrorism legislation that's been proposed in the wake of Oklahoma City. One good thing about that is that it's going to help our federal government to get information about people who are going to endanger our safety. One bad thing could be that our liberties and our privacy could be infringed. You've always got to look at this as a trade-off.

MARGARET WARNER: Attention and a temptation. Thank you all very much.

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