Tom Hayden on the Chicago Conspiracy Trial
The Filmmakers: Did you expect the protest outside the 1968 Democratic Convention in Chicago to turn violent?
Tom Hayden: Did I expect it to be violent? Yes. The reason to expect violence was first of all experiential. That is, since the invasion of Vietnam in ’65, the state had been increasingly violent towards demonstrators. Demonstrators had escalated from purely peaceful protest to non-violent civil disobedience to what you could call confrontations in the streets, unarmed, non-violent, but physical — usually started by police attacks on demonstrations. So I had experienced that several times before Chicago ’68, and there was no reason to believe it would be otherwise. It didn’t mean that one favored violence, it’s that one anticipated it and took precautions.
Rennie [Davis] was our lead negotiator. Jerry [Rubin] and Abbie [Hoffman] were kind of in their own way negotiating but that was more like a dream state. Abbie and Jerry offered to leave town if the city paid them $100,000, and that became a side issue where nobody knew what was reality, which was proving their point. Rennie did actually negotiate with the city. The [U.S.] Justice Department under Ramsey Clark sent community relations people out, Roger Wilkins was one of them, Wesley Pomeroy was another. And they sat down with Rennie and Tom Foran in a bar and talked, and they concluded verbally and in writing that our position was reasonable and that the city should accommodate it. That there was no reason, since all kinds of youth organizations could sleep in the parks, there was no reason to deny permits to sleep in parks [even] if it meant that it was going to be chaos. They also favored permits for marching within eyesight of the Convention. And the position of the city of Chicago, which I think was backed by others in the federal government, was ‘No, no, no. Why don’t you understand. No.’
An article that appeared in the Chicago Sun-Times, Wed., Aug. 21, 1968;
Courtesy of Emily and Sarah Kunstler.
We kept thinking that this was the customary tactic to keep people away because of fear — how could musicians come if they didn’t know if they had a permit, for instance? — and that at the end the city would give in and give us permits. Well, they never did. And so then it just became a rising self-awareness that the police would be physical, and we should either leave town, surrender our civil liberties to protest, or take to the streets in what we thought was an embodiment of the First Amendment right to protest that cannot be suspended. And maybe, we thought, maybe the shock of the confrontation would force the city and the federal government to back up. There were many in the Democratic party, many in the government who thought it was ridiculous not to allow permits, but it never happened until the final day. Strangely this permit came floating out of City Hall, which was surreal, nobody knew whether to believe it. That was the day of the greatest violence; it was the day we had a permitted rally.
The violence was mild compared to the violence inflicted on the black community after King’s assassination when Mayor Daley gave ‘shoot to kill’ orders. The violence was mild compared to the shooting of Fred Hampton and Mark Clark, Black Panthers, during our trial. But I guess for white American middle-class sensibility and for journalism, the exposure of all this violence, all these beatings, all this gassing on a cross-section of American young people was a shock. It was like a coming-out of violence that had been fairly invisible I think at that point in the evolution of television and protests. This is not to belittle the violence, it’s to put it in some context.
Scenes from Chicago; Courtesy of Emily and Sarah Kunstler
I was beaten up a couple of times, but I don’t remember any bruises. I was gassed. The gas is bad. You know, every serious American should be pepper-gassed once because the police always say, ‘Oh, that’s our less-than-lethal weapon.’ (Laughs) But exposure to it and the way it shuts your organs down and makes you nauseous and there’s no escaping it is a form of less-than-lethal torture, but definitely torture. And I think a number of people were hurt more than I was — wounds to the head bleed profusely, so you can’t tell how bad it is. Rennie had his head cracked open and blood was all over him, but he recovered without a concussion. One person was shot and killed: A seventeen-year-old Native American the night before it all began in Lincoln Park. He’s been completely eliminated from the narrative of Chicago. Medical teams were beaten up. Approximately sixty reporters, mainstream reporters, were beaten up or gassed. Dan Rather was punched by Chicago police on the floor of the Convention. (Watch YouTube video.) It was outside and inside. It wasn’t limited to a wild-in-the-streets kind of operatic thing that is portrayed in the media.
Filmmakers: Were you aware that you were under surveillance?
Hayden: We were under surveillance during the whole trial and during the events of ’68. Yes, I was aware of it. First, because it was my general orientation. I knew that this was the way police behave. Secondly, it kept getting revealed during the trial that people we knew of were agents. So if they were coming on the stand as agents from the year before, why wouldn’t there be agents during the trial as well? (Laughs)
I think that the FBI in coordination with local police departments like the Chicago police infiltrated organizations like the Black Panther Party, the Mobilization, and SDS after 1966, certainly by 1967, and by early 1968 put us on special lists of people, like myself, who were targeted for what they called ‘neutralization.’ Now I know in James Bond movies that means assassination, it’s a loose term. But it usually meant spreading rumors, fabrications, false leaflets, false phone calls, to undermine leadership and get people quarreling with each other.
I’ll give you an example. One thing was the famous Black Panther Party letter that was sent to somebody’s home, a threatening letter, and used to eliminate somebody from the jury at the very beginning of the trial and put somebody else on the jury. The letter was a classic FBI disinformation letter written in large block, semi-literate print, and it was signed, I think, ‘The Black Panthers,’ or something. It was signed in a way that the Black Panthers never signed anything. And it was just handed to the unsuspecting member of the jury who was shaken by it, and she was then removed from the jury. To me, and to all the defense, that was a clear manipulation. We called for a complete investigation into it, believing at that time early in the trial that words were to be taken seriously. (Laughs) The judge agreed and then later documents revealed that no investigation was undertaken at all. As a matter of fact, investigation of the sources of the letter was forbidden by the prosecution. The only thing that was allowed to be investigated were fingerprint samples taken from the piece of paper, and I have no idea what resulted from the fingerprint samples.
We know from subsequent records and declassified materials that there were agents all the way from ’68 through the trial, that they, FBI and Chicago police agents, shared surreptiously gathered material with the prosecutors and with the judge. We know that by admission on the record. We know that they were listening in at various points by surveillance to meetings of the defense, meetings of counsel. Meetings having to do with evidence, witnesses, basis for appeals, all of that. So there may be more to come, I don’t know what it is, but the record shows that our suspicions were not exaggerated.
We were charged by the incoming Republican administration in Washington after the Johnson administration [and] Attorney General Clark had recommend against indictments and wanted it treated as an investigative matter best left to state and local courts if there were some misdemeanors or state felonies. Instead, [Nixon administration] Attorney General Mitchell met with our prosecutors in early 1969. I interviewed those prosecutors in 1987. And they said one reason to go ahead with the prosecution was that they didn’t want us to get away with it. On the other hand both of our prosecutors had been in the streets in August, September, ’68, and were quite aware of the police brutality and out of control behavior and had actually filed eyewitness reports on it. So they knew that the state had a problem proving its case.
What it came down to, according to prosecutor Foran in talking to me was, as he put it, he wanted us to sit on a needle for a very long time, as if sitting on a needle would keep us inactive and would bring about the demise of the movement. And even in 1987, twenty years later, he believed that they had succeeded but that, as he put it, then came Kent State and it started all over again.
I think for President Nixon … uh, we all replay our past, and he had come to his prominence with Senator Joseph McCarthy and the anti-Communist crusades. And the model was to crack down on a vertically organized Communist Party and take out their leaders, so the same would be true here. You would get the Mobilization, the Black Panther Party, and the Yippies and take out their so-called leaders and somehow the organizations would be immobilized or set backwards.
I think the trial was given a symbolic meaning by the media as a watershed in the ’60s — there’s always a watershed, there’s always a turning point — because it was such an easy thing to see this variety of the Black Panthers, and the SDS, and the Anti-War, and the Hippies and Yippies versus cops, prosecutors, the state, with the war in the background. So it became a kind of visual drama that played its way into the sensibility of all those who were watching. I’m not much on symbols, but I believe that’s what it was about symbolically. What it was really about is power. The power of the state to suppress dissent versus the power of social movements to stand up in the face of repression.
The Chicago 8: (top) Rubin, Hoffman, Hayden, Davis; (bottom) Seale, Weiner, Froines, Dellinger.
The trial was an arduous challenge. The workload was very, very heavy. I was a principal attorney even though I’d never gone to law school. I spent every night ’til three, four in the morning going over testimony, transcripts, preparing witnesses, getting ready for the next day while drinking alcohol, then coffee, and then getting up at seven and driving, usually in freezing weather, downtown to voluntarily submit myself to a zoo. To a place where there was no sign of respect for due process or anything like that, and then go home the next day and start again. I thought Abbie was exaggerating but it was an accurate insight when he said, “This is like a neon oven.” That’s what it felt like to me.
I was chosen to have responsibility for making sure that the whole defense carried forward and I wasn’t a lawyer. So I was kind of the shot-caller, the strategist. As for myself I wanted to try to win the case within the system or expose the system in such a way that we would win on appeal. So I was always preoccupied with, you know, what’s the government’s evidence? What’s our rebuttal to that evidence? What witnesses do we have? How can we put on a story of who we are? And my hope was that we would find one juror out of twelve who would go with us and vote for acquittal no matter what the pressure.
I think Bill [Kunstler] shared the view that we should go for that single juror, and he certainly shared the view that we should try to create a record in the trial that would allow us a rational appeal to the Seventh Circuit Court of Appeals. I think all the defendants gradually came to that view. I can’t remember the sequence of it, but it became apparent. Jerry and Abbie, um, I-I’m sorry that they’ve passed, I don’t really know if I can tell you accurately what they thought. They did think for sure that there was a chance for theater, and they wanted to have celebrity witnesses and get on television at all costs, with their tactics and with their witnesses. When it came to how to put a witness on, what was testimony and what was gonna be disallowed, what was gonna be the cross-examination, they were less clear. They kind of left that to the attorneys.
And I remember there was a turning point where we didn’t know what we were gonna do, and we had a meeting. And I … I was angry, and I said, “Look, there’s not gonna be any space for theatrics in prison. You might be sexually molested and have your throat cut by guards that hate you and inmates that they put up to it. So this is your choice. Ten years in prison, which our lawyers have advised us is likely, three years off for good time, which is impossible — to have a good time in prison — so it’s probably ten years with all the dangers of ten years in prison. Or, we have to win this case. We have to put on a first-class defense to win the case in the courtroom or before the jury.”
So I wanted to turn the jury into an example of, not civil disobedience, but … ’cause we have a right to disobey authority, jurors have a right to nullify a law. It’s little used and never mentioned by attorneys or the judge. I wanted one juror to stand up and say ‘No,’ which they were totally entitled to. As it turned out, there were four who wanted to but they were so browbeaten, exhausted and misled and manipulated that they didn’t know that they could or that that’s what we wanted. So they went along with an absurd verdict, which was not factually based, which it’s supposed to be. (Laughs) It was, ‘Well, we’ll find them guilty on one charge, which we don’t believe they’re guilty of, if you’ll find them not guilty on the other charge, which you don’t believe they’re guilty of. So we’ll come out with a compromised verdict: Guilty on one, not guilty on the other.’ It was ridiculous, but that’s what they did.
Filmmakers: What are the myths of the Chicago Conspiracy trial?
Hayden: One of the myths is that it was just a wild time. There’s a repeated theatricality about it. There’s a play on every year or few years in Los Angeles and elsewhere. There have been attempts to capture the experience in films. This could be because the kind of people who are artists and directors see the theatricality. There’s a stage, there’s a judge, there are defendants who act out. So it could be as simple as that. But it obviously — the artistic mind captures the essence of my generation like nothing else that’s available for performance and for study. And what happens there is that the truth becomes cloudy because there’s a certain measure of artistic license. Certain people are more theatrical than others, all of the excitement of the trial and confrontations have to be compressed on stage or in memory so that it just seems like bedlam as opposed to a five-month very slow, gradual process.
In general the moments of confrontation were few and far between. And believe it or not they actually had causes. They were not like random acts of mindless disruption. The first and primary cause, of course was the chaining and gagging of Bobby Seale, the chairman of the Black Panther Party. We don’t know to this day, and we may never know, who actually ordered the remedy. Obviously the judge had to be part of it. But who’s in the back chamber telling the judge what to do and how to do it? In any event, we knew it was coming, some showdown was coming, and this would be like the first phase of the trial was climaxing before we got to the rest of it. And then it just happened.
I mean, they gave us a noon break and then they ordered the guards, the marshals, apparently, to chain him to a chair, a metal chair, ankles and wrists, and then gag him with a … how would they put it? Put a tape around his mouth so that he could no longer talk. And of course, before you get to the morality of this, there was the folly, the folly of power thinking that this could work. (Laughs) That you could literally somehow silence somebody by wrapping tape around their mouth. You try it. It just changes the sound from words to moaning and, uh, gurgling and yelling. And, it doesn’t eliminate the sound at all. And then you have the ghastly sound of chains because you’ve got metal chains attached to a metal chair. So now you’ve got a black man moaning in anger with a tape around his mouth and rattling the chains, which re-takes you all the way back to slavery. There, it hit everybody in the room very, very hard. It certainly was not what Bobby had expected or Garry had expected or anybody had expected. But these things are kinetic; they’re fluid. They don’t … history is not predetermined, this just happened. And then the state had to scramble its way out of it. But it left this indelible impression around the country and around the world that in America treatment of black people like slaves was not over. Far from it.
There were other causes [for confrontation]. One day Dave Dellinger was taken away and put in jail for having given a speech. So that’s the first issue. The studies show that most of the contempt citations occurred in three periods of less than two days or three days out of five months.
I suppose there’s another myth that the judge was insane or he’s demeaned as being senile, because his head bobbed and some of the defendants called him Mr. Magoo. This myth makes it seem like it was a farcical deviation from the logical history of American justice. [It] makes it appear that it was a Chicago phenomenon wired by Mayor Daley and police who were overreacting to mere demonstrations and a judge who was overreacting himself.
There’s always a grain of truth in myth, obviously. But in fact, the decision to indict us came from the newly elected and installed Nixon administration in a meeting, I believe, between Attorney General John Mitchell and the prosecutors, Mr. Foran and Mr. Schultz, shortly after Nixon was sworn in. And I think that if you go back to the actual events in ’68, the police response was not just a local police riot but it was coordinated by the FBI and intelligence agencies, many of whom had people inside the protest groups. So viewed that way, it was a serious attempt to recreate the repression of the McCarthy period in the early ’50s, and to use a cast of characters as symbolic actors to be suppressed in order to achieve a chilling effect on the movement, or to put the movement on the defensive. So those are two examples of the mythology that’s grown around the trial. But there are others.
Why is it important to remember the Chicago Conspiracy trial?
Hayden: Well, it’s important to remember the ’60s. There’s no new reasons for advocating memory. I mean there’s … some people try to remember in order to propel a legacy of the past forward in a new generation. Some people want to wipe memory out so that those rebellions are never heard about, taught or repeated. Some people in the middle — most people are in the middle — want to manage the memory so Chicago becomes an aberration, a kind of a breakdown of the system that was quickly restored and put back together, as opposed to a window into the true nature of the system and what it does.
So the struggle for memory seems to me all-important especially because I began without memory. I wasn’t raised on the Left. I don’t know what radicalized me, and many therapists and analysts have tried to figure it out, including my closest friends. I came from a middle-American, lower-middle-class Catholic household with no previous political associations. I was not affected by the progressive movements of the past, by McCarthyism. I came face to face with people of my generation who were going to jail in the South, against segregation and against the lethargy of their parents’ generation, and it touched me in a very deep way at a particular time. It laid out a lesson. I fully intended to be a newspaper reporter or journalist of some kind, a writer, and I always have been curious, non-conformist, but oriented to writing. But I just couldn’t only write about these students who were taking such risks. I decided very gradually to join them.
I came out of SDS (Students for a Democratic Society), I was a community organizer from the South, I was an organizer in Newark. I saw Vietnam as an invasion of my space. I saw it as ending the hopeful first half of the ’60s. I saw it as diverting money and resources and time and energy and blood to a foreign war instead of the war against poverty that had been going on for fifty or sixty years and the hundred years of Jim Crow and the rest of it. So I joined the anti-war movement in ’65, ’66, and gradually realized that I wasn’t gonna get about succeeding in my domestic issues if we didn’t end this war. So I thought there was a possibility of putting enough pressure on the state, then dominated by the Democrats, to force a choice: To either get out of Vietnam or lose their authorities and possibly lose an election. Remember, our generation couldn’t vote. That wasn’t an option. So the idea of being in the streets was a forced choice, it wasn’t entirely voluntary. It was the only place to be, or so it appeared.
I think Abbie said the same thing in his testimony. “What did you do before 1960?” “Nothing. I think it was called a college education.” He knew nothing until the movement came along. So there’s a lot to remember about the ’60s.
Why Chicago? We can’t do anything about it. Chicago has become iconic. It eclipses other things that are equally important or more important, like Kent State, many other things. We have little control over that, how iconic moments get chosen by the public, the historians, the media and so on. So Chicago has to be seen as a case where we’re privileged to serve as a stand-in for many others who stood up and sacrificed their time and their resources and in some cases their blood for what we all stood for. So I think of it as an opportunity to make the most of the story of Chicago to tell the larger story. And nothing more, nothing less.
All extended interviews were provided by the filmmakers and edited by Andrew Lutsky.