Vengeance Under the Law

In the fall of 1974, two months after Richard M. Nixon left the White House, a Federal judge in South Dakota pronounced what may become history's verdict on the U. S. Department of Justice in the Nixon years. The judge, Fred J. Nichol, had presided over the eight-month trial of the leaders of a group of American Indians who had occupied the town of Wounded Knee in the spring of 1973, a case in which he found "the misconduct of the Government ... so aggravated that a dismissal must be entered in the interests of justice."

"The waters of justice," Judge Nichol said, "have been polluted."

It was a long record. Judge Nichol had found, among other things, that the FBI had altered or suppressed documents vital to the case; that there had been illegal electronic surveillance; that an FBI agent had perjured himself on the witness stand; that Government agents had probably persuaded law-enforcement officials in Wisconsin to drop rape and sodomy charges against the key prosecution witness in return for favorable testimony; and that the witness, appropriately named Louis Moves Camp, was probably not even in Wounded Knee during the time about which he testified. "The prosecutor," said Judge Nichol, "was grossly negligent in failing to verify Moves Camp's testimony and, further, in failing to offer an explanation or correction of his testimony in the face of overwhelming contradictory evidence." The plain implication was that the Government had suspected that its star witness had been a liar from the very beginning. Judge Nichol said:

The prosecution in this trial had something other than obtaining justice in its mind.... The fact that incidents of misconduct formed a pattern throughout the course of the trial leads me to the belief that this case was not prosecuted in good faith or in the spirit of justice.

The record at Wounded Knee contained elements that had become tediously familiar in the more notorious cases of the Nixon era, though few judges before Watergate (or, indeed, since) were willing to go as far as Nichol in chastising the Government. In every major political case--Wounded Knee, Daniel Ellsberg, the Gainesville trial of the Vietnam Veterans Against the War (V.V.A.W.), the Harrisburg trial of the Kissinger kidnap "conspirators," the prosecutions of Weathermen, the conspiracy prosecution of the Chicago Seven--the Government employed illegal wire taps, suppressed evidence or used provocateurs who encouraged criminal acts. That record, however, represents just the most visible part of a Byzantine tangle of investigative and prosecutorial techniques and intrigues that ran from the lowest levels of law enforcement to the inner councils of the White House and that involved local police, the FBI, the CIA, the Internal Revenue Service, the "plumbers," the Defense Department, the Intelligence Evaluation Committee (IEC), the National Security Agency (NSA) and other agencies. The objective was not merely to "neutralize" New Left and black militant organizations (as outlined in secret FBI directives issued six months before Nixon was elected) but to use the criminal-justice system in every possible way against all the "enemies" of an increasingly defensive Administration.

Most of the elements were familiar long before Nixon became President and John N. Mitchell his Attorney General. The roots went back to the beginnings of American history and beyond, to the Alien and Sedition Acts, one of which made it a penal offense "to publish any false, scandalous or malicious writings against the Government of the United States," to the great Red scare of the Twenties, to the McCarthyism of the Fifties and to a dour puritanism of the country that its prosecutors never quite outgrew. There were ghosts in those courtrooms, spooks and specters who had rattled around criminal trials for centuries--Spanish inquisitors in matters of heresy, long-forgotten attorneys general, American and British, specialists in the Star Chamber and informers and provocateurs from every age. There was U. S. Attorney General A. Mitchell Palmer, the "fighting Quaker," who, in 1920, raided the offices of radical groups, rounded up "alien Bolsheviks" and, without trial or hearing, shipped them out of the country; there was Joe McCarthy himself, clutching his lists of "Communists" and demanding on penalty of contempt of Congress that ordinary citizens inform on their friends; and there were scores of prosecutors with their target lists of gangsters, subversives, deviants, freethinkers, liberals, professors, atheists and other bad people who had to be put away.

Nor were the tactics new. Some were developed by the Justice Department under Robert F. Kennedy, and some, including the burglary of selected "targets" in "national security" investigations, had been used in prior administrations and later dropped. J. Edgar Hoover, later to become director of the FBI, began his career in 1919 by helping assemble 60,000 dossiers on "Reds" and radicals for the Justice Department; Kennedy, later to become Attorney General, learned some of the tricks working for McCarthy's committee. It was Kennedy's Justice Department that stretched the concept of interstate crime, permitting Federal prosecutions and grand juries to include anything that involved travel across state lines, interstate telephone calls or checks drawn on out-of-state banks. It was Attorney General Ramsey Clark, now a hero among civil libertarians, who ordered the prosecution of Dr. Benjamin Spock and others (on conspiracy charges) for counseling draft resistance; and it was Clark who in 1967 set up the Justice Department's Interdivision Information Unit (IDIU), a computer data bank on people likely to be involved in urban riots or potentially useful in cooling them. Clark instructed Hoover that "sources or informants in black-nationalist groups should be developed and expanded to determine the size and purpose of these groups and also to determine the whereabouts of persons who might be involved in instigating riot activity in violation of Federal law." (In simple language, that meant keeping activists under surveillance.) More important, prosecutors had frequently used some variant of the hit-list technique against labor racketeers and Syndicate figures in an effort (usually through the tax laws) to put them away. That process came full circle when, in 1973, James R. Hoffa, who had been pursued for years by Robert Kennedy, went to Los Angeles to hire Leonard B. Boudin, Ellsberg's chief counsel, in his attempt to regain the right to hold office in the Teamsters' Union.

Mitchell and the Justice Department fused the old elements with new surveillance and data-processing technologies, changed the hit list and put the system to work in the service of an Administration with an obsessive need to control every facet of the political environment and with an apparently chronic inability to distinguish the national security from its own. At the same time, the White House, under Kissinger's influence, began to see foreign-policy problems in distinctly Central European terms, which, among other things, meant secret diplomacy and an absolute need to control the flow of what it regarded as sensitive information. In a time of total or popular war, such a view would have been sustained by consensus--it is inconceivable, for example, that any newspaper would have published something like the Pentagon papers in 1943--but the consensus had broken down, protest had become fashionable and the credibility gap was immense. Everyone, from the lowest hippie to the editors of The New York Times, had become an enemy. The whole apparatus of Government would therefore be brought to bear on the broad spectrum of people who disturbed the peace in the Oval Office.

The operating center, the organization with the muscle, was the Internal Security Division (ISD), a branch of the Justice Department that had been more or less dormant since the days of McCarthy. In 1970, ISD was beefed up by Assistant Attorney General Robert C. Mardian, a tough-talking political organizer who was one of the Administration's major links with the right wing of the Southwest (he had been a Goldwater campaign manager in 1964) and who, in the words of a White House aide who often worked with him, "can't tell a kid with a beard from a kid with a bomb." Mardian would ultimately be convicted--with his patron, Mitchell--under the same conspiracy laws that he so often used against the left. But while he headed ISD, he came to symbolize the Administration's definition of law and order.

Under Mardian and his successor, A. William Olson, ISD became an aggressive investigative and prosecutorial machine specializing in draft resisters, Weathermen, sympathizers of the Irish Republican Army, left-wing professors, Ellsberg and the Pentagon papers, Catholic pacifists, members of the Jewish Defense League and a variety of radicals, hippies and bombers. "The way to do it," Mardian allegedly told a senior FBI official, "is to set up a list of key leaders and we target them for prosecution, and we go after them with blanket coverage 24 hours a day until we get them."

The trouble with Mardian, the FBI official said later, "is that he was a hip shooter."

ISD pursued its targets on three levels: through prosecutions, through an extensive, freewheeling network of grand juries and through other "investigations" that depended in part on a special relationship that Mardian had developed with William C. Sullivan, deputy director of the FBI. Mardian used Sullivan, who had ambitions to succeed J. Edgar Hoover, to get around the director. While Mardian and Hoover were ideologically compatible, Mardian's ISD lawyers had a penchant for running their own investigations without waiting for Hoover's jealous collaboration. Hoover, for example, balked at ordering FBI interviews with his friend Louis Marx, Ellsberg's father-in-law, in the weeks after the Pentagon papers were published. When an FBI official, misreading Hoover's instructions, ordered agents to interrogate Marx, Hoover blew up and demoted the culprit.

Sullivan was Mardian's conduit. Without Hoover's knowledge, he delivered the logs and transcripts of the so-called Kissinger wire taps on reporters and Government officials to Mardian in September 1971. The fear was that Hoover, worried that Nixon might replace him, would use the wire taps to blackmail the Administration. Whether that special relationship also led to activities (such as burglaries) that Hoover had prohibited remains anybody's guess.

•

It is still impossible to put it all together. It would take a bank of computers and the imagination of a novelist. In the shadow world of competing intelligence organizations and double agents, truth always has two faces. Probably even the Justice Department doesn't know--and doesn't want to know--how much dirty work was done by Federal agents, how many bombings were inspired by Government provocateurs or how many plots evolved within conspiracies within other plots. During his "debriefing" after the Watergate burglary, plumber G. Gordon Liddy told Mardian that "we pulled two [jobs] right under your nose," one of them the burglary of the office of Ellsberg's psychiatrist. Among the many informants who infiltrated the V.V.A.W. in 1971--1972 was a paid FBI provocateur named William W. Lemmer, who was the organization's only serious advocate of "bombing and shooting" in the planned demonstrations at the 1972 political conventions. Among the Weathermen who planted a series of bombs in 1969 and 1970, the most skilled and enthusiastic bomb maker was a gun-toting FBI informer-provocateur named Larry D. Grathwohl. And among the Camden 28, a group of religious war resisters, was an FBI informer named Robert Hardy, who later confessed that he was the one who provided the encouragement, supplies and technical skills to carry out the draft-board raid in Camden, New Jersey, in which the group was arrested. Hardy also claimed that his FBI contacts had promised him that the group would be stopped before the raid actually took place but that "the higher-ups, 'someone at the Little White House in California,' they said, wanted it to actually happen."

There is no way to know how many provocateurs and double agents never surfaced or how many bag jobs were pulled by Federal agents or (more likely) by local police collaborating with Government investigators. After Watergate and the disclosure of the Ellsberg break-in, almost every movement lawyer and every radical organization recalled burglaries in which only address lists, membership records and other key documents had been taken. There were literally dozens, but perhaps the strangest took place at Goddard College in Plainfield, Vermont, where, in 1970, the identification photo of a former student and radical activist named Ronald Fliegelman was removed from the college files by persons unknown. A few weeks later, the photo appeared on an FBI "Wanted" poster. It is possible, of course, that most of those burglaries were garden-variety second-story jobs and that only retroactive paranoia attributed them to more sinister forces. But Watergate made that sort of paranoia almost obsolete. What had been suspicion became fact, and whenever the Government was challenged in court on possible illegal activities, prosecutors either tried to avoid direct answers or moved to dismiss the case to prevent disclosure. In 1973, for example, after three years of extensive investigations, grand-jury hearings in a dozen cities and complicated legal jockeying, the Government was preparing to try a case in Detroit it desperately wanted to win, a conspiracy case against a group of people associated with the Weathermen. That summer, however, after the activities of the plumbers were disclosed, the judge in the case, Damon J. Keith, ordered an evidentiary hearing and the production of documents to determine whether and to what extent a long list of Federal agencies "participated in any activities with respect to the preparation or investigation of the subject matter of this case, which activities were unauthorized by any court, consisting of burglary, acts of sabotage, mail searches, electronic-surveillance devices, provocateurism, breaking and entering, or any and all other espionage tactics" against the defendants. At that point, the Government abruptly moved to dismiss the case.

The prosecutors of the ISD seemed to have a penchant for withholding and laundering evidence. In the generation after World War Two, Congress and the Supreme Court had established the principle that defendants in criminal cases were entitled to exculpatory evid ence in the possession of the Government (i.e., the names of possible witnesses, documents and exhibits that might indicate innocence), that they were allowed transcripts of statements Government witnesses had made to Government agents and that information derived from illegal searches such as burglaries or unauthorized wire taps ("the fruit of the poisoned tree") could not be used by the Government. In case after case, however. ISD prosecutors, sometimes abetted by tolerant judges, concealed such information by evasion, obfuscation, forgetfulness or something that verged on outright perjury. In the Ellsberg trial in Los Angeles, Judge W. Matthew Byrne:, Jr., ordered the prosecution to produce "damage" reports written by State or Defense Department officials that might indicate that disclosure of the Pentagon papers would not affect the national defense, a key issue in the case. For months, prosecutor David R. Nissen insisted that extensive searches of Government files had indicated that there were no such documents. Then, on cross-examination, a Government witness accidentally revealed that such damage reports might, indeed, have been written. After extensive questioning of a series of Government officials by an increasingly suspicious judge, it turned out that the reports had been produced by Defense Department analysts at the specific request of the Justice Department (which had found them "unsatisfactory") and that copies had been sitting in Nissen's own files in the Los Angeles courthouse for more than a year. Byrne: wanted an explanation:

Byrne: We are talking about the availability of a witness who could be called by the defendants who is an employee of the Department of Defense [who] told the Department of Justice that that particular document ... does not relate to the national defense. Now, don't you think that is material and exculpatory evidence ...?

Nissen: Your Honor, I not only think so, I know so.

There was more, not only in Los Angeles but in many other cases. In virtually every political trial, defense lawyers and judges were told that there had been no unauthorized wire tapping only to discover later that taps had been (continued on page 134)Vengeance Under The Law(continued from page 70) placed. In one Weatherman case, 12,000 conversations were overheard: "We had to buy an extra seat on an airplane," said a lawyer in the case, "to carry all those records." In the Ellsberg trial, the Justice Department did its utmost to conceal from the defense and the judge a maverick CIA intelligence analyst named Samuel A. Adams, who, going through channels, told his CIA superiors (who told Justice) that he could provide important testimony challenging Government evidence about the military situation in Vietnam. Defense lawyers eventually learned of him by accident. In the Gainesville trial of the Vietnam veterans, the prosecution denied that statements made to an FBI agent by a Government witness had been taken down and transcribed. When the witness testified that he had himself read and signed the transcribed statement, the prosecution denied that it was covered by the law and the judge's order that such material be turned over to the defense. In response to a subsequent order from the judge, the FBI agent "found" the statement in his files. At Wounded Knee, the prosecutor denied to the court that he knew anything about the rape and sodomy charges against his star witness or about the fact that Government agents had persuaded state officials to drop them; that fact, however, was known to the FBI, and, in the judge's words, "It is ... likely that the prosecutor was informed of the incident and tried to keep it from the defense and the court."

Even by the standards of honest prosecutors interested only in getting convictions, it was a dismal record. The partial box score in the major political prosecutions between 1969 and 1974:

The Chicago Seven conspiracy case: Illegal electronic surveillance and prosecutorial misconduct. Jury conviction overturned by the U. S. Circuit Court of Appeals on grounds of judicial error and bias by trial judge Julius Hoffman. The Government elected not to retry the case.

Harrisburg (the Kissinger kidnap case against Philip Berrigan and others): Illegal electronic surveillance, withholding of evidence by the Government, FBI informer. A hung jury favored acquittal (10--2) on all major charges; Berrigan and Elizabeth McAlister convicted for smuggling letters out of prison. The Government elected not to try the case again.

The Gainesville case against the Vietnam veterans charged with planning violent demonstrations at the 1972 political conventions: FBI provocateurs and informers; withholding of evidence by the Government and probable perjury by Government agents. Defendants acquitted of all charges by the jury.

Camden 28 (draft-board raid): FBI provocateur, withholding of evidence by the Government. Defendants acquitted of all charges by the jurors after Judge Clarkson S. Fisher had instructed them they could acquit if they found "overarching Government participation" in the raid.

Ellsberg (Pentagon papers): Illegal electronic surveillance, burglary, withholding of evidence by the Government and probable perjury by Government witnesses. Case dismissed by Judge Byrne.

The Detroit Weatherman case: Illegal electronic surveillance, FBI informer-provocateur. Case dismissed by Judge Keith on motion of the Government after Keith had ordered a hearing on Government misconduct.

Wounded Knee: Illegal electronic surveillance, withholding of evidence, perjured Government testimony, prosecutorial misconduct. Case dismissed by Judge Nichol after the Government refused to accept a verdict by an 11-person jury--before the 12th juror became ill, the full panel had decided on acquittal--and after the prosecutor told reporters that he knew the chance of conviction was "slim." Early in 1975, long after the trial was over, the defendants discovered that their "chief security officer," a man who had routine access to all the plans of the defense, was an FBI informer.

Yet even when they finally resulted in acquittals, the political prosecutions and investigations had a fearful effect on the lives of defendants and witnesses, in the cost of litigation (the Ellsberg defense alone cost $1,000,000; Chicago cost another $1,000,000. Wounded Knee an estimated $500,000) and, most significantly, in their chilling effect on the left and on protest in general. "In spite of all this joy and elation," said one of the V.V.A.W. defendants immediately after they were acquitted, "I can't forget the Government put me through 14 months of hell." Aside from the winding down of the Vietnam war, the work of the Justice Department between 1969 and 1974 may well have been one of the principal reasons for what used to be called "the cooling of America." It clearly helped cripple the V.V.A.W. in 1972. It drained the resources and energy of other groups and it frightened moderates away. "We had some effect," said Olson, Mardian's deputy and later his successor as head of ISD. "People don't like to be prosecuted." The mass protests stopped and the campuses became quiet, although the bombings continued. In January 1975, a few days after Olson made his remark, bombs were planted at the State Department in Washington and in the Federal Building in Oakland, California. After six years of investigations, the Government had managed to find only three members of the violent wing of the Weathermen. The hard core had never been prosecuted, but the protests had stopped.

•

Late in 1970, the face of Guy L. Goodwin, once described by a reporter as "a well-groomed handsome man with sculptured gray hair," appeared on a Wanted poster distributed by the radical left:

Name: Guy Goodwin

Occupation: Special Prosecutor for the Nixon-Mitchell Gang

Charges: Conspiracy against the People's Movement

Subject actively involved in Grand Jury Inquisition in Tucson, Seattle, Detroit, Washington, Manhattan, Brooklyn, Harrisburg, Cleveland and Los Angeles. Most recently seen around Madison, Wisconsin, and San Francisco, where similar trouble is expected. Subject is believed to be spearheading the drive to use the grand juries as an arm of the Secret Police.

Goodwin, who headed the Special Litigation Section at ISD under Mardian and Olson, once called himself "only a prosecutor." But in four years of running grand-jury investigations into the activities of the left, he developed (and perhaps curried) the image of the Grand Inquisitor. During that period, Goodwin and grand juries became almost synonymous--by his own count, he supervised more than 100 in 48 cities, conducting several of the most important ones personally. Yet he always remained a shadowy figure who refused to be interviewed and whom newsmen saw only in courthouse corridors. At the same time, however, he developed a symbiotic relationship with many of the witnesses who were called before his grand juries and with the left in general. In August 1971. for example, when Federal agents, having been tipped by their informer-provocateur, lay waiting inside the Federal Building in Camden to arrest the draft-board raiders, Goodwin was among them. At four A.M., as the trap was sprung, Goodwin greeted the raiders by their nicknames and personally passed out arrest forms that had already been filled out for each of the participants. He prided himself on his detailed knowledge of the radical left and apparently considered the "Wanted" poster a sort of tribute. A copy hangs in his office.

The game, however, was deadly serious. Under Goodwin, the Government turned the grand jury into a blunt instrument that was used not merely to determine whether there was probable cause for indictments but as part of an all-purpose investigatory process and intelligence system. The person who refused to talk to the FBI could be called before the grand jury and compelled to answer; if he refused, he could be jailed for contempt. The technique had been employed long before Nixon became President (usually against mafiosi and labor racketeers) but never as systematically, broadly and ruthlessly as it was under Goodwin and his ISD colleagues. What was in theory a "people's panel" designed to protect innocent citizens against arbitrary prosecution was turned not only on radicals and freaks but also on college professors, students, priests, journalists, lawyers, housewives and other middle-class people, many of whom had ignored or tolerated grand-jury abuse when it was used against "gangsters" and who now discovered that the same tactics were being applied to them. They learned that they had to face the prosecutor and grand jury alone and in secret (they could go outside to consult their attorneys); that they could be forced to answer any sort of question about their personal lives, friends and associates; and that even the constitutional privilege against self-incrimination had been eroded.

The erosion was significant. The Fifth Amendment to the Constitution was designed to protect individuals against forced confessions and intimidation by prosecutors. It was therefore (in the words of Justice William O. Douglas) "not only a protection against conviction and prosecution but a safeguard of conscience and human dignity and freedom of expression as well." Before 1970, prosecutors could grant "transactional" immunity that, at least in theory, shielded witnesses fearful of self-incrimination against any indictment for the acts about which they testified. That year, however, Congress passed an Administration-sponsored bill drafted by John Dean giving prosecutors the option of forcing witnesses to accept "use" immunity instead. Thereafter, a witness who testified could still be prosecuted, provided the evidence against him had not been derived from his grand-jury testimony.

For most witnesses, facing the grand jury was a shattering experience. "They scared the shit out of people," said Nancy Stearns, a lawyer at the Center for Constitutional Rights in New York. "Goodwin made people's lives miserable and loved every minute of it." The witness is alone with the prosecutor and the grand jurors (who usually just sit and listen and who will usually return any indictment the prosecutor wants); he can ask no questions and is not allowed to take notes.

"You're terribly self-conscious," said a woman who faced Goodwin in a grand-jury room. "It's the isolation and the loneliness. He can ask anything he wants; you can't ask any questions, and sometimes you don't even know why the questions are being asked. The whole thing was terrifying."

Goodwin denied that he was doing anything other than investigating crimes. "I'm amazed at some of the stories I've read," he told Lacey Fosburgh of The New York Times in a rare interview. "Frankly, we do our work just like any prosecutor.... The idea of amassing dossiers ... Government spying ... that I go around the [country] getting information and then prepare sociograms of the left--why, I don't even know what a sociogram is.... And we certainly don't have a data bank.... Oh, my goodness, it's just totally wild." Despite such disclaimers, the kind of witnesses the Government called and the sort of questions it asked suggested interest in something broader than specific crimes. Some of the questions were reminiscent of McCarthy Committee investigations of the Fifties:

Describe for the grand jury every occasion during the year 1970 when you have been in contact with, attended meetings which were conducted by, or attended by, or been any place when any individual spoke whom you knew to be associated with ... Students for a Democratic Society, the Weathermen, the Communist Party or any other organization advocating revolutionary overthrow of the United States Government, describing for the grand jury where these incidents occurred, who was present and what was said at the time you were in these meetings, groups, associations or conversations.

Tell the grand jury every place you went after you returned to your apartment from Cuba, every city you visited, with whom and by what means of transportation you traveled and who you visited at all of the places you went during the times of your travels after you left your apartment in Ann Arbor, Michigan, in May of 1970.

Since there are virtually no checks on the grand-jury process, the prosecutor's chance to fish for unrelated information and the possibilities for harassment are immense. Goodwin, said a lawyer who confronted him, "is very good in situations he can totally control; he functions brilliantly behind closed doors." Sometimes ISD lawyers summoned reluctant witnesses cross-country to places where they knew no one and where they had never been--New York to Fort Worth, San Juan, Puerto Rico, to San Francisco, Washington to Seattle--and sometimes they gave witnesses no more than a few hours between delivery of a subpoena and the time they were to appear. Ellsberg's 15-year-old son, for example, was summoned at 7:30 one morning and ordered to testify two hours later. Others had no more than a weekend to hire lawyers and prepare for their appearances. If a witness tried to resist--usually by invoking one of a number of constitutional rights--he found himself tangled in months of litigation in a strange town among strange people. Nonetheless, many did resist; some lost their jobs and dozens went to jail. The prison terms were usually for the life of the grand jury (and therefore as long as 18 months); but since new hearings could be started after one grand jury expired, some recalcitrant witnesses, facing the prospect of an endless succession of prison terms, chose to talk. It was a way of putting a "target" away for a long time without formal trial and without evidence.

"We're past the rubber-hose stage," Mardian once told an interviewer. "You don't drag people to the police station. We're more civilized than that. But when we subpoena someone to testify before a grand jury, it's his duty as a citizen to talk. If he doesn't, the judge has no choice but to hold him in contempt."

One of the more revealing confrontations took place between prosecutor Richard J. Barry, Nissen's junior colleague in the Ellsberg case, and Harvard Vietnam scholar Samuel Popkin. Pop-kin, who knew Ellsberg but was not sympathetic to his politics, was first interviewed by FBI agents who wanted to know, among other things, who Ellsberg's psychiatrist was and "what makes Ellsberg tick." Shortly thereafter, he was called before a Boston grand jury, where he asked Barry about the subject of the inquiry. "The judges just told you," Barry replied, "that you may not ask this question, to appear here immediately and testify. Please don't keep these people waiting. Why are you trying to hold up the process of justice?" Popkin, who said he was only trying to protect his scholar's sources, refused to testify, lost a series of legal tests and was brought before the panel again. He denied that he knew anything about who might have possessed the Pentagon papers before they were published. The questioning, however, continued:

Barry: Mr. Popkin, do you recall an immediate reaction that was formed in your mind upon hearing about the original stories in The New York Times about who may have been the source?

Popkin: I request permission to see my counsel.

Barry: How can your counsel be of use in this case? We're asking you about your immediate reaction.

Popkin: I request permission to see my counsel.

Barry: Mr. Popkin, you are stretching things for this grand jury. Your exits from this room have been ranging about five minutes. This is an inconvenience for the grand jury....

Barry: What is your opinion as to persons you believed possessed the Pentagon papers in Massachusetts prior [to their publication in the newspapers]?

Popkin: Is this grand jury really asking me to violate confidences necessary to my research, simply to discover my opinion?

Barry: The grand jury does not answer questions.

Popkin, who is now at the University of Texas, spent 18 months in litigation and finally spent a year in jail. "I still can't tell you what those days were like," he said recently. "I didn't know anything and I still don't know why they were asking. Why did I lose two years of my life?"

•

On April 27, 1971, Federal agents arrested Leslie Bacon, a 19-year-old radical who had been living in a commune in Washington, D.C., and hustled her off to Seattle to face a grand jury. The Justice Department let it be known that the grand jury was investigating the explosion of a bomb in a Capitol washroom eight weeks earlier, that the plot had been hatched in Seattle and that Bacon, who had once been involved in a plot to bomb a New York bank (but had withdrawn in the early stages), was a material witness. But when she arrived, she discovered that Goodwin, who was running the grand jury himself, was more interested in other things. That very week, hundreds of thousands of demonstrators were gathering in Washington for a peaceful May Day Vietnam war protest, and the following week (May 3--7), the so-called May Day collective (according to its own announcements) would try to disrupt traffic and "shut down the Government." At first, Bacon's lawyers were puzzled. "If there is a relationship between the matters about which the questions are being asked and the bombing of the Capitol," one of them said, "I have been unable to perceive it. They haven't asked her who bombed the Capitol."

Bacon had several uses. She testified on April 29 and 30 and on May first. Although she eventually started to balk at Goodwin's questions and was subsequently jailed for contempt, she talked enough about her extensive travels and associations among the radical left to give Goodwin leads for new grand-jury hearings in New York, Detroit and Washington. Only one appeared in any way related to the Capitol bombing and indicted no one. Some of Goodwin's questions suggested that he had information based on illegal wire taps, which could not be used in court; but by getting Bacon's answers before the grand jury, he "laundered" that information into admissible evidence. In a similar case in Detroit, Goodwin based questions on documents illegally seized by the Chicago police and ordered returned by a judge. A subsequent indictment cited an act about which the Government could only have learned from the illegally seized material. In the meantime, however, Goodwin had succeeded in forcing a witness to testify about it. But what he was most interested in, particularly on April 29 and 30, was May Day.

By the time Bacon was arrested, the panic had started in Washington. On May first, while she was testifying in an unusual weekend session of the Seattle grand jury, senior officials of the Government held the first of an intensive series of meetings at the Justice Department to plan tactics for keeping the city open. Among the participants were Mitchell, Mardian, Dean, Attorney General Richard Kleindienst, Presidential Assistant John D. Ehrlichman, the Secretary of the Army, the commander of the District of Columbia National Guard, regular-Army generals, FBI officials, Washington Chief of Police Jerry Wilson and several others. Wilson and the generals were confident that they could control the demonstrations--"the number of radicals is not great," Wilson said--but Mardian and Ehrlichman wanted to get tough. According to the minutes of the meeting, "Mr. Ehrlichman ... stated that the President wanted the city kept open if it took 100,000. He added that if we were short of troops, someone will be in big trouble. He said there was to be no misunderstanding about that.... The President was ready to go further than had been discussed up to now at the meeting." The minutes of the meeting, obtained by American Civil Liberties Union lawyers in the course of a suit arising from the indiscriminate mass arrests during the demonstrations--more than 12,000 were arrested between May third and May fifth--make it clear that the strategists at the Justice Department--and the President--regarded the demonstrations as a major challenge to the authority of the Government.

Acting on the advice of what someone later called "inexperienced lawyers," Bacon answered more than 250 questions, thereby waiving any subsequent claim of privilege against self-incrimination. (Once a witness answers certain questions, he cannot invoke the Fifth Amendment against answering other questions.) Goodwin knew that she had been working on the May Day protests and that she had been living with the leaders of the organizations that were planning them. He wanted her to describe all her movements, whom she saw, what was said, how and with whom she traveled, even who slept with whom in what rooms. Her testimony may well have been superfluous in providing information. Government agents had thoroughly infiltrated the protest groups and on May second, Mardian informed his colleagues that the Government "had information as to the protesters' codes and communications and that their radios would be monitored."

The arrest and interrogation, nonetheless, were part of a process in which intelligence and intimidation were linked and through which the Government let the demonstrators know that everything they did was being watched. Ever since early March, FBI agents had been stopping, searching and questioning people as they entered and left the Vermont Avenue headquarters of the various protest organizations. FBI agents had also broken into the home of a May Day volunteer (they left when she began to scream) and forced their way into a house where several May Day workers lived. "If you think this is repression," one of them said to the angry residents, "you haven't seen anything yet."

In leaks to the press, Bacon was represented as a link between the Capitol bombings and the May Day protests--an overt suggestion that those participating in the demonstrations would be involved with bombers and other dangerous people. As it turned out, most of the violence was perpetrated by police and Federal agents who arrested and often beat up demonstrators and pedestrians indiscriminately, no matter what they were doing. In early 1975, a Washington jury awarded $12,000,000 in damages to 1200 people who had been illegally arrested during the demonstrations, and suits on behalf of others are still pending. The Justice Department, in the meantime, had secured only one indictment, and that was later dismissed at the request of the Government. And on September 30, 1971, five months after Bacon testified, a Federal appeals court ruled that her arrest had been illegal.

•

The Administration had multiple uses for the ISD, although the mix varied from case to case. Senator Edward M. Kennedy charged that calling five New York Irish-Americans before a Fort Worth grand jury investigating the alleged purchase of weapons for the I.R.A. "had nothing to do with Texas and a great deal to do with a thinly veiled attempt by the Department of Justice, at the request of the government of Great Britain, to harass Irish-Americans in the New York City area engaged in peaceful protests against British policy toward Ulster." True or not, there seemed to be little reason for holding the hearing in Texas, where none of the suspects had ever been, except for the fact that Fort Worth was far from the ethnic politics of New York, with its 400,000 Irishmen. (The five witnesses all went to jail for contempt after they refused to testify, where they remained for a total of 12 months. They were released when a court finally upheld their claim that their attorney-client privileges had been violated by wire taps. The Fort Worth grand jury returned no indictments.) The veterans called before the Florida grand jury investigating the "plot" to disrupt the political conventions with violent tactics were certain that the grand jury, conducted by Goodwin, had been timed to keep them detained during the conventions, even though the Government knew no violence had been planned. There were also charges that the V.V.A.W. grand-jury hearing, coming on the heels of the Watergate arrests, was an attempt to divert attention from the burglary or, alternatively, to give it credibility as a necessary measure to prevent violence; Watergate burglar James McCord later testified that while he was head of security for the Committee for the Re-election of the President (CRP), he had seen ISD reports linking the McGovern campaign to V.V.A.W. activities. Justice Department officials vehemently denied the charge that the V.V.A.W. case was politically inspired.

What is undeniable, however, is that ISD was part of an intelligence system linked to the White House and its political apparatus. The Watergate evidence made it amply clear that in both the V.V.A.W. and the Ellsberg cases, some people in the Administration hoped to link the suspects with the Democrats; in both, the ISD furnished information directly to the White House or to CRP. In attempting to smear Ellsberg, the plumbers operated largely with FBI and grand-jury information, particularly on his personal life and sexual habits. McCord received ISD reports "almost daily" on the veterans and other organizations.

In the majority of cases, however, the conduit was the Intelligence Evaluation Committee (IEC), a supersecret agency that Mardian established at Justice "to provide intelligence estimates to the responsible Government departments and agencies on a need-to-know basis in order to effectively evaluate and anticipate problems to (sic) appropriately respond to civil disorders." IEC, in short, was conceived as a sort of domestic war room. Members included representatives of the FBI, the NSA, the Secret Service, the Defense Department, the Justice Department and the CIA. Mardian first asked a Seattle lawyer (now a Federal judge) named Morrell Sharp to be executive director. But Sharp, a friend of Ehrlichman's, didn't like the committee's spook secrecy and soon quit. He was replaced by a former FBI man named Bernard Wells.

The IEC, which met weekly, was "tasked" (usually by the White House) to produce detailed intelligence reports about future "civil disorders"--May Day, the demonstrations planned for the conventions and the 1973 Inauguration--and about such matters as the foreign connections of domestic radicals and "the Inter-Relationship of Black Power Organizations in the Western Hemisphere." David Wilson, John Dean's assistant at the White House, said he used to get IEC reports and pass them on directly to Ehrlichman or Presidential Assistant H. R. Haldeman. He did not recall that they ever contained reports focusing on specific individuals or organizations, nor did he recall that the White House ever furnished information to IEC. But a staff aide on the Senate Subcommittee on Constitutional Rights, perhaps the only outsider who ever saw the IEC files, said they contained extensive details about the leaders and membership of activist organizations. (By the time she saw them, however, someone had sanitized the files; they contained no minutes of meetings, no agendas and few other documents describing exactly how IEC worked: The records of two and a half years were compressed into two file cabinets.) The detailed information, through the IEC evaluations, was circulated to the participating agencies and to the White House, but there is no way to know whether data also went from the White House (and particularly the plumbers) to IEC. "We had no information at the White House," Wilson said.

It is also uncertain whether the tasks assigned to IEC included the development of intelligence available only through grand-jury testimony. The way that IEC was constituted, however, suggests at least the possibility that the CIA, forbidden by law from engaging in domestic espionage, contributed information to Justice Department investigations and prosecutions, and that the IEC was an intelligence-laundering device through which illegally obtained information was channeled to prosecutors who themselves probably didn't know (and, again, didn't want to know) where some of their information came from. In case after case, the Government chose to dismiss indictments rather than disclose how it had got its information.

Mardian is one of the few who know, and Mardian, now appealing his conviction in the Watergate case, refuses to be interviewed. But a number of people who worked with him at Justice describe him as a true believer who never understood that "criminal justice and internal security don't mix." "It was a disaster for law enforcement," said Whitney North Seymour, Jr., the former U. S. Attorney in New York. But what may have been most revealing were comments made by Tom Charles Huston, the creator of the so-called Huston Domestic Intelligence Gathering Plan, which included authority for mail covers, wire tapping, burglary and other illegal activities, and which the White House approved in 1970. Huston saw the plan as a way of gathering domestic intelligence solely for the purpose (as he told interviewers later) of anticipating and meeting civil disorders and "preventing calamities like bombings." But Mardian wanted to use the information in prosecutions: "He felt it was important to get these people in jail." In October 1970, after Hoover balked at the Huston plan (there is no record that it was ever formally rescinded), Mardian asked Huston to become his assistant. Huston refused because of his disagreement about the functions of intelligence. Early in 1971, Mardian set up the IEC.

The problem of coordinating the apparatus was more difficult than the Administration expected. Hoover, who was waging his own private war with the New Left through Cointelpro ("to expose, disrupt and otherwise neutralize this group"), was often uncooperative not only with the White House and the Justice Department but also with the CIA. In 1970, after CIA Director Richard Helms refused to tell him the source of a leak from the FBI to the CIA. Hoover, in the words of one agent, "said no CIA relations." In the meantime, the CIA and the NSA, which intercepts and decodes foreign communications and is perhaps the most secrecy-bound organization in the Government, jealously guarded their activities from public view. Both agencies, it appeared, were willing to furnish certain kinds of intelligence to the Administration but were reluctant to have it used in public trials. In the Ellsberg case, the NSA informed the Justice Department that it would refuse to indicate whether the Pentagon papers contained "communications intelligence--material involving allied or foreign codes (there was probably none that was current)--and would provide no testimony at the trial. The State Department and the CIA also declined to provide witnesses and the Department of Defense, according to reliable reports, counseled against prosecuting Ellsberg but was overruled by the White House. The IEC, the plumbers and Mardian's special relationship with FBI Deputy Director Sullivan were all facets of the attempt to get around those problems.

The prime resource, however, was the Justice Department itself. Kleindienst (among others) insists that, with the possible exception of the Ellsberg case, there was never any pressure from the White House and that there were no hit lists. But with people like Mardian and Goodwin, no pressure was necessary. From the time the new Administration took office, everyone from Nixon down made it clear what "law and order" meant and who the "bums" were. The Administration took the position that wire taps without court authorization were legal in cases involving national security. Mardian himself argued that principle before the Supreme Court and lost. It backed "preventive detention" laws in the District of Columbia and it secretly approved the acknowledgedly illegal tactics of the Huston plan. Under such leadership, it didn't take much prescience for a prosecutor to know what tactics to use or against whom to use them. All he had to do was read the newspapers.

Until the Watergate cover-up began to unravel in the spring of 1973, there were few complaints from Congress or the public. Congress had passed the no-knock entry law, permitting courts to authorize police to enter a dwelling without notice, and it authorized use immunity for grand-jury witnesses. (Use immunity was subsequently upheld as constitutional by the Supreme Court.) The resistance came largely from a small group of lawyers who specialized in political cases--William Kunstler, Gerald Lefcourt, Leonard B. Boudin. Leonard I. Weinglass, Doris Peterson and Ramsey Clark--and from members of the National Lawyers Guild who began to develop tactics to delay (and sometimes block) grand-jury proceedings, and who slowly learned to apply techniques of social psychology in the selection of trial juries. Their most effective weapon, however, was the judicial taint on unauthorized wire taps. A good many grand-jury witnesses were excused after they claimed that they were illegally overheard, and a number of indictments were dismissed. In many cases, the Government preferred to lose the witness or the case rather than disclose who was wire-tapped by whom. In 1972, the Supreme Court broadened that protection by unanimously rejecting the Government's claim that national-security taps required no court authorization.

The weapons, nonetheless, were weak and expensive, and they prompted elaborate tactics of obfuscation and evasion by the Government. Olson recently said that he was "embarrassed and upset" when sworn Government denials of wire tapping later proved to be untrue. But Olson himself signed affidavits denying electronic surveillance that (in the Berrigan case) turned out to be demonstrably false and that (in the course of the Boston grand-jury hearing into the Pentagon-papers case) were so vague that a judge called them "insufficient."

The essence of the process was "deniability." Documents and instructions were worded in such a way--indeed, the whole system was so designed--that false claims could always be attributed to ignorance, misunderstandings, complex divisions of responsibility or to the excessively zealous behavior of subordinates. The tactic, familiar to espionage organizations-- "if they catch you we'll deny that we know you"--was one of the first lines of Nixon's defense after Watergate.

Secrecy and deniability had always gone together not only in the prosecutorial process but through the whole social system. Ellsberg, among others, discovered from the weak public response to the Pentagon papers that if there was a public need to know about certain activities of the Government, there was also a need not to know. One of the functions of secrecy was getting the dirty work done without confronting the beneficiaries with the moral problems involved. Cops beat drunks and vagrants in the back rooms of police stations and chased blacks off the streets of "nice" neighborhoods, prosecutors intimidated witnesses in the grand-jury room, the CIA overthrew foreign governments and soldiers burned villages and murdered Vietnamese peasants in such a way that the mayor, the Attorney General, the Secretary of State, the President or the public would be spared the onus of complicity. Secrecy was socially useful.

Ever since the Vietnam war turned sour, it has been fashionable to argue that the country was deceived about the origins of the war; and ever since Watergate, it has been argued that the country was deceived about the domestic activities of the Justice Department, the White House, the CIA and the FBI. But if we were deceived, was it only because the Government lied, or was it also because we wanted to be deceived?

•

The purge is now almost complete and the counterattack is in full swing: The ISD has been reduced to a section within the Justice Department's Criminal Division, the IEC has been abolished, Congress is investigating the intelligence agencies, Nixon is gone, Mitchell and Mardian have been convicted for their part in the Watergate cover-up and their former targets have turned on them with a barrage of civil-damage suits. Congress is also considering extensive reform of the grand-jury system and revision of the immunity statutes. "Perhaps the only way we can preserve the Fifth Amendment and end the abuses of immunity grants," said Representative Robert W. Kastenmeier, one of the sponsors of reform legislation, "is to make the former absolute by allowing [grants of immunity] only with the consent of the witness."

There is increasing recognition that grand juries are unrepresentative of the general population (they are older, whiter and more middle class), that they are totally under the control of the prosecutor and that, in the words of one senior Federal judge, "this great institution of the past has long ceased to be a guardian of the people.... Today it is but a convenient tool for the prosecutor."

In the meantime, there is also some support for legislation that would compensate future victims of prosecutorial abuse, including a bill sponsored by Representative Edward I. Koch whereby a judge or jury could order the Government to pay the legal fees and other costs of acquitted defendants who, in the opinion of the court, had been subject to "an unreasonable administration of justice."

The returns, however, are incomplete. Despite the post-Watergate celebration of "the system," and despite the impeachment hearings and criminal prosecutions of the major Watergate figures, no prosecutor has been disciplined for misconduct, perjury or misuse of the judicial process--Goodwin, among others, is still at the Justice Department--and none of their targets has been compensated Judges like Nichol and Byrne: chastised the Government for flagrant abuses, but neither pursued the issues of possible perjury or contempt against the Government officials associated with them. Any prosecutor can therefore still proceed with impunity until he gets caught; at that point, he may lose his case but not his freedom or his license to practice. The issue was put by Leonard Weinglass, the attorney for Anthony J. Russo, Ellsberg's codefendant, after it was learned that Ehrlichman, during the trial, had offered Byrne: the directorship of the FBI. "If the defense had done what the Government did," Weinglass said, "we'd all be in jail."

There are no guarantees that it won't happen again. In the post-Watergate euphoria, the chances of recurrence are unlikely, but the mood won't last forever, the technologies of surveillance are becoming increasingly sophisticated and the legal methods of intimidation and repression--barring major legislation--are readily available. "Not a thing has changed," said an aide to Senator Lowell P. Weicker, who tried to flush out the abuses of the Justice Department in the Nixon Administration. "There hasn't been a piece of legislation." What may be most significant about the Nixon era is that in case after case, a great many people attributed the Government's inability to get a conviction to legal technicalities. The fact that those technicalities involved major violations of constitutional rights and that they were often essential to the Government's case--that the prosecution and, in the use of provocateurs, the "crime" itself could not have taken place without them--is often forgotten. Even the most absurd charges, therefore, have their effect. The Government, after all, wouldn't bring a case if there were not some reason to believe that the defendants had done something wrong. An hour after Byrne: dismissed the Ellsberg case, a lawyer asked a reporter in the Los Angeles courthouse what had happened, and the reporter told him. "Son of a bitch," the lawyer said. "The Government spends ten million dollars and some guy screws it up."