The Contradiction of 'Deep Throat'
The news that W. Mark Felt, former deputy director of the FBI, is "Deep Throat" -- that it was he who played a key role in exposing and bringing to justice the people who authorized the 1972 Watergate break-in -- came as an unexpected revelation to many. But it was particularly unexpected for me, because, together with others, I prosecuted Mark Felt for a series of illegal and unconstitutional break-ins that he had authorized.
In late 1972 and early 1973, during the same period when he was investigating the Watergate break-in, Felt authorized FBI agents in New York and New Jersey to break into and search the homes of friends or relatives of fugitives associated with the Weather Underground, a radical, violent antiwar organization. These friends and relatives were innocent of any wrongdoing. There was no probable cause to conduct the searches. There was no search warrant authorizing them. And they were clearly illegal.
With Felt's authorization, teams of agents clad in old clothes picked locks or bribed landlords and searched these people's homes. They searched thoroughly: desks, beds, closets, etc. Using a document camera, they photographed a diary, a love letter, a Valentine's Day card, statements of personal philosophy and other documents. When they were done, they put everything back in place so that no one would know they had been there.
The searches were of no help in protecting our nation or enforcing the law. There was next to no basis in fact to conduct them, and they turned up nothing of any use to the FBI. At the home of a lawyer at a major New York law firm -- whose brother was a Weatherman -- the agents copied what they thought was coded writing they found on some cards and sent the copies to the FBI lab for cryptanalysis. It turned out that the lawyer had been taking Hebrew lessons. The lawyer produced the original cards at the trial and demonstrated that the FBI could have "decoded" the Hebrew without cryptanalysis by flipping the cards over and reading the English translation on the reverse side.
These secret break-ins and searches were known within the FBI as "black bag jobs" or just "bag jobs." Because they were known to be illegal, they were done in the strictest secrecy. The one-page memorandums initialed by Felt authorizing the searches were marked "DO NOT FILE" and were kept out of normal FBI files. The memorandums made no reference to a search or break-in. They said instead, "Today I authorized [FBI Agent] to contact an anonymous source at [address to be searched]."
During the 1940s, '50s and '60s, bag jobs were done by the FBI in a variety of matters. Then, in 1966, J. Edgar Hoover called a halt to them in a document stating, "Black Bag Jobs are clearly illegal." President Richard Nixon authorized "surreptitious entry" in 1970, in what became known as the "Houston Plan." But he rescinded the authorization a week or so later when Attorney General John Mitchell told him the public would object if it found out. Then, after Hoover died in 1972, Felt decided to reauthorize bag jobs in the Weather Underground investigation. No government official higher than Felt knew about the bag jobs.
The case was tried in 1980 before Chief Judge William B. Bryant. The witnesses included Nixon and five former attorneys general. Nixon gave testimony supportive of Felt. But the jury returned a conviction.
The Fourth Amendment provides that "the right of the people to be secure in their . . . houses [and] papers . . . from unreasonable searches shall not be violated." As the trial progressed, it sank in that the Fourth Amendment was not the creation of ivory-tower intellectuals. It was an expression of our deepest instincts. Many of the agents who entered into and searched the people's homes testified at the trial. Their testimony was profoundly disquieting. While they were inside people's houses, they clearly felt more like burglars than law enforcers. As former attorney general and Supreme Court justice Robert Jackson wrote of the Fourth Amendment shortly after serving as chief prosecutor at Nuremberg: "These, I protest, are not mere second-class rights, but belong in the catalogue of indispensable freedoms."
The revelation of Mark Felt as Deep Throat is filled with conflicts and contradictions. It is a matter of debate whether his role as Deep Throat makes him a hero or a villain; and Felt, himself, seems to have been conflicted about his conduct. But perhaps the biggest contradiction is that, as Deep Throat, Felt helped establish the principle that our highest government officials are subject to the Constitution and the laws of the land; and yet when it came to the Weather Underground bag jobs, he seems not have been aware that this same principle applied to him.
The writer is a Washington lawyer and former federal prosecutor.