Mark Felt and the Dilemma of Rights vs. Security

By Ruth Marcus
Saturday, December 20, 2008

He wasn't just Deep Throat. It was inevitable and understandable that the reaction to Mark Felt's death this week focused on his long-hidden identity as a source for Bob Woodward's Watergate reporting.

But Felt's historic role as midwife to the toppling of a president may not be his greatest relevance to the current political climate. The iconic G-man who rose to the FBI's No. 2 job had a side different from that of heroic whistle-blower. He was also a pardoned felon, the embodiment of continuing disputes over individual liberties, public safety and the criminalization of policy differences.

In Felt's time, this conversation took place through the prism of the Weather Underground and the FBI's illegal break-ins, known as "black bag" jobs. Today, the same tensions manifest themselves in the impassioned national discussion about the Bush administration's interrogation and surveillance policies. But, at bottom, they implicate the same difficult set of issues: How much can and should government infringe on personal privacy and individual liberties in the name of guarding against risks to public safety? What should be the role of criminal law when government officials overstep permissible bounds in the name of national security?

It's hard to summon the generation gap intensity of the Vietnam War protests of the 1970s. It was in that context -- and this is not an excuse for their actions -- that Felt and another former top FBI official, Edward S. Miller, authorized warrantless searches at the homes of friends and relatives of Weather Underground members in a desperate, and illegal, hunt for the whereabouts of the protesters they considered terrorists. Indeed, Bill Ayers may have Mark Felt to thank for avoiding prison.

As former president Richard M. Nixon testified at the trial of Felt and Miller, "It was quite different than what it is today," a "wartime," when the Weather Underground intended "to overthrow the government."

Felt and Miller were convicted in 1980, but President Ronald Reagan, in words that resonate with the current debate, pardoned them less than a year later. Citing President Jimmy Carter's blanket pardoning of Vietnam draft evaders, Reagan said in his statement, "We can be no less generous to two men who acted on high principle to bring an end to the terrorism that was threatening our nation."

The men's convictions "grew out of their good-faith belief that their actions were necessary to preserve the security interests of our country," Reagan said. "The record demonstrates that they acted not with criminal intent, but in the belief that they had grants of authority reaching to the highest levels of government."

After the pardon, the former special prosecutor in the case, John Nields, blasted the president. The prosecution of Felt and Miller established "the central proposition of democracy: that the government is second to the people and its powers are limited by the Constitution. . . . The executive branch pardoning the executive branch for violating the rights of the people strikes at the heart of this proposition."

And so Felt's death comes at a moment when the country is in the midst of another chapter of this debate. When Vice President Dick Cheney acknowledges having participated in the development of "enhanced interrogation" policies that most civilized people consider torture, when he expresses his approval of the use of waterboarding to obtain information from Khalid Sheik Mohammed, is he subjecting himself to -- should he be subjected to -- prosecution for war crimes? Should President Bush, on his way out of office, issue the Carter equivalent of a blanket pardon to officials who crafted and participated in torture in the interrogation and surveillance programs? Should the new administration launch criminal investigations of its predecessors or turn the page to a new era?

I happened, as a young reporter, to cover some of the Felt and Miller trial and remember feeling torn about the case -- revolted by their actions but sorry at some level for the actors.

In the current unspooling, I unexpectedly find myself more in the camp of Reagan than Nields. I understand -- I even share -- Nields's anger over the insult to the rule of law. Yet I'm coming to the conclusion that what's most crucial here is ensuring that these mistakes are not repeated. In the end, that may be more important than punishing those who acted wrongly in pursuit of what they thought was right.

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