The Talking Dog

August 1, 2007, TD Blog Interview with Kenneth Ackerman

Kenneth D. Ackerman practices law in Washington, D.C., and has served as a government official in both the legislative and executive branches of government. He is the author of four books, his most recent, "Young J. Edgar: Hoover, The Red Scare, and the Assault on Civil Liberties", chronicling the response of then Attorney General Mitchell Palmer to a series of anarchist bombings and other violence around the United States in the aftermath of the First World War, including one at his own house that nearly killed him and his family. Palmer directed a series of raids to round-up, and eventually deport, thousands of suspected aliens, an effort later derided as a gross infringement on civil liberties, events that have clear resonance today. That effort was orchestrated by none other than J. Edgar Hoover, who would go on to direct the Federal Bureau of Investigation for 48 years. On July 30, 2007, I had the privilege of interviewing Mr. Ackerman by telephone. What follows are my interview notes corrected as appropriate by Mr. Ackerman.

The Talking Dog: Where were you on September 11th?

Kenneth Ackerman: I was in Washington, DC at my law office in Dupont Circle. Someone mentioned that a plane had crashed into the World Trade Center. We all watched together on a TV in the office. The immensity had begun to sink in when people in Washington were told to go home. 16th Street was jammed with cars.

I live in Falls Church in Northern Virginia. I drive right past the Pentagon-- I saw the smoke smouldering up from the Pentagon-- you could actually smell it from the highway, and the magnitude of it really hit home.

The Talking Dog: To what extent did the events of September 11th and their aftermath inspire you to write a book about the Palmer Raids? Prior to researching this book, were you aware of how central a role J. Edgar Hoover had in them?

Kenneth Ackerman: Very much so. I was interested in that period of our history-- the similarities and parallels to how this country reacted to the panic and threat presented by the post-World War I Red Scare. There were numerous echoes of what is going on today.

As to Hoover's involvment, I wasn't immediately aware of it at the time I started. I became aware indirectly. Originally, I actually wanted to center this book around Clarence Darrow and focused my research on the trials that I discuss in detail in the book. Darrow represented many communists during the period of the Palmer Raids. Though we know him best for representing Mr. Scopes in the famous "Monkey Trial" in Tennessee, he made his reputation defending free speech during the Palmer Raids. In fact, the first version of my book proposal was titled "Clarence Darrow and the Red Scare." As I dug deeper, though, Hoover's role took over the story.

I went to college in the 1960's-- the Vietnam period-- and I believe that era shaped me. My question was how a young lawyer's attitudes would be shaped by the events of 9/11 and the post 9/11 world: how does that effect someone in the long term. J. Edgar Hoover in 1919 and 1920 was 24 years old-- his first real adult job was working for Attorney General Palmer and heading up the Palmer Raids. It was literally his coming of age experience, making it a compeling story.

The Talking Dog: Your book, besides featuring J. Edgar Hoover and his then boss A. Mitchell Palmer, has extensive discussions of Louis Post, Emma Goldman, Clarence Darrow, Felix Frankfurter, Harlan Fiske Stone, Oliver Wendell Holmes and others. In the course of doing your research, did any of the personalities of the individuals involved jump out at you as particularly striking?

Kenneth Ackerman: Louis Post is certainly one of the most interesting people in this story. For one thing, the fact that he is so obscure speaks volumes about the blind spots in our historical knowledge. Someone who stood up to the lawlessness of Palmer and Hoover at the time, and singlehandedly stood in the way of thousands of deportations based on nothing but guilt by association and the flimsiest of evidence... is nonetheless forgotten by history. I find that remarkable. Louis Post actually was simply a bureaucrat who followed the rules! He could not and would not support the policy that Palmer and Hoover set in motion-- and he opposed that policy at substantial personal risk. When we go back through the history of other panics and scares in our history, we have a good record of producing brave people willing to stand against the mob... without such people, the evils of these episodes would be far worse, and our liberties would be permanently compromised as a result.

Another example was Felix Frankfurter. Back in 1919, he was a young law professor at Harvard, and quite a radical. He is, of course, generally remembered as a much more conservative member of the Supreme Court, on which he later served. But at the time of the Palmer Raids, he used the habeas corpus writ as a platform to fight repression. Of course, today, under the 2006 Military Commissions Act, he could no longer do that. At the moment, it appears that the Great Writ has been suspended pending determination of status of "unlawful enemy combatants."

But in the Palmer Raid era, Frankfurter used it for 150 alien immigrants arrested around Boston. He used it as a platform to put on the stand Justice Department and Immigration Bureau officials and force them to testify under oath about how they violated the rules-- they arrested and searched without warrants, they demanded excessive bail, they engaged in excessive violence, they needlessly marched people through the streets in chains and shackles. This was a key event in turning the tide-- by making the details of the raids public.

Frankfurter was instrumental in doing this in Boston, Darrow was using his trials in Chicago and New York to uphold and defend free speech, and at the same time Louis Post in the Labor Department was using the forum of his own impeachment hearing to bring these facts to light.

The Talking Dog: The hysteria surrounding the bombings of 1919 and 1920 and the "Red" and "anarchist" scares seemed to ebb within a relatively short time-- certainly, by the time then Attorney General Mitchell Palmer's presidential ambitions fizzled in the summer of 1920; your book notes that the raids and lawless methods used were under challenge within a few months. By contrast, the hysteria surrounding 9-11 continued well beyond merely the 2002 midterm election well through the 2004 presidential election, and really only by the 2006 election-- over five years later-- had it started to subside and the American public by and large returned to its senses, at least in an electoral sense and in terms of polling vis a vis the diminished ability of government officials to just say "9-11" and end all reasoned debate (and I note that even as we speak, the President is still talking about "Al Qaeda Al Qaeda Al Qaeda"). Do you have an explanation for this... why the longer shelf-life on 9-11 ? Am I correct that the key difference is called "television" (or perhaps more accurately "cable television"), whereas in the teens and 20's this was still a country that read newspapers?

Kenneth Ackerman: To be sure, television is part of it. But there is another huge difference. On September 11th, over 3,000 people were murdered. This was a much larger and more direct threat than we faced in 1919, when the incidents were much smaller in scale. The follow-up to September 11th managed to get us into two international wars... Afghanistan, which was justified, though not finished, and the second invasion of Iraq, which was apparently unrelated to the events of September 11th though politically advertised as if it was. The threat against our country after 9-11 was palpable, and certainly very real. However, the implication that civil liberties must be sacrificed in the response is simply wrong. We are finally coming round to realizing that we have gone too far.

The Talking Dog: Another of the things I noticed from your book was a certain courage on the part of judges and some government officials to stand up to the government (I'm thinking in particular of the federal judge in Boston, Judge George Anderson, not to mention Oliver Wendell Holmes, and future justices Stone and Frankfurter, and of course, Labor Dept. officials like Louis Post or Labor Secretary Wilson), fairly early on... that seems to be absolutely absent these days particularly on "war on terror" cases, other than occasionally in the Supreme Court... do you have an explanation for why that is? Same question, vis a vis the media of that time, and ours?

Kenneth Ackerman: I would mention that recently there were military commission judges at Guantanamo who courageously tossed out some cases against detainees.

But on the whole, I don't have a good answer to that. It is certainly interesting. I note that the first group of people who took a stand against the USA PATRIOT Act was the librarians, who were being investigated by the FBI. Then came the booksellers. And they organized, and got Congress to make changes to the Patriot Act.

Each period in our history is different. In 1919 and 1920, these cases came quickly. Judge Anderson, of course, stood out as one of the few judges who outright ruled against Palmer. Later, in the Supreme Court, Holmes and Louis Brandeis dissented in the Abrams and Gitlow cases, but they were in the minority. The court in each case ruled 7-2 the other way, upholding the Espionage Act against First Amendment challenge -- though we now find such a rule abhorrent. The hysteria at the time even engulfed the Supreme Court. Famously, when Holmes was about to publish his dissent in the Abrams case, the other justice met with him (and his wife) to try to talk him out of it. But Holmes was stubborn!

The Talking Dog: The inexperienced (and frankly, sycophantic) bureaucrat that the young J. Edgard Hoover managed to get himself placed in disproportionately powerful positions... so disproportionately powerful that even those who Hoover regarded as his enemies had no idea of the importance of Hoover's role in the Palmer Raids (and other improper activities); indeed, your book opens by noting that Hoover even fooled then Attorney General Harlan Fisk Stone who couldn't fathom that Hoover would have been so important at such a young age. Monica Goodling, and John Yoo, perhaps are arguably analogies (Goodling may be a better one), however imperfect. Do you believe that this sort of young, manically ideological and ultimately, quite destructive bureaucrat is the product of peculiarly weak and egregiously bad leadership (say, like Palmer in Wilson's time, or Ashcroft or Gonzales or most especially George W. Bush in ours)... or is something else going on?

Kenneth Ackerman: Do weak leaders turn to younger people on their staffs at times of trouble? I don't know if I buy that entirely. I certainly see a parallel-- that people like Monica Goodling go to Washington, DC at a young age and are shaped by their environment, just as Hoover was doubtless shaped by the Red Scare... now, young people are shaped by the War on Terror, for good or bad (mostly for bad).

But Hoover was a much more formidable individual. He was absolutely brilliant, with a forceful personality. He could manipulate older men. He led his boss, Mitchell Palmer! There were 5 levels of supervision over Hoover at the Justice Department, and yet Hoover called the tune. Another example is how Hoover dealt with Anthony Camineetti, director of the Immigration Bureau. Caminetti was much older, and was an experienced California political operator... and yet Caminetti yielded to Hoover.

Certainly, Palmer was not a particularly strong manager, and certainly the bombing of his own house had a profound effect on him. Indeed, before then, he was progressive and moderate, having released thousands of Germans held prisoner and other political prisoners after World War I, and he disbanded the American Protective League. But the bombing turned him into a zealot.

In that sense, certainly the current Adminsitration suffers dramatically weak leadership in its Justice Department-- and we are learning on a daily basis that this is more prevalent than anyone realized!! The current Attorney General insists he is hands-off on a number of critical issues. Is this bad management, or dissembling, or something else? We don't know yet-- but it is quite different from the Palmer era.

If a new young J. Edgar is going to emerge from the current era, we probably won't know for at least 5 to 10 more years. J. Edgar Hoover himself did not become well known publicly until the 1930s, a full decade after his initiation under Palmer.

Tallking Dog: You've hypothesized that had not certain officials (Louis Post and others in the Labor Dept. certainly come to mind) stood up and resisted the lawlessness of the Palmer raids, American precedent and legal tradition would have been quite different. Can you extrapolate on that?

Kenneth Ackerman: I actually do adhere somewhat to a "great man" theory of history . Yes, historical forces matter, but at key moments, someone just has to stick their neck out to get things done. Certainly, but for Frankfurter, Post, and Darrow speaking out against the Palmer Raids and the Red Scare, the damage done to countless people's lives would have been far, far worse.

Given the direction that Palmer and Hoover were going-- asserting that government officials, agents and bureaucrats, could conduct nationwide mass arrests and searches and seizures without warrants, based on giilt by association or undisclosed evidence... these practices would have likely become enshrined into the ordinary practice of American law enforcement.

This is the system that Frankfurter railed against at the Boston habeas corpus trial, and over which Post made his stand in canceling around 1,400 deportation orders. Post was very clear in laying out a list of 9 or 10 legal principles that had to be followed -- such as no alien could be determined to be a communist unless he actually knew he was a communist and knew what it meant. It was not enough that a person simply was in the wrong place at the wrong time. He also included no deportations based on coerced testimony, or on confessions obtained after a lawyer had been requested and refused, or upon an illegal search. At the time, these standards were in doubt-- hardly yet enshrined in American law enforcement practice.

Similarly, had Holmes and Brandeis not taken their stand in dissent on First Amendment cases, our view of just what is protected under the First Amendment would be different today. During World War I, a speech against the government could land you in jail -- period. Indeed, many people who spoke out in opposition-- and with nothing more sinister than criticism of the decision to go to war -- found themselves jailed. That is a key difference with our current understanding of First Amendment rights.

The Talking Dog: Why is it that the Palmer Raids-- which resulted in perhaps 10,000 or more people being rousted from their homes and arbitrarily arrested-- resulted in so much more public outcry than, say, the post-9-11 round-ups of Middle Eastern males? And yes, I am asking to the extent that race/religion/national origin mattered... why did it seem that the country much more troubled by a bunch of Russians and Eastern Europeans (including a large number of Jews) and Italians being rounded up in 1920, than they were with Moslem men after 9-11?

Kenneth Ackerman: My reaction is this: I don't think the difference is about racial prejudice. Back in 1919 and 1920, the bgigotry against immigrants and Jews was very comparable to the possible bigotry against Middle Easterners now, if not worse. Then, race was a concept even more in vogue-- people spoke in terms of the "Jewish race " or the "Irish race" or "Italian race." The difference between race and national origin had far less meaning then.

The reasons for the differences between then and now, as I see it, are really twofold. (1) Today, the jailings are much more secret. We haven't had a Frankfurter to tell us the size of the detention. And things are slower. The New York Times took years to disclose the full scope of the NSA surveillance program, for example. And it took even longer to learn of the secret CIA prisons. Indeed, the full extent of jailings associated with the war on terror in this country might not be known for many years. We know of Guantanamo-- but those are people captured overseas, and there are no Americans arrested on American soil held there -- at least as far as we know. In short, the government has kept much more of its activities in the war on terror secret, and this secrecy has been far more effective. And (2) In fact, as I said before, 3,000 people were murdered here on September 11th. The country has reacted quite strongly to that. We have a threat, and we expect the government to address that threat. Though we don't expect it to toss out the Constitution in the process.

The Talking Dog: Is it clear in your view that had there not been an enterprising young eager beaver like Hoover around, the Palmer Raids would have been less extensive than they ended up being, or is there evidence that Attorney General Palmer wanted something huge in response to the bombing of his house and the perceived overall threat, and was going to make this happen no matter what? Can you comment on the seeming historical irony that just as Palmer's overreaction probably allowed the actual perpetrators (most likely Italian anarchists) escape justice, Bush's overreaction to 9-11 (including attacking Iraq) allowed al Qaeda leadership to escape justice as well?

Kenneth Ackerman: Both points are well-taken. Palmer wanted to round up alien radicals and deport them. Hoover made that concept a reality. He worked up target lists, organized nationwide raids, and the rest. Hoover took a bad plan, and made it far far worse. A toned down version of the Palmer raids-- just a few dozen or so of the most dangerous radicals picked up and deported -- would actually have been healthy, and justified. Many of the radical leaders were, in fact, dangerous, armed, violent people.

But Hoover went way beyond the pale-- such obvious abuses ended up causing a backlash toward Palmer, and indeed, was counter-productive to Palmer's own interests, as the particular bad guys who blew up his house got away! They were eventually traced to two Italian anarchist groups, L'Era Nuova based in Paterson, New Jersey and the Galliani gang based in Lynn, Massachusetts... and the likely perpetrators all managed to get away!

The comparison to Bush and the al Qaeda leadership is striking! The mission creep is staggering-- we had al Qaeda on the run in Afghanistan, and then lost our focus and turned our attention to Iraq! Six years later, Osama bin Laden is a free man and Al Qaeda appears to be making a comeback.

The Talking Dog: After having researched this, to what extent do you countenance the "great man" theory of history, be it Hoover, or his antagonists like Frankfurter, Post, etc., or were these men products of the times... someone in a position to try to seize power because it was there, to be resisted by men of principle, simply because that's what men of principle do? And to what extent do you (like me) find the actions of the individuals you wrote about interesting because you (like me) are a lawyer?

Kenneth Ackerman: I think that individuals make a difference-- for good and for bad. But for Frankfurter, Darrow and Post and their actions, the aftermath of the Palmer Raids would certainly have been a lot worse, and a lot of principles of arbitrary, if not lawless, bureaucratic action would have become enshrined as precedent.

Certainly, we're lawyers, and we find much of this story compelling for that reason-- much of the drama in the story is of lawyers pushing the law beyond the pale-- and being skillfully resisted by other lawyers pushing back. Law is central to our social order... broken rules, such as in the Palmer Raids, result in real damage to real people.

The Talking Dog: I end with the "lawyer's weasel" question, is there anything else relevant to your book that I should have asked you but didn't, or that my readers, your readers, and the public at large need to know on these subjects?

Kenneth Ackerman: And I'll give you the "lawyer's weasel answer"... probably yes! That gives you a reason to have me back another time. I enjoyed it very much.

The Talking Dog : On that note, let me join all my readers for thanking Mr. Ackerman for tha fascinating interview, and I commend interested readers to take a look at "Young J. Edgar".