Leo, J. Edgar, and Ruth
posted by Jeffrey Kahn
Clint Eastwood’s biopic of J. Edgar Hoover opens nationwide tomorrow. The New York Times’s Manohla Dargis liked it, and liked Leonardo DiCaprio in it. So, if you can’t wait until the April release of Titanic 3D to get your Leo fix, this is your weekend. Of course, J. Edgar is no Jack Dawson. So you may need another reason to see the film.
Here’s one. According to the Times review, the film begins with a voiceover by the title character: “Communism is not a political party — it is a disease.” Strong words, but strongly felt by many back then (and a few even now). And that’s a point worth remembering today as we continue to fight the sadly named “GWOT” — the Global War on Terror.
Consider the year 1952, the midpoint of Hoover’s reign. The Soviet Union had successfully tested three atomic bombs. The Korean War was entering its third year, with hundreds of thousands of military and civilian casualties. President Truman’s proclamation of a national emergency to fight the “world conquest by communist imperialism” led Congress to pass the Emergency Powers Continuation Act, extending the statutory duration of a wide variety of exceptional presidential powers. Senator Joseph McCarthy had discovered communists infiltrating the United States Government.
Of course, Hoover wasn’t alone fighting communists. Besides politicians like McCarthy, Hoover’s contemporary for much of his career was Ruth B. Shipley, the Chief of the State Department’s Passport Office. (As it happens, Ruth’s older brother, A. Bruce Bielaski, preceded Hoover as the Director of the Bureau of Investigation, the precursor to the FBI.) As I detail in a recent article in the Connecticut Law Review based on materials from the National Archives, Shipley controlled travel then with paper files and miles of file cabinets, but her method resonates with how we control travel today, using computerized terrorist watchlists. Mrs. Shipley took second to no one in her zeal to keep communists and other subversives grounded.
In my forthcoming book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists (University of Michigan Press, forthcoming 2012), I argue that Mrs. Shipley’s approach was just an analogue version of the digital No Fly List used today. The legal and policy premises are exactly the same: some people are too dangerous to travel, but for various reasons can’t be charged with a crime or otherwise detained. (The No Fly List is just one of many watchlists; for example, there is one for maritime travel, too.) It is up to the FBI’s Terrorist Screening Center to craft the lists that contain their names, just as Mrs. Shipley’s Passport Office red-flagged (ironically enough) the passport applications of Americans deemed too dangerous to travel. Your chance of obtaining redress against this system for claims of mistake or misjudgment are as slim today as they were back then, also for many of the same reasons.
A recurring criticism of my argument is that this historical analogy doesn’t work. I’ll revisit the issue later this month (I’m about to fly — FBI-permitting — to the University of Connecticut School of Law to present my case there). But for now, as a simple test, ask yourself whether the words of one of the country’s most successful Supreme Court lawyers describe your (and Leo’s) world or the world of Ruth and J. Edgar:
“In short, several officials gather secretly behind closed doors, peruse secret intelligence reports and purport to arrive at a fair judgment affecting not only the citizen’s right to travel but also his reputation and possibly his livelihood and financial well-being.”
The year was 1952. The source is Eugene Gressman, The Undue Process of Passports, 127 New Republic 13, 14 (Sept. 8, 1952).