It is well recognized that J. Edgar Hoover is the greatest living expert on crime and Communist subversion, but it may come as a surprise to most Americans to learn that he also is well on the way to qualifying as a leading authority on sexual behavior. Whether he is to be confirmed in this self-imposed responsibility will be settled by the outcome of a lawsuit which would be comic if it were not so serious.
The case is that of Thomas Henry Carter versus the United States, which was reviewed in midsummer by the U.S. Court of Appeals in the District of Columbia, and which ultimately may go to the Supreme Court. Carter’s lawyers believe their client’s constitutional rights have been violated; and since they are rights that have never been raised in quite this way, the case of young Mr. Carter against his former boss, Mr. Hoover, may plow new legal ground. It is already of keen interest in Washington legal circles, for its final disposition could affect not only Tom Carter but the rights of thousands of other government employees as well.
The case is very simple, and very disturbing. Tom Carter, a twentysix-year-old fingerprint clerk at the FBI headquarters in Washington, was in love with a girl who lived in Texas. The girl, whom he says he wants to marry, came to Washington for a visit, during which she stayed overnight at his apartment twice. They made love (up to a point) but did not have sexual relations.
The FBI gets its man
The FBI received an illiterate anonymous letter accusing him of “carrying on.” Carter, upon being questioned, admitted the girl’s visit, but denied any wrongdoing. Nevertheless, he was summarily dismissed by Director Hoover for “conduct unbecoming an employee of this Bureau.”
That would have been the end of the matter, except that Carter did what eight Presidents and still more Attorneys General have shied away from doing for almost fifty years — he challenged the director. He got a lawyer and went to court. He was determined not to spend the rest of his life living under the stigma of having been dismissed from the FBI for “unbecoming conduct,” a vague but disquieting charge. Two federal district judges (a man and a woman) have already briefly dealt with the case. They held for the government, but their rulings were overturned in late July by the Court of Appeals, which had the case under advisement for ten months. The court seemed to be impressed by Carter’s claim that he had done nothing more than the “bundling” condoned in Puritan New England. The FBI and the Justice Department now have the choice of reinstating Carter, or giving him a full jury trial, or appealing to the Supreme Court. No decision had been made at this writing.
Carter is the last man his friends would have cast for his present Don Quixote role. He is quiet and modest, minds his own business, does his job. To some he might seem a square. He got a job in the FBI, not as a glamorous “agent” but as a clerk; then he went into the military service, did his hitch, reapplied to the FBI, and was reaccepted. No one found fault with his work or his loyalty or his conduct, on or off the job.
Carter even fell in with the Bureau’s ideas on how its employees should live. The Bureau (in its paternal way) rather favors its unmarried employees living together, in certain approved neighborhoods and apartments. So Carter was occupying a two-bedroom apartment with three other FBI clerks when his best girl came to town, and innocently triggered this cause célèbre. It should be mentioned in passing that Carter’s pals, like good fellows, arranged things so that their friend and his girl could have the privacy of one of the two bedrooms on the two occasions she stayed overnight.
Whatever the courts ultimately decree, thousands of young, unmarried men now employed by the FBI will at least know more about where they stand. They don’t know now. The FBI does not discriminate against bachelors; after all, the director himself is a seventy-threeyear celibate. It recruits without prejudice both single and married men; it promotes the same way. It does not require a vow of chastity of its bachelors. It provides its new people with a handbook as a guide to personal conduct, but this offers only generalities such as the need for “high standards of personal conduct.” It omits stating in writing what is proper or improper conduct with women.
“Men with weakness . . .”
New agents, it is reported, get the benefit of some oral, off-the-record advice about women, but even this is suggestive rather than direct. A former agent, Norman Ollestad, quotes an instructor telling his class of new agents: “Parties and dances are the most dangerous situations. The girls — and by the way, fellows, don’t let their age fool you — the young ones are the cleverest, in my experience. Those girls will get you dancing. And when they find out you’re in the FBI they’ll go right to work trying to find a way to get their hands on those good Bureau paychecks. They don’t stop there, either. That’s why we in the Bureau keep a strong weather-eye peeled for men with weakness for women. . . .”
Two young Washington lawyers, Richard Millman and Mary Burnett, have been wanting to put a number of questions to Mr. Hoover in behalf of their client. How, in the eyes of the FBI, they would like to know, should a normal, young, unmarried man conduct himself? Marriage is not required. Sex is not forbidden. When, then, is it permissible? Or is there really an unwritten law against it? The district court protected Hoover against the interrogatories, but Carter’s lawyers are now looking forward to clarification of these points if the case finally goes to trial.
In the district court the FBI asked for and got summary judgment, principally on the ground that the FBI, being above and beyond civil service, could fire at will. However, during this hearing, and subsequently in briefs to the Court of Appeals, certain uncontested facts have emerged. The FBI says that on August 18, 1965, it received an anonymous letter which said: “Would like to make a complaint about fellow working for the FBI, his name is Tom H. Carter who lives at Kenneback House or apts; sleeping with young girls and carrying on; it annoys me terrible. I wish you can do something about it. Thank you.”
It turns out that the Bureau never made an effort to discover the identity of the informant, although in the circumstances this should not have been too difficult for an agency that has tracked down some of the greatest public enemies of our time. The record also shows there had never been any so-called “wild parties,” and, with the single exception of Carter’s friend, no women had ever stayed overnight in the apartment. Nevertheless, on August 26 Director Hoover, in a personally signed letter, notified Carter that he was dismissed as of that date.
“Arbitrary, capricious, and unlawful . . .”
At this point Carter took his case to Attorney Mary Burnett, and she wrote the FBI, pointing out that her client “is being irreparably harmed by the sudden adverse action of the Bureau.” She asked that he be allowed to resign instead of being discharged under a cloud. The request was turned down.
Meanwhile, Carter was seeking employment, and a couple of months after his dismissal he was trying for a job with a Washington bank. When he told the personnel director about the FBI incident, the latter demanded proof that the girl’s presence in the apartment was the sole cause of discharge. Two of Carter’s roommates gave the bank verifying statements. They had previously been called on the carpet by the FBI‚ and one of them officially “censured,” for having failed to inform on their friend at the time of his girl’s visit. On the same day they gave their statements to the bank, the two clerks were called in by their FBI superiors and directed to prepare memos showing that they had not given a personal recommendation for Carter. One clerk refused and resigned. The other complied, but after being made to polish filing cabinets for thirteen consecutive days, he, too, quit.
Having exhausted other avenues of relief, Carter filed suit in federal court on April 20, 1966, seeking reinstatement and back pay. He charged the FBI was “arbitrary, capricious, and unlawful” in discharging him. He also charged violation of his rights against selfincrimination, and his right to due process of law, and to liberty and privacy, as guaranteed under the Fourth, Fifth, and Sixth Amendments to the Constitution.
The answer of the U.S. Attorney defending Hoover and the FBI was to ask the district court for dismissal, or‚ in the alternative, for summary judgment. Since Carter, like other FBI employees, had no civil service protection, the government might have rested there, but Carter was a veteran. He had given four years to the Air Force, two of them in the Far East, and under the Uniform Military Training and Service Act he could not be dismissed within a year of leaving the service “without cause.” In order to meet that inhibition, the government resorted to argument, and this argument offers clues to officialdom’s current outlook on sexual morality.
“The nexus of this case,” said the U.S. Attorney, “is whether the FBI was invidiously discriminatory, in a constitutional sense, in dismissing appellant for ‘conduct unbecoming an employee of this Bureau’ on the grounds that he had kept a girl in his apartment overnight, and slept in the same bed with the girl, on two occasions, and that appellant’s sexual misadventures had become sufficiently public knowledge to cause an anonymous complaint to the FBI.”
What did the U.S. Attorney mean by “sexual misadventures”? The unchallenged testimony is that the young couple confined themselves to “necking” and “petting.” In the eyes of professional behaviorists this restraint might not seem wholly admirable or desirable, but the government’s brief gives us no clue as to why it thinks it constitutes a “misadventure.”
To sleep or not to sleep
Later, the government could not resist further speculations on the great bedroom drama in Carter’s apartment. “What took place inside is of little importance,” Hoover’s attorney said, “save that it was not entirely innocent; this was not appellant’s sister, and she spent two entire nights locked in that bedroom, and presumably in his embrace, with appellant. The presumption is important because it is the natural one people generally assume that couples who sleep together also sleep together. Appellant knew that. He knew that the FBI had a reputation to protect.” There is a curious stress on the word “entire.” Would it have been all right if she had stayed only part of the night? More important, the FBI apparently would have been indifferent to any “presumption” of incest if Carter had spent two nights locked in the arms of his sister.
As the American Civil Liberties Union became interested in the implications of the case, the government began to introduce new arguments, including the proposition that the very security of the United States of America was threatened. The logic is that the safety of America rests on the effectiveness of the FBI, and this effectiveness would be imperiled because little old ladies, possessing vital criminal information, might not pass it on to the Bureau if it employed moral lepers like Carter. In the words of U.S. Attorney David Bress:
“The FBI must aim at achieving cooperation from every possible member of the population. It cannot be satisfied with a majority, even of landslide proportions. It cannot allow the little old lady from Dubuque . . . to withhold information from the FBI because she will not trust an organization whose agents and employees are allowed ‘to sleep with young girls and carry on’!” So now the U.S. Attorney is not only falling back on the anonymous letter as evidence, but seems to be adopting as his own the unknown informant’s peeping-tom idiom.
Upsetting judicial poise
There is something about this case that seems to upset the judicial poise of most of the officials involved. In a preliminary hearing it came before District Judge Burnita Mathews. Carter’s lawyers contended then that he had not violated any specific edict of the FBI. “It should be a matter of common knowledge,” Judge Mathews said crisply, “that a government department wouldn’t want FBI agents sleeping with young women.” Carter was not an “agent,” but a mere clerk in a nonsensitive section where security was not involved. And was Judge Mathew’s interdiction on sleeping directed only at “young women”? Would it have been all right if it had been an older woman?
When the question of Carter’s alleged “immorality” came before District Judge Alexander Holtzoff (who granted summary judgment for the government), the following exchange took place:
JUDGE HOLTZOFF: “Whether it was immoral or not, it was highly indiscreet, of course.”
MILLMAN (Carter’s attorney): “Your honor, indiscreet in the privacy of your own home to do a little spooning? I mean that in all seriousness.”
JUDGE HOLTZOFF: “I think the indiscretion was that she slept in the same bedroom . . . with the plaintiff, and apparently that scandalized the neighbors because otherwise there would not have been this anonymous letter.”
Although the name and address of the letter writer are still unknown, here is Judge Holtzoff on his own introducing the “neighbors” into the case, and also discovering that they were “scandalized.” It is still a mystery how the anonymous informant knew anybody was “carrying on,” whatever that means.
In Congress there is a sharp reaction to the growing bureaucratic nosiness that has characterized the federal government in recent years, not just in the FBI, but in the CIA, the Defense Department, and other agencies. A new bill, sponsored by Senator Sam J. Ervin, Jr. (Democrat, North Carolina), forbids any federal agency, including even the CIA and the National Security Agency, from asking any employee or job applicant about his sex life, his religion, or his family relationships, as part of a lie detector test.
Senator Ervin said the agencies want to be above the law. “Their arguments for complete exemption,” he said, “suggest only one conclusion — that they want the unmitigated right to kick federal employees around, deny them respect for individual privacy and the basic rights which belong to every American regardless of the mission of his agency.” The idea that any government agency is entitled to the “total man,” said Ervin, “and to knowledge and control of all the details of his personal and community life unrelated to his employment or to law enforcement is more appropriate for totalitarian countries than for a society of free men.” A man who works for the federal government, the senator concluded, “sells his services, not his soul.”
Irrespective of Congress and the courts, the FBI may be forced to modify some of its personnel practices in order to maintain a stable work force, for it is having trouble keeping its employees. Justice Department figures show that the turnover among Bureau employees in Washington is much higher than that of the government as a whole. The FBI actually lost 34.4 percent of its personnel last year in the Washington area, as against 19.7 percent for the capital’s bureaucracy in general. It is clear that Director Hoover’s legions do not relish unlimited surveillance of themselves or having to inform on their fellow workers. — Clayton Fritchey