It was November 1975, two months before our trial date. We had just moved downtown to the sixth floor of an office building three blocks from the federal court. I traded a noisy cubicle for a spacious office with large windows looking out on busy Dearborn Street. We got a deal on rental space in a building that was due to be razed in a few years.
“Holy shit. Look at these—look what I just got from Arthur Jefferson!” Flint exclaimed, holding up some papers as he came into my office followed by Dennis. Flint dropped the papers on my desk. Arthur Jefferson was a staff member of the Church Committee, the Senate subcommittee headed by senator Frank Church investigating Watergate. Jefferson had told Flint the subcommittee was broadening its investigation to look into other clandestine government activities, including COINTELPRO.
“I met Jefferson in person in Washington in September,” Flint said. “He sends me FBI documents they uncover through their subpoena power, and I send him what dribbles we get through discovery here.”
I read the four internal FBI memos Flint had dropped on my desk, six pages in all. My excitement rose as I went from one to the next. “These are crucial!”
The first document was a memo to FBI Director Hoover written by our defendant Marlin Johnson. It was captioned “Counterintelligence Program … (Black Panther Party).” The memo read:
Chicago now recommends the following letter be sent to Fort, handwritten on plain paper.
Brother Jeff:
I’ve spent some time with Panther friends on the West Side lately and I know what’s been going on. The brothers that run the Panthers blame you for blocking their thing and there’s supposed to be a hit out for you [emphasis added]. I’m not a Panther, or a Ranger, just black. From what I see these Panthers are out for themselves not black people. I think you ought to know what their [sic] up to. I know what I’d do if I was you. You might hear from me again.
A black brother you don’t know
It is believed the above may intensify the degree of animosity between the two groups and occasion Fort to take retaliatory action, which could disrupt the BPP or lead to reprisals against its leadership.
The memo documented an FBI effort to exploit the animosity between Jeff Fort, the leader of the Blackstone Rangers, Chicago’s largest and most well-armed street gang, and the Panthers. Although we had learned the general contents of the memo earlier, we had not known it was a COINTELPRO document and likely one of the thirty-four Perry had been given and refused to release. A prior effort by Marlin Johnson to have Fred killed was certainly relevant to our case, in which the FBI was claiming it was merely passing on information and had no intent to have Fred murdered.
“For some reason Fort didn’t go for it,” I said. “Maybe he figured the ‘black brother’ sounded a little white. Marlin Johnson’s not exactly a street person.”
“If Fort and the Rangers had retaliated against Fred, the FBI would have walked away clean,” Dennis said. “No one would have known they precipitated the violence.”
“I wish we’d had this when we deposed Johnson,” I said. “I’d like to know how he’d justify this.”
Flint pointed to the second document. It carried the same caption, “Counterintelligence Program.” Like the Fort hit letter, it bore Marlin Johnson’s initials. Dated December 3, 1969, it was a COINTELPRO “periodic progress report.” It read:
The BPP continues to be considered the focal point of counterintelligence. Chicago has continued to advise local authorities of instances where BPP members appear vulnerable to arrest on local charges.
In this regard, Chicago letter to the Bureau dated November 21, 1969, captioned “Black Panther Party (BPP), RM” is concerned with the location in Chicago of weapons reportedly purchased legally by BPP members. This information has been furnished to local law enforcement officials. Officials of the Chicago Police Department have advised that the Department is currently planning a positive course of action relative to this information.
The “positive course of action” was the raid planned by Hanrahan’s police. The document’s COINTELPRO heading demonstrated that the FBI’s dissemination of information to the police and Hanrahan was made pursuant to the Counterintelligence Program.
“How can Perry justify concealing this memo?” I asked. “This is a COINTELPRO document specifically targeting Fred, and I’m sure it’s one of the thirty-four he’s been sitting on.”
“Perry had to think we’d never see it,” Dennis said. “He didn’t figure we’d get FBI documents from the Church Committee.”
In one of the other two documents, Hoover directed FBI offices to “submit imaginative and hard-hitting counterintelligence programs aimed at crippling the BPP.”
“That mandate requires some creativity,” Dennis observed drily. “A dirty trick, in fact a crippling trick, every two weeks. I wonder what else Johnson and company tried to do to the Panthers in the year between this memo and when they killed Fred.”
The fourth document was a periodic report by the San Diego FBI office dated September 18, 1969. In it, the Special Agent in Charge bragged to Hoover about the “tangible results” already accomplished in the Counterintelligence Program:
Shootings, beatings, and a high degree of unrest continues to prevail in the ghetto area of southeast San Diego. Although no specific counterintelligence action can be credited with contributing to this overall situation, it is felt that a substantial amount of the unrest is directly attributable to this program.
I was appalled both at the candid acknowledgment that “unrest” in the black community was a celebrated part of the program’s objectives and that this sentiment would have been memorialized in a letter to Hoover seeking credit for the violent conditions. When I read it today, I am reminded of the CIA’s counterinsurgency plan for Central America in the 1980s or the military plan for Iraq. But here the FBI was promoting violence at home against U.S. citizens and groups.
The next day, Dennis cornered Flint and me and read us parts of the motion he had typed out in response to the new documents and Hoover’s specific mandate “to prevent the rise of a messiah.”
A messianic figure, Fred Hampton, who could and did unite and electrify the masses of black people (and white people!) wherever he went did indeed arise in Chicago. In the atmosphere which existed at the time, with the murders of Malcolm X and Martin Luther King already accomplished, and much of the Panther leadership in jail or exile, Fred Hampton became, to the agents of government responsible for suppression of the movement, Number One on the Hit Parade: and thus he met his end.
Dennis always had a flair for the dramatic. As a lawyer, this found expression in his pleadings and arguments in court. They were often eloquent, always insightful, and sometimes a bit too accusatory for the court’s ear. Flint and I frequently toned down his written drafts but always enjoyed the originals.
“I love it,” I applauded. “It’s Dennis unleashed!” What Dennis read became paragraph seven of the motion for discovery and disclosure of evidence, which we filed a few days later. We attached the four documents we had received, together with others recently released by the Church Committee, which showed the FBI blackmailing and targeting Dr. King.
At the end, after accusing Perry of being “quite unenlightened by the lessons of Watergate,” our motion gave him the opportunity to redeem himself, a way out from of being seen as “embedded” with the defendants.
The court’s actions in affording the defendants this protection [from disclosure] are misguided to an extreme degree. We fully sympathize with the chagrin of any person so long accustomed to relying on the honesty and good faith of government officials, when it is so shockingly and undeniably shown to exist no more. But today the frightening ethic which has replaced detachment, trustworthiness, and honor in government is cover-up, deception, and plausible deniability. If the courts of our country or the judges of our country allow themselves to be made tools of this philosophy, then neither the plaintiffs nor anyone else can be expected to maintain respect for the law.
We felt there was nothing to lose by being straightforward, or more precisely, nothing to gain by being diplomatic.
On November 26, I filed the motion—fifteen pages long with fifty pages of FBI documents attached—and hand delivered copies to the pressroom, where each of the Chicago dailies had a desk.
We had developed working relationships with several investigative reporters from Chicago’s newspapers: Tom Dolan from the Chicago Sun-Times, Rob Warden from the Chicago Daily News, and Bob McClory from the Daily Defender wrote most often about what we uncovered. They quoted us frequently, usually reporting our courtroom battles sympathetically. Why not? We provided them with revelations of illegal and clandestine government intelligence activities, certainly more newsworthy than the blanket denials from the other side. I returned to the office after filing the motion and called all of our friendly reporters. “Yeah, that’s the same Marlin Johnson that Daley appointed to head the Chicago Police Board,” I told Rob Warden. “But I don’t think he put his anonymous communication with Fort on his resume.”
The Fort hit letter made front-page news in all the papers, even the Tribune. Everyone in Chicago knew Jeff Fort’s name, and no one took the Blackstone Rangers lightly. It was a great story, not without irony. The current head of Chicago’s Police Board had assumed the guise of a “black brother,” scribbling information in what he thought was black jargon, about a phony death threat in his effort to induce Fort and the Rangers to retaliate violently against Fred Hampton. Johnson’s public denial that he ever intended or expected a violent reaction by the Rangers made it even more macabre.
On December 10, 1975, Dennis, Flint, and I walked into Perry’s courtroom and sat down at the polished wooden table reserved for plaintiffs’ attorneys. The December 4th Committee had put out the word that this was an important court date. The benches for spectators in the rear of the courtroom were full. The press packed the front row. The sketchers for the newspapers began making their drawings of the three of us. Dennis, tall and lean, with a sculpted face, a Max von Sydow profile, but with receding hair going in all directions; Flint with his blond mutton chop sideburns, tinted glasses, and serious but boyish look; and me sporting my dark Afro and bushy beard, a tad overweight, and looking skeptically at the Judge’s bench, even before Perry arrived.
The FBI defendants’ lawyers, Arnold Kanter and Alexandra Kwoka, were at one counsel table; Coghlan and Volini, the lawyers for the city and county defendants, sat at the other.
Judge Perry scurried out from the back of the courtroom, adjusting his hearing aid as he took his seat on the bench. He was wearing his dark glasses, which he claimed were to prevent the glare, but we thought he actually wore them to allow him to doze through our arguments. The clerk called the case, and the three of us went up to the podium.
The record says we were in court for almost three hours. Dennis, Flint, and I all took target practice at the FBI lawyers and defendants for hiding COINTELPRO and at the judge for letting them do it. This time we had the advantage of having in our possession many of the critical documents the FBI and judge were refusing to release, documents they had previously sworn did not exist or were not relevant.
We tried our best to argue the merits, but Perry only became more irritated and impatient. Then we tried to shame him into correcting his previous efforts to protect the FBI. How could you allow them to hide these, Judge? And now they have you hiding them, too. We repeated our plea that the trial be continued past the scheduled date of January 5 to allow us time to question the FBI defendants on the new documents, depose their superiors, and add new defendants.
Kanter responded as expected that COINTELPRO had nothing to do with the raid. This led to skeptical looks from the reporters, who had read our motion and seen the attached documents.
Dennis responded that two of the new COINTELPRO memos provided by the Church Committee named and targeted Hampton specifically. Perry nodded. Maybe he was wavering. Perry grabbed his papers. “I’ll decide this next week,” he said over his shoulder as he walked out. He often got up and walked away if we pressed an argument.
In the corridor outside, I commented to Dennis, “I think we made it into the press, but who knows if we got through to Perry.”
Indeed, the press gave a lot of play to the new documents and quoted generously from our motion and our argument. If we had to start the trial without the COINTELPRO evidence, at least the world would know the FBI was responsible for the raid. On December 15, five days after the argument, I walked the three blocks from our new office downtown to the Dirksen Federal Building to pick up Perry’s written ruling. I read it outside the clerk’s office.
The order urged the defendants to search their files again for “records or exhibits they may have overlooked or misplaced.” But Perry refused to release the COINTELPRO documents in his possession or to make the defendants answer deposition questions about the program. He concluded, “The motion is not well taken and that more particularly there is no reason to delay the trial in this cause.”
That was it, the court’s entire rationale. We filed a last-minute petition again asking the Seventh Circuit to reverse and recuse Judge Perry. We begged them to continue the case to allow us to proceed with discovery around COINTELPRO. Again, our appeal was denied.