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WASHINGTON — A federal judge, sweeping aside objections from the Justice Department, has ordered the FBI to conduct a new search for decades-old documents about a U.S. government program to purge the federal workforce of gays and lesbians, including records on the role of a future chief justice of the U.S. Supreme Court in implementing the Cold War-era crackdown.
The ruling last Friday by U.S. Judge Royce Lamberth was hailed by a gay rights group as a major victory in its efforts to uncover long-buried historical records showing that, in the height of the McCarthy era in the 1950s, the U.S. government targeted homosexuals as a threat to national security under Executive Order 10450, signed by President Dwight Eisenhower in April 1953.
The strongly worded ruling by Lamberth, which has not been previously reported, comes at a time when, in the eyes of some critics, President Trump’s administration is seeking to roll back LGBT rights. The Justice Department asserted in court papers filed last Wednesday — just two days before Lamberth’s ruling — that LGBT Americans are not protected from discrimination under the 1964 Civil Rights Act.
“Thousands of LGBT Americans were ruthlessly investigated, interrogated and fired because of this order,” said Charles Francis, the president of the Mattachine Society of Washington, D.C., a group that has been seeking records about the order under the Freedom of Information Act.
Francis, a former well-connected Republican lobbyist, added that historians still do not know the full extent of the executive order’s implementation and enforcement, including by such officials as Warren Burger, a future Supreme Court chief justice who at the time was assistant attorney general for the civil division and charged with enforcing the ban on gays working in national security jobs. (Burger later served as a U.S. Court of Appeals Judge and, in 1969, was nominated by President Richard Nixon as Chief Justice, serving in that position until 1986.)
The significance of Executive Order 10450 was highlighted two years ago in “Uniquely Nasty: The U.S. Government’s War on Gays,” a Yahoo News documentary that won the Edward R. Murrow Award for best online news documentary. The order for the first time included “sexual perversion” as one of the grounds — along with drug addiction, unspecified “immoral” conduct and “sympathetic association” with a “saboteur, spy, traitor, anarchist or revolutionist” — as grounds for stripping federal workers of their security clearances. The premise behind the order was that gays would be susceptible to blackmail and therefore couldn’t be entrusted with national security secrets.
Francis’ group estimated that as many as 7,000 to 10,000 gay and lesbian federal workers lost their jobs in the 1950s alone as a result of the executive order. The order was not formally rescinded until 1998, when President Bill Clinton signed a new executive order barring discrimination in the federal workforce based on sexual orientation. Last year, as part of its mission to uncover the “erased history” of gay persecution, the Mattachine Society filed a Freedom of Information Act lawsuit for all government records on how the earlier Eisenhower executive order came about and how it was implemented by the FBI, presumably under the direction of Burger, the federal official in charge of the purge.
The FBI came back and said in a court affidavit it had found 5,500 documents potentially responsive to the request but that it would be unduly “burdensome” to search through them to determine what must be made public. At the same time, the bureau claimed that it found no documents at all about the role of Burger — an assertion that Lamberth wrote in his ruling was “suspicious” and “stretches credulity.”
“The Court finds it nearly impossible to believe that a search for every permutation of the name of the man who was charged with carrying out EO 10450, a robust federal mandate that built upon an established FBI initiative, yielded zero responsive documents,” Lamberth wrote.
Lamberth also strongly upbraided the FBI for the inadequacy of its search, noting that the bureau officials limited themselves to search for records that had the key words “Executive Order 10450,” “Sex Deviate” and “Sex Deviate Porgram.” (The bureau appears to have based the search terms on the wording of an earlier program ordered by then director J. Edgar Hoover to investigate suspected “sex deviates” working for the government.)
Lamberth, a Ronald Reagan appointee, concluded that the response was insufficient given that the Eisenhower executive order used another term to identify the targeted conduct — “sexual perversion” — and the bureau never searched for records using that phrase.
“The language of EO 10450 uses the term ‘sexual perversion’ rather than ‘Sex Deviate’ and the FBI’s affidavit does not address this shift in institutional language,” Lamberth wrote.
The executive order did in fact grow out of the FBI’s already existing “sex deviates” program. As documented in “Uniquely Nasty,” that program was launched in a 1950 memo from Hoover that directed agents to compile files on all “sex deviates” and “suspected sex deviates” working for the federal government. Agents were instructed to underline their names in green pencil in reports back to FBI headquarters and then identify the suspected “deviates” to their agency employers, in some cases by “blind memorandum” — in other words, anonymously, with no FBI fingerprints.
In the Yahoo News film, Douglas Charles, a Penn State University historian who has written a book on Hoover’s anti-gay efforts, says of the “sex deviates” program: “In terms of FBI abuses, this ranks near the top. It was an effort to silence [gays], it was an effort to ruin their lives. Because if you were exposed as gay in the 1950s or 1960s, your life as you knew it was over.”
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