HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE NINETY-FIFTH CONGRESS SECOND SESSION ON FBI STATUTORY CHARTER PART 1 APRIL 20 AND 25 1978

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80S01268A000500020027-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 187
• Document Creation Date: December 19, 2016
• Document Release Date: October 17, 2005
• Sequence Number: 27
• Publication Date: April 20, 1978
• Content Type: REPORT

FBI STATUTORY CHARTER?Part 1
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FBI STATUTORY CHARTER
HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-FIFTH CONGRESS
SECOND SESSION
ON
FBI STATUTORY CHARTER
Approved F
PART 1
APRIL 20 and 25, 197S
Printed for the use of the Committee on the Judiciary
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APPPErr FSTATUT20114FPCITARTER??27-8
HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-FIFTII CONGRESS
SECOND SESSION
ON
F.I3I STATUTORY CHARTER
PART 1
APRIL 20 and 25, 1078
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
29-211 0 WASHINGTON 1978
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COMMITTEE ON THE JUDICIARY
JAMES 0. EASTLAND,
EDWARD M. KENNEDY, Massachusetts
BIRCH BAYH, Indiana
ROBERT C. BYRD, West Virginia
JAMES ABOUREZK, South Dakota
JAMES B. ALLEN, Alabama
JOSEPH R. BIDEN, JR., Delaware
JOHN C. CULVER, Iowa
HOWARD M. METZENBAUM, Ohio
DENNIS DECONCINI, Arizona
PAUL HATFIELD, Montana
Mississippi, Chairman
STROM THURMOND, South Carolina
CHARLES McC. MATHIAS, JR., Maryland
WILLIAM L. SCOTT, Virginia
PAUL LAXALT, Nevada
ORRIN G. HATCH, Utah
MALCOLM WALLOP, Wyoming
FRANCIS C. ROSENBERGER, Chief Counsel and Staff Director
(n)
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CONTENT S
THURSDAY, APRIL 20, 1978
STATEMENT
Page
Opening statement of Senator Kennedy 1
TESTIMONY
Bell, Hon. Griffin B., Attorney General, U.S. Department of Justice, accom-
panied by Mary Lawton, Deputy Assistant Attorney General, Office of
Legal Counsel 3
Webster, William H., Director, Federal Bureau of Investigation, accom-
panied by James B. Adams, Associate Director, and John J. McDermott,
assistant to the Director, Deputy Associate Director of Administration 35
TUESDAY, APRIL 25, 1978
STATEMENT
Opening statement of Senator Kennedy
TESTIMONY
56
Adams, James B., Associate Director, Federal Bureau of Investigation,
accompanied by John S. McDermott, Deputy Associate Director of Ad-
ministration, and James 0. Ingram, Deputy Assistant Director, Criminal
Investigative Division 51
Shattuck, John H. F., director, American Civil Liberties Union 97
Halperin, Morton H., American Civil Liberties Union 98
Berman, Jerry J., American Civil Liberties Union 99
PREPARED STATEMENT
American Civil Liberties Union 117
APPENDIX
ADDITIONAL SUBMISSIONS FOR THE RECORD
Letter from Patricia Wald, Assistant Attorney General, Office of Legis-
lative Affairs re investigative standards used by other executive branch
agencies, May 19, 1978 139
Domestic Security Investigation Guidelines for the Drug Enforcement Ad-
ministration from Attorney General Levi to Peter Bensinger, Admin-
istrator, DEA 162
MISCELLANEOUS
Biography of James B. Adams, Associate Director, FBI 179
Letter to Senator Kennedy from Ms. Patricia Wald, Department of Jus-
tice, in response to question of Senator Metzenbaum re percentage of
adult Americans represented in the FBI's fingerprint files, Sept. 7, 1978 181
Organizational chart of FBI 184
(In)
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FBI STATUTORY CHARTER
THURSDAY, APRIL 20, 1978
U.S. SENATE,
COMMIITEE ON THE JUDICIARY,
Wash.ington, D.C.
The committee met, pursuant to notice, at 9:30 a.m., in room 2228,
Dirksen Senate Office Building, Senator Edward M. Kennedy (act-
ing chairman of the committee) presiding.
Staff present: Robert M. McNamara, Jr., .counsel.
OPENING STATEMENT OF SENATOR KENNEDY
Senator KENNEDY. The committee will come to order.
This morning the Senate Judiciary Committee opens hearings to
lay the foundation for development of a statutory charter for the
Federal Bureau of Investigation. Such a charter must clearly define
the scope of the Bureau's responsibilities and the extent of its au-
thority. This task is a challenging one for all involved: the Con-
gress, the Bureau, and the interested public. But it is one whose dif-
ficulty cannot be underestimated and whose importance cannot be
denied.
For the past half century, the Federal Bureau of Investigation has
been not only the primary, ?but also the premier, Federal law en-
forcement agency in this country. Its history is replete with individual
heroism, signal accomplishments, and investigatory excellence, to the
point where these qualities have become the accepted benchmark for
judging any work undertaken by the Bureau.
The FBI has not achieved this stature and gained the confidence
and respect of the American people through historic accident. It has
earned its well-deserved place in both history and present society
because thousands of talented, dedicated, and exceptional men and
women have for over five decades, devoted their lives to making this
country safe and free for the rest of us.
But while we cannot and should not lose sight of the stature, repu-
tation, and respect that has been hard-earned and remains well-
deserved by the FBI, we also cannot ignore or excuse the too-large
numbers of instances where the awesome power of the Bureau ?has
been seriously abused. Each week brings new revelations of how
agents of the FBI not only may have abused their authority, but
also may have broken the very law they were sworn to defend and
enforce. Just last week, indictments were handed down against three
of the highest ranking former Bureau officials for having allegedly
engaged in illegal activities.
(1)
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2
I do not think that we can gage the devastating effect those indict-
ments may have had on the confidence and respect which the American
people have had for the Bureau. But while the indictments stand as a
clear and unequivocal statement that no one is above the law, they
might never have been needed had there been a clear statutory charter
which defined the parameters of legal authority and proper procedures
for the Bureau.
Congress and the executive branch must share responsibility with
the Bureau for the fact that the FBI has never before been truly ac-
countable to anyone for anything. The Bureau, for decades, operated
with independence from any day-to-day accountability within the
Justice Department or the executive branch.
Congress only recently has exercised its own responsibility to ques-
tion the overall directions, the underlying policies, and the basic pro-
gram decisions of the Bureau.
This committee has only this year begun to evaluate and analyze the
budget for the entire Department of Justice. This is the first time that
we have attempted to ensure that the Department's priorities and focus
were in line with those of the Congress. A collateral?and beneficial?
effect of this process has been our increased appreciation of the tre-
mendous responsibilities the Department has, and of the complexity
and difficulty of its efforts to discharge them.
Last week, this committee held hearings on the portion of the budget
which related to the Federal Bureau of Investigation. In those hear-
ings, I sensed a subtle but nonetheless perceptible new attitude within
the Bureau: An attitude of 'candor about itself and its own shortcom-
ings; an attitude of heightened concern for the rights of Americans;
and an attitude of determination to rebuild itself and learn from past
mistakes. I hope this vision is not clouded or distorted by my own ex-
pectations and hopes.
The Bureau has begun a new era. Judge Webster is its first 10-year
director, and he has brought to that post an essential sense of integrity
and justice. The Bureau has begun to define gradually its new prior-
ities and to focus its emphasis on complex areas of national concern.
The highly skilled and dedicated men and women of the Bureau are
determined to restore it to its rightful position of national respect and
confidence. .
The responsibility for the success of this endeavor must be a shared
one. A statutory charter for the Bureau is an indispensible component
of the calculus for success. The Bureau, its agents, and the American
people have a right to demand that there be a clear mandate from
Congress defining what the Bureau is to do in the future and how it is
to accomplish its objectives.
The multifaceted responsibility which the Bureau has, and the di-
verse tasks which it performs, must be clearly spelled out. Rather than
relying on a gradual evolution of authority?which ordinarily occurs
on the basis of practical convenience, political whim, or personal bias?
the FBI should justify its activity on the basis of legislative and
executive priorities and within strict statutory limitations. Agents in
the field and personnel at headquarters have a right to know what they
can do and how they should do it.
Never again should fear of the known or unknown justify illegal
activities; never again should the Constitution give way to expedi-
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ency ; never again should fundamental rights be sacrificed for instant
results; never again should the people of this country wonder whether
those who are enforcing the law are also obeying it; and never again
should the pride of an agent be replaced by a shared feeling of shame.
The principled leadership which Attorney General Bell has brought
to the Justice Department and Director Webster has brought to the
Bureau give us cause for optimism. Both men have called for a charter,
and both men have committed themselves and their resources to the
task.
This effort to develop a charter is not an attempt to hamstring or
harass or investigate the Bureau. We are not here to right the wrongs
of the past decade; we are here to ensure that the darker moments of
the Bureau's past will not come back to repeat themselves or haunt us
in the future.
The work which we are beginning was discussed by James Madison
when he wrote:
If men were angels, no government would be necessary. If angels were to
govern men, neither external nor internal controls on government would be
necessary. In framing a government which is to be administered by men over men,
the great difficulty lies in this: You must first enable the government to control
the governed, and in the next place oblige it to control itself. A dependence on
the people is, no doubt, the primary control on the government; but experience
has taught mankind the necessity for auxiliary precautions.
It is these "auxiliary precautions" which we must formulate and
codify.
The fundamental and cherished values which over 200 years ago we
fought to ensure are fragile and must be protected. The basic constitu-
tional rights and civil liberties which we hold so dear are our greatest
national resources. Any erosion, however gradual, is tragic and often
irreversible.
Mr. Attorney General, we welcome you and Director Webster and
your associates here this morning. We look forward to your testimony.
STATEMENT OF HON. GRIFFIN B. BELL, ATTORNEY GENERAL, U.S.
DEPARTMENT OF JUSTICE, ACCOMPANIED BY MARY LAWTON,
DEPUTY ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL
COUNSEL
Attorney General BELL. Thank you, Mr. Chairman, and members
of the subcommittee. I am pleased to meet with you today to discuss,
in general terms, the outline of a charter for the Federal Bureau
of Investigation.
I think it is important that we begin with exploratory discussions,
? such as you have outlined for this hearing, before attempting to
draft specific legislative proposals. Since I first appeared before this
subcommittee during my confirmation hearings, I have been com-
mitted to the idea of a legislative charter for the FBI. I must admit
candidly that at that time I did not appreciate the complexity of
the issues which must be resolved before such a charter can be drafted.
As you know, we began almost immediately working with this
subcommittee, the Select Committee on Intelligence, as well as with
the House of Representatives on legislation to provide judicial war-
rants for electronic surveillance in the field of foreign intelligence
and counterintelligence. We have reason to hope the Foreign Intel-
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ligence Surveillance Act will become law this year. In addition, we
have begun discussions with the Intelligence Committee on the prep-
aration of charters for the intelligence community, including the
intelligence components of the FBI.
Much work remains to be done on those charters, but it is impor-
tant that we move ahead at the same time developing charters for the
nonintelligence functions of the FBI. It is these functions I want
to discuss with you today. Despite its long history, the Bureau has
received very little statutory guidance. There, are, basically, only
three provisions defining its duties: 28 U.S.C. 533, 28 U.S.C. 534,
and 42 U.S.C. 3744. In only the most general terms, these provisions
authorize the FBI to detect and prosecute offenses against the United
States, assist in the ,protection of the person of thet'President, inves-
tigate matters under the control of the Department of Justice and
the Department of State collect crime records and exchange them
with Federal, State, and local agencies, and provide training for
State and local law enforcement.
These limited provisions provide little assistance in understanding
the role that the FBI performs today. Accordingly, it may be helpful
if I review the work presently done by the Bureau, outside the intel-
ligence area. The FBI is, of course, our premier law enforcement
agency. It has responsibility for investigating most of the offenses
defined in our Federal criminal code, but, as you are well aware,
some specific offenses are t;he responsibility of other Federal agencies.
In some cases, the dividing line between Federal investigative agen-
cies is clear, the Secret Service investigates counterfeiting and the FBI
does not. In other instances, jurisdiction is less precise, the Bureau
of Alcohol, Tobacco and Firearms investigates most bombing matters,
but those relating to terrorism are within the jurisdiction of the FBI.
FBI jurisdiction also overlaps that of the States. In many instances
conduct prohibited by Federal law is also proscribed by the States. In
addition, flight to avoid prosecution under State law is a Federal
offense and the FBI investigates to locate fugitives who have fled
across State lines. In the past, the investigative efforts of the FBI
were directed primarily at identifying and apprehending those who
commited specific violations of Federal law. Increasingly, in modern
times, the FBI has been asked to determine the existence of Federal
law violations in the first instance, as well as identifying those responsi -
ble for criminal acts.
Complex organized crime, political corruption and fraud cases often
require extensive investigation to determine whether, in fact, a Federal
law has been violated and who is ultimately rseponsible for directing
the criminal enterprise.
Since it is less clear at the outset what the dimension of the criminal
conduct may be, the investigation may range more widely in scope than
in, for example, a clear-cut bank robbery case. This presents unique
problems for the FBI, since it will involve collecting information on a
larger number of citizens, and initiating an investigation without nec-
essarily having probable cause to believe a specific crime has been com-
mitted. Similar problems arise in connection with the investigation of
terrorist groups which may be involved in a pattern of conduct, some of
which is legal, some of which violates State law, and some of which
violates Federal law.
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Determining when activities of these groups fall within Federal
jurisdiction and identifying who is ultimately responsible for direct-
ing the terrorist acts, without exceeding FBI jurisdiction or branch-
ing too far afield, and investigating legitimate protest groups who
speak of violence in the abstract but do not engage in it, is a problem
with which both the FBI and the Department have been grappling for
the. past .4 years. Difficult as the problems of criminal investigative
jurisdiction may be, they are at least grounded in the criminal code,
a code which this committee has made great strides in clarifying. The
other functions which the FBI performs have even less specific
guidance.
At the request and direction of the Department of Justice, the
FBI undertakes a variety of civil investigations both of an enforce-
ment nature, and for the purpose of defending suits against the
Government. Civil rights statutes, economic regulatory provisions.
civil. fraud, antitrust and general civil enforcement provisions fall
within the jurisdiction of the Department of Justice. Some of these
laws are both criminal and civil in nature; others are purely civil.
Many of them require complex factual showings in order to bring en-
forcement proceedings.
When necessary, the Department calls upon the FBI to collect the
facts needed to bring action to enforce these laws. On occasion, the
Department also asks the FBI to provide facts required for the
defense of suits against the United States. While we believe these
functions fall within the broad mandate of 28 U.S.C. 533(3), it
would be helpful to have this responsibility of the FBI clarified.
Senator KENNEDY. Would these functions be better carried out
by the investigators hired by the Civil Division?
Attorney General BELL. I do not know. The FBI agents are such
good investigators I would like them to be able to do this. I find that
everybody you get on a job like this in one of the litigating divisions
wants to be a lawyer. They want to try cases, so you can hardly keel)
them in place. The investigator is a profession of its own. I would
like to keep this in the Bureau, but I think it needs to be said they
can do it.
Senator KENNEDY. Excuse me, Mr. Attorney General. On the top of
your previous page, you point out:
Since it is less clear at the outset what the dimension of the criminal conduct
may be, the investigation may range more widely in scope than in, for
example. . . .
Are there investigative standards now being used which protect
the privacy of citizens?
Attorney General BELL. Yes.
We have guidelines, but we also have a general approach on these
domestic security investigations. I might say that in recent days there
has been a lot of confusion amongst the American people between
foreign intelligence investigations and domestic security investiga-
tions. We have fallen into the habit of saying "national security,"
and that would indicate that we are running them together.
On domestic security where you involve American citizens, we
have a strict approach that Attorney General Levi started. We have
been following that. There has to be a nexus to crime or otherwise
we do not do it. That is why we have cut down sharply on the nun:-
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ber of these kinds of investigations that we have had going on. In
addition to that, we have guidelines.
Senator KENNEDY. That is what I wanted to ask you. You say
later in the paragraph:
This presents unique problems for the FBI, since it will involve collecting
information on a larger number of citizens and initiating an investigation
without necessarily having probable cause to believe a specific crime has been
committed.
What is "the investigative standard?"
Attorney General BELL. The investigative standard?
Senator KENNEDY. Yes.
Attorney General BELL. In addition to the guidelines which. are
too detailed to recite, there has to be an investigation of the crime.
It is under the section of the Code, sec. 533, which says that . the
duty of the Attorney General is to investigate and prosecute crime.
That is the FBI's same authority; that is the authority I have. The
difference is, and the point I was trying to make at that point is
this: It is one thing to say somebody has committed a crime and
to find out who did it. It is another to say: "Has a crime been
committed ?" That is where we are having the added responsibility.
In the old days if a crime was committed, life was simplier, and
we would find the person who committed it. Now we are trying to
find, by not only surveillance, but .in many other ways, whether a
crime has been committed. The Bureau is told to find out whether
these people or this person has committed a crime. That means that
you are keeping up with more people just as my statement says there.
Senator KENNEDY. Does that apply in domestic security cases?
Attorney General BELL. Yes; I think in the next paragraph I deal
with that. I am talking about Federal jurisdiction.
What do these people do? Are they violating laws? If so, are they
Federal violations? Or, are they State violations? This is a difficult
area. You would be interested in the process, I think. Last year we
were going to review every domestic security investigation we had
going on as the allowed time expired.
Jim Adams and some of his other people came over one day in
Justice Department's conference room. We sat down. I had some
of my people there. We said: "Let us run through two or three of
these investigations. Let us see if we ought to continue them or cancel
them. Is there a nexus to criminal investigation ?"
Well, we ran through two or three that day, and we all got a
feel for it. I do not think I have been through another one, the
FBI, as they have come up, assessed them themselves. They have
discontinued some of those that they had not discontinued under
Attorney General Levi. So, I think we are focusing right now on
the jurisdictional question, that it: "Is it investigating crime ?"
Senator KENNEDY. All right. Please continue.
Attorney General BELL. The resources of the FBI are also called
upon increasingly to provide background investigations for persons
under consideration for a variety of Government offices.
In a few cases this is expressly authorized by statute or by Executive
order, but for the most part these investigations are conducted as a
matter of tradition or custom. That is something we need to discuss?
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should we cut back on that? For example, there is no statute or Execu-
tive order directing the FBI to conduct background investigations for
Presidential appointees, but, as you know, this is done routinely. Nor
is there any statutory authority for the FBI to conduct investigations
on behalf of congressional committees in connection with appointments
to their staffs. In this Congress, however, the FBI is conducting such
investigations at the request of 12 separate committees. It is time that
we consider whether this is a proper role for the FBI and, if it is, we
should expressly confer this responsibility by statute.
To a limited extent the role that the FBI performs in furnishing
both information and training to State and local law enforcement is
conferred by statute: 28 U.S.C. 534, and 42 U.S.C. 3744. The statutes,
however, do not specify the manner in which crime information may
be exchanged with the States or whether the exchange of information
may cover such other matters as missing person information.
I would say that one of the most interesting concepts that I have
faced since I have been in Washington is what has been, or what is
now known as message switching. About every 3 months, there is a
great story in the paper that we have been caught trying to message
switch.
I have never understood message switching, but I have made it clear
to the Congress and to the FBI that we will never engage in that un-
less I sign, and I never have. Someday I am going to find out what it
means and all the ramifications of it. It is a glamorous thing when
you see it in the headlines: "FBI Seeks Money for Message Switching."
As I understand it, it is giving information to Scotland Yard or to
the Canadian Mounties. They sometimes want to get information from
the FBI. It may also be giving it to State police. But we would need
to get into that because it sounds as though we are doing something
wrong when we have not done anything wrong.
Senator KENNEDY. Let me ask this: Before that, on the same page,
you indicate the FBI supplies 12 separate committees of Congress with
background investigation reports on congressional staff personnel.
Would you provide us a list of the committees involved?
Attorney General BELL. Yes; we will submit those.
Senator KENNEDY. Without objection, so ordered.
[The list of congressional committees requesting FBI background
investigations of congressional staff employees referred to above
follows:]
The following Senate Committees requested 341 background investigations dur-
ing the 94th Congress and 158 background investigations during the 95th Congress
(up to March 6, 1978) for a total of 499 background investigations: Senate Com-
mittee on Armed Services; Senate Committee on Foreign Relations; Senate Com-
mittee on the Judiciary; Senate Select Committee on Intelligence, and Senate
Select Committee on Ethics.
The following House Committees (and subcommittees) requested 58 back-
ground investigations during the 94th Congress and 225 background investi-
gations during the 95th Congress (up to March 6, 1978) for a total of 283
background investigations: House Committee on Appropriations; House Select
Committee on Assassinations; House Select Committee on Narcotics Abuse and
Control; House Committee on Judiciary; House Committee on Standards of
Official Conduct; House Permanent Select Committee on Intelligence (House
Select Committee on Intelligence Activities), and House Subcommittee on In-
ternational Organizations.
Senator KENNEDY. Can someone get a top secret clearance if another
agency does the check ?
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8
Mr. ADAMS Yes; the military do some of the investigations. The
State Department conducts certain investigations, and the Civil Serv-
ice Commission conducts some.
Senator KENNEDY. Do they have top security clearance?
Mr. ADAMS. Yes; the standards basically require a full field in-
vestigation and then based upon the results of that, the agency itself
Senator KENNEDY. Do they have top security clearance?
Attorney General BELL. The CIA does their own clearance and
investigations.
Mr. ADAMS. Yes.
Senator KENNEDY. Thank you.
Attorney General BELL. As I will discuss later, the provision of
crime information to State authorities by the FBI has been criticized,
and it is time that we reexamine whether we want the FBI .to con-
tinue to perform these services and, if so, under what conditions. It
is unfair to give the FBI a broad general mandate in terms so vague
as to permit a variety of interpretations and then to criticize it for its
interpretation. I have briefly reviewed the varied functions that the
FBI performs today beca.use I believe that the underlying issue in
any charter is whether the FBI should continue to perform some
or all of its functions that it now undertakes.
A charter is, by definition, a statement of functions, powers and
duties. Before such a statement can be drafted in legislative form,
we must decide precisely what the basic functions, powers, and duties
of the FBI should be. In the area of criminal investigations, there are
several basic decisions which must be made. Should the FBI be
responsible for all Federal criminal law enforcement or should it
continue to share the responsibility with other Federal agencies such
as the Drug Enforcement Administration and Secret Service. I might
also add the Alcohol, Tobacco and Firearms agency which has about
4,000 people.
These are questions now under study by the President's Reorganiza-
tion Project Law Enforcement Study Team. They present difficult
policy issues. Centralization of functions promises greater efficiency
and coordination but it also inevitably leads to a concentration of
power which our constitutional scheme has sought to avoid. Decen-
trahzation, on the other hand, inevitably results in overlapping juris-
diction, sometimes destructive competition, and lack of coordination.
We must carefully weigh these concerns in deciding whether to ex-
pand FBI criminal investigative jurisdiction or leave it essentially
in its present form.
We face equally difficult choices in determining whether the FBI
should confine itself to the classic detective role?apprehending the
individual responsible for committing a specific criminal act?or
should also be responsible for detecting the existence of criminal
activity and preventing its continuance or reoccurrence. Because of
abuses which occurred in the past in connection with so-called domes-
tic security .cases, some have suggested that the Bureau should never
play a role in detecting the existence of crime or in preventing crime.
I disagree. Surely the investigative forces of the Federal Govern-
ment should not .be monitoring the legitimate first amendment ac-
tivities.of our citizens because the views they are expressing are con-
troversial or even antithetical to our constitutional system.
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But just as surely, the FBI should not stand idly by while terrorist
groups seize hostages or set off bombs merely because the terrorists
purport to act in the interests of a "cause." If we have information
that a group is preparing to commit a violation of law or is engaged
in a continuing pattern of Federal law violation, I believe it is in-
cumbent upon us to protect our citizens by preventing violations if we
can.
Similarly, the FBI should continue to work with our organized
crime strike forces in determining where criminal enterprises are
engaged in or planning violations of Federal law rather than concen-
trating exclusively on each specific violation as an isolated act. In
my judgment, the mandate to "detect and prosecute" violations of
Federal law extends to determining when such violations are occurring
as well as identifying the individual criminals.
Because these questions have been raised, however, it becomes im-
portant that a charter spell out clearly whether the FBI is to be
responsible for detecting and preventing crime as well as detecting
and prosecuting criminals. We must also decide whether the Bureau
should be a criminal investigative agency exclusively, or whether it
should continue to investigate civil matters for the Department of
Justice. I am inclined to believe that civil enforcement is as important
as criminal, and that the Department of Justice should be able to
call upon the FBI to develop cases for civil fraud or civil rights
enforcement. as well as for prosecution. If this work is to continue,
however, Congress should make clear that it expects the Bureau
to perform these duties.
More difficult issues are posed in connection with the background
investigation of Federal officers and employees. As you are aware,
the Executive orders covering this matter are mit of date, and the
statutes seem to have been passed on a hit-or-miss basis. Moreover,
many of the investigations now conducted by the Bureau are based
entirely on custom and have no clear statutory authorization. If this
work is to continue, the. FBI should be given a clear mandate, and
should not be asked to exceed that mandate as a matter of comity
to other agencies, the Congress, or the judicial branch.
While Congress has directed the FBI to engage in various support
services to State and local law enforcement, it has also criticized the
FBI for the manner in which it does so. One example is the National
Crime Information Center, particularly the computerized criminal
history portion of that system. Attorneys General have, in the past.
been asked to delay approval of the decentralization of this system
until Congress has had an opportunity to address the issues, but
no legislation has been forthcoming. We have now begun discussions
with interested congressional representatives on the issue. As with
all of the charter issues, we will work closely with Congress to ensure
clear policy direction to the FBI and the States which use the system.
The primary role of a charter is to define the functions, powers, and
duties of an organization. A new charter for the FBI should also con-
tain limitations and restrictions on the exercise of those duties to in-
sure that the mistakes of the past will not be repeated.
Senator KENNEDY. What types of limitations or restrictions are you
referring to here?
Attorney General BELL. The main one I have seen, which I would
fa,vor, would do away with some of the background investigation
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work that we now engage in. I really have not thought of anything
else I would want the FBI not to do. I am concerned that the charter
is beyond this, and the charter is hard to write, but I am thinking more
of a system where we have all the Federal investigations on the domes-
tic side under one head. We have the A.T. & F. over at the Treasury De-
partment and the DEA in the Justice Department. I look at the
wiretaps every month, that is, the wiretaps under title 3. You ought to
look at that sometime. You would be surprised at the agencies that do
wiretaps, and that have these investigative powers and engage in this
sort of thing. This is under court order.
Senator KENNEDY. Will you make some recommendations on the
need for domestic wiretaps based on our concern for privacy of the
individual?
Attorney General BELL. What I would like to do is to get, all of these
agencies, to the extent possible, under one head. After that, we can
start finding out whether we are doing a good job or whether we need
to amend title 3, the wiretap law. But I am not planning on doing that
right now.
The President's reorganization of law enforcement would go some in
this direction. But, of course, you know they have this border study,
which is something else again. This would have customs and the border
patrol considered there. But I think the answer to your question spe-
cifically is that I do not know of anything that I do not want the FBI
to do. However, I would want them to cut down on the background
investigation work. As I see it, what we need in the FBI is to have
their duties spelled out in statute. The little statutory power that we
have right now is rather vague, although we do operate under it. It is
important, however, that the drafting of restrictions to meet particu-
lar problems not evolve into the statutory enactment of an operating
manual.
As this committee is aware, the Department of Justice has promul-
gated various guidelines and policy statements governing the conduct
of particular types of investigations and the use of certain sensitive
investigative techniques.
In addition, the FBI has its own comprehensive manual setting
policy for investigative activities. These are very detailed in some
respects and require case-by-case determinations to be, made on the con-
duct of particular investigations. I do not dispute the desirability of
exerting this type of control over FBI activities. I suggest., however,
that it is a degree of control more appropriate to internal directives
than to permanent legislation.
It is my view that legislation should establish the fundamental
limitations which are to be applied, provide adequate legislative over-
sight, and fix executive responsibility. It should not attempt to dictate
the day-to-day functioning of an executive agency with diverse
responsibilities.
Senator KENNEDY. You point out in your own testimony, "the exer-
cise of those duties to insure that the mistakes of the past will not be
repeated." How do you hope to prevent a recurrance of those abuses in
your charter?
Attorney General BELL. What I have said to the agents when I have.
spoken to them over the 15 months I have been Attorney General?
and I have spoken to a lot of agents in a lot of different tow' rns?is : "If
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it is not in the manual, do not do it." If it is not in the charter I tell
them not to do it. It cannot be in the manual if it is not in the charter.
You have to tie that to the charter.
Everything that could be said to be a violation of the law is some-
thing that can be avoided if it is in foreign intelligence, and that I
sign, and that Director Webster signs. If it is in a crime area, which
would include domestic security, then you get court orders. That is
about as simple as you can put it. I realize it is difficult on an agent out
in the field when he is told to do something to run back up the line to
see if everything is in writing. But that is just the way it, has to be.
We have systems. Insofar as I know, we are following the systems
very well indeed. The things that I have seen in the past that went
wrong were things where the system was not followed.
Senator KENNEDY. You mentioned "* * * the Department of Jus-
tice has promulgated various guidelines and policy statements gov-
erning the conduct of particular types of investigations and the use of
certain sensitive investigative techniques."
Can you make those guidelines and policy statements available to
us ?
Attorney General BELL. Oh, yes.
Senator KENNEDY. Thank you.
Without objection, that material will be entered into the record at
this point.
[The following responses were received by the subcommittee to
Senator Kennedy's request for additional information:]
Question. What Departmental or FBI guideline procedures or policies are
available that govern conduct of criminal investigations?
Answer. FBI investigative jurisdiction in criminal cases is based on specific
violations of Federal laws. Investigations are conducted when information is
received indicating a violation of Federal law, over which the FBI has been
given investigative jurisdiction, has or may have occurred. The function of a
Special Agent of the FBI is to conduct thorough investigations of cases in a
legal and ethical manner and to carry each of these cases through to a logical
conclusion. Criminal investigations conducted by the FBI are not "fishing ex-
peditions" since each investigation must have as its basis an allegation that
violation of a Federal law under FBI investigative jurisdiction has occurred.
FBI Special Agents may not engage in entrapment or conduct considered illegal
in connection with carrying out these investigations. We are mindful of the
constitutional rights of all parties involved in one of our criminal investigations.
Special Agents of the FBI must identify themselves by name, title, and a display
of credentials in connection with interviews conducted. All employees of the
FBI are guided by the provisions of Departmental Order 350-65 dated Decem-
ber 28, 1965, which sets forth regulations concerning the conduct and activities
of our employees. All FBI employees are expected to obey not only the letter of
the law, but the spirit of the law as well, whether they be engaged in activities
of a personal or official matter.
Question. What Departmental or FBI guideline procedures or policies are
available that govern the conduct. of criminal, civil, applicant, or civil rights
investigations?
Answer. This response pertains to civil investigations only.
Investigations iri civil matters are instituted at the request of the Department
of Justice or the U.S. Attorney on a case by case basis which contain instruc-
tions ranging from limited and specific to broad and general, depending on the
Department's or U.S. Attorney's desire. FBI investigation is conducted in ac-
cordance with tlise instructions.
The FBI's Manual of Investigative Operations and Guidelines contains FBI
procedures and policies as to the various civil investigations.
FBI guidelines governing investigative procedures of Civil Rights, Election
Laws, and Involuntary Servitude and Slavery cases are set forth in the Manual
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1
of investigative Operations and Guidelines. In most cases, these FBI guidelines
have been developed through DOJ instruction or DOJ approval of FBI recom-
mendations modifying prior procedures. Frequently, initial and/or additional
investigation in these areas is conducted pursuant to instructions by either
the Civil Rights or Criminal Divisions of the Department of justice. Also, the
results of all Civil Rights, Election Laws, and Involuntary Servitude and
Slavery cases are provided to the Civil Rights or Criminal Divisions of the
Department.
Que8tion. What Departmental or FBI guideline procedures or policies are
available that govern the conduct of applicant investigations?
Answer. Concerning applicant investigations, Departmental Order 1732.1
establishes the personnel security regulations of the Department of Justice which
require security investigations to develop information as to whether employ-
ment or retention in employment by the Department is consistent with the in-
terests of national security. Departmental Order 1732.2 specifies positions within
the Department of Justiee which shall be subject to full field background in-
vestigations by the FBI. Such investigations are conducted on specific requests
received from the Office of the Associate Attorney General.
Departmental Order 288-62 sets forth the rules concerning applications for
executive clemency and provides for the FBI to conduct these investigations
at the request of the Pardon Attorney.
By letter dated January 16, 1973, the Attorney General authorized the FBI
to accept requests for background investigations directly from the Administra-
tive Office of the U.S. Courts and to furnish results directly to that agency.
Various agreements setting forth criteria for background-type investigations
have been developed through the Attorney General which govern the conduct of
inquiries for the White House and certain congressional committees.
The FBI's Manual of Investigative Operations and Guidelines sets forth in
detail in Part II, section 17, the objective and scope of applicant-type background
investigations. Part I of this manual also contains specific instructions which
apply to investigations conducted under individual classifications (e.g. 77, De-
partmental Applicants and 161, Special Inquiries).
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TO:
COLT of tip _Moroni Omani
LnEli1tginn,Th (1. 203311
DEC 1 9.1976
Clarence M. Kelley
Director
Federal Bureau of Investigation
.0:40
PROM: Edward H. Levi 1
Attorney General
SUBJECT: USE OF INFORMANTS IN DOMESTIC SECURITY, ORGANIZED
CRIME, AND OTHER CRIMINAL INVESTIGATIONS
?
'Courts have recognized that the government's use of
informants is lawful and may often be essential to the
effectiveness of properly authorized law enforcement inves-
tigations. However, the technique of using informants to -
-assist in the investigation of criminal activity, since it
may involve an element of deception and intrusion into the
privacy of individuals or may require government cooperation
with persons whose reliability and motivation may be open
to question, should be carefully limited. Thus, while it
is proper for the FBI to use informants in appropriate
investigations, it is imperative that special case be taken
.not only to minimize their use but also to ensure that
individual rights are not infringed and that the government
itself does not become a violator of the law. Informants
as such are not employees of the FBI, but the relationship
of an informant to the FBI imposes a special responsibility
? upon the FBI when the informant engages in activity where
he has received, or reasonably thinks he has received,
encouragement or direction for that activity from the FBI.
To fulfill this responsibility, it is useful to
formulate in a single document the limitations on the
. activities of informants and the duties of the FBI with
respect to informants, even though many of these limitation:
and duties are set forth in individual instructions or
recognized in existing practice.
As a fundamental. principle, it must be recognized tha'
an informant is merely one technique used in the course cf
authorized investigations. The FBI may not use informants
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14
where it is not authorized to conduct dn investigation nor
may informants be used for acts or encouraged to commit acts
which the FBI could not authorize for its undercover Agents.
When an FBI informant provides information concerning planned
criminal activity which is not within the investigative juris
diction, of the FBI., the FBI shall advise the law enforcement
agency having investigative jurisdiction. If the circumstanc
are such that it is inadvisable to have the informant report
directly to the agency having investigative jurisdiction, the
FBI, in cooperation with that agency, may continue to operate
,the informant.
A. Use of Informants
In considering the use of informants in an authorized
investigation, the FBI should .weigh the following factors
. . . .
: 1. the risk that use of an informant in a particular
investigation or' the conduct of a particular informant may,
contrary to instructions, violate individual rights, intrudJ
upon privileged communications, unlawfully inhibit the free
association of individuals or the expression of ideas, or
compromise in any way the investigation.or subsequent pro-
secution.
2. the nature and seriousness of the matter under
investigation, and the likelihood that information which an
informant could provide is not readily available through'
other source's or by more direct means. .
3. the character and motivation of the informant him-
self; 'his past or potential involvement in the matter under
investigation or in related criminal activity; his proven
reliability and truthfulness or the availability of means
to verify Information. which he provides. .
A. the measure of the ability of the FBI to control ti
informant's activities insofar as he is acting on behalf of
the Bureau.and ensure that his conduct will be consistent
with applicable law and instructions.
5. the potential value of the information he may be .
able to furnish in relation to the consideration he may be
seeking from the government for his .cooperation.
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B. Instructions to Informants
The FBI shall instruct all informants it uses in domestic
security, organized crime, and other criminal investigations
that in carrying out their assignments they shall not:
1. participate in acts of violence; or
2. use Unlawful techniques (e.g., breaking and entering,
electronic surveillance, opening or otherwise tamper-
ing with the mail) to obtain information for the
FBI; or
3. initiate a plan to commit criminal acts; or
4. participate in criminal activities of persons under
investigation, except insofar as the FBI determines
that such participation is necessaryto obtain
information needed for purposes of federal prepecution.
?
Whenever the FBg learns that persons under investiga-
tion intend to commit a violent crime informants used in .
connection with the investigation shall be instructed to
try to discourage the violence.
C. Violations of Instructions and Law ?
1. Under no circumstances shall the FBI take any action
to conceal a crime by one of its informants.
2. Whenever the FBI learns that an informant used in
investigating criminal activity has violated the instructions
set forth above in furtherance of his assignment, it shall
ordinarily notify the appropriate law enforcement or prose,
cutive authorities promptly of any violation of law, And
make a determination whether continued use of the informant
is justified. In those exceptional circumstances in which
notification to local authorities may be inadvisable, the
FBI shall immediately notify the Department of Justice of
the facts and circumstances concerning the investigation and
the informant's law violation, and provide its recommendation
on reporting the violation and on continued use of the informa:
The Department shall determine:
a. when law enforcement or prosecutive authorities .
should be notified of the law violation;
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16
b. what use, if any, should be made-of the informa-
tion gathered through the violation of law, as
well as the disposition and retention of such
information; and
c. whether continued use should be made of the
informant by the FBI:
3: Whenever the FBI has knowledge of the actual coral,
sion of a serious crimeby.one of its informants unconnecte:
with his FBI assignment', it shall'ordibarilY notify the app:
priate law enforcement or prosecutive authorities promptly a-
make a determination whether continued use of the informant
justified.. In those exceptional circumstances in which -
notification to local authorities may be inadvisable, the F:
shall promptly advise the Department of Justice of the fact:
and circumstances concerning the investigation and the
informant's law violation, and provide its recommendation Cr
reporting the violation and on continued use of the inforaa:-
The Department of Justice shall determine:.
a. when law enforcement or prosecutive authorities
should be notified of the law violation; and
b. whether continued use should be made of the
informant by the FBI.
4. /n determining the advisability of notifying appro-
priate law enforcement and prosecutive authorities of crizina
activity by FBI informants the FBI and the Department of
Justice shall consider the following, factors:
a. whether the crime is completed, imminent or
-.inchoate;
b. seriousness of the crime in terms of danger to
, life and property;
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.c. whether the crime is a violation of federal or
.state law, and whether a felony, misdemeanor or
lesser offense;
? ? ..
d. the degree of certainty of the information
? regarding the criminal Activity;
e. whether the appropriate authorities already knew
of the criminal activity and the informant's -
identity; and
the significance of the information the informant
is providing, or will provide, and the effect cn
the FBI investigative activity of notification to
the other law enforcement agency. . .
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OffirenftWAtturniT.6enald
113 nsiiingtun, . 2115311
November 4, 1976
Clarence M. Kelley
Director .
Federal Bureau of Investigation .
n
FROM: Edward H. Levi
Attorney Generaiii.
SUBJECT: Domestic Security Investigation Guidelines
As a result of our continuing consultation during
the initial implementation of the domestic security guide-
lines several questions have arisen regarding the means of
implementing specific techniques used to collect information
about groups or individuals under investigation. Taking
into account your experience with the guidelines to date,
as well as the complex factual situations in which these
provisions must be applied, I think it would be useful to
supplement the initial guidelines with more specific
instructions in applying these sensitive techniques.? The
guidelines on domestic security investigations provide
that in conducting preliminary and limited investigations,
the FBI may make inquiry of existing sources of information
and use of previously established informants, but informants
may not be recruited or placed in groups. In this context
"previously established informants" are those currently used
in an active status. These proVisions do not preclude:
1. Asking an informant, or any other-source, including
a potential criminal informant:
a. What knowledge he already has concerning a
group under preliminary or limited investi-
gation, or
b. To make inquiries concerning such a group,
without attending the group's meetings or
joining in its activities;
2. Directing a previously established informant to
attend and report on open meetings of a group
under preliminary or limited investigation. This
direction to attend meetings does not require
? prior approval of FBI Headquarters.
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3. Directing a previously established informant to
attend and report on closed meetings of a group
under the following limited circumstances;
a. The group is a faction or splinter group of
a parent organization which is already under
full investigation; or
b. The invitation to attend is initiated solely
by the group itself, and that group is already
under preliminary or limited investigation.
Provided, direction of an informant to attend
closed meetings pursuant to this paragraph requires
prior approval of the SAC. Prompt subsequent
notification shall be furnished to FBI Headquarters
whenever an informant attends a closed meeting
under these circumstances, either at the direction
of the FBI or on his own initiative.
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20
DOMESTIC SECURITY INVESTIGATIONS
I. BASES OF INVESTIGATION
A. Domestic security investigations are conducted, when
authorized under Section II(C), II(F), or II(I), to
ascertain information on the activities of individuals,
or the activities of groups, which involve or will
involve the use of force or violence and which involve
or will involve the violation of federal law, for the
purpose of:
(1) overthrowing the government of the United States
or the.government of a State;
?
?
(2) substantially interfering, in the United States,
with the activities of a foreign government or
its authorized representatives;
-(3) substantially impairing for the purpose of
influencing U.S. government policies or decisions:
? (a) the functioning of the governMent of
the United StateS;.
? .
(b) the functioning of the government of.a
State; or
(e) interstate commerce.
(4) depriving persons of their civil rights under the
Constitution, laws, or treaties of the United
States.
. ?
'I INITIATION AND SCOPE OF INVESTIGATIONS
A. Domestic security investigations are conducted at three
levels,-- preliminary investigations, limited investi-
gations, and full investigations -- differing in scope
and in investigative techniques which may be used.
B. All investigations undertaken through these guidelines
shall be designed and conducted so as not to limit the
full exercise of rights protected by the Constitution
and laws of the United States.
Preliminary Investigations
C. Preliminary investigations may be undertaken on the
. basis of allegations or other 'information that an
' individual or a group may be engaged in activities-
which involve or will involve the use of force or
vio/ence and which involve or will involve the
F?11/1:10.1
?
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violation of federal law fur one or mura of Lilo
purposes enumerated in IA(1)-1A4). Masa
investigations shall be confined to Ocarmining ?
whether there is a factual basla for o2ening
full investigation.
D. Information gathered by the FBI during preltminary
investigations shall be pertinent to vt,rrifylag
refuting the allegations or information c:oncerni-an
activities described in paragraph IA.
E. FBI field offices may, on their own initiative, -;:nder-
take preliminary 'investigations limited to: .
1, examination of FBI indices and files;
2. examination of public records and other public
sources of information;
?
3. examination of federal, state, and local records;
4. .inquiry of existing sources of information and
use of previously established informants; and
5. physical Surveillance and interviews or persons
not mentioned in E(1)-E(4) for the limited
purpose of identifying the subject of an
investigation.
Limited Investigations
F. A limited investigation must be authorized in writing
by a Special Agent in Charge orFBI Headquarters when
' the techniques listed in paragraph E are inadequate
. to determine if there is a factual basis for a full
investigation. In addition to the techniques set'
? forth in E(1)-E(4) the following techniques also may
be used in a limited investigation:
1. physical surveillance for purposes other than
identifying the subject of the investigation;
- ? -- ? .
2:* interviews of persons not mentioned in E(1)-E(4)
for purposes other than identifying the subject
of the investigation, but only when authorized
by the Special Agent in Charge after full
consideration of such factors as the-,seriousness
? of the allegation, the need, for the interview,
and the consequences Of using the technique.
? When there is a 'question whether an interview
should -De undertaken, the Special Agent in
? Charge shall seek approval of FB/ Headquarters.
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B. Techniques r.uch as recruitment, or placement of
informants in groups, "mail.cove:s, or electronic
surveillance, may not be used as part of.a
preliminary or a limited investigation.
H. All preliminary and limited investigations shall be
closed within 90 days of the date upon which the
?
preliminary investigation was initiated. Howeve::,
FBI Headquarters may authorize in writing extension
of a preliminary or limitad investigation for periods
of not more than 90 days when facts or information
obtained in the original period justify such .an
extension, The authorization shall include a state?
ment of the circumstances justifying the extension.
Full Investigation
/. Full investigations must be authorized by .FBI Head-
quarters. They may only be authorized on the basis.
of specific and articulable facts giving reason to ?
believe that an individual or a g-zoup is or may be
engaged in activities whichinvolve the use of force
or violence and which involve or will involve the
violation of federal law for one or more of the
purposes enumerated in IA(1)-IA(4). The following
factors must be considered in determining whether a.
full investigation should be undertaken:
(1) the magnitude of the threatened harm;
(2) the likelihood it will occur;.
. (3) the immediacy of the threat; and
(4) the danger to privacy and free expression posed
by a full investigation.
?
Investigative Techniques
? _ _
3. yhenever use of the following investigative techniques
are permitted by these guidelines, they, shall he
implemented as limited herein:
(1) use of informants to gather information; when
approved by FBI Headquarters, and subject to
review at intervals not longer than 180 days;
provided,
(a) when persons have been arrested or charged
with a crime, and criminal proceedings are
? still pending, informants 'shall not be used
to gather information concerning that crime"
from the person(s) charged; and
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(2)
(3)
(b) informants shall not be used to obtain
privileged information; and where such
information is obtained by-an informant
on his own initiative no record or use
shall be made of the information.
"mail covers," pursuant to postal regulations,
when approved by the Attorney General or his
designee, initially or upon request for
extension; and
electronic surveillance in accordance with the
requirement of Title III of the Omnibus 'Crime.
Control and Safe Streets Act of 1968.
Provided that whenever it becomes known that
person(s) under Surveillance are engaged in
*privileged conversation (e.g.; with
attorney),, interception equipment shall be
immediately shut off and the Justice Department
advised as soon as practicable. Where such a
conversation is recorded it shall not be
transcribed, and a Department attorney shall
determine if such conversation is privileged.
NOTE:. These techniques have been the subject
of strong concern. The committee is
not yet satisfied that all sensitive
areas have been covered (e.g., inquiries
made under "pretext;" "trash covers,"
photographic or other surveillance
techniques.) .
III. TERMINATING INVESTIGATIONS
A. Preliminary, limited, and full investigations may
:be terminated at any time by the Attorney General,
his designee, or FBI Headquarters.
B. FBI Headquarters shall periodically reVieW the
results of full investigations, 'and-at such time
-as it appears that-the standard for.a full
ihVestigation under II(I) can no longer be '
satisfied and all logical leads have been exhausted
or are not likely to be productive, FBI Headquarters
shall terminate the full investigation.
?
The Department of Justice shall review the results
of full domestic intelligence investigations at ?
least annually, and shall determine in writing whether
Continued investigation is warranted. Tull investi-
gations shall not continue beyond one year without the
written approval of the Department. However; in.the
absence of such notification the investigation ,may tont:
for an additional 30 day period pending response by
the Department.
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24
1V. REPORTING, DISSEHINATION..AM) RETENTION.
A. Reporting
1. Preliminary investigations which involve a 90-day
extension under TIN and limited investigaions
under IIF,- shall be reported periodicallv to the -
Departa:ent of Jin.tice. -aeports of preli.,ii'.1ary
and limited investigations shall inulude the
identity of the subject of the.investig;,tioa,
the identity of zne person interviewed or the
person or place surveilled, and thi:11
which investigations involved A 90-jay e-.ctunsion.
FBI Headquarters-shall maintain, and provide to
the Department of. Justice .upon request, statistics
on the number of preliminary investigations
instituted by each field. office, the number of
limited investigations under IIF, the number of
preliminary investigations that involved 90-day .
extensions under. IIH, and th number of preliminary
or limited investigations that resulted in the
-opening of a full investigation.
2. Upon opening a full domestic security investigation.
the FBI shall, within one week, advise the Attorney
General or his designee thereof, setting forth
the basis for undertaking the investigation. .
_3. The,FBI.shall report the progress of full domestic
security investigations to the Department of -
Justice not later than 90 days after the initiation
thereof, and the results at the end of each year
the investigation continues.
4. Where the identity of the source of information
is not disclosed in a domestic security report,
an ansessment of the reliability of the source
shall be provided.
B. .Dissemination
1. Other Federal Authorities
The FBI may disseminate. facts or information
obtained .during a domestic security investigation -
to other federal authorities when such information:
(a) falls within their investigative jurisdiction;
(h) may assist in preventing the use of 'force
or violence; or
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(c) may be required by statute, _interagency
agreement approved by the Attorney General,
or Presidential directive.. Al] such
:agreements and directives shall be published
in the Federal Register.
2: State and Local Authorities
The FBI may disseminate facts or information
relative to activities described in paragrao:a 'A.
to state and local law enforcement authorities
when such information:.
-(a) falls within their investigative jurisdiction:
(b) may assist in preventing the use of force or
violence; or
(c) may protect the integrity of a law enforcement
agency.
B.. When information relating to . . crimes not
covered by paragraph IA is obtained during a
domestic .security investigation, the.FBI
. refer the information to the appropriate
lawful authorities if it is within the jurisdiction
of state and local agencies.
4. Nothing in these guidelines shall limit the
authority of the FBI to inform any individual(s)
whose safety or property isdirectly threatened
by planned force or violence, so that they may
take appropriate protective safeguards.
5, The FBI shall maintain records, As required by
law, 'of all disseminations made outside the
bepartment of Justice, of information obtained
during domestic security investigations.
Retention
El. The FBI shall; in accordance with a Records
Retention Plan approved by the National Archive's
and Records Service, within years after
closing domestic service investigations, destroy
all information obtained during the investigation,
as well as all index references thereto, or
transfer all information and index references
to the National Archives, and Records Service. 3
IINOTE: We are not yet certain whether empirical data
exists to help define a period of retention
for information gathered in preliminary or
full investigations. Whatever period is
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determined should take into acCount the
retention period for other categories of
information (e.g., general crimlnal,
organized crime, and background Checks):
since we have not yet considered. these -
areas we cannot fix a period for retention
at this time.:3 .
C
. NOTE: It may also be possible to establish a '
sealing procedure to preserve.investigatiPe
records ...or an interim period prior to
destruction. After being sealed. access
would be permitted only under controlled
conditions.21
e...-Information relating to activities not covered by
. paragraph IA obtained during; domestic security
investigations, which may be maintained by the FB/ :
under other parts of these guidelines, shall:be
retained in accordance with such other provisions.)
The provisions of paragraphs one (1),. and:two (2)
above apply to all domestic security investigations
completed after the promulgation of these guidelines;
and apply to investigations completed prior to .
promulgation of these guidelines when use of these
files serves to identify them as subject to destruction
or transfer to the National Archives and Records
Service..5 .
ift When an individual's request pursuant to law for
access to FBI records identifies the records as
being subject to destruction or transfer under-
paragraph one (1), the individual shall be furnished
all information to .which he is entitled prior to
destruction or transfer.
C3-
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REPORTING ON CIVIL DISORDERS AND DEMONSTRATIONS
INVOLVING A FEDERAL INTEREST
I. Basis for Reports and Investigations
The Federal Bureau of Investigation is responsible for
reporting information on civil disturbances or demonstrations
in four categories:
A. Investigating --
1) violations of federal criminal law directed explicitly
at civil disorders (e.g. 18 U.S.C. 231, 2101); and
2) violations of federal criminal law of general appli-
cability occuring during civil disorders.
Providing information and assistance, upon request of the
Secret Service, to aid in carrying out its protective
responsibilities under 18 U.S.C. 112, 970, 3056 and
P.L. 90-.331.
NOTE: Under 18 U.S.C. 112 and 3056 the Secret Service
is assigned responsibility to provide protection to
certain U.S. Government officials and foreign officials
and visitors. P.L. 90-331 provides Secret Service
protection for candidates for office and authorizes
Secret Service to call on any federal agency to assist
in this regard. Responsibility for protection of
foreign missions is assigned to the Executive Protection
Service under the direction of the Secret Service.
This accounts for the reference to 18 U.S.C. 970 dealing
with damage to foreign missions.
C. Providing information concerning actual or threatened
civil disorders which may require the presence of federal
troops to enforce federal law or federal court orders
(10 U.S.C. 332, 333) or which may result in a request
by State authorities to provide federal troops in order
to restore order (10 U.S.C. 331).
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NOTE: The statutes cited provide three bases for the
use of troops in connection with civil disorders. Section
332 authorizes troops, at Presidential initiative, to
enforce federal law and was the basis for the use of
troops to protect the mail in the Pullman strike. Section
333 deals with the use of troops to protect civil rights
and enforce court orders and was the basis for using
troops at Little Rock and Oxford. Section 331 permits
the President to send troops at the request of a State
when State authorities cannot restore order, e.g. the
Detroit Riot.
D. Providing information relating to demonstration
activities which are likely to require the federal
government to take action to facilitate the activities
and provide public health and safety measures with respect
to those activities.
NOTE: While there is no specific statutory authority
for collection of information in these circumstances,
the Second Circuit recognized in Fifth Avenue Peace
Parade Committee V. Kelley, 480 F.2d 326, cert. denied,
415 U.S. 948, that the federal government has a
legitimate need for information concerning demonstrations
planned at federal facilities in order to provide services
in connection with the demonstration. For example,
considerable information was needed in order to fashion
an appropriate permit for the November 1971 moratorium
march in Washington, D.C.
II. Criminal Offenses .
A. Investigation of criminal offenses referred to in
paragraph I.A. shall be undertaken in the manner pro-
vided for in guidelines relating to criminal investi-
gations generally.
? B. Information concerning criminal offenses within the
investigative jurisdiction of the FBI which is acquired
incidentally in the course of implementing parts III
through V, shall be handled in the manner provided for
in guidelines relating to criminal investigations generally.
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C. Information concerning criminal offenses within the
investigative jurisdiction of another federal agency
which is acquired incidentally in the course of imple-
menting parts II through V, shall be reported to the
agency having jurisdiction.
D. Information concerning serious criminal offenses within
the investigative jurisdiction of State or local agencies
which is acquired incidentally in the course of imple-
menting parts II through V shall be reported to the
appropriate lawful authorities.
NOTE: Using the criteria now amilied by NCIC, the
reference to serious offenses would exclude such matters
as: drunkeness, vagrancy, loitering, disturbing the .
peace, disorderly conduct, adultery, fornication, and
consensual homosexual acts, false fire alarm, non-specific
chages of suspicion or investigation, traffic violations,
and juvenile delinquency.
E. Information relating to criminal offenses acquired in
the course of implementing parts II through V shall
be retained and indexed as provided for in guidelines
relating to criminal investigations generally.
Assisting the Secret Service
A. Information relating to the protective responsibilities
of the Secret Service described in Paragraph LB, which
is acquired incidentally by the FBI in the course of
carrying out its responsibilities, shall be,reported to
the Secret Service. The FBI shall not undertake specific
investigations for the purpose of assisting the Secret
Service in its protective responsibilities without a
specific request from the Director of the Secret Service
or his designee, made or confirmed in writing.
NOTE: The Department should undertake to review with
the Secret Service existing agreements on the dissemination
of information from the FBI to the Secret Service. The
draft report 4A the General Accounting Office indicates that
very little information reported by the FBI is actually
retained by Secret Service.
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B. A record shall, be made of all information reported to
the Secret Service pursuant to paragraph III.A. and the
record shall be retained by the FBI for five years.
NOTE: This is the standard Privacy Act accounting
requirement.
C. Information reported to the Secret Service may be
retained by the FBI for a period of years.
NOTE: The retention period for this information will be
considered in a general review of retention under all the
guidelines.
IV. Civil Disorders
A. Information relating to actual or threatened civil
disorders acquired by the FBI from public officials or
other public sources, shall be reported to the Department'?
of Justice.
B. The FBI shall not undertake investigations to collect
information relating to actual or threatened civil
disorders except upon specific request of the Attorney
General or his designee. Investigations will be authorized
only for a period of 30 days but the authorization may be
renewed, in writing, for subsequent periods of 30 days.
C. Information shall be collected and reported pursuant
to paragraphs A and B above for the limited purpose of
assisting the President in determining whether federal
troops are required and determining how a decision to
commit troops shall be implemented. The information
shall be based on such factors as:
1) The size of the actual or threatened disorder --
both in number of people involved or affected and
in geographic area;
2) The potential for violence;
3) The potential for expansion of the disorder in light
of community conditions and underlying causes of the
disorder; .
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4) The relationship of the actual or threatened disorder
to the enforcement of federal laws or court orders
and the likelihood that State or local authorities
will assist in enforcing those laws or orders;
5) The extent of State or local resources available
to handle the disorder.
D. Investigations undertaken, at the request of the Attorney
? General or his designee, to collect information relating
to actual or threatened civil disorders shall be limited
to inquiries of:
1) FBI files and indices;
2) Public records and other public sources of information;
3) Federal, State and local records and officials;
4) Established informants or other established sources
of information.
?
Interviews' of individuals other than those listed above,
and physical or photographic surveillance shall not be
undertaken as part of such an investigation except
when expressly authorized by the Attorney General or his
designee.
Information relating to civil disorders, described in
paragraph C above, shall be reported to the Department
of Justice and may also be reported to federal, state
or local officials at the location of the.actual or
threatened disorder who have a need for the information
In order to carry out their official responsibilities
in connection with such a disorder.
F. Information acquired or collected pursuant to paragraphs
A through D above may be retained by the FBI for a period
of years but may not be indexed in a manner which
permits retrieval of information by reference to a specific
individual unless the individual himself is the subject
of an authorized law enforcement investigation.
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NOTE: Retention period to be fixed later: indexing
to be implemented immediately'.
V. Public Demonstrations
A. Information relating to demonstration activities which
are likely to require the federal government to take
action to facilitate the activities and provide public
health and safety measures with respect to those activities,
which is acquired incidentally by the FBI in the course of
carrying out its responsibilities, shall be reported to
the Department of Justice.
B. The FBI shall not undertake investigations to collect
information with respect to such demonstrations except
upon specific request of the Attorney General or his
designee.
C. Information collected and reported pursuant to
paragraphs A and B above shall be limited to that
which is necessary to determine:
1) The date, time, place and type of activities
planned;
2) The number of persons expected to participate;
3) The intended mode of transportation to the intended
site or sites and the interided routes of travel;
4) The date of.arrival in the vicinity of the intended
site and housing plans, if pertinent;
5) Similar information 'necessary to provide an adequate
federal response to insure public health and safety
and the protection of First Amendment rights.
NOTE: Clause 5 above is intented to encompass such
additional facts affecting the federal responsibility
as unusual health needs of participants, counter-
demonstrations planned which may increase safety needs,
or possible inability of participants to arrange return
transportation.
D. Investigations undertaken to collect information
relating to demonstrations pursuant to paragraph B
above shall be limited to determining the information.
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described in paragraph C. Such information shall be
collected only by inquiries of:
1) FBI files and indices,
2) Public records and other public sources of information,.
3) Federal, state and local records and officials,
4) Persons involved in the planning of the demonstration,
provided that in conducting interviews with such
persons the FBI shall initially advise them specifi-
cally of the authority to make the inquiry and the
limited purpose for which it is made.
E. The FBI shag not undertake to photograph any demonstra-
tion or the preparation therefor in carrying out its
responsibilities. under paragraph V.
F. Information acquired or collected pursuant to paragraphs
A through D above may be retained by the FBI for a
period of .years but may not be indexed in a manner
which permits identification of an individual with a
particular demonstration or retrieval of information
by reference to a specific individual, unless the
individual himself is the subject of an authorized law
enforCement investigation.
?
NOTE: Retention period to be fixed later; indexing limit
to be-implemented immediately.
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Senator KENNEDY. The subcommittee will need those to see how
this issue is being addressed in the charter.
Attorney General BELL. You will be involved, but we will make it
clear that we do not need too many specifies in the statute because you
ought to have the statute and the guidelines both, with the manual.
Going back to what I would take away from the Bureau, I think we
miss a point if we do not have in mind that the Bureau. is constantly
reassessing what they ought to be doing. For example, this year we are
getting out of the business of apprehending military deserters. We did
that by letter to the Department of Defense. We are getting out of
that business. We are not out of it all together, but we are in the process
of getting out of it.
We are trying, for example, to shift bank robberies to the States
wherever we can. We find that we are having some success in urban
areas. But the Bureau for 2 or 3 years has been reassessing its role.
That is what they call the "quality over quantity program." So, that
has not got to do with jurisdiction, but it has to do with the mission,
I would call it.
I have described in very broad terms issues which we are considering
in relation to an FBI charter.
Senator KENNEDY. When can we expect to see the draft charter?
Attorney General BELL. They have been working on the charter since
the first day I got here. They always tell me how hard it is. My assistant
tells me we have a long way to go. They need decisions from me. But I
will get with them and ive will get it out. I think we have worked on
it long enough. We can do it, or else it is impossible. I will tell you
about one or the other. [Laughter.]
I suspect it is possible.
Senator KENNEDY. When can we expect that, toward late summer
or early fail?
Attorney General BELL. Let me ask my assistant about July 1. Let
us say July 1.
Senator KENNEDY. All right.
Attorney General BELL. My assistant, Mary Lawton, is not in agree-
ment with that, but we will say July 1 for the record.
Senator KENNEDY. It would be enormously helpful to see it by that
time. That would give us an opportunity to review it before we begin
preparing a committee draft.
Attorney General BELL. Just a moment, Senator. Let me check
that July 1 date. They tell me that we can give it to you by July 1,
but I do not have specific proposals to make to you today. Indeed,
I have not resolved many of the questions in my own mind, that
is because they have not rolled up all the questions to me. I know
we have to take great care not to overlook something.
It is important to begin thinking about these matters now, how-
ever, and to develop a dialog between the legislative and executive
branches. We must not underestimate the complexity of drafting a
proper, fair, and effective charter for the FBI. It will take some
time to reach decisions in all of the areas in which statutory guidance
is needed and to draft language to implement those decisions effec-
tively. Perhaps it will be necessary to legislate in stages, taking
a few pressing issues at a time and attempting to find legislative
resolutions for them.
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In my judgment, you have made a wise decision in undertaking
to assess the full dimensions of charter legislation in exploratory
hearings such as this before attempting to draft any specific proposal.
I pledge the full cooperation of the Department of Justice and the
FBI in working with you to develop a lasting and comprehensive
charter. Mr. Chairman, that is all I have by way of a prepared
statement. Judge Webster is here, too.
Senator KENNEDY. All right, let us hear from Judge Webster.
STATEMENT OF WILLIAM H. WEBSTER, DIRECTOR, FEDERAL
BUREAU OF INVESTIGATION, ACCOMPANIED BY JAMES B. ADAMS,
ASSOCIATE DIRECTOR, AND JOHN J. McDERMOTT, ASSISTANT TO
THE DIRECTOR, DEPUTY ASSOCIATE DIRECTOR OF ADMINISTRA-
TION '
Director WEBSTER. I have a brief statement before starting.
I would like to say that I listened very attentively to the Chair-
man's opening remarks. I was very much impressed by the one which
you set for these proceedings. I want you to know that you will
have the full cooperation of the FBI.
Senator KENNEDY. Thank you.
Director WEBSTER. Mr. Chairman, and members of the committee,
I welcome this opportunity to meet with you and to discuss a matter
of vital concern to all of us: a charter for the Federal Bureau of
Investigation that will delineate the nonintelligence functions of our
work. I need not repeat what Attorney General Bell has testified about
this morning, namely, the statutes upon which the FBI presently relies
for its investigative and service activities. Neither is it necessary to re-
state the varied functions presently being performed by the FBI.
These are well known to the committee and its staff.
However, I do wish to reemphasize some of the concerns noted by
the Attorney General. The FBI urgently needs a clear and workable
statement of its responsibilities, power, and duties. The men and
women of the __Bureau need a charter that will allow them to act with
confidence that what they are doing is lawful. It should be one that
does not allow for any future misunderstanding of authority. The
present statutory sources that establish our jurisdiction are not suffi-
ciently definitive. There are not sufficient benchmarks to permit our
agents to act or refuse to act with certainty that their conduct is
correct.
History tells us that reliance on inherent authority has been a
major contributor to some of the sad events tlutt have been fully
chronicled. As I have stated previously before this committee, any-
one asked to go out on the point ought to know that the order is based
upon law and clear authority. Reliance on inherent authority presents
the all-too-possible risk that legal authority may not, in fact, be
there. But while a 'charter for the FBI demands specificity, it cannot
be inflexible. It should not be so rigid that it denies the FBI an
ability effectively to carry out its mission of combating crime and
violence in our Nation.
It should not reach down so far into our activities that it becomes
a substitute for Attorney General guidelines. It should not confuse
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a definition of fundamental functions with a manual of investigative
procedures that properly remain with the FBI.
Obviously, there is no simple formula that will permit this com-
mittee, the Department of Justice or the FBI to identify and com-
partmentalize material that should be in a charter, Attorney Gen-
eral guidelines, or an FBI operating manual. Yet, this is a matter
of great and practical importances. Times change, emergencies ap-
pear, and investigative priorities change. Perhaps operational guide-
lines of the Department of Justice can be changed to meet the un-
expected. But how readily can a charter of Congress change?
Senator KENNEDY. That is part of the dilemma; if the guidelines
keep changing, then we will be back where we were. How can we
strike a balance here?
Director WEBSTER. In answer to that question, Mr. Chairman, I
think we have to decide what types of areas should remain clearly
flexible. I think the charter, itself, could provide for specific types
of guidelines and if the Congress chooses, it could provide certain
types of oversight of those guidelines. I think that would be the
best test to be followed. Good. analogs, I think, can be found in the
Truth-in-Lending Act with regulation Z; in 10(b) (5) regulations
for the Securities and Exchange Act; and even possibly, the rules
of criminal procedure.
I just suggest those as possible analogs, but I recognize there is
a genuine concern by this committee. The concerns are mutual; so,
too, should the task of creating a meaningful charter be mutual. To
this end, I pledge the continued cooperation of the FBI in assisting
the Department of Justice and the Congress in this endeavor. So, too,
do I pledge my allegiance and that of the FBI to both the letter and
the spirit of the legislation that Congress enacts.
If I may be of further assistance to the committee, or Associate
Director James B. Adams?who is present here today?or Mr. Mc-
Dermott as well, I would be happy to answer additional questions at
any time.
Mr. Chairman' I hope that from time to time you will invite me
back to express departmental views as we proceed to resolve these
problems. I hope we will be able to submit specific proposals for in-
clusion in the charter, and perhaps be able to submit, through the
Attorney General, some model forms which might be worthy of
consideration.
At this time, I would like to submit for the record a biography
of James B. Adams, my Associate Director.
Senator KENNEDY. Fine, thank you.
Without objection, so ordered.
[See appendix for biography of James Adams.]
Senator KENNEDY. I want to thank you very much, Judge Webster.
We will look forward to taking advantage of that opportunity. I
think this will be an evolutionary process and it should be a creative
one which will take the best minds of the Department, the FBI, this
subcommittee' and other interested Members of Congress. We will
look forward to working closely with you.
Let me review with you some problem areas, and I would like to
invite your response to these. Maybe Attorney General Bell or you
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yourself could respond to them. We understand the importance and
need for a charter, and think it is extremely reassuring to hear your
comments. I would like to hear the scope you think the charter ought
to have, and what specificity it should have. The first is Attorney
General Bell talked about the role of the Bureau in conducting the
domestic security investigations? You have commented on this in
your formal presentation, then you expanded on this in your informal
remarks. Is there any other agency beside the FBI which should be
involved in work on domestic security investigations?
Attorney General BELL. The Secret Service, I would say. Yes; I
would say the Secret Service.
Senator KENNEDY. But should it be limited to those two agencies?
Attorney General BELL. Well, that is one of the interagency prob-
lems I was alluding to. The A.T. & F., for example, has jurisdiction
over bombings. To give you a good example of that, we have had a
.number of bombings in the Miami area. The A.T. 86 F. was there in
charge. Senator Stone telephoned me a number of times and said he
wanted to get the FBI in. I said: "Well, we do not have jurisdiction.
That statute is left to the A.T. & F." I finally did get the FBI into
Miami, but it was only after we found a violation of civil rights. There
was a very severe violation where the bombings blew the legs off of a
newspaper editor. On that basis, we sent in the FBI. So we have both.
Then you have a problem of who is in charge. That is a domestic
security matter. There are various types of these domestic security
matters.
Senator KENNEDY. What criteria does the A.T. & F. use and what is
the investigative standard?
Mr. ADAMS. They handle explosives basically.
Senator KENNEDY. But in investigations, do they use the "nexus
of crime," or "probable cause," or what? Do all of the Federal inves-
tigative agencies involved in domestic security investigations use the
same standards?
Attorney General BELL. I doubt it. I do not think Secret Service
would. I do not want to speak for them, but they have a different role
to protect. They are trying to +protect the President and other high
Government officials. They are really not investigating crimes, as
such. Is that not a fair statement?
Mr. ADAMS. Yes.
Senator KENNEDY. Outside of the Secret Service,, would they all
have the same standard?
Attorney General BELL. I think so, yes. Insofar as I know, they
do. I notice sometimes on the wiretap list they will have some of these
unusual agencies, like the Department of Agriculture. They have en-
forcement people checking violations of law themselves. This is quite
a long list, but they are all trying. to find violations of the law, and
they would refer to us. for prosecution, anything they find.
Senator KENNEDY. That certainly would be understood. But the
ouestion is this: What criteria are all the various investigative agen-
cies using in domestic investigations, outside the jurisdiction of the
Secret Service. Do they have different criteria?
Attorney General BELL. I think I spoke too fast, because I really
do not know that. I know about the FBI and the DEA. That is all I
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38
have jurisdiction over. So I would not want to speak for the others.
I think, though, that might well be what the committee wants to know.
Senator KENNEDY. It seems we ought to have some definitive com-
ment on this. Obviously we would need your help and assistance in
defining what that ought to be.
Attorney General BELL. I was just talking with Mary Lawton. We
will try to get that up to the committee.
Senator KENNEDY. Very well.
Without objection, so ordered.
[ See appendix for material cited above.]
Senator KENNEDY. Does the standard differ from that used in the
foreign counterintelligence investigations?
Attorney General BILL. Oh, yes; just as we have a different standard
in the Surveillance Act, which you will be voting on today.
Senator KENNEDY. Yes; we start at 11 :30.
Attorney General BELL. The standard would be different; yes. In the
Surveillance Act, we are now encompassed in a criminal standard, that
is, there are shades or variations in the standard, but it is still a crimi-
nal standard. I guess in that sense we are fretting ready to say that
everythingis going to be on a criminal standard.
Senato;KENNEDY. Are you getting ready to say Lt?
Attorney General BELL. We do not say it now. As you know, we have
had quite a debate about that.
Senator KENNEDY. That is right.
Attorney General BELL. It has been with you and others. We finally
decided that we could do it within the parameters of the criminal
standard.
Senator KENNEDY. I think that was a very constructive and, quite
frankly, an indispensible addition to the legislation.
Director WEBSTER. May I interject, Mr. Chairman?
Senator KENNEDY. Certainly.
Director WEBSTER. The distinction has to be made throughout the
charter as to the difference between foreign counterintelligence respon-
sibilities and domestic security investigations, both of which are intel-
ligence gathering, and both of which may ultimately require a Federal
standard for the basis for investigation. But our responsibilities in
foreign counterintelligence go beyond those of domestic security in-
vestigations in that we have a responsibility there to neutralize the
impact of foreign efforts to gather intelligence in this country, where-
as we have no such responsibility to neutralize activities in domestic
security.
Senator KENNEDY. You had better elaborate on your meaning; of
"neutralize."
Director WEBSTER. Yes; we do not engage in other than investiga-
tive actiyities in connection with domestic security investigations. It
is our responsibility to minimize the impact of foreign counter-
intelligence by confusion, by any type of activity which will, in effect,
destroy the spy effort of foreign nations. It is a different function.
That is why they are very carefully separated.
Senator KENNEDY. You previously took preventive action; but you
do not at the present time. Is that correct?
Director WEBSTER. Preventive action in domestic security would be
legitimate in the sense that if we identified a conspiracy to do some-
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thing, then we would take action to stop it. But we would not be
diffusing the organization with fictitious mail or taking any other
steps of that type. It is sometimes called "dirty tricks." In foreign
counterintelligence, we do engage in legitimate efforts to confuse for-
eign activities, and to make them consume substantial amounts of
their available time wondering about the effectiveness of their
operation.
Senator KENNEDY. Can you tell us how the charter should define
the FBI's responsibility in this area? I do not expect you to define it
totally here, but can you tell us what you think the charter ought to.
say in this area, and how it ought to define the FBI's responsibility?
Director WEBSTER. Are we talking about foreign counter-
intelligence?
Senator KENNEDY. I would be interested in both domestic and
foreign counterintelligence.
Director WEBSTER. The preamble portions to the. Attorney General
guidelines would be tt good beginning point. Those responsibilities
could be defined in terms of what our purpose, that is, our legitimate
interest in intelligence gathering would be in domestic security, for
instance, and what types of organizations we could legitimately in-
vestigate for intelligence-gathering purposes. The. guidelines them-
selves might very well deal with the types of investigations that would
be permitted against a given backdrop or parameter of circumstance
or level of proof. I find it very difficult to try to articulate something
in this area. We are going to have to submit drafts to you, then we
can discuss the drafts.
Senator KENNEDY. All right: that is fine.
[At press time, the material requested from the Department had
not been received by the subcommittee.]
Senator KENNEDY. Should the FBI have statutory authority to in-
vestigate civil disorders at the request of the Attorney General or the
President?
Director WEBSTER. Are, you asking whether we should have that?
Senator KENNEDY. Do you have that authority now?
Director WEBSTER. T think we do have, it, but it is the kind of au-
thorization that, as the Attorney General has said, and as I tried to
indicate is sometimes not clear and is very general. We. have had
to bootstrap lift in order to carry out our assigned responsibilities
in those areas.
Attorney General BELL. We do not have it unless it is a Federal crime,
being committed, or has been committed, or is about to be committed, or
that we expect will be committed. As Judge Webster knows, and
Jim Adams knows, we are asked to send the FBI. Contrary to the
things you might believe, Senator, the FBI is a very popular organiza-
tion. If something happens bad somewhere, then people immediately
want to get the FBI in. We spent a lot of our time wondering if we
can send the FBI somewhere. We cannot always send them. Of course,
we try to follow the law.
Civil disorder is where there is disorder in the eye of the beholder.
We had a civil disorder, I guess, when Iranian demonstrations were
going on. That was not handled by the FBI. It was handled by the
Park Police, but it was serving the Government here. The President
directed me to take over. I got Mr. Adams to start observing the
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situation to see just what was going on and to see what could be.
done which had not been done. But by the time we got into it,
it was over with. We never really did have to do anything about it.
In the Hanafi Muslim case, that itself could certainly be called
a disorder, but it was a crime also, so there was no problem. In
that case, we assisted the District of Columbia Police. They handled
it and we assisted them and stood by and did everything we could
help them.
When these cases come up, each stands on his own feet, and you
have to decide what you can do.
We had a problem in the coal strike with people blocking rail-
roads. There are different kinds of disorders like that going on. They
are crimes, in some instances. We only observed. We never really did
anything beyond that because the State police were there. Most every-
thing that came up was in the province of the State police rather
than in our jurisdiction.
Senator KENNEDY. Obviously, this is an extremely important and
enormously sensitive area. Are you saying there ought to be only
general guidelines for civil disorder cases?
Attorney General BELL. I would say, and I guess we have done this,
we would take all the statutory jurisdictions that we have, which are
very sparse. Then there are a lot of things and duties that are bestowed
upon the Bureau by other statutes. We get all that together. We
could, I suppose, sit down with the top management of the Bureau,
and try to think of all the things that we have been asked to do over
the years and see how they fit into this charter. I think we can come
up with a charter.
Senator KENNEDY. An important area in civil disorder cases is what
limitations on collection and dissemination of information you have.
What standard do you use at the present time?
Director WEBSTER. We are presently using a need-to-know standard.
If it is within the legitimate area of local law enforcement respon-
sibility, then, we, in a cooperative way, have disseminated that infor-
mation to the local enforcement officers.
But we have always satisfied ourselves that it fell within their
jurisdiction and was of legitimate interest to them.
Senator KENNEDY. What standard is used for election of informa-
tion on a domestic group?
Director WEnsma. If I can complete my answer on dissemination,
we are also accountable to the Privacy Act, which has certain limita-
tions. With respect to your second question, the present guidelines
Provide:
The domestic security investigations are conducted to ascertain informa-
tion on activities of individuals or activities of groups which involve, or will
involve, the use of force or violence or which involve, or will involve, a viola-
tion of the Federal law.
Then four categories are set forth. First is overthrowing the U.S.
Government or a State government..
Second is substantially interfering in the United States with activi-
ties of a foreign government or its authorized representatives.
Third is a series of categories which summarize substantially im-
pairing for the purposes of influencing U.S. Government policy
decisions.
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Fourth is depriving persons of their civil rights under the Con-
stitution, or laws or treaties of the United States.
Those are the activities which, under the guidelines, we have a
legitimate interest in investigating. Then there are it series under
the guidelines, and I think probably they should stay under there,
of threshold information, that is, in other words, how far and in
what way can we investigate. These depend upon the amount of
information that we have at that time. For example, we are not
presently authorized to penetrate an organization by putting an in-
formant in place for the purpose of conducting a preliminary investi-
gation to see what they are up to. We have to have formal information
of the likelihood of criminal activity before we are ?authorized to
engage in that type of activity. If we get a hearsay report that they
are up to no good, we can initially conduct a record check, which
is essentially a record check of our own records to see what we know
about them.
Senator KENNEDY. Is that the same criteria you use in domestic
security cases ?
Director ? WEBSTER. Yes.
Senator KENNEDY. I am specifically interested in the criteria for
just civil disorder cases not related to just domestic security. Do you
make a, distinction ?
Mr. ADAMS. Senator, in civil disorders, the main obstacle that is
encountered to the collection and retention of information is the
Privacy Act, which prohibits the collection or maintenance of any in-
formation which would be first amendment protected activity, unless
it is directly related to an investigative activity. The civil disturbance
area is an example of what Judge Bell was talking about as to how
we have had to sit around and decide whether we can get in or can we
not. The only time that we have conducted a civil disorder or dis-
turbance investigation, since the guidelines were established in 1976,
was the Bicentennial celebration in Philadelphia where we did have
information that groups, which we had under full investigation, were
planning to commit violence. In fact, the information was such that
the State of Pennsylvania had requested Federal troops. That was not
honored because it was our considered opinion that there 'was not a
likelihood, based on information available to us, that the situation was
so serious as to warrant it.
But in the other situation where we had the Iranian demonstration,
although we did not conduct a civil disorder or demonstration investi-
gation, we did have certain groups under investigation which were
participating. We disseminated that information to the Park Police
because we had indications that violations of law were about to take
place, and, in fact, did take place. This comes under our general dis-
semination policies whereby if, during the conduct of any domestic se-
curity investigation or foreign counterintelligence information, we
develop information which is within the investigative jurisdiction of
another law enforcement agency or which would indicate the imma-
nance of an act or completed criminal act. Then we do have the au-
thority to disseminate that information.
Director WEBSTER. Mr. Chairman, there are three areas I think tilt,
committee might want to be concerned with, with respect to civil
disorder chartering. First, of course, to make clear our jurisdiction is
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an important consideration. Then you might want to set up a require-
ment that these investigations be under the authority of the Attorney
General.
The committee may then want to set out provisions for reporting
requirements so that you have a clear record of oversight, but I think
these are obvious areas that you may want to look into.
Senator KENNEDY. All right.
Are these the April 1976 guidelines?
Director WEBSTER. Yes.
Senator KENNEDY. But that was for conducting domestic security
investigations. Why have not there been similar guidelines for civil
rights and applicant investigations?
Attorney General BELL. We have been drawing guidelines, as I
understand it, for about 2 years, as fast as we can draw them. We may
not have (rotten to that. Doubtless we will have a guideline on every-
thing we ''do.
Senator KENNEDY. Is it your intention that they will be covered by
new guidelines?
Attorney General BELL. Oh, yes. We want. to get a general charter
provision. Then we will use guidelines. Let me say something I meant
to say earlier. We have an operating agreement now with your com-
mittee. We file these guidelines 2 weeks in advance of their taking
effect. That gives the committee a chance to work them over. We can
work out a better system than that, maybe.
Senator KENNEDY. Having drafted those guidelines and having
begun to comply with them, do you and them unduly restrictive or
troublesome?
Mr. ADAMS. In domestic security?
Senator KENNEDY. Yes.
Mr. ADAMS. From an investigative standpoint, we find that the
guidelines are adequate. We feel that they do provide, the basis for
conducting the hard-core type investigation which we feel is necessary
for the purpose of domestic security.
We have had discussions with the Attorney General in terms that
there are areas that trouble us at some point which we cannot overcome.
'Phis is something like a, constitutional problem or a sensitivity prob-
lem. Yet, it still does present some sort of a problem to us.
For instance, there are organizations which intend to overthrow the
Government by force and violence. We have recognized that intent.
We have commented upon that intent. But yet, their actions have not
moved from the first amendment protected activity of advocating such.
Therefore, we are not in a position under the guidelines, and, we see no
way to bring it under the guidelines to conduct an investigation of that
organization or maintain any information on that organization because
of these restrictions. There are some who say this is unwise because of
the fact if you know when someone intends to overthrow the Govern-
ment, you may not be in a position to even prevent him from even hay-
mug access to employment in sensitive positions in the Government.
Yet, on the other hand, we have to consider the immediacy of that
threat and the magnitude of the harm and the likelihood. In our opin-
ion, we reach a conclusion that it does not meet these tests, and, there-
fore, we do not conduct the investigation. I merely point that out from
the standpoint that in proceeding, as we have, and as far as we have,
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we certainly do not want to give any false assurances that we may be
able to prevent certain types of activity which could be prevented
under broader guidelines. But we have no problems with the guidelines
we feel are adequate as drawn.
Senator KENNEDY. What problems do you see in codifying these
guidelines?
Mr. ADAMS. We do see a problem from an investigative standpoint
in that, as alluded to in Judge Webster's statement, there is the fact
that when something is written into law, the ability to change that
promptly in order to react to the demonstrated need is limited. We
feel that investigative guidelines?which get down to the level of
actually conducting the behavior of our agents on the streets who do
not walk around with manuals in their pockets?that that type of
specific definition should be retained in the form of guidelines which
can constantly be reviewed and subjected to congressional oversight
to be sure that we are accommodating Congress and the executive
branch.
Senator KENNEDY. Part of our dilemma is how can we be sure the
guidelines will not be changed when we have changes of administra-
tions, or officials at the agencies involved? This is part of the dilemma
we face.
Attorney General BELL. On the other side, Senator, let me give you
a, good hypothetical situation: A person goes to an unfriendly foreign
power and takes terrorist training. He takes training in terrorism and
how to conduct terrorism. Let us say he does that in an extreme form.
Let us say he comes back to this country and tends to his business and
is law-abiding. He is just here. He has all the training but has not done
anything. There is nothing we can do about that under our constitution,
Senator KENNEDY. Yes.
Director WEBSTER. I do not think this is going to be as much a prob-
lem as it might appear at first blush. Congress always has the final
say. It has the privilege of preemption. The oversight committee is
going to be aware of these guidelines. If there is dissatisfaction with
them, the Congress always has the power to step in and be more precise
in its charter.
Senator KENNEDY. That is giving us a lot of credit which is not
wholly deserved.
[Laughter.]
Senator KENNEDY. I was a member of this committee when we had
an FBI oversight committee which never met. We had a Director who
never appeared. I think all of us have enormous confidence in you,
Judge Webster, as well as Attorney General Bell. But this is an
obvious concern that we have had. Now is the time to deal with it
in a serious responsible way, as you have. I have seen too many times
where these matters generate much public attention, and then they
are put on the backburner. It then is very difficult to generate interest
in the problems and to deal with the protections involved. That is
why I wondered if you are able to live with the present guidelines
and whether or not the Bureau has had problems carrying out its
responsibility to deal with domestic security and terrorism problems.
Director WEBSTER. There are various investigative techniques that
we currently have. I trust that as our technology increases, we will
have even better techniques that will impact in unforeseen ways on
privacy interests.
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The conditions in our country change from time to time. Trying to
cast up a hypothetical for which I will not be held responsible if I
pick a bad one, the most important investigative tool that we possess
is the use of our informant system. We are very proud of it. These are
not co-opted informants. It is voluntary information. It is the most
effective tool that we have. We could very easily penetrate a small
organization with countless informants. We would not choose to do so
even if we were not restricted by guidelines from doing so.
There might come a. time in a particular area of stress or tension
when the nature of the activity would be such that the guidelines would
become too inflexible in terms of getting needed information in order
to avert a very serious threat to life or property. It would be far easier
to submit to the Attorney General for his consideration a modification
of a guideline that precluded our use of an informant at a particular
level of inquiry, given a radical change of circumstances, than it
would be to come back to Congress for a legislative amendment. I do
think that the charter should provide for ongoing oversight of any of
those guidelines. That would give you your chance to step in if you
felt that we were, in some way, abdicating our responsibility.
Senator KENNEDY. We will have a chance to work with you in
that area. I think it will be a matter of concern that will have to
be addressed. You mentioned investigative techniques. Would it not
be helpful to write into the charter rather clear and specific authority
on limitations to help agents know exactly what they can and cannot
do especially in light of recent instances?
Director WEBSTER. Where we all can agree that the principles are
sound and that they are unlikely to change and that they can be
defined in ways that validate certain types of activity and prohibit
types of activity and where we see no reason why that would change,
then I would be 100 percent in favor of putting it in the charter.
Senator KENNEDY. Would it be useful and helpful in protecting
the men and women of the Bureau'?
Director WEBSTER. Absolutely. I have that in mind.
Senator KENNEDY. Obviously, I think it has been a matter of con-
cern to the 'members within the Bureau, and they are entitled to this
protection.
Director WEBSTER. One of the areas that you may find is this.
There is not complete unanimity of agreement in our own discussions.
There is an area of concern to me and that is the activities of our
undercover agents. This is a fairly recent development in the last
few years. It is a very important development and one necessary
to meet our commitment in organized crime. I can foresee situations
in which a special agent would be called upon to do certain things
within the organization he had penetrated, acting in an undercover
capacity. There may be situations in which we would be required to
do certain things in order to put him in that position.
We have been operating under Attorneys General's opinions as to
the legality of those activities. On an ongoing basis we are conferring
with the Attorney General and his staff with respect to particular
situations, such as the use of credentials, for instance, that might
violate a State law and whether or not that type of activity is illegal
or legal.
Senator KENNEDY. What are the routine types of legal problems
you have encountered?
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Director WEBSTER. In undercover activity?
Senator KENNEDY. Yes; and organized crime. Are you talking
about delivering a bribe or passing narcotics or what?
Director WEBSTER. That is a possibility.
We do not permit either our informants or our undercover agents
to engage in any acts of violence.
But there is a possibility that, in order to assure his credibility with
the organization, he is apt to carry a bag or do something of that
kind.
Attorney General BELL. Let me give you an example of one that
has been printed in the newspaper. We had the two undercover agents
working with the Weathermen. They were asked to give marksman-
ship training. Mr. Adams brought it over to me for authorization in
writing. That chilled my rights, I thought, right then, because I did
not want to do it. These people have been underground, at least one
of them has been underground for, I believe 4 years. So, I finally
authorized him to teach marksmanship to these people, but to do it,
on a misinformation basis. [Laughter.]
They could teach them how to miss. [Laughter.]
They could teach them how to miss everytime. Fortunately, within
1 month after that they were able to apprehend these people just be-
fore they planted a bomb in front of a State senator's house.
Senator KENNEDY. How do you handle activities by the undercover
agents where it would be a clear violation of the law?
Attorney General BELL. That is something we left out of the crimi-
nal code. It is a common law concept for that. The easiest example is
that a police officer does not break the law when he carries a gun.
Mr. ADAMS. As Judge Bell mentioned, in that case that was one
that was so sensitive it was presented to him personally. Also, in
connection with this case, recognizing the various decisions that do
come up in this area, which could not be covered in our manuals?and
we cannot foresee day to day the type of decisions which have to be
made from an investigative standpoint?we had a U.S. attorney spe-
cifically assigned to these undercover agents in order to give them the
daily legal guidance necessary. This was so that their decisions could
be reacted to promptly on the spot with the best understanding of
the law as it exists. We are in constant contact with the -U.S. attorneys
and the departmental attorneys in these matters.
Attorney General BELL. Let me give you two quick examples. One
would be false credentials. That would be against the State law and
might be against the Federal law. Another would be the "sting"
operations where we knowingly purchased stolen goods. That is against
the law. We are doing that in the name of law enforcement. That is
a law enforcement technique. These are under the jurisdiction of the
Office of Legal Counsel.
Senator KENNEDY. Obviously there is a balance needed here. When
do you get to the point of doing anything under cover of law?
Attorney General BELL. That is why you have a Director of the
Bureau and an Attorney General.
Senator KENNEDY. Are we also going to have somthing in the
charter on this, too? We recall problems with other Attorneys General.
Attorney General BELL. We ought to have something in the charter
on allowing this public use concept if we can narrowly restrict it.
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46.
Senator KENNEDY. Yes; but where are the limits? We recall a num-
ber of circumstances which were troublesome in the recent. past. How
do we deal with it and have the kind of flexibility for situations we
cannot foresee? Obviously, the breaking of the law has to be a matter of
enormous concern.
Director WEBSTER.. I hark back to my original concept that if the
charter expressly contemplates this type of needed activity and if
it places on the Attorney General the responsibility for defining and
approving, in advance, the activities to be conducted, and if it then
provides for clear oversight and monitoring by the Congress, then
.
I think we have come about as far as we can come.
Admiral Turner, in discussing the activities of the CIA, talked
about oversight in terms of the public's surrogate. In a sense, our un-
dercover activities can reasonably be dealt with in much the same
way. You would be the surrogate for the people in this regard,
Senator.
Senator KENNEDY. I understand in January, the Department is-
sued guidelines for the use of informants. Will you have similar guide-
lines for mail covers, surveillance, interviews, undercover agents, un-
dercover operations, and access to Federal and State agency records
and third party records and files?
Director WEBSTER. Yes; I should think so. Some of those are already
in place.
Attorney General BELL. Mary Lawton says that our guidelines
provide that we have to follow the postal regulations.
Senator KENNEDY. Do you have Ltuidelines for mail covers?
Attorney General BELL. We follow the postal laws. They have
guidelines.
Director WEBSTER. We also have, I believe, some regulations with
respect to the use of mail covers in foreirrn counterintelligence. Those
require the approval of the Attorney General. Then we, follow the
regulations.
Senator KENNEDY. Will there be recommendations in the charter on
these items?
[No response.]
Senator KENNEDY. Do you expect to make recommendations in the
charter on the codification of mail covers, record access, and the use
of investigative techniques.
Director WEBsTER. Yes, it is, Mr. Chairman.
Senator KENNEDY. Are there certain investigative techniques that
your charter would virtually prohibit?
Director WEnsTER. Mr. Adams suggests to me that the bag job,
as it was known, the illegal breaking and entering, would be an
example. We would be subject to court- authorized surrepetitious
entries in those cases.
Attorney General BELL. I have not talked with Judge Webster or
Mr. Adams about this, but I suspect that we ought to expand title 3
of the wiretap law and put some other things under that. We are
doing that now in foreign intelligence. Maybe we ought to do more
things by court order. However, we have been getting along well
with the present arrangement.
Senator KENNEDY. We want you to take a look at title 3 and conic
back to us, hopefully after we pass this bill.
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Attorney General BELL. I do not say-we want to give up an investi-
gative technique.
Senator KENNEDY. No; but we want to take a look at the trouble-
some areas. You made comments about the different agencies involved
in law enforcement, and we will look forward to working with you
on that. If we had more clearly defined procedures which would out-
line permissible investigative techniques as well as those which are
prohibited, do you think we would be avoiding the situation that we
are confronted with now; that is, the indicting of top echelon people
and the disciplining of agents.
Attorney General BELL. Definitely. That has worried me from the
very first day I became Attorney General. I have often wondered
about this. If our system that we had in place at the time was so
inadequate that the error could. be Committed, I wonder about it.
Negligence could be comnaitted, as distinguished from acting with
criminal intent. I have wondered about that.
Director WEssrEE. The only caveat that I would add to that is that
this not be one of those things that we used to know in the law. That
is, if you mentioned a list, anything you did not mention is excluded
because new technology will be developing as we go along. We see it
every day. So if we validate a particular type of activity, the language
of the charter should not imply that any other form would be illegal.
Attorney General BELL. Neither one of us can pronounce this Latin
statement, but there is a Latin rule on that. (Laughter.]
Senator KENNEDY. Judge Bell, you mentioned in your statement:
Perhaps it Is time that Congress reexamine the question of whether the FBI
should provide crime information in training State law enforcement agencies.
Do you think that activity should continue?
Attorney General BELL. Yes; I think so. That is this thing of
message switching that ties in there. It gets everyone excited. What
has happened, as I understand it, the States have a place in Phoenix,
Ariz., where they gather data. "I do not know if they are objecting to
our doing it in order to save their own place, or what is going on. But
surely there cannot be anything wrong with exchanging information
to investigate and detect crime. The only objection would be the way
we are doing it and the way it is proposed. to be done. I think we need
to get into that; yes.
Senator KENNEDY. Do you think the charter should define the rela-
tionship between the FBI, State, and foreign law enforcement
agencies?
Attorney General BELE. I hope so; yes.
Senator KENNEDY. Precisely?
Attorney General BELL. Yes. We gain much more than we. give in
dealing with the foreign countries, and also with the States. It has
to be a cooperative I thing. I think this is particularly true in a Coun-
try such as ours where we have a dual system of law enforcement. It
is more than dual. We have local, State. and Federal. We are the only
country that has ever been, I guess, devised on that sort of basis.
Sometimes we do not recognize that.
Director WEBSTER. The FBI depends heavily upon the cooperation
of local law enforcement officers for the effectiveness of its own opera-
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48
tions within the Federal jurisdiction. The Congress has seen fit, from
time to time, to encourage us in that effort, particularly in the training
of State law enforcement officers at the National Academy. I believe
that is authorized under the Safe Streets Act. We want to be sure that
those activities are considered, and, I trust, validated in the charter.
The same can be said for some of our cooperative efforts which we
have been doing from almost the beginning of time with foreign na-
tions which have been very important as criminal activity is more
mobile in today's society and more far reaching. I hope those will be
clearly validated in the charter.
Attorney General BELL. Another example is Interpol. We have
authority to be a member of Interpol.
Senator KENNEDY. The charter will spell out the authority for this
exchange of information and also to foreign law enforcement agencies,
and to State and local officials.
Director WEBsTER. Yes. In terms of dissemination of information,
there are actually two areas there that should not be confused. One
is supplying State and local law enforcement officers with information
that should be of use to them, which is on a voluntary basis. The other
falls in this category of information collecting which is called mes-
sage switching. That is actually a capability, a computer capability,
developed in the Bureau to be able to refer one State inquiring about
a particular subject to another State which has information.
None of that information belongs to the Bureau. In fact, it is not
kept in the Bureau. It is simply a computer method of expediting
information from one State to another State. It is considered by the
International Association of Police Chiefs to be a very vital tool. It
has been held up because of misunderstandings and confusion about it.
I hope it will be addressed along the way. But that is a different
subject.
Attorney General BELL. I pose this question: If we cannot transmit
it by computer, could you tell somebody about it? If Judge Webster
knew that somebody in Missouri knew something that would help
somebody in Arkansas, could he tell it? I am sure he could. Nobody
would argue that. It is because we are afraid of computers that we
have this concern. We all are. That, I think, is the root of the trouble
over message switching.
Senator KENNEDY. We will deal with computer exchange of infor-
mation and the privacy issue. Should the FBI conduct all the various
types of criminal investigations which it does now? What are your
thoughts on that?
Attorney General BELL. I do not know any myself that I want to
give up or discontinue. These are experienced Bureau people. They
may have different ideas. I do not want to preclude their views. I gave
you my own. I have great faith in the Bureau myself and in what
they are, doing.
Senator KENNEDY. Are they working in all areas that they should,
or are there some areas that should be dropped or are there some
areas they should be in but are not?
Director WEBSTER. We were just talking among ourselves about the
little things assigned to us like migratory bird authority. The question
: If we did not do it, who would do it? If it is a criminal law that
needs to be enforced, then it has to be enforced by someone. Our view
of it is that we probably are the best equipped.
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Senator KENNEDY. Provide for us that list and let us take a look at
it? I am talking about the more questionable ones.
Please submit that to us.
Director WEBSTER. Certainly.
Senator KENNEDY. Thank you.
Without objection, so ordered.
[The Department supplied the following response to the
subcommittee:]
On April 20, 1978, during the appearance of William H. Webster, Director
of the FBI, before the United States Senate Committee on the Judiciary, Senator
Edward Kennedy discussed the issue of the numerous statutes which set forth
violations that are investigated by the FBI. Senator Kennedy requested a list
of statutes that could perhaps' be dropped from the investigative jurisdiction of
the FBI.
The FBI has jurisdiction over the following rarely investigated crimes:
Interstate Transportation of Prison Made Goods (18 U.S.C. 1761).
Interstate Transportation of Fireworks (I8 U.S.C. 836).
Interstate Transportation of Unsafe Refrigerators (15 U.S.C. 1211).
Switch Blade Knife Act (15 U.S.C. 1241)% ,
Federal Cigarette Labeling and Advertising Act (15 U.S.C. 1331).
Illegal Use of a Railroad Pass (49 U.S.C. 1).
Illegal Manufacture, Possession, or Wearing of a Civil Defense Insignia (50
U.S.C. 2284).
Illegal Manufacture, Sale, or Use of a Military Cremation Urn (18 U.S.C. 710).
Unauthorized Use of the Smokey Bear Symbol, Unlawful Reproduction or
Use of the Character "Woodsy Owl" or Unauthorized Manufacture, Reprodur-
tion or Use of the Character "Johnny Horizon" (18 U.S.C. 711-714).
Illegal Manufacture, Use, Possession, or Sale of Emblems and Insignias, to
Include Badges or Medals of (1) Veterans Organizations (18 U.S.C. 705), (2)
4--H Emblems (18 U.S.C. 707), (3) Merchant Marine and Seaman Decorations
(46 U.S.C. 249), (4) Gold Star Lapel Buttons (36 U.S.C. 180).
Misuse of the name Peace Corps (22 U.S.C. 2518).
Many of the statutes within the investigative jurisdiction of the Attorney
General would as a matter of Deparbment of Justice policy be assigned to the
FBI. The major violations within the investigative jurisdiction of the FBI have
been assigned a classification within the FBI's administrative system. The FBI
does not currently have a list of all the violations which could be assigned to
the FBI, many of which include violations which rarely, if ever, are investigated.
Attorney General BELL. We particularly ought to address those
that overlan another agency, like with the Wildlife Service. T did not
know the FBI was into this. I did not realize we were protecting
doves. [Laughter.]
Mr. ADAMS. We have been approaching it in the reorganization
studies. We first have to determine: What is the mission of the FBI?
Is it the basic law enforcement agency or not?
In trying to prevent proliferating matters under the processes in
the past, anytime Congress passes a law, and no jurisdiction is at-
tached to a specific agency, it rests with the FBI upon delegation
from the Attorney General. So, there .are a number of areas like
this that could be addressed. But the first they would be: What is the
basic role of the FBI?
Senator KENNEDY. Should the FBI be conducting civil rights in-
vestigations, should some other agency, or should the Civil Rights
Division be hiring its investigators to do that work?
Director WEBSTER. The Attorney General might have a different
view. but from ,what I can see, the FBI is doing an excellent job in
this field. It suPplies a neutral investigation in the development of
facts. I think that its record in this area is outstanding.
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The high professional level of the special agents assigned to this
work gives them a better understanding of fairly complicated and
sophisticated laws. My own view of it is that it is properly in the
FBI.
Attorney General BELL. Let me say this, Senator, also. I have had
to face this. When I first got to Washington, there was a good deal of
estrangement between the Bureau and the Civil Rights Division.
That has been alleviated, to some extent. I think Mr. Drew Days
and Mr. Adams have helped it out a lot.
I remember in the South in the civil rights revolution of the sixties
all the good work the Bureau did. Somewhere along the line I remem-
ber the case against Lynn in Hattiesburg, Miss. It went on for 1 week
there. It was in a voting case. I remember I was on the court at the
time. There were 29 agents who testified in that case. Somewhere
toward the end of the civil rights revolution there were hard feel-
ings developed between the Bureau and the Civil Rights Division.
I strongly disfavor giving anybody in the Justice Department any
investigators. That is why the Bureau was created.
Beginning in 1870 when the Department of Justice was created,
they had an appropriation for investigators. They got more and
more investigators. Finally, in 1906 or 1908 they created what they
called the Bureau of Investigation. Later in the thirties it became
the Federal Bureau of Investigation. Now, it seems to me to be a
capital error to go back to the old system and start separate investiga-
tors in some departments.
There are a lot of people in the Justice Department who would
like to do that. I found one U.S. attorney's office, since I have been
here, where they had hired 30-some-odd extra lawyers and were
not using the Bureau. That is the only U.S. attorney's office I found
doing that. But I do not favor it. That is a short answer.
Senator KENNEDY. I see. I want to thank all of you very much.
We are just beginning the wiretap legislation on the floor, so I will
have to excuse myself now.
Can you tell us before I go whether. or not the Department has a
task force working on this, Attorney General Bell?
Attorney General BELL. The Office of Legal Counsel, John Harmon,
and the Assistant Attorney General is in charge of this problem
of getting this draft up. Mary Lawton denies that they are a task
force, but they have a force of some sort working on it.
[Laughter.]
Director WEBSTER. I have just authorized a working committee.
Maybe that is a better name for it.
Senator KENNEDY. I see.
We will look forward to working with them in the same spirit
that we have had on the recodification, and on wiretaps.
Mr. Adams and Mr. McDermott, I think, are coming back on Tues-
day, April 25, for a second day of hearings on the charter. We will
also have the Civil Liberties Union, which will testify as well.
Again, I want to thank you very much. It has been very helpful.
We stand in recess.
[Whereupon, at 11 :05 a.m., the committee was adjourned.]
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FBI STATUTORY CHARTER
TUESDAY, APRIL 25, 1978
U.S. SENATE,
COMMITTEE ON THE JUDICIARY,
TV cr,shing ton, D .0 .
The committee met, pursuant to notice, at 10 :30 a.m., in room 2228,
Dirksen Senate Office Building, Senator Edward M. Kennedy (acting
chairman of the committee) presiding.
Present: Senator Metzenbaum.
Staff present: Robert M. McNamara Jr., counsel, Subcommittee on
Criminal Laws and Procedures; and Ann Logan, staff assistant.
Senator METZENBAUM. Mr. Adams, I believe we will start the hearing
now. I am sure Senator Kennedy will not mind. This will give me an
opportunity to ask you a few of my questions.
STATEMENT OF JAMES B. ADAMS, ASSOCIATE DIRECTOR, FEDERAL
BUREAU OF INVESTIGATION, ACCOMPANIED BY JOHN S.
McDERMOTT, DEPUTY ASSOCIATE DIRECTOR OF ADMINISTRA-
TION, AND JAMES 0. INGRAM, DEPUTY ASSISTANT DIRECTOR,
CRIMINAL INVESTIGATIVE DIVISION
ME. ADAMS. Certainly.
Senator METZENBAUM. Do you, in your Identification Division, col-
lect fingerprints from any and all entities that make them available
to you?
Mr. ADAMS. It does serve as a central repository for fingerprint in-
formation from police departments around the country. They make
their submissions. It is a voluntary act on their part. I do not know
what you may have in mind, Senator, from any and all means.
Senator METZENBAUM. What is your policy about accepting in your
Identification Division fingerprints that are offered to you by non-
Federal entities? If the come in to you from a State or a municipal
police department, do you just crank those right into your fingerprint
bank?
Mr. ADAMS. Yes; providing they meet certain entry criteria.
Senator METZENBAUM. Are you familiar with the proposal being
considered by SEARCII Group, Inc., a consortium of the 50 States
and 3 territories, to limit the national identification of fingerprint
program to submission by Federal and State agencies?
Mr. ADAMS. I would like to refer that question to Mr. McDermott
who heads up the administrative side of our house which includes the
Identification Division.
(51)
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52
Mr. McDERmorr. Senator, I have not had a chance to study the
SEARCH Group, Inc. proposal in detail, But beyond the submissions
from local police departments, we receive the fingerprint submissions
from the military. We receive fingerprint submissions from the
licensing- authorities in State and local governments. We have the
financial institutions who want to have a check of our fingerprint
records made concerning prospective employees which, of course, is
authorized by a specific statute. Beyond that, I do not know where
your question is.
Senator METZENBAUM. Do you think that we ought to include in the
national bank any set of fingerprints that are forwarded to you? Let
us assume that somebody runs a garage or a filling station or a retail
store. They start to take fingerprints of their employees. They send
those. in to you. Do you think all those should be made a part of your
bank?
Mr. McDfauvrorr. No, Senator, and they are not. If I may explain,
let. me say this.
The submission of a fingerprint card carries with it the implied
request that the fingerprints be classified and searched against the
criminal portion of our fingerprint card holdings which consist of
approximately 76 million cards of our total 168 million cards.
We have an obligation, by law, to respond only to those agencies,
Federal, State and local which are authorized to receive information
from us. The private sector, unless specifically is made the subject
of legislation, such as financial institutions?
Senator METZENBAUM. Do you mean national banks as provided
for by law?
Mr. MCDERMOTT. Yes. We would not respond to most private sector
requests because we are not authorized to disseminate information to
them.
Senator METZENBAUM. When you say that you have 168 million
cards on file, does that mean covering 168 million individuals?
Mr. MCDERMOTT. No, Senator. As of February 1, 1978, we had about
1.68.5 million cards. They are considered to represent approximately
64 million people. They are broken down into various types, criminal
and civil, and military prints, and so forth.
Senator METZENBAUM. Would you distinguish for me how You have
64 million people and 168 million cards? Ido not understand that.
Mr. MCDERMOTT. There are occasions where we will maintain more
than one card on a given individual.
Senator METZENBAUM. Why would you do that?
Mr. MCDERMOTT. Well, again, I am not a fingerprint expert, and I
hope you understand. I can arrange for a briefing in greater detail
if you wish it. But, as I understand it, we retain all fingerprint cards
submitted to us relating to arrests for serious or significant criminal
offenses. On the other hand, fingerprints taken in connection with
State statutes requiring fingerprint checks for employment and licens-
ing are returned to the submitting agencies after being searched
against the criminal portion of our files. In other words, we do not
attempt to maintain individual fingerprint cards, in every instance
where a set of prints is sent to us.
Senator METZENBAUM. You do not maintain that?
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Mr. MCDERMOTT. No.
Senator METZENBAUM. What are those 104 million cards that rep-
resent the difference between the 61 million people and the 168 million
cards? I am a little confused. That is quite a few million cards.
Mr. Mc:DER-mow. What I am saying is that in some cases we main-
tain more than one card on a given individual. This is most commonly
the case with reference to our criminal fingerprint card holdings. Of
Our total holdings of almost 168.5 million cards, about 76 million have
been received concerning individuals charged with crimes. Those 76
million, approximately, are considered to represent 22 million people.
Senator METZENBAUM. Of the 76 million, that relates to the 22
million people?
Mr. MeDEumorr. Yes. So, you see the great majority of our finger-
print file holdings do not relate to individuals who are charged or
have been charged with crimes;
Senator METZENBAMI. Say that again?
Mr. McDrinuorr. The great majority of our fingerprint card hold-
ings do not refer to individuals who have been charged with crimes.
Said in a different context, almost 92 million of our cards refer to
something like 42 million persons whose fingerprints were submitted
to us for a noncriminal purpose.
Senator METZENBAUM. For example?
Mr. MCDERMOIT. Military. The millions of people who have served
in the military have their fingerprint cards maintained in our civil
fingerprint file. Also, individuals whose fingerprintsare submitted in
connection with applications for Federal employment would be main-
tained in that file.
Senator METZENBAUM. Can we draw the conclusion that you have
two out of every three adult Americans on a fingerprint card? Would
that be. an accurate conclusion? I am assuming that there are 215
million people in America, and something like half of that are chil-
dren. I do not know the -actual statistics. But would that be true?
Mr. McDnumorT. I would have to say the figures would be signifi-
cantly lower than that, Senator, in that our total of approximately 64
million cards of all descriptions----
Senator METZENBAUM. No. You mean 64 million people.
Mr. McDEumovr. I am sorry. Yes; 64 million people. That would
only constitute roughly, 27 or 28 percent of the entire population.
Senator METZENBAUM. No. There are 215 million people, so that
would amount to about 30 percent of the total population. But if you
eliminate all the children in the population, whose fingerprints I
would assume you do not have, then, it would seem to me, that the
percentage would get up somewhere to 65 percent or something like
that.
Mr. McDERmorr. The figures are not as impressive as that for the
reason that these prints have been collected since back in the twenties.
Many of the individuals whose fingerprints are still included in there
are since deceased.
We do have purging procedures. As we come across criminal prints
of individuals who are 80 years old or older, they are automatically
eliminated. The same is true of the civil prints of individuals 75 years
old or older.
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Again, you would wonder why we would keep prints that long.
No. 1, there is the expense of purging where you have to hire hundreds
of people just for the purpose of purging files. Second, there are
benefits to be derived from the maintenance of these, such as in the
case of missing persons and in the case of our sending our disaster
squad out in the major disasters. There it is possible to 'compare finger-
prints taken from the remains with cards on file. This has served
a very fine purpose in the past.
Senator METZENBAUM. Mr. Chairman, I took the liberty of starting
to ask questions before you arrived. If you do not mind, I will con-
tinue with a few.
Senator KENNEDY [entering]. Fine.
Senator METZENBAUM. Would you be good enough to advise the
committee as to the percentage of adult Americans that you feel
you presently have and for which you believe you presently have
fingerprints?
Mr. MoDEamorr. Senator, I would be delighted to have that
studied. I am not optimistic that we could come up with a 'meaningful
figure, but by all means I will have it studied.
Senator METZENBAUM. Thank you.
Senator KENNEDY. Without objection, so ordered.
[The following response was received by the subcommittee from
the FSI:]
The FBI has started an indepth study to determine the percentage of adult
Americans who are currently represented in the FBI's fingerprint files. At the
conclusion of this study, this material will be furnished to the Senate Judiciary
Committee.
[ See appendix for additional response to the request ,for informa-
tion referred to above:]
'Senator METZENBAUM. You recently procured a computerized fin-
gerprint file from Rockwell International; is that correct?
Mr. McDERmorr. We are under contract with 'Rockwell Interna-
tional for research and development of an automated index of names
for our Identification Division and also a piece of technology that
we call by the acronym FINDER, meaning FINgerprint reaDER.
That equipment will have the capability of digitally reading and
classifying a set of fingerprints and comparing one set of fingerprints
with 'another automatically.
We have great expectations for this technology. We feel, in the
long run, that it will he able to eliminate as many as 1,000 persons
or more from our permanent staff in the Identification Division,
which is now handling the fingerprint comparisons in a manual mode.
Senator METZENBAUM. Do you expect to store in the computer all
the prints you 'presently hold, or only an unduplicated set?
Mr. McDERmoTr. This becomes very complicated. We do not antici-
pate receiving as many duplicate fingerprint cards in the future. I
am sure you are aware, Senator, of the present study on the com-
puterized criminal history system. which proposes that computerized
criminal histories be decentralized to the several States rather than
having them maintained in oUr headquarters.
This is the matter of a task force study right now by members of
the FBI, the Department of Justice, and representatives of congres-
sional committees.
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Senator METZENBAUM. What is the b f
basis o your keeping prints of
persons who have never been charged or convicted of any crime in
your file on a permanent basis?
Why should the FBI have a record of law-abiding citizens and keep
their fingerprints?
Mr. MCDERMOTT. There are thousands of citizens who have requested
that their fingerprints be maintained by us so that in the event of
missing persons and amnesia, or a catastrophic accident in an aircraft
or a train wreck
Senator METZENBAUM. You said thousands. You now have some
40-some odd million prints of people who have never been charged
or convicted of any crime. Out of those 40-some odd million, would
you think that the percentage who have requested you to keep their
prints would be in excess of one one-hundredths of 1 percent?
Mr. McDERmorr. I would not guess, but I would guess it is minis-
cule ; yes.
Senator METZENBAUM. So, therefore, my question is this. What is
the basis and purpose of the FBI keeping prints on law-abiding
citizens?
Mr. MCDERMOTT. The great majority of them, I would speculate,
are based upon receipts from the military taken as people enter on
duty with the military. This has gone on over the years, recognizing
that part of our early fingerprint holdings was the transfer of military
prints to us.
Of course, since then, over the years, submissions by all of the Fed-
eral executive branch agencies have been maintained.
Senator METZENBAUM. Since we do not live in a police state, would
you think it would be appropriate that in the Federal charter or in
the FBI charter, that we specifically provide that it is the intent of
Congress for the continued use of files of persons who are no longer
military and no longer Federal employees and who are law-abiding
citizens? Should that be totally eliminated and purged from your
files?
Or, would there be some contrary reason why there should be con-
tinued retention from the law-enforcement standpoint?
Mr. McDERmoTr. I think the subject of your inquiry is too im-
portant to reach for a spontaneous handy answer. I would be very
pleased to see a study made which would balance the advantages of
retention against the disadvantages.
Senator METZENBAUM. I would be happy to have you do a study, but
I hope we might get your response by the time we begin drafting an
FBI charter. I feel, Mr. Chairman, that it would be most appropri-
ate for the Congress to indicate to the FBI that there is no reason for
them to retain fingerprints of persons who have never been charged
with a crime and have never been found guilty of a crime and who are
not in the Federal service, even though they may have been in the
military service or something of that kind.
I see no reason for the law enforcement arm of the FBI to continue
to maintain such files. I would hope that when we move toward a
Federal charter that we might look more closely at the subject and
perhaps address ourselves to it.
Mr. MCDERMOTT. If I may add, Senator, it should not be overlooked
that this does constitute a data bank. I realize that word carries a
i
certain degree of reprehensibility these days, but t does constitute
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56
a data bank of fingerprint records against which comparisons can be
made for a proper law enforcement purpose looking to the solution
of crimes.
Senator METZENBAUM. Would you then think?if that is the case,
would you then think we should go the other way? Would. the FBI
advocate a position to see that every American is fingerprinted?
Mr. McDEumorr. No, sir; I would not.
Senator METZENBAUM. Thank you very much.
Thank you, Mr. Chairman.
Senator KENNEDY. I welcome the Senator raising these questions.
I think it is worth giving consideration to the proposal. It is well
worth thinking about. I suppose one of the factors used in terms of
fingerprints is freeing people from possible suspiCions of crime. I
suppose there is a variety of different kinds of factors. I think the
Senator raises a very worthwhile issue and question. I think we ought
to invite a response from the Department without the long study, but
just a thoughtful response.
Senator, I suppose it might be worthwhile to put it in some kind
of a letter.
Senator METZENBAUM. That would be excellent.
Senator KENNEDY. We could make that a part of the record, I
suppose.
Mr. MoDEumoTr. We would be happy to submit that for the record.
Senator KENNEDY. Without objection, so ordered.
[The following response was received by the subcommittee from
the FBI.1
The FBI has started an indepth study to determine the percentage of adult
Americans who are currently represented in the FBI's fingerprint files. At the
conclusion of this study, this material will be furnished to the Senate Judiciary
Committee.
Senator METZENBAUM. Thank you, Mr. Chairman.
Senator KENNEDY. Before we proceed, and since I was late, I would
like to read my opening statement now.
OPENING STATEMENT OF SENATOR KENNEDY
Senator KENNEDY. Today the Committee on the Judiciary is holding
the second of a number of hearings on a statutory charter for the Fed-
eral Bureau of Investigation.
The focus of these hearings is to determine the appropriate scope
and the required detail which the charter should have if it is to be an
adequate definition of the Bureau's legislative mandate. Last Thurs-
day, Attorney General Bell and Director Webster not only strongly
supported the concept of a statutory charter, but also committed
themselves and their resources to this effort. Their commitment is an
important first step in beginning this difficult endeavor.
Today we welcome back Mr. James B. Adams, the Associate Direc-
tor of the Federal Bureau of Investigation.
Good morning, Mr. Adams.
I would like to move to the area, first of all, of domestic security.
These are some of the areas that we talked about last week. I want
to get some greater detail. We were discussing domestic security and
civil disorder. investigations. I think there was some confusion about
which guidelines we were talking about and the method in which
these matters were investigated. I would like to see if we can clarify
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that, if we could. Could you review with us, Mr. Adams, the difference
between the domestic security and civil disorder investigations?
Mr. ADAMS. The domestic security guidelines basically provide the
means by which we conduct investigations of individuals or organiza-
tions who are involved, or will be involved, in violations of Federal
law and force and violence for certain stated purposes. These are the
basic guidelines that apply to the investigation of such activities that
we now have underway in the 12 organizations under investigation
which are engaging in criminal activities, principally bombing ac-
tivities. The guidelines on civil disorders and demonstrations are pri-
marily for the purpose of providing that there is no interference with
the basic first amendment protected activities which are often at-
tendant to demonstrations, public demonstrations, and sometimes civil
disorders, likewise.
It is to clearly define the limits of the Federal Government's inter-
est which falls in areas whereby we can conduct and report, that is,
conduct investigations and report on violations of Federal law that
take place.
We can, under certain limited circumstances, conduct inquiries at the
request of the Secret Service in connection with their responsibilities
to protect the President. We can conduct inquiries for the purpose of
determining the need for Federal troops under the President's powers,
or upon the request of the State. These are the principal purposes
under which these guidelines apply. As I mentioned at the last hearing,
we have only had one occasion under the civil disorder and demonstra-
tion guidelines where the Attorney General has exercised his authority,
which is specifically required to permit us to conduct such investigation.
That was in connection with the Bicentennial celebration where the
State of Pennsylvania had raised questions concerning the potential
for violence, and, in fact, had requested that Federal troops be pro-
vided in view of their estimates of impending violence. We concluded.
based on information available to us, that the likelihood of such, and
the need for such, was not demonstrated and, of course, the Government
did not provide Federal troops.
On the other hand, the conditions were such that the Attorney Gen-
eral felt that an inquiry should be conducted to answer this question.
Under these guidelines, we are still required to report incidents
which come to our attention on potential civil disorders which may
involve violence. We do not go out and actively investigate to collect
that information. However, if the police department in a city reports
to us information that there is going to be a demonstration or a poten-
tial civil disorder resulting from the demonstration, then we do upon
having that information Furnished to us, report it to the Department
of Justice without taking any investigative action.
Those are basically the guidelines under which we operate. It is very
limited as to what we can collect. The nature of the information that
we collect is limited, and, in no way, are they as broad as the domestic
security guidelines for conducting investigations.
Senator KENNEDY. How are each of these kinds of investigations
initiated?
Mr. ADAMS. Generally the field office in a domestic security case has
the authority to open a preliminary inquiry, based upon the receipt of
allegations to the effect that individuals or organizations may be en-
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gaging in these activities which involve the violation of Federal law
and force and violence. Those preliminary inquiries that are opened
are very limited as to the scope of the investigation conducted. It is
primarily checks of records, our records and local police records, and
activities which do not intrude very far into what you would call, or
what we would normally refer to as "basic investigative activity."
The purpose of this inquiry is to determine whether there is a
basis for a full investigation. Sometimes the questions cannot be an-
swered with these preliminary inquiries. Under those circumstances,
the field office, on the authority of the SAC or special-agent-in-
charge, broadens it to include a couple of additional avenues of
investigation. Again, this is solely for the purpose of determining
whether there is a basis for a full and continuing type of investiga-
tion. In the limited investigation, or in the preliminary inquiry?
where the surveillance can be conducted for the purpose of identity
alone?a physical surveillance can be conducted for no other purpose
than just determining the identity of the individual.
In the preliminary inquiry, the only interviews that could be con-
ducted were very limited. Basically, we could check with the existing
sources and information, use of established informants, that is, previ-
ously established informants, and interviews for the limited purpose
of identifying the subject. In the limited investigation, we can extend
that to interviews going beyond identifying the subject which would
be to determine what his activities are. The limited and preliminary,
of course, preclude the use of mail covers, electronic surveillance,
and so forth, as part of that type of investigation. A preliminary
investigation can only be continued for 90 days, and can be extended
one time for an additional 90 days.
FBI headquarters must be advised, but does not have to approve
the opening of the preliminary investigation. In moving to a full
investigation, on the other hand, the full investigation can only be
authorized by FBI headquarters, and it ?has to be on the basis of
specific and articulable facts giving reason to believe that the individ-
ual or group is or will be engaged in activities involving the use
of force or violence in violations of Federal law for one or more
of the stated purposes.
At that time, we have to move into considerations of the magnitude
of the harm, the likelihood that it will occur, the immediacy of the
threat, and the danger to privacy. Also, at the time that we initiate
or authorize the full investigation, we must notify the Department
of Justice within a week, and then at the end of 90 days submit
to them a summary report. This investigation cannot continue beyond
a year without approval of the Department. So' these basically are
the levels of approval by which preliminary or limited inquiries or
full investigations may be conducted.
Senator KENNEDY. How many of the full investigations are going
on at the present time?
Mr. ADAMS. When we were here last week I think the figure then
was 12 organizations and 61 individuals. Some of those may have
been preliminary. I would have to check the record because that
would include preliminary, limited, and full investigations.
Senator KENNEDY. Do you mean the 12 and the 61 include the pre-
liminary as well as the full?
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Mr. ADAMS. That is right.
Senator KENNEDY. Can you give us a breakdown?
Mr. ADAMS. We will submit that for the record.
Senator KENNEDY. That will be helpful.
Without objection, so ordered.
[The following response was supplied to the subcommittee by the
FBI:]
There are 41 full domestic security investigations, one limited and one pre-
liminary investigation for a total of 43 domestic security investigations concern-
ing individuals.
Senator KENNEDY. If we are talking about the 12 investigations
being a combination of full and preliminary, why should not that
decision be made in terms of the preliminary at a higher level?
Mr. ADAMS. Well, we feel that the guidelines are such that a special
agent in charge should have the authority to act on an allegation. The
nature of the activity which can take place in the preliminary is so
limited with the check of his office and the check of local and State
police records. These are activities which do not intrude out into full
investigative activity.
So, we have not seen fit, and the Attorney General has not sug-
gested that the level of authority should be any higher than the special
agent in charge on that.
Senator KENNEDY. I suppose in one s6nse that it is limited as you
describe it, but in another sense it does include surveillance. In that
sense of surveillance, it reaches the legitimate and lawful first amend-
ment activity as well.
Mr. ADAMS. It should not. The surveillance should not. For instance,
if an informant reported to us that an unnamed individual was
attending a clandestine meeting of a group which is under full investi-
gation, and, because of their activities and committing violence, if
he advises us there is an unnamed individual there, then the field
office could perhaps place him under surveillance. lie would lead them
from the meeting to his residence in order to determine his identity.
This would be under the preliminary investigation guidelines. This,
in my opinion, is not a very intrusive technique, and in relating it
to the basic purpose involved, I think it is not being considered other
than what is normal investigative activity.
Senator KENNEDY. ITow about the surveillance of open meetings?
Would that be included in the preliminary investigation?
Mr. ADAMS. If we received an allegation :that an organization met
the criteria, without repeating it. But if it was just a general allega-
tion with little degree of specificity from a source we would not just
go out without some other reason to believe that.
But, if we received the allegation, we are permitted under the guide-
lines at the present time to utilize an established source or informant,
an already existing informant, to attend public meetings, or meetings
open to the public, of that particular organization to report back to
us whether there is a basis for this allegation. The informant may
also attend a closed meeting during the preliminary or limited in-
vestigation only upon invitation of someone in the organization where-
by dwould be inadvisable for him not to attend, that is the occasion
in which he does that. So, we do have the potential, under the guide-
lines, for covering a public session, and under a very limited circum-
stance, a closed session.
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Senator KENNEDY. That is really what I was driving at. You do
have, under the preliminary investigation guidelines for doing the pre-
liminary work, the opportunity, as you defined it, in the closed ses-
sion to place under surveillance what may well be legitimate first
amendment activities.
It would seem to me that in the preliminary sense that very well
may be more of a chilling factor than further on down the road. I
do not know. We are just feeling our way through this question. But
these were the areas of concern of the things used in the past. Maybe
you could review with us briefly the investigative, that is, the thresh-
old investigative standards in each category.
Mr. ADAMS. In the preliminary investigation, it may be undertaken
on the basis of allegations or other information that an individual or
group may be engaged in the activities which we previously discussed.
In the full investigation, it must be on the basis of specific and
articulable facts, giving reason to believe that an individual or organi-
zation falls within those stated activities.
Senator KENNEDY. Could the preliminary investigation take place
with information from an unreliable informant?
Mr. ADAMS. We have informants that have furnished reliable and
unreliable information.
Senator KENNEDY. What if you have a person like that?
Mr. ADAMS. If we receive information from such a person, before
we would open an investigation' we would certainly have to consider
the nature of the information, the degree of access he would likely
have had to that information as to whether it is reliable or unreliable,
and we would have to consider all other facts involved.
I think from the limited number of such investigations that we
engage in, it shows the &are and attention presently being given these
matters that we do not, either in our field offices or our headquarters,
encourage just running off willy-nilly, trying to stretch a guideline
to the point to where we would be conducting unnecessary or un-
warranted investigations.
We have a very small number. We also have considerable demands
on our resources in all other areas of our operations. I think that
considering the concerns which have been expressed and which are
recognized in the guidelines for possible intrusions into protected
activities that there is a very careful and determined effort to ensure
that investigative activity is not initiated in this sensitive area unless
it is fully warranted.
Senator KENNEDY. When does a domestic security investigation
spill over and become a counterintelligence investigation?
I can see a situation where one might start off with civil disorder
and move toward domestic security, and then to counterintelligence
with a whole range of different thresholds that have to be met and
a range of different techniques being available to the Bureau.
Mr. ADAMS. It does not happen very often. I know that since we
initiated the guidelines, in the domestic security and foreign counter-
intelligence investigations, for example, we have only had one group
of investigations that have moved, per se, from the domestic to
the foreign field.
It is true that we have occasionally had individuals who ere engaged
in domestic activity, who, at some later point, become identified as
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being involved in espionage or related activity which would move
them to the foreign counterintelligence area.
I inquired the other day. Since the initiation of these guidelines in
April 1976, the investigative activity on only one organization or
group?and its attendant members?has been moved from the domes-
tic to the foreign counterintelligence area. No one could recall any
other specific individual cases that had been so moved.
Senator KENNEDY. You said just one; is that correct?
Mr. ADAMS. Right. It is one organization with attendant members
and front groups.
Senator KENNEDY. What about from the other way, that is, the
counterintelligence to the domestic security?
Mr. ADAMS. There have been none that I know of that have moved
in that direction. I know of none that have been moved in the opposite
direction.
Senator KENNEDY. We would like to see the organizations in ex-
ecutive session, that is, the organizations included in this list.
Let me move to this. Let us say that we have a speaker advocating
political reform. Let us say that if that political reform does not occur,
that people should take the matter into their own hands, or to forcibly
change the Government.
Does that meet your threshold?
Mr. ADAMS. No, it does not. In fact, as I referred in one of our prior
sessions, we do have this organization where the Attorney General has
determined not advocacy, but intent to overturn the Government by
force or violence. It consisted of about 71 members at the time, but all
of their activities have been restricted to recruiting adherents to their
cause, publishing their aims and statements, and recruiting in the fac-
tories. But no element of violence has taken place yet. We apply the
magnitude of harm test. Sure, the magnitude is great if they could
carry out their threat, but the likelihood is not great and the im-
mediacy is not great.
All of these qualifying matters have to be applied. It was concluded
that we had no authority to continue the investigation under the
domestic security guidelines. This poses certain problems to us which
we are still trying to address with the Department, which is the fact
that by not being able to investigate the organization, we cannot target
informants against it. We would then not know if they move from 71
individuals to 70,000 individuals unless at some point in time someone
does become aware of it and reports it to us. We are concerned over
our ability to accommodate this, which is unquestionably the proper
decision concerning first amendment rights, with our responsibilities
under Executive Order 10450. If members of this organization apply
for sensative positions in Government, then we would not be able to
maintain that information on them and report that information. This
is indicative, I think, of the care which is presently being given this
with which the procedures are being
problem and the seriousness
followed.'
threatens violence? How o you
licy decisions .and
you tell if there is a group that d u
government?
Senator 4-KnEN:0EDY.. How. do
a b foreign
directe y a . be,
they
determine wh ether .
are being
formants, through in
dividnals who can
With
Mr. ADAMS. Through a
word of their?
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62
Senator KENNEDY. When do they come into play ? If a group does
suggest this, then do you activate your informant system?
Mr. ADAMS. No. If it does not meet that basic criteria--
Senator KENNEDY. How do you know whether it meets the basic
criteria unless you do some kind of investigation?
Mr. ADAMS. No. 1, we have to rely pretty much, at the present time,
upon committed acts to indicate violence. We have certain organiza-
tions that publicly take credit for their bombing acts, like the New
World Liberation Front, which issues a communique every time they
blow up a Pacific Gas & Electric Co. facility.
Our investigations, as you can tell, from the number, are 12, and in
executive session we will be very glad to demonstrate to you why these
organizations came to our attention and why we reach that threshold
and how we reach the threshold for a full investigation.
Senator KENNEDY. We would be interested, as well, in the ones where
you did not move ahead in terms of an investigation. You must have
a next group. You made a decision to do the top 12. What about the
12 cases below these. I do not know whether you rank them or not.
Mr. ADAMS. Do you mean organizations that -we did have under
investigation and then concluded them after a period of time?
Senator KENNEDY. Yes.
Mr. AnAms. Yes, we have had those.
Senator KENNEDY. Maybe in executive session we could address
those as well. I would be. interested in the basis for not moving ahead
and what information you did have which urges you to move ahead.
We would like to get some sense about how these, criteria are being
implemented and the judgment that is being placed on various words
in meeting that criteria.
Mr. ADAMS. That can be very easily demonstrated because of the
violence in the organizations and the determination of it and the
period of time by which we subsequently terminate the investigation.
Senator KENNEDY. What types of preventive action does the FBI
take in the domestic security cases? We got into this area briefly the
other day. Since the guidelines went into effect, has the FBI taken
any preventive actions in domestic security cases or investigations?
Mr. ADAMS. Preventive, action is a term that has to be pretty clearly
defined. One of the best examples was in California recently where
during our investigation of the Weather Underground we were able
to penetrate the. organization. By having live individuals within the
organization, we became aware of a plot to engage in an assassination
and a plot to engage in bombings.
We were able to prevent the, action taking place because it reached
the conspiratorial stage. It reached the conspiracy act, and actually
reached the attempted bombing. The bomb was constructed. It was to
be set off under the office of a State senator in California.
We had another case involving a group whereby, based on inform-
ant information within the organization, an antibusing situation, the
guidelines were met because they were engaging in violence and deny-
ing people their civil rights. We became aware of a cache of grenades,
thom explosives and weapons. We were able to prevent, their use by - soei:za:ngs
of a domestic
thro,,h a search warrant. Again arisino? out
we have had an 'organizgatifoonreiino:nNde.wi York
security investigation,
under investigation that was engaged in harassin
and engaging in bombing activities.
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Through penetration of the organization, we became aware of plans
and were able to prevent those plans from taking place. In most
instances, we try to pursue the matter until we can develop a prosecut-
able violation. This becomes a very delicate question at times as to
whether we have sufficient control over this situation so that we can
develop the case to a prosecutable standpoint. By taking .these in-
dividuals off the street, we insure that they will not commit the act
on a subsequent date as long as they are incarcerated.
In some instances, if you are unable to develop a prosecutable case,
then it is necessary to just go out and interview the known partici-
pants in order to let them know that you are aware of their anticipated
plans and hope that you discourage the activity in that regard.
Those are instances that come to mind.
Senator KENNEDY. Those are interesting examples. I suppose I
would be interested in how many tithes, let us say, for the period of
the last 18 months or the last 2 years, that this has taken place. Let
us say that you were able to take preventive action. Specifically we
would like to know about the actions that were taken. We would like
to know about your own interpretation as to how the anticipated
action was avoided. Is 2 years a reasonable period of time for you to
check out?
Mr. ADAMS. That would be a reasonable time frame. I would like
to cover that, if we may, at the same executive session because one
particular item I have in mind is a current on-going situation which
could be more appropriately discussed then. .
Senator KENNEDY. Fine.
- Mr. ADAMS. But I would like to assure. you, Senator Kennedy, that
when we are talking about preventive action, we are talking about it
in this narrow area. We are not talking about the neutralization, dis-
ruption, and that sort of activity which took place during the
COINTELPRO actions of years past.
Senator KENNEDY. Let me ask you this.
You will supply that information for us?
Mr. ADAMS. Yes.
Senator KENNEDY. It is important because the balance here is the
type of threat to the rights of individuals covered by the first amend-
ment covered in these domestic security questions.
You indicated in your testimony, as did Director Webster, that you
. take preventive actions in terms of protecting the lives of individuals
as well as their security. I think it is important for us to try to
evaluate what these factors are. I think that will be an important
consideration for the committee. So, we would like to get that informa-
tion from you and review it with you. We will do that in executive
session.
Mr. ADAMS. I would be glad to.
Senator KENNEDY. Let me ask you this: On the issue of neutralizing
the activities of domestic security groups, are any efforts made now
to neutralize activities of domestic security groups?
Mr. ADAMS. No; not in the sense that it was used under the
COINTELPRO actions.
Senator KENNEDY. How about outside that sense?
Mr. ADAMS. We would like to neutralize the activities of several
violence-prone groups by successful prosecution of all the criminal
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acts that have been committed. That; is the only sense that I can say
that we are interested in neutralizing the activities.
Senator KENNEDY. It has been suggested that paid informants or
undercover agents can be used as a part of infiltrating the domestic
security. Someone has suggested that a warrant, similar to a title III
warrant, be required. Do you have any thoughts on this?
Mr. ADAMS. Well, I think that a warrant requirement for use of in-
formants is impractical. I feel that there is no adequate way that you
can devise a warrant procedure which would not almost negate the
effectiveness of any informant program.
Senator KENNEDY. Why is that?
Mr. ADAMS There are problems of notice when you get into war-
rants. There are problems of publication. There is the protection of
the confidential relationship. There is the degree of specificity which
would be required for probable cause, or some degree of cause. In-
formants are often used as extensions of an investigative prerogative.
We do not have probable cause at the time that we investigate a prob-
lem. We have often only an investigator's years of experience and
hunches that criminal activity is afoot. Recognizing certain signs' or
recognizing certain behavorial patterns, cause an investigation in the
criminal field to be initiated.
The attaching of a warrant requirement ignores the fact that an in-
formant in a criminal case is already engaged in criminal activity in
many different areas. We are contacting him on a regular basis to
furnish us information that might come to his attention on a matter
within our investigative jurisdiction.
We do not know beforehand what we can target him toward. He is
out there seeking to ferret out Federal violations and trying to bring
them to our attention due to his exposure.
I recognize that during the charter discussions that this issue is such
a sensitive issue that it must be addressed. We fully intend to address
it. But my initial impression, as we have discussed it over the past 3
years, because of various inquiries that have been made, we have found
the problems almost insurmountable to still provide for effective use of
human informants.
Senator KENNEDY. Would you draw any distinction between the use
of them, let us say, in organized crime, in terms of white collar crime,
as distinguished from the areas that involve the greater degree of First
Amendment activities, in terms of the domestic security and civil
disorder? Do you see any distinction?
Mr. ADAMS. I think some of the problems are still there. I guess
what I keep coming back to is this. I have difficulty with the small
number of informants we presently have in domestic security. It is
less than 100 in a Nation of 200 million people.
I think our attention has been obtained most dramatically in the
past few years in widespread investigations to possible abuses in the
area of the use of informants and so forth. We have tight guidelines.
Even under the domestic intelligence provisions for utilizing inform-
ants we have tight guidelines. Under the criminal use of informants,
we also have tight guidelines.
I feel that with the guidelines that we now have that the sensitivities
are being recognized and the individual rights are being recognized.
We hate to say that we have reduced abuses to an irreducible mini-
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mum, but I think the sheer numbers alone is a good indication of our
efforts in that regard.
Senator KENNEDY. Perhaps you could submit something on the prac-
tical problems which you have touched on here.
Mr. ADAMS. Yes, We Will.
Senator KENNEDY. Thank you.
Without objection, so ordered.
[The following response was received by the subcommittee from the
FBI:]
OFFICE OF THE ATTORNEY GENERAL,
Washington, D.C., December 15, 1976.
To: Clarence M. Kelley, Director, Federal Bureau of Investigation.
From: Edward H. Levi, Attorney General.
Subject: Use of informants in domestic security, organized crime, and other
criminal investigations.
Courts have recognized that the Government's use of informants is lawful and
may often be essential to the effectiveness of properly authorized law enforce-
ment investigations. However, the technique of using informants to assist in the
investigation of criminal activity, since it may involve an element of deception
and intrusion into the privacy of individuals or may require Government co-
operation with persons whose reliability and motivation may be open to question,
should be carefully limited. Thus, while it is proper for the FBI to use informants
in appropriate investigations, it is imperative that special care be taken not only
to minimize their use but also to ensure that individual rights are not infringed
and that the government itself does not become a violator of the law. Informants
as such are not employees of the FBI, but the relationship of an informant to the
FBI imposes a special responsibility upon the FBI when the informant engages
in activity where he has received, or reasonably thinks he has received, encour-
agement or direction for that activity from the FBI.
To fulfill this responsibility, it is useful to formulate in a single document the
limitations on the activities of informants and the duties of the FBI with respect
to informants, even though many of these limitations and duties are set forth
in individual instructions or recognized in existing practice.
As a fundamental principle, it must be recognized that an informant is merely
one technique used in the course of authorized investigations. The FBI may
not use informants where it is not authorized to conduct an investigation
nor may informants be used for acts or encouraged to commit acts which
the FBI could not authorize for its undercover Agents. When an FBI informant
provides information concerning planned criminal activity which is not within
the investigative jurisdiction of the FBI, the FBI shall advise the law en-
forcement agency having investigative jurisdiction. If the circumstances are
such that it is 'inadvisable to have the informant report directly .to the agency
having investigative jurisdiction, the FBI, in cooperation with that agency,
may continue to operate the informant.
A. USE OF INFORMANTS
In considering the use of informants in an authorized investigation, the
FBI should weigh the following factors:
I. The risk that use of an informant in a particular investigation or the
conduct of a particular informant may, contrary to instructions, violate indi-
vidual rights, intrude upon privileged communications, unlawfully inhibit the
free association of individuals or the expression of ideas, or compromise in
any way the investigation or subsequent prosecution.
2. The nature and seriousness of the matter under investigation, and the
likelihood that information which an informant could provide is not readily
available through other sources or by more direct means.
3. The character and motivation of the informant himself; his past or
potential involvement in the matter under investigation or in related criminal
activity; his proven reliability and truthfulness or the availability of means
to verify information which he provides.
4. The measure of the ability of the FBI to control the informant's activities
insofar as he is acting ?on behalf of the Bureau and insure that his conduct
will be consistent with applicable law and instructions.
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5. The potential value of the information he may be able to furnish in
relation to the consideration he may be seeking from the Government for his
cooperation.
B. INSTRUCTIONS TO INFORMANTS
The FBI shall instruct all informants it uses in domestic security, organized
crime, and other criminal investigations that in carrying out their assignments
they shall not:
1. Participate in acts of violence; or
2. Use unlawful techniques (e.g., breaking and entering, electronic surveil-
lance, opening or otherwise tampering with the mail) to obtain information
for the FBI; or
3. Initiate a plan to commit criminal acts; or
4. Participate in criminal activities of persons under investigation, except
insofar as the FBI determines that such participation is necessary to obtain
information needed for purposes of Federal prosecution.
Whenever the FBI learns that persons under investigation intend to commit
a violent crime informants used in connection with the investigation shall
be instructed to try to discourage the violence.
C. VIOLATIONS OF INSTRUCTIONS AND LAW
1. Under no circumstances shall the FBI take any action to conceal a crime
by one of its informants.
2. Whenever the FBI learns that an informant used in investigating criminal
activity has violated the instructions set forth above in furtherance of his
assignment, it shall ordinarily notify the appropriate law enforcement or prose-
cutive authorities promptly of any violation of law, and make a determination
whether continued use of the informant is justified. In those exceptional circum-
stances in which notification to local authorities may be inadvisable, the FBI
shall immediately notify the Department of Justice of the facts and circumstances
concerning the investigation and the informant's law violation, and provide
its recommendation on reporting the violation and on continued use of the
informant. The Department shall determine:
(a) When law enforcement or prosecutive authorities should be notified of
the law violation;
( b) What use, if any, should be made of the information gathered through
the violation of law, as well as the disposition and retention of such informa-
tion; and
(c) Whether continued use should be made of the informant by the FBI.
3. Whenever the FBI has knowledge of the actual commission of a serious
crime by one of its informants unconnected with the FBI assignment, it shall
ordinarily notify the appropriate law enforcement or prosecutive authorities
promptly and make a determination whether continued use of the informant
is justified. In those exceptional circumstances in which notification to local
authorities may be inadvisable, the FBI shall promptly advise the Department
of Justice of the facts and circumstances concerning the investigation and the
informant's law violation, and provide its recommendation on reporting the
violation and on continued use of the informant. The Department of Justice
shall determine:
(a) When law enforcement or prosecutive authorities should be notified of
the law violation; and
( b) Whether continued use should be made of the informant by the FBI.
4. In determining the advisability of notifying appropriate law enforcement
and prosecutive authorities of criminal activity by FBI informants the FBI and
the Department of Justice shall consider the following factors:
(a) Whether the crime is completed, imminent or inchoate;
( b ) Seriousness of the crime in terms of danger to life and property;
(c) Whether the crime is a violation of federal or state law, and whether
a felony, misdemeanor or lesser offense;
(d) The degree of certainty of the information regarding the criminal activity;
(e) Whether the appropriate authorities already knew of the criminal ac-
tivity and the informant's identity; and
(f) The significance of the information the informant is providing, or will
provide, and the effect on the FBI investigate activity of notification to the
other law enforcement agency.
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Senator KENNEDY. Just before leaving that question, Mr. Adams, let
me say this The courts have ruled on that question. I wonder whether
perhaps we could devise a different procedure under title III or not ?
You commented about your concern for title III provisions and
the inherent problems that are suggested by that. I am referring to
the conduct of criminal investigations in terms of notice ancr the
relevation of evidence and other factors. I wonder if a warrant pro-
cedure could be shaped different from title III to deal with some
of these other considerations. Obviously these are preliminary exami-
nations of some of these issues. We would like to search these out a bit
more. We would like to pursue that issue in more detail.
Mr. ADAMS. That will be fine.
Senator KENNEDY. We might have suggestions, but it might be
helpful to us to look closely at your response. You indicate that as a
practical problem, you have difficulty in the warrant area.
Maybe we could write you a letter and give you some different
alternative ways where a warrant procedure might be fashioned and
get your response to that.
Mr. ADAMS. Certainly. I would be glad to respond.
Senator KENNEDY. Thank you.
Without objection, so ordered.
[The department supplied the following response to the committee.]
A request for information on how the FBI would be adversely affected by
a warrant requirement in the use of informants. It is assumed an informant
is a person who provides the FBI information in a continuing and confidential
relationship concerning matters of investigative interest, and that the warrant
requirement for the use of an informant will require an allegation of a violation
of Federal law.
1. Informant who provides information of a criminal nature when received
and is not targeted toward specific individuals or groups.
A warrant requirement for this type of informant would be unworkable. The
persons contacted by the informant and the type of information developed are
not known until after the fact. The FBI is presently operating several inform-
ants of this type who provide information including that used for criminal
intelligence, identification of subjects, detection of crimes, probable cause for
arrest and search warrants, and undercover activities.
2. Informant who provides information regarding a particular criminal group.
This type of informant is particularly valuable in organized crime investiga-
tions and investigations involving criminal groups whose criminal enterprise is
particularly covert. The warrant requirement would cause difficulty if little
were known regarding a group's specific activities. The question would have
to be resolved wether a warrant would have to be obtained in order to attempt
to develop an informant within a group and whether a warrant would be re-
quired to use on the existing informant to penetrate the group. This type of
informant is used to develop information regarding the members of the group
and their activities and to corroborate other investigations.
3. Informant used strictly for obtaining intelligence information who is unable
or refuses to provide specific information regarding criminal violations.
Criminal intelligence information is critical to investigations involving groups
whose organization and leadership are not known. The FBI is presently operat-
ing several informants who provide strictly criminal information regarding
organized crime groups. A warrant requirement would complicate the use of
such informants because of their limited value regarding the development of
information concerning specific criminal violations.
4. Informant who is developed primarily to determine the extent of criminal
activity in a particular geographical area or industry.
A warrant requirement for such an informant would be unworkable because
the informant's value is to determine the extent of criminal activity and no
specific allegations regarding criminal activity can be made prior to his activity.
5. Informant used to check reliability of a second informant.
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This type of informant is necessary in determining what further steps can be
taken based on another informant's information. This information includes that
used for probable cause for a search warrant or title 3 affidavit which requires
specific corroboration either to support the affidavit or to protect an informant.
The warrant requirement would also be an undue complication in the use of this
type of informant.
6. Informant who is in a position to provide information regarding local
violations but refuses to deal directly with local authorities.
A warrant requirement here would be unworkable because no Federal viola-
tion could be alleged.
In addition to the above-described complexities of a warrant requirement. the
fact a record will be made of the informant's activities and a return will be
required present another possibility of informants being identified. Informants
are vital to the overall success of the FBI's investigations and the warrant
requirement would cause citizens to be reluctant to become involved. The war-
rant requirement constitutes an undesirable complication of criminal procedure
which will benefit criminals to a greater degree than it will provide a protection
of first amendment rights.
Senator KENNEDY. Yes; we will do that.
Last Thursday, one serious problem with undercover operations
was discussed. This is the time in which the agents may be called
upon to break the law or to participate in an illegal act. Judge Bell
reviewed with us some of the common law holdings on this. Can
you give some of the specific examples of the types of activity that
we are talking about?
Mr. ADAMS. The most common case is false identity whereby there
may be a State or local law forbidding the use of certain types of
identification, that is, providing for proper authorization of certain
types of identification. We provide them with false identification in
order to carry out their investigative responsibilities.
Another area is in connection with some of our operations. We
may buy stolen property. We will put an undercover agent in a posi-
tion whereby he may buy one stolen tractor-trailer, and, instead of
making the arrest at that time, we try to penetrate the organization.
So, we buy the stolen property and keep the operation going until
at some point we can move up the line and determine who the conspira-
tors are who are actually running the commercialized theft operation.
We have certain problems in running a business, let us say, and
in having receipts and disbursements. There are certain Government
regulations that when you receive money it immediately goes into the
Treasury. We need to continue a viable operation. We cannot be on
the losing end all of the time. We would soon run out of appropria-
tions in that area. We have had occasions where agents participated
in gamblrno. operations in order?and I do not mean just violation
of the local gambling laws, but in actual operation of a gambling
facility?but we have to do this until we can make a case against
high-level organized crime figures, which we did make successfully.
All of these have been covered generally by the court decisions
which basically apply to narcotics. In one case, one undercover nar-
cotics agent could sell narcotics to an individual who then sold it to
another undercover agent. The courts have held that is legal. It is
only when the activity becomes so outrageous that there does become
a question of legality. But, yet, our people do have a rather great
concern over their activities today, and would like to be assured
that there is a recognition that some of these procedures are taking
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place and that Congress does indicate its accommodation with the
executive branch on it. But .these are matters which we intend to
explore in the charter formulations.
Senator KENNEDY. Do you have guidelines for undercover agents,
especially in the area of illegal activity?
Mr. AnAms. No; the Department has handled these matters on an
ad hoc basis in the past. We should have had a tunnel under the street
between the two buildings with all of the ad hoc decisions that have
gone on in the past several years. So, Mr. Civiletti recently indicated
that perhaps we could establish guidelines which would relieve the
necessity of so many ad hoc decisions on these matter. At the same
time, this would give our agents greater assurance by having guide-
lines in hand which they could readily see had been approved by the
Department of Justice. Under our procedures, as Judge Bell men-
tioned last week, we would submit these to the Oversight Committee,
likewise, for review before action.
Senator KENNEDY. You are going to do that?
Mr. ADAMS. Yes.
Senator KENNEDY. When will you have those?
Mr. ADAMS. That is not that July 1 promise date.
Senator KENNEDY. I hope also that you would indicate what pro-
cedures for review and approval of these types of activities would
exist within the FBI and how you would deal with sui generis types
of situations. We, would be interested in that.
Mr. ADAMS. Each operation that we run, of a long-term duration,
that is, an undercover operation, we require the field to send a memo-
randum to headquarters outlining the operation. This goes through
our Legal Counsel Division en route to me, and when necessary, on
up to the Director, and, in some cases, to the Attorney General for
approval. We do keep close control on them. The people consult with
our Office of Legal Counsel in advance, but as a final fail-safe, each
operation is routed through the Legal Counsel Division for its com-
ment and approval.
Senator KENNEDY. I think we probably ought to have a chance to
see the ones that have been approved by the Attorney General over
the last 11/2 years.
Mr. ADAMS. That will be fine.
Senator KENNEDY. Let us say since 1976.
Mr. ADAMS. We might have somewhat of a problem if it is a cur-
rent ongoing operation. But I think we will have, during that period
of time, some that have been closed after criminal prosecution. They
would, therefore, be available. We will be glad to submit that for you.
Senator KENNEDY. Thank you.
Without objection, so ordered.
[The following response was received by the subcommittee from
the Department:
A request for information concerning undercover operations approved by the
Attorney General since 1976. In connection with the evolution of the application
of the undercover technique, specifically in long-term undercover operations, it
is important to note that the initial operations were Law Enforcement As-
sistance Administration (LEAA) joint local-Federal endeavors funded under
the LEAA antifencing program. A condition of granting funding for joint proj-
ects is an LEAA requirement for a confidential memorandum of understanding
setting forth the terms of the partnership between the local and Federal partners.
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In each instance wherein the FBI participated as the Federal partner in LEAA
joint funded operations, the confidential memorandum of understanding for
these operations was submitted to the Attorney General for his approval. The
position of the Department of Justice in regard to cooperative operations
against organized theft and fencing is succinctly set forth in a letter from
Assistant Attorney General Richard L. Thornburgh to the Director, FBI, dated
January 14, 1976, which has been attached to this letter, q.v.
Since 1976, there have been 20 such LEAA funded joint local-Federal under-
cover operations wherein the procedure outlined above was followed. Most of
these operations are still pending prosecutive action.
An example of such an operation wherein all prosecution has been com-
pleted is the LEAA funded long-term undercover operation code from TRICONN
conducted jointly by the Metropolitan Police Department (MPD), Washington,
D.C., and the Washington field office of the FBI. TRICONN was an outgrowth
of two previous Sting operations and was targeted against fences, drug dealers,
and dishonest businessmen. In this operation, a liquidation company was estab-
lished as a front business for handling stolen property. This business, repre-
sented as a branch facility of a national organization, utilized a combined
office/warehouse complex to project an impression that the business was capable
of handling major items of stolen property. This business was staffed with under-
cover operatives from both the FBI and MPD who handled all contacts with
the criminal element. Closed circuit television (CCTV) with audio backup was
utilized to record all transactions in the business front. This operation ran
from Oct. 12, 1976, to Sept. 8, 1977, and resulted in significant statistical accom-
plishments and widespread media coverage.
The confidential memodandum of understanding for each Sting operation, in-
cluding TRICONN, was submitted to the Attorney General for approval, and
Attorney General approval was obtained for the nontelephonic consensual
monitoring of conversations with the criminal element in connection with the
installation of the CCTV and the use of on-body recorders and transmitters by
the undercover operatives.
It should be emphasized here that LEAA funded joint local-Federal under-
cover operations were conceptually similar based on an LEAA requirement
that all grants under the antifencing program be targeted specifically against
property crime. Also of significance is the fact that LEAA is an agency within
the Department of Justice and as such had final approval authority for all LEAA
grants under the antifencing program. Each grant application for an under-
cover operation detailed the operational plan and targets of the project as
well as the projected budget and manpower requirements.
Since funding became available in the FBI appropriation for fiscal year
1977 for support of the undercover technique, there has been a shift from
joint LEAA funded operations to solely Bureau funded long term operations
targeted specifically at crime problems impacting upon FBI jurisdiction. Each
Proposal for a solely Bureau funded long term undercover operation is sub-
mitted to FBI Headquarters for approval. The approval process involves a
complete review by the Legal Counsel Division at FBI headquarters, and in
those instances where there is a unique legal problem, or unusual application
of the undercover technique, the U.S. Department of Justice is consulted for
a legal opinion. The majority of these operations have been conceived and
implemented since 1976 and are presently in various stages of operation and/or
adjudication in the courts.
An example of a solely Bureau funded operation is the long term undercover
project code name GEMINI conducted by the New York City Office of the
FBI. This operation began in August 1976, and ended in March 1978. All
prosecutive action has since been completed.
This operation was established as a cartage business, utilizing a confidential
source of the New York office and an undercover special agent, targeted against
organized crime infiltration and control of the waste removal trade in the
New York City area. It was anticipated that this business would be forced
to pay kickbacks for the privilege of doing business in the New York City
area. This business was actively involved in the daily routine of collecting
garbage and soliciting new business from companies being serviced by suspect
hoodlum-owned carting companies. In the course of this operation, the FBI
undercover special agent was assaulted while performing his undercover role.
Since nontelephonic consensual monitoring was absolutely essential for the
safety of the undercover special agent and to collect evidence of criminal
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violations, this proposal was submitted to the Attorney General for approval.
This operation resulted in significant accomplishments, including the conviction
of organized crime figures in New York City.
It is pertinent to note that all long term undercover operations, wherein
any mode of nontelephonic consensual monitoring is anticipated, are submitted,
in accordance with U.S. Department of Justice regulations, to the Attorney
General for approval. Such a request details the modes of technical coverage
to be utilized, the nature of the operation, the role of the undercover operative,
and the targets or subjects of the investigation. Almost without exception.
all long term undercover operations are predicated upon the employment of
some mode of nontelephonic consensual monitoring in order to successfully
implement and support the use of the undercover technique.
Further, any utilization of the undercover technique in long term operations
is coordinated with and approved by the U.S. Attorney of concern in connection
with obtaining his commitment to prosecute cases developed through the use
of the undercover technique.
DEPARTMENT OF JUSTICE,
January 14, 1976.
To: Director, Federal Bureau of Investigation.
From: Richard L. Thornburgh, Assistant Attorney General, Criminal Division.
Re Cooperative operations against organized theft and fencing activities.
In a memorandum to you dated December 16, 1975, this Division expressed
approval of a "Memorandum of Understanding" which outlined plans for a
coordinated covert operation to attack Tidewater, Virginia, area organized theft
and fencing activities. It is our understanding that the FBI has previously
participated in similar projects in Illinois, New Jersey, and Washington, D.C.
Your vigorous and innovative efforts to combat the serious threat posed by
organized theft and fencing activities are most commendable. Since we in
the Criminal Division are most interested in enhancing enforcement in these
areas of criminal activity, we are anxious to assist you in these efforts in any
way we can.
Cognizant personnel in the Law Enforcement Assistance Administration have
informally notified us that they would like to see similar projects launched
in other cities with similar theft and fencing problems. However, as you know,
local law enforcement agencies must initiate the grant application for funding
of projects such as the Norfolk operation. Accordingly, we would suggest that
the FBI informally bring the availability of this particular type of LEAA
funding to the attention of local authorities in these localities in which the
Bureau feels such a cooperative effort would be both necessary and workable
in terms of the degree of cooperation that could be expected.
This type of informal encouragement and liaison with local authorities con-
cerning available LEAA funding is in no way contrary to the statutory and
administrative limitations on LEAA operations.
We request and would appreciate your views regarding the establishment
of additional projects in other geographical areas. We will be glad to assist
in any way possible, such as assisting in liaison efforts with cognizant U.S.
Attorney's offices or local prosecutors.
Senator KENNEDY. You will assemble those?
Mr. ADAMS. Yes.
Senator KENNEDY. I understand the use of undercover agents is a
relatively new phenomenon. Is that right?
Mr. AnAms. We have always used them, but in a different form.
They used to be mostly "buy-bust." Certain agents were experts on
art and where we knew that certain thieves were trying to dispose of
priceless art, we would use them to make the "buy-bust" situation.
It is only within the past few years that we have begun to engage in
more long term systematic operations. That is where the new opera-
tion conies in.
Senator KENNEDY. I would like to know the reasons for that, de-
cision. I wonder why you made that decision now, which had not been
a part of the Bureau's procedure in the past.
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Mr. ADAMS. I think, for one thing, there is the financial situation.
in the past when we had such limited funds in that area, at the time
that you recovered the painting, if you did not recover the $50,000
that you had for "show" money in order to purchase the :painting,
that had a rather severe impact on the budgeted funds available for
such purposes.
Last year, Congress approved $3 million in this regard.
Senator KENNEDY. What did you request from OMB; do you know?
Mr. ADAMS. I think originally we had requested $6 million. We got
$3 million. We have had some discussion back and forth internally
within the Bureau?not between the Bureau and the Department,
but internally?and we feel basically that the $3 million has been a
realistic figure. It does take an inordinate amount of manpower to
support it. With the other demands on our manpower resources, we
think that we are going to come in right where we should be on the
$3 million. We do not feel that we have passed up any good oppor-
tunities in order to do this.
Senator KENNEDY. As for the FBI's access to records, to what ex-
tent has the FBI formal access to various types of third-party records?
I am talking about employment records, credit records, medical rec-
ords, phone records and tax records?
Mr. ADAMS. It varies considerably. With bank records, for instance,
even in the face of the Supreme Court decision indicating there are
no privacy problems, but that the records are the records of the bank
and not the depositor, we utilize subpenas in almost every instance.
I think a survey was conducted a month or so ago which showed that
subpenas were almost invariably utilized. In certain private employ-
ment records, the public still cooperates willingly with the FBI in our
investigative activity. We do enjoy a degree of access to such basic
records of identity and aspects like that.
There are tight controls on credit bureau records. We can obtain
fugitive information, for example, and place of employment and
last employment and that type of data, but we cannot get a full
report without a subpena.
Senator KENNEDY. You would say you have general access in all
your divisions, for those types of third-party records?
Mr. ADAMS. No; I say it varies. For instance, in bank records, there
is the subpena, route. In some other areas, it is access just on the basis
of cooperation on the part of the private company.
Senator KENNEDY. IS it the position of the Bureau to try to get
those records whenever they are available or whenever they have
these informal or formal arrangements? From what I gather from
your testimony, some of it is based on informal relationships that
are worked out in different regions or in different agencies; is that
right?
Mr. ADAMS. It gets back basically to the investigative function that
most of our work is. Most of it is knocking on doors and asking people
questions. That .type of cooperation. Many people do not distinguish
between answering our questions when we ask them or from showing
us the records of their company concerning a matter that we might
have under investigation.
When you get into the areas of banks and telephone toll records,
that is a different situation. We have had records such as this which
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have been the subject of congressional deliberation and concern: The
general trend is toward requiring a subpena before making available
third-party records. Our concern is that legislation is introduced almost
every year which would apply, or propose to apply, warrant require-
ments to records. One bill was introduced a year or so ago that
private investigators and everyone else in the world could get access
to records as they always had, but the Federal Government agencies
would have to have a warrant.
I have never been able to understand how we could conduct a
major white-collar fraud ease?such as the Arizona land fraud scandal
that involved 20,000 victims and innumerable paper companies?if
we had to go through some burdensome procedure where everytime
we wanted to look at a document we would have to secure a warrant.
with an opportunity for someone to object and challenge. We might
as well go out of business. Fortunately, these problems have been
aired, and there has been no resolution which is adverse to the basic
need for investigators to have this type of information, but it con-
stantly comes up because of everyone's genuine concern over third-
party records and access to matters which involve privacy. Yet, we
have great responsibilities placed on us to conduct organized crime
and white-collar crime and other complicated investigations. We do
need weapons and the ability to ferret out information in this area.
So, during the charter process, we hope we will again come up with
an accommodation which will satisfy both needs in this area.
Senator KENNEDY. Which areas, besides the bank records, do you
utilize subpenas in?
Mr. ADAMS. Telephone toll records.
Senator KENNEDY. That is the only other area?
Mr. ADAMS. We do not have access, to my knowledge, to medical
records.. Generally, medical, school, or other records like that come up
in applicant investigations. Then we obtain a waiver from the appli-
cant permitting us to check those records.
Senator KENNEDY. During the course of investigations, what kind
of cooperation 00 Federal agencies offer, and what type of information
is made available to you?
Mr. ADAMS. We get full cooperation, as long as we have an in-
vestigative interest. The Internal Revenue Service is a different
proposition. Taxpayer return information is a different proposition.
The information that the tax revenue people develop during their in-
telligence investigations, which is unrelated to the taxpayer return,
we make a request through the Department of Justice for that infor-
mation. Of course, we enjoy excellent cooperation with the other Fed-
eral investigative agencies and where there is a need-to-know, and an
investigative interest, such information is exchanged.
Senator KENNEDY. If an agent questions the legality of an order,
what procedures are there within the FBI for an agent to follow?
Mr. ADAMS. It depends on what area this falls in. If it falls in the
foreign counterintelligence area, not only can he question it through
his supervisor, or write directly to the Director or the Attorney Gen-
eral, but he can take his concern directly to the Intelligence Oversight
Board, or to the Intelligence Oversight Committee. We have had
questions raised about our procedures. I have had in one particular
case a national security wiretap where agents wanted to be assured
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74
that that the Attorney General would give them a letter that would
protect them from any future prosecution and also would guarantee
indemnity against any civil suits which might arise out of it. I could
take care of the prosecution issue without much difficulty because
of the opinions of the Attorney General and the presidential au-
thority, but when it comes to the point of immunity, until Congress
acts on the amendments to the Federal Tort Claims Act, no one can
assure an agent that he will have civil immunity for any act that
takes place. So we do have things raised. We had a case in another
office on preparing false identifications. The agent in charge of the
office requested that We explore this particularly with the Attorney
General as to whether it was legal. We obtained an opinion back in
this case that it was legal.
I think everyone has the opportunity and is urged, in fact, to do
this. We have sent out communications that if anyone has any ques-
tions about procedures that are improper, then they should raise those
questions. They should report them.
Senator KENNEDY. For example, is it done on an ad hoc basis ?
Mr. ADAMS. It is done on an ad hoc basis; yes. We have provisions
in the manuals that we must report to the Intelligence Oversight
Board. We have been reporting on a quarterly basis. Anything that
comes up where we think there is a possible violation of law, or
improper procedure, the manuals place the responsibility on each
employee to bring such matters to the attention of our inspector
general and our legal counsel.
Senator KENNEDY. For example, how many times has this come up.
let us say, in the last year?
Mr. ADAMS. I would say, of my personal knowledge, maybe three
or four specific instances where they wanted assurance that what they
were doing was legal. I am sure that at the Investigative Division
level, that there are questions raised every day on the phone to whether
this falls within the guidelines or outside them. I would not have
any figure.
Senator KENNEDY. Is there any notation in the agent's file that
raises these types of questions?
Mr. ADAMS. There is generally. The ones I have had raised have
been raised formally and by communication. So, the communicatior
goes back explaining the answer.
Senator KENNEDY. If an agent raised these questions, whether it
is done formally or informally, the fact that he raised it, is that
in his files?
Mr. ADAMS. In his personnel file?
Senator KENNEDY. Yes.
Mr. ADAMS. Not that I know of. The communications that I have
received have been over the signature of the special agent in charge,
which would go into the case file of the particular matter as a record
that a determination was made that the activity was legal.
Senator KENNEDY. I have some more questions, but I will submit
them to you.
Senator KENNEDY. We will invite your responses to those questions.
Mr. ADAMS. We will be glad to respond.
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[The following questions were submitted to Mr. Adams for his
responses which follow:]
FEDERAL BUREATJ OF INVESTIGATION,
Washington, D.C., June 18, 1978.
SENATE COMMITTEE ON rim JUDICIARY FBI CHARTER
The Senate Committee on the Judiciary was imable to cover some areas of
interest to them during the Charter hearings held on April 25, 1978, and by
letter dated April 28, 1978, from Senator Edward M. Kennedy to James B.
Adams, Associate Director, FBI, 16 questions were submitted for FBI response.
These questions, together with the FBI responses are set out below:
Q. What agencies, both Federal and state, are authorized by law to receive
fingerprint identification information from the Bureau? What specific laws au-
thorize this dissemination?
A. The basic authority for the FBI to operate the Identification Division is
contained in Title 28, United States Code, section 534, which provides that the
Attorney General shall acquire, collect, classify and preserve identification,
criminal identification, crime and other records and exchange these records
with, and for the official use of, authorized officials of the Federal Government,
the states, cities and penal and other institutions. The Attorney General has
delegated these functions to the Director of the FBI by Title 28, Code of Federal
Regulations, Section 0.85(b). Under this authority FBI identification records
are furnished to all Departments of the executive branch of the Federal Govern-
ment and to members of Congress for official use. Courts, prosecutors, probation
and parole officers, penal institutions, and law enforcement agencies are
authorized to receive identification records for criminal justice purposes.
Pub. L. 92-544 (86 Stat. 1115) authorizes the FBI to exchange identification
records with: 1. officials of Federally chartered or insured banking institutions
to promote or maintain the security of those institutions; and 2. if authorized
by state statute and approved by the Attorney General of the United States, to
officials of state and local governments for purposes of employment and licens-
ing. Under this authority records are furnished to state and local government
agencies which require a fingerprint check for licensing or employment purposes.
Examples are the submission of fingerprints in connection with the processing
of applicants for gun permits, adoption of children, and admittance to the
practice of law; and the licensing of private investigators, polygraph operators,
and security guards.
Pub. U. 94-29 (89 Stat. 97) mandates that "every member of a national securi-
ties exchange, broker, dealer, registered transfer agent and registered clearing
agency shall require that each of its partners, directors, officers and employees
be fingerprinted and shall submit such fingerprints or cause the same to be sub-
mitted to the Attorney General of the United States for identification and
appropriate processing." Under this authority FBI identification records are
furnished to stock exchanges and the National Association of Securities Dealers
which act as channeling agents for the organizations affected by this legislation.
Q. On page 43 of your testimony on April 25, you mentioned that a survey
was conducted recently regarding the access various field offices have to third-
party records. Would you provide the committee with a copy of this survey,
the responses and any analysis or reports relating to this survey?
A. In January 1978, the Bureau's field offices were polled regarding their
access to bank, credit, and telephone toll, employment, and health records.
These offices were specifically asked if they could obtain access to these records
without the issuance of grand jury subpena. Seven field offices indicated they
had some limited form of informal access. Of these seven, three field offices
had limited access to bank records and four had limited access to credit
records. Where credit information is available, only descriptive and identifying
data can be obtained without resort to process. Our field offices must rely upon
the use of grand jury subpena generally for access to telephone toll, credit,
bank, employment, and health records. It should be noted that waivers are
obtained in order to obtain records pursuant to background investigations being
conducted by the FBI.
The Bureau's inability to obtain third-party records in the absence of grand
jury process is extremely critical in the area of foreign counterintelligence.
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As a matter of practicality, foreign counterintelligence matters are not conducted
within the grand jury system. For that reason, the grand jury process is not
available for these investigations. Financial institutions and credit institutions
are extremely reluctant to release records without process even where it can
be demonstrated that the information is being requested for national security
purpose. Our field offices have indicated overwhelmingly that they feel there
is need for some legislative relief in order to obtain access to third party
records where no grand jury process is available.
Q. Please identify those Federal statutes and regulations which restrict or
control your access to third-party records.
A. The Family Educational Rights and Privacy Act of 1974. The Fair Credit
Reporting Act. Tax Reform Act of 1976. Social Security Act and the Privacy Act.
Q. To what extent does the F HI have informal access to various types of
State agency records or the records of other Federal agencies during the course
of an investigation?
A. Although no in-depth survey has been conducted of our field offices concern-
ing access to third-party records held by State agencies, the FBI does have
access to Department of Motor Vehicle records and State and local law en-
forcement records.
Our access to records of other Federal agencies is strictly governed by the
Privacy Act and is limited to "Routine Use," or "for a civil or criminal law
enforcement activity if the activity is authorized by law, and if the head
of the agency or instrumentality has made a written request to the agency
which maintains the records, specifying the particular portion desired and
the law enforcement activity for which the record is sought."
Q. On page 48 of your testimony on April 25, you mentioned that the Bureau
sent out "Communications" to field offices regarding the reporting of procedures
which agents felt were improper. Would you provide the committee with a copy
of these recommendations?
A. See attached FBI memorandum to all employees dated June 4, 1976,
entitled "Intelligence Oversight Board," and airtel from Director, FBI, to
Albany, dated November 29, 1976, captioned "Intelligence Oversight Board." Also
attached is a memorandum to all Special Agents in Charge, dated February 27,
1975.
Q. Can you give us any specific examples of instances where domestic security
investigations have actually prevented violence?
A. American League for Independent Voter Education (ALIVE) was a para-
military organization whose objective was to prepare for armed intervention
by guerrilla tactics to oppose Communism in the United States. Members par-
ticipated in training involving firearms practice, political indoctrination, and
construction of explosive devices in the Louisville, Kentucky, area. The group
was strongly against court-ordered school busing, which would have involved
integration of certain schools in the Louisville area. On August 17, 1977, based
on information obtained as a result of an FBI domestic security investigation,
Federal search warrants were executed, which resulted in the recovery of 97 hand
grenades, 17,000 rounds of military small arms ammunition, and 26 sticks of
dynamite. After recovery of the above material and subsequent investigation by
the FBI concerning possible theft of Government property, members of the group
became disenchanted and the organization folded.
The Weather Underground Organziation. The Weatherman was formed im-
mediately before the June 1969, Students for a Democratic Society (SDS)
National Convention. Like its parent organization, the Weatherman adopted
the Marxist-Leninist ideology, but unlike the SDS which "talked" revolution, the
Weatherman advocated acCve violence to bring it about in the United States.
During the fall of 1969, Weatherman members were involved in violent demon-
strations in Chicago and Washington, D.C. As a result of the demonstrations in
Chicago, numerous members of the Weatherman were arrested by the Chicago
Police Department on various local charges. Numerous Weatherman members
failed to answer these charges and, as a result, Unlawful Flight to Avoid Pro-
secution (UFAP ) charges were filed against them.
In late December 1969, Weatherman leaders urged the establishment of an
underground movement using guerrilla tactics such as those of Arab terrorists.
Since 1970, the Weatherman organization has claimed credit for numerous
bombings which occurred in the United States.
In May 1977, this Bureau successfully penetrated the Weather Underground
Organization (WIJO) in Los Angeles, California. As a result of this penetration
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by an undercover special agent, and subsequent investigation conducted by this
Bureau, four WUO members and the leader of the Prairie Fire Organizing Com-
mittee (PFOC), were arrested on November 19, 1977, in Houston, Texas, and
Los Angeles, California, in connection with their plan to bomb California State
Senator John V. Briggs Office in Fullerton, California. Subsequent searches by
Los Angeles Police Department (LAPD) based on local search warrants resulted
in obtaining a volume of evidence. LAPD submitted evidence to FBI Laboratory
and results of examinations indicate possible link between WUO and three
unsolved Bureau bombing matters.
Federal prosecution of the individuals by the United States Attorney, Los
Angeles, was subsequently dismissed subject to being reopened after the state
prosecutions have been completed. Trial date set for June 26, 1978.
Q. Does the FBI have any formal written procedures for the use of mail
covers, surveillance, undercover agents, trash covers, interviews and access to
third-party or agency records? If so, may we have a copy of them?
A. There is at this time no compendium of "formal written procedures" con-
trolling the use of undercover Agents. The authority to utilize undercover Agents
resides with the special agent in charge, within each field division, in connection
with short-term, individual ease applications of the undercover technique. In
those instances wherein undercover Agents are being assigned to long-term opera-
tions and-or are required to travel across field division boundaries in connection
with undercover assignments, then such authority is based on FBIHQ approval.
In the latter instances specific instruction and direction are afforded each opera-
tion to insure a justified and effective, efficient use of the undercover technique.
Virtually all applications of the undercover technique are closely coordinated
with the U.S. Attorney holding prosecutorial power over the investigation being
conducted. Additionally, it is clear that the usual restraints of the First, Fourth,
Fifth, and Sixth Amendments to the Constitution as well as other statutory re-
strictions, executive orders, U.S. Department of Justice regulations, and internal
FBI administrative and operational procedures apply to the use of undercover
agents, always assuming that such utilization falls within our normal
jurisdiction.
Policy on use of mail covers, criminal cases. The FBI does utilize mail covers
in connection with its criminal investigations. It is our policy that mail covers
may be instituted only after approval by FBI headquarters and this approval is
limited to our important cases or cases in which it can be anticipated that positive
results will be achieved by use of this technique. The mail cover, of course, does
not involve an opening of mail. It is merely a recording of return addresses and-
or postmarks appearing on the mail.
Requests for mail covers are initiated by our field offices, accompanied by full
justification. The request is reviewed at FBI headquarters at various levels up
to and including the Office of the Assistant to the Director?Deputy Associate
Director (Investigation). In submitting its request, the field office involved
advises FBI headquarters that the mail cover will be requested from the regional
postal inspector in charge within 10 days of the date of its communication unless
the field office is advised by FBI headquarters that the request has been disap-
proved. The communication from the field office must contain a brief background
of the case, must state the need for the mail cover, the identity and complete
mailing address of the person whose mail is to be covered, the identity of the
regional postal inspector in charge, the statute and possible penalty involved, any
information as to whether or not the person whose mail is to be covered is under
indictment in connection with the matter under investigation and whether or not
he is known to have retained an attorney to represent him.
Mail covers may be requested initially for a 30-day period and may be con-
tinued on request to the regional postal inspector in charge for two additional
30-day periods without seeking further approval from FBI headquarters.
Part 861 of the Postal Manual of the U.S. Postal Service sets forth regula-
tions authorizing mail covers at the request of law enforcement agencies. The
postal regulations state that mail covers may be requested in fugitive or criminal
cases in order to obtain information to assist in locating a fugitive or to obtain
evidence of the commission or attempted commission of a crime. For mail cover
purposes, a crime is defined by the U.S. Postal Service as the commission or
attempted commission of an act punishable by imprisonment for a term exceed-
ing one year.
The vast majority of mail covers used by the FBI in the criminal field relate
to fugitive eases. So far, during fiscal year 1978 we have approved mail covers
In 28 criminal cases.
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Mail covers, domestic security. The Attorney General's domestic security guide-
lines as implemented by the FBI on April 5, 1976, provide for the use of the in-
vestigative technique of mail covers when a full investigation has been authorized
by FBI Headquarters. Part 831 of the Postal Manual of the U.S. Postal Service
sets forth regulations authorizing the Assistant Postmaster General, Inspection
Service (Chief Postal Inspector), to administer mail covers at the request of
enforcement agencies. In security cases, as delineated in "Manual of Investiga-
tive Operations and Guidelines," mail covet requests must include complete in-
formation concerning the name and address of each individual or organization
to be covered and any additional information as attorney of record for subject
and whether or not subject is under indictment. If a request for a mail cover is
approved by FBI headquarters, arrangements for implementing the mail cover
will be handled by FBI headquarters through the Assistant Postmaster General,
Inspection Service.
The limitations on mail covers for domestic security cases are governed by
the Attorney General's guidelines and, therefore, may not be used in either pre-
liminary or limited domestic security investigations. Since a full domestic secu-
rity investigation may only be authorized by FBI headquarters commensurate
with the existence of certain facts which provide the basis of specific and artic-
ulable facts giving reason to believe that an individual or a group is or may
be engaged in activities which involve the use of force or violence and which
involve or will involve the violation of Federal law, the parameters are estab-
lished for mail covers by the Attorney General's guidelines. The approval of the
Attorney General or his designee is required in conjunction with adherence to
postal regulations prior to utilization of this investigative technique.
Standards for criminal investigations, electronic surveillances. Electronic sur-
veillances in the area of criminal investigation fall within two basic categories.
They are those ordered by a U.S. District Court, under the provisions of Title
III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title 18, sec-
tions 2510-2520, U.S. Code) and those in which one of the persons participating
in the conversation has given his consent to Special Agents of the FBI to over-
hear and sometimes record the conversation,
In addressing the electronic surveillances conducted as a result of an order
of a U.S. District Judge, the standards are well defined.
The Attorney General has provided specific guidelines and instructions regard-
ing policy in this area. These guidlines are set forth in Departmental booklets
entitled "Agent's Manual for Conduct of Electronic Surveillance under Title III
of Public Law 90-351" and the "Manual for Conduct of Electronic Surveillance
under Title III of Public Law 90-351" prepared for the use of attorneys in
the Department of Justice. These two booklets together provide ste0-hy-
step procedures in requesting, approving, ordering and conducting electronic
surveillances.
Criminal violations that the Title III statute are allowed to combat are re-
stricted to only a few of the most serious of crimes. In addition, this Bureau and
the Department take the view that the use of a Title III should be considered
in only those investigations with the most potential to impact on major criminal
activity (and when it is demonstrated that other means will not result in suc-
cessful prosecution) or in those instances wherein a life is in danger.
Once the investigators in the field decide to seek a Title III in an investigation,
the proposed affidavit is prepared, working with the local office of the U.S. At-
torney or Department of Justice Strike Force to ensure there is sufficient prob-
able cause to support a request for a court order. The proposed affidavit is then
forwarded to FBI headquarters for review. This includes the substantive su-
perviser, the unit and section chiefs for substance, the Legal Counsel Division
for the proper legal format as well as substance, and then by the Criminal In-
vestigative Division Assistant Director before being reviewed by the appropriate
Deputy Associate Director and final review and approval by the Director, These
steps are considered necessary to ensure compliance within the scope and intent
of the law. It is noted that this internal procedure in the FBI is an example of
the highest standards being applied to the use of a Title III. As a result, since
the enactment of Title III, only one Bureau applicat;on (out of the 1,050) hi
been refused by a Federal District Judge. (The one denial resulted from a 1969
gambling case in Las Vegas, where the judget questioned the probable cause. The
request was dropped by the Department of Justice.)
In addressing electronic surveillances in which one of the participants has
granted consent, it should be noted that they fall into two categories.
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The first includes those instances involving only telephones. The Attorney
General has issued instructions which allow the special agent in charge of a
field office to authorize telephone electronic surveillances provided the local
U.S. Attorney or Department of Justice Strike Force Attorney, upon being ad-
vised of the facts, concurs in the use of this investigative technique and states
that it is his legal opinion no entrapment would result from the surveillance.
The second includes those instances in which one of the participants in the
conversation grants his consent to overhearing or monitoring by means other
than the telephone. In ?these instances the participant has concealed on his
person or on his premises a transmitter or recorder. The Attorney General has
reserved, to himself or his official designee, the authority to grant permission to
use this investigative technique. In some instances of an emergency nature, the
Attorney General has delegated to the Director of the FBI the authority to
approve the use of this technique, but in each of these instances, this Bureau
must follow that emergency authorization with an appropriate correspondence
to the Attorney General or his official designee.
Normally when not of an emergency nature, the office seeking authority to
consensually monitor a conversation other than by telephone must discuss the
facts and circumstances with a representative of either the local U.S. Attorney
or Department of Justice Strike Force Office and with his concurrence ami
specific comment that no entrapment would ensue. The facts, circumstances, and
the opinion of that attorney are relayed to FBI headquarters for approval and
submission to the Department of Justice.
Trash covers may be used as an investigative tool, but there are no formal
written procedures for their use. There have been instances wherein individual
criminal investigations, the legality of warrantless seizure of property has been
brought to the attention of FBI headquarters. FBI agents may seize trash
placed out for collection without a warrant and without infringing on con-
stitutional rights of the party who put it there since this property has been
abandoned and, hence, not protected by the Fourth Amendment.
Interviews are used as a basic investigative tool in investigation. There are
no formal written procedures for interviews, but the general procedure regarding
interviews is set forth in the Manual of Investigative Operations and Guidelines.
The Attorney General Guidelines for Domestic Security Investigations provide
for interviews during preliminary, limited and full investigations.
The FBI has no formal written procedures for the access to third party or
agency records.
See answers to questions 2 and 3.
Q. One problem in codifying guidelines is that they could not be changed
promptly enough to react to a demonstrated need. How often have existing
guidelines been changed in the past?
A. Since the adoption of the Domestic Security Guidelines in April 1976, there
have been no changes made to them.
Q. Would you explain what a mail cover is and how it is used? In what
types of cases is this technique used? B. Are there formal guidelines defining
the use of these rovers? C. What procedures are followed when a mail cover
is to be used?
A. Response to this question is addre,sed under question 7.
Q. Would you explain the UACB procedure?
A. UACB simply means Unless Advised to the Contrary by the Bureau. This
procedure is used for other investigative matters and it is an administrative
procedure whereby the investigating office having fulfilled the requirements for
a particular investigative matter by previous communication advises that they
will proceed with the prescribed course of action. This eliminates the need for
a separate communication to the field office advising them to proceed with the
investigative matter. It does not obviate approval at the necessary levels at FBI
headquarters for the requested investigative technique. The Special Agent in
Charge of the field office is aware in sending a communication requesting ap-
proval in an investigative matter with the requisite requirements fulfilled that
the matter has been approved provided he does not hear to the contrary within
a stipulated timeframe.
Q. Would you briefly explain how civil rights investigations are initiated by
the FBI? A. Is each of these eases approved by either the Department of Justice
or FBI headquarters before an investigation is begun by a field office? B. What
criteria are used for approving these investigations? C. What percentage of the
special agent workforce is assigned to this work?
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A. All civil rights investigations (both criminal and civil) are initiated based
either upon the receipt of a complaint, which is considered to be any allegation
made, or information received from any source not known to be unreliable,
which includes legitimate public press or other legitimate news media, indicat-
ing a possible violation exists, or upon the specific request of the U.S. Depart-
ment of Justice.
A. All cases wherein investigation is initiated based upon the specific request
of the Department are, of course, approved by the Department, The FBI field
offices can initiate investigation in certain types of civil rights cases on their
own initiative, based upon the specific guidelines and policy established by the
Department. In other types of civil rights cases, based upon specific depart-
mental guidelines and policy, the FBI field office obtains the initial facts of tha
complaint and forwards the results to the Department for its consideration as
to whether any further investigation or Federal action is warranted. The results
of all civil rights investigations conducted by FBI field offices are furnished
to FBI headquarters where, after review, they are furnished to the Department
for its consideration as to whether any additional investigation or Federal
action is warranted.
B. All investigations in civil rights matters are based upon statutory authority,
and in accordance with the guidelines and policy established by the U.S. De-
partment of Justice.
C. Slightly over 2 percent of the Special Agent workforce is assigned to civil
rights matters, based upon Time Utilization Recorclkeeping.
Q. If the charter is written along the broad lines suggested by the Attorney
General with the Department issuing guidelines, how can we be sure that the
guidelines will be implemented and the procedures followed in each ease?
A. Implementation of the guidelines and procedures therein would be con-
trolled by the supervisor at FBI headquarters and further by the FBI head-
quarters inspection system. Primary responsibility for compliance would be with
supervisory personnel in the various field offices and simultaneous review by
supervisory personnel at FBI headquarters. Further compliance would be as-
sured by appropriate reviews by the Department of Justice and reviews of
procedures by congressional oversight committees. The guidelines compliance
procedure as outlined above has been successfully utilized Wrice April 1976, in
the area of the Attorney General domestic Fecurity guidelines.
Q. I understand that there have been situations where the FBI has provided in-
vestigative or technical assistance to state police investigating a state crime, even
though the FBI had no authority or jurisdiction in the ease (e.g., Chowchilla
kidnapping case). A. How often has the FBI been requested to provide such
assistance and for what types of situations? B. Are there any guidelines for pro-
viding this assistance? Who approves this activity? What criteria is used? C. If
the charter were to allow that assistance could be provided in. extraordinary
situations, what type of criteria should we consider, so that the FBI does not
become a national police force and its resources are not abused by the states
for every crime they cannot solve?
IDENTIFICATION DIVISION ASSISTANCE
A. The Latent Fingerprint Section of the FBI Identification Division is respon-
sible for processing crime scene evidentiary material by chemical methods for the
development of latent fingerprints, palm prints and footprints, and making com-
parisons of developed latent (or inked) finger, palm, toe and footprints with
known prints of suspects or victims. The examination and identification of im-
pressions obtained from fingers, hands, feet and or skin tissue from these body
parts of unknown deceased individuals are also handled by the Latent Finger-
print Section. This service, in addition to being primarily utilized by FBI field
offices, is offered to all duly constituted law enforcement agencies in the United
States at the Federal, state, county, and local levels, including prosecutors and
courts. Cases examined run the gamut of criminal offenses, local, state and Fed-
eral. They include heinous capital offenses, crimes of local and national notoriety,
offenses involving public or national prominence, killing police officers, bombings.
and offenses in which the subjects are notorious criminals or fugitives from
justice. Many of the cases handled involve matters in which local or state law
enforcement personnel are not qualified or lack the technical expertise to prop-
erly process the evidence, evaluate-the developed impressions and make the neces-
sary comparisons. Guidelines in regard to the provision of these services are that
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all examinations for local, county and state law enforcement agencies are limited
to criminal matters and are handled under the control and supervision of the
Assistant Director of the FBI Identification Division. Articles of evidence volun-
tarily submitted for examination and comparison are processed in the Latent
Fingerprint Section of the FBI Identification Division, which is located at FBI
headquarters in Washington, D C Latent Fingerprint Section specialists, utiliz-
ing prepared illustrated exhibits, regularly testify in all types of judicial proceed-
ings to latent print identifications. During the period October 1, 1976, through
September 30, 1977, a total of 10,019 latent cases were handled by the Latent
Fingerprint Section for local, county and state law enforcement agencies. In
connection with these examinations, Latent Fingerprint Section specialists made
292 court appearances in behalf of local, county and state authorities.
Another area in which technical assistance of the Latent Fingerprint Section
has been of invaluable investigative assistance to local, county and state law
enforcement agencies is FBI disaster squad activity in identifying victims of
disasters involving United States citizens. Specialists of the Latent Fingerprint
Section comprise the technical nucleus of this squad, which, since 1940, has aided
in the identification of the victims of one hundred and five major disasters in the
United States and abroad, including air crashes, ship accidents, fires, hurricanes,
floods, explosions and similar disasters. Requests for this assistance are honored
from local, county and state law enforcement agencies. FBI disaster squad activ-
ity is limited to major disasters involving United States citizens accompanied by
a request for assistance from local authorities. Participation in this activity is
approved by the Assistant Director of the FBI Identification Division and by the
Assistant to the Director?Deputy Associate Director of the FBI (Administration).
All services of the Latent Fingerprint Section of the FBI Identification Di-
vision are provided without charge.
The present controls, supervision and guidelines on the above-described tech-
nical assistance rendered by the Latent Fingerprint Section of the FBI Identifi-
cation Division are considered to be adequate. These services and technical
assistance have been provided to law enforcement over many years and in every
instance the requested service is provided in response to a request from the local,
county or state law enforcement agency. We do not believe that the furnishing
of these services to state and local agencies would in any way result in the FBI
becoming a national police force. There is no opportunity for abuse of the FBI's
resources as each request received from a state or local agency is evaluated in re-
gard to the need for the service and its impact on the Bureau.
CRIMINAL INVESTIGATIVE ASSISTANCE
With regard to the Chowchilla kidnaping case, it should be pointed out that
the FBI entered this investigation under the presumptive clause of the Federal
Kidnaping Statute. When evidence was established that the victims had not been
taken interstate, the FBI, acting under specific instructions of Attorney Gen-
eral Edward Levi, was ordered out of the investigation; however, the FBI was
instructed by the Attorney General to furnish complete cooperation to local
authorities within legal boundaries. Since the kidnapers had utilized false idea-
ties in purchasing equipment used in the kidnaping from a Federal agency, a
determination was made that they were possibly in violation of Title 18, sec-
tion 1001, Fraud Against the Government. This enabled the FBI to continue Its
investigation.
For at least 25 years the bureau's policy has required field offices to obtain
FBI Headquarters approval before conducting any investigation for a local law
enforcement agency. FBI headquarters has limited cooperation short of active
investigation in strictly local matters because of the lack of authority to conduct
such investigations, the possibility of liability attaching to our activities and we
have particularly avoided any interviews with possible suspects, witnesses or
subjects. We have permitted FBI offices to attempt to obtain coverage or re-
quested investigation through local police.
Although the FBI has no direct authority under Title 28, chapter 1, subpart
B., Code of Federal Regulations which describes the FBI's general functions
the Department of Justice has advised that there is no problem with the FBI
utilizing its good offices between police departments to have local authorities
conducted requested investigation, locate individuals in other cities for police
department interview or the acquisition of records for the police.
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Approximately 10 requests a week are received for assistance and many of
these originate from small departments seeking out-of-state assistance in con-
nection with a violent crime. These departments lack the experience and exper-
tise of big city departments which are able to communicate directly between
themselves for assistance. It is believed the Bureau could be of assistance to
these departments, but the charter should liimt our assistance to violent assault
or murder cases and the coverage of out-of-state leads on request of the ranking
official of a police department. This limitation of itself would preclude the FBI
from becoming a national police force. Additionally, we would be limited in our
assistance to the coverage of specifically requested out-of-state leads and would
not involve ourselves in the overall investigation of a case.
As you undoubtedly are aware, the FBI renders assistance to local authorities
under the Unlawful Flight Statute, and in cases involving police killings, if re-
quested, by presidential executive order. Interstate criminal activity frequently
provides statutory authority for cooperation in matters of concurrent jurisdic-
tion. In suggesting statutory authority to the area of violent assault and
murder, the Bureau is relying on experience of previous requests. The com-
mittee may desire additional comments from professional police organizations,
such as the International Association of Chiefs of Police in considering this
area.
TECHNICAL AND LABORATORY ASSISTANCE
A. Subject to the general supervision and direction of the Attorney General,
Title 28, CFR section 0.85(g) gives the Director of the FBI authority to:
Operate the Federal Bureau of Investigation Laboratory, to serve not only the
Federal Bureau of Investigation, but also to provide, without cost, technical and
scientific assistance, including expert testimony in Federal or local courts, for
all duly constituted law enforcement agencies, other organizational units of the
Department of Justice, and other Federal agencies, which may desire to avail
themselves of the service.
Technical assistance of this nature is provided on a regular and continuous
basis.
Requests for electronic monitoring assistance is limited to the loan of FBI
equipment to local law enforcement agencies. Neither installation nor opera-
tional assistance is provided by FBI personnel. Necessary instruction is furnished
so that equipment may be properly and safely operated.
Requests from law enforcement agencies for technical equipment have been
received approximately six to eight times per year.
B. Currently, the loan of electronic monitoring equipment must be approved
by the Department of Justice on an individual. basis.
It should be noted that the FBI does not currently require the local police to
be involved in an "extraordinary" situation, but only that their investigative
needs cannot be met without such equipment, and they must provide informa-
tion which demonstrates that the case is of sufficient importance to warrant the
use of FBI equipment. This determination of worthiness is made by the FBI,
subject to Department of Justice approval.
C. An FBI Charter should retain technical assistance authority currently set
out in Title 28, CFR section 0.85(g). Concerning the loan of electronic moni-
toring equipment, the current criteria, FBI method of operation, and Attorney
General approval should be continued without change.
Q. Would you briefly explain what the legal attache program is and what
function it performs? A. How many legal attaches does the Bureau have and
where are they located? B. When did the program begin and what was its
original purpose? C. Are there any formal agreements with the host countries
which allow this operation? D. What is the statutory or regulatory basis for the
existence of these foreign offices?
A. A. and B. See attached captioned "Legal Attaches" enclosed herewith
relating to above.
C. There are no existing formal agreements with the host countries; however,
prior to posting FBI personnel overseas, the concurrence of the 11.8. Department
of State, the appropriate U.S. Ambassador as well as that of the Foreign
Ministry of the host government must be obtained.
D. See attached caption "Legal Attaches" enclosed herewith relating to above.
Q. What authority do the legal attaches have in the foreign countries? A. What
type of investigative matters do they handle and for whom? In fiscal year 1977.
the legal attaches handle 45,229 investigative matters. Can you give us a general
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breakdown of what these were and the type of work the legal attaches would
do? C. Are there any formal guidelines for procedures for the legal attaches to
follow in performing their work? D. What type of work do the legal attaches not
perform?
A. Legal Attaches have no legal jurisdiction nor do they have authority to con-
duct investigations in foreign countries; however, their presence there is with the
concurrence of the host government and the U.S. Department of State and the
appropriate U.S. Ambassador.
A. See attached captioned "Legal Attaches" enclosed herewith relating to
above.
B. It should be noted that the above figure includes name check requests con-
ducted for foreign law enforcement and security/intelligence agencies and such
requests do not require investigation. However, exclusive of the name checks,
the investigative matters handled consist primarily of the following major
categories:
Approximate
(in percent)
Personal crimes
26
Foreign counterintelligence matters
19
Fugitives
17
White collar crimes
11
General property crimes
7
Organized crime
2
C. Guidelines or procedures for Legal Attaches are set forth in the FBI's
Legal Attache Manual, Manual of Administrative Operations and Procedures,
Manual of Investigative Operations and Guidelines, Foreign Counterintelligence
Manual, and Legal Handbook for Special Agents. Only the Legal Attache Manual
applies exclusively to the Legal Attache Offices; however, it is used in conjunc-
tion with the other manuals.
D. The FBI's foreign liaison program is of a service nature only. Legal At-
taches have no jurisdiction by law outside the United States; they have no
authority to conduct investigations in foreign countries and generally do not
even conduct interviews abroad.
Q. What does the FBI mean when they say that the legal attaches are not
"operational?" A. Is this true in all eases, including Mexico?
A. This information is classified and will be available for access by the Senate
Committee on the Judiciary.
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orrIcn OF TAO DIOFCTOR
UNITED STATES DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF INVESTIGATION
WASHINGTON, SIC. 20535
June 4, 1976
MEMORANDUM TO ALL EMPLOYEES
1-76
(A) INTELLIGENCE OVERSIGHT BOARD -- The President by Executive
et/f? Order 11905 of February 18, 1976, established the Intelligence Oversight
Board. The Board, composed of three members appointed by the President
from outside the Government, is charged with reviewing activities of the
Intelligence Community that raise questions of legality or propriety. The
activities to be reviewed by the Board are those conducted by the Intelli-
gence Community as part of Government business. With respect to the FBI,
activities to be reviewed by the Board are those conducted under Section 4
of Executive Order 11905 relating to foreign intelligence and counterintel-
ligence. In this regard, the Board will receive and consider reports from
Inspectors General and General Counsels of the Intelligence Community
concerning activities that raise questions of legality or propriety. In the
FBI the Inspector General is the Assistant Director, Inspection Division,
and the General Counsel is the Assistant Director, Legal Counsel Division.
It is important to emphasize that the Board is not to review illegal or
improper personal activities of Government employees.
Pursuant to provisions of the Executive Order, each employee is
instructed to cooperate fully with the Intelligence Oversight Board. Further,
, the Intelligence Oversight Board has advised that the Executive Order does
not explicitly establish a system by which employees of the Intelligence
Community would report to the Boax4c1..1. The Board was not established as a
substitute for the FBI's normal procedures for tee'eiving complaints and
allegations from employees. Nonetheless,, the, president has made it clear
that he expects the Board to accept information Com individual employees
which falls within the Board's jurisdiction. Although the Board does not
feel an obligation to investigate all allegations received, it will, as it deems
appropriate, follow up on serious allegations received from employees bearing
on activities conducted by the Intelligence Community as part of Government
business. Accordingly, although only a fraction of the Bureau's work relates
to foreign intelligence and counterintelligence, you are advised that with
respect to foreign intelligence and counterintelligence you do have the ability
to report directly to the Board on matters coming within its purview.
-X- SC PE. a c4cio 'r E.o. Izon.
Clarence M. Kelley
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Airtel
' To: SAC, Albany
From: Director, FBI
INTELLIGENCE OVERSIGHT BOARD
11/29/76
PERSONAL ATTENTION
Reference is made to Memorandum to All Employees dated
6/4/76, captioned as above, and Buairtel to all SACs dated
6/10/76 captioned 'Attorney General Guidelines for FBI,
Foreign Counterintelligence Investigations."
Referenced memorandum pointed out that by Executive
Order 11905 dated 2/10/76 the President established the Intel-
ligence Oversight Board (I013). The IOB is comprised of three
members outside of Government. IOB is charged with reviewing
activities of the Intelligence Community that raise questions
of legality or propriety. This 'memorandum also stated that
IOB will receive and consider reports from Inspectors General
and General Counsels of the Intelligence Community concerning
activities that raise questions of legality or propriety.
In this regard, the Assistant Director, Planning and Inspection
Division, and Assistant Director, Legal Counsel Division, will
fulfill this function in the FBI.
Under the dictates of Executive Order 119051 a COPY_c_f,74
whiciLl_is?attached, the basic duties of the Planning and -
Inspection and Legal Counsel Divisions are as follows:
- (1) Discover and report to IOB any activity that raises
questions of legality or propriety within the FBI.
?. (2) Report to 100 any questionable activities of any
r.
Al. S. foreign intelligence agency operating within the United
'States that comes to the Bureau's attention.
4
(3) Submit quarterly reports to 103 of any findings con-
cerning_questionable activities outlined in fl and f2 above.
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8
r MECTTIR
PE3-L';C:EAT_, ATTENTJON
MEMORANDUM 10-75
UNITED STATES DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF 3NVESTIGATJON
WASHINGTON. D.C. 20535
February 27, 1975
MEMORANDUM TO ALL SPECIAL AGENTS IN CHARGE:
.(A) REPORTING IMPROPER OR UNAUTHORIZED REQUESTS,
EXPLOITATION, OR MISUSE OF THE FBI
The FBI, as the investigative arm of the Department of
Justice, is a fact-gathering and fact-reporting agency whose opera-
tions must be characterized at all times by complete integrity and
impartiality. Furthermore, all na personnel must be alert to any
.indication of possible exploitation or misuse of any of the Bureau's
resources. Therefore, I want to reaffirm at this time our long-
standing policy for employees to report to supervisory officials or to
me any untoward requests, practices, or behavior. In line with
standing instructions of the Attorney General, I will continue to
immediately bring to his attention instances which in my judgment
are improper or which, considering the context of a particular
request, I feel present the appearance of impropriety.
All FBI personnel are hereby reminded and instructed to
comply with the above-stated policy. Bring the contents of this
memorandum to the attention of all personnel assigned to your division.
Clarence M. Kelley
Director
2-27-75
MEMORANDUM 10-75
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Airtel to SAC, Albany -
.RE: INTELLIGENCE OVERSIGHT BOARD
(4) Submit immediate reports during intervals between
quarterly reports to JOB regarding activities, including any
major or significant activities, that raise serious questions
of legality or propriety of ongoing or planned activities by
the FBI.
(5) Insure that all FBI employees have been instructed
to cooperate fully with the 100.
(6) Be prepared to have JOB review periodically FBI
guidelines used by the Office of Inspections designed to iden-
tify questionable activities in the intelligence field that
raise questions of legality or propriety.
It can be readily seen that the duties and sanctions
-placed upon the Intelligence Community by Executive Order 11305
are absolute and a matter of strict compliance. Any employee
of the FBI who does not comply with these instructions could
subject himself to grave, and possibly legal, consequences
and bring discredit to the FBI as an organization.
? I am holding each SAC personally responsible to insure
that employees in his division are fully aware of the Bureau's
duties and responsibilities. SACs are instructed to devise
administrative procedures that will bring to light questions
of legality and propriety.
Hereafter, SACs will personally discuss this topic at
the semiannual clerical and agent conferences and the Office
'of?Inspectiona_will..address..this matter at the tine of field
-in5pe_c_tions. In addition, each office will submit a quarterly
-airtel marked to the attention of the Planning and Inspection '
-Division tqLreach FBIBIC2 by,the first of the month reporting
.:(:)n any quegtion of legality or propriety of any ongoing Oi.
planned-activities in the foreign.lntelligence field. The
initial aiAel should reach FBIHO by 1/3/77 and, it should cover,
the precediFq three months. The results of these communications
will form a, basis of the Bureau's quarterly letter to I013.
However, ay major Or_significant.vact.ivity:that raisen'serious-
. questions of legality or propriety of ongoing or planned activi-
ties shouldf,be brought to the attention of the Bureau immedi-
ately-and dot held for the quarterly airtel.
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88
1,EGAL ATTACHES
OVERVIEW OF LEGAL ATTACHE PROGRAM
:---The Legal Attache Program had its inception in the
-1940s. Prior to World War II, President Franklin D. Roosevelt
charged the FBI with responsibility for countering the activities
of Axis intelligence services in the Western Hemisphere.
The Special Intelligence gervice (SIS) was formed within the
FBI and Special Agents were dispatched throughout Latin America
in both overt and covert capacities. Those assigned to U. S.
Embassies were given the title Legal Attache -As part-of- -
- -their mission, Special Agents assigned to SIS helped police
d6partments throughout-Latin America-improve andistrengthen
'their professional capabilities. -After World War II with the
-Creation of the Central Intelligence Agency (CIA), the SIS
was terminated and all Legal Attache offices in Latin America
were closed with the exception of Havana and Mexico City. Covert
operations ceased: Havana is now closed, but Mexico City
remains open.
The ,g.cale of the operation was-drastIcally- curtailed
-but-the value-Of having liaison-posts-overseas had become::: fa.11.i2
apparent. Athe request of the 1.14 High_Commissioll_inL
Germany an office_was established temporarily in Frankfurt
- ? -, -
to assist in processing war refugees headed for the United -
States after World War II. Other offices were-established ,
in_London, Paris, Madrid, and Rome.
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Throughout the years, the number of offices has
- fluctuated. ,As of 4/1/78, there were 13 Legal Attache offices
manned by 31 Special Agents and 34 support and service personnel
covering some 80 countries and territories. A list of these
offices is attached.
The mission of the Legal Attaches is to establish
? close, personal liaison with all principal law enforcement
and security/intelligence agencies throughout their territories
- overcoming the differences in languages, laws and customs
in-situations which are often sensitive and complex. This
provides the means by which leads overseas in FBI cases can
be covered efficiently and expeditiously. In reciprocity, .
the FBI will conduct inquiries within the U. S. on behalf
of cooperative foreign services provided that the request
falls within the standards applied by the FBI for the initiation
. of its own investigations. Attached are.copies of the 1979
budgetary program summary submitted to .the Department of
Justice.
-Legal Attaches handle the entire spectrum of. FBI
TfT
-.cases with the greatpoulk falling into theLcriminal,and applicant
case categories. Legal Attaches act in,a liaison capacity and
are not intended to be operational. Where unusual circumstances
_
Indicate that an interview-Should be conducted by? a Legal
Attache, the standing instructions are to invite the person
'to the U. S. Embassy'for the interview, or, if this is not
feasible, for the interview to be conducted in the presence
of local authorities.
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At present, the Legal Attaches enjoy excellent working
relationships with the Embassies within which they ,are housed.
In accordance with PL.93-47, which delegates to the Chief of
the United States Diplomatic Mission within the country of
accreditation, "full responsibility for the direction, co-
ordination, and supervision of all United States Government
offices and employees," Legal Attaches keep U. S. Ambassadors
to countries in which they conduct liaison informed of
the nature and scope of their activities. They have specific
instructions to insure that the Ambassador is briefed on any
situation which could impact on foreign policy considerations
within his area of responsibility. In addition to regular
oral briefings, several Legal Attaches provide periodic written
summaries of investigative accomplishments and problems
within their countries to individual kmbassadors at their -
request. As a member of the staff of the Embassy to which
he is assigned, each Legal Attache must satisfy his Ambassador
of the value of his activities. Several Ambassadors submit
annual performance ratings on Legal Attaches to FBI Headquarters.
Each Legal Attache is also subject to scrutiny by his Embassy
as part of the ongoing studies of staffing patterns of Americans
_
overseas which look for areas whdre reductions can be effected
without harming productive activities. Many Legal Attaches _
are members of the Country Team in their Embassy at the invitatior
of the Ambassador. Their widespread contacts in the law
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en.forcsA,unt, immigration and security/intelligence agencies
of the host country frequently prove useful to the ,Ambassador
and other officers in confronting the day to day problems
of the Embassy.
Legal Attaches have a private, secure teletype
system linking them to FBI Headquarters. U. S. Ambassadors
are not on routine distribution for such messages sent over
this system,but by agreemenit between the Attorney General
and the Secretary of State, are entitled upon request, access
.to all non-administrative messages. The agreement excepts,
from review material that would compromise sources and
methods or material which would be protected by Privacy Act
considerations.
The FBI foreign offices return substantial dividends
on a modest investment. Their staffs are productively and
efficiently occupied. Their skilled liaison with our counterparts
in areas of the world where the domestic responsibilities
of the FBI are effected by developments abroad plays a vital
role in successfully carrying out our mission.
(a) INVESTIGATIONS PROGRAM (Legal-Attaches)
This program undertakes to provide a bonstant and
prompt exchante of information and'assiStanCe with foreign law
enforcement and security agencies in order, to accomplish
_
- ,
the responsibilities of the FBI in the applicant, criminal,
domestic security, foreign counterintelligence, and inter-
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92
national terrorist fields. .Another objectiv:' c Lbis prcram
is to provide liaison for the purpose of locating and returning
fugitives who have fled abroad, to the United States -of America.
(b) PROGRAM JUSTIFICATION
Prior to World War II, President Franklin U. Roosevelt
directed the FBI to establish foreign offices'in order to under-
take responsibility for counterintelligehce in the Western
Hemisphere. This was the ltsis for the Legal Attache System.
There is no statutory or regulatory basis for the existence of
these foreign offices. In budget hearings, however, represen-
tatives of this Bureau have regularly testified over the years
before Congress as to the operations of our foreign liaison
posts and Congress has regularly appropriated funds for these
activities.
Currently, the FBI has thirteen posts abroad, known as
Legal Attache Offices. These offices cover more than 80 countries
and insure the exchange of information and aiisistance between
foreign law enforcement and security agencies and the FBI. Our
representatives are not operational. Agents assigned to these
foreign posts achieve their results by liaison contact's,
resulting in A" close, cooperative relationship and thereby
_overcoming thdifferences in langliage, las, and customs in
situations which are often sensitive and complex.
_
- ,
Prior to posting FBI personnel overseas, the concur-
rence of the fUnited States Department of State, the appropriate
United States Ambassador and the Foreign Ministry of the host
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.
government v,ust 1e obtained The Unite6 StatL; pepartmc.nt of
State provides office space and other administrative support
to the program.
The following performance measures have been or are
expected to be achieved in furtherance of the major objectives
of this program:
FY
1977
FY
1978
FY 1979
FBI fugitives located
735
735
735
FBI fugitives returned to U.S.
122
122
122
Fugitives of interest to
_other agencies located
63
63
63
Automobiles and airplanes
located
91
91
91
Value of items located
abroad (8000)
4,972
4,972
4,972
Investigative matters
handled . 45,229 45,229 45,229
? The Legal Attache Program enables the FBI, through
liaison, to locate and/or effect the return to the United
States of fugitives who have fled abroad, locate vehicles,
_ aircrafts and other stolen articles and otherwise fulfill
its mandated responsibilities in the applicant, criminal,
domestic security, foreign counterintelligence and inter-
national terrorist field. The'-statistics relative thereto
are set forth above.
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94
Funding in Fical Year 1979, at tLe current level,
would allow the FBI to continue the return to the United States
of American'fugitivear abroad, and continue the exchange of
information with foreign agencies in furtherance of our domestic
responsibilities.
Funding at less than the current lekrel would severely
curtail this relatively small, but critically important
program. Delays will be e!iperienced in the timely processing
and handling of investigative requests, many of which involve
sensitive, high-priority investigative matters. A reduction
in this program would have adverse impacts on the other field
investigative programs, of which this program is directly
supportive. Thus, the basic mission of the FBI would be hampered.
(c) LONG-RANGE GOALS
To provide a constant and prompt exchange of informa-
tion and assistance with foreign law enforcement and security
agencies in order to accomplish the responsibilities of the FBI.
(d) SHORT-TERM OBJECTIVES
. Major objectives are the location and return to the
United States of American fugitives abroad, and the exchange of
information with fo,eign agencies in furtherance of the domestic
responsibilities oqthe
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? (e)'' ALTBENATIVES ?
Alternatives would be to (1) have other Embassy
-personnel a5road handle FBI responsibilities; (2) have FBI w:.rk
-handled by other United States Government agencies abroad, sl:zh
-as-Drug Enforcement Administration (DEA), Immigration and
Naturalization Service (INS), United States Customs Service,
etc; (3) conduct all FBI business, having foreign ramificatic:Is
- by mail or other communication, directly with foreign govera=ts;
=(4)-handle all FBI work through INTEPOL. These possibilities
are considered to be inadequate to the needs of the FBI becEr,ize
they either involve having FBI responsibilities accomplished bv
-personnel with no experience in law enforcement, or by law
enforcement personnel who do not have the training or experier.ce
with the broad scope of investigative responsibilities of the
-FBI, or would involve long delays in communication, with
possible serious security risks involved.
--(f) -IMPACT OF SUORT-TERM OBJECTIVES
The Legal Attache program will be continued. The
-iconstant and prompt exchange of information and assistance wil
:- be maintained as much as possible with foreign law enforcemenz
- and security agencies.
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8-LZOOZ0009000V89Z1?0808dCIU-VIO : CZ/1.14900Z aseeieu -10d peACLIddV
NUMBER OF FBI PERSONNEL
STATIONED ABROAD
SPECIAL SUPPORT
AGENTS PERSONNEL
BERN 1
Switzerland
BONN 2
Geroany
BUENOS AIRES 2
Arelitina
CARACAS 2
Venexuela ,
rIONU KONG 2
CrO.
i:OGN 3 3
EK, ono
MAORID 1
Spain
MANILA
Prolippines
MEA'ICO CITY 3 9
Mexico
OTTAWA 2 3
Canad.a
PARIS 2
Fiance
ROME 2 2
Italy
TOKYO 2 2
Japan
TOTALS 31 34
SPKKIKI Support
Agents pe,onngr
TOTAL PERSONNEL 55
JANUARY 11, 1978
FPI FOREIGN LIAISON OPERATIONS
The FBI maintains liaison posts abroad in 13 countries. These offices function in a liaison capacity in
connection with criminal and security matters involving the Bureau's domestic responsibilities. In
addition, the Bureau belongs to one international security committee and corresponds with police
agencies all over the world except in countries controlled by the communists. In addition to the
activities of its representatives abroad, the Bureau exchanges certain types of informa.,on with, and
where warranted, arranges to have investigations conducted in the U. S. for, law enforcement and
'intelligence agencies in many foreign countries on a reciprocal basis.
MEXICO CIT
MANILA
ea.
69.
* FBI REPRESENTATIVES STATIONED IN
Ky AMERICAN DiPLOssATIC ESTABLISH-
MENTS OUT.. THE UNITED STATES
BUENOS AIRES
? COUNTRIES WITH WHICH THE FBI ER?
CHANGES INVESTIGATIVE INFORM/al.
POt/O0J
0
CD
0-
0
CD
c7
CD
tri
cr,
0
0
co
0
0
co
co
tri
???1
Co
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Senator KENNEDY. Let me bring out one more question. This is on
the Inspection Division. As I understand it, there are frequent inspec-
tions in the various field offices. Am I correct?
Mr. ADAMS. That is correct.
Senator KENNEDY. Are they really comprehensive?
Mr. ADAMS. Yes, they are.
Senator KENNEDY. Why did they not turn up the questionable prac-
tices of 1970,1971. and 1972?
Mr. ADAMS. If I had privy to the results of the investigation, which
we do not have, then perhaps I could answer that question. I do under-
stand, however, that in connection with certain of the activities that
Mr. Kearney was involved with back in the 1970-71 period, that there
was material found which indicated that the inspector did consider
that particular activity. I know this only from having it brought to
my attention after it appeared in the newspaper. Apparently the doc-
uments were found that indicated this had been brought to the atten-
tion of an inspector.
Senator KENNEDY. Is that part of the Gray case?
Mr. ADAMS. No. This is the earlier case, the Kearney case. It was in
response to the discovery motion filed in New York by the defense
counsel. We started going through everything we could go through.
Senator KENNEDY. I will be submitting questions to you on that
area.
I have here an FBI functional organization chart as well as the
domestic security investigation guidelines and the civil disorder in-
vestigation guidelines which I will have placed in the record at the
end of the hearing.
Senator KENNEDY. I want to thank you very much.
You understand it is going to be a continuing educational experi-
ence for those of us on this subcommittee. We will probably be going
over these areas as we get more information. We look forward to work-
ing with the Department.
Mr. ADAMS. We are, too, because we feel that as we did when we
started out 3 years ago when many things were being raised, we
recognized the need for a charter. We felt it was the only safeguard
that our personnel could have that they could be assured there is an
accommodation.
Senator KENNEDY. Thank you very much. gentlemen. Our next
witnesses are John Shattuck, Morton Halperin. and Jerry Berman,
who are appearing on behalf of the American Civil Liberties Union.
John, we welcome you. Would you please start off?
STATEMENT 01' SOHN H. F. SHATTUCK, DIRECTOR, AMERICAN
CIVIL LIBERTIES UNION
Mr. SHATTUCK. We are happy for this opportunity to appear before
you on a matter of great importance to the ACLU, to the Congress, and
to the country. We would like to start by congratulating you, Mr.
Chairman, at the outset, for your leadership in getting the Senate to
approve an act to bring all Federal wiretaps of Americans under a
criminal standard warrant procedure. As you know, we have long
worked to improve this bill and are very pleased that under your lead-
ership it was improved. This is a significant improvement over the
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98
current law, and we think it is a hopeful sign for the future of the
legislation that you are considering this morning.
Senator KENNEDY. Thank you. I will not ask Mort Halperin whether
he would have voted for it or not.
[Laughter.]
We are glad to have your effective help and support in fashioning
that standard. That is a very important contribution and very con-
structive. We appreciate your help.
Mr. SuArrucK. We have also long urged the enactment of a legisla-
tive charter for the FBI. The ACLU, over the years, has challenged
many investigative practices of the FBI which threaten and violate
civil liberties, and the massive record of abuses which has been com-
piled in recent years, has, I think, shown that we were correct to make
these challenges. On the other hand, the FBI has an important func-
tion to perform in investigating violations of the criminal laws of the
United States. We think it is time for Congress to clearly define this
function and to safeguard the rights of Americans by setting strict
limits over the FBI's criminal investigaitve authority.
In our testimony this morning, we will set out what we believe the
limits of this investigative authority regarding what they constitution-
ally should be as well as practically. The bulk of our statement this
morning, Mr. Chairman, will be presented by Mr. Berman who has
worked long and hard on this subject. He is legislative counsel for the
ACLU as well as general counsel for the Center for National Security
Studies. We have submitted a lengthy statement with many footnotes
for the record, and we will, of course, not be covering all of that, but a
great deal of the material in the statement will be summarized.
All three of us, including our colleague, Morton Halperin, are avail-
able for questions, and I will be adding something at the end of Mr.
Berman's statement.
Senator KENNEDY. Without objection, the statement will be inserted
into the record at the end of your oral testimony.
Mr. SHATrucK. I think Mort Halperin would like to say a few words
before Mr. Berman begins.
STATEMENT OF MORTON H. HAT2ERIN, AMERICAN CIVIL
LIBERTIES UNION
Mr. HALPERIN. Mr. Chairman, let me reiterate what John Shat-
tuck said about the wiretap bill and the great importance of the lead-
ership that you provided on that. I also want to underscore my sense
that the activity you are engaged in here is of extraordinary im-
portance. I think that most of us assume, as I did, that when you came
to criminal investigations, there were clear guidelines and rules. I
think we have discovered that this field is as unregulated as national
security investigations have been unregulated.
This issue really goes to the heart of the democratic society. How
do you investigate crime without at the same time intruding on the
right of free and secret, if necessary, political association? It is clear
that there are complicated issues here, but I think it is also clear that
Congress, in face of the record, has an obligation to legislate in this
area. I am very encouraged that you have begun these hearings, and
would urge you to stick with it until we get the kind of legislation that
I think will give us the balance that we need.
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STATEMENT OF JERRY J. BERMAN, AMERICAN CIVIL LIBERTIES
UNION
Mr. BERMAN. Mr. Chairman and members of the committee, we
welcome the opportunity to testify here today on the urgent
need to develop a statutory charter to govern the FBI and to state
our views on critical issues which must be resolved. Concurring in your
view that this is a matter of paramount legislative priority, we com-
mend you for initiating these deliberations and look forward to work-
ing with this subcommittee and the Congress in a concerted effort to
enact a statutory charter into law. This legislation is long overdue.
For 2 years both the Congress and the previous and present adminis-
tration have repeatedly said that an FBI charter is urgent, yet we are
only now getting down to business. In this regard, we are particularly
pleased that you prodded the Justice Department to come forward in
July with some kind of proposal for an investigatory charter. We
also share your view that this is the first priority and that the ad-
ministration's recent call for a comprehensive FBI and even Federal
law enforcement charter must not become a reason to delay further the
resolution of basic issues.
I turn now to the need for an investigatory charter. The massive
and disturbing public record of investigative abuse by the FBI is the
primary impetus for charter legislation. While we can hope that these
programmatic abuses are in the past, we must bear in mind that the
central conclusion of each of the many congressional inquiries is not
that investigative abuses were committed, but that they occurred
largely because the FBI's investigative powers are undefined, un-
checked, and unregulated by statutory standards and procedure. Cur-
rent statutes simply authorize the FBI to detect . . . crimes against
the United States. Nowhere in the United States Code does the Con-
gress set out standards and procedures to guide the Bureau in detect-
ing crime: the basis for initiating investigations; the standard that
must be met to conduct intrusive investigations; or guidelines to control
the use of investigative means. As for the Bureau's domestic security
mission, the code is simply silent.
This congressional deference to the executive has been destructive
of civil liberties and damaging to law enforcement. Violations of first
and fourth amendment rights have resulted on a scale incompatible
with a democratic society and may still be going on. Public trust in
law enforcement as well as Bureau morale have been undermined. The
demonstration by FBI agents while this hearing was going on last
Thursday evidences that. Both the public and the agent in the field
are looking to Congress to protect civil liberties and end the uncer-
taintyaboutwhat agents can and cannot do without risking indictment
or civil liability. Only the Congress can resolve these issues.
Today we will focus our testimony on the case for the five basic
reforms which a statutory charter must institute:
These proposals are embodied in the model legislation, "A Law To
Control" the FBI, which all of us here helped to draft, and in legis-
lation, H.R. 6051, now before the House. Although they may be con-
troversial, we hope that over the course of these hearings the
committee and the Congress will become convinced their enactment is
both wise public policy and necessary for the protection of fundamen-
tal constitutional liberties.
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First, the charter must abolish the domestic intelligence jurisdiction
of the FBI and limit the FBI to the conduct of criminal investigations.
Second, the charter must only authorize intrusive investigations
pursuant to a criminal standard, excluding conspiracy as a basis for
investigation when first amendment activities may be involved. The
purpose of such investigations should be the gathering of evidence
for arrest and prosecution.
Third, the charter must establish strict statutory procedures govern-
ing investigations which may intrude on lawful first amendment ac-
tivity in order to ensure that they are properly authorized and con-
ducted so as to minimize the intrusion.
Fourth, the charter must establish a judicial warrant procedure
governing the FBI's direction of informants or undercover agents to
infiltrate associations in authorized criminal investigations.
Fifth, the charter must prohibit the FBI from engaging in preven-
tion action or Cointelpro-type activity. While our extended testi-
mony covers each of these issues in even greater depth, we will devote
most of our limited time today to stating in some greater detail why
we believe domestic security investigations should be prohibited; why
criminal investigations should not be premised on conspiracy stat-
utes, and why warrant procedures are required to permit the use of
informants and undercover agents in authorized criminal investiga-
tions.
Domestic security investigations are intelligence investigations un-
dertaken by the FBI primarily to prevent acts of political violence
rather than to effect criminal prosecution. Although the FBI never
recognized such a distinction in the past, domestic security investi-
gations are today defined as distinct from counterintelligence investi-
gations because the violent acts they are intended to anticipate and
prevent are not undertaken for or on behalf of a foreign power. Most
of the intelligence investigations conducted by the FBI, form investi-
gations of subversive activities to investigations of radicals and ex-
tremists fall in this category. We believe these are the core issues,
and that we want to join the debate on these issues. We don't want
to become entangled in guidelines over domestic security until we de-
cide whether that is a mission worth authorizing the Bureau to conduct
by statute.
I think that we ought to make it clear from the start what we
mean by domestic security investigations. We consider these investi-
gations undertaken primarily to prevent acts of political violence,
rather than to effect criminal prosecution.
In the past, there has been no distinction made between domestic
security investigations and counterintelligence investigations. Now,
with the introduction of S. 2525 and S. 1566, the wiretap legislation, we
begin to draw a line. But in the past most of the Bureau's investiga-
tions of subversives, radicals, extremists, civil rights groups, and so on,
fall into this domestic category where there are no agents of a foreien
power involved. Today, domestic security investigations are authoriLd
to anticipate and prevent the violent overthrow of the Government,
civil disorders, and domestic terroism.
. The issue we address today is whether Congress should continue that
jurisdiction. Because we think that it should not continue this intel-
ligence function of the Bureau, we think the matter is properly before
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the Judiciary Committees of the Congress, rather than the Senate
Intelligence Committee.
The value of domestic intelligence does not outweigh the risk to
civil liberties.
Senator KENNEDY. Let me just ask you about the sentence before,
"Today domestic security investigations are authorized to anticipate
and prevent the violent overthrow of the 'Government, civil disorders,
and domestic terrorism." Is the standard now being used under the
recent guidelines for criminal standards?
Mr. BERMAN. I believe it is a loose criminal standard. It is not tight
enough for us, and I think that what the guidelines do is codify the
conspiracy statutes, such as the Smith Act. While the purpose of the
guidelines is to prevent activities which lead to the violent overthrow
of the Government involved, or will involve force or violence, you will
see that the standard for investigation is much lower than that. It is a
maybe, or a reasonable suspicion of people involved in activities, rather
ill an a strict criminal standard.
Senator KENNEDY. With the preliminary investigation, is that the
basis for which will involve the use of force and violence, and which
will involve the violation of Federal laws?
Mr. BERMAN. Yes. You see that is the standard for the investigatory
purposes. That is a preamble. But, if you turn to the standard for full
investigations, where we are particularly concerned, you will see that
it is a future crime standard. Furthermore, as you know, in all the
difficulties over the wiretap legislation, being engaged in crime is dif-
ferent from being involved in activities. It is a much more nebulous
term.
I may be lawfully engaged in first amendment activity, but somehow
involved in unlawful activity under the terms of the guidelines. In any
event, I don't think it is the guidelines we are talking about, but the
mission.
Over the course of our history, we have always recognized the ten-
sion between maintaining an open, democratic society and protecting
the society from violent disruption. Repeatedly, we have established
domestic security measures in response to perceived threats to our
social order.
In every case, from the Alien and Sedition Acts through the Palmer
raids in the twenties and the loyalty and security programs in the
fifties?
Senator KENNEDY. We changed the "may be" to be "futherance of."
Mr. BERMAN. We did that in the wiretap legislation where we were
using a wiretap technique. That was in counterintelligence and we
were talking about the use of an intrusive technique of wiretapping
whereas the guidelines are talking about when do we start looking at
records and conducting physical surveillance, and infiltrating organi-
zations and the like.
Senator KENNEDY. Would you distinguish this standard here from
the one you proposed. and would you do it now or later?
Mr. BERMAN. I will come to it later. We would like to do it in the
context of the criminal investigation rather than a domestic security
jurisdiction in the Bureau.
Senator KENNEDY. Fine.
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Mr. BERMAN. The long and the short of it is that up to the recent
revelations of massive covert FBI surveillance and disruption of law-
ful political activity over the last four decades, the measures employed
have proved far more damaging to our society than protective of it.
Yet today we are considering the continuation of a domestic intel-
ligence jurisdiction for the FBI. The new threat to which we are
responding is political terrorism. Persistently we rely on these demon-
strably dangerous measures because of our stubborn adherence to the
two basic assumptions: One, that it is possible to draw the fine line
between legitimate conduct and illegitimate investigation of advocacy
and association and thereby minimize the threat to civil liberties; and
two, that domestic security operations can substantially prevent or
reduce political violence. These assumptions permit the assertion that
on balance the benefits outweigh the risks. The only problem then is
to design proper guidelines and effective oversight.
These assumptions are thoroughly debunked by the evidence for
three reasons: First, by definition, domestic intelligence investigations
require surveillance of lawful political activity. Particularly in times
of social turmoil, those charged with a preventive intelligence mission
have been unwilling or unable to distinguish between vigorous citizen
dissent and real security threats.
Second, in part because of this misdirection, domestic intelligence
operations have failed totally to accomplish their goal of preventing
violence.
Senator KENNEDY. That is an important issue that we have to try
to evaluate, that is, what their representations are. We heard some
examples today. We have asked for the greater detailing of that, but
I supposed that it is at least, a consideration. You are balancing this
type of intrusion into first amendment rights without any effective
prevention of violence. Then there is the question as to whether or not
you have found that there has been a prevention of violence over the
period of time.
Your representation here is that they have failed totally to accom-
plish their goal of preventing violence.
Mr. BERMAN. Yes. In many respects we think these have proved
counterproductive in the sense of inciting violence in some points; and
making it more difficult for law enforcement at the same time threaten-
ing civil liberties. I think that if we could admit my first point, which
is that by definition if you were trying to ferret out crimes, political
crimes before they occur, then you cannot use a tight criminal stand-
ard. You are forced, almost by necessity, to start loosening those guide-
lines up and making more vague criteria in order to be able to allow
an agency of the government to be there ahead of time. So we begin
to slip the standards. I think we get to the second point of what
happens if we recognize that risk, and then we have to look at the
public record as to what has happened under lower standards of
investigation for intelligence investigations.
Third, there is significant evidence that these efforts are counter-
productive in stemming political violence and often have the opposite
effect. Given these facts of life, sound public policy, based on the need
to protect fundamental constitutional rights as well as society from
serious violence, must reject this fruitless and dangerous course.
Reaching this conclusion in no way implies that we do not consider
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terrorism to be a serious potential threat to the fabric of our society
and to our democratic institutions. Rather it is based on a large body
of empirical evidence on the public record which, contrary to tradi-
tional dogma, indicates that preventive intelligence, to the extent that
it is conducted within "tolerable boundaries," is useless for preventing
terrorism and. that "less intrusive means" may well be more effective.
First, drawing the line is impossible. If their objective is to permit
the FBI to prevent a crime before it occurs, intelligence investigations,
by d.efmition, must be initiated without reasonable suspicion that a
criminal act has been, is being, or is about to be committed. FBI agents
will inevitably focus investigative attention on persons who vigorously
dissent against Government policy or social conditions, or groups who
advocate the need for radical, or revolutionary change, even though
these activities are constitutionally protected. Dissenters are visible
and reasonable targets of intelligence investigations which are sup-
posed to prevent politically motivated violence. Moreover, if the in-
vestigative purpose is to piece together a "web of intelligence" which
intelligence agents claim to require to distinguish the real threats of
potential violence from "legitimate conduct," investigators have to
gather information about all of the plans, activities, beliefs, associa-
tions, and memberships of suspect individuals and groups.
This danger is particularly acute when the principal investigative
technique is the planted informer who cannot be entrusted with the
decision to decide what is relevant or significant activity which may
signal possible violence. The inevitable result is the very evil which
the guidelines and charters are intended to prevent: Ongoing inves-
tigations of lawful political activity in violation of free speech and
associational privacy protected by the first amendment and unreason-
able searches and seizures in violation of the fourth amendment. While
some may argue that you have to strain to read such authority into
the Justice Department guidelines or the Church committee recom-
mendations, two possible foundations for a domestic security charter,
we must remember that tumultuous times produce such strained
interpretations.
Second, preventive intelligence is ineffective and counterproductive.
The inevitable costs of these intelligence activities require the Con-
gress to carefully assess their value before authorizing them. Based
on the public record, the Bureau's "offer of proof" to support its mis-
sion, and the General Accounting Office's intensive audit of FBI
Domestic Intelligence, and its followup study appropriately titled
"FBI Domestic Intelligence Operations: An Uncertain Future," there
is literally no evidence to support the value of domestic intelligence in
anticipating or preventing acts of political violence.
According to the Church committee,
Between 1960 and 1974, the FBI conducted over 500,000 separate investigations
of persons and groups under the "subversive" category, predicated on the possi-
bility that they might be likely to overthrow the Government of the United States.
Yet not a single individual or group has been prosecuted since 1957 under laws
which prohibit planning or advocating action to overthrow the government.
According to the GAO audit of 17,528 FBI domestic intelligence
investigations of individuals in 1974, only 1.3 percent resulted in prose-
cution and conviction, and in only "about 2 percent" of the cases was
advance knowledge of any activity?legal or illegal?obtained. In our
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extended testimony we cite other examples, and the GAO talks about
organizational investigations turning up the same absence of anticipa-
tion of activity. The Senate Intelligence Committee offered the Bureau
the opportunity to send a memorandum to the committee asking what
the examples were and why they should authorize this. They came up
with three out of the massive number of investigations they were con-
ducting. I think the point here is that the Bureau's failure to anticipate
or prevent violence occurred during the period when it operated
covertly "with no holds barred," as the late William Sullivan of the
Bureau used to say.
None of the major outbreaks of political violence which are cited to
support the need for a preventive intelligence jurisdiction were antici-
pated or prevented: the civil disorders of the sixties the campus dis-
orders of the seventies, the Capitol bombing, the political assassina-
tions and attempts, the violent activities of the Weather Underground
or the SLA. So long as prevention remains the goal of domestic security
investigations, new restrictions and procedures will further ensure
failure. The often-heard criticism that these restrictions, necessary to
protect civil liberties, will "tie the hands" of the FBI's intelligence
agents is not unfounded. The followu.p report of the General Account-
ing Office report realistically describes the dilemma:
Despite the improvements in the direction and control of domestic intelligence,
there are still few visable results . . . . Realistically this may be the best that
can be expected, particularly in view of the greater investigative restrictions now
placed on the FBI and [in view of] its past record when there were fewer restric-
tions and less control.
Not only does domestic intelligence fail in its mission, with or with-
out restrictions, but it is, we believe, in fact, counterproductive. Instead
of serving to detect and prevent violence, domestic intelligence has the
opposite effect. of making crime detection more difficult and violence
more likely while jeopardizing civil liberties.
By focusing on the dissenters and protesters in order to prevent
violence before it occurs, intelligence agencies play into the hands of
terrorists. As the aim of the terrorists is to both intimidate and create
sympathy for his or her cause by convincing people that repression
makes violence necessary, overreaction by authority is a key element
in the strategy. If police investigate innocent persons or those sym-
pathetic to the cause of the terrorist, the police confirm or appear
to confirm the truth about repression. By violating constitutional
rights, intelligence agencies unwittingly help to promote the success
of terrorist tactics. By engaging in overbroad surveillance, intel-
ligence agencies create 'paranoia and distrust of the police which
makes detection of terrorists more difficult. To cite just two examples,
the major reason why the FBI has had great difficulty in overtaking
the. SLA and Weather Underground is that a significant segment of the
public has been 'unwilling to establish their wherea;bouts to the police,
and some people have helped these groups stay underground.
Intelligence investigations have made them enemies of the police,
and they wrongly but understandably identify with other enemies
of the police. Without public trust in police authority, which is under-
mind by surveillance or fear of surveillance, FBI criminal investiga-
tors are hindered in legitimate efforts to enforce the law.
Finally, by taking preventive actions or using illegal means, an intel-
ligence agency can become the mirror image of the terrorist groups it is
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supposed to thwart. When a police agency becomes a kind of terrorist
organization using intimidation and violence to achieve public ends,
even if their intentions are benevolent, that is a far worse threat than
Black September or FALN, or SLA. Official terror is the ultimate evil
of modern times, and the FBI, as the public record shows, used tactics
in its intelligence mission which we associate with police states: from
the compilation of emergency detention lists to Cointelpro. We are
not here to flog the Bureau any longer, but we are saying that it is
the mission. It is the particular segregation of the mission, in times
of social turmoil which lead to the excesses. We don't think that guide-
lines can control that kind of mission.
We think a total change in emphasis is required. Instead of focusing
on political dissent, the FBI should zero in on illegal conduct. The
appropriate alternative is criminal investigations conducted under
strict standards and procedures. Both the administration and key
elements of the Congress are apparently coining to the same conclusion.
As the Attorney General has stated in recent testimony before the
House Judiciary Committee:
Last year we began efforts to draft legislation dealing with the domestic
security investigations of the FBI. It quickly became apparent, however, that
it is unsound, both legally and practically, to isolate this particular subject from
other areas of FBI criminal investigative responsibility. There is no real differ-
ence between investigations of criminal enterprises bent on violence for political
motives and criminal enterprises bent on violence to extend the influence of
organized crime for economic gain. Murder, assault, bombing and extortion are
weapons equally adapted to calling attention to a political cause or enforcing a
loan-sharking or kickback agreement. Whatever the motivation, the same in-
vestigative techniques come into play in attempting to identify the persons or
organizations behind these acts, determining who provides the leadership and
bringing a halt to such crimes. The only distinction is that greater safeguards
for the protection of First Amendment rights should be provided in the investiga-
tion of crimes undertaken for political reasons.
Instead of wasting time and resources and infringing rights by try-
ing to prevent violence before it occurs, the FBI should be primarily
trying to prevent violence by detecting and prosecuting those who
commit crimes of violence in order to deter such acts.
Senator KENNEDY. Should the FBI attempt to prevent any crime or
wait until it occurs?
Mr. BERMAN. I think it has a preventive role within the criminal
investigation, but it is far more limited in focus on crimes about to
occur, specific acts about to occur. I think that that would take care
of some of the cases where you could arrest or diffuse a bomb, like in
the Weatherman Underground case. It is not a preventive intelligence
investigation, but it is a criminal investigation to find the Weatherman
Underground in which you have taken preventive measures. This is
pursuant to a criminal investigation, and you are not out here looking
for potential terrorists. So there are preventive measures, but we are
now talking about preventive action. I think that within traditional
law enforcement there are preventive measures which the police can
take which don't involve Cointelpro activities.
T just want to make one point here. That is that all this morning we
were talking about how the FBI is claiming that the guidelines have
reduced the number of investigations. It should he remembered that
the FBI is not operating under the guidelines. They are operating
under far more restrictive internal rules that they call quality over
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106
quantity which makes them focus on committed acts of violence and
groups engaged in committed acts of violence. That is why the num-
bers have come down. The guidelines are flexible enough to permit
wider investigation. The second reason why they are more focused is
that they say the times have changed. We are not in a time of social
crisis.
If the Bureau can focus on quality over quantity, then the statute
can also. If this argument is thrashed out with evidence and offers of
proof by the Justice Department, and we come to the conclusion that
we should close down domestic security investigations, we would rec-
ommend three things:
First of all, Congress should enact a charter which would preempt
all executive orders and limit the FBI to the conduct of criminal in-
vestigation. The charter must also carefully define the FBI's investiga-
tive responsibility in the areas of civil disorders and background
investigations. These functions must no longer constitute a basis for
intelligence. investigations.
Then we come to a standard for FBI criminal investigations. The
Congress must define carefully the FBI's criminal investigatory au-
thority. The charter should mandate that the primary purpose of a
criminal law enforcement investigation is to detect . . . crimes against
the United States, by identifying the perpetrators and gathering evi-
dence to establish the basis for arrest and prosecution.
Of particular importance, the Congress must establish an investiga-
tory standard which the FBI must meet before it can conduct a covert,
intrusive criminal investigation. We believe the FBI may not conduct
such investigations unless it has a reasonable suspicion, based on spe-
cific and articulable facts and rational inferences from such facts, that
the subject of an investigation, whether a person or a group, has com-
mitted, is committing, or is about to commit a specific act which vio-
lates a Federal criminal statute.
Senator KENNEDY. Now is that in the Terry v. Ohio case?
Mr. BERMAN. We read that as required by Terry. Terry never really
addressed the full investigation. It was a stop-and-frisk case, but our
argument is that this is the implication of Terry for a full investiga-
tion.
Senator KENNEDY. What do you mean, "about to commit?"
Mr. BERMAN. "About to commit" means to have taken a step toward
the commission of a crime which would be different from an overt act
in conspiracy law.
Senator KENNEDY. In the criminal code, we have some "substantial
step."
Mr. BERMAN. But it must be a substantial step toward the commis-
sion of a substantive crime and not a substantial step toward the com-
mission of a conspiracy. That's the Droblem, because conspiracy
statutes, on their face, raise serious problems for prosecution but as
an investigative standard, we think they are wholly inadequate and
dangerous. It is too easy to meet a probable cause standard because you
can use legal overt acts.
Senator KENNEDY. If they are about to commit it, though, even under
that, isn't it effectively a conspiracy?
Mr. BERMAN. If you said "about to commit a specific act" it is not
a conspiracy, but a conspiracy would be included in the term "about
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to commit a violation of Federal laws." A specific act, if it is not clear
in our statutory?the way we have framed it, I am sure we could make
it clear by report language that we are excluding conspiracy as a basis
for investigation.
Mr. SHATrucx. Senator Kennedy, the critical point here is one that,
in fact, you are bringing out by your questions. This is that, in fact,
the "attempt law" is the appropriate way to look at the "about to"
formulation, not conspiracy law, nor solicitation, nor anything that
would touch upon speech. An attempt to commit a substantive crime
would be the about to" formulation that we are talking about. I
think, as you move through the statement, you will see that conspiracy-
based investigations are what we are most concerned about avoidings.
Senator KENNEDY. What I am interested in here is the distinction
of your own framing of the standard versus the standard that the At-
torney General endorsed.
Mr. BERMAN. Yes, we are spelling it out by saying that he has a
conspiracy framework, and that is where we have joined issues.
Mr. HALPERIN. Maybe I will further confuse it, but it seems to me
that the Justice Department is moving toward "probable cause," but
of all crimes, including conspiracy. What we are saying is that we
prefer the "reasonable suspicion" standard which is lower, but exclud-
ing conspiracy crimes as the basis to begin these investigations. I think
that is the basis of the difference.
Senator KENNEDY. Thank you.
Mr. BERMAN. We point, that out in the past, outside of executive
orders, the Bureau has always read their overbroad jurisdiction to in-
vestigate from conspiracy statues. We think that by leaving conspiracy
as the basis here, we have not solved the problem, but have come right
around full circle to where we are today.
We do not propose a "Probable cause" standard, which both the At-
torney General and the FBI Director have indicated might be work-
able, because we are attempting to articulate a standard of investiga-
tion that is not premised on "conspiracy" statutes. In our view,
reasonable suspicion of a specific act in violation of law is a tighter
investigatory standard than probable cause of conspiracy, and the
only standard that can protect constitutional rights adequately.
In the past, the FBI has conducted massive investigations of law-
ful political activity premises on the violation of conspiracy statutes
such as the Smith Act, 18 U.S.C. 2385, and Voorhis Act, 18 U.S.C.
2386, which on their face punish lawful speech and advocacy. We
recommend the repeal of these statutes by this charter legislation.
However, even if they are repealed, the use of general conspiracy
statutes, 18 U.S.C. 371, in conjunction with statutes prohibiting sub-
stantive conduct as a predicate for intrusive investigation perpetuates
the problem.
Applying the courts' observations concerning the prosecution of po-
litical conspiracies to the investigation of such conspiracies illustrates
the danger of such an investigative standard. Reading conspiracy
statutes literally, advocacy of illegal acts by persons in asso-
ciation justifies investigation. Moreover, commission of wholly legal
overt acts, inextricably intertwined with the political process, could
also justify investigation. A standard of probable cause of such activity
is easily met. Even if there is no specific intent to violate the law by one
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or all of the associates, conspiracy statutes permit intrusive investiga-
tion of first amendment activity. Investigatory discretion to proceed
under these statutes renders a "criminal standard" an illusory protec-
tion against future investigative abuses.
We are really looking in one other point. We are looking at the in-
vestigative standard, and first amendment activities for something
like the specific intent that the courts require in a prosecution of the
first amendment group. I know that we are going to have to thrash
this out, but we do not think that standard ties the Bureau. Of cases
involving terrorism and violence 99 percent are ones which have
occurred, or committed. The Bureau has enough trouble just appre-
hending people who have committed terrorism and holding those in-
vestigations within bounds rather than trying to decide where a
bomber might be, of whose threat is credible, and which organization's
illegal purpOses are going to lead to violence. The prosecutorial re-
quirement of specific intent must be paralleled in the standard for
investigation. Persons or groups should not be targeted for investiga-
tion unless there is reasonable suspicion that the substantive crime,
rather than conspiracy, is about to be committed. For example, if the
FBI obtains evidence of a specific threat of illegal activity by an asso-
ciation together with specific and articulable facts indicating that a
member has purchased weapons, the FBI would have reasonable sus-
picion that a criminal act was about to be committed.
The FBI would not be required to sit on its hands until a substantive
crime occurred. The criminal standard allows a full investigation be-
fore the law has been violated. More important, it should not bar the
Bureau from conducting preliminary inquiries using less intrusive
techniques. A charter, providing for a? preliminary criminal inquiry,
would allow the FBI to check its own records, conduct interviews,
contact established sources of information, and use other such means
to find out whether the basis for a full investigation exists. Without
meeting a reasonable suspicion standard, the FBI could check out
specific threats, credible allegations, incidents, and the like. On the
other hand, if the allegation is unfounded, or in the case of a full
investigation, if the substantive crime does not occur, the investigation
must terminate.
Rather than hinder the Bureau, the standard would make the FBI
more effective in carrying out its law enforcement responsibilities. Con-
spiracy predicated investigations lead to overbroad investigations
which are a waste of resources on virtually fruitless attempts to pre-
vent political violence. The narrow standard we propose is required
when first amendment activities may be investigated. The same stand-
ard is probably not constitutionally required in organized crime and
other criminal investigations. However, fourth amendment considera-
tions remain; a criminal standard is therefore required.
We look to the Justice Department and the FBI to explain why a
uniform standard would not be wise or practicable. At this point I
think John Shattuck would like to go into the next issue.
Mr. Sirxrrucx. Senator, I think the next proposal is actually less
controversial than anything else in our statement because we find sub-
stantial support from the Attorney General for special procedures to
safeguard and minimize the intrusion on first amendment and other
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constitutional rights in the conduct of the kinds of criminal investiga-
tions that Mr. Berman has just been laying out for you, so our point
is this: We are pleased that the Attorney General agrees with us and
has on several occasions stated that he also believes that special pro-
cedures for accountability are essential in this area. They would
include accountability for the authorization and conduct of an investi-
gation, assuming that no investigation is initiated without statutory
basis; that criminal investigations do not become a pretext for open-
ended intelligence investigations; that the least intrusive technique
necessary to obtain evidence be employed; that investigations are not
overbroad; and that privacy is not violated by unnecessary mainte-
nance and dissemination of information.
Senator KENNEDY. Before we continue on this, in the middle of page
11 you point out, "the narrow standard we propose is required when
first amendment activities may be investigated. The same standard is
probably not constitutionally required in organized crime and other
criminal investigations." I imagine you are talking about white-collar
crimes and others like that.
Mr. BERMAN. Yes; we find that it is the first and fourth amendment
activities that raise the standard, but we have looked at some evidence of
organized crime investigations which raise a policy question about the
standard. Most of those have been conducted under committed crime
standards. Moreover, when the GAO did a study of organized crime
investigations of strike forces, as you are well aware, for the 10 years
that has been $80 million wasted because of lack of definition as to what
organized crime is. So, part of the focusing in a standard would also
maybe focus their organized crime investigations.
Mr. SnArrucx. The special procedures to which I was referring are
somewhat of a departure from the way in which investigations are
now conducted. I think the spirit of these procedures is currently fol-
lowed, but I think some clear statutory guidance is necessary. Special
provisions to achieve these ends are laid out in "A Law To Control
the FBI." They include: (1) requirements for written authorization
and certifications; (2) time limits for investigations; (3) Justice De-
partment review, authorization, and supervision of continuing investi-
gations; (1) special authorization and Justice Department mandated
procedures to govern the use of intrusive techniques; and (5) require-
ments that minimization procedures be established. These provisions
are not detailed regulations, which the Justice Department and the
Bureau seem to fear. Rather they simply mandate that the Justice De-
partment establish procedures according to statutory criteria. They set
appropriate limits on administrative discretion.
All of these procedures should apply in criminal cases involving first
amendment activity. But many also protect against fourth amendment
privacy violations and should apply to all criminal investigations.
These are matters that I think there is a larger consensus on than
almost anything else in the legislation that you will be considering. We
do want to emphasize that procedures cannot be merely internal. They
should not simply be the kind of secret guidelines which we have had
but rather something set forth in statutory form that we can look at
and know about, comment on, and make sure that the kinds of intru-
sions on constitutional rights that have gone on because the procedures
have not been in effect in the past don't go on in the future.
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The point that we want to conclude our prepared presentation with
is one which you brought out in some detail in your questioning of Mr.
Adams, namely, the whole question of the warrant procedure and ac-
countability mechanisms for the use of informers and undercover
agents. We feel that this is one of the most critical areas in which the
charter should move. We start from the premise that the wiretap as
technique of search, is very similar to the undercover agent. In fact, if
anything, the undercover agent is considerably more intrusive and, in
many respects, much more dangerous. If there is going to be a fourth
amendment and statutory warrant procedure across the board for the
conduct of wiretaps even in very sensitive foreign intelligence areas,
such as you have in S. 1566, it seems to us extraordinary that there
would not be a similar procedure in the domestic investigative setting
where, in fact, the national security interests certainly are not as great.
We are talking about very serious potential constitutional violations.
Senator KENNEDY. We have to get at what we mean by informers,
and whether we are talking about citizens who voluntarily furnish in-
formation, or whether we are talking about paid professionals directed
by the FBI.
Mr. SHATTUCK. We are really addressing the question here of paid
undercover agents who are directed and controlled, if you will, similar
to the foreign agents who are defined in the wiretap bill who are, in
fact, agents of the Bureau in the sense that the Bureau controls them
and moves them. We understand the various distinctions in the in-
formant area between the tipsters and the people who just might walk
in off the street and give information, on the one hand, and paid under-
cover operatives on the other. We are not talking about those with
respect to the warrant procedure, but rather the paid informers.
A further point that needs to made, I think, is that what we are
really talking about here is associational privacy and the infiltration
of private groups. That is why the warrant procedure is so important
and why the case law that we find in the Supreme Court on this issue
doesn't speak to the question that we are addressing here. The Hoffa
case, as you know, was really a case where an informer was targeted
on a particular individual and was not aimed at a group. The associa-
tional privacy point that we bring out is not one that has been ad-
dressed by the Supreme Court. Therefore, I think the argument that
the Supreme Court has generally not required a warrant for informer
searches is not an argument that speaks to the issue here, which is the
invasion of political and associational privacy.
Senator KENNEDY. Do you have suggestions about the warrant pro-
cedure that may be different from the title III that would deal with
the protection of the fourth amendment and yet deal with some of the
practical problems?
Mr. SHATTUCK. A crucial point, Mr. Chairman, is this. We are talk-
ing about independent scrutiny. If that can go on at the front end in
the sense that the the use of the informer, and the reason why that in-
former would be used, would be presented to an independent magis-
trate, or to a judge based upon probable cause of crime, then if that
is satisfied and various procedures are put into effect for minimizing
the intrusion and the time period in which the informer would be in
a group that you have probable cause to believe is engaged in crime,
then I think various other technical points, such as, for example, notice,
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could be treated quite differently. It is obviously different from a
wiretap.
We are not asking you to simply import the title III procedures,
lock, stock,. and barrel, into the informer area, but rather to set forth
principles in the informer authorization process which would protect
fourth amendment rights.
Senator KENNEDY. I would like for you to give an assessment of the
guidelines. Obviously you differ as to the sufficient kind of accountabil-
ity and informer procedures which have been announced that provide
both in-house and Justice Department review of those. Perhaps you
could submit something later as to why that does not provide sufficient
independent review.
Mr. SHATTUCK. It is the independent review we are stressing. There
are ways in which the guidelines are quite good now, but they are not
independent and they don't speak to the kind of criminal standards
that we are talking about either. Under times of stress, they could very
well go by the boards.
In short, special procedures to minimize FBI interference with first
amendment rights must be reinforced by a warrant 'requirement for
criminal investigative techniques which may intrude on rights of polit-
ical privacy. For the same reason that a warrant is required to con-
duct a wiretap, it should be used to guide and restrict the use of in-
formants and searches of private records. The target of each of these
techniques is speech, albeit in different forms, and the only way to
ensure that the purpose and conduct of the search are limited to the
seizure of criminal evidence is to require prior judicial approval.
Nowhere is the need for judicial supervision greater than in cases
involving domestic security, where first and fourth amendment rights
are simultaneously jeopardized. As the Supreme Court pointed out
in Keith:
National security cases . . . often reflect a convergence of First and Fourth
Amendment values not present in cases of "ordinary" crime. Though the in-
vestigative duty of the executive may be stronger in such cases, so also is there
greater jeopardly to constitutionally protected speech. . . . History abundantly
documents the tendency of Government?however benevolent and benign its
motives--to view with suspicion those who most fervently dispute its policies.
Fourth Amendment protections become the more necessary when the targets of
official surveillance may be those suspected of unorthodoxy in their political
beliefs.
The first amendment, of course, guarantees freedom of speech, of
the press, of assembly and of the right to petition for redress of griev-
ances. The Supreme Court has often observed that the effective exercise
of these rights requires associational privacy. Citizens must be able
? to meet and associate privately to discuss their political beliefs and
plans and to consider what lawful actions to take to promote their
ideas. Records relating to these associational activities are protected
unless they contain evidence of crime.
? The right of associational privacy was firmly established by the
Supreme Court in repelling the effort of the State of Alabama to
compel disclosure by the NAACP of its membership lists. (NAACP
v. Alabama, 357 U.S. 449 (1958.) It was sustained and emphasized
most recently by the Court in its decision modifying certain intrusive
disclosure provisions of the Federal Election Campaign Act. (Buck-
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ley v. Valeo, 424 U.S. 1 (1976) .) As Chief Justice Burger pointed out
in his concurring opinion:
Mecrecy and privacy as to political preferences and convictions are funda-
mental in a free society. . . This Court has seen to it that governmental
power cannot be used to force a citizen to disclose his private affiliations, even
without a record reflecting any systematic harassment or retaliation. . . . For
one it is far too late in the day to recognize an ill-defined "public interest" to
breach the historic safeguards guaranteed by the First Amendment.
If the first amendment prevents the Government from compelling
disclosure of information related to lawful political and other associa-
tional activity, it must also require restraints to be imposed on the use
of intrusive investigative techniques to gather such information. In
fact, it is for this reason that the restraint of a warrant procedure
has been imposed upon Government wiretapping. Surely, the first
amendment is no less violated if the FBI obtains a copy of the mem-
bership or contribution lists of the Socialist Workers Party through
the use of paid informers or the search of the party's bank records
than if the party's membership and contributor information is ob-
tained through a wiretap or as a result of the campaign reform law.
Indeed, the first amendment violation is compounded when it results
from an intrusive search which also raises fourth amendment ques-
tions. This is why we believe that a warrant requirement should be
imposed on the use of informers and record searches in criminal
investigations.
One, in regard to informers, the FBI record on the use of paid
informers in political groups shows a massive violation of first amend-
ment rights. Although the worst abuses in the last three decades
occurred in the undercover provocations of the Cointelpro and
Cominfil programs, the Church committee documented many ex-
amples of routine informer activities which cut deeply into associa-
tional privacy. The committee's final report points out that during
the 1964-76 period:
The FBI expanded its use of informers for gathering intelligence about
domestic political groups, sometimes upon the urging of the Attorney General.
No significant limits were placed upon the kind of political or personal informa-
tion collected by informers, recorded in FBI files, and often disseminated out-
side the Bureau.
These vast informer operations were typified by the following: By
1972, 7,402 ghetto informants, for example, "the proprietor of a candy
store or barber shop", had been put in a place as FBI listening posts to
provide information about racial activities [and] identify extremists
passing through or locating in the ghetto area.
In 1964 the FBI had infiltrated the Communist Party USA at a
ratio of 1 agent for every 5.7 members.
In 1970 FBI Director Hoover lifted restrictions against recruiting
18- to 21-year-old informers, and field officers were urged to take
advantage of this tremendous opportunity to expand coverage of
New Left collectives, communes, and staffs of underground
newspapers.
Between 1966 and 1976 the Chicago FBI office paid more than
$2.5 million to 5,14.5 informants and investigated or opened filed on
27,900 organizations and individuals.
The General Accounting Office reports that 48 percent of all domes-
tic security investigations were provided by an FBI informer, a
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percentage almost 3 times higher than the most commonly used source
for opening an investigation.
As recently as fiscal year 1976 the FBI budget allocated $7.4
million for its intelligence informant programs, more than twice the
sum for organized crime informers. These statistics reveal the mag-
nitude of the informer issue and its impact on associational privacy.
But the issue is even larger than the statistics indicated. Informers
are at once the most complex, comprehensive and unpredictable in-
vestigative tools that the Bureau employs. While the informer is, as
the Church committee pointed out, a vacuum cleaner for information,
the information is often distorted or inaccurate and in this respect is
far less reliable than information obtained by wiretap. Furthermore,
an informer who pretends to be a member of a political group cannot
simply gather information. He or she must participate actively in the
decisionmaking of the organization, taking stands on issues and seek-
ing to enhance their credibility by influencing the positions the or-
ganization takes and the actions it engages in.
Inevitably, as Alan Dershowitz has pointed out in his penetrating
account of a Jewish Defense League murder case in which his client
turned out to be an informer, the informer corrupts the organization:
Violence inevitably stems from a police system that recruits (and educates)
secret informers and provocateurs within a radical movement. The recruited
agent, almost by definition, is an unstable, psychotic, or psychopathic individ-
ual. His temptation to improve his status by engaging in or encouraging
violence is almost irresistible. This is what touches off the fatal chain reaction.
Violence feeds on violence and the question of who is informer, who is ter-
rorist, becomes confused beyond comprehension even by the individual involved.
In our view, the case for warrants is overwhelming. While it is true
that the Supreme Court has held that an individual has no independent
fourth amendment right to be free from warrantless informer surveil -
lence, Hoffa v. United States at 385 U.S. 293 (1966), the Court has
never directly addressed the question of what restrictions may be con-
stitutionally required when informers are used to conduct surveillance
of private, political and other associational activities. The Court has
intimated, however, that here the balance would shift and a warrant
would be required. As Justice White put it in his opinion in United
States v. White, 401 U.S. 745, 752 (1971), upholding the legality of a
wired informer targeted at an individual, our problem, in terms of
the principle announced in Kate v. United States, at 389 U.S. 397
(1967), is what expectations of privacy are constitutionally justifia-
ble?what expectations the fourth amendment will protect in the ab-
sence of a warrant. Since an expectation of associational privacy is
constitutionally justifiable, the first and fourth amendment converge
to require a warrant for the use of informers in criminal investigations
of groups.
To sum up, Congress should enact a warrant procedure similar to
title III of the Omnibus Criminal Control and Safe Streets Act and
for the use of paid and directed undercover agents by the FBI to in-
vestigate criminal acts by members of a group. No warrants should
be issued authorizing the infiltration of political organizations not
suspected of engaging in specific criminal conduct. This new procedure
is necessary to protect first as well as fourth amendment rights, and is
urgently required to ensure that political freedom will not again be
trampled upon by FBI domestic security activities.
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114
With regard to records searches, another form of intrusive search
which raises both first and fourth amendment questions is the war-
rantless inspection of private records. Most people believe in the pri-
vacy of their personal tax records, bank records, employment records
and other recorded third party information about how they lead their
lives. This expectation of privacy has often proved to be unjustified,
although in constitutional terms it would certainly appear to be justi-
fiable. As the California Supreme Court recently pointed out in in-
validating a warrantless search of copies of canceled personal checks
in the custody of a bank:
For all practical purposes, the disclosure by individuals or business firms
of their financial records to a bank is not entirely willful since it is impossible
to participate in the economic life of contemporary society without maintaining
a bank account. In the course of such dealings the depositor reveals many
aspects of his personal affairs, opinions, habits, associations. Indeed the totality
of bank records provides a virtual current biography. The development of photo-
copying machines, electronic computers and other sophisticated instruments
have accelerated the ability of Government to intrude into areas which a person
normally chooses to exclude from prying eyes and inquisitive minds. Con-
sequently, the judicial interpretations of the reach of the Fourth Amendmr,nt
constitutional protection of individual privacy must keep pace with the perils
created by these new devices.
Informal investigative searches of private records have become in-
creasingly routine in recent years. With the arrival of new comput-
erized storage systems and methods of facilitating access to and
exchange of computerized information; for example, the bank indus-
try's fledgling electronic funds transfer system, Government investi-
gations have turned increasingly to private records. At the same time,
legislation such as the Bank Secrecy Act of 1970, has facilitated
record searching by requiring private records to be retained for longer
periods of time. In short, a revolution in information technology has
far outstripped the expectations people have about the privacy of
their personal records.
There are many recent examples of informal access to bank records. Con-
gr3ssional investigations and ACLU lawsuits have uncovered the following:
A California supporter of radical causes discovered that his checking ac-
count statement had been reviewed by FBI agents when an internal bank
memo was mistakenly sent to him which read: "This memo is to authorize you
to read checks to the FBI before sending the statement to the customer. . . ."
As part of a series of FBI domestic security investigations, the bank accounts
of Jane Fonda, Dr. Benjamin Spock, Floyd McKissick and other antiwar and
civil rights activists were inspected without legal process.
A memo to FBI field offices from Director Hoover in 1968 stated: "there is
a need to compile in a single investigative report a clear-cut picture of the entire
New Left Movement which will identify its . . . sources of funds. . . ."
The FBI inspected and copied the checks of civil rights activists in
Philadelphia and Detroit to make a record of their professional ac-
tivities, including, in one case, a lawyer-client relationship.
Record researches are an important and permissible criminal in-
vestigative technique. Nevertheless, they can intrude substantially on
associational privacy and therefore raise the same first and fourth
amendment issues that arise in the ease of informer searches. Although
the Supreme Court has held that a warrant procedure is not con-
stitutionally required for bank records searches, statutory guidance is
clearly needed in this area. We propose several principles as a point
of departure. First, a person's privacy interest in bank, tax, credit,
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and employment records should be recognized by statute. Second, a
person's standing to assert his or her privacy rights over records in
the hands of third parties should be conferred by statute, on the same
basis as if the records were in his or her personal possession. Third,
Government investigators should not be able to obtain access to the
records without legal process; that is, an administrative summons,
subpena or search warrant issued on a showing appropriate to the
? method of process. Fourth, in all instances except the issuance of a
search warrant, the record subject should be given prior notice of the
proposed inspection and a reasonable time to assert his or her rights
before disclosure. These proposals are set forth in more detail in
title II of H.R. 6051, and they parallel various other pending record
privacy bills.
There is a mystique about the use of record searches in law enforce-
ment. The trail of paper and computer tape is said to be somehow
different from the trail of physical evidence?so much so that the old-
fashioned rules do not apply. Though there has been much talk about
the need for broad search powers to fight organized crime and white-
collar crime, the restriction of investigative methods within recog-
nized constitutional boundaries would not prevent vigorous law en-
forcement efforts against these types of criminal violations. Where
the impact would be the greatest is where the abuses have been the
greatest in the use of secret, unrestricted governmental access to
private records for the collection of political intelligence; access to
the telephone toll records of newpaper reporters to pinpoint the
sources of politically embarrassing inside stories ; acces to the bank
records of antiwar and civil rights groups to identify their contribu-
tors; access to the records of political opponents in election campaigns
or outspoken critics of Government policies; had a completely free
hand. Elimination of these abuses is the purpose of the procedures we
are proposing.
Senator KENNEDY. Perhaps you could give us your assessment of
the guidelines when they become available.
Mr. STTATTucK. We would be happy to accommodate you in that
regard. This is an active subject in Congress.
Mr. SHATTUCK. I have just a couple of last points. We feel that it is
critically important that at the end of all this investigative standard-
setting and abolition of the domestic security jurisdiction of the FBI
and the warrant procedures, that we still include two flat prohibitions
to reflect the record of abuses. One, the FBI should not be permitted
to investigate any person or group solely on the basis of first amend-
ment activities. That, as you know, is in the wiretap bill.
Two, the charter must ban preventive action and Cointelpro-type
activities. I think at this stage it should be noncontroversial, but the
point is that we are now in quiet times when you can assess these mat-
ters, and I think reach agreement with the Bureau that they should be
prohibited. Certainly, i in less quiet times, I think the Bureau could
very well be seeking that kind of authority again. It is important
to make sure that it is not permitted and that this specific prohibition
go into the statute.
Finally, we don't need to go into any detail about the whole question
of oversight This is something that you, Mr. Chairman, are right now
engaged in by holding these hearings. It is very important that a long-
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116
term oversight process be set up, even after the charter is enacted and
information provided to this committee and other committees.
Senator KENNEDY. Does it make any sense to develop an outside
group of citizens that would review that on an ongoing and continuous
basis and report back? I recognize the importance of congressional
oversight. I am talking about these particularly sensitive areas. I have
not formulated this in my mind, but we might explore that something
along that line with you. That is, we might get an outside group that
would review this in very careful detail in some of these areas. I don't,
obviously, think it replaces the process and procedures which you have
outlined, but there may be some means and mechanisms to get addi-
tional kinds of protections.
Mr. SuArrucx. Again, I would say that the characters should estab-
lish effective oversight mechanisms. Within the Justice Department,
the Attorney General should be required to ensure Department and
Bureau compliance with the law and to conduct a periodic review of
agency investigative activities. The Attorney General must have full
and complete access to Bureau files. Within the Congress, the Judiciary
Committee should also have access to all FBI files under appropriate
privacy safeguards, and should be required to conduct prior review
of all procedures designed to implement the legislation. The Attorney
General should be required to report FBI violations of charter pro-
visions which violate constitutional rights to the committees.
Public oversight is also necessary and requires the statute to mandate
that all investigatory guidelines and regulations be published in ac-
cordance with the Administrative Practices Act.
Mr. BERMAN. Mr. Chairman, I think the outside group is a good
idea. I know that civilian review boards are put in quotations these
days, but there is a civilian review board, and that is the Intelligence
Oversight Board for intelligence activities in the administration. It
looks at these activities as a public board. It has three members, but
maybe with wider nominating procedures like the Legal Services
Corporation, you can get a cross-section of people to participate in this.
My closing remark is that we think this is an urgent matter. The
investigatory charter is the most important thing that has to be done
with respect to the Bureau. Recently the Attorney General has been
talking about a law enforcement charter, a total charter for the FBI
which covers every aspect of their investigatory authority. I think
those are worthwhile things for this committee to consider, but I think
that they should not be further delayed for getting at this basic issue
and as more comprehensive charters develop down the line then those
titles can be fitted into it.
We should focus on this, and we particularly want to commend you,
Mr. Chairman, for attempting to get a deadline for the administration
to submit its proposals. We have been waiting for two years for this
task force which has continued to operate, but have failed to produce
a draft.
Mr. HALPERIN. I would like to say one word on informants because
I feel very strongly about the critical role of that. The cases on the
legitimacy of informants focus on the citizens' obligation to report
criminal activity. Where the informants are reporting on legal activity,
I think there is no obligation, and indeed, it becomes a disruptive ele-
ment. There are two cases now pending. One is the Socialist Workers
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Party case in New York and the other a case against the FBI in
Chicago. Both of them have produced orders by the judges requiring
turning over informants names, and both of which have produced a
great deal of information about informants and how they actually
function in domestic political organizations. I would urge this com-
mittee to look at this, perhaps by getting attorneys from those two
cases to come here and testify.
The judge in New York has said what seems to me to be the critical
point, "There is an inherent destructive force simply by the fact that
informants occupy policymaking roles where they have a clear conflict
of interest by virtue of their position as FBI informants." That is
Judge Griesa in New York after looking at the files of the Socialist
Workers Party informants.
It seems to me that two simple principles are required. One is to
prohibit FBI informants from occupying policymaking roles in po-
litical organizations. The second is to require warrants where inform-
ants are going to be in the process of gathering political information.
I think those two principles go to the heart of trying to get a control
over what remains a widely used FBI technique of having informants
in political organizations and in situations where they gather political
information.
Senator KENNEDY. Your testimony has been very constructive and
helpful; we value your help as we move forward in this inquiry. It is
valuable to me personally and other members of the committee. Thank
you.
We have your full statement which will be inserted here and we
thank you very much.
The committee stands in recess.
[Whereupon at 12:45 p.m., the committee was adjourned.]
PREPARED STATEMENT OF ACLU
We welcome the opportunity to testify here today on the urgent need to de-
velop a statutory charter to govern the Federal Bureau of Investigation and to
state our views on critical issues which must be resolved. Concurring in your
view that this is a matter of paramount legislative priority, we commend you
for initiating these deliberations and look forward to working with this Com-
mittee and the Congress in a concerted effort to enact a statutory charter into
law.
This legislation is long overdue. For two years both the Congress and the
previous and present Administration have repeatedly said that the FBI charter
is urgent, yet we are only now getting down to business.' In this regard, we are
particularly pleased that you prodded the Justice Department to come forward
in July with some kind of proposal for an investigatory charter. We also share
your view that this is the first priority and that the Administration's recent call
for a comprehensive FBI and even Federal "law enforcement" charter must not
become a reason to further delay the resolution of basic issues.2
1 E.g. Testimony of former Attorney General Edward H. Levi and Deputy Assistant
Attorney General Mary Lawton on Wednesday, Feb. 11, 1976, in "FBI Oversight", Hearings
Before the Subcommittee on Civil and Constitutional Rights of the Committee on the
Judiciary House of Representatives (94th Cong. 2nd Sess. Serial No. 2 Part 3) (Herein-
after cited as House Judiciary FBI Oversight Hearings) pp. 253-262; Testimony of Attor-
ney General Griffin Bell before the Subcommittee on Government Information and Indivi-
dual Rights of the House Government Operations Committee, June 6, 1977 ; and Recom-
mendations in the "Final Report of the Select Committee to Study Government Operations
with Respect to Intelligence Activities", Book TI, United States Senate, (94th Cong. 2d.
Session. Report 94-755 (Government Printing Office: April 26, 1976) (Hereinafter cited as
Church Committee Final Report Book II) pp. 289-341.
2 This is a recent Position of the Justice Department and the Federal Bureau of Investi-
gation. Testimony of Attorney General Griffin Bell before the Senate .Tudiciary Committee,
April 20, 1978. See also Prepared Statement of Attorney General Griffin Bell before the
Subcommittee on Civil and Constitutional Rights Committee on the Judiciary U.S. House
of Representatives, February 28, 1978.
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1
We emphasize the necessity for the Committee to focus its principal work on
defining the criminal investigatory jurisdiction of the Bureau. While we agree
with the Justice Department that a comprehensive FBI charter should be de-
veloped to place all of the Bureau's investigatory, police training, support, and
liaison functions under law, we believe there are compelling reasons for the
Committee to make the establishment of statutory standards and procedures for
FBI investigations the first order of business.
While other jurisdictional issues are of vital concern to the ACLU, as for
example, the Bureau's role in maintaining and disseminating criminal history
data, we view the investigatory charter as a matter of considerable urgency and
see no valid reason to delay its consideration and enactment pending the resolu-
tion of these other issues. When a more comprehensive charter is worked out
over time, the investigative statute can easily be included as one or more of its
titles.'
THE NEED FOR AN INVESTIGATORY CHARTER
The massive and disturbing public record of investigative abuse by the FBI
is the primary impetus for charter legislation. While we can hope that these
programmatic abuses are in the past, we must bear in mind that the central
conclusion of each of the many congressional inquiries is not that investigative
abuses were committed but that they occurred largely because the FBI's in-
vestigative powers are undefined, unchecked, and unregulated by statutory
standards and procedures.'
As the framers of the Fourth Amendment understood, the unchecked power
of the Executive branch to investigate poses a fundamental threat to constitu-
tional liberty. As the Supreme Court said in the Keith case:
"[T]hose charged with [the] investigative and prosecutorial duty should not
be the sole judges of when to utilize constitutionally sensitive means in pursuing
these tasks. The historical judgment, which the Fourth Amendment accepts, is
that unrevievved executive discretion may yield too readily to pressures to obtain
incriminating evidence and overlook potential invasions of privacy and pro-
tected speech."
Significantly, the Court, in pointing out the inherent danger of an unchecked
"executive discretion" to investigate, invited the Congress to establish statutory
standards and procedures for sensitive investigative techniques.' The essential
validity of this historical judgment and the burden of congressional responsi-
bility extend to the whole of the investigatory process.
Since the inception of the modern Federal Bureau of Investigation in 1935,8
the Congress, by enacting a multitude of criminal statutes, has greatly expanded
the criminal investigatory authority of the FBI.' At the same time, it has per-
mitted the Executive Branch to exercise a claimed "inherent power" to overlay
this authority with a formidable intelligence jurisdiction.' Yet the Congress
a See Testimony of Aryeh Neter, Executive Director, American Civil Liberties Union on
S. 2008, the Criminal Justice Information and Protection of Privacy Act of 1975 on July 16,
1975, in "Hearings on the Criminal Justice Infornmtion and Protection of Privacy Act of
1975 before the Subcommittee on Constitutional Rights of the Committee on the Judiciary
United States Senate" (94th Cong. 1st Sess. July 15 and 16, 1975) (56-833 U.S. Gov't
Printing Office Washington : 1975).
4 As for example S. 1566, the Foreign Electronic Surveillance Act of 1977 is proposed
as an eventual part of Title III of the omnibus S. 2525, the National Intelligence Reorgani-
zation and Reform Act of 1978, introduced on February 9, 1978, 95th Cong. 2(1 Sess.
5 See, e.g. Church Committee Final Report Book Note 1 supra at page 289: "The
Committee's fundamental conclusion is that intelligence activities have undermined the
constitutional rights of citizens and that they have done so primarily- because checks and
balances designed by the framers of the Constitution to assure accountability have not been
applied." See also Comptroller General of the United States, "Report to the House Com-
tnitee on the Judiciary FBI Domestic Intelligence Operations . . . Their Purpose and
Scone: Issues That Need to be Resolved" (General Accounting Office: Feb. 24, 1976) p. 26)
Hereinafter cited as GAO FBI Audit).
United States v. United States District Court, 407 U.S. 297, 317 (1972).
7 Id. at 769.
8 The Division of Investigation was first designated as the Federal Bureau of Investiga-
tion by the Act of Mar. 22, 1935, ch. 39, title II, 49 Stat. 77, and has been so designated in
statutes since that date.
For the development of the Bureau's investigative jurisdiction, see chapter on "Criminal
Jurisdiction" in Ungar, Sanford J., FBI: An Uncensored Look Behind the Walls pp. 67-83
(Atlantic Little Brown 1976).
1" See Generally "The Development of FBI Domestic Intelligence Investigations", in
Supplemental Detailed Staff Reports on Intelligence Activities and the Rights of Americans
Final Report Book III of the Select Committee to Study Governmental Operations with
respect to Intelligence Activities United States Senate (94th Cong. 2d Sess. Report No.
94-755 April 23, 1976) pp. 373-558.
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has declined to define how the FBI is supposed to exercise this authority except
In the most rudimentary fashion. The Attorney General is simply authorized
to direct the FBI "to detect . . . crimes against the United States." fl Nowhere
in the United States Code does the Congress set out standards and procedures
to guide the Bureau in detecting crime: " the basis for initiating investigations;
the standard that must be met to conduct intrusive investigations; or guidelines
to control the use of investigative meaus.13 As for the Bureau's "domestic secu-
rity" mission, the Code is simply silent."
This Congressional deference to the Executive has been destructive of civil
liberties and damaging to law enforcement. It has resulted in:
Broadscale intelligence surveillance of lawful political activity in violation of
the First Amendment right to privacy of political association;
Routine investigation of citizens without probable cause or reasonable sus-
picion of crime in both domestic security and criminal cases in violation of the
Fourth Amendment;
Extensive use of paid and directed informants without adequate guidelines
or procedures for independent review contrary to the spirit and purpose of the
Fourth Amendment;
Inspection of confidential records without subpoena in violation of the Fourth
Amendment; and
Use of investigative techniques to "chill speech" in violation of the First
Amendment."
This list does not even include clearly illegal activities such as use of intru-
sive surveillance techniques (e.g., break-ins, wiretaps, mail-opening) without
judicial warrant or COINTELPRO actions to "disrupt and neutralize" political
groups."
While most of the public record available relates to investigative abuse com-
mitted by the FBI in its conduct of domestic security operations, there are re-
11- 28 U.S.C. 533.
" Former Attorney General Edward H. Levi interpreted the "detect" clause of 28 U.S.C.
533 to mean that the Bureau must follow a criminal standard of "investigating persons or
Incidents when there is a reason to believe that a federal crime has been or is likely to be
committed so that the violators can be prosecuted or the crime prevented." See Attorney
General Edward H. Levi, Address to the American Bar Association, August 13, 1975. But
of course, that was not the interpretation of former officials of the Department of Justice
nor necessarily the interpretation of future Attorneys General.
" Section 3052 of Title 18 defines the powers of Bureau agents such as carrying firearms,
serving warrants, and subpoenas, but only sets a standard for arrest: "with or without
warrant for any offense against the United States committed in their presence, or for any
felony cognizable under the laws of the United States if they have reasonable grounds to
believe that the person to be arrested has committed or is committing such felony."
"Former Attorney General Edward H. Levi found authority for "non-criminal" intelli-
gence investigations in clause 3 of 28 U.S.C. 533 which authorizes the Bureau to "conduct
such other investigations regarding official matters under the control of the Department of
Justice and the Department of State as may be directed by the Attorney General." See
Attorney General Edward H. Levi, Address to the American Bar Association, August 13,
1975. But the history of this language, originally in the Bureau's appropriations bill, indi-
cates that only foreign intelligence or counterintelligence investigations could have been
intended and not domestic security investigations. That is why the FBI relied so heavily
on President Roosevelt's Executive Directive of September 1939. See Development of FBI
Domestic Intelligence Investigations, Note 10 supra, pp. 395-407. In should be noted how-
ever, that the FBI has, over its history used the "penumbra" interpretation of certain
political conspiracy statutes like the Smith Act, 18 U.S.C. 2385 and the Voorhis Act, 18
U.S.C. 2384 to derive an intelligence authority from what were intended as criminal
statutes under which persons were to be prosecuted. See Development of FBI Domestic
Intelligence Investigations, Note 10 supra, pp. 448-454. But particularly, see "Brief on
FBI Authority For Domestic Intelligence Investigations" in GAO FBI Audit, Note 5 supra,
Appendix IV, pp. 199-200. Both the GAO and the present Attorney General, Griffin Bell,
are "uncertain" whether the FBI has statutory authority to conduct domestic intelligence
investigations. Id. at 209; Testimony of Attorney General Griffin Bell before the Subcom-
mittee on Government Information and Individual Rights of the House Government Opera-
tions Committee, June 6, 1977.
11 See Generally Church Committee Final Report Book II, Note 1, supra, See also
Halperin? Morton H. and Berman, Jerry J. eds., The Abuses of the Intelligence Agencies
(Center for National Security Studies: 1975) ; and Helperin, Berman, Borosage. and
Marwick, The Lawless State: The Crimes of the U.S. Intelligence Agencies (Penguin 1976)
10 See sources cited at Id. and also the following Reports "COINTELPRO : The FBI's
Covert Action Programs Against American Citizens" ; "Warrantless FBI Electronic Surveil-
lance", "Warrantless Surreptitious Entries: FBI 'Black Bag, Break-ins And Micronhone
Installations"; and "Domestic CIA and FBI Mail Opening" in Sunplementary Detailed
Staff Reports on Intelligence Activities and the Rights of Americans Final Report Book III
of the Select Committee to Study Governmental Operations with respect to Intelligence
Activities United States Senate (94th Confi. 2d Sess. Report No. 94-755 April 23, 1976)
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1
ports that "black-bag jobs," "suicide taps" and other abuses have also occurred
in FBI organized crime investigations."
The damage to law enforcement is obvious. In pursuing the dissenter and the
merely suspect, and in overreaching the law, the Bureau has squandered valu-
able public resources ' which should have been devoted to serious crime, de-
stroyed public trust in its own institution, and exposed agents to civil and crimi-
nal liability.
We cannot and should not rely primarily on the courts to resolve these basic
issues. In criminal cases, the only means the courts have to control the investi-
gatory function is the exclusionary rule. But increasingly the rule is looked on
with disfavor by both judges and legal scholars.' It is obviously ineffective in pro-
viding standards or remedies for investigative abuses in a majority of cases which
are never prosecuted, and in all intelligence investigations where prosecution is
not the aim." Although we believe it is required by the Fourth Amendment, the
exclusionary rule is wholly inadequate as a mechanism for establishing general
investigative policy, the primary objective here, since review is on a case-by-case
basis. In a number of recent decisions, the Supreme Court has strongly suggested
that it is the Congress that must legislate standards and procedures for investi-
gations.'
Reliance on Executive control of investigations is the very core of the prob-
lem which legislation must redress. Despite the promise of the Justice Depart-
ment to develop guidelines for all investigations two years ago, the existing guide-
lines remain incomplete. Domestic Security Guidelines have been promulgated
but there are no similar guidelines for criminal investigations.' Moreover, al-
though more strict than previous internal security procedures, the current Do-
mestic Security Guidelines authorize ongoing intelligence investigations of law-
ful political activity and can be read to permit many of the same kinds of in-
vestigations that the Congress has so recently criticized.'
" "F.B.I. Crime Inquiries Reportedly Tainted", New York Times, October 6, 1977, p.
A-1 ; "New Inquiry By U.S. Into F.B.I. Activities", New York Times, October 8, 1977, n. A
24. See Villano, Anthony, Brick Agents Inside the Mafia for the FBI (Quadrangle 1977).
"According to the Church Committee, the cost of FBI domestic intelligence is $20 mil-
lion annually. Church Committee Final Report Book II. Note 1, supra, p. 18. The General
Accounting Office audit shows that most of this money was spent on useless, overboard
investigations. See GAO FBI Audit, Note 5, supra. The GAO reaches the same conclusion
in its followup report. Report of the Comptroller General of the United States, "FBI
Domestic Intelligence Operations : An Uncertain Future" (November 9, 1977) (hereinafter
cited as Followup GAO FBI Audit). This is discussed infra. In the Organized Crime area,
the GAO states that strike forces have wasted $80 million in the last decade. Report to
the Congress by the Comptroller General of the United States, "War on Organized Crime :
Faltering Federal Strike Forces Not Getting Job Done (March 17, 1977) (hereinafter cited
as GAO Organized Crime Study).
"See e.g. Amsterdam, Anthony G. "Perspectives On The Fourth Amendment, 58 Minn.
L. Rev. 348 (1974).
23 See e.g. Terry v. Ohio, 392 U.S. 1, 13-15 (1968).
"Id. See also United States v. United States District Court, 407 U.S. 297 (1972) ; Laird
V. Fatum, 408 U.S. 1, 15 (1968) : "(S)uch a role ('to confine the military to their legiti-
mate sphere of activity and to protect appellants' allegedly infringed constitutional rights')
is appropriate for the Congress acting through its committees and the 'power of the
Purse'.'......
" Justice Department Guidelines for Domestic Security Investigations, March 10, 1976;
White House Personnel Security and Background Investigations; Reporting on Civil Dis-
orders and Demonstrations Involving a Federal Interest; and Use of Informants in
Domestic Security, Organized Crime, and other Criminal Investigations (January 5, 1977)
23 Despite a 2-year promise to develop guidelines in all investigative areas. this Com-
mittee knows from the testimony of the Department on April 20, 1978 that the task has
not been accomplished. A little less than one year ago, the Department Task Force, estab-
lished during the Ford Administration but which operates also in the Carter Administra-
tion's Justice Denartment stated that "originally" we "had intended . . . that we would
draft all the guidelines to cover not only domestic security but also the whole range of
investigative activities that the FBI is engaged in. That wasn't possible, so we adopted
guidelines as we went along." Testimony of Justice Department Task Force Officials on
FBI Charter Proposals and the Attorney General's Domestic Security Guidelines, before
the Subcommittee on Civil and Constitutional Rights of the Judiciary Committee of the
House of Representatives. June 6, 1977 (hereinafter Justice Department and FBI 1977
Testimony), (quote from draft hearing transcript.)
24 While the problem here is that guidelines however strict might change, the Justice
Department Guidelines are not very strict. Although these guidelines are not before ns to-
day, a couple of observations. The Church Committee pointed out that intelligence officials
inside the FBI interpret the Guidelines to authorize continuing investigations of "subver-
sives." Church Committee Final Report Book II, Note 1, supra, p. 318. The Committee also
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Most important, the Guidelines derive their authority from the Executive's
claim of an "inherent power" to conduct intelligence investigations.' In the past,
this claim has permitted the exact scope of the investigatory power to remain
nebulous. In the absence of public debate. Executive guidelines have been and
may always be interpreted broadly.' Even strict guidelines may be altered by a
stroke of the Executive pen. The Bureau has already represented that some of
the guidelines are too restrictive." The Administration has found that criminal
investigative guidelines are "not possible" to develop.' Guildelines, as the Ad-
ministration has so aptly put it, are only "stop-gap measures." They do not re-
solve basic issues.
Only an investigative charter can provide a firm foundation for civil liberties
Guidelines and the election of a new Administration make no lasting funda-
mental changes. The primary reason for the decline in the number of investiga-
tions, according to the Bureau, is that "the political/social climate changed." 30
Today the FBI is only investigating individuals and organizations who have com-
mitted criminal acts." But the social climate will certainly change. Civil liberties
should not rest on mere circumstance. The Carter Administration has left the
door open for a reassertion of broad inherent powers in the domestic security
area. It has never admitted error or offered to settle any of the many civil suits
challenging past abusive surveillance practices." Without statutory redress, Con-
gress invites repetition of past abuse. Executive discretion perpetuates the danger
of overzealous efforts to "detect" crime,
interpreted them as on their face overboard. Id. As did the GAO, in concluding that "the
language in the draft guidelines would not cause any substantial change in the nmr.ber
and type of domestic intelligence investigations initiated." GAO FBI Audit, Note 5 supra,
p. 150. The GAO interpretation was of earlier drafts of the Domestic Security Guidelines.
But in the finally promulgated guidelines of March 10, 1976, the standards of investigation
articulated were not much tighter. Although stating that the purpose of investigations was
to ascertain "information on the activities of individuals, or individuals acing in concer,
which involve or will involve the use of force or violence and the violation of federal law,"
the "involve of will involve" standard is diluted by following sections which authorize
the FBI to initiate preliminary investigations on the basis of mere "allegations" and full
investigations if persons or groups "may be" engaged in activities that involve or will
involve violence. The Attorney General, Edward Levi, admitted that a more "flexible"
standard was required to explain the choice of "may be" over "are involved" or "will he
involved." See Testimony cited at Note 1 supra. We believe the Guidelines recodify
in Executive Order the premise the FBI has always used to investigate possible violation
of the Smith Act, 18 U.S.C. 2385. First the person or group does not have to be engaged in
violence but simply "Involved" or at some time "involved" in activities which are violent.
Their intent may be legal and others illegal but no matter. Second, the threat of violence
may be in the distant future. Full investigations are based on a "may be" standard rather
than the more definite "will involve" standard which comes at the preamble of the Guide-
lines. Efforts to make the test more definite by talking about the Bureau weighing the
magnitude of the harm and likelihood of its occurrence do not work because there is no
explanation of how to weight the balance. For example. if the harm would be large, "over-
throw of the government", the FBI could argue that the likelihood of its occurance could
be remote. This is a standard that leaves us right where we were before the Guidelines.
Although the number of Bureau investigations is down substantially, the major reason.
as Bureau officials admit, is that the "social/political climate changed" and because the
FBI is operating on even more strict guidelines for "quality over quantity" which focus
Investigations on persons or groups with a long-history of violence or who are reasonably
believed to have committed crimes of violence. See Justice Department and FBI 1977
Testimony, Note 23 supra.
28 If there is no statutory basis for the Domestic Security Jurisdiction of the FBI, as
pointed out in Note 14 supra. then the G,,Ideliaes can only he authorized under claim of
inherent power to conduct national security intelligence activities.
28 See Committee on Federal Legislation of the Association of the Bar of the City of
New York, "Legislative Control of the FBI" p. 10 (May 1, 1977) (hereinafter cited as
New York Bar Report)
al "We do . . . have some concern about the limitation on the use of previously estab-
lished informants. . . . We hoped to deal with informants in greater depth and detail and
give far greater consideration then we were able to devote at the time the domestic
security guidelines were adopted and for that reason some of the rules are stated in rather
shorthand fashion and will have to be thought out again." Justice Department and FBI
1977 Testimony, Note 23 Supra (quotes from hearing transcript).
28 mid.
20 mid.
30 Ibid.
al Ibid.
33 The present Justice Department is arguing proper investigative conduct in the follow-
ing exemplary cases: Halperin v. Kissinger (D.D.C. 1187-73) (reasonableness of wiretap.
Immunity of President or Government officials from liability) ; Halkin V. Helms, Civil
Action No. 75-1773 (D.D.C.) (legality of warrantless NSA electronic surveillance and lack
of harm to First Amendment rights arising out of CIA Operation CHAOS) ; Lamont .v.
17.S. Civil No. 77?c-1029 (E.D.N.Y.) (no liability for illegal mail opening) ; Socialtst
Workers Party v. Attorney General, 73 Civ. Action 3160 (S.D.N.Y.) (legality of 40 year
surveillance).
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Today we will focus our testimony on the case for the five basic reforms which
a statutory charter must institute,:
First, the charter must abolish the domestic intelligence jurisdiction of the
FBI.
Second, the charter must only authorize intrusive investigations pursuant to a
criminal standard, excluding conspiracy as a basis for investigation when First
Amendment activity may be involved. The purpose of such investigations should
be the gathering of evidence for arrest and prosecution.
Third, the charter must establish strict statutory procedures governing investi-
gations which may intrude on lawful First Amendment activity in order to in-
sure that they are properly authorized and conducted so as to minimize the
intrusion.
Fourth, the charter must establish a judicial warrant procedure governing the
FBI's direction of informants or undercover agents to infiltrate associations in
authorized criminal investigations.
Fifth, the charter must prohibit the FB]I from engaging in "preventive action"
or COINTELPRO-type activity.
These proposals are embodied in the model legislation, A Law to Control the
FBI," and in H.R. 6051," now before the House. Although they are controversial,
we hope that over the course of these hearings the Committee and the Congress
will become convinced that their enactment is both wise public policy and neces-
sary for the protection of fundamental constitutional liberties.
THE CASE AGAINST DOMESTIC SECURITY INVESTIGATIONS
Domestic security investigations are intelligence investigations undertaken by
the Federal Bureau of Investigation primarily to prevent acts of political vio-
lence rather than to effect criminal prosecution. Although the FBI never recog-
nized such a distinction in the past, domestic security investigations are today
defined as distinct from counterintelligence investigations because the violent
acts they are intended to anticipate and prevent are not undertaken for or on
behalf of a foreign power. Most of the intelligence investigations conducted by
the FBI, from investigation of "subversive activities" to investigations of radi-
cals and extremists, in fact fall in this category.' Today domestic security in-
vestigations are authorized to anticipate and prevent the violent overthrow of
the government, civil disorders, and domestic terrorism.'
The value of domestic intelligence does not outweigh the risk to civil liberties.
Over the course of our history, we have always recognized the tension between
maintaining an open, democratic society and protecting that society from violent
disruption. Repeatedly we have established "domestic security measures" in re-
sponse to perceived threats to our social order. In every case, from the Alien and
Sedition Acts through the "Palmer Raids" in the 1920's and the loyalty and
8.1 Committee for Public .Tustice, The American Civil Liberties Union, and The Center
for National Security Studies, A Law to Control the FM, Feb. 15, 1977.
H.R. 6051, 95th Cong. 1st Sess. April 5, 1977. See also H.R. 4173, 95th Cong. 1st Sess.
March 1, 1977. (In H.R. 6051, domestic security investigations are prohibited and
criminal investigations regulated in Titles I and II In H.R. 4173, see Tables II and III,
including the warrant requirement for the use of informants.)
'15 The Church Committee made no distinction between counter-intelligence and domestic
security investigations in making its recommendations. See Recommendation 44, Church
Committee Final Report, Note 1, sunra, p. But S. 1566. the Foreign Intelligence Surveillance
Act of 1977 does recognize a distinction and includes lower standards for counterintel-
ligence and counterterrorism investigations involving wiretapping than presently exist for
domestic security wiretaps which are governed by The Safe Streets Act under a Probable
Cause of Crime Standard. The line is difficult to draw, but the issue is mooted for us by the
sure passage of S. 1566 and its House counterpart H.R. 7308, unless we permit lower
standards in domestic security investigations.
,A3 See Development of FBI Domestic Intelligence Investigations, Note 10, supra, notes
the historical blurring of investigations premised on counteracting communist influence
COMINFIL and later investigations of civil rights groups, anti-war activists, civil dis-
orders, and the rest. We contend that most of these investigations were premised on "anti-
communism" and the belief that violence and disorder were communist insnired. Remove
the anti-communist bias and these investigations are investigations of "home grown
tomatoes" as the FBI referred to the Socialist Workers Party. But caution that to maintain
the "foreign connection" premise or presumption, however developed, would blur the
distinction in the future. The Congress will have to deal with the boundary line between
counterintelligence and domestic security or criminal investigations. If the boundaries are
not drawn in favor of higher standards and a presumption that a foreign power is not
involved, domestic security guidelines or statutes prohibiting these investigations will not
protect citizens since "foreign connection" is so easy to find and may be involved in most
cases.
al See Domestic Security Guidelines of March 10, 1976, cited at note 22 supra.
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security programs in the 1850's, to the recent revelations of massive covert FBI
surveillance and disruption of lawful political activity over the last four decades,
these measures have proved far more damaging to our society than protective
of it.
Yet today we are considering the continuation of a domestic intelligence juris-
diction for the FBI. The new threat to which we are responding is political
terrorism.'s Persistently we rely on these demonstrably dangerous measures be-
cause of our stubborn adherence to two basic assumptions: (1) that it is possible
"to draw the fine line between legitimate conduct and illegitimate investigation
of advocacy and association" and thereby minimize the threat to civil liberties;
and (2) that domestic security operations can substantially prevent or reduce
political violence. These assumptions permit the assertion that "on balance" the
benefits outweigh the risks. The only problem then is to design proper guidelines
and effective oversight.89
These assumptions are thoroughly debunked by the evidence. By definition
domestic intelligence investigations require surveillance of lawful political ac-
tivity. Particularly in times of social turmoil, those charged with a preventive
intelligence mission have been unwilling or unable to distingush between vigor-
ous citizen dissent and real security threats." At least in part because of this
misdirection, domestic intelligence operations have failed to accomplish their
goal. Moreover, there is significant evidence that these efforts are counterpro-
ductive in stemming political violence and often have the opposite effect. Given
these facts of life, sound public policy, based on the need to protect fundamental
constitutional rights as well as society from serious violence, must reject this
fruitless and dangerous course.
Reaching this conclusion in no way implies that we do not consider terrorism
to be a serious potential threat to the fabric of our society and to our democratic
institutions. Rather it is based on a large body of empirical evidence on the
public record which, contrary to traditional dogma, indicates that preventive
intelligence, to the extent that it is conducted within "tolerable boundaries," is
useless for preventing terrorism and that "less intrusive means" may well be
more effective. The evidence indicates that "more of the same" is not what is
called for in meeting this serious potential threat. The Committee should use
the opportunity afforded by calmer times to make different and wise public policy.
1. Drawing the line is impossible
It is not difficult to fathom why the Church Committee found its effort "to
draw the fine line between legitimate conduct and illegitimate investigation of
advocacy and association" for preventive intelligence investigations "the most
difficult . . . to draft.' Nor is it hard to understand why the Justice Depart-
ment's effort to do the same is interpreted by some FBI officials to authorize con-
tinuing investigation of "subversives." 42 It is simply not possible to make the
necessary distinction within the framework of a domestic intelligence authority.
If their objective is to permit the FBI to prevent a crime before it occurs,
intelligence investigations, by definition, must be initiated without reasonable
suspicion that a criminal act has been, is being, or is about to be committed."
FBI agents will inevitably focus investigative attention on persons who vigor-
ously dissent against government policy or social conditions, or groups who advo-
cate the need for radical, or revolutionary change, even though these activities
g8 See Statement of Clarence Kelley, Director, FBI, before the Civil and Constitutional
Rights Subcommittee of the House Judiciary Committee, February 11, 1976, in House
Judiciary FBI Oversight Hearings, note 1, supra, pp. 262-65. See generally, National
Advisory Committee on Criminal Justice Standards and Goals, Report of the .Task Force
on Disorders and Terrorism (LEAA 1976) Rejecting the focus on "subversives" in the
Justice Department Guidelines, the Church Committee recommended a more narrow focus
on terrorism. See Recommendation 44 Discussion, Church Committee Final Report Book II,
pp. 320-323. How much more narrow this could turn out to be is debatable.
30 A most exemplary statement of this balancing technique in the domestic security area
is the reasoning of the Supreme Court in the Keith case. United States v. United States
District Court, 407 U.S. 297 (1972).
43 The Keith case, cited in note 39 supra, also contains the warning that domestic security
"standards" are overrun as a matter of historical fact in our history. See quote at page 25
Infra from 407 U.S. 297 at 314.
43 Church Committee Final Report Book II, Note 1, supra at p. 321.
49 See discussion, note 24 supra.
43 Recent amendments have changed the National Security Wiretap Standard for target-
ing persons engaged in international terrorism from probable cause to a reasonable suspicion
because of the need for greater flexibility to prevent the harm from occuring. See Report
to Accompany S. 1566 from Senate Committee on Intelligence (Report No. 95-701, 95th
Cong. 2d. Sess. March 14, 1978), p. 26.
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124:
are constitutionally protected. Dissenters are visible and reasonable targets of
intelligence investigations which are supposed to prevent politically motivated
violence. Moreover, if the investigative purpose is to piece together a "web of
intelligence" which intelligence agents claim to require to distinguish the real
threats of political violence from "legitimate conduct," investigators have to
gather information about all of the plans, activities, beliefs, associations and
memberships of suspect individuals and groups." This danger is particularly
acute when the principal investigative technique is the planted informer who
cannot be entrusted with the decision to decide what is relevant or significant
activity which may signal possible violence." The inevitable result is the very evil
which the guidelines and charters are intended to prevent: ongoing investigations
of lawful political activity in violation of free speech and associational privacy
protected by the First Amendment," unreasonable searches and seizures in viola-
tion of the Fourth Amendment,' and a concomitant "chilling effect" on all po-
litical activity when citizens are subjected to a fear of investigation, exposure,
and reprisal if they engage in unpopular political activity.?
Because the specifics of the Justice Department Guidelines and the Church
Committee Recommendations are not at issue at this time, we simply point out
that we have analyzed them in terms of their potential overbreadth and con-
cluded that they can be interpreted to permit many of the kinds of investigations
which occurred in the past.? The late Senator Philip Hart expressed our view
succinctly in his dissent from the Church Committee's recommendation:
"The Committee was concerned about authorizing such extensive investiga-
tions before there is a 'reasonable basis of suspicion' the subject will engage in
terrorism. The Report offers examples of how this recommendation would work,
and indicates our desire to insulate lawful political activity from investigation of
terrorism. But these very examples illustrate how inextricable the two may be
at the outset of an inquiry into an allegation or ambiguous information. The
task of finding out whether a dissident is contemplating violence or is only in-
volved in vigorous protest inevitably requires investigation of his protest
activities. In the process, the FBI could follow the organizers of the Washington
peace rally for three months on the basis of an allegation that they might also
engage in violence."'
While some may argue that this is a strained reading of the Guidelines and
Church Committee recommendations, tumultuous times produce such interpre-
tations. President Roosevelt's secret 1939 Executive Directive only instructed the
FBI to investigate violations of sabotage, espionage, treason, and violations of
the neutrality laws. This Directive became the principal basis for much that
followed.0
"For the expression of this view, see Response of former FBI Director Clarence M.
Kelley to the GAO FBI Audit and critique of the Guidelines in GAO FBI Audit, note 5
supra, Appendix V, p. 213: "Limiting domestic intelligence investigations to preventing
force and violence could restrict the gathering of intelligence information useful for antici-
pating threats to national security of a more subtle nature. This is the case because, in
our view, such a limitation would protect from governmental inquiry those plotting to
undermine our institutions during their preliminary stages of organization and preparation
and thus inhibit the development of an intelligence college upon which to base meaningful
analysis and predictions as to future threats to the stability of our society." (Emphasis
Supplied)
"The basis, we believe, for the "vacuum cleaner" metaphor for what informants do
with respect to private information?sweep it up without distinctions being made. See
"The Use of Informants in FBI Intelligence Investigations" in Supplementary Detailed
Staff Reports on Intelligence Activities and the Rights of Americans Final Report Book
III of the Select Committee to Study Governmental Operations with respect to Intelligence
Activities United States Senate (94th Cong. 2d Sess.) (1976) pp. 225-271.
"A line of cases develop these propositions, e.g., NAACP v. Alabama, 357 U.S. 449
(1958) ; Bates v. Little Rock, 361 U.S. 516 (1960) ; Buckley v. Valleo, 424 U.S. 1 (1976)
See discussion infra on use of informants without judicial warrant for their exposition.
47 United .States v. United States District Court, 407 U.S. 315,313-14 (1972) : " 'Historic-
ally the struggle for freedom of speech and press in England was bound up with the issue
of the scope of the search and seizure power' Marcus v. Search Warrant, 367 U.S. 717 . . .
(1961)."
"NAACP v. Button, 371 U.S. 415 (1963) but see Laird v. Tatum 408 U.S. 1 (1972)
stating that there is no standing to challenge the existence of an intelligence system merely
because it exists. "Allegations of a subjective 'chill' are not an adequate substitute for
a claim of specific present objective harm or a threat of specific future harm . . ." Id. at
14. Note however, that the Court noted that the allegations were of surveillance by overt
techniques. "We are not cited to any clandestine intrusion by a military agent." Id. at 9.
Recent cases have distinguished Laird on this ground, when specific intelligence activities
are alleged. E.g. cases cited at note 32 supra.
49 See discussion in Note 24 supra.
"Church Committee Final Report Book II, Note 1, supra at 359-60.
"See generally Development of FBI Domestic Intelligence Investigations, Note 10, supra,
particularly 405-07.
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2. Preventive intelligence is. ineffective and counterproductive
The inevitable costs of these intelligence activities require the Congress to
carefully assess their value before authorizing them. Based on the public record,
the Bureau's "offer of proof" to support its mission, and the General Accounting
Office s intensive audit of FBI Domestic Intelligence, and its follow-up study
appropriately titled "FBI Domestic Intelligence Operations: An Uncertain
Future," 52 there is literally no evidence to support the value of domestic intelli-
gence in anticipating or preventing acts of political violence.
According to the Church Committee, "between 1960 and 1974, the FBI con-
ducted over 500,000 separate investigations of persons and groups under the
'subversive' category, predicated on the possibility that they might be likely
to overthrow the government of the United States. Yet not a single individual or
group has been prosecuted since 1957 under laws which prohibit planning or
advocating action to overthrow the government
According to the GAO audit of some 17,528 FBI domestic intelligence investi-
gations of individuals in 1974, only 1.3% resulted in prosecution and conviction,
and in only "about 2%" of the cases was advance knowledge of any activity?
legal or illegal?obtained!'
In reviewing 101 organization files, the GAO found only 119 instances where
activities where anticipated by the FBI. Only 12% of these activities could con-
ceivably involve violence. There is no record of whether the FBI prevented any
of this potential violence. The FBI contends these statistics might be unfair
because they concentrate on individuals rather than groups. In response, GAO
states that its "sample of organizations and control files were sufficient to de-
termine that generally the FBI did not report advance knowledge or planned
violence." In most of the 14 instances where such advance knowledge was ob-
tained, it related to "such activities as speeches, demonstrations or meetings?
all essentially non-violent." 55
invited to supply more supportive information to the Church Committee, the
FBI produced a memorandum in which 3 cases of prevention were detailed.56
The general finding of the GAO establishes that the anticipation or preven-
tion of violence by the FBI just does not happen. "Investigations of sabotage,
certain bombings, and riot violations, and protection of foreign officials, al-
though handled as part of the FBI's domestic intelligence oeprations, usually
involved criminal acts committed before the investigations were initiated." 57
One of the main reasons advanced for expanded collection of information
about urban unrest and anti-war protest was to help responsible officials cope
with possible violence. However, as the Church Committee reports, a "former
White House official with major duties in this area under the Johnson Adminis-
tration has concluded in retrosepct that 'in none of these situations . . . would
advance intelligence about dissident groups [have] been of much help,' and that
what was needed was 'physical intelligence' about geography of major cities,
and that the attempt to 'predict violence' was not a successful undertaking:: 58
The Bureau's failure occurred during a period when it operated covertly "with
no holds barred." 58 None of the major outbreaks of political violence which are
cited to support the need for a preventive intelligence jurisdiction were antici-
pated or prevented: the civil disorders of the 1960's, the campus disorders of the
1970's, the Capitol Bombing, the political assassinations and attempts, the violent
activities of the Weather Underground or the KA.?
So long as "prevention" remains the goal of domestic security investigations,
new restrictions and procedures will further insure failure. The often heard
criticism that these restrictions, necessary to protect civil liberties, will "tie the
hands" of the FBI's intelligence agents is not unfounded." The follow-up Report
42 Followup GAO FBI Audit, Note 18 supra.
43 Church Committee Final Report Book II, Note 1, supra, p. 19.
54 GAO FBI Audit, Note 5, supra, pp. 140-144.
44 Ibid. p. 144.
55 Church Committee Final Report Book II, Note 1, supra, p. 18, fn 101.
61 GAO FBI Audit, Note 5, supra, pp. 3-5.
'58 Church Committee Final Report Book II, note 1, supra. p. 19. Testimony of Joseph
Califon?.
42 "This is a rough, tough, dirty business, and dangerous. It was dangerous at the times.
No holds were barred. . . . This is a rough, tough business." as William C. Sullivan the
late and former Assistance to the Director put it. "COINTELPRO : The FBI's Covert
Action Programs Against American Citizens" in Supplemental Reports. Note 16 supra, p. 7.
65 See examples cited by Clarence M. Kelly in his testimony cited as note 38 supra.
62 See Report on Disorders and Terrorism, Note 38 supra, pp. 145-148: "Many of the
approaches to legislative regulation now under discussion would seriously compromise the
ability of police to cope with the problems of criminal disorders and terrorist activities." Id.
at 146.
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of the General Accounting Office Report, FBI Domestic Intelligence Operations:
An Uncerta4n Future, realistically describes the dilemma:
"Despite the improvements in the direction and control of domestic intelligence,
there are still few visible results. . . . Realistically this may be the best that
can be expected, particularly in view of the greater investigative restrictions
now placed on the FBI and [in view of] its past record when there were fewer
restrictions and less control." [Emphasis supplied.] "
Moreover, there is considerable evidence that preventive intelligence measures
are in fact counterproductive. Instead of serving to detect and prevent violence,
they have the opposite effect of making crime detection more difficult and violence
more likely.
By focusing on the dissenters and protesters in order to ferret out potential
violence, intelligence agencies play into the hands of terrorists. As the aim of
the terrorist is to both intimidate and create symapthy for his or her cause by
convincing people that repression makes violence necessary, overreaction by
authority is a key element in the strategy. If police investigate innocent persons
or those sympathetic to the "cause" of the terrorist, the police confirm or appear
to confirm the 'truth about repression. By violating constitutional rights, intelli-
gence agencies unwittingly help to promote the success of terrorist tactics."
By engaging in overbroad surveillance, intelligence agencies create paranoia
and distrust of the police which makes detection of terrorists more difficult. To
cite just two examples, the reason why the FBI has had great difficulty in over-
taking the SLA and Weather Underground is that a significant segment of the
public has been unwilling to establish their whereabouts to the police and some
people have helped these groups stay underground. Intelligence investigations
have made them "enemies" of the police and they wrongly but understandably
identify with other "enemies" of the police. Without public trust in police
authority, which is undermined by surveillance or fear of surveillance, FBI
criminal investigators are hindered in legitimate efforts to enforce the law."
Finally, by taking "preventive actions" or using illegal means, an intelligence
agency becomes the mirror image of the terrorists it is supposed to thwart.
When a police agency becomes a kind of terrorist organization using intimidation
and violence to achieve public ends, that is a far worse threat than Black Septem-
ber or FALN, or SLA. Official terror is the ultimate evil in modern times,' and
the FBI, as the public record shows, used tactics in its intelligence mission
which we associate with police states: from the compilation of emergency deten-
tion lists to COINTELPRO.
A total change in emphasis is required. Instead of focusing on political dissent,
the FBI should zero in on illegal conduct. The appropriate alternative is criminal
investigations conducted under strict standards and procedures. Both the admin-
istration and key elements of the Congress are apparently coming to the same
conclusion."
When we first testified in favor of prohibiting domestic intelligence investiga-
tions two years ago, only the Pike Committee and 87 a number of public organiza-
Followup GAO FBI Audit, Note 18 supra, o 6.
53 Hacker, Frederick J., M.D., Crusaders, Criminals, Crazies: Terror and Terrorism in
Our Time (Norton 1976).
" Ibid. 137-78. "Between seven and twelve people succesfully evaded literally thousands
of FBI and other security forces mobilized for the specific purpose of discovering them.
The SLA members did not even feel compelled to keep a low profile. They popped up
periodically in Berkeley or in San Francisco . ." Id. at 158. "Five hundred ninety-one
days passed betwen Patty's totally involuntary kidnapping by the SLA and Tania's totally
involuntary capture by the FBI." Id. at 169.
65 Ibid. p. 4: "Even in democratic societies, counterterrorist activities can, by use of
electronic surveillance, clandestine infiltration, illegal searches, and similar actions,
compound the violation of the values that they intended (or pretend) to protect. Inad-
vertently or by design, counterterrorist campaigns often adopt the tactics they presumably
abhor and for the sake of efficiency, become as terroristic as the activities against which
they fight." See Hacker Generally on this point. See also, Rosenbaum, Jon H. and Seder-
berg. Peter C., eds. Vigilante Polities: Order without Law. Defining the problem, they use
the term "Official vigilantism." Id. at 16.
" As Hacker states, "Lip service is readily given to the novelty of the phenomenon of
modern terrorism, but nobody dares touch the traditional law enforcement routines . . .
These days everybody is willing officially to acknowledge the necessity for novel measures
In meeting moral challenges; but when it comes to brass tacks, the brass wants to depend
on the old methods that have failed . . ." Ibid. at 246.
07 Recommendations of the House Committee on Intelligence, Feb. 11,1976, House Report
94-833 (recommending abolition of the Internal Security Branch of the FBI).
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tions," including the United Automobile Workers and Common Cause, advocated
a similar flat ban." Both the Justice Department under former Attorney General
Levi " and the Senate Select Committee on Intelligence Activities (the Church
Committee) 71 recommended that the Congress authorize limited preventive in-
telligence investigations because of the necessity to "anticipate and prevent"
political violence before it occurs.
Recently, however, a number of House members,72 including the Chairman of
the FBI Oversight Committee of the Judiciary Committee, the newly constituted
Senate Intelligence Committee, and the Justice Department have taken the posi-
tion that criminal investigative standards under strict procedures should be used
in domestic security related cases. Chairman Don Edwards of the FBI Oversight
Committee has introduced legislation which would accomplish this result (HR.
1040)." The Chairman of the Senate Intelligence Committee, Senator Birch Bayh,
also a member of this Committee, announced on February 9 of this year that the
Intelligence Committee had declined to include domestic security investigations
in the foreign intelligence charter, S. 2525, "because they should be treated as
law enforcement rather than intelligence functions." 74 Now the Attorney General
has adopted a similar view, which he described in recent testimony before the
House Judiciary Committee:
"Last year we begav, efforts to draft legislation dealing with the domestic
security investigations of the FBI. It quickly became apparent, however, that
it is unsound, both legally and practically, to isolate this particular subject from
other areas of FBI criminal investigative responsibility. There is no real differ-
ence between investigations of criminal enterprises bent on violence for political
motives and criminal enterprises bent on violence to extend the influence of
organized crime for economic gain. Murder, assault, bombing and extortion are
weapons equally adapted to calling attention to a political cause or enforcing a
loan-sharking or kickback agreement. Whatever the motivation, the same inves-
tigative techniques come into play in attempting to identify the persons or organi-
zations behind these acts, determining who provides the leadership and bringing
a halt to such crimes. The only distinction is that greater safeguards for the
protection of First Amendment rights should be provided by the investigation
of crimes undertaken for political reasons. [Emphasis supplied.] "
The FBI's current policy in the domestic security area is itself a compelling
argument for the appropriateness of abolishing the dometstic security jurisdic-
tion. The Bureau has transferred all domestic security investigations to its
Criminal Division. Despite the arguably broad jurisdiction granted by the
Justice Department Guidelines, the Bureau, in its own "quality over quantity"
approach, has limited itself to investigating only "Individuals and organizations
involved in crimes against the U.S. which involve acts of violence.' Instead
of wasting time and resources and infringing rights by trying to prevent
violence before it occurs, the Bureau seems to be trying to prevent violence by
detecting and prosecuting those who commit crimes of violence in order to deter
such acts.
PROHIBITING OTHER DOMESTIC SECURITY INVESTIGATIONS
In order to close down the Bureau's domestic intelligence jurisdiction, the
charter must preempt all executive orders and limit the FBI to the conduct of
criminal investigations. The charter must also carefully define the FBI's investi-
gatory responsibility in the areas of civil disorders and background investiga-
68 Most recently, the committee on Federal Legislation of the Association of the Bar of
the City of New York. See New York Bar Report, note 26 supra.
6' See Letter to Senate Intelligence Committee on FBI Charter Recommendations, March
11, 1976 (on file at Center for National Security Studies).
7? See Testimony of Attorney General Levi cited at note 1, supra.
71. Recommendation 44, Church Committee Final Report Book II, note 1, supra, p. 321.
'N For example, H.R. 6051 has 29 co-sponsors, a low number only because the bill also bans
all Covert operations abroad and espionage by the United states except in time of War.
n 95th Cong. 1st Sess. December 15, 1977.
70 News Release Senate Select Committee on Intelligence, Statement of Senator Birch
Ilayh, Chairman, Senate Select Committee on Intelligence on the Introduction of the Na-
tional Intelligence Reorganization and Reform Act of ble9f7o8, Feb.9
70 Statement of Griffin B. Bell, Attorney General, re the
S1.1' b1c9oiM8'mpitt7e.e on Civil and
Constitutional Rights Committee of the Judiciary, U.S. House of Representatives, February
28, 1978, p. 15--16.
" Justice Department and FBI 1977 TefftiMOIty, note 23 supra.
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tions. These functions must no longer constitute a basis for intelligence
investigations:8r
Civil disorder information gathering must be strictly limited. The Attorney
General must authorize collection only if there is a clear and immediate threat of
violence likely to require the calling out of federal troops. Only temporary
(30 days) collection should be permitted and the FBI should be limited to the use
of overt techniques unless a full criminal investigation is authorized. The
Bureau's authority to gather information 78 about planned demonstrations should
be similarly restricted.
The scope of the Bureau's authority to conduct background and security in-
vestigations should be reassessed and explicitly defined. No background investiga-
tion should be conducted without the subject's consent. Only information relevant
to the legitimate purpose of the investigation should be collected or maintained;
dissemination should be tightly controlled. Because of the inherent tension be-
tween the FBI's counterintelligence and background investigative functions, the
Committee should seriously consider the transfer of most of this authority to
the Civil Service Commission.28
A STANDARD FOR FBI CRIMINAL INVESTIGATIONS
The Congress must define carefully the FBI's criminal investigatory authority.
The charter should mandate that the primary purpose of a criminal law enforce-
ment investigation is to "detect . . . crimes against the United States," identify-
ing the perpetrators and gathering evidence to establish the basis for arrest
and prosecution. The Congress can thus insure that the FBI will not conduct
"intelligence" investigations.
Of particular importance, the Congress must establish an investigatory stand-
ard which the FBI must meet before it can conduct a convert, intrusive criminal
Investigation. We believe the FBI may not conduct an intrusive investigation
unless it has a reasonable suspicion, based on specific and articulable facts and
rational inferences from such facts, that the subject of an investigation, whether
a person or a group, has committed, is committing, or is about to commit a
specific act which violates a federal criminal statute.
The Supreme Court in Terry v. Ohio' held that a reasonable suspicion stand-
ard must be met to justify a search pursuant to an investigation. Specifically,
the Court stated that:,
"in justifying the particular intrusion the police officer must be able to point
to specific and articulable facts which, taken together with rational inferences
from those facts reasonably warrant that intrusion. 81
This holding does not resolve the issue of what kind of "reasonable suspicion"
justifies a full criminal investigation. But the "specific violation of law" basis
for investigation is a logical extension of the Terry decision to the "particular
intrusion" we are considering here. In Terry the police were only required to
have a reasonable suspicion that "criminal activity may be afoot," 82 but the Court
emphasized that this was only a limited "stop and frisk" and not a "full-blown
search." 83 An on-going criminal investigation, which involves covert, intrusive
techniques such as continuous physical surveillance, inspection of private records,
and use of paid and directed informants is more akin to a "full-blown search"
" For authority to assist President in assessing need for troops in civil disorders as
basis for FBI intelligence gathering, see Development of FBI Domestic Intelligence Investi-
gations, note 10 supra, pp. 489-518. For history of background investigations as basis for
authority to collect intelligence by FBI, see Id. at pp. 431-35.
la This a stricter version of the Justice Department Guidelines on Civil Disorders and
Demonstrations Involving a Federal Interest Reporting Guidelines, note 22 supra. And
also stricted than Recommendations 45-46, Church Committee Final Report Book II, pp.
323.
19 Consent is now a requirement under Justice Department Guidelines on White House
Personnel Security and Background Investigations, note 22 supra. But the dissemination
rules need to be tightened. See Recommendation 47, Church Committee Final Report Book
II, pp. 323-24. Transfer to the Civil Service is mandated by Law to Control the FBI and
recommend for consideration by the New York City Bar Association Report, note 26 supra,
p. 35. Actually more generally a transfer to "another agency."
" 392 U.S. 1 (1968).
81Id. at 21.
Id. at 30.
Id. at 19.
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requiring a higher degree of certainty that criminal conduct is involved than to
a "stop and frisk"." In such investigations, where the FBI does not have probable
cause to arrest or does not use techniques which require a search warrant," we
believe the Constitution requires the Bureau to meet the standard we have
proposed.
We do not propose a "probable cause" standard, which both the Attorney
General and FBI Director have indicated might be workable," because we are
attempting to articulate a standard of investigation that is not premised on
"conspiracy" statutes. In our view, reasonable suspicion of a specific act in viola-
tion of law is a tighter investigatory standard than probable cause of conspiracy,
and the only standard that can protect constitutional rights adequately,
In the past, the FBI has conducted massive investigations of lawful political
activity premised on the violation of conspiracy statutes such as the Smith Act
(18 U.S.C. 2385) and Voorhis Act (18 U.S.C. 2380) which on their face punish
lawful speech and advocacy.' We recommend the repeal of these statutes by this
charter legislation.' However, even if they are repealed, the use of general con-
spiracy statutes (18 U.S.C. 371) in conjunction with statutes prohibiting substan-
tive conduct as a predicate for intrusive investigation perpetuates the problem.
The Report accompanying the recently enacted S. 1437 which repeals the Smith
A?ct poses the issue:
The Code more appropriately leaves this area to the general conspiracy pro-
visJon (section 1002), which will make It an offense to conspire to violate either
sectiOn 1101 (Treason) or 1102 (Armed Rebellion or Insurrection)."
In case law, the courts emphasize the inherent danger in prosecuting persons
engaged in First Amendment activity under conspiracy statutes." Constitution-
ally protected conduct could be punished. Conspiracy statutes, on their face, pro-
hibit associations established for illegal purposes. An overt act, which may be
lawful, is sufficient to prove the crime. Alternatively, if the association for the
purpose that would be illegal can be shown, then an illegal act by one associate
may be attributed to all other members of that association.'
(
The problem in the First Amendment area is that vigorous dissent by political
associations often involves advocacy of acts which would be illegal if committed '
(e.g. overthrow of the government or disruption of a governmental function).
Overt acts which might suffice to prove conspiracy in a criminal case such as
attending meetings and raising funds are the stuff of political activity. Con-
sequently, the courts have required a showing of specific intent in the prosecution
"In Terry, the Court made much of the danger the officers faced in the situation but
also that this was an area of conduct where "necessarily swift action predicated upon the
on-the-spot observations of the officer on the beat?which historically has not been, and
as a proctical matter could not be, subjected to the warrant procedure. Id. at 20. The
Court stressed that "we do not retreat from our holdings that the police must, whenever
practicable, obtain advance judicial approval of searches and seizures through the warrant
procedure." rd. While we are not requiring a warrant here, the Court's reasoning is strongly
suggestive that a higher standard is required in -circumstances where a warrant might
be renuired.
"The Church Committee recommended warrants based on probable cause for mail-
opening and surreptitious entry. Recommendations 53 and 54. Church Committee Final
Report Book II, Note 1, supra, p. 328. No statute is necessary to require this in the domestic
security area, since these warrantless surveillances were generally recognized as "clearly
illegal." Legislation is necessary to define foreign intelligence or counterintelligence war-
rant standards since the President has asserted inherent power to conduct warrantless
surveillance for these purposes. Executive Order 12036, January 26, 1978. We also recom-
mend warrants for use of undercover agents and intrusive record searchea. See discussion
infra. Wiretapping in the domestic security area should be prohibited US a "general search"
violative of the Fourth Amendment.
"Testimony of Attorney General Griffin Bell before the Subcommittee on Government
Information and Individual Rights of the House Government Operations and Individual
Rights of the House Government Operations Committee, June 6, 1977; Testimony of
William Webster, Director of the FBI on PBI Authorization Legislation before the Senate
Judiciary Committee, April 18, 1978.
87 See Text accompanying note 53 supra.
"See Section 4 of H.R. 10400 introduced by Don Edwards of California. renealing certain
laws to eliminate color of authority : (Chanter 102 (relating to riots) of Title 18, Sections
2384 (relating to seditious conspiracy), 2385 (relating to advocating the overthrow of
Government). 2386 (relating to registration of certain organizations), 2387 (relating to
peacetime interference with loyalty, moral, or discipline of military forces). and 2391
relating to temporary extension of wartime penalty for interference with loyalty, morale,
or discipline of military forces) of such title 18 are all repealed.
Renort of the Committee on the Judiciary, United States Senate, to accompany
S. 1437 ? Criminal Code Reform Act of 1977 (Rept. No. 95-605 Part 1) (95th Congress
1st Sess..), pp. 185-86.
06 scales v. United States, 367 U.S. 203 (1961) ; Yates v. United States, 354 U.S. 298
(1957).
01 United States v. Spook 24. 165 (1st Cir. 1969).
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of First Amendment related cases. Further, because the motives for participation
may have legal or illegal aspects, the courts have refused to attribute the illegal
acts of one associate to others in the group."
Applying the courts' observations concerning prosecuting political conspiracies
to investigating such conspiracies illustrates the shortcomings of such a basis
for investigation. Reading conspiracy statutes literally, advocacy of illegal acts
by persons in association justifies investigation. Moreover, commission of wholly
legal overt acts, inextricably intertwined with the political process, could also
justify investigation. A standard of probable cause of such activity Is easily met.
Even if there is no specific intent to violate the law by one or all of the associates,
conspiracy statutes permit intrusive investigation of First Amendment activity.
Investigatory discretion to proceed under these statutes renders a "criminal
standard" an illusory protection against future investigative abuses.
The prosecutorial requirement of specific intent must be paralleled in the
standard for investigation. Persons or groups should not be targeted for investi-
gation unless there is reasonable suspicion that the substantive crime (rather
than conspiracy) is about to be committed. For example, if the FBI obtains
evidence of a specific threat of illegal activity by an association together with
specific and articulable facts indicating that a member has purchased weapons
the FBI would have reasonable suspicion that a criminal act was about to 1:.)
committed. Rather than "any" overt act, only an overt act which would c(,)n,
stitute an element of the substantive crime would justify reasonable suspi0ion
of specific intent or imminence of illegal conduct," the same requirement Which
the courts use to narrow the overbreadth of conspiracy prosecutions. This/stand-
ard would protect First Amendment and Fourth Amendment rights - "iiiithout
undermining the FBI's law enforcement efforts.
The FBI would not be required to "sit on its hands" until a substantive crime
occurred. The criminal standard allows a full investigation before the law has
been violated. More important, it should not bar the Bureau from conducting
preliminary inquiries using less intrusive techniques. A charter, providing for a
Preliminary criminal inquiry, would allow the FBI to check its own records,
conduct interviews, contact established sources of information, and use other
such means to find out whether the basis for a full investigation exits." Without
meeting a reasonable suspicion standard, the FBI could check out specific
threats, credible allegations, incidents and the like. On the oth r hand, if the
allegation is unfounded, or in the ease of a full investigation, if the substan-
tive crime does not occur, the Investigation must terminate.
Rather than hinder the Bureau, the standard would make the FBI more
effective in carrying out its law enforcement responsibilities. Conspiracy pred-
icated investigations lead to overbroad investigations which are a waste of
resources on virtually fruitless attempts to prevent crime.
On the assumption that prevention may be more effective if criminals are
apprehended and prosecuted, the narrower criminal standard would cause the
FBI to focus its resources on solving serious crime. In point of fact, the
standard we propose is a statutory embodiment of the "quality versus quantity"
approach that has caused the FBI to make an internal decision to focus investi-
gations on persons or organizations who have committed serious or violent
crimes for political or economic motive.
Moreover, since most such criminal conspiracies come to the attention of the
FBI after a crime has been committed, most investigative activity (within
stricter procedures) that now go on would be permissible under the reasonable
suspicion standard.
The "primary" purpose is to investigate and to gather evidence of crime, the
FBI might still prevent crime before it occurs. The FBI could "prevent a crime"
reasonably believed to be about to occur, using traditional means such as arrest,
warning potential victims, and the like. The statute, as we later suggest, must
prohibit COINTELPRO activities.
92/4. See also Scales v. United States, 367 U.S. 203 (1961).
cs, Brandenburg v. Ohio, 395 U.S. 444 (1969) in which the Court held that political groups
are within their legal rights to advocate any course of action including the "use of force or
law violation except where such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action." Id. at 447.
04 This is essentially along the lines of the preliminary inquiry in the Justice Department
Domestic Security Investigation Guidelines. March 10, 1976.
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The narrow standard we propose is required when First Amendment activities
may be investigated. The same standard is probably not constitutionally re-
quired in other criminal investigations. However, Fourth Amendment con-
siderations remain; a criminal standard is therefore required.
The public policy issues raised by organized crime "intelligence" investiga-
tions are not unlike those raised by the debate over domestic security issues.
Efforts to thwart organized crime have been largely ineffective. A recent GAO
report concludes that $80 million tax dollars have been wasted by organized
crime strike forces in the last decade.''' As in the domestic security area, a major
problem has been the inability to define "organized crime." 96
Although differences between these two areas of investigative concern exist,
important constitutional and practical similarities can also be noted. These
similarities argue for a tight criminal standard governing organized crime in-
vestigations, perhaps the same standard which governs First Amendment related
activities. We look to the Justice Department and the FBI to explain why a
uniform standard would not be practicable.
SPECIAL PROCEDURES FOR FBI CRIMINAL INVESTIGATIONS
As important as it is to set standards for initiating FBI criminal investiga-
tions, the charter must also establish procedures to ensure that investigations
are conducted so as to minimize interference with constitutional rights. Par-
ticularly strict procedures are necessary in cases which involve investigations
of persons or groups engaged in First Amendment activities. Whenever
the FBI has reason to believe that a crime has been committed. pro-
cedures are needed to prevent overbroad surveillance of lawful First Amend-
ment activity which could "chill speech" and intrude on the privacy of political
association. As Justice Powell stated the case for a special vigilance in this
investigative area:
"The price of lawful public dissent must not be a dread of subjection to an
unchecked surveillance power. Nor must the fear of unauthorized official eaves-
dropping deter vigorous citizen dissent and discussion of Government action in
private conversation. For private dissent, no less than open public discourse, is
essential to our free society."
The type of procedural safeguards required is illustrated by one example
from the recent past: the FBI's live and a half year continuous investigation
of the Institute for Policy Sttidies, a well-known left-liberal research organiza-
tion in Washington, D.C. The Institute was the victim of both unregulated,
unwarranted targeting and overbroad surveillance of lawful political activities
resulting from other legitimate criminal investigations. The Institute's case
indicates the need to mandate procedures to regulate every stage of the investiga-
tive process. Based on discovery in a civil suit, we know that:
The FBI initiated the IPS investigation in 1968 "to determine whether the
activities of the Institute and its personnel were in violation of Title 18, United
States Code (USC), Sections 2383-85, relating to rebellion and insurrection,
seditious conspiracy, and advocacy of the overthrow of the Government." In
other words it was an investigation initiated on the basis of criminal statutes
but without any evidence.
The investigation continued a full year before a "confidential source" advised
that Marcus Reskin of the Institute had made all of the arrangements for a Pan-
05 Report to the Congress by the Comptroller General of the United States, War on
Organized Crime: Falterng?Federal Strike Forces Not Getting the Job Done (GAO
March 17, 1977).
" Id. at : "There is no agreement on what organized crime is and consequently, on
precisely whom or what the Government is fighting." One dangerous consequence of this
should be noted. In several state inquiries into operations of state and local police
"Organized Crime Intelligence Units" funded with LEA A funds, the major finding is that
organized crime for economic gain has been ignored while the police conducted intelligence
investigations, sometimes on massive scale, of organized "political activity" suspected to
be illegal or subversive. E.g. Report on the Operations of the Intelligence Division From
Chief of Police, District of Columbia To Mayor Walter E. Washington, March 7, 1975;
Improper Police Intelligence Activities, A Report By the Extended March 1978 Cook
County Grand Jury, October 10, 1975; Report to the Senate of Maryland By the Senate
Investigating Committee Established Pursuant To Senate Resolution 1 and 151 of the
1975 Maryland General Assembly, December 31, 1975; Staff Report To Michigan House
Civil Rights Committee Members Regarding Inquiry into House Bills 4923, 6408, and 6409
Dealing with Police Intelligence 0,,erations, September 1976: State Police Surveillance,
Report of the N.Y. State Assembly Special Task Force on State Police Non Criminal Files,
September 1977.
57 United States v. United States District Court, 407 U.S. 297, 314 (1972).
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132
African Conference in Algiers with money allegedly provided by IPS. Because
the "tone and direction of the Conference was the result of significant Soviet
influence" according to the confidential source, the investigation was continued
on the basis of possible violation of 18 U.S.C. 2383-85.
The dearth of evidence in this ease also indicates the license permitted by
the conspiracy standard.
By this time in 1969, the investigation was more than a preliminary one,
since the FBI had infiltrated the Institute with informants. Further, because
Richard Barnett of IPS publicly stated that he had visited Hanoi, the FBI
determined that he might be acting in violation of Title 50, U.S.C. Sections 851-
58 pertaining to failure to register as an espionage agent of a foreign power.
Neither the Title 18 or Title 50 investigations were ever reviewed by the Justice
Department to determine whether the evidence amounted to a reasonable
suspicion of a crime to warrant the investigation.
The Justice Department did enter the picture in August of 1971 when As-
sistant Attorney General Robert Mardian requested the FBI to resolve the "FBI
investigation" which had "determined" that IPS had bought copies of the
"McNamara Papers" in 1970. Eleven months after the "determination," in other
words, the FBI was instructed to investigate IPS for possible violation of Title
18, U.S.C. Sections 792-98 relating to espionage.
The Justice Department and FBI officials made no effort to "minimize" the
investigation or make any determination that less intrusive techniques would
have been sufficient to check out the allegations of illegal activity. Assuming
arguendo that a criminal standard had been met, the only named targets of
investigation were Marcus Raskin (Algiers Conference) and Richard Barnett
(visiting Hanoi) ("buying" the Pentagon Papers) of the Institute. Yet the FBI
collected information through intrusive surveillance of all IPS personnel and
associates and all IPS political meetings. Extensive files were maintained.
In 1971, the FBI investigation of the whereabouts of the Weather Under-
ground resulted in a new avenue for investigation of IPS. On the basis that
one member of the Underground "reportedly" obtained money from Arthur
Waskow of IPS, prior to becoming a fugitive and that another fugitive allegedly
"visited IPS offices," the FBI continued its total coverage of IPS and its political
activities on the grounds that persons associated with IPS may have violated
Title 18, U.S.C. Section 1071 relating to Concealing a Person from Arrest. No
effort was made to prevent this legitimate criminal investigation from resulting
in overbroad surveillance of IPS' First Amendment activity.
In 1971, apparently because an IPS staff associate sponsored a conference
which adopted views (in the Bureau's opinion) which "identified with Arab
guerillas" and later requested Marcus Raskin of IPS to finance a trip of his to
the Middle East to study the political situation, the FBI determined that IPS
might be involved in possible violation of Title 18, Sections 1541-46 relating to
violations of Passport and Visa Matters. The investigation continued.
Between 1972 and 1974 no other "evidence" of illegal activity came to FBI
attention but the investigation was not terminated until February 28,1974, after
a civil lawsuit was filed by IPS charging illegal surveillance.
Other than Assistant Attorney General Mardian's request in 1971 and an FBI
Headquarters review in April 1973 (11 months before the termination of the
investigation and almost five years after its commencement), there is no evidence
of FBI supervision of the IPS investigation.
Over the course of the investigation, the Bureau paid or directed over 50
informants to gather information on IPS, obtained confidential documents,
personal mail (from trash covers), membership lists, research documents, plans
of meetings, detailed reports of what went on at meetings, and built a massive
file on the organization. ,
In February 1974, upon discontinuing the investigation, the FBI concluded
after "careful analysis" that there "was insufficient evidence to support prosecu-
tion of IPS leaders or members under existing Federal statutes." The U.S.
Attorney's Office was never involved.
The Justice Department and the FBI continue to defend the conduct of this
investigation as legal and propene'
The charter must include requirements for procedural safeguards which ensure:
(1) accountability for the authorization and conduct of investigations; (2) that
98Response by Defendant Clarence M. Kelley To Interrogatory No. 4 of Plaintiff's Second
Set of Interrogatories To Federal Bureau of Investigaff on, January 23, 1978. Institute for
Policy Studies v. Mitchell (Civ. Action No. 74-316) (D.C.D.).
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no investigation is initiated without statutory basis; (3) that criminal investiga-
tions do not become a pretext for open-ended intelligence investigations; (4)
that the least intrusive technique necessary to obtain evidence is emp.oyed ; (5)
that investigations are not overbroad; and (6) that privacy is not violated by
unnecessary maintenance and d"ssemination of information.
Special provisions to achieve these ends are laid out in A Law to Control the
FBI. They include (1) requirements for written authorization and certifications;
(2) time limits for investigations; (3) Justice Department review, authorization.
and supervision of continuing investigations; (4) special authorization and
Justice Department mandated procedures to govern the use of intrusive tech-
niques; and (5) requ!rements that minimization procedures be established. These
provisions are not detailed regulations, which the Justice Department and the
Bureau seem to fear. Rather they simply mandate that the Justice Department
established procedures according to statutory criteria. They set appropriate
limits on administrative discretion.
All of these procedures should apply in criminal cases involving First Amend-
ment activity. But many protect against Fourth Amendment privacy violations
and should apply to all criminal investigations.
WARRANTS FOR INTRUSIVE TECHNIQUE'S
Special procedures to minimize FBI interference with First Amendment rights
must be reinforced by a warrant requirement for criminal investigative tech-
niques which may intrude on rights of political privacy. For the same reason
that a warrant is required to conduct a wiretap, it should be used to guide and
restrict the use of informants and searches of private records. The target of
each of these techniques is speech, albeit different forms, unit the only way to
ensure that the purpose and conduct of the search are limited to the seizure of
criminal evidence is to require prior judicial approval. Nowhere is tile need for
judicial supervision greater than in cases involving domestic security, where
First and Fourth Amendment rights are simultaneously jeopardized. As tile
Supreme Court pointed out in Keith:
National security cases . . . often reflect a convergence of First and Fourth
Amendment values not present in cases of 'ordinary' crime. Though the investi-
gative ?duty of the executive may be stronger in such cases, so also is there
greater jeopardy to constitutionally protected speech. . . . History abundantly
documents the tendency of government?however benevolent and benign its mo-
tives?to view with suspicion those who most fervently dispute its policies. Fourth
Amendment protections become the more necessary when the targets of official
surveillance may be those suspected of unorthodoxy in their political beliefs."
The First Amendment, of course, guarantees freedom of speech, of the press,
of assembly and of the right to petition for redress of grievances. The Supreme
Court has often observed that the effective exercise of these rights requires as-
sociational privacy. Citizens must be able to meet and associate privately to
discuss their political beliefs and plans and to consider what lawful actions to
take to promote their ideas. Records relating to these associational activities
are protected unless they contain evidence of crime.
The right of associational privacy was firinly established by the Supreme
Court in repelling the effort of the State of Alabama to compel disclosure by the
NAACP of its membership lists. NAACP v. Alabama, 357 U.S. 449 (1958). It
was sustained and emphasized most recently by the Court in its decision modify-
ing certain intrusive disclosure provisions of the Federal Election Campaign I% et.
Buckley v. Valco, 424 U.S. 1 (1976). As Chief Justice Burger pointed out in his
concurring opinion:
[S]ecrecy and privacy as to political preferences and convictions are funda-
mental in a free society. . . . This Court has seen to it that governmental power
cannot be used to force a citizen to disclose his private affiliations, even without a
record reflecting any systemic harassment or retaliation. . . . For one it is
too late in the day to recognize an ill-defined 'public interest' to breach the his-
toric safeguards guaranteed by the First Amendment.'
If the First Amendment prevents the government from compelling disclosure
of information related to lawful political and other associational activity, it must
also reouire restraints to be imposed on the use of intrusive investigative tech-
00407 U.S. at 306.
'??424 U.S. at 20,
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niques to gather such information. In fact, it is for this reason that the re-
straint of a warranted procedure has been imposed upon government wiretapping.
Surely the First Amendment is no less violated if the FBI obtains a copy of the
membership or contributor lists of the Socialist Workers Party through the use
of paid informers or the search of the Party's bank records than if the Party's
membership and contributor information is obtained through a wiretap or as a
result of the campaign reform law. Indeed, the First Amendment violation is
compounded when it results from an intrusive search which also raises Fourth
Amendment questions. This is why we believe that a warrant requirement should
be imposed on the use of informers and record searches in criminal investigations.
I. Informers
The FBI record on the use of paid informers in political groups shows a mas-
sive violation of First Amendment rights. Although the worst abuses in the last
three decades occurred in the undercover provocations of the COINTELPRO
and COMINFIL programs, the Church Committee documented many examples of
routine informer activities which cut deeply into associational privacy. The
Committee's Final Report points out that during the 1904-76 period :
The FBI expanded its use of informers for gathering intelligence about do-
mestic political groups, sometimes upon the urging of the Attorney General. No
significant limits were placed upon the kind of political or personal information
collected by informers, recorded in FBI files, and often disseminat ed out side the
Bureau.'
These vast informer operations were typified by the following :
By 1972, 7,402 "ghetto informants" (e.g., "the proprietor of a candy store or
barber shop") had been put in place as FBI "listening posts" to provide infor-
mation about "racial activities [and] identify extremists" passing through or
locating in the ghetto area; 102
In 19(14 the FBI had infiltrated the Communist Party USA at: a ratio of one
agent for every 5.7 members ;103
In 1970 FBI Director Hoover lifted restrictions against recruiting 18 to 21
year old informers, and field officers were urged to take advantage of this "tre-
mendous opportunity" to expand coverage of "New Left collective, communes
and staffs of underground newspapers ;" 101
Between 1966 and 1976 the Chicago FBI office paid more than $2.5 million to
5,145 informants and investigated or opened files on 27,900 organizations and
individuals ; 105
The General Accounting Office reports that 43% of all domestic security in-
vestigations are initiated on the basis of information provided by an FBI in-
former?a percentage almost three times higher than the next most commonly
used source for opening an investigation; 103
As recently as Fiscal Year 1976 the FBI budget allocates $7,401,000 for its
intelligence informant programs?more than twice the sum for organized crime
informers.'
These statistics reveal the magnitude of the informer issue and its impact on
associational privacy. But the issue is even larger than the statistics indicate.
Informers are at once the most complex, comprehensive and unpredictable in-
vestigative tools that the Bureau employs. While the informer is, as the Church
Committee pointed out, a "vacuum cleaner" for information, the information is
often distorted or inaccurate and in this respect is far less reliable than in-
formation obtained by a wiretap. Furthermore, an informer who pretends to be
a member of a political group cannot simply gather information. lie or she must
participate actively in the decisionmaking of the organization, taking stands
on issues and seeking to enhance credibility by influencing the positions the or-
ganization takes and the actions it engages in. Inevitably, as Alan Dershowitz
has pointed out in his penetrating account of a Jewish Defense League murder
ease in which his client turned out to be an informer, the informer corrupts the
organization:
101 Intelligence Activities and the Rights of Americans, Final Report of the Select Com-
mittee to Study Government Operations with Respect to Intelligence Activities, United
States Senate, 94th Cong., 2d Sess., BK. II, p. 68 ['Church Report"].
103 Id., p. 75.
"3 Marwick, "The Government Informer," First Principles, March 1977, p. 3.
Church Report, P. 78.
In Washington Post, April 9, 1978, p. A3.
in 1976 GAO FBI Audit, Note 5, supra, p. 105.
107 Supplementary Detailed Staff Reports on Intelligence A ctivi ties and, the Rights of
Americans, Church Committee Report, BK, III, p. 229.
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Violence inevitably stems from a police system that recruits (and educates)
secret informers and provocateurs within a radical movement. The recruited
agent, almost by definition, is an unstable, psychotic, or psychopathic individual.
His temptation to improve his status by engaging in or encouraging violence is
almost irresistable. This is what touches off the fatal chain reaction. Violence
feeds on violence and the question of who is informer, who is terrorist, becomes
confused beyond comprehension even by the individual involved.m
In our view, the case for informer warrants is overwhelming. While it is true
that the Supreme Court has held that an individual has no independent Fourth
Amendment right to be free from warrantless informer surveillance, Hoffa v.
United States, 385 U.S. 293 (1966), the Court has never directly addressed the
question of what restrictions may be constitutionally required when informers
are used to conduct surveillance of private political or other associational activ-
ities. The Court has intimated, however, that here the balance would shift and
a warrant would be required. As Justice White put it in his opinion in United
States v. White, 401 U.S. 745, 752 (1971), upholding the legality of a "wired
informer" targeted at an individual, "our problem, in terms of the principle an-
nounced in Katz v. United States, 389, U.S. 397 (1967), is what expectations of
privacy are constitutionally 'justifiable'?what expectations the Fourth Amend-
ment will protect in the absence of a warrant." Since an expectation of asso-
ciational privacy is constitutionally justifiable, the First and Fourth Amendments
converge to require a warrant for the use of informers in criminal investigations
of groups.
To sum up, Congress should enact a warrant procedure similar to Title III of
the Omnibus Criminal Control and Safe Streets Act for the use of paid and di-
rected undercover agents by the FBI to investigate criminal acts by members
of a group."' No warrants should be issued authorizing the infiltration of political
organizations not suspected of engaging in specific criminal conduct. This new
procedure is necessary to protect First as well as Fourth Amendment rights, and
is urgently required to ensure that political freedom will not again be trampled
upon by FBI domestic security activities.
2. Records searches
Another form of intrusive search which raises both First and Fourth Amend-
ment questions is the warrantless inspection of private records. Most people be-
lieve in the privacy of their personal tax records, bank records, employment
records and other recorded "third party information" about how they lead their
lives. This expectation of privacy has often proved to be unjustified, although in
constitutional terms it would certainly appear to be justifiable. As the California
Supreme Court recently pointed out in invalidating a warrantless search of copies
of cancelled personal checks in the custody of a bank:
"For all practical purposes, the disclosure by individuals or business firms of
their financial records to a bank is not entirely willful since it is impossible to
participate in the economic life of contemporary society without maintaining a
bank account. In the course of such dealings the depositor reveals many aspects
of his personal affairs, opinions, habits, associations. Indeed the totality of bank
records proildes a virtual current biography. The development of photocopying
machines, electronic computers and other sophisticated instruments have ac-
celerated the ability of government to intrude into areas which a person normally
chooses to exclude from prying eyes and inquisitive minds. Consequently, the
judicial interpretations of the reach of the Fourth Amendment constitutional
protection of individual privacy must keep pace with the perils created by these
new devices." 11.0
Informal investigative searches of private records have become increasingly
routine in recent years. With the arrival of new computerized storage systems
and methods of facilitating access to and exchange of computerized information
(e.g., the bank industry's fledgling "electronic funds transfer" system), govern-
ment investigations have turned increasingly to private records: .At the same
time, legislation such as the Bank Secrecy Act of 1970 has facilitated record
searching by requiring private records to be retained for longer periods of time.
In short, a revolution in information technology has far outstripped the expec-
tations people have about the privacy of their personal records.
108 Dershowitz, et a/., "The IDL Murder Case: The Informer Was Our Own Client,"
Civil Liberties Review, April/May 1976, p. 59.
100 Burrows v. Superior Court, 13 Cal. 3d 238, 243-44, 529 P. 2d 590, 593-96 (1974).
no Marin County Independent Journal, April 20, 1972, P. 1.
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136
There are many recent examples of informal access to bank records. Congres-
sional investigations and ACLU lawsuits have uncovered the following.
A California supporter of radical causes discovered that his checking account
statement had been reviewed by FBI agents when an internal bank memo was
mistakenly sent to him which read: "This memo is to authorize you to read
checks to the FBI before sending the statement to the customer."'"
As part of a series of FBI domestic security investigations, the bank accounts
of Jane Fonda, Dr. Benjamin Spock, Floyd McKissick and other anti-war and
civil rights activities were inspected without legal process; "2
A memo to FBI field offices from Director Hoover in 1968 stated: "there is a
need to compile in a single investigative report a clear-cut picture of the entire
New Left Movement which will identify its . . . sources of funds. . ."
The FBI inspected and copied the checks of civil rights activists in Philadel-
phia and Detroit to make a record of their professional activities, including, in
one case, a lawyer-client relationship."'
Records searches are an important and permissible criminal investigative tech-
nique. Nevertheless, they can intrude substantially on associational privacy and
therefore raise the same First and Fourth Amendment issues that arise in the
case of informer searches. Although the Supreme Court has held that a warrant
procedure is not constitutionally required for bank records searches, United
states v. Miller, 96 S.Ct. 1619 (1976), statutory guidance is clearly needed in
this area.
We propose several principles as a point of departure. First, a person's privacy
interest in bank, tax, credit and employment records should be recognized by
statute. Second, a person's standing to-assert his or her privacy rights over rec-
ords in the hands of third parties should be conferred by statute, on the same
basis as if the records were in his or her personal possession. Third, government
investigators should not be able to obtain access to the records without legal proc-
ess--i.e. an administrative summons, subpoena or search warrant issued on a
showing appropriate to the method of process. Fourth, in all instances except the
issuance of a search warrant, the record subject should be given prior notice of
the proposed inspection and a reasonable time to assert his or her rights before
disclosure. These proposals are set forth in more detail in Title II of H.R. 6051,
and they parallel various other pending record privacy bills.
There is a mystique about the use of record searches in law enforcement. The
trail of paper and computer tape is said to be somehow different from the trail
of physical evidence so much so that the "old-fashioned" rules do not apply.
Though there has been much talk about the need for broad search powers to fight
organized crime and white collar crime, the restriction of investigative methods
within recognized constitutional boundaries would not prevent vigorous law en-
forcement efforts against these types of criminal violations. Where the impact
would be the greatest is where the abuses have been the greatest in the use of
secret, unrestricted governmental access to private records for the collection of
political intelligence; access to the telephone toll records of newspaper reporters
to pinpoint the sources of politically embarrassing "inside stories ;" access to the
bank records of antiwar and civil rights groups to identify their contributors
access to the records of political opponents in election campaigns or outspoken
critics of government policies, or indeed anyone at all, for the intelligence
gatherers have long had a completely free hand. Elimination of these abuses iM
the purpose of the procedure we are proposing.
STATUTORY PROHIBITIONS REQUIRED
The statutory charter should include two flat prohibitions:
1. The FBI should not be permitted to investigate any person or group solely
on the basis of First Amendment activities."
.11. Hearings of the Subcommittee on Financial Institutions. Committee on Banking,
Housing and Urban Affairs. United States Senate, 92d Cong. 2d Sess. (1972), at 136-37.
112 Church Report, BK, VI, at 667-75.
Church Report, Vol. 6, at 669-75.
114 Jabara v. Kelley, C.A. No. 39065 (RD. Mich.) ; Kenyatta v. Kelley, C.A. No. 71-2595
(ED. Pa.).
n5 Such a proviso has been added to S. 1566, the Foreign Intelligence Surveillance Act
of 1977. See Report To Accompany S. 1566 from Senate Committee On Intelligence (Report
No. 95-701, 95th Cong., 2d Sess. March 14,1978) p. 28-30.
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2. The Charter must ban preventive action and COINTELPRO-type
To enforce these prohibitions the charter should establish criminal penaltie,s
for their international violation and a civil cause of action for victims.
OVERSIGHT OF THE FBI
The charters should establish effective oversight mechanisms. Within the
Justice Department, the Attorney General should be required to ensure Depart-
ment and Bureau compliance with the law and to conduct a periodic review of
agency investigative activities.' The Attorney General must have full and com-
plete access to Bureau files.'
Within the Congress, the Judiciary Committees should also have access to all
FBI files under appropriate privacy safeguards and should be required to con-
duct prior review of all procedures designed to impliment the legislation. The
Attorney General shall be required to report FBI violations of charter provisions
which violate constitutional rights to the committees.
Public oversight is also necessary and requires the statute to mandate that all
investigatory guidelines and regulations be published in accordance with the Ad-
ministrative Practices Act.'
Thank you for the opportunity to appear before this committee.
116 While Attorney General Edward Levi struck from the Justice Department Guidelines
all reference to "preventive action" because of congressional criticism, he did not rule out
authorizing such activities on a case by ease basis. In testimony before this Committee.
FBI Director William Webster has stated that in some cases the FBI must take preventive
action measures. (April 20, 1978 Testimony). It is critical to insure that this does not
include inciting dissension, dissemination false or anonymous information to discredit per-
sons or groups, or any of the other "preventive" measures engaged in by the FBI in its
COINTELPRO operations.
Ili According to the GAO, the Justice Department has deactivated the high level com-
mittee that reviewed domestic security investigations. Such a committee must be mandated
by the Charter. Followup GAO FBI Audit, Note 18 supra, p. 6: "(T)he Justice Department's
Investigations Review Unit, which is responsible for providing policy guidance on the
FBI's domestic intelligence operations, is currently without staff and its future undecided."
us Until recently the FBI never allowed the Justice Department or even the Attorney
General to have access to its case information, even though the FBI is under the supervi-
sion of the Justice Department. A statute must mandate this access. See Development of
FBI Domestic Intelligence Investigations, note 10 supra for a running account of this
refusal or failure to disclose.
I" Congress must mandate that it be kept "fully and currently" informed about FBI
activities. An investigation continues into the failure of the FBI to turn over all flies
relating to break-ins after 1966. Washington Post, April 22, 1978. The GAO has never been
given complete access to FBI files, and has had to work with summaries. Part of the cur-
rent investigation includes possible misleading information supplied to the GAO for its
audit.
,20 Today the Domestic Security Guidelines are published. On the other hand the Foreign
Counterintelligence Guidelines are secret and withheld under the Freedom of Information
Act Exemptions. Secret directives have been the cause of much overreaching. Standards
should be public and subject to criticism and possible revision by the Justice Department.
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APPENDIX
ADDITIONAL SUBMISSIONS FOR THE RECORD
ASSISTAN T TTORNEV GENERAL
LEGISL A TIV E AFFAIRS
Department of 3.1ustirt
as4ingtan, D. Qt. 211530
May 19, 1978
Mr. Michael Glaser
Printing & Editing Assistant
Subcommittee on Antitrust
United States Senate
Room A-517
Washington, D. C. 20510
Dear Mr. Glaser:
In the course of Attorney General Bell's testimony on
a legislative charter for the Federal Bureau of Investigation
on April 20, Senator Kennedy requested that the Department
supply materials indicating the investigative standards
used by other agencies of the Executive Branch. Enclosed
are materials provided by a number of agencies in response
to Senator Kennedy's request; this material is not exhaus-
tive but it indicates the nature of the standards used.
Sin7ply,
Patricia M. Wald
Assistant Attorney General
Office of Legislative Affairs
(139)
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140
I A
CCESS Reports/April 18, 1978 Page '3
,t
violatek another person's pAvacy, disclose a source's identit or hamper future
investigati4e capabilities.
Iniaddition, the GAO's auditors concluded that courts have Sometimes im-
posed their own. deadlines on FBINrequest processing. This disrupts the FBI's
ability to handle other requests efficiently, Lowe said.', -
- - , ...
In ithe Rosenberg case, for example, the FBI was forced to use \73 full-
time and 21 part-time employees between August and November 1975 to\meet a'-'-'
court-imposed deadline. Lowe said, "Ire people represented over half of the
personnel then assikned to the branch., The diversion of these resources was
,
the major reason for\the rapid increase\in the backlog at the time. '..The back-
log roselby 2,000 requests during this three-month period." :
A year ago, the bIreau began its Pro ect Onslaught, which was de.igned to
reduce the backlog, wh ch by then had grows to almost 8,000 cases. IA addi-
tion tots other FOIA 'and Privacy Act staff, the bureau used as many s 282 -
special gents at a time\and spent $2.8-millon to attack the growing backlog.
Although' it did not eliminate it, the projectsucceeded in reducing i from . .
7,566 to 4,910 requests in five months.
- '-
Lowe said that unless. the law is amended o give the FBI special on-. .-
.
sideratfon, the bureau wil fall behind again with answering requests. 'Tte,.
GAO estimated that requestwwould be about 20,500 in 1978 and 23,400 i, 9.
Lowe saci the GAO recommended that the FBI be required to acknowledge aire-
quest igthin 10 days and that it provide a full response within an additdonall-
30 days.4, In exceptional circumstances it should give a firm date when it ex-
pects to-complete its response. A
1 . A
\
According to the report, additional improvements are also needed intFBI i
management of its information processing. It conctuded that effective idple-
mentation of the acts is hinderdd by, uncertainties'toncerning what constitutes
an unWairanted invasion of persohal privacy, what a\confidential source ill and
,
how such information should be made public in pending investigations. '
G./61) therefore recommended th t the attorney gejtalAireci the Justi e
Departmenes'Office of Privacy and Information Appeal: to provide. all depart-
ment components with its decisions' so they can be used in future cases; t. up-
date its own processing guidelines and give them to all department components;
and make random checks on FBI information processingf7 public release. '
l agents to process requests. . Exemptions relied tpon as the basis Or
The GAO also suggested that tjreau should use more analysts and f wer
specia
withholding information should be marked on each document, the auditors recom-
mended and the Justice Department an its components should be required tol,
give such additional information as number of pages in a file and number denied
to persons who make FOIA requests. A .
NEW REGULATIONS MARE IT HARDER
TO OPEN MAIL -- EXCEPT IN PRISON
Government opening and reading of private mail has been made more restric-
tive in most instances by several recent policy changes and new Federal agency
regulations. However, a new Postal Service rule explicitly authorizes opening
and censoring prison inmates' mail.
Mail security regulations of the U.S. Postal Service, printed in the April
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141
Page 4 ACCESS Reports/April 18, 1978
5 Fetleral Register, permit prison authorities to read and censor incoming mail
.addressed to prisoners. Although prison officials have long done just that, the
Postal Service concluded that its absence of regulations seemed to imply that
the activity was prohibited.
If an inmate consents to receive mail at the prison, authorities can censor
it. If he does not consent, prison officials can either deliver the mail un-
opened or return it to the Post Office marked, "Refused."
In other areas, however, new regulations at the Postal Service and the
Customs Service place greater limitations on warrantless mail openings, and in
most cases forbid reading of contents in opened letters. In a related action
the Defense Department announced the end of a program in which suspicious letter
mail from servicemen overseas was referred to the department by the Customs
Service.
- In general, the Postal Service regulations prohibit any opening of sealed
mail without a search warrant, "even though such mail may be believed to con-
tain criminal or otherwise nonmallable matter or evidence of the commission of
a crime."
However, some categories of personal correspondence may be sent as unsealed
mail postage free, and the regulations permit opening such mail to determine
its eligibility. Even though this mail may be opened, strong provisions pro-
tect the privacy of the sender or addressee and the confidentiality of the con-
tents of any correspondence. Included in this category are Braille letters and
sound recordings for the blind and letters of certain other handicapped persons.
For regular categories of sealed mail, postal employees would be able to
open and detain letters only in a dead mail office in accordance with dead mail
regulations, with the consent of the sender or addressee, or to execute a valid
search warrant. Postal rules also permit authorized agents of the Customs
Service or the Agriculture Department to open certain categories of mail.
Customs Service. In conjunction with the Postal regulations, Customs
r( /5ezic::iemta:27:: elordnfzzl=!ustoms officials to open1ri11istng=ict a
The regulations, which go into effect May 8, prohibit warrantless openings
unless letters are suspected of containing contraband.
.As a matter of policy, the Customs service also will refuse to give mail
to other agencies without a warrant.
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142
nw.ta neputt.wmpt t,1 to, two
Page 5
Mail privacy and openings by the Customs Service have been the focus, of
Controversy for some time. Last June, the Supreme Court ruled in U.S. v.
Ramsey, 97 S. Ct. 1972, that the Customs Service acted constitutionally in open-
ing without a warrant mail sent from Thailand. The service said It had reason-
able cause to believe that the letters contained drugs. Although the Supreme
Court said such openings were authorized by law, it did not rule.on the consti-
tutionality or legality of reading correspondence without a warrant. .L
On July 28, 1977, the Customs Service published proposed regulations to
bring the agency's policies into line with the Ramsey decision, and to cover
the unresolved area of reading correspondence.'
- In addition, last year the SubcomMittee on Government Information and In-
dividual Rights of the House Government Operations Committee held hearings Lw:
the problem.
Among the subcommittee's conclusions,was one that_mail opening presented
questions.of privacy invasion which should be settled by legislation:. "Any in-
trusion into the right of privacy in correspondence should be structured as an
exception to that right; the right should not be granted merely because other,
considerations permit. Any such exceptions should be expressly passed upon by
the Congress." -
Congressional sources said such legislation is being considered, but con-
ceded that any final action by Congress is unlikel this year. .
A spokesman for the Customs Service said the subcommittee's hearings and
recommendations and comments received from the public went a long way toward
setting the tone of the final regulations.. He added that the regulations
would govern agency activity until such time as legislation is passed.
. . . _
The final regulations are somewhat more restrictive than the proposed?.
guidelines, the agency spokesman said. In the proposed rules, Customs would '
have been able to turn over virtually all mail to other agencies for follow-
up investigations. .
According to the final regulations, correspondence in sealed letter class
mail cannot be turned over to any other agency without a warrant. However,
packages that contain certain goods such as foods, drugs, cosmetics and haz-
ardous substances may be given to agencies that have jurisdiction over such--
items for examination and clearance before being sent on to the addressee.
Mail can also be turned over to the Postal Service for controlled delivery
without a warrant to agencies such as the Drug Enforcement Administration for
further investigation.
Another change concerns the opening of mail in the Virgin Islands, con-
sidered outside the United States for customs matters but inside for postal
activities. In the proposed regulations, Customs would have been allowed to
open mail arriving in the Virgin Islands ILTithe United States. The final
regulations appear to prohibit such openings by the Customs Service Without a
judicial search warrant or the consent of the sender or addressee, even if
there is reason to believe the letters contain contraband.
Both the Postal Service and the Customs Service regulations require that
a postal employee must be present whenever a Customs official opens mail. Re-
cent agreements by the two agencies set forth the procedures for implementing
this provision.
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Page 6 ACCESS Reports/April 18, 1978
-
According to the agreement, public confidence that Customs is carrying out
its pledge to."safeguard the privacy of correspondence" can be enhanced "by
providing for independent observation of customs sealed letter class mail open-
ing and examination by a responsible postal employee."
Mail can be opened by Customs only in a facility jointly designated by the
two agencies for that purpose. No mail can be opened by Customs unless a postal
employee is present. After a letter has been opened, the contents cannot by
examined "unless a responsible postal employee is present to observe the exami-
nation, or measures are taken to prevent the contents of the mail item which
appear to be correspondence from being exposed to view."
In its explanation of the final regulations, published in the April 6 Fed-
eral Register. the Customs Service said it "is acutely aware of the sanctity of
privacy in correspondence. At the same time, Customs must perform its obliga-
tions-to examine all importations, whether by mail or otherwise. The Customs
Service feels that this document balances those interests in a satisfactory
manner."
Department of Defense. In a related action, the Defense Departmentan-
flounced last month that as of April 30 it would terminate its "military suspect
letter class referral program."
Under the program, the Defense Department received approximately 445 pieces
of mail a month from the Customs Service. Customs had seized the letters from
servicemen stationed overseas on suspicion that they contained contraband. Up
to August 1976, Customs also gave the Department correspondence, a department
witness told the Government-Information and Individual Rights Subcommittee.
Brig. Gen. Nathaniel R. Thompson wrote the Customs Service that "the value
. of the program to DOD was minimal and did not warrant continuation." He said
examination of mail by Customs seemed adequate to handle any problems that might
exist with respect to mailing of contraband by servicemen abroad. .
SUPREME COURT BLOCKS ACCESS
TO SIRIGA'S WHITE HOUSE TAPES
Access to copies of White House tapes in the possession of U.S. District .
Court Judge John Sirica has been blocked by the Supreme Court.
In a 7-2 decision on April 18, the court refused to allow a recording
company and the three major television networks to have access to the tapes,
which were played in court during the Watergate cover-up trial of several aides
to former President Nixon.
Approximately 20 hours of tapes were played in the trials. The networks
wanted to distribute copies of them to the general public through the National
Archives.
The court, in an opinion delivered by Justice Lewis Powell, said the
common-law right of access to court records was not absolute, but rather was
at the discretion of the trial judge. .
Moreover, the court reasoned, the public had an alternate means of access
to the tapes. Under the Presidential Recordings and Materials Preservation ?
Act, the General Services Administration was directed to take possession of all
Presidential materials, including tapes, and screen them for eventual availa-
bility to the public.
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144
Deportment of the TREASURY
4.-7,-.5.*AniRreeAVW7ler,16
MS:-:SERVIC
2028 82475::'.
FOR RELEASE UPON RECEIPT April 20, 1978
CUSTOMS TIGHTENS REGULATIONS FOR MAIL INSPECTIONS
The United States Customs Service announced April 6 that a new and
tightened regulation governing the examination of letter class mail will
go into effect in May, 1978, thirty dayS after its publication in the
Federal Register.
The policy statement accompanying the, new. regulation points the way .
toward nationwide uniformity in the examination of international mail by
stating the most common circumstances that constitute "reasonable cause to
suspect" that contraband or merchandise is contained within the letter.
The regulation prohibits Customs officers from reading the contents of
any correspondence they discover in the course of the examination without
first obtaining a search warrant or written authorization. Likewise, a
warrant must be obtained before Customs can transfer correspondence to any
other law enforcement agency.
All openings of letter class mail must be carried on by Customs officers
or employees in the presence of a Post Office Department official. ,
Among the circumstances considered "reasonable cause to suspect" are:
(more)
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* the alerting of a detector dog trained to uncover either narcotics
or explosives;
* the X-ray detection of merchandise or contraband in the letter;
* the weight, shape, feel, or sound of an international letter class
item which indicates merchandise or contraband is present;
* information from reliable sources which indicates that an identifiable
mail article contains merchandise or contraband;
* special insurance on a piece of letter class mail;
* unusual packaging; and/or
* a fictitious addressee.
Notice of the amendment was published in the Federal Register of
April 6, 1978 on page 14451.
FOR FURTHER INFORMATION CONTACT: Alan Bernstein [phone]
PIN 4-06 A:PI: ABB
xADM 9-03
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146
14451
[4810-22]
? Till. 19?Custonts DuHos
CHAPTER I?UNITED STATES CUS-
TOMS SERVICE, DEPARTMENT OF
THE TREASURY
tT.D. 78-1021
PART 145?MAIL IMPORTATIONS
Examination of Sealed' Letter Class
' rMall by Customs Officials
?
AGENCY: United States Customs Ser-
vice, Department of the Treasury.
ACTION: Final rule and policy state-
ment.
SUMMARY: This document contains
an amendment to the Customs Regu-
lations and a policy statement relating
to the examination of seated letter
class mail by Customs officials. The
amendment and policy statement are
being made because ole recent United
States Supreme Court decision which
upheld the right of Customs official.,
to examine sealed letter class malt in
certain circumstances. It Is intended
that the amendment and policy state-
ment win offer guidance as to when
and how Customs will open and exam-
ine sealed letter class mail.
EFFECTIVE DATE: May 8,1978.
FOR FURTHER INFORMATION
CONTACT:
Stuart P. Seidel, Office of the Chief
Counsel, U.S. Customs Service, 1301
Constitution Avenue NW.. Washing-
- ton, D.C. 20229, 202-568-5476.
SUPPLEMENTARY INFORMATION:
. . BACKGROUND
? Section 145.3 of the Customs Regu-
lations (19 CFR 145.3) provides that
no Customs officer or employee shall
, read, or authorize or allow any other
person to read, any correspondence
contained in sealed letter mall unless a
search warrant has been obtained. In
United States v. Ramsey, 97 S. Ck 1972
(1877), the U.S. Supreme Court af-
firmed the right of Customs officials
to open and examine sealed letter
class mail without first obtaining a
search warrant under certain circum-
stances.
In the Ramsey case, a Customs of 11-
car Inspecting a sack of incoming in-
ternational mail from Thailand spot-
ted eight bulky envelopes winch he be-
lieved might contain merchandise. AU
of the envelopes appeared to have
been typed on the some typewriter.
were addressed to different locations
In Washington, D.C., felt as if there
were something other than plain
paper inside, weighed three to six
times the normal weight of s letter,
and came from a country which Is a
known source of narcotics. Upon in-
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spection, the envelopes were discov-
emd to contain heroin.
The dpening of these letters without
first obtaining a search warrant was
challenged as unconstitutional. The
Supreme Court rejected this assertion
and held constitutional the statute,
P.S. 3061 119 U.S.C. 482), which autho-
rizes the opening of envelopes coming
into the United States with respect to
which a Customs official may have
reasonable cause to suspect there is
merchandise which is subject to duty
or which is imported contrary to law.
The Court also found that the circum-
stances under which the letters were
opened provided "reasonable 'cause to
suspect' that there was merchandise
or contraband in the envelopes." ?
? The Commissioner of Customs deter-
mined that, inasmuch as 1145.3 of the
Customs Regulations was silent as to
when the opening of sealed letter class
mail is authorized, that section should
be amended to reflect the statutory
standards as interpreted in the
Ramsey case and the existing Customs
practice on the subject. Therefore, on
July 28, 1977, a notice of proposed ru-
lemaking which would amend 1 145.3
was published in the FEDERAL REGISTER
(42 FR 38393). The notice proposed to
add to 1145.3 a provision that no Cus-
toms officer or employee would open
sealed letter class mall which appeared
to contain only correspondence unless
a search warrant had been obtained in
advance of the opening. It also pro-
posed to add a provision that Customs
Officers or employees could open and
examine sealed letter mail -which ap-
peared to contain matter in addition
to, or other than, correspondence, pro-
vided they had reasonable cause to
suspect the presence of merchandise
or contraband.
The notice also contained a proposed
policy statement which set forth the
policies which the Customs Service
would follow in examining sealed
letter class mall. The policy statement
supplemented the regulations by pro-
viding guidance as to the circum-
stances which constitute reasonable
cause to suspect that merchandise or
contraband Is contained in sealed
letter class mall.
Interested parties were given until
September 26, 1977. to submit data,
views, or arguments in regard to the
proposals. Several comments were re-
ceived in response to the proposals. A
discussion of the substantive com-
ments follows:
DISCUSSION OF SUBSTANTIVE COMMENTS
WHAT MAIL IS SUBJECT TO CUSTOMS
EXAMINATION
I. International transit mail One
Comment pointed out that the pro-
posed rule and policy statenment
could be read so as to subject interna-
tional transit mail to Customs exami-
nation. International transit mail is
that mail which passes through the
United States but Is not to be deliv-
ered therein. This point is well taken.
Section 145.2 therefore has been
amended to make it clear that mall
must be destined for delivery in the
Customs territory of the United States
or in the U.S. Virgin Islands to be con-
sidered subject to Customs examina-
tion.
2. Virgin Islands mail. In one of the
comments submitted, the authority of
the Customs Service to Open first class
mail arriving in the U.S. Virgin Islands
from the United States was Ques-
tioned. It was asserted that such open-
ing could not be done merely upon
finding a reasonable cause because of
39 U.S.C. 3623(d), which provides that
first class mail "of domestic origin"
shall not be opened unless authorized
by a search warrant or by the address-
ee, or except by the Postal Service Co
determine the delivery address.
While maintaining that it is autho-
rized to examine all mail coming into
the U.S. ?Virgin Islands from the Cus-
toms territory ' of the United States,
the Customs Service agrees that the
legal authority to open first class mail -
merely upon the finding of reasonable
cause to suspect the presence of mer-
chandise or contraband Is uncertain.
For this reason, and because the inci-
dence of openings of first class mall ar-
riving in the U.S. Virgin Islands from
the Customs territory of the United
States would be relatively low, the
Customs Service will ' refrain from
opening such mail unless authorized
to do so. Section 145.3 therefore had
been amended to provide for this ex-
ception.
9. Only at 'bonder"? One comment
asserted that without a search war-
rant. Customs has no authority to ex-
amine any mail wlaich has already
Passed through an exchange office.
This contention is based on the theory
that the "border search" exception to
the Fourth Amendment prohibition
against tarrantless searches ceases to
exist after mail passes through an ex-
change office.
This contention cannot be accepted.
The Customs Service relies on 19
U.S.C: 1499 and United States v. Ring,
517 9'.2d 350 (5th Cir. 1975), as author-
ity for the proposition that Customs
may examine mail after it has passed
through an exchange office but has
not been delivered to the addressee, at
least when Customs did not inspect
the mail previously. In the court case,
envelopes had entered the United
States at San Francisco and had been
routed to Birmingham, Ala.. without
having been inspected. The court
found Customs examination and open-
ing of the envelopes in Birmingham,
upon reasonable cause to suspect the
_presence of contraband, to be lawful.
The court added that an Individual's
expectation of privacy in a mail article
which enters the United States at San
Francisco but is destined for Birming-
ham is no more offended by opening
the envelope in Birmingham than in
San Francisco.
DEFINITIONS ARE INADEQUATE
4, Definitions. Several comments
were directed toward the fact that var-
ious terms such as "sealed", "letter
mail", and "letter class mail" were
either not defined or were used incon-
sistently in the proposed rule and
policy statement.
In addition, it was noted that several
definitions were qualified as as to be
vague in the proposed Appendix.
These points are well taken. Section -
145.1 has been amended to define
three terms ("mail article", "letter
class mall", and "sealed letter class
mail"), and these terms exclusively-
have been used in the regulations.
Furthermore, the definitions in the
Appendix have been made clearer and
more precise. For example, it is specifi-
cally stated that bulky envelopes and
packages are included In the term
"letter class mail" as long as the arti-
cle Is mailed at the letter rate or equiv-
alent class or category of postage.
RECORD EACH MAIL OPENING
5. Record should be made. Several
comments urged that a record of every
opening of sealed letter class mail
should be made, whether or not a sei-
zure occurs. The comments suggested
that the factors which present a rea-
sonable cause to suspect the presence
of merchandise or contraband should
be recorded. Some comments proposed
that the mall article itself be endorsed
as opened by Customs, citing the rea-
sonable cause, the examiner's name,
and other relevant information.
These suggestions have merit and
will be adopted in part. The Customs
Service currently uses a stamp to en-
dorse sealed letter class mail that has
been opened. The stamp contains the
mail examiner's identifying number
and the place of opening. In the
future, the mail article will be en.
domed to also contain a code indicat-
ing the reason(s) why the mail article
was opened. The examiner's number
will be maintained because no useti
purpose will be served by identifyine
the opener by name.
Customs also will make a record o:
each opening of sealed letter alas:
mail, whether or not a seizure results
including the reasons for the opening
"REASONABLE CAUSE TO SUSPECT"
6. Examples are overly broad.. On-
comment contended that the example
given in paragraph 13.7 of the pm
posed Appendix of "reasonable coos
to suspect" the presence of merchar
disc or contraband are overly broac
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148
Another comment questioned whether
Customs would remain rigid in adher-
ing to the given examples if experi-
ence shows that their reliability is sus-
pect
Paragraph B.7 of the proposed Ap-
pendix indicated the following factors
constituted reasonable cause; The
sender of the mail article is a known
mailer of merchandise or contraband.
or the mail article contains writing or
typing of a unique character which
has previously -been found on mail ar-
ticles containing merchandise or con-
traband.
We agree that each of the named
factors alone should not provide rea-
sonable cause. These factors are there-
fore being transferred to the list of
factors which, standing alone, do not
provide reasonable cause to suepect
the presence of merchandise or con-
traband.
COOPERATION WTITIOTHER AaEoalta
7. Referring mail articles to other
agencies. Many comments were _re-
ceived concerning paragraph F of the
proposed policy statement, which net
forth the conditions under which -arti-
cles -of mail -may be turned over to
other agencies for a controlled -deliv-
erytoma follow-up investigation.
One comment asserted that -there is
DO legal authority to turn over -any
mail article to any agency except the
Postal Service without a search war-
rant if Customs has not seized the ar-
ticle. This assertion may apply to cor-
respondence in sealed letterclass mail.
but clearly -does not apply to all -mail
articles since 19 CFR 145.57 provides
that certain .goods, such as plants and
plant products, food, drugs, cosmetics,
and hazardous or -caustic and corrosive
substances, are subject to examination
and clearance by appropriate agencies
before release to the addressee. Para-
graph F is therefore being revised to
specify that mall articles which do not
contain correspondence may be re-
ferred to other agencies without a
warrant for examination and clear-
ance in accordance with 19 -CFR
145 57. ,
Another comment pointed out that
only the Postal Service can effect a
controlled delivery, and that the provi-
sion of paragraph F that mail may be
turned over to the Drug Enforcement
Administration (DEA) or other Feder-
al agencies without a warrant -to effect
a controlled delivery therefore was er-
roneous. It was suggested that the pro-
talon be changed to provide that mail
may be turned over to the Postal Ser-
vice to effect a controlled delivery in
cooperation with DEA or other Feder-
al agencies, This suggestion is being
adopted.
a Mail covers, Postal Regulations
Provide for the use of "covers", or sur-
veillance, of mall when certain facts,
such as the corenession of a crime, are
RULES AND REGULATIONS
suspected (see .39 -CFR 233.2). Authori-
zation for mall -covers must be ob-
tained from the Postal Service.
One comment suggested that the cir-
cumstances presented in paragraphs
B.4 and 7 of the proposed Appendix,
listing examples of "reasonable -cause
to suspect", call for mail covers rather
than the opening of the mail article.
The example in subparagraph 7 has
been deleted from the llst and subpar-
agraph 4 has been reworded to read,
"Information from a source previously
shown to be reliable indicates that an
identifiable mail article contains mer-
chandise or contraband." The Cus-
toms Service's authority, as outlined
in the Ramsey case, to open and exam-
ine sealed letter class mall is indepen-
dent of any other authority to engage
in surveillance of mail. Inasmuch as
the quoted example provides the nec-
essary reasonable cause, there is au-
thority apart from the mail cover pro-
cedure to open such mail. For this.
reason, this suggestion is not being
adopted.
-9: Interagency agreements. It -was
'urged that Customs seek to standard-
ize ita cooperative agreements with
other agencies concerning mall exami-
nation. Moreover, it was suggested
that the agreements be treated as
rules requiring public notice and op-
portunity for comment.
The Customs Service is attempting
to standardize these agreements with
Other agencies- to -the fullest extent
possible. It must be recognized, howev-
er, that some differences necessarily
will occur because of different inter-
ests and procedures involved. .
On the other hand, interagency
agreements of this type are not rules
requiring public notice and opportuni-
ty for comment within the meaning of
5 U.S.C. 551. In addition, any agree-
ment would -have to comport with
both Agencies' regulations and policies
on the subject. For these, reasons, the
suggestion that public notice and op-
portunity for comment be given for in-
teragency agreements on alai' exami-
nation v;fll not be adopted.
ARE MORE SAPECEARDS NEEDED?
10. Are time limits feasible? Several
comments requested that time Limits
be set for obtaining search warrants
and for Customs processing of mail.
Five days. was suggested as a reason-
able time for obtaining search war-
rants, -while it was suggested that the
time period for processing mall be
based on the classes of mail examined.
Customs has experimented with set-
ting a specific time limit for obtaining
search warrants. In particular, Cus-
toms has required other agencies to
obtain search warrants with regard to
correspondence within 3 working days.
This -has proved to be too restrictive,
especially for the military services.
Customs intends to continue to study
? 14453
this matter, but at this time no specif-
ic time limit can be identified as eats-
factory to all interests. It is for this
reason that the term "promptly" has
been used in the policy statement.
As to Customs processing of mail.
the only delays which occur now are
when a seizure or detention is made,
when a search warrant is sought, or
when the mail is referred to another
inspectional agency, such as the De-
partment of Agriculture. Other than
In these cases, the mail is processed
rapidly and promptly returned to
postal channels. At least some of the
above-mentioned delays obviously are
not within Customs control. For that
reason, and because most mail Is pro-
cessed rapidly in any event, a specific
time limit is not believed .to be feasi-
ble. Customs, however, will remain
open to such a possibility should un-
necessary delays or abuses be found.
11. Reading correspondence. Several
suggestions urged Customs to empha-
size the prohibition against reading
correspondence without a search war-
rant, One suggestion was that the pro-
hibition against reading correspon-
dence in sealed letter class mail found
to contain merchandise or contraband.
or with a green label or Customs decla-
ration, should be expressed in the reg-
ulations.
Section 145.3(c) unqualifiedly pro-
hibits the reading -of correspondence
in any letter -class mail without a
search warrant or consent of the
sender or addressee. This section clear-
ly encompasses the. situations where
merchandise or contraband is found in
the letter class mail or where a green
label or Customs declaration is at-
tached. The regulation, therefore, is
considered to be sufficiently explicit in
this regard. However, as a further
safeguard, the explanatory material in
the policy statement has been amend-
ed to refer specifically to these two sit-
uations.
Another suggestion was that Cus-
toms officers and employees should be
reminded of the possibility of criminal
Penalties -under 18 U.S.C. 1702 for ob-
structing correspondence. In response
to this suggestion, the policy state-
ment has been amended to remind
Customs personnel that any violation
of the regulations or policies regarding
the examination of letter class mail
Will lead to administrative sanctions.
as well as possible criminal prosecu-
tion under-18 U.S.C. 1702.
LENERAL
12. Customs received general recom-
mendations that it remain flexible as
to what constitutes reasonable cause.
that it pursue the standardization of
mail openings and the like, and that
alternative privacy safeguards be con-
sidered.
The Customs Service is acutely
aware of the sanctity of privacy in cor-
.
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149
.r41.54, .
respondence. At the same time, Cus-
aims must perform its obligations to
examine all importations, whether by
mail or otherwise.' The Customs Ser-
vice feels that this document balances
those interests in a satisfactory
manner. Customs will. of course,
remain flexible In regard to mail ex-
aminations, particularly to the extent
that practice indicates the reliability,
or lack thereof: of certain facts provid-
ing reasonable cause.
In sum, the Customs Service consid-
ers the safeguards provided in this
document to be adequate to protect
the right a privacy. If these safe-
guards do not In fact prove adequate.
Customs will seek alternative mea-
sures to minimize the Intrusiveness of
mail.examinations.
OTHER CHANGES
After review of the proposal and
consideration of the comments submit-
ted. it was decided that certain other
changes to the proposal were needed.
The notice proposed to amend only
1145.3- of the Customs Regulations.
However. it became apparent that
other sections would be affected by
such an amendment. Therefore,
?3145.0 through 145.3 have been
amended as appropriate.
Part 145 referred throughout to the
term "package" or its equivalent to
mean., in effect, any mail article. Be-
cause packages can in fact be mailed
at the letter rate, or equivalent class
or category, this had caused confusion--
These amendments therefore replace
the term "package" or -Its equivalent
with the term "mail article."
Proposed ? 145.3 provided that war-
rants were required to read correspon-
denoe or to open letter class mail
unless there was reasonable cause to
suspect the presence of merchandise
or contraband. That section has been
changed to also allow such reading or
opening when the sender or addressee
gives written authorization to do so.
Thus the interested party may be able
to expedite the processing of mail by
avoiding the delay associated with ob-
taining a search warrant.
The proposed policy statement has
been amended to incorporate the In-
teragency agreement requiring the
presence of a Postal Service employee
whenever sealed letter class mail is
opened.
In addition to the above changes, a
nmnber of editorial and stylistic
changes have been made to the text of
the proposed amendment and policy
statement.
DRACTING INFORMATION
The principal authors of this docu-
ment are Stuart P. Seidel, Office of
the Chief Counsel, and Richard M. Be-
langer, Office of Regulations and Rul-
ings. U.S. Customs Service. However,
Other personnel in the Customs Ser-
RULES AND REGULATIONS
vice and in the Department of the
Treasury participated in its develop-
ment.
AMENDMENTS TO THE REGULATIONS
Part 145 of the Customs Regulations
(19 CFR Part 145) Is amended in the
following manner:
1. Section 145.0 is amended by
adding the following as the first sen-
tence in that section:
?145.0 Scope.
The provisions of this part apply
only to mail subject to Customs exami-
nation as set forth in ?145.2.
?
? ? ? ? ?
2. Sections 145.1, 145.2, and 145.3 are
amended to read as follows:
145.1 Definitions.
(a) Mail article. "Mail article" means
any posted parcel, packet, package, en-
velope, letter, aerogramme. box, card,
or similar article or container, or any
contents thereof, which is transmitted
in mail subject to customs examina-
tion.
(b) Letter class mail. "Letter class
mall" means any mall article, includ-
ing packages, past cards, and aero-
grammes, mailed at the letter rate or
equivalent class or category of post-
age..
-
(c) Sealed letter class mall. "Sealed
letter class mail" means letter class
mall sealed against postal Inspection
by the sender.
?145.2 Mall subject to Customs examina-
tion.
(a) Restrictions. Customs examina-
tion of mail as provided in paragraph
(b) Is subject to the restrictions and
safeguards relating to the opening of
letter class mail set forth in ?145.3.
(b) Generally., All mail arriving from
outside the Customs territory of the
United States which is to be delivered
within the Customs territory of the
United States and all mail arriving
from outside the U.S. Virgin Islands
which is to be delivered within the
U.S. Virgin Islands, is subject to Cus-
toms examination, except?
(1) Mail known or believed to con-
tain only official documents addressed
to officials of the U.S. Government;
(2) Mail addressed to Ambassadors
and Ministers (Chiefs of Diplomatic
Missions) of foreign countries; and
(3) Letter class mall known or be-
lieved to contain only correspondence
or documents addressed to diplomatic
missions, consular posts, or the offi-
cers thereof, or to international orga-
nizations designated by the President
as public international organizations
pursuant to the International Organi-
zations Act (see ?148.87(b) of this
chapter). Mall, other than letter class
mail, addressed to the designated in-
ternational organizations is subject to
Customs examination except where
the organization certifies under its of-
ficial seal that the mail contains no
dutiable or prohibited articles. Any
Customs examination made shall,
upon request of the addressee interna-
tional organization, take place in the
presence of an appropriate representa-
tive of that organization. ?
?145.3 Opening of letter class mail; read-
ingot correspondence prohibited.
(a) Matter in addition to corresion-
deuce. Except as provided in para. -
graph (e), Customs officers and em-
ployees may open and examine sealed
letter class mail subject to Customs
examination which appears to contain
matter in addition to, or other than,
correspondence, provided they have
reasonable cause to suspect the pres-
ence of merchandise or contraband.
(b) Only correspondence. No Cus-
toms officer or employee shall open
sealed letter class mail which appears -
to contain only correspondence unless
prior to the opening?
(1) A search warrant authorizing
that action has been obtained from an
appropriate judge of United States
magistrate, or
(2) The sender or the addressee has
given written authorization for the
opening.
(c) Reading of correspondence. No
Customs officer or employee shall
read, or authorize or allow any Other'
person to read, any correspondence
contained in any letter class mall,
whether or not sealed, unless prier to
the reading?
(1) A search warrant authorizing
that action has been obtained from an
appropriate judge or United States
magistrate, or
(2) The sender or the addressee has
given written authorization for the
reading.
(d) Other types of correspondence.
The provisions of paragraph (c) shall
also apply to correspondence between
school children and correspondence of
the blind which are authorized to be
mailed at other than the letter rate of
postage in international mall.
tel Certain Virgin Islands mall.
First class mail originating in the Cus-
toms territory of the United States
and arriving in the U.S. Virgin Islands,
which is to be dellvered within the
U.S. Virgin Islands, shall not be
opened unless?
(1) A search warrant authorizing
that action has been obtained from an
judge or United States
magistrate, or
(2) The sender or the addressee has
been given written authorization for
the opening.
?181.4 (Amended]
3. Section 145.4 is amended by sub-
stituting the term "mail article" for
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the term "package from abroad" wher-
ever It appears.
?145.40 [Amended)
9. Section 145.40(c) is amended by
substituting the term "mail article"
for the term "mall package" wherever
it-appears.
- 4. Part 145 is further amended by
substituting the term "mail article"
for the term "package" wherever it ap-
pears, and the term "mail articles" for
the term "packages" wherever it ap-
pears.
(RS. 251, as amended, R.S. 3061. area. 498.
499, 581 824, 46 Stat. 728, as amended, 747,
as amended. 759 (19 U.S.C. 66, 482, 1998,
1499. 1561, 1621).)
Z. The followtng policy Statement Is
added at the end of Part 145,
Pout., Szarsacearr
ISADIECRATION 01,36/IIED LEITER MASS MALL
A..Custorre officers and employees shall
not .8050 11151 class mall arriving 151 the U.S.
-virgin Islands tor delivery there, if it .origi-
nated In the Customs ten-Rory of the
United States, unless a search warrant .or
'written authorization of the sender or ad-
dressee is obtained. Customs offIcers.or em-
ployees may open and examine all other
sealed letter class mail which Is subject to
the Customs mall regulations (see 19 CFR
Part 145) and which appears to contain
matter In addition to, or other than, corns,
spondence. provided they have "reasonable
muse to suspect" the presence of merehan-
dise or contraband.
B.-Customs officers and employees shall
not open any sealed letter class mall which
appears to contain only correspondence
unless a search warrant or written authori-
zation nf the sender or-addressee is obtained
kradvance of the opening.
C. Customs officers and employees are
Prohibited from reading, or euthorlaJng or
allowing others to read, anti correspondence
contatned In any letter class mail -.less
there has been obtained In advance either,
search warrant or written authorization of
the sender or addressee. This prohibition,
which will continue to be -strictly -enforced,
also applies to correspondence between
school children and correspondence of the
blind which are authorized to be mailed .at
other than 'the letter rate of postage in in.
ternational mail.
D. If a violation-of law is discovered upon
opening any mail article referred to in para-
graph C. and It is believed that the corre-
spondence may provide additional informa-
tion concerning the violation and Is there-
fore needed for further investigation or use
in court, a search warrant shall be obtained
before any correspondence Ls seized, read, or
referred to attacher agency. Search warrants
shall be promptly sought. Correspondence
may be detained while a .search warrant is
being sought.
E. If no controlled delivery Is arranged
and correspondence is not to be otherwise
seized pursuant to a search warrant (see "F"
below), the item which constitutes the viola.
lion shall be removed and any correspon.
deuce shall be replaced In the wrapper, aria
a new wrapper If the original wrapper has
been seized pursuant to 19 U.S.C. 15350.
The wrapper shall then be resealed, marked
In Indicate It was opened by Customs, and
RULES AND REGaILATIONS
returned to postal channels. Appropriate
seizure notices shall be sent in accordance
with 19?CFR 195.59(b).
F. Na mail article may lie referred to an-
other agency without a search warrant
(I) Any correspondence has been removed
and the mail article is being referred for ex-
arnination and clearance under 19 CFR
145.57,
(2) ally correspondence has been removed
and the mall article has been lawfully seized
by Customs,
131 The mail article Is being referred to
Postal Service channels to effect a con-
trolled delivery Pi cooperation with other
law enforcement agencies, or
(9) The mall article is being returned to
Postal Service channels for normal process-
ing.
G. Whenever sealed letter class mall Is
opened, the factors giving the Customs offi-
cer or employee "reasonable cause to sus-
pect" the presence of merchandise or con-
traband shall be recorded on the appropri-
ate form and on the opened envelope or
other container by means of appropriate
coded symbols. Should a seizure rmult.
these factors shall also be recorded on the
seizure report.
11. Sealed letter class mail with the green
Customs label on a Customs declaration
may be opened without additional cause.
Correspondence in such o.1 is subject to
the restrictions reg.ding the detention,
reading, and referral of mail to other agen-
cies fo.d In paragraphS C through F.
I. Whenever any sealed letter class mall -Is
opened for any of the reasons set -forth iso
the above paragraphs, a Postal Service em-
ployee shall be present and shall observe
the opening.
J. Any violation of the Customs mall regu-
lations.or any at-these policies will -lead to
appropriate administrative sanctions, as
wen as possible criminal Prose...UM Posaus
ant 10 10 U.S.C. 1702,
ILOPSIMIX
A. Scope. The Customs -Service Is autho-
rized to examine. with certain exceptions
for diplomatic and governmental mail, all
mail arrivinglram outside the Customs ter-
ritory -of the United States ICTUS) which is
to be ?delivered within the CTUS. and all
mail arriving from outside the U.S. virak.
Islands which Ls to be delivered within .the
U.S. Virgin Islands. The term "Customs ter.
ritory of the United States. is limited to the
States, the District. of Columbia, and Puerto
Rico. Consequently. mail arriving from
other 'U.S. territories and possessions Is sub-
ject to ?Customs examination even though it
is designated "domestic" mail for Postal
Service purposes. Likewise, mall in the
APO/FPO military postal system is subject
to Customs examination, even though It
also is designated "domestic" mail for Postal
Service purposes. The Customs Service
therefor is responsible for examining all in-
ternational mall to be delivered In the
CTUS and certain limited categories of so-
called .q10MeStiC mall".
B. .Definitions. Under various Internation-
al conventions and bilateral agreensents, in-
ternational mall falls within two main
classes, Parcel Post and Postal Union mail.
Parcel Post in not permitted to contain
correspondence but is to be used for the
transtnlasion of merchandise and is fully
slit:sleet to Customs examination in the came
manner as other ?merchandise ehiPments
leg., luggage, cargo. Containers. etc.). Postal
14-155
Union mall Is -dlvided into "LC" maLl
(Lettres et Cartes) and "AO" mail (Autres
Objets).
"LC" mall consists of lertera -packages
Paid at the letter rate of postage, post cards,
and aerogrammes. The term "letter class
mail" as used in the Customs Regulations
and in this policy statement means "LC"
mail as well as equivalent articles in -domes-
tic" mail subject to Custom. examination.
Equivalent articles in "domestic" mail
would include articles Mailed at the lesser
rate. or equivalent class or category, in the
APO/FPO military system or from a U.S.
territory or possession outside the CMS.
Since the term "letter class mall" thus in-
cludes paekages and bulky envelopes as long
as they are mailed at the letter rate, or
equivalent class-or category, the restrictions
relating to opening and reeding of corre-
spondence apply equally to sueh Packages
or bulky envelopes.
-AO" mall is to be treated let the same
manner as Parcel Post mail since the 5301.
vernal Postai Union Convention requires
that they "be made up in such a manner
that they-maybe easily examined" and gen-
erally are not permitted to "contain any
document having the character of current
and personal correspondence." Exceptions
to the latter requirement exist for matter
for the blind and certain correspondence be-
tween-school 'children. Because of these ex-
ceptions. the prohibition against reading
correspondence without a search warrant or
authorization of the sender or addressee ap-
plies to correspondence of the blind and cor-
respondence between 'school -children con-
tained in "AO" mall. "AO" mail cart ...Il)be idesstiLled by the lollovring words: "Int-
prime?or "Printed Matter". "Cecogmem."
of "Literature for the 1311.nd'S "Petit
ParIllet" or "Small Packet"-or similar terms
or their equivalents.
p. Reasonable Cause to Suspect Deterrnin-
ing whether there is "reasonable came to
suspect" that merchandise or -contraband is
contained insealed letter class mail Ls ulti-
mately -a matter of Judas:item for each Cus-
toms official, based on all relevant facts and
circumstances. This Judgment should be ex-
ercised within the frail:mamma of the -Eas-
ton. regulation that sealed letter class mall
which appears to mntain only correspon-
dence is not .10-be opened unless -a search
warrant or written authorization from
either-the senderor-the addressee hoe beets
obtained in advance of the opening.
Past practice Indicates that the following
circumstances (which are illmtratise and
not exhaustive) -provide "reasonanie cause
In suspect" and permit the opening of
sealed letter class mall without a search
warrant or authorization of the sender or
addressee.
1. A detector dog has alerted to the pres-
ence of narcotics or explosives in 0, spectfic
mail article.
2. X-ray or fluoroscope examination indi-
cates the presence of merchandile or con-
traband.
3. The weight, shape, feel, or mond of the
mail article or its contents may Indicate
that merchandise or contraband re.g., a
hard object which may be Jewelry, a stack
of paper which may be counterfeit money,
or coins) could be in the mall article. Con-
tents of a mail article which feel lumpy,
powdery, or spongy MaY, for example, indi-
cate-the presence of narcotics.
4. Information from a source prevlomly
shown to be reliable Indicates that an iden-
tifiable mail artirienontahits caerchandiseor
contraband.
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5. The mall article to InSUred. [4
6. The mall article is a box, carton, or
wrapper other than a thin envelope.
7. The sender or addressee of the mall ar-
ticle is known to be fictitious.
On the other hand, certain facts standing
alone generally will not provide "reasonable
cause to suspect" the presence of merchan-
case or contraband and therefore do not
permit the opening of sealed letter class
mail. For example, sealed letter class mail
may not be opened merely because; P
1. The mail article is registered.
2. The feel of a letter-size envelope suff.
erste that It contains one or a limited'
number of photographs.
3. The mall article appears to be part of
mass mailing.
4. The mall article to from a particular
country, whether or not a known source
country of contraband .
6. A detector dog ha.s alerted to the pres-
ence of narcotics or explosives somewhere
within a tray of mall (the Individual articles
of mall must then be examined
ton.
6. The sender or addressee of the mall ar-
ticle is known to have mailed or received
contraband or merchandise in violation of
law in the post.
'6. The wrapper contains writing or typing
similar to that previously found ori articles
of road which contained contraband or mer-
chandise in violation of law.
In cases where any one of the above
facts is present, additional evidence ?
isadst exist which in conjunction with
that fact provides reasonable cause to
suspect the presence of merchandise
or contraband.
St. E. CHASM.
Commissioner of Custom&
Approved: March 20,1978.
Berra B. ANDERSON,
Under Secretary of the Treason,.
lF5t Doc. '76-9125 Filed 4-5-78; 8:45 am)
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152
RULES AND REGULATIONS
[7710-12J ?
Title 39?Pastel Service
CHAPTER I?U.S. POSTAL SERVICE
PART III?GENERAL INFORMATION
ON POSTAL SERVICE
Mail Security Regulation,.
? AGENCY: U.S. Postal Service.
ACTION: Final rule. ?
SUMMARY: These regulations, which
are a revision of proposed regulations
? published in the Fromm. RathsTXR on
AMII 8, 1977, 42 FR 18 754-18 758, pre
-
? ? scribe Postal Service policy as to when
it is permissible to delay. detain, or -
? open mail, and establish procedures
for handling requests from Govern-
ment agencies to delay, detain, or open
mail. Generally, the regulations do not
? significantly change the provisions of
the proposal, except that provisions
have been added to protect the privacy
?, of certain correspondence permitted to
; be sent as unsealed mail (such as the
. _ ? correspondence sent by the blind in
? ' and a new provision has been
added which would explicitly reflect
t the- authority of prison. jail, and cor-
?; rectional institution personnel to
! open. examine, and censor mall ad-
- dressed to inmates who consent to re-
calve their. mail at the Institution
through the bastitutional authorities. -
.1 EFFECTIVE IDATM May 5, 1978.
- ADDRESS: Comments on these regu.
? latiOns -are welcome and will be consid.
?
aced with a view towards reeking
? changes In the regulations in the
? . I future. Written comments should be
, directed to Assistant General Counsel.
. Special Projects. U.S. Postal Service,
475 L'Enfant Plaza West, SW., Wash-
? tnaton. D.C. 20260. Copies of all writ-
- ten comments received are available
! for public inspection and photocopy-
log between 9 a.m. and 4 p.m., Monday
through Friday, outside Room 9000.
FOR FURTHER INFORMATION
. I CONTACT:
?
; Charles R. Braun 202-245-1620 or
? William 'I'. Alvis 202-245-4630.
? SCrPPLMMIENTARY INFORMATION:
On April 8, 1977, the Postal Service
Published in the FEDERAL REGISTER, 42
FR. 18.754-18.758, a notice of proposed
' ? rulemaking on mail security. On the
.; basis of the comments It received, its
own further mall security experience
and further internal consideration of
? the proposed regulations. the Postal
. Service has decided to adopt Its pro-
posed regulations with only slight
modifications. Because of the impor-
tance of adopting regulations of this
. ? kind, and the Postal Services Judg-
ment that major changes In its propos-
.. al are not warranted, the Postal Ser.
14308
vice has decided to promulgate the re. ?
alsed regulations as a final rule. A dis-
cussion of the general basis and pur-
pose of these regulatior.s accompanied
the proposal published last year. 42
FR 18,754-18,756. The Postal Service
here explains its reasons for adopting
changes in the proposal. The Postal -
Service also invites further comments ?
on the regulations Which, anyone
-wishes to submit. There is no time?
lmit for submitting such comments, -
and any comments submitted will be--
considered with a view toward making' -
amendments of these regulations in
the future.
The subdivisions of these regula-
-
lions generally concern the same sub-
ject matters as the subdivisions of the
proposal. There have been added a
new provision (115.24) on the corre-
spondence of handicapped persons and
school children permitted In unsealed -
mail, and a new provision (115.97) on
Prisoner mail. Changes have been
made in proposed 115.91 and 115.92(a),
concerning customs-- clearance and
plant quarantine inspections of mail
entering the Customs Territory of the-
United States. Clarifying changes
have been added to proposed 115.21;
concerning the privacy of the contents
of sealed matt proposed 115.231 and
115.232 defining sealed and unsealed
mail; and proposed 115.62 and 115.63,
concerning search warrant execution -
Procedures. We anticipate that the
propesedchanges in 331, 42 FR 18,758.
will be-adopted without change.'
'No comments were received on Proposed
331. Amendments of Chapter-3 of the Postal -
Service-Manual such as 331. since they gen-
erally consist of bsternal operational
Lostructlons to postal employees. are not
promulgated in the Front. Rzomma. The
text of proposed 331 follows
33L11 Requests for Surrender of Malt
"Any employee served with legal Proms&
other than a search warrant issued under
Rule 41 of the Federal Rules of Criminal
Procedure (see section 115.0), purporting to
require the, surrender of mail, shall respect-
folly refuse to surrender it and shall refer
t he matter to the Regional Counsel for fur-
ther information.
"See 111.31 for permissible detention of
the mail.
131.12 Access to Mall and Mail Handling
Areas.
"Access to mall and mail handling areas in
postal installations IS restricted to acme,
nzed postal employees and mail contractors
on official business, and to other persons
specificalig permitted access by the installa-
tion head or superior authority for the
proper conduct of the official business of
Use Postal Service. the General Accounting
Office, or a congressional committee. Such
other persons must be accompanied by a
Donal employee on duty. Federal, State, or
local law enforcement or public safety au-
thorities may be given access to mail and to
mall handling areas to remove potentlallY
dangerous mall matter In accordance with
section 115.4. In appropriate circumstances,
the installation head may allow Federal.
State, or local law enforcement authorities
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? There follows a detailed discussion
of the changes that have been adopt-
ed-
Ity?todey of Personal Correspondence
of Handicapped Persons and School
Children Permitted in Unsealed Mail.
The proposal did not offer any protec-
tion of the privacy of certain personal
correspondence which is permitted to
be sent as unsealed mail. Although
normally personal correspondence is
required to be sent as sealed mail, the
blind and certain other handicapped
persoms are permitted to send their
personal -Correspondence and certain
other materials in the form of raised
or special characters or sound record-
Inge as unsealed mail free of domestic
postage and at reduced international
rates of postage. 39 U.S.C. 3404 (1970):
Universal Postal Convention. arts. 18-
. 19: Detailed Regulations, art. 128: Lau-
. _ _sauna 1974, No. 8231. While
the law and the postal convention ex-
' PresalY provide that such mail is to be
"'Unsealed; see- section 3404 and arti-
cle 128; a postal. inspection may read.
Up-be conducted by opening such mail
_and inspecting the materials inside to
magi sure that they are eligible for
the special or free rate- of postage
claimed by the sender, without laved-
-Ing the privacy of any personal corre-
spondence found inside by disclosing
the contents of personal messages.
Similar considerations apply to certain
personal correspondence between
school children permitted at the Inter-
.. national printed matter rate. The reg-
-tilatlons therefore contain, a new
110.24 explicitly stating that the con-
- tents of such personal correspondence
permitted to be enclosed in such un-
- sealed mall shall not be divulged
except with the consent of the ad-
. dresses- or sender or to a person ex-
ecuting a valid search warrant. A con-
_ forming change is made in 115.91. on
customs clearance of mall.
. --Prison openings of mail addressed to
tfOlt614.7. The proposal contained no
Provision which would expressly
permit, and therefore would arguably
have prohibited, the opening and In-
spection of mall addressed to persons
confined in prisons. Jails, or other car-
. .recidoruil Institutions. It was therefore
suggested that a provision which rec-
ognized the long-standing practice of
prisons. Jails, and other correctional
institutions of censoring mail entering
prisons and other places of confine-
ment should be included in the regula-
tions. It was also suggested that such a
provision would, in addition. clarify
. the duties, and responsibilities of
prison officials in handling prisoner
mail and the limitations on their au-
thority to detain, open, or return mail
addressed to prisoners.
Since prison censorship of Inmate
road entering the prison is lawfully
access to mall and mall handling areas. to
deal with conditions dangerous to life. limb,
or property. such as fires or flooding, or to
make lawful agrees."
?
RULES AND REGULATIONS
conducted with the consent of the
Inmate-addressee, an explicit excep-
tion for such censorship did not
appear to be absolutely necessary.
However, so as to avoid unnecessary
disputes as to whether postal regula-
tions prohibit such censorship. the
regulations include a new provision,
115.97, which would explicitly permit
Jail, prison. or other correctional insti-
tution officials, within the limits of
the law, to open, inspect, and censor
incoming mail addressed to inmates to
the extent that the inmates consent to
receive their mail at the prison
through the prison authorities. The
implied exemption for such prison
mail censorship from the literal re-
qulrements of 18 U.S.C. 1701-1702 Ls
generally well-established, at least
where the inmate consents to receive
his mall at the prison through the
prison authorities. Procunier v. Mar-
tin.es, 416 U.S. 398 (1974): 1 Op. Solis.
P.0; Dept No. 289 at 719 (1882): 9 Op.
Salle. P.O. Dep't No. 811 at 240 (1949).
The permissible scope of such prison
censorship, however,' has been a
matter- of controversy. Section 115.97
would prescribe an appropriate excep-
tion only for such prison mail censor-
ship as may be authorized and lawful.
Section 115.97 would prescribe the
minimum safeguards necessary to pro-
tect the uncontroverted rights of pris-
oners regarding correspondence ad.
dressed to them through the U.S.
moni and of the persons addressing
mail to them through the mails.
The regulations, however, do not at-
tempt to clarify all unresolved and
controversial issues in this area. There
are many State. Federal. and military
places of confinement, operating
under different authorities and Lacing
different prison security conditions. It
has not been shown that there Is a
strong need for uniform, nationwide
rules on all details of prisoner mail
rights that overrides the interests of
the various prison authorities in
having latitude to provide for the se-
curity of prisons. Moreover, the Postal.
Service's authority is limited by law to
matter originating in the U.S. mall
system: it does not extend to prisoner-
originated "mail" before the prison au-
thorities permit it to be deposited in
the U.S. mails. Many of the details of
Prison mail censorship may best be
left to the appropriate prison authori-
ties, Congress and the State legisla-
tures, and the State and Federal
courts.' _
COS foists clearance of incoming marl
The proposal would have permitted
designated personnel of the U.S. cus-
toms Service, without a search war-
rant but upon reasonable suspicion, to
open and inspect the contents of mail
originating outside the Customs Terri-
tory of the United States ("CTUS")
and addressed for delivery inside the
CTUS? except sealed mail addressed
14.3C'
for delivery in the Dirmict of Co:um-
Ma_ The proposal would have prohibit-
ed Customs officials from.reas.g, cor-
respondence in sealed mail without a
search warrant. Several comments re-
ceived by the Postal Service objected
that the' customs opening of mail with-
out a search warrant was an unjusti-
fied invasion of privacy, and that a
search warrant should be required on
grounds of constitutional law and for
Policy reasons. Other comments- ex-
pressed approval of such customs mall
openings as may appear neceiwarl for
the enforcement of Import prohibi-
tions, but stressed that the privacy of
correspondence should be proteried.
After the publication of the propos-
al, the United States Supreme Court.
reversing a decision of the United
States Court of Appeals for the Dis-
trict of Columbia Circuit, held that.
evidence obtained' when Customs Ser-
vice personnel opened and inspected
the contents of sealed letter mail from
Thailand, without a search warrant.
was admissible, when the opening was
authorized by Joint postal-customs
regulations, the customs inspector had.
reasonable cause to suspect that the
mail contained dutiable or prohibited
Items, and the reading of the corre-
spondence Inside without a warrant
was prohibited. The Court concluded
that such openings and inspections of
such sealed letter mall were autho-
rized by. law and were not unconstitu-'
_tonal. United States w. Ramsey. 431.
U.S. 606 (1977). The Court emphasized
that. its opinion did not express an
opinion on the constitutionality or le-
gality of reading correspondence with-
outs search warrant. -
We believe that so long as the priva-
cy of correspondence is protected,
some program of providing for cus-
toms clearance of Incoming mail
should be continued. The incoming
letter mails may contain not only cor-
respondence but merchandise as well.
In recognition of the varied nature of
the contents of letter maiL the Univer-
sal Postal Convention, which generally
regulates the exchange of Internation-
al letter post items, specifically autho-
rizes each postal adz:Innis-oration acting
In accordance with Its domestic law to
open letter post items for customs
clearance. Universal Postal Conven-
tion, art. 34: Detailed Regulations. Arc.
118; Lausanne. 1974, T.I.A.S. No. 8231.
Although the Postal Service In accor-
dance with domestic law does not
permit its employees to open sealed
letter mail without either consent or a
search warrant. Ex parte Jackson. 96
U.S. 727, 733 (1877) (dictum). United
States v. Van. Leettwen, 397 U.S. 249
(1970), 18 lJ.S.C. 1702. 1703(a) (19761.
the Postal Service believes that it
would be inconsistent with the laws
regulating and taxing Imports for the
Postal Service not to cooperate with
the Customs Service in any fashion
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154
-and thus establish the international
mails as a. secure means of bringing
.dutiable raerotandisp and prohibited
Items Into the United States, without
? observing the-custom requirements of
lawn. In view of the Ramsey case,
the constitutionality and legally of
the- Proposed cooperation are not in
doubt.
After the Rconseff case was decided,
a bill was 'introduced in Congress to re-
quire a search warrant for customs
openings of sealed letters, and over-
sight hearings were begun by the Sub-
committecon Information and Privacy
? of the Some Government Operations
Committee_ concerning. the question of
whether- he a -search warrant.
A preliettisaremport bas been issued
- by the .0rementtee. "Investigation of
? IfaS Opening by the Customs Ser.
trice; If_ra- Rep- No. 95-794. 95th
,, -Cong.. 1st e.