LAW AND NATIONAL SECURITY INTELLIGENCE REPORT

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• Document Creation Date: December 22, 2016
• Document Release Date: September 13, 2010
• Sequence Number: 15
• Publication Date: December 1, 1981
• Content Type: OPEN SOURCE

STAT
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/A ;;\ AMERICAN BAR ASSOCIATION
STANDING COMMITTEE Law and National Security
INTELLIGENCE REPORT
Morris I. Leibman, Chairman December 1981
State Department Documents
Soviet Disinformation and Forgeries
Continued front previous issue
Case Studies
The Soviet Anti-TNF Modernization Campaign in
Europe. The Soviet campaign in Europe against
NATO TNF modernization is a good illustration of
Soviet use of "active measures." After a long and un-
precedented buildup of Soviet military strength in
Europe, including the deployment of new SS-20 nu-
clear missiles targeted on Western Europe, the NATO
ministers in December 1979 decided to modernize
NATO's TNF capabilities. The Soviets immediately
began an ongoing, intensive campaign to develop an
environment of public opinion opposed to the NATO
decision. (Of course, not all opposition to the TNF
modernization decision is inspired by the Soviet
Union or its "active measures" activities.)
In this campaign, Soviet diplomats in European
countries pressured their host governments in many
ways. In one European country, the Soviet ambas-
sador met privately with the Minister of Commerce
to discuss the supply and price of oil sold by the Soviet
Union to that country. During the discussion, the am-
bassador gave the minister a copy of Leonid Brezh-
nev's Berlin speech dealing with TNF. He suggested
that if the host government would oppose TNF mod-
ernization, the Soviet Ministry of Foreign Affairs
might persuade the Soviet Ministry of Foreign Trade
to grant more favorable oil prices.
Moscow has spurred many front groups to oppose
the TN F decision through well-publicized conferences
and public demonstrations. To broaden the base of the
anti-TNF campaign, front groups have lobbied non-
Communist participants, including antinuclear groups,
pacifists, environmentalists, and others. In some
cases, the activities of these broad front groups have
STAT
been directed by local Communist parties. Soviets
have predictably devoted the greatest resources to
these activities in NATO countries where opposition
to the TNF modernization decision is strongest.
In the Netherlands, for example, the Communist
Party of the Netherlands (CPN) has set up its own
front group-Dutch Christians for Socialism. In No-
vember 1980, the Dutch "Joint Committee-Stop the
Neutron Bomb-Stop the Nuclear Armament Race,"
which has ties to the CPN, sponsored an interna-
tional forum against nuclear arms in Amsterdam. The
forum succeeded in attracting support from a variety
of quarters, which the CPN is exploiting in its cam-
paign to prevent final parliamentary approval of the
TNF decision.
Conference on First Amendment,
National Security Planned
The ABA Committee on Law and National Security
and the Center for Law and National Security of the
University of Virginia Law School are presenting a
conference on the First Amendment and national
security. The conference will review recent court de-
cisions, pending legislation, and current problems
faced by those responsible for safeguarding both civil
liberties and national security.
The conference will be held on January 8 (keynote
dinner), 9 and 10, 1982, at the Sugarbird Hotel, Water
Island, St. Thomas, Virgin Islands. Efforts are being
made to charter an Eastern Airlines jet to fly to St.
Thomas from Washington, D. C. (BWI) at $400 round
trip per person. Lawyers interested in attending should
contact Mari Normyle, Administrator of the Center,
at the School of Law, University of Virginia, Char-
lottesville, Virginia 22901, Tel.: [phone].
Spouses are welcome.
Editor: William C. Mott. Associate Editor: David Martin. Standing Committee on Law and National Security,
ABA, 1155 East 60th Street, Chicago, Ill. 60637.
Copyright ?1981 American Bar Association
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Soviet Disinformation and Forgeries
Con tinue d.frorn page l
The Soviet Campaign Against Enhanced Radiation
Weapons (ERW). The Soviets, throughout 1977 and
early 1978, carried out one of their largest, most ex-
pensive, and best orchestrated "active measures"
campaigns against enhanced radiation (neutron) weap-
ons. (Again, not all opposition to the U. S. decision to
produce the enhanced radiation weapon is Soviet
inspired.)
This Soviet campaign has had two objectives: first,
to halt deployment of ERW by NATO; second, to
divide NATO, encourage criticism of the United
States, and divert Western attention from the growing
Soviet military buildup and its threat to Western
Europe and the world.
? Phase one occurred throughout the summer of
1977. The Soviets staged an intense propaganda blitz
against ERW and the United States, involving numer-
ous demonstrations and protests by various "peace
councils" and other groups. This phase culminated in
a Soviet-proclaimed international "Week of Action."
? Phase two began in January 1978 with Soviet
propaganda exploitation of a letter from Leonid
Brezhnev to Western heads of government warning
that production and deployment of ERW constituted a
serious threat to detente. A barrage of similar letters
from members of the Supreme Soviet went to Western
parliamentarians. Soviet trade union officials for-
warded parallel messages to Western labor counter-
parts.
? Phase three came in early 1978 with a series of
Soviet-planned conferences, under different names
and covers, designed to build up the momentum of
anti-ERW pressure for the U.N. Special Session on
Disarmament of May-June 1978. These meetings and
conferences, held throughout February and March,
were organized either by the World Peace Council or
jointly sponsored with established and recognized in-
dependent international groups.
The Soviet campaign succeeded in complicating
allied defense planning and focusing criticism on the
United States. A top Hungarian Communist Party offi-
cial wrote that "the political campaign against the
neutron bomb was one of the most significant and suc-
cessful since World War Two." The propaganda cam-
paign did not end in 1978; it was incorporated into the
anti-TNF effort. With the recent U. S. decision to
proceed with ERW production, the Soviets have be-
gun a new barrage of propaganda and related "active
measures."
Soviet "Active Measures" Toward El Salvador. Com-
plementing their overt public support for the leftist
insurgency in El Salvador, the Soviets have also en-
gaged in a global "active measures" campaign to
sway public opinion. These activities include a broad
range of standard techniques, including forgeries, dis-
information, attempted manipulation of the press, and
use of front groups. The obvious dual purpose has
been to increase support for the insurgency while try-
ing to discredit U. S. efforts to assist the Government
of El Salvador.
In 1980, Salvadoran leftists met in Havana and
formed the United Revolutionary Directorate (DRU),
the central political and military planning organization
for the insurgents. During the same period, the Salva-
doran Revolutionary Democratic Front (FDR) was
established, with Soviet and Cuban support, to repre-
sent the leftist insurgency abroad. The FDR and DRU
work closely with Cubans and Soviets, but their col-
laboration is often covert.
The FDR also supported the establishment of Sal-
vadoran solidarity committees in Western Europe,
Latin America, Canada, Australia, and New Zealand.
These solidarity committees have disseminated prop-
aganda and organized meetings and demonstrations in
support of the insurgents. Such committees, in coop-
eration with local Communist parties and leftist
groups, organized some 70 demonstrations and pro-
tests between mid-January and mid-March 1981 in
Western Europe, Latin America, Australia and New
Zealand.
The FDR and DRU are careful to conceal the So-
viet and Cuban hand in planning and supporting their
activities and seek to pass themselves off as a fully in-
dependent, indigenous Salvadoran movement. These
organizations have had some success in influencing
public opinion throughout Latin America and in West-
ern Europe. The effort of the insurgents to gain legit-
imacy has been buttressed by intense diplomatic ac-
tivity on their behalf. For example, at the February
1981 nonaligned movement meeting in New Delhi, a
30-man Cuban contingent, cooperating closely with
six Soviet diplomats, pressed the conference to con-
demn U. S. policy in El Salvador.
At another level, the Soviet media have published
numerous distortions to erode support for U. S. policy.
For example, an article in the December 30, 1980
Pravda falsely stated that U. S. military advisers in
El Salvador were involved in punitive actions against
noncombatants, including use of napalm and herbi-
cides. In another particularly outrageous distortion, a
January 1, 1981 article in the Soviet weekly Literatur-
naya Gazeta falsely stated that the United States was
preparing to implement the so-called centaur plan for
"elimination" of thousands of Salvadorans.
Campaign Against the U. S.-Egyptian Relationship
and the Camp David Process. In the Middle East,
Moscow has waged an "active measures" campaign
to weaken the U. S.-Egyptian relationship, undermine
Continued on hack page
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The First (and Last?) Published
Opinion of the Intelligence Court
The United States Foreign Intelligence Surveillance
Court (FISC) issued its first, and perhaps its last, pub-
lished opinion on June 11, 1981. Since it is not to be
found in any official reporter, as a service to the pro-
fession it is published in full below. Its genesis, how-
ever, is more interesting than its content-and more
revealing of the secret operations of the court.
The FISC was established by the Foreign Intelli-
gence Surveillance Act of 1978 (FISA), 92 Stat. 1783,
50 U.S.C. ? 1801, with the sole function "to hear ap-
plications for and grant orders approving electronic
surveillance ... under ... this Act." It is not a full-time
court nor even, we understand, a court that ever as-
sembles en bane except for an annual conference. All
its judicial business can be conducted by its judges
acting individually-and perhaps must be conducted
in that fashion since the Act provides for applications
to "a judge," 18 U.S.C. ? 1804(a), issuance of orders
by "the judge," 18 U.S.C. ? 1805(a), contains no pro-
vision for rehearing en bane, and routes all appeals
from denials of applications to a separately consti-
tuted appellate panel, 18 U.S.C. ? 1803(b). But cf.
Textile Mills Corp. v. Commissioner, 314 U. S. 326
(1941). The full court consists of seven district
court judges designated by the chief justice of the
United States.
The problem which led to creation of the court is
simple enough to understand: Ordinary warrants for
electronic surveillance, issuable under Title III of the
Omnibus Crime Control and Safe Streets Act, 18
U.S.C. ? 2510, are unsatisfactory with respect to for-
eign intelligence and counterintelligence investiga-
tions for a number of reasons: (1) Sometimes the re-
quirement of "probable cause" to believe that crim-
inal activity is involved cannot be met-especially
when intelligence (as opposed to counterintelligence)
information is sought. (2) The requirement for serv-
ice of the warrant-even if it is only complied with (as
Title III permits) after the surveillance is completed-
will often destroy the usefulness of the operation.
(3) District courts in general do not have secure facili-
ties adequate for the protection of the top-secret infor-
mation which the applications contain (highly desired,
needless to say, by the intelligence services of other
countries).
Before passage of the FISA, foreign intelligence and
counterintelligence surveillance was simply extra-
judicial. The authorizing official was the attorney gen-
eral, who was charged by executive order with assur-
ing the existence of conditions that would prevent the
electronic "search" from being "unreasonable" and
hence unconstitutional. (The text of the Fourth
Amendment, of course, does not categorically require
warrants for all searches, but merely prohibits searches
that are "unreasonable." Other examples of warrant-
less searches exist, such as searches in the course of
arrest.) The Watergate era shattered public confidence
in the adequacy of this arrangement, and the FISC
was the result.
It is noteworthy, and central to the present story,
that the FISA covers only electronic surveillance. If it
seems strange that foreign intelligence and counterin-
telligence wiretaps should require a warrant while
physical searches for the same purposes (so-called
"black-bag jobs," to use the pejorative term) should
not, the explanation depends upon whom you ask.
The president and his lawyers would maintain that,
in extremis, even wiretapping does not require ajudi-
cial warrant, despite the FISA-that if, in a particular
case, the procedures of that legislation should impair
the president's ability to protect the national security
he would be authorized by his powers under the Con-
stitution to proceed without them. Civil libertarians,
on the other hand, would maintain that there is no
presidential authority to proceed without a judicial
warrant for either electronic or physical searches. But
a nonargumentative and entirely accurate (if less sub-
stantive) explanation is simply that, when the FISA
was passed, the civil libertarians would not accede to
the issuance of warrants for physical searches with-
out "probable cause" to believe the existence of crim-
inal activity; and since the president believed he had
the power to conduct such searches even without stat-
utory authorization, the point was simply finessed. As
the House Intelligence Committee report disingenu-
ously explained:
Although it may be desirable to develop legis-
lative controls over physical search tech-
niques, the committee has concluded that
these practices are sufficiently different from
electronic surveillance so [sic] as to require
separate consideration by the Congress. The
fact that the bill does not cover physical
searches for intelligence purposes should not
be viewed as congressional authorization for
such activities. H. Rep. 95-1283, 95th Cong.,
1st Sess. at 53 (1978).
Then, after passage of the FISA and during the term
of a Carter administration imbued with civil libertarian
concerns (and perhaps concerned also with self-pro-
tection against civil and criminal liability), the plot
thickens. Attorney General Civiletti took the position
that the FISC had authority to approve physical
searches, and the Justice Department sought and was
granted three such warrants. It is not clear how thor-
oughly the issue of jurisdiction was briefed for the
issuing judges, nor whether they consulted with their
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Intelligence Court Opinion
Continued from page 3
colleagues. Since it is difficult (no, to be frank, utterly
impossible) to find any jurisdiction to issue warrants
for physical searches in the FISA, the department pre-
sumably relied, if it addressed the issue, upon a theory
of "inherent or implied authority"-a sort of doctrine
of "necessity" because Fourth Amendment considera-
tions were involved. (This was the position set forth in
a department memorandum to FBI Director Webster.
Memorandum from Kenneth C. Bass III to William H.
Webster, Oct. 14, 1980, reprinted in H. Rep. 96-1466,
96th Cong., 2d Sess. at 8 (1980).) Even that theory is
difficult to sustain, since to the extent there is a Fourth
Amendment "necessity," it is a puzzlement why the
necessity should be met by the FISC-which the leg-
islative history clearly demonstrates was not intended
to have the power-rather than by the regular district
courts.
The Civiletti applications sought to meet this prob-
lem, apparently, by seeking the warrants from the
FISC judges "in their dual capacities as U. S. district
court judges and as judges designated to serve on the
Foreign Intelligence Surveillance Court." Bass memo-
randum, supra, H. Rep. 96-1466 at 9. But this is an
attempt to make one strong link by joining two weak
ones; the district judges assuredly have explicit au-
thority to approve physical searches (which the FISC
does not possess), but they lack explicit authority
(which the FISC does possess) to proceed without
probable cause, to accept as adequate the manner of
proof specified in the FISA, and to dispense with serv-
ice of the warrant. It is most difficult to find all the
latter details constitutionally "inherent" or "implied."
In all of this, the Civiletti Justice Department (judg-
ing, again, from the Bass memorandum) sought to
maintain the position that though the warrants were
obtainable they were "neither constitutionally nor
statutorily required." "The Judiciary," it asserted,
"has concurrent jurisdiction with the Executive
Branch to authorize physical searches for intelligence
purposes." Id., H. Rep. 96-1466 at 9. The problem
with this is that one of the few apparent certainties of
Fourth Amendment law is that when a judicial war-
rant can be obtained (without imparing the govern-
ment function for which it is sought), it must be ob-
tained, and the search is ipso facto "unreasonable,"
and hence unconstitutional, without it.
Enter the Reagan administration, which probably
was troubled by the last point, and certainly did not
believe that the judges of the FISC (even while wear-
ing their district court robes beneath their FISC
cloaks) had the authority to issue physical-search war-
rants. Consider, however, the position of the depart-
ment officials: The FISC had issued warrants three
times; and since it is true that a warrant which can be
obtained must be obtained, the attorney general would
be acting with reckless disregard of the Fourth Amend-
ment rights of the surveillance targets (not to mention
his own financial security and physical freedom) to
gamble on the most recent department interpretation
of the law. The resourceful solution sought by the de-
partment was to apply to the FISC for a warrant and
to argue that the court had no authority to grant the
application.
There was, apparently, reason to believe that the
court would agree with the new department position.
Even before the change of administrations -and per-
haps prompted by concerns expressed by the Senate
and House Intelligence Committees (reflected in their
subsequently issued reports cited herein)-the FISC
judges had apparently had second thoughts about the
physical-search subpoenas they had issued, and re-
quested a memorandum on the subject from their law
clerk. This was produced on Oct. 30, 1980, and con-
cluded that no authority existed. H. Rep. 96-1466
at 17.
In any case, the Reagan Justice Department pro-
ceeded with the physical-search application it hoped
to have denied, and it won-which is to say it lost-
by which I mean the application was denied. Judge
Hart, to whom the application was made, found lack
of jurisdiction. The last paragraph of his opinion sum-
marizes his reasoning:
In view of the clearly expressed intent of
Congress to withhold authority to issue or-
ders approving physical searches, it would be
idle to consider whether a judge of the FISC
nevertheless has some implied or inherent
authority to do so. Obviously, where a given
authority is denied it cannot be supplied by
resort to principles of inherent, implied or
ancillaryjurisdiction.
The opinion is careful to negate authority on the part
of judges under either FISC cloak or district court
robe-which is important, because uncertainty as to
whether a regular district judge could issue the war-
rant would perpetuate the department's dilemma.
Judge Hart noted, moreover (gratuitously, perhaps,
but most helpfully), that "the other designated judges
of the FISC concur in this judgment."
The episode is surely bizarre; indeed, it must be
super-bizarre, for otherwise it would not stand out
from the rest of the landscape in the foreign intelli-
gence field. It may contain, however, some useful
lessons. One of the criticisms levelled against the
concept of a foreign intelligence surveillance court
when it was first proposed was the incompatibility of
secret action with courts of law. Public and profes-
sional scrutiny of actions and of the stated reasons for
Continued on page 6
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Seminar on Intelligence
For Teaching Faculty Planned
The Consortium for the Study of Intelligence (CSI),
a project of the National Strategy Information Center,
will sponsor a second annual faculty seminar on the
teaching of intelligence from July 16-25, 1982, at Bow-
doin College in Maine. The objectives of the seminar
are to deepen substantive knowledge of the intelli-
gence process and product, expand and improve
teaching of intelligence-related concerns, and to pro-
mote professional contacts among scholars in the field.
The seminar format will include: lectures by spe-
cialists with diverse experience and perspectives; in-
tensive discussions following each lecture; workshops
on teaching methods, review of various teaching and
research_ resources; and display of materials collected
or developed by the CSI staff.
Applications are invited from law professors, espe-
cially those interested in constitutional, international,
national security and intelligence-related law. CSI
will pay transportation and room and board costs.
Approximately 25 teaching faculty from a variety of
disciplines will be selected, and final notifications will
be mailed by the middle of March.
For further information and application forms
contact:
Dr. Roy Godson, Coordinator
Consortium for the Study of Intelligence
1730 Rhode Island Avenue, N.W., Suite 601
Washington, D. C. 20036
Tel.: 202 - 296-6406
The deadline for applications will be February 17,
1982.
Dezinformatsiya or
Misleading the Adversary
Editor's Note: The Chairman of the ABA Standing
Committee on Law and National Security has passed
on to its a request from a reader of the Intelligence
Report that we publish a selected bibliography of
books and mini-books on the subject of intelligence
and national security law. Fortuitously, the National
Strategy Information Center, which has close ties
with the committee in that its President, Frank Bar-
nett, is the committee's educational consultant, has
just published the fourth in a series of books on the
subject Intelligence Requirements for the 1980's. The
latest hook in the series, Covert Action, is reviewed
below.
Covert intelligence is an arcane art which is part
and parcel of the whole Soviet effort to defeat the
West. Readers of this Report will recall Ily Dzhirk-
velov, the KGB defector, in his interview published
in our July 1981 issue described the KGB disinforma-
tion service and some of its covert operations around
the world. Similarly, Galina Orionova, the defector
from Georgy Arbatov's American Institute, stated in
our September 1981 issue: "Disinformation of for-
eigners, particularly of the Americans, is the first duty
of every ISKAN employee."
Yet General Vernon Walters in Covert Action ac-
curately describes the Soviet impression ofAmerica in
these words:
Their attitude toward intelligence is typical of
their guilt-ridden state. They have always
been ambivalent toward it. When they do not
feel threatened, they regard it as immoral or
else disband it entirely.
It's almost as though we were back in the days when
Secretary of War Henry Stimson said of code-break-
ing operations in 1940, "Gentlemen do not read each
other's mail."
The Soviets have no such compunctions. Their atti-
tude toward intelligence was perhaps best described
by Winston Churchill when he told Secretary For-
restal the Soviets
had no understanding of such words as "hon-
esty," "honor," "trust," and "truth"-in fact,
they regard these as negative virtues. They
will, he said, try every door in the house, enter
all rooms which are not locked, and when
they come to one that is barred, if they are
unsuccessful in breaking through it, they will
withdraw and invite you to dine genially that
same evening.
The term "covert action" is essentially an American
one that came into use during the post-World War
II period. Few other nations make such a distinction
between overt and covert activities. This particular
instrument of influencing people and events is viewed
by most as a routine means for carrying out policy.
And indeed, the ability to penetrate and influence for-
eign nations is an important instrument in the hands of
any ruler. The Soviets have developed an impressive
array of covert action instruments, while the U. S.
has been engaged in unilateral disarmament in this
area. Soviet disinformation, clandestine broadcasting,
media penetration, agents of influence, blackmail and
forgery sew dissension and confusion in the West, but
have elicited almost no counter action. Many U. S.
leaders have taken the view that these measures are
immoral, or could get us into trouble, making even dis-
cussion of them unseemly. The result has been a fail-
ure to make use of covert action to support U. S. ob-
jectives, as well as to defend the United States against
the covert measures of foreign governments.
Continued on page 6
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Misleading the Adversary
Continued from page 5
A new study on Covert Action by the Consortium
for the Study of Intelligence in its series Intelligence
Requirements for the 1980's examines how this has
happened, and includes many prescriptions to revive
Western covert capabilities. The study is edited by
Dr. Roy Godson of Georgetown University, the Co-
ordinator of the Consortium.
Contributors to the study made the following
observations
- Soviet covert action will continue on a global
scale. KGB penetration has proceeded with remark-
able ease in the open societies of the West.
-There are political, economic and social weak-
nesses in the Soviet Union which, should we choose
to do so, can be targeted and exploited. In the face of
adversaries for whom "active measures" are basic
tools of influence and power, Western lack of response
may prove extremely damaging.
- Our past record in covert action reveals a crip-
pling failure to integrate covert action into foreign
policy.
- Insurgencies will threaten pro-Western nations in
the 1980's. U. S. paramilitary operations alone may
ensure survival of some friendly nations. The U. S.,
however, must be willing to initiate such actions, in-
cluding support for coups and countercoups, rather
than merely reacting to them.
-Specific measures should be undertaken to raise
morale "in the trenches," to revive covert action plan-
ning staffs, and to encourage recruitment and training
of Americans and foreigners.
An exceptional group of contributors addressed
these themes combining the insights of former intel-
ligence professionals, academics, and active congres-
sional and executive branch experts. Dr. Adda Boze-
man, Professor of International Relations at Sarah
Lawrence College, dissects the cultural blinders which
have disarmed the West, and General Vernon Walters
(former deputy director of Central Intelligence and
now an ambassador-at-large and an advisor to Secre-
tary of State Haig) suggests how the U. S. might iden-
tify and exploit the vulnerabilities in the Soviet em-
pire. Dr. Angelo Codevilla (of the staff of the Senate
Select Committee on Intelligence) surveys the par-
ticular vulnerabilities in democratic, authoritarian and
totalitarian societies: Theodore Shackley assesses
paramilitary threats and possible responses based on
30 years as a CIA station chief; and Donald Jameson,
a former CIA covert action specialist, lays bare the
persistence of Soviet aggression by covert means.
Each chapter of Covert A ction includes both an orig-
inal paper contributed by the author with informed
and lively commentary by discussants, including Dr.
Paul Seabury, now a memberof the President's Foreign
Intelligence Advisory Board; John Barron, author of
the book The KGB: Ray Cline, former deputy director
for intelligence, CIA; Sen. Malcolm Wallop and Reps.
C. W. "Bill" Young and Les Aspin, members of the
Senate and House Intelligence Committees.
They all agree that our ability to sustain the Western
alliance and to reverse the influence of pro-Soviet and
anti-Western elements in the Third World demands a
re-thinking of the role of covert measures as an inte-
gral part of foreign policy.
Covert Action is the fourth volume in the series In-
telligence Requirements for the 1980's produced by
the Consortium for the Study of Intelligence, a project
of the National Strategy Information Center. This
series is unique in its attempt to explain the four major
components of intelligence -analysis and estimates,
counterintelligence, clandestine collection, and covert
action -and their symbiotic relationships.
Since 1979, the Consortium has sponsored five
research colloquia for which papers have been com-
missioned from high-ranking former intelligence pro-
fessionals, congressional intelligence experts, and aca-
demics with special knowledge of this subject.
Other volumes in the series are: Elements of Intel-
ligence (1979); Analysis and Estimates (1980); Coun-
terintelligence (1980), and Clandestine Collection,
due out in spring 1982.
Intelligence Requirements for the 1980's: Covert
Action is $7.50 (paperback), and is distributed by
Transaction Books. It and the volumes listed above
may be obtained from the National Strategy Informa-
tion Center, Inc., l l l East 58th Street, New York,
N.Y. 10022.
Intelligence Court Opinion
Continued from page 4
actions was, it was said, the traditional check against
judicial arbitrariness and the sole assurance of judicial
responsibility. And publication of opinions was the
only means of achieving consistency through a body
of rational precedent. Ordinary warrants, even though
issued ex parte, were not insulated from this process,
since they would often be challenged and reviewed in
the course of subsequent public criminal proceedings.
Intelligence warrants, by contrast, were meant never
to see the light of day.
The outcome of the present case does not vindicate
that concern, and may well indicate that it is exagger-
ated. Even before the change in administrations, the
FISC appeared en route to correcting its error, per-
haps because the oversight activities of the House and
Senate Intelligence Committees performed the func-
tion that public and professional scrutiny normally
discharges. It may be that there was something dis-
tinctive about the makeup of the committees or about
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the nature of the issue which precludes the generaliza-
tion that oversight will always perform this role. Even
so, it must at least be acknowledged that the system
worked in the present case.
It was also said, at the time the FISC was created,
that the expectation of greater protection from ajudi-
cial panel was a grand illusion; that, especially in such
matters involving national security, the courts would
rarely second-guess the determinations of the Execu-
tive. The warrant procedure, these voices warned,
would in fact reduce protection of civil liberties, by
trading this meaningless judicial involvement for the
greater exposure to civil liability (and hence the greater
attentiveness) that executive action without the pro-
tection of a warrant entails. And questions of civil lia-
bility aside, it would diminish the sense of responsibil-
ity of the attorney general-making what is, as a
practical matter, his final decision appear to be only an
application on his part to a higher tribunal. These con-
cerns do seem to be vindicated by the present case. If
the FISC could have been misled by the Justice De-
partment so easily on a pure point of law, how much
of an obstacle can it possibly present with respect to
the more problematic and debatable factual issues
bearing upon the propriety of a warrant?
The statistics suggest (though they can certainly
not be said to demonstrate) that the FISA has made
electronic surveillance easier. According to testimony
given by Attorney General Levi to the Senate Select
Committee to Study Government Operations with
Respect to Intelligence Activities in 1975, the number
of foreign intelligence and counterintelligence elec-
tronic surveillances in 1974 was 232. In 1980, accord-
ing to the annual report which ? 107 of the FISA re-
quires the attorney general to file with the Adminis-
trative Office of the U. S. Courts and the Congress, it
was 319. Assuming (what may well not be the case)
that the need for surveillance has been relatively stable
during this period, either of two conclusions may be
drawn: (1) with reduced accountability for their ac-
tions assured by the shield of a judicial warrant, at-
torneys general have been conducting surveillance
that should not be conducted and would not have been
conducted before; or (2) relieved from the unreason-
able pressure of possible civil liability for today's
activities to be imposed on the basis of tomorrow's
notions of security needs and libertarian rights, at-
torneys general have been conducting surveillance
that should be conducted but was not conducted
before.
One thing, at least, is clear: the Executive likes the
Act. As FBI Director Webster said at the June 1980
workshop sponsored by the ABA Standing Committee
on Law and National Security and the University of
Chicago (quoted in the Senate Intelligence Commit-
tee's 1980 report, S. Rep. No. 96-1017, 96th Cong.,
2d Sess. at 6): "[O]n the basis of our experience, ... it
works well and has not had a deleterious effect on our
counterintelligence effort." Indeed, the statistics on
warrant approvals being what they are, one suspects
that the Executive must be considering the desirability
of extending the FISA to cover physical searches as
well. The impediment, of course, is that the same op-
position from libertarians which prevented that exten-
sion in 1978 still exists-and has probably been stiff-
ened by the same statistics. I would guess that the
illogical compromise reached in 1978 is likely to en-
dure, and that the half-warrantless regime of foreign
intelligence surveillance will be with us for some time.
One last moral, or perhaps merely a wry observa-
tion, suggests itself: How nice it is to be a judge! The
FISC now acknowledges, in effect (though it does not
refer to the fact in its opinion), that it wrongfully ap-
proved three physical searches. Had the attorney gen-
eral given such wrongful approval, he would have
serious worries about civil liability, see Bivens v. Six
Unknown Federal Narcotics Agents, 403 U. S. 388
(1971). Which means, of course, that even when the
attorney general's approval is rightful it lets him in for
years of annoyance and expense in defending civil
litigation. (Suits are still pending against Attorneys
General Levi, Bell, and, I presume, Civiletti.) But as
far as a confessedly wrongful approval by the FISC is
concerned, not to worry. The Supreme Court has
perceived that there is something special about
courts that requires absolute civil immunity, even
when the action taken "was in error, was done mali-
ciously, or was in excess of ... authority." Stump v.
Sparkman, 435 U. S. 349, 356 (1978). This absolute
immunity even rubs off on those "participating in the
judicial process," Butz v. Economou, 438 U. S. 478,
509 (1978), such as prosecutors, /mbler v. Pachtman,
424 U. S. 409 (1976), and extends to adjudicating offi-
cers and prosecuting employees in agency proceed-
ings, Butz v. Economou, supra, 438 U. S. at 511-17. It
"stems from the characteristics of the judicial proc-
ess," and is necessary to assure that its beneficiaries
can perform their functions "without harassment or
intimidation," id. at 512, and without risk that their
"discretion ... be distorted," id. at 515. Other officers
of the executive branch, on the other hand - including
most specifically those who must decide whether a
search is lawful and necessary to protect society, see
id. at 505-06-do not require or merit such protection,
and may be sued on the ground that they knew or
should have known they were acting outside the law,
Scheuer v. Rhodes, 416 U. S. 232 (1974). How nice to
be a judge-at least in a society where the rules reflect
the distinctive priorities of (because they are made by)
judges!
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Intelligence Court Opinion
Continued from page 7
IN THE MATTER OF THE APPLICATION
OF THE UNITED STATES FOR AN ORDER
AUTHORIZING THE PHYSICAL SEARCH OF
NONRESIDENTIAL PREMISES AND
PERSONAL PROPERTY
The United States has applied for an order au-
thorizing the physical search of certain real and per-
sonal property. I have decided that as a designated
judge of the United States Foreign Intelligence Sur-
veillance Court (FISC) I have no authority to issue
such an order. I am authorized to state that the other
designated judges of the FISC concur in this judgment.
The FISC was established by the Foreign Intelli-
gence Surveillance Act (FISA), 92 Stat. 1783, 50
U.S.C. 1801. It consists (sec. 103(a)) of seven United
States district court judges designated by the Chief
Justice "who shall constitute a court which shall have
jurisdiction to hear applications for and grant orders
approving electronic surveillance anywhere within
the United States under the procedures set forth in
this Act." As an inferior court established by Con-
gress pursuant to Article III of the Constitution, the
FISC has only such jurisdiction as the FISA confers
upon it and such ancillary authority as may fairly
be implied from the powers expressly granted to it.
Obviously, the instant application implicates a ques-
tion of the jurisdiction of the FISC under the terms of
the FISA. Here, as in any case involving statutory
interpretation, ". . . the meaning of the stature [sic]
must, in the first instance, be sought in the language in
which the act is framed, and if that is plain.. . the sole
function of the courts is to enforce it according to its
terms." Caminetti v. United States, 242 U.S. 470,
485 (1917). In my opinion, the language of the FISA
clearly limits the authority of the judges designated to
sit as judges of the FISC to the issuance of orders
approving "electronic surveillance" as that term is
defined in the act.
"Electronic surveillance" is defined in precise terms
in sec. 101(f). It includes (1) the "acquisition by an
electronic, mechanical, or other surveillance device of
the contents of any wire or radio communication" by
or to a U. S. person in the U. S., (2) the acquisition by
such a device of the "contents of any wire communica-
tion to or from a person in the" U. S., (3) the acquisi-
tion by such a device of the "contents of any radio
communication . . . if both the sender and all intended
recipients are located within the" U. S., and (4) "the
installation or use of" such a device "in the United
States for monitoring to acquire information, other
than from a wire or radio communication." 1
The reference throughout this subsection is to
"electronic, mechanical or other surveillance device."
The purpose is the "acquisition" of "the contents" of
a wire or radio communication or monitoring (par. 4)
to "acquire information, other than from a wire or
radio communication." (Emphasis added.) Clearly,
the thrust is a search, by the use of surveillance de-
vices, for words or other sounds to acquire "foreign
intelligence information" as that term is defined in sec.
101(e). There is not a word in the definitions of "elec-
tronic surveillance" even remotely indicating that the
term encompasses a physical search of premises or
other objects for tangible items.2
The limiting terms of sec. 101(f) apply, of course,
throughout the FISA. As noted above, FISC "shall
have jurisdiction to hear applications for and grant
orders approving electronic surveillance anywhere
within the United States under the procedures set
forth in this Act" (sec. 103(a)); an "application for an
order approving electronic surveillance shall be
made," etc. (sec. 104(a)): "the judge shall enter an ex
parte order as requested or as modified approving the
electronic surveillance if he finds," etc. (sec. 105(a)).
The legislative history of the FISA confirms what
the statutory language so plainly teaches: the FISC
has no jurisdiction in the area of physical searches.
The committee reports deal specifically with the sub-
jects of physical searches and the opening of mail;
they make the same distinction between such searches
and searches by electronic surveillance as is so clearly
drawn in the very terms of the FISA. H. Rep. 95-1283
of the House Intelligence Committee puts the dis-
tinction sharply (p. 53):
1 It will be noted that these definitions limit the authority
to conduct electronic surveillances to the U. S. in a geo-
graphic sense as defined in sec. 101(i). The drafters left to
another day the matter of "broadening this legislation to
apply overseas . . . [because] the problems and circum-
stances of overseas surveillance demand separate treat-
ment." H. Rep. 95-1283, pp. 27-28. See also id., p. 51; S.
Rep. 95-701, pp. 7, 34-35.
2 Paragraph (4) of sec. 101(f) provides for the "installation
or use" of a surveillance device "for monitoring to acquire
information." "This is intended to include the acquisition or
oral communications." H. Rep. 95-1283, p. 52. By implica-
tion, it encompasses the means necessary to make an instal-
lation. This is made clear by the requirement that an applica-
tion to a judge of the FISC state "whether physical entry is
required to effect the surveillance" (sec. 104(a)(8)) and the
provision that an order approving an electronic surveillance
shall specify "whether physical entry will be used to effect
the surveillance." Sec. 105(b)(1)(D). But all that is author-
ized is "physical entry." Such an authorization cannot be
bootstrapped into authority to search entered premises for
tangible items. The "search" in such a situation is limited to
such observation of the premises as may be necessary to
make an effective installation of the surveillance device.
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The committee does not intend the term "sur-
veillance device" as used in paragraph (4)
[of sec. 101(f)] to include devices which are
used incidentally as part of a physical search,
or the opening of mail, but which do not con-
stitute a device for monitoring. Lock picks,
still cameras, and similar devices can be used
to acquire information, or to assist in the
acquisition of information, by means of phys-
ical search. So-called chamfering devices can
be used to open mail. This bill does not bring
these activities within its purview. Although
it may be desirable to develop legislative con-
trols over physical search techniques, the
committee has concluded that these practices
are sufficiently different from electronic sur-
veillance so as to require separate considera-
tion by the Congress. The fact that the bill
does not cover physical searches for intelli-
gence purposes should not be viewed as
congressional authorization for such activi-
ties. In any case, any requirements of the
fourth amendment would, of course, continue
to apply to this type of activity.
At the end of the paragraph the committee dropped a
footnote stating: "It should be noted that Executive
Order 12036, Jan. 24, 1978, places limits on physical
searches and the opening of mail." That order (43 Fed.
Reg. 3674, 3685) governs the conduct of physical
searches without judicial warrant for foreign intelli-
gence purposes pursuant to the constitutional authority
of the President.
Thus, the clearly expressed view of the House In-
telligence Committee was (1) that the FISA does not
authorize physical searches or the opening of mail for
foreign intelligence purposes and (2) that until Con-
gress legislates in those areas, the executive branch is
relegated to the President's inherent authority in such
matters or the procedures of F. R. Cr. P. 41.
The same view was articulated by the Senate Intel-
ligence Committee in its earlier S. Rep. 95-701, p. 38.
The language there is virtually the same as the lan-
guage of the House Intelligence Committee quoted
above. In addition, the Senate committee referred to
the bill S. 2525, 95th Cong., the National Intelligence
Reorganization and Reform Act of 1978, which, it
said, "addresses the problem of physical searches
within the United States or directed against U. S.
persons abroad for intelligence purposes." 3 In the
same vein, the Senate Judiciary Committee said (S.
Rep. 95-604, p. 6): "the bill does not provide statutory
authorization for the use of any technique other than
electronic surveillance, and, combined with chapter
IS. 2525 was a precursor of S. 2284, 96th Cong., the
National Intelligence Act of 1980, discussed below.
119 of title 18 [Title III of the Omnibus Crime Con-
trol and Safe Streets Act, 18 U.S.C. 2510] it consti-
tutes the exclusive means by which electronic sur-
veillance, as defined, and the interception of domestic
wire and oral communications may be conducted ..."
We have seen that Congress decided to consider
separately the subject or [sic] physical searches, in-
cluding the opening of mail. This subject was covered
by S. 2284 in the last Congress. Since it would have
amended and supplemented the FISA, it must be con-
sidered as part of the legislative materials bearing on
our question.
Title VIII of S. 2284, entitled, "Physical Searches
Within the United States" (Cong. Rec., daily ed., Feb.
8, 1980, pp. S 1325-S1327), was the vehicle for the
promised separate consideration of that subject. The
section-by-section analysis stated that the "court or-
der procedures of the [FISA] are extended to `physi-
cal search,' defined as any search of property located
in the United States and any opening of mail in the
United States or in the U. S. postal channels, under
circumstances in which a person has a reasonable ex-
pectation of privacy and a warrant would be required
for law enforcement purposes." /d., p. S1333. In a
statement joining in the introduction of S. 2284 (id., p.
S 1334), then chairman Bayh of the Intelligence Com-
mittee said (id., p. S 1335):
... But perhaps the best way to bring over-
seas surveillance and search powers under
the rule of law and within the constitutional
system of checks and balances is through this
Act. We must carefully consider these issues
in the weeks to come.
The same is true for the provisions that
bring physical search in the United States
within the framework of the Foreign Intelli-
gence Surveillance Act of 1978. Current re-
strictions on physical search under the Ex-
ecutive order procedures are very stringent.
Thus, the charter could result in the lifting
of certain limitations. However, without the
requirement in law to obtain a court order
under a criminal standard for searches of
Americans in this country, a future adminis-
tration could abandon the Executive order
procedures and assert "inherent power" to
search the homes and offices of citizens
without effective checks.
Title VIII contained 57 amendments of the FISA,
beginning with the insertion of the words, "physical
searches and" in the statement of purpose, so as to
read, To authorize physical searches and electronic
surveillance to obtain foreign intelligence informa-
tion," and changing the title of the Act to "Foreign
Intelligence Search and Surveillance Act." Id., p.
Continued on back page
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Intelligence Court Opinion
Continued front page 9
S1325. The other amendments would have added
similar appropriate language to nearly every section
of the FISA.
The foregoing review of the language of the FISA
and the reports of the three committees which gave
the legislation exhaustive consideration demonstrates
that the FISC has no jurisdiction to authorize physical
searches or the opening of mail. This conclusion is
buttressed by the fact that Congress subsequently
gave active consideration to the deferred question
whether the FISA should be amended to extend the
procedures of the Act to cover physical searches. That
question has not yet been resolved by amending or
other legislation.
In view of the clearly expressed intent of Congress
to withhold authority to issue orders approving phys-
ical searches, it would be idle to consider whether a
judge of the FISC nevertheless has some implied or
inherent authority to do so. Obviously, where a given
authority is denied it cannot be supplied by resort to
principles of inherent, implied or ancillary jurisdiction.
Soviet Disinformation and Forgeries
Continued front page 2
the Camp David peace process, and generally exacer-
bate tensions. A special feature of Middle East "ac-
tive measures" activities has been the use of forgeries,
including:
? A purported speech by a member of the U. S. Ad-
ministration which insulted Egyptians and called for
"a total change of the government and the govern-
mental system in Egypt." This forgery, which surfaced
in 1976, was the first of a series of bogus documents
produced by the Soviets to complicate U. S.-Egyptian
relations.
? A forged document, allegedly prepared by the
Secretary of State, or one of his close associates, for
the President, which used language insulting and offen-
sive to President Sadat and other Egyptians and also
to other Arab leaders, including King Khalid of Saudi
Arabia. This forgery was delivered anonymously to
the Egyptian Embassy in Rome in April 1977.
? A series of forged letters and U. S. Government
documents, which criticized Sadat's "lack of leader-
ship" and called for a "change of government" in
Egypt. These forgeries surfaced in various locations
during 1977.
? A forged dispatch, allegedly prepared by the U. S.
Embassy in Tehran, which suggested that the United
States had acquiesced in plans by Iran and Saudi
Arabia to overthrow Sadat. This forgery was sent by
mail to the Egyptian Embassy in Belgrade in August
1977.
? A forged CIA report which criticized Islamic
groups as a barrier to U. S. goals in the Middle East
and suggested tactics to suppress, divide, and elimin-
ate these groups. This forgery surfaced in the January
1979 issue of the Cairo-based magazine A l-Duwu.
? A forged letter from U. S. Ambassador to Egypt
Herman F. Eilts, which declared that, because Sadat
was not prepared to serve U. S. interests, we must
repudiate him and get rid of him without hesitation."
This forgery surfaced in the October 1, 1979 issue of
the Syrian newspaperA I-Bath.
Conclusion
The Soviet Union continues to make extensive use
of "active measures" to achieve its foreign policy ob-
jectives, to frustrate those of other countries, and to
undermine leadership in many nations. On the basis of
the historical record, there is every reason to believe
that the Soviet leadership will continue to make heavy
investments of money and manpower in meddlesome
and disruptive operations around the world.
While Soviet "active measures" can be exposed,
as they have often been in the past, the Soviets are
becoming more sophisticated, especially in forgeries
and political influence operations. Unless the targets
of Soviet "active measures" take effective action to
counter them, these activities will continue to trouble
both industrialized and developing countries.
For further information contact: William C. Mott, Suite 709,
1730 Rhode Island Avenue N.W., Washington, D. C. 20036.
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