TESTIMONY OF MARY C. LAWTON DEPUTY ASSISTANT ATTORNEY GENERAL OFFICE OF LEGAL COUNSEL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000800070058-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 17
• Document Creation Date: December 12, 2016
• Document Release Date: November 23, 2001
• Sequence Number: 58
• Publication Date: April 13, 1976
• Content Type: OPEN

TESTIMOI?Y`
Mary C. Lawtan
Deputy Assistant Attaz~:ey Genera].
Office of Leg,a~: Counsel
` ~I,R, Z5~'9, R.R.. 12039 "To amend the Primacy Act of 1974" bills
THE StIE~Di?~MITTEE ON GCIVERIV'1ENT IH~'~3R'"!',A?~I'Dt~i ?D IivDT.V~_DL'AL RIC~?T a
OF THE
+~OMMITTEE Oiv GQVLRi~'~?~'k?T OFEEATIQ~?S -
HOt1SE OF REPRF:SE~vkT'IVES -
APRIL 13, ~97b
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Madam Chair~~o~-an and Members of the Su~~~comueittee.
. We appreciate the opportunity to testify on H. R. 169
and H.R. 1~D39 and to discuss with you. various Legal issues
amid practical problems involving Department of Justice files.
~~ additioaj. to our views on the two bi.~.ls you have specif-
i~.lly requested that we discuss the C~INTLbPRO notification
program recer.~tly announced by the Attcsrney C'eneral, the
relationship of the Privacy Act to the. COIi~TELPRO files.,
lar~suits brought aginst the United Staters or individual
officers because +of COINTELPRO,. and thy. intended resumption
of the FBI.'s records destruction progr~n under its Records
Control :Schedule. ..
In th.e interest of time we will discuss each of these
t~.tters as briefly as we can.
I.
' Since H. R. I~C13'9 enco~apasses the provisions of H. R. 1b9,
we will confiTM~e eaur comments to the mr~ae recently intrad~~ced
bill.
H.R. Y~t33'~' ~ar~ould amend the Privacy' Act ire several respects .
It would re~:7is~: ~ U. S. C. 5~2a (d)~(2) (~~ (iii to specify that an
individual may request not only the trection of records but
expungement, ~.~pdating or supplementat~.~~n when the individual
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believes the records are not "accurate, relevant,. legally
maintained, timely or complete." It would add new provisions
requiring agencies to notify "persons" (as distinguished from
"individuals") concerning uncons.ented interception or examina-
tion of communications or searches, and zaould require notice
to persons who. are the subjects of fries. compiled in the course
of three programs - CI-OS , COIi~LPRO , and. the Internal
Revenue Service "Special Service Staff" programs. Pers~sns
notified would have th4~ option ref "requiring" that agencies
des tray the files. .The. bill wau~.d also eliminate the express
a~zthority of the CIA and Secret Service to exempt some of
their records from certain provisions of the Privacy Act.
We have serious difficulties with the provisions of
R.R. 12033 particular~.y in their intended relationship to
existing law.
A The amendmex~.t to the correc~:ion provision of the .
~'rivacy Act nat only retains the uncertainity of existing law
'but increases it. The Privacy Act nowr authorizes individuals
to seek correction of agency records .~ahich the individual
believes are not "accurate, relevant, timely or complete"
and it does so ws.th.out exception or wi~t:.hout definition of the
operative terns . Literally it could :~e read to authorize
requests tc~ alter scorn state~aents, official transcripts o~?
accurately recorded statements ?~f third-party opinion and to
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require that closed files of historic interest be reopened
~o add near material wzrelated to the original subject matter.
By revising the provision to refer not only to correction but
. also to expungement, updating or supplementation - without
defining the intent of these concepts or the original language:
- the interpretive problems are exaserbated.
Is it intended, for example, that I be allowed to demand
expungement of any unfavorable comzaents of third parties in
my background investigation file or s+~~ek to "update" last
year''s perfara~anee rating by substituting this year's?
Could an equal employment opportunity complainant "supplement"
an affidavit filed earlier subst~ntia.l?y altering-its content?
These questions have already arisen under the existing law
and the bill does not resolve them. "
+ As you 'know, we 'have taken -the pe~sition that the correction.
`provision of the Privacy Act encompasses the right to seek
expungement in apprapriate cases. prifiary concern is
that neither the present Act nor its proposed amendment
suggests what are - or are nat - apprapriate cases.
" The notification provisions ~f ~.R. 12Q39, in our view,
sweep too brs~adly and conflict w~.th existing law without
addressing such conflicts. 2~areover,. they pose serious
problems for effective law enforcement and the protect~.:r~~i of
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 ' taped with the victim s consent. Coup-led w~.th the.destruct~on
~~ provisions, the bill could even be read to authorize a de-
? fendant to "require" that the tapes be destroyed prior to his
kidnapping.trial. The Title 18 provisions on interception
were designed to avoid such problems. H.R. 12033 would appear
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national security.
. Proposed paragraph (e)(12)(l~)would rewire notice to both
sender and receiver of wire communications that have been
intercepted without a warrant or without the consent of
both parties to the communication. The requirement is
inconsistent.~~ith provisions of 18 U.S.C. 2510. et se which
exclude interception with one-party consent from the warrant
provisions, permit emergency interception ran a limited basis
~+rithout warrant, and provide discretion to-the court to alter
the notificatia~n requirements related to interception. .
F`or example, the provision would appear to require notice to a
kidnapper that his ransom demands on his vaotims had been
to amens Title 18 without any direct reference to it.
~e might also note that the b.ll's.sweeping provisirn on
interception could be: read to require the Ped:eral Co-nmunic -
bores Commissimn~ to provide notice of radio monitoring under
Ithe Communicat~.ons Act, 47 U.S.C. 605,. yet it makes no
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 !~ftf~ ~~a~~i~~~,~~~~ii~I~~Ri~~:~~~~~~~~i~~i~ip to the
proposed Privacy Act amendments.
,The provision refers to the "e.~aminatie~n" of various
types of communications, including written communications,
and requires notification whenever there is neither a warrant
nor both-party consent. It is not clear whether this language
~.s intended to encompass "mail covers" or customs eYamina-
bons for contraband for which no-warrant is legally re-
quired. The "examination" Iangua~.e also raises the ques-
tion whether law enforcement authorities examining threatening,
or extortionate communications turned over by the intended
victim would be-requi:red to notify the potential defendant
,and even destroy the evidence at his reques-t.
- The provision requires notice. to the occupant, resident
+~r o4mer ofpremises or vehicles searched without a warrant
+ar without consent. Zt is not clear whether actual notice
to any one of the three, present at the tiaa,e.of the search,
is sufficient or whether separate notice tv any or all of
these is required. Many warrantless vehicle searches will
anvolve occupied vehicles and the occupant will, therefore,
already have actual notice of the search. Cf. Carroll v.
~Bnited States, 267 U.S. I23 (Z925~1. Simi7.arly, warrantless
searches contemporaneous with"a~est, by their very nature,
will involve actual notice to an occupant of the premises.
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 ~~pro~~c~.~n~-1Re~ea~s,~~~$~/~~a.C1A3~~P~711~001~~6~0(~Q~30058~s it con- -
tempY.ated that subsequent .notice must be given as well?
Must awners or residents, not present at the~time of the
search, be separately notified? The bill is unclear in this
respect.
Even more serious than the law enfca.rcement problems
posed by the bill are the problems created in the counter-
inte~.Iigence field. Notice to foreign, agents engaged in
espicanage that their identity or operations have been
determined by means o.E interceptions would effectively
paral~ze the counterintelligence efforts o.f this country.
The bill even goes so far as to substitute the word "person"
for the word "individual," now used anal. defined in the
Pri~aacy Act, suggesting. that notice would be required to
be given to fareign nationals as well as U_S. citizens.
It might,'even be read to authorize foreign nationals to
require" the destruction of the infar~atiara obtained.
As the Attorney General has made clear in his- testimony on
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natit~nal security wiretap legislation, we are not opposed
to judicial review of national security interceptions but
we consider notice provisions, such as this, totally
.inconsistent with nati_anal security.
finally, we note ghat proposed paragraph X12) would
require agencies to aciv.se persons of theig rights under the
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Freedom of Information Act and provide such persons with
the option of "requiring" that agencies destroy the file.
Aside from the problems already alluded to, this provision
fails to address the relationship between its apparent
destruction requirement and the record-keeping requirements
caf the Federal Records provisions, 44 ~T.S.C,-.:2103, 33171 or
;a U.S.C. 251$(&). Nor dons it ma~.~e exception for files
which may be the subject of pending litigation. Certainly,
files relating to litigation should not be destroyed until
the case. is resolved and we question whether individuals
should have a personal right to override the historic records
requirements or judicial supervision o~f electronic intercep-
Lion requirements of existing law. As recent experience
indicates, such a destruction requirement may. also be in-
caansistent with congz?essianal interest in th,e preservation
~f certain files.
The notificati.an provisions relating to specific.
pro,g,rams,.such as CCZNTELPRO, involve somewhat different
considerations . We will confine our c.ornrQents to CCINTELPRt3
;itself, deferring to the CIA. and Internal Revenue Service
with respect to ?the other programs. _
As you are. aware, we have~na theoret~.cal objection to the
concept of notification of individuals who may have been
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affected by COINTELPRO and we have already-taken-the
?position that the current Privacy Act permits individuals
to request destruction of files ~:hic~i may not properly
be maintained under i~he Privacy Act. Our concern is that
the provisions of H.R. 12039 do not adequately address-the
complex issues raised by notification and destruction.
Indeed, we seriously question whether the issues can be
adequately addressed in legislation. ~ ?
Z`'f~te term COIZITELPRO, as we use it, refers to a program
cif particular tactics directed at individuals or organiza-
tions under investigation. The tactics used, proper or.
~tproper, are separate and apart from the question whether
the investigations themselves were undertaken for valid
haw enfo~?cement purposes. This distinction is important in
deterrnining~~the scope of notice to be given, the degree of
information to be provided, and the extent to which
~for~z~a.tion may be subject to destruetior~ under the Privacy
.pct .
I1r is also important to make the distinction between
~struction of records and the Privacy Act's prohibitions
crrt agex~cy maintenance of records. H.~t.. 12039 appears to
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authorize destruction, at individual request, regardless
of the nature of the records involved. As we read the
Privacy Act, it pral~ibits agency maintenar.~~e of certain
records but permits the Archives to maintain those portions
of the records it finds to be of historicsignificance.
` ~ U.S.C. 552a~1). E3ur experience indicates that the
Archives is primarily interested in presera?'ng the historic
fact of agency acticn, proper or improper, but is willing
to permit destruction of personal data acquired in the
oourse of agency action.
Notification and possible destruction of information
relating to programs such as COINTELPIt~}, in our judgment,
requires these fine d:istixzctions as well as consideration
of such matters as the preservation of documents relating
to litigation. Likewise we have had ~:n recent years the
added consideration, of congressional requests far the
preservation of such. documents. All of~these complexities
suggest. the need for case-by-case rev~.~:w s~f issues such
as notification and. destruction rather than a sweeping
legislative approach- ~~e suggest that. our announced
COI~tTELPRO notification. program offers a batter approach
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than H.R. 12039.
II.
Before dYSCUSSing our COINTELPRO a~otification program,
a brief bac~.ground may be helpful.
I'he several programs carried out by the FBI and described
by the term CO+INTELPRO Caere the subject of successful
Freedom of Information Act requests, by journalists and
individuals affected by COINTELPRO, puior to Attorney
General Saxbe's public description of the programs. After
the. Department 4 s release of its report on CI:}INTELPRO
additior~al FCT requests for this material Caere received.
Appro:~ima~:ely 50 to 70 s~:ch requests b,ave Keen or are being
processed anal others may be included within the FOI backlog
of 6,000 ~rec~uests. _ ~. .
~o the best of our knowledge there has-not been a class
action suit moiled on behalf of all th.a~~se who may have been
tie victims of C?INTELPRO activities. Haw~:ver, the complaints
in a number s~f pending suits against the g?~vernment were
amended so as to include allegations exf harm from specific
actions ~,ahich znay be related to COINT':LFRC. Muhammad
Kenyatta, et ~l: v, Clarence M. Keile~, Civ. No. 71-25A5
(E, g, pa,) ; Emily Ha~-rss , et al. v. Charles- SJ. Bates , et ~.1. ,
Civ. No. CV-760034-ALS-~C.D. Cal.); Peter Bol~mer, et al. v.
Richard M. Dixon, et a2. , Civ. No. 7~-xa---T (S:D. Cal.) ;
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3nsti.tute for Policy Studies, et al. a~. John N. Mitchell,
et asl. , Ci.v?:- ~o. 74-~3i~i (U. S . D. C. D. C.) ; Abdeen M. Jabara
o, ~., Patriek Gray, III, et al., Civ. No. 39065 (E.D. Mich.);
Soc~.alist ~~arkers Party, et al. v. Att?rney General, et al.,
73 Giv. 3100 (S.D.N.Y.); American Civil Liberties Union,
et al. v. City of Chic moo, et a7.., No. 75 C 3295; Richard
Dhoruba Moa~re ~. Edward Levi, et al., Civ. No. 75-C-6203
(S.I~.N.Y.) ; Jane Fonda v. ~L Patr~.ck Gray, et al. , Civ.
~To. ~3-2442-t~~I..; Charles Koen v. Estate. of ,~, Edgar Hoover,
et. a3. , No. 7.5~-2076 (D._ D.:C, )_: .
~'li.e reve3ations concerning COI~~TELFP.O raised serious
+questions concerning what obligation. the .Iustice Department
might have to individuals injured. by COIN~I~'RO activities.
It is~app~.rent that some of these activities may have been
~uprvper or - i~.legal ? A number of thew may have resulted
3.n injuries to individuals, including possible economic
damage or ~~ to personal reputations. Eowever, due to
the covert nature of these activities, many cif those
? affected by ar'~;uably :improper actions might still be unaware
that. such a.ct~.ons were-taken and are thereby unable to seek
whatever remedy might be appropriate.
after a. number of preliminary dissussi.ons, the Attorney
General asked ~~ex E. Lee, Assistant Attorney General, Civil
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 Division, to prepare a. recvrrr~endation with respect to an
appropriate Justice Department response to this problem.
Early in this year, Mr. Lee recomrnencled that the .Justice
Department iaaitiate a notification program with. respect to
individuals who were the subjects of arguably improper
CDINTELPRO activities. After further discussions and review
of the scope and nature of the prable~.,, the Attorney General
announced on .~pril 1 that he had -estab-fished a special. review
committee to notify individua~.s who may have been. personally
harmed by improper CO~INT%LPRG~~actavities, that they were the
.:subjects of such acti-vities,.and to advise them that they
may seek further information from the ~?.epartment as they
wish. - ~ ~ ~~ ~ .
T'he process of reviewing COTNTELP'~?3 fi~.es in preparation
of notification is already under may. Actual notification
~cari be expected to begin with~.n 6th days. The notification
process will hopefully be completed within three months.
Notification w~.ll be made ire all those instances where the
following criteria are met: ~I) the specific COINTELPRO:
activity was improper, (2) actual har~x may have occurred, and
(3) the subjects are not already aware that they were the
targets of COIITELPRC) activities . A special concern of the
notification cr~mmittE.e is that no rights to privacy be
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infringed by the notification process and specific pro-
cedures to implement this concern are still being developed.
Those notified pursuant to this progr~~ krill be directed to
contact a special office established to process any requests
.for further informat3_on on a priority basis. Notification
~Iecisions under these criteria will b~ made by~the special
review corrsnittee which has been set up under the Office
cif Professional Responsibility-with. the assistance, where
required, of a special advisory committee ~a:de up of twa
E9-ssistant Attorney Generals and the Legal Counsel of the
PBI.
III .. ~ ~ .
The final subject we have been as~Ced to discuss is the
resumption of the FBT.'s records disposal program. ,As you
are aware, tY~e Senate leadership and the Senate Select
committee Nava advised the Attorney Ge~nera.l that they have
ato abjection to the resumption of this prr~gram.
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The records disposal program to be resumed involves
ply those records approved for destetioaz by the National
archives and Records Service under the established Records
~ntrol Schedule. These include certain ,administrative
records and identification records n? lonb,er needed; records
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of criminal cases in t~hich tl~.ere has been no prosecution
authorized, no investigation bec`use of a lack of federal
jurisdiction. or an unsubstantiated allegation, or property
cases in which no suspect has been identified; original
records of criminal cases which have been closed for ten
years, which have been micrafilmed; and records~af field
office criminal cases which have been closed and of ~~~hich
summaries are maintained at headquarters.
In an abundance of caution, FBI Headquarters halted all
.files destruction in response to the request of the Senate
leadership~in January 1975. Whixe the standard microfilmin;
process conti.~ued on closed files relating to criminal cases
involving stolen motor vehicles, interstate transportation
of stolen prt~gerty and similar property matters, the
originals of the documents were preserved as well. There are
presently 240th files drawers full of these original files
being preserved even though the cases have been closed .for 1G~
years.Similarly, the FBI is current3.y retaining.l05 six-
draw file cabi~zets full of criminal matters involving
't~ntsubstantiated charges or a1].~gations outside federal juris-
diction, all aver ~ ten years ~rld. Inna~serable administrative
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files relating to time and attendance records, auto accident
reports, personnel transfers, travel requisitions, applicant
files, tour arrangements, etc. are beang maintained long
beyond their normal destruction period. It is of these files
which we propane to resu-~e~normal destruction in order to
alleviate the space and manpower burdens of retaining them.
Under the Archives Records Contra~I Schedule., files re-
lating to domestic security, racial matters,. extremist matters,
counterintelligence and foreign intelligence are to be main-
tained indefinitely. The Control Schedule is, of course,
binding on the Department and there .is no intent to undertake
raa~.tine destruction of such files. Even .with respect to the
criminal `files subject to destruction under. the Control Schedule
microfilm copies wou:Ld remain availab~.e indefinitely.. The
resumption of the destruction program would merely serve _
t? redaace the storage burdens of a Ia~ge volume of original
and dai~alicate records, it would not eliminate any records of
FBI activity which may be of interes~ ty historians, the
courts, the Congress or the public g+~~f~rally.
We hope, IYladam Chairwoman, that wa: have addressed, at
1-east in summary fashion,. the subjects listed in your Apri'_ 2~
letter concernin these hearings. We will be happy to respond
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