Q&A FOLLOWING ATTORNEY GENERAL GRIFFIN BELL'S FORMAL ADDRESS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200080009-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 21, 2016
• Document Release Date: August 15, 2008
• Sequence Number: 9
• Publication Date: May 8, 1979
• Content Type: MISC

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PUBLIC AFFAIRS STAFF
ATTORNEY GENERAL GRIFFIN BELL
[Q&A Following Judge Bell's Formal Address]
Langley, Virginia
Tuesday, May 8, 1979
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[Address, followed by applause.]
ATTORNEY GENERAL GRIFFIN BELL: Thank you. And I'll
now do my best to answer questions. It's not too often you
get to cross-examine the Attorney General.
[Laughter.]
Yes, sir.
Q: What was the Foreign Intelligence Court? Could
you tell me more about that?
ATTORNEY GENERAL BELL: The Foreign Intelligence
Surveillance Act was something that was -- legislation that
was introduced by President Ford and Attorney General Levy.
It never passed in that Congress, and we reintroduced and
were able to get it through the last Congress. And what we
do there is in counterintelligence activity, which now ends
at the Attorney General level, or the President's level, as
the case may be, now goes'one step further. And we go to
this special court.and get a court order before doing cer-
tain things in counter-intelligence.
This has two effects. One is it places another
safeguard in the line which reassures the American people
that the system's operating within the framework of the law.
It also renders everyone immune down the line.
We never -- we never said a whole lot about the
immunity, because the law of immunity changes.pretty fast.
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But it is true that judges are absolutely immune. And while
we don't have a legal opinion on it yet, I would think anyone
on down the line, unless you could prove they acted in bad
faith, also would pick up?that immunity.
'. But we have the tort claims amendment going on
right now where if an agent is sued, we would substitute
the United States as a party defendant, and the agent would
get out. And then we wouldn't have a problem about repre-
sentation or who was going to pay damages, if damages had to
be paid. That's another thing that we're doing.
Yes, sir.
Q: Yes. On that very point, in the proposed charter,
there was special language in there the protection that the
Attorney General could give to intelligence people if they
acted on the order of their general counsel or their agency
chief was not provided in the case of electronic surveillance,
so that everybody mixed up with electronic surveillance was
not only out on their own, but they couldn't get the legal
protection, and all this sort of stuff. Is that going to
stay in the charter?
ATTORNEY GENERAL BELL:' We haven't gotten that far
in the charter we're drafting. We're not -- without disparag-
ing this S-2525, we're getting up a charter of our own. And
I would not agree to that, unless they included electronic
surveillance in it. After all, there're the people who engage
in the greatest risk and who are most often sued. So that's
nothing. That's like giving you a tip to put that in there
and leave the other people out. I wouldn't agree to that.
Not that I could prevent, but I could try.
[Laughter.]
I can try always.
Yes, sir.
Q: Do you have any hope for doing anything about
the Freedom of Information Act?
ATTORNEY GENERAL BELL: Yes. Yes. Well, I'm em-
barrassed to tell you that we've-been studying this for a
good whil6 at the Justice Department. We study a lot of
things. And we are -- just today, I was talking to the
Admiral and to the Deputy, and I promise when I get back
to the Department, I'll see why it's taking us so long to
do this.
I've said, though, that I think we've lived now
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for a good while now with the Freedom of Information Act.
It's become very obvious to me and to a many others that
we need some changes. Judge Webster frequently speaks out
on this subject. And it's time for us to go forward with
suggested changes.
Whether we'II get them through this Congress or
not remains to be seen. It may take one more Congress. But.
we wi I I get some of the necessary changes. We're spending a
good portion of our time giving information to people in the
penitentiaries and organized crime, who are trying to find
out what we're doing to keep up with them, and those sort of
things. And this is -- I don't have a great deal of patience
hardly ever. But it reminds me of being -- I think we're in
the silly season in this country.
[Laughter and applause.]
So maybe we can do something. Maybe somebody else
will think the same thing.
Yes, sir.
Q: Sir, it seems that every time we pick up a news-
paper and there's some new exposure of classified information
in the media. I realize this is a sensitive area. But could
you tell us what is being done to plug these leaks, and what
are the problems that you face in trying to do so?
ATTORNEY GENERAL BELL: Well, this is a difficult area
of government. When I first came to the Justice Department, we
had an investigation of a leak of grand jury information. I.
required all the lawyers on the case to sign affidavits as to
whether they'd talked to the reporter. And I found out who
did-the leaking in that way. I could not, didn't feel like
asking anyone besides the lawyers, besides the secretaries,
whatnot, were not bound by the same ethical restraints as were
the lawyers, although they ought to be, because they're sort of
an extension of the lawyers.
I then had a press conference and announced what I
had done, because I knew it would get out any way. [Laughter.]
And I told the press that I was going to do everything I could
to control leaking, but that I recognized that they had a con-
stitutional right to obtain leaks= So we would just be in-an
adversary relationship with each other. I'd try to hold down
leaking; they could decide to do everything they could to find
people who would leak. And then I asked all of my employees
to be very careful. If they felt a compulsion to leak any-
thing to please be accurate.
[Laughter.]
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And I think that brought a sense of shame to the
Justice Department, and the leaking sort of stopped. And
there's been some leaking, of course, since then, but nothing
like it was when I came here. It was just rampant at that
time. It was the way most news got out was by the leak
n~thod. There was hardly any need of having a press con-
ference.
So that I think, you know, we went through Water-
gate and the Vietnamese wa.r, and we were in a low period.
And I think -- I really think we're working out of-that. I
think the mood of the people is better; the mood of the press
is even better. An.d the mood of the government employee is
better and of the American people. So I think we're in a
better mood. And I think people now are fairly careful about
leaking. And I've made two or three speeches on what people
accomplish by leaking and to try to explain that I understand
the game. I f somebody can leak something that I'm not going
to do, they leak that I am going to do it, and they think
I don't have enough backbone to change the course. But that
doesn't bother me any to change. I don't pay any attention
to things like that.
And there's all sorts of leaking going on. There
was a study done on leaking at Brookings, and it describes
-- I once put this in a speech. I think it was to the Ameri-
can Society of Newspaper Editors. It describes leaking, and
the double leak and the daring triple leak. The triple leak
is one of the great things. .
[Laughter.]
But once you get to put all this on the table with
your employees, things pick up a little bit.
Now leaking classified information, prosecuting people
that do that is quite a problem. The law is complex. It's
narrow. And it depends on whether it has anything to do with
defense, nuclear energy. Often you run into First Amendment
problems. And I have somebody studying that. And we'll have
something to say on that in the next two or three days. But
we're trying to get some relief in that area, some relief more
than what we have now.
The Admiral knows about-i.t. And we'll be having some-
thing to say on it.
Yes, sir.
Q: Judge Bell, in some of the recent cases brought
by private citizens involving constitutional issues against
defendants in both private and official capacities, this has-
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led to this necessity to separate suits so that the government
defends the suits and then hires private attorneys to defend
the privately sued individual.
Do you think that federal tort act change, or any
of the various measures. that are in progress, will do any-
thing to solve that?
ATTORNEY GENERAL BELL: It will solve it. That's why
we're pushing that legislation. I'm the person who thought
that legislation up. When I first cane here to Washington,
every few days somebody would bring me in a paper to sign
where I would substitute the United States as a party de-
fendant in the swine flu serum suits. And I found out that
the Congress, when they passed that law, had passed a law to
indemnify and hold drug companies harmless if they would make
this serum. And they did it by substituting the drug houses
as a party defendant -- I mean the government as a party de-
fendant. That means the government defends the suit and pays
the damages.
And it occurred to me that if the government would
do that for the drug houses, surely they'd do it for the
CIA and the FBI. And I've been preaching that for two years
now, and I haven't got the legislation through, but I believe
we'll get it through before it's over with. That will solve
it.
Q: Judge Bell, do you favor repeal or renovation
of the Hughes-Ryan Amendment? And if so, do you favor it now
or as part of a larger charter legislation package?
ATTORNEY GENERAL BELL: Well, on Hughes-Ryan, I have
said privately -- I don't think I've ever said it publicly --
that I favor -- I don't mind leaving it like it is. I favor
giving it a literal interpretation, which is you report, you
report after the fact, not before, because the President has
the authority under the Constitution to run the foreign policy.
He does not have to;go get clearance in advance. But reporting
is not unreasonable.
The second thing that I favor is that you report only
to the intelligence committees, the House Intelligence Commit-
tee and the Senate Intelligence Committee. Now, I have had
some experience in the past in reporting, not Hughes-Ryan re-
porting, but reporting on matters that involve the national
security. And I have, on two occasions, reported things to
the leadership and the two intelligence committees. And they've
said "What can we do with this?" And I said "It's in your judg-
ment. It's in your judgment what you do with it. But I'm not
reporting it to anyone else."
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That kind of an approach, plus stemming off any ef-
fort to make your report in advance, anyone unwittingly filing
or reporting in advance, It seems to me, would make Hughes-Ryan
livable. We can live under it. And being realistic, I doubt
that you could do any more.'
Congress -- you know, the founding fathers designed
government on the basis of tension. And this tension between
the Congress and the executive: that was intended. And the
Congress is constantly trying to get some of the power from
the executive, and the executive probably -- I'll exclude
the present administration -- but there might be someone in
the executive who'd be trying to get some. power from the Con-
gress. And occasionally people have been known to say that
the courts exercise -too much power.
So this is tension, and we have to expect that. So
what I have just described probably wouldn't be a bad system.
Now, you may find others who disagree with that, but, just as
as an observer, that'll work it out pretty well.
Q: Judge Bell, perhaps you could clarify a con-
stitutional problem for me. As I understand it, under the
"gray mail" provision of classified material that was not re-
levant to the* case might be supressed, that you would supress
that material in a pre-trial hearing so neither the government
nor defense could use it. Is that correct?
ATTORNEY GENERAL BELL: All right. What we'd do,
to put it in a simple way, if some secret was discovered, was
about to be discovered, you could go to the judge and disclose
it to the judge -- in canera, we call that -- not to anyone else.
And you could get a ruling on whether it's relevant to the de-
fense. If it's relevant to the defense, you might have to then
consider either dropping the case or appealing the ruling, if
you thought it was incorrect under our legislation. If it was
not relevant, you'd put it back in the vault, and that'd be
the end of it. --
Sometimes the judge will want to bring the lawyer
in, the defense lawyer. That may mean getting clearance for
the defense lawyer. Sometimes they won't. When I was a judge,
I had a case where the court, the district court looked at some
foreign intelligence and said it-was not relevant, resealed-the
envelope. Then when it came to appeal -- I was on the court of
appeals -- it came there sealed. Everybody had his initials,
so you knew it hadn't been opened. Three of us looked at it.
And we decided it was not relevant, and we put in the opinion
that we had examined it and it was not relevant.
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We had a case here in Washington recently where we
have to drop some cases because the judge said he didn't have
authority to examine anything in camera. Well, for generations
courts have examined trade secrets, for example, in camera. So
it's nothing new. But we appealed, or we tried to. We filed a
nend'arnus proceeding, and the court of appeals denied it. And
we had to dismiss two prosecutions. .
We think this .is a simple solution and will. solve
most of the problems.
Q: I'd like to follow up on that question. In other
words, you're saying that in a pre-trial suppression here, you
could avoid confrontation problems if the defense lawyer there
wanted to use the evidence, wanted to confront a witness with
that evidence..
ATTORNEY GENERAL BELL: Yeah. Yeah. I think that.
I don't think that you could confront anybody. I don't think
you have a right to be confronted with something that might
not be relevant. But most judges will let the lawyer in.
But the next argument, if you want,to put it under the con-
frontation clause, would mean that you had to let the client
in; the defendant would have to get in and look at it. Then
we might as well put in the paper. And 1.'m not planning on
doing that.
But what we are trying to do is have a public trial.
I've never worried so much about confrontation. We're trying
to have public trials. I talked to the Canadians and I talked
to the British. And they have secret trials. I was in New
York last summer with the Attorney General of England and Wales.
We were both on the same program. lie had just finished a secret
trial in England. Nobody gets excited about it over there. They
.had an espionage case, tried it in secret. We can't do that.
There's no reason; it's idle to discuss it, because our Con-
stitution guarantees you a right to a public trial.
And what we're trying to do is work out a system
where we have a public trial in every respect, except pulling
in material which is not relevant. And understand, a defen-
dant, when his time comes to appeal, he can get a new trial
if it was relevant.
So I think you get a fair trial that way. I believe
you do. And actually there've been some cases like this. I
can give you one that I wrote the opinion in called N: Rap
Brown, the United States v. H. Rap Brown. That was the case
I was referring to about the intelligence, the foreign in-
telligence in it. And there's been one in the District, and
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-there's been one in the Third Circuit Court of Appeals. And
they're some pending, as you know, in the pipeline right now.
Q: Judge Bell, my-question is about legalisms
sgrrounding intelligence activities against U. S. persons.
I'was struck by a recent report issued by the State Depart-
ment on events in Guyana. And a reading of that report would
indicate that bureaucratic concerns about activities of a con-
tentious U. S. religious group had so constrained the Embassy
that when they asked if they could raise the problem with the
Guyanese government, they put it in such a low key fashion
that the State Department said, no, you may not.
And translating that into our concerns, 1 could see
possibly a chief of station somewhere dealing with a situation
where U. S. persons were involved in seemingly subversive mat-
ters, who might similarly have his instincts constrained. And
I wonder if you're satisfied with the current balance of law
in this field.
ATTORNEY GENERAL BELL: Well, I don't have a specific
example before me. But intelligence activity, like law enforce-
ment, involves common sense.
Now we certainly want -tp be careful not to interfere
with anyone's rights to religious freedom under the First Amend-
ment. But if there's evidence of a crime, you're investigating
crime, not religion. And I -think people have to have that in
mind. I think you just can't hide from the fact that there might
be some criminal activity going on.
But I don't want to look on that matter as being wide-
spread. This was a religious group in this country that had gone
over there saying they were fleeing persecution, that sort of
thing. And you'd be naturally reluctant to keep up with them
too closely. And I would prefer to think about that as being
an aberration.
We have been in prosecutions against religious groups
who violate the law, and we will be in the future. And of course,
I don't control the whole government, so I don't know what the
policy of other agencies might be. But I think it would be a
sound policy to be careful about intruding on religious groups.
But if you get reports that they're committing crimes, then you
ought to investigate. And we will and do. We do and we will.
Somebody in the back. All right.
Q: I wonder if you would comment on the legal implica-
tions of trying to deal with people like Phil Agee and "Covert
Action Information Bulletin," which allegedly identified CIA
personnel abroad.
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ATTORNEY GENERAL BELL: Yeah, that's one of the hardest
problems we have, the Agee problem. He doesn't return to this
country, and therefore we're unable to take a civil action against
him. I suppose if we did, he'd leave, go back again, if he could
get out. If we prosecute, we'II immediately be into the gray
mai'.I area.
So we've got to -- we've got to come up with some dif-
ferent approach to the matter that we've not yet come up with.
I know you're worried about the Agee -- when I say "the Agee,"
I call it the Agee problem, because there're others in it too;
seems to be. And I worry about. And there's nothing I'd like
more than to be able to do something about it.
We have discussed this with all of your top people,
and we're still discussing it. In fact, we discussed it today
before we came down here to the auditorium. And I don't know
what we'll be able to do. But I think with a little imagination,
dedication, maybe we can do something. I'll say to you that it's
on mind, just as it's on your minds and on your people's minds
everywhere in the world,.I suppose. It's not a good thing.
It's not a good answer, but the best I can give you
right now.
Q: Thre's a practical intelligence problem of the
type that you addressed partially. When this agency collects
intelligence through clandestine means, let's say on narcotic
matters, and they're giving information or providing information
on foreign narcotics trafficking, at a certain point that in-
formation may lead to identifying the U. S. connection, the
Americans involved in bringing the drugs across the frontier
or selling them in Chicago, or what have you. That information,
according to regulations, we cannot disseminate.
Now this is frustrating to DEA and various other
enforcement agencies. And I'm just wondering what the solu-
tion is. How can we....?
ATTORNEY GENERAL BELL: This is one of the first things
I learned after I got to Washington, that the intelligence agen-
cies would not tell me about a crime. And I had a big argument
one day with the head of an agency.about this. And I was trying
to get some information, and he said he was in the intelligence
business, not in the business of prosecuting people. So I
started using examples. If he found out that somebody, we'll
say that the President had committed some terrible crime of
the highest order, would he tell me? He said no; wouldn't tell
me. And I said, "Well, this can't be the law. We couldn't --
can't have a government operating on this basis."
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So I finally got him to give me the information
on the basis that he'd give it to the President. He said
he'd give it to the President, but he wouldn't give it to
me. And I finally worked it out on that basis.
I don't know what -- there's no flat answer to
this sort of thing. I can't believe, though, that people
in the intelligence community wouldn't call it to someone's
attention if they saw clear evidence of a crime by an Ameri-
can citizen, particularly by -- well, by any American citizen.
I think you'd want to tell somebody.
I think the way to handle it is like it channel up,
and then whoever's at the head of an agency ought to make a
judgment about it. The reason you don't want to tell it is,
number one, you think you're intruding on the rights of Amer-
ican citizens, but, number two, you're afraid you'll give away
sources and methods if we find it out. Well, we're not that
bad. We're in the intelligence business ourselves at the
Justice Department. After all, we do have the FBI over there
running counterintelligence. So we understand the problem.
And we're not the enemies of the intelligence community. And
I really don't think you have a right to have this kind of
information without giving it to somebody. I wouldn't want
it myself.
If somebody -- as high as my office is, if I got
some information I couldn't give out, I don't know what I'd
do with it. I think I'd want to tell the President. I know-
I'd write a memorandum of some sort about it.
But this is a traditional law in the intelligence
business. I mean if you think about Coventry being destroyed
to save the secrets of Britain in World War 11, then you know
that you just don't give out everything. But when you run
across something IIke. that, particularly if it was against
a public official, you ought to let it come up to the top of
your agency; move it up the line, and then we'll all make a
judgment about what. to do with it.
That's about the best answer I can give you. This
is a very difficult thing, the question you ask. Intelligence
is difficult. Let's face it.
Q: ...when it comes to-court, when it comes to .
trial, there's the fear not that the FBI or the Justice De-
partment learns about our sources and methods, but it comes
out in court. I mean the defense attorney insists on knowing
how this information was obtained.
ATTORNEY GENERAL BELL: Yeah. Well, That's gray mail.
That is gray mail. But you see, you've got to trust the Attorney
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General enough. You've got to say that he is not a traitor
and he's not an idiot, and he's not going to give away the
secrets of the nation. And I've had to sell that. And we've
prosecuted a lot of people since I've been here. But every time
it's been trouble, because the intelligence community naturally
-- and I don't blame them; they want to protect the sources and
the methods. But we're finding now by working together that we
can prosecute. We can prosecute sometimes where we ought to
prosecute. If we can'.t prosecute, we just don't go'forward.
But we do work it out together. And this is a good thing.
This is one thing I'm very proud that we have accomplished.
Most of us did not know each other when we got here. Career
people were already here, and they thought probably somebody
from Atlanta was a dangerous character. But we're working it
out pretty well now. We're doing it with a sense of respon-
sibility, tilting to the interests of the defense -- of the
Intelligence community. And gray mail legislation will make
it even better, if we can get that through. And I think we
have a good chance of getting the gray mail legislation through.
In some places, we do fabulously well in court. The
gray mail system has worked out. We even had a mandamus granted
in New York in the Second Court of Appeals where I was in con-
tempt of court for not giving the.narnes of the informants. The
Second Circuit Court of Appeals stayed the judge's order and
granted a writ of mandamus, which meant they heard a case; it
was not appealable, ordinarily.
But you can't depend on that. You can't depend on.
the vagaries of the courts of America. You've got to have
a statute that says to all of them: "1-lere is a procedure to
follow." But without a statute, remember, we've done pretty
well. And this case here in Washington, over in Washington,
was the only one that we've had to dismiss so far. Since I've
been here I believe it's the only one.
Admiral, I believe that's it.
[Applause.
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